Kuhn v. Reagent Chemical & Research, Inc., 3:19-cv-00619

Jack Kuhn worked for Reagent Chemical since 1977 and was terminated in May 2019 after the company closed an on‑site rail maintenance facility and conducted a reduction‑in‑force (RIF).
Senior VP Steve Bendig emailed recommending elimination of one general labor position and advised “accelerating the retirement of Jack Kuhn,” citing the facility’s needs, employee skill sets, and “prospective 2020 retirement schedule.”
Kuhn was 68 at termination and was the oldest employee considered for the RIF; two retained employees had the same listed skill set and were substantially younger (one 23 years younger).
Reagent offered a $10,000 severance (counsel later stated Kuhn was outright terminated) and defended the decision as a legitimate RIF and, in reply, also cited Kuhn’s alleged poor performance/attitude.
Kuhn sued under the West Virginia Human Rights Act (age discrimination). The district court denied Reagent’s motion for summary judgment, finding triable issues on both pretext and mixed‑motive theories.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prima facie "but‑for" element of age discrimination	Bendig email shows age/retirement consideration and Kuhn was oldest, creating an inference of age bias	No inference; termination was a nondiscriminatory RIF	Court: de minimis burden met—email and age of Kuhn create an inference of discrimination
Legitimate nondiscriminatory reason / pretext	Email plus retention of substantially younger employee with similar skills and comparable evaluations undermine RIF/performance reasons	RIF from rail‑closure was legitimate; performance/attitude were nondiscriminatory reasons	Court: Reagent proffered legitimate reasons, but plaintiff produced sufficient circumstantial evidence of pretext to survive summary judgment
Mixed‑motive claim (age as a substantial factor)	Bendig email shows age factored into decision; therefore age may have played a substantial role	Decision driven by business needs; age was not a substantial factor	Court: evidence permits a reasonable jury to find age was a substantial factor; mixed‑motive claim survives
Relevance of retained employees being over 40	Retention of a substantially younger worker (23‑year difference) is circumstantial evidence of age bias	Retained employees are also >40, so not probative	Court: adopts "substantially younger" rule; 23‑year gap is probative and supports an inference of discrimination

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishes burden‑shifting framework for employment discrimination)
Barefoot v. Sundale Nursing Home, 457 S.E.2d 152 (W. Va. 1995) (WVHRA claims analyzed under McDonnell Douglas framework)
Conaway v. E. Associated Coal Corp., 358 S.E.2d 423 (W. Va. 1986) (elements of a prima facie WVHRA claim)
Mayflower Vehicle Sys., Inc. v. Cheeks, 629 S.E.2d 762 (W. Va. 2006) (pretext and mixed‑motive analysis under WV law)
O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996) ("substantially younger" rule for ADEA claims)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard regarding weighing evidence)
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (nonmoving party’s burden to show genuine factual dispute at summary judgment)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (drawing inferences in favor of nonmoving party at summary judgment)
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) (distinguishing termination to prevent pension vesting from age discrimination)
Kanawha Valley Reg'l Transp. Auth. v. W. Va. Hum. Rts. Comm'n, 383 S.E.2d 857 (W. Va. 1989) (retention of younger employee can be circumstantial evidence of age discrimination)