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Marosi v. American Electric Power Service Corp.

United States District Court, N.D. West Virginia

August 12, 2019

THOMAS MAROSI and DONNA MAROSI, husband and wife, Plaintiffs,
AMERICAN ELECTRIC POWER SERVICE CORPORATION d/b/a AMERICAN ELECTRIC POWER, a foreign corporation, APPALACHIAN POWER COMPANY a foreign corporation and KENTUCKY POWER COMPANY, a foreign corporation, Defendants.



         I. Background

         The 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.[1] 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.

         On May 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.

         The 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.

         The 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.

         II. Applicable Law

         Under 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).

         The 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).

         III. Discussion

         The 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).

         To 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).

         With 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.

         “Pursuant 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 younger' ...

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