According to West Virginia legal journal the West Virginia Record, Tony Clay has been granted his discovery requests related to his suit against Consol and its McElroy Coal subsidiary.

Consol Pennsylvania Coal also is a named defendant in the complaint, filed last June 21. US Magistrate James Seibert from the Northern District of West Virginia made the ruling in his favor April 25 that will give access to give separate document requests.

Clay, an African-American, claimed in his suit that he received racial slurs while working at the Marshall County operation. His discovery requests were to collect other allegations of discrimination as well as statistical employee information including race and age.

McElroy had objected to the requests, saying they were overly broad, unduly burdensome and irrelevant.

“This court, and practically every other court in the country, has decried the practice of attorneys merely regurgitating the language in Rule 26, and have held that it is completely impermissible under the Federal Rules of Civil Procedure,” Seibert said in his response.

“Accordingly, defendants are admonished for engaging in this practice,” he said, noting the court system had consistently said discovery was broader in employment discrimination claims.

“Defendants have cited several cases for their proposition that statistical evidence is irrelevant in the individual discrimination case.

“The court is not persuaded by these authorities for the proposition asserted that the information is not discoverable.”

McElroy has made a motion to dismiss the case. That August 30 filing is still pending.

The company claimed in its motion that Clay did not name the proper party as defendant and also failed to file discrimination charges against it with the Equal Opportunity Employment Commission, the Journal said.

David DelFiandra of Leech Tishman Fuscaldo & Lampl in Pittsburgh is representing the defendant and Clay’s attorney is Sandra Chapman of Casey & Chapman in Wheeling.