United States District Court, S.D. West Virginia, Charleston
W. JEFFREY BOSTIC, Plaintiff,
DRUMMOND LTD., Defendant.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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
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.
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
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
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.
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.
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.
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.
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).
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.
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).
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
Application of the Burden Shifting Test
Prima Facie Test
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
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).
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
recent decision, the West Virginia Supreme Court of Appeals
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).
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