Adams v. Groves et al

Filing 108

ORDER granting 64 MOTION by Greenbrier Minerals, LLC for Summary Judgment; and denying 66 MOTION by Michael Adams for Partial Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 11/13/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MICHAEL ADAMS,
Plaintiff,
v.

Civil Action No. 2:17-cv-03127

GREENBRIER MINERALS, LLC; JOHN DOE
INDIVIDUALS (1-10); and JOHN DOE
CORPORATIONS (1-10),
Defendants.
ORDER
Pending are the parties’ cross motions for summary
judgment, each filed on September 14, 2018.
I.

Background

Plaintiff Michael Adams is a former employee of Cliffs
Logan County Coal, LLC (“Cliffs”).

He began working for Cliffs

in January 2011 at their Chilton mine as an underground laborer
until he was transferred to a communications position there a
few months later.
at 12).

(Defendant’s Mot. Summ. J., “ECF # 64,” Ex. 1

The communications position was in an office setting,

requiring Adams to “monitor carbon dioxide levels; monitor
miners underground, their location; report any alarms that go
off.

[H]e also calibrated the gas detectors [and] had to test

the self-rescuers.”

Id. at 14.

In 2014, the Chilton mine

closed and Cliffs moved its Chilton employees to the Lower War
Eagle Mine.

Id. at 13.

There, Adams worked first as an outside

utility worker, then briefly in communications until a fellowemployee, Ms. Abbott, was placed in the communications position
in order to accommodate difficulty she was having with her
eyesight, at which point Adams returned to his outside utility
position.

Id. at 14-17.

Adams remained there until November

2014, when he was placed on short-term disability after he “had
a slight heart attack and [had to have stents put in.]”
20.

Id. at

On December 30, 2014, he was released by his physician to

return to “an office job[,]” with the limitation of “avoid[ing]
moderate to severe exertion[.]”

(ECF # 64 Ex. 10).

During Adams’ leave, Cliffs was in discussions with
Greenbrier Minerals, LLC (“Greenbrier”) over the acquisition of
Cliffs’ mining assets in Logan County.
10).

(ECF # 64 Ex. 3 at 9-

As part of the acquisition, Greenbrier agreed to hire “at

least 80 percent of the employees that were employed by
Cliffs[.]”

Id. at 11.

While the discussions were ongoing,

Greenbrier contemplated which employees/positions it would
retain, and which would be terminated.

Id. at 12.

It held

meetings for Cliffs’ employees where they could complete a new
application, learn about the application process, and “meet and
greet” Greenbrier.

(Plaintiff’s Mot. Summ. J. “ECF # 66,” Ex. 1
2

at 30).

The acquisition was finalized on December 31, 2014.

(ECF # 64 Ex. 4).
Greenbrier ultimately replaced many of the managementlevel employees, terminated excessive positions, and
provisionally terminated all forty-seven inactive employees who
“were off work due to illness or injury and were receiving some
sort of wage replacement from Cliffs[.]”
24, ECF # 66 Ex. 4 at 3).

(ECF # 64 Ex. 3 at 23-

It chose not to retain the inactive

employees because as an “asset purchase agreement, [instead of a
stock purchase agreement], Greenbrier did not have a
responsibility to assume the liabilities of Cliffs[.]”
11.

Id. at

Greenbrier decided not to assume the “liability [from the

inactive employees] because [Greenbrier] had no way to determine
whether or not [those] people would ever return to work.”

Id.

at 24.
Each of the inactive employees received two letters: a
notice of eligibility for severance benefits from Cliffs that
included a severance agreement containing a liability release;
and a letter from Greenbrier indicating that upon an inactive
employee’s receipt of a physician’s release to return to work,
the employee should contact Greenbrier within 24 hours to
determine if a position is open, as it was Greenbrier’s intent
“to offer employment first to as many of Cliff’s former
3

employees as possible[.]”

(See ECF # 64 Ex. 6 at 1, ECF # 64

Ex. 7 at 1, and ECF # 64 Ex. 3 at 24).

The letter from

Greenbrier indicated that the inactive employees would “be
required to go through the same hiring process as all other
Cliffs’ former employees, including the completion of an
employment application.”

(ECF # 64 Ex. 7).

At least three of

the forty-seven inactive employees came to Greenbrier in or
around January 2015 with physician’s releases and were offered
positions.

(ECF # 64 Ex. 3 at 42, ECF # 64 Ex. 9 at 15-16, and

21-22).
Mr. Adams received each of the letters sent to the
inactive employees.

(ECF # 64 Ex. 6 and ECF # 64 Ex. 7).

On

December 23, 2014, Cliffs sent Mr. Adams the notice of
eligibility for severance benefits, accompanied by a severance
agreement which, inter alia, released from liability Cliffs and
their “predecessors, successors, and assigns[.]”

(ECF # 64 Ex.

6, as supplemented by ECF # 93, “Joint Stipulation”).
Greenbrier is mentioned in neither the notice of eligibility for
severance benefits nor the accompanying severance agreement.
Id.

Also around that time, Greenbrier sent Adams the letter

provisionally terminating all inactive employees.
7).

(ECF # 64 Ex.

However, Mr. Adams also received a letter from Greenbrier

4

at the end of December that offered him a communications
position.

(ECF # 64 Ex. 8).
On or around December 31, 2014, Adams went to

Greenbrier with his physician’s release and the offer letter to
ask for the position in communications.1

Upon his arrival, he

was informed that the offer letter was sent by mistake and that
all the communications positions were filled, but that he was
nonetheless welcome to apply to Greenbrier.
63-64, ECF # 64 Ex. 9 at 20).

(ECF # 64 Ex. 1 at

The communications positions were

in fact filled by those already holding them prior to the
acquisition.

(ECF # 64 Ex. 3 at 36).

Adams signed the Cliffs severance agreement and
release on January 2, 2015.
ECF # 93 Ex. 1 at 21).
a car salesman.

(ECF # 64 Ex. 6, as supplemented by

That same month he started a new job as

(ECF # 64 Ex. 13 at 3).

By the middle of 2015,

Adams had fully recovered from his surgery.

(ECF # 64 Ex. 1 at

107).
Plaintiff filed this action in the Circuit Court of
Logan County on December 23, 2016, alleging an assortment of

1

This date is disputed. (See Defendant’s Memo. in Supp. Of
Summ. J., ECF # 65 at 6-7, and Plaintiff’s Response, ECF # 71 at
2-3). However, for purposes of their motion, the defendant
assumes that the plaintiff’s assertion is correct; the court
does the same.
5

state and federal statutory and common law violations against
Greenbrier, Cliffs, Greenbrier’s Vice President of Human
Resources Gary Groves, as well as “John Doe” individuals and
corporations who are either employees of Greenbrier or Cliffs,
or were corporations allegedly associated with or “alter egos”
of Greenbrier or Cliffs.

(Compl., ECF # 1 Ex. 2).

Cliffs

removed the action to federal court on June 1, 2017, pursuant to
the court’s federal question and supplemental jurisdiction.
(Not. of. Removal, ECF # 1).

On January 29, 2018, the plaintiff

filed an abbreviated amended complaint alleging only two counts
against Greenbrier and the John Does: one for “Discrimination”
and one for “Failure to Accommodate Plaintiff’s Request[,]” both
under the West Virginia Human Rights Act, § 5-11-9 (“WVHRA”).
(Am. Compl., ECF # 27 Ex. 1).

The claims against Cliffs and

Groves were voluntarily dismissed by the defendant, as reflected
in orders entered January 8, 2018 and March 14, 2018.

(See

Memo. Op. and Order, ECF # 25, and Order, ECF # 37).
II.

Summary Judgment Standard

Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

The court’s review is guided by the

principle that it must “construe the evidence, and all
6

reasonable inferences that may be drawn from such evidence, in
the light most favorable to the nonmoving party.”

Dash v.

Mayweather, 731 F.3d 303, 310 (4th Cir. 2013) (citing PBM
Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir.
2011)).
III. Discussion
In his motion for partial summary judgment, the
plaintiff asserts that he is entitled to summary judgment on
Count I of his amended complaint, WVHRA discrimination, for
three reasons: first, Greenbrier made pre-employment disabilityrelated inquiries; second, Greenbrier discriminated against him
“through disparate treatment of the Plaintiff due to his
disability;” or, third, alternatively, Greenbrier “regard[ed]
the Plaintiff as disabled at the time the decision was made [not
to offer him employment.]”

(ECF # 67 at 1) (emphasis omitted).

In its motion for summary judgment, Greenbrier asserts
that it is entitled to summary judgment for three reasons:
first, it was released from liability through the Cliffs
severance agreement; second, Adams cannot prove that he is
disabled or regarded as disabled under the WVHRA; and third, the
WVHRA did not require it to provide Adams with the filled
communications job.

(ECF # 65 at 1).
7

Although there is no evidence that Greenbrier ever
hired or discharged Adams, or otherwise owed him any duty, the
court nonetheless considers the alternate arguments presented by
the parties.

The court first considers the merits of the

plaintiff’s WVHRA discrimination claim.

To prevail under the

WVHRA, a plaintiff must initially establish a prima facie case
of unlawful discrimination.

See Bartos v. PDC Energy, Inc., 275

F. Supp. 3d 755, 760 (N.D.W. Va. 2017) (stating that the WVHRA
is governed by the same burden-shifting framework as Title VII
of the Civil Rights Act of 1964).

The plaintiff must show: “(1)

he meets the definition of ‘disabled’ within the law's meaning;
(2) he is a ‘qualified disabled person’; and (3) he was
discharged from his job.”

Lindenmuth v. Lab. Corp. of Am., No.

2:15-CV-13368, 2016 WL 5109159, at *3 (S.D.W. Va. Sept. 19,
2016) (citing Hosaflook v. Consolidation Coal Co., 201 W. Va.
325, 330 (1997)).
Although the Supreme Court of Appeals of West Virginia
has noted that the WVHRA “represents an independent approach to
the law of disability discrimination that is not mechanically
tied to federal disability discrimination jurisprudence[,]”
Stone v. St. Joseph's Hosp. of Parkersburg, 538 S.E.2d 389, 404
(W. Va. 2000), the WVHRA is often analyzed under its federal
equivalent, the Americans with Disabilities Act (“ADA”).
8

See

e.g., Lindenmuth v. Lab. Corp. of Am., No. 2:15-CV-13368, 2016
WL 5109159, at *2 (S.D.W. Va. Sept. 19, 2016); Hosaflook v.
Consolidation Coal Co., 497 S.E.2d 174, 181 n.10 (W. Va. 1997)
(noting that “cases decided under the ADA are also helpful in
deciding our cases under the [WVHRA]”); and Kitchen v. Summers
Continuous Care Ctr., LLC, 552 F. Supp. 2d 589, 593 n.5 (S.D.W.
Va. 2008) (“the ‘standards governing the ADA ... and the WV[H]RA
are coextensive[,]’”) (quoting Shafer v. Preston Mem. Hosp.
Corp., 107 F.3d 274, 281 (4th Cir.1997), abrogated on other
grounds by Baird ex rel. Baird v. Rose, 192 F. 3d 462 (4th Cir.
1999)).
After establishing a prima facie case, the burden then
shifts to the employer to provide a legitimate nondiscriminatory
reason for the adverse employment action.

Conaway v. E.

Associated Coal Corp., 178 W. Va. 164, 171 (1986).

“The reason

need not be a particularly good one. It need not be one which
the judge or jury would have acted upon. The reason can be any
other reason except that the plaintiff was a member of a
protected class.”

Id.

Once the employer has provided such a reason, “the
employee will have the chance to rebut the employer's evidence
with a showing that the stated reason was merely a pretext for
discriminatory motive.”

Id.

“‘Pretext’ means an ostensible
9

reason or motive assigned as a color or cover for the real
reason or motive; false appearance; pretense.”

Mayflower

Vehicle Sys., Inc. v. Cheeks, 218 W. Va. 703, 714 (2006)
(quoting W.Va. Institute of Technology v. W.Va. Human Rights
Comm'n, 181 W.Va. 525, 531, 383 S.E.2d 490, 496 (1989)).

“A

proffered reason is a pretext if it was not ‘the true reason for
the decision[.]’”

Id. (quoting Conaway, 178 W.Va. at 171).

If

pretext is shown, through direct or circumstantial evidence of
falsity or discrimination, “discrimination may be inferred.”
Id.

(quoting Barefoot v. Sundale Nursing Home, 193 W.Va. 475,

457 (1995)).
Assuming, arguendo, that the plaintiff can establish a
prima facie case2, his claim nevertheless fails because the
defendant has shown a legitimate nondiscriminatory reason for
not hiring Mr. Adams, which he fails to adequately rebut, either
in his own motion or in response to the defendant’s motion.

One

is not qualified for a position if they have not been released
to work in that position by their physician.

See Kitchen v.

Summers Continuous Care Ctr., LLC, 552 F. Supp. 2d 589, 594
(S.D.W. Va. 2008) (finding that, under both the ADA and the

2

Because the plaintiff’s claim necessarily fails, the court
chooses not to decide the issues presented relating to the prima
facie case, including, inter alia, whether the plaintiff’s
temporary condition constitutes a disability under the WVHRA.
10

WVHRA, “an individual who has not been released to work by his
or her doctor is not a ‘qualified individual with a
disability.’”).

When a position is filled by another, an

employer does not have a duty to remove that person from their
position to accommodate a person with a disability.

Garvin v.

World Color Printing (USA) II Corp., No. 3:10-CV-74, 2011 WL
1485998, at *10 (N.D.W. Va. Apr. 19, 2011) (“‘an employer [does
not] have a duty to displace other employees in order to
accommodate a disabled employee.’”) (quoting Skaggs v. Elk Run
Coal Co., 198 W. Va. 51, 67 (1996)) (alteration in original).
Here, Adams was qualified only for the communications position
because it was the only job matching his skillset that did not
require moderate to severe exertion.

Greenbrier could not offer

Adams such a position because all communications positions were
filled by those holding them before the acquisition took place.
Greenbrier had no duty under the WVHRA to replace those people
with Adams.

The fact that there were no open positions for

which Adams was qualified is thus a legitimate nondiscriminatory
reason for rejecting his application.
Adams has not shown that this reason is pretext for
disability discrimination.

He does not refute that all of the

positions for which he was qualified were filled, but contends
that refusing to hire anyone on the “inactive” list proves
11

pretext.

Greenbrier agrees that it provisionally terminated

each employee on the inactive list.

Those employees were simply

unable to work at the time of the acquisition, which is why they
were on the inactive list in the first place.

Indeed, each

employee was invited to apply to Greenbrier as soon as they were
able to work.

This much was indicated in the letters sent to

the inactive employees, which specifically stated that
Greenbrier wished to hire as many former employees as possible.
In fact, at least three inactive employees came to Greenbrier
with physician’s releases and were offered positions.

The

plaintiff presents no evidence that Greenbrier held any animus
or acted discriminatorily towards anyone on the basis of
disability.

Accordingly, the plaintiff has failed to show that

Greenbrier’s reason for not hiring Adams was pretext for
disability discrimination, and the defendant prevails on the
discrimination claim.
For similar reasons, summary judgment in favor of the
defendant is warranted for plaintiff’s Count II claim for
failure to accommodate.

To succeed on a claim for failure to

accommodate, the plaintiff must establish:
(1) The plaintiff is a qualified person with a
disability; (2) the employer was aware of the
plaintiff's disability; (3) the plaintiff required an
accommodation in order to perform the essential
functions of a job; (4) a reasonable accommodation
12

existed that met the plaintiff's needs; (5) the
employer knew or should have known of the plaintiff's
need and of the accommodation; and (6) the employer
failed to provide the accommodation.
Alley v. Charleston Area Med. Ctr., Inc., 216 W. Va. 63, 71
(2004).

Plaintiff’s sole theory for this claim is that the

communications position itself was an accommodation for his
inability to use moderate to severe exertion.
# 27, ¶¶ 25-34).

(Am. Compl., ECF

Reassigning an employee to a vacant position

may qualify as a reasonable accommodation.

Skaggs, 198 W. Va.

at 66 (“Our regulations state that ‘[r]easonable accommodations
include, but are not limited to’ . . .

reassigning the employee

‘to a vacant position for which the person is able and competent
... to perform’”) (quoting 77 W. Va. C.S.R. 1, § 4.5) (emphasis
added).

However, the accommodation is only reasonable insofar

as there is a vacant position; as already mentioned, an employer
does not “have a duty to displace other employees in order to
accommodate a disabled employee.”

Id. at 67.

Here, there were

no vacant positions; all the communications positions were
filled.

Notably, Adams was not working in a communications

position prior to his surgery; Cliffs had moved him to an
outside utility position in order to accommodate another
employee’s difficulty with her eyesight.

Asking Greenbrier to

remove an employee from the position they held prior to the

13

acquisition in order to place Adams there instead is not a
reasonable request.
Turning briefly to Mr. Adams’ remaining argument, that
Greenbrier violated § 77-11-5.1 of the West Virginia Code of
State Regulations by making a pre-employment disability-related
inquiry, the court finds that raising the argument at this stage
of the proceedings is inappropriate.

Plaintiff’s amended

complaint only asserts claims for “Discrimination” and “Failure
to Accommodate[,]” both of which are discussed above.

Allowing

the plaintiff to assert a new legal theory at the summary
judgment stage would essentially constitute an amendment of the
pleadings, which would unfairly prejudice the defendant.

See

Harris v. Reston Hosp. Ctr., LLC, 523 F. App'x 938, 946 (4th
Cir. 2013) (affirming the lower court’s decision “that asserting
a new legal theory for the first time in opposing summary
judgment amounted to constructive amendment of the amended
complaint and thus unfairly prejudiced the defendant[.]”).
Furthermore, the argument is meritless.

§ 77-1-5.1 provides

that an employer shall not make a pre-employment inquiry into
whether an applicant has a physical or mental impairment,
“except that an employer . . . may make pre-employment inquiries
into the ability of a job applicant to perform job-related
functions.”

The individuals placed on the inactive list were
14

there solely because they were temporarily unable to perform
their job-related functions.

Thus, inquiry as to their

identities is permitted by the regulation.
As for the defendant’s argument that the severance
agreement between Adams and Cliffs released Greenbrier, as a
successor of Cliffs, from liability, the court does not address
the question because the plaintiff’s underlying claims fail.
IV.

Conclusion

For the foregoing reasons, it is ORDERED that the
defendant’s motion for summary judgment be, and it hereby is,
granted.

It is further ORDERED that the plaintiff’s motion for

partial summary judgment be, and it hereby is, denied.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER:

15

November 13, 2018