United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING IN PART THE
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING THE
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
pending before the Court are the parties' cross motions
for summary judgment. Specifically, on May 24, 2017, Betty
Darlene Bartos (“Plaintiff”) filed her Motion for
Partial Summary Judgment. ECF No. 37. PDC Energy, Inc.
(“Defendant”), filed its Motion for Summary
Judgment on May 26, 2017. ECF No. 39. The Defendant filed a
Response on June 14, 2017. ECF No. 41. The Plaintiff filed
her Response on June 16, 2017. ECF No. 42. Neither party
filed a reply. As more fully explained below, the
Defendant's Motion for Summary Judgment is granted in
part and denied in part, and the Plaintiff's Motion for
Partial Summary Judgement is denied.
action resulted from Defendant-employer's termination of
the Plaintiff's employment. In her complaint, the
Plaintiff alleges age discrimination; retaliation and
discrimination in violation of the family medical leave act
(“FMLA”); discrimination in violation of the West
Virginia Human Rights Act (“WVHRA”) and
retaliatory discharge in violation of public policy. The
Plaintiff filed her complaint in the Circuit Court of
Harrison County, but on August 4, 2014, the Defendant removed
the case. This Court has jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1367 and 1441.
Plaintiff was employed by the Defendant from 1985 until 2014,
spending most of her time there as a supervisor of revenue in
the accounts receivable department of the company's
Bridgeport, West Virginia, office. In 2013, the Defendant
began a planned divestiture of certain assets, known within
the company as Project Small Ball, and as a result, it
determined that a reduction in force was necessary. Fourteen
employees, including the Plaintiff, were terminated. Twelve
of the fourteen terminated employees were over the age of
forty, even though the Defendant's representatives from
its human resources department stated the age span of its
employees is balanced between younger and older
Standard of Review
to Rule 56, Summary judgment is appropriate when there is no
genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue exists “if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Thus, the Court must
conduct “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
party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is,
once the movant has met its burden to show an absence of
material fact, the party opposing summary judgment must then
come forward with affidavits or other evidence demonstrating
there is indeed a genuine issue for trial. Fed.R.Civ.P.
56(c); Celotex, 477 U.S. at 323-35;
Anderson, 477 U.S. at 248. “Conclusory or
speculative allegations do not suffice, nor does a mere
scintilla of evidence in support of [the nonmoving
party's] case.” Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002) (quotations
omitted). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249 (citations
WVHRA prohibits employers from discriminating against any
individual with regard to “compensation, hire, tenure,
terms, conditions or privileges of employment.” W..Va.
Code § 5-11-9(c). Discrimination “means to exclude
from, or fail or refuse to extend to, a person equal
opportunities because of . . . age . . ., ” which is
defined as “the age of forty or above.” W.Va.
Code §§ 5-11-3(h), (k). Discrimination claims
brought under the WVHRA are governed by the burden-shifting
framework of Title VII of the Civil Rights Act of 1964, laid
out in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973). See Shepherdstown Volunteer Fire
Dep't v. State ex rel. State of W.Va. Human Rights
Comm'n, 309 S.E.2d 342, 352 ( W.Va. 1983)
(reaffirming use of the McDonnell Douglas standard
in West Virginia).
plaintiff must establish the following to establish a prima
facie case of unlawful employment discrimination: (1) she is
a member of a protected class; (2) the employer made an
adverse employment decision affecting her; and (3) but for
her protected status, the employer would not have made the
adverse decision. Syl. pt. 3, Conaway v. E. Associated
Coal Corp., 358 S.E.2d 423, 429 ( W.Va. 1986). To prove
the third element of the prima facie case, a plaintiff must
“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.” Id. at
429-30. The plaintiff can establish this link by
demonstrating inter alia unequal or disparate
treatment between members of the protected class and others;
the elimination of legitimate reasons for the decision or
statistics showing that members of the protected class
received substantially worse treatment than others.
Id. at 430.
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
[WVHRA], may satisfy the third prong of [Conaway] by
presenting evidence that [she] was replaced by a
‘substantially younger' employee.” Syl. pt. 4
Knotts v. Grafton City Hosp., 786 S.E.2d 188 ( W.Va.
2016). Alternatively, a plaintiff may also satisfy the third
prong of Conaway “by presenting evidence that
a ‘substantially younger' employee, who engaged in
the same or similar conduct for which the plaintiff faced an
adverse employment decision, received more favorable
treatment.” Id. at Syl. pt. 5.
“[t]he ‘but for' test of discriminatory
motive in [Conaway] is merely a threshold inquiry,
requiring only that a plaintiff show an inference of
discrimination.” Syl. pt. 2, Barefoot v. Sundale
Nursing Home, 457 S.E.2d 152, 156 ( W.Va. 1995).
establishing a prima facie case, the burden shifts to the
employer to provide a non-discriminatory reason for the
plaintiff's dismissal. Conaway, 358 S.E.2d 423,
430. “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. After the employer explains its decision, the
employee may rebut the employer's legitimate,
non-discriminatory reason. Id. The burden then
shifts back to the plaintiff to prove that the facially
legitimate reason given by the employer for the employment
decision was merely pretext for a discriminatory motive.
Kanawha Valley Regional Transp. Auth. v. West Virginia
Human Rights Comm'n, 383 S.E.2d 857 ( W.Va. 1989),
the Supreme Court of Appeals of West Virginia
(“SCAWV”) first considered disparate-treatment
age discrimination against the backdrop of an employer's
economically-driven reduction-in-force. Id. at 859.
The SCAWV relied upon the federal circuit courts to
articulate the appropriate approach for West Virginia courts
in this context. Notably, it explained that “[i]n a
reduction-in-force case, what creates the presumption of
discrimination is not the discharge itself, but rather the
discharge coupled with the retention of younger
employees.” Id. (quoting Thornborough v.
Columbus & Greenville R.R. Co., 760 F.2d 633, 644
(5th Cir. 1985). In these cases, it is expected that
qualified employees will be terminated, and therefore,
“the fact that qualified, older employees are laid off
is not inherently suspicious and does not in itself warrant
shifting the burden of production to the employer to justify
his actions.” Id. at 860. “Instead, what
is suspicious in reduction-in-force cases is that the
employer fired a qualified, older employee but retained
younger ones.” Id. Thus, “[t]he question
in this context is not why members of the group were
discharged or whether they were meeting performance
expectations, but whether the particular employees were
selected for inclusion on the list for discharge because of
their age.” Mitchell v. Data General Corp., 12
F.3d 1310, 1315 (4th Cir. 1993).
SCAWV laid out a basic formula utilized across various
federal circuit courtsfor use in reduction-in-force age
discrimination cases: “(1) that the claimant was a
member of the protected class (at least forty years of age);
(2) that a negative action was taken (that she was fired);
(3) she was qualified; and (4) that others not in the
protected class were treated more favorably.”
Kanawha Valley, 383 S.E.2d at 860 (internal
citations omitted). The SCAWV also restated the
“general test of a prima facie case of
disparate treatment employment discrimination” that it
originally pronounced in Conoway. See Syl.
pt. 3, supra. However, the SCAWV cautioned that its