Dawson v. Allstate Ins. Co.

• Decision Date: 16 July 1993
• Docket Number: No. 21492,21492
• Citation: 189 W.Va. 557,433 S.E.2d 268
• Court: West Virginia Supreme Court
• Parties: , 65 Empl. Prac. Dec. P 43,178 Karen E. DAWSON, Plaintiff Below, Appellant, v. ALLSTATE INSURANCE COMPANY, A Foreign Corporation, and Ralph Burton, Defendants Below, Appellees.

Page 268

433 S.E.2d 268

189 W.Va. 557, 65 Empl. Prac. Dec. P 43,178

Karen E. DAWSON, Plaintiff Below, Appellant, v. ALLSTATE INSURANCE COMPANY, A Foreign Corporation, and Ralph Burton, Defendants Below, Appellees.

No. 21492.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1993.

Decided July 16, 1993.

Syllabus by the Court

1. "To successfully defend against a motion for summary judgment, the plaintiff must make some showing of fact which would support a prima facie case for his claim." Syl. pt. 2, Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).

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 Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).

3. "Under the provisions of Rule 56 of the West Virginia Rules of Civil Procedure, when the moving party presents depositions, interrogatories, affidavits or otherwise indicates there is no genuine issue as to any material fact, the resisting party to avoid summary judgment must present some evidence that the facts are in dispute." Syl. pt. 2, Guthrie v. Northwestern Mutual Life Ins. Co., 158 W.Va. 1, 208 S.E.2d 60 (1974).

4. "The question to be decided on a motion for summary judgment is whether there is a genuine issue of fact and not how that issue should be determined." Syl. pt. 5, Aetna Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

5. "A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Syl. pt. 6, Aetna Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

6. "Even if the trial judge is of the opinion to direct a verdict, he should nevertheless ordinarily hear evidence and, upon a trial, direct a verdict rather than try the case in advance on a motion for summary judgment." Syl. pt. 1, Masinter v. WEBCO Co., 164 W.Va. 241, 262 S.E.2d 433 (1980).

Barbara H. Lupton, Masters & Taylor, L.C., Charleston, for appellant.

Ricklin Brown, Elizabeth D. Harter, Bowles Rice McDavid Graff & Love, Charleston, for appellees.

PER CURIAM:

This case is before the Court upon the appeal of Karen E. Dawson, the plaintiff below, from the June 9, 1992 order of the Circuit Court of Kanawha County which granted summary judgment for the appellees and defendants below, Allstate Insurance Company and Ralph Burton. Ms. Dawson brought this action against the appellees alleging that the appellees had refused to hire her as an insurance agent solely on the basis of her gender in violation of W.Va.Code, 5-11-9 [1989]. ¹ Ms. Dawson also alleged that the appellee, Ralph Burton, made false representations to her about getting the job upon which she detrimentally relied. For reasons set forth below, we hold that the granting of summary judgment was proper in Ms. Dawson's false misrepresentation action, and improper in Ms. Dawson's gender discrimination action. Therefore, we affirm, in part, and reverse, in part, and remand this case to the circuit court for proceedings consistent with this opinion.

I

The appellee, Ralph Burton, supervises agents and has the responsibility of hiring agents in West Virginia for Allstate Insurance Company (hereinafter Allstate). Mr. Burton was actively recruiting two Allstate agents in the summer of 1988. In June of 1988 Ms. Dawson, the appellant, applied for one of the positions. There were at least two other people who applied for the positions: Patrick Reynolds and James Matthews. Eventually, Mr. Reynolds was hired for one of the agent positions. Mr. Matthews decided not to pursue the job, and Ms. Dawson was not offered a position.

Mr. Burton stated that although there is not a list of absolute standards which indicate that a person is qualified to be a sales agent, there were qualities that he looked for when determining whether a person would be successful as an agent. For instance, he stated that Allstate preferred that the applicant has a college degree and that the applicant has some prior success pattern, preferably in sales. The applicant has to pass the TRACK test, a general aptitude test. The applicant should also like to win awards and have high monetary goals. Mr. Burton states that competitiveness is important, and one way he checks to see if the applicant is competitive is to find out whether the applicant played sports in college or competes in races. The applicant also has to work well with people and have a professional image.

During his deposition, Mr. Burton outlined the general procedure he used when considering an applicant for a position with Allstate. First, the applicant takes the TRACK test. Second, Mr. Burton interviews the applicant. Third, the applicant completes work samples which gives the applicant an idea of what the job entails by having the applicant contact people about their auto and homeowner's insurance. Fourth, the applicant observes the job. Fifth, the applicant is interviewed by the Territorial Sales Manager, John Rushe, or the Territorial Sales Development Manager, Charlie Landen. Sixth, the applicant must obtain an insurance license.

Ms. Dawson completed the entire procedure outlined by Mr. Burton with the exception of obtaining an insurance license. Ms. Dawson passed the TRACK test and interviewed with Mr. Burton. Ms. Dawson stated that during the interview Mr. Burton asked her why she was not pursuing a teaching career. Mr. Burton admits that he questioned Ms. Dawson about a teaching career. Mr. Burton also told Ms. Dawson that he would need to meet with her children in order to make sure that they understood the demands of an agent's job. The appellees point out that the Allstate manual suggests that the family be involved in the interview process in order to make sure they understand the commitment of an agent.

Ms. Dawson also stated that she gave Mr. Burton her schedule for the summer since she would be out of town throughout the summer taking classes in order to complete her master's degree. Mr. Burton does not recall Ms. Dawson giving him the schedule. Ms. Dawson alleges that even though Mr. Burton had her schedule, he nevertheless sent her work samples to be completed in two days when he knew that she would not receive the forms until a week after they were due since she was out of town.

Ms. Dawson completed the first set of work samples which involved calling people and asking about their insurance. The purpose of the work samples is to give the candidate a feel for calling strangers to solicit insurance business.

Ms. Dawson then interviewed with Mr. Rushe. Ms. Dawson stated that Mr. Rushe told her that as far as he was concerned she had the job, but it was Mr. Burton's decision. In his affidavit, Mr. Rushe stated that he did not tell Ms. Dawson that the job was hers. Mr. Rushe did ask Ms. Dawson to complete 30 additional work samples since she had called 30 acquaintances when doing the first set of work samples which would not give Ms. Dawson an indication of what it is like to call strangers. Mr. Rushe also stated in his affidavit that he asked Mr. Burton to have her complete an Annual New Business Income/Sales Projection form since he had concerns about whether Ms. Dawson comprehended the amount of work she would need to complete in order to reach her monetary goal.

Ms. Dawson was given the Annual New Business Income/Sales Projection form to complete. Mr. Burton stated that he explained how the form was to be completed. Ms. Dawson stated that Mr. Burton did not explain how to do the form, so she asked her ex-husband, who was an insurance agent, how to complete the form. Mr. Burton stated that after she completed the form, he had her explain it to him and she could not. Mr. Burton stated that Mr. Reynolds was not asked to complete the Annual New Business Income/Sales Projection form nor was he asked to do thirty additional work samples. Mr. Reynolds stated in his affidavit that he was required to complete the Annual New Business Income/Sales Projection form.

Ms. Dawson did observe agents at the Allstate booth located in the Town Center mall. Mr. Burton stated that the agents who were working in the booth on the day Ms. Dawson observed did not make any comments regarding Ms. Dawson when usually they will say that they think a candidate would be a good agent. Mr. Burton also stated that one agent at the booth stated that it was her understanding that Ms. Dawson was not motivated to work.

Ms. Dawson stated that she told Mr. Burton that she would get her insurance license after she was hired. Mr. Burton stated that obtaining a license is a prerequisite to getting the job. However, Ms. Dawson stated that Mr. Reynolds was hired before he obtained his license, though Mr. Burton denies that Mr. Reynolds was offered a job before he had obtained his insurance license.

Ms. Dawson stated that Mr. Burton told her that he could not offer her a job because there were three other people, who were men, who were more qualified than she was. Ms. Dawson also stated that Mr. Burton said that he could not offer her a position because she did not have a track record. Mr. Burton gave the following reasons for not hiring Ms. Dawson: concern about whether Ms. Dawson understood what it took to perform the job; the lack of comments by agents at the booth about Ms. Dawson after Ms. Dawson's observation; the less than satisfying job references of Ms. Dawson (though Mr. Burton never actually spoke with any of Ms. Dawson's references); Ms....