dissenting:
I initially indicated my separate opinion would be a concurrence. After a closer look at the record and the facts developed below, however, I find it necessary to dissent. Justice Potter Stewart once remarked that “[i]n these circumstances the temptation is strong to embark upon a lengthy apologia.” Boy’s Markets Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). These remarks somewhat underscore the stress I feel when I must confess at this time that initially I was in error ever to agree with the result reached by the circuit court. However, like Justice Stewart, I will take refuge in an aphorism of Justice Felix Frankfurter: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting). This case presents an excellent opportunity for this Court to close a loophole in our Human Rights Act (Act) with respect to all forms of employment discrimination, and especially to those purveyed against persons with disabilities. Unfortunately, the reasoning used and the result reached by the circuit court opened the hole, and the majority has refused to close it. Thus, I respectfully dissent.
In presenting this appeal, Mr. Hosaflook argued that his termination violated the Act’s ban on employment discrimination against persons with disabilities and that the termination constituted the tort of outrage. Although I will address each issue to some extent, I will primarily confine my dissent to the discrimination issue raised by the appellant.
The circuit court ruled that Mr. Hosaflook failed to carry his burden of establishing a prima facie showing of unlawful handicap discrimination and that summary judgment on this claim was therefore appropriate. In affirming the circuit court’s ruling on this claim, the majority has concluded that Mr. Hosaflook failed to satisfy the second element of a prima facie case of handicap dis*344crimination, i.e., establishing that he is a qualified handicapped person.4
In my opinion, Mr. Hosaflook did put forth a prima facie case. West Virginia Code, 5-11-9(1) (1992), of the Human Rights Act makes it an “unlawful discriminatory practice” for an 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 handicapped[.]” The Salary Continuance Program (SCP), in which Mr. Hosaflook was a participant at the time of his termination, was clearly part of the Consol package constituting the “compensation, hire, tenure, terms, conditions or privileges of employment.” If, as the plaintiff alleged, Consol decided to terminate his SCP benefits because of his handicap, then it discriminated against him with regards to the terms, conditions or privileges of his employment.
The majority, however, seizes on the language in Code, 5-11-9(1), that limits unlawful discrimination to cases in which the individual is “able and competent to perform the services required,” and on the derivative requirement in the regulations and our case law that a plaintiff claiming handicap discrimination must show the he or she can perform the essential functions of the job. The majority looked to Black’s Law Dictionary for the definition of “job” and to a pair of decisions under the Fair Labor Standards Act, Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534 (1945), and Tennessee Coal. Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949 (1944), to define “work.” Using those authorities, the majority concluded that “job” means physical or mental exertion, controlled by the employer, for compensation. Continuing its exercise in logic, the majority then deducts that Hosaf-look must lose because he could not perform the job of an underground foreman, and because the SCP did not require him to exert any effort or submit to the company’s control, and was therefore not a job.
Unfortunately, the majority failed to follow that reasoning to its logical conclusion. If the Court had, it would realize that it has essentially written disability protection plans, such as the SCP, out of the Human Rights Act. For in order to qualify for SCP, an employee must be disabled from performing his regular assignments. Thus, if “job” and “services required” are limited to the majority’s narrow reading, then an employer could, without Human Rights Act liability, decide to eliminate (for example) all black foremen from its SCP rolls because, by definition, those employees on SCP are unable to perform the services of a foreman. Such a case is no different from what Mr. Hosaflook has alleged, i.e, that he was selected for elimination because of his membership in a protected class — the class of handicapped persons. I find that result — -allowing discrimination against persons with disabilities in the administration of a program to insure against the effects of a disability on the rationale that the persons are not entitled to statutory protection because they are disabled from working — to be not only bizarre, but also antithetical to the purposes of the Human Rights Act explicitly set forth by the Legislature in W. Va.Code 5-11-2 (1989). If the Act is read as the majority says it should be, it would afford no relief to an individual receiving temporary5 disability benefits when his *345employer says to Mm, “We are terminating your employment and your benefits because you have a disability.”
To avoid such an anomalous and unseemly result, the Act must be applied with greater sensitivity to the context in which its terms are used and with greater deference to the legislative purposes. Although authorities such as dictionaries and the case construing other statutes6 can provide relevant insights, blind reliance on them makes for an overly formalistic method of interpretation. “Work” under the Fair Labor Standards Act, for example, may not be equivalent to “services required” or “job” under the Human Rights Act and its regulations when the divergent legislative contexts and purposes are taken into account. In this case, then, we must interpret the relevant terms with an awareness that the Legislature has declared that discrimination in employment “is contrary to the principles of freedom and equality of opportunity and is destructive to a free and democratic society.” W. Va.Code 5-11-2; see also Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995). Thus, the statute, and particularly its language in § 5-11-9 defining unlawful discriminatory practices, must be read so as to maximize the chances of eliminating the prohibited biases from the spectrum of employment decisions. At the same time, we must not apply the law in such a way as to unduly restrict management discretion. See United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979); Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 479 S.E.2d 561 (1996). Considering those legislative purposes, and the context in which the disputed terms appear, I believe that “services required” and “job” should be determined by reference to the particular employment contract, i.e., to what employers and employees believe to be are their respective obligations to each other. Such an interpretation would promote the Act’s purposes and would facilitate application of the Act both by those it regulates and by those it protects.
Applying that approach, I find the Human Rights Act to apply to Mr. Hosaflook’s termination from SCP. Consol has, in effect, said to its management personnel, if you become disabled and if you abide by our terms, we will pay you a salary for up to one year. Those terms become the job; and in this case that has meaning. While on Consol’s SCP, an employee is required to do all that is necessary to recover from the injury suffered. This necessarily involves mental and physical exertion by the employee, e.g., keeping medical appointments, attending and taking part in physical and/or mental health therapy sessions. This is contrary to the majority’s conclusion that being on SCP was a virtual state of vegetation. The majority laments that the employer does not control the activities or time of the employee that is on SCP. I disagree. The appellees have a vested interest in knowing whether an employee on SCP is moonlighting on another job or surfing on a California wave. See Davenport v. Epperly, 744 P.2d 1110 (Wy. 1987) (employee on salary continuance plan fired after being caught hunting). While on SCP, Mr. Hosaflook was not free to moonlight on another job; nor was he free to keep the appellees in the dark regarding his progress or lack of progress in recovering from his disability. See Beauford v. Father Flanagan’s Boys’ Home, 241 Neb. 16, 486 N.W.2d 854 (1992) (employee removed from salary continuance plan for failing to allow employer’s physician to examine her). In other words, Mr. Hosaflook’s time and activities were controlled by the appellees so long as he remained on SCP. Moreover, while the appellees may have kept Mr. Hosaflook listed as a foreman, he was to be paid as a member of SCP, i.e., his salary was in increments of a foreman’s salary, not the full salary he would have received as a foreman. In the event that an employee was on SCP for a year and showed no signs of recovery from the disability, that employee’s status would change to long term disability.7 Thus, the SCP was part of the employment contract between Consol and Mr. Hosaflook, with responsibili*346ties on both sides. Mr. Hosaflook’s responsibilities under that contract became, for the duration of his eligibility for SCP, the “services required” by the employer and thus constituted his “job.”8
Two options confronted Mr. Hosaflook in terms of his future with Consol: (1) remaining on the short-term disability plan for a year and then switching to the long-term disability program, or (2) removal from the short-term disability program with reassignment to an above-ground position.9 Both options were consistent with the terms or privileges of being on the short-term disability program. And both the circuit court and the majority have failed to consider that Mr. Hosaflook was “able and competent” to pursue either option.
Thus, Mr. Hosaflook stated a prima facie case: (1) he had a disability; (2) he was an employee qualified to continue under Con-sol’s SCP and qualified, with accommodation, for above-ground employment; and (3) he was terminated. That, by itself, was enough to create an inference of discrimination, which, barring unequivocal and unre-butted evidence of a legitimate employer explanation for the termination, should have required the circuit court to reject the defendants’ motion for summary judgment. Because the lower court held that Mr. Ho-saflook was not a qualified person with a disability and could not invoke the statute’s protections, it never reached the issue of whether the defendant had an unequivocal
and unrebutted explanation that defeated the prima facie case. Nevertheless, the majority has based its decision, in part, on the theory that there was no triable issue of fact on the question of discriminatory intent. I disagree with that conclusion, and thus feel compelled to explain why this case should go to trial.
The record includes evidence that bolsters the inference of discrimination created by the prima facie case, and that drew into question Consol’s responsive explanation. As the majority explains, the appellees’ justification for terminating Mr. Hosaflook was that their decision was based on foremen performance evaluations that were done for the period 1990-91. That evaluation period, however, coincided with the onset of Hosaflook’s eye disease and thus resulted in a low, perhaps artificially low, performance score for him.10 Nevertheless, when Consol learned of Mr. Hosaflook’s handicap and of its impact on his performance evaluation score, it failed to reconsider the score’s reliability as a measure of his competence and effort.
Depending upon the nature of their handicaps and employment, a substantial number of handicapped employees will not fare as well as their peers on performance evaluations unless reasonable accommodations were made for the effects of their handicap. In this case, no accommodation was made for Hosaflook during 1990-91 because neither he nor Consol were then aware of the need for it. According to Mr. Hosaflook, an employer *347who was not hostile to persons with disabilities would have reconsidered, or even rejected as unreliable, any evaluations done of him in 1990-91. Moreover, an employer who was hostile to persons with disabilities would seize on the opportunity to remove such individuals when presented with a facially neutral reason (the RIF + evaluations) — thus avoiding the costs of future accommodations and of other responsibilities commonly associated with the employment of such individuals. Had a reassessment of his work been performed, Mr. Hosaflook contends, it would have prompted a nondiseriminating employer to place him above the RIF cut-off line for discharge. Consequently, a reasonable trier of fact could conclude that the appellees purposefully eliminated him through the RIF because of his disability rather than continuing him on the SCP or accommodating his handicap in an above-ground position.
In sum, Mr. Hosaflook is a handicapped person who was (1) given a job performance evaluation by the appellees at a time when he and they were unaware of his handicap; (2) the handicap manifested itself during the period that the evaluation covered; (3) the evaluation produced a score diminished by his handicap; and (4) the evaluation was neither disregarded nor reconsidered, but was instead used against him to effect his termination. Although Mr. Hosaflook could perform above ground, the appellees made no effort to determine if a vacancy existed to which Mr. Hosaflook could have been reassigned.11 Although these facts do not inexorably lead to the inferences of discrimination that Mr. Hosaflook would have us draw, I do think they follow reasonably. Accordingly, I believe he should have his chance to convince a jury of his case.12
*348. APPENDIX THREE
December 10, 1996 — Opinion on First Rehearing — Plaintiff Granted Relief
ALBRIGHT, J.:This case is before us 13 on rehearing after we affirmed the ruling of the Circuit Court of Monongalia County granting the appellees a summary judgment and Justice Cleckley filed a vigorous dissent. Upon reconsideration, we are of the opinion that the judgment of the circuit court should be reversed for the reasons set forth below.
FACTS
Appellant, David Hosaflook, began working for Consol in 1975 as an hourly employee at the Robinson Run Mine, which is an underground coal mine in Monongalia County, West Virginia. Mr. Hosaflook left the hourly work force in 1990 to accept the salaried position of section foreman. As a foreman, he was assigned to underground work at Robinson Run Mine. Mr. Hosaflook acknowledges that from the beginning he had difficulty performing the tasks required of supervisors. He asserts that the difficulties he encountered, which can be summarized as stumbling and bumping into things and problems with paperwork required by the job, resulted from a handicap, the gradual deterioration of his vision.
In August of 1991, Consol followed its annual practice of conducting performance evaluations of all salaried employees in the Northern West Virginia Region. Performance evaluations assessed a salaried employee’s performance during the preceding year, in this instance, August 1, 1990, through July 31, 1991. Evaluations were used for merit pay raise purposes. Although a reduction in force at the mine central to this case occurred later, appellees assert that, at the time of the performance evaluations, a reduction in force was not being planned, and Mr. Hosaflook was not then considered a handicapped person.
When the 1991 performance evaluations were completed Mr. Hosaflook was one of the lowest ranked salaried employees at the Robinson Run Mine, due in large measure to the difficulties he had been encountering as a result of what was later identified as the deterioration in his vision. His total score on the evaluation was 99 out of a possible 160.
In November, 1991, Mr. Hosaflook began to recognize that the difficulties he was experiencing arose from his vision problem. For a time, he kept the problem to himself. However, on February 5, 1992, he was diagnosed with retinitis pigmentosa (R.P.), which is a degenerative eye condition that eventually culminates in total and permanent blindness. Mr. Hosaflook claims he spoke to a supervisor, Denver Johnson, and a personnel officer, Mark Schiffbauer, and told them he had been diagnosed with R.P. and needed the name of a specialist to see regarding the diagnosis. Apparently he did not discuss the details and severity of the disease at that time. Consol contends that these inquiries regarding a specialist did not result in the company being aware of Mr. Hosaflook’s disability at that time.
Appellees contend that a determination that a reduction in force among salaried employees at the mine was necessary was first made in early 1992 by Ronald Stovash, Con-sol’s Vice-President of Fairmont Operations.14 Eventually, it was determined that a total of twenty salaried positions would be eliminated at Robinson Run Mine. In early *349March, 1992, all salaried personnel at the mine were notified of the impending reduction at a meeting that Mr. Hosaflook attended. Prior to that meeting, Consol had ranked the salaried work force based on the 1991 performance evaluation scores, and the salaried employees were told at the meeting of Consol’s intention to use the scores to select those to be discharged. Mr. Hosaf-look’s position as one of the lowest ranked foremen made his layoff a virtual certainty. At the meeting, it was explained that twenty individuals would be involuntarily laid off from the Robinson Run Mine unless there were enough volunteers for early retirement. Mr. Hosaflook concedes that the selection of persons to be included in the reduction in force was based on the evaluation scores, with possibly one exception.
On March 25, 1992, Mr. Hosaflook delivered to Consol a letter from his eye doctor, dated that same day, describing the severity of his vision problem. The letter stated Mr. Hosaflook could never work underground again and should be placed on long-term disability. The letter advised that the progression of the disease would lead to eventual blindness. Mr. Hosaflook was placed on Consol’s Salary Continuance Program, a benefit program federally regulated under the Employee Retirement Income Security Act of 1975, 29 U.S.C. §§ 1001, et seq. (1974) (ERISA). The salary continuance program provided for incremental continuation of an employee’s salary and benefits during periods of short-term illness and disability, in part as a bridge between the onset of disability and qualification for long-term disability benefits provided by Consol as an employment benefit. The salary continuance program, as adopted by Consol, expressly states that an employee on salary continuance remains subject to a reduction in force. Consol also treats employees on the salary continuance program as remaining on the work force for the site to which they were last assigned prior to the disability or illness giving rise to the use of the salary continuance program.
On April 1,1992, the reduction in force was made. Under Consol’s policies, the employment relationship between a salaried employee and the employer is terminated when a reduction in force is effected, and, pursuant to the express terms of the salary continuance program, separation by reason of a reduction in force also removes the employee from the salary continuance program. Incident to this reduction in force, Mr. Schiff-bauer and Mr. Simpson met with Mr. Hosaf-look to explain that he had been terminated, as a result of the reduction in force, due to job performance. Mr. Hosaflook and his wife, Kathryn Hosaflook, requested that he remain on the salary continuance program despite his termination. This message was relayed to Ronald Stovash, who had made the final determination to include Mr. Hosaf-look in the force reduction. The request was denied.
The Hosaflooks, appellants here, filed this action in the Circuit Court of Monongalia County, alleging that Mr. Hosaflook’s discharge constituted unlawful discrimination against a handicapped person and that the manner of discharge constituted the tort of outrage, from which Mr. Hosaflook suffers severe emotional distress.
Consol filed a motion for summary judgment, which the circuit court granted. The court’s January 12, 1995 order states, “[pjlaintiff filed this action alleging that he was wrongfully terminated in violation of the West Virginia Human Rights Act in that he contends that at the time of his discharge he was an otherwise qualified handicapped person. Additionally, the plaintiff contends that the facts surrounding his discharge were so outrageous that those facts constituted the tort of outrage.” The court found that “[cjlearly the doctor’s diagnosis and prognosis demonstrate that the plaintiff could no longer safely perform the job for which he was hired after the onset of retinitis pigmen-tosa. Accordingly, under no circumstances could the plaintiff be considered a ‘qualified handicapped person’ at the time of his layoff on April 1, 1992.” After discussing the difference between a claim for wrongful discharge and a claim for outrageous conduct, the court stated:
In this case no construction of the facts surrounding the implementation of the dis*350charge support a contention that the discharge was implemented in an outrageous manner. The plaintiff testified that he was called into an office, was told that he was being discharged, was advised of benefits available to him and nothing more. He was not singled out, embarrassed, threatened, verbally abused, ridiculed or humiliated.
As a consequence, appellants brought this appeal, and after our initial decision the parties again briefed and argued the matter before us.
STANDARD OF REVIEW
The ultimate issue on appeal is whether the trial court appropriately granted summary judgment to Consol. This Court has stated that “[a] circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Under Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment should be granted when the moving party shows there is no genuine issue as to any material fact and he or she is entitled to judgment as a matter of law.
“In determining on review whether there is a genuine issue of material fact between the parties, this Court will construe the facts ‘in a light most favorable to the losing party[.]’” Alpine Property Owners Association, Inc., v. Mountaintop Development Company, 179 W.Va. 12, 17, 365 S.E.2d 57, 62 (1987) (quoting Masinter v. WEBCO Co., 164 W.Va. 241, 242, 262 S.E.2d 433, 435 (1980)).
SUBSTANTIVE ISSUES
We are of the opinion that appellant, David J. Hosaflook, may have been a “Qualified Individual with a Disability” who was “able and competent, with reasonable accommodation, to perform the essential functions of the job[.]” 6B W.Va.C.S.R. § 77-1-4.2; W.Va. Code § 5-11-9 (1992). Before rehearing, we had focused on appellant’s claim, restated by his counsel at oral argument on rehearing, that Mr. Hosaflook’s employment was that of “salary continuance” and not section foreman.
This Court continues to believe that Mr. Hosaflook’s employment at the time of his discharge was that of section foreman. It is undisputed that, under the terms of his employment, Mr. Hosaflook was expected to perform the usual duties of a section foreman unless he had qualified for and been awarded admission into the “salary continuance plan” offered by appellant. It is also undisputed that in the event Mr. Hosaflook qualified for the “salary continuance plan,” he was entitled to salary continuance benefits for up to one year as one of the terms of his employment, unless he was discharged from his employment as a section foreman. The plan provided that if Mr. Hosaflook was discharged from his employment as a section foreman, his compensation from the salary continuation plan would end. Finally, during Mr. Hosaflook’s time on the salary continuance plan, we perceive that his only duties included such things as keeping the employer advised of his condition and doing anything appropriate to improve his medical condition.
In support of their decision to terminate his employment, appellees rely entirely on Mr. Hosaflook’s perceived inability to adequately perform the usual tasks of a section foreman. Specifically, they rely on a performance evaluation done some time before the decision was made to reduce the force at the mine where Mr. Hosaflook worked before going on salary continuance. Mr. Hosaf-look’s poor performance in that employment was both what qualified him for salary continuation and what caused the termination of his employment. In short, his eyesight condition, retinitis pigmentosa (R.P.), allowed him to be assigned to the salary continuation plan and is said to have interfered with his performance as a section foreman to such an extent that he received a low performance evaluation of his work in that position. Appellants acknowledge that under their internal systems, Mr. Hosaflook’s place of employment continued to be considered as located at the mine, at which he no longer performed any services. In sum, we conclude that, at the time of his discharge, Mr. Hosaflook was employed as a section fore*351man at the mine where his performance was previously evaluated and that one of the terms of that employment was qualification for the salary continuation plan under certain circumstances which his eyesight problems satisfied.
We next confront the question of whether Mr. Hosaflook’s termination from employment and consequent discontinuance in the salary continuation plan was discriminatory under the Human Rights Act. On the record before us, there is no dispute that the poor performance evaluation resulted from the eyesight problems. Therefore, on our review of the summary judgment rendered below, we indulge the inference that Mr. Hosaflook was discharged from his job as section foreman because of his eyesight problems, a handicapped condition under the Human Rights Act.15 Since one of the terms of that employment was participation in the salary continuation plan and one of the results of the termination of Mr. Hosaflook’s employment was the cessation of that participation, we believe that it may be readily concluded that the termination of employment because of the handicap resulted in discrimination in the terms of employment by reason of a handicap.
West Virginia Code § 5 — 11—B(h) (1994) states:
The term “discriminate” or “discrimination” means to exclude from, or fail or refuse to extend to, a person equal opportunities because of race, religion, color, national origin, ancestry, sex, age, blindness, handicap or familial status and includes to separate or segregate^]
This Court has declared the necessary elements one must meet in order to establish a prim a facie case of handicap discrimination pursuant to W.Va.Code § 5 — 11—9(Z):
In order to establish a case of discriminatory discharge under W. Va.Code, 5-11-9 [1989], with regard to employment because of a handicap, the complainant must prove as a prima facie ease that (1) he or she meets the definition of “handicapped,” (2) he or she is a “qualified handicapped person,” and (3) he or she was discharged from his or her job.
Morris Nursing Home v. Human Rights Commission, 189 W.Va. 314, 318, 431 S.E.2d 353, 357 (1993).
In the case at bar, only the second element of this test is at issue. In applying the provisions of W.Va.Code § 5-11-9, a “Qualified Individual with a Disability” has been defined by regulation as “an individual who is able and competent, with reasonable accommodation, to perform the essential functions of the job[.]” 6B W.Va.C.S.R. § 77-1-4.2; W.Va.Code § 5-11-9 (1992). The impact of our conclusion is that at least for the remaining period for which Mr. Hosaflook qualified for the salary continuance plan, he was a qualified individual with a disability able to perform the essential functions required of the position as section foreman, which, in his case, required only participation in such salary continuance plan. Accordingly, his case survived summary judgment under those circumstances. Whether Mr. Hosaflook could show himself to be a “qualified individual” after the expiration of the salary continuance plan may be doubtful, but we leave that for development by the parties and further consideration by the trial court.
There remains the question of whether such discrimination was intentional. Intentional discrimination arises from “deliberately treating individuals differently because of different individual traits.” Guyan Valley Hospital, Inc. v. West Virginia Human Rights Commission, 181 W.Va. 251, 253, 382 S.E.2d 88, 90 (1989). “ ‘Illegal discrimination’ means treating individuals differently because of some individual trait that the law says can’t legitimately be considered. Exam-*352pies of such traits are race, age, sex, and handicap.” Id.
We understand the claim of appellees to be that the employer was unaware of the eyesight problem at the time the discharge decision was made and announced and that appellants contend otherwise. Again, on review of summary judgment, we treat the facts in the light most favorable to the non-movant. Accordingly, we conclude on the record before us that appellants may make out a prima facie case of intentional discrimination upon the evidence they propose to adduce.
Next appellees assert that we are barred by the doctrine of pre-emption from permitting West Virginia courts to consider a claim based on discrimination in the salary continuation plan because such a claim is controlled solely by federal law under the provisions of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (1974) (ERISA). Indeed on oral argument, we understood appellees to concede that the discharge of Mr. Hosafiook under the circumstances he asserts occurred and the consequent discontinuation of the salary continuation plan would make out a claim under our Human Rights Act but for preemption flowing from ERISA. Consistent with that position, appellees said in their rehearing brief:
Accordingly, if a black employee presented evidence that he was discharged because of race while receiving salary continuance, that employee would unquestionably state a prima facie case of race discrimination.
We believe that the ERISA pre-emption issue is governed by the principles stated by the United States Supreme Court in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Section 514(a) of ERISA, 29 U.S.C. § 1144(a), provides that the Act “shall supersede any and all State laws insofar as they ... relate to any employee benefit plan[.]” In Shaw, the employers contended that § 514(a) pre-empted a state human rights law that said pregnancy must be included in the conditions covered by medical benefits plans. The Court agreed with the employers that the human rights law “related to” a benefits plan within the meaning of § 514(a) and that it was, therefore, pre-empted unless the state law came within one of the exceptions. The Court concluded that the state law came within the exception of § 514(d) of the Act, which provides that the pre-emption clause in subsection (a) shall not “be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States.” The Court then referred to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (1964), which prohibits (inter alia) discrimination in employment on the basis of pregnancy. Id., 701(k), 42 U.S.C.2000e(k). The Act also establishes an enforcement scheme that mandates deferral to state anti-discrimination agencies and laws. 706(c), 708, 42 U.S.C.2000e-5 and 2000e-7. The Shaw Court thus concluded that an ERISA preemption of all state laws regulating discrimination in benefits plans would, in fact, impair the operation of Title VII. Accordingly, the Court held that ERISA does not pre-empt state anti-discrimination laws insofar as they prohibit conduct that is also prohibited by Title VII. Such state laws are, however, preempted to the extent that they prohibit conduct that is not also prohibited by Title VII.
The case at bar concerns disability discrimination, which is not governed by Title VII, but by the Americans with Disabilities Act (ADA), 42 U.S.C. 12101, et seq. (1990). Nevertheless, we concluded that Shaw’s reasoning and holding control herd because the ADA uses precisely the same enforcement scheme as Title VII, with mandated deferral to state agencies. Section 107(a), 42 U.S.C. 12117(a) states:
The powers, remedies, and procedures set forth in Sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.
Thus, if the allegedly discriminatory conduct in this case is prohibited by the ADA, then *353ERISA does not pre-empt our Human Rights Act’s prohibition of the same. Appellant alleges he was discharged because of his disability, conduct which clearly violates the ADA. The term “discriminate” includes “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 102(b), § 42 U.S.C. 12112(b)(4). Even if appellant’s case is characterized as discrimination against a person with a disability in the administration of the salary continuance plan, that exclusion from a benefit is “discrimination” that is barred by the ADA. Id. See Arizona Governing Comm. v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983); Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). As a result, we believe that the discrimination claim in this case is not pre-empted by ERISA.
Accordingly, we believe it necessary to reverse the judgment of the lower court and remand this matter for further proceedings, including trial. We are advised that Mr. Hosaflook has received disability benefits from or through his employer because of his eyesight problems. Since it is not clear on the present record that Mr. Hosaflook could have been a “qualified individual” after the period of salary continuation, the discrimination in this case may be limited by the period of time between discharge and the expiration of the salary continuance plan. Nevertheless, we conclude for the reasons stated that appellants ought to have the opportunity to pursue their discrimination claim so the outcome will be determined.
Appellants also asserted a claim for the tort of outrage which was rejected by the lower court when summary judgment was granted below. A claim for wrongful discharge and a claim for the tort of outrage may both exist in an employment-related ease. However, the claims differ and are indeed separate claims. This Court distinguished between the two claims in syllabus point 2 of Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994), which states:
The prevailing rule in distinguishing a wrongful discharge claim from an outrage claim is this: when the employee’s distress results from the fact of his discharge — e.g., the embarrassment and financial loss stemming from the plaintiffs firing — rather than from any improper conduct on the part of the employer in effecting the discharge, then no claim for intentional infliction of emotional distress can attach. When, however, the employee’s distress results from the outrageous manner by which the employer effected the discharge, the employee may recover under the tort of outrage. In other words, the wrongful discharge action depends solely on the validity of the employer’s motivation or reason for the discharge. Therefore, any other conduct that surrounds the dismissal must be weighed to determine whether the employer’s manner of effecting the discharge was outrageous.
The tort of outrage was first defined by this Court in syllabus point 6 of Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982), which states:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Justice Cleckley enlarged on the definition of outrage and summarized the four elements of the tort in his concurrence in Hines v. Hills Department Stores, Inc., 193 W.Va. 91, 98, 454 S.E.2d 385, 392 (1994) (per curiam), as follows:
The four elements of the tort can be summarized as: (1) conduct by the defendant which is atrocious, utterly intolerable in a civilized community, and so extreme and outrageous as to exceed all possible bounds of decency; (2) the defendant acted with intent to inflict emotional distress or acted recklessly when it was certain or substantially certain such distress would result from his conduct; (3) the actions of the defendant caused the plaintiff to suffer *354emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.
Given our reconsideration of appellant’s claim of discrimination under the Human Rights Act and the principles upon which we have based that reconsideration, we are of the opinion that upon trial sufficient evidence may be adduced to permit this cause to go to the jury. We note that the issue of whether the discharge of Mr. Hosaflook was intentional and the award of benefits shortly after the discharge may well be the controlling factors in that determination. Those other factors suggest that the trial court may once again, at an appropriate stage in the proceedings, determine that the claim of outrage is not sustained by the evidence. However, since we have reversed the summary judgment regarding the discrimination claim and have announced applicable principles with respect to that claim which may impact the full and fair development of the outrage claim, we believe the matter of the validity of the claim for outrage is best committed at this time to further review by the trial court.
Accordingly, we reverse the judgment of the circuit court granting summary judgment on the claim of outrage and remand for such further proceedings as the law and the evidence may justify.
Reversed and remanded.
. In Syllabus Point 2, Morris Nursing Home v. Human Rights Commission, 189 W.Va. 314, 431 S.E.2d 353 (1993), we indicated, in relevant part, that:
"In order to establish a case of discriminatory discharge under W. Va.Code, 5-11-9 [1989], with regard to employment because of a handicap, the complainant must prove as a prima facie case that (1) he or she meets the definition of 'handicapped,' (2) he or she is a 'qualified handicapped person,’ and (3) he or she was discharged from his or her job.... ” The majority has assumed, without analysis, that Mr. Hosaflook is “handicapped” within the meaning of the Act. I will not take up this assumption.
. The case of an individual who is receiving benefits under a permanent disability or retirement plan might present a different analysis because in that case the employment relationship may have terminated. We need not, at this time, consider the implications of such circumstances because here Mr. Hosaflook clearly was a Consol employee at the time of the adverse decision was made. See n. 2, infra.
. Reliance on Jewell Ridge and Tennessee Coal, however, is rather questionable since Congress quickly overruled those decisions by enacting the Portal-to-Portal Act, 29 U.S.C. §§ 251-62. See Battaglia v. General Motors Corp., 169 F.2d 254, 255, 258 (2nd Cir. 1948).
. There is no question that Mr. Hosaflook was an "employee” within the meaning of the Act at the *346time of his discharge. After all, the case arose because Consol believed it had to reduce the number of its employees. It would be odd, indeed, for a reduction in force to be accomplished by laying off individuals who were no longer employees.
. As the preceding discussion makes clear, I would find that the responsibilities and limitations Consol imposes on its employees for them to receive SCP make it a “job,” even under the majority’s definition of that term.
. Rather than accommodating Mr. Hosaflook’s handicap by determining whether above-ground foreman duties were available, the appellees fired him. We recently held in Syllabus Point 4 of Skaggs v. Elk Run Coal Company, Inc., 198 W.Va. 51, 479 S.E.2d 561 (1996), that:
"If the employee cannot be accommodated in his or her current position, however it is restructured, then the employer must inform the employee of potential job opportunities within the company and, if requested, consider transferring the employee to fill the open position.”
Although it would not be surprising in a RIF context that there would not be any openings, the record here does not compel that conclusion. In any event, openings could have become available after the RIF and prior to the end of the Hosaf-look’s one year on SCP that he may have been, with accommodation, qualified to perform.
.The evidence clearly established that Mr. Ho-saflook did not have problems with his vision until around the time that he was promoted to foreman. Dr. Murray indicated in an affidavit "that the work problems Mr. Hosaflook experienced are consistent with the manifestation of [retinitis pigmentosa] symptoms.”
. The Supreme Court defined the term "otherwise qualified" and discussed the importance of considering reasonable accommodations in determining whether a handicapped individual is otherwise qualified for the job in School Board of Nassau County v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307, 321 n. 17 (1987):
“ 'An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.' Southeastern Community College v. Davis, 442 U.S. 397, 406 [99 S.Ct. 2361, 2367, 60 L.Ed.2d 980] (1979). In the employment context, an otherwise qualified person is one who can perform 'the essential functions’ of the job in question. 45 CFR Sec. 84.3(k) (1985). When a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any 'reasonable accommodation' by the employer would enable the handicapped person to perform those functions. Ibid. Accommodation is not reasonable if it either imposes 'undue financial and administrative burdens' on a grantee, Southeastern Community College v. Davis, 442 U.S., at 412 [99 S.Ct. at 2370], or requires 'a fundamental alteration in the nature of [the] program,’" Id., at 410 [99 S.Ct. at 2369],
. The second issue raised is whether Mr. Hosaf-look’s facts could support a cause of action for intentional infliction of emotional distress or the tort of outrage. The majority contends that, because Mr. Hosaflook was fired simultaneously with other salaried employees, there was nothing improper in the method of carrying out the termination. In my concurring opinion in Hines v. Hills Department Stores, Inc., 193 W.Va. 91, 98, 454 S.E.2d 385, 392 (1994) (per curiam), I pointed out that the essential elements of this cause of action are as follows:
"The four elements of the tort can be summarized as: (1) conduct by the defendant which is atrocious, utterly intolerable in a civilized community, and so extreme and outrageous as to exceed all possible bounds of decency; (2) the defendant acted with intent to inflict emotional distress or acted recklessly when it was certain or substantially certain such distress would result from his conduct; (3) the actions of the defendant caused the plaintiff to suffer emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.”
In my judgment, the facts of this case established sufficient evidence to forestall summary judgment on this cause of action.
The majority contends that the appellees had limited knowledge about Mr. Hosaflook’s vision impairment prior to firing him, therefore, there was nothing "outrageous” about their conduct. The majority has narrowed the full force of the evidence to reach its conclusion. I read the evidence as fully showing that the appellees were aware of the severity of Mr. Hosaflook’s eye impairment prior to terminating him. This is quite clear from the fact that he was placed on SCP. The totally unacceptable aspect surrounding the termination is that it came only a few days after Mr. Hosaflook was placed on SCP. This is the crux of the "outrage” in this case. Further, the evidence surrounding this matter was equally conflicting on both sides, with neither side having evidence any more persuasive than the other — this equipoised position is one of *348the classic "material factual disputes” that inhibit summary judgment. "[S]ummary judgment is appropriate only if the record reveals no issue of material fact and the movant demonstrates an entitlement to judgment as a matter of law.” Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W.Va. 692, 698, 474 S.E.2d 872, 878 (1996), citing W.Va.R.Civ.P. 56(c).
. The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing October 15, 1996, and continuing until further order of this Court.
. A reduction of hourly employees occurred in August, 1991. At that time, a reduction of salaried employees was not being considered.
. West Virginia Code § 5-11-3(m) (1994), defines handicap as follows:
The term "handicap” means a person who:
(1)Has a mental or physical impairment which substantially limits one or more of such person’s major life activities. The term "major life activities” includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;
(2) Has a record of such impairment; or
(3) Is regarded as having such an impairment.