Anderson v. Consolidation Coal Company et al
Filing
321
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, GRANTING PLAINTIFF'S MOTION TO FILE SURREPLY AND DENYING ALL CURRENTLY PENDING MOTIONS IN LIMINE AND OTHER PENDING NON-DISPOSITIVE PRETRIAL MOTIONS AS MOOT. The Court grants Defendants' 207 Motion for Summary Judgment; denies as moot 209 Motion to Strike ; denies as moot 210 Motion to Strike ; denies as moot 211 Motion in Limine; denies as moot 212 Motion in Limine; denies as mo ot 213 Motion in Limine; grants 275 Motion for Leave to File; denies as moot 278 Motion in Limine; denies as moot 279 Motion in Limine; denies as moot 280 Motion in Limine; denies as moot 282 Motion in Limine; denies as moot 314 Motion for Leave to File; denies as moot 315 Motion. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/5/14. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOYCE ANDERSON,
Plaintiff,
v.
Civil Action No. 1:11CV138
(STAMP)
CONSOLIDATION COAL COMPANY,
and CONSOL ENERGY, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
GRANTING PLAINTIFF’S MOTION TO FILE SURREPLY AND
DENYING ALL CURRENTLY PENDING MOTIONS IN LIMINE AND
OTHER PENDING NON-DISPOSITIVE PRETRIAL MOTIONS AS MOOT
I.
Procedural History
The plaintiff, Joyce Anderson, commenced this civil action by
filing a complaint in the Circuit Court of Marion County, West
Virginia,
wrongfully
defendant.1
alleging
that
terminated
defendant
her
Specifically,
Consolidation
employment
the
as
plaintiff
a
Coal
coal
alleges
Company
miner
with
that
after
recovering from a work-related injury, she sought to return to
work, but defendant’s doctor who performed her physical examination
prohibited
her
from
returning.
The
plaintiff
contends
that
although her own doctors confirmed that she was able to return to
work, the defendant refused to allow her to return because she
suffered from osteoporosis.
1
Consolidation Coal Company is the only remaining defendant in
this action. CONSOL Energy, Inc. was dismissed under a stipulation
between the parties. See ECF No. 56.
The
plaintiff
asserts
termination of employment.
three
claims
arising
from
her
First, the plaintiff claims that the
defendant terminated her employment in retaliation against her
because of her filing of a workers’ compensation claim or her
future eligibility to file such a claim.
Second, the plaintiff
argues that her gender, the perception that she had a disability,
or her actual disability in violation of the West Virginia Human
Rights Act (“WVHRA”) motivated her termination of employment.
Finally, the plaintiff contends that the defendant violated the
WVHRA by relying on osteoporosis as a reason for terminating the
plaintiff’s employment because such a practice has a disparate
impact on women.
The defendant removed the action to this Court and filed a
motion to dismiss the plaintiff’s complaint.
The plaintiff then
filed a motion to amend her complaint in addition to responding to
the
defendant’s
motion
to
dismiss.
This
Court
granted
the
plaintiff’s motion to amend her complaint, and therefore, denied
the defendant’s motion to dismiss without prejudice to refiling
after the plaintiff filed her amended complaint.
The plaintiff’s
amended complaint contained no additional claims or parties, but
instead only added additional factual allegations.
After the
plaintiff filed her amended complaint, the defendant then filed its
motion to dismiss the amended complaint, where it argued that the
Federal Labor Management Relations Act (“FLMRA”) preempts state law
2
claims that require the interpretation of a collective bargaining
agreement (“CBA”), in addition to other arguments.
After the
parties fully briefed the motion, this Court entered an order
denying the defendant’s motion to dismiss.
The defendant now moves for summary judgment.
In its motion
for summary judgment, the defendant provides three grounds for
granting its motion.
First, defendant argues that the plaintiff’s
retaliation and discrimination claims require interpreting the CBA
and are therefore preempted by federal law.
Second, the defendant
argues that proof of the plaintiff’s failure to accommodate claim
also requires interpretation of the CBA and are thus also preempted
by federal law.
Finally, even if the plaintiff’s claims are not
preempted by the FLMRA, defendant argues that no genuine issue of
material fact exists to support the plaintiff’s claims because (1)
the plaintiff’s workers’ compensation claim played no role in the
defendant’s decision to terminate employment, (2) the plaintiff
cannot sustain her claims of WVHRA violations, and (3) no evidence
exists to support plaintiff’s claim for disparate impact or failure
to provide a reasonable accommodation.
In response, the plaintiff first argues that none of the
plaintiff’s claims require interpretation of the CBA, and thus they
are not preempted by federal law.
Second, plaintiff argues that
genuine issues of material fact exist concerning the plaintiff’s
workers’
compensation,
discrimination,
3
or
retaliation
claims.
Third, the plaintiff asserts a claim for disability discrimination
under the WVHRA.
Finally, the plaintiff argues a nexus exists
between her gender, her perceived disability, and her termination,
thus demonstrating a violation of the WVHRA.
The
defendant
filed
a
reply
in
response
to
plaintiff’s
opposition stating that (1) plaintiff presented no facts to show
that her workers’ compensation claim was a “significant factor” in
her
discharge,
(2)
plaintiff
presented
no
facts
to
show
a
discriminatory or retaliatory intent, and (3) by arguing that the
defendant’s request for additional evaluation and use of Article
III(j) is discriminatory, the plaintiff inherently challenges the
CBA, and such challenges are preempted by federal law.
The plaintiff filed a motion to file surreply and attached the
proposed surreply.
necessary
because
The plaintiff asserts that a surreply is
the
defendant’s
reply
added
a
number
of
additional exhibits to the record and made new factual arguments
that were not in its initial memorandum.
The defendant responded
in opposition to the motion to file a surreply, arguing that it
neither raised new factual arguments that were not in its original
memorandum
evidence.
nor
made
factual
assertions
contradicted
by
the
Instead, the defendant asserts that it only addressed
arguments raised by the plaintiff in her response.
4
For
the
reasons
stated
below,
this
Court
grants
the
plaintiff’s motion to file a surreply and grants the defendant’s
motion for summary judgment.
II.
Facts2
The plaintiff began her employment with the defendant in 1981
as a coal miner.
At the time of the injury at issue, plaintiff was
employed as a general inside bunker attendant, which involved
monitoring an underground belt haulage system.
Several years
before her injury, plaintiff was diagnosed with osteoporosis.
ECF No. 208 Ex. 4.
injured.
See
On November 3, 2009, the plaintiff fell and was
As a result of the fall, she fractured her pelvis and
right forearm. On March 24, 2010, the plaintiff allegedly notified
the defendant that she was ready to return to work with her
doctors’
approval.
The
defendant’s
workers’
compensation
administrator, Wells Fargo, then scheduled an appointment for a
physician’s evaluation in connection with the plaintiff’s workers’
compensation claim. The physician who evaluated the plaintiff, Dr.
Steinman, then issued his evaluation finding that the plaintiff had
only sustained a 1% whole person impairment as a result of the
fall, but her osteoporosis precluded her from returning to work.3
2
For the purposes of this opinion, this Court adopts, for the
most part, the facts as set forth by the plaintiff in the amended
complaint.
3
Plaintiff contends that during her appointment with Dr.
Steinman, Dr. Steinman had assured the plaintiff that she could
return to work.
5
The plaintiff contends that this finding was a result of the
defendant’s concern for future workers’ compensation claims and
costs by the plaintiff.
The plaintiff then met with her treating orthopedist, Dr.
McKinley, who disagreed with Dr. Steinman’s evaluation.
Dr.
McKinley felt that the plaintiff was able to return to work and
that no “evidence based data to reflect her risk to herself or
others”
existed.
ECF
No.
38
*3.
Two
other
doctors,
the
plaintiff’s gynecologist and physical therapist, also released the
plaintiff to return to work.
another
report.
physician,
Dr.
However, the defendant allegedly had
Vincent
Ripepi,
review
Dr.
Steinman’s
Dr. Ripepi agreed with Dr. Steinman, finding that the
plaintiff should not return to work.
Based on this finding, along
with Dr. Steinman’s evaluation, the defendant refused to allow the
plaintiff to return to work because she suffered from osteoporosis.
At the time of her termination, the plaintiff was fifty-two years
old and had not yet reached the minimum retirement age of fiftyfive; thus, she was ineligible for retirement.
According to the plaintiff, under the CBA, an employee cannot
be
terminated
for
medical
reasons
unless
a
majority
of
the
physicians selected agree “that there has been a deterioration in
physical condition which prevents the Employee from performing his
regular work.”
ECF No. 38 *4 (citing the Article III(j) of the
6
CBA).4
Under the CBA, the physicians used to determine this were
composed of an employer-approved physician, an employee-approved
physician, and a physician the parties both agreed to use.
After
a physician selected by each party concluded differing opinions,
the parties selected the “tie-breaking” physician under the CBA.
After the parties submitted lists of physicians to provide the
third opinion, Dr. Sushil Sethi was chosen and performed the
evaluation.5
He found, like Dr. Steinman, that the plaintiff
should not return to work.
The plaintiff then filed a grievance requesting that the
defendant
reinstate
her
as
an
employee
despite
the
doctors’
4
Specifically, Article III(j) under the CBA states:
[A]n Employee cannot be terminated or refused recall from
a panel or recall from sick or injured status for medical
reasons over his objection without the concurrence of a
majority of a group composed of an Employer-approved
physician, an Employee-approved physician, and a
physician agreed to by the Employer and the Employee,
that there has been a deterioration in physical condition
which prevents the Employee from performing his regular
work.
ECF No. 208 Ex. 19.
5
Dr. Sethi was one of the doctors submitted by the defendant,
not the plaintiff, to be the third doctor chosen by agreement. The
parties both submitted doctors to be considered to perform the
third evaluation and after eliminations made by the parties, the
names of the last remaining doctor on each of the parties’ lists
were put into a hat and the plaintiff chose the last doctor from
the hat.
The plaintiff maintains that none of the doctors
submitted by the defendant, including Dr. Sethi, were experts in
osteoporosis, but instead, they were doctors that the defendant
knew were likely to offer opinions supporting its position.
7
opinions.
Her grievance proceeded to arbitration.
Allegedly, the
Union,6 on behalf of the plaintiff, challenged the defendant’s
refusal to let the plaintiff return to work under West Virginia’s
workers’ compensation laws.
However, according to the plaintiff,
the arbitrator denied the plaintiff’s grievance based solely on the
contractual provision from Article III(j) of the CBA, which is
explained above.
Supposedly, the arbitrator stated that “[t]here
is no language in the [CBA] which grants this Arbitrator or any
arbitrator the authority and jurisdiction to interpret and rule on
matters of state worker’s compensation law or other laws not
addressed in the CBA.”
ECF No. 38 *5 (quoting the Arbitrator’s
Decision).
III.
Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
6
After a review of the record, this Court is unable to
determine the exact name of the union of which the plaintiff was a
member. Therefore, this Court will refer to it as the “Union.”
8
material fact.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
“The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”
Id. at 256.
“The
inquiry performed is the threshold inquiry of determining whether
there is the need for a trial -- whether, in other words, there are
any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of
either party.”
Id. at 250; see also Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment “should
be granted only in those cases where it is perfectly clear that no
issue of fact is involved and inquiry into the facts is not
desirable to clarify the application of the law.” (citing Stevens
v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950))).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
9
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
In reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
IV.
A.
Discussion
Motion to File a Surreply
This Court grants the plaintiff’s leave to file a surreply to
the defendant’s reply regarding the pending motion for summary
judgment.
In support of her motion for leave to file a surreply,
the plaintiff asserts that the defendant in its reply added a
number
of
medical
records
and
made
new
factual
arguments.
Specifically, the plaintiff argues that because she would not have
a chance to address these alleged medical records and factual
arguments without a surreply, the plaintiff requests leave to file
a surreply.
In response, the defendant argues that the plaintiff
is simply attempting to have the last word, and asks this Court to
deny the motion to file a surreply.
Under Local Rule of Civil Procedure 7.02(b)(3), parties shall
not file surreplies without leave of court.
See also Bordas v.
ALPS Corp., 5:12CV126, 2013 WL 525642, at *2 (N.D. W. Va. Feb. 12,
2013); Thomas v. Branch Banking & Trust Co., 443 F. Supp. 2d 806,
10
809 n.2 (N.D. W. Va. 2006).
A court can permit a surreply when a
party seeks to respond to new material that an opposing party
introduces for the first time in its reply brief. Schwarzer,
Tashima, & Wagstaffe, Federal Civil Procedure Before Trial 12:110
(The Rutter Group 2008).
See also Khoury v. Meserve, 268 F. Supp.
2d 600, 605 (D. Md. 2003) (“Surreplies may be permitted when the
moving party would be unable to contest matters presented to the
court for the first time in the opposing party’s reply.”).
If a
court chooses not to rely on new material raised in the opposing
party’s reply to decide a matter, then the surreply is superfluous
and unnecessary.
See e.g. EEOC v. LA Weight Loss, 509 F. Supp. 2d
527, 540 (D. Md. 2007) (denying the parties’ motions to file
surreplies because the court did not rely on the new case law and
evidence in making its decision); First Penn–Pacific Life Ins. Co.
v. Evans, 162 F. Supp. 2d 423, 430 (D. Md. 2001) (denying plaintiff
leave to file a surreply “[s]ince the Court will not be considering
the additional contentions advanced”). In those circumstances, the
court should deny a motion for leave to file a surreply should be
denied.
In this case, the plaintiff’s motion should be granted.
The
defendant’s reply contains evidence and assertions that affects the
plaintiff’s
disparate
impact
claim,
among
other
claims.
Specifically, the reply contains information about other patients
receiving a similar process and treatment despite suffering from
11
disabilities other than osteoporosis.
This, among other factual
arguments and exhibits, provides new information and arguments this
Court may consider in its decision of this opinion. Therefore, the
plaintiff should have an opportunity to reply to defendant.
Thus,
this Court grants plaintiff’s motion to file a surreply in response
to defendant’s reply.
B.
Motion for Summary Judgment
The defendant argues that this Court should grant summary
judgment
in
its
favor
as
to
plaintiff’s
retaliation
discrimination claim, and disparate impact claim.
this Court will discuss each claim in turn.7
claim,
Accordingly,
For the reasons
stated below, this Court grants the defendant’s motion for summary
judgment for all claims.
1.
Workers’ Compensation Retaliation Claim
In its motion for summary judgment, the defendant argues that
the plaintiff’s workers’ compensation claim played no role in the
defendant’s decision to terminate employment.
Thus, because the
defendant did not consider the plaintiff’s workers’ compensation
claim
when
terminating
her
employment,
7
no
discrimination
or
Regarding the preemption issue and arguments, this Court
previously ruled on the defendant’s preemption argument in its
memorandum opinion and order denying defendant’s motion to dismiss.
There, this Court rejected defendant’s preemption argument. In its
motion for summary judgment, the defendant advances similar
arguments regarding preemption and thus, this Court does not feel
it needs to readdress such arguments in this opinion.
For the
arguments and order regarding the preemption issue, see ECF No. 19
and ECF No. 37.
12
retaliation
plaintiff
for
filing
argues
that
a
claim
genuine
occurred.
issues
concerning the retaliation claim.
of
In
contrast,
material
fact
the
exist
Specifically, the plaintiff
primarily argues that because the defendant is self-insured, items
such as workers’ compensation claims are paid through corporate
funds.
Accordingly, plaintiff argues that the fact that plaintiff
filed a workers’ compensation claim was a significant factor behind
the
defendant’s
motive
to
terminate
her
employment.
The
defendant’s motive allegedly was to save money and thus served as
motivation to terminate plaintiff’s employment.
Because of this,
the plaintiff claims that a prima facie case exists and thus the
motion should be denied.
Under
West
Virginia
Code
§
23-5A-1,
“no
employer
shall
discriminate in any manner against any of his present or former
employees because of such present or former employee’s receipt of
or attempt to receive benefits.”
W. Va. Code § 23-5A-1 (2012).
Further, to make a prima facie case of discrimination under this
section, the employee must show that (1) the employee sustained an
“on-the-job” injury, (2) the “proceedings were instituted under the
Workers’ Compensation Act,” and (3) the employer treated the
employee’s
filing
of
a
workers’
compensation
claim
as
a
“significant factor in the employer’s decision” to discharge or
discriminate against the employee.
Syl. Pt. 1, Powell v. Wyoming
Cablevision, Inc., 403 S.E.2d 717 (W. Va. 1991); see Bailey v.
13
Mayflower Vehicles Systems, Inc., 624 S.E.2d 710, 713 (W. Va.
2005); Fravel v. Sole’s Elec. Co., Inc., 624 S.E.2d 524 (W. Va.
2005)(per curiam); Skaggs v. E. Assoc’d Coal Corp., 569 S.E.2d 769
(W. Va. 2002).
Under the facts of this case, the plaintiff does not satisfy
the requirements for a prima facie case of discrimination.
As the
facts show, the plaintiff did suffer an “on the job” injury when
she fell at her job site, satisfying the first requirement.
Further, the plaintiff instituted proceedings under the Workers’
Compensation Act, thus satisfying the second requirement.
Here,
plaintiff’s
the
issue
filing
of
becomes
her
whether
workers’
the
employer
compensation
“significant factor” in terminating her employment.
treated
claim
as
a
The defendant
argues that the filing of a workers’ compensation claim was not a
factor in the plaintiff’s termination of employment. In support of
this, the defendant points out that two out of the three doctors
necessary under the CBA to determine the plaintiff’s return to work
status recommended she should not return to work.
In fact, one of
the doctors, selected by both parties, recommended that she not
return to work.
Thus, the defendant argues it followed the proper
procedures under the CBA and did not consider the plaintiff’s
filing of a workers’ compensation claim a significant factor.
However, the plaintiff claims that an inference exists that
demonstrates the filing was a significant factor.
14
Specifically,
the plaintiff cites to Powell v. Wyoming Cablevision, Inc., arguing
that circumstances, such as “[p]roximity in time of the claim and
the firing . . . [e]vidence of satisfactory work performance and
supervisory evaluations before the accident . . . [and] evidence of
an actual pattern of harassing conduct for submitting the [workers’
compensation]” claim, can establish a prima facie case. 403 S.E.2d
at 722.
Because the defendant discharged her following her first
attempt to return to work, the plaintiff argues a prima facie case
has been established.
defendant,
as
a
Further, the plaintiff argues that the
self-insured
entity,
must
compensation amount from corporate funds.
compensate
every
Thus, the plaintiff
argues, because the defendant seeks to keep additional costs low,
such as workers’ compensation costs, plaintiff’s filing of a claim
had to be a significant factor behind her discharge.
However, under Powell, a prima facie case does not arise
solely
from
circumstantial
occurrences
existing.
Rather,
circumstantial evidence can be used to demonstrate the nexus, but
cannot itself demonstrate a prima facie case.
Id. at 704, 721;
Nestor v. Bruce Hardwood Floors, L.P., 210 W. Va. 692, 696, 558
S.E.2d 691, 695 (2001).
In Powell, the employee demonstrated the
nexus between his discharge and filing a workers’ compensation
claim.
The
injured
employee
in
Powell
requirement through circumstantial evidence.
satisfied
the
Id. at 724.
third
There,
the plaintiff showed that his employer lied to him when the
15
employer claimed he discharged the plaintiff because (1) poor
economic conditions existed and (2) the plaintiff was physically
unable to perform the tasks of his job. Specifically, the employee
showed
that
(1)
the
employer
actually
hired
more
employees,
contradicting his “poor economic conditions” reason and (2) that
doctors unanimously recommended he return to work but the employer
refused, providing no reasons.
Id.
Further, the employer and
employee in Powell had no policy or procedure in place for handling
such situations.
Id.
In this civil action, plaintiff has failed to satisfy this
nexus requirement to establish a prima facie case. Unlike the case
in Powell, where the employee created an inference by showing the
employer’s
reasons
for
discharge
directly
contradicted
the
employer’s subsequent actions, the plaintiff here provides nothing
that creates an inference. Further, unlike Powell, where no formal
policy existed for handling employee discharge, here the defendant
acted under the CBA which governed the procedure between them.
Here, in compliance with the CBA, the defendant requested the
plaintiff receive a physical examination prior to returning to
work.
ECF No. 208 Ex. 19.
Complying with the CBA, a majority of
the necessary medical opinions found that the plaintiff should not
return to work.
Further, a neutral arbitrator already found no
fault
medical
in
the
recommendations.
opinions
and
upheld
the
doctors’
Simply put, no evidence exists to demonstrate or
16
imply that the defendant terminated the plaintiff with compensation
costs serving as a “significant” factor. Because no facts exist to
show a prima facie case for workers’ compensation discrimination,
the defendant’s motion for summary judgment is granted regarding
this claim.
West Virginia Human Rights Discrimination Claim8
2.
As
its
defendant
second
argues
discrimination
claim
that
claim.
the
for
granting
plaintiff
First,
the
summary
judgment,
the
cannot
satisfy
her
WHRA
defendant
argues
that
the
plaintiff fails to qualify as a member of a protected class to
which the WVHRA applies. Second, the defendant argues that a nexus
between the plaintiff’s termination of employment and her gender or
disability neither exists nor has been demonstrated by plaintiff.
Finally, defendant argues that even if the WVHRA applies and a
nexus exists, safety concerns serve as a justifiable and legitimate
nondiscriminatory purpose for termination of employment.
In
response,
the
plaintiff
argues
that
her
gender,
the
perception that she had a disability, or her actual disability in
violation of the WVHRA motivated her termination of employment.
Specifically, the plaintiff first argues that she is a member of a
protected class, here those with disabilities, under the WVHRA.
8
Initially, the plaintiff asserted a failure to accommodate
claim.
However, the plaintiff has since withdrawn this claim.
Thus, the claim will not be addressed in this opinion. See ECF No.
253 at n.1.
17
Second, the plaintiff argues that the burden remains on the
defendant to demonstrate that the plaintiff’s disability presented
a direct threat to her health and safety.
The plaintiff then
asserts that the defendant failed to satisfy its burden.
The
plaintiff claims that because the defendant used only physicians,
rather than osteoporosis specialists, the medical recommendations
lacked credibility and thus failed to show the direct threat of the
disability.
Finally, the plaintiff argues that a nexus exists
because (1) defendant’s policies discriminate against women, who
suffer osteoporosis more often then men and (2) the defendant uses
physicians
that
are
not
specialized
in
osteoporosis
to
make
recommendations.
Under
the
WVHRA,
it
is
unlawful
for
an
employer
to
discriminate against an individual regarding “compensation, hire,
tenure, terms, conditions or privileges of employment if the
individual is able and competent to perform the services required,
even if such individual is blind or disabled.”
W. Va. Code
§ 5-11-9 (2012). Further, “discrimination” means “to exclude from,
or fail or refuse to extend to, a person equal opportunities
because of race, religion, color, national origin, ancestry, sex,
age, blindness, disability or familial status and includes to
separate or segregate.”
Id. § 5-11-3(h).
To prove a prima facie case of employment discrimination under
the WVHRA, the plaintiff must show that “(1) the plaintiff is a
18
member of a protected class,” (2) the employer “made an adverse
decision against plaintiff,” and (3) but for the plaintiff’s
protected status, the employer would not have made the adverse
decision. Syl. Pt. 3, Conaway v. E. Assoc’d Coal Corp., 358 S.E.2d
423 (W. Va. 1986); see Smith v. Sears, Roebuck & Co., 516 S.E.2d
275 (W. Va. 1999; Barefoot v. Sundale Nursing Home, 457 S.E.2d 152,
161 (W. Va. 1995); McCauley v. Merrimac, Inc., 460 S.E.2d 484 (W.
Va. 1995)(per curiam).
In proving the third requirement, the
plaintiff must show evidence that would “sufficiently link” the
plaintiff’s protected member status and the employer’s decision to
infer the employer used discriminatory criteria.
Conaway, 358
S.E.2d at 429-430 (footnotes omitted); Smith, 516 S.E.2d at 279.
This could include an (1) employer’s admission, (2) eliminating an
apparently legitimate reason for the decision in showing unequal or
disparate treatment between protected class members and others, or
(3) “using statistics in a large operation” to show that protected
class members received “substantially worse” treatment.
Conaway,
358 S.E.2d at 429-30 (footnotes omitted).
If the plaintiff satisfies her burden, then the defendant must
offer a legitimate, nondiscriminatory reason for the employment
decision.
Barefoot, 457 S.E.2d 152, 160.
After the defendant
presents its reasons, the plaintiff may then demonstrate that
either (1) the defendant treated “age, gender, or ancestry” as a
determinative
factor
in
its
employment
19
decision
or
(2)
the
defendant’s
rationale
serves
as
merely
a
pretext
for
discrimination. Id. To show pretext, a plaintiff must show direct
or circumstantial evidence of falsity or discrimination.
Id.
In this case, the plaintiff satisfies the first requirement
because
she
is
a
member
of
individuals under the WVHRA.
a
protected
class
of
disabled
The WVHRA defines “disability” as
(1) A mental or physical impairment which substantially
limits one or more of such person’s major life
activities. The term “major life activities” includes
functions such as caring for one’s self, performing
manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working;
(2) A record of such impairment; or
(3) Being regarded as having such an impairment.
W. Va. Code § 5-11-3(m) (2012).
Here, the facts show that a
majority of the doctors that provided opinions under the CBA
indicated that the plaintiff should not return to work.
The fact
that she was strongly advised not to return to her work because of
her
osteoporosis
shows
that
her
osteoporosis
“substantially
limited” her ability to work, which is a “major life activity.”
Therefore, plaintiff satisfies the first requirement.
Further, plaintiff satisfies the second requirement, which
requires that the plaintiff show the employer made an adverse
decision against the plaintiff.
Here, that decision was not
permitting the plaintiff to return to work and thus terminating her
employment.
Although
the
first
two
requirements
are
plaintiff fails to satisfy the final requirement.
20
satisfied,
the
Plaintiff here
must provide evidence that creates at least an inference that the
employer terminated her employment based on illegal discriminatory
criteria,
here
either
gender
or
disability.
In
this
case,
plaintiff provides insufficient evidence to link the defendant’s
decision to terminate plaintiff’s employment to such criteria.
The defendant was aware that the plaintiff suffered from
osteoporosis.
However, the defendant did not base the decision to
terminate the plaintiff solely on the grounds that she was disabled
or that she was a woman.
Rather, in compliance with the CBA, the
defendant and plaintiff received three medical opinions regarding
the
plaintiff’s
opinions,
two
ability
of
the
to
return
opinions
to
work.
advised
plaintiff should not return to work.
Of
those
the
parties
three
that
the
Relying on these medical
opinions, and not simply the plaintiff’s status as “disabled” or
her gender, the defendant terminated her employment.
Plaintiff attempts to argue that the medical opinions used and
the process of the examinations of the plaintiff were suspicious.
Specifically, the plaintiff claims that the doctors used for the
medical
opinions
specialists.
and
decision
process
were
not
osteoporosis
Further, the plaintiff claims that the doctors used
were “company doctors,” or those selected to provided favorable
opinions for the defendant.
See ECF No. 253 *29.
However, insufficient evidence has been offered to support
these claims, and they are speculation at best.
21
Further, the
speciality-level of the doctors in this case is not a germane issue
to the law at issue here.
under
an
honest
The facts show that the defendant acted
belief
regarding
whether
to
discharge
the
plaintiff, basing the decision on the recommendations by licensed
physicians with experience, though technically not specialities, in
osteoporosis.
Both parties together selected the third physician,
meaning that the plaintiff herself agreed to be examined by this
physician.
More importantly, the terms of the CBA do not require
the evaluating doctors be specialists in their field.
Thus, the
argument that the evaluating doctors did not practice in any
medical speciality or possess any particular certification relating
to osteoporosis is not relevant in this civil action, as such was
not required under the CBA.
Even if the plaintiff proved a prima facie case existed, the
defendant maintained a legitimate and nondiscriminatory reason.
Here,
the
defendant
nondiscriminatory
offered
reasons
for
the
following
discharging
legitimate
plaintiff:
(1)
and
the
process required under the CBA concluded that plaintiff should not
return to work; (2) a majority of the necessary medical opinions,
including a physician that both parties agreed to use, strongly
recommended the plaintiff not return to work; and (3) based on the
opinions of the physicians, her disability posed too great a risk
to herself and those in the workplace.
As West Virginia law
provides, the reason provided “need not be one which the judge or
22
jury would have acted upon.
The reason can be any other reason
except that the plaintiff was a member of a protected class.”
Conaway, 358 S.E.2d at 430.
Therefore, the reason must simply be
nondiscriminatory and legitimate.
Here, the defendant’s reasons
satisfy this standard.
Further,
the
plaintiff
offers
little
evidence
to
prove
pretext, which she must do once the defendant offers a legitimate,
nondiscriminatory
reason.
In
the
plaintiff’s
response,
the
plaintiff argues that (1) defendant is self-insured, meaning it
acted discriminatory in an effort to save money and in the process
generally by manipulating it through self-interest and (2) that
focusing on workers’ compensation costs serves as a pretext for the
discrimination.
However, this argument fails to satisfy the
standard to show pretext, which requires creating an inference
through
either
discrimination.
direct
or
indirect
evidence
Barefoot, 457 S.E.2d at 160.
of
falsity
or
Focusing on costs
does not itself demonstrate a discriminatory nexus regarding gender
or disability.
Further, plaintiff failed to provide sufficient
evidence that costs were a determinative factor.
Therefore, the
third requirement for a prima facie case remains unsatisfied.
Thus, the defendant’s motion for summary judgment is granted
regarding the WVHRA claim.
23
3.
WVHRA Disparate Impact Claim
Finally, plaintiff argues that the defendant’s policies have
a disparate impact on women.
Specifically, the plaintiff claims
that because (1) the defendant requires employees to see doctors
who are not specialists in osteoporosis when returning to work with
osteoporosis-related
injuries
and
(2)
osteoporosis
generally
affects more women than men, defendant’s practices disparately
impact persons with such disability or gender.
In response, defendant argues that although more women then
men have osteoporosis, that occurrence itself does not prove a
disparate impact against women. Further, the defendant argues that
seeking medical exams regarding ailments or disabilities from work
is a standard process used on all employees when the situation
arises.
More importantly, it is a process defendant uses for more
than just osteoporosis cases.
See ECF No. 274 Ex. 16 *19.
Thus,
because the process is used on all injured employees and the
process does not target or disparately impact women, the defendant
argues this Court should grant its motion for summary judgment.
Under the WVHRA, a plaintiff who cannot prove intentional
discrimination can instead attempt to use a disparate impact
theory.
A
disparate
impact
occurs
when
“employers
do
not
deliberately discriminate, but their hiring practices have the
effect of disproportionately excluding persons on the basis of
race, age, and so forth.”
West Virginia Univ. v. Decker, 447
24
S.E.2d 259, 265 (W. Va. 1994) (quoting Guyan Valley Hospital, Inc.
v. W. Va. Human Rights Comm’n, 382 S.E.2d 88, 90 (1989)).
In
proving a prima facie case, the plaintiff must show (1) the
employer used a particular employment practice or policy and (2)
that the practice caused a disparate impact on a protected class
under the statute.
West Virginia Univ., 447 S.E.2d at 266.
If the
employee satisfies this burden, then the employer must demonstrate
that the practice is “job related and consistent with business
necessity.”
Id.
If this occurs, then the employee may rebut by
showing an alternative, less burdensome practice exists that the
employer refused to adopt.
Id.
The facts of this case show no disparate impact on any
protected class.
Insufficient evidence has been presented to
satisfy all of the requirements.
First, under the CBA, the
defendant regularly has men and women, often facing disabilities or
injuries other than osteoporosis, undergo physical exams and other
medical exams before returning to work.
applied
regardless
of
ECF No. 276 Ex. 16.
particular
This
practice
is
disabilities
genders.
Thus, the defendant does have a regular practice under
the CBA, meaning the first requirement is satisfied.
second
requirement
remains
unsatisfied.
As
or
However, the
mentioned
above,
insufficient evidence has been provided to demonstrate that the
defendant’s practice or policy has disparately impacted a protected
class, here gender or those that are disabled. Although more women
25
than men suffer from osteoporosis, and in theory that could mean
more women than men in the osteoporosis context could have their
employment terminated, no evidence has been presented to prove that
this actually occurred. Moreover, the defendant has shown that the
process used for the plaintiff’s case applied to employees outside
the osteoporosis or female setting.
It should be noted that in
plaintiff’s response, the plaintiff discusses another injured
osteoporosis employee that the defendant approved to return to work
under the CBA’s process when a majority of the doctors recommended
the employee should return to work.9
ECF No. 253 *38-39.
Further,
defendant provided additional cases of individuals, both men and
women
who
had
disabilities
other
than
osteoporosis,
that
experienced the same processes and procedures as the plaintiff
under the CBA.
In those cases, the results were mixed regarding
whether the employees could return to work, showing no disparate
impact or treatment towards any potentially protected class.
No. 273 *19-21.
ECF
This further demonstrates that women generally or
women with osteoporosis did not face termination of employment when
injured in a way that disparately impacted only them. Insufficient
evidence has been provided to show a disparate impact existed.
Therefore, because the requirements for a prima facie case remain
9
Ultimately, that employee was discharged, but only after she
experienced another osteoporosis related injury and a majority of
the physicians recommended she not return to work. See ECF No. 253
*38-39.
26
unsatisfied, this Court grants the defendant’s motion for summary
judgment on the disparate impact claim.
V.
Conclusion
For the reasons stated above, the defendant’s motion for
summary judgment (ECF No. 207) is hereby GRANTED. Further, because
this
Court
read
and
considered
the
plaintiff’s
surreply
in
conjunction with the motion for summary judgment, the plaintiff’s
motion to file a surreply (ECF No. 275) is GRANTED and the Clerk is
DIRECTED to file the surreply.
All currently pending motions in
limine (ECF Nos. 211, 212, 213, 278, 280, and 282) and other
pending non-dispositive pretrial motions (ECF Nos. 209, 210, 314,
and 315) are hereby DENIED AS MOOT.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
September 5, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
27
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