Smith v. Apex Pipeline Servs., Inc.

• Decision Date: 04 April 2013
• Docket Number: No. 11–1610.,11–1610.
• Citation: 230 W.Va. 620,741 S.E.2d 845
• Court: West Virginia Supreme Court
• Parties: Jason S. SMITH, Plaintiff Below, Petitioner v. APEX PIPELINE SERVICES, INC., Defendant Below, Respondent.

230 W.Va. 620

741 S.E.2d 845

Jason S. SMITH, Plaintiff Below, Petitioner

v.APEX PIPELINE SERVICES, INC., Defendant Below, Respondent.

No. 11–1610.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 19, 2013.

Decided April 4, 2013.

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. “ ‘ “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt. 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. “Summary judgment is appropriate if, from the totality of the evidence presented, the record 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. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

4. “In order to make a prima facie case of discrimination under W.Va.Code, 23–5A–1, the employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings were instituted under the Workers' CompensationAct, W.Va.Code, 23–1–1 et seq.; 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.” Syl. Pt. 1, Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991).

5. “ ‘A plaintiff may establish a “deliberate intention” in a civil action against an employer for a work-related injury by offering evidence to prove the five specific requirements provided in [W.Va.Code § 23–4–2(d)(2)(ii) (2010) ].’ Syl. Pt. 2, Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).” Syl. Pt. 3, Tolley v. ACF Industries, Inc., 212 W.Va. 548, 575 S.E.2d 158 (2002).

Charles M. Love, IV, Esq., Marvin W. Masters, Esq., The Masters Law Firm lc, Charleston, WV, for Petitioner.

Mary H. Sanders, Esq., J. Todd Bergstrom, Esq., Huddleston Bolen, LLP, Charleston, WV, for Respondent.

PER CURIAM:

This case is before this Court upon the appeal of a final order of the Circuit Court of Kanawha County, West Virginia, entered on October 18, 2011, granting summary judgment in favor of Respondent Apex Pipeline Services, Inc. (“Apex”), in a “deliberate intention” action filed pursuant to West Virginia Code § 23–4–2(d)(2)(ii) (2010), and which also alleged workers' compensation discrimination. On appeal, Petitioner Jason S. Smith contends that the circuit court erred in granting summary judgment on both claims because genuine issues of material fact exist as to whether Apex acted with deliberate intention to cause the petitioner's injury, and whether Apex refused to rehire the petitioner in retaliation for filing a workers' compensation claim. This Court has carefully considered the briefs and arguments of the parties, the appendix record, and the applicable legal authority. For the reasons set forth below, the order of the circuit court is affirmed.

I. Facts and Procedural Background

On or about September 4, 2008, the petitioner was hired by Apex as a general laborer to work on a pipeline project in Boone County, West Virginia. According to Robert Keaton, Apex's Vice President of Operations and the petitioner's supervisor on the project, Apex routinely hires “out of the union hall” for pipeline projects and specifically asks for “pipeline laborers.” He testified that these workers are “supposed to be trained professionals when they come [however], we always put them with our trained people until we figure out if they are actually what they say they are.” ¹

At the end of the workday on September 30, 2008, two pipes were laid side by side diagonally across a trench so that they could be lowered into the trench for welding the next morning. According to Mr. Keaton and Christopher Graham, the side boom operator on the project, the pipes were secured by a wooden chock on one side of the pipes and, on the other side, were cradled in loose dirt that was removed from the trench.² After the petitioner placed the strap from the side boom around the center of one of the pipes, Mr. Graham lifted it with the side boom in order to lower it into the trench. Both Mr. Keaton and Mr. Graham testified that it is the responsibility of the laborers (here, the petitioner) to then move the chock flush to the pipe that remained lying across the trench. However, the petitioner failed to move the chock to the remaining pipe and, as a result, that pipe was left unsecured.³ Then, when the petitioner entered the trench in order to set the skids on which the first pipe would be set, the unsecured pipe rolled into the trench and struck the petitioner in the back.⁴ The petitioner sustained back and other injuries as a result of the accident. He subsequently applied for and received workers' compensation benefits for his injury.

In May of 2009, even though he was physically unable to perform his pre-injury job duties, the petitioner contacted Apex to inquire whether the company had any work.⁵ Mr. Keaton advised him that there was no available work at that time. He explained that because the project for which the petitioner was specifically hired was completed, he and many other workers hired for the project were laid off. More specifically, he testified that there were “lots of them we didn't bring back[,]” that “[w]e [were] done with the ones that we called out of the union hall [, and] [a]s their job finishes, we send them back to the union hall.” With regard to the petitioner's employment at Apex, Mr. Keaton testified that “he [was] laid off. No one terminated him or discharged him, because we [were] done with his services.” Moreover, the petitioner testified that, following his conversation with Mr. Keaton, he believed there was no available work at Apex.

On or about May 21, 2009, the petitioner filed for unemployment compensation benefits. The required “Request for Separation Information” form stated that the petitioner was separated from employment due to “Lack of Work.” However, Pamela D. Perry,⁶ Secretary/Treasurer of Apex, also indicated on the form that the reason for the petitioner's separation was “discharge” and that he was “injured on job[;] workers comp. injury—settlement granted 4/22/09.” When the petitioner contacted Ms. Perry to inquire about the discrepancy on the form,⁷ she acknowledged her error and took immediate action to correct it.⁸ Soon thereafter, the petitioner was awarded unemployment compensation benefits.

On November 6, 2009, the petitioner filed the instant action alleging deliberate intention and workers' compensation discrimination. ⁹ On August 11, 2011, Apex filed a motion for summary judgment. Following a hearing on the matter, the circuit court entered its Order Granting Defendant's Motion for Summary Judgment, in which it concluded that the petitioner failed to present evidence supporting four of the five elements required for a deliberate intention claim as set forth in West Virginia Code § 23–4–2(d)(2)(ii)(A)–(D), and further failed to demonstrate that the petitioner's filing of a workers' compensation claim was a significant factor in Apex's decision not to rehire him, in violation of West Virginia Code § 23–5A–1 (2010).¹⁰ This appeal followed.

II. Standard of Review

This case is before the Court on appeal of the circuit court's order granting summary judgment in favor of Apex. Accordingly, our review of this appeal is de novo. As we held in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 190, 451 S.E.2d 755, 756 (1994), “[a] circuit court's entry of summary judgment is reviewed de novo.” In performing our plenary review, we are mindful that

“ ‘[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

Painter, 192 W.Va. at 190, 451 S.E.2d at 756, syl. pt. 2. Moreover, both this Court and the court below “must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion.” Id. at 192, 451 S.E.2d at 758.

Finally, we note that

[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record 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. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 56, 459 S.E.2d 329, 333 (1995).

III. Discussion

A. Workers' Compensation Discrimination Claim

The first issue for our review is whether the circuit court properly concluded that the petitioner failed to present sufficient evidence of discriminatory conduct to withstand Apex's motion for summary judgment. The petitioner argues that genuine issues of material fact exist as to whether Apex violated West Virginia Code § 23–5A–1, which provides as follows:

No 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 benefits under this chapter.

This Court has previously held that

[i]n order to make a prima facie case of discrimination under W.Va.Code, 23–5A–1, the employee must prove that: (1) an on-the-job injury was...