Free Stipulation - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 1 of 11

DEFENDANTS' ADMISSIONS IN ANSWER TO SIXTH AMENDED COMPLAINT

1.

Mountain Coal employed Plaintiffs in the County of Gunnison, State of Colorado.

6. Arch Coal is incorporated in the State of Delaware; AWR and Mountain Coal are organized under the laws of the State of Delaware; Arch Coal and Mountain Coal are authorized to do business in the state of Colorado. Mountain Coal does business in Gunnison County, Colorado. 9. 10. 11. 13. AWR holds a 100% membership interest in Mountain Coal. Arch Coal holds a 99% membership interest in AWR. BP Amoco holds a one percent membership interest in AWR. AWR's primary business office is located at City Place One, St. Louis, Missouri 63141.

14. Arch Coal's primary business office is located at City One Place, St. Louis, Missouri 63141. 15. 17. The Corporation Company is Mountain Coal's registered agent in Colorado. The Corporation Company is Arch Coal's registered agent in Colorado.

18. Certain of Mountain Coal's officers and/or managers have attended meetings at Arch Coal's offices in St. Louis, Missouri. 19. Arch Coal selected a short-term disability plan and contracted with an insurance carrier, on behalf of Mountain Coal, to administer the short-term disability plan; however, Mountain Coal may choose to supplement the benefits offered through the plan. 20. Arch Coal contracted with a workers' compensation insurance carrier on behalf of Mountain Coal to provide workers' compensation insurance for Mountain Coal employees. 21. Arch Coal processes payroll taxes for Mountain Coal employees.

22. For income earned from June through December 1998, Arch Coal was listed as the employer on Mountain Coal employees' W-2 forms and, for income earned since January 1999, AWR has been listed as the employer on Mountain Coal employees' W-2 forms. 23. On a quarterly basis, Arch Coal, on beha lf of AWR and Mountain Coal, reported wages for all Colorado employees to the State of Colorado Department of Labor and Employment. Such reporting was performed by Arch Coal, in connection with the payroll function. In the first

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 2 of 11

instance, unemployment insurance taxes for Colorado employees of Arch Coal and its subsidiary companies was paid by Arch Coal. The cost was then allocated to the participating subsidiaries, including Mountain Coal. 24. Employment application forms used to hire new employees of Mountain Coal were on forms provided by Arch Coal. 26. Anne Wathen O'Donnell was Assistant General Counsel at Arch Coal.

27. O'Donnell gave legal advice to Mountain Coal management regarding the termination of employment of Michael Clawson from Mountain Coal. 28. O'Donnell gave legal advice to Mountain Coal management regarding the termination of employment of John Bartlett from Mountain Coal. 29. O'Donnell gave legal advice to Mountain Coal management regarding the termination of employment of Jared Dillon from Mountain Coal. 30. O'Donnell gave legal advice to Mountain Coal management regarding the termination of employment of Thomas Richards from Mountain Coal. 31. Mountain Coal management has sought legal advice from Ms. O'Donnell and other members of the Arch Coal legal department. 32. Ms. O'Donnell represented Mountain Coal in connected with the CCRD/EEOC proceedings. 33. Mountain Coal prepares an EEO-1 form, which it forwards to Arch Coal, which then submits the form to the EEOC. 44. On October 19, 1999, Clawson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") (Charge No. 32AA00060) and the Colorado Civil Rights Division ("CCRD") (Charge No. E2000GN028). 45. 46. On January 16, 2001, the EEOC issued a Notice of Right to Sue to Clawson. On December 4, 2000, the CCRD issued a Notice of Right to Sue to Clawson.

48. On October 11, 2000, Richards filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") (Charge No. 32AA10096) and the Colorado Civil Rights Division ("CCRD") (Charge No. E2001GN026).

2

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 3 of 11

49. On May 25, 2001, and June 4, 2001, the EEOC issued a Notice of Right to Sue to Richards. 50. 51. Sue. On April 18, 2001, the CCRD issued a Notice of Right to Sue to Richards. Richards filed a Complaint within ninety days of his receipt of his Notices of Right to

52. On May 1, 2000, Dillon filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") (Charge No. 32AA00595) and the Colorado Civil Rights Division ("CCRD") (Charge No. E2000GN064). 53. 54. On April 27, 2001, the CCRD issued a Notice of Right to Sue to Dillon. On July 24, 2001, the EEOC issued a Notice of Right to Sue to Dillon.

55. Dillon filed a complaint on the ninetieth day following the CCRD's issuance of a Notice of Right to Sue to Dillon. 56. On December 5, 2000, Bartlett filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") (Charge No. 32AA10230) and the Colorado Civil Rights Division ("CCRD") (Charge No. E2001GN0038). 57. 58. 59. 60. On June 20, 2001, the EEOC issued a Notice of Right to Sue to Bartlett. On June 13, 2001, the CCRD issued a Notice of Right to Sue to Bartlett. Bartlett filed a Complaint within ninety days of his receipt of his Notices of Right to Sue. Mountain Coal is an employer as defined by 42 U.S.C. § 12111 (5)(A).

63. Mountain Coal operates a coal mining operation near the town of Somerset, County of Gunnison, State of Colorado. 64. Mountain Coal distributes coal via railroad from West Elk Mine through western Colorado to various states throughout the United States. 65. DiClaudio, Langrand, Hopper, Stahl, Turpin, and Olsen held management or supervisory positions with Mountain Coal during 1999 and 2000. 69. Clawson worked for Price Mine Services (or its successors), who provided contract labor services at West Elk Mine. 3

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 4 of 11

70. Clawson was employed by Mountain Coal or its predecessor from January 1995 until February 2000. 74. Clawson reported an on-the-job back injury in October 1998.

75. In compliance with the requirements of the Colorado Workers Compensation Act, Mountain Coal reported Clawson's alleged injury. 77. Dr. Huene placed Clawson at maximum medical improvement on May 12, 1999.

78. Dr. Huene opined that Clawson should have good shocks when driving over rough roads and should be careful how he lifts, but was otherwise unlimited. 80. Scanlon called Clawson and advised him not to report to work until Mountain Coal reviewed his medical restrictions. 81. On or about May 18, 1999, Scanlon telephoned Clawson at home again to tell him that the meeting to review his medical restrictions was scheduled. 82. Clawson attended the May 18, 1999, meeting to review his medical restrictions.

83. Turpin, Scanlon, Langrand, Scott Jones ("Jones"), and Pete Wyckoff ("Wyckoff") also attended the May 18, 1999, meeting to review Clawson's medical restrictions. 84. During the May 18, 1999 meeting, Langrand discussed the outcome of the May 12, 1999 appointment with Dr. Hue ne. 85. Langrand also advised Clawson that Mountain Coal representatives had made a mistake by allowing Clawson to work on May 13, 1999. 88. On June 14, 1999, Dr. Ellen Woelfel Price performed an impairment rating for Clawson's work injury. 89. On June 14, 1999 Dr. Price evaluated Clawson as having a 9% whole person impairment rating. 90. On July 29, 1999, Clawson, accompanied by Olsen, returned to Dr. Huene to obtain clarification of the restrictions. 91. Olsen discussed the warehouse opening with Cla wson on July 29, 1999.

98. Clawson tried to schedule an interview for the warehouse technician position through Langrand. 4

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 5 of 11

99. Langrand informed Clawson that he wanted to discuss Clawson's work restrictions with Olsen. 100. Olsen was on vacation so that Clawson had to wait to schedule the interview.

101. After Olsen returned from vacation, an interview was scheduled for Clawson for the warehouse technician position. 102. On August 11, 1999, Clawson interviewed with Hopper, Stahl, and Kathy Widener for the warehouse technician opening. 103. After the interview, Clawson was informed that other interviews needed to be completed before a decision could be made. 104. Clawson was notified that he did not get the job.

105. Clawson asked Langrand about disability benefits and what would occur when Clawson's twenty-six weeks of short-term disability expired. 111. Mountain Coal hired someone from outside of the company who had no experience in the coal mine industry to work the available, vacant warehouse technician position for which Clawson had applied. 112. Langrand and Clawson discussed the company policy regarding disability benefits on a number of occasions. 115. Clawson continued to make periodic inquiries about job openings at Mountain Coal.

116. Langrand notified Clawson that Clawson's attorney would need to obtain job openings information from Mountain Coal. 117. Counsel for Clawson sent a letter to counsel for Mountain Coal on or about January 14, 2000. 118. Counsel for Mountain Coal sent a letter to counsel for Clawson on or about January 31, 2000. 132. Tom Richards worked for Mountain Coal at the West Elk Mine from September 1995 until July 2000. 133. Richards would replace his supervisor when the supervisor was absent (step- up supervisor). He received extra pay for this step-up supervisor duty. 5

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 6 of 11

134. As a maintenance mechanic, Richards performed maintenance and repairs on underground mining equipment. 136. Richards reported that he sustained a shoulder injury on October 13, 1999 while working.

137. In compliance with the requirements of the Colorado Workers Compensation Act, Mountain Coal reported of Richards' alleged injury. 138. On December 17, 1999, Richards returned to work at West Elk Mine performing his regular duties as a maint enance mechanic. 139. On December 30, 1999, Dr. Ritter placed Richards on work restrictions of no heavy lifting, no overhead work and light duty only. 144. Richards inquired of Gene DiClaudio ("DiClaudio"), the president of West Elk Mine, whether he could return to work in a light duty capacity at West Elk Mine. 150. On March 21, 2000, Richards gave a note from Dr. Ritter of the same date setting out certain work restrictions to Langrand. 158. Richards gave a doctor's note from Dr. Ritter dated April 25, 2000 to Langrand.

164. Richards then inquired to Langrand about performing a surveyor position that was available. 170. Richards had a telephone conversation with Robert W. Shanks, Vice President ­ Operations of Arch Coal. 171. Shanks stated he would discuss the situation with DiClaudio and have DiClaudio contact Richards. 173. Dr. Price prepared an Impairment Rating and Placement at Maximum Medical Improvement dated June 9, 2000. 174. Richards and his wife went to the mine with the FCE results and spoke with Langrand and Drema Scanlon of the Human Resources office. 175. Langrand took Richards' Physical Work Performance Evaluation Summary and discussed it with Olsen. 181. Mountain Coal sent a letter dated July 25, 2000 to Richards from Langrand informing him, inter alia, that his employment with Mountain Coal was terminated. 6

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 7 of 11

187.

DiClaudio had a telephone conversation with Richards' wife.

188. Richards has not been contacted by DiClaudio since the September 29, 2000, conversation. 198. Dillon was assigned to Mountain Coal as a contract laborer employed by Castle Valley Services from June 17, 1997 through March 18, 1999. 199. Mountain Coal employed Dillon from March 19, 1999 through January 24, 2000.

200. Among his responsibilities, Dillon would pump oil and grease, clean the miner, and change the bits on the miner. 202. 205. From March 19, 1999 through April 19, 1999, Dillon performed his duties satisfactorily. Dillon reported an on-the-job injury on April 19, 1999.

206. In compliance with the requirements of the Colorado Workers Compensation Act, Mountain Coal reported Dillon's alleged injury. 207. 209. 210. 211. 212. Dillon returned to work on his next regularly scheduled workday of April 23, 1999. Dillon was permitted to leave his tools on the shop car. Dillon would walk back and forth to retrieve the tools he needed. There was no requirement that Dillon carry his tools on his person to perform his job. Some employees leave tools in the shop car rather than carry them on their person.

213. Dillon informed Bob Turner, his supervisor, that he was having difficulty performing his duties. 214. Upon being informed by Dillon that he was having difficulty performing his duties, Turner assigned Dillon to perform tasks associated with the fuel truck. 215. Dillon's tasks associated with the fuel truck involved driving a 500- gallon fuel truck to different sections of and locations in the mine and refueling vehicles. 216. On April 30, 1999, Dillon had an appointment with Dr. Coonrod, one of Mountain Coal's designated workers' compensation physicians. 7

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 8 of 11

217.

Turner attended Dillon's medical appointment with Dr. Coonrod on April 30, 1999.

218. Either Turner or Turpin attended Dillon's medical appointments related to his reported injury from April 30, 1999 through June 1, 1999. 219. When representatives from the mine attended Dillon's medical appointments with him, they would receive his work restrictions at the appointment. 220. 221. On April 30, 1999, Dr. Coonrod returned Dillon to work with no restrictions. On May 5, 1999, Dillon returned to Dr. Coonrod.

222. On May 5, 1999, Dr. Coonrod restricted Dillon's work activities to lifting no greater than fifteen pounds. 223. 225. 227. 228. Over a period of several workdays, Dillon performed tasks associated with the fuel truck. Dillon returned to Dr. Coonrod. Dr. Coonrod referred Dillon to Dr. Huene. On May 11, 1999, Dillon had an appointment with Dr. Huene.

229. On May 11, 1999, Dr. Huene restricted Dillon to temporary light duty for two weeks with lifting restrictions of not greater than fifteen pounds. 231 232. 234. 238. On May 25, 1999, Dillon returned to Dr. Huene for follow up. On May 25, 1999, Dr. Huene restricted Dillon from performing any work for one week. On June 1, 1999, Dr. Huene released Dillon to return to work with no restrictions. Dr. Huene referred Dillon to Dr. Fox.

239. Defendants learned of Dr. Huene's referral of Dillon to Dr. Fox through workers' compensation. 241. 247. O'Connell told Dillon he could go home. O'Connell advised Mountain Coal management that he had allowed Dillon to leave work.

255. On November 17, 1999, Dillon was placed at maximum medical improvement by Dr. Fox. 8

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 9 of 11

256. On November 17, 1999, Dr. Fox assigned Dillon a 14% whole person permanent impairment for his lumbar spine injury. 257. On January 12, 2000, Dr. Fox imposed lifting restrictions on Dillon of 50 pounds maximum and 25 pounds occasionally. 260. By letter dated January 24, 2000, Langrand informed Dillon that his employment with Mountain Coal was terminated. 261. Mountain Coal encourages employees to seek assistance in lifting objects over 50 pounds. 274. Bartlett worked at the West Elk Mine from May 30, 1995 to June 6, 2000.

275. Bartlett was employed by Castle Valley Services from May 30, 1995 through approximately March 2, 1997; then became employed by Mountain Coal Company, Inc., a subsidiary of ARCO Uinta Coal Company on March 3, 1997; and thereafter, on June 1, 1998 became employed by Mountain Coal Company, L.L.C., in which AWR holds a 100% membership interest, until June 6, 2000. 279. Bartlett reported an injury at work on June 28, 1999.

280. In compliance with the requirements of the Colorado Workers Compensation Act, Mountain Coal reported Bartlett's alleged injury. 281. Bartlett was restricted from work by his physician from June 29, 1999, through September 8, 1999. 282. Bartlett was released to work with no restrictions on September 8, 1999 with a follow-up visit scheduled with the doctor in two weeks. 283. Bartlett resumed regular work duties for Mountain Coal on September 10, 1999.

284. Bartlett worked a full shift on September 10, 1999. Bartlett worked only a half shift on September 11, 1999 because he reported that he could not work due to back pain. 285. Bartlett contacted shift supervisor, Dan Minerich ("Minerich"), during the September 11, 1999, work shift to obtain permission to leave work, which Minerich granted. 288. Bartlett continued to seek medical treatment and evaluation from Dr. Heil for his reported work injury. 9

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 10 of 11

291. From June 28, 1999 through September 17, 1999, supervisors, including Bill Mazutis, Don Henderson, and Dan Minerich, attended medical appointment relating to Bartlett's reported work injury. 292. The supervisors who attended Bartlett's medical appointments relating to his reported work injury provided Mountain Coal with a form filled out and signed by the doctor setting forth Bartlett's diagnosis, treatment, return to work date, and restrictions. 294. After September 17, 1999, Bartlett was no longer accompanied by a Mountain Coal representative to doctor's appointments relating to his reported work injury. Sometime thereafter following a meeting with Langrand, Bartlett began to provide Mountain Coal with updates concerning his medical condition. 298. 299. Mountain Coal had vacant positions from September 1999 through May 2000. On May 17, 2000, Bartlett was placed at maximum medical improvement by Dr. Heil.

300. On May 17, 2000, Dr. Heil assigned Bartlett a 25% whole person permanent impairment for his lumbar spine injury. 301. Dr. Heil also imposed on Bartlett permanent work restrictions of lifting no more than twenty-five pounds maximum. 303. By letter dated June 6, 2000 from Langrand, Bartlett's employme nt with Mountain Coal Company was terminated. 452. 453. 454. 455. 456. 457. 458. 459. Clawson was employed by Mountain Coal. Richards was employed by Mountain Coal. Dillon was employed by Mountain Coal. Bartlett was employed by Mountain Coal. Clawson's employment was terminated. Richards' employment was terminated. Dillon's employment was terminated. Bartlett's employment was terminated.

10

Case 1:01-cv-02199-MSK-MEH

Document 360-2

Filed 08/04/2005

Page 11 of 11

469. At the time of Clawson's termination, there was an employee handbook distributed to employees, an equal employment opportunity ("EEO") policy posted, and an affirmative action program in place. 470. At the time of Richards' termination, there was an employee handbook distributed to employees, an equal employment opportunity ("EEO") policy posted, and an affirmative action program in place. 471. At the time of Dillon's termination, there was an employee handbook distributed to employees, an equal employment opportunity ("EEO") policy posted, and an affirmative action program in place. 472. At the time of Bartlett's termination, there was an employee handbook distributed to employees, an equal employment opportunity ("EEO") policy posted, and an affirmative action program in place.

3433572_1.DOC

11