Hosaflook v. Consolidation Coal Co.

• Decision Date: 19 February 1997
• Docket Number: No. 23045,23045
• Citation: 201 W.Va. 325,497 S.E.2d 174
• Court: West Virginia Supreme Court
• Parties: , 10 NDLR P 80 David J. HOSAFLOOK and Kathryn Hosaflook, Plaintiffs Below, Appellants, v. The CONSOLIDATION COAL COMPANY, Ronald Stovash and Thomas Simpson, Defendants Below, Appellees. . Rehearing Granted

Page 174

497 S.E.2d 174

201 W.Va. 325, 10 NDLR P 80

David J. HOSAFLOOK and Kathryn Hosaflook, Plaintiffs Below, Appellants, v. The CONSOLIDATION COAL COMPANY, Ronald Stovash and Thomas Simpson, Defendants Below, Appellees.

No. 23045.

Supreme Court of Appeals of West Virginia.

Rehearing Granted Feb. 19, 1997.

Submitted Upon Rehearing March 18, 1997.

Decided June 2, 1997.

Dissenting opinion of Justice Starcher

Dec. 17, 1997.

Syllabus by the Court

1. "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).

2. " 'Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.' Syl. pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 3, Cannelton Industries, Inc. v. Aetna Casualty & Surety Co. of America, 194 W.Va. 203, 460 S.E.2d 18 (1994).

3. "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." Syl. pt. 2, in relevant part, Morris Memorial Convalescent Nursing Home, Inc. v. Human Rights Commission, 189 W.Va. 314, 431 S.E.2d 353 (1993).

4. " ' " 'The primary object in construing a statute is to ascertain and give effect to the intent of the legislature.' Syl. Pt. 1, Smith v. State Workmen's Compensation Comm., 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syl. Pt. 2, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984).' Syllabus point 2, Lee v. West Virginia Teachers Retirement Board, 186 W.Va. 441, 413 S.E.2d 96 (1991)." Syl. pt. 2, Francis O. Day Co., Inc. v. Director, Division of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994).

5. " 'Generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use.' Syl. Pt. 4, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959)." Syl. pt. 3, Byrd v. Board of Education of Mercer Co., 196 W.Va. 1, 467 S.E.2d 142 (1995).

6. In order to establish a prima facie case of handicap discrimination pursuant to W. Va.Code, 5-11-9 [1992] of the West Virginia Human Rights Act, which provides that it is unlawful "[f]or any employer to discriminate 7. "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." Syl. pt. 6, Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).

                [201 W.Va. 327] 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 ... handicapped[,]" a claimant must prove, inter alia, that he or she is a "qualified handicapped person" as that term is defined in 77 C.S.R. § 1-4.2 [1991].  77 C.S.R. § 1-4.2 [1991] defines "qualified handicapped person" as "an individual who is able and competent, with reasonable accommodation, to perform the essential functions of the job in question."   Furthermore, 77 C.S.R. § 1-4.3 [1991] defines "able and competent" as "capable of performing the work and can do the work[.]"  An individual who can no longer perform the essential functions of a job either with or without reasonable accommodation and, thus, who is receiving benefits under a salary continuance plan which does not provide otherwise, is not performing the essential functions of a job by being a benefit recipient.  Therefore, that person is not a "qualified handicapped person" within the meaning of the West Virginia Human Rights Act
                

8. "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." Syl. pt. 2, Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994).

Allan N. Karlin, Morgantown, for Appellants.

Steven P. McGowan, Steptoe & Johnson, Charleston, for Appellees.

Daniel L. Stickler, Erin Elizabeth Magee, Jackson & Kelly, Charleston, for Amicus Curiae West Virginia Coal Association and West Virginia Mining and Reclamation Association.

Evan H. Jenkins, Charleston, for Amicus Curiae West Virginia Chamber of Commerce.

McHUGH, Justice:

The appellants, David J. Hosaflook and Kathryn Hosaflook, appeal the January 12, 1995 order of the Circuit Court of Monongalia County which granted summary judgment for the appellees, Consolidation Coal Company (hereinafter "Consol"); Ronald Stovash, the vice-president of Consol's Fairmont operations; and Thomas Simpson, the superintendent of Consol's Robinson Run Mine, an underground coal mine located in Monongalia County. The circuit court granted summary judgment after concluding that the appellants failed to establish a prima facie case of handicap discrimination under the West Virginia Human Rights Act, set forth in W. Va.Code, 5-11-1, et seq., and failed to set forth facts which would constitute the tort of outrage.

As we will explain more fully below, this case is before us on a second rehearing. Upon reconsideration for a second time, we affirm the January 12, 1995 order of the circuit court.

I Facts

David Hosaflook began working for Consol in 1975 as an hourly employee in its Robinson Run Mine and continued in that position until 1990 when Consol offered him a salaried In August of 1991 Consol conducted its annual performance evaluations of all of its salaried employees for merit pay purposes. Hosaflook's evaluation made him one of the lowest ranked salaried employees at the Robinson Run Mine.

[201 W.Va. 328] position of mine foreman which he accepted. Soon after his promotion, Hosaflook and his supervisors noticed that he was experiencing problems at work such as stumbling, bumping into things, and having trouble completing the required paperwork. However, at that time Hosaflook did not know why he was experiencing these problems.

In November of 1991 Hosaflook realized that the difficulties he was experiencing (the stumbling, bumping into things, and inability to complete the required paperwork on time) arose from a vision problem which he kept to himself for a period of time. On February 5, 1992, Hosaflook was diagnosed with retinitis pigmentosa (hereinafter "R.P."), a degenerative eye condition that eventually leads to permanent blindness. Hosaflook spoke to his supervisor, Denver Johnson, and a personnel officer, Mark Schiffbauer, and told them he had been diagnosed with R.P. and needed to see a specialist.

In the early part of 1992 Ronald Stovash, Consol's vice-president of Fairmont operations, determined that a reduction in force among salaried employees at the Robinson Run Mine was necessary. ¹ It was decided that twenty salaried positions would be eliminated. Thus, in early March of 1992 Consol informed all of its salaried employees of the impending reduction in force at a meeting attended by Hosaflook. Consol explained at this meeting that its intention was to use the lowest scores from the 1991 evaluation performances to select those subject to the reduction in force if enough salaried employees did not voluntarily retire.

On March 25, 1992, Hosaflook delivered to Consol a letter from his optometrist, dated the same day, describing the severity of his eye problem. The letter stated that Hosaflook should not work in an underground mine again due to his eye condition and thus, should be put on long-term disability. Hosaflook states that he and Consol knew at this time that he would never be able to work underground again as a result of his eye condition.

Because Consol's long-term disability plan does not provide benefits until one year after the onset of a total disability, Hosaflook was immediately put on Consol's salary continuance plan which is regulated under the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA"), 29 U.S.C. § 1001, et seq. The salary continuance plan provides incremental continuation of an employee's salary and benefits during periods of short-term illness and disability. The plan expressly states that an employee on the salary continuance plan remains subject to a reduction in force.

On April 1, 1992, Consol terminated Hosaflook's employment as part of the reduction in force. This action resulted in the termination of Hosaflook's benefits under the salary continuance plan. ² Hosaflook asked Simpson if he could remain on the salary continuance plan because of his eye condition. Additionally, Mrs. Hosaflook called Schiffbauer and requested that Consol leave her husband on the salary continuance plan until the long-term disability program took effect. Both Simpson and Schiffbauer relayed these requests to Stovash who...