A gender discrimination lawsuit against Consol Energy Inc. that seemed all but certain to fade into a confidential settlement two weeks ago re-emerged into public view again last week, when the coal company asked a judge to schedule a trial date in the case brought by its former president, Katharine Fredriksen.
According to a motion filed in the U.S. District Court for the Western District of Pennsylvania, the Cecil-based company said a Jan. 30 article about the settlement in the Pittsburgh Post-Gazette, which referenced what a potential last-minute witness is said to have told Ms. Fredriksen’s attorneys, made Consol rethink its willingness to close the matter.
Instead, the company wants the chance to depose Eve Flaherty, a former executive assistant at Consol.
Ms. Flaherty, who now works at a different company, wants nothing to do with “anybody involved in that mess,” she said when reached by the Post-Gazette on Thursday morning. She just wants to be left alone, she said.
Over the past two weeks, Ms. Flaherty has twice refused Consol’s request to write an affidavit disavowing the comment attributed to her by Ms. Fredriksen’s attorneys — that she allegedly heard Consol’s CEO Jimmy Brock say he would “get rid of that girl’s ass” the first chance he got. However, Consol’s attorneys wrote that Ms. Flaherty told them last week that her words were misrepresented by Ms. Fredriksen’s counsel.
On Monday, Gerald Stubenhofer, one of Consol’s attorneys in the case, said Ms. Flaherty told them “she never heard (Mr. Brock) say those words. Period.”
Mr. Brock has denied saying anything like that.
For few days this week, it looked like Ms. Flaherty's wish to be left out of this case would be granted.
After the judge in the case, Marilyn Horan, called a status conference Monday afternoon, the two sides asked for a 10-minute recess to confer with each other. An hour and a half later, Consol’s attorneys and Ms. Fredriksen’s lawyers came back into the courtroom smiling and joking together.
They told the judge they’d continue talking, presumably to try to salvage their settlement, and would let her know by end of business Wednesday if she still needs to consider Consol’s request to move to trial.
By Thursday morning, the settlement impasse was confirmed. The judge scheduled a hearing for March 17 on Consol’s motion to move forward with the trial and to subpoena Ms. Flaherty.
The case has stretched for two years now. Ms. Fredriksen was named the president of Consol in July 2017 and fired from the position in December of that year, a few weeks after Consol separated from the gas production business now known as CNX Resources Corp. She eventually sued both companies, claiming she was paid less than even her male subordinates and that she was fired for complaining about the pay disparity.
Trial was set to begin on Jan. 27, but the week before that was jam-packed with consequential moves in the case.
On Jan. 21, Judge Horan said she would allow Consol to use Ms. Fredriksen’s text messages to friends during the trial. Consol hoped one message, which its former president wrote in March 2018, would cast doubts on Ms. Fredriksen’s claims that she was terminated in retribution for complaining.
It reads: “So while I don't think I was let go bc I asked for a pay raise, my attorney said make them prove it. And since my performance wasn't the issue (quite the opposite) what possible valid reason could they give other than ceo has issues which in turn highlights the gender based discrimination.”
On Jan. 22, Ms. Fredriksen’s attorneys asked to add Ms. Flaherty to the witness list.
The next day, after a subpoena to depose Ms. Flaherty had been served, the two parties reached a settlement agreement. As a result, Ms. Flaherty’s deposition was cancelled and the trial was called off.
While the two parties were preparing the documents for the settlement, an article about the case that appeared in the Post-Gazette on Jan. 30 set off the current impasse. Seeing the quote attributed to Ms. Flaherty in the story “precipitated (Consol’s) counsel’s inquiry into what Ms. Flaherty actually told” Ms. Fredriksen’s attorney.
That afternoon, Consol’s lawyer called Ms. Flaherty at work — she left Consol in 2017 — and, with her new company’s general counsel listening, Ms. Flaherty “adamantly denied” that she heard Mr. Brock make that statement about Ms. Fredriksen, or in regard to firing anyone. That’s according to Consol’s lawyer, who filed a motion asking Judge Horan for permission to (again) subpoena Ms. Flaherty and to set a new trial date.
Both sides have alluded to Ms. Flaherty being a reluctant witness — that seemed unmistakable from her brief comments to the Post-Gazette. Ms. Fredriksen’s attorneys said during a hearing last month that Ms. Flaherty is scared to testify and, though she originally told Ms. Fredriksen about Mr. Brock’s alleged statement, she declined months ago to be a part of the trial.
Consol’s attorneys say she felt “cornered” by Ms. Fredriksen’s attorney and, during their last interaction with her, Ms. Flaherty said she’d be getting her own attorney.
On Thursday, Ms. Flaherty told the Post-Gazette that she didn’t know there had been any new developments in the case. She declined to comment further.
Anya Litvak: alitvak@post-gazette.com or 412-263-1455.
First Published: February 17, 2020, 2:00 p.m.