McKenzie v. Carroll Intern. Corp.

• Decision Date: 12 November 2004
• Docket Number: No. 31721.,31721.
• Citation: 610 S.E.2d 341,216 W.Va. 686
• Parties: Kenneth McKENZIE, Plaintiff Below, Appellant, v. CARROLL INTERNATIONAL CORPORATION, dba Gaylord East and/or Keyser Stainless Industrial Park, and Byron Read, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

610 S.E.2d 341

216 W.Va. 686

Kenneth McKENZIE, Plaintiff Below, Appellant, v. CARROLL INTERNATIONAL CORPORATION, dba Gaylord East and/or Keyser Stainless Industrial Park, and Byron Read, Defendants Below, Appellees.

No. 31721.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 2004.

Decided November 12, 2004.

Allan N. Karlin, Esq., Jane E. Peak, Esq., Morgantown, for Appellant.

Robert H. Sweeney, Esq., Jenkins Fenstermaker, Huntington, Jerome F. Buch, Esq., Seyfarth Shaw, Esq., Chicago, IL, Annamaria L. Nields, Esq., Seyfarth Shaw, Esq., Washington, DC, for Appellee.

DAVIS, Justice.

Kenneth McKenzie, appellant/plaintiff below (hereinafter "Mr. McKenzie"), appeals from an order of the Circuit Court of Mineral County that denied his motion for a new trial. This case involved various claims of employment discrimination by Mr. McKenzie against his former employer, Carroll International Corporation (hereinafter "Carroll"), appellee/defendant below. The case was tried before a jury, and a verdict was returned in favor of Carroll. Here, Mr. McKenzie has made the following assignments of error: (1) prohibiting evidence of discrimination against other employees, (2) denial of motion in limine, (3) refusal to admit physical therapy records, (4) admission of hearsay statements by Byron Read, (5) refusal to admit letter by Byron Read, (6) admission of hearsay statements by Robert Grapes, and (7) other errors. After a careful review of the briefs and record, we reverse and remand this case for a new trial.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. McKenzie was hired by Carroll in 1982¹ as a welder.² At the time of hiring, Mr. McKenzie was 42 years old. Mr. McKenzie voluntarily quit his job after a few months of employment. He was rehired by Carroll in 1984. In March, 1995, Mr. McKenzie suffered a work-related injury to his right hand that required surgery on two separate occasions. After the first surgery, Mr. McKenzie attempted to return to work. He was informed by Carroll that he had to have recovered 100% before he would be allowed to return to work. Mr. McKenzie thereafter underwent hand surgery for a second time. In May of 1996, Mr. McKenzie produced a medical slip authorizing his return to work. Carroll subsequently allowed him to return to work.

In August of 1996, Mr. McKenzie and eight other employees were laid off by Carroll.³ As a result of being laid off, Mr. McKenzie filed a grievance with the employee union. In the grievance, Mr. McKenzie contended that he should not have been laid off because of his seniority rights. However, Mr. McKenzie was informed that the union contract did not include a seniority provision. Mr. McKenzie thereafter abandoned the union grievance. He then filed a discrimination claim with the West Virginia Human Rights Commission. The Commission conducted an initial investigation, and, after determining that there was insufficient evidence of discrimination, issued a "no probable cause" order.

In March of 1998, Mr. McKenzie filed the instant action against Carroll. Mr. McKenzie alleged in his complaint that Carroll laid him off because of his age and that Carroll failed to recall him because of his age, his perceived disability and because he filed a workers' compensation claim.⁴ The case was tried before a jury in August of 2002. After a four-day trial, the jury returned a verdict in favor of Carroll. Subsequent to the denial of his post-trial motions, Mr. McKenzie filed this appeal.

II. STANDARD OF REVIEW

This case appeal stems from an order of the circuit court denying Mr. McKenzie's motion for a new trial. As a general matter, we have held that "[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). This Court has held more specifically that "the circuit court's ruling concerning a new trial will be reviewed for an abuse of discretion, any underlying factual findings will be reviewed under a clearly erroneous standard, and any questions of law will be reviewed de novo." Matheny v. Fairmont Gen. Hosp., Inc., 212 W.Va. 740, 744, 575 S.E.2d 350, 354 (2002). Additional standards for our review that are pertinent to the specific issues raised are discussed in connection with the matters to which they relate.

III. DISCUSSION

A. Prohibiting Evidence of Discrimination Against Other Employees

The first issue raised by Mr. McKenzie is that the trial court committed error by prohibiting him from calling witnesses who would provide evidence that they were victims of age discrimination by Carroll.⁵ Mr. McKenzie sought to introduce evidence of other alleged acts of age discrimination by Carroll under Rule 404(b) of the West Virginia Rules of Evidence.⁶ The issue arose in the context of a pretrial motion in limine by Carroll that sought to preclude testimony from such witnesses. The trial court granted the motion, but permitted evidence of other alleged age discrimination by Carroll only in the form of statistics. In making its ruling, the trial court found that the witnesses did not "have any personal knowledge about what they are testifying to with regard to [Mr. McKenzie]." The court also found that the probative value of such evidence was outweighed by its prejudicial effect.

Our cases have pointed out, and we so hold, that a trial court's ruling on a motion in limine is reviewed on appeal for an abuse of discretion. See Barlow v. Hester Indus., Inc., 198 W.Va. 118, 130-31, 479 S.E.2d 628, 640-41 (1996)

; Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 113, 459 S.E.2d 374, 390 (1995). Additionally, "we are required to address specific areas of evidence law regarding motions in limine." Tennant, 194 W.Va. at 112,

459 S.E.2d at 389. In that regard, this Court reviews a circuit court's decision on whether "to admit evidence pursuant to Rule 404(b) under an abuse of discretion standard." State v. McGinnis, 193 W.Va. 147, 159, 455 S.E.2d 516, 528 (1994).

Carroll contends that the trial court's ruling was correct and that Mr. McKenzie was not precluded from presenting other evidence of alleged age discrimination. Carroll represents that, during the trial, Mr. McKenzie presented evidence of layoff reports, statistics and witness testimony regarding the names, ages and dates of layoff and recall for other employees. Carroll has also cited to federal cases that prohibited plaintiffs in age discrimination cases from calling witnesses to testify about their own age discrimination experiences. Specifically, Carroll relies upon the decision in Moorhouse v. Boeing Co., 501 F.Supp. 390 (E.D.Pa.1980), which stated:

Had the Court permitted each of the proposed witnesses to testify about the circumstances surrounding his own lay off, each, in essence, would have presented a prima facie case of age discrimination. Defendants then would have been placed in the position of either presenting the justification for each witnesses' lay off, or of allowing the testimony to stand unrebutted. This latter alternative, of course, would have had an obvious prejudicial impact on the jury's consideration of [plaintiff's] case.

Moorhouse, 501 F.Supp. at 393 (footnote omitted). See Haskell v. Kaman Corp., 743 F.2d 113, 122 (2d Cir.1984)

("Since the testimony of the six former Company officers as to the circumstances of their terminations and those of other Company officers was insufficient to show a pattern and practice of discrimination, it was not relevant to the question of whether [plaintiff] was terminated for age-related reasons. Moreover, the probative value of the testimony was so `substantially outweighed by the danger of unfair prejudice' that it definitely should have been excluded by the district court in accord with Fed.R.Evid. 403."); Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 156 (6th Cir.1988) ("The testimony of [two witnesses] about the alleged statement to them that they were being terminated because they were too old should have been excluded.... The fact that two employees of a national concern, ... were allegedly told they were being terminated because they were too old, is simply not relevant to the issue in this case.").

Mr. McKenzie has suggested that not all federal courts prohibit nonlitigant employees from testifying about age discrimination they experienced at the hands of their employers. Federal courts that admit such testimony do so on the grounds that "[t]he testimony of employees, other than plaintiff, is relevant in assessing the employer's discriminatory intent if the employees' testimony can logically or reasonably be tied to the adverse employment action taken against the plaintiff." Minshall v. McGraw Hill Broad. Co., Inc., 323 F.3d 1273, 1285 (10th Cir.2003). See Brennan v. GTE Gov't Sys. Corp., 150 F.3d 21, 27-28 (1st Cir.1998)

("Certainly comparative evidence in combination with data showing a disproportionate number of terminated older employees is probative of age discrimination."); Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97-98 (7th Cir.1985) (permitting plaintiff to call two witnesses to testify that they were discriminated against by employer because of their age); Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir.1990) ("As a general rule, the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer's discriminatory intent."); Kneisley v. Hercules Inc., 577 F.Supp. 726, 731 (D.Del.1983) (allowing plaintiff to call four former employees to testify that they were victims of age discrimination by employer).

Moreover, the federal courts that admit such evidence have held that "[t]he probative value of [evidence of] the employer's [discrimination] of other ......