Joyce Anderson v. Consolidation Coal Company , 636 F. App'x 175 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2048
JOYCE ANDERSON,
Plaintiff – Appellant,
v.
CONSOLIDATION COAL COMPANY,
Defendant – Appellee,
and
CONSOL ENERGY, INC.,
Defendant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp,
Jr., Senior District Judge. (1:11-cv-00138-FPS-JSK)
Argued: October 29, 2015 Decided: January 21, 2016
Before WILKINSON, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Wilkinson joined. Judge Wynn wrote a
dissenting opinion.
ARGUED: Allan Norman Karlin, ALLAN N. KARLIN & ASSOCIATES,
Morgantown, West Virginia, for Appellant. Larry Joseph Rector,
STEPTOE & JOHNSON, PLLC, Bridgeport, West Virginia, for
Appellee. ON BRIEF: Jane E. Peak, ALLAN N. KARLIN & ASSOCIATES,
Morgantown, West Virginia, for Appellant. Denielle M. Stritch,
STEPTOE & JOHNSON, PLLC, Morgantown, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
While working in a coal mine operated by Consolidation Coal
Company (“CCC”), Joyce Anderson fell and suffered multiple bone
fractures. Before her fall, Anderson had been diagnosed as
having osteoporosis. After her recovery, Anderson attempted to
return to her former job. Presented with conflicting medical
evidence about Anderson’s post-injury ability to work safely in
the mine, CCC implemented a medical-review process dictated by
its collective bargaining agreement (“CBA”) with her union.
Because two of the three doctors selected under the CBA process
opined against Anderson’s return to underground work, CCC
prohibited her from returning to her former position. Anderson
filed an unsuccessful labor grievance, and when CCC was unable
to find a suitable alternative position for her, it terminated
her employment. Anderson then filed this lawsuit contending
(among other things) that CCC violated West Virginia law by
retaliating against her for filing a workers’ compensation claim
and by discriminating against her based on the fact that she has
osteoporosis. The district court granted CCC’s summary judgment
motion on these claims, and Anderson now appeals. For the
following reasons, we affirm.
I
Federal Civil Procedure Rule 56(a) provides that the
district court “shall grant summary judgment if the movant shows
3
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” We review a
summary judgment order de novo. Lee Graham Shopping Ctr., LLC v.
Estate of Kirsch, 777 F.3d 678, 681 (4th Cir. 2015).
West Virginia Code § 23-5A-1 provides that “[n]o 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” workers’ compensation
benefits. West Virginia Code § 5-11-9(1) provides that it is
unlawful “[f]or any employer to discriminate against an
individual with respect to 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.”
For claims under either statute, the employee bears the
ultimate burden of proving the employer’s illegal motive. See
CSX Transp., Inc. v. Smith, 729 S.E.2d 151, 169 (W.Va. 2012)
(retaliation); Hanlon v. Chambers, 464 S.E.2d 741, 748 (W.Va.
1995) (discrimination). Where, as here, there is no direct
evidence of retaliation or discrimination, the general scheme of
proof for both claims is substantially the same: (1) the
employee bears the burden of presenting a prima facie case; (2)
if she presents a prima facie case, the burden shifts to the
employer to present a legitimate, nondiscriminatory reason for
4
her discharge; and (3) if the employer presents such a reason,
the employee must establish that the proffered reason is
pretextual. See Powell v. Wyoming Cablevision, Inc., 403 S.E.2d
717, 721-22 (W.Va. 1991) (retaliation); Conaway v. Eastern
Assoc. Coal Corp., 358 S.E.2d 423, 429-30 (W.Va. 1986)
(discrimination).
II
The following material facts are not disputed. Anderson is
a long-time CCC employee who was diagnosed with osteoporosis in
2005. In November 2009, while Anderson was working in the
Loveridge Mine, she fell and fractured her elbow and pelvis.
Anderson was treated by Dr. Nancy McKinley, an orthopedic
surgeon and also underwent physical therapy. Anderson filed a
workers’ compensation claim for this injury and received
workers’ compensation benefits.
Several months later, Dr. McKinley released Anderson to
return to work. Before allowing her to return, CCC (through its
workers’ compensation administrator) obtained a medical
examination, which included a bone density scan. Dr. Dean
Steinman performed this examination and found that the scan
results, accompanied by other risk factors and the severity of
her injuries from her relatively minor 2009 fall, presented too
great a risk of re-fracture to return her to work in the coal
mine. When Dr. Steinman’s report was presented to Dr. McKinley
5
for review, Dr. McKinley noted that although “common sense” may
suggest that Anderson not return to work in the mine, J.A. 1262,
she did not believe that Anderson was precluded from doing so.
Faced with this conflict of opinions, CCC approved a record
review by Dr. Vincent Ripepi. Following his review, Dr. Ripepi
agreed with Dr. Steinman.
Anderson disagreed with Dr. Steinman’s and Dr. Ripepi’s
medical opinions. CCC therefore implemented Article III(j) of
the CBA. In pertinent part, Article III(j) provides that “once
employed, an Employee cannot be terminated or refused . . .
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.” J.A. 861.
Anderson selected Dr. McKinley as the “Employee-approved
physician,” and CCC selected Dr. Steinman as the “Employer-
approved physician.” By agreement, the parties then met to
select the third physician, who would be the tiebreaker. Each
party proposed four doctors at this meeting, and each party
struck three names proposed by the other, leaving each party
6
with a single physician remaining. 1 The names of the two
remaining physicians, Dr. Sushil Sethi – who was CCC’s choice -
and Dr. Shelly Kafka – who was Anderson’s choice - were placed
in a hat. Anderson selected Dr. Kafka’s name out of the hat, and
CCC agreed to use Dr. Kafka. However, Dr. Kafka declined to
participate in the evaluation process.
Anderson then put forth two additional doctors’ names. CCC
struck one doctor, leaving Dr. Brian Houston as Anderson’s
proposed doctor. Dr. Houston’s name was then placed in the hat
with Dr. Sethi’s name. Anderson again selected a name from the
hat, this time choosing Dr. Sethi. Anderson did not object to
being seen by Dr. Sethi, and he performed her physical
examination. Thereafter, Dr. Sethi opined that Anderson was not
able to work safely underground because of her high risk for
repeat fracture. Specifically, Dr. Sethi stated:
On the basis of my examination and review of the
medical records as well as my thorough research of
osteoporosis, it is my medical opinion that the
deterioration of the bone due to early onset of
1
Helen Blevins, a registered nurse, testified on behalf of
CCC that a limited number of area doctors were willing to engage
in workers’ compensation and similar evaluative work. When she
selected doctors for the CBA process, she looked at factors such
as a doctor’s capability, knowledge, availability, willingness,
and timeliness in an effort to obtain the best and most timely
results. Anderson argues that proof of CCC’s improper motives
lies in the fact that CCC proffered only doctors who were not
osteoporosis specialists. However, CCC did proffer an orthopedic
surgeon, but Anderson struck this doctor from the list.
7
menopause as well as aging and having caused a
fracture with a very minor activity, is a very high
risk factor in performing her regular work. The use of
medication including Boniva as well as other listed
medications that are available on the market, simply
prevent some osteoclastic activity. It does not cure
the problem of osteoporosis. After having reviewed the
job duties and the risk factors as well as the
description of the bunker employee including ability
to have the capability of safely evacuating the mine
in the event of an emergency, I can say with
reasonable degree of medical probability and
certainty, that [Anderson] is not able to safely
perform her regular work as a bunker attendant at
Loveridge Mine. She is a very high risk for repeat
fracture which can happen spontaneously or even from a
minor tripping and would be a risk to herself as well
as other fellow workers.
J.A. 865-66.
Thus, the majority of the medical opinions obtained under
the CBA process recommended that Anderson’s high fracture risk
made it unsafe for her to return to work in the coal mine. CCC
attempted to accommodate Anderson with a surface position as a
dispatcher. CCC’s effort, however, was precluded by seniority
rules in the CBA. Anderson then filed a grievance seeking
reinstatement, but an arbitrator ruled against her, finding that
CCC complied with the CBA. CCC encouraged Anderson to apply for
an open above-ground position. Although Anderson applied and was
interviewed for this position, she ultimately declined to pursue
it. Unable to find a satisfactory alternative position for
Anderson, CCC terminated her employment.
8
III
Anderson filed this action asserting several state-law
claims. Pertinent to this appeal, Anderson alleged that CCC (1)
retaliated against her for filing a workers’ compensation claim,
in violation of § 23-5A-1 and (2) discriminated against her
based on the fact that she has osteoporosis - which CCC
perceived to be, or which is in fact, a disability - in
violation of § 5-11-9(1). At the close of discovery, CCC moved
for summary judgment on several grounds. The district court
granted the motion for the following reasons.
Regarding Anderson’s workers’ compensation retaliation
claim, the district court noted that Anderson was required to
show three elements to establish a prima facie case: (1) she
sustained an on-the-job injury; (2) she filed a claim for
workers’ compensation benefits; and (3) CCC treated her filing
of a workers’ compensation claim as a significant factor in its
decision to discharge her. See Powell, 403 S.E.2d at 721. The
court found that although Anderson sufficiently showed the first
two elements, she failed to show the third element. The court
explained that CCC “acted under the CBA which governed the
procedure” regarding her potential return to work and “a
majority of the necessary medical opinions found that [Anderson]
should not return to work.” J.A. 1039. The court stated: “Simply
put, no evidence exists to demonstrate or imply that [CCC]
9
terminated [Anderson] with [workers’] compensation costs serving
as a ‘significant’ factor.” J.A. 1039-40.
Regarding Anderson’s disability discrimination claim, the
district court noted that Anderson was required to show three
elements to establish a prima facie case: (1) she is a member of
a protected class; (2) CCC took an adverse action against her;
and (3) but for her protected status, CCC would not have taken
the adverse action. See Conaway, 358 S.E.2d at 429. Again, the
court found that Anderson sufficiently showed the first two
elements, but she failed to show the third element. The court
explained that although CCC was aware of Anderson’s
osteoporosis, it did not base the decision to terminate her on
the grounds that she is disabled. The court stated:
Rather, in compliance with the CBA, [CCC and Anderson]
received three medical opinions regarding [her]
ability to return to work. Of those three opinions,
two of the opinions advised the parties that
[Anderson] should not return to work. Relying on these
medical opinions, and not simply [her] status as
“disabled” . . . [CCC] terminated her employment.
J.A. 1044.
The district court addressed and rejected Anderson’s
argument that the doctors chosen by CCC for the CBA process were
“company doctors” rather than osteoporosis specialists. The
court found that “insufficient evidence has been offered to
support these claims, and they are speculation at best.” J.A.
1044. Further, the court stated that “the specialty-level of the
10
doctors in this case is not a germane issue to the law at
issue.” J.A. 1044-45. Reiterating its earlier discussion of the
workers’ compensation retaliation claim, the court explained:
The facts show that [CCC] acted under an honest belief
regarding whether to discharge [Anderson], basing the
decision on the recommendations by licensed physicians
with experience, though technically not specialties,
in osteoporosis. Both parties together selected the
third physician, meaning that [Anderson] 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 specialty or possess any
particular certification relating to osteoporosis is
not relevant in this civil action, as such was not
required under the CBA.
J.A. 1045.
The district court further concluded that even if Anderson
had shown a prima facie case of disability discrimination, CCC
offered a legitimate nondiscriminatory reason for her discharge:
the CBA medical review process, which led to the medical
opinions advising that she not return to her former position.
Finally, the court found that Anderson failed to present
sufficient evidence of pretext to rebut CCC’s proffered reason.
IV
Anderson contends that the district court erred in several
respects by granting CCC’s summary judgment motion. Anderson
primarily argues that the court erred in assessing her
disability discrimination claim because it failed to conduct the
11
analysis set forth in West Virginia Code of State Rules § 77-1-
4.8. She also argues with respect to both of her claims that the
court resolved disputed facts against her and failed to
recognize the existence of genuine issues of material fact. In
response, CCC argues that the court correctly entered summary
judgment on Anderson’s claims.
Having carefully considered this matter under the
appropriate summary judgment standard, we agree with the
district court that the undisputed material facts in the record
establish as a matter of law that CCC’s decision to terminate
Anderson’s employment was not based on a discriminatory or
retaliatory motive. Instead, those facts establish that when
Anderson attempted to return to work following her work-related
injury, CCC was presented with conflicting medical opinions
about whether she could do so safely. 2 For that reason, CCC
implemented the CBA medical-review process, in which Anderson
fully and freely participated, and two of the three doctors
selected in that process opined against her return to the coal
2 CCC’s decision to have Anderson evaluated before returning
her to work did not violate West Virginia law. See, e.g., Stone
v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d 389, 407 (W.Va.
2000) (“[T]he mere fact that the Hospital sent Mr. Stone for an
independent medical examination did not prove a case of
disability discrimination.”).
12
mine. 3 Consequently, CCC was then within its collectively
bargained right to prohibit Anderson from returning to the coal
mine. Ultimately, CCC terminated Anderson’s employment only
after it was unable to place her in a suitable alternative
position.
Anderson has proffered evidence which she contends creates
genuine issues of material fact about the qualifications and
opinions of the doctors who examined her as part of the CBA
medical-review process and about the purported motives of CCC
personnel. We have considered this evidence in our summary
judgment review. However, we conclude that Anderson has failed
to present sufficient evidence to create a genuine issue of
material fact to establish that her filing of a workers’
compensation claim was a significant factor in CCC’s decision to
terminate her. For this reason, we affirm the grant of summary
judgment on the retaliation claim. See, e.g., Yoho v. Triangle
PWC, Inc., 336 S.E.2d 204, 210 (W.Va. 1985) (affirming dismissal
of § 23-5A-1 claim where the employee was discharged pursuant to
a “facially neutral provision of the collective bargaining
3
Dr. Ripepi also opined against Anderson’s return to work
in the mine. Therefore, three doctors who considered the matter
before Anderson was terminated believed that she should not
return to the mine. Moreover, Dr. McKinley (who was Anderson’s
choice in the Article III(j) process) equivocated, stating that
“common sense” suggested that Anderson not return to the mine.
13
agreement”). Likewise, we conclude that even if Anderson
presented sufficient evidence to establish a prima facie case of
discrimination, CCC has presented a legitimate, non-
discriminatory reason for terminating her employment (i.e., the
CBA medical-review process), and she has failed to present
sufficient evidence to establish pretext. Therefore, we affirm
the grant of summary judgment on the discrimination claim. See,
e.g., Bailey v. Norfolk and W. Ry. Co., 527 S.E.2d 516, 536
(W.Va. 1999) (noting that the parties’ collective bargaining
agreement provided a legitimate, non-discriminatory reason for
the challenged action).
As noted, Anderson primarily argues that the district court
failed to analyze her discrimination claim under West Virginia
Code of State Rules § 77-1-4.8. We disagree with Anderson’s
contention that § 77-1-4.8 dictates a different outcome.
Rule 77-1-4 is titled “Employment Discrimination
Prohibited” and is part of “a detailed explication of the
general anti-discrimination requirements of the Human Rights
Act, [§ 5-11-9].” Stone, 538 S.E.2d at 396 n.8. Section 77-1-4.1
and its subsections prohibit disability discrimination in
employment. Various other sections of Rule 77-1-4 deal with
matters that are unrelated to this case, but two sections,
§§ 77-1-4.7 and 4.8, are pertinent to our discussion.
14
Section 77-1-4.7 provides that an “individual’s ability to
perform a particular job must be assessed on an individual
basis,” and an employer “may discharge a qualified individual
with a disability if, even after reasonable accommodation, the
individual is unable to perform the essential functions of the
job without creating a substantial hazard to his/her health and
safety or the health and safety of others.” Section 77-1-4.7
cautions that “any such decision shall be [based] upon the
individual’s actual abilities, and not upon general assumptions
or stereotypes about persons with particular mental or physical
disabilities.”
Section 77-1-4.8 then provides that “[i]n deciding whether
an individual poses a direct threat to health and safety, the
employer has the burden of demonstrating that a reasonable
probability of a materially enhanced risk of substantial harm to
the health or safety of the individual or others cannot be
eliminated or reduced by reasonable accommodation.” Further,
§ 77-1-4.8 specifies that “[t]he employer’s determination that
an individual poses a ‘direct threat’ shall be based on an
individualized assessment of the individual’s present ability to
safely perform the essential functions of the job. This
assessment shall be based on a reasonable medical judgement
[sic] that relies on the most current medical knowledge and/or
on the best available objective evidence.” Section 77-1-4.8
15
concludes by listing several non-exclusive factors to be
considered in determining whether an individual would pose a
direct threat.
According to Anderson, § 77-1-4.8 “is an affirmative
defense that requires the employer to prove that the medical
opinion upon which it relies was based on an ‘individualized
assessment’ of the employee, on ‘competent medical advice’ and
on the ‘most current medical knowledge’ in the relevant field.”
Opening Brief of Appellant, at 8. 4 Anderson argues that CCC
failed to comply with § 77-1-4.8 because it selected and
recommended evaluators who “it knew or should have known had
little or no expertise in osteoporosis, who lacked ‘current
medical knowledge’ about the disease and who did not provide
competent opinions about [her] risk of future injury.” Id. at 9.
Although the role of § 77-1-4.8 within the shifting-burden
analysis used for employment discrimination claims is not
entirely clear, we will assume that the section becomes
applicable when, in response to an employee’s prima facie case,
the employer asserts that an employee cannot safely perform her
job as a legitimate, non-discriminatory reason for termination.
4 In Stone, the court explained that “to satisfy the
standard of a serious threat to one’s health or safety, the
employer must establish that it relied upon competent medical
advice that there exists a reasonably probable risk of serious
harm.” 538 S.E.2d at 397 (emphasis added and citation omitted).
16
As we have already held, the undisputed evidence establishes
that CCC terminated Anderson as a result of the CBA medical-
review process, which is unquestionably a legitimate, non-
discriminatory reason. Contrary to Anderson’s argument, we
conclude that through its implementation of the CBA medical-
review process, CCC met its burden under § 77-1-4.8. 5
Fundamentally, § 77-1-4.8 requires that the employer’s
decision must be made on “an individualized assessment of the
individual’s present ability to safely perform the essential
functions of the job.” By relying on the various specific
medical opinions obtained before and during the CBA medical-
review process, CCC made its decision about Anderson’s ability
to return to the coal mine on an individualized assessment of
her condition and ability rather than “upon general assumptions
or stereotypes about persons” with osteoporosis. § 77-1-4.7.
5 CCC unsuccessfully argued below that Anderson’s claims are
preempted by the Federal Labor Management Relations Act
(“LMRA”). CCC reiterates this argument as one of several
alternate bases for affirming the summary judgment. We need not
decide the issue, but we note that Anderson’s reliance on § 77-
1-4.8 does raise a significant LMRA preemption question. See
Barton v. House of Raeford Farms, Inc., 745 F.3d 95, 107 (4th
Cir.), cert. denied, 135 S.Ct. 160 (2014) (stating the general
rule that when the evaluation of the state law claim is
inextricably intertwined with consideration of the terms of the
labor contract, such that it is necessary to interpret the
collective-bargaining agreement to resolve the claim, the claim
is preempted).
17
Moving forward in the analysis, § 77-1-4.8 specifies that
the individualized assessment must be based on a “reasonable”
medical judgment (from a competent medical practitioner) who
relies on “the most current medical knowledge” or on “the best
available objective evidence.” 6 We believe the undisputed
material evidence in the record establishes that CCC met this
standard. CCC utilized doctors who had the ability to conduct
the medical testing specific to Anderson’s condition and who
were experienced in providing occupational medical evaluations.
These doctors assessed Anderson’s bone density scans, along with
other risk factors, and examined extensive details regarding the
specific job requirements of her position. To be sure, Anderson
points to conflicting evidence regarding her ability to return
to her former position, but the fact that medical opinions
differ does not establish that CCC’s reliance on Dr. Steinman’s
and Dr. Sethi’s assessments was unreasonable. 7 Moreover, although
6Section 77-1-4.8 states that the assessment “shall be
based on a reasonable medical judgement [sic] that relies on the
most current medical knowledge and/or on the best available
objective evidence.” The term “and/or” typically means “or.” See
Curry v. W.Va. Consol. Pub. Retire. Bd., 778 S.E.2d 637, 642 n.4
(W.Va. Oct. 7, 2015); Dynalectron Corp. v. Equitable Trust Co.,
704 F.2d 737, 739 (4th Cir. 1983).
7As noted, Anderson recommended both Dr. McKinley and Dr.
Kafka during the CBA medical-review process, but Dr. Kafka
declined to participate. Dr. Kafka did examine Anderson at a
later time, and Anderson now relies on Dr. Kafka’s opinion to
support her case. Had Dr. Kafka rendered her opinion during the
(Continued)
18
Anderson contends that CCC was required to utilize and rely only
on osteoporosis specialists in making its individualized
assessment, we find nothing to establish that § 77-1-4.8 imposes
such a rigid requirement. See generally Farley v. Shook, 629
S.E.2d 739, 746 (W.Va. 2006) (“While a physician does not have
to be board certified in a specialty to qualify to render an
expert opinion, the physician must have some experience or
knowledge on which to base his or her opinion.”).
V
We are not unsympathetic to Anderson’s desire to return to
her job. However, West Virginia law recognizes “the right of an
employer to protect employees, the public, and the workplace
from danger or injury that might occur as a result of a person’s
possible impairments, when such protection is done in a fashion
that is consistent with the duty of reasonable accommodation.”
Stone, 538 S.E.2d at 397. This right is also embodied in the
CBA. Based on the record before us, we agree with the district
court that the undisputed material evidence establishes that CCC
CBA process, she would have cast the tiebreaking vote in
Anderson’s favor, and CCC presumably would have been obligated
under the CBA to return Anderson to work. These facts highlight
the role of the CBA process in Anderson’s termination and
undercut her claims of retaliation and discrimination.
19
did not illegally retaliate or discriminate against her.
Therefore, we affirm the judgment.
AFFIRMED
20
WYNN, Circuit Judge, dissenting:
Joyce Anderson was fifty-two years old and had a
satisfactory work record nearly three decades long when
Consolidation Coal Company (“CCC”) terminated her, on the
grounds that her osteoporosis prevented her return to work after
recovering from a fracture. Ostensibly, CCC based her
termination on company-directed medical evaluations rendered
after Anderson’s treating orthopedic surgeon had already
unreservedly cleared her to return to work, and those
evaluations appear to have been based largely on an erroneous
interpretation of a single study found through Google or similar
search engines.
The majority opinion nevertheless concludes that there is
no genuine factual dispute regarding whether CCC’s termination
decision satisfied the relevant state standards—that is, whether
it was based on a “reasonable” medical judgment, one “that
relie[d] on the most current medical knowledge and/or on the
best available objective evidence.” Ante, at 18; W. Va. Code R.
§ 77-1-4.8. I cannot reach the same conclusion. For this
reason and those elaborated below, I dissent.
I.
A.
The majority opinion assumes, without deciding, that
Anderson has successfully made out a prima facie case of
21
disability discrimination. Ante, at 14. In my view, the issue
is simple enough to decide. Anderson provided abundant evidence
that she was “regarded as” disabled by CCC, W. Va. Code § 5-11-
3(m)(3); Stone v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d
389, 399 (W. Va. 2000), and that “but for” that perception of
her disability, she would not have been terminated. See Conaway
v. E. Associated Coal Corp., 358 S.E.2d 423, 429 (W. Va. 1986)
(enumerating the elements of a prima facie discrimination claim
under West Virginia Code § 5-11-9). The district court
therefore erred in concluding that Anderson failed to make out a
prima facie case of disability discrimination. 1
B.
The majority opinion concludes that Anderson failed to make
out a prima facie case of workers’ compensation retaliation,
ante, at 13, which requires an employee to offer sufficient
evidence that: “(1) an on-the-job injury was sustained; (2)
proceedings were instituted under the Workers’ Compensation Act
1 The district court arguably should have applied a
different prima facie test, specific to disability
discrimination suits in West Virginia, which requires that the
plaintiff (1) satisfy the definition of “handicapped” or
“disabled,” (2) be able to perform, with reasonable
accommodation, the relevant job, and (3) was discharged.
Hosaflook v. Consolidation Coal Co., 497 S.E.2d 174, 179–80 (W.
Va. 1997). Anderson provided sufficient evidence to satisfy
these elements, too. Cf. Morris Mem’l Convalescent Nursing
Home, Inc. v. W. Va. Human Rights Comm’n, 431 S.E.2d 353, 357–59
(W. Va. 1993).
22
. . . ; and (3) the filing of a workers’ compensation claim was
a significant factor in the employer’s decision to discharge or
otherwise discriminate against the employee.” Powell v. Wyo.
Cablevision, Inc., 403 S.E.2d 717, 721 (W. Va. 1991). The
majority opinion states that Anderson “has failed to present
sufficient evidence to create a genuine issue of material fact”
regarding the third, “nexus” element, i.e., whether “her filing
of a workers’ compensation claim was a significant factor in
CCC’s decision to terminate her.” Ante, at 13. I disagree.
Due to the typical lack of direct evidence in employment
retaliation cases, we are to examine circumstantial evidence
when evaluating the third element of a plaintiff’s prima facie
case, including “[p]roximity in time of the claim and the
firing,” “[e]vidence of satisfactory work performance and
supervisory evaluations before the accident,” and “[a]ny
evidence of an actual pattern of harassing conduct for
submitting the claim.” Powell, 403 S.E.2d at 721.
Here, Anderson offered evidence with respect to each of
these factors. First, with respect to the “proximity in time”
factor, Anderson began receiving workers’ compensation benefits
on November 4, 2009, was released to return to work by her
physician on March 24, 2010, effective March 29, without
restrictions, was informed on April 25 that she would not be
allowed to return to work, and was terminated on June 22. The
23
proximity among these various dates contributes to a permissible
inference that the workers’ compensation claim was a
“significant factor” in Anderson’s termination. Id.Second, the record contains “[e]vidence of satisfactory
work performance and supervisory evaluations before the
accident.” Id. Anderson was employed continuously with CCC
from October 15, 1981, through the date of her termination; in
that time, she established a “good work record” and was “well
thought of by both Management and her fellow employees.” J.A.
858.
Third, although there was no “pattern of harassment”
following the submission of Anderson’s workers’ compensation
claim, Powell, 403 S.E.2d at 721, there is evidence that before
learning of the initial return-to-work examination, Anderson
received a call from an employee of Wells Fargo, CCC’s workers’
compensation administrator, advising Anderson that CCC was
“going to make an issue of the osteoporosis” and “was going to
put the screws to” her. J.A. 136–37.
Finally, in addition to the above factors, a trier of fact
is permitted to consider any circumstantial evidence relevant to
the “nexus” prong. Such evidence includes the fact that CCC is
self-insured, and that CCC regularly sends to its human
resources managers workers’ compensation claim reports that
include information about the cost of benefits paid to each
24
injured miner. Such evidence suggests that CCC may have been
unusually concerned about the costs of its workers’ compensation
program. See Nestor v. Bruce Hardwood Floors, L.P., 558 S.E.2d
691, 695–96 (W. Va. 2001) (finding a triable question of fact
where “[the employer’s] supervisor bonus system could encourage
a supervisor to discriminate against an employee who files for
workers’ compensation benefits, even if . . . the bonus system
helps reduce workplace injuries”).
In sum, Anderson presented sufficient evidence to establish
all three elements of a prima facie workers’ compensation
retaliation case, including evidence that her workers’
compensation filing was a significant factor in CCC’s decision
to fire her.
II.
Both parties appear to concede, and the majority assumes,
that the requirements of section 77-1-4.8 apply “when, in
response to an employee’s prima facie case, the employer asserts
that an employee cannot safely perform her job as a legitimate,
non-discriminatory reason for termination.” Ante, at 16. I
agree. See Ranger Fuel Corp. v. W. Va. Human Rights Comm’n, 376
S.E.2d 154, 160 (W. Va. 1988) (“The fact that an applicant’s
handicap creates a reasonable probability of a materially
enhanced risk of substantial harm to the handicapped person or
others is a legitimate, nondiscriminatory reason [for an adverse
25
employment action].”); Syl. Pt. 3, Davidson v. Shoney’s Big Boy
Rest., 380 S.E.2d 232, 233 (W. Va. 1989) (“[T]o satisfy the
standard of a serious threat to one’s health or safety, the
employer must establish that it relied upon competent medical
advice that there exists a reasonably probable risk of serious
harm.”). In short, it is quite clear that CCC was required to
meet the standards of section 77-1-4.8 for its termination
decision to be “legitimate” and “non-discriminatory.”
Those standards are detailed and rigorous. See ante, at
15–16. And at summary judgment this Court is tasked with
determining, inter alia, if there is any “genuine dispute,” Fed.
R. Civ. P. 56(a), as to whether CCC’s termination decision was
“based on a reasonable medical judgement,” one founded “on the
most current medical knowledge and/or on the best available
objective evidence.” W. Va. Code R. § 77-1-4.8.
Significant to my disagreement with the majority view, the
dispositive question is not, as the majority’s discussion
suggests, whether CCC “utilized doctors who had the ability to
conduct the medical testing specific to Anderson’s condition and
who were experienced in providing occupational medical
evaluations.” Ante, at 18. Rather, by its plain terms,
section 77-1-4.8 requires that the assessment be “reasonable”
26
and based on “the most current medical knowledge” or the “best
available objective evidence.” 2
Nor is the dispositive question, as the majority’s
discussion elsewhere suggests, whether CCC complied with the
terms of its collective bargaining agreement. See ante, at 14,
17. That is not what section 77-1-4.8 says. Indeed, on more
than one occasion, West Virginia’s highest court has recognized
that a facially neutral company policy can be exploited to
achieve a discriminatory objective. Skaggs v. E. Associated
Coal Corp., 569 S.E.2d 769, 777 (W. Va. 2002) (noting that “the
employer’s use of a system of preferred providers for
rehabilitation services . . . could be interpreted as a pretext
for a scheme to terminate employees who had received workers’
compensation benefits”); Wriston v. Raleigh Cty. Emergency
Servs. Auth., 518 S.E.2d 650, 659 (W. Va. 1999) (“[W]hile an
employment policy may be facially neutral, it cannot be applied
in a manner that nullifies or trumps the protective requirements
of [a statutory prohibition on discriminatory practices].”).
2
The majority opinion posits that “and/or” should be read
simply as a disjunctive “or.” Ante, at 18 n.6. I will not
quibble with the majority’s interpretation, because in this
case, there is a genuine dispute as to whether the judgment in
question was based on either the most current medical knowledge
or the best available objective evidence.
27
Section 77-1-4.8 did not require that CCC get the approval
of a specialist or that it comply with the terms of its own
policies. It did require that CCC’s termination decision be
“based on a reasonable medical judgement,” one founded “on the
most current medical knowledge and/or on the best available
objective evidence.” W. Va. Code R. § 77-1-4.8. Here, there is
clearly at least a genuine dispute as to whether those standards
were met.
In countering the initial medical evaluation by Anderson’s
treating orthopedic surgeon, who cleared Anderson for work, 3 CCC
relied upon the evaluations of three doctors, none of whom had
any special expertise in osteoporosis, and all of whom relied
heavily on a single study that they appear by their own
3
Anderson has presented the evaluations of two doctors with
specialized expertise in osteoporosis concurring with Dr.
McKinley’s initial clearance of Anderson for work. One of these
doctors—Dr. Bellantoni—has “23 years of experience as a faculty
physician at Johns Hopkins University School of Medicine with an
expertise in the evaluation and treatment of metabolic bone
disorders including osteoporosis.” J.A. 703. This expert
evidence is not necessary to or sufficient for my analysis, and
I do not intend to convert every “direct threat” case into a
battle of the experts. Nevertheless, Anderson’s expert evidence
is at least relevant in determining whether there is a genuine
dispute regarding whether the medical judgment CCC relied upon
in terminating Anderson complied with the standards outlined in
section 77-1-4.8, including whether that judgment was
“reasonable.” See Echazabal v. Chevron USA, Inc., 336 F.3d
1023, 1033 (9th Cir. 2003) (explaining the relevance of a
plaintiff’s expert evidence in an analogous federal suit,
brought under the Americans with Disabilities Act of 1990).
28
admission either to have misunderstood or to have never read in
the first place. To illustrate why there is at the very least a
genuine dispute as to whether these evaluations were based on
“the most current medical knowledge” or the “best available
objective evidence,” W. Va. Code R. § 77-1-4.8, I briefly
discuss each.
Dr. Steinman was the first CCC doctor to examine Anderson.
His conclusion that Anderson’s osteoporosis prevented her return
to work was discussed in a single paragraph, and his discussion
of Anderson’s fracture risk relied upon a single study peddling
a particular fracture risk score (“FRISK”) for osteoporosis
patients (the “FRISK study”). Dr. Steinman’s deposition
testimony suggests that a Google search led him to this study. 4
In applying the FRISK study to Anderson, Dr. Steinman self-
admittedly committed several errors. First, although Dr.
4 “Q. Well, you could have gone on – back in 2010, you could have
gone on medical journal databases and done some additional
research, couldn’t you?
A. What I did, I thought, was the – everything that I could do.
Q. Sir, couldn’t you have gone on PubMed – PubMed, P-U-B,
capital P, M-E-D, capital M?
A. It’s my understanding that what I normally do in looking for
things is actually bigger than PubMed –
Q. Where did you normally go – you go?
A. – because I – I get things that are above and beyond PubMed.
Q. Where did you go? Where did you do the research where you
came up with this article as the state of the art?
A. Just do database –
Q. What database? Google? You just Google?
A. Google, Bing, anything that’s available.” J.A. 578.
29
Steinman intended to cite the study that developed the FRISK
score, he instead cited a letter to the editor critiquing that
study on the grounds that it over-predicted fracture risk.
Second, while Dr. Steinman previously interpreted the FRISK
study to mean that Anderson had at least a fifty-percent
probability of a fracture within two years, he now concedes
gross error: It turns out that figure was only ten percent.
Finally, it appears that the FRISK study’s findings were at
best marginally relevant to Anderson. The study was based on a
cohort of subjects significantly older and less physically
active than Anderson, facts Dr. Steinman was unaware of at the
time, and the fracture risk score the study developed was
intended for use in the context of making treatment decisions,
not fitness-for-work evaluations.
CCC also relied upon Dr. Ripepi’s “chart review” of Dr.
Steinman’s report, which was limited to examining that report
and the four corners of Anderson’s medical records. Dr. Ripepi
noted that he agreed completely with Dr. Steinman’s conclusions,
and specifically that Anderson would be at a high risk of repeat
fracture, a conclusion Dr. Steinman had based primarily on his
self-admittedly flawed understanding of the FRISK study.
However, in his deposition, Dr. Ripepi admitted that he never
30
read that study. 5 Rather, he assumed Dr. Steinman was “familiar
with that literature”: in Dr. Ripepi’s words, it “is a pretty
good assumption, that if you’re going to quote something, then
you’re pretty darn sure of it.” J.A. 780. Here, that was not a
good assumption to make.
Finally, CCC relied upon Dr. Sethi’s evaluation of
Anderson, which in turn relied upon the previous evaluations by
Drs. Steinman and Ripepi. In his deposition, Dr. Sethi also
admitted that he never read the FRISK study. 6 Indeed, he too
5 “Q. Did you review the article – literature [Dr. Steinman]
relied on at the time you rendered your opinion that you agreed
with him?
A. No. I agreed with his report.
Q. Did you review the literature that he relied on? . . .
A. No.
Q. Have you ever reviewed the literature he relied on?
A. No.” J.A. 772.
6 “Q. Doctor, when you said the fracture risk was developed by
Dr. J. Gorricho, published by the Journal of Radiologists on
October 1, 2007, before you put that in your report, did you
check out and see if that was true?
A. Doctor – I am simply – I am reporting in the context of a
review of the medical records. I’m not treating physician. I’m
not criticizing. I do not need to look up that. I am simply
going by what is in the record and simply quoting another
person’s – what they said. And the review of the record is only
a review of the records. It is –
Q. Did you check – I’m sorry.
A. I don’t know – I do not need to check anything.
Q. But my question is did you check and see if what Dr. Steinman
said about the Gorricho fracture risk was true? Did you check
and see if it was true?
A. I do not need to check it because my role is only reviewing
the record and quoting what is in the record.
(Continued)
31
erroneously cited the letter to the editor critiquing the study
he meant to cite. Although Dr. Sethi reviewed Dr. McKinley’s
evaluation of Anderson, clearing her for work, he discredited
that evaluation on the grounds—now somewhat ironic—that Dr.
McKinley did not base her conclusion on specific medical
studies. Much of Dr. Sethi’s analysis had nothing to do with
Anderson specifically. The rest was based on the errant
assessments of fracture risk made by Drs. Steinman and Ripepi,
or what Dr. Sethi later admitted to relying on: “common sense.”
J.A. 823. Although Dr. Sethi attached to his evaluation a copy
of one medical article on osteoporosis and a partial copy of
another, these studies are nowhere referenced or discussed in
his evaluation.
In sum, CCC’s doctors relied on an inapplicable study and
on each others’ faulty evaluations to conclude that Anderson’s
osteoporosis precluded her from returning to work. I simply
cannot join the majority opinion in concluding that there exists
no genuine dispute as to whether those troubled evaluations were
“reasonable” and based on “the most current medical knowledge”
Q. So the answer then is, no, you did not check it?
A. I do not need to check it.
Q. And so you did not check it?
A. I did not.” J.A. 810–11.
32
or the “best available objective evidence.” W. Va. Code R.
§ 77-1-4.8.
III.
In conclusion, in my view, Anderson has made out a prima
facie case of disability discrimination and workers’
compensation retaliation. Additionally, material issues of fact
remain regarding whether CCC has met West Virginia’s mandatory
standards for what constitutes a legitimate, non-discriminatory
basis for termination under these circumstances. Where an
evaluating doctor has himself conceded that his methodology was
erroneous, I cannot conclude that it is beyond dispute that such
a judgment was “reasonable” and based on “the most current
medical knowledge” or “the best objective evidence.” Therefore,
summary judgment should have been denied. Accordingly, I
respectfully dissent.
33