Coal company discriminated against miner who reported safety violations, court rules

jcheves@herald-leader.comApril 4, 2013 

Cumberland River Coal Co. discriminated against a Letcher County coal miner with a history of reporting mine safety problems by trying to fire him in 2011, the 6th U.S. Circuit Court of Appeals ruled Thursday.

The appeals court in Cincinnati ruled for miner Charles Scott Howard and upheld a June 2012 decision by Administrative Law Judge Margaret Miller of the Federal Mine Safety and Health Review Commission. In her decision, Miller said Howard should get his job back and the coal company should pay a $30,000 fine for "work(ing) diligently to end Howard's employment."

Howard then resumed his work as a mobile equipment operator at one of the company's underground mines near the Eolia community, but the company appealed.

Federal law protects miners who report safety problems or who refuse to engage in unsafe acts. However, coal companies sometimes target such whistle-blowers for dismissal in order to send a message to their other employees, said Tony Oppegard, Howard's attorney.

"Mining is an extremely dangerous job under the best of circumstances," Oppegard said.

"Miners like Scott who stand up to a coal company — especially a non-United Mine Workers company — it takes a lot of courage to do that," the lawyer said. "He would have never found another job in Eastern Kentucky because of his reputation as a troublemaker who insists on safe working conditions."

A spokeswoman for St. Louis-based Arch Coal, which owns Cumberland River Coal, did not return a call Thursday seeking comment. A security guard at Cumberland River Coal's headquarters in Appalachia, Va., said nobody there was available to comment.

Cumberland River Coal hired Howard in 2005. He soon earned a reputation as an outspoken mine-safety advocate — filing grievances, speaking to safety inspectors and publicly testifying to members of Congress and the Mine Safety and Health Administration.

In 2007, Howard played for MSHA officials a video he made showing mine seals that were cracked and leaking water in one of the company's mines. Days later, MSHA cited that mine. The company put a discipline letter in Howard's file, claiming he created an unsafe condition by taking a camera underground. An administrative law judge later found that the letter was just a pretext to discipline Howard because managers were unhappy.

In 2009, the company laid off Howard, but it was ordered to reinstate him and restore his pay of $1,753 a week by another administrative law judge.

In July 2010, Howard suffered a head injury while cleaning a beltline in a mine's belt corridor. Eight doctors examined him during his 10-month medical leave and released him to return to work. However, one of the doctors, neuropsychiatrist Robert Granacher, revised his opinion against Howard returning to work after the coal company "sent an overbroad job description and a brief clarification," the appeals court wrote in its decision. Based on Granacher's second opinion, Howard was fired.

Internal emails discovered by Howard's attorney show the company wanted the miner gone.

In a Dec. 17, 2010, email, a company official wrote: "I'm wondering whether we stand a chance of getting Granacher to give [Howard] an impairment rating. ... The hope is that we will get restrictions as we need to settle with a resignation. I think that both Sherry and Howard feel they won't get any restrictions and he will be back in the driver's seat (not what we want)."

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