refusal to rehire may be act of discrimination if responsive to protected activity
How later courts described this case
- refusal to rehire may be act of discrimination if responsive to protected activity
- vacating and remanding decision of the Interior Board of Mine Operations Appeals order to determine whether Phillips applied
- remanding to Interior Board of Mine Operations Appeals for reconsideration in light of Phillips
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge,
dissenting in part and concurring in part:
I dissent from the application to this case of the decision in Phillips v. Interior Board of Mine Operations Appeals, 163 U.S.App.D.C. 104 , 500 F.2d 772 (1974). In my view Phillips is not applicable to this case on the facts and moreover I do not consider that Phillips correctly interprets the Mine Safety Act of 1969. My objection to Phillips is that it places an interpretation on the statute that is unsupported by the language of the statute and is overbroad. To apply Phillips to this case would be a further impermissible extension. A petition for certiorari is pending in Phillips . Petition for cert, filed sub nom. Kentucky Carbon Corp. v. Interior Board of Mine Operations Appeals, 43 U.S.L.W. 3318 (Nov. 21, 1974) (No. 74-623). When appellants sought reemployment or reconsideration of their discharge on April 29th, the report had been made to the authorized representative of the Secretary (the Bureau of Mines) so Phillips is clearly irrelevant at that time.
I thus concur in the remand of the case to the Board. In that hearing I would not concur in the application of Phillips principles. However, since appellants waived back pay, it is hard for me to understand why the men are not reemployed. That fact, if unexplained, may go further to proving appellants’ case than any other single item of evidence.