Man claims criminal record was pretext for firing

CHARLESTON -- A Logan County man says his employer knew about a prior felony conviction when he was hired, but then used it as grounds to fire him when he filed a workers' compensation claim.

Robert Evans, of Chapmanville, is suing Massey Coal Services, New River Energy Corp. -– a Massey subsidiary –- and Timothy Comer, who was Evans' boss. Evans' lawsuit was filed in Kanawha Circuit Court on Feb. 17.

Evans, a mechanic for New River Energy, claims he injured his foot on the job in Aug. 2008. He filed a workers' compensation claim and the injury was apparently found to be compensable.

A physician gave Evans a release from work until Dec. 11, 2008, the complaint says. When he tried to return to work, the labor-intensiveness proved too much for Evans, he says. His job required long periods of standing on his feet and heavy lifting, according to the complaint.

A physician again gave Evans a release from work, this time until Dec. 30.

But the day after his return to work, Evans' boss, Comer, called him at home and told him he was fired, the complaint says.

Comer said the reason Evans was fired was because he failed to disclose a prior felony conviction on the application he filled out in 2003 when he went to work for Black Castle, another Massey subsidiary.

Evans argues that he told his employer at the time about his felony conviction, which occurred in 1989 but wasn't detailed in the complaint. He contends Comer knew about the conviction, too.

He said the conviction was never an issue until he filed the workers' compensation claim. He said bring up the conviction was "clearly pre-textual and retaliatory."

The complaint alleges negligence, wrongful termination, retaliatory discharge, tort of outrage, intentional infliction of emotional distress and negligent infliction of emotional distress.

Evans is seeking damages plus legal fees and pre- and post-judgment interest on any award.

James A. Akers II is representing Evans. Kanawha Circuit Judge Jennifer Bailey Walker has been assigned the case.

Kanawha Circuit Court case number: 09-C-254