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Bostic v. Drummond Ltd.

United States District Court, S.D. West Virginia, Charleston

July 13, 2017

DRUMMOND LTD., Defendant.



         Pending is the motion for summary judgment filed on March 14, 2017, by defendant Drummond Ltd. (“Drummond”). This case presents a wrongful discharge claim based on age brought by a former employee under the West Virginia Human Rights Act.

         I. Background

         Drummond is a limited partnership organized under the laws of Alabama with its principal place of business in Birmingham, Alabama, that conducts mining operations in Colombia. See Jones Affidavit (ECF Doc. No. 3-1) at ¶ 2. Plaintiff W. Jeffrey Bostic (“Bostic”) is a resident of West Virginia and was formerly employed by Drummond as the superintendent of its Colombian highwall mining operations.

         Bostic was hired by Drummond's President and CEO, Mike Tracy, around March 11, 2013, to be the superintendent of those operations. See Bostic Dep. (Exhibit A to Def.'s Mot. for Summary Judgment; Exhibit 1 to Plaintiff's Resp.) at 75. After working for several months at Drummond's headquarters in Alabama developing plans for the mining operations, Bostic was sent to the mine site in Colombia. Id. at 67-71.

         Bostic's only supervisor in Colombia was Ron Damron, whom Bostic did not know prior to being hired by Drummond. Id. at 65, 94; Damron Dep. (Exhibit B to Def.'s Mot. for Summary Judgment; Exhibit 3 to Pl.'s Resp.) at 20. In Colombia, Bostic worked 13-16 hour days for 14 days in a row, after which time he would return to his home in Alum Creek, West Virginia for a 7-day break. Bostic Dep. at 5, 88. While Bostic was off duty or home for his 7-day break, Sherman Mullins, who still works for Drummond in the same position, was in charge of the highwall mining crew. Bostic Dep. at 114-15; Mullins Dep. (Exhibit D to Def.'s Mot. for Summary Judgment; Exhibit 2 to Pl.'s Resp.) at 13-14.

         According to Mullins, Bostic never did anything that was unsafe or that would put anyone's safety in jeopardy and he did not know of any performance issues relating to Bostic. Mullins Dep. at 17, 29-30.

         In 2014, Damron wanted to hire an assistant superintendent who would be in charge when Bostic was home on his 7-day break. See Bostic Dep. at 94-95. Bostic interviewed 44-year-old Joe Scott of Boone County, West Virginia for this position. After telling Damron that Scott would be a good fit, he was hired. Id. at 95-96.

         After Bostic spent 3 to 6 months training Scott in Colombia, Damron called then 59 year-old Bostic on October 21, 2014, while on break in West Virginia and fired him. See Damron Dep. at 44-45; Mullins Dep. at 18-19. Damron made the decision to terminate Bostic on his own. Damron Dep. at 34. According to Mullins, after Bostic was fired, Scott immediately assumed Bostic's responsibilities at Damron's direction. Mullins Dep. at 18-19. Mullins, who like Scott was 44 years of age, and the other Americans working at Drummond's Colombia site found the firing to be unusual. Mullins Dep. at 45.

         Although Bostic states that he asked Damron multiple times why he was fired, Damron failed to give him a reason. Bostic Dep. at 37. Drummond's internal termination form additionally does not state the reason for his termination. See Exhibit 5 to Pl.'s Resp.

         Bostic contends that he performed his duties admirably with Drummond and was never disciplined or criticized in any way. Bostic Dep. at 106, 158-59. Despite this, Bostic alleges that he was fired at age 59 due to his age, and replaced with Scott, a much younger worker, in violation of the West Virginia Human Rights Act, W.Va. Code § 5-11-1, et seq.

         In its motion for summary judgment, Drummond asserts that the “last straw” that led to Bostic's termination occurred on the night of October 14, 2014. That night, Bostic was off duty so that Mullins was in charge of the mining operations. Pl.'s Resp. at 7; Bostic Dep. at 123-24. Bostic received a call that the operator failed to put the pins into the beams, and the beams were pushed 20 feet under the mountain before the mistake was realized. Pl.'s Resp. at 7; Bostic Dep. at 123-24. Without the pins in place, the system could not properly retract, meaning the miner head, which cuts the coal, would be stuck in the mountain. Pl.'s Resp. at 7; Bostic Dep. at 123-24; Def.'s Mem. at 8. Thus, it was imperative to formulate a plan to place the pins in the beams.

         Bostic came to the site to help Mullins brainstorm ideas to solve the problem. Pl.'s Resp. at 7; Bostic Dep. at 123-24; Mullins Dep. at 37. Bostic and Mullins came up with several options, and called Damron to discuss them. Pl.'s Resp. at 7-8; Bostic Dep. at 124-26; Mullins Dep. at 37; Damron Dep. at 39. One of the options involved taking the augers out of one of the beams so that Mullins could crawl through the beam and manually put the pins in place. Pl.'s Resp. at 7-8; Bostic Dep. at 124-26; Mullins Dep. at 36-37. Because this plan would require putting Mullins inside the mountain under the unsupported roof, Damron rejected it. Pl.'s Resp. at 8; Bostic Depo at 125; Mullins Dep. at 38. Damron regarded the rejected plan as the “last straw” as to Bostic. Def.'s Mem. at 9, Damron Dep. at 36-37. Mullins, Bostic and Damron came up with an alternative plan and after a few hours, successfully put a single pin in place, which was sufficient to fix the problem. Pl.'s Resp. at 8; Bostic Depo at 125-27.

         II. Governing 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). “Material” facts are those necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (same). A “genuine” dispute of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable fact-finder could return a verdict for the non-moving party. Anderson, 477 U.S. at 248.

         The moving party has the initial burden of showing --“that is, pointing out to the district court -- that there is an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party satisfies this burden, then the non-moving party must set forth specific facts, admissible in evidence, that demonstrate the existence of a genuine issue of material fact for trial. See Id. at 322-23; Fed.R.Civ.P. 56(c), (e).

         Inferences that are “drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find for the non-moving party. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Conversely, summary judgment is inappropriate if the evidence is sufficient for a reasonable fact-finder to return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248.

         III. Discussion

         1. WVHRA Requirements

         In order to establish a prima facie case of age discrimination, Bostic must prove that (1) he is a member of a protected classification; (2) Drummond made anadverse decision concerning his employment; and (3) but for hisprotected status, the adverse decision would not have been made. Syl. Pt. 5, Waddell v. John Q. Sammons Hotel, Inc., 212 W.Va. 402, 404, 572 S.E.2d 925, 927 (2002).

         “After the complainant makes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the negative action taken against the complainant.” Kanawha Valley Regional Transp. Auth. v. W.Va. Human Rights Comm'n, 181 W.Va. 675, 677, 383 S.E.2d 857, 859 (1989). “The complainant then must prove that the employer's reason was pretextual.” Id. “[O]nce the employer meets [its] burden of production, the presumption raised by the prima facie case is rebutted, and the inquiry proceeds to a new level of specificity. . . . [T]he onus is once again on the employee to prove that the proffered legitimate reason is a mere pretext rather than the true reason for the challenged employment action.” Scaggs v. Elk Run Coal Co., 198 W.Va. 51, 72, 479 S.E.2d 561, 582 (1996) (internal citations and quotations omitted).

         B. Application of the Burden Shifting Test

         1. Prima Facie Test

         The first two elements of Bostic's prima facie case are easily satisfied. The protected classification includes individuals over 40 years of age, W.Va. Code § 5-11-3(k), and at the time of his termination, Bostic was 59. With respect to the second element, there is no dispute that Bostic's termination constituted an adverse employment decision.

         Only the third element is at issue. As Bostic notes, in order to meet this element, a plaintiff need only show “some evidence which would sufficiently link the employer's decision and the plaintiff's status as a member of a protected class so as to give rise to an inference that the employment decision was based on an illegal discriminatory criterion.” Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 484, 457 S.E.2d 152, 161 (1995).

         In moving for summary judgment, Drummond contends that “there is simply no basis to support an inference that [Bostic] was terminated as a result of his age.” Def.'s Mem. at 16. The court now assesses that contention.

         In a recent decision, the West Virginia Supreme Court of Appeals held that,

Pursuant to the “substantially younger” rule contained in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, (1996), a plaintiff who is age forty or older, pursuing an age discrimination claim under the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq., may satisfy the third prong of the prima facie age discrimination test contained in Syllabus Point 3 of Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986) by presenting evidence that he/she was replaced by a “substantially younger employee.”

Syl. Pt. 4, Knotts v. Grafton City Hosp., 237 W.Va. 169, 786 S.E.2d 188 (2016).

         The West Virginia Supreme Court of Appeals additionally held that a plaintiff may also satisfy the third prong of the prima facie age discrimination test by presenting evidence that “‘a substantially younger' employee” - such as Sherman Mullins - “who engaged in the same or similar conduct for which the plaintiff faced an adverse employment ...

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