MEMORANDUM OPINION AND ORDER
JOHN T. COPENHAVER, Jr., District Judge.
Pending is the motion for summary judgment filed on March 14, 2017, by defendant Drummond Ltd. ("Drummond"). This case presents a wrongful discharge claim based on age brought by a former employee under the West Virginia Human Rights Act.
Drummond is a limited partnership organized under the laws of Alabama with its principal place of business in Birmingham, Alabama, that conducts mining operations in Colombia.
Bostic was hired by Drummond's President and CEO, Mike Tracy, around March 11, 2013, to be the superintendent of those operations.
Bostic's only supervisor in Colombia was Ron Damron, whom Bostic did not know prior to being hired by Drummond.
According to Mullins, Bostic never did anything that was unsafe or that would put anyone's safety in jeopardy and he did not know of any performance issues relating to Bostic. Mullins Dep. at 17, 29-30.
In 2014, Damron wanted to hire an assistant superintendent who would be in charge when Bostic was home on his 7-day break.
After Bostic spent 3 to 6 months training Scott in Colombia, Damron called then 59 year-old Bostic on October 21, 2014, while on break in West Virginia and fired him.
Although Bostic states that he asked Damron multiple times why he was fired, Damron failed to give him a reason. Bostic Dep. at 37. Drummond's internal termination form additionally does not state the reason for his termination.
Bostic contends that he performed his duties admirably with Drummond and was never disciplined or criticized in any way. Bostic Dep. at 106, 158-59. Despite this, Bostic alleges that he was fired at age 59 due to his age, and replaced with Scott, a much younger worker, in violation of the West Virginia Human Rights Act, W. Va. Code § 5-11-1,
In its motion for summary judgment, Drummond asserts that the "last straw" that led to Bostic's termination occurred on the night of October 14, 2014. That night, Bostic was off duty so that Mullins was in charge of the mining operations. Pl.'s Resp. at 7; Bostic Dep. at 123-24. Bostic received a call that the operator failed to put the pins into the beams, and the beams were pushed 20 feet under the mountain before the mistake was realized. Pl.'s Resp. at 7; Bostic Dep. at 123-24. Without the pins in place, the system could not properly retract, meaning the miner head, which cuts the coal, would be stuck in the mountain. Pl.'s Resp. at 7; Bostic Dep. at 123-24; Def.'s Mem. at 8. Thus, it was imperative to formulate a plan to place the pins in the beams.
Bostic came to the site to help Mullins brainstorm ideas to solve the problem. Pl.'s Resp. at 7; Bostic Dep. at 123-24; Mullins Dep. at 37. Bostic and Mullins came up with several options, and called Damron to discuss them. Pl.'s Resp. at 7-8; Bostic Dep. at 124-26; Mullins Dep. at 37; Damron Dep. at 39. One of the options involved taking the augers out of one of the beams so that Mullins could crawl through the beam and manually put the pins in place. Pl.'s Resp. at 7-8; Bostic Dep. at 124-26; Mullins Dep. at 36-37. Because this plan would require putting Mullins inside the mountain under the unsupported roof, Damron rejected it. Pl.'s Resp. at 8; Bostic Depo at 125; Mullins Dep. at 38. Damron regarded the rejected plan as the "last straw" as to Bostic. Def.'s Mem. at 9, Damron Dep. at 36-37. Mullins, Bostic and Damron came up with an alternative plan and after a few hours, successfully put a single pin in place, which was sufficient to fix the problem. Pl.'s Resp. at 8; Bostic Depo at 125-27.
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material" facts are those necessary to establish the elements of a party's cause of action.
The moving party has the initial burden of showing — "that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case."
Inferences that are "drawn from the underlying facts. . . must be viewed in the light most favorable to the party opposing the motion."
1. WVHRA Requirements
In order to establish a prima facie case of age discrimination, Bostic must prove that (1) he is a member of a protected classification; (2) Drummond made an adverse decision concerning his employment; and (3) but for his protected status, the adverse decision would not have been made. Syl. Pt. 5,
"After the complainant makes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the negative action taken against the complainant."
B. Application of the Burden Shifting Test
Prima Facie Test
The first two elements of Bostic's prima facie case are easily satisfied. The protected classification includes individuals over 40 years of age, W. Va. Code § 5-11-3(k), and at the time of his termination, Bostic was 59. With respect to the second element, there is no dispute that Bostic's termination constituted an adverse employment decision.
Only the third element is at issue. As Bostic notes, in order to meet this element, a plaintiff need only show "some evidence which would sufficiently link the employer's decision and the plaintiff's status as a member of a protected class so as to give rise to an inference that the employment decision was based on an illegal discriminatory criterion."
In moving for summary judgment, Drummond contends that "there is simply no basis to support an inference that [Bostic] was terminated as a result of his age." Def.'s Mem. at 16. The court now assesses that contention.
In a recent decision, the West Virginia Supreme Court of Appeals held that,
Syl. Pt. 4,
The West Virginia Supreme Court of Appeals additionally held that a plaintiff may also satisfy the third prong of the prima facie age discrimination test by presenting evidence that "`a substantially younger' employee" — such as Sherman Mullins — "who engaged in the same or similar conduct for which the plaintiff faced an adverse employment decision, received more favorable treatment." Syl. Pt. 5,
The Court in
Bostic contends that he has put forth evidence that he meets the tests contained in syllabus points four and five of
Bostic further argues, citing the testimony of Mullins, that Scott immediately replaced Bostic after Damron fired him. Pl.'s Resp. at 14, n. 7. Mullins Dep. at 18-19. Drummond alternatively asserts that Scott did not immediately replace Bostic after his discharge. Def.'s Mem. at 11; Damron Dep. at 45, 66. It is undisputed that Scott, who was 15 years younger than Bostic, was immediately promoted in terms of his responsibilities, to take over those Bostic previously held, and a few months later, gained the title of superintendent of highwall mining operations.
Moreover, that Bostic was the only one punished for the events on October 14th further supports an inference of discrimination. Although Bostic was in charge of the mining operations, Mullins, who clearly held somewhat of a supervisory role in that he was in charge while Bostic was off duty or at home in West Virginia, was not disciplined or even interviewed about the events that took place that night.
In contending that Bostic cannot establish the third element of his prima facie case, Drummond makes the following arguments: (1) because Drummond hired Bostic when he was 58 years old and terminated him when he was 59, his termination could not be motivated by his age; (2) Bostic's case "consists chiefly of `conclusory allegations, improbable inferences, and unsupported speculation[;]'" and (3) because Bostic recruited Scott and recommended that Drummond hire him to be his assistant superintendent, Bostic cannot offer evidence to show that "Drummond's hiring of Joe Scott to replace him was anything other than `mere chance[;]'". Def.'s Mem. at 16-18.
Drummond's arguments are lacking in merit. Bostic alleges that while Mike Tracy hired him in 2013 knowing he was in his late 50s, it was Damron, who had no involvement in his hiring, who made the unilateral decision to terminate him in Colombia one and a half years later.
Bostic has put forward evidence that after his termination he was replaced by someone who is 15 years younger than him and while he was allegedly terminated for the events of the night of October 14th, Mullins, who was 44 years old and held some sort of supervisory role at the mining site, was not disciplined or even questioned about the events of the night. The court finds on these facts that Bostic has established the inference of discrimination required to meet the third element of the prima facie discrimination test. Accordingly, because Bostic has met his burden with respect to these elements, Bostic has established a prima facie case of discrimination.
Drummond's Nondiscriminatory Reasons for Firing Bostic
Because Bostic has established a prima facie case of discrimination, the burden of production shifts to Drummond "to come forward with a legitimate, nondiscriminatory reason for its action."
Drummond has come forward with three reasons for firing Bostic. First, Drummond says that Damron determined that Bostic "never fully embraced Drummond's commitment to mine safety." Def. Mem. at 2 (citing Damron Dep. at 31). According to Drummond, Bostic had performance issues relating to the company-wide effort to achieve Occupational Health and Safety Series ("OHSAS") 18001 certification, which "helps organizations put in place demonstrably sound occupational health and safety performance." Def. Mem. at 2, n. 1. To aid in obtaining the certification, the head of each division in Colombia was tasked with preparing and submitting a set of safety procedures that were followed in his operations.
Drummond also states that on multiple occasions, Damron "personally observed incidents of blatant disregard for important safety protocols occurring under Bostic's watch." Def.'s Mem. at 3; Damron Dep. at 29-30. Damron witnessed "virtually no lock out tag procedures being utilized," and a "lack of use of personal protective equipment." Def.'s Mem. at 3; Damron Dep. at 29-30. Damron testified that it was the responsibility of each individual that works "on the system to make sure the system is locked out before entering a place of an energized or possible moving parts area" and that it is the responsibility of the employees and "management all the way up through me to ensure that they utilize" the personal protective equipment. Damron Dep. at 29-30.
Second, Drummond asserts that Bostic was fired due to engagement and communication issues. According to Drummond, Bostic failed to make use of the planning system in place at Drummond for ordering parts. Def.'s Mem. at 3. Because Bostic did not properly implement the planning system, he was spending too much time ordering parts instead of managing the mining operations.
In addition, Drummond contends that Bostic was unwilling to engage with Damron when he came to review operations at the site. Def. Mem. at 5. Damron testified that
Damron Dep. at 19-20.
Damron testified that plaintiff was unable to answer basic but important questions about the state of the day-to-day operations. Def. Mem. at 6; Damron Dep. at 85-86. Drummond also contends Bostic instructed his crew not to speak to other Americans, including Damron. Def. Mem. at 7. Mullins testified that, "The one thing that [he and Damron] discussed was that [Bostic] didn't want us talking with other people about what was going on at the miner. . . . We had several people that had offered to help; sometimes we felt it was too much. But later on down the road, there were certain people that we were asked just not to speak to, you know, not to talk about miner business with." Mullins Dep. at 49-52.
Third, Drummond says the "watershed moment" that ultimately led to Bostic's firing occurred on the night of October 14, 2014. According to Drummond,
Def.'s Mem. at 8 (citing Damron Dep. at 36-40, Mullins Dep. at 38-40, Bostic Mem. at 123) (internal citations omitted).
3. Bostic Must Present Evidence of Pretext
Because Drummond has put forth non-discriminatory reasons for Bostic's firing, the burden shifts back to Bostic to present evidence of pretext. "[The Plaintiff] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."
To summarize, Drummond says that Bostic was fired for three reasons: (1) Bostic failed to prioritize establishing the safety procedures required for OHSAS 18001 and Damron witnessed Bostic's disregard of important safety measures; (2) Bostic had engagement and communication issues including his unwillingness to engage with the planning system and with Damron at the mine site, he instructed his crew not to speak to certain Americans, and he could not answer Damron's basic but crucial questions about the mining operations; and (3) the night of October 14, 2014, Bostic (though Mullins as well) suggested putting Mullins into the unsupported mine to put the pins in the beams manually and although Damron instructed Bostic not to move forward with the plan, it was underway when Damron arrived on site.
Bostic denies that he was fired for the reasons proffered by Drummond and states that Drummond "concocted a series of after-the-fact assertions in its discovery responses in an attempt to justify the illegal firing." Pl.'s Resp. at 18-19. Bostic consequently asserts that there is a genuine issue of material fact as to whether Drummond fired him for legitimate non-discriminatory reasons or whether the reasons were mere pretext. Id. at 18-19.
i. Mine Safety
As to the assertion that Bostic failed to prioritize mine safety, Bostic asserts that he "diligently worked to develop company safety standards for the highwall mining machine." Pl.'s Resp. at 6. Bostic testified to the following:
Bostic Dep. at 87, 101-102;
In its reply, Drummond asserts that while it did eventually receive the safety materials from Bostic's crew, it was only after Damron delegated the task to someone else that the necessary safety procedures were documented for OSHAS certification. Def.'s Reply at 5. Drummond also argues that while it took some time to finalize the safety procedures, it was the initial step of documenting safety procedures that Bostic failed to timely complete.
In response to Drummond's assertion that Bostic disregarded serious safety procedures, Bostic cites to testimony of Damron that no one in Bostic's crew was ever disciplined for failing to lock and tag out equipment or failing to use personal protective equipment except for being issued verbal reprimands. Pl.'s Resp. at 7; Damron Dep. at 31-33. He testified that the safety procedures he used were more stringent than those established by MSHA. Pl.'s Resp. at 3; Bostic Dep. at 88. Bostic points to Mullins' testimony that Bostic never did anything he considered to be unsafe or to put anyone's safety in jeopardy, that safety concerns were addressed and passed down to other employees, and that he was unaware of any issues that the safety department had with Bostic or his crew. Mullins Dep. at 17, 23-24.
The court finds that there are genuine questions of material fact with respect to whether Bostic failed to embrace safety procedures, as asserted by Drummond. While Drummond contends that Bostic failed to timely establish safety procedures for the highwall mining machine, that he brought these concerns to Bostic, and ultimately had to assign the task to someone else, Bostic and Mullins testified that they were not aware of any problems Damron or any other Drummond employee had with their establishment of safety procedures for the highwall mining machine. In addition, Bostic and Mullins' testimony disputes Drummond's contention that Bostic overlooked safety procedures. A jury could reasonably conclude from Bostic and Mullins' testimony that Bostic developed the safety procedures as instructed and that he did not disregard safety procedures.
ii. Engagement and Communication
Bostic denies that he had issues in engaging with and communicating with other Drummond employees. While Drummond contends that Bostic failed to engage with the planning system, which caused him to spend too much time ordering parts, Bostic stated that the bilingual planner who was supposed to assist him in ordering parts "did not have the proper experience or expertise to then assist Bostic." Pl.'s Resp. at 6. According to Bostic's testimony,
Bostic Dep. at 26-29;
Mullins testified to knowing of no performance issues regarding Bostic, and that while they disagreed about how many parts to order, he didn't "see anything that [he] thought that [Bostic] was doing out of the way." Mullins Dep. at 30.
Drummond cites to Mullins' testimony that he disagreed with Bostic about the number of parts that were ordered as evidence that Bostic was not doing his job satisfactorily. Def.'s Reply at 4. However, according to Damron's testimony and Drummond's motion for summary judgment, Bostic was fired, in part, because he was spending too much time ordering parts, not because he failed to order the proper number of parts. Def.'s Mem. at 3-4.
While Drummond, using Mullins' testimony, contends that Bostic instructed his crew not to speak to certain Americans, including Damron, Bostic testified that he never told his crew not to talk directly to Damron, but that he did not like it when they spoke to a certain supervisor who kept them from doing their work. Bostic stated,
Drummond Dep. at 105-06.
The court finds that Bostic has sufficiently raised a genuine question of material fact as to whether he was fired in part due to his inability to engage with and communicate with other Drummond employees or whether this was mere pretext for his firing. While Damron testified that Bostic refused to utilize the system for ordering parts, Bostic testified that he had difficulties training the helper because the helper did not have experience in longwall mining and had to learn about the system. Bostic also testified that he never received any complaints about his performance and Mullins additionally testified that he did not have any problems with Bostic beyond disagreements regarding the number of backup parts they should keep on hand and that he was not aware of any complaints about Bostic's performance. Finally, Bostic testified that he never told his crew to stay away from Damron, and additionally explained that he did ask them not to speak with a supervisor who kept his crew from doing their job. A reasonable jury could find from Bostic and Mullins' testimony that Bostic did not suffer from the communication and engagement failures that Drummond asserts led to his termination.
iii. October 14, 2014 Incident
Bostic disputes Drummonds' characterization of the events of October 14, 2014. According to Bostic's testimony, that night, he was off-site when he was called by Mullins and advised that the operator, Steve Caldwell, failed to put the pins into the beams before they were pushed twenty feet under the mountain. Bostic Dep. at 124. Bostic then came to the site and Caldwell, Mullins, and Bostic discussed various options to get the pins back into the beams.
Bostic called Damron, who was off-site, to advise him of the situation and to discuss various options for remedying the situation. Mullins Dep. at 38; Bostic Dep. at 125. During their conversation, Bostic brought up Mullins' idea to have Mullins crawl into the beam and put the pins in.
According to Bostic, no one physically carried out the plan or otherwise continued it after Damron rejected it during their phone conversation. Bostic Dep. at 125; Mullins Dep. at 38; Damron Dep. at 40 (stating that no one went "into the hole."). When Damron arrived on site, Bostic, Mullins and Damron came up with a plan where the machine shop made a "handle on . . . a 20-foot rod, a round thing to hold the pin where we could reach out there and try to drop it in." Pl.'s Resp. at 8; Bostic Dep. at 125. After one to two hours, Mullins was able to drop a pin in and Bostic "made the decision to pull [the beams] with one pin and it came out fine with one pin holding it." Bostic Dep. at 126-129. This resolved the issue.
Bostic testified that he did not send the rest of the crew away so that there would be no witnesses, as Drummond asserts, but because it took a while to make the rod in the machine shop, and "[i]t did not make sense to have ten employees standing around under the highwall, and consequently, those other employees were sent to do other things, including going to the arc, a place where spare parts were kept." Bostic Dep. at 125, 127. Mullins similarly testified that he and Bostic "sent the guys out to the arc to work so we could discuss and figure out what to do." Mullins Dep. at 40.
The court finds that there are genuine questions of material fact relating to the events of October 14, 2014. Damron testified that Bostic not only suggested a plan that required Mullins to be placed inside the mountain that was unsupported, but also that despite telling him on the phone not to carry out the plan, it was nevertheless underway when he arrived on site. According to Drummond, this was the last straw and led to Bostic's firing. However, both Bostic and Mullins testified that this plan was one of multiple options suggested, and that once Damron rejected the idea, they abandoned it so that it was not underway when Damron arrived.
Bostic has, at the least, raised serious questions of material fact with respect to whether the reasons given for his termination were legitimate or pretextual. The court finds that there are genuine questions of material fact regarding the proffered reasons for Bostic's termination. A reasonable jury could, upon review of the evidence, reject Drummond's listed reasons for terminating Bostic and instead find that he was fired due to his age based upon "proof of pretext,"
It is accordingly ORDERED that the motion for summary judgment filed by defendant Drummond Ltd. be, and it hereby is, denied.
The Clerk is requested to transmit copies of this order to all counsel of record and any unrepresented parties.