Employers who believe they have been subjected to frivolous whistleblower suits are starting to say “enough is enough,” and searching for ways to vindicate their rights and send a strong message. This case is illustrative and caught our eye. Kentucky employer Armstrong Coal (the Company) recently filed suit in Kentucky state court against former employee Reuben Shemwell, a miner, alleging that he abused the legal process by filing an unmeritorious whistleblower claim. Armstrong Coal Co., Inc. v. Reuben Shemwell, No. 12 Cl 397 (Muhlenberg County Circuit Court, Kentucky).
More specifically, Shemwell filed a whistleblower complaint under Section 105(c) of the federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2006) (MSHA), alleging he was discharged for voicing concerns about safety conditions. He asserted that the Company’s proffered reason for discharging him – namely, excessive cell phone use – was pretextual. Reinstatement initially was ordered, although the Mine Safety and Health Administration (Administration) apparently dropped Shemwell’s claim thereafter. The Company then filed suit against Shemwell in Kentucky state court, alleging his claim was frivolous. In the complaint, the Company pointed to the multiple warnings Shemwell received for excessive cell phone use on the job and also noted that the Administration chose not to pursue his claim. As noted in a recent article in the Huffington Post, the Administration, in turn, filed a complaint against the Company alleging that Armstrong’s filing of the lawsuit against Shemwell was “an attempt to discourage miners from filing discrimination complaints.”
Given the surge of whistleblower claims under countless laws, and rising concerns that many whistleblower claims are opportunistic and/or vexatious, it is not particularly surprising to see employers are looking for ways to send the message that “enough is enough.” Indeed, a meritless whistleblower suit could significantly harm a company’s reputation, and cause it to needlessly incur substantial fees that it can’t recover even if it prevails in the litigation. A ruling in the Company’s favor could send a strong message to individuals who abuse whistleblower laws. On the other hand, a ruling in favor of the Administration’s claim against the Company could certainly cause employers to rethink the strategy of pursuing abuse of process-type claims.