Moore v. Consolidation Coal Co.

• Citation: 567 S.E.2d 661,211 W.Va. 651
• Decision Date: 01 July 2002
• Docket Number: No. 29992.,29992.
• Court: Supreme Court of West Virginia
• Parties: Harold MOORE, Clifford Cutlip, Michael Jackson, Fred Morgan, Ted Rife, Richard Keener, Pat Vavrock, Steve Slavensky and Edward Cummings, Plaintiffs Below, Appellants, v. CONSOLIDATION COAL COMPANY, and Consolidation Coal Company Morgantown Operations, Defendants Below, Appellees.

567 S.E.2d 661

211 W.Va. 651

Harold MOORE, Clifford Cutlip, Michael Jackson, Fred Morgan, Ted Rife, Richard Keener, Pat Vavrock, Steve Slavensky and Edward Cummings, Plaintiffs Below, Appellants, v. CONSOLIDATION COAL COMPANY, and Consolidation Coal Company Morgantown Operations, Defendants Below, Appellees.

No. 29992.

Supreme Court of Appeals of West Virginia.

Submitted February 5, 2002.

Decided July 1, 2002.

Concurring Opinion of Chief Justice Davis July 3, 2002.

Jacques R. Williams, Esq., Hamstead, Hamstead & Williams, Morgantown, Larry W. Mayfield, Esq., Gianola, Barnum & Wigal, Morgantown, C. Paul Estep, Esq., Kingwood, for Appellants.

Stephen M. LaCagnin, Esq., Jackson & Kelly, Morgantown, Robert M. Vukas, Esq., Consol, Inc., Pittsburgh, PA, for Appellees. McGRAW, Justice.

Appellants in this case are eight coal miners¹ who brought suit against appellee Consolidation Coal Company ("Consol") under the West Virginia Human Rights Act (the "Human Rights Act"), W. Va.Code §§ 5-11-1 to -20, alleging that Consol, in the process of closing its Arkwright mine in 1995, systematically discriminated against them on the basis of age by transferring younger employees to other mine operations while leaving them to face termination when the mine ultimately shut down. Following trial on these claims, the jury found in favor of Consol, and appellants now appeal arguing that the lower court erred at trial by (1) prohibiting them from calling two rebuttal witnesses; and (2) refusing to admit evidence that Consol had previously employed alternative procedures for implementing layoffs at other facilities, which, had they been utilized at the Arkwright mine, would have resulted in a less disproportionate impact upon older workers. We find merit in appellants' second argument, and accordingly reverse.

I.

BACKGROUND

Appellants were employed by Consol as salaried foremen and mine engineers at the company's Arkwright mine in Monongalia County during the period immediately preceding its closure in October 1995. Beginning in March 1994, Consol began offering a number of employees transfers to other company facilities. In determining which employees would be extended such offers, Consol employed a ranking system predicated upon employee performance evaluation scores, with transfer decisions normally being made with respect to individual performance in specific job classifications, although consideration was at times given to transferring employees to other positions for which they were qualified.

Appellant's theory of the case was that Consol intentionally lowered the evaluation scores of older employees during the period leading up to the mine closure, such that the performance-based method chosen by the company for allotting transfer opportunities would result in the ultimate termination of a greater proportion of older workers. The only direct evidence supporting this version of events was testimony by appellant Harold Moore, who stated that soon after rumors surfaced that the Arkwright mine would be closing, he was told in 1993 by Arkwright's superintendent, Terry Suder, to "watch out for the evaluations," as "there's a good chance that evaluations on persons that they are going to get rid of [are] going to be low." (Mr. Suder testified at trial and denied making such statements.) Mr. Moore further testified that in fact, the evaluation scores he received for the annual period ending in July 1993 were significantly lower than those he would receive just one year later.

Appellants relied heavily upon statistical evidence to buttress their claim that Consol's conduct was at least partially motivated by discriminatory intent. Appellants' expert in labor economics and econometrics, Professor Clifford Hawley, Ph.D., testified to having reviewed data regarding Consol's transfer decisions concerning 29 persons holding positions comparable to those of appellants who were employed at the Arkwright mine during the period preceding closure. Of these 29 employees, a total of 24 were over the age of 40. While according to appellants' version of the facts all five of the employees under the age of 40 were permitted to transfer to other jobs, only nine of the 24 persons over the age of 40 were given similar offers. Professor Hawley testified that this disparity was statistically significant in that the odds of an age-neutral process obtaining such a result was one in 59. Consol's expert statistician, Dennis Brady, Ph.D., criticized Professor's Hawley's methodology, particularly the choice to concentrate only on a limited number of job categories. Doctor Brady also testified that his analysis of the closure of the Arkwright mine indicated that it resulted in a greater overall percentage of younger workers retaining employment with Consol.

After a trial conducted on August 14-21, 2000, the jury found in favor of Consol in all respects. Appellants' subsequent motion for a new trial, which raised the same arguments as advanced herein, was denied on April 13, 2001, and this appeal followed.

II.

STANDARD OF REVIEW

Trial courts are customarily accorded considerable discretion in making evidentiary rulings. As we explained in syllabus point 9 of Tudor v. Charleston Area Medical Center, Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997):

"The West Virginia Rules of Evidence... allocate significant discretion to the trial court in making evidentiary ... rulings. Thus, rulings on the admission of evidence ... are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary... rulings of the circuit court under an abuse of discretion standard."

(Quoting syl. pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995)). Accord syl. pt. 10, Board of Ed. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990) ("Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.") (citations and internal quotation marks omitted); syl. pt. 6, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983) ("The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.").

III.

DISCUSSION

Appellants assert that the trial court committed reversible error in this case by refusing to permit them to introduce evidence that Consol had previously utilized alternative procedures at other mine locations to determine those employees who would be terminated in the course of workforce reductions—methods which in this case, according to appellants, would have resulted in the retention of a greater number of workers within the protected class of persons over the age of forty.² Appellants contend that such evidence was probative of whether Consol's explanation for its employment decisions was pretextual.

The evidence at issue is set forth in a deposition taken of Consol's human resources manager, Joseph Nypaver. Mr. Nypaver testified that Consol had used as many as seven different ranking methods to make employment decisions in implementing reductions in force. At least two of the seven ranking procedures took into consideration either the employee's years of service or both service and age, and were utilized by Consol at approximately the same time as it used the straightforward evaluation scoring method at the Arkwright mine. One of these was described by Mr. Nypaver as involving "evaluation scores and service," which consisted of

a method where we would take evaluation scores from the last couple of years ... and come up with ... either a 70, 75, or 80 percent weight for that particular part of the evaluation score and then give them the corresponding 20, 25, or 30 percent weight for length of service.

Mr. Nypaver testified that this method had been employed at a number of Consol's mines dating from the late 1980s until the late 1990s. The second such ranking method employed by Consol was based upon a similar weighting technique involving the three factors of "evaluation scores, service, and age," which, according to Mr. Nypaver, was used in connection with at least three mines from the early 1990s until the present.

In addition to the testimony of Mr. Nypaver, appellants also indicated that they intended to elicit testimony from their expert, Professor Hawley, regarding the statistical effect that such alternative procedures would have had on older workers had they been utilized in connection with the closure of the Arkwright mine.

Prior to trial, Consol brought a motion in limine objecting to the introduction of any evidence dealing with such alternative ranking systems, arguing that it was not relevant to any matter at issue in the case. The circuit court granted Consol's motion during a hearing conducted on August 14, 2000, stating from the bench that any "method that [Consol] used to determine whose job was saved and whose job was not is not relevant unless it can be demonstrated that there's a discriminatory animus, and that was the Court's ruling before."³ In support of the circuit court's ruling, Consol argues that it is permitted under West Virginia law to choose any non-discriminatory method for effectuating its employment decisions. Consol points to language from Romney Housing Auth. v. West Virginia Human Rights Comm'n, 185 W.Va. 208, 406 S.E.2d 434 (1991), where we stated that

[i]n a human rights case ... the question is not whether an employment decision was essentially fair or whether it was made in accordance with pre-established procedures. The question is whether the individual was discriminated against because of race, religion, color, national origin, ancestry, sex, age, blindness, or handicap.

Id. at 212, 406 S.E.2d at 438 (citation omitted).⁴ This line of reasoning simply proves too much.⁵ Appellants...