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ARC: HELPING EMPLOYERS CONTEND WITH THE HEIGHTENED THREAT OF WHISTLE-BLOWERS

Whistle-blower miner's job reinstatement upheld on appeal

Coal Mine

An appeals court has upheld a coal miner's reinstatement to his job, concluding his termination was because of his whistle-blowing activity.

Thursday's ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Cumberland River Coal Co. v. the Federal Mine Safety and Health Commission affirmed an administrative law judge's ruling last year in the termination of Charles Scott Howard'.

According to the three-judge panel's ruling, Mr. Howard, who had been employed since 2005 by Cumberland River Coal, a unit of St. Louis-based Arch Coal Inc., had filed seven prior discrimination complaints against Cumberland, which “was well-known to those employed” by the company “and was very public.”

On July 26, 2010, Mr. Howard suffered a head injury and took a 10-month leave of absence. After his leave, seven of eight doctors released him to return to work without restrictions.

Only an eighth physician, who had stated earlier that Mr. Howard had a 7% neuropsychiatric impairment, said he believed Mr. Howard should be permanently “restricted from underground coal mining and restricted from exposure to moving machinery.”

The company terminated Mr. Howard in May 2011, citing Dr. Robert Granacher's report and stating that it did not “have any jobs open at this time for which you are qualified.”

Mr. Howard filed suit alleging the termination was because of his previous protected activity. An administrative law judge for the Federal Mine Safety and Health Review Commission agreed.

Among evidence cited in her ruling was an email between the company's risk management director and its workers compensation attorney, which said in part, ”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.”

The Federal Mine Safety and Health Review Commission subsequently refused to review the ruling and Cumberland appealed.

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The administrative law judge “did not err in finding that (Cumberland's) justification for terminating Howard was pretextual,” the appeals court panel ruled. The judge “pointed to several examples of credible and substantial evidence in the record in reaching her findings,” including the company's “disregard for the seven other physicians' opinions allowing Howard to return to work without restrictions.

“When these facts are considered in their totality, it is evident that the (administrative law judge) did not insert her own business justification and that she properly found (Cumberland's) business justification to be weak, outside of normal business practices, and pretextual,” the appeals court said in affirming the administrative law judge's decision.

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