Stone v. St. Joseph's Hosp. of Parkersburg, No. 26962.

CourtSupreme Court of West Virginia
Writing for the CourtSTARCHER, Justice
Citation538 S.E.2d 389,208 W. Va. 91
PartiesIra Timothy STONE, Plaintiff below, Appellee, v. ST. JOSEPH'S HOSPITAL OF PARKERSBURG, a West Virginia Corporation, Cass Palmer and Jackie M. Scott, Defendants below, Appellants.
Decision Date14 July 2000
Docket NumberNo. 26962.

538 S.E.2d 389
208 W. Va. 91

Ira Timothy STONE, Plaintiff below, Appellee,
v.
ST. JOSEPH'S HOSPITAL OF PARKERSBURG, a West Virginia Corporation, Cass Palmer and Jackie M. Scott, Defendants below, Appellants

No. 26962.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 2000.

Decided July 14, 2000.


Concurring and Dissenting Opinion of Justice McGraw October 20, 2000

538 S.E.2d 392
Walt Auvil, Esq., Pyles and Auvil, Parkersburg, West Virginia, Attorney for Appellee

Ricklin Brown, Esq., Bowles, Rice, McDavid, Graff & Love, Charleston, West Virginia, for Amicus Curiae West Virginia Chamber of Commerce.

Bryan R. Cokeley, Esq., Sandra K. Wilson, Esq., Steptoe & Johnson, Charleston, West Virginia, Attorneys for Appellants.

Steven L. Thomas, Esq., Kay, Casto, Chaney, Love & Wise, Charleston, West Virginia, Attorney for Amicus Curiae West Virginia Hospital Association.

STARCHER, Justice:

This is an appeal from a circuit court's order entering judgment on a jury's finding that a hospital had committed disability discrimination against an ambulance paramedic employee of the hospital. We conclude that the jury was not properly instructed, and also that the plaintiff did not present a sufficient evidentiary case to prove disability discrimination. We reverse the circuit court's judgment order.

I.

Facts & Background1

The plaintiff below and the appellee before this Court is Mr. Ira Stone ("Mr. Stone"). In July of 1997, Mr. Stone had been an employee of St. Joseph's Hospital ("the Hospital"), the defendant below and appellant,2 in Parkersburg, West Virginia, for approximately 22 years. During his employment with the Hospital, Mr. Stone's principal work was as an EMT and then as a paramedic, on an ambulance crew. This is a highly skilled

538 S.E.2d 393
and physically demanding occupation. It involves driving an emergency vehicle, providing skilled emergency medical care, and engaging in regular, sometimes strenuous physical exertion — often under challenging physical and psychological circumstances. By all accounts, Mr. Stone did his work in an admirable fashion, always meeting and often exceeding expectations in his evaluations

On two occasions in July of 1997, Mr. Stone reported to the Hospital — on Workers' Compensation forms that the Hospital required to be filled out in instances of any sort of workplace injury — having had a minor strain to his back when he exerted himself in an on-the-job lifting maneuver. In both instances, a Hospital emergency room physician examined Mr. Stone, an x-ray was done, the physician found no problems, and Mr. Stone was released to work. On one occasion, a nurse noted the name of a narcotic-type pain relief medicine on one of the forms.3

In late July of 1997, after reviewing these report forms, several Hospital staff met and decided to take Mr. Stone off his regular ambulance paramedic job for an indefinite period pending the results of an independent medical examination; to reassign Mr. Stone to an office "dispatcher" position; and to schedule Mr. Stone for an independent medical examination by a back specialist.4

Several reasons for this decision were advanced at trial by the Hospital: (1) concern, based on the reports on the July forms (and on an alleged similar verbal report, see note 3 supra) that Mr. Stone could have a back problem that could worsen or become more severe if he had further back strain; (2) concern that such a back problem, and/or his use of a narcotic-type pain medication while working as an ambulance paramedic, could endanger Mr. Stone, his patients, his coworkers, or the public; and (3) concern that Mr. Stone, by formally reporting incidents of minor back strain in a somewhat unprecedented fashion, could be somehow "setting up" the Hospital for a workplace injury lawsuit.

Before Mr. Stone was formally informed of the decision to change him from his regular ambulance duties, he heard about the decision from a friend who also worked at the Hospital. Mr. Stone arranged to be examined on August 4, 1997, by Dr. Powderly, who is the chief of the medical staff at the Hospital. See note 3, supra. Dr. Powderly gave Mr. Stone a note saying that Mr. Stone was able to work at his ambulance job without restrictions. Dr. Powderly also made arrangements for Mr. Stone to be examined by a neurologist, Dr. Loar, on August 11. This specialist also found no limitations on Mr. Stone's ability to do his regular ambulance job.

On August 5 and August 11, 1997, Mr. Stone met with Hospital staff about the decision to transfer him to a dispatcher position. (He began work as a dispatcher on August 5.) At the meetings, Mr. Stone strongly objected to the transfer, stating that it was unnecessary, unfair, and unreasonable. He said that he had no work limitations or impairments. He provided a copy of Dr. Powderly's note, and Mr. Stone testified that he also told the Hospital of Dr. Loar's conclusion. Mr. Stone denied using the narcotic pain medicine, and gave an explanation of why its name appeared on an injury report form.5 See note 3, supra.

The Hospital would not retreat from the transfer decision and the Hospital proceeded

538 S.E.2d 394
to arrange for Mr. Stone to be examined by a specialist. This examination, apparently due to scheduling problems, did not take place until October 28, 1997. Meanwhile, while working as a dispatcher, Mr. Stone received the same rate of pay that he had received as an ambulance paramedic — a higher rate than the usual dispatcher pay rate — but he worked fewer hours per week. The Hospital contended that Mr. Stone chose to work fewer hours per week as a dispatcher than he had been working as an ambulance paramedic; Mr. Stone said he had no choice in the matter. Mr. Stone presented evidence showing that he had received a total of about $2,000.00 less in pay over the 4-month period that he was removed from ambulance duty.

After a full examination, Mr. Stone was medically cleared to return to his regular job by the back specialist, and on November 25, 1997, Mr. Stone returned to his ambulance paramedic position.

Shortly before he returned to his ambulance position on November 14, 1997, Mr. Stone filed the instant action against the Hospital, asserting, inter alia, disability discrimination under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq.6 The gist of Mr. Stone's disability discrimination complaint was that he was unreasonably and unnecessarily removed from his regular job — even though he had been fully cleared to work at that job by two doctors at the Hospital's own emergency room, and even though he had presented additional evidence of medical clearance from the chief of the Hospital's medical staff and a specialist. Mr. Stone noted that the Hospital never even contacted any of these physicians. Moreover, while the Hospital claimed to be motivated by a concern about Mr. Stone's use of a prescribed pain relief drug, Mr. Stone asserted the Hospital wrongfully ignored Mr. Stone's denial of taking the drug, and did not request that he take a drug test that would have shown whether he in fact presented any risk.

Mr. Stone also contended at trial that he believed that the decision by the Hospital to remove him from his ambulance job — a job in which he took great pride — had been influenced by another, undisclosed factor: Mr Stone's former wife's anger at him. The former Mrs. Stone was a management employee of the Hospital and a recent office-mate of one of the people involved in the decision to remove Mr. Stone from his ambulance position. Mr. Stone had successfully litigated an alimony claim against the former Mrs. Stone, and in June of 1997 he had attached her wages at the Hospital to collect the alimony. Mr. Stone testified that his former wife had threatened him with retribution in June of 1997; she denied making any such threats.

At trial, the Hospital contended that what the Hospital did regarding Mr. Stone was entirely reasonable and generous under the circumstances — and was done entirely out of proper precautionary and safety-related motives. The Hospital argued that it was applying its "light duty" employment policy in requiring Mr. Stone to leave his normal work assignment, and in requiring him to not engage in exertional work until and unless he was cleared by an independent examining physician.7

The Hospital also argued that it did no harm to Mr. Stone in the job reassignment, because he was paid at his regular rate and because he was reinstated to his ambulance paramedic position without any detriment.

538 S.E.2d 395
At trial, the jury found for Mr. Stone, and awarded him damages of $2,125.44. The circuit court entered judgment on this verdict. It is from this judgment order that the Hospital appeals.

III.

Standard of Review

The Hospital makes two basic arguments on appeal. First, the Hospital argues that the circuit judge failed to properly instruct the jury as to the law applicable to the case. We review instructions by looking at the charge as a whole, giving due regard to the judge's discretion in formulating the court's statements of the law, and in this case looking particularly to whether the court refused to instruct the jury with correct law as submitted by the Hospital that was not covered otherwise in the charge. As we stated in Syllabus Point 4 of State v. Guthrie, 461 S.E.2d 163, 194 W.Va. 657 (1995):

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to
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28 practice notes
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...law "should amount to nothing more than Pavlovian responses to federal decisional law." Stone v. St. Joseph's Hosp. of Parkersburg , 208 W. Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, in part, and dissenting, in part).Fourth, the circuit court, and by extension the majo......
  • Burke v. Wetzel Cnty. Comm'n, No. 17-0485
    • United States
    • Supreme Court of West Virginia
    • June 6, 2018
    ...Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human Rights Comm’n, 172 W. Va. 627, 637, 309 S.E.2d 342, 352 (1983).38 Id.39 208 W. Va. 91, 538 S.E.2d 389 (2000).40 Id. at Syl. Pt. 3 (emphasis added); see also W. Va. Code § 5-11-3 (2013).41 W. Va. C.S.R. § 77-1-2.1 through -2.3 (2018......
  • In re West Virginia Rezulin Litigation, No. 30958
    • United States
    • Supreme Court of West Virginia
    • July 3, 2003
    ...Pavlovian responses to federal decisional law." 213 W.Va. at 675, 584 S.E.2d at 531, (quoting Stone v. St. Joseph's Hosp. of Parkersburg, 208 W.Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, in part, and dissenting, in part) (holding that West Virginia disability discrimin......
  • State v. Herbert, Nos. 13–1264
    • United States
    • Supreme Court of West Virginia
    • November 25, 2014
    ...“should amount to nothing more than Pavlovian responses to federal decisional law.” Stone v. St. Joseph's Hosp. of Parkersburg, 208 W.Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, in part, and dissenting, in part).Our reading of the majority approach is that it impedes a ......
  • Request a trial to view additional results
28 cases
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...law "should amount to nothing more than Pavlovian responses to federal decisional law." Stone v. St. Joseph's Hosp. of Parkersburg , 208 W. Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, in part, and dissenting, in part).Fourth, the circuit court, and by extension the majo......
  • Burke v. Wetzel Cnty. Comm'n, No. 17-0485
    • United States
    • Supreme Court of West Virginia
    • June 6, 2018
    ...Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human Rights Comm’n, 172 W. Va. 627, 637, 309 S.E.2d 342, 352 (1983).38 Id.39 208 W. Va. 91, 538 S.E.2d 389 (2000).40 Id. at Syl. Pt. 3 (emphasis added); see also W. Va. Code § 5-11-3 (2013).41 W. Va. C.S.R. § 77-1-2.1 through -2.3 (2018......
  • In re West Virginia Rezulin Litigation, No. 30958
    • United States
    • Supreme Court of West Virginia
    • July 3, 2003
    ...Pavlovian responses to federal decisional law." 213 W.Va. at 675, 584 S.E.2d at 531, (quoting Stone v. St. Joseph's Hosp. of Parkersburg, 208 W.Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, in part, and dissenting, in part) (holding that West Virginia disability discrimin......
  • State v. Herbert, Nos. 13–1264
    • United States
    • Supreme Court of West Virginia
    • November 25, 2014
    ...“should amount to nothing more than Pavlovian responses to federal decisional law.” Stone v. St. Joseph's Hosp. of Parkersburg, 208 W.Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, in part, and dissenting, in part).Our reading of the majority approach is that it impedes a ......
  • Request a trial to view additional results

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