Judge dismisses several claims in discrimination suit against Consol

By John O'Brien | Jul 15, 2013

WHEELING – A federal judge has dismissed several claims made by a former employee of Consol Energy who alleges he was the object of racial slurs.

On July 3, U.S. District Judge Frederick Stamp, of the Northern District of West Virginia, dismissed six claims made by Tony Clay, a black man who sued Consol, doing business as McElroy Coal, in June 2012.

Clay was employed by McElroy in Marshall County. The defendants’ motion to dismiss argued he 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.

“The latest dates provided by the plaintiff as to any alleged act of discrimination took place on the date of his termination, which was June 9, 2010,” Stamp wrote.

“He did not file a complaint with the (West Virginia Human Rights Commission) by June 9, 2011, nor did he file a complaint with a court by June 9, 2012.

“Instead, the plaintiff filed his complaint in this court alleging violations of the (West Virginia Human Rights Act) on June 21, 2012.

“Therefore, because the plaintiff failed to comply with the applicable limitation periods concerning his claims under the WVHRA, this Court dismisses Count IV and Count V insomuch as it relates to retaliation in violation of the WVHRA.”

Claims made under the Age Discrimination in Employment Act were dismissed because Clay did not properly file a charge of discrimination with the Equal Employment Opportunity Commission.

A claim of intentional or reckless infliction of emotional distress was dismissed because it was filed past the two-year statute of limitations.

A claim of breach of employment agreement was dismissed against McElroy and Consol because the only parties to the agreement were Clay and Consol PA.

A civil conspiracy claim was dismissed because two separate parties were not involved in the alleged unlawful actions.

Left intact were Clay’s claim of violations of the Wage Payment and Collection Act and his claim of employment discrimination against Consol PA.

The motion to dismiss was filed Aug. 30 by David J. DelFiandra of Leech Tishman Fuscaldo & Lampl in Pittsburgh.

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

Earlier this year, U.S. Magistrate Judge James Seibert granted several discovery requests made by Clay, who was requesting documents concerning any other allegations of discrimination and statistical employee information that includes age and race.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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