Man sues Blue Creek Mining for wrongful termination

By Kyla Asbury | Jul 28, 2016

CHARLESTON – A Mingo County man is suing Blue Creek Mining for wrongfully terminating his employment.

Roger T. Ooten Jr. was employed as a prep plant employee in Blue Creek’s facility in Tad and he was hired as a plant foreman in October, according to a complaint filed July 18 in Kanawha Circuit Court.

Ooten claims on May 25, he was operating a water truck and was injured when the truck “bottomed out” and caused him to injury his back and neck.

The plaintiff reported to his superintendent that he had injured himself in the water truck and the following day, prior to the start of his work shift, he called Dave Kembrell and left a message that he was unable to work that day and was going to seek medical treatment as a result of the injury, according to the suit.

Ooten claims he initially reported to Med-Express in Logan and an employee there contacted Kembrell, at which time he verified that the plaintiff had reported the injury the previous day.

The plaintiff then reported to Med Express on May 30, June 14 and June 29 regarding the injury, according to the suit.

Ooten claims on June 1, he and Mellissa Licon at Med Express spoke with Kembrell and Samantha Owens regarding the workplace accident and Kembrell again verified that Ooten had reported the injury to him on May 25.

Kembrell relayed that he would forward the necessary accident report to Owens, however, despite the acknowledgement that Ooten had suffered a workplace injury, Blue Creek continued to deny Ooten’s workers’ compensation coverage for the injury, according to the suit.

Ooten claims he contacted Owens on June 14 to inquire about receiving a workers’ compensation claim number for the accident and on June 16, he was informed by AIG, Blue Creek’s workers’ compensation carrier, that his claim for workers’ compensation benefits had been denied, despite the fact that the defendant knew he had suffered a workplace accident.

On June 29, Ooten received a letter from Owens stating that his employment would be terminated on July 9 because he did not “sign up” for Family Medical Leave Act to cover days missed from work as a result of the injury, according to the suit.

Ooten claims he did not sign up for FMLA because the injury was subject to the West Virginia Workers’ Compensation statute.

The plaintiff’s attempt to receive workers’ compensation benefits played a significant role in the decision to terminate his employment, according to the suit.

Ooten is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by Nathan D. Brown and Joshua S. Ferrell of Ferrell & Brown PLLC.

The case is assigned to Circuit Judge Carrie Webster.

Kanawha Circuit Court case number: 16-C-1099

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