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OWENS v. FREEMAN UNITED COAL MIN.

December 31, 1986

JACK OWENS, PLAINTIFF,
v.
FREEMAN UNITED COAL MINING, DEFENDANT.



The opinion of the court was delivered by: Foreman, Chief Judge:

MEMORANDUM AND ORDER

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.

PROCEDURAL BACKGROUND

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.

SUMMARY JUDGMENT

Count I

  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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