Powell v. Wyoming Cablevision, Inc.

Decision Date13 February 1991
Docket NumberNo. 19491,19491
Citation403 S.E.2d 717,184 W.Va. 700
CourtWest Virginia Supreme Court
Parties, 6 IER Cases 813 Timothy POWELL v. WYOMING CABLEVISION, INC.
Syllabus by the Court

1. In order to make a prima facie case of discrimination under W.Va.Code, 23-5A-1, the employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings were instituted under the Workers' Compensation Act, W.Va.Code, 23-1-1, et seq.; and (3) the filing of a workers' compensation claim was a significant factor in the employer's decision to discharge or otherwise discriminate against the employee.

2. When an employee makes a prima facie case of discrimination, the burden then shifts to the employer to prove a legitimate, nonpretextual, and nonretaliatory reason for the discharge. In rebuttal, the employee can then offer evidence that the employer's proffered reason for the discharge is merely a pretext for the discriminatory act.

3. "In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved." Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

D. Grove Moler, Moler & Staton, Mullens, for Wyoming Cablevision, Inc.

Warren R. McGraw, Pineville, for Timothy Powell.

MILLER, Chief Justice:

Wyoming Cablevision, Inc. (the employer), the defendant below, appeals a final order of the Circuit Court of Wyoming County, dated September 25, 1989. The employer asserts that there was insufficient evidence presented at trial to find that it had discharged Timothy Powell, one of its employees, in violation of W.Va.Code, 23-5A-1 (1978). 1 The employer further contends that the trial court erred in refusing to offset Mr. Powell's unemployment compensation benefits against the jury verdict. We disagree, and, accordingly, we affirm the judgment of the lower court. I.

Timothy Powell was employed as a chief installer for the employer from February, 1983, until October, 1986. His duties included climbing utility poles and running cable lines from the poles to the exterior of homes. On May 22, 1986, Mr. Powell injured the heel of his right foot when he had to jump for safety because the pole he had climbed began to fall.

Mr. Powell was unable to return to work immediately and began receiving temporary total disability (TTD) benefits from workers' compensation. He regularly kept in telephone contact with his employer's office. On August 14, 1986, Mr. Powell's treating physician wrote the employer and advised it that Mr. Powell's recovery could take up to six months. Sometime in late August or early September of 1986, Mr. Powell, apparently on crutches, appeared at the employer's office and inquired if there was any work he might do. He was advised that he could work in the shop repairing converters. Mr. Powell checked with his doctor, who advised him not to do any work that would prohibit him from keeping his foot elevated, and, therefore, he declined this offer.

On October 6, 1986, Mr. Powell's supervisor wrote him that "[i]t is ... our understanding that you will not be able to resume your normal work duties until some undetermined time in the future." 2 Accordingly, Mr. Powell was informed that he had "been removed from the Company payroll records." 3 Mr. Powell was released to return to work on May 26, 1987. He immediately reapplied for his old job; however, the employer refused to rehire him.

On October 23, 1987, Mr. Powell filed suit against the employer alleging that he had been fired in retaliation for filing a workers' compensation claim. Following a two-day trial, the jury awarded Mr. Powell $12,900 in back wages, representing the time from his release to return to work until he secured other employment in February, 1988. The employer appeals.

II.

Independent of W.Va.Code, 23-5A-1, we established the principle in Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978), that an at-will employee may seek damages from his employer if the employee's discharge contravenes a substantial principle of public policy. 4

The first occasion we had to address W.Va.Code, 23-5A-1, was in Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980). We recognized, as had other courts, that an employee who is discharged in retaliation for seeking workers' compensation benefits has a cause of action against his employer. E.g., Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973). 5 We also held that in the absence of a specific statute, the appropriate statute of limitations was two years, and found Shanholtz's claim to be time barred. Finally, we held that W.Va.Code, 23-5A-1, should be applied prospectively, and made this comment:

"The statute confers a substantive right upon employees who may be discriminated against in retaliation for their 'receipt of or attempt to receive benefits under this [Workmen's Compensation] chapter.' It is a codification of what we perceive to be the law, that is, it is a contravention of public policy and actionable to discharge an employee because he filed a workmen's compensation claim against his employer." 165 W.Va. at 312, 270 S.E.2d at 183. (Citations omitted).

Five years later, in Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985), we were once again asked to find a violation of W.Va.Code, 23-5A-1. The employee had suffered a serious work-related injury, had received workers' compensation benefits, and was unable to return to work immediately. Pursuant to the terms of the collective bargaining agreement, the employee was discharged when she was absent from work for the preceding twelve-month period. We found W.Va.Code, 23-5A-1, inapplicable because the employee "would have been terminated just as quickly under the collective bargaining agreement if she had never applied for those benefits." 175 W.Va. at 562, 336 S.E.2d at 210. 6

As is apparent from the brief review of our prior decisions, we have not fully addressed the substance of this statute.

Because many statutes, like ours, use the term "discriminate," courts have found guidance in the proof schemes of other antidiscrimination statutes. Ordinarily, the burden is on the plaintiff to prove a prima facie case. If this case is made, the defendant is required to prove some nondiscriminatory basis for its action. Thereafter, the plaintiff must show that the stated reason for the adverse action is untrue or pretextual. See, e.g., Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364 (Ala.1988); Axel v. Duffy-Mott Co., Inc., 47 N.Y.2d 1, 416 N.Y.S.2d 554, 389 N.E.2d 1075 (1979); Buckner v. General Motors Corp., 760 P.2d 803 (Okla.1988).

We have applied this same burden in discrimination cases in which a violation of our West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., is alleged. See, e.g., City of Ripley v. West Virginia Human Rights Comm'n, 179 W.Va. 375, 369 S.E.2d 226 (1988); Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986); State ex rel. West Virginia Human Rights Comm'n v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985); Shepherdstown Volunteer Fire Dep't v. West Virginia Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983).

Several states have statutes specifying that the discharge must be shown to have been motivated solely by the filing of the compensation claim. 7 In the absence of such an express statutory provision, most jurisdictions have found that an employee need only show that the filing of a workers' compensation claim was a substantial factor in bringing about his demotion or termination from employment. A typical statement of the rule is given by the Oklahoma Supreme Court in Thompson v. Medley Material Handling, Inc., 732 P.2d 461, 463 (Okla.1987):

"[A]n employee may not be discharged because of the exercise of rights under the Workers' Compensation Act.... We hold that when retaliatory motivations comprise a significant factor in an employer's decision to terminate an employee, even though other legitimate reasons exist to justify the termination, the discharge violates the intent of section 5." (Emphasis in original; footnote omitted). 8

See also Delano v. City of South Portland, 405 A.2d 222 (Me.1979); Goins v. Ford Motor Co., 131 Mich.App. 185, 347 N.W.2d 184 (1983); Santex, Inc. v. Cunningham, 618 S.W.2d 557 (Tex.Civ.App.1981). See generally 2A Larson's Workers' Compensation Law § 68.36(c) (1989 & Supp.1990).

Accordingly, we hold that in order to make a prima facie case of discrimination under W.Va.Code, 23-5A-1, the employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings were instituted under the Workers' Compensation Act, W.Va.Code, 23-1-1, et seq.; and (3) the filing of a workers' compensation claim was a significant factor in the employer's decision to discharge or otherwise discriminate against the employee. 9

In determining whether there is a nexus between the filing of the workers' compensation claim and the discharge, we take heed of this warning by the New York Court of Appeals in Axel v. Duffy-Mott Co., 47 N.Y.2d at 6, 416 N.Y.S.2d at 556, 389 N.E.2d at 1077:

"[I]n a case premised on an alleged violation of a statute purposed to counter retaliation or other discrimination, we must keep in mind that those engaged in such conduct rarely broadcast their intentions to the world. Rather, employers who practice retaliation...

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