UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1786

JOHN KEATON,

Plaintiff - Appellant,

versus

J.F. ALLEN COMPANY, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the Northern

District of West Virginia, at Elkins. Robert E. Maxwell, Senior

District Judge. (CA-03-16)

Argued: May 24, 2005 Decided: June 23, 2005

Before WILKINS, Chief Judge, and NIEMEYER and SHEDD, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Frank P. Bush, Jr., Elkins, West Virginia, for Appellant.

Matthew Scott Criswell, KAY, CASTO & CHANEY, Charleston, West

Virginia, for Appellee. ON BRIEF: Constance H. Weber, KAY, CASTO

& CHANEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

John C. Keaton appeals from the summary judgment entered in

favor of his former employer, J.F. Allen Company, Inc. (“J.F.

Allen”). Finding no reversible error, we affirm.

J.F. Allen laid off Keaton, who was then 61 years old, in

September 2001 because of slow business. In November 2001, Keaton

suffered a heart attack and, consequently, began a rehabilitation

regimen. J.F. Allen asked Keaton in February 2002 to return to

work, but he declined because of health problems. In May 2002,

Keaton filed a Report of Occupational Hearing Loss with the West

Virginia Workers’ Compensation Division. In January 2003, Keaton

was awarded social security disability benefits retroactive to the

date of his September 2001 lay-off.

Keaton filed this action against J.F. Allen in West Virginia

state court asserting claims for age discrimination under the Age

Discrimination in Employment Act (“ADEA”) and the West Virginia

Human Rights Act (“WVHRA”); wrongful discharge under W.Va. Code §

23-5A-3, which prohibits an employer from discharging an employee

because the employee is receiving (or is eligible to receive)

temporary disability benefits; and wrongful discharge in violation

of state public policy. Generally, Keaton’s theory of the case is

that J.F. Allen did not lay him off but, instead, terminated him in

order to avoid paying for his health care costs.
3

J.F. Allen removed the case from state court and thereafter

moved for summary judgment on all of Keaton’s claims on numerous

grounds. Among the grounds advanced in support of its motion, J.F.

Allen argued that Keaton’s ADEA claim fails as a matter of law

based on his failure to exhaust administrative remedies, J.A. 19-

20; his age discrimination and public policy claims fail as a

matter of law based on his failure to establish that the stated

reason for the lay-off is pretextual, J.A. 27, 63; and his § 23-5A3 claim fails as a matter of law based on his failure to establish

a prima facie case, J.A. 28-32, 63-65. Without elaboration, the

district court granted the motion “as to all counts in plaintiff’s

Complaint on the grounds aforesaid in said motion, memorandum and

reply brief.” J.A. 81.

On appeal, Keaton argues that he established a prima facie

case of age discrimination and that he should not be estopped from

pursuing his age discrimination and wrongful discharge claims based

on his receipt of social security disability benefits. Keaton also

argues that the ADEA does not preclude him from asserting his

state-law claims and that he was not required to exhaust

administrative remedies before bringing the WVHRA claim. Finally,

Keaton argues (for the first time on appeal) that under 28 U.S.C.

§ 1445(c) the district court lacked jurisdiction over his § 23-5A-3

claim. Keaton does not argue in his appellate brief that he

exhausted the administrative remedies for his ADEA claim, that he
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presented sufficient evidence to establish that J.F. Allen’s stated

reason for the lay-off is pretextual, or that he established a

prima facie case of discrimination under § 23-5A-3. 

Federal Rule of Civil Procedure 56(c) provides that summary

judgment “shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file,

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

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” We review a district court’s

grant of summary judgment de novo, viewing all facts and reasonable

inferences in the light most favorable to the nonmoving party.

Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d 194, 198 (4th

Cir. 2005).

Having carefully reviewed (with the benefit of oral argument)

the parties’ briefs, the joint appendix, and the applicable law, we

find no reversible error in the district court’s grant of summary

judgment in favor of J.F. Allen. At a minimum, we conclude that

Keaton’s ADEA claim fails as a matter of law based on his failure

to exhaust administrative remedies, and his age discrimination and

public policy claims fail as a matter of law based on his failure

to establish that J.F. Allen’s stated reason for the lay-off (i.e.,

slow business) is pretextual. Additionally, we conclude that

Keaton’s § 23-5A-3 claim fails as a matter of law based on his
1We note that because the district court relied on each of

these grounds (among others) in granting summary judgment in favor

of J.F. Allen, Keaton’s failure to address them in his appellate

brief constitutes an independent basis for us to affirm the summary

judgment. See 11126 Baltimore Blvd., Inc. v. Prince George’s

County, Md., 58 F.3d 988, 993 n.7 (4th Cir. 1995) (en banc) (noting

that an issue not addressed in a litigant’s brief is deemed

abandoned).

2

We reject Keaton’s contention that the district court lacked

jurisdiction over his § 23-5A-3 claim. See Wiley v. U.P.S., Inc.,

2001 Westlaw 431478 (4th Cir. 2001) (holding that a party seeking

to invoke § 1445(c) must object to removal within thirty days after

the filing of a notice of removal).

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failure to establish a prima facie case.1

Accordingly, we affirm the judgment of the district court.2

AFFIRMED