Whistleblower alleges firing was retaliatory
by Ralph B. Davis
PIKEVILLE — A Letcher County coal miner is suing his former employer, alleging he was fired for reporting and documenting safety violations and cooperating with state and federal regulators on safety issues.
Charles Scott Howard, of Roxana, filed a wrongful discharge suit in Letcher Circuit Court against Cumberland River Coal Company and two of its officers, human resources manager Valerie A. Lee and president and general manager Gaither G. Frazier. On Thursday, the case was transferred to U.S. District Court, in Pikeville.
In his complaint, Howard’s attorneys, Tony Oppegard and Wes Addington, list Howard’s activities as a “well-known safety activist” for more than six pages. Those activities included complaining about conditions to management, reporting violations to the federal Mine Safety and Health Administration and the state Office of Mine Safety and Licensing, cooperating with regulators to correct violations, testifying before Congress about the need for stronger safety laws, filing discrimination compaints against the company, and making a videotape of leaking mine seals in CRCC’s Band Mill No. 2 mine, which he later showed to regulators.
Howard was seriously injured July 26, 2010, while working underground, the complaint says, and could not work while he recovered from his injuries. He was later cleared to return to work by several doctors, with the only restriction being he could not work “at height.”
When Howard received his final clearance from a neurosurgeon May 11, 2011, the complaint says, his attorney informed the company that he was ready to return to work as soon as he completed his annual safety retraining. The company scheduled him to take the training May 16 and 17, 2011, in Cumberland, and told him he could return to work May 18.
While Howard was in class receiving his training, however, he received a call from a claims adjuster handling his workers’ compensation claim. The adjuster told him she had received a report from Dr. Robert Granacher, permanently barring him from working as a coal miner. Granacher had previously cleared Howard for work, with only the height restriction.
According to the complaint, Howard then called Lee, who told him he was out of a job and “advised him to seek training for some other type of work.”
Howard says his dismissal is a ruse.
“Although CRCC claimed that it could not allow Howard to work underground because of Granacher’s restriction, the reason given by the company was pretextual,” the complaint says. “In fact, the defendants discharged Howard on May 16, 2011, because Howard had engaged in numerous safety activities during his employment with the company.”
In the complaint, Howard alleges Frazier agreed to put Howard back to work, but Lee instead prepared a generic description of Howard’s job duties and asked him for a second opinion.
“The ‘job analysis’ that Lee completed for Granacher was inaccurate in many respects,” the complaint says.
Howard filed a discrimination complaint against CRCC with MSHA following his discharge, and an administrative law judge ruled June 15 that he had been fired “in violation of the anti-discrimination provision of the Mine Act.”
“It is obvious that CRCC worked diligently to end Howard’s employment,” the judge is quoted in the complaint as saying. “The mine waited until every doctor, including two neurosurgeons, two eye doctors, a psychiatrist and others found no impairment and agreed Howard could return to work. Then it asked Granacher to further review his first finding of a 7 percent impairment and a restriction against working at height. It is interesting to note that Granacher did not see Howard prior to making his second determination, did not change his impairment rating the second time, and did little more than answer a paragraph submitted to his offce …
“[T]here is ample evidence of blatant discrimination against Howard … The discrimination against Howard ran through CRCC and its parent, Arch, at the highest management levels. The evidence supports a finding that [CRCC] acted willfully and used any means available to terminate Howard.”
Howard is seeking unspecified compensatory damages against CRCC, Lee and Frazier.
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