                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Christine Stenger,
Plaintiff Below, Petitioner                                                       FILED
                                                                                April 8, 2016
vs) No. 15-0439 (Ohio County 07-C-466)                                         RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Carelink Health Plans, Inc., and Patrick W. Dowd,
Defendants Below, Respondents


                              MEMORANDUM DECISION
       Petitioner Christine Stenger, by counsel Paul T. Tucker, appeals the order of the Circuit
Court of Ohio County, entered on February 27, 2015, granting respondents’ renewed motion for
summary judgment. Respondents Carelink Health Plans, Inc. (also sometimes referred to as
“Carelink”) and Patrick W. Dowd appear by counsel Eric W. Iskra and Grant P.H. Shuman.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        Petitioner filed a complaint in the Circuit Court of Ohio County on October 15, 2007,
asserting that Respondent Carelink (a health maintenance organization in which she participated
through a company owned by her husband) and Respondent Dowd (former president and chief
executive officer of Carelink) discriminated against her on the basis of a disability, intimidated
her to prevent her from testifying in an administrative hearing before the West Virginia Offices
of the Insurance Commissioner, and negligently and intentionally inflicted emotional distress on
her.1 She stated in the complaint that she did “not seek to recover benefits due to her under the
terms of her health care plan, to enforce her rights under the terms of the plan, or to clarify her
rights to future benefits under the terms of the plan.” Respondents removed the action to the
United States District Court for the Northern District of West Virginia, citing 29 United States
Code § 1001, (the Employee Retirement Income Security Act, or “ERISA”) as preemptive.
Petitioner moved for remand on the basis of her own affidavit, in which she attested, in pertinent
part:

       The acts of discrimination and intimidation which form the basis of my Complaint
       in the present action occurred during the course of the administrative proceeding

       1
         We note that, despite petitioner’s claims, she ultimately completed the administrative
process and her benefit request was approved.
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       before the West Virginia Insurance Commissioner. They are unrelated to my
       claim for benefits and instead arise out of my participation in an official
       proceeding of the State of West Virginia.

        The matter was remanded and discovery was conducted in state circuit court. Subsequent
to the close of discovery, respondents again removed the case to the federal district court
because, in responding to respondents’ motion for summary judgment, petitioner wrote that her
claims included issues of discrimination and intimidation regarding “any aspect of her access to
the complaint mechanism established by law whereby a policyholder may seek redress for
misbehavior of an insurance carrier. It includes her access to Carelink’s records as may be
necessary to pursue her complaint [and] her right to a clear explanation of her appeal rights. . . .”
Petitioner moved for remand, and the federal district court granted her motion, finding that the
case was removable at least as early as 2009, based on petitioner’s response to an interrogatory
wherein she responded that her “access to the Carelink claims[-]handling and complaint and
appeal processes have been inhibited or denied.” The federal district court also explained that
petitioner later “admitted” in her deposition that she asserted that Respondent Carelink did not
properly administer her claim. Upon remand, respondents renewed an earlier-filed motion for
summary judgment, in which they argued that petitioner’s claims were preempted by ERISA and
could only be brought in federal court. The motion was granted, and this appeal followed.

        Petitioner’s sole assignment of error before this Court is that the state circuit court erred
in finding that the claims set forth in her complaint are completely preempted by the provisions
of ERISA. The circuit court’s conclusion of law is one that we review de novo. Turner ex rel.
Turner v. Turner, 223 W. Va. 106, 112, 672 S.E.2d 242, 248 (2008)(citing Syl. Pt. 1,
Appalachian Power Co. v. Tax Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995)) (holding that the
interpretation of a statute presents a purely legal question subject to de novo review) and Kollar
v. United Transp. Union, 83 F.3d 124, 125 (5th Cir.1996) (recognizing that “preemption is a
question of law reviewed de novo”)(citation omitted)).

        We have explained that “[t]he only state law claims properly removable to federal court
are those that are completely preempted by ERISA’s civil enforcement provision, § 502(a).”
Turner, 223 W. Va. at 112, 672 S.E.2d at 248 (quoting Sonoco Products Co. v. Physicians
Health Plan, 338 F.3d 366, 371 (4th Cir. 2003)). We agree with the federal district court and our
state circuit court that petitioner’s claims are completely preempted. As the circuit court aptly
explained, ERISA section 510 is an anti-discrimination statute providing, in part, that

       [i]t shall be unlawful for any person to . . . discriminate against a participant or
       beneficiary for exercising any right to which he is entitled under the provisions of
       an employee benefit plan . . . or for the purpose of interfering with the attainment
       of any right to which such participant may become entitled under the plan, this
       subchapter. . . . It shall be unlawful for any person to discharge, fine, suspend,
       expel, or discriminate against any person because he has given information or has
       testified or is about to testify in any inquiry or proceeding relating to this chapter.
       . . . . The provisions of section 1132 of this title shall be applicable in the
       enforcement of this section.



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29 U.S.C. § 1140 (emphasis supplied.) Petitioner’s claims fall squarely within this section and
are exclusively remedied through 29 United States Code § 1132. In so finding, we reject
petitioner’s argument that Section 1140 is applicable only within the employer-employee
relationship inasmuch as the plain reading of the statute prohibits “any person” from adversely
affecting the rights of a “participant or beneficiary.” As such, petitioner’s claims are completely
preempted.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: April 8, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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