                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


LEONARD KESSELL,                         
                   Plaintiff-Appellee,
                 v.
SOUTH CHARLESTON STAMPING &
MANUFACTURING COMPANY,
              Defendant-Appellant,
                                               No. 01-2080
                and
MAYFLOWER ACQUISITIONS,
INCORPORATED; MAYFLOWER
HOLDINGS, INCORPORATED;
MAYFLOWER, P.L.C.,
                        Defendants.
                                         
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              John T. Copenhaver, Jr., District Judge.
                         (CA-96-1939-2)
                       Argued: May 8, 2002
                       Decided: June 5, 2002
      Before WILKINSON, Chief Judge, and WILKINS and
                  LUTTIG, Circuit Judges.


Affirmed by unpublished per curiam opinion.


                             COUNSEL
ARGUED: Bryan Rex Cokeley, STEPTOE & JOHNSON, P.L.L.C.,
Charleston, West Virginia, for Appellant. Amy Martin Herrenkohl,
2     KESSELL v. SOUTH CHARLESTON STAMPING & MANUFACTURING
HERRENKOHL LAW OFFICE, Barboursville, West Virginia, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Plaintiff Leonard Kessell sued defendant South Charleston Stamp-
ing & Manufacturing Company ("SCSM"), alleging that SCSM had
terminated him and then failed to reinstate him in violation of West
Virginia law. The jury found for SCSM on all but the failure to rein-
state claim. The district court then denied SCSM’s motion to have the
verdict in favor of Kessell on that claim set aside. Because there was
sufficient evidence for a jury to find that Kessell had not been rehired
as a result of filing this lawsuit, we affirm.

                                   I.

   Plaintiff Leonard Kessell was a manufacturing associate for South
Charleston Stamping & Manufacturing Company, an automotive
stamping plant that converts sheets of metal into auto body parts. On
March 5, 1993, Kessell injured his hand at work when he fell and hit
his hand on a piece of equipment. Over the next year, Kessell re-
injured his hand several times. As a result of these injuries, Kessell
was not able to work and received temporary total disability benefits
("TTD") until October 7, 1994. He also applied for Social Security
disability benefits ("SSI"), which were denied.

   In September 1994, Kessell’s treating physician reported to the
West Virginia Workers’ Compensation Division that Kessell had
reached his maximum degree of medical improvement and could
return to work without restrictions as of September 30, 1994. Dis-
agreeing with this diagnosis, Kessell sought out another treating phy-
      KESSELL v. SOUTH CHARLESTON STAMPING & MANUFACTURING            3
sician who wrote a letter to the Workers’ Compensation Division
informing it that Kessell was still disabled and could not return to
work. Kessell continued to seek TTD and SSI benefits. On December
14, 1994, SCSM wrote to Kessell requesting an update on his condi-
tion. Kessell went to the SCSM plant on December 19, and allegedly
informed SCSM that he would not be able to work and was pursuing
SSI benefits.

   On December 20, 1994, Kessell’s employment at SCSM was ter-
minated. There is a dispute regarding whether Kessell resigned or was
fired. Kessell claims he was fired after he went to the plant to speak
to Bob Vicars, SCSM’s human resources manager. Kessell contends
that he talked to Vicars about the fact that his TTD benefits had been
cut off, and that Vicars agreed to write a letter stating that there was
no work that Kessell could do at SCSM’s plant due to his injury. Vic-
ars, on the other hand, claims that Kessell told him that he was com-
pletely disabled and therefore, Kessell needed a letter saying SCSM
did not have work for him so that he could get SSI benefits. Vicars
contends that he told Kessell he could not write a letter stating there
was no work because SCSM hired people every day. Instead, Vicars
claims that he offered to write a letter saying that Kessell no longer
worked at SCSM and was not going to be able to come back to work.
Regardless, Kessell contends that he was "shocked" to receive a ter-
mination letter from SCSM soon after the meeting.

   On September 26, 1996, Kessell filed a three count lawsuit against
SCSM in West Virginia.1 This complaint alleged that SCSM had
unlawfully terminated Kessell on December 20, 1994, in violation of
W. Va. Code § 23-5A-3(a) ("Count 1"); that SCSM had unlawfully
failed to reinstate Kessell in 1996, in violation of W. Va. Code § 23-
5A-3(b) ("Count 2"); and that SCSM failed to rehire Kessell in
August 1997 in retaliation for filing this lawsuit, in violation of W.
Va. Code § 23-5A-1 ("Count 3").

  In July 1998, after a seven day trial, the jury found in favor of
SCSM on Counts 1 and 2, but found in favor of Kessell on Count 3.
  1
  This case was originally brought in West Virginia state court, but
SCSM removed the case to federal court based on potential ERISA pre-
emption.
4       KESSELL v. SOUTH CHARLESTON STAMPING & MANUFACTURING
The jury awarded Kessell compensatory damages of $27,144,
$18,096 in lost wages and $9,048 for past emotional distress and
aggravation, and punitive damages of $25,000. With interest, the total
award was for $55,476.69.

   Subsequently, SCSM filed a motion pursuant to Rules 50 and 59(e)
of the Federal Rules of Civil Procedure seeking to alter or amend the
judgment and have the verdict on Count 3 set aside in its entirety in
order to "prevent manifest injustice." SCSM contended that the jury,
in finding in its favor on Count 1, must have determined that Kessell
voluntarily quit his employment on December 20, 1994 and was,
therefore, lying about what occurred at the December 20 meeting with
Vicars. Thus, SCSM argued, the jury was required to accept its con-
tention that Kessell was not reinstated in August 1997 because he had
not been truthful about what occurred at the December 20 meeting.
Therefore, SCSM maintained that the jury could not find, as Kessell
had argued, that he was not rehired in retaliation for filing the lawsuit.2

   On August 8, 2001, the district court denied SCSM’s motion. The
district court noted that SCSM had stressed in its closing argument
the theory that "the first and third claims rose or fell on whether the
plaintiff was discharged or voluntarily resigned on December 20,
1994." Despite this theory, the jury found that SCSM’s claim that
Kessell was not rehired because he was not truthful about the Decem-
ber 20 meeting was pretextual, concluding instead that SCSM had
indeed refused to reinstate Kessell because he had filed the lawsuit.
The district court held that the jury was entitled to make such a find-
ing based on the evidence before it and denied SCSM’s motion.
SCSM appeals.

    2
   SCSM also moved to have the punitive damages award set aside, con-
tending that its conduct did not support an award of punitive damages
under West Virginia law, and that the compensatory award included a
provision for past emotional distress and aggravation making it, in effect,
a punitive award. The district court denied this motion and SCSM has
not pursued this issue on appeal.
     KESSELL v. SOUTH CHARLESTON STAMPING & MANUFACTURING             5
                                  II.

  As an initial matter, we review the district court’s denial of a Rule
59(e) motion to alter or amend the judgment for abuse of discretion.
See Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 402 (4th
Cir. 1998).

  In this case, SCSM argues that in finding for it on Count 1, the jury
necessarily found that Kessell had voluntarily resigned on December
20. Therefore, SCSM contends that Kessell could not recover on
Count 3 because it presented the jury with a legitimate, nondiscrimi-
natory reason for not reinstating Kessell in August 1997, namely that
Kessell was not rehired because he lied about the events of December
20. However, there is no necessary inconsistency between the jury’s
verdicts on Counts 1 and 3 in this case. The jury could have indepen-
dently found that Kessell was not rehired because he filed the lawsuit,
even if the jury believed that Kessell’s version of the December 20
meeting was not accurate.

   Section 23-5A-1 of the West Virginia Code prohibits an employer
from discriminating against an employee for receiving or attempting
to receive benefits under West Virginia’s Workers’ Compensation
Act. Among other things, it is considered discriminatory for an
employer to retaliate by firing or failing to reinstate an employee in
response to the employee’s filing a lawsuit alleging discrimination
under the Act. The West Virginia Supreme Court of Appeals has
noted that in determining discriminatory intent, fact finders may look
to a variety of factors including "[e]vidence of satisfactory work per-
formance and supervisory evaluations before the accident," "[a]ny
evidence of an actual pattern of harassing conduct," and "[p]roximity
in time of the claim and the firing." Powell v. Wyo. Cablevision, Inc.,
403 S.E.2d 717, 721 (W. Va. 1991).

   In this case, Kessell alleged that he was not rehired in retaliation
for filing this lawsuit. To prove his case, he offered evidence that his
work performance prior to his injuries had been satisfactory. He also
offered testimony from another employee who had difficulty getting
reinstated after being out of work due to a disability. And perhaps
most tellingly, Kessell offered Vicars’ statements that, in February or
March 1995, there was nothing that would have prevented him from
6     KESSELL v. SOUTH CHARLESTON STAMPING & MANUFACTURING
reinstating Kessell and that Kessell "left the company in [his] opinion
in very good standing." Yet, after the lawsuit was filed and Kessell
requested reinstatement in August 1997, Vicars stated in a letter deny-
ing Kessell reinstatement that he had "lost respect for Mr. Kessell"
and would not reinstate him. Similarly, at trial Vicars was asked:

    Q: And you are stating that once that lawsuit was filed,
       that I believe you told me that you lost respect for Mr.
       Kessell and thought that he was attempting just to get
       a pocketful of money and that you wouldn’t reinstate
       him because of that?

To which he responded, "Yes, ma’am." The jury’s finding in favor of
Kessell on Count 3 was thus clearly supported by the evidence.

   It is true that SCSM offered an alternative theory that Kessell was
not rehired because he lied about what occurred at the December 20
meeting. However, SCSM failed to persuade the jury to accept that
explanation. It was within the province of the jury to evaluate the evi-
dence and accept the theory it found most credible. And it did just
that. The jury was free to believe SCSM about what happened at the
December 20 meeting and yet, still disbelieve SCSM as to the reason
for its failure to reinstate Kessell in 1997. The district court properly
recognized this, and therefore, did not abuse its discretion in denying
the Rule 59(e) motion. Accordingly, the judgment of the district court
is

                                                           AFFIRMED.
