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"I've been representing miners in safety discrimination cases for more than 30 years, and this is the first time I know of anywhere in the country where a company has sued a miner for filing a discrimination complaint," said defense attorney Tony Oppegard in an interview with the Huffington Post. "We think the reason they filed [the suit] was to intimidate him and to intimidate other miners."
For Reuben Shemwell, a 32-year-old miner at the Parkway Mine Surface Facilities, the troubles began when he complained about the need for respirator protection from fumes generated during the welding process. Shemwell did not feel comfortable working in small, confined spaces overcome with fumes. Shortly after submitting his complaint with the Secretary of Labor Mine Safety and Health Administration (MSHA) in late 2011, he was fired from his job for "excessive cell phone use" at work - an accusation that Shemwell claims is not true. Instead, the miner believes he was dismissed for blowing the whistle on the company's unsafe practices.
When MSHA officials tried to inspect Shemwell's former work area, Armstrong Coal, the company that runs the mine, shut down the site and laid off ten workers rather than subjecting it to inspection - actions that suggest Shemwell's complaints might have been legitimate.
When Shemwell filed a lawsuit against his former employer for his dismissal, the judge ruled to temporarily reinstate the miner pending the case. The case was eventually dropped and Shemwell had to once again leave his job.
In response to the difficulty the miner caused Armstrong Coal, the company filed a lawsuit against him, claiming he filed a "false discrimination claim" against them, which would be a "wrongful use of civil proceedings". The company claimed that this "frivolous lawsuit" cost them "unnecessary and substantial costs" in litigation fees - even though the company has an approximate annual revenue of $300 million.
Oppegard, the miner's lawyer, believes the company filed the suit to discourage Shemwell and other miners from ever speaking up against them. Oppegard said this is a "strategic lawsuit against public participation," the Huffington Post reported.
"Miners who wish to avoid similar treatment, will be hesitant from asserting their rights," the MSHA wrote in a separate complaint they filed against Armstrong, which alleges that the company's lawsuit was an act of "retaliation and/or discrimination".
The complaints and lawsuits from both sides have created a fierce legal battle between a lucrative company and its former employee. Although Shemwell would not be able to afford legal fees on his own, help from Oppegard and the Appalachian Citizens' Law Center has made the battle possible and allows him to speak up on behalf of miners across the US.
"We, as miners, have rights," he said. "They just don't want us to know about them."
There's the canary in the coal mine of course, which in most whistleblower scenarios, is usually a telling sign of trouble when another one is used, such as 'shoot the messenger' if you don't like his message. Then seal it with a kiss of death when you rewrite the story of history as 'to the victors go the spoils', one dead canary after the next.