Barefoot v. Sundale Nursing Home

• Decision Date: 13 April 1995
• Docket Number: No. 22165,22165
• Citation: 457 S.E.2d 152,193 W.Va. 475
• Court: West Virginia Supreme Court
• Parties: , 73 Fair Empl.Prac.Cas. (BNA) 771 Mary Jane BAREFOOT, Administratrix of the Estate of Grace Lambert, Plaintiff Below, Appellee, v. SUNDALE NURSING HOME, Jerry Bair, and Nancy Edgell, Defendants Below. Sundale Nursing Home, Appellant.

Page 152

457 S.E.2d 152

193 W.Va. 475, 73 Fair Empl.Prac.Cas. (BNA) 771

Mary Jane BAREFOOT, Administratrix of the Estate of Grace Lambert, Plaintiff Below, Appellee, v. SUNDALE NURSING HOME, Jerry Bair, and Nancy Edgell Defendants Below Sundale Nursing Home, Appellant.

No. 22165.

Supreme Court of Appeals of West Virginia.

Submitted Upon Rehearing April 4, 1995.

Decided April 13, 1995.

[193 W.Va. 479] Syllabus by the Court

1. "In reviewing a trial court's ruling on a motion for a judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a motion for a judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of this Court to reverse the circuit court and to order judgment for the appellant." Syllabus Point 1, Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994).

2. The "but for" test of discriminatory motive 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.

3. "A complainant in a disparate treatment, discriminatory discharge case ... may meet the initial prima facie burden by proving, by a preponderance of the evidence, (1) that the complainant is a member of a group protected by the Act; (2) that the complainant was discharged, or forced to resign, from employment; and (3) that a nonmember of the protected group was not disciplined, or was disciplined less severely, than the complainant, though both engaged in similar conduct." Syllabus Point 2, in part, State ex rel. State of West Virginia Human Rights Commission v. Logan-Mingo Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985).

4. Unless a comparison employee and a plaintiff share the same disputed characteristics, the comparison employee cannot be classified as a member of a plaintiff's class for purposes of rebutting prima facie evidence of disparate treatment.

5. After the employer has articulated a nondiscriminatory justification for its employment decision, to defeat a motion for a directed verdict, a plaintiff need not show more than the articulated reasons were implausible and, thus, pretextual. A finding of pretextuality allows a juror to reject a defendant's proffered reasons for a challenged employment action and, thus, permits the ultimate inference of discrimination.

6. "In proving a prima facie case of disparate impact under the Human Rights Act, W.Va.Code[,] 5-11-1 [1967] et seq., the plaintiff bears the burden of (1) demonstrating that the employer uses a particular employment practice or policy and (2) establishing that such particular employment practice or policy causes a disparate impact on a class protected by the Human Rights Act. The employer then must prove that the practice is 'job related' and 'consistent with business necessity.' If the employer proves business necessity, the plaintiff may rebut the employer's defense by showing that a less burdensome alternative practice exists which the employer refuses to adopt. Such a showing would be evidence that employer's policy is a 'pretext' for discrimination." Syllabus Point 3, West Va. University v. Decker, 191 W.Va. 567, 447 S.E.2d 259 (1994).

7. " 'Disparate impact in an employment discrimination case is ordinarily proved by statistics[.]' Syl. pt. 3, in part, Guyan Valley Hospital, Inc. v. West Virginia Human Rights Commission, 181 W.Va. 251, 382 S.E.2d 88 (1989)." Syllabus Point 2, Dobson v. Eastern Associated Coal Corp., 188 W.Va. 17, 422 S.E.2d 494 (1992).

8. As a general rule, a trial court has considerable discretion in determining whether to give special verdicts and interrogatories to a jury unless it is mandated to do so by statute.

9. "Where a jury returns a general verdict in a case involving two or more liability issues and its verdict is supported by the evidence on at least one issue, the verdict will not be reversed, unless the defendant has requested and been refused the right to have the jury make special findings as to his liability on each of the issues." Syllabus Point 6, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

10. To the extent that a per se reversible error rule was announced in Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984), it should be limited to the specific facts stated and a further expansion of this rule is unwarranted.

11. Although it would be preferable to give special verdict forms in multiple theory employment discrimination cases, which would remove doubt as to the jury's consideration of any alternative basis of liability that does not have adequate evidentiary support, the refusal to do so does not provide an independent basis for reversing an otherwise valid judgment.

Calvin Willie Wood, Fairmont, for appellee.

Richard M. Yurko, Jr., Jill Oliverio, Steptoe & Johnson, Clarksburg, for appellant.

CLECKLEY, Justice:

This case was originally submitted for decision at the September, 1994, term of this Court, and an opinion was filed on December 8, 1994. Thereafter, the plaintiff below and appellee herein, Mary Jane Barefoot, Administratrix of the Estate of Grace Lambert, petitioned for a rehearing and said petition was granted. On April 4, 1995, this case was reheard and the Court, thereafter, withdrew the original opinion. We now issue the following opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The defendant below and appellant herein, Sundale Nursing Home, appeals the decision of the Circuit Court of Monongalia County upholding a jury verdict awarding Mary Jane Barefoot, Administratrix of the Estate of Grace Lambert, $32,000 because of Sundale's alleged discriminatory discharge of Ms. Lambert. ¹ On appeal, the defendant asserts several assignments of error including the plaintiff's failure to establish a prima facie case showing discrimination or, in the alternative, the plaintiff's failure to prove the defendant's business excuse was a pretext for discriminatory purposes.

On June 14, 1991, Theresa L. Ratcliffe, a nursing assistant employed by Sundale, reported Ms. Lambert (the decedent), another nursing assistant employee, struck the patient with whom they both were working, causing a skin tear on his arm. The matter was reported to Nancy Edgell, the Director of Nursing. ² After informing Jerry Bair, Sundale's administrator, and other administrators Ms. Edgell interviewed Ms. Ratcliffe, the floor nurse who examined the patient, and Ms. Lambert. Ms. Edgell also reviewed the patient's medical records, visited the patient, and observed the skin tear on his arm. According to Ms. Edgell, Ms. Lambert said "she didn't cause the skin tear but she did not refute the fact that she had struck the resident." In an unrelated matter before a State Employment Security Administrative Law Judge, Ms. Lambert gave the following testimony:

" 'I did not put the skin tear on the man and all I did was tap him on the top. He had his fist like this. So, this is the way that he comes into my stomach; and I just tapped him on the top of the hand. I did not hurt the man. He never even said "ouch" and that was just to calm him down from hitting me the fifth time in the stomach and if I had of put a skin tear on him, I would have gone straight to the nurse but I did not put a skin tear on the man.' "

According to the defendant's personnel manual, the first offense penalty for "[a]buse of resident, use of obscene or abusive language, striking, threatening, or harassing a resident" is discharge. Ms. Lambert's personnel file contained a receipt acknowledging that Ms. Lambert received Sundale's personnel manual and read and understood Sundale's personnel policies. Following an investigation of the alleged incident, Sundale dismissed Ms. Lambert for striking a resident.

Following her June 14, 1991, dismissal, Ms. Lambert filed suit on January 24, 1992, alleging she was discharged because she was female, over forty years old, and a Native American. On January 31, 1992, while this suit was pending, Ms. Lambert died of cardiac arrest ³; Ms. Barefoot was substituted as plaintiff. ⁴

At trial, the plaintiff presented evidence supporting a prima facie case of both disparate treatment and disparate impact by the defendant. The plaintiff also attempted to establish that the decedent's discharge was discriminatory by presenting evidence that other employees who had struck patients were not fired and the defendant fired all five of its Native American employees within a six- to eight-month period.

After the jury returned a verdict against Sundale ⁵ awarding the plaintiff $32,000, the circuit court denied the defendant's motion for judgment notwithstanding the verdict or, in the alternative, granting a new trial. Sundale then appealed to this Court.

II. SUFFICIENCY OF EVIDENCE

A. Standard of Review

Sundale challenges the sufficiency of the evidence to support the verdict and judgment entered in this case. Essentially, Sundale argues it was entitled to judgment as a matter of law for failure of the plaintiff to meet her burden of proof at trial.

Rule 50(b) of the West Virginia Rules of Civil Procedure allows a defendant to move for a judgment notwithstanding the verdict if, with respect to an issue essential to a plaintiff's case, there exists no legally sufficient evidentiary basis for the jury to find in favor of the plaintiff. 5A James W. Moore, Moore's Federal Practice p 50.08 at 50-76 (2nd ed. 1994). ⁶ Under this rule, a circuit court may...