Burke–Parsons–Bowlby Corp. v. Rice

• Decision Date: 07 November 2012
• Docket Number: No. 11–0183.,11–0183.
• Citation: 230 W.Va. 105,736 S.E.2d 338
• Court: West Virginia Supreme Court
• Parties: The BURKE–PARSONS–BOWLBY CORPORATION, a West Virginia corporation; Stella–Jones U.S. Holding Corporation, a Delaware corporation; and Stella–Jones, Inc., a foreign corporation; Defendants Below, Petitioners v. Sandra D. RICE, Executrix of the Estate of Jerold John Rice, Jr., Plaintiff Below, Respondent.

230 W.Va. 105

736 S.E.2d 338

The BURKE–PARSONS–BOWLBY CORPORATION, a West Virginia corporation; Stella–Jones U.S. Holding Corporation, a Delaware corporation; and Stella–Jones, Inc., a foreign corporation; Defendants Below, Petitioners

v.Sandra D. RICE, Executrix of the Estate of Jerold John Rice, Jr., Plaintiff Below, Respondent.

No. 11–0183.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 5, 2012.

Decided Nov. 7, 2012.

Syllabus by the Court

1. This Court reviews the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

2. “In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W.Va.Code § 5–11–1 et seq. (1979), the plaintiff must offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the plaintiff.

(3) But for the plaintiff's protected status, the adverse decision would not have been made.”

Syl. pt. 3, Conaway v. Eastern Associated Coal Corporation, 178 W.Va. 164, 358 S.E.2d 423 (1986).

3. “In an action brought for employment discrimination, a plaintiff may call witnesses to testify specifically about any incident of employment discrimination that the witnesses believe the defendant perpetrated against them, so long as the testimony is relevant to the type of employment discrimination that the plaintiff has alleged.” Syl. pt. 2, McKenzie v. Carroll International Corporation, 216 W.Va. 686, 610 S.E.2d 341 (2004).

4. In a wrongful discharge action filed in circuit court alleging a violation of The West Virginia Human Rights Act, W.Va.Code, 5–11–1 [1967], et seq., the circuit court may submit the question of reinstatement to employment versus an award of front pay to the jury, where the facts and inferences concerning those remedies are in conflict.

5. “If anything has occurred to render further association between the parties offensive or degrading to the employee, an offer of further employment by the employer will not diminish the employee's recovery if the offer is not accepted.” Syl. pt. 4, Voorhees v. Guyan Machinery Company, 191 W.Va. 450, 446 S.E.2d 672 (1994).

6. “Unless a wrongful discharge is malicious, the wrongfully discharged employee has a duty to mitigate damages by accepting similar employment to that contemplated by his or her contract if it is available in the local area, and the actual wages received, or the wages the employee could have received at comparable employment where it is locally available, will be deducted from any back pay award; however, the burden of raising the issue of mitigation is on the employer.” Syl. pt. 2, Mason County Board of Education v. State Superintendent of Schools, 170 W.Va. 632, 295 S.E.2d 719 (1982).

Roger A. Wolfe, Esq., Jackson & Kelly, Charleston, WV, Kevin E. Hyde, PHV, Jonathan W. Oliff, PHV, Foley & Larnder, Jacksonville, FL, for the Petitioners.

Mark A. Atkinson, Esq., Paul L. Frampton, Jr., Esq., Atkinson & Polak, Charleston, WV, for the Respondent.

KETCHUM, Chief Justice:

This action alleging age discrimination is before this Court upon the appeal of The Burke–Parsons–Bowlby Corporation, Stella–Jones U.S. Holding Corporation and Stella–Jones, Inc. (“Burke–Parsons–Bowlby,” “Stella–Jones” or “defendants”) from the January 12, 2011, order of the Circuit Court of Jackson County denying the defendants' motion for a new trial. Finding that the defendants wrongfully terminated the employment of the plaintiff, Jerold John Rice, Jr. (“Rice”), based on his age, the jury returned a verdict for Rice in the amount of $2,133,991.00. That amount represents compensatory damages for lost back pay and front pay. The jury returned no damages for aggravation, inconvenience, humiliation, embarrassment or loss of dignity. The jury further determined that punitive damages were not warranted. In entering judgment on the verdict, the circuit court awarded Rice attorney fees, litigation costs and pre-judgment interest on the back pay award.

Denying that age played any role in Rice's termination, the defendants submit three assignments of error upon which they contend the motion for a new trial should have been granted. However, upon careful review of the record-appendix, the briefs and argument of the parties and the law relevant to this matter, this Court is of the opinion that the order denying the motion for a new trial should not be disturbed. Accordingly, the January 12, 2011, order of the Circuit Court of Jackson County is affirmed.¹

I.Factual Background

In April 1985, Rice began working for Burke–Parsons–Bowlby as a staff accountant and credit manager. Burke–Parsons–Bowlby was headquartered in Ripley, West Virginia, and was in the business of producing pressure treated wood products, such as railroad ties and fence posts. In addition to its headquarter operations, the corporation operated five manufacturing plants. Rice was subsequently promoted to the assistant controller position and ultimately became the corporation's controller.

In 2008, Burke–Parsons–Bowlby was acquired by Stella–Jones, a Canadian corporation.² Although Rice was retained after the acquisition as controller at the Ripley headquarters, the record indicates that his responsibilities increased. At that time, his work largely involved completing the year-end audit of Burke–Parsons–Bowlby and reconciling matters relating to the transition to Stella–Jones, the acquisition having added more plants and employees to the business enterprise. Rice maintains that he worked in excess of 60 hours per week after the acquisition and gave up a number of vacation days. Initially, he reported to Doug Fox, a senior vice-president at Stella–Jones. A few months later, Rice's more immediate supervisor became Stella–Jones vice-president, Eric Vachon.

By letter dated December 12, 2008, Brian McManus, President and CEO of Stella–Jones, thanked Rice for his contribution to the company and confirmed that Rice's annual salary would be increased to $90,780.00, effective January 1, 2009. The record indicates that the salary increase was given to Rice by Doug Fox and approved by Eric Vachon. Soon after, Stella–Jones hired an assistant controller. By letter dated January 22, 2009, Vachon offered the position of assistant controller to Jeremy Stover. Rice had recommended hiring Stover prior to, and immediately after, the acquisition of Burke–Parsons–Bowlby by Stella–Jones. The letter from Vachon stated that Stover's start date would be February 16, 2009, and that he would report to Rice. Stover accepted the offer, and Vachon told Rice to teach Stover everything Rice knew.³ Stover was 29 years old, and Rice was 47.

On the morning of March 12, 2009, a conference with top Stella–Jones executives was conducted at the West Virginia facility. Noting that the acquisition of Burke–Parsons–Bowlby had gone smoothly, the accounting department, including Rice, was complimented for its efforts during the previous year. The conference broke for lunch, and, upon return, Rice was informed by Vachon that his employment was terminated because the decision had been made to eliminate his position as controller. Vachon told Rice to vacate the premises that day. At trial, Rice described his termination as follows:

A. When we met in the conference room with the dignitaries, Mr. Jones, as owner of the company, and I believe chairman of the board, addressed us, said that the merger had been a smooth transition, wanted to thank particularly the accounting department for their efforts during the year, not only in the integration of Stella–Jones and Burke–Parsons–Bowlby together, but also for the completion of the financial results in a timely and accurate manner.

* * *

Q. John, I want you to tell the jury, when you came back from lunch, what happened.

A. I experienced probably the low point of my career. I—I lost my job after 24 years. It was over in two minutes.

Q. Okay.

A. I was told by Eric Vachon that my job had been eliminated, and I was finished with the corporation.

* * *

Q. When Mr. Vachon met with you for two minutes, did he talk about any problems in your personnel file?

A. Absolutely not.

* * *

Q. Had they ever given you any written warnings?

A. To this day, I have not received any criticism good or bad.

Rice's termination occurred less than one year after the acquisition of Burke–Parsons–Bowlby by Stella–Jones. In contrast to Rice's 24 years of service, Stover had worked for Stella–Jones less than 30 days from his start date to the date of Rice's discharge on March 12, 2009. Rice had never received any warnings or reprimands concerning his work either before or after the Burke–Parsons–Bowlby acquisition. Moreover, neither Vachon, who terminated Rice, nor Fox, who had been consulted about the termination, had ever reviewed Rice's personnel file. Vachon acknowledged at trial that he had already decided to terminate Rice at the time he told Rice to teach Stover everything Rice knew. According to the defendants, however, Vachon of Stella–Jones had increasingly assumed a leadership role in the former Burke–Parsons–Bowlby finance department and saw no further need for Rice's position as controller. Thus, as stated by the defendants, Stover was retained as assistant controller, and there was no nexus between Rice's age and the elimination of his position. Rice was offered a severance package, but he declined to accept it.

II.Procedural Background

In April 2009, Rice filed a complaint in the Circuit Court of Jackson County against The Burke–Parsons–Bowlby Corporation, Stella–Jones U.S. Holding Corporation and Stella–Jones, Inc. The complaint alleged that the defendants “willfully, maliciously and unlawfully” terminated Rice's employment.” The...