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OWENS v. FREEMAN UNITED COAL MIN.
December 31, 1986
JACK OWENS, PLAINTIFF,
FREEMAN UNITED COAL MINING, DEFENDANT.
The opinion of the court was delivered by: Foreman, Chief Judge:
This cause is before the Court on defendants' Motion to Dismiss
and for Summary Judgment. Both parties have submitted briefs and
reply briefs on the dismissal and summary judgment motions.
Plaintiff, then represented by counsel, filed a two count
complaint against defendant on November 29, 1984. Service was
eventually made, an answer filed in June of 1985 and discovery
began shortly thereafter. In February of 1986, counsel for
plaintiff asked the Court to allow him to withdraw due to
irreconcilable differences with the plaintiff regarding the way
in which the case was being handled. The Court granted the
request and advised plaintiff to find another attorney.
In July of 1986, plaintiff informed the Court that he was
having difficulty finding another attorney willing to handle the
case. The Court granted a continuance motion and gave plaintiff
until September 5, 1986 to locate counsel or face the possibility
of proceeding pro se. Through a number of pretrial conferences
and trial date postponements, this Court has bent over backwards
in an attempt to juggle its schedule in hopes of plaintiff
locating new counsel. In fact, on November 17, 1986 a status
conference was held in anticipation of the plaintiff having
finally found willing representation. Unfortunately, the attorney
located by plaintiff informed the Court that he would only enter
an appearance for plaintiff if the Court could further postpone
the trial date to a time which would accommodate the schedule of
new counsel. It may be unfortunate, however the Court cannot set
its calendar on the basis of an attorney's convenience. Plaintiff
is now proceeding pro se and, in this Court's opinion, is doing
an above average job of representing himself.
I. Since at least December, 1982 and continuing, most
recently about March 7, 1984, Respondent has
refused to recall me. I was hired by Respondent on
July 17, 1967. My most recent position (as of my
12/82 lay off) was General Underground Foreman
Conveyor Belt Supervisor.
II. No reason has been given for the action.
III. I believe I have been discriminated against due
to my age, 49 and Physical Handicaps, Fractured
Vertebrae and Ruptured Disc in that:
A. At the time I was laid off, George Higgins, Mine
Superintendent, told me I would be moved to either
Mine # 4 or Mine # 6 within 30 days of my lay off.
I was not moved. Then he told me I would be
recalled at such time the economy improved.
B. The economy has improved because Respondent has
been recalling people. These people are all under
the age of 40. They have been placed into positions
I held or for which I am qualified. For example, on
or about March 7, 1984, Respondent recalled Vernan
Mandrell (about 37) into the position of Guard but
immediately moved him into the position of General
Underground Foreman. I trained Mandrell. He worked
under my supervision for seven to eight years.
Respondent also recalled Charles Issler (about 32
or 33) on or about 3/7/84. Issler also worked under
me. I do not know, however, if Issler actually
returned to work. Furthermore, Respondent recalled
ten to twelve Face Bosses about 3/7/84. All are
under the age of 40. None, to my knowledge, even
injured himself on the job. I performed the job of
Face Boss on a regular basis for over five years
when people were off work because of sickness,
vacation, or injury.
C. In January, 1980, I injured myself on the job.
The injury resulted in a fractured vertabrae and
ruptured disc and caused me to be off regular work
for seven months. I returned to work, however, and
performed my job with no problem. Also, during the
time I was hospitalized I was requested to advise
supervisors as to what actions to take regarding
the operation of all the conveyor belts on the east
half of the coal mine. Because of that injury
Respondent is perceiving me as handicapped and a
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