No. 11-1610 – Smith v. Apex Pipeline Services, Inc.                          FILED
                                                                              April 4, 2013

                                                                          released at 3:00 p.m.

                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA

Workman, Justice, concurring, in part, and dissenting, in part:



              I concur in the majority’s conclusion that petitioner failed to establish a

prima facie showing on each of the five statutory elements contained in W. Va. Code §

23-4-2(d)(iii)(B) and therefore, the circuit court did not err in granting summary

judgment to respondent as to that claim.          However, I disagree with the majority’s

decision to affirm the circuit court’s grant of summary judgment to respondent on the

workers’ compensation discrimination claim.         Specifically, I believe that the record

reveals a genuine issue of material fact which required resolution by the finder of fact.



              The record before us reveals that in May 2009, petitioner contacted Bob

Keaton, job superintendent and vice president of respondent, to inquire about the

availability of work. Mr. Keaton advised petitioner that there was no work available

since the project had ended; Mr. Keaton subsequently testified in this matter that he had

“sent back” other workers to the union hall as well for the same reason. Petitioner then

filed for unemployment compensation. A “Request for Separation Information” form

was forwarded by Workforce West Virginia, Unemployment Compensation Division

(hereinafter “Unemployment Compensation”) to respondent for completion. A secretary,

Pamela Perry (now Moss), completed the form on May 21, 2009. The form contained

both pre-printed questions and certain limited information input by the Unemployment

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Compensation Division based on information provided by petitioner. The form sent to

respondent stated that “The claimant stated this employment was from 09/01/2008 to

09/30/2008 and that separation was due to: LACK OF WORK.”1 The form then asks the

employer to provide information about the separation from employment.



             Two critical questions which give rise to the workers’ compensation

discrimination claim at issue herein appear on this form. First, in response to “[d]o you

have work for the claimant at this time?” Ms. Moss marked “yes.” This is directly

contrary to the primary defense of respondent, which is that Smith was not rehired

because there was no work.      The form then requests the reason for the claimant’s

separation and provides the following options to be checked by the respondent: “lack of

work,” “quit,” or “discharge.” Ms. Moss marked “discharge” and in response to the

follow up query requesting a description of the “last incident that led to the discharge”

she hand-wrote: “INJURED ON JOB WORKERS COMP. INJURY – SETTLEMENT

GRANTED 4/22/09.”        This is, again, directly contrary to respondent’s defense that

petitioner was not, in fact, discharged, but rather respondent simply had no work for him.

More importantly, this statement on its face quite clearly establishes, at a minimum, a

prima facie case of workers’ compensation discrimination pursuant to W. Va. Code § 23­

5A-1.


1
  The next line of the pre-printed form, complete with information filled in by
Unemployment Compensation as provided by the claimant, is partially cut off but
appears to indicate that Smith also advised he was injured on the job: “--RT ON THE
JOB”

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              The majority summarily dispenses with these statements by referring to Ms.

Moss’ testimony that she simply “checked the wrong box” and “made an error,” which

she then corrected by way of explanation to Unemployment Compensation.                   The

majority, however, overlooks Ms. Moss’ additional testimony that she, even at that stage

of the litigation, did not know what box she should have checked, despite the plain

existence of a “lack of work” box.         She further testified in regard to petitioner’s

separation from employment, indicating that “it was a Workers’ Compensation issue.”

Critically, respondent offered no testimony or evidence to rebut Ms. Moss’ notation on

the form that there was, in fact, work available, other than to simply deny that was the

case. Finally, even on its face, Ms. Moss’ testimony that she “checked the wrong box”

raises obvious questions given that she not only checked the “discharge” box in lieu of

the “lack of work” box, but affirmatively provided additional information stating that the

“last incident that led to the discharge” was that petitioner was “injured on job.”

(Emphasis added). As such, the majority’s characterization of the highly incriminatory

statements by the employer on the form as a “clerical error,” appears to be a somewhat

startling white-washing of the evidence.



              However, by no means do I suggest that Ms. Moss’ testimony is not

genuine; rather, I make no suggestion at all in that regard inasmuch as it is the duty of the

fact-finder to resolve such issues. I note merely that the document and her testimony

suffice only to create a genuine issue of material fact, which required a jury’s assessment

of credibility. A jury may have well found that the evidence that other workers were

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“sent back” to the union hall sufficiently rebutted the curious responses contained on the

Unemployment Compensation form; however, the balancing of that evidence rested

squarely within the jury’s province.



              This Court has long held that “[t]he question to be decided on a motion for

summary judgment is whether there is a genuine issue of fact and not how that issue

should be determined.” Syl. Pt. 5, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New

York, 148 W. Va. 160, 133 S.E.2d 770 (1963) (emphasis added). Moreover, “[t]he circuit

court’s function at the summary judgment stage is not to weigh the evidence and

determine the truth of the matter, but is to determine whether there is a genuine issue for

trial.” Syl. Pt. 3, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Likewise, it

is certainly not the function of this Court to similarly weigh evidence and make

credibility determinations, concluding that a witness’ explanation of damning evidence is

sufficient to render it immaterial. Although surely not its intent, the majority opinion

improvidently suggests that documentary evidence is insufficient to create an issue of fact

where it is “explained away” by the party it damages.



              Accordingly, I respectfully dissent.




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