McGraw, J., dissenting:
What the plaintiffs allege in this case is that a company decided it wanted to
reduce its long-term obligations by shedding many of its long-term employees. According
to the plaintiffs below, when the plant was still operating under 3M, about 17 employees
were black, and about 40 were women, and many were over age 40. The plaintiffs claim that
after the plant was “spun off” to Imation and then closed and reopened as Spectratech,
approximately three women and zero black people worked there, and the percentage of older
workers had dropped significantly. Had 3M simply announced it was laying off most
women, most older men, and all blacks, it would have been met with outrage. But now that
this result has been reached via different methods, outrage is in short supply.
The majority cites several new syllabus points from the Rezulin case, including
those on commonality and typicality, but then finds that the plaintiffs in this case do not meet
those tests. I disagree. As quoted by the majority: “A common nucleus of operative fact is
usually enough to satisfy the commonality requirement. The threshold of 'commonality' is
not high, and requires only that the resolution of common questions affect all or a substantial
number of class members.” Syl. pt. 11, in part, In Re: West Virginia Rezulin Litigation, ___
W. Va. ___, ___ S.E.2d ___ (No. 30958, ____, 2003). Here, the entire potential class
worked at the plant, and all have ended up without their jobs as a result of the company's
efforts to reduce its workforce. I believe that the common question of whether or not the
employers' activity violated our Human Rights Act is sufficient to meet this threshold.
The majority then quotes the Rezulin again, noting that “Rule 23(a)(3) only
requires that the class representatives' claims be typical of the other class members' claims,
not that the claims be identical. When the claim arises out of the same legal or remedial
theory, the presence of factual variations is normally not sufficient to preclude class action
treatment.” Id. at syl. pt. 12, in part. While there are factual variations in this case relating
to what should have protected the plaintiffs (i.e., race, sex, or age), there is no variation in
the damages suffered by the plaintiffs; all are without their former jobs. Furthermore, all of
their claims are based on the same remedial theory _ that an employer must comply with our
Human Rights Act when terminating employees.
This Court has explained before that, though a given employee may not be member of a protected class, he or she may still join a lawsuit filed by fellow workers who are members of a protected class and who claim discrimination under our Human Rights Act. That is to say, that if an employer fires a few young male employees to make it more difficult to prove the employer is in fact firing all of its older male employees in violation of the Human Rights Act, those younger employees are still victims of discrimination:
Collateral victims of discrimination are entitled to relief under
West Virginia Code § 5-11-9(7) (1999) upon establishing that
the employer has engaged in an unlawful discriminatory
practice, such as activities designed to cause economic loss.
Such collateral victims are properly included as Plaintiffs in a
cause of action initiated by other victims of discrimination under
the West Virginia Human Rights Act.
Syl. pt. 10, Bailey v. Norfolk & Western Ry. Co., 206 W. Va. 654, 527 S.E.2d 516 (1999).
As in Bailey, the plaintiffs in this case are claiming that the employer attempted to mask
illegal, discriminatory deeds with apparently legal and non-discriminatory actions. What
plaintiffs claim may or may not be true - that is a question for the finder of fact. However,
they do not have to prove the merits of their claim to have their class certified.
I believe the plaintiffs have demonstrated sufficient commonality and typicality to have their class certified by the lower court. Therefore, I must respectfully dissent to the majority opinion.