Insurance companies have been urging the West Virginia Legislature to pass legislation to overturn the West Virginia Supreme Court’s decision in Michael v. Appalachian Heating, LLC, 701 S.E.2d 116 (June 11, 2010). In Michael, the West Virginia Supreme Court held that the West Virginia Human Rights Act prohibited discrimination by an insurance company in settling claims covered by an insurance policy.
The Michael Decision
Generally, the Human Rights Act prohibits discrimination (1) in the workplace, (2) in places of public accommodation (like hotels, shopping centers), and (3) in connection with transactions involving housing and real estate (like renting apartments and buying houses).
But at issue in Michael was section 5–11-9(7) of the Human Rights Act, which was not limited to those three categories of activity. Here is the relevant language in section 5–11-9(7)(A);
It shall be an unlawful discriminatory practice [based on race, religion, color, national origin, ancestry, sex, age, and disability] …
(7) For any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to:
(A) Engage in  any form of threats or reprisal, or to  engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss or  to aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in this section .…
In subpart (7)(A) above I have bracketed the three specific causes of action (legal theories) which the Supreme Court said are discernible in subpart (7)(A). I have also bolded the second cause of action, which was the key cause of action at issue in the Michael case.
Continue reading Legislative Update: Insurance industry seeks amendment to West Virginia Human Rights Act
Okay, this article has nothing to do with Dr. Laura Schlessinger and her “rant” in which she used the N-word repeatedly on her radio program when responding to an African-American caller. But the ensuing controversy (see articles for and against Dr. Laura), and her decision to end her long-running radio program, highlight the extraordinary significance of the N-word term in American society.
The West Virginia Supreme Court recently dealt with the N-word in a case that highlights the great risks for employers when that word enters the workplace.
In PAR Electrical Contractors, Inc. v. Bevelle , — W. Va. –, — S.E.2d –, 2010 WL 2244096 (June 3, 2010) (per curiam), the West Virginia Supreme Court dealt with a claim of a racially based hostile work environment under the West Virginia Human Rights Act, and concluded that the West Virginia Human Rights Commission was justified in finding for the employee. The decision was unanimous. Click here for the WV Human Rights Commission’s decision which was affirmed by the WV Supreme Court.
A Single Day, With the N-Word Again and Again
PAR Electrical was building “giant towers” for a high voltage electrical transmission line. Richard Wayne Bevelle was hired by PAR Electrical on March 22, 2005, and, after working as a “groundman” assembling the tower bases, was assigned to load helicopters with parts to construct the towers (this helicopter job was described as a “gravy job” by the Human Rights Commission). Mr. Bevelle is African-American.
Continue reading The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!
On October 1, 2009, a jury in Charleston, Kanawha County, West Virginia returned a verdict in an age discrimination case, awarding James Nagy a total of $1,750,450.
James Nagy filed suit in Charleston in March 2008 against West Virginia American Water Company, alleging that he was fired in March 2007 because of his age at 53, after 23 years of employment.
James Nagy was represented by Maria W. Hughes and Stephen Weber at Kay Casto & Chaney PLLC. West Virginia American Water Company was represented by Mychal Schulz at Dinsmore & Shohl LLC.
The case is pending in Circuit Court in Kanawha County, West Virginia, before Judge Jennifer Bailey-Walker.
That $1,750,450 verdict consisted of:
- $150,000 for humiliation,
Award of Attorney’s Fees and Expenses
Under the West Virginia Human Rights Act (which prohibits age and other forms of discrimination in the workplace), Nagy’s counsel filed a motion additionally requesting attorneys’ fees and expenses.
Judge Bailey-Walker awarded the plaintiff total attorney’s fees of $177,772.50, and $8,855.33 in expenses.
The Defendant is in the process of appealing. The issue of attorneys’ fees was resolved by Judge Bailey-Walker on June 8, 2010, so the appeal process is in its early stages as of the date of this article being updated (July 31, 2010). As things develop in the appeal, I will update this article.
July 31, 2010
The West Virginia Supreme Court recently issued an opinion dealing with one of those stereotypically awkward situations, where an employee allegedly stumbles into a room where the boss is having sex with a co-worker. The decision was Roth v. DeFeliceCare, Inc., – W. Va. –, — S.E.2d –, 2010 WL 2346248 (June 8, 2010) (per curiam). It was a 3–2 decision, in which the 3-vote majority consisted of Justices Robin Davis, Margaret Workman, and Thomas McHugh. Justices Menis Ketchum and Brent Benjamin dissented, and Justice Ketchum wrote a dissenting opinion.
The Facts–Sex at Work
These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.
Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.
Ms. Roth Files Suit–Case Dismissed
Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.
Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.
Continue reading Sorry boss, I didn’t know you were having sex in the office!!
On March 17, 2010, a jury in Jackson County in West Virginia awarded Jerold John Rice Jr. roughly $2.1 million in an age discrimination case against The Burke-Parsons-Bowlby Corporation, Stella-Jones US Holdings Corporation, and Stella-Jones, Inc., tried in Judge Thomas C. Evans III’s court.
Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.
Here is a quick run-down of what was awarded in the case:
- Back pay: $142,659 awarded by jury.
- Pre-judgment interest: $11,791.84 from date of termination through trial.
- Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
- Emotional distress: $0.
- Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
- Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
- Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
- Litigation expenses: $20,324.16 awarded by judge.
- Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.
The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.
Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.
Continue reading Jackson County jury awards $2.1 million in age case
10–13-09: The West Virginia Supreme Court addressed the enforceability of employment arbitration agreements in State ex rel. Clites v. Clawges, 224 W. Va. 299, 685 S.E.2d 693 (2009) (opinion at Findlaw’s web site). This Clites decision is discussed in my chart of West Virginia Supreme Court decisions.
Clites Goes To Work For TeleTech And Signs An Arbitration Agreement
The plaintiff, Jill Clites, went to work for TeleTech in October 2004 as a Customer Service Representative. During new employee orientation, Clites met with a human resources representative for about 90 to 120 minutes, during which time Clites reviewed and signed a large number of documents related to the orientation. In the record before the West Virginia Supreme Court, there were disputes over whether individual documents were discussed with Clites and whether she was required to sing all the documents during the orientation session, but it appears that during that session Clites signed an arbitration agreement which TeleTech required of most or all new employees.
Clites remained employed at TeleTech until July 12, 2007, when she was terminated. She then filed suit for sexual harassment and retaliation. Clites alleged she complained about the sexual harassment, that TeleTech failed to take appropriate corrective action, and that TeleTech retaliated against her for the complaint by firing her.
Clites Files Suit In West Virginia Circuit Court
Clites filed suit in West Virginia Circuit Court in Morgantown. TeleTech then invoked the arbitration agreement by filing a motion to dismiss the lawsuit and by filing a separate lawsuit in federal court arguing that Clites waived her rights to a jury trial by signing the arbitration agreement. In essence, TeleTech argued that Clites gave up her rights to file suit and to a jury trial by signing the arbitration agreement, and that her only remedy was to file an arbitration proceeding (with the American Arbitration Association) pursuant to the arbitration agreement.
Continue reading WV Supreme Court Enforces Employment Arbitration Agreement in Clites v. Clawges, 10–13–09
I have prepared a chart containing a summary of West Virginia Supreme Court decisions significantly affecting employment law. The chart starts on January 1, 2009, with decisions issued after that date. The chart contains hyperlinks to the opinions, both on the West Virginia Supreme Court’s web site, and on Findlaw or on Google Scholar. If you click on the photos of each Justice (in the chart, not on the image above), that will take you to the biography page for that Justice on the Supreme Court’s web site. Finally, the chart contains hyperlinks to this blog.
Click the line below to open the chart, which is an Adobe Acrobat PDF:
WV Supreme Court Employment Decisions
(click here to download the free Acrobat Reader, if you don’t already have it installed on your computer).
This chart is copyright protected by Drew M. Capuder and Capuder Fantasia PLLC. You have permission to distribute this chart only if you distribute the chart unedited by anyone other than Drew Capuder. In other words, you may distribute this chart only in its original form as downloaded from Drew Capuder’s Employment Law Blog.
October 25, 2007: In Colgan Air, Inc. v. West Virginia Human Rights Commission, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Virginia Supreme Court addressed claims of harassment (based on religion and national origin) and retaliation under the WV Human Rights Act, W. Va. Code § 5–11-1 et seq.
The plaintiff was a pilot, Rao Zahid Khan, who alleged that his co-workers subjected him to frequent derogatory and insulting comments about his national origin and religion (he was Arabic). The West Virginia Supreme Court ruled that Colgan Air (a) was not liable for harassment because it had policies and procedures prohibiting harassment and took swift and decisive action after learning about the harassment, and (b) was not liable for retaliation because Colgan Air terminated the employee (Mr. Khan) for a legitimate and non-discriminatory reason–he failed to pass a mandatory FAA proficiency test for pilots.
Continue reading WV Supreme Court rules that employer’s policy and prompt action protected it against liability; Colgan Air v WV HRC; 10/25/07