[Updated below (6/24/2013)]
The Huffington Post’s Dave Jamieson has a story today from the Kentucky coal fields that has my head shaking in disbelief. Reuben Shemwell, 32, says he was fired by Armstrong Coal after complaining about safety problems, including asphyxiation hazards and inappropriate respirators. As provided by the federal Mine Act (Section 105(c)), Shemwell filed a complaint with the U.S. Labor Department’s MSHA for wrongful discharge. Now he finds himself being sued by his former employer in Kentucky state court. Armstrong Coal claims that Shemwell filed a “false discrimination claim” against them cost the company “unnecessary and substantial costs.”
In Kentucky Miner Sued By Former Employer For Filing Discrimination Complaint, Jamieson describes the events leading up to lawsuit against Reuben Shemwell, 32, who’d been working as a welder at Armstrong Coal’s mining operations. The firm has about a dozen surface and underground mine sites and prep plants in Ohio County, KY and Muhlenberg County, KY. Jamieson writes:
“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.”
Jamieson interviewed Shemwell’s attorney and coal mine safety expert Tony Oppegard.
“Oppegard maintains that Armstrong filed the suit expressly to send a message to Shemwell and other mine employees who speak up about safety problems. The filing, he argued, was what’s become known as a “strategic lawsuit against public participation,” or SLAPP suit, which is meant to preemptively intimidate detractors through with the threat of legal costs.”
“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.”
After the deadly disaster in April 2010 at the Upper Big Branch mine—where some workers had risked losing their jobs to complain about safety problems—-you’d think coal company owners would be handing out bonuses to miners who alert managers to safety problems. Shemwell’s case tells me that some employers still prefer employees who’ll simply keep their mouths shut. Workers with a voice are considered troublemakers and employers will find an excuse to fire them. (In Shemwell’s case, the company claimed he used his cell phone too much.)
“Shemwell said he wouldn’t be able to afford defending himself without the help of Oppegard and the Appalachian Citizens’ Law Center, a Kentucky-based legal aid group for miners. He also said his legal fight with Armstrong has become public knowledge in his home of Muhlenberg County, making it hard to find work with other mining companies.”
Blackballing a worker for exercising his safety rights—and potentially saving his or another worker’s life—is bad enough. An employer suing a worker because he did so, takes the cake.
[Update 1/30/2013: The U.S. Labor Department's Mine Safety and Health Administration (MSHA) issued a news release today noting that in 2012 the agency filed 46 requests for temporary reinstatement on behalf of miners who submitted complaints of retaliation for raising safety concerns. That's double the number in any previous year, the agency said. The news release notes: "Issues related to discrimination and retaliation of miners came to light at congressional hearings related to the Upper Big Branch Mine disaster, where there was testimony that some miners were reluctant to complain about safety conditions due to fear of reprisals from management. MSHA obtained similar evidence in its investigation into the causes of the mine explosion." ]
[Update 6/24/2013: An administrative law judge with the Federal Mine Safety and Health Review Commission ordered Armstrong Coal Company to withdraw its lawsuit against Mr. Shemwell. Huff Post's Dave Jamieson reports on the judges ruling here.)]