Coal miner suing Consol for discrimination wins right to related info

By John O'Brien | May 20, 2013

WHEELING – Consol Energy will have to provide information on previous discrimination allegations in a lawsuit brought by a former coal miner alleging the same, a federal magistrate judge have ruled.

U.S. Magistrate Judge James E. Seibert, of the Northern District of West Virginia, ruled April 25 to grant certain discovery requests made by Tony Clay in his lawsuit against Consol Pennsylvania Coal Company, doing business as McElroy Coal, and Consol Energy.

His complaint, filed June 21, alleges Clay, an African-American, was the object of racial slurs while employed by McElroy in Marshall County.

At issue were five separate requests for documents concerning other allegations of discrimination and statistical employee information that includes age and race.

McElroy objected on the grounds the requests were overly broad, unduly burdensome and irrelevant. Seibert was not pleased.

“This court, and practically every other court in the country, has decried the practice of attorneys merely regurgitating the language in Rule 26, and have held that it is completely impermissible under the Federal Rules of Civil Procedure,” Seibert wrote.

“Accordingly, Defendants are admonished for engaging in this practice.”

Seibert wrote that courts have consistently held that discovery is broader in employment discrimination claims.

“Defendants have cited several cases for their proposition that statistical evidence is irrelevant in the individual discrimination case,” Seibert wrote. “The court is not persuaded by these authorities for the proposition asserted that the information is not discoverable.”

Accordingly, Seibert decided to allow discovery related to the ages and races of individuals who made discrimination complaints in West Virginia and Pennsylvania in the five years prior to Clay’s complaint.

In another discovery dispute, McElroy objected to Clay being allowed to inspect the motorbarn, locker rooms and offices of two management level employees without requiring him to execute a release and waiver of liability.

U.S. District Judge Frederick Stamp on May 15 affirmed Seibert’s ruling in favor of Clay, who argued the request was made too late.

“This court cannot find any mention of any requested release in the transcript of the hearing held before the magistrate judge concerning the motion for protective order and motion to enter on defendants’ land,” Stamp wrote.

“Further, as the plaintiff notes, the only mention contained in the briefing of these two motions concerning any such release is found in a footnote, which does not even request that the court require the plaintiff to sign a release.”

Pending is McElroy’s motion to dismiss, filed Aug. 30. It claims Clay did not name the proper party as defendant and he failed to file a charge of discrimination against the named defendant with the Equal Opportunity Employment Commission.

Representing the defendants is David J. DelFiandra of Leech Tishman Fuscaldo & Lampl in Pittsburgh.

Clay’s attorney is Sandra M. Chapman of the Wheeling firm Casey & Chapman.

From the West Virginia Record: Reach John O’Brien at

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