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Consolidation Coal Co. v. Workers' Compensation Appeal Board3/11/1999
Argued: November 17, 1998
Consolidation Coal Company (Employer) appeals from an order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a workers' compensation Judge (WCJ) to grant workers' compensation benefits to Charles W. Dues, Jr. (Claimant). We affirm.
Claimant has been a coal miner since August 1969. In August 1974, Claimant began working for U.S. Steel at the Dilworth Mine and, in July 1977, was promoted to the position of section foreman. In January 1984, Employer took over the Dilworth Mine. Claimant continued to work there as a belt foreman, supervising employees on the mine's conveyor belt system; Claimant was the only black supervisor at the mine. (WCJ's Findings of Fact, Nos. 5, 7.)
James Siko was the general mine foreman and one of Claimant's supervisors. In February 1985, Siko screamed at another foreman, "Don't act like a nigger." Claimant heard the statement and rebuked Siko. Siko remarked, "I didn't know you were there." (WCJ's Findings of Fact, Nos. 6, 9.)
Michael O'Donnell, another of Claimant's supervisors, used the term "nigger" in front of other employees and supervisors. He specifically referred to Claimant as "the nigger" and "the big dumb nigger." In February 1985, on at least two occasions, O'Donnell asked Claimant to get him some "black ... (expletive deleted)." In addition, O'Donnell once made a comment about working his employees like "niggers" in front of the other foremen. (WCJ's Findings of Fact, No. 12.)
John Grimm, a shift foreman and another of Claimant's supervisors, used the term "nigger" and referred to Claimant as "you people." In March or April 1985, after a meeting on discrimination led by personnel director Kathleen Thomas, Grimm told Claimant, "Kathleen said we can't make colorless jokes, but we can make colored jokes." Around the same time, Grimm asked Claimant while he was showering, "What are you doing in here with all us white boys? You shouldn't be here." Later, Grimm told Claimant, in front of other supervisors and employees, that he did not like black people and would not do anything for them. In approximately April 1986, when Claimant was discussing the need to perform rock dusting in an area of the mine that was black with coal dust, Grimm told Claimant, "if you can lay your hand down there and still see your hand then it's not too black." (WCJ's Findings of Fact, No. 11.)
From April 1986 until he ceased working in November 1987, Claimant worked regularly as a fire boss despite the fact that his job title was belt foreman. As a fire boss, Claimant supervised no one and worked alone. The physically demanding job required that Claimant run and crawl through dangerous areas of the mine for several hours each day, or sometimes for an entire shift. Some of the areas of the mine had been abandoned, were partially submerged in water and had only a four-foot high roof. From January 1984 until November 1987, no other supervisor or foreman worked as a fire boss on a regular basis. (WCJ's Findings of Fact, No. 8.)
Claimant heard that, at a mine rescue banquet in August 1986, Ed Plisko commented to Thomas, the personnel director, "isn't Charlie really black." Thomas told Plisko to be quiet because Claimant might hear him. (WCJ's Findings of Fact, No. 14.)
Because of these various episodes, Claimant complained to John Toth, superintendent of the mine, on more than one occasion about racial harassment. Thomas conducted an investigation into Claimant's allegations and was able to substantiate many of them. Nevertheless, Employer never disciplined its employees or supervisors in any way. Employer's only action was to hold a series of meetings on d
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