U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc. et al

Filing 115

MEMORANDUM OPINION AND ORDER CONFIRMING THE PRONOUNCED ORDER OF THE COURT DENYING PLAINTIFF'S PARTIAL 67 MOTION FOR SUMMARY JUDGMENT REGARDING LIABILITY, DENYING DEFENDANTS' MOTION 69 FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' 78 MOTION IN LIMINE NO. 1 FOR BIFURCATION OF THE CLAIM FOR PUNITIVE DAMAGES AND MEMORANDUM IN SUPPORT. Signed by Senior Judge Frederick P. Stamp, Jr on 1/7/2015. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.

Civil Action No. 1:13CV215
(STAMP)

CONSOL ENERGY, INC. and
CONSOLIDATION COAL COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
CONFIRMING THE PRONOUNCED ORDER OF THE COURT
DENYING PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT
REGARDING LIABILITY,
DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANTS’ MOTION IN LIMINE NO. 1
FOR BIFURCATION OF THE CLAIM FOR PUNITIVE DAMAGES AND
MEMORANDUM IN SUPPORT
I.

Procedural History

This action was filed by the plaintiff, the United States
Equal Employment Commission (“EEOC”), pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

In the

complaint, EEOC is seeking a permanent injunction and monetary
relief for the charging party, Beverly R. Butcher, Jr. (“Butcher”).
EEOC alleges that the defendants, Consol Energy, Inc. (“Consol
Energy”)

and

Consolidation

Coal

Company

(“Consolidation

Coal”)(collectively, “the defendants”), instituted practices that
denied Butcher a religious accommodation.
EEOC filed a motion for partial summary judgment regarding
liability.

The

defendants

also

filed

a

motion

for

summary

judgment.

Those motions were fully briefed.

Additionally, both

parties have filed multiple motions in limine.

However, before

this Court entered an opinion on those motions, this Court held a
pretrial conference with all parties in attendance.

At that

hearing, this Court informed the parties that it was denying both
motions for summary judgment and granting the defendants’ motion in
limine No. 1, regarding bifurcation of EEOC’s claim for punitive
damages.

This opinion sets forth those findings in more detail.
II.

Facts

EEOC avers in its complaint that Butcher was employed at the
Robinson Run Mine, located in Marion County, West Virginia and
operated by the defendants, in 2012 when a biometric hand scanner
was installed for tracking employee time and attendance.

EEOC

further alleges that Butcher is an Evangelical Christian and has a
“genuinely held religious belief” that he is not permitted to
submit either of his hands for scanning because such scanning would
make him take on the Mark of the Beast.1

1

The theological roots of [this] asserted
belief lie in the New Testament's Book of
Revelation, which, in its thirteenth chapter,
refers to two beasts. The Book of Revelation
prophesies that those who receive the mark of
the second beast shall be condemned to eternal
damnation. See Book of Revelation 14:9-11.
This mark is characterized as a number
required for buying and selling. See id. at
13:17; see also Stevens v. Berger, 428 F.Supp.
896 (E.D.N.Y. 1977) (providing an extensive
discussion of the theological and historical
origins of the “mark of the beast”).
2

EEOC alleges that Butcher informed the defendants of his
belief

concerning

the

Mark

of

the

Beast

multiple

times

and

suggested two alternatives–that he continue to manually submit his
time and attendance or use a time clock.

However, EEOC asserts

that the defendants only offered Butcher the alternative of using
his left hand palm up instead of his right hand palm down.
further

contends

that

the

defendants

declined

to

EEOC

accommodate

Butcher’s religious exemption request even though the defendants
allowed exemptions for two other employees who had missing fingers.
Thereafter, EEOC asserts that Butcher involuntarily retired because
the defendants would not allow his religious exemption.
A.

Plaintiff’s Motion for Partial Summary Judgment Regarding
Liability
In its motion for summary judgment, EEOC first reviews the

facts stated above.

EEOC adds statements from employees of the

defendants that, EEOC argues, shows that the defendants knew
Butcher’s beliefs were genuinely held, that Butcher only retired
because they would not accommodate his request, and that there were
alternatives to the hand scanner. Additionally, EEOC contends that
Recognition

Systems

Incorporated

(“RSI”),

the

scanner

system

vendor, had convinced the defendants that the Mark of the Beast
could only occur if the right hand was scanned and thus the
defendants attempted to change Butcher’s beliefs and implemented a

Baltgalvis v. Newport News Shipbuilding Inc., et al., 132 F.Supp.2d
414, 415 (E.D. Va.) aff'd, 15 Fed.App'x 172 (4th Cir. 2001).
3

policy wherein only physical impairments would exempt an employee
from the use of the hand scanner.

Otherwise, EEOC asserts,

discharge was eminent for persons such as Butcher who did not have
a physical impairment and refused to use the hand scanner.
EEOC argues that a prima facie case for denial of religious
accommodation exists in this action.

First, EEOC contends that

Butcher held a bona fide religious belief that he cannot scan
either of his hands, which both officials involved in the decisions
concerning Butcher’s request supported.
Butcher

informed

occasions.

the

defendants

of

Second, EEOC argues that
his

belief

on

multiple

Finally, EEOC asserts that Butcher was given an

ultimatum of either scanning his hand or facing discharge under the
policy implemented by the defendants because he did not have a
physical impairment.

EEOC contends that Butcher was forced to

retire because the only other option was discharge and thus a
constructive discharge occurred. EEOC asserts that Butcher was not
offered a reasonable alternative because (1) he believed that
neither hand could be scanned and (2) the defendants knew that
Butcher could, in the alternative, have keyed in his employee code.
Additionally, EEOC contends that the defendants’ argument that
Butcher should have stayed, taken the disciplinary charges, and
then filed a union grievance is meritless because (1) Butcher had
filed a UMWA grievance which was denied by the defendants and later
withdrawn by the UMWA and (2) filing a grievance before he retired

4

would have been futile.

EEOC argues that the actions by the

defendants were deliberate as they had full knowledge of Butcher’s
beliefs
Finally,

and

alternatives

EEOC

asserts

that

that

could

Consol

have

Energy

been
is

implemented.

statutorily

the

employer as it was the parent company of Consolidation Coal and
dominated the operations of the subsidiary, Consolidation Coal.
In response, the defendants assert that the following facts
are adverse to the facts set forth by EEOC: (1) Butcher refused to
use the scanning system at all, which included typing in his
employee number, and thus the same exemption given to the two other
employees could not be employed; (2) Butcher did not believe that
the scanning system would give him the Mark of the Beast but rather
would lead to technology that would; (3) Butcher refused to speak
with his pastor or have his pastor write a letter discussing that
the scanner could not be used on the left hand; (4) Butcher used a
helmet which had a sensor on the forehead, which is used for
monitoring the location of persons in the mines; (5) Butcher had
filed grievances previously and was aware of the union grievance
process; (6) Butcher’s grievance that was filed after he retired
was

denied

because

it

was

untimely

as

Butcher

had

entered

retirement; and (7) the scanning system was not implemented until
a week and a half after Butcher decided to retire and thus he had
ample time to file a grievance before that time and was never
actually subjected to discipline.

5

Further,

the

defendants

argue

that

Butcher’s

request

to

manually clock in was unreasonable and would have placed an undue
hardship on the defendants.

Finally, the defendants argue that

Consol Energy was not the statutory employer of Consolidation Coal.
The defendants contend that Butcher’s personnel files show he was
an employee and received his paycheck from Consolidation Coal;
Butcher

received

all

daily

directives

and

assignments

from

Consolidation Coal; Consolidation Coal had a separate and distinct
human resources department that dealt with employment decisions;
and under the law, Consol Energy is allowed to set forth general
policies without piercing the corporate veil, which it did.
In reply, EEOC argues that the relevant issue is whether
Butcher objects to the scanner, not why he objects, and thus it is
only relevant that he has a sincerely held belief that using the
hand scanner is objectionable. EEOC also contends that the beliefs
of Mrs. Butcher are inconsequential and further that the use of a
sensor on a helmet is different because it is not a scanner.
Additionally, EEOC asserts that Butcher’s religious beliefs did not
need to be consistent with the beliefs of others in his religion,
as long as the belief is sincerely held.

EEOC also reiterates its

arguments that the defendants’ actions were deliberate and that
they did not provide a reasonable alternative. EEOC further argues
that any grievance filed by Butcher would have failed because the
collective bargaining agreement in place does not require religious

6

accommodations and thus the United Mine Workers of America (“UMWA”)
would have withdrawn any claim by Butcher on the subject.
As to the defendants’ factual assertions, EEOC contends that:
(1) Butcher did acquire a letter from his pastor and that the only
reason a letter was requested was to try to persuade Butcher to
change his mind; (2) Butcher was never asked if he agreed with the
RSI letter; (3) the defendants knew of the key pad option in July
of 2012, Butcher didn’t know of such an option before he retired,
and Butcher only filed a grievance after he retired upon finding
out about the option; and (4) the defendants have adduced no
evidence

that the keypad system, the manual system, or a time

clock would create an undue hardship.

Finally, EEOC argues that

Consol Energy is a statutory employer because: (1) the employees
involved in the decisions leading to this action were and are still
employees of Consol Energy, either as officers or management; (2)
the decision to implement hand scanning was made by Consol Energy;
(3) the hand scanner policy at issue was implemented by Consol
Energy employees; and (4) Butcher is considered a retiree of Consol
Energy.2

2

EEOC uses the name “Consol” instead of “Consol Energy” or
“Consolidation Coal” when referring to one of the defendants. This
Court will assume, based on its argument, that EEOC is referring to
Consol Energy and thus the Court has used “Consol Energy”
throughout the summary of this argument.
7

B.

Defendants’ Motion for Summary Judgment
The defendants concede in their motion for summary judgment

that they “assume” Butcher has a bona fide religious belief that
conflicts with use of the scanner and that he informed his employer
of this belief.

Further, the defendants set forth their arguments

that Butcher was never disciplined and chose to retire before all
avenues of accommodation could be explored or before he filed a
grievance.

Additionally,

the

defendants

contend

that

the

alternatives set forth by Butcher would result in more than de
minimis hardship to the defendants because they had already spent
time and money on the new system, no system was in place for a time
clock, and the old manual system had cost them millions of dollars
in overpay.

The defendants also assert that Butcher has failed to

mitigate his damages because he could have obtained employment in
the coal industry and did not do so because he wanted to keep his
pension benefits.

Finally, the defendants argue that punitive

damages should not be awarded as they did not act with malicious
motive or a conscious or deliberate disregard of Butcher’s rights.
The defendants assert that they offered a reasonable accommodation
and Butcher decided to retire instead.
In response, EEOC reiterates several of its arguments from its
motion for summary judgment.

However, for the first time, EEOC

contends that the same day Butcher was given the “ultimatum”, the
two employees with fingers missing were given the option of typing

8

in their employee number.

Additionally, EEOC reiterates that

Butcher did not need to be actually disciplined because he was
constructively discharged (1) by the denial of the exemption and
(2) because he was not required to make futile grievance requests.
Further, EEOC asserts that the defendants have not shown that an
undue hardship would result by allowing an accommodation for
Butcher. EEOC contends that Butcher never stated he would not type
in his number and that typing in the number would result in little
cost to the defendants. EEOC also asserts that the defendants have
made no effort to quantify the costs that would result from
allowing Butcher use a time clock or the manual system.
EEOC also argues that Butcher has mitigated his damages as he
has been fully employed since October 22, 2012.

EEOC avers that

Butcher sought employment in the coal mining industry and in the
heavy equipment operating industry as those wages would have been
comparable to what he was making before.

Further, EEOC asserts

that the defendants do not have any proof the Butcher failed to
apply for any coal industry jobs that Butcher was aware of or that
there were available coal industry jobs between August 2012 and
October 2012. In addition, EEOC contends that under Fourth Circuit
precedent, once Butcher received a lower paying job he was free to
stay in that position and was not required to continue searching
for higher paying employment.

Furthermore, EEOC argues that the

defendants led Butcher to believe that he would not be hired by

9

unionized mines because he was a retiree who was drawing a pension
and thus Butcher’s belief that he would not be hired by those mines
was reasonable. Finally, EEOC contends that Butcher is entitled to
punitive damages as the defendants’ employees were aware of the
Title VII implications of Butcher’s request and did not provide him
a reasonable accommodation.
In their reply, the defendants reiterate previous arguments
they have made throughout the briefing of these two motions.
C.

Defendants’ Motion in Limine: Bifurcation
The defendants assert that bifurcation of the claim for

punitive damages is required as the defendants would otherwise be
unfairly prejudiced if the jury were to consider the defendants’
finances and corporate wealth at the same time it considers
liability and/or compensatory damages.

Further, the defendants

argue that such evidence has no relevance at the liability stage.
Additionally,

the

defendants

assert

that

EEOC

will

not

be

prejudiced by bifurcation because it will have no impact on their
presentation of the liability claims.
In

response,

EEOC

argues

that

the

defendants

have

only

provided a generalized, speculative assertion that they will be
prejudiced by non-bifurcation which is not enough to meet their
burden.

Further, EEOC contends that bifurcation is unwarranted as

the defendants are a well-known corporation and most jury members
would have some familiarity with defendants' size and presumed

10

wealth.
have

not

EEOC argues that even with that knowledge, the defendants
shown

that

the

jury

would

be

unable

to

follow

an

instruction from the Court to not consider such information.
Additionally, EEOC asserts that the defendants' wealth will be at
issue if the defendants are allowed to make the argument that the
alternatives that Butcher offered, other than scanning his hands,
are too costly.
For the reasons that follow, this Court finds that EEOC’s
motion for partial summary judgment regarding liability and the
defendants’ motion for summary judgment should be denied.
III.

Applicable Law

The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “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.

11

“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 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

Motions for Summary Judgment
1.

Religious Discrimination

Title VII makes it “an unlawful employment practice for an
employer . . .

to discharge any individual . . . because of such

individual’s religion.”
action

for

employment

42 U.S.C. § 2000e-2.
discrimination

based

In a Title VII

upon

the

charging

party’s religion, the plaintiff must show either that the charging
party suffered disparate treatment as a result of his religion or
that the employer failed to accommodate his religious practices.

12

Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir.
1996).
The United States Court of Appeals for the Fourth Circuit has
set forth a burden shifting scheme wherein the plaintiff must first
establish a prima facie religious accommodation claim.

EEOC v.

Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008).
To

establish

a

prima

facie

religious

accommodation

claim,

a

plaintiff must establish that: (1) he has a bona fide religious
belief that conflicts with an employment requirement; (2) he
informed the employer of this belief and requested an accommodation
thereof; and (3) he was disciplined for failure to comply with the
conflicting employment requirement.

Id. at 1019.

With respect to

the third prong, the plaintiff may prove that the charging party
was

disciplined

if

he

was

not

hired

or

promoted,

fired,

or

otherwise discriminated against for failure to comply with the
conflicting employment requirement.

See e.g. Henegar v. Sears,

Roebuck & Co., 965 F. Supp. 833, 834 (N.D. W. Va. 1997).
Once

a

plaintiff

establishes

a

prima

facie

religious

accommodation claim, the burden then shifts to the employer to show
that it could not reasonably accommodate the employee’s religious
needs without undue hardship. Firestone Fibers, 515 F.3d at 312.
The employer must then show either (1) that it provided the
employee with a reasonable accommodation or (2) that such an
accommodation was not provided because it would have caused an

13

undue hardship at “more than a de minimis cost.” Id., see also
Trans World Airlines v. Hardison, 432 U.S. 63, 84 (1977). Further,
an employer’s duty to accommodate does not require the employer to
accept

an

employee’s

proposed

accommodation

accommodation is otherwise adequate.

if

its

own

Ansonia Bd. of Educ. v.

Philbrook, 479 U.S. 60 (1986).
This Court will assume, for purposes of this summary judgment
motion, that the first two requirements of a prima facie religious
accommodation claim have been met in this action because this Court
can dispose of these motions without considering the first two
requirement.

This is so because this Court finds that there are

material issues of fact that surround the third requirement–whether
or not Butcher was disciplined for failure to comply with the
defendants’ hand scanning policy.
Additionally, the parties are in disagreement as to whether or
not the defendants provided a reasonable accommodation or were
unable

to

provide

certain

accommodations

accommodations would result in an undue hardship.

because

those

As this Court

has found below that there are genuine issues of material fact
regarding proof of a prima facie religious accommodation claim,
this Court does not need to undergo an analysis of the second
Firestone Fibers

step, analyzing the reasonable accommodation

offered or not offered by the defendants.

14

EEOC contends that Butcher was constructively discharged for
failing to use the hand scanner at Robinson Run Mine. EEOC asserts
that constructive discharge occurred because of the disciplinary
policy that was implemented by the defendants’ supervisory staff
which left Butcher with no option other than to retire in protest.
The defendants, however, argue that Butcher did not retire in
protest and, by retiring, did not allow the defendants to remedy
the situation.
EEOC notes in its motion for partial summary judgment that the
Fourth Circuit has continued to apply the two prong analysis for
constructive

discharge,

which

includes

a

deliberateness

requirement, despite the Supreme Court’s holding in Pennsylvania
State Police v. Suders, 542 U.S. 129 (2004). As noted, Suders only
requires the objective intolerability prong be proven where the
underlying claim does not require proof of discriminatory intent.
Id.; see Whitten v. Freds, Inc., 601 F.3d 231, 248-49 (4th Cir.
2010).

However, the Fourth Circuit in Whitten made it apparent

that it was aware of the possible tension with Suders but would
continue to apply the deliberateness element as other Fourth
Circuit panels had done post-Suders. Whitten, 601 F.3d at 251, n.
8.

Thus, although EEOC objects to the use of the deliberateness

requirement, this Court must follow Fourth Circuit precedent which
continues to require such a showing. Id.; see also Carter v.
Centura College, Civil Action No. 2:10-00907-CWH, 2012 WL 638800,

15

at *11 (D.S.C. Feb. 27, 2012)(finding that “[s]ince the Fourth
Circuit Court of Appeals has not interpreted Suders

to have

dispensed with the deliberateness requirement, the plaintiff must
satisfy this element.”).
Thus,

“[i]n

discharged

‘if

this
an

circuit,

employer

an

employee

deliberately

is

constructively

makes

the

working

conditions of the employee intolerable in an effort to induce the
employee to quit.’” Whitten, 601 F.3d at 248 (citing Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir. 1995)
(internal quotation marks omitted)). “A constructive-discharge
plaintiff

must

therefore

allege

and

prove

two

elements:

(1)

deliberateness of the employer's actions and (2) intolerability of
the

working

citations

conditions.”

omitted).

deliberateness,

the

In

Id.

(internal

order

plaintiff

quotation

to

prove

the

must

prove

“‘that

marks

first
the

and

element,
actions

complained of were intended by the employer as an effort to force
the employee to quit.’” Id. (citation omitted).
Additionally, “a complete failure to accommodate, in the face
of repeated requests, might suffice as evidence to show the
deliberateness necessary for constructive discharge.” Johnson v.
Shalala, 991 F.2d 126, 132 (4th Cir. 1993); see also Crabill v.
Charlotte Mecklenburg Bd. of Educ., 423 F. App'x 314, 324 (4th Cir.
2011).

16

For instance, the Fourth Circuit has found that sufficient
evidence of a constructive discharge had been adduced to survive a
summary judgment motion where the plaintiff provided evidence that
the defendant was aware of a reasonable accommodation but did not
offer such an accommodation to the plaintiff. Crabill, 423 F. App’x
at 324.

In Crabill, the plaintiff, a former high school guidance

counselor, prematurely retired after she was refused a reduction in
her case load by the school’s principal and also misinformed
the

school

board

of

possible

middle

school

and

high

by

school

positions that might be available for transfer as an accommodation.
Id.

at

317-19.

Although

the

court

considered

the

refusals

regarding the case load, the court also noted that the school board
had learned of five or six high schools, two middle schools, and a
new high school that did not yet have a high school class, to which
the plaintiff could have possibly requested a transfer.
319-20.

Id. at

The school board representative, however, only informed

the plaintiff of one high school position that was available for
transfer. Id. at 319. When the plaintiff was unable to secure that
position, she prematurely retired. Id. at 320.

Given such facts,

the court found that a genuine dispute of material fact had been
generated as to the plaintiff’s claim of constructive discharge.
Id. at 324.
In this action, the parties disagree as to what should have
been offered to Butcher and whether or not Butcher was actually

17

willing to use the hand scanner at all–including the punch-in
method.

As stated previously, the hand scanner may be overridden

so that an employee is not required to scan either hand but may
punch-in his number.

In mid-to-late July of 2012, this method was

offered to two employees at the Robinson Run Mine who had physical
impairments which made the hand scanner unusable except with the
use of the punch-in method.

An initial meeting with Butcher had

taken place in June, 2012, before the punch-in method was known to
either of the two employees who directly dealt with Butcher,
Michael Smith and Chris Fazio.

However, two meetings with Butcher

occurred in August of 2012, after Smith and Fazio obtained that
knowledge, one of which ended in Butcher retiring prematurely.
Accordingly, there is not a question as to whether the
defendants knew of the punch-in method option at the time that
Butcher retired.

However, the parties disagree as to whether or

not Smith and Fazio were aware that such an option would be
accepted by Butcher and if such an option could have been offered.
Smith has testified that he did not think that Butcher would use
the system at all and had only considered offering Butcher the left
hand, palm-up option.

Further, although a mere statement of

speculation, Butcher has testified that it would be reasonable for
Smith to believe that he would not use the machine at all.
Butcher, however, has testified that he would have used the punchin method and filed a union grievance regarding the fact that the

18

method was offered to two other employees but not to him.

Thus,

there is a genuine issue of material fact as to whether a jury
would find that the refusals by the defendants amounted to a
constructive discharge.
Further,
retirement

was

the

parties

“in

disagree

protest.”

as

Butcher

to

whether

Butcher’s

has

testified

in

his

deposition that he was not thinking about retiring in 2012,
specifically at the last meeting with Smith and Fazio on August 10,
2012.

On the other hand, Butcher testified that he had mentioned

retiring in the first meeting with Smith and Fazio regarding his
objection to using the hand scanner. Butcher testified that he had
stated at the first meeting with Smith and Fazio that if he was
forced to scan his hand he would likely have to retire.

However,

Smith and Fazio testified that they believe that Butcher had stated
in the final meeting on August 10, 2012, that he was thinking about
retiring in a year anyway and that he might as well retire now.
Thus, there is also a genuine issue of material fact as to whether
or not Butcher’s retirement was forced by the implementation of the
hand scanning disciplinary policy and the actions taken by the
defendants.
2.
EEOC

Parent/Subsidiary
argues

that

both

defendants

should

be

considered

Butcher’s former employers for purposes of this litigation as they
are both “statutory employers” under Title VII.

19

The defendants,

however, contend that the two entities, Consolidation Coal and
Consol Energy, are separate and thus Consolidation Coal was the
only employer of Butcher.
“A parent company is the employer of a subsidiary's personnel
only if it [1] controls the subsidiary's employment decisions or
[2]

so

completely

dominates

the

corporations are the same entity.”

subsidiary

that

the

two

Johnson v. Flowers Indus.,

Inc., 814 F.2d 978, 980 (4th Cir. 1987).

Under the first option,

in determining the amount of control a parent corporation has,
courts may consider whether the parent corporation has “hired and
fired the subsidiary employees[;] routinely shifted them between
the two companies[;] [ ] supervised their daily operations[;]”
and/or “authorized [their] layoffs, recalls, and promotions”. Id.
at 981.

Under the second option, where a parent corporation

completely dominates the subsidiary, a parent corporation will be
found to be liable for actions taken by the subsidiary if it has
commingled funds and assets, undercapitalized the subsidiary,
disregarded corporate formalities, authorized the subsidiary’s
purchases over a certain monetary amount, or managed the finances
of the subsidiary. Id. at 981 (citation omitted).
However,

“(o)wnership

of

a

controlling

interest

in

a

corporation entitles the controlling stockholder to exercise the
normal incidents of stock ownership, such as the right to choose
directors

and

set

general

policies,

20

without

forfeiting

the

protection” afforded a parent corporation
omitted).

Id. at 980-81 (citation

Thus, “the courts have found parent corporations to be

employers only in extraordinary circumstances.” Id. at 980.
The parties are not in dispute as to the fact that Butcher was
employed by Consolidation Coal at the time the alleged incidents
regarding his religious accommodation occurred.

Further, the

parties agree that Samuel Johnson, the Vice President of Human
Resources for Consol Energy at the time of the alleged incident,
was an employee of Consol Energy.
The parties contradict each other as to Smith and Fazio’s
employer at the time the underlying issues arose.

EEOC contends

that Smith and Fazio, the two employees who dealt directly with
Butcher, are Consol Energy employees.

On the other hand, the

defendants assert that Smith and Fazio were employed at the time by
Consolidation Coal, not Consol Energy, and that Consol Energy is
just a trademark used on certain documents or referred to by
employees

who

are

actually

employed

by

Consolidation

Coal.

Further, the parties do not agree on the actual control that Consol
Energy had over the decisions made by Smith and Fazio.

At the time

the underlying incident occurred, Smith testified that he reported
to Chuck Shaynak, Senior Vice President of Consol Energy.

Fazio

testified that he reported to Smith and Tom Hudson, the director of
Human Resources of Consol Energy.

Additionally, Johnson testified

that both Hudson and Fazio work under him.

21

In addition, Smith testified that he wrote and implemented the
hand scanning disciplinary policy by himself and that Consol Energy
did not direct him to do so.

Hudson testified, however, that he

helped author the disciplinary policy, along with Fazio, and that
Johnson authorized the implementation of the policy.
Because of the inconsistencies just cited, this Court cannot
determine whether or not both Consolidation Coal and Consol Energy
should be considered Butcher’s employers for the purposes of this
litigation.

There are genuine issues of material fact as to which

of the employees involved in the underlying incident were employed
by Consol Energy or Consolidation Coal.

Further, the issue of who

wrote and implemented the hand scanning disciplinary policy raises
questions as to who was reporting to whom, and thus who was
reporting to either the parent or subsidiary at the time the
underlying incident took place.

Accordingly, this is an issue for

the jury.
3.

Punitive Damages

In order to be awarded punitive damages, EEOC must show that
the defendants’ alleged discriminatory act was done with malice or
reckless indifference to Butcher’s federally protected religious
rights. See 42 U.S.C. § 1981a(b)(1).

The defendants have argued

that a reasonable jury could not find that punitive damages should
be awarded in this case as the defendants provided Butcher with a
reasonable accommodation and in response he retired.

22

As stated

above, this Court cannot at this time reach the question as to
whether or not a reasonable accommodation was given as there are
still genuine issues of material fact remaining as to constructive
discharge and whether a prima facie religious accommodation claim
has been made by EEOC. Accordingly, there are still genuine issues
of material fact remaining as to whether or not a reasonable juror
could find that Butcher is entitled to punitive damages.
4.

Back Pay and Front Pay

As this Court has denied summary judgment for both parties,
the Court will defer ruling on EEOC’s assertion that Butcher is
entitled to back and/or front pay. Franks v. Bowman Transportation
Co.,

424

U.S.

747,

763-64

(1976)(upholding

a

lower

court’s

instruction that the jury not consider “back pay, pre-judgment
interest, or reinstatement or front pay, because those equitable
remedies are vested within the Court's discretion.”).

Further,

this Court reminds the parties that it will hold a separate
hearing, if needed, after the jury trial has been completed in this
action.
B.

Defendants’ Motion in Limine
Bifurcation of trials is intended to further convenience,

avoid delay and prejudice, and to serve the ends of justice.

It is

appropriate only when the court believes that separation will
achieve the purposes of the rule. 9 C. Wright & A. Miller, Federal
Practice and Procedure (1971), sec. 2388.

23

The defendants argue that they will be prejudiced if the jury
were to consider evidence that would support the EEOC’s claim for
punitive damages at the same time it considered the evidence for
the liability and compensatory damages claims.

EEOC, however,

asserts that bifurcation would be frivolous because the defendants
are well-known entities in the area from which the jury pool would
be selected and evidence of the defendants’ wealth will be at issue
if the defendants are allowed to make the argument that the
alternatives suggested by Butcher were too costly to implement.
This Court finds and reiterates its finding from the pre-trial
conference

that

EEOC’s

claim

for

punitive

damages

should

be

bifurcated from the other issues that will be addressed at trial.
This Court noted during the pre-trial conference that it believed
that there are other avenues that can be used to adduce evidence as
to whether or not the defendants had the means to implement the
alternatives

suggested

by

Butcher

(such

as

inquiring

of

the

corporate individuals as to why such alternatives would be an undue
hardship).

However, this Court further notes that determinations

as to what evidence may be admitted during the initial liability
phase of trial versus the punitive damages phase, or even the back
pay and front pay hearing that will be held on a later date, are
not being made in this opinion.

24

Accordingly, this Court sets forth the following procedure for
trial in this action given the granting of the defendants’ motion
in limine to bifurcate the issue of punitive damages.
During the first phase of trial, the issues of liability
should be determined and evidence of wealth or financial condition
of the defendant will not be permitted.

The issue of compensatory

damages will be determined in the first phase. EEOC may mention in
its opening statement that it is seeking punitive damages but shall
not elaborate upon that contention.

At the close of EEOC’s case,

the Court will then determine whether EEOC has made a prima facie
case for punitive damages.
A special verdict form will be used to determine whether the
defendants

are

liable

for

compensatory

damages

only,

or

in

addition, are also liable for punitive damages. If the jury
determines in the first phase that punitive damages also should be
awarded, evidence of the appropriate amount, including that of
defendants’ wealth or financial condition where relevant, will be
permitted in the second phase.

In other words, only if EEOC makes

a prima facie case for punitive damages and only if the jury
determines that punitive damages should be awarded, will this Court
then reconvene the jury to hear evidence as to the financial
condition or wealth of the defendant in order to arrive at a
verdict as to the amount of such punitive damages. Perrine v. E.I.
du

Pont

de

Nemours

&

Co.,

694

25

S.E.2d

815,

919-20

(W.

Va.

2010)(Ketchum,

J.,

dissenting

in

part

and

concurring

in

part)(citing Transportation Insurance Co. v. Moriel, 879 S.W.2d 10
(Texas 1994))(suggesting the approach cited above by this Court);
Rohrbaugh

v.

Wal-Mart

Stores,

Inc.,

572

S.E.2d

881

(W.

Va.

2002)(“Generally, trial courts are permitted broad discretion in
managing their cases and deciding bifurcation matters . . . . [a]
trial court [may decide] to bifurcate the amount of punitive
damages in order ‘to prevent the jury from being influenced on the
substantive claim by evidence of [defendant’s] enormous wealth . .
. .”); Rupert v. Sellers, 368 N.Y.S.2d 904 (1975).
V.

Conclusion

Based on the analysis above, EEOC’s motion for partial summary
judgment (ECF No. 67) is DENIED.

Further, the defendants’ motion

for

69)

summary

judgment

(ECF

No.

is

DENIED.

Finally,

the

defendants’ motion in limine No. 1 for bifurcation of the claim for
punitive damages (ECF No. 78) is GRANTED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

January 7, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

26