UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CRAIG E. RABER; STEPHEN W.
WIERBONSKI, and others similarly
situated,
Plaintiffs-Appellants,

v.                                                           No. 96-1119

SOUTHERN OHIO COAL COMPANY
SEVERANCE PAY PLAN; SOUTHERN
OHIO COAL COMPANY,
Defendants-Appellees.

CRAIG E. RABER; STEPHEN W.
WIERBONSKI, and others similarly
situated,
Plaintiffs-Appellees,

v.                                                           No. 96-1174

SOUTHERN OHIO COAL COMPANY
SEVERANCE PAY PLAN; SOUTHERN
OHIO COAL COMPANY,
Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CA-95-81-1)

Argued: December 4, 1996

Decided: February 12, 1997

Before RUSSELL and MICHAEL, Circuit Judges, and DAVIS,
United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Brent E. Beveridge, BEVERIDGE LAW OFFICES, Fair-
mont, West Virginia, for Appellants. Franck Georg Wobst, PORTER,
WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, for Appellees.
ON BRIEF: Nancy Engbers Falk, PORTER, WRIGHT, MORRIS &
ARTHUR, Columbus, Ohio, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Craig E. Raber and Stephen W. Wierbonski filed suit in district
court, on behalf of themselves and others similarly situated, alleging
that Southern Ohio Coal Company (SOCCO) and the SOCCO Sever-
ance Pay Plan (the Plan) violated the Employee Retirement Income
Security Act of 1974 (ERISA), as amended, 29 U.S.C.§ 1001 et seq.
In addition, Raber brought an individual ERISA claim and a claim
under the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et
seq. SOCCO and the Plan filed a motion to dismiss or, in the alterna-
tive, for summary judgment and later moved for attorneys' fees under
29 U.S.C. § 1451(e) and Fed. R. Civ. P. 11. The district court granted
summary judgment (or, in the alternative, dismissal) to SOCCO and
the Plan on all counts, granted their motion for attorneys' fees on the
ERISA claims, and denied SOCCO's Rule 11 motion for attorneys'
fees under Raber's state law claim. Raber and Wierbonski now appeal
from the final judgment and the grant of attorneys' fees, and SOCCO
cross-appeals from the denial of Rule 11 attorneys' fees. Finding no
error in the district court's orders, we affirm.

                    2
I.

Because we are reviewing a grant of summary judgment, we con-
strue the evidence in the light most favorable to appellants. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Raber and Wierbonski worked in the Martinka Mine as salaried
employees of SOCCO. In early 1992 SOCCO decided to sell the mine
to Martinka Coal Company (MCC), a newly-formed subsidiary of
Eastern Associated Coal Company (Eastern). As part of the sales
agreement, MCC agreed to extend employment offers to salaried
employees at the mine who were on SOCCO's payroll as of June 15,
1992. MCC also agreed to recognize the service time of former
SOCCO employees for purposes of calculating any future severance
benefits.

In light of the impending sale, SOCCO established a severance
plan effective June 15, 1992. The two provisions of the plan pertain-
ing to eligibility state:

          2.1 Eligible employees whose employment with the Com-
          pany is involuntarily terminated due to a Sale of Assets and
          who do not accept employment with Martinka Coal Com-
          pany ("MCC") shall be entitled to a Severance Payment as
          provided in paragraph 3.1 of this Plan.

          2.2 Eligible employees whose employment with the Com-
          pany is involuntarily terminated due to a Sale of Assets and
          who accept employment with MCC shall be entitled to a
          Severance Payment from the Company if the employee's
          employment with MCC is involuntarily terminated due to a
          downsizing or lack of work at MCC before January 1, 1995.

Additionally, paragraph 5.1 gives the Plan Administrator discretion to
interpret and apply the plan.

MCC offered Wierbonski continued employment at the mine,
which he accepted. He remained employed with MCC up to and after
January 1, 1995. Raber, who was on a leave of absence from January

                    3
14 to June 22, 1992, was initially informed that he would be termi-
nated, and SOCCO sent him a letter informing him that he was eligi-
ble for severance pay. According to Raber, he was told by Jerry
Deems, a supervisor at SOCCO, that he had been laid off pursuant to
orders by Eastern. Raber then asked if his layoff had anything to do
with a suit he had filed against Eastern.1 Deems allegedly shrugged
his shoulders and said that it was not his decision. Raber then asserted
he would take legal action if necessary to keep his job. Raber alleges
that about five days later he received a call at approximately 11:30
p.m. from a manager at Eastern. The manager offered Raber contin-
ued employment with MCC and allegedly apologized for the injus-
tices that had been done to Raber in the past.

Deems of SOCCO offered a somewhat different version of why
Raber was initially told he was terminated. According to Deems,
Raber was left off the payroll list because he was on medical leave
when the list was prepared. This same mistake also affected another
employee on medical leave. Deems contends that when he realized
the error, he asked MCC to hire Raber even though Raber had not
been on the list. In any event, MCC promptly hired Raber, and he
worked at MCC up to and after January 1, 1995.

II.

Raber and Wierbonski argue that the district court erroneously dis-
missed or granted summary judgment on their jointly asserted ERISA
claim and on Raber's separate ERISA and state law claims. We exam-
ine these arguments in turn.

A.

Raber and Wierbonski contend that they, as well as all other
employees who were terminated from SOCCO but continued working
with MCC, are entitled to severance benefits. As we recognized in
_________________________________________________________________
1 Raber was an Eastern employee prior to his employment with
SOCCO, and in 1986 he had filed a suit against Eastern alleging age dis-
crimination. See Raber v. Eastern Assoc. Coal Corp., 423 S.E.2d 897,
899 (W. Va. 1992) (finding that Raber had met the requirements for a
prima facie case).

                    4
Hickey v. Digital Equipment Corp., 43 F.3d 941, 947 (4th Cir. 1995),
however, SOCCO has "no obligation to pay severance benefits to
appellants unless the Plan include[s] such an obligation." Thus, we
must turn to the text of the plan to determine whether appellants
should have received such benefits.

Even a cursory review of the plan reveals that appellants have no
claim. As Paragraph 2.1 of the plan clearly states, only those "whose
employment with [SOCCO] is involuntarily terminated due to a Sale
of Assets and who do not accept employment with Martinka Coal
Company" (emphasis added) are eligible. Paragraph 2.2 provides an
exception only for those who are "involuntarily terminated due to a
downsizing or lack of work at MCC before January 1, 1995." Because
Raber and Wierbonski accepted employment with MCC and remained
with MCC past the January 1, 1995, deadline, they are not entitled to
severance benefits. In light of the clarity of the plan's text, appellants'
claims concerning the fairness of the plan are irrelevant.2

B.

Raber's separate claim under ERISA for severance benefits is
equally unavailing. Due to his initial termination, Raber was in fact
sent a letter stating that he was eligible for severance benefits. How-
ever, this letter was premised on the assumption that Raber would not
be rehired by MCC. When MCC did decide to rehire Raber five days
later, Raber was no longer eligible under the plan. Because the plan
dictates eligibility, Raber is not entitled to severance pay.

C.

Raber's second individual claim asserts that SOCCO violated the
_________________________________________________________________
2 Appellants argue that severance plans should reward for past service
and that therefore the differentiation between those who went on to work
for MCC and those who did not is discriminatory. This claim, however,
is based on the premise that appellants' service time was not carried over
to MCC. Appellants present no evidence that their time did not carry
over, and a SOCCO administrator said in an affidavit that such time did
carry over. Even if the time was not carried over, this issue is irrelevant
in light of the clear language of the plan.

                     5
West Virginia Human Rights Act.3 The Act makes it illegal for
employers to "[e]ngage in any form of reprisal or otherwise discrimi-
nate against any person because he has . . . filed a complaint, testified,
or assisted in any proceeding under this article." W. Va. Code § 5-11-
9(7)(C). It is also illegal under the Act to "aid[or] abet . . . any of
the unlawful discriminatory practices defined in this section." Id. § 5-
11-9(7)(A). According to Raber, SOCCO failed to put his name on
the list for continued employment with MCC because Eastern
(MCC's parent company) wanted to punish Raber for his age discrim-
ination suit. Thus, Raber alleges that SOCCO aided or abetted Eastern
in its reprisals against him for filing a complaint under the Act.

Although we must construe all reasonable inferences in favor of the
non-moving party, "[m]ere unsupported speculation . . . is not enough
to defeat a summary judgment motion." Ennis v. National Ass'n of
Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). As the
Supreme Court pointed out in Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986), "[t]he mere existence of a scintilla of evidence
in support of [Raber's] position will be insufficient; there must be evi-
dence on which the jury could reasonably find for[him]."

Because evidentiary standards under the West Virginia Human
Rights Act are the same as those under Title VII of the Civil Rights
Act of 1974, see Helston v. Marion County Parks & Recreation
Comm'n, 381 S.E.2d 253, 256 (W.Va. 1989), the required showing
for a prima facie case of retaliation is identical under both acts. To
make a prima facie case, the plaintiff must prove that (1) he engaged
in protected activity, (2) the employer knew of his protected activity
and took adverse employment action against him, and (3) a causal
relationship existed between the protected activity and the adverse
employment action. See Cooper v. Norfolk & Western Railway Co.,
870 F. Supp. 1410, 1418 (S.D.W.Va. 1994). As with other discrimina-
tion claims an employer can rebut the prima facie case with legitimate
reasons for the action taken. The burden then shifts to the plaintiff to
show that the reasons do not apply or are pretextual. See id.
_________________________________________________________________
3 The district court had the discretion to exercise supplemental jurisdic-
tion over the state law claim even after it dismissed the federal claims.
See 28 U.S.C. § 1367(c)(3); Nowak v. Ironworkers Local 6 Pension
Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).

                     6
Raber's claim fails to establish parts (2) or (3) of the prima facie
case. Concerning part (2), the only possible "adverse action" taken by
SOCCO in this case would be SOCCO's initial failure to include him
in the list of employees on the payroll as of June 15. SOCCO's actual
termination of Raber is not adverse action, since SOCCO also termi-
nated all of its other employees at the Martinka mine. MCC's initial
failure to hire Raber could potentially have been caused by SOCCO's
failure to put him on the list, and this failure could be considered
adverse action. However, MCC decided to hire Raber five days later,
and there is no evidence that Raber actually lost any time at MCC
because of the delay. Thus, as the district court pointed out, "Mr.
Raber's continued employment belies any argument of any damage
because of the five-day delay in the decision to hire him."

Even assuming, however, that the five-day delay might constitute
adverse action, Raber does not raise a genuine issue of material fact
concerning part (3) of the prima facie case. The only evidence Raber
offers to establish a causal connection between his lawsuit against
Eastern and SOCCO's failure to put him on the list is his conversation
with Deems of SOCCO. According to Raber, Deems told him that his
(Raber's) layoff was the result of a decision by Eastern's manage-
ment. When Raber asked if the decision had anything to do with his
case against Eastern, Deems allegedly shrugged his shoulders. This
evidence indicates only that Eastern, not SOCCO, may have wanted
to retaliate against Raber. There is no evidence of any desire on
SOCCO's part for retaliation.

Finally, even if Raber can establish a prima facie case by raising
an inference that SOCCO aided or abetted Eastern's retaliation, that
inference is successfully rebutted by evidence offered by SOCCO. As
Deems makes clear in his affidavit, Raber was initially left off the list
because he was on a medical leave of absence. When Deems realized
this error, he encouraged MCC to rehire Raber. Deems also alleges
that this mistake affected another employee in a situation similar to
Raber's. Because Raber fails to rebut SOCCO's legitimate explana-
tions for its actions, his claim under the West Virginia Human Rights
Act therefore fails.

D.

For the foregoing reasons, we conclude that the district court prop-
erly granted SOCCO's motion to dismiss or, in the alternative, for
summary judgment.

                     7
III.

We now turn to the two issues about attorneys' fees.

A.

Raber and Wierbonski contend that the district court erred in
awarding attorneys' fees to SOCCO on the ERISA claims. In award-
ing fees the district court relied on 29 U.S.C.§ 1451(e), the statute
cited to it. The proper statute, however, is 29 U.S.C. § 1132(g). The
parties have stipulated that the use of the wrong provision "is a purely
technical matter." We agree with this assessment because § 1451(e)
has been interpreted to use the same standard as§ 1132(g). See
Cuyamaca Meats, Inc. v. San Diego & Imperial Counties Butchers'
& Food Employers' Pension Trust Fund, 827 F.2d 491, 500 (9th Cir.
1987).

This circuit has applied five factors in determining whether attor-
neys' fees should be awarded under § 1132(g):

          (1) degree of opposing parties' culpability or bad faith;

          (2) ability of opposing parties to satisfy an award of attor-
          neys' fees;

          (3) whether an award of attorneys' fees against the oppos-
          ing parties would deter other persons acting under similar
          circumstances;

          (4) whether the parties requesting attorneys' fees sought to
          benefit all participants and beneficiaries of an ERISA plan
          or to resolve a significant legal question regarding ERISA
          itself; and

          (5) the relative merits of the parties' positions.

Quesinberry v. Life Ins. Co. of North America , 987 F.2d 1017, 1029
(4th Cir. 1993). ERISA places the decision to award attorneys' fees
"completely within the discretion of the district court." Id. at 1028.

                     8
The district court based its decision primarily on its inability "to
find some reason in law why this suit could be supported." The court
also noted that SOCCO had given plaintiffs notice about the insub-
stantiality of their claims. Although the district court found that Raber
and Wierbonski did not pursue their claims with bad faith, the court
believed that the plaintiffs had filed suit primarily to extract informa-
tion from SOCCO. Because Raber and Wierbonski's ERISA claims
completely lack support, we find no abuse of discretion by the district
court in its award of fees in the amount of $4,850. 4

B.

SOCCO contends that the district court erred in denying its request
for attorneys' fees with respect to Raber's retaliation claim under the
West Virginia Human Rights Act. Fees may be awarded under Fed.
R. Civ. P. 11(c)(2) if "a reasonable attorney in like circumstances
would [not have] believe[d] his actions to [have been] factually and
legally justified." Artco Corp. v. Lynnhaven Dry Storage Marina,
Inc., 898 F.2d 953, 956 (4th Cir. 1990). The district court's decision
is reviewable only for abuse of discretion. See Cooter & Gell v. Hart-
marx Corp., 496 U.S. 384, 400-01 (1990). Because Raber's state law
claim was not so lacking in merit that it was unreasonable to file it,
we do not find that the district court abused its discretion in failing
to impose Rule 11 sanctions.

IV.

The orders and judgment of the district court are affirmed.

AFFIRMED
_________________________________________________________________

4 Although we would have preferred that the district court discuss all
five factors in the Quesinberry test, particularly the ability to pay factor,
the court in Quesinberry noted that the five factor approach "is not a
rigid test, but rather provides general guidelines." Quesinberry, 987 F.2d
at 1029.




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