United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS'
MOTION FOR PARTIAL SUMMARY JUDGMENT
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
plaintiffs, Thomas Marosi and Donna Marosi (“the
plaintiffs”), filed an amended complaint in this Court
against the defendants, American Electric Power Service
Corporation (“AEP”), Appalachian Power Company
(“APC”), and Kentucky Power Company
(“KPC”). ECF No. 34. The plaintiffs allege that
Mr. Marosi was an employee, for AEP, where he received
various promotions, including a promotion to the Senior
Energy Production Superintendent of the Mitchell Power Plant
in Moundsville, West Virginia. Id. at 1-5. The
plaintiffs indicate that on November 6, 2017, Mr. Marosi had
an unexpected stroke while driving. Id. at 5.
Plaintiffs state that despite a full medical release and
ability to do the job, the defendants began to relieve Mr.
Marosi of his prior responsibilities, instructed him not to
attend yearly union negotiations, and informed employees that
they were to report to another supervisor. Id. at 6.
Plaintiffs then allege that on September 12, 2018, after Mr.
Marosi was fired, he was replaced by a “substantially
younger” employee. Id. at 8. Plaintiffs
indicate that Mr. Marosi did not sign a release of all claims
agreement. Id. at 9. Moreover, plaintiffs contend
that Mr. Marosi's allegedly unlawful termination
tarnished his reputation as a mechanical engineer, that Mr.
Marosi has suffered damages including, but not limited to,
lost wages, benefits, and diminished capacity to earn the
same in the future, and that Mr. Marosi has suffered great
emotional and mental distress. Id. Count I of the
plaintiffs' complaint alleges a violation of the West
Virginia Human Rights Act (“WVHRA”) due to
handicap discrimination. Id. at 10. Count II alleges
a violation of the WVHRA due to age discrimination.
Id. at 11. Count III alleges a violation of the
WVHRA due to failure to reasonably accommodate Mr.
Marosi's perceived disability. Id. at 13. Count
IV alleges intentional infliction of emotional distress.
Id. at 13. Lastly, Count V alleges loss of
consortium. Id. at 14.
10, 2019, the plaintiffs filed a motion for partial summary
judgment. ECF No. 29. In support of their motion, plaintiffs
contend that as a matter of law, they have established a
prima facie case of age discrimination under the
WVHRA, specifically Count II of the plaintiffs'
complaint. Id. at 4. First, the plaintiffs state
that there is no dispute that Mr. Marosi was fifty-six years
of age when he was terminated; and therefore, he was in a
protected class and faced an adverse employment decision.
Id. at 5. Second, plaintiffs state that the
defendants replaced him with a “substantially
younger” employee. Id.
defendants then filed a response in opposition to
plaintiffs' motion for partial summary judgment. ECF No.
35. In their response, the defendants first assert that
plaintiffs' motion for partial summary judgment is
premature because discovery has not been completed.
Id. at 3-4. Second, the defendants contend that the
plaintiffs have not established a prima facie case
of age discrimination because Mr. Marosi has not demonstrated
that but for his protected status, he would not have been
terminated. Id. at 4. Specifically, the defendants
state that there was no replacement when Mr. Marosi was
terminated and that his replacement was not chosen until more
than two months after his termination. Id. at 6.
plaintiffs then filed a reply in support of their motion for
partial summary judgment. ECF No. 37. In their reply brief,
they first assert that their motion is not premature since
there is no genuine issue as to any material fact.
Id. at 1. Second, the plaintiffs state that they
have established a prima facie case of age
discrimination since they have presented evidence that Mr.
Marosi was replaced by a “substantially younger”
employee. Id. at 3.
Federal Rule of Civil Procedure 56, this Court must grant a
party's motion for summary judgment if “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). A fact is “material” if it might affect
the outcome of the case. Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986). A dispute of material fact is
“genuine” if the evidence “is such that a
reasonable jury could return a verdict for the non-moving
party.” Id. If the nonmoving party
“fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial, ” summary judgment must be granted against the
plaintiff. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the
party opposing the motion. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
See Celotex, 477 U.S. at 322-23. “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm'rs, 945 F.2d
716, 718 (4th Cir. 1991), cert. denied, 502 U.S.
1095 (1992). However, “a party opposing a properly
supported motion for summary judgment may not rest upon the
mere allegations or denials of his pleading, but . . . must
set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).
WVHRA states, in pertinent part, that “[i]t shall be an
unlawful discriminatory practice . . . [f]or any employer to
discriminate against an individual with respect to
compensation, hire, tenure, terms, conditions or privileges
of employment.” W.Va. Code § 5-11-9(1). “The
term ‘discriminate' or ‘discrimination'
means to exclude from, or fail or refuse to extend to, a
person equal opportunities because of . . . age . . . and
includes to separate or segregate.” W.Va. Code §
5-11-3(h). The Act further defines the term “age”
to mean “age forty or above[.]” W.Va. Code §
5-11-3(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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).”
Bartos v. PDC Energy, Inc., 275 F.Supp.3d 755, 760
(N.D. W.Va. 2017).
establish a prima facie case of employment
discrimination under the WVHRA, the plaintiff must show:
“(1) [t]hat the plaintiff is a member of a protected
class[;] (2) [t]hat the employer made an adverse decision
concerning the plaintiff[;] and (3) [b]ut for the
plaintiff's protected status, the adverse decision would
not have been made. Syl. pt. 3, Conaway v. Eastern
Associated Coal Corp., 178 W.Va. 164, 166 (1986).
respect to the third element, the 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. As examples, the plaintiff could present evidence
that the employer admitted to such discrimination,
“unequal or disparate treatment between members of the
protected class and others by the elimination of the apparent
legitimate reasons for the decision, or statistics in a large
operation which show 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, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), a
plaintiff . . . pursuing an age discrimination claim under
the [WVHRA] . . . may satisfy the third prong of the prima
facie age discrimination test contained in . . .
[Conaway], by presenting evidence that [he] was
replaced by a ‘substantially younger'
employee.” Syl. pt. 4, Knotts v. Grafton City
Hosp., 237 W.Va. 169, 170 (2016). The plaintiff can also
present “evidence that a ‘substantially