Kentucky Miner Sued By Former Employer For Filing Discrimination Complaint
Dave Jamieson of the Huffington Post writes:
WASHINGTON — Within the last 17 months, Kentucky miner Reuben Shemwell got fired from his welding job, sued by his former employer and effectively blackballed from the local mines — troubles that he claims all started when he spoke up about working conditions he considered unsafe.
With the miner now wrapped in a messy legal battle with his former employer, an affiliate of Armstrong Coal, what happens to Shemwell’s case could impact all U.S. miners who claim they’ve been fired or otherwise punished for blowing the whistle in what remains one of the nation’s most dangerous industries.
“I’ve been representing miners in safety discrimination cases for more than 30 years, and this is the first time I know of anywhere in the country where a company has sued a miner for filing a discrimination complaint,” said Shemwell’s attorney, Tony Oppegard. “We think the reason they filed [the suit] was to intimidate him and to intimidate other miners.”
Shemwell’s troubles started in September 2011. After his year and a half as a welder at mining properties in Western Kentucky, Armstrong management fired the 32-year-old for what supervisors deemed “excessive cell phone use” on the job — an allegation Shemwell denied. Furthermore, Shemwell argued that the cell phone charge was merely a pretext for his firing. In subsequent court filings, he claimed the real reason he was canned was that he’d complained about safety problems at his worksite.
According to Shemwell’s filings with the Mine Safety and Health Administration (MSHA), the federal agency responsible for protecting miners, Shemwell had refused to work in confined spaces where he’d been overcome by fumes, and he’d complained to a superior that the respirators provided to welders were inadequate. Shortly before Shemwell was fired, he and a colleague also refused to work on an excavator while it was in operation, according to filings.
Not long after Shemwell filed his discrimination complaint, MSHA officials tried to inspect the site where he’d been working. According to court documents, Armstrong chose to shut the site down rather than subject it to MSHA oversight, which management said would be too costly. Ten workers were laid off.
Shemwell’s discrimination complaint soon cleared the first legal hurdle for mine safety discrimination cases, when a judge ruled the complaint was clearly not frivolous, given how soon after his safety complaints he was fired for excessive cell use. The judge ordered the mine to temporarily reinstate Shemwell at his job as the case moved forward.
But federal officials still had to decide whether or not to pursue Shemwell’s discrimination complaint against Armstrong. In the end, the agency decided to drop it, and Shemwell’s reinstatement was then invalidated.
What happened next shocked Shemwell and his attorney, Oppegard. Armstrong filed suit against Shemwell in Kentucky state court, claiming that the miner had filed a “false discrimination claim” against them, and that his claim amounted to “wrongful use of civil proceedings” — akin to a frivolous lawsuit.