Submitted: May 28, 1996
Rehearing Granted: September 12, 1996
Filed: December 10, 1996
Allan N. Karlin
Allan N. Karlin & Associates
Morgantown, West Virginia
Attorney for the Appellants
Steven P. McGowan
John R. Merinar, Jr.
Steptoe & Johnson
Charleston, West Virginia
Attorneys for the Appellees
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUDGE RECHT sitting by temporary assignment.
1. When an employee is discharged from his job because of a handicapped
condition, as defined by the West Virginia Human Rights Act, W.Va. Code § 5-11-1, et seq.,
and a term of employment is participation in a salary continuation plan and one of the results
of termination of employment is cessation of that participation, it may be readily concluded
that the termination of the employment because of the handicap resulted in discrimination
in the terms of employment by reason of a handicap.
2. If discriminatory conduct is prohibited by the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12101, et seq. (1990), then the Employment Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001, et seq., does not pre-empt the prohibition
of West Virginia's Human Rights Act, W.Va. Code § 5-11-1, et seq., of the same
discriminatory conduct. 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[.]" 42 U.S.C. § 12112(b)(4) (1990).
This case is before usSee footnote 1 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.
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
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
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
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,
Consol's Vice-President of Fairmont Operations.See footnote 2 Eventually, it was determined that a total
of twenty salaried positions would be eliminated at Robinson Run Mine. In early March,
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. Hosaflook'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
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. Schiffbauer
and Mr. Simpson met with Mr. Hosaflook 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. Hosaflook 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, "[p]laintiff 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 "[c]learly
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 pigmentosa. 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 discharge 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.
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)).
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. Hosaflook'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 foreman 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.See footnote 3 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 § 5-11-3(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 prima facie case of handicap discrimination pursuant to W.Va. Code § 5-11-9(l):
In order to establish a case of discriminatory discharge under W.Va. Code, 5-11-9 , 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.
Morris Nursing Home v. Human Rights Commission, 189 W.Va. 314, 318, 431 S.E.2d 353,
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. Examples 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. Hosaflook 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 pre-emption 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 pre-emption 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, pre-empted 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 here 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
ERISA 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.
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 case.
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 plaintiff's 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 emotional 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
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.
Footnote: 1 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.
Footnote: 2 A reduction of hourly employees occurred in August, 1991. At that time, a reduction of salaried employees was not being considered.
Footnote: 3 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.