Appendix — Cobb v. E. I. du Pont de Nemours & Co.

Supreme Court brief1999

Ask Donna

What actually matters in this document.

Text

‘ie,

\) Supreme Court, U.S.

Y FILED

— 98 960 0m2 1998

vate ate OM 6 Fe AE a ©

vet a = —

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1998

DEBORAH H. COBB,

Petitioner,

E. I. duPONT de NEMOURS and

COMPANY, a Delaware corporation,

RICHARD KNOWLES, ELBERT PRICE,

LESTER GORE, SCOTT RENDINELL, LOU

P. MICELI, PAMELA POKRZYWA,

REUBEN W. HOLLAND, M.D., and

ROBERT L. LEADBETTER, M.D.

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

For the Fourth Circuit

A PPEN D/X

DAVID S. SKEEN

Counsel of Record

144 7th Avenue

Post Office Box 8520

South Charleston, WY 25303

(304) 744-8125

APPENDIX

TABLE OF CONTENTS

Memorandum Order April 22, 1997

Memorandum Order April 23, 1997

Memurandum Order March 31, 1997

Unpublished Per Curidm Opinion April 4, 1998

Appendix

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DEBORAH H. COBB,

Plaintiff

v. Civil Action No. 2:95-0743

E. I. DU PONT DE NEMOURS AND

COMPANY, a Delaware corporation;

RICHARD KNOWLES; ELBERT PRICE:

LESTER GORE; SCOTT RENDINELL;

LOU P. MICELI; PAMELA POKRZYWA:

REUBEN W. HOLLAND, M.D.: and

ROBERT L. LEADBETTER, M.D.,

Defendants

MEMORANDUM ORDER

This matter is before the court on the motion for

partial summary judgment filed by defendant E. I. DuPont de

Nemours and Company on January 6, 1997, insofar as the motion is

directed to plaintiff’s Count I handicap discrimination claim and

her Count IV fraudulent concealment claim against DuPont.’

'By separate order this day entered, the court grants

summary judgment against plaintiff with respect to her other

fraudulent corcealment claims, those being the ones brought

against Pamela Pokrzywa, Reuben W. Holland, M.D., and Robert L.

Leadbetter, M.D. In that order, the court indicates that it will

separately address the fraudulent concealment claim insofar as it

is directed towards DuPont by virtue of plaintiff’s allegation

that Diana Doran made false reports to the Workers’ Compensation

Fund on a Form 123. (See Order entered this day granting summary

judgment in favor of Pokrzywa, Holland and Leadbetter at 5,

note 4.)

ia 2a

Appendix

A. Summary Judgment Standard.

A party is entitled to summary judgment "if the plead-

ings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

geiiuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). Material facts are those necessary to establish the ele-

ments of a party’s cause of action under controlling substantive

law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Only

those facts which would affect the outcome of the case are

"material." Id. If essential facts specifically averred by

opposing parties are contradictory, the motion must be denied.

Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888 (1990). On

the other hand, DuPont is entitled to summary judgment if plain-

tiff has failed to establish an essential element of her causes

of action. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). That is, DuPont may satisfy its requirement of showing

that it is "entitled to judgment as a matter of law" by showing

that there is an absence of evidence to support plaintiff's

claims. Cray Communications, Inc. v. Novatel Computer Sys.,

Inc., 33 F.3d 390, 393-94 (4th Cir. 1994), cert. denied, 115

S. Ct. 1254 (1995). It need not present affidavits or other

materials negating plaintiff’s claim. Id. at 394. DuPont is

also entitled to summary judgment in its favor if "the record as

Appendix

a whole could not lead a rational trier of fact to find" in favor

of the plaintiff. Williams v. Griffin, 952 F.2d 820, 823 (4th

Cir. 1991) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986))

In reviewing the evidence, the court must not resolve

disputed facts, weigh the evidence, Ross v. Communications

Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), or make

determinations of credibility, Sosebee v. Murphy, 797 F.2d 179,

182 (4th Cir. 1986). Indeed, plaintiff is entitled to have his

version of the facts accepted as true and all internal conflicts

resolved in his favor. Charbonnages de France v. Smith, 597 F.2d

406, 414 (4th Cir. 1979) (quoting Pierce v. Ford Motor Co., 190

F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887 (1951))

Nonetheless, a properly supported motion for summary judgment

cannot be defeated by evidence that is "merely colorable," M&M

Medical Supplies v. Pleasant Valley Hosp., 981 F.2d 160, 163 (4th

Cir. 1992), cert. denied, 508 U.S. 972 (1993) (quoting Anderson

477 U.S. at 249-50), or by mere conclusory allegations or denials

in the opposing party’s pleadings or affidavits, or by "presum-

ing” missing facts. Lujan, 497 U.S. at 889. Rather, the party

Opposing the motion for summary judgment must offer an affidavit

or otherwise set forth specific facts that demonstrate that there

is a genuine issue for trial in order to oppose a summary judg-

ment motion. Fed. R. Civ. P. 56(e)

i i a aaa

Appendix

B. Fraudulent Concealment.

Plaintiff’s factual assertions with respect to her

fraudulent concealment claim are confined to actions taken by

defendants Pamela Pokrzywa, Reuben W. Holland, M.D., and

Robert L. Leadbetter, M.D., and by Diana Doran, DuPont’s benefits

administrator. Having disposed of the claims against Pokrzywa,

Holland and Leadbetter by separate order, the court turns to

plaintiff’s allegation that Doran made false reportings to the

workers’ compensation fund.

As an initial matter, the court notes that plaintiff’s :

complaint makes no reference to Doran and contains no allegation

of false reporting to the workers’ compensation fund. Neverthe-

less, when plaintiff filed her July 8, 1996, verified statement

of facts relied on to support her claims, (hereinafter, Statement

of Facts),” she stated, as part of her Count IV fraudulent

The Statement of Facts filed by plaintiff on July 8, 1996,

was submitted in response to the court’s order of June 5, 1996,

requiring her to provide a statement of the facts on which she

relies to support the allegations in the complaint and advising

her that her failure to supply the information then known might

result in an order barring the use of facts not then disclosed.

(Order entered June 5, 1996.) Plaintiff’s obligation to provide

that information arose from defendants’ first set of interroga-

tories, served on November 20, 1995, asking plaintiff to state

with particularity the facts relied on to support her complaint.

(See Mag. Judge Order entered Mar. 22, 1996, at 4.) No response

was made until after a motion to compel was filed and then the

response was only by reference to her deposition testimony. By

order entered on March 22, 1996, the magistrate judge ruled that

"(p]laintiff’s reference to her deposition testimony is not a

sufficient or proper response" and ordered her to fully respond

Appendix

concealment claim, that she will present evidence of "the false

reporting to Workers’ Compensation that [she] suffered no health

problems or complaints while employed to deny her consideration

for any benefits," and of "the false reporting to Workers’

Compensation of no lost work time for illness when [she] had

taken a substantial number of days of sick leave to falsely

conceal the possibility of occupationally-induced health prob-

lems." (DuPont’s Mot., Ex. 4, Statement of Facts at 9.)

Immediately following those assertions is this addi-

tional statement about the false reporting allegations:

Diana Doran completed a Form 123 for

Workers’ Compensation which reported that

Deborah Cobb had no lost work days and had no

medical or health complaints. This was an

intentional and complete misrepresentation as

evidenced by Dupont’s own corporate records

regarding Deborah Cobb’s sick leave and was

fully available to Ms. Doran as the Benefits

Administrator charged with responsibility for

completing Form 123 for Dupont.

(Id.)

by March 19, 1996, and “set forth in particularity the facts she

possesses that support the allegations in her Complaint." (Id.

at 4, 6.) On plaintiff’s appeal, the court modified the order of

the magistrate judge to provide that plaintiff could have until

June 10, 1996, to provide the statement of facts. (Order entered

June 5, 1996, Docket Entry No. 159 at 3.)

Materials presented on June 11, 1996, were stricken as not

in compliance with the court’s order, but the court accepted

supplemental information submitted on June 14, 1996, when it was

presented in slightly modified form, under oath of the plaintiff,

on July 8, 1996. (See Order entered June 26, 1996, at 6-9.)

Appendix

In Persinger v. Peabody Coal Co., 474 S.E.2d 887 (W.

Va. 1996), the West Virginia Supreme Court of Appeals held that

notwithstanding the statutory immunity available to contributing

employers under section 23-2-6 of West Virginia’s Workers’

Compensation Act, W. Va. Code § 23-2-6, there are circumstances

under which an employee may maintain a fraudulent concealment

claim against the employer. Id. at 897. More particularly, the

court held that:

West Virginia Code § 23-2-6 does not preclude

an employee from maintaining a separate and

distinct cause of action against an employer

for damages as a result of the employer

knowingly and intentionally fraudulently

misrepresenting facts to the Workers’ Compen-

sation Fund that are not only in opposition

to the employee’s claim, but are made with

the intention of depriving the employee of

benefits rightfully due him.

However, because of the statutory right of the employer

"to contest the compensability of an employee’s injury and/or to

object to any subsequent finding or award,” the cause of action

is to be narrowly construed. Id. In addition, in order to

insure that the cause of action reaches only “outrageous repre-

hensible conduct" falling outside the "permissible boundary of

protected behavior," the allegation of fraud must be pled in

keeping with West Virginia Rule of Civil Procedure 9(b), which,

like its federal counterpart, Fed. R. Civ. P. 9(b), requires that

Appendix

circumstances constituting fraud be stated "with particularity."

Id, at 898. The court elaborated:

[A]n employee’s cause of action against

his/her employer for fraudulent misrepre-

sentation concerning the employee’s workers’

compensation claim must be pled with partic-

ularity and must be supported by factual

allegations identifying the employer’s par-

ticular acts or circumstances which distin-

guish the intentional tort of fraudulent

misrepresentation from the employer’s negli-

gent misrepresentation or mere delay in

processing or payment of said claim, the

latter two of which are not sufficient to

Support an employee’s independent cause of

action.

"More specifically,” for the plaintiff to prevail, the

claim must be pled "with particularity, specifically identifying

the facts and circumstances that constitute the fraudulent

misrepresentation.” Id. at 899. Among the circumstances which

must be particularly averred are "matter[s] such as the time,

place, and conten[t]s of the false representations, as well as

the identity of those persons involved." Id. (quoting with

approval Barr Co. v. Safeco Ins. Co., 583 F. Supp. 248, 258 (N.D.

Ill. 1984)). In addition, all essential elements of the claim,

“including the injury resulting from the fraudulent conduct,”

must be proven by clear and convincing evidence. Id.

Appendix

Relying on the pleading requirements attendant to the

fraudulent concealment cause of action first recognized in

Persinger, DuPont seeks dismissal of that portion of plaintiff's

fraudulent concealment claim which is based on Doran’s alleged

misrepresentations to Workers’ Compensation. According to

DuPont, plaintiffs allegations are not particularized as to

time, place and content and are only "vague" allegations of fraud

without regard to "specific conduct or how it was executed."

(DuPont’s Mem. in Supp. at 41.) Thus, says DuPont, the claim

based on Persinger must be dismissed.

Inasmuch as DuPont appears to proceed as if the State-

ment of Facts were a more definite statement, challenging only

the particularity with which plaintiff states her averment of

fraudulent misrepresentation of facts to the Workers’ Compensa-

tion Fund, the court will regard the Statement of Facts as a more

definite statement of the fraudulent concealment claim contained

in Count IV of the complaint. In addition, although the argument

is made in the context of a motion for summary judgment, it is

seen that DuPont asks for dismissal of the cause of action. The

court accordingly evaluates plaintiff's claim of false reporting

to Workers’ Compensation under standards applicable to a motion

to dismiss for failure to state the averments of fraud with

particularity as required by the West Virginia Supreme Court of

Appeals in Persinger.

Appendix

Although plaintiff’s Statement of Facts does not

identify when the alleged misrepresentation was made, she identi-

fies Doran as the person responsible for making it and Workers’

Compensation as the recipient of the false information. The

false contents are described with enough specificity for DuPont

to understand what plaintiff alleges to be false. In addition,

plaintiff's assertion that the false reporting was done in order

“to deny her consideration for any benefits" and "to falsely

conceal the possibility of occupationally-induced health prob-

lems" satisfies the requirement that the misrepresentation be

made in opposition to her claim and with the intent of depriving

her of benefits rightfully due, all as required by the West

Virginia Supreme Court of Appeals in Persinger. Further, it may

be inferred, from the allegation that DuPont’s "own corporate

records" regarding plaintiff’s "sick leave" were “fully avail-

able" to Doran, that the misrepresentation, if any be proven, was

an intentional, rather than negligent, act. Consequently, the

court concludes that plaintiff’s pleading of the claim for

fraudulent misrepresentation concerning her workers’ compensation

claim, as amplified in her Statement of Facts, is stated with

sufficient particularity to permit DuPont to prepare a defense to

the claim and survive dismissal. See Hager v. Exxon Corp., 241

S.E.2d 920, 923 (W. Va. 1978) (stating that the rationale for the

strict pleading requirement of Rule 9(b) "is to permit the party

charged with fraud the opportunity to prepare a defense")

10a

Appendix

DuPont’s motion for summary judgment will be denied insofar as it

seeks dismissal of the Count IV claim for fraudulent misrepresen-

tation concerning plaintiff’s workers’ compensation claim. At

trial, plaintiff must, as required by Persinger, present evidence

“persuasive enough for both the judge and jury to find substan-

tial, outrageous and reprehensible conduct which falls outside

of the permissible boundary of protected behavior under the

{worker’s compensation] statute” in order to prevail on her

claim, Persinger, 474 S.E.2d at 899.

It is further noted that plaintiff’s contention that

she was deprived of the opportunity to conduct discovery on the

claim of fraudulent misrepresentation concerning a workers’

compensation claim is unavailing and cannot satisfy the burden of

proof she bears at trial. As earlier indicated, plaintiff’s

complaint did not mention Doran and did not contain any allega-

tions of false reporting of information to Workers’ Compensation.

The claim here allowed was set forth for the first time on July

8, 1996, in plaintiff’s Statement of Facts. Prior to that time,

plaintiff undertook to depose Doran.’ The deposition was termi-

nated by counsel for DuPont when inquiry was made of her into

workers’ compensation matters, it being the position of DuPont

*Aside from noticing the deposition of Doran, plaintiff

refers to no other discovery efforts regarding the claim for

fraudulent misrepresentation concerning her workers’ compensation

claim.

lla

Appendix

that Doran had previously been deposed on those matters in

plaintiff’s workers’ compensation case. (See Magistrate Judge

Order entered Mar. 22, 1996, at 2-3, Docket Entry No. 131.)

Plaintiff moved to compel the further deposition of Doran. The

magistrate judge found no basis for compelling her further

deposition on workers’ compensation matters inasmuch as "she has

already been deposed in Plaintiffs Workers’ Compensation matter

and this civil action is a separate and distinct action." (Id.

at 2.) He accordingly ruled that the deposition of Doran had

been completed. (Id. at 2-3.)*

Plaintiff appealed. At a hearing on the appeal,

conducted before this court on May 31, 1996, counsel stated that

he wanted to pursue the deposition of Doran to prove further

actions by DuPont to deprive plaintiff "of matters that she was

entitled to; in this case, the Workers’ Comp case, Your Honor."

(Tr. May 31, 1996, Hr’g at 9, Docket Entry No. 160.) He

explained that it was plaintiff’s position that she was denied

“At the hearing conducted before the magistrate judge,

counsel for plaintiff stated that he wanted to take Doran’s

further deposition because her earlier deposition "showed that

this was the only case that she had ever contacted Workers’

Compensation in and clearly goes to the ongoing practice by

DuPont, in Mrs. Cobb’s case, to create a hostile work environ-

ment, and this helps show that hostile work environment, Your

Honor.” (Tr. Mar. 11, 1996, Hr’g at 4, Docket Entry No. 130.)

Thus, it is seen that in addition to the absence of a false

reporting claim at that time, plaintiff did not state a need to

further depose Doran for the purpose of inquiring into allega-

tions of false reporting and a possible future claim based on

that allegation.

12a

Appendix

workers’ compensation benefits "on the basis of misrepresenta-

tions placed in the application -- the response to the applica-

tion for benefits which was signed by Diana Doran." (Id.) He

wanted to develop that in further deposition, but was precluded

from doing so when counsel for DuPont refused to permit questions

of her, in this civil litigation, about workers’ compensation.

(Id.) The stated purpose was to obtain "further proof of retal-

latory actions by DuPont and their employees which was a result

of the discrimination committed against Mrs. Cobb." (Id. at 10.)

In response, counsel for DuPont stated its position that the

workers’ compensation matter was "totally separate” and should be

litigated in the workers’ compensation forum, there being no

allegation in plaintiff’s complaint or in any response to dis-

covery that demonstrated that the discriminatory conducted

described by counsel for plaintiff was a part of this litigation.

(Id.)

After hearing the parties, and with the understanding

that DuPont was agreeable to the further deposition of Doran on a

showing by plaintiff that her testimony, already given, was at

odds with the testimony of other witnesses in plaintiff’s pending

workers’ compensation case, the court orally ruled that the

decision of the magistrate judge denying plaintiff’s motion to

compel further deposition of Doran was affirmed. (Id. at 8-9,

38.) The ruling was subject to the provision that if "at a

13a

Appendix

subsequent stage of the case, the plaintiffs, in light of the

development of the case at that point, wish to undertake to

pursue that matter further, you can do it by a motion before the

court. The court will take that matter up at that stage." (Id.

at 38.) Or June 5, 1996, the court entered its follow-up order

affirming the magistrate judge’s ruling with respect to the

further deposition of Doran, "subject to plaintiff’s right at a

subsequent stage of the proceedings, but in no event later than

June 17, 1996, to file a motion seeking further relief with

respect to that ruling.” (Order entered June 5, 1996, at 2.)

Plaintiff took no action to renew the deposition of

Doran, even after filing the Statement of Facts on July 8, 1996,

which set forth, for the first time, the allegations that Doran

made false representations to workers’ compensation, allegations

which fortuitously were recognized by the West Virginia Supreme

Court of Appeals four days later as constituting a cause of

action excepted from the general immunity provisions of the

Workers’ Compensation Act. Having failed to take action earlier

to obtain relief from the court’s order of June 5, 1996, on the

basis of the Persinger opinion, plaintiff cannot now contend that

She was deprived of an adequate opportunity to conduct discovery

on that claim.

l4a

Appendix

C. Handicap Discrimination.

Plaintiff's Count I handicap discrimination claim is

based on that portion of the West Virginia Human Rights Act,

W. Va. Code § 5-11-1 through 5-11-19, which provides that "[iJt

shall be an unlawful discriminatory practice . . . [flor 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 handi-

capped." §5-11-9-(1). In a wrongful discharge case, in order to

establish a prima facie case of employment discrimination on the

basis of handicap under section 5-11-9(1), plaintiff must show

that she (1) meets the definition of “handicapped,” (2) is a

“qualified handicapped person," and (3) was discharged from her

job.* Morris Nursing Home v. West Virginia Human Rights Comm’n,

431 S.E.2d 353, 357 (W. Va. 1993)

To assist in the interpretation and implementation of

the Human Rights Act, the West Virginia Human Rights Commission

promulgated regulations applicable to discrimination against

"It is conceded that DuPont did not discharge plaintiff.

Thus, the third element of her handicap discrimination claim

hinges on the assertion of constructive discharge resulting from

intolerable conditions of employment, including DuPont’s failure

to make reasonable accommodations for her asserted handicaps.

(Pl.’s Am. Resp. at 13-14.)

15a

Appendix

individuals with disabilities.° Id. at 358. The Human Rights

Act and accompanying regulations define the terms “handicap” and

"disability" as a person who has "[a] mental or physical impair-

ment which substantially limits one or more of a person’s major

life activities." W. Va. Code, § 5-11-3(m); 77 W. Va. C.S.R. 2,

§ 2.1.1. "Major life activities" is defined as including

“functions such as caring for one’s self, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning

and working." W. Va. Code § 5-11-3(m) a) FT W. Va. €SE.R. 2.

B 2.6. "Substantially limits" means, inter alia, " [t]he

inability to perform a major life activity that the average

person in the general population can perform." 77 W. Va. C.S.R.

2, § 2.5. The regulations also provide that in the event of a

dispute about the existence of a disability or the nature of the

impairment, plaintiff has the burden of proving, "by reasonable

medical opinions or records," (1) the nature of the disability,

(2) any limitations caused by the disability, and (3) any

restrictions on the individual’s work activity. 77 W. Va. C.S.R.

by Boek.

DuPont seeks summary judgment in its favor on plain-

tiff’s handicap discrimination claim on the grounds that she

*Although the Human Rights Act uses the word "handicap," the

regulations use the "word ’disability’ and its derivations in

order to conform with the Americans with Disabilities Act of

1990." 77 W. Va. C.S.R. 1, § 1.1

16a

Appendix

cannot show that she is "handicapped" or that she is a “qualified

handicapped person" or that she was constructively discharged

from her job. In addition, DuPont contends that plaintiff is

barred by the doctrine of judicial estoppel from seeking relief

on her handicap discrimination claim.’

Inasmuch as there is a dispute between the parties over

whether plaintiff is a person with a disability, she must present

reasonable medical opinions or records substantiating the nature

of the disability, any limitations caused by it, and any restric-

tions it imposed on her work activity. In response to the motion

for summary judgment, plaintiff submits (1) a medical report from

Thomas J. Romano, M.D., (Pl.’s Am. Resp., Ex. J); (2) a medical

evaluation report prepared by Reuben W. Holland, Jr., M.D.,

(Pl.’s Am. Resp., Ex. K); and (3) medical records from D. L.

Rasmussen, M.D. (Pl.’s Am. Resp., Ex. L).* According to

"Defendants assert, and plaintiff does not dispute, that the

Count I handicap discrimination claim is brought only against

DuPont.

“In addition, plaintiff states:

[P}lainuff places this Court on notice that the defen-

dant’s own corporate medical records maintained in the

course of their business pertaining to this plaintiff's

last five to six years of employment as disclosed in

discovery by the defendant are devastatingly detailed

evidence of the degree to which plaintiff’s major life

activities were significantly affected by her physical

conditions as hereinbefore identified. These documents

are in the possession of the defendant and are evidence

in this case. These records refute the proffered

17a

Appendix

plaintiff, the three documents show that she is a “diagnosed

asthmatic" and that she "suffers from chronic fatigue syndrome

and significant immune system dysfunction, manifested by

recurrent herpetic lesions of the spine, back and buttocks," all

of which were known to defendant at least two years before she

terminated her employment.’ (Pl.’s Am. Resp. at 11.)

Looking first at the medical report of Dr. Romano, the

court observes that it bears the date July 28, 1994, with the

further notation "(Revised 11/9/94)." (Pl.’s Am. Resp., Ex. J.)

The court notes, as well, that by order entered on September 5,

1996, plaintiff was precluded from offering Dr. Romano as an

expert to be called at trial, in part because it was apparent

that the report here submitted was generated by Dr. Romano on

July 28, 1994, in connection with plaintiff’s breast implant

argument against plaintiff’s claim for handicap

discrimination.

The argument of counsel that plaintiff possesses documents which

would defeat summary judgment does not satisfy the requirement of

Rule 56 that her response "set forth specific facts showing that

there is a genuine issue for trial," Fed. R. Civ. P. 56(e). It

merely asks the court to "presum[e]" missing facts, an insuffi-

cient basis for defeating a properly supported motion for summary

judgment. See Lujan v. National Wildlife Fed’n, 497 U.S. 871,

889 (1990)

"By comparison, plaintiff alleged in her complaint that she

was a handicapped person because of “diagnosed pulmonary disease,

inflammatory disease, hypertension, and chronic fatigue syn-

drome." (Compl. at 6, § 20.) In her Statement of Facts, she

identified her handicapping conditions as being “asthma, hyper-

tension, chronic fatigue syndrome, chronic viral lesions, and

depression.” (Statement of Facts at 2.)

18a

Appendix

litigation. (Order entered Sept. 5, 1996, at 3.) The revised

November 9, 1994, report is identical to the report generated on

July 28, 1994, except for the deletion of references to plain-

tiff’s breast implants, their subsequent removal, and the opinion

that plaintiff suffers from a “compensable condition." (Id. at

3.) Inasmuch as the report was prepared in connection with

different litigation and did not meet the requirements of Rule

26(a) (2) (B) of the Federal Rules of Civil Procedure, including

the requirement that the report contain a statement of opinion

about an issue in this case, the court prohibited plaintiff from

calling Dr. Romano as a witness at trial. (Id. at 4.)

Although plaintiff is barred from calling Dr. Romano to

testify at tnal, under 77 W. Va. C.S.R. 3, section 3.1, his

records might nevertheless be sufficient to demonstrate the

nature of plaintiff’s disability, the limitations caused by it,

and any restrictions it imposes on her work activity. Based on

plaintiff’s history and his physical examination of her, Dr.

Romano’s report states his "IMPRESSION" as being that plaintiff

suffers from: "Atypical Connective Tissue Disease/Atypical

Rheumatic Syndrome/Nonspecific Autoimmune Condition characterize

by Symptom Groupings Raynaud’s Phenomenon, Myalgias, Immune

mediated skin changes, documented arthralgias, document myalgias,

chronic fatigue (> 6 months), documented neurological symptoms

including cognitive dysfunction or paresthesias, documented sleep

19a

Appendix

disturbances and burning pain in the chest, breast, arms or

axilla." (Pl.’s Am. Resp., Ex. J at 2.) In recording the

history plaintiff presented, the report also states that "[i]t is

hard for her to perform her activities of daily living. She used

to be very active, however, she now can no longer play tennis,

swim or walk for any great distance. It is hard for her to plant

flowers." (Id. at 1.)

Looking at the entirety of Dr. Romano’s report in

conjunction with the requirements of section 3.1, it may be that

his statement of impressions simply employs different terminology

to describe some of the disabilities plaintiff claims she suf-

fered during her employment with DuPont such that it satisfies

the requirement of section 3.1.1 that plaintiff present

reasonable medical opinions or records showing the nature of the

disability. To the extent that it discusses plaintiff’s reported

difficulties in engaging in certain activities, it may also be

said that it describes certain limitations. Nevertheless, the

report does not provide any evidence of limitations which are

caused by a disability of the nature described. That is, it does

not state a causal association between a disability and its

limitations. Nor does it contain any mention of restrictions on

plaintiff's work activity. The report accordingly fails to

Satisfy at least the last two requirements of section 3.1.

20a

Appendix

Moreover, assuming, without deciding, that Dr. Romano’s

report would be sufficient to establish that plaintiff meets the

definition of "handicapped," she presents no evidence that DuPont

knew or should have known of the information there contained, —-

other than the bald assertion of counsel that the report "was,

and is, part of the business records maintained" by DuPont.

(Pl.’s Am. Resp. at 11.) Plaintiff terminated her employment

with DuPont on September 15, 1994. (DuPont’s Mot., Ex. 1,

Deborah Cobb Dep. of Jan. 15, 1996, at 83.) The version of Dr.

Romano’s letter relied on to defeat summary judgment contains two

dates: July 28, 1994, and the "Revised" date of 11/9/94. The

record is devoid of evidence of the date of receipt of the report

by DuPont," but it plainly was not prepared until after “the

years of 1989, 1990, 1991, 1992, 1993,” the years which, in her

response to the motion for summary judgment, plaintiff "advises

the Court” are the years for which the handicap discrimination

claim is brought and the years during which she "was not accommo-

dated." (Pl.’s Am. Resp. at 13.) Consequently, even assuming

that Dr. Romano’s report could be used to establish that plain-

tiff met the definition of handicapped on November 9, 1994, or

even on July 28, 1994, while she was still employed, it does not

constitute evidence that DuPont had knowledge of the handicap and

DuPont concedes that it received the report as part of

plaintiff’s post-employment application for total and permanent

disability benefits. (DuPont Reply at 4, note 2.)

2la

Appendix

discriminated against her because of it such that she could

ultimately prevail on her handicap discrimination claim. See

Morris, 431 S.E.2d at 359 (noting that plaintiff’s ultimate

burden on West Virginia Human Rights Act handicap discrimination

claim was met, in part, by evidence showing that defendant "knew,

or at least was on notice of," plaintiff's impairment); cf. Burns

v. City of Columbus, 91 F.3d 836, 843 (6th Cir. 1996) (under

similar federal statute, the Rehabilitation Act of 1973, 29

U.S.C.A. B 794, plaintiff could not defeat properly supported

motion for summary judgment when he presented no evidence that

defendant "knew or believed that he was handicapped"); Deghand v.

Wal-Mart Stores, Inc., 926 F. Supp. 1002, 1011 (D. Kan. 1996)

(under similar federal statute, the Americans with Disabilities

Act of 1990, (ADA), 42 U.S.C.A. S 12112(a), plaintiff’s prima

facie case requires a showing of an adverse employment decision

"because of ... disability"); Gore v. GTE South, Inc., 917

F. Supp. 1564, 1573 (M.D. Ala. 1996) (plaintiff could not prevail

on ADA claim in absence of assertion that employer had knowledge

of disability at the time adverse employment decision was made)

The second document relied on by plaintiff to show that

she meets the definition of handicapped is a medical evaluation

report completed by Dr. Holland and dated October 19, 1994.

(Pl.’s Am. Resp., Ex. K.) It appears that the report was pre-

pared in the course of plaintiff's application for disability

22a

Appendix

benefits. (Id. at 2.) Although it contains "[d]iagnoses" of

various conditions, including "recurrent herpetic lesion buttock”

and "asthma," it appears that the diagnoses are based on informa-

tion obtained from plaintiff, rather than on independent examina-

tion. (Id.) For example, the report states that plaintiff

"declined examination of her buttock area," (id.), which indi-

cates that the diagnosis of "recurrent herpetic lesion buttock"

was not based on Dr. Holland’s physical examination, but rather

on information supplied by plaintiff. Similarly, there is no

indication of physical findings of asthma, but only that

"{a]sthma was diagnosed, she reports, in 1993." (id. at 3.) In

addition, the report does not contain a finding of any limitation

caused by a disability, beyond stating that "Ms. Cobb...

applies for disability on the basis of conditions which are in

her words ’very serious and debilitating and the work-related

problems under which I have been functioning has (sic) greatly

exacerbated these conditions to the point where I am unable to

seek out and maintain gainful employment.’" (id. at 3.)

Moreover, as with the report of Dr. Romano, the report

of Dr. Holland, completed after plaintiff terminated her employ-

ment, cannot support a finding that DuPont had knowledge or

notice of a disability and knowingly failed to make reasonable

accommodation, resulting in conditions which were so intolerable

that it was reasonable for plaintiff to leave her employment.

23a

Appendix

See Slack v. Kanawha County Housing & Redev. Auth., 423 S.E.2d

547, 557-58 (W. Va. 1992) (plaintiff alleging constructive

discharge must "establish that working conditions created by or

known to the employer were so intolerable that a reasonable

person would be compelled to quit"). The third submission,

medical records of Dr. Rasmussen, fails for the same reason, it

being stated on the first entry that plaintiff was seen as a

new’" patient on November 1, 1994, (Pl.’s Am. Resp., Ex. L at 1),

more than six weeks after she ceased work."!

Inasmuch as plaintiff has presented no "reasonable

medical opinions or records” showing that she met the definition

of handicapped while in the employ of DuPont and no evidence

tending to show that DuPont knew or should have known that she

was a handicapped person for whom it had a duty to make reason-

able accommodation, no reasonable jury could find that DuPont

"Plaintiff states in her responding memoranda that she

“appended as Exhibit ‘L’ Dr. Rasmussen’s diagnosis while plain-

tiff was still employed." (Pl.’s Am. Resp. at 12.) She further

says that "Dr. Rasmussen is, and was, the treating pulmonologist

at all times relevant to this matter." (Id.) In that regard, it

may be conceded that Dr. Rasmussen’s office note of November 1,

1994, states that plaintiff came in "with chief report of

‘asthma,’" which she reported started in 1993. (Pl.’s Am. Resp.,

Ex. L at 1-2.) However, the first entry in Dr. Rasmussen’s

record is dated November 1, 1994, with the notation that plain-

tiff is a new patient, and, at deposition, he confirmed that he

first saw plaintiff on that date and that his records only

reported her subjective complaints and her self-reported diag-

nosis of asthma. (DuPont Mot., Ex. 6, Rasmussen Dep. of Mar. 26,

1996, at 4, 11, 15.) His records thus do not sustain a finding

that he diagnosed plaintiff’s asthmatic condition while she was

still employed.

24a

Appendix

discriminated against her because of her handicap. Plaintiff

having failed to establish essential elements of her handicap

discrimination claim, DuPont is entitled to judgment in its favor

on Count I of plaintiff's complaint.”

For the reasons stated, it is ORDERED that the motion

for partial summary judgment filed by defendant E. I. DuPont de

Nemours and Company on January 6, 1997, be, and it hereby is,

denied in part and granted in part. It is accordingly further

ORDERED that:

1. The motion be, and it hereby is, denied only

insofar as it pertains to plaintiff’s Count IV claim against

‘Even assuming that plaintiff could establish that she was

a "handicapped" person during the tenure of her employment, there

is no evidence before the court showing that she is a “qualified

handicapped person"; that is, a person who, with reasonable

accommodation, was able and competent to perform the job.

Morris, 431 S.E.2d at 358. To the contrary, on September 30,

1994, two weeks after she ceased working, she wrote to DuPont for

the purpose of applying for "total and permanent disability

benefits." (DuPont Mot., Ex. 10.) The letter states in perti-

nent part: "It has become very apparent to me since my leaving

that I am not physically able to engage in any employment due to

my present physical condition and greatly impaired health

I am unable to seek and maintain gainful employment.” (Id.)

Consistent therewith, plaintiff has not sought employment else-

where, (DuPont Mot., Ex. 1, Deborah Cobb Dep. of Jan. 15, 1996,

at 83), and has applied for Social Security disability benefits,

(DuPont Mot., Ex. 21, Deborah Cobb Dep. of Dec. 31, 1996, at 51)

Inasmuch as all of the evidence before the court indicates that

plaintiff was not able to work at the time she terminated her

employment, she cannot demonstrate the essential element that she

was a "qualified handicapped person."

25a

Appendix

E. I. DuPont de Nemours and Company for fraudulent misrepresenta-

tion concerning plaintiff’s workers’ compensation claim.

2. The motion be, and it hereby is, granted only

insofar as it is directed to plaintiff’s Count I claim for

handicap discrimination.

The Clerk is directed to forward copies of this order

to all counsel of record.

DATED: April 22, 1997

/s/ JOHN T. COPENHAVER, JR.

United States District Judge

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DEBORAH H. COBB,

Plaintiff

V. Civil Action No. 2:95-0743

E. |. DU PONT DE NEMOURS AND

COMPANY, a Delaware corporation;

RICHARD KNOWLES; ELBERT PRICE;

LESTER GORE; SCOTT RENDINELL;

LOU P. MICELI; PAMELA POXRZYWA;

REUBEN W. HOLLAND, M.D.; and

ROBERT L, LEADBETTER, M_D.,

Defendants

MEMORANDUM ORDER

This matter is before the court on the motions for

summary judgment filed on January 6, 1997, by defendants Richard

Knowles, Lester Gore, Elbert Price, Scott Rendinell, and Lou P.

Miceli’ and the partial motion for summary judgment filed that

same date by E. I. du Pont Nemours and Company insofar as the

'The individual defendants are described in plaintiff's

complaint as being her supervision and employee relations

representatives.” (Compl. at 2, g 3.) More specifically,

Knowles was the plant manager; Price held the position of Super-

intendent of Business Services and Human Resources; Gore was an

employee relations specialist; Rendinell was plaintiff's area

supervisor from 1993 through September 1994; and Miceli was

plaintiff's direct supervisor from April 1992 through September 1993.

motions relate to plaintiff's Count III claim for sexual

harassment and her Count IV claim for the intentional infliction

of emotional distress.

Count III of plaintiff's complaint alleges generally

that she was subjected by male co-workers and supervisory person-

nel to incidents of asexual harassment" and "unwanted sexual

advances, specifically verbal and physical conduct and communica-

tion of a clear and explicit sexual nature,. occurring over a

period of years; that the incidents were reported to supervisors

and corporate officers, who should have taken timely and appro-

priate actions; and that the "repeated humiliation" and "subse-

quent false disciplinary actions taken against her" demonstrate

"a pattern and practice of sexual harassment" which culminated in

her constructive discharge in September 1994. (Compl. at 9-10.)

The acts of the defendants are alleged to be in violation of the

West Virginia Human Rights Act in that (1) the defendants con-

spired to commit acts for the purpose of harassing her; (2)

failed to provide her with a place to work free from harassment;

(3) failed to thoroughly investigate her complaints of sexual

harassment; (4) failed to respond to her complaints of sexual

harassment; and (5) that DuPont failed to take appropriate

pprop

disciplinary action or other action to prevent the harassment and

instead, "promoted said personnel into other positions.” (Compl.

at 10-11.)

No specific incidents are described in the complaint

and no particular defendants are identified in Count III, al-

though the complaint elsewhere states that plaintiff was sub-

jected to "sexually harassing conduct, as engaged in by Lester

Gore, an Employee Relations Specialist, among others.” (Id. at

5, 4 17.)

Thereafter, in her July 8, 1996, verified statement of

facts relied on to support her claims, (hereinafter, Statement of

Facts),’ plaintiff states that she was subjected to sexually

was submitted in response to the court's order of June 5, 1996,

requiring her to provide a statement of the facts on which she

relies to support the allegations in the complaint and advising

her that her failure to supply the information then known might

result in an order barring the use of facts not then disclosed.

(Order entered June 5, 1996.) Plaintiff's obligation to provide

that information arose frorn defendants’ first set of interroga-

tories, served on November 20, 1995, asking plaintiff to state

with particularity the facts relied on to support her complaint.

(See Mag. Judge Order entered Mar. 22, 1996, at 4.) No response

was made until after a motion to compel was filed and then the

response was only by reference to her deposition testimony. By

order, entered on March 22, 1996, the magistrate judge ruled that

"(plaintiff's reference to her deposition testimony is not a

sufficient or proper response" and ordered her to fully respond

by March 19, 1996, and "set forth in particularity the facts she

possesses that support the allegations in her Complaint.” (Id.

at 4, 6.) On plaintiff's appeal, the court modified the order of

the magistrate judge to provide that plaintiff could have until

June 10, 1996, to provide the statement of facts. (Order entered

June 5, 1996, Docket Entry No. 159 at 3.)

harassing conduct by defendants Richard Knowles and Lester Gore

and by two DuPont employees, Damron Bradshaw and Kerry Crawfor

who are not defendants in this action. In particular, the

Statement of Facts states that plaintiff will present evidence

that:

1. Mrs. Cobb has been physically touched by

Richard Knowles and been subjected to other

conduct by Mr. Knowles clearly suggestive and

sexual in nature.

2. Lester Gore has directly requested Mrs.

Cobb expose her breasts, exchange pictures of

each others genitalia, as well as other simi-

lar acts prohibited by law.

3. Damron Bradshaw has disseminated sex-

ually explicit pictures around the work place

and embarrassed and humiliated Deborah Cobb

with offensive and repugnant requests and

comments that are an outrage to any civilized

person.

4. Mrs. Cobb began experiencing retaliation

and work problems, such as disciplinary

action, upon rejecting the advances of Kerry

Crawford and complaining of the same to her

supervision.

(Statement of Facts at 7.)

[In addition to the allegations contained in her com-

plaint and Statement of Facts, plaintiff testified at deposition

Materials presented on June 11, 1996, were stricken as not

in compliance with the court's order, but the court accepted

supplemental information submitted on June 14, 1996, when it was

presented in slightly modified form, under oath of the plaintiff,

on July 8, 1996. (See Order entered June 26, 1996, at 6-9.)

to fifteen incidents of alleged sexual harassment ranging over a

period of time commencing in early 1990 and ending in September

1993, approximately one year before she terminated her employment

with DuPont on September 15, 1994.

To summarize, plaintiff described four incidents

involving conduct by defendant Knowles during a period commencing

in February 1990 and ending in the spring of 1992. Only one

incident involved a physical touching, that being in 1991 when

Knowles held a "pager" or "beeper" against plaintiff's side.’

An earlier incident purportedly occurred in 1990 at a Valentine's

dance, Plaintiff alleges that, while looking at her, Knowles was

"French kissing" his wife's ear.* Another time, in 1991,

Plaintiff testified about the beeper incident as follows:

Dick Knowles came around to my desk and he said he had

a new pager. He said it would either beep or vibrate

but when he goes to church he puts it on the vibrating

side of it so it wouldn't beep and cause distraction

from the church service. And so then he excused him-

self. And then he came back and he got real close to

me, and he said, "Here, hold my beeper.” An'd he took

his hand and put it on my side, and it started vibrat-

ing. And he said "How does that feel?"

And I just handed back his vibrator, and he left.

That was, I believe, was one time that I thought was

out of line for Doctor Rnowles to do that.

(Deborah Cobb Dep. of Jan. 15, 1996, at 7.) Because Knowles was

“the boss," she did not report the incident to any representative

of DuPont until the taking of her deposition in this action on

January 15, 1996. (Id. at 7-8.)

‘Ata Valentine's dance in 1990, while dancing with her

husband, plaintiff "looked over" and saw Knowles "looking at me

Knowles allegedly made statements about the manner in which

plaintiff was eating a hot dog.’ The final incident plaintiff

while he was French kissing Claire's ear, smiling.” What she

found offensive about the incident was:

Just with him French kissing her ear and

looking at me and smiling, it just kind of

gave me the sense that he was pretty well

sexual driven. I mean to me that was out of

line for a plant manager being up there with

his wife and French kissing the ear. I mean

I don't believe -- I didn't see anyone else

doing that.

(Deborah Cobb Dep. of Jan. 19, 1996, at 4-6.) Afterwards,

everyone in the shift supervisor's office was "talking about Dick

Knowles and Claire French kissing one another's ear.” (Id. at

6.)

‘The hot dog incident, which occurred when plaintiff and her

husband and Knowles and his wife Claire attended an inauguration

held for Damron Bradshaw when he became mayor in Chesapeake, is

described by plaintiff as follows:

And they served hot dogs. And you just put mustard on

the hot dog.

Well, Mr. Knowles and Claire came and sat at our

table. And Claire was beside me, and then my husband

and Doctor--Mr. Rnowles were across the table. Every

time I would go to open my mouth to eat the hot dog Mr.

Knowles would stand up and holler, yell at people and

say, "Look, she's putting it in her mouth." He did

that two or three different occasions.

And finally I looked at Claire, and I said, "If

you don't hit him and make him shut up, I'l] have my

husband do it." And she told Dick that he was embar-

rassing me by doing that. And he did quit doing that.

So then he would pass by the office and he would

say-- Then during that time, he said I had mustard on

my chin, and he kept doing like that (demonstrating)

I didn't see that I had any mustard on my mouth. So

then after that, he would come to the office and just

point at his chin with his finger to say that I had

something on my mouth.

So that make me feel uncomfortable or just embar-

rassed me because he was just wanting everyone to watch

describes in her Statement of Facts as being a fact she relies on-

to demonstrate sexual harassment by Knowles occurred in the

spring of 1992 when plaintiff alleges that rumors were circulat-

ing at the plant that she and Knowles were having a sexual

relationship.®

me as | opened my mouth up to eat my hot dog.

Q Why did that embarrass you?

A, Because he stood up and wanted everyone to look

at me. He'd say, "Look, she’s putting it in her

mouth.”

Q What did that mean to you?

A It could have meant something sexual like how

you open your mouth to put in a hot dog. By why he

would want everyone to look at me while | was doing

that I don't know. But he knew he was embarrassing me.

My face was turning red.

(Deborah Cobb Dep. of Jan. 15, 1996, at 145-46.) She did not

complain about the incident to anyone because Knowles was the

plant manager and because "perhaps he was kidding. [ mean you

always want to give someone the benefit of the doubt. And

his wife was sitting right there, and my husband was sitting

there.” (Id. at 146-47.) After that, "[he] just kept kidding me

about having something on my chin every time he would see me."

(Id. at 147.)

*Plaintiff testified at deposition:

Spring of 1992, I would say spring of 1992, there

was a rumor going around the plant that Dick Knowles

and myself were having a sexual relationship. That

rumor really bothered me. And I happened to see Lester

outside my door of my office, and I went out there and

told him that there was a rumor going around about Dick

and myself and I didn’t appreciate the rumor. And he

asked me what the rumor was. And I told him that it

was a rumor that he and I--Dick Knowles and myself were

having a relationship. And he told me not to worry

about it, there were a lot of people that were jealous

of me and Dick Knowles’ relationship as being on a

Three incidents described by plaintiff in deposition

involve Kerry Crawford and Damron Bradshaw, who are not defen-

dants. Plaintiff alleged that Crawford called her at home in

1991 and made inappropriate comments of a sexual hature to her.’

friendly bz iSIS, ;, being friends, and Dick liked mea lot

(Deb orah C -obb Dep. of Jan. 15, 1996, at 48-49.)

“According to plaintiff, the call from Crawford was on the

Monday of 1 b anksgiving week while her husband was out of town on

a hunting trip. (Deborah Cobb Dep. of Jan. 15, 1996, at 5.)

Crawford called at approximately 9:30 p.m. (Id. ) His voice was

slurred and he said he had been drinking. (Id.) Plaintiff

further testified:

And he asked me was | aware of what effect i had on

men.

And I said, "What do you mean?" Do you want me to

be explicit about the language--

Q Yes

A --that he used? And I said, "What do you

mean?"

He said, well, that I did have a lot of effect on

men and that even Dick Knowles would like to f me.

And I told him he was out of line, with him being

drinking, he should not be talking that way with him

being my supervisor.

He said that if Little Ronnie wasn't home, who is

my son, that he would invite me to come over and have a

drink with him. Well, I hung up on him.

(Id. at 5-6.)

The next morning, Crawford called plaintiff at work and

apologized for the phone call, saying "when he drinks, he gets

rather wild and he was going through a divorce and that would |

accept his apology. And I said, well, it did put himself ina

spot, he shouldn't be calling me like that and saying those

things to me.” (Id. at 6.) She reported the incident to defen-

dant Gore, who was the employee relations specialist. Gore told

her that if she made an official complaint, Crawford would be

fired. She did not want that to happen, but Gore said he would

talk to Crawford. (Id.) Plaintiff also told defendant Price

Plaintiff complained about the call to defendant Gore, but did

not want Crawford terminated. (Deborah Cobb Dep. of Jan. 15,

1996, at 6.) No other allegations are made with respect to

Crawford. There are two incidents allegedly involving Bradshaw.

According to plaintiff, the first incident occurred in 1991 when

Bradshaw asked her for some underwear so he could smell it.®

The second incident, which plaintiff says occurred in May 1993,

involved an alleged request from Bradshaw for a sample of her

. . 9

pubic hair.

about the phone call from Crawford, but apparently not until

approximately September of 1992. (Deborah Cobb Dep. of Mar. 22,

1996, at 105.)

‘Defendants assert that plaintiff testified about the

underwear incident with Bradshaw for the first time in her

December 31, 1996, deposition when she was asked, in reference to

the intentional infliction of emotional distress portion of her

Statement of Facts, for the details about the "request to remove

her panties,” see, infra, page 34, quoting paragraph | of inten-

tional infliction of emotional distress portion of Statement of

Facts. The reference to the request to "remove her panties’! set

forth in the Statement of Facts is clearly attributable to

Bradshaw, although portions of the deposition which might provide

more information about the incident are missing from the tran-

script of the December 31, 1996, deposition provided to the

court. (DuPont Mot. for Summ. J., Ex. 21.)

*The May 1993 incident occurred while plaintiff was working

overtime. (Deborah Cobb Dep. of Jan. 15, 1996, at 8, 10.)

According to plaintiff, Damron Bradshaw "came to my desk and told

me he wanted to see me back in the storeroom office." (Id. at

8.) Plaintiff described what happened next as follows:

And so when | went back there, he commented

On a white jumpsuit that I had on and how

nice I looked. And I said, "Well, thank

you.” And he handed me a pair of scissors

and he wanted to know i; he could have a

10b

The balance of the incidents described by plaintiff as

forming the basis of her sexual harassment claim are directed to

defendant Gore during a time period commencing in the spring of

1992 and ending in September 1993. The first incident was in the

spring of 1992, when as noted above plaintiff told Gore there was

a rumor going around the plant that she and defendant Knowles

were having a relationship. (See Deborah Cobb Dep. of Jan. 15,

1996, at 48-49 (quoted, supra, pages 7-8, note 6).) Gore told

her not to worry about it and then told her about another rumored

affair in the office, concluding with the comment that "a stiff

dick has no conscience." (Id. at 48.) Although upset by the

comment, plaintiff did not feel threatened by it.

Plaintiff also alleges that between March and June of

1992, "[djuring the investigation of my essay writing," Gore "on

maybe five different occasions he would want to hug and kiss me.

On one occasion, if I didn't turn my cheek, he would have kissed

me on my lips." (Id. at 15-17.) The first couple of times he

sample of my public [sic] hair to see if it

matched my blonde hair.

(Id.) When asked what she did, plaintiff answered: "I looked at

him. I was really shocked that he would ask such a thing. I was

embarrassed. I left. I didn't even stay and work overtime. It

really scared me." (Id. at 8-9.) She did not report the

incident to her supervisor, defendant Miceli, or anyone in super-

vision, but she did tell Pam Moorman, a good friend and co-worker

about it. (Id.) She didn't tell anyone else because of all the

other problems she was having at that time. (Id.) After that

incident, plaintiff stayed away from Bradshaw and "avoided him as

much as possible." (Id. at 12.)

WEN wranhbh sie Woy %

Bnei. SASS Sheliiridtakaee ek

11lb

hugged her, she "thought it was more like an embrace of I'm-

going-to-help-you, more like a security type thing, like that

he's going to help me and not more of a personal thing.” (Id. at

21.) However, "the last I'd say three times I could tell it was

getting more personal because he wanted to kiss me. And IJ did

tell him that he should not be doing that, and I did pull away."

(Id.) Gore responded "that he hugged and kissed all the women in

the plant that he had contact with." (Id.) Although plaintiff

says she did not find those incidents threatening, (Id. at 24),

plaintiff also says that the "third" time Gore hugged her, it was

different. (Jd. at 25.) "[T]his time, he kind of hugged me a

little closer to his body, and he would kiss me on my cheek. And

I would pull away. And he could tell I was being uncomfortable

with it. And he said, 'Well, Debbie, you know, I'm just trying

to help you. Go ahead and sit down.’ And I would sit down.”

(Ld. at 24.)

Plaintiff alleges in addition that in July 1992, Gore

visited her at home. It was just after she had been subjected to

"corrective action," apparently with respect to a dispute she was

having with another female employee, and was required to write an

essay. (Deborah Cobb Dep. of Jan. 15, 1996, at 13, 16-17.)

Earlier in the day, there was a meeting about the situation,

which took place in Knowles’ office and was attended by plain-

tiff, Knowles, Gore and others. (Id.) After the meeting, Gore

12b

called her in her office and said he wanted to talk with her

about the meeting but not at the plant and not on the phone.

(Id.) Gore suggested that they go to Knowles’ apartment, to

which he had a key, but plaintiff said she would not be comfort-

able doing that. (Id. at 13-14.) She suggested instead that he

come to her house, "that my husband would be there for a while,

but my son would be home and I would feel comfortable, if he

wanted to talk to me about something so important, he could come

to my house.” (Id. at 14.)

Plaintiff's husband was at home at the beginning of

Gore's visit, but then left, leaving Gore, plaintiff and her son.

Gore was explaining to her why she was put on corrective action

and was asking that she put everything behind her and forget

about it. (Id.) At some point, plaintiff left the house to

assist her son inflate a flat tire on his bicycle. (Id. at 15.)

The following transpired:

And before I left, [he] asked me if I had, if

we had a rest room. And I said, "Well,

yeah. " And he wanted to know how many bath-

rooms we had. And I said, "We have three,

one downstairs and two upstairs." He said,

well, he had to use the rest room. And |

said, "Well, you can go to the one off the

hallway.”

So when I went out and pumped up my

son's bicycle tire, | was gone maybe ten

minutes. He came out of the master bedroom

with a grin on his face. And I asked him

what was he doing. And he said, well, he had

13b

to use the rest room. But he used the rest

room off the master bedroom.

So when I was walking down the hallway,

he looked at me and asked me would I raise up

my T-shirt and show him my tits. And I asked

him to leave. And he did leave at that time.

(Id. at 15.) Plaintiff told her husband about the incident, and

then "had the least contact with [Gore] as she could." (Id. at

The next and final incident involving Gore is described

by plaintiff as happening in September 1993 in the main office of

the plant. (Deborah Cobb Dep. of Jan. 15, 1996, at 19.) Plain-

tiff testified at deposition that defendant Gore told her that he

was having marital problems, asked whether she had been to the

beach and said that "he would like to see some pictures of me in

a bathing suit or if I had any pictures of me in a negligee. And

I couldn't believe he was asking me those questions. And he said

that he would show me a picture of his anatomy but he was so big

and uncircumcised that it would scare me." (Id. at 20.) She

responded to the incident by crying, and although she mentioned

it to a co-worker friend, Suzanne Lackey, she did not report it

to anyone in supervision. (Id.)

As is seen from the above summary of the facts relied

on by plaintiff as forming the basis of her sexual harassment

claim, none of the incidents make reference to defendants Price,

14b

Rendinell or Miceli. Nor does plaintiff assert that she com-

plained to Rendinell or Miceli about sexually harassing conduct

by others, although it is conceded that, long after she had fully

developed the matter with Gore about the Thanksgiving 1991

telephone call from Crawford, she told Price about it in

September 1992. Thus, in their separate motions for summary

judgment, defendants Price, Rendinell and Miceli assert that

plaintiff has presented no evidence on which to base a sexual

harassment claim against them and that they are entitled to

summary judgment in their favor on that claim. In response,

plaintiff identifies no incidents of sexual harassment undertaken

by defendants Price, Rendinell or Miceli. Nor does she assert

any basis for holding them liable for sexual harassment in which

they did not personally participate.'° The court accordingly

“Counsel for plaintiff argues only that actions taken by

Price, Rendinell and Miceli enabled Knowles and Gore to continue

their retaliation against her. For example, it is stated that by

the winter of 1992, Miceli had limited contact with plaintiff and

withheld a monetary award she received, and that, in addition,

when she complained to him about problems with a co-worker, she

was subjected to corrective action. Rendinell, it is argued by

counsel, advised plaintiff that he did not want to know anything

about her problems with Knowles and was instrumental in failing

to lighten her work load. Price, according to counsel's argu-

ment, was repeatedly advised of sexual misconduct at the plant,

but did nothing.

The arguments of counsel, even if supported by evidence, do

not form a basis for a claim of sexual harassment byPrice,

Rendinell or Miceli. Nor are they sufficient to support a claim

that these defendants are personally liable to plaintiff because

they "aided or abetted an employer engaging in unlawful discrimi-

natory practices." See Holstein v. Norandex, Inc., 461 S.E.2d

473 (W. Va. 1995)

ae wi Ae Fae et! - ur

oS eR Lp ba iP TR ARB i a

Ta he

Pg Se

Ppa

ete aint rSaa aire

RANI ABER S Cons ao

15b

finds that Price, Rencinell and Miceli are entitled to summary

judgment in their favor with respect to plaintiff's Count III

sexual harassment claim.

Turning to the motions filed by DuPont, Knowles and

Gore with respect to plaintiffs Count III claim for sexual

harassment, it is seen that plaintiff commenced this suit on

July 28, 1995. In their separate motions, defendants DuPont.and

Knowles contend that insofar as plaintiff's sexual harassment

claim is based on alleged incidents of sexual harassment which

occurred more than two years before the suit was filed, the claim

is barred by the two-year statute of limitations. As to the one

incident which allegedly occurred within the limitations period,

it does not involve Knowles and it is asserted by DuPont that it

does not constitute severe and pervasive conduct. Furthermore,

even considering.all of plaintiff's sexual harassment allegations

in the light most favorable to her, defendants DuPont and Knowles

maintain that they do not rise to the level of severity and

pervasiveness necessary to demonstrate_a hostile work environ-

ment. In his separate motion, Gore similarly contends that he is

entitled to summary judgment in his favor on plaintiff's sexual

harassment claim because: plaintiff has failed to demonstrate that

any conduct attributable to him was subjectively severe enough to

alter the conditions of plaintiff's employment and create an

intolerable work environment.

16b

In response to the motions, plaintiff states that her

sexual harassment claim is timely under the continuing violation

theory. Counsel also states that DuPont failed to act "as

required by its own policies,” thus enabling tne individual

defendants to continue "to injure plaintiff and adversely effect

her work conditions"; that it is her "firm belief and personal

knowledge that all defendants were acting in concert ip what she

termed was a ‘conspiracy’ to retaliate against her, primarily for

Richard Knowles, and drive her from her job"; and that "plaintuff

has consistently held that the attitude and behavior of her

supervision, both sexual and nonsexual, was the direct result of

Richard Knowles’ attitude and behavior." (P1l.’s Am. Resp. DuPont

Mot. Summ. J. at 19-20.) Plaintiff states, additionally, that

she was prohibited "from proceeding with discovery designed to

lead to relevant and probative evidence" of her "overall sex-

ually-charged and severely hostile" work environment. (Id.)

The court first examines that aspect of the pending

motions relating to plaintiff's sexual harassment claim that is

based on the contention that the applicable statute of limita-

tions bars the claim insofar as it is based on incidents occur-

ring outside the limitations period, that being incidents occur-

ring prior to July 28, 1993.

The West Virginia Supreme Court of Appeals has held

that in cases filed in the circuit courts of the State of West

17b

Virginia "involving allegations of discharge from employment

related to claims of sexual harassment or discrimination, a two-

year statute of limitations for personal injuries begins to run

on the date of the last offensive contact, or threat of offensive

contact, which precipitated the termination of employment."

Harmon v. Higgins, 426 S.E.2d 344, 347 (W. Va. 1992). Offensive

contacts occurring outside the limitations period are actionable

only if plaintiff can demonstrate that they are part of a "con-

tinuous violation" of discrimination laws. Hurst v. St. Mary's

Hosp. of Huntington, 867 F. Supp. 435, 437 (S.D.W.Va. 1994); see

also Marshall v. Manville Sales Corp., 6 F.3d 229 (4th Cir. 1993)

(finding that West Virginia would adopt the continuing violation

doctrine when considering whether a discrimination action was

timely brought under the West Virginia Human Rights Act). That

is, the continuing violation theory, if applicable, operates in a

manner that allows a plaintiff to recover for incidents even

though the action was not filed until after expiration of the

statute of limitations on those incidents. Garvev v. Dickinson

College, 775 F. Supp. 788 (M.D. Pa. 1941)

The continuing violation theory has been applied in

unlawful employment discrimination actions involving compensation

disparity based on gender and age such that there is a "present"

violation for as long as the disparity exists. Marshall, 6 F.3d

at 231 (citing West Virginia Inst. of Tech. v. West Virginia

18b

Human Rights Comm'n, 383 S.E.2d 490 (1989). "[T]hat is, each

paycheck at the discriminatory rate is a separate link in a chain

ef violations." Id. (quoting West Virginia Inst. of Tech., 383

S.E.2d at 499). Stated more generally, the violation is continu-

ing when it occurs "in a series of separate but related acts”

throughout the course of employment._Jenkins v. Home Ins. Co.,

635 F.2d 310, 312 (4th Cir. 1980). Consequently, “a disparate-

treatment employment discrimination complaint based upon

allegedly unlawful compensation disparity is timely brought if it

is filed within the statutory period after such compensation

Virginia Inst. of Tech., 383 S.E.2d at 499); see also, Jenkins,

635 F.2d at 312. On the other hand, discrimination based on a

refusal to hire "is not a continuous violation. It is a distinct

act, and the statute of limitations runs from the date of refus-

al." Marshall, 6 F.3d at 231.

Although not developed in that context, the continuing

violation theory has been applied in employment discrimination

cases based on alleged racial or sexual harassment resulting in a

hostile environment. Applicability of the continuous violation

theory in the context of a sexual harassment case was succinctly

» summarized as follows in Garvev v. Dickinson College,. 775

“F. Supp. 788 (M.D. Pa. 1991):

19b

{The continuous violation] theory allows a

plaintiff to pursue a Title VII'' claim for

discriminatory conduct which began outside

the limitations period if she can demonstrate

that the conduct aileged is part of an on-

going practice or pattern of discrimination

effected by the employer. To rely on this

theory, the plaintiff must prove that a

violation occurred within the limitations

period and that such violation is "reasonably

related" to prior discriminatory acts

alleged. Isolated or sporadic incidents of

discrimination, even if intentional, are not

sufficient to establish the recquisite

pattern. She must also show that the contin-

uing harassment was sustained and consisted

of more than incidents of a trivial nature.

Nor is it sufficient to show only that [she]

suffered a loss within the limitations period

as a result.of prior discriminatory acts.

Id, at 801 (citations omitted) (quoted with approval and applied

in Hurst, 867 F. Supp. at 438); see also Doe v. R.R. Donnelley &

Sons Co., 42 F.3d 439, 446 (7th Cir. 199a,) (to establish a

continuing violation in a sexual harassment hostile environment

''Although the decision in Garvey addresses the continuous

violation theory in the context of a sexual harassment claim

under Title VII, 42 U.S.C. §2000e-2(a) (i), the West Virginia

--Supreme Court of Appeals has held that the discriminatory prac-

tices prohibited by § 5-11-9 of the West Virginia Human Rights

Act are identical to those prohibited by Title VII, Westmoreland

Coal v. West Virginia Human Rights Comm'n, 382 S.E.2d 562, 566

(W. Va. 1989), and that § 5-1 1-9 is to be construed "to coincide

with the prevailing federal application of Title VII unless there

are variations in the statutory language that call for divergent

applications or there are some other compelling reasons justify-

ing a different result," Hanlon v. Chambers, 464 S.E.2d 741, 754

(W. Va. 1995) The court thus concludes that the federal theory

of continuous violation as outlined in Garvey is pay applied

to the facts of this case. See Marshall, 6 F.3d 229 (West

Virginia would adopt the continuing violation doctrine when

determining whether a discrimination action under the West

Virginia Human Rights Act was timely brought).

20b

case, "plaintiff must demonstrate that the defendant's acts were

‘related closely enough to constitute a continuing violation’ and

not 'merely discrete, isolated, and completed acts which must be

regarded as individual violations") (quoting Berry v. Board of

Supervisors of L.S.U., 715 F.2d 971, 981 (Sth Cir. 1983)

Several courts have adopted the approach set forth by

the Fifth Circuit Court of Appeals in Berry, 715 F.2d. at 981, in

"determining whether prior incidents of discrimination constitute

a continuing course of discrimination or whether they are dis-

crete unrelated acts." Bailey v. West, 941 F. Supp. 1023, 1025

(D. Kan. 1996). In Berry, the Fifth Circuit Court of Appeals

identifies three "relevant," but not "exhaustive," factors to be

considered in determining whether the alleged discriminatory acts

are related closely enough to constitute a continuing violation.

Berrv, 715 F.2d at 981. The first factor is subject matter; that

is, whether "the alleged acts involve the same type of discrimi-

nation, tending to connect them in a continuing violation.” Id.

The second factor is frequency, requiring an examination of

whether the alleged acts are recurring or are more in the nature

of isolated incidents. Id. The third, and perhaps most impor-

tant factor, "is degree of permanence. Does the act have the

degree of permanence which should trigger an employee's awareness

of and duty to assert his or her rights, or which should indicate 4

to the employee that the continued existence of the adverse

21b

consequences of the act is to be expected without being dependent

on a continuing intent to discriminate?" Id.

Although the test enunciated in Berry was not developed

in the context of a hostile work environment claim, it has been

applied in cases of that nature. Indeed, it is noted that

"Ehjostile work environment and continuing violation claims have

similar requirements of frequency or pervasiveness. There is a

natural affinity between the two theories." West v. Philadelphia

Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995). The affinity results

from the expectation that in order to demonstrate a hostile

environment resulting from sexual or racial harassment which is

pervasive and continues over time, the employee will need to show

the continuing nature of the violations. id. (citing Jenson v

Eveleth Taconite Co., 824 F. Supp. 847, 877 (D. Minn. 1993))

That is, "isolated or single incidents of harassment are

insufficient to constitute a hostile environment. Accordingly,

claims based on hostile environment sexual [or racial] harassment

often straddle both sides of an artificial statutory cut-off

date." Jenson, 824 F. Supp. at 877, quoted in West, 45 F.3d at

755. Nevertheless, the Third Circuit Court of Appeals

"decline[d] to adopt a per se rule that a properly alleged

hostile work environment claim also constitutes a continuing

violation.” West, 45 F.3d at 755.

22b

In looking at subject matter, the first factor identi-

fied in Berry, the focus is on whether the discriminatory conduct

was of the same type; i.e., whether all of the alleged violations

involved discriminatory conduct in the form of sexual harassment.

See West, 45 F.3d at 755 (all of the alleged acts involved the

same subject matter where they all involved forms of racial

harassment); Waltman v. International Paper Co., 875 F.2d 468,

475 (5th Cir. 1989) (all of the alleged acts involved the same

subject matter where each incident involved sexual harassment)

Frequency, the second factor, takes into consideration the

consistency of the violations over time, as well as their dura-

tion. West, 45°F.3d at 755-56. "The fact that not all the

incidents of harassment involved the same people does not show a

focus is on “recurrent acts of discrimination, not recurrent

actors." Id. Nevertheless, the fact that alleged incidents

involved perpetrators of differing identity may properly be

considered in determining whether separate violations have a

sufficiently close nexus as to permit She characterization of the

complained-of conduct as continuing in nature, see R.R.

Donnellev, 42 F.3d at 446; see also Koe!sch v. Beltone Elecs

Corp., 46 F.3d 705, 707 (7th Cir. 1995) (there must be a suffi-

cient nexus between incidents perpetrated by differing indi-

viduals in order for them to be related closely enough to consti-

tute a continuing violation). The fact that there are gaps

Pee en ee ee

23b

between specific incidents of harassment also does not neces-

sarily demonstrate a lack of continuity. Waltman, 875 F.2d at

475-76. That is so because "[i]n a hostile environment, an

individual feels constantly threatened even in the absence of

constant harassment." Waltman, 875 F.2d at 476. Consequently,

in evaluating the frequency, the court should review the pattern

and frequency of the harassment and determine whether the evi-

dence is such that it "could support a finding that the acts of

harassment were sufficiently recurrent to create a continuously

hostile environment." Waltman, 875 F.2d at 476.

The third factor, permanency, examines whether there

was a discrete event, such as a lost job or a denied promotion,”

which triggered the duty of the plaintiff to assert the rights

arising from the deprivation. West, 45 F.3d at 756. In that

regard, it is noted that permanency is more readily apparent in

cases involving the loss of a promotion than in cases alleging

harassment. Waltman, 875 F.2d at 476. However, in looking at

the permanency factor, the court should be mindful that "[t]he

continuing violation doctrine is premised on the equitable notion

that the statute of limitations should not begin to run until a

reasonable person would be aware that his or her rights have been

violated." Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410,

1415 n.6 (10th Cir. 1993). Indeed, it is noted that the perma-

nency prong of the Berry test serves to restrict the continuing

24b

violation theory to "those situations underscored by its equi-

table foundation. That is, if an event or series of events

should have alerted a reasonable person to act to assert his or

her rights at the time of the violation, the victim cannot later

rely on the continuing violation doctrine to overcome the statu-

tory" limitations period. Martin, 3 F.3d at 1415 n.6 (citing

1991)); see also, R.R. Donnelley, 42 F.3d at 446 (purpose of

continuing violation theory is "to permit the inclusion of acts

whose character as discriminatory acts was not apparent at the

time they occurred")

Once sufficient evidence is proffered to demonstrate

that a hostile environment is on-going, evidence of incidents

outside the limitations period is admissible if "related to the

overall hostile environment." West, 45 F.3d at 756. However,

where, on review of all three of the Berry factors, sufficient

facts are alleged to demonstrate a genuine issue of material fact

regarding the existence of a continuing violation, summary

judgment on that issue 1s inappropriate. Waltman, 875 F.2d at

476; see also, Martin, 3 F.3d at 1415-16 (evidence pertinent to

Berrv factors found sufficient to survive dismissal at summary

judgment stage on statute of limitations issue, but issue could

be re-evaluated by court in light of evidence as it develops at

trial)

Su ici Beg eet

esis :

tal edd Lao eet Se ae

Sib bina oe i as a ae

Se a

neha te a DAL TO ald PRLS RENAE EIS Se RINE EL Halt

Pet ade GL aber:

Pipes A te

25b

Inasmuch as application of the continuous violation

theory requires, in the first instance, proof that a violation

occurred within the limitations period, the court looks to the

one incident described by plaintiff as occurring after July 28,

1993, that being the September 1993 picture exchange request by

Gore. In evaluating whether that incident constitutes discrimi-

natory conduct in the form of sexual harassment based on a

hostile work environment," the court is guided by the elements

of that claim and by the applicable Legislative Rule of the West*

Virginia Human Rights Commission. To establish a claim of sexual

harassment based on a hostile work environment, plaintiff must

prove (1) that the conduct was unwelcome, (2) that it was based

on plaintiff's sex, (3) that it was "sufficiently severe or

pervasive to alter the ... [plaintiff's] conditions of

employment and create an abusive work environment,” and (4) that

it was imputable on some factual basis to the employer. Hanlon

464 S.E.2d at 748-49 (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993) (citation omitted)) (internal quotes omitted)

The conditions or privileges of employment may be abusive when

the workplace is infected "by sexual barbs or innuendos, offen-

sive touching, or dirty tricks aimed at the employee because of

her gender." Hanlon, 464 S.E.2d at 749. The hostile environment

'2Plaintiff does not make a claim of quid pro quo sexual

harassment, which occurs when an employer or its agent conditions

employment or benefits on consent to participation in sex. See

Hanlon, 464 S.E.2d at 749.

26b

need not be created by a superior, but may be created by co-

workers and subordinates as well. Id. at 750.

It is held that a determination of whether conduct is

deemed severe or pervasive enough to alter the conditions of

employment and create an abusive work environment requires an

evaluation of the totality of the circumstances, including "the

frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance." Harris, 510 U:S. at 23. In other

words, "not all conduct that has sexual overtones can be charac-

terized as the sort of sexual harassment that is forbidden by

[Title VII]."_R.R. Donnelley, 42 F.3d at 443. Rather, the

worker is afforded protection only "against conduct a reasonable

person might find hostile or abusive.” Id. at 444. In addition,

"if the victim does not subjectively regard the environment as

abusive, the conduct has not actually altered the victim's

employment,” and there is no violation, Id. (citing Harms, 510

U.S. at 23)

Consistent with the Title VII standards expressed by

the United States Supreme Court in Harris, 510 US. at 43.

regulations of the West Virginia Human Rights Commission direct

that the totality of the circumstances, such as "the nature of

the sexual advances and the context in which the alleged

i ae SOARS Bae a ea

San

Bie

27b

incidents occurred" should be examined, with the determination of

legality of a particular action to be made on a case-by-case

basis. 77 W. Va. C.S.R. 4, § 2.3. More particularly, in deter-

mining “whether alleged sexual harassment in a particular case is

sufficiently severe or pervasive,” the Commission considers (1)

whether unwelcome physical touching was involved; (2) whether

there was verbal abuse of an offensive or threatening nature, (3)

whether unwelcome and consistent sexual innuendo or physical

contact was involved; and (4) the frequency of the unwelcome and.

offensive encounters. Id. at § 2.4.

_ Using the enumerated criteria to evaluate the picture

exchange incident plaintiff attributes to Gore in September 1993,

within the limitations period, it must be conceded that no

unwelcome physical touching was involved. In addition, plaintiff

did not describe the incident as being threatening in nature.

Instead, the incident, as described by plaintiff, consists solely

of an unwelcome verbal statement containing sexual innuendo,

conduct which was no more than moderately offensive and which

must be deemed less severe than an unwelcome physical touching.

Plaintiff's failure to complain of the incident to anyone other

than a friend and her continued employment for another year after

the incident are also indicative of the lack of severity of the

incident. The court thus concludes that the incident that

allegedly occurred in September 1993 was nct severe.

28b

Similarly, the court is unable to find that plaintuff

was subjected to pervasive sexual harassment within the limita-

tions period, there being only the September 1993 picture ex-

change incident with Gore occurring W ithin the two-year period

just prior to commencement of this suit and that incident having

occurred a full year before plaintull terminated her employment.

+ nevertheless treats the September 1993 inc ident a

violation occurring within the limitations period for purposes of

determining whether the continuing ¥ iolation theory is available-

to plaintiff. See Martin, 3 F.3d at 1415 n.5 (incidents occul

ring within the limitations period need not, standing alone,

comprise a claim for hostile work environment in order to warrant

}

examination of th ne conunulng viol tion de yCtrine SO long as there

's one incident occurring within the statutory perio xd)

Looking at the first factor identified by the Fifth

Circuit Court of Appeals in Berry, it must be conceded that the

incidents of alleged d liscrimination occurring outs ide the limita-

tions period involve the same subject matter as the September

1993 picture exchange incident, that is, all of the incidents

described by plaintiff allege sexuc 1| harassment. As to fre-

quency, the second factor identified in Berry, it is seen that

plaintiff alleges one ‘ncident of harassment in 1990, (Knowles at

the Valentine dance); and four incidents of harassment in 199]

(the Knowles beeper incic ient, the Knowles hot dog incident, the

eas

‘a

29b

Bradshaw underwear request, and the Crawford phone call). In

1992, plaintiff complained to Gore about the rumors of her

relationship with Knowles, which prompted the Gore "conscience

comment. In the spring of that same year, she was subjected to

the allegedly unwelcome hugs and kisses of Gore and, in July, the

Gore T-shirt incident at her home occurred. From July 1992 until

May 1993. there were no incidents. In May 1993, the Bradshaw

~ ! | } é . 7

scissors incident allegedly took place. Then in September 1995,

t riurresn

st OCCUTTFeG

\ }

the Gore picture exchange reque

Inasmuch as there were only two alleged incidents of

sexual harassment during the fourteen-month period between July

1992 and September 1993, and none during the year to follow, it

cannot be said that the incidents were occurring with frequency

at that time. However, it is seen that beginning sometime in

late 1991 and continuing through the July 1992 T-shirt incident

at plaintiff's home, several incidents of alleged harassment took

‘

place. The frequency of the incidents which culminated in the

July 1992 T-shirt occurrence suggests that some,-:.1f not all, of

the incidents up to that point may be related, even though they

were not all committed by the same individual.

The court concludes, in any event, that consideration

of the third Berry factor, permanency, precludes the inclusion of

the September 1993 picture exchange incident involving Gore with

the earlier incidents so as to constitute a continuing violation.

30b

Plaintiff testified that "when I saw that Lester was starting to

do this on a personal basis, that's when I called the Wilmington

hotline for help." (Deborah Cobb Dep. of Jan. 15, 1996, at 16.)

Plaintiff told "Cheryl Jennings from Wilmington that Lester on

some occasions had gotten out of line with me.” (Id.) She also

says that she told Jennings about the T-shirt incident at her

house and "that he did want to put his arm around me and hug me

and try to kiss me.” (Id. at 18-19.)

Plaintiff's own testimony thus demonstrates an acute

awareness followin: the July 1992 T-shirt incident that she had

a claim based on Gore's series of acts of sexual harassment

culminating in that incident at her home, together with any of

the earlier incidents involving other DuPont employees. She

reported the Gore matter to Jenning. and no further harassment is

cited until the May 1993 scissors incident with Bradshaw, which

similarly did not prompt any action by plaintiff. Indeed, even

when plaintiff ultimately filed this lawsuit, she did not name

Bradshaw as a defendant. Thereafter, there was the single

incident in September 1993 when Gore allegedly made the request

for an exchange of pictures, which was followed by another year

of employment without any further incidents of harassment.

Inasmuch as the undisputed evidence shows that plaintiff

complained to Jennings about acts of harassment culminating

in the 1992 T-shirt incident when Gore was at her home, no

31b

reasonable jury could find that the incident failed to reasonably

alert her to the need to assert rights based on that incident,

and those that preceded it, within the two-year period next

following. Similarly, when the May 1993 scissors incident with

Bradshaw occurred, plaintiff knew that harassment had occurred,

albeit as an isolated incident, and failed to take action within

the limitations period.

The court thus concludes that plaintiff has failed to

demonstrate that she is entitled to invoke the continuing viola-:

tion theory in order to bring within the umbrella of her sexual

harassment hostile environment claim incidents which allegedly

occurred prior to July 28, 1993. See Koelsch, 46 F.3d at 706-08.

Moreover, the one incident which occurred within the limitations

period cannot support a finding of sufficiently severe and

pervasive sexual harassment so as to create a hostile or abusive

work environment.

Defendants are entitled to summary judgment in their

favor with respect to plaintiff's Count III sexual harassment

claim.

Inasmuch as plaintiff has failed to establish her

hostile work environment sexual harassment claim, her claim that

a hostile work environment culminated in her constructive dis-

charge in September 1994 must also fail. See Schweitzer-Reschke

32b

v. Avnet, Inc., 874 F. Supp. 1187, 1195 (D. Kan. 1995) (plaintiff

cannot recover on her claim of constructive discharge resulting

fom hostile environment claim when she did not establish hostile

environment). Furthermore, it is seen that plaintiff continued

to work for a year after the last incident of alleged harassment

and that she then terminated her employment in order to particl-

pate in an early retirement program offered by DuPont, (DuPont

Mot. Summ. J., Ex. 2). In addition, two w eeks after leaving

employment, she applied for "total and permanent disability

benefits" because it "has become very apparent to me since my

leaving that | am not physically able to engage in any employment

due to my present physical condition and greatly impaired

health.” (DuPont Mot. Summ. J., Ex. 10.) Given the length of

time between the last alleged act of sexual harassment and

plaintiff's decision to terminate her employment, no reasonable

jury could conclude that she left her employment within a reason-

able time after last being subjected to harassment, a necessary

element of her constructive discharge claim. See Smith v. Bath

Iron Works Corp., 943 F.2d 164, 167 (Ist Cir. 199~1) (no construe-

tive discharge when plaintiff did not leave employment until six

months after last act of harassment); Jett_v. Dallas Indep.

School Dist., 798 F.2d 748, 755-56 (Sth Cir. 1986) (no construc-

tive discharge when approximately five months elapsed between

last act of discrimination and termination of employment),

Stafford v State of Missouri, 835 F. Supp. 1136, (W.D. Mo. 1993)

bait eee eae

hashish Cla

~~”

(citing Smith, 943 F.2d at 167) (no constructive discharge when

over four months elapsed between last incident of harassment and

plaintiff's resignation and harassment prior to that time was

only sporadic); Hogue v. MOS Inspection, Inc., 875 F. Supp. 714,

723-24 (D. Colo 1995) (no constructive discharge where Plaintiff

remained on the job for five months after last discriminatory

act). Furthermore, the necessity of demonstrating that het

resignation was the result of a hostile work environment 1s

indermined by the added showing that she left only when offered

the benefit of an early retirement program and almost immediately

thereafter claimed an inability to work. See Schw eitzer-Reschke

874 F. Supp. at 1196 (plaintiff must be able to demonstrate that

resignation from employment "was the result of illegal discrim!-

natory conduct,” not some other factor)

Il.

Count V of the complaint, which is based on a claim of

‘ntentional infliction of emotional distress, identifies defen-

dants Knowles, Gore, Elbert Price, Scott Rendinell and Lou r.

Miceli as defendants who "deliberately and unlawfully set out to

harass, humiliate and degrade the plaintiff to compel her to

leave her employment and force her from her job." (Compl. at 16-

17.) No specific factual allegations are contained in the

Ce es

PLP SAR RT AN RE aA, es

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DEBORAH H. COBB,

Plaintiff

Vv. Civil Action No. 2:95-0743

E. 1. DU PONT DE NEMOURS AND

COMPANY, a Delaware corporation;

RICHARD KNOWLES; ELBERT PRICE;

LESTER GORE; SCOTT RENDINELL;

LOU P. MICELI; PAMELA POKRZY WA;

REUBEN W. HOLLAND, M.D.; and

ROBERT L, LEADBETTER, M.D.,

Defendants

MEMORANDUM ORDER

This matter is before the court with respect to plain-

tiffs Count V ERISA claim, in which it is alleged that defendant

E. |. duPont de Nemours and Company committed violations of

sections 502(a) (1) (B) and 502(c) of the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C,A. §§ 1132(a) (1) (B)

& 1132 (c).'

'The complaint inadvertently contains two claims labeled

“COUNT V." The first Count V is based on the tort of intentional

infliction of emotional harm while the second Count V is charac-

terized as an "ERISA VIOLATION" To avoid confusion, the court

refers throughout to the ERISA claim as the Count V ERISA claim.

In her complaint, filed on July 28, 1995, in the

Circuit Court of Kanawha County, West Virginia, and removed to

this court on August 25, 1995, plaintiff asserts in her Count V

ERISA claim (1) that she was constructively discharged in order

to prevent her attainment of disability and/or retirement bene-

fits; (2) that she was wrongfully denied disability retirement

benefits; and (3) that DuPont refused to provide her with copies

of ERISA plan documents, all in violation of sections 502(a) (1)B)

and 502(c) of ERISA.’ Thereafter, on May 29, 1997, nearly five

months after summary judgment motions were due, plaintiff filed a

motion for summary judgment on the ERISA count. Inasmuch as the

motion was untimely, the court declined to rule on it and set the

ERISA claim for trial to the court on June 16, 1997.°

2Under | 502(a) (1) (B), a participant in an employee welfare

benefit plan may bring suit "to recover benefits due to him under

the terms of his plan, to enforce his rights under the terms of

the plan, or to clarify his rights to future benefits under the

terms of the plan." | 1132(a) (1) (B). Section 502(c) allows for

the imposition of a penalty against any plan administrator who

fails or refuses to timely provide required information to a

participant or beneficiary of the plan. | 1132(c)

*By Order entered on December 4, 1996, summary judgment

motions were due by January 6, 1997. On that date, eight indi-

vidual! defendants filed motions for summary judgment with respect

to all claims asserted against them and DuPont filed a motion for

partial summary judgment, seeking judgment in its favor on all

claims against it except for the Count V claim for ERISA viola-

tions. No summary judgment motion was filed by plaintiff.

Subsequently, by memorandum orders entered on April 22 and 23,

1997, the court granted summary judgment in favor of the individ-

ual defendants on all claims against them. Summary judgment was

PORE I Se ee wee Re

Reference to plaintiffs May 29, 1997, motion for

summary judgment is nonetheless of assistance in understanding

the basis of the ERISA claim as it evolved during the course of

this litigation. It is noted in particular that the motion makes

no mention of a claim of constructive discharge for the purpose

of preventing plaintiffs attainment of benefits or of DuPont's

alleged failure to provide plan information as required by

section 502(c) of ERISA. However, the motion and supporting

memorandum continue to reference a claim under section

502(a) (1) (B) based on the wrongful denial of benefits, asserting

that plaintiff was denied benefits that were granted to other

employees exhibiting the same medical conditions. (PI.'s Mot.

Summ. J. on ERISA, pp. 2-3 at ff] 7, 11,) The supporting memoran-

dum contends, in addition, that DuPont breached its fiduciary

duty by failing to advise plaintiff prior to the date on which

she elected to take early retirement that a "far better” program

also granted in favor of DuPont on all claims addressed in its

summary judgment motion except for a claim of fraudulent conceal-

ment, Consequently, after rulings were made on the timely filed

motions for summary judgment, the only claims that remained were

the fraudulent concealment and Count V ERISA claims against

DuPont. At a hearing conducted on April 24, 1997, trial on those

claims was continued, on plaintiffs motion, to June 16, 1997.

(Ord. of Apr. 25, 1997.) Thereafter, plaintiff filed a motion

for relief from the court's ruling on the fraudulent concealment

claim. Although that motion remains pending, the court proceeded

to trial on the ERISA claim on June 16 and 17, 1997.

ee ee

would be offered in the near future. * (PI.'s Mem. in Support at

10-11.)

At the commencement of trial on June 16, 1997, counsel

for plaintiff confirmed that plaintiff asserts only two bases for

finding a violation of rights protected under ERISA. One claim

rests on the contention that at the time she elected to terminate

her employment and participate in an early retirement program,

DuPont violated ERISA by failing to apprise plaintiff of other

retirement options to be made available in the near future,

thereby depriving her of the opportunity to make an informed

decision about delaying her retirement in exchange for the

receipt of greater benefits. The other claim is based on the

assertion that DuPont's denial of plaintiffs application for

total and permanent disability benefits and incapability benefits

was arbitrary and capricious because DuPont's administration of

its benefit plans is inconsistent in the decision-making process.

That is, inconsistent, according to plaintiff, in the sense that

others with like conditions were granted total and permanent

‘A similar allegation was made in a Statement of Facts filed

by plaintiff on July 8, 1996, in which she set forth the facts

relied on to support the allegations in her complaint, (Statement

of Facts, Docket No. 174 at 11), and in plaintiff's portion of

the proposed pretrial order submitted in preparation for the

March 12, 1997, pretrial conference.

disability and incapability retirement benefits that were denied

to plaintiff.°

Both claims were tried before the court on June 16,

1997, and June 17, 1997, with the court restricting evidence on

the wrongful denial of benefits claim to plaintiffs contention

that the denial was improper because provisions of the pertinent

employee welfare benefit plans have not been consistently

applied. For the reasons announced in open court and more fully

set forth below, at the conclusion of plaintiffs case, the court

granted DuPont's motion for directed verdict on that portion of

the Count V ERISA slaim which related to DuPont's alleged failure

to inform plaintiff about an early retirement option to be

offered after plaintiffs elected termination date. As to

plaintiffs section 502(a) (1) (B) claim based on the wrongful

denial of benefits, having heard the evidence presented during

the trial conducted on June 16 and 17, 1997, and having reviewed

the administrative record and the parties’ post-trial briefs on

the issue, the court finds that plaintiff has failed to demon-

Strate that DuPont wrongfully denied her application for bene-

fits.

On the basis of the representations of counsel and the

absence of any reference to the claims since the complaint was

filed, the court concludes that plaintiff has abandoned any

alleged ERISA violation based on constructive discharge for the

purpose of preventing her attainment of benefits and based on an

asserted failure to provide the information required by § 502(c).

Looking first at plaintiff's contention that DuPont

failed to inform her that a more advantageous early retirement

program would be offered soon after she made her September 15,

1994, election to terminate her employment as of November 30,

1994. the court makes the following findings of fact and conclu-

sions of law based on the evidence, essentially undisputed,

presented at trial.

1. During a 45-day period commencing on August 1,

1994, and ending on September 15, 1994, employees at DuPont's

Belie Plant were offered the opportunity to participate in a

career transition plan (CTP)/temporary pension system (TPS)

program designed to obtain voluntary resignations by no later

than November 30, 1994, in order to make a job available to

another Belie Plant employee who would otherwise be terminated in

a reduction-in-force operation.

2, The severance packages under the CTP and TPS

programs were identical with respect to the cash amount to be

paid (one month's "pay" for each two years of employment, with a

maximum amount of twelve months’ "pay"), and ancillary benefits

(e.g., medical, dental and life insurance), including a $5,000

educational benefit. The only difference in the two programs was

the manner in which the monetary payouts were handled. Payout

under the CTP was on a monthly basis, while the TPS program

provided for a lump-sum payout which could be rolled over into a

tax-deferred retirement program or taken as an annuity. (DuPont

Trial Exs. 1 & 2.)

3. A similar CTP, without the TPS option, was previ-

ously offered in 1993. (Trial Tr. at 111-12.)

4. On September 15, 1994, plaintiff made an irrevo-

cable application for participation in the program, (DuPont Trial

Ex. 3), electing thereafter to receive a lump-sum payout in the

approximate amount of $28,000, and choosing not to take advantage

of the $5,000 educational benefit.

5. Plaintiff last reported to work on September 15,

1994. and in accordance with the CTP/TPS program, was terminated

from the payroll on November 30, 1994.

6. The combined CTP/TPS program, with a termination

date in March 1995, was offered again after plaintiff left

employment. The CTP alone, with a termination date of November

1995, was also made available after plaintiff's termination.

On the basis of the above findings of fact, the court

concludes that, as a matter of law, plaintiff cannot prevail on

her claim that DuPont failed to inform her that a more advanta-

geous early retirement program would be offered after her elected

termination date of November 30, 1994. A similar plan had been

offered the previous year, putting plaintiff on notice that the

opportunity might again present itself. Alternatively, there is

no evidence before the court from which it could be found that

DuPont knew prior to plaintiffs election date of September 15,

1994. that its reduction-in-force program would necessitate an

additional effort to solicit voluntary resignations. More

importantly, there is no showing that plaintiff was harmed by her

lack of knowledge about a renewal of the CTP/TPS program after

her election was made on September 15, 1994. There is no evi-

dence of any difference between the options available to plain-

tiff in September 1994 and those offered to employees electing a

1995 termination date. Furthermore, insofar as plaintiff's

counsel inferred that plaintiff could have simply delayed her

early retirement and gained the inherent advantages associated

with a longer employment period, the argument ignores plaintiff's

contention in connection with her section 502(a) (1) (B) claim

that, as of the date of her termination, she considered herself

incapable of continuing employment.

in the absence of any evidence that she was harmed by

DuPont's alleged failure to inform her about future early retire-

ment options, plaintiff cannot prevail on her failure to inform

claim, as the court so ruled in granting defendant's motion for

directed verdict on that claim. (Tr. at 250.)

HI.

Turning to plaintiffs claim that she was wrongfully

denied benefits due tnder an employee welfare benefit plan

maintained by DuPont and administered by its Board of Benefits

and Pensions, it is agreed by the parties that judicial review of

the Board's decision is to be made under the abuse of discretion

standard.® Under that standard, the Board's decision is to be

upheld if it is reasonable; that is, if it "is the result of a

deliberate, principled reasoning process and if it is supported

by substantial evidence." Brogan v. Holland, 105 F.3d 158, 161

(4th Cir. 1997) (quoting Bernstein v. CapitalCare, Inc., 70 F.3d

783, 787 (4th Cir. 1995)). In making that assessment, the court

is to give due consideration, to the extent relevant, to (1)

whether the administrator's interpretation of plan language is

SThe abuse of discretion standard applies when the plan

grants the administrator discretionary authority to determine

eligibility for benefits or to construe terms of the plan. E.g.,

Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 (4th Cir. 1995)

(citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989)). Both plans here at issue vest administration of the

plans in the Board of Benefits and Pensions appointed by DuPont

and provide that "[t]he Board of Benefits and Pensions retains

discretionary authority to determine eligibility for benefits

hereunder and to construe the terms and conditions of the Plan.”

(Total and Permanent Disability Income Plan at 9, VIII.B.;

Pension and Retirement Plan at 4, Il.) Consequently, the abuse

of discretion standard applies. See Pokol v. E.!. Du Pont de

Nemours and Co., 963 F. Supp. 1361, 1370-71 (D.N.J. 1997) (find-

ing that a denial of benefits under DuPont's total and permanent

disability benefit plan is to be determined under the arbitrary

and capricious standard, which the court viewed as essentially

the same as the abuse of discretion standard)

10c

consistent with the goals of the plan; (2) whether it might

render some language meaningless or internally inconsistent; (3)

whether the challenged interpretation is at odds with the proce-

dural and substantive requirements of ERISA; (4) whether the

provisions at issue have been applied consistently; (5) whether

the administrator's interpretation is contrary to clear language

of the plan, id. at 161 (quoting de Nobel v. Vitro Corp., 885

F 2d 1180, 1188 (4th Cir. 1989)), (6) the scope of discretion

conf erred; (7) the purpose of the provision of the plan in which

discretion is conferred; (8) any external standard relevant to

the exercise of discretion; (9) the administrator's motives; and

(10) any conflict of interest under which the administrator

operates in making the decision, Haley v. Pau! Revere Life Ins.

Co., 77 F.3d 84, 89 (4th Cir. 1996) (citing Restatement (Secorid)

of Trusts § 197 cmt. d (1957))

Plaintiff's first challenge to the Board's denial of

her application for benefits focuses on the fourth consideration,

it being her contention that the Board has not consistently

applied the same standard in determining whether to grant dis-

ability benefits. As support for her position, plaintiff states

that benefits were granted to other employees on the basis of

disabilities similar to or even less severe than those she

exhibited. (Pl.'s Br. in Supp. of J. at 3, 11-12.) Along those

same lines, plaintiff suggests that it was an abuse of discretion

11c

for the Board to require "objective medical evidence” of "perma-

nent impairment of function," (id. at 19), and to apply that

criteria in an inconsistent manner so as to "manipulate" the

outcome of the application process, (Pl.'s Reply at 3). More

particularly, plaintiff maintains that inasmuch as Judith Crowder

was granted total and permanent disability benefits on the basis

of chronic fatigue syndrome, plaintiff was likewise entitled .o

benefits on the basis of a diagnosis of chronic fatigue syndrome.

Plaintiff also maintains that DuPont discriminated

against her in the application process in that other employees

were given assistance that was denied to her and that would have

resulted in an award of benefits. In that regard, she asserts

that the Belie plant physician, Reuben Holland, M.D., advised

other employees about the documentation required to obtain

benefits, such as plant medical records and specially-worded °

physician reports,’ (Pl.'s Br. in Supp. of J. at 3, 18.) Plain-

tiff claims, in addition, that she was treated differently than

others because her entire plant medical records were not made a

It is further alleged in plaintiffs supporting brief that

in addition to withholding assistance from her, DuPont “sabo-

tag[ed] her application by concealment of her plant medical

records." (PI.'s Br. in Supp. of J. at 4.) The allegation is

totally without support in the record as is the assertion,

PI.'s Reply at 1), that plaintiff was completely denied discovery

pertaining to awards of medical disability benefits.

Bu we bdrs Taal ae

12c

part of her benefit application package,® because she was not

given a “neurocognitive examination" by Dr. Holland, because Dr.

Xolland did not ask her questions about chronic fatigue syndrome

from a prepared list, and because no one consulted with her

supervisors about difficulties she had performing her work, as

was done for Crowder. (/d. at 7-8, 13-14.) In addition, she

seemingly contends that she was discriminated against because no

one prepared a description of her job for use by her treating

physician in assessing her ability to perform that work or

advised her treating physician about the wording that should be

used in order for her to qualify for benefits, as was done for

David Hager. (/d. at 8-10, 13, 18-19.)

By way of further support for the contention that she

was unfairly treated, plaintiff interprets section VI.A.1. of the

Total and Permanent Disability Income Plan as making it “clear

that it is the Company who directs, advises and inquires in order

to obtain the necessary medicai evidence to determine eligibility

‘Plaintiff argues at length that her plant medical records

demonstrate that she suffered from chronic fatigue syndrome and

other disabling conditions, (PI.'s Br. in Supp, of J. at 7-8, 10,

15, 19) and that to the extent those records were not reviewed,

the decision to deny her application for benefits was made “on

far less than a whole record,” (id, at 15; Pl.'s Reply at 2), and

thus, in an arbitrary and capricious manner, (Pl.'s Br. in Supp.

of J. at 17-18). However, it is noted that no specific plant

medical records are referenced, just as no particular materials

were Called to the Board's attention when counsel reviewed

plaintiffs entire plant medical record in connection with her

appeal. See, infra, page 34.

13c

for total and permanent disability.” (/d. at 11) (emphasis in

original). (See also id. at 13, stating that it was "the abso-

lute duty and sole responsibility” of Dr. Ramirez to inquire of

plaintiffs doctors, Dr. Romano or Dr. Cheney, as to whether the

Center for Disease Control (CDC) criteria for chronic fatigue

syndrome was met because "(t]he plan is explicit in that The

Company is charged with gathering medical reports, making inqul

ry, and giving the employee any and all needed guidance and

direction . .") (emphasis in original), (cf. id. at 14,

stating that it was Dr. Holland's “responsibility by the Plan

language,” to discuss plaintiff's complaints “of shortness of

breath, chronic bronchitis and cough with excessive phlegm" with

her supervisors and "construct an honest and accurate assessment

of the known effects of dust and fumes on a chronic asthmatic.")

As a final point, the court gives a broad reading to

generalized statements in plaintiffs supporting memoranda and

treats them as an assertion that the Board's denial of benefits

was an abuse of discretion because it is not supported by sub-

stantial evidence in the materials presented to it for consider-

ation,® In particular, the court examines the assertions that

*The generalized statements referred to by the court include

the statement that plaintiff's diagnoses of asthma, hypertension

and acute chronic fatigue syndrome "are amply documented in the

plaintiffs submitted reports as contained in the administrative

file to which this Court has limited all consideration,” (PI.'s

Br. in Supp. of J. at 12), and the references to symptoms and

diagnosis contained in the reports of Dr. Romano, Dr. Cheney, and

14c

plaintiff submitted objective medical evidence in the form of an

“abnormal EEG," "an x-ray with the accentuated markings consis-

tent with asthma," and "a bronchial methacholine challenge test”

sufficient to demonstrate her entitlement to benefits. (Pl.'s

Reply at 3-4.)

in determining whether the Board's denial of benefits

was an abuse of discretion, the court first examines the perti-

nent language in the Pension and Retirement Plan, (hereinafter,

Pension Plan). The purpose of the Pension Plan is “to provide

for the retirement of employees and, under the conditions set

forth below, to provide an employee who is retired or otherwise

terminated with pension rights that take into account the iength

of his service and the pay he received during his employment with

the Company." (Pension Plan at 4, § |.) In furtherance of that

goal, the Pension Plan contains a provision for an incapability

retirement pension. The eligibility requirement for an incapa-

bility retirement pension is stated as follows:

An employee may be retired by the Company if

the Board of Benefits and Pensions finds that

he has become, for any reason, permanently

incapable of performing the duties of his

Dr. Preston, and in the methacholine challenge result submitted

by Dr. Rasmussen, (id. at 16-17, 19), which are a part of the

administrative record.

15¢

position with the degree of efficiency re-

quired by the Company, and he has at least 15

years of service.

(id. at 7, § IV.C.(1).)

By comparison, the stated purpose of the Total and

Permanent Disability Income Plan, (hereinafter, the T&P Plan), is

"to protect eligible employees against substantial loss of

earnings in the event of total and permanent disability resulting

from injury or disease by supplementing benefits payable under

other Company and government-sponsored programs.” (T&P Plan at 2,

§1.) An employee is eligible for benefits under the T&P Plan

if. inter alia, "he becomes disabled after the date he completes

one year of service and his service is terminated because of

total and permanent disability on or after the effective date.”

(id. at 4, § IIA.) He is considered "totally and permanently

disabled” if the Board finds that he "is totally disabled by

injuries or disease and presumably will be totally and perma-

nently prevented from pursuing any gainful occupation.” (/d .

at 3, § Il,E.) The determination is to be made "on the basis of

his condition immediately prior to his termination of service

with the Company and an employee who becomes totally and perma-

nently disabled after termination of service with the Company

will not qualify for benefits under this Plan." (/d.)

Unlike the Pension Plan, the T&P Plan contains a

section addressing the application for benefits. It provides in

pertinent part:

16c

Application for benefits under this Plan

shall be submitted to the Board of Bene-

fits and Pensions in such form as the

Board may prescribe.

1. Satisfactory medical evidence must

be provided on which the Board may

base a finding that an individual

is totally and permanently dis-

abled. The Company may require, in

its discretion, a report from the

individual's physician and other

appropriate information and docu-

mentation as part of the basis for

determining total and permanent

disability. The individual shall

authorize release of any medical

records or other material concern-

ing his disability which the Com-

pany may request. In addition, he

shall permit such examinations and

inquiries by the Company's Medical

Division as in its judgment may be

necessary in order to ascertain his

condition, and he will be expected

to cooperate with the Medical Divi-

sion in following such advice and

directions as may be given.

If application for benefits under this

Plan is denied in whole or in part,

the Board of Benefits and Pensions

shall furnish written notice of such

denial. A written request for review

of the denial of the claim may then be

submitted to the Board and shall docu-

ment the reason the individual believes

the original finding by the Board was

incorrect. If the individual wishes to

17c

submit additional medical evidence of

his disability, such evidence shall be

furnished at his expense. The Board

will reply in writing to each such

request for review.

(T&P Plan at 8, § VIA.1. & B.

Under both plans, the discretion to determine eligibil-

ity for benefits is vested in the Board, which is also authorized

to "adopt such rules, or deleyate to one or more persons its

authority to make initial determinations, as it may deem neces-

sary for the proper administration of the Plan." (/d. at 9,

VIll.B.; Pension Plan at 4, B II.)

On September 15, 1994, plaintiff, having more than

fifteen years of service with DuPont, applied for early retire-

ment. Although not terminated from the payroll until Novem-

ber 30, 1994, her last day at work was September 15, 1994. In

the interim, on September 30, 1994, she wrote to Elbert Price,

asking that the letter be considered "as an application for total

and permanent disability benefits." (Admin. R. at 6.)'° With

respect to her claimed disabilities and their effect on her

ability to perform work, the letter states:

It has become very apparent to me

since my leaving that | am not physically

able to engage in any employment due to my

All references to the administrative record are to the

record filed this date by separate order.

18¢

present physical condition and greatly

impaired health. At present, | suffer from

acute respiratory problems which have been

diagnosed as asthma. | also have recently

been informed that | am suffering from stom-

ach ulcers which is still being medically

evaluated as to the severity of this condi-

tion. Additionally, | have been hypertensive

for some time. | have continually suffered

from chronic, recurrent and painful shingles

and hives.

These conditions are very serious and

debilitating and the work-related problems

under which | have been functioning has

greatly exacerbated these conditions to the

point where | am unable to seek out and main-

tain gainful employment. | also believe that

sufficient evidence exists in my medical file

at the plant to support my claim for total

and permanent disability benefits.

(Admin. R. at 6.)

On November 14, 1994, plaintiff's application was

forwarded to DuPont's Benefits Delivery Section in Wilmington,

Delaware. (Admin. R. at 2.) The cover letter contained a

description of the job duties plaintiff performed as a shipping

19c

clerk prior to her termination" and asked for a determination of

her eligibility for incapability pension and total and permanent

disability income plan benefits. (/d.) The cover letter stated

that a medical evaluation report and "related medical documents"

were attached. (/d.) Additional medical information in the form

of a medical report from Dr. Romano, of Wheeling, West Virginia,

was forwarded to Wilmington on November 16, 1994. (Admin. R. at

27-29.) The report was dated July 28, 1994 and bore the notation

that it was revised on November 9, 1994. (Id.)

By letter dated December 5, 1994, plaintiff's applica-

tion for incapability retirement pension and for total and

permanent disability income plan benefits was denied because

"lilt was determined that you are not permanently incapable of

performing the duties of available work with the degree of

efficiency required by the Company, as noted in Section IV C (1)

of the Pension and Retirement Plan, a copy of which is attached.”

"The job requirements were described as follows:

A Shipping Clerk is required to complete complex

shipping forms (written and typed), use computers

extensively, and follow (and interpret) detailed com-

plex shipping procedures and occasionally travel to

participate in training workshops. In addition, they

interface with plant employees and outside people and

must help resolve problems quickly between the produc-

ing departments, customers, and the shippers.

(Admin. R. at 2.)

20c

(Admin. R. at 32.) The letter advised plaintiff of her right to

appeal within sixty days and explained:

In order for your appeal to be success-

ful, you must provide additional objective

evidence that will indicate a total impair-

ment of function. Examples of objective

evidence are significant or positive results

of tests such as MRI, x-ray reports and com-

plete medical evaluations. Opinions of

healthcare providers are not sufficient with-

out objective medical evidence to support

such opinions. Any information that you

would like to have reviewed may be forwarded

to us through Elbert Price."

(Id. at 32-33.)

The letter also notified plaintiff that the medical

information considered in making the denial determination con-

sisted of:

1) Medical Record Form from Dr. L. Rasmus-

sen dated 11/1/94;

2) Medical Report by Dr. T. J. Romano dated

7/28/94 and revised on 11/9/94; ,

3) Medical Report by Ashton Care Center

dated 3/18/92;

4) Progress Notes dated from 8/17/93,

9/19/94;

5) Laboratory Report dated 12/17/93;

6) Medical Evaluation Report by Dr. R. W.

Holland, Jr. dated 10/19/94.

'2At trial, Dr. Ramirez, a member of the Board, testified

that an employee aggrieved by the Board's initial determination

is informed of the medical records reviewed in reaching a deci-

sion, is advised of the right to appeal the decision, and is

notified of the necessity of providing objective medical evidence

of permanent impairment in order to be eligible for benefits.

(Tr. at 73-74.)

21c

(Id. at 32.)

By letter dated January 4, 1995, counsel for plaintiff

wrote to Price, requesting an appeal of the decision denying

her application for benefits. (Admin. R. at 34-36.) The letter

takes issue with the determination, stating that plant medical

records contain sufficient objective medical evidence of

plaintiff's inability to maintain employment and of her unemploy-

ability if she tried to work because the "cumulative effects of

asthma, connective tissue disease, autoimmune disorders such as

documented arthralgias, myalgias and repeated episodes of severe

and painful shingles, and hypertension would leave any individual

capable [sic] of gainful employment." (/d. at 34-35,) The

letter concludes by stating that the Board's denial letter will

be forwarded to plaintiffs consulting and treating physicians in

order that they might respond to the request for "more objective

medical evidence." (Id. at 36.) In a response dated .'anuary 11,

1995, counsel was advised that plaintiffs case would v held in

abeyance pending the receipt of additional information, after

which the Board would review the "information previously consid-

ered as well as any additional information submitted.” (Admin,

R. at 39.)

Thereafter, on June 16, 1995, counsel wrote to Benefits

Delivery in Wilmington, stating, inter alia:

22c

After a very extensive review of Mrs.

Cobb's medical file as maintained at the

Belie Plant, consultation with her treating

physicians, and information and facts regard-

ing disability and incapability pension bene-

fits as recently granted to some of Mrs.

Cobb's co-workers, | cannot see the medical

necessity or wisdom in submitting further

medical evidence regarding physical illnesses

and disabilities that are already well estab-

lished in your own company’s files on this

former employee.

It is very well-known to you that Mrs

Cobb suffers from asthma, hypertension,

fibromyalgia and recurrent severe herpetic

lesions

Therefore, | respectfully request that

your board review the medical records as

maintained by the Belie Plant medical staff,

as well as the additional medical records

which were submitted by Mrs. Cobb when she

requested a disability retirement. | have

taken the liberty of submitting some current ~

medical reports which will support the above

information already in your possession.

(Admin. R. at 40-41.)

Receipt of the letter and of additional medical infer-

mation was acknowledged by letter from the Board dated June 22,

1995, (Admin. R. at 49.) The appeal was denied by letter dated

August 10, 1995, in which it was stated: "The Board noted that

you have a diagnosis of asthma. However, the medical evidence

submitted does not support a conclusion that you were permanently

23c

incapable of performing the duties of a Shipping Clerk with the

degree of efficiency required by the Company at the time of your

termination. " (Admin. R. at 55.) The medical information

reviewed was identified as that listed in the denial letter of

December 5, 1994,'* and the following new information:"*

—

Progress Note, Dr. M. Kostenko, dated

2/9/95;

Mineral Levels Report, dated 3/6/95:

X-Ray Report, Southern West Virginia Clinic, dated

Blood Analysis, Southern West Virginia

Clinic, dated 11/1/94.

RwWN

(/d.) The letter also advised that the Board's review "completes

your appeal rights within DuPont as required by ERISA." (/d.)

Over a year later, on October 28, 1996, plaintiff's

counsel nevertheless again wrote to Benefits Delivery requesting

reconsideration of plaintiffs application for benefits on the

basis of “asthma, chronic fatigue syndrome, and a concurrent

The letter of August 10, 1995, makes reference to an

earlier letter of December 5, 1995, but it is apparent that the

reference was intended to be to the denial letter dated December

5, 1994. See, supra, pages 19-20.

Dr. Ramirez testified at trial that if an appeal is pur-

sued, he reviews any additional information presented and dis-

cusses it with the plant medical department, (Tr. at 73.) If he

determines that the medical information is not sufficient to

warrant an award of benefits, he presents the case to the Board

for its review of the entire medical record. (Tr. at 73-74.)

The Board's decision is communicated to the applicant in writing,

together with a list of all the medical information reviewed.

(Tr. at 74-75.)

24c

immune system dysfunction disorder ... complicated by a hyper-

tensive condition which currently requires continual medica-

tion.""® (Admin. R. at 56.) Additional medical reports were

provided consisting of (1) medical reports from Paul R. Cheney,

M.D., Ph.D., of Charlotte, North Carolina; (2) a report from Myra

Preston, Ph.D., of Charlotte, North Carolina, regarding plain-

tiffs "computerized EEG (brain map);”" and (3) methacholine,

challenge testing results from Or. Rasmussen of Beckley, West

Virginia. (Id.) The additional medical information was reviewed

by the Board's medical director along with the medical informa-

tion earlier presented and by letter dated May 13, 1997, the

Board advised plaintiffs attorney that in the medical director's

opinion, "the new medical information does not provide objective

~edical information which indicates that Ms. Cobb had a permanent

impairment of function at the time of her termination on November

30, 1994, Therefore, the determination that Ms. Cobb is not

The October 28, 1996, request for reconsideration is the

first time plaintiff states that she suffers from chronic fatigue

syndrome. Attached to that letter is the report from Paul R.

Cheney, M.D., Ph.D., dated September 19, 1996, giving a final

assessment of chronic fatigue syndrome. (Admin. R. at 63.)

Plaintiff's earlier appeal of June 16, 1995, forwarded the

February 2, 1995, progress note of Dr, Kostenko, an osteopath of

Beckley, West Virginia. (Admin. R. at 40-41, 49.) In the

medical history portion of the progress note, Dr, Kostenko makes

reference to Dr. Romano's report of July 28, 1994 (wherein Dr.

Romano states that plaintiff suffers, inter alia, from “chronic

fatigue”) ahd states that ‘patient has apparently a fibromyalgia

Chronic Fatigue Syndrome.” (Id. At 42.) The appeal letter

nevertheless makes no mention of chronic fatigue syndrome as a

disabling condition warranting an award of benefits. (Admin. R

at 40-41.)

25c

eligible for Total and Permanent Disability Benefits has not

changed.” (Admin. R. at 94.)

IV.

Inasmuch as a primary focus of plaintiffs challenge to

her denial of benefits is her claim of inconsistent application

of plan provisions, including the requirement of objective

medical evidence of permanent impairment of function, the court

first considers whether the Board's denial of benefits to plain-

tiff was an abuse of discretion because of that requirement and

because Judith Crowder, who suffered from chronic fatigue syn-

drome, a disability claimed by plaintiff, was granted benefits

while plaintiff was not.

It is seen from a review of the Pension Plan and T&P

Plan that no mention is made of the requirement of objective

medical evidence. However, both plans grant the Board discretion

to determine eligibility for benefits and to adopt rules and

delegate authority for making initial determinations. Supra,

page 17, In that regard, the court finds on the basis of the

evidence presented at trial that the Board delegated to one of

its members, Benjamin Ramirez, M,D., an associate medical direc-

tor for DuPont, the duty of reviewing al! benefit applications

and the authority to make the initia! determination of whether to

26c

grant or deny benefits. In performing those duties, Dr. Ramirez

employed a standard which required objective medical evidence of

permanent impairment of mental or physical function as of the

date of termination from employment, with "permanent" meaning a

condition that lasts more than six months. (Tr. at 36, 51-52,

62, 64-65, 68-69, 72-73, 83, 87.) He described examples of

objective medical evidence as including physical examination

findings, (Tr. at 37, 87), EEG reports, (Tr. at 41, 87), test

results, medical assessments, psychiatric reports, and laboratory

analyses, (Tr. at 72-73, 87). According to Dr. Ramirez, nonmedi-

cal factors are not taken into consideration in his decision-

making process. (Tr. at 65.)

Plaintiff does not articulate how utilization of the

objective medical evidence standard constitutes an abuse of

discretion except by citation to the case of Mitchell v. Eastman

Kodak Co., 113 F.3d 433 (3d Cir. 1997). in Mitchell, the Third

Circuit Court of Appeals held that it was impermissible for the

administrator of an ERISA plan to require objective medical

evidence of chronic fatigue syndrome, the condition Mitchell

relied on to show that he was disabled. /d. at 442-43. In

reaching its decision the court noted that the Kodak Plan

documents did not require "clinical evidence of the etiology of

the 'condition™ that rendered Mitchell disabled, but only a

showing of disability on the pertinent date. /d. at 443. In

27c

addition, the court concluded that the requirement was not

appropriate in the context of chronic fatigue syndrome. /d.

The court further explained:

Moreover, it was impermissible for the

Administrator to imply an additional "clini-

cal evidence of etiology" requirement not

specified in the Plan document in the context

of CFS. It is now widely recognized in the

medical and legal communities that "there is

no ‘dipstick’ laboratory test for chronic

fatigue syndrome." Because the disease,

although universally recognized as a severe

disability, has no Known etiology, it would

defeat the legitimate expectations of par-

ticipants in the Kodak Plan to require those

with CFS to make a showing of clinical

evidence of such etiology as a condition of

eligibility for LTD benefits. Thus, it was

arbitrary and capricious for the Administra-

tor to deny Mitchell benefits because of a

lack of such clinical evidence of the

etiology of his CFS

Id. (citations omitted)

Mitchell is distinguishable in critical respects.

Although the Kodak Plan gave the administrator discretion to make

eligibility determinations, id, at 438, there is no indication

that it also contained a provision similar to that in the DuPont

plans which authorized the adoption of rules deemed necessary for

proper administration of the plans. Nor does it appear that the

Kodak Plan required that the applicant provide "[s]atisfactory

medical evidence” of total and permanent disability, as is

required under the DuPont T&P Plan. More importantly, Mitchell,

28c

unlike plaintiff, presented medical records showing that he began

suffering chronic fatigue syndrome symptoms prior to his termina-

tion and a subsequent letter which explained how those then

misunderstood symptoms rendered him totally disabled from gainful

work at the time his employment was terminated. /d. at 441-42.

Furthermore, plaintiff in this case has not been required to

offer clinical evidence of the etiology or cause of chronic

fatigue syndrome but simply to furnish objective medical evidence

supporting her claim. The CDC criteria includes such evidence."

The court accordingly is not persuaded on the reasoning

of Mitchell that utilization of an objective medical evidence

standard, standing alone, constitutes an abuse of discretion. As

was noted by the New Jersey district court in Pokol v. E./. du

'6Dr. Ramirez testified ‘that to support a finding of chronic

fatigue syndrome using CDC criteria, a person must be diagnosed

by a qualified doctor as exhibiting major criteria and minor

criteria. (Tr. at 45, 66,) The major criteria are fatigue

severe enough to impair a person 50% in his daily activity, which

lasts more than six months, and for which there is an absence of

iliness, such as cancer, depression or psychiatric problems, that

would explain the fatigue. (Tr. at 46, 66, 92-93.) The minor

criteria consists of eleven symptoms, including fever, adenopathy

(swollen glands), pharyngitis (inflammation of the pharynx, the

passageway which connects the mouth and the back opening of the

nose with the esophagus), and achy joints. (Tr. at 45-46, 93.)

A person exhibiting the major criteria and six symptoms of the

minor criteria, plus two physical examination findings, or, if no

physical examination findings, then symptoms of eight of the

minor criteria, "could be considered a case of chronic fatigue

syndrome." (Tr. at 46, 92, 94.) The 1994 and 1996 reports

plaintiff submitted from Dr. Rasmussen in support of her applica-

tion for benefits did not mention chronic fatigue syndrome

and, instead, showed an absence of two minor criteria: fever and

adenopathy. (Tr. at 44-45, 66-67.)

29c

Pont de Nemours and Co., 963 F. Supp. 1361 (D.N.J. 1997), in

facing a similar challenge to DuPont's objective medical evidence

standard: "Interpreting the language ‘satisfactory medical

evidence’ to include ‘objective medical evidence’ is neither

irrational nor unreasonable." /d. at 1372. It is apparent that

this inclusory standard is the standard that Dr. Ramirez was

following when he sought confirmation of plaintiff's disabling

condition in the form of objective medical evidence.

Inasmuch as plaintiff presented no evidence to contra-

dict the testimony of Dr. Ramirez that he employed an objective

medical evidence standard in his review of all benefit applica-

tions, see also id. at 1372 (stating that DuPont consistently

interprets its T6cP Plan to require objective medical evidence of

total and permanent disability at the point immediately prior to

termination from employment), the court is also unable to find an

abuse of discretion based on an alleged inconsistency in applica-

tion of that standard.

Plaintiff's reliance on the grant of benefits to

Crowder similarly fails to demonstrate an abuse of discretion

based on inconsistent application of plan provisions. At trial,

Dr. Ramirez testified that if an applicant submits objective

evidence that the criteria established by the Center for Disease

Control for a finding of chronic fatigue syndrome are met and it

is determined that there is an impairment of function which

30c

appears to be permanent -- that is, it lasted more than six

months -- chronic fatigue syndrome can be the basis for an award

of benefits. (Tr. at 38, 65, 86.) Testimony was also elicited

from Judith Crowder, a former DuPont employee who receives total

and permanent disability benefits. On direct examination,

Crowder testified that in her application for benefits, she

stated that she suffered from chronic fatigue and immune dysfunc-

tion syndrome. (Tr. at 171 .) However, Cross examination dis-

closed that she also suffered from osteoarthritis of the cervical

spine, obesity, chronic pain, anxiety and depression, sleep

disorder, and gastritis with esophageal reflux. (Tr. at 176-77.)

In discussing the factor of inconsistency as it impacts

the court's consideration of whether a denial of benefits was an

abuse of discretion, attention must be given to factual distinc-

tions between situations and surrounding circumstances, See

Lockhart v. UMWA 1974 Pension Trust, 5 F.3d 74, 80 (4th Cir.

1993). Where the facts are distinguishable, it is not an abuse

of discretion to decide the question of eligibility differently.

id . Here, there is no basis on which the court could find that

plaintiffs alleged disabilities are factually indistinguishable

from the disabilities claimed by Crowder and accepted by the

Board as warranting an award of temporary and permanent

disability benefits. As Crowder conceded at trial, at the time

that she applied for benefits, she had a diagnosis not only of

31c

chronic fatigue and immune dysfunction syndrome, but also of

several other disabling conditions not claimed by plaintiff.

Moreover, Crowder could only speculate that chronic fatigue

syndrome was the "major consideration” in the decision to grant

her application for benefits.'’ (Tr. at 177.) The medical

conditions claimed by plaintiff being factuaily different from

those presented by Crowder and there being nothing before the

court that evidences the Board's decision-making process in the

Crowder case, the court 1s unable to find that the Board decided

plaintiff's eligibility for benefits in a manner that was incon-

sistent with its decision on Crowder's application.'*

Dr. Ramirez testified that another employee, Rick Shaffer,

may have been granted disability benefits on the basis of a

diagnosis of chronic fatigue syndrome. (Tr. at 61.) However,

inasmuch as no other information is presented with respect to his

application, it cannot be said that his situation is factually

indistinguishable from that of plaintiff.

'8Plaintiff contends that her ability to demonstrate incon-

sistency in the application of plan provisions is hampered

because she was denied discovery in that area. With regard to

that contention, it is seen that in its response to plaintiff's

first set of interrogatories and second request for production,

served on October 30, 1996, DuPont states: "Since i991, twenty-

three Employees at the Belie plant have received either total and

permanent disability benefits or an incapability pension from

DuPont." The diagnosed medical conditions they suffered include

‘lung disease” and "chronic fatigue syndrome.” (PI.'s Mot. Summ.

J. on ERISA claim, Docket No. 472, Ex. 9, DuPont Reap. at 10-11.)

The record also shows that plaintiff subpoenaed Elbert Price

on January 31, 1996, to appear at deposition on February 6, 1996,

and to bring with him "(t]he complete file regarding any and all

awards of total and permanent disability from January 1, 1993,

through December 31, 1994, inclusive." (Docket No. 77.) DuPont

objected to the deposition on the grounds, inter alia, that

insufficient notice was given and the discovery deadline was

32¢

about to expire. Plaintiff then filed a motion for contempt on

March 1, 1996, (Docket No. 103), and on March 8, 1996, another

notice to take the deposition of Price, in which plaintiff again

sought, inter alia: "The complete employee files pertaining to

any and all awards of total and permanent disability at the Belie

Plant from January |, 1993, through December 31, 1994, inclu-

sive.” (Docket Entry No. 111.)

The motion was heard by the magistrate judge on March 11,

1996, at which time DuPont opposed producing the requested

documents on the ground that they “are medical records

Those would be confidential records that we would not produce and

would state that those are not relevant.” (Mar. 11, 1996, Hr'g

Tr., Docket Entry No. 130, at 16.) An order reflecting the

rulings of the magistrate judge was entered on March 22, 1996.

The motion for contempt was denied and with respect to the Price

deposition, the order states only that the court finds that the

requests to Price “are overly broad and seek information irrele-

vant to this action.” (Mar. 22, 1996, Ord., Docket No. 131, at

3, 6.)

Plaintiff appealed. Insofar as the materials sought in the

Price subpoena and deposition notice are concerned, the appeal

states that Price was “exempted” from honoring the subpoenas and

from producing any information whatsoever, that Price was

"shielded" from full disclosure of DuPont's practices and proce-

dures; and that "(unequal handling of employee benefits is

certainly a clearly defined area of dispute in this case."

(Apr. 2, 1996, Appeal, Docket Entry No. 141, at 3, 9.) Nonethe-

less, most of the appeal addresses other matters and in the final

paragraph, where plaintiff stated the relief requested on appeal,

there is no mention of Price or the materials sought through him

except for the request that he be made to appear for deposition.

(Id. at 11,)

When plaintiff's appeal was heard on May 31, 1996, the court

did not raise the issue of Price's deposition inasmuch as the

discovery deadline had been extended and plaintiff had been

advised that he would be made available for deposition.

(Mar. 11, 1996, Hr'g Tr., Docket No. 160, at 15.) The court

nevertheless asked that the parties so advise if there was

something being appealed other than the matters addressed by the

court on its own initiative. (May 31, 1996, Tr. at 2, Docket

Entry No. 160). No mention was made of the magistrate judge's

ruling that the materials sought by way of Price's deposition

need not be produced. Subsequently, on October 30, 1996, DuPont

responded to plaintiff's discovery request providing the above-

33¢

Likewise, the court finds that to the extent that

plaintiff may not have received the same assistance in processing

her application as was given others, the difference in treatment

cannot serve to disturb the Board's determination to deny her

application for benefits. Dr. Ramirez testified at trial,

without refutation by plaintiff, that an employee may submit any

information considered relevant to the benefit application. (Tr.

at 73.) However, his review of an employee's plant medical file

is generally confined to the medical evaluation report prepared

by the plant doctor and whatever other information the plant

medical personnel deem relevant to the application, (Tr. at 50,

65.) After review of the medical information submitted, Dr.

Ramirez discusses it with the plant physician who developed the

medical evaluation report, (Tr. at 49, 64-65), to make certain

that he has all information pertinent to the application, (Tr. at

71.) He also asks the plant physician about the specific objec-

tive medical evidence showing permanent impairment of function,

(Tr. at 71,) There is no evidence to the contrary other than

testimony from Crowder, (Tr. at 172), and plaintiff, (Tr. at

216), that they believed that their entire plant medical file

referenced information about the twenty-three employees at the

Belie plant who had received either total and permanent disabil-

ity benefits or an incapability pension from DuPont. No motion

to compel a more complete response was filed. Thus, there is

again no merit to plaintiff's contention that she was barred from

seeking the discovery necessary to support her claim.

34¢

would be forwarded with their applications. However, even

assuming that plaintiff and others believed that the Board would

review the entirety of their plant medical files, plaintiff

cannot overcome the evidence showing that she had notice from the

Board that her entire plant medical file was not received or

reviewed and that after her file was made available to her

attorney, no effort was made to direct the Board.to particular

medical records which would satisfy the requirement of objective

medical evidence of permanent impairment of function immediately

prior to her termination. Indeed, plaintiff has yet to point to

any document in her plant medical file that would support such a

finding. Consequently, she has failed to present any evidence

tending to show that the Board's review of her entire medical

file would have led to a different result.

Nor does the court find merit to plaintiff's assertion

of discriminatory treatment in the manner which she, as compared

to others, was otherwise assisted in the application process. As

will be seen, infra, page 37 the first occasion on which any of

plaintiff's treating physicians made reference to a diagnosis of

"chronic fatigue,” as distinguished from chronic fatigue syn-

drome, was Dr. Romano's revised report of November 9, 1994,'9

The report was not known to Dr. Holland at the time of his

'9See discussion of Dr. Romano's report infra, pages 37-38

and note 20.

35¢

examination and plaintiff does not assert that she made its

findings known to him. She accordingly cannot complain about Dr.

Holland's failure to give her a "neurocognitive examination" or

ask her questions about chronic fatigue Syndrome from a prepared

list, as it is said he did with Crowder, who apparently had been

diagnosed with that condition at the time of her examination by

Dr. Holland in conjunction with her disability application.

It is seen, as well, that there are significant differ-

ences which would explain greater involvement by Dr. Holland and

DuPont supervisors in David Hager’s application process. Plain-

tiff did not conclude that she was disabled and unable to perform

her job as a shipping clerk, or any other job, until after she

elected to take early retirement. Hager, on the other hand, had

been off work on short-term disability for a period of six months

before concern was raised about his ability to return to work in

a new position. DuPont could reasonably offer Hager, an employee

who had not elected early retirement, more assistance in obtain-

ing a medical opinion respecting his ability to return to work

than was offered to plaintiff, who had opted for early retirement

before reaching the conc!:sion that she was disabled from further

employment.

Plaintiff's contention that it was the responsibility

of, alternatively, DuPont, the Board, or Dr. Holland, to obtain

the information necessary to support her claim of disability]

36¢

see, supra, pages 12-13, warrants only brief discussion, There

is no language in the Pension Plan or T&P Plan documents that can

reasonably be interpreted as placing the burden on anyone other

than plaintiff to provide satisfactory medical evidence of

disability. Indeed, plaintiff's assertion in that regard fails

to refer to any language which would arguably support her posi-

tion.

What remains is consideration of the reasonableness of

the Board's decision based on the medical information presented

for its review in the decision-making process to determine

whether it abused its discretion in finding that plaintiffs

applicatior. for benefits should be denied for lack of objective

medical evidence that, immediately prior to her termination from

employment, she was permanently incapable of performing the

duties of shipping clerk with the degree of efficiency required

by the company and/or totally and permanently disabled from

pursuing any gainful occupation.

Looking at the medical information before the Board at

the time of its initial denial, it is seen that the November 1,

1994, medical record of Dr. Rasmussen states that plaintiff told

him that she suffered from asthma since 1993 and "had known

hypertension since 1989." (Admin, R. at 18-19.) However, his

"DIAGNOSTIC IMPRESSIONS" are limited to "[p]robable bronchial

asthma, " "{a]llergic rhinitis,” "[c]hronic sinusitis,” "[a}rth-

37¢

ralgias,” and [p]ossible esophageal reflux." (/d. at 20.) The

report contains no evaluation of plaintiff's ability to work, no

mention of any findings other than those based on a physical

examination, and no prognosis. (See id, at 18-20.)

Dr. Romano's report of July 28, 1994, revised on Novem-

ber 9, 1994,*° and forwarded to Dr. Ramirez by the Belie Plant on

November 16, 1994, (Admin. R. at 27), summarizes plaintiff's

conditions as follows:

IMPRESSION: Based on careful history and

thorough physical examination, it is my pro-

fessional opinion that this patient suffers

from Atypical Connective Tissue Dis-

ease/Atypical Rheumatic Syndrome/Nonspecific

Autoimmune Condition characterized by Symptom

Groupings Raynaud's Phenomenon, Myalgias,

Immune mediated skin changes, documented

arthralgias, documented myalgias, chronic

fatigue (> 6 months), documented neurological

symptoms including cognitive dysfunction or

paresthesias, documented sleep disturbances

and burning pain in the chest, breast, arms

or axilla.

(Admin, R. at 29.) The report was based on a physical examina-

tion conducted before plaintiff terminated her employment.

Although it states that plaintiff said that it was hard for her

*°As explained more fully in an order entered on September

5, 1996, Dr. Romano's revised report of November 9, 1994, differs

from the July 28, 1994, report, which was generated in connection

with plaintiff's breast implant litigation, only in that it

deletes all references to plaintiff's breast implants in 1984 and

their removal in 1986 and to the opinion that plaintiff was

suffering from a “compensable condition." (Order of September 5,

1996, Docket Entry 206, at 3-4)

38c

to perform her activities of daily living and that she is tired

at the end of her work day, it contains no mention of a dimin-

ished ability to work, is not based on any of the kind of materi-

als Dr. Ramirez described as constituting objective medical

evidence, and makes no prognosis. Moreover, notwithstanding

plaintiffs suggestion to the contrary, it is seen that Dr.

Romano does not diagnose chronic fatigue syndrome, but states

only that plaintiff had suffered from "chronic fatigue" for more

than six months ?! (See id. at 28-29.) Consequently, Dr.

Romano's revised report of November 9, 1994, does not demonstrate

an abuse of discretion in the decision to deny plaintiff's

application for benefits.

The Ashton Care Center medical reports (Admin. R. at

21-25), the progress notes from August 17, 1993, through Septem-

ber 19, 1994, (Admin. R. at 9-17), and the laboratory report of

December 17, 1993, (Admin. R. at 7-8), are not readily

2145 explained by Dr. Ramirez, supra, page 29, note 16,

chronic fatigue of more than six months' duration and severe

enough to impair a person 50% in his daily activity are major

criteria used by the CDC for diagnosing chronic fatigue syndrome

if the fatigue cannot be explained. However, before a diagnosis

of chronic fatigue syndrome is warranted, there must also be a

presence of at least six minor criteria symptoms. (Id.) Dr.

Romano's report does not suffice to demonstrate that plaintiff

satisfied the major criteria for chronic fatigue syndrome inas-

much as it does not indicate that her fatigue was severe enough

to impair 50% of her daily activity and it does not undertake to

rule out other explanations for the fatigue, such as her "docu-

mented sleep disturbances.” Further, plaintiff points to no

finding of Dr, Romano which would show a minimum of six minor

criteria symptoms.

39¢

decipherable. However, they do not appear to contain any infer-

mation about plaintiff's ability to perform work and plaintiff

does not point to any portion of them as showing that she was

incapable of working just prior to her termination. The court

thus concludes that they do not support a finding of an abuse of

discretion in the Board's decision.

Dr. Holland's medical evaluation of October 19, 1994,

based on his physical examination of plaintiff after she ceased

working, but before she was terminated from the payroll, contains

the diagnoses of "[pJossible ea:ly endometriosis - possible

peptic ulcer disease - recurrent herpetic lesion buttock - asthma

medial epicondylitis right elbow - hypertension - history of ex

suggesting depression.” (Admin. R. at 4.) The report states

that the prognosis is "[p]robably good with appropriate manage-

ment.” (/d. at 3.)

At the bottom of Dr. Holland's medical evaluation

report is a portion to be completed by DuPont's medical division

as its evaluation of the report and any attachments. It is

completed and signed by Dr. Ramirez. It notes his conclusion

that plaintiffs medical condition is not such that she "is not

capable of pursuing any significant gainful employment" and not

such that she "may require special job consideration." (/d.) In

addition, it states his opinion that her prognosis for life,

40c

prognosis for recovery, prognosis for improvement, and prognosis

for reliably performing activities of usual work are "[g]ood."

As the above-summarized medical records demonstrate,

the Board was not presented with any medical information

evaluating plaintiff's ability to work other than the report from

Dr. Holland which indicated that her prognosis was "[p]robably

good with appropriate management." There being no medical

evidence or opinion tending to show an inability on plaintiff's

part to perform any of her duties as a shipping clerk or any

other job immediately prior to her termination date, there is no

basis for finding an abuse of discretion in the Board's initial

December 5, 1994, decision to deny her application for benefits.

Plaintiff thereafter submitted additional information.

A November I, 1994, chest x-ray requested by Dr. Rasmussen

because of plaintiff's asthma and shortness of breath gave the

impressions: "1) No acute cardiopulmonary changes, 2) Accentu-

ated bronchovascular markings." (Admin. R. at 46,) Laboratory

analyses of blood and urine done that same date at the Southern

West Virginia Clinic show "out of range” readings in only three

of fourteen aspects of the urinalysis test.?* (Admin. R. at 47-

48.) The balance of the newly presented information consists of

The degree of variation is described as "SMALL" and "MOD"

for two analyses. (Admin. R. at 47.) The third factor, that

being for ‘WBC," is listed solely as "8-12" out of range. (Id.)

4\c

a progress note from Michael Kostenko, D.O., based on a

February 9, 1995, examination of plaintiff, with an attached

report of "NUTRIENT MINERAL LEVELS" and "TOXIC MINERALLEV ELS"

from a March 6, 1995, sample. (Admin. H. at 42-44.) The prog-

ress note contains a list of "[b]asic assessment to points

without benefit of having chemicals in contact and more awareness

industrial chemicals exposures, etc." (Admin. R. at 42) (as in

Original), which list of "[b]asic assessment to points" consists

of "Chronic Fatigue Fibromyalgia,” "Immune System Distraction,”

"Probable breakdown of immune relationship," "History of chole-

cystectomy,” "Chronic dyspepsia," "Evolving Sinusitis," "Herpes

Zoster,” and "Sick Building Syndrome." (/d. at 42-43.)

While it may be conceded that the new submissions

contain objective medical findings such as x-ray and laboratory

reports, they contain no definitive diagnoses, no information

about plaintiff's ability to perform work, and no opinions on the

anticipated duration of any medical problems. In sum, nothing in

the new information tends to show that plaintiff was permanently

disabled immediately prior to her termination. The Board did not.

abuse its discretion in denying her appeal.

In her October 28, 1996, request for reconsideration,

plaintiff submitted methacholine challenge testing results from

Dr. Rasmussen and medical reports from Dr. Cheney and Dr. Pres-

ton, who practices clinical psychophysiology. The methacholine

42c

challenge report, dated June 25, 1996, states that the "findings

are consistent with bronchial asthma," (Admin. R. at 92), and a

pulmonary function report of that same date gives a "computerized

interpretation” of "[mJild obstructive disease,” (Admin. R. at

93). A July 23, 1996, letter from Dr. Cheney states that plain-

tiff's "local physician has diagnosed her with Chronic Fatigue

Syndrome," and that she will undergo the "usual" testing for that

condition.” (Admin. R. at 58-59.) A later report from Dr.

Cheney, dated September 19, 1996, summarizes laboratory results

found to be "quite consistent with CFS and may be the primary

reason for disability." (Admin. R. at 63.) It also states:

"FINAL ASSESSMENT: Chronic Fatigue Syndrome with evidence of

immune activation which is somewhat suggestive of a possible

active viral infection, with evidence of a number of metabolic

defects consistent with this disorder, and with evidence of HP

axis suppression on exercise testing.” (/d.) Nevertheless,

inasmuch as the September 19, 1996, report also states that

plaintiff related in a telephone consultation "that she has been

doing better since she was seen in July, particularly with

Based on the court's review of the administrative record,

Dr. Cheney's reference to a local physician's diagnosis of

chronic fatigue syndrome must be either to the report of Dr.

Romano, whose offices are in Wheeling, West Virginia, dated July

28, 1994, and revised on November 9, 1994, which states that

plaintiff suffered from "chronic fatigue,” see, supra, pages 36-

37 and note 20, or to the statement of Dr. Hostenko of Beckley,

West Virginia, that plaintiff apparently has a fibromyalgia

chronic fatigue syndrome, see, supra, page 41.

43c

fatigue and energy,” it cannot be said that it shows a permanent

and total disability and inasmuch as it only assesses plaintiff's

condition at a time that is two years after her last day at work,

it cannct be said that it is evidence that plaintiff was disabled

immediately prior to her termination from employment. Similarly,

the October 9, 1996, report from Dr. Preston, which states that

based on plaintiff's "computerized EEG (brain map),” her "topo-

graphic brain mapping results” resemble that of patients suffer-

ing from chronic fatigue and immune dysfunction syndrome and that

the abnormalities in her EEG “are most like people” who have that

syndrome sheds little, if any, light on whether plaintiff was

disabled

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.