Joyce Anderson v. Consolidation Coal Company

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2048

JOYCE ANDERSON,

Plaintiff – Appellant,

v.

CONSOLIDATION COAL COMPANY,

Defendant – Appellee,

and

CONSOL ENERGY, INC.,

Defendant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp,
Jr., Senior District Judge. (1:11-cv-00138-FPS-JSK)

Argued: October 29, 2015 Decided: January 21, 2016

Before WILKINSON, SHEDD, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Wilkinson joined. Judge Wynn wrote a
dissenting opinion.

ARGUED: Allan Norman Karlin, ALLAN N. KARLIN & ASSOCIATES,
Morgantown, West Virginia, for Appellant. Larry Joseph Rector,
STEPTOE & JOHNSON, PLLC, Bridgeport, West Virginia, for
Appellee. ON BRIEF: Jane E. Peak, ALLAN N. KARLIN & ASSOCIATES,
Morgantown, West Virginia, for Appellant. Denielle M. Stritch,
STEPTOE & JOHNSON, PLLC, Morgantown, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
SHEDD, Circuit Judge:

While working in a coal mine operated by Consolidation Coal

Company (“CCC”), Joyce Anderson fell and suffered multiple bone

fractures. Before her fall, Anderson had been diagnosed as

having osteoporosis. After her recovery, Anderson attempted to

return to her former job. Presented with conflicting medical

evidence about Anderson’s post-injury ability to work safely in

the mine, CCC implemented a medical-review process dictated by

its collective bargaining agreement (“CBA”) with her union.

Because two of the three doctors selected under the CBA process

opined against Anderson’s return to underground work, CCC

prohibited her from returning to her former position. Anderson

filed an unsuccessful labor grievance, and when CCC was unable

to find a suitable alternative position for her, it terminated

her employment. Anderson then filed this lawsuit contending

(among other things) that CCC violated West Virginia law by

retaliating against her for filing a workers’ compensation claim

and by discriminating against her based on the fact that she has

osteoporosis. The district court granted CCC’s summary judgment

motion on these claims, and Anderson now appeals. For the

following reasons, we affirm.

I

Federal Civil Procedure Rule 56(a) provides that the

district court “shall grant summary judgment if the movant shows

3
that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” We review a

summary judgment order de novo. Lee Graham Shopping Ctr., LLC v.

Estate of Kirsch, 777 F.3d 678, 681 (4th Cir. 2015).

West Virginia Code § 23-5A-1 provides that “[n]o employer

shall discriminate in any manner against any of his present or

former employees because of such present or former employee’s

receipt of or attempt to receive” workers’ compensation

benefits. West Virginia Code § 5-11-9(1) provides that it is

unlawful “[f]or any employer to discriminate against an

individual with respect to compensation, hire, tenure, terms,

conditions or privileges of employment if the individual is able

and competent to perform the services required even if such

individual is blind or disabled.”

For claims under either statute, the employee bears the

ultimate burden of proving the employer’s illegal motive. See

CSX Transp., Inc. v. Smith, 729 S.E.2d 151, 169 (W.Va. 2012)

(retaliation); Hanlon v. Chambers, 464 S.E.2d 741, 748 (W.Va.

1995) (discrimination). Where, as here, there is no direct

evidence of retaliation or discrimination, the general scheme of

proof for both claims is substantially the same: (1) the

employee bears the burden of presenting a prima facie case; (2)

if she presents a prima facie case, the burden shifts to the

employer to present a legitimate, nondiscriminatory reason for

4
her discharge; and (3) if the employer presents such a reason,

the employee must establish that the proffered reason is

pretextual. See Powell v. Wyoming Cablevision, Inc., 403 S.E.2d

717, 721-22 (W.Va. 1991) (retaliation); Conaway v. Eastern

Assoc. Coal Corp., 358 S.E.2d 423, 429-30 (W.Va. 1986)

(discrimination).

II

The following material facts are not disputed. Anderson is

a long-time CCC employee who was diagnosed with osteoporosis in

2005. In November 2009, while Anderson was working in the

Loveridge Mine, she fell and fractured her elbow and pelvis.

Anderson was treated by Dr. Nancy McKinley, an orthopedic

surgeon and also underwent physical therapy. Anderson filed a

workers’ compensation claim for this injury and received

workers’ compensation benefits.

Several months later, Dr. McKinley released Anderson to

return to work. Before allowing her to return, CCC (through its

workers’ compensation administrator) obtained a medical

examination, which included a bone density scan. Dr. Dean

Steinman performed this examination and found that the scan

results, accompanied by other risk factors and the severity of

her injuries from her relatively minor 2009 fall, presented too

great a risk of re-fracture to return her to work in the coal

mine. When Dr. Steinman’s report was presented to Dr. McKinley

5
for review, Dr. McKinley noted that although “common sense” may

suggest that Anderson not return to work in the mine, J.A. 1262,

she did not believe that Anderson was precluded from doing so.

Faced with this conflict of opinions, CCC approved a record

review by Dr. Vincent Ripepi. Following his review, Dr. Ripepi

agreed with Dr. Steinman.

Anderson disagreed with Dr. Steinman’s and Dr. Ripepi’s

medical opinions. CCC therefore implemented Article III(j) of

the CBA. In pertinent part, Article III(j) provides that “once

employed, an Employee cannot be terminated or refused . . .

recall from sick or injured status for medical reasons over his

objection without the concurrence of a majority of a group

composed of an Employer-approved physician, an Employee-approved

physician, and a physician agreed to by the Employer and the

Employee, that there has been a deterioration in physical

condition which prevents the Employee from performing his

regular work.” J.A. 861.

Anderson selected Dr. McKinley as the “Employee-approved

physician,” and CCC selected Dr. Steinman as the “Employer-

approved physician.” By agreement, the parties then met to

select the third physician, who would be the tiebreaker. Each

party proposed four doctors at this meeting, and each party

struck three names proposed by the other, leaving each party

6
with a single physician remaining. 1 The names of the two

remaining physicians, Dr. Sushil Sethi – who was CCC’s choice -

and Dr. Shelly Kafka – who was Anderson’s choice - were placed

in a hat. Anderson selected Dr. Kafka’s name out of the hat, and

CCC agreed to use Dr. Kafka. However, Dr. Kafka declined to

participate in the evaluation process.

Anderson then put forth two additional doctors’ names. CCC

struck one doctor, leaving Dr. Brian Houston as Anderson’s

proposed doctor. Dr. Houston’s name was then placed in the hat

with Dr. Sethi’s name. Anderson again selected a name from the

hat, this time choosing Dr. Sethi. Anderson did not object to

being seen by Dr. Sethi, and he performed her physical

examination. Thereafter, Dr. Sethi opined that Anderson was not

able to work safely underground because of her high risk for

repeat fracture. Specifically, Dr. Sethi stated:

On the basis of my examination and review of the
medical records as well as my thorough research of
osteoporosis, it is my medical opinion that the
deterioration of the bone due to early onset of

1
Helen Blevins, a registered nurse, testified on behalf of
CCC that a limited number of area doctors were willing to engage
in workers’ compensation and similar evaluative work. When she
selected doctors for the CBA process, she looked at factors such
as a doctor’s capability, knowledge, availability, willingness,
and timeliness in an effort to obtain the best and most timely
results. Anderson argues that proof of CCC’s improper motives
lies in the fact that CCC proffered only doctors who were not
osteoporosis specialists. However, CCC did proffer an orthopedic
surgeon, but Anderson struck this doctor from the list.

7
 menopause as well as aging and having caused a
fracture with a very minor activity, is a very high
risk factor in performing her regular work. The use of
medication including Boniva as well as other listed
medications that are available on the market, simply
prevent some osteoclastic activity. It does not cure
the problem of osteoporosis. After having reviewed the
job duties and the risk factors as well as the
description of the bunker employee including ability
to have the capability of safely evacuating the mine
in the event of an emergency, I can say with
reasonable degree of medical probability and
certainty, that [Anderson] is not able to safely
perform her regular work as a bunker attendant at
Loveridge Mine. She is a very high risk for repeat
fracture which can happen spontaneously or even from a
minor tripping and would be a risk to herself as well
as other fellow workers.

J.A. 865-66.

Thus, the majority of the medical opinions obtained under

the CBA process recommended that Anderson’s high fracture risk

made it unsafe for her to return to work in the coal mine. CCC

attempted to accommodate Anderson with a surface position as a

dispatcher. CCC’s effort, however, was precluded by seniority

rules in the CBA. Anderson then filed a grievance seeking

reinstatement, but an arbitrator ruled against her, finding that

CCC complied with the CBA. CCC encouraged Anderson to apply for

an open above-ground position. Although Anderson applied and was

interviewed for this position, she ultimately declined to pursue

it. Unable to find a satisfactory alternative position for

Anderson, CCC terminated her employment.

8
 III

Anderson filed this action asserting several state-law

claims. Pertinent to this appeal, Anderson alleged that CCC (1)

retaliated against her for filing a workers’ compensation claim,

in violation of § 23-5A-1 and (2) discriminated against her

based on the fact that she has osteoporosis - which CCC

perceived to be, or which is in fact, a disability - in

violation of § 5-11-9(1). At the close of discovery, CCC moved

for summary judgment on several grounds. The district court

granted the motion for the following reasons.

Regarding Anderson’s workers’ compensation retaliation

claim, the district court noted that Anderson was required to

show three elements to establish a prima facie case: (1) she

sustained an on-the-job injury; (2) she filed a claim for

workers’ compensation benefits; and (3) CCC treated her filing

of a workers’ compensation claim as a significant factor in its

decision to discharge her. See Powell, 403 S.E.2d at 721. The

court found that although Anderson sufficiently showed the first

two elements, she failed to show the third element. The court

explained that CCC “acted under the CBA which governed the

procedure” regarding her potential return to work and “a

majority of the necessary medical opinions found that [Anderson]

should not return to work.” J.A. 1039. The court stated: “Simply

put, no evidence exists to demonstrate or imply that [CCC]

9
terminated [Anderson] with [workers’] compensation costs serving

as a ‘significant’ factor.” J.A. 1039-40.

Regarding Anderson’s disability discrimination claim, the

district court noted that Anderson was required to show three

elements to establish a prima facie case: (1) she is a member of

a protected class; (2) CCC took an adverse action against her;

and (3) but for her protected status, CCC would not have taken

the adverse action. See Conaway, 358 S.E.2d at 429. Again, the

court found that Anderson sufficiently showed the first two

elements, but she failed to show the third element. The court

explained that although CCC was aware of Anderson’s

osteoporosis, it did not base the decision to terminate her on

the grounds that she is disabled. The court stated:

Rather, in compliance with the CBA, [CCC and Anderson]
received three medical opinions regarding [her]
ability to return to work. Of those three opinions,
two of the opinions advised the parties that
[Anderson] should not return to work. Relying on these
medical opinions, and not simply [her] status as
“disabled” . . . [CCC] terminated her employment.

J.A. 1044.

The district court addressed and rejected Anderson’s

argument that the doctors chosen by CCC for the CBA process were

“company doctors” rather than osteoporosis specialists. The

court found that “insufficient evidence has been offered to

support these claims, and they are speculation at best.” J.A.

1044. Further, the court stated that “the specialty-level of the

10
doctors in this case is not a germane issue to the law at

issue.” J.A. 1044-45. Reiterating its earlier discussion of the

workers’ compensation retaliation claim, the court explained:

The facts show that [CCC] acted under an honest belief
regarding whether to discharge [Anderson], basing the
decision on the recommendations by licensed physicians
with experience, though technically not specialties,
in osteoporosis. Both parties together selected the
third physician, meaning that [Anderson] herself
agreed to be examined by this physician. More
importantly, the terms of the CBA do not require the
evaluating doctors be specialists in their field.
Thus, the argument that the evaluating doctors did not
practice in any medical specialty or possess any
particular certification relating to osteoporosis is
not relevant in this civil action, as such was not
required under the CBA.

J.A. 1045.

The district court further concluded that even if Anderson

had shown a prima facie case of disability discrimination, CCC

offered a legitimate nondiscriminatory reason for her discharge:

the CBA medical review process, which led to the medical

opinions advising that she not return to her former position.

Finally, the court found that Anderson failed to present

sufficient evidence of pretext to rebut CCC’s proffered reason.

IV

Anderson contends that the district court erred in several

respects by granting CCC’s summary judgment motion. Anderson

primarily argues that the court erred in assessing her

disability discrimination claim because it failed to conduct the

11
analysis set forth in West Virginia Code of State Rules § 77-1-

4.8. She also argues with respect to both of her claims that the

court resolved disputed facts against her and failed to

recognize the existence of genuine issues of material fact. In

response, CCC argues that the court correctly entered summary

judgment on Anderson’s claims.

Having carefully considered this matter under the

appropriate summary judgment standard, we agree with the

district court that the undisputed material facts in the record

establish as a matter of law that CCC’s decision to terminate

Anderson’s employment was not based on a discriminatory or

retaliatory motive. Instead, those facts establish that when

Anderson attempted to return to work following her work-related

injury, CCC was presented with conflicting medical opinions

about whether she could do so safely. 2 For that reason, CCC

implemented the CBA medical-review process, in which Anderson

fully and freely participated, and two of the three doctors

selected in that process opined against her return to the coal

2 CCC’s decision to have Anderson evaluated before returning
her to work did not violate West Virginia law. See, e.g., Stone
v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d 389, 407 (W.Va.
2000) (“[T]he mere fact that the Hospital sent Mr. Stone for an
independent medical examination did not prove a case of
disability discrimination.”).

12
mine. 3 Consequently, CCC was then within its collectively

bargained right to prohibit Anderson from returning to the coal

mine. Ultimately, CCC terminated Anderson’s employment only

after it was unable to place her in a suitable alternative

position.

Anderson has proffered evidence which she contends creates

genuine issues of material fact about the qualifications and

opinions of the doctors who examined her as part of the CBA

medical-review process and about the purported motives of CCC

personnel. We have considered this evidence in our summary

judgment review. However, we conclude that Anderson has failed

to present sufficient evidence to create a genuine issue of

material fact to establish that her filing of a workers’

compensation claim was a significant factor in CCC’s decision to

terminate her. For this reason, we affirm the grant of summary

judgment on the retaliation claim. See, e.g., Yoho v. Triangle

PWC, Inc., 336 S.E.2d 204, 210 (W.Va. 1985) (affirming dismissal

of § 23-5A-1 claim where the employee was discharged pursuant to

a “facially neutral provision of the collective bargaining

3
Dr. Ripepi also opined against Anderson’s return to work
in the mine. Therefore, three doctors who considered the matter
before Anderson was terminated believed that she should not
return to the mine. Moreover, Dr. McKinley (who was Anderson’s
choice in the Article III(j) process) equivocated, stating that
“common sense” suggested that Anderson not return to the mine.

13
agreement”). Likewise, we conclude that even if Anderson

presented sufficient evidence to establish a prima facie case of

discrimination, CCC has presented a legitimate, non-

discriminatory reason for terminating her employment (i.e., the

CBA medical-review process), and she has failed to present

sufficient evidence to establish pretext. Therefore, we affirm

the grant of summary judgment on the discrimination claim. See,

e.g., Bailey v. Norfolk and W. Ry. Co., 527 S.E.2d 516, 536

(W.Va. 1999) (noting that the parties’ collective bargaining

agreement provided a legitimate, non-discriminatory reason for

the challenged action).

As noted, Anderson primarily argues that the district court

failed to analyze her discrimination claim under West Virginia

Code of State Rules § 77-1-4.8. We disagree with Anderson’s

contention that § 77-1-4.8 dictates a different outcome.

Rule 77-1-4 is titled “Employment Discrimination

Prohibited” and is part of “a detailed explication of the

general anti-discrimination requirements of the Human Rights

Act, [§ 5-11-9].” Stone, 538 S.E.2d at 396 n.8. Section 77-1-4.1

and its subsections prohibit disability discrimination in

employment. Various other sections of Rule 77-1-4 deal with

matters that are unrelated to this case, but two sections,

§§ 77-1-4.7 and 4.8, are pertinent to our discussion.

14
 Section 77-1-4.7 provides that an “individual’s ability to

perform a particular job must be assessed on an individual

basis,” and an employer “may discharge a qualified individual

with a disability if, even after reasonable accommodation, the

individual is unable to perform the essential functions of the

job without creating a substantial hazard to his/her health and

safety or the health and safety of others.” Section 77-1-4.7

cautions that “any such decision shall be [based] upon the

individual’s actual abilities, and not upon general assumptions

or stereotypes about persons with particular mental or physical

disabilities.”

Section 77-1-4.8 then provides that “[i]n deciding whether

an individual poses a direct threat to health and safety, the

employer has the burden of demonstrating that a reasonable

probability of a materially enhanced risk of substantial harm to

the health or safety of the individual or others cannot be

eliminated or reduced by reasonable accommodation.” Further,

§ 77-1-4.8 specifies that “[t]he employer’s determination that

an individual poses a ‘direct threat’ shall be based on an

individualized assessment of the individual’s present ability to

safely perform the essential functions of the job. This

assessment shall be based on a reasonable medical judgement

[sic] that relies on the most current medical knowledge and/or

on the best available objective evidence.” Section 77-1-4.8

15
concludes by listing several non-exclusive factors to be

considered in determining whether an individual would pose a

direct threat.

According to Anderson, § 77-1-4.8 “is an affirmative

defense that requires the employer to prove that the medical

opinion upon which it relies was based on an ‘individualized

assessment’ of the employee, on ‘competent medical advice’ and

on the ‘most current medical knowledge’ in the relevant field.”

Opening Brief of Appellant, at 8. 4 Anderson argues that CCC

failed to comply with § 77-1-4.8 because it selected and

recommended evaluators who “it knew or should have known had

little or no expertise in osteoporosis, who lacked ‘current

medical knowledge’ about the disease and who did not provide

competent opinions about [her] risk of future injury.” Id. at 9.

Although the role of § 77-1-4.8 within the shifting-burden

analysis used for employment discrimination claims is not

entirely clear, we will assume that the section becomes

applicable when, in response to an employee’s prima facie case,

the employer asserts that an employee cannot safely perform her

job as a legitimate, non-discriminatory reason for termination.

4 In Stone, the court explained that “to satisfy the
standard of a serious threat to one’s health or safety, the
employer must establish that it relied upon competent medical
advice that there exists a reasonably probable risk of serious
harm.” 538 S.E.2d at 397 (emphasis added and citation omitted).

16
As we have already held, the undisputed evidence establishes

that CCC terminated Anderson as a result of the CBA medical-

review process, which is unquestionably a legitimate, non-

discriminatory reason. Contrary to Anderson’s argument, we

conclude that through its implementation of the CBA medical-

review process, CCC met its burden under § 77-1-4.8. 5

Fundamentally, § 77-1-4.8 requires that the employer’s

decision must be made on “an individualized assessment of the

individual’s present ability to safely perform the essential

functions of the job.” By relying on the various specific

medical opinions obtained before and during the CBA medical-

review process, CCC made its decision about Anderson’s ability

to return to the coal mine on an individualized assessment of

her condition and ability rather than “upon general assumptions

or stereotypes about persons” with osteoporosis. § 77-1-4.7.

5 CCC unsuccessfully argued below that Anderson’s claims are
preempted by the Federal Labor Management Relations Act
(“LMRA”). CCC reiterates this argument as one of several
alternate bases for affirming the summary judgment. We need not
decide the issue, but we note that Anderson’s reliance on § 77-
1-4.8 does raise a significant LMRA preemption question. See
Barton v. House of Raeford Farms, Inc., 745 F.3d 95, 107 (4th
Cir.), cert. denied, 135 S.Ct. 160 (2014) (stating the general
rule that when the evaluation of the state law claim is
inextricably intertwined with consideration of the terms of the
labor contract, such that it is necessary to interpret the
collective-bargaining agreement to resolve the claim, the claim
is preempted).

17
 Moving forward in the analysis, § 77-1-4.8 specifies that

the individualized assessment must be based on a “reasonable”

medical judgment (from a competent medical practitioner) who

relies on “the most current medical knowledge” or on “the best

available objective evidence.” 6 We believe the undisputed

material evidence in the record establishes that CCC met this

standard. CCC utilized doctors who had the ability to conduct

the medical testing specific to Anderson’s condition and who

were experienced in providing occupational medical evaluations.

These doctors assessed Anderson’s bone density scans, along with

other risk factors, and examined extensive details regarding the

specific job requirements of her position. To be sure, Anderson

points to conflicting evidence regarding her ability to return

to her former position, but the fact that medical opinions

differ does not establish that CCC’s reliance on Dr. Steinman’s

and Dr. Sethi’s assessments was unreasonable. 7 Moreover, although

6Section 77-1-4.8 states that the assessment “shall be
based on a reasonable medical judgement [sic] that relies on the
most current medical knowledge and/or on the best available
objective evidence.” The term “and/or” typically means “or.” See
Curry v. W.Va. Consol. Pub. Retire. Bd., 778 S.E.2d 637, 642 n.4
(W.Va. Oct. 7, 2015); Dynalectron Corp. v. Equitable Trust Co.,
704 F.2d 737, 739 (4th Cir. 1983).
7As noted, Anderson recommended both Dr. McKinley and Dr.
Kafka during the CBA medical-review process, but Dr. Kafka
declined to participate. Dr. Kafka did examine Anderson at a
later time, and Anderson now relies on Dr. Kafka’s opinion to
support her case. Had Dr. Kafka rendered her opinion during the
(Continued)
18
Anderson contends that CCC was required to utilize and rely only

on osteoporosis specialists in making its individualized

assessment, we find nothing to establish that § 77-1-4.8 imposes

such a rigid requirement. See generally Farley v. Shook, 629

S.E.2d 739, 746 (W.Va. 2006) (“While a physician does not have

to be board certified in a specialty to qualify to render an

expert opinion, the physician must have some experience or

knowledge on which to base his or her opinion.”).

V

We are not unsympathetic to Anderson’s desire to return to

her job. However, West Virginia law recognizes “the right of an

employer to protect employees, the public, and the workplace

from danger or injury that might occur as a result of a person’s

possible impairments, when such protection is done in a fashion

that is consistent with the duty of reasonable accommodation.”

Stone, 538 S.E.2d at 397. This right is also embodied in the

CBA. Based on the record before us, we agree with the district

court that the undisputed material evidence establishes that CCC

CBA process, she would have cast the tiebreaking vote in
Anderson’s favor, and CCC presumably would have been obligated
under the CBA to return Anderson to work. These facts highlight
the role of the CBA process in Anderson’s termination and
undercut her claims of retaliation and discrimination.

19
did not illegally retaliate or discriminate against her.

Therefore, we affirm the judgment.

AFFIRMED

20
WYNN, Circuit Judge, dissenting:

Joyce Anderson was fifty-two years old and had a

satisfactory work record nearly three decades long when

Consolidation Coal Company (“CCC”) terminated her, on the

grounds that her osteoporosis prevented her return to work after

recovering from a fracture. Ostensibly, CCC based her

termination on company-directed medical evaluations rendered

after Anderson’s treating orthopedic surgeon had already

unreservedly cleared her to return to work, and those

evaluations appear to have been based largely on an erroneous

interpretation of a single study found through Google or similar

search engines.

The majority opinion nevertheless concludes that there is

no genuine factual dispute regarding whether CCC’s termination

decision satisfied the relevant state standards—that is, whether

it was based on a “reasonable” medical judgment, one “that

relie[d] on the most current medical knowledge and/or on the

best available objective evidence.” Ante, at 18; W. Va. Code R.

§ 77-1-4.8. I cannot reach the same conclusion. For this

reason and those elaborated below, I dissent.

I.

A.

The majority opinion assumes, without deciding, that

Anderson has successfully made out a prima facie case of

21
disability discrimination. Ante, at 14. In my view, the issue

is simple enough to decide. Anderson provided abundant evidence

that she was “regarded as” disabled by CCC, W. Va. Code § 5-11-

3(m)(3); Stone v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d

389, 399 (W. Va. 2000), and that “but for” that perception of

her disability, she would not have been terminated. See Conaway

v. E. Associated Coal Corp., 358 S.E.2d 423, 429 (W. Va. 1986)

(enumerating the elements of a prima facie discrimination claim

under West Virginia Code § 5-11-9). The district court

therefore erred in concluding that Anderson failed to make out a

prima facie case of disability discrimination. 1

B.

The majority opinion concludes that Anderson failed to make

out a prima facie case of workers’ compensation retaliation,

ante, at 13, which requires an employee to offer sufficient

evidence that: “(1) an on-the-job injury was sustained; (2)

proceedings were instituted under the Workers’ Compensation Act

1 The district court arguably should have applied a
different prima facie test, specific to disability
discrimination suits in West Virginia, which requires that the
plaintiff (1) satisfy the definition of “handicapped” or
“disabled,” (2) be able to perform, with reasonable
accommodation, the relevant job, and (3) was discharged.
Hosaflook v. Consolidation Coal Co., 497 S.E.2d 174, 179–80 (W.
Va. 1997). Anderson provided sufficient evidence to satisfy
these elements, too. Cf. Morris Mem’l Convalescent Nursing
Home, Inc. v. W. Va. Human Rights Comm’n, 431 S.E.2d 353, 357–59
(W. Va. 1993).

22
. . . ; and (3) the filing of a workers’ compensation claim was

a significant factor in the employer’s decision to discharge or

otherwise discriminate against the employee.” Powell v. Wyo.

Cablevision, Inc., 403 S.E.2d 717, 721 (W. Va. 1991). The

majority opinion states that Anderson “has failed to present

sufficient evidence to create a genuine issue of material fact”

regarding the third, “nexus” element, i.e., whether “her filing

of a workers’ compensation claim was a significant factor in

CCC’s decision to terminate her.” Ante, at 13. I disagree.

Due to the typical lack of direct evidence in employment

retaliation cases, we are to examine circumstantial evidence

when evaluating the third element of a plaintiff’s prima facie

case, including “[p]roximity in time of the claim and the

firing,” “[e]vidence of satisfactory work performance and

supervisory evaluations before the accident,” and “[a]ny

evidence of an actual pattern of harassing conduct for

submitting the claim.” Powell, 403 S.E.2d at 721.

Here, Anderson offered evidence with respect to each of

these factors. First, with respect to the “proximity in time”

factor, Anderson began receiving workers’ compensation benefits

on November 4, 2009, was released to return to work by her

physician on March 24, 2010, effective March 29, without

restrictions, was informed on April 25 that she would not be

allowed to return to work, and was terminated on June 22. The

23
proximity among these various dates contributes to a permissible

inference that the workers’ compensation claim was a

“significant factor” in Anderson’s termination. Id.

Second, the record contains “[e]vidence of satisfactory

work performance and supervisory evaluations before the

accident.” Id. Anderson was employed continuously with CCC

from October 15, 1981, through the date of her termination; in

that time, she established a “good work record” and was “well

thought of by both Management and her fellow employees.” J.A.

858.

Third, although there was no “pattern of harassment”

following the submission of Anderson’s workers’ compensation

claim, Powell, 403 S.E.2d at 721, there is evidence that before

learning of the initial return-to-work examination, Anderson

received a call from an employee of Wells Fargo, CCC’s workers’

compensation administrator, advising Anderson that CCC was

“going to make an issue of the osteoporosis” and “was going to

put the screws to” her. J.A. 136–37.

Finally, in addition to the above factors, a trier of fact

is permitted to consider any circumstantial evidence relevant to

the “nexus” prong. Such evidence includes the fact that CCC is

self-insured, and that CCC regularly sends to its human

resources managers workers’ compensation claim reports that

include information about the cost of benefits paid to each

24
injured miner. Such evidence suggests that CCC may have been

unusually concerned about the costs of its workers’ compensation

program. See Nestor v. Bruce Hardwood Floors, L.P., 558 S.E.2d

691, 695–96 (W. Va. 2001) (finding a triable question of fact

where “[the employer’s] supervisor bonus system could encourage

a supervisor to discriminate against an employee who files for

workers’ compensation benefits, even if . . . the bonus system

helps reduce workplace injuries”).

In sum, Anderson presented sufficient evidence to establish

all three elements of a prima facie workers’ compensation

retaliation case, including evidence that her workers’

compensation filing was a significant factor in CCC’s decision

to fire her.

II.

Both parties appear to concede, and the majority assumes,

that the requirements of section 77-1-4.8 apply “when, in

response to an employee’s prima facie case, the employer asserts

that an employee cannot safely perform her job as a legitimate,

non-discriminatory reason for termination.” Ante, at 16. I

agree. See Ranger Fuel Corp. v. W. Va. Human Rights Comm’n, 376

S.E.2d 154, 160 (W. Va. 1988) (“The fact that an applicant’s

handicap creates a reasonable probability of a materially

enhanced risk of substantial harm to the handicapped person or

others is a legitimate, nondiscriminatory reason [for an adverse

25
employment action].”); Syl. Pt. 3, Davidson v. Shoney’s Big Boy

Rest., 380 S.E.2d 232, 233 (W. Va. 1989) (“[T]o satisfy the

standard of a serious threat to one’s health or safety, the

employer must establish that it relied upon competent medical

advice that there exists a reasonably probable risk of serious

harm.”). In short, it is quite clear that CCC was required to

meet the standards of section 77-1-4.8 for its termination

decision to be “legitimate” and “non-discriminatory.”

Those standards are detailed and rigorous. See ante, at

15–16. And at summary judgment this Court is tasked with

determining, inter alia, if there is any “genuine dispute,” Fed.

R. Civ. P. 56(a), as to whether CCC’s termination decision was

“based on a reasonable medical judgement,” one founded “on the

most current medical knowledge and/or on the best available

objective evidence.” W. Va. Code R. § 77-1-4.8.

Significant to my disagreement with the majority view, the

dispositive question is not, as the majority’s discussion

suggests, whether CCC “utilized doctors who had the ability to

conduct the medical testing specific to Anderson’s condition and

who were experienced in providing occupational medical

evaluations.” Ante, at 18. Rather, by its plain terms,

section 77-1-4.8 requires that the assessment be “reasonable”

26
and based on “the most current medical knowledge” or the “best

available objective evidence.” 2

Nor is the dispositive question, as the majority’s

discussion elsewhere suggests, whether CCC complied with the

terms of its collective bargaining agreement. See ante, at 14,

17. That is not what section 77-1-4.8 says. Indeed, on more

than one occasion, West Virginia’s highest court has recognized

that a facially neutral company policy can be exploited to

achieve a discriminatory objective. Skaggs v. E. Associated

Coal Corp., 569 S.E.2d 769, 777 (W. Va. 2002) (noting that “the

employer’s use of a system of preferred providers for

rehabilitation services . . . could be interpreted as a pretext

for a scheme to terminate employees who had received workers’

compensation benefits”); Wriston v. Raleigh Cty. Emergency

Servs. Auth., 518 S.E.2d 650, 659 (W. Va. 1999) (“[W]hile an

employment policy may be facially neutral, it cannot be applied

in a manner that nullifies or trumps the protective requirements

of [a statutory prohibition on discriminatory practices].”).

2
The majority opinion posits that “and/or” should be read
simply as a disjunctive “or.” Ante, at 18 n.6. I will not
quibble with the majority’s interpretation, because in this
case, there is a genuine dispute as to whether the judgment in
question was based on either the most current medical knowledge
or the best available objective evidence.

27
 Section 77-1-4.8 did not require that CCC get the approval

of a specialist or that it comply with the terms of its own

policies. It did require that CCC’s termination decision be

“based on a reasonable medical judgement,” one founded “on the

most current medical knowledge and/or on the best available

objective evidence.” W. Va. Code R. § 77-1-4.8. Here, there is

clearly at least a genuine dispute as to whether those standards

were met.

In countering the initial medical evaluation by Anderson’s

treating orthopedic surgeon, who cleared Anderson for work, 3 CCC

relied upon the evaluations of three doctors, none of whom had

any special expertise in osteoporosis, and all of whom relied

heavily on a single study that they appear by their own

3
Anderson has presented the evaluations of two doctors with
specialized expertise in osteoporosis concurring with Dr.
McKinley’s initial clearance of Anderson for work. One of these
doctors—Dr. Bellantoni—has “23 years of experience as a faculty
physician at Johns Hopkins University School of Medicine with an
expertise in the evaluation and treatment of metabolic bone
disorders including osteoporosis.” J.A. 703. This expert
evidence is not necessary to or sufficient for my analysis, and
I do not intend to convert every “direct threat” case into a
battle of the experts. Nevertheless, Anderson’s expert evidence
is at least relevant in determining whether there is a genuine
dispute regarding whether the medical judgment CCC relied upon
in terminating Anderson complied with the standards outlined in
section 77-1-4.8, including whether that judgment was
“reasonable.” See Echazabal v. Chevron USA, Inc., 336 F.3d
1023, 1033 (9th Cir. 2003) (explaining the relevance of a
plaintiff’s expert evidence in an analogous federal suit,
brought under the Americans with Disabilities Act of 1990).

28
admission either to have misunderstood or to have never read in

the first place. To illustrate why there is at the very least a

genuine dispute as to whether these evaluations were based on

“the most current medical knowledge” or the “best available

objective evidence,” W. Va. Code R. § 77-1-4.8, I briefly

discuss each.

Dr. Steinman was the first CCC doctor to examine Anderson.

His conclusion that Anderson’s osteoporosis prevented her return

to work was discussed in a single paragraph, and his discussion

of Anderson’s fracture risk relied upon a single study peddling

a particular fracture risk score (“FRISK”) for osteoporosis

patients (the “FRISK study”). Dr. Steinman’s deposition

testimony suggests that a Google search led him to this study. 4

In applying the FRISK study to Anderson, Dr. Steinman self-

admittedly committed several errors. First, although Dr.

4 “Q. Well, you could have gone on – back in 2010, you could have
gone on medical journal databases and done some additional
research, couldn’t you?
A. What I did, I thought, was the – everything that I could do.
Q. Sir, couldn’t you have gone on PubMed – PubMed, P-U-B,
capital P, M-E-D, capital M?
A. It’s my understanding that what I normally do in looking for
things is actually bigger than PubMed –
Q. Where did you normally go – you go?
A. – because I – I get things that are above and beyond PubMed.
Q. Where did you go? Where did you do the research where you
came up with this article as the state of the art?
A. Just do database –
Q. What database? Google? You just Google?
A. Google, Bing, anything that’s available.” J.A. 578.

29
Steinman intended to cite the study that developed the FRISK

score, he instead cited a letter to the editor critiquing that

study on the grounds that it over-predicted fracture risk.

Second, while Dr. Steinman previously interpreted the FRISK

study to mean that Anderson had at least a fifty-percent

probability of a fracture within two years, he now concedes

gross error: It turns out that figure was only ten percent.

Finally, it appears that the FRISK study’s findings were at

best marginally relevant to Anderson. The study was based on a

cohort of subjects significantly older and less physically

active than Anderson, facts Dr. Steinman was unaware of at the

time, and the fracture risk score the study developed was

intended for use in the context of making treatment decisions,

not fitness-for-work evaluations.

CCC also relied upon Dr. Ripepi’s “chart review” of Dr.

Steinman’s report, which was limited to examining that report

and the four corners of Anderson’s medical records. Dr. Ripepi

noted that he agreed completely with Dr. Steinman’s conclusions,

and specifically that Anderson would be at a high risk of repeat

fracture, a conclusion Dr. Steinman had based primarily on his

self-admittedly flawed understanding of the FRISK study.

However, in his deposition, Dr. Ripepi admitted that he never

30
read that study. 5 Rather, he assumed Dr. Steinman was “familiar

with that literature”: in Dr. Ripepi’s words, it “is a pretty

good assumption, that if you’re going to quote something, then

you’re pretty darn sure of it.” J.A. 780. Here, that was not a

good assumption to make.

Finally, CCC relied upon Dr. Sethi’s evaluation of

Anderson, which in turn relied upon the previous evaluations by

Drs. Steinman and Ripepi. In his deposition, Dr. Sethi also

admitted that he never read the FRISK study. 6 Indeed, he too

5 “Q. Did you review the article – literature [Dr. Steinman]
relied on at the time you rendered your opinion that you agreed
with him?
A. No. I agreed with his report.
Q. Did you review the literature that he relied on? . . .
A. No.
Q. Have you ever reviewed the literature he relied on?
A. No.” J.A. 772.

6 “Q. Doctor, when you said the fracture risk was developed by
Dr. J. Gorricho, published by the Journal of Radiologists on
October 1, 2007, before you put that in your report, did you
check out and see if that was true?
A. Doctor – I am simply – I am reporting in the context of a
review of the medical records. I’m not treating physician. I’m
not criticizing. I do not need to look up that. I am simply
going by what is in the record and simply quoting another
person’s – what they said. And the review of the record is only
a review of the records. It is –
Q. Did you check – I’m sorry.
A. I don’t know – I do not need to check anything.
Q. But my question is did you check and see if what Dr. Steinman
said about the Gorricho fracture risk was true? Did you check
and see if it was true?
A. I do not need to check it because my role is only reviewing
the record and quoting what is in the record.
(Continued)
31
erroneously cited the letter to the editor critiquing the study

he meant to cite. Although Dr. Sethi reviewed Dr. McKinley’s

evaluation of Anderson, clearing her for work, he discredited

that evaluation on the grounds—now somewhat ironic—that Dr.

McKinley did not base her conclusion on specific medical

studies. Much of Dr. Sethi’s analysis had nothing to do with

Anderson specifically. The rest was based on the errant

assessments of fracture risk made by Drs. Steinman and Ripepi,

or what Dr. Sethi later admitted to relying on: “common sense.”

J.A. 823. Although Dr. Sethi attached to his evaluation a copy

of one medical article on osteoporosis and a partial copy of

another, these studies are nowhere referenced or discussed in

his evaluation.

In sum, CCC’s doctors relied on an inapplicable study and

on each others’ faulty evaluations to conclude that Anderson’s

osteoporosis precluded her from returning to work. I simply

cannot join the majority opinion in concluding that there exists

no genuine dispute as to whether those troubled evaluations were

“reasonable” and based on “the most current medical knowledge”

Q. So the answer then is, no, you did not check it?
A. I do not need to check it.
Q. And so you did not check it?
A. I did not.” J.A. 810–11.

32
or the “best available objective evidence.” W. Va. Code R.

§ 77-1-4.8.

III.

In conclusion, in my view, Anderson has made out a prima

facie case of disability discrimination and workers’

compensation retaliation. Additionally, material issues of fact

remain regarding whether CCC has met West Virginia’s mandatory

standards for what constitutes a legitimate, non-discriminatory

basis for termination under these circumstances. Where an

evaluating doctor has himself conceded that his methodology was

erroneous, I cannot conclude that it is beyond dispute that such

a judgment was “reasonable” and based on “the most current

medical knowledge” or “the best objective evidence.” Therefore,

summary judgment should have been denied. Accordingly, I

respectfully dissent.

33