No good deed goes unpunished, as they say. Coal miner Reuben Shemwell reported to MSHA safety violations at a coal mine owned by Armstrong Coal. He later was fired and filed a discrimination complaint with MSHA claiming that he was fired in retaliation for reporting the safety violations. Although an administrative law judge ordered that Shemwell be reinstated temporarily, MSHA ultimately determined not to go forward with Shemwell's complaint at which point -- guess what -- Armstrong Coal sued Shemwell alleging that he had filed a frivolous complaint with MSHA.

This retaliation caused MSHA to again take up Shemwell's case, because the Mine Safety Act prohibits retaliation against a coal miner that in good faith reports safety violations to MSHA.

Source: EHS Today

This scenario presents what is known as "retaliation by litigation." A number of courts have ruled that these type of countersuits can constitute unlawful retaliation: Steffes v. Stepan Co., 144 F.3d 1070, 1075 (7th Cir. 1998) ("retaliatory acts come in infinite variety . . . and even actions taken in the course of litigation could constitute retaliation in appropriate circumstances"); EEOC v. Virginia Carolina Veneer Corp., 495 F. Supp. 775, 777 (W.D. Va. 1980) (employer unlawfully retaliated against employee by bringing a civil suit in response to discrimination charge); Urquiola v. Linen Supermarket, Inc., 1995 WL 266582 (M.D. Fla. 1995) (same); EEOC v. Levi-Strauss & Co., 515 F. Supp. 640 (N.D. Ill. 1981) (bad-faith suit against employee would be retaliation for Title VII purposes); Berry v. Roger Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) (actionable retaliation where employer had former employee criminally prosecuted in retaliation for expressed intention to file a discrimination charge); Beckham v. Grand Affair, 671 F. Supp. 415, 419 (W.D.N.C 1987) (causing former employee to be arrested and prosecuted is actionable retaliation; form of retaliation need not be job-related); Atkinson v. Oliver T. Carr Co., 40 FEP Cases 1041 (D.D.C. 1986) (retaliation found for employer’s threat to commence criminal prosecution if employee did not withdraw charge of discrimination); Perez v. FBI, 707 F. Supp. 891 (W.D. Tex. 1988) (employer secured grand jury subpoena for telephone records of charge-filing employee); Gliatta v. Tectum, Inc., 211 F. Supp. 2d 992, 1008-09 (S.D. Ohio 2002) (counterclaim retaliatory) (citing EEOC v. Outback Steakhouse of Florida, Inc., 75 F. Supp. 2d 756 (N.D. Ohio 1999) (same)); Cozzi v. Pepsi-Cola Gen. Bottlers, Inc., No. 96 C 7228, 1997 WL 312048, at *3 (N.D. Ill. June 6, 1997) (state court fraud lawsuit retaliatory).

The key for both Shemwell and the coal company is whether they acted in good-faith. An employee that reports what he or she believes in good-faith to be a safety violation has protection against retaliation, even if the incident or condition proves ultimately not to be unlawful. But the key is good-faith.

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