Whitesburg KY
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Judge orders miner permanently reinstated

Administrative Law Judge Margaret Miller of the Federal Mine Safety & Health Review Commission has ordered Cumberland River Coal Company (CRCC) to immediately and permanently reinstate coal miner Charles Scott Howard to his former position with the company.

In a decision issued on June 15th, Judge Miller found that CRCC discriminated against Howard when it discharged him on May 16, 2011, because of the many safetyrelated complaints he had made on the job in the previous four years. The judge ruled that CRCC had engaged in “blatant discrimination” and that the discrimination “ran through CRCC and its parent, Arch Coal, at the highest management levels. The evidence supports a finding that (the company) acted willfully and used any means available to terminate Howard.”

Howard, who lives at Roxana, filed a safety discrimination complaint against CRCC with the Mine Safety & Health Administration (MSHA) on May 16, 2011, alleging that he had been discharged that day because of his numerous safety-related activities. Howard was severely injured in an underground mining accident at CRCC’s Band Mill mine on July 26, 2010, and he was on the verge of returning to work when he was discharged. Howard had been released to return to work by a neurologist on May 11, 2011, and two days later CRCC instructed him to take annual safety retraining on May 16 and 17, in preparation for reporting to work on May 18.

However, while Howard was attending an annual retraining class in Cumberland on May 16, 2011, CRCC called and told him that a doctor had determined that he could not return to work as an underground coal miner, that his workers compensation benefits were being terminated, and that he no longer had a job with the company.

After MSHA investigated Howard’s complaint, it filed an Application for Temporary Reinstatement on his behalf with the Federal Mine Safety & Health Review Commission in Washington, D.C., asking that CRCC be required to reinstate Howard to his former job until his discrimination case was litigated and fully resolved.

Chief Administrative Law Judge Robert Lesnick ordered CRCC to temporarily reinstate Howard while his case was pending. Then, on June 20, 2011, CRCC and Howard entered into an “Agreement Regarding Economic Temporary Reinstatement,” wherein CRCC agreed to pay Howard for 60 hours per week and he agreed not to enter onto CRCC’s mine property. Thus, for the past year, CRCC has been paying Howard in excess of $1,750 per week not to work.

On March 14, Howard’s discharge case went to trial for two days in Pikeville before Judge Miller. The company argued that it had no choice but to refuse Howard’s request to return to work because a Lexington neuropsychiatrist, Dr. Robert Granacher, had found on May 16, 2011 that Howard could not work around moving machinery and was permanently prohibited from working in underground coal mines.

Howard argued, however, that CRCC and Arch Coal had tried for several months to keep him from returning to work. When Dr. Granacher initially determined — on March 7, 2011 — that Howard could return to work with the only restriction being “working at height,” the company never attempted to determine what Granacher meant by “at height.” Instead, according to Judge Miller, after several other doctors had released Howard to return to work without any restrictions, CRCC sent Granacher an inaccurate description of Howard’s job duties and asked him for a second opinion regarding Howard’s ability to return to work. This time, Granacher changed his previous opinion and said that Howard was restricted from working underground.

According to Judge Miller, CRCC admitted that Howard was a good worker. She ruled that “the only difficulty that CRCC had with Howard was the fact that he continued to make safety complaints and continued to contact MSHA.” Stating that CRCC exhibited “open hostility against Howard,” the Judge said that a high-ranking Arch offi cial, Denise Hartling, “authored an e-mail” to several company employees involved in handling Howard’s workers compensation claim that “CRCC did not want Howard to return to work.”

Judge Miller said that CRCC’s goal to keep Howard from returning to work contradicted “the standard goal of an employer to see that injured miners return to work as soon as practicable” and ruled that “the mine sought to prevent Howard’s return to work under any circumstance”.

Judge Miller had harsh criticism for Valerie Lee, CRCC’s human resources manager. The Judge stated that when Granacher initially opined that Howard was restricted from working “at height” in the mine, Gaither Frazier, then CRCC’s general manager, told Lee that if Howard returned to work, the company could accommodate this restriction. Nonetheless, the Judge ruled, Lee chose not to inform anyone of Frazier’s decision that CRCC could accommodate Howard — and from that point forward, “CRCC and Arch worked to keep Howard from returning to work.”

Finally, the Judge found it significant that Howard “was not only terminated the same day that CRCC received the one paragraph supplemental report from Granacher,” but he was fired “within hours.” The Judge said, “I find that the mine sought out and received the opinion they were seeking and immediately upon receipt of that single opinion (from Granacher), they terminated Howard’s employment.”

Judge Miller has ordered CRCC to immediately and permanently reinstate Howard to the position that he held prior to his discharge “along with all benefits that relate to that position”.

She has also fined CRCC $30,000 for its discriminatory discharge of Howard.

Howard was represented in the case by mine safety attorneys Tony Oppegard of Lexington and Wes Addington of the Appalachian Citizens Law Center in Whitesburg. Mary Sue Taylor of Nashville, Tennessee represented MSHA. CRCC was represented by Willa Perlmutter and Glenn Grant of the Washington, D.C. law firm Crowell & Moring.

This is the second ALJ decision in which it has been determined that CRCC discriminated against Howard for exercising his federal safety rights. In August, 2010, another Commission judge found that CRCC violated section 105(c) of the Mine Act when it issued Howard a written warning because he had shown a video of leaking mine seals (at CRCC’s Band Mill No. 2 mine) at a public hearing held by MSHA in Lexington. That public hearing was convened after the tragic mine disasters at Sago (West Virginia) and Kentucky Darby (Harlan County).

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