Alfred M. Skaggs v. Elk Run Coal Company, Inc., a West Virginia corporation, No. 23178 (W. Va. July 11, 1996) (Cleckley, J.):
Reversing the denial of a new trial in an action instituted after the plaintiff was terminated for unsatisfactory work performance, but where plaintiff complained that the employer failed to reasonably accommodate his physical disabilities, the Court held (1) "reasonable accommodation" under the Human Rights Act means reasonable modifications or adjustments that are designed, under the circumstances presented, to enable an individual with a disability to be hired or remain in his or her current position despite such disability; (2) an employer is not required to make the precise accommodation requested by a disabled applicant or employee as long as a reasonable alternative is offered that would permit the applicant or employee to perform the essential functions of the position; (3) in order to establish a prima facie case of handicap discrimination under the Human Rights Act, the plaintiff must show that (i) he or she is a qualified person with a disability, (ii) the employer was aware of his or her disability, (iii) an accommodation was necessary in order for the plaintiff to perform the essential functions of the position involved, (iv) a reasonable accommodation existed that would have permitted the plaintiff to perform the essential functions of the position involved, (v) the employer knew or should have known of the plaintiff's need for accommodation and of the existence of such accommodation, and (vi) the employer refused or failed to provide the reasonable accommodation; (4) an employer may defend a handicap discrimination claim by disputing any of the essential elements of the plaintiff's case or by demonstrating that the accommodation at issue would impose an "undue hardship;" (5) because "undue hardship" is an affirmative defense, the employer bears the burden of persuasion; (6) even if an employee cannot be accommodated to his or her current position, the employer must inform the employee of potential employment opportunities within the company and, if requested, consider transferring the employee to the open position, overruling Coffman v. West Virginia Board of Regents, 182 W. Va. 73, 386 S.E.2d 1 (1988); (7) in a disparate treatment case, rejecting as pretextual an employer's assertion of a legitimate, nondiscriminatory reason for its action, together with the plaintiff's satisfactory proof of a prima facie case by a preponderance of the evidence, is sufficient to support a factual finding of unlawful discrimination; (8) in a disparate treatment case, unlawful discrimination is proven if the plaintiff establishes, by a preponderance of the evidence, that forbidden intent was a "motivating factor" in an adverse employment decision, and liability will be imposed unless the employer can demonstrate, by a preponderance of the evidence, that the same action would have been taken in the absence of unlawful motive; (9) in a disparate treatment case, a plaintiff can raise a triable issue of discriminatory animus through either direct or circumstantial evidence; and (10) instructions in an employment discrimination case should inform the jury that (i) the plaintiff bears the burden of proving by a preponderance of the evidence that legally-prohibited bias was a motivating factor in the adverse employment decision, (ii) if the plaintiff carries this burden, the jury should find for the plaintiff unless the defendant can prove by a preponderance of the evidence that it would have made the employment decision even in the absence of the impermissible motive, and (iii) in determining both causation and intent, the jury should take into account any inferences raised by the plaintiff's membership in a protected class, the plaintiff's qualifications, the defendant's alleged nondiscriminatory reason for its action, and all other relevant evidence bearing on the issues presented.
David J. Hosaflook and Kathryn Hosaflook v. Consolidation Coal Company, Ronald Stovash and Thomas Simpson, No. 23045 (W. Va. July 11, 1996) (Albright, J.):
Affirming summary judgment against an employee who filed suit for handicap discrimination after he was laid off as part of a company reduction-in-force while on disability leave for retinitis pigmentosa, the Court held that disability leave is not a "job" within the meaning of 6B W. Va. C.S.R. § 77-1-4.2 and the receipt of disability benefits does not constitute the "performance of services" under the Human Rights Act.
Sarah Martin v. Randolph County Board of Education, No. 22680 (W. Va. November 17, 1995) (Cleckley, J.):195 W.Va. 297, 465 S.E.2d 399:
Where central office employee complained that her demotion pursuant to a reduction-in-force was motivated by gender, the Court reversed for further development, holding that (1) unlawful discrimination in the form of compensation disparity based on race, gender, or other protected characteristic, is a "continuing violation" that tolls the running of any period of limitations until such compensation disparity no longer occurred; (2) a plaintiff can establish a prima facie case of compensation discrimination if he or she proves that (i) he or she is a member of a protected class and (ii) that he or she receives lower compensation than a coworker who is not a member of a protected class and who is similarly situated to the plaintiff in terms of experience and job duties; (3) an employer may rebut a prima facie case of compensation discrimination by showing a legitimate, nondiscriminatory reason for the disparity; (4) although an unreasonable justification for compensation disparity may tend to show that such justification is pretextual, arbitrary differences are not actionable unless based upon an unlawfully discriminatory motivation; (5) W. Va. Code § 18-29-2 allows an education employee to contest misclassification, but any monetary relief may extend retroactively only to the fifteen days preceding the grievance; and (6) although due deference is given to agency decisions within the scope of its jurisdiction, such deference does not extend to ad hoc representations, such as litigation arguments.
Irene Hanlon v. Terry Chambers, individually, and dba Chambers Chiropractic Offices, C.C., No. 22595 (W. Va. October 26, 1995) (Cleckley, J.): 195 W.Va. 99, 464 S.E.2d 741:
Reversing an award of summary judgment in a sexual harassment case brought by a female supervisory employee arising from complaints of harassment by a male subordinate, the Court held (1) once a prima facie case of employment discrimination has been established, evidence of nondiscriminatory motivation will not be enough to warrant summary judgment unless no rational trier of fact could reject the purported reason for the employer's action; (2) in order to determine whether a prima facie case of employment discrimination has been established for purposes of summary judgment, the appropriate test is whether a rational trier of fact could infer discriminatory motive, not whether the trial court would infer discriminatory motive where it the trier of fact; (3) to establish a claim for sexual harassment under W. Va. Code § 5-11-1, et seq., based upon a hostile or abusive work environment, the employee must establish (i) unwelcome conduct, (ii) of a sexual nature, (iii) sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment, and (iv) imputable on some factual basis to the employer; (4) a supervisor is nevertheless an "employee" under W. Va. Code § 5-11-3(e) if he or she is not a partner, owner, or part-owner; (5) an employee may state a claim for hostile work environment based upon sexual harassment if unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature has the purpose or effect of unreasonably interfering with an individual's job performance or creates an intimidating, hostile, or offensive work environment; (6) a supervisor may have a cause of action for hostile work environment based upon the conduct of subordinates if the employer knew or should have known about the offending conduct, but failed to take prompt and effective corrective measures; and (7) W. Va. Code § 5-11-9(7)(C) prohibits an employer from retaliating against any individual for expressing opposition to a practice that he or she reasonably believes violates the provisions of the Human Rights Act.
Melvin Holstein v. Norandex, Inc., and Michael Counts, No. 22518 (W. Va. July 17, 1995) (Fox, J.): 194 W.Va. 727, 461 S.E.2d 473:
Reversing the dismissal of a supervisor from an age discrimination case, the Court held (1) the term "person" as used in the Human Rights Act includes both employers and employees and (2) a cause of action may be maintained under the Human Rights Act against a supervisor or coworker if such person aided or abetted the employer in unlawful discrimination.
Mary Jane Barefoot, Administratrix of the Estate of Grace Lambert v. Sundale Nursing Home, Jerry Bair, and Nancy Edgell, No. 22165 (W. Va. April 13, 1995) (on rehearing) (Cleckley, J.): 193 W.Va. 475, 457 S.E.2d 152:
In reversing an earlier per curiam decision upon a rehearing, the Court affirmed a jury verdict in an employment discrimination case involving the discharge of a nursing home worker for alleged patient abuse, holding that (1) the "but for" test for discriminatory motive, articulated in Conaway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986), is merely a threshold inquiry, requiring only that a plaintiff show an inference of discrimination; (2) unless a comparison employee and the plaintiff share the same characteristics, the comparison employee cannot be classified as a member of the plaintiff's class for purposes of rebutting prima facie evidence of disparate treatment; (3) after an employer has articulated a nondiscriminatory reason for its employment decision, a plaintiff need not show more than the implausibility of such reason in order to defeat a motion for directed verdict; (4) a jury may reject an employer's nondiscriminatory reason for an employment decision and find such reason to be a pretext for unlawful discrimination; (5) unless mandated by statute, a trial court has considerable discretion in determining whether to give special verdicts and interrogatories to a jury; (6) to the extent that Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981 (1984), might be interpreted to hold that failure to give special verdicts and interrogatories to a jury automatically constitutes reversible error, it is overruled; and (7) although special verdict forms are preferable in a multiple theory employment discrimination case, in order to remove all doubt as to the jury's consideration of any alternative basis of liability that does not have adequate evidentiary support, the failure to submit such forms to the jury does not provide an independent basis for reversing an otherwise valid judgment.
Barbara L. Vest v. Board of Education of the County of Nicholas, No. 22547 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 222, 455 S.E.2d 781:
In a certified question proceeding involving the authority of the education and state employees grievance board to hear discrimination claims and the preclusive effect of any board decision on such claims, the Court held that (1) although the grievance board does not have authority to determine liability under the Human Rights Act, it has authority to grant relief to employees for "discrimination," "favoritism," and "harassment," as those terms are defined in W. Va. Code § 18-29-2, in a manner consistent with the provisions of the Human Rights Act; (2) except where provided by statute, administrative adjudication does not have preclusive effect unless the decision was rendered pursuant to specific statutory authority, the agency's procedures were substantially similar to court procedures, and the issues litigated were identical; and (3) a civil action filed pursuant to the Human Rights Act is not precluded by a prior decision of the education and state employees grievance board arising from the same facts and circumstances.
Lylloth G. Woodall v. International Brotherhood of Electrical Workers, Local 596, No. 22186 (W.
Va. December 16, 1994) (McHugh, J.): 192 W.Va. 673, 453 S.E.2d 656:
Affirming a JNOV in an age and gender discrimination suit instituted against a labor union with fewer than twelve office workers, the Court held (1) a labor organization, in its capacity as an employer, is not liable for otherwise unlawful discrimination, if it does not meet the definition of "employer" in W. Va. Code § 5-11-3(d) and (2) officers and directors of a labor organization are not "employees" for jurisdictional purposes under W. Va. Code § 5-11-3(e) unless they have additional duties that qualify them as employees outside of their duties as officers and directors.
Phyllis Gibson, Barbara Ellis Vance, Marjorie Elliott, Theresa Chinn, and Ruth Waters v. West Virginia Department of Health and Human Resources, Division of Health, No. 21919 (W. Va. December 8, 1994) (Workman, J.): 192 W.Va. 372, 452 S.E.2d 463:
Rejecting a challenge to a reduction-in-force plan which gave preferential treatment to male mental health services workers partially on the ground that a significant number of patients were males, the Court held that implementation of a bona fide occupational qualification, when not challenged, permits retention of less senior employees in connection with a reduction-in-force notwithstanding the existence of a statutory seniority system that would otherwise prevent the layoff of more senior employees.
Charles P. Wilfong v. Chenoweth Ford, Inc., No. 22362 (W. Va. November 18, 1994) (Workman, J.): 192 W.Va. 207, 451 S.E.2d 773:
Where employee instituted age discrimination suit following EEOC issuance of no probable cause letter, the Court held (1) a "no reasonable cause" determination by the EEOC is not an adjudication on the merits and does not bar a subsequent civil action and (2) the two-year statute of limitations applies with regard to such subsequent action.
West Virginia University/West Virginia Board of Regents v. Robert L. Decker and the Human Rights Commission, No. 22100 (W. Va. July 8, 1994) (Neely, J.): 191 W.Va. 567, 447 S.E.2d 259:
Reversing an award in an age discrimination case involving a college professor, the Court held (1) "disparate impact" causes of action may exist under W. Va. Code §§ 5-11-1, et seq., in age discrimination cases; (2) in proving a prima facie case of "disparate impact" under the human rights act, the complainant demonstrate that the employer has a particular employment practice or policy and that such practice or policy has a disparate impact on a protected class; (3) once a complainant establishes a prima facie case, the burden then shifts to the employer to demonstrate that the practice or policy is "job-related" or "consistent with business necessity;" (4) once the employer demonstrates "job-relatedness" or "business necessity," the complainant must demonstrate that neutral alternatives exist which the employer refuses to adopt or, in other words, that the practice or policy is a "pretext" for discrimination; and (5) a university does not engage in age discrimination when it compensates new faculty, regardless of age, based upon fair market value generally prevailing for entry-level faculty in their specific disciplines.
Belinda S. Myers and Sandra F. Tennant v. Morgantown Health Care Corp., a West Virginia corporation, No. 21360 (W. Va. July 15, 1993) (Neely, J.): 189 W.Va. 647, 434 S.E.2d 7:
Reversing a judgment for the employees in a workers' compensation discrimination case, the Court held that the trial court erred in instructing the jury pursuant to a statute not in effect at the time of their discharge.
Lila Pearl Jones v. Glenville State College, No. 21416 (W. Va. June 11, 1993) (Workman, C.J.): 189 W.Va. 546, 433 S.E.2d 49:
Rejecting an employer's contention that the finding of "no probable cause" by the Human Rights Commission precluded a subsequent age discrimination suit, the Court held (1) a "no probable cause" decision by the Human Right Commission is not an adjudication on the merits; (2) although the doctrine of res judicata would
apply to decision of the Human Rights Commission rendered after conducting a hearing on the merits, it is not applicable to a "no probable cause" finding; and (3) the procedures of the Human Rights Commission are no exclusive when (a) the complaint is dismissed within 180 days of filing for any reason other than a final decision of the merits, (b) no public hearing or conciliation agreement occurs within 180 days of filing, or (c) no final decision on the merits or conciliation agreement occurs within 1 year of filing.
Morris Memorial Convalescent Nursing Home, Inc. v. Human Rights Commission and Viola Mayes, No. 21456 (W. Va. May 21, 1993) (McHugh, J.): 189 W.Va. 314, 431 S.E.2d 353:
Affirming a $10,000 award to a hearing-impaired worker who complained that her employer failed to reasonably accommodate her disability prior to terminating her employment, the Court held that in order to establish a case of discriminatory discharge, a handicapped complainant must prove as a prima facie case that (1) s(he) meets the statutory definition of "handicap," (2) s(he) meets the statutory definition of "qualified," and (3) s(he) was terminated from employment; that the burden then shifts to the employer to present a legitimate nondiscriminatory reason for the discharge; and that the burden then shifts to the employee to prove by a preponderance of the evidence that the employer's stated reason was not legitimate, but pretextual.
Marilyn Rae Harmon v. James Higgins, dba Capital City Beauty College, aka Weirton Beauty College, No. 20478 (W. Va. December 16, 1992) (Brotherton, J.): 188 W.Va. 709, 426 S.E.2d 344:
Reversing a $17,000 verdict in a sexual harassment case brought less than two years following the plaintiff's resignation, but more than two years after the last act of sexual harassment, the Court determined the action was barred by the statute of limitations, holding that in cases involving allegations of discharge from employment related to claims of sexual harassment or discrimination, a two-year statute of limitations for personal injuries commences on the date of the last offensive contact, or threat of offensive contact, which precipitated the termination of employment.
Betty L. McCourt and Bernard L. McCourt v. Oneida Coal Company, Inc., a West Virginia corporation, No. 20992 (W. Va. December 16, 1992) (Brotherton, J.): 188 W.Va. 647, 425 S.E.2d 602:
Holding untimely a gender discrimination complaint filed more than two years after the plaintiff was informed that she would not be rehired, the Court held that the statute of limitations for an action under the Human Rights Act begins running on the date when the employer unequivocally notifies the employee of the allegedly discriminatory decision.
Dallas Stevenson Dobson v. Eastern Associated Coal Corporation, a corporation, West Virginia division, No. 20482 (W. Va. July 23, 1992) (McHugh, C.J.): 188 W.Va. 17, 422 S.E.2d 494:
Affirming a $419,887.05 verdict in an age discrimination case, the Court held (1) disparate impact in an employment discrimination case is ordinarily proved by statistics; (2) statistical evidence may be introduced by a plaintiff in proving an age discrimination case; (3) it is not an abuse of discretion, under R. Evi. 702, for a trial court to allow the use of statistical evidence as long as the opposing party has an opportunity to rebut such evidence; (4) where a plaintiff files a discrimination suit in circuit court, rather than filing a complaint with the Human Rights Commission, the plaintiff may recover damages sounding in tort; and, (5) an offer of reinstatement subject to physical examination in a discrimination case is not an "unconditional" offer of reinstatement.
West Virginia Human Rights Commission v. Charles Moore, Executive Officer, National Bank of Commerce, No. 20199 (W. Va. November 21, 1991) (McHugh, J.): 186 W.Va. 183, 411 S.E.2d 702:
Where employer charged with race discrimination sought to quash subpoena based upon a release signed by the complainant in exchange for severance pay, the Court held that a subpoena duces tecum issued by the Human Rights Commission is enforceable even where the employer has obtained a release of all claims arising from the discharge.
Franklin Clay Coffman v. U.S. Steel Mining Company, Inc., and the Coal Mine Safety Board of Appeals, No. 19512 (W. Va. July 9, 1991) (Workman, J.): 185 W.Va. 388, 407 S.E.2d 392:
Where a mine foreman verbally abused a miner who complained about an alleged safety violation, the Court held that aggravated verbal abuse in response to an employee's initiation of a safety grievance, which could discourage other miners from filing safety grievances, constitutes discrimination within the meaning of W. Va. Code § 22A-1A-20.
FMC Corporation v. West Virginia Human Rights Commission and Teresa A. Frymier, No. 19555 (W. Va. March 15, 1991) (Neely, J): 184 W.Va. 712, 403 S.E.2d 729:
Affirming a circuit court's reversal of a Human Rights Commission decision to reduce to a 30-day suspension the termination of a female employee who, along with other male employees, left her work area for an extended period of time without permission, but who, unlike her male coworkers, lied to her supervisor regarding her absence, and who had been punished in the past for other misconduct, the Court held that the Human Rights Commission has no authority to moderate disciplinary action taken by an employer.
Timothy Powell v. Wyoming Cablevision, Inc., No. 19491 (W. Va. February 13, 1991) (Miller, C.J.): 184 W.Va. 695, 403 S.E.2d 717:
Affirming a retaliatory discharge award of $12,900 to a worker who was terminated upon his attempted return from an injury for which he received worker's compensation benefits, the Court held that, in order to establish a prima facie case of discrimination under W. Va. Code § 23-5A-1, an employee must demonstrate that (1) a work-related injury was sustained; (2) workers' compensation proceedings were instituted; and (3) the filing of a workers' compensation claim was a "significant factor" in the employer's decision to discharge or otherwise discriminate against the employee. As with other employment discrimination actions, the Court further held that once a prima facie case is established, the burden then shifts to the employer to prove a legitimate, nondiscriminatory reason for the discharge, with an opportunity for the employee, in rebuttal, to offer evidence that the employer's proffered reason for the discharge is merely a pretext for the discriminatory act.
Harvey O'Dell v. Jennmar Corporation of West Virginia, Inc., No. 19426 (W. Va. December 13, 1990) (Workman, J.): 814 W.Va. 280, 400 S.E.2d 288:
Affirming an award of summary judgment to an employer who unsuccessfully attempted to accommodate an employee's alleged physical impairment, the Court rejected the employee's argument that the issuance of a 15 percent PPD award for his back injury was alone sufficient to support his contention that he was "handicapped" within the meaning of W. Va. Code § 5-911-3(t) (1).
Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (W. Va. December 6, 1990) (Miller, J.): 184 W.Va. 237, 400 S.E.2d 245:
With respect to complaints filed under the Human Rights Act, the Court held that its procedural provisions should be liberally construed consistent with the view that administrative proceedings should not be hindered by undue technicalities. With respect to mitigation of damages, the Court held that the defendant bears the burden of proving lack of diligence by demonstrating (1) substantially equivalent positions were available, and (2) the complainant failed to exercise reasonable diligence in seeking such positions. With respect to vicarious liability in employment discrimination cases, the Court held that (1) if a discriminatory act is committed by a supervisory employee acting within his or her scope of employment, an employer may be liable, even in the absence of a showing that the employer knew or reasonably should have known of the discriminatory act, but that (2) if a discriminatory act is committed by a nonsupervisory employee, an employer may be liable only if it knew or reasonable should have known of the act but took no corrective measure, or expressly or impliedly authorized or ratified the act. Finally, the Court held that a governmental agency may be liable for a discriminatory act committed by a final policymaker.
Bobby J. Shell v. Metropolitan Life Insurance Company, Frank T. Senkoski, and John W. Thomas, No. 19427 (W. Va. July 12, 1990) (Neely, C.J.): 183 W.Va. 407, 396 S.E.2d 174:
In affirming a trial court's dismissal of an age discrimination case brought by an insurance agent who was allegedly terminated for poor sales, the Court held that: (1) the agent was an at-will employee who could not assert the existence of an implied contract of employment; (2) the issuance of an amended agents' manual did not constitute a new employment contract; (3) the age discrimination claim failed under the third prong of the test for a prima facie discrimination case set forth in Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986), because the agent failed "to show some evidence which would sufficiently link the employer's decision and the plaintiff's status as a member of a protected class so as to give rise to an inference that the employment decision was based on an illegal discriminatory criterion;" and (4) a claim for retaliatory discharge did not arise based upon allegations that the agent's termination violated public policies promoting the protection of retirement income and prohibiting deceptive practices in the insurance industry.
John T. Copley v. NCR Corporation, Maria McCarthy, Donald W. Hodgson and Victor Cononi, G.I. Williamson, George J. Carpini, C.J. Steinmetz, Paul W. Lappetito, Manuel Garcia, Elton White, W.F. Buster, D.J. Herman and C.E. Exley, Jr., No. 19204 (W. Va. June 12, 1990) (Miller, J.): 183 W.Va. 152, 394 S.E.2d 751:
In reversing an order enforcing a mandatory arbitration provision of an employment contract, the Court held that an arbitration clause in an employment contract cannot defeat a discrimination action filed pursuant to W. Va. Code § 5-11-13(b).
Benjamin R. v. Orkin Exterminating Company, No. 19277 (W. Va. March 8, 1990) (McHugh, J.): 182 W.Va. 615, 390 S.E.2d 814:
In a certified question proceeding from the United States District Court for the Northern District of West Virginia, the Court held that the term "handicap" used in our Human Rights Act includes any stage of infection with the human immunodeficiency virus ("HIV"), clinical precursor to acquired immune deficiency syndrome ("AIDS"), including asymptomatic test positive for the antibodies to such virus.
Mary Beth Perilli v. The Board of Education of Monongalia County, No. 18913 (W. Va. November 29, 1989) (Neely, J.): 182 W.Va. 261, 387 S.E.2d 315:
Where plaintiff alleged sex discrimination in the filling of two vacancies in assistant principalships, the Court held that a plaintiff in a sex discrimination case, which is akin to a tort action, has a right to a jury trial of factual claims that would entitle the plaintiff to damages for personal injury. Where plaintiff had greater seniority than two successful applicants, and similar qualifications, the Court held that, although relevant statutes do not mandate that the most senior teachers be employed as administrators, the failure to select the most senior applicant for a position can be a relevant piece of evidence in determining whether unlawful discrimination occurred.