                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 14-2048


JOYCE ANDERSON,

                  Plaintiff – Appellant,

           v.

CONSOLIDATION COAL COMPANY,

                  Defendant – Appellee,

           and

CONSOL ENERGY, INC.,

                  Defendant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.   Frederick P. Stamp,
Jr., Senior District Judge. (1:11-cv-00138-FPS-JSK)


Argued:   October 29, 2015                   Decided:   January 21, 2016


Before WILKINSON, SHEDD, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Wilkinson joined.   Judge Wynn wrote a
dissenting opinion.


ARGUED: Allan Norman Karlin, ALLAN N. KARLIN & ASSOCIATES,
Morgantown, West Virginia, for Appellant.  Larry Joseph Rector,
STEPTOE & JOHNSON, PLLC, Bridgeport, West Virginia, for
Appellee. ON BRIEF: Jane E. Peak, ALLAN N. KARLIN & ASSOCIATES,
Morgantown, West Virginia, for Appellant.   Denielle M. Stritch,
STEPTOE & JOHNSON, PLLC, Morgantown,        West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

      While working in a coal mine operated by Consolidation Coal

Company (“CCC”), Joyce Anderson fell and suffered multiple bone

fractures.    Before     her    fall,       Anderson        had   been   diagnosed        as

having osteoporosis. After her recovery, Anderson attempted to

return to her former job. Presented with conflicting medical

evidence about Anderson’s post-injury ability to work safely in

the mine, CCC implemented a medical-review process dictated by

its   collective    bargaining         agreement         (“CBA”)     with    her   union.

Because two of the three doctors selected under the CBA process

opined   against      Anderson’s       return        to     underground      work,       CCC

prohibited her from returning to her former position. Anderson

filed an unsuccessful labor grievance, and when CCC was unable

to find a suitable alternative position for her, it terminated

her   employment.     Anderson        then       filed    this    lawsuit    contending

(among   other   things)       that    CCC       violated    West    Virginia      law    by

retaliating against her for filing a workers’ compensation claim

and by discriminating against her based on the fact that she has

osteoporosis. The district court granted CCC’s summary judgment

motion   on   these    claims,        and    Anderson       now     appeals.    For      the

following reasons, we affirm.

                                             I

      Federal    Civil    Procedure          Rule        56(a)    provides     that      the

district court “shall grant summary judgment if the movant shows

                                             3
that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” We review a

summary judgment order de novo. Lee Graham Shopping Ctr., LLC v.

Estate of Kirsch, 777 F.3d 678, 681 (4th Cir. 2015).

      West Virginia Code § 23-5A-1 provides that “[n]o employer

shall discriminate in any manner against any of his present or

former employees because of such present or former employee’s

receipt    of     or    attempt     to     receive”          workers’    compensation

benefits. West Virginia Code § 5-11-9(1) provides that it is

unlawful      “[f]or    any      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 disabled.”

      For claims under either statute, the employee bears the

ultimate burden of proving the employer’s illegal motive. See

CSX Transp., Inc. v. Smith, 729 S.E.2d 151, 169 (W.Va. 2012)

(retaliation); Hanlon v. Chambers, 464 S.E.2d 741, 748 (W.Va.

1995)   (discrimination).         Where,       as    here,    there     is    no    direct

evidence of retaliation or discrimination, the general scheme of

proof   for     both    claims    is     substantially         the    same:     (1)      the

employee bears the burden of presenting a prima facie case; (2)

if she presents a prima facie case, the burden shifts to the

employer to present a legitimate, nondiscriminatory reason for

                                           4
her discharge; and (3) if the employer presents such a reason,

the     employee     must     establish          that       the   proffered        reason      is

pretextual. See Powell v. Wyoming Cablevision, Inc., 403 S.E.2d

717,    721-22      (W.Va.     1991)     (retaliation);             Conaway       v.     Eastern

Assoc.     Coal      Corp.,     358     S.E.2d          423,      429-30     (W.Va.          1986)

(discrimination).

                                             II

       The following material facts are not disputed. Anderson is

a long-time CCC employee who was diagnosed with osteoporosis in

2005.    In    November      2009,     while         Anderson      was     working       in    the

Loveridge Mine, she fell and fractured her elbow and pelvis.

Anderson      was    treated     by    Dr.       Nancy       McKinley,       an       orthopedic

surgeon and also underwent physical therapy. Anderson filed a

workers’      compensation          claim    for        this      injury     and       received

workers’ compensation benefits.

       Several      months    later,     Dr.         McKinley     released        Anderson      to

return to work. Before allowing her to return, CCC (through its

workers’       compensation          administrator)               obtained        a     medical

examination,        which     included       a       bone    density      scan.       Dr.     Dean

Steinman      performed      this     examination           and   found     that       the    scan

results, accompanied by other risk factors and the severity of

her injuries from her relatively minor 2009 fall, presented too

great a risk of re-fracture to return her to work in the coal

mine. When Dr. Steinman’s report was presented to Dr. McKinley

                                                 5
for review, Dr. McKinley noted that although “common sense” may

suggest that Anderson not return to work in the mine, J.A. 1262,

she did not believe that Anderson was precluded from doing so.

Faced    with    this     conflict      of   opinions,             CCC   approved         a    record

review by Dr. Vincent Ripepi. Following his review, Dr. Ripepi

agreed with Dr. Steinman.

        Anderson    disagreed         with   Dr.     Steinman’s           and   Dr.        Ripepi’s

medical opinions. CCC therefore implemented Article III(j) of

the CBA. In pertinent part, Article III(j) provides that “once

employed, an Employee cannot be terminated or refused . . .

recall from sick or injured status for medical reasons over his

objection       without    the    concurrence           of     a    majority        of     a    group

composed of an Employer-approved physician, an Employee-approved

physician, and a physician agreed to by the Employer and the

Employee,       that    there     has    been       a    deterioration              in    physical

condition       which     prevents       the       Employee         from      performing            his

regular work.” J.A. 861.

        Anderson    selected      Dr.    McKinley         as       the   “Employee-approved

physician,”      and     CCC    selected       Dr.      Steinman         as   the        “Employer-

approved    physician.”          By    agreement,         the       parties     then          met   to

select the third physician, who would be the tiebreaker. Each

party    proposed       four   doctors       at    this      meeting,         and    each      party

struck three names proposed by the other, leaving each party



                                               6
with       a    single     physician   remaining. 1      The   names    of     the   two

remaining physicians, Dr. Sushil Sethi – who was CCC’s choice -

and Dr. Shelly Kafka – who was Anderson’s choice - were placed

in a hat. Anderson selected Dr. Kafka’s name out of the hat, and

CCC agreed to use Dr. Kafka. However, Dr. Kafka declined to

participate in the evaluation process.

       Anderson then put forth two additional doctors’ names. CCC

struck         one    doctor,    leaving   Dr.   Brian    Houston      as    Anderson’s

proposed doctor. Dr. Houston’s name was then placed in the hat

with Dr. Sethi’s name. Anderson again selected a name from the

hat, this time choosing Dr. Sethi. Anderson did not object to

being          seen   by   Dr.    Sethi,   and   he      performed     her     physical

examination. Thereafter, Dr. Sethi opined that Anderson was not

able to work safely underground because of her high risk for

repeat fracture. Specifically, Dr. Sethi stated:

       On the basis of my examination and review of                            the
       medical records as well as my thorough research                          of
       osteoporosis, it is my medical opinion that                             the
       deterioration of the bone due to early onset                             of

       1
       Helen Blevins, a registered nurse, testified on behalf of
CCC that a limited number of area doctors were willing to engage
in workers’ compensation and similar evaluative work. When she
selected doctors for the CBA process, she looked at factors such
as a doctor’s capability, knowledge, availability, willingness,
and timeliness in an effort to obtain the best and most timely
results. Anderson argues that proof of CCC’s improper motives
lies in the fact that CCC proffered only doctors who were not
osteoporosis specialists. However, CCC did proffer an orthopedic
surgeon, but Anderson struck this doctor from the list.



                                            7
      menopause as well as aging and having caused a
      fracture with a very minor activity, is a very high
      risk factor in performing her regular work. The use of
      medication including Boniva as well as other listed
      medications that are available on the market, simply
      prevent some osteoclastic activity. It does not cure
      the problem of osteoporosis. After having reviewed the
      job duties and the risk factors as well as the
      description of the bunker employee including ability
      to have the capability of safely evacuating the mine
      in the event of an emergency, I can say with
      reasonable   degree   of   medical   probability   and
      certainty, that [Anderson] is not able to safely
      perform her regular work as a bunker attendant at
      Loveridge Mine. She is a very high risk for repeat
      fracture which can happen spontaneously or even from a
      minor tripping and would be a risk to herself as well
      as other fellow workers.

J.A. 865-66.

      Thus, the majority of the medical opinions obtained under

the CBA process recommended that Anderson’s high fracture risk

made it unsafe for her to return to work in the coal mine. CCC

attempted to accommodate Anderson with a surface position as a

dispatcher. CCC’s effort, however, was precluded by seniority

rules   in   the    CBA.   Anderson   then   filed   a   grievance   seeking

reinstatement, but an arbitrator ruled against her, finding that

CCC complied with the CBA. CCC encouraged Anderson to apply for

an open above-ground position. Although Anderson applied and was

interviewed for this position, she ultimately declined to pursue

it.   Unable   to   find   a   satisfactory   alternative     position   for

Anderson, CCC terminated her employment.




                                      8
                                                   III

       Anderson       filed          this    action       asserting         several      state-law

claims. Pertinent to this appeal, Anderson alleged that CCC (1)

retaliated against her for filing a workers’ compensation claim,

in    violation      of     §    23-5A-1         and     (2)    discriminated         against      her

based    on    the     fact          that    she       has     osteoporosis       -    which       CCC

perceived      to     be,       or    which       is     in    fact,    a    disability        -    in

violation of § 5-11-9(1). At the close of discovery, CCC moved

for    summary      judgment          on    several       grounds.       The     district      court

granted the motion for the following reasons.

       Regarding          Anderson’s          workers’          compensation          retaliation

claim, the district court noted that Anderson was required to

show three elements to establish a prima facie case: (1) she

sustained      an    on-the-job             injury;       (2)    she    filed     a    claim       for

workers’ compensation benefits; and (3) CCC treated her filing

of a workers’ compensation claim as a significant factor in its

decision to discharge her. See Powell, 403 S.E.2d at 721. The

court found that although Anderson sufficiently showed the first

two elements, she failed to show the third element. The court

explained      that       CCC     “acted         under    the    CBA    which     governed         the

procedure”       regarding            her    potential          return      to    work    and      “a

majority of the necessary medical opinions found that [Anderson]

should not return to work.” J.A. 1039. The court stated: “Simply

put,    no    evidence          exists      to    demonstrate          or   imply     that   [CCC]

                                                    9
terminated [Anderson] with [workers’] compensation costs serving

as a ‘significant’ factor.” J.A. 1039-40.

     Regarding Anderson’s disability discrimination claim, the

district court noted that Anderson was required to show three

elements to establish a prima facie case: (1) she is a member of

a protected class; (2) CCC took an adverse action against her;

and (3) but for her protected status, CCC would not have taken

the adverse action. See Conaway, 358 S.E.2d at 429. Again, the

court    found    that   Anderson    sufficiently         showed   the    first    two

elements, but she failed to show the third element. The court

explained        that    although     CCC     was      aware       of    Anderson’s

osteoporosis, it did not base the decision to terminate her on

the grounds that she is disabled. The court stated:

     Rather, in compliance with the CBA, [CCC and Anderson]
     received   three   medical   opinions    regarding  [her]
     ability to return to work. Of those three opinions,
     two   of  the    opinions  advised    the   parties  that
     [Anderson] should not return to work. Relying on these
     medical opinions, and not simply [her] status as
     “disabled” . . . [CCC] terminated her employment.

J.A. 1044.

        The   district    court     addressed       and    rejected      Anderson’s

argument that the doctors chosen by CCC for the CBA process were

“company      doctors”    rather    than    osteoporosis        specialists.       The

court    found    that   “insufficient      evidence      has   been     offered    to

support these claims, and they are speculation at best.” J.A.

1044. Further, the court stated that “the specialty-level of the

                                       10
doctors     in    this    case    is    not    a    germane    issue    to   the    law    at

issue.” J.A. 1044-45. Reiterating its earlier discussion of the

workers’ compensation retaliation claim, the court explained:

      The facts show that [CCC] acted under an honest belief
      regarding whether to discharge [Anderson], basing the
      decision on the recommendations by licensed physicians
      with experience, though technically not specialties,
      in osteoporosis. Both parties together selected the
      third physician, meaning that [Anderson] herself
      agreed to be examined by this physician. More
      importantly, the terms of the CBA do not require the
      evaluating doctors be specialists in their field.
      Thus, the argument that the evaluating doctors did not
      practice in any medical specialty or possess any
      particular certification relating to osteoporosis is
      not relevant in this civil action, as such was not
      required under the CBA.

J.A. 1045.

      The district court further concluded that even if Anderson

had shown a prima facie case of disability discrimination, CCC

offered a legitimate nondiscriminatory reason for her discharge:

the   CBA    medical       review      process,        which    led    to    the   medical

opinions advising that she not return to her former position.

Finally,     the    court        found       that   Anderson     failed      to    present

sufficient evidence of pretext to rebut CCC’s proffered reason.

                                               IV

      Anderson contends that the district court erred in several

respects     by    granting      CCC’s       summary    judgment       motion.     Anderson

primarily        argues    that        the    court     erred     in     assessing        her

disability discrimination claim because it failed to conduct the


                                               11
analysis set forth in West Virginia Code of State Rules § 77-1-

4.8. She also argues with respect to both of her claims that the

court     resolved      disputed     facts     against       her     and     failed    to

recognize the existence of genuine issues of material fact. In

response, CCC argues that the court correctly entered summary

judgment on Anderson’s claims.

     Having       carefully        considered       this         matter     under     the

appropriate       summary     judgment       standard,       we     agree     with    the

district court that the undisputed material facts in the record

establish as a matter of law that CCC’s decision to terminate

Anderson’s       employment    was   not      based   on     a    discriminatory        or

retaliatory      motive.    Instead,     those      facts    establish       that     when

Anderson attempted to return to work following her work-related

injury,    CCC    was    presented    with     conflicting         medical        opinions

about whether she could do so safely. 2 For that reason, CCC

implemented the CBA medical-review process, in which Anderson

fully and     freely     participated,        and   two     of    the     three    doctors

selected in that process opined against her return to the coal




     2 CCC’s decision to have Anderson evaluated before returning
her to work did not violate West Virginia law. See, e.g., Stone
v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d 389, 407 (W.Va.
2000) (“[T]he mere fact that the Hospital sent Mr. Stone for an
independent medical examination did not prove a case of
disability discrimination.”).



                                         12
mine. 3     Consequently,           CCC    was     then       within        its    collectively

bargained right to prohibit Anderson from returning to the coal

mine.      Ultimately,        CCC     terminated            Anderson’s       employment      only

after      it   was    unable    to       place    her      in    a    suitable     alternative

position.

       Anderson has proffered evidence which she contends creates

genuine issues of material fact about the qualifications and

opinions of the doctors who examined her as part of the CBA

medical-review process and about the purported motives of CCC

personnel.       We    have     considered         this       evidence       in    our    summary

judgment review. However, we conclude that Anderson has failed

to   present      sufficient        evidence           to   create      a   genuine      issue   of

material        fact    to    establish       that          her   filing      of   a     workers’

compensation claim was a significant factor in CCC’s decision to

terminate her. For this reason, we affirm the grant of summary

judgment on the retaliation claim. See, e.g., Yoho v. Triangle

PWC, Inc., 336 S.E.2d 204, 210 (W.Va. 1985) (affirming dismissal

of § 23-5A-1 claim where the employee was discharged pursuant to

a    “facially        neutral    provision             of   the       collective      bargaining



       3
       Dr. Ripepi also opined against Anderson’s return to work
in the mine. Therefore, three doctors who considered the matter
before Anderson was terminated believed that she should not
return to the mine. Moreover, Dr. McKinley (who was Anderson’s
choice in the Article III(j) process) equivocated, stating that
“common sense” suggested that Anderson not return to the mine.



                                                  13
agreement”).         Likewise,          we        conclude          that    even     if    Anderson

presented sufficient evidence to establish a prima facie case of

discrimination,             CCC        has        presented           a     legitimate,           non-

discriminatory reason for terminating her employment (i.e., the

CBA    medical-review            process),         and    she        has    failed    to    present

sufficient evidence to establish pretext. Therefore, we affirm

the grant of summary judgment on the discrimination claim. See,

e.g., Bailey v. Norfolk and W. Ry. Co., 527 S.E.2d 516, 536

(W.Va.      1999)     (noting      that       the       parties’       collective         bargaining

agreement provided a legitimate, non-discriminatory reason for

the challenged action).

       As noted, Anderson primarily argues that the district court

failed to analyze her discrimination claim under West Virginia

Code   of     State       Rules    §    77-1-4.8.         We    disagree       with       Anderson’s

contention that § 77-1-4.8 dictates a different outcome.

       Rule      77-1-4           is      titled           “Employment             Discrimination

Prohibited”         and     is    part       of    “a    detailed          explication       of   the

general      anti-discrimination                  requirements         of    the    Human    Rights

Act, [§ 5-11-9].” Stone, 538 S.E.2d at 396 n.8. Section 77-1-4.1

and    its     subsections             prohibit         disability          discrimination         in

employment.         Various       other      sections          of    Rule    77-1-4       deal    with

matters      that     are    unrelated            to    this    case,       but    two     sections,

§§ 77-1-4.7 and 4.8, are pertinent to our discussion.



                                                   14
       Section 77-1-4.7 provides that an “individual’s ability to

perform     a    particular           job    must       be    assessed       on    an     individual

basis,” and an employer “may discharge a qualified individual

with a disability if, even after reasonable accommodation, the

individual is unable to perform the essential functions of the

job without creating a substantial hazard to his/her health and

safety or the health and safety of others.” Section 77-1-4.7

cautions        that    “any      such      decision         shall    be     [based]       upon       the

individual’s actual abilities, and not upon general assumptions

or stereotypes about persons with particular mental or physical

disabilities.”

       Section 77-1-4.8 then provides that “[i]n deciding whether

an individual poses a direct threat to health and safety, the

employer        has    the     burden       of    demonstrating            that     a     reasonable

probability of a materially enhanced risk of substantial harm to

the    health     or    safety        of    the     individual        or     others       cannot       be

eliminated        or    reduced        by    reasonable         accommodation.”             Further,

§ 77-1-4.8 specifies that “[t]he employer’s determination that

an    individual       poses      a    ‘direct       threat’         shall    be        based    on    an

individualized assessment of the individual’s present ability to

safely      perform      the       essential            functions       of        the     job.    This

assessment       shall       be   based      on     a    reasonable          medical       judgement

[sic] that relies on the most current medical knowledge and/or

on    the   best       available         objective           evidence.”      Section        77-1-4.8

                                                  15
concludes        by    listing        several      non-exclusive         factors    to   be

considered in determining whether an individual would pose a

direct threat.

     According         to      Anderson,      §    77-1-4.8       “is    an     affirmative

defense that requires the employer to prove that the medical

opinion upon which it relies was based on an ‘individualized

assessment’ of the employee, on ‘competent medical advice’ and

on the ‘most current medical knowledge’ in the relevant field.”

Opening    Brief       of   Appellant,       at    8. 4    Anderson     argues    that   CCC

failed     to    comply        with    §    77-1-4.8       because      it    selected   and

recommended evaluators who “it knew or should have known had

little    or     no    expertise       in   osteoporosis,         who    lacked    ‘current

medical knowledge’ about the disease and who did not provide

competent opinions about [her] risk of future injury.” Id. at 9.

     Although the role of § 77-1-4.8 within the shifting-burden

analysis        used     for     employment        discrimination        claims    is    not

entirely        clear,      we    will      assume        that   the    section     becomes

applicable when, in response to an employee’s prima facie case,

the employer asserts that an employee cannot safely perform her

job as a legitimate, non-discriminatory reason for termination.

     4  In Stone, the court explained that “to satisfy the
standard of a serious threat to one’s health or safety, the
employer must establish that it relied upon competent medical
advice that there exists a reasonably probable risk of serious
harm.” 538 S.E.2d at 397 (emphasis added and citation omitted).



                                              16
As we have already held, the undisputed evidence establishes

that CCC terminated Anderson as a result of the CBA medical-

review   process,       which    is     unquestionably      a   legitimate,      non-

discriminatory      reason.      Contrary       to   Anderson’s      argument,     we

conclude that through its implementation of the CBA medical-

review process, CCC met its burden under § 77-1-4.8. 5

     Fundamentally,        §    77-1-4.8       requires    that     the    employer’s

decision must be made on “an individualized assessment of the

individual’s     present       ability    to   safely     perform    the    essential

functions   of    the    job.”     By    relying     on   the     various   specific

medical opinions obtained before and during the CBA medical-

review process, CCC made its decision about Anderson’s ability

to return to the coal mine on an individualized assessment of

her condition and ability rather than “upon general assumptions

or stereotypes about persons” with osteoporosis. § 77-1-4.7.




     5 CCC unsuccessfully argued below that Anderson’s claims are
preempted by the Federal Labor Management Relations Act
(“LMRA”). CCC reiterates this argument as one of several
alternate bases for affirming the summary judgment. We need not
decide the issue, but we note that Anderson’s reliance on § 77-
1-4.8 does raise a significant LMRA preemption question. See
Barton v. House of Raeford Farms, Inc., 745 F.3d 95, 107 (4th
Cir.), cert. denied, 135 S.Ct. 160 (2014) (stating the general
rule that when the evaluation of the state law claim is
inextricably intertwined with consideration of the terms of the
labor contract, such that it is necessary to interpret the
collective-bargaining agreement to resolve the claim, the claim
is preempted).



                                          17
      Moving forward in the analysis, § 77-1-4.8 specifies that

the individualized assessment must be based on a “reasonable”

medical    judgment   (from   a   competent        medical    practitioner)   who

relies on “the most current medical knowledge” or on “the best

available    objective    evidence.” 6        We    believe     the   undisputed

material evidence in the record establishes that CCC met this

standard. CCC utilized doctors who had the ability to conduct

the medical testing specific to Anderson’s condition and who

were experienced in providing occupational medical evaluations.

These doctors assessed Anderson’s bone density scans, along with

other risk factors, and examined extensive details regarding the

specific job requirements of her position. To be sure, Anderson

points to conflicting evidence regarding her ability to return

to   her   former   position,     but   the   fact    that    medical   opinions

differ does not establish that CCC’s reliance on Dr. Steinman’s

and Dr. Sethi’s assessments was unreasonable. 7 Moreover, although



      6Section 77-1-4.8 states that the assessment “shall be
based on a reasonable medical judgement [sic] that relies on the
most current medical knowledge and/or on the best available
objective evidence.” The term “and/or” typically means “or.” See
Curry v. W.Va. Consol. Pub. Retire. Bd., 778 S.E.2d 637, 642 n.4
(W.Va. Oct. 7, 2015); Dynalectron Corp. v. Equitable Trust Co.,
704 F.2d 737, 739 (4th Cir. 1983).
      7As noted, Anderson recommended both Dr. McKinley and Dr.
Kafka during the CBA medical-review process, but Dr. Kafka
declined to participate. Dr. Kafka did examine Anderson at a
later time, and Anderson now relies on Dr. Kafka’s opinion to
support her case. Had Dr. Kafka rendered her opinion during the
(Continued)
                                        18
Anderson contends that CCC was required to utilize and rely only

on   osteoporosis    specialists      in     making     its    individualized

assessment, we find nothing to establish that § 77-1-4.8 imposes

such a rigid requirement. See generally Farley v. Shook, 629

S.E.2d 739, 746 (W.Va. 2006) (“While a physician does not have

to be board certified in a specialty to qualify to render an

expert   opinion,   the   physician       must   have   some   experience   or

knowledge on which to base his or her opinion.”).

                                      V

     We are not unsympathetic to Anderson’s desire to return to

her job. However, West Virginia law recognizes “the right of an

employer to protect employees, the public, and the workplace

from danger or injury that might occur as a result of a person’s

possible impairments, when such protection is done in a fashion

that is consistent with the duty of reasonable accommodation.”

Stone, 538 S.E.2d at 397. This right is also embodied in the

CBA. Based on the record before us, we agree with the district

court that the undisputed material evidence establishes that CCC




CBA process, she would have cast the tiebreaking vote in
Anderson’s favor, and CCC presumably would have been obligated
under the CBA to return Anderson to work. These facts highlight
the role of the CBA process in Anderson’s termination and
undercut her claims of retaliation and discrimination.



                                   19
did   not   illegally   retaliate    or   discriminate   against   her.

Therefore, we affirm the judgment.

                                                              AFFIRMED




                                    20
WYNN, Circuit Judge, dissenting:

      Joyce     Anderson          was     fifty-two        years        old    and      had     a

satisfactory        work       record     nearly        three        decades     long        when

Consolidation         Coal      Company    (“CCC”)         terminated         her,     on     the

grounds that her osteoporosis prevented her return to work after

recovering      from       a     fracture.            Ostensibly,        CCC     based        her

termination      on     company-directed             medical     evaluations         rendered

after      Anderson’s          treating     orthopedic          surgeon        had     already

unreservedly        cleared        her     to        return     to    work,      and        those

evaluations appear to have been based largely on an erroneous

interpretation of a single study found through Google or similar

search engines.

      The majority opinion nevertheless concludes that there is

no genuine factual dispute regarding whether CCC’s termination

decision satisfied the relevant state standards—that is, whether

it   was    based     on   a    “reasonable”          medical     judgment,       one       “that

relie[d] on the most current medical knowledge and/or on the

best available objective evidence.”                     Ante, at 18; W. Va. Code R.

§ 77-1-4.8.         I   cannot     reach     the       same    conclusion.           For     this

reason and those elaborated below, I dissent.

                                                I.

                                                A.

      The     majority         opinion     assumes,           without     deciding,          that

Anderson      has     successfully        made       out   a    prima     facie      case      of

                                                21
disability discrimination.              Ante, at 14.       In my view, the issue

is simple enough to decide.               Anderson provided abundant evidence

that she was “regarded as” disabled by CCC, W. Va. Code § 5-11-

3(m)(3); Stone v. St. Joseph’s Hosp. of Parkersburg, 538 S.E.2d

389, 399 (W. Va. 2000), and that “but for” that perception of

her disability, she would not have been terminated.                       See Conaway

v. E. Associated Coal Corp., 358 S.E.2d 423, 429 (W. Va. 1986)

(enumerating the elements of a prima facie discrimination claim

under    West       Virginia     Code     § 5-11-9).        The    district     court

therefore erred in concluding that Anderson failed to make out a

prima facie case of disability discrimination. 1

                                           B.

     The majority opinion concludes that Anderson failed to make

out a prima facie case of workers’ compensation retaliation,

ante,    at   13,     which    requires    an   employee    to    offer    sufficient

evidence      that:    “(1)    an   on-the-job    injury     was   sustained;     (2)

proceedings were instituted under the Workers’ Compensation Act

     1  The district court arguably should have applied a
different    prima   facie    test,  specific    to   disability
discrimination suits in West Virginia, which requires that the
plaintiff (1) satisfy the definition of “handicapped” or
“disabled,”    (2)  be   able    to perform,   with   reasonable
accommodation, the relevant job, and (3) was discharged.
Hosaflook v. Consolidation Coal Co., 497 S.E.2d 174, 179–80 (W.
Va. 1997).    Anderson provided sufficient evidence to satisfy
these elements, too.     Cf. Morris Mem’l Convalescent Nursing
Home, Inc. v. W. Va. Human Rights Comm’n, 431 S.E.2d 353, 357–59
(W. Va. 1993).



                                           22
. . . ; and (3) the filing of a workers’ compensation claim was

a significant factor in the employer’s decision to discharge or

otherwise discriminate against the employee.”                           Powell v. Wyo.

Cablevision,       Inc.,    403    S.E.2d       717,     721   (W.    Va.   1991).      The

majority opinion states that Anderson “has failed to present

sufficient evidence to create a genuine issue of material fact”

regarding the third, “nexus” element, i.e., whether “her filing

of a workers’ compensation claim was a significant factor in

CCC’s decision to terminate her.”                  Ante, at 13.        I disagree.

     Due to the typical lack of direct evidence in employment

retaliation      cases,     we    are    to     examine     circumstantial        evidence

when evaluating the third element of a plaintiff’s prima facie

case,   including        “[p]roximity         in   time     of   the    claim     and   the

firing,”    “[e]vidence           of    satisfactory           work    performance      and

supervisory        evaluations         before      the      accident,”      and      “[a]ny

evidence    of      an     actual       pattern        of   harassing       conduct     for

submitting the claim.”            Powell, 403 S.E.2d at 721.

     Here, Anderson offered evidence with respect to each of

these factors.           First, with respect to the “proximity in time”

factor, Anderson began receiving workers’ compensation benefits

on November 4, 2009, was released to return to work by her

physician     on    March     24,       2010,      effective      March     29,   without

restrictions, was informed on April 25 that she would not be

allowed to return to work, and was terminated on June 22.                               The

                                              23
proximity among these various dates contributes to a permissible

inference        that     the      workers’      compensation          claim        was     a

“significant factor” in Anderson’s termination.                       Id.

       Second,    the     record     contains    “[e]vidence          of    satisfactory

work    performance         and     supervisory        evaluations           before       the

accident.”        Id.      Anderson was employed continuously with CCC

from October 15, 1981, through the date of her termination; in

that time, she established a “good work record” and was “well

thought of by both Management and her fellow employees.”                                 J.A.

858.

       Third,     although      there      was   no    “pattern       of      harassment”

following    the    submission        of    Anderson’s       workers’       compensation

claim, Powell, 403 S.E.2d at 721, there is evidence that before

learning    of    the     initial    return-to-work          examination,         Anderson

received a call from an employee of Wells Fargo, CCC’s workers’

compensation       administrator,          advising        Anderson    that       CCC     was

“going to make an issue of the osteoporosis” and “was going to

put the screws to” her.            J.A. 136–37.

       Finally, in addition to the above factors, a trier of fact

is permitted to consider any circumstantial evidence relevant to

the “nexus” prong.          Such evidence includes the fact that CCC is

self-insured,       and     that     CCC    regularly        sends     to     its       human

resources       managers    workers’        compensation       claim        reports     that

include    information       about    the     cost    of    benefits       paid   to     each

                                            24
injured miner.           Such evidence suggests that CCC may have been

unusually concerned about the costs of its workers’ compensation

program.       See Nestor v. Bruce Hardwood Floors, L.P., 558 S.E.2d

691, 695–96 (W. Va. 2001) (finding a triable question of fact

where “[the employer’s] supervisor bonus system could encourage

a supervisor to discriminate against an employee who files for

workers’ compensation benefits, even if . . . the bonus system

helps reduce workplace injuries”).

       In sum, Anderson presented sufficient evidence to establish

all    three    elements      of    a   prima    facie   workers’       compensation

retaliation       case,       including     evidence      that      her     workers’

compensation filing was a significant factor in CCC’s decision

to fire her.

                                          II.

       Both parties appear to concede, and the majority assumes,

that    the    requirements        of   section    77-1-4.8   apply       “when,   in

response to an employee’s prima facie case, the employer asserts

that an employee cannot safely perform her job as a legitimate,

non-discriminatory reason for termination.”                   Ante, at 16.         I

agree.     See Ranger Fuel Corp. v. W. Va. Human Rights Comm’n, 376

S.E.2d 154, 160 (W. Va. 1988) (“The fact that an applicant’s

handicap       creates    a   reasonable        probability   of    a     materially

enhanced risk of substantial harm to the handicapped person or

others is a legitimate, nondiscriminatory reason [for an adverse

                                          25
employment action].”); Syl. Pt. 3, Davidson v. Shoney’s Big Boy

Rest., 380 S.E.2d 232, 233 (W. Va. 1989) (“[T]o satisfy the

standard of a serious threat to one’s health or safety, the

employer must establish that it relied upon competent medical

advice that there exists a reasonably probable risk of serious

harm.”).      In short, it is quite clear that CCC was required to

meet   the    standards          of    section 77-1-4.8              for    its     termination

decision to be “legitimate” and “non-discriminatory.”

       Those standards are detailed and rigorous.                                 See ante, at

15–16.       And    at    summary       judgment         this   Court        is    tasked    with

determining, inter alia, if there is any “genuine dispute,” Fed.

R. Civ. P. 56(a), as to whether CCC’s termination decision was

“based on a reasonable medical judgement,” one founded “on the

most   current      medical       knowledge         and/or      on    the        best   available

objective evidence.”             W. Va. Code R. § 77-1-4.8.

       Significant to my disagreement with the majority view, the

dispositive        question       is    not,        as   the     majority’s             discussion

suggests, whether CCC “utilized doctors who had the ability to

conduct the medical testing specific to Anderson’s condition and

who    were        experienced         in     providing          occupational             medical

evaluations.”            Ante,    at    18.         Rather,      by        its    plain    terms,

section 77-1-4.8         requires       that    the      assessment          be    “reasonable”




                                               26
and based on “the most current medical knowledge” or the “best

available objective evidence.” 2

       Nor      is     the        dispositive        question,      as    the     majority’s

discussion        elsewhere         suggests,    whether      CCC    complied      with    the

terms of its collective bargaining agreement.                            See ante, at 14,

17.        That is not what section 77-1-4.8 says.                       Indeed, on more

than one occasion, West Virginia’s highest court has recognized

that       a   facially      neutral     company       policy    can     be    exploited    to

achieve a discriminatory objective.                          Skaggs v. E. Associated

Coal Corp., 569 S.E.2d 769, 777 (W. Va. 2002) (noting that “the

employer’s           use     of     a   system       of     preferred         providers    for

rehabilitation services . . . could be interpreted as a pretext

for a scheme to terminate employees who had received workers’

compensation          benefits”);        Wriston       v.    Raleigh      Cty.     Emergency

Servs. Auth., 518 S.E.2d 650, 659 (W. Va. 1999) (“[W]hile an

employment policy may be facially neutral, it cannot be applied

in a manner that nullifies or trumps the protective requirements

of [a statutory prohibition on discriminatory practices].”).




       2
       The majority opinion posits that “and/or” should be read
simply as a disjunctive “or.”     Ante, at 18 n.6.   I will not
quibble with the majority’s interpretation, because in this
case, there is a genuine dispute as to whether the judgment in
question was based on either the most current medical knowledge
or the best available objective evidence.



                                                27
       Section 77-1-4.8 did not require that CCC get the approval

of a specialist or that it comply with the terms of its own

policies.          It did require that CCC’s termination decision be

“based on a reasonable medical judgement,” one founded “on the

most       current       medical   knowledge     and/or    on   the   best    available

objective evidence.”               W. Va. Code R. § 77-1-4.8.         Here, there is

clearly at least a genuine dispute as to whether those standards

were met.

       In countering the initial medical evaluation by Anderson’s

treating orthopedic surgeon, who cleared Anderson for work, 3 CCC

relied upon the evaluations of three doctors, none of whom had

any special expertise in osteoporosis, and all of whom relied

heavily       on     a    single    study   that    they    appear    by     their   own



       3
       Anderson has presented the evaluations of two doctors with
specialized expertise in osteoporosis concurring with Dr.
McKinley’s initial clearance of Anderson for work. One of these
doctors—Dr. Bellantoni—has “23 years of experience as a faculty
physician at Johns Hopkins University School of Medicine with an
expertise in the evaluation and treatment of metabolic bone
disorders including osteoporosis.”      J.A. 703.     This expert
evidence is not necessary to or sufficient for my analysis, and
I do not intend to convert every “direct threat” case into a
battle of the experts. Nevertheless, Anderson’s expert evidence
is at least relevant in determining whether there is a genuine
dispute regarding whether the medical judgment CCC relied upon
in terminating Anderson complied with the standards outlined in
section 77-1-4.8,    including   whether    that   judgment   was
“reasonable.”    See Echazabal v. Chevron USA, Inc., 336 F.3d
1023, 1033 (9th Cir. 2003) (explaining the relevance of a
plaintiff’s expert evidence in an analogous federal suit,
brought under the Americans with Disabilities Act of 1990).



                                            28
admission either to have misunderstood or to have never read in

the first place.        To illustrate why there is at the very least a

genuine dispute as to whether these evaluations were based on

“the   most    current    medical       knowledge”       or   the    “best       available

objective     evidence,”        W.   Va.    Code   R.     § 77-1-4.8,        I    briefly

discuss each.

       Dr. Steinman was the first CCC doctor to examine Anderson.

His conclusion that Anderson’s osteoporosis prevented her return

to work was discussed in a single paragraph, and his discussion

of Anderson’s fracture risk relied upon a single study peddling

a   particular       fracture    risk      score   (“FRISK”)        for    osteoporosis

patients      (the    “FRISK     study”).          Dr.    Steinman’s         deposition

testimony suggests that a Google search led him to this study. 4

       In applying the FRISK study to Anderson, Dr. Steinman self-

admittedly     committed        several      errors.          First,      although     Dr.

4 “Q. Well, you could have gone on – back in 2010, you could have
gone on medical journal databases and done some additional
research, couldn’t you?
A. What I did, I thought, was the – everything that I could do.
Q. Sir, couldn’t you have gone on PubMed – PubMed, P-U-B,
capital P, M-E-D, capital M?
A. It’s my understanding that what I normally do in looking for
things is actually bigger than PubMed –
Q. Where did you normally go – you go?
A. – because I – I get things that are above and beyond PubMed.
Q. Where did you go? Where did you do the research where you
came up with this article as the state of the art?
A. Just do database –
Q. What database? Google? You just Google?
     A. Google, Bing, anything that’s available.” J.A. 578.



                                            29
Steinman intended to cite the study that developed the FRISK

score, he instead cited a letter to the editor critiquing that

study    on    the    grounds      that    it    over-predicted              fracture   risk.

Second,   while       Dr.    Steinman      previously          interpreted        the   FRISK

study    to    mean    that     Anderson        had     at    least      a    fifty-percent

probability     of    a     fracture      within      two    years,      he    now    concedes

gross error: It turns out that figure was only ten percent.

     Finally, it appears that the FRISK study’s findings were at

best marginally relevant to Anderson.                        The study was based on a

cohort    of    subjects      significantly           older        and   less    physically

active than Anderson, facts Dr. Steinman was unaware of at the

time,    and    the    fracture      risk       score    the       study      developed   was

intended for use in the context of making treatment decisions,

not fitness-for-work evaluations.

     CCC also relied upon Dr. Ripepi’s “chart review” of Dr.

Steinman’s report, which was limited to examining that report

and the four corners of Anderson’s medical records.                              Dr. Ripepi

noted that he agreed completely with Dr. Steinman’s conclusions,

and specifically that Anderson would be at a high risk of repeat

fracture, a conclusion Dr. Steinman had based primarily on his

self-admittedly           flawed    understanding             of     the      FRISK     study.

However, in his deposition, Dr. Ripepi admitted that he never




                                            30
read that study. 5    Rather, he assumed Dr. Steinman was “familiar

with that literature”: in Dr. Ripepi’s words, it “is a pretty

good assumption, that if you’re going to quote something, then

you’re pretty darn sure of it.”        J.A. 780.   Here, that was not a

good assumption to make.

     Finally,   CCC    relied   upon     Dr.   Sethi’s   evaluation   of

Anderson, which in turn relied upon the previous evaluations by

Drs. Steinman and Ripepi.       In his deposition, Dr. Sethi also

admitted that he never read the FRISK study. 6           Indeed, he too



5 “Q. Did you review the article – literature [Dr. Steinman]
relied on at the time you rendered your opinion that you agreed
with him?
A. No. I agreed with his report.
Q. Did you review the literature that he relied on? . . .
A. No.
Q. Have you ever reviewed the literature he relied on?
A. No.” J.A. 772.


6 “Q. Doctor, when you said the fracture risk was developed by
Dr. J. Gorricho, published by the Journal of Radiologists on
October 1, 2007, before you put that in your report, did you
check out and see if that was true?
A. Doctor – I am simply – I am reporting in the context of a
review of the medical records. I’m not treating physician. I’m
not criticizing. I do not need to look up that. I am simply
going by what is in the record and simply quoting another
person’s – what they said. And the review of the record is only
a review of the records. It is –
Q. Did you check – I’m sorry.
A. I don’t know – I do not need to check anything.
Q. But my question is did you check and see if what Dr. Steinman
said about the Gorricho fracture risk was true? Did you check
and see if it was true?
A. I do not need to check it because my role is only reviewing
the record and quoting what is in the record.
(Continued)
                                  31
erroneously cited the letter to the editor critiquing the study

he meant to cite.        Although Dr. Sethi reviewed Dr. McKinley’s

evaluation of Anderson, clearing her for work, he discredited

that   evaluation   on    the   grounds—now    somewhat     ironic—that    Dr.

McKinley    did   not    base   her   conclusion    on    specific     medical

studies.    Much of Dr. Sethi’s analysis had nothing to do with

Anderson    specifically.       The   rest    was   based   on   the    errant

assessments of fracture risk made by Drs. Steinman and Ripepi,

or what Dr. Sethi later admitted to relying on: “common sense.”

J.A. 823.    Although Dr. Sethi attached to his evaluation a copy

of one medical article on osteoporosis and a partial copy of

another, these studies are nowhere referenced or discussed in

his evaluation.

       In sum, CCC’s doctors relied on an inapplicable study and

on each others’ faulty evaluations to conclude that Anderson’s

osteoporosis precluded her from returning to work.                   I simply

cannot join the majority opinion in concluding that there exists

no genuine dispute as to whether those troubled evaluations were

“reasonable” and based on “the most current medical knowledge”



Q.   So the answer then is, no, you did not check it?
A.   I do not need to check it.
Q.   And so you did not check it?
A.   I did not.” J.A. 810–11.




                                      32
or the “best available objective evidence.”                    W. Va. Code R.

§ 77-1-4.8.

                                        III.

      In conclusion, in my view, Anderson has made out a prima

facie     case     of      disability         discrimination        and     workers’

compensation retaliation.         Additionally, material issues of fact

remain regarding whether CCC has met West Virginia’s mandatory

standards for what constitutes a legitimate, non-discriminatory

basis   for    termination     under     these    circumstances.           Where   an

evaluating doctor has himself conceded that his methodology was

erroneous, I cannot conclude that it is beyond dispute that such

a   judgment     was    “reasonable”     and    based   on   “the    most   current

medical knowledge” or “the best objective evidence.”                      Therefore,

summary   judgment       should   have    been     denied.      Accordingly,        I

respectfully dissent.




                                         33
