No. 23045 - David J. Hosaflook and Kathryn Hosaflook v. The Consolidation Coal Company,
Ronald Stovash and Thomas Simpson
Cleckley, Justice, dissenting:
I initially indicated my separate opinion would be a concurrence. After a closer look at the record
and the facts developed below, however, I find it necessary to dissent. Justice Potter Stewart
once remarked that "[i]n these circumstances the temptation is strong to embark upon a lengthy
apologia." Boy's Markets Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S. Ct. 1587,
26 L.Ed.2d 199 (1970). These remarks somewhat underscore the stress I feel when I must
confess at this time that initially I was in error ever to agree with the result reached by the circuit
court. However, like Justice Stewart, I will take refuge in an aphorism of Justice Felix
Frankfurter: "Wisdom too often never comes, and so one ought not to reject it merely because it
comes late." Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 589, 69 S. Ct. 290,
93 L.Ed.259 (1949) (Frankfurter, J., dissenting). This case presents an excellent opportunity for
this Court to close a loophole in our Human Rights Act (Act) with respect to all forms of
employment discrimination, and especially to those purveyed against persons with disabilities.
Unfortunately, the reasoning used and the result reached by the circuit court opened the hole, and
the majority has refused to close it. Thus, I respectfully dissent.
In presenting this appeal, Mr. Hosaflook argued that his termination violated the Act's ban on
employment discrimination against persons with disabilities and that the termination constituted
the tort of outrage. Although I will address each issue to some extent, I will primarily confine my
dissent to the discrimination issue raised by the appellant.
The circuit court ruled that Mr. Hosaflook failed to carry his burden of establishing a prima facie
showing of unlawful handicap discrimination and that summary judgment on this claim was
therefore appropriate. In affirming the circuit court's ruling on this claim, the majority has
concluded that Mr. Hosaflook failed to satisfy the second element of a prima facie case of
handicap discrimination, i.e., establishing that he is a qualified handicapped person.(1)
In my opinion, Mr. Hosaflook did put forth a prima facie case. West Virginia Code, 5-11-9(1)
(1992), of the Human Rights Act makes it an "unlawful discriminatory practice" for an employer
"to discriminate 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 blind or handicapped[.]" The Salary Continuance Program
(SCP), in which Mr. Hosaflook was a participant at the time of his termination, was clearly part of
the Consol package constituting the "compensation, hire, tenure, terms, conditions or privileges of
employment." If, as the plaintiff alleged, Consol decided to terminate his SCP benefits because of
his handicap, then it discriminated against him with regards to the terms, conditions or privileges
of his employment.
The majority, however, seizes on the language in Code, 5-11-9(1), that limits unlawful
discrimination to cases in which the individual is "able and competent to perform the services
required," and on the derivative requirement in the regulations and our case law that a plaintiff
claiming handicap discrimination must show the he or she can perform the essential functions of
the job. The majority looked to Black's Law Dictionary for the definition of "job" and to a pair of
decisions under the Fair Labor Standards Act, Jewell Ridge Coal Corp. v. Local No. 6167, 325
U.S. 161, 65 S. Ct. 1063, 89 L.Ed.2d 1534 (1945), and Tennessee Coal, Iron & R. Co. v.
Muscoda Local No. 123, 321 U.S. 590, 64 S. Ct. 698, 88 L.Ed. 949 (1944), to define "work."
Using those authorities, the majority concluded that "job" means physical or mental exertion,
controlled by the employer, for compensation. Continuing its exercise in logic, the majority then
deducts that Hosaflook must lose because he could not perform the job of an underground
foreman, and because the SCP did not require him to exert any effort or submit to the company's
control, and was therefore not a job.
Unfortunately, the majority failed to follow that reasoning to its logical conclusion. If the Court
had, it would realize that it has essentially written disability protection plans, such as the SCP, out
of the Human Rights Act. For in order to qualify for SCP, an employee must be disabled from
performing his regular assignments. Thus, if "job" and "services required" are limited to the
majority's narrow reading, then an employer could, without Human Rights Act liability, decide to
eliminate (for example) all black foremen from its SCP rolls because, by definition, those
employees on SCP are unable to perform the services of a foreman. Such a case is no different
from what Mr. Hosaflook has alleged, i.e., that he was selected for elimination because of his
membership in a protected class -- the class of handicapped persons. I find that result -- allowing
discrimination against persons with disabilities in the administration of a program to insure against
the effects of a disability on the rationale that the persons are not entitled to statutory protection
because they are disabled from working -- to be not only bizarre, but also antithetical to the
purposes of the Human Rights Act explicitly set forth by the Legislature in W. Va. Code 5-11-2
(1989). If the Act is read as the majority says it should be, it would afford no relief to an
individual receiving temporary(2) disability benefits when his employer says to him, "We are
terminating your employment and your benefits because you have a disability."
To avoid such an anomalous and unseemly result, the Act must be applied with greater sensitivity
to the context in which its terms are used and with greater deference to the legislative purposes.
Although authorities such as dictionaries and the case construing other statutes(3) can provide
relevant insights, blind reliance on them makes for an overly formalistic method of interpretation.
"Work" under the Fair Labor Standards Act, for example, may not be equivalent to "services
required" or "job" under the Human Rights Act and its regulations when the divergent legislative
contexts and purposes are taken into account. In this case, then, we must interpret the relevant
terms with an awareness that the Legislature has declared that discrimination in employment "is
contrary to the principles of freedom and equality of opportunity and is destructive to a free and
democratic society." W. Va. Code 5-11-2; seealso Hanlon v. Chambers, 195 W. Va. 99, 464
S.E.2d 741 (1995). Thus, the statute, and particularly its language in 5-11-9 defining unlawful
discriminatory practices, must be read so as to maximize the chances of eliminating the prohibited
biases from the spectrum of employment decisions. At the same time, we must not apply the law
in such a way as to unduly restrict management discretion. See United Steelworkers of America,
AFL-CIO-CLC v. Weber, 443 U.S.3 193, 99 S. Ct. 2721, 61 L.Ed.2d 480 (1979); Skaggs v. Elk
Run Coal Co., Inc., ___ W. Va. ___, ___ S.E.2d ___ (1996) (No. 23178 7/11/96). Considering
those legislative purposes, and the context in which the disputed terms appear, I believe that
"services required" and "job" should be determined by reference to the particular employment
contract, i.e., to what employers and employees believe to be are their respective obligations to
each other. Such an interpretation would promote the Act's purposes and would facilitate
application of the Act both by those it regulates and by those it protects.
Applying that approach, I find the Human Rights Act to apply to Mr. Hosaflook's termination
from SCP. Consol has, in effect, said to its management personnel, if you become disabled and if
you abide by our terms, we will pay you a salary for up to one year. Those terms become the job;
and in this case that has meaning. While on Consol's SCP, an employee is required to do all that
is necessary to recover from the injury suffered. This necessarily involves mental and physical
exertion by the employee, e.g., keeping medical appointments, attending and taking part in
physical and/or mental health therapy sessions. This is contrary to the majority's conclusion that
being on SCP was a virtual state of vegetation. The majority laments that the employer does not
control the activities or time of the employee that is on SCP. I disagree. The appellees have a
vested interest in knowing whether an employee on SCP is moonlighting on another job or surfing
on a California wave. See Davenport v. Epperly, 744 P.2d 1110 (Wy. 1987) (employee on salary
continuance plan fired after being caught hunting). While on SCP, Mr. Hosaflook was not free to
moonlight on another job; nor was he free to keep the appellees in the dark regarding his progress
or lack of progress in recovering from his disability. See Beauford v. Father Flanagan's Boy's
Home, 241 Neb. 16, 486 N.W.2d 854 (1992) (employee removed from salary continuance plan
for failing to allow employer's physician to examine her). In other words, Mr. Hosaflook's time
and activities were controlled by the appellees so long as he remained on SCP. Moreover, while
the appellees may have kept Mr. Hosaflook listed as a foreman, he was to be paid as a member of
SCP, i.e., his salary was in increments of a foreman's salary, not the full salary he would have
received as a foreman. In the event that an employee was on SCP for a year and showed no signs
of recovery from the disability, that employee's status would change to long term disability.(4)
Thus, the SCP was part of the employment contract between Consol and Mr. Hosaflook, with
responsibilities on both sides. Mr. Hosaflook's responsibilities under that contract became, for the
duration of his eligibility for SCP, the "services required" by the employer and thus constituted his
"job."(5)
Two options confronted Mr. Hosaflook in terms of his future with Consol: (1) remaining on the
short-term disability plan for a year and then switching to the long-term disability program, or (2)
removal from the short-term disability program with reassignment to an above-ground position.(6)
Both options were consistent with the terms or privileges of being on the short-term disability
program. And both the circuit court and the majority have failed to consider that Mr. Hosaflook
was "able and competent" to pursue either option.
Thus, Mr. Hosaflook stated a prima facie case: (1) he had a disability; (2) he was an employee
qualified to continue under Consol's SCP and qualified, with accommodation, for above-ground
employment; and (3) he was terminated. That, by itself, was enough to create an inference of
discrimination, which, barring unequivocal and unrebutted evidence of a legitimate employer
explanation for the termination, should have required the circuit court to reject the defendants'
motion for summary judgment. Because the lower court held that Mr. Hosaflook was not a
qualified person with a disability and could not invoke the statute's protections, it never reached
the issue of whether the defendant had an unequivocal and unrebutted explanation that defeated
the prima facie case. Nevertheless, the majority has based its decision, in part, on the theory that
there was no triable issue of fact on the question of discriminatory intent. I disagree with that
conclusion, and thus feel compelled to explain why this case should go to trial.
The record includes evidence that bolsters the inference of discrimination created by the prima
facie case, and that drew into question Consol's responsive explanation. As the majority explains,
the appellees' justification for terminating Mr. Hosaflook was that their decision was based on
foremen performance evaluations that were done for the period 1990-91. That evaluation period,
however, coincided with the onset of Hosaflook's eye disease and thus resulted in a low, perhaps
artificially low, performance score for him.(7) Nevertheless, when Consol learned of Mr.
Hosaflook's handicap and of its impact on his performance evaluation score, it failed to reconsider
the score's reliability as a measure of his competence and effort.
Depending upon the nature of their handicaps and employment, a substantial number of
handicapped employees will not fare as well as their peers on performance evaluations unless
reasonable accommodations were made for the effects of their handicap. In this case, no
accommodation was made for Hosaflook during 1990-91 because neither he nor Consol were
then aware of the need for it. According to Mr. Hosaflook, an employer who was not hostile to
persons with disabilities would have reconsidered, or even rejected as unreliable, any evaluations
done of him in 1990-91. Moreover, an employer who washostile to persons with disabilities
would seize on the opportunity to remove such individuals when presented with a facially neutral
reason (the RIF + evaluations) -- thus avoiding the costs of future accommodations and of other
responsibilities commonly associated with the employment of such individuals. Had a
reassessment of his work been performed, Mr. Hosaflook contends, it would have prompted a
nondiscriminating employer to place him above the RIF cut-off line for discharge. Consequently,
a reasonable trier of fact could conclude that the appellees purposefully eliminated him through
the RIF because of his disability rather than continuing him on the SCP or accommodating his
handicap in an above-ground position.
In sum, Mr. Hosaflook is a handicapped person who was (1) given a job performance evaluation by the appellees at a time when he and they were unaware of his handicap; (2) the handicap manifested itself during the period that the evaluation covered; (3) the evaluation produced a score diminished by his handicap; and (4) the evaluation was neither disregarded nor reconsidered, but was instead used against him to effect his termination. Although Mr. Hosaflook could perform above ground, the appellees made no effort to determine if a vacancy existed to which Mr. Hosaflook could have been reassigned.(8)
Although these facts do not inexorably lead to the inferences of discrimination that Mr. Hosaflook
would have us draw, I do think they follow reasonably. Accordingly, I believe he should have his
chance to convince a jury of his case.(9)
1.
"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...."
The majority has assumed, without analysis, that Mr. Hosaflook is "handicapped" within the
meaning of the Act. I will not take up this assumption.
2. 3. 4. 5. 6.
"If the employee cannot be accommodated in his or her current position, however it is
restructured, then the employer must inform the employee of potential job opportunities within
the company and, if requested, consider transferring the employee to fill the open position."
Although it would not be surprising in a RIF context that there would not be any openings, the
record here does not compel that conclusion. In any event, openings could have become available
after the RIF and prior to the end of the Hosaflook's one year on SCP that he may have been, with
accommodation, qualified to perform.
7.
with his vision until around the time that he was promoted to foreman. Dr. Murray indicated in
an affidavit "that the work problems Mr. Hosaflook experienced are consistent with the
manifestation of [retinitis pigmentosa] symptoms."
8.
"`An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap.' Southeastern Community College v. Davis, 442 U.S. 397, 406 [99 S.Ct. 2361, 2367, 60 L.Ed.2d 980] (1979). In the employment context, an otherwise qualified person is one who can perform 'the essential functions' of the job in question. 45 CFR Sec. 84.3(k) (1985). When a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any 'reasonable accommodation' by the employer would enable the handicapped person to perform those functions. Ibid. Accommodation is not reasonable if it either imposes 'undue financial and administrative burdens' on a grantee, Southeastern Community College v. Davis, 442 U.S.,
at 412 [99 S.Ct. at 2370], or requires 'a fundamental alteration in the nature of [the] program,'"
id., at 410 [99 S.Ct. at 2369].
9.
"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."
In my judgment, the facts of this case established sufficient evidence to forestall summary
judgment on this cause of action.
The majority contends that the appellees had limited knowledge about Mr. Hosaflook's vision impairment prior to firing him, therefore, there was nothing "outrageous" about their conduct. The majority has narrowed the full force of the evidence to reach its conclusion. I read the evidence as fully showing that the appellees were aware of the severity of Mr. Hosaflook's eye impairment prior to terminating him. This is quite clear from the fact that he was placed on SCP. The totally unacceptable aspect surrounding the
termination is that it came only a few days after Mr. Hosaflook was placed on SCP. This is the crux of the "outrage" in this case. Further, the evidence surrounding this matter was equally conflicting on both sides, with neither side having evidence any more persuasive than the other -- this equipoised position is one of the classic "material factual disputes" that inhibit summary judgment. "[S]ummary judgment is appropriate only if the record reveals no issue of material fact and the movant demonstrates an entitlement to judgment as a matter of law." Powderidge Unit Owners Association v. Highland Properties, Ltd., ___ W. Va. ___, ___, ___ S.E.2d ___, ___ (No. 23105 6/14/96) (slip op. at 7), citing W.Va.R.Civ.P. 56(c).