Dobson v. Eastern Associated Coal Corp.

• Decision Date: 10 February 1993
• Docket Number: No. 20482,20482
• Citation: 422 S.E.2d 494,188 W.Va. 17
• Court: West Virginia Supreme Court
• Parties: , 69 Fair Empl.Prac.Cas. (BNA) 931 Dallas Stevenson DOBSON, Plaintiff Below, Appellee, v. EASTERN ASSOCIATED COAL CORPORATION, a Corporation, West Virginia Division, Defendant Below, Appellant.

Page 494

422 S.E.2d 494

188 W.Va. 17, 69 Fair Empl.Prac.Cas. (BNA) 931

Dallas Stevenson DOBSON, Plaintiff Below, Appellee, v. EASTERN ASSOCIATED COAL CORPORATION, a Corporation, West Virginia Division, Defendant Below, Appellant.

No. 20482.

Supreme Court of Appeals of West Virginia.

Submitted March 10, 1992.

Decided July 23, 1992.

Dissenting Opinion Feb. 10, 1993.

Syllabus by the Court

1. "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).

2. "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).

3. Statistical evidence may be employed by a plaintiff in proving a claim of age discrimination in employment under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq. Under Rule 702 of the West Virginia Rules of Evidence it is not an abuse of discretion for the circuit court to allow the use of such statistical evidence if the defendant has the opportunity to rebut the same.

4. Where a plaintiff, as an alternative to filing a complaint with the Human Rights Commission, has initiated an action in circuit court to enforce the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., then he or she may recover damages sounding in tort.

5. In a case brought under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., an offer of reinstatement that is subject to the passing of a physical examination is not an "unconditional" offer of reinstatement.

C. David Morrison, Steptoe & Johnson, Clarksburg, for appellant.

Frank M. Ellison, Madison, for Appellee.

Mario J. Palumbo, Kathleen Manshiem, Mary Catherine Buchmelter, Office of Atty. Gen., Charleston, for amicus curiae, W.Va. Human Rights Com'n.

Robert Bastress, Allan N. Karlin, Emily Spieler, Morgantown, for amici curiae, W.Va. Chapter of Nat. Organization for Women, W.Va. Civil Liberties Union and W.Va. Branch of Nat. Ass'n for Advancement of Colored People.

McHUGH, Chief Justice.

This case is before the Court upon the appeal of Eastern Associated Coal Corporation, the defendant below, from the May 17, 1991 order of the Circuit Court of Boone County. The appellee and plaintiff below is Dallas S. Dobson. The appellant is aggrieved by the circuit court's denial of the appellant's motion to set aside the jury verdict rendered in favor of the appellee in the amount of $325,000, and attorney's fees and costs in the amount of $94,887.05.

I

The appellee was employed by the appellant as a "face supervisor," which is a front-line production foreman who supervises a crew of miners belonging to a union. He was employed by the appellant for fifteen years, holding a number of positions during that period. The appellee had been a coal miner for a total of approximately 25 years.

During the 1970's and 1980's, while the appellant had reduced its work force, the appellee had maintained his employment with the appellant. However, in December, 1987, the appellant was forced to reduce its work force again. With respect to this reduction in work force, union employees were covered by the effective collective bargaining agreement, but supervisory employees, such as the appellee, were not. ¹ Consequently, the appellant resorted to a plan to conduct the reduction. John Hull, a vice-president of the appellant, met with two lawyers from the company's legal staff, representatives from the company's personnel department, and outside counsel. This meeting took place on December 10, 1987.

The appellant operated six mines in Boone County, and the reduction-in-work-force plan it chose to implement was to evaluate the foremen at each of its six mines. Because the reduction in union personnel at two of the mines would result in a 12 percent reduction in supervisory personnel, the decision was made to lay off the lowest evaluated 12 percent of foremen at each mine. Outside counsel approved the plan and testified that it was age-neutral.

With respect to the evaluation system itself, the evaluations had already been conducted in May, 1987, one month after the appellant was acquired by Peabody Holding Co., Inc. The appellee's immediate supervisor, Mark Stanley, conducted this evaluation, which consisted of assigning a numerical value from 1 to 9, to fourteen different factors, such as quality of work, safety consciousness, and job knowledge. These scores were then averaged.

The appellee received a score of 5.58. ² Accordingly, the appellee, who was 48 years old, was laid off on January 15, 1988, along with 22 other employees.

In March, 1988, two positions of employment became available at the appellant's mine where the appellee had been employed. The appellee and six others were notified of the openings, but following the interview, it was determined that the appellee lacked the experience in "longwall moving" which the appellant claims to have been necessary for those two positions.

A face supervisor position became available in October, 1989, and the appellee was extended an unconditional offer of reemployment, but rejected this offer because his psychiatrist was of the opinion that he was too ill to return to work. ³

The appellee filed suit against the appellant based upon age discrimination for the January 15, 1988 layoff and the failure to rehire him. Following trial, which lasted from August 15, 1990 to September 12, 1990, the jury returned a verdict in favor of the appellee in the amount of $325,000, of which $200,000 represents economic losses and $125,000 represents emotional distress damages. The appellee was also awarded attorney's fees in the amount of $94,887.05.

This appeal ensued from the trial court's failure to direct a verdict in favor of the appellant, and the denial of the appellant's motion to set aside the verdict or enter judgment notwithstanding the verdict in its favor.

II

Primarily, the appellant contends that the appellee failed to make a prima facie case of age discrimination. Under W.Va.Code, 5-11-9(a)(1) [1992], it is "an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, ... [f]or any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required[.]" "The term 'discriminate' or 'discrimination' means to exclude from, or fail or refuse to extend to, a person equal opportunities because of race, religion, color, national origin, ancestry, sex, age, blindness, handicap or familial status and includes to separate or segregate[.]" W.Va.Code, 5-11-3(h) [1992] (emphasis supplied).

In syllabus point 3 to Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986), this Court held:

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.

In Conaway, we held that a plaintiff need not show direct proof of discrimination, but may offer alternative evidence.

The first two parts of the test are easy, but the third [regarding whether the adverse decision would not have been made but for the plaintiff's protected class] will cause controversy. Because discrimination is essentially an element of the mind, there will probably be very little direct proof available. Direct proof, however, is not required. What is required of the plaintiff is to show some evidence which would sufficiently link the employer's decision and the plaintiff's status as a member of a protected class so as to give rise to an inference that the employment decision was based on an illegal discriminatory criterion. This evidence could, for example, come in the form of an admission by the employer, a case of unequal or disparate treatment between members of the protected class and others by the elimination of the apparent legitimate reasons for the decision, or statistics in a large operation which show that members of the protected class received substantially worse treatment than others.

178 W.Va. at 170-71, 358 S.E.2d at 429-30 (emphasis supplied; footnotes omitted).

Accordingly, the appellee in this case showed statistics to support his position. It is the statistical analysis that the appellant maintains is flawed and led to prejudicial error.

Specifically, the statistical evidence introduced in this case consisted of, among other things, the testimony of three experts.

Dr. Robert Reger testified to the use of "descriptive statistics," pointing out that 76% of the retained foremen were younger than the appellee. Reger also testified that 25% of those laid off were under 40 while 36% of those retained were under 40. Appellant contends that this type of statistical evaluation was rejected by the United States Court of Appeals for the Fourth Circuit in Moultrie v. Martin, 690 F.2d 1078 (4th Cir.1982), which held that a standard deviation must be used in ensuring racial balance of grand juries because a conclusion cannot be drawn from a straight statistical comparison. ⁴ The appellant also contends that Reger's testimony ignored the mine-by-mine basis of the evaluations performed.

Dr. Dietrich...