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Bartos v. PDC Energy, Inc.

United States District Court, N.D. West Virginia

July 28, 2017

BETTY DARLENE BARTOS, Plaintiff,
v.
PDC ENERGY, INC., Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          GINA M. GROH CHIEF UNITED STATES DISTRICT JUDGE

         Currently 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.

         I. Introduction

         This 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.

         II. Background

         The 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 individuals.[1]

         III. Standard of Review

         Pursuant 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 250.

         The 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 omitted).

         IV. Applicable Law

         The 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).

         A 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.

         “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 [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.

         However, “[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).

         Upon 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.

         In 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).

         The SCAWV laid out a basic formula utilized across various federal circuit courts[2]for 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 “formulation ...


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