Richmond v. Ellenbogen

• Decision Date: 24 June 1999
• Docket Number: No. 25434.,25434.
• Citation: 205 W.Va. 240,517 S.E.2d 473
• Court: West Virginia Supreme Court
• Parties: Tina R. RICHMOND, Appellee, v. James ELLENBOGEN, Appellant.

517 S.E.2d 473

205 W.Va. 240

Tina R. RICHMOND, Appellee, v. James ELLENBOGEN, Appellant.

No. 25434.

Supreme Court of Appeals of West Virginia.

Submitted April 14, 1999.

Decided June 24, 1999.

John D. Wooton, Esq., Wooton Law Firm, Beckley, West Virginia, Attorney for Appellant.

Karen B. Kostol, Esq., Beckley, West Virginia, Attorney for Appellee.

Darrell V. McGraw, Jr., Attorney General, Janie O'Neal Peyton, Assistant Attorney General, Attorney for Amicus Curiae West Virginia Human Rights Commission.

PER CURIAM:

Appellant James Ellenbogen appeals from the January 21, 1998, order of the Circuit Court of Raleigh County denying post-trial motions that he filed following an adverse jury verdict in a sexual harassment/constructive discharge case. Appellant asserts error with regard to the sufficiency of the evidence presented against him and the burden of proof instruction given by the trial court. After considering these averments in conjunction with a thorough review of the record, we find no error and accordingly, we affirm.

I. Factual Background

Appellant owns a dry-cleaning establishment located in Beckley, West Virginia, known as Mountaineer Cleaners. On October 12, 1995, Appellee Tina Richmond began working for Appellant. Appellee alleged that after the first three weeks of her employment, Appellant began to make numerous unwelcome sexual comments, to engage in sexual touching, and to request sex from her. When she could no longer tolerate the situation, Appellee terminated her employment on March 2, 1996. During the period of her employment, Appellee was living in an apartment owned by Appellant.¹

Appellee filed a complaint in circuit court on October 11, 1996, alleging claims predicated on theories of intentional infliction of emotional distress, assault, battery, outrageous conduct, sex discrimination, sexual harassment, and retaliatory discharge. The case was heard by a jury on December 9, 10, and 12, 1997 and the jury returned a verdict for Appellee for a total amount of $71, 225.00.² Following the verdict, Appellant filed motions seeking a judgment notwithstanding the verdict and a new trial. The circuit court denied his post-trial motions and Appellant now seeks relief from this Court.

II. Standard of Review

We recently set forth the standard of review for judgments notwithstanding the verdict³ in syllabus point one of Dodrill v. Nationwide Mutual Insurance Co., 201 W.Va. 1, 491 S.E.2d 1 (1996):

"The standard of review recited in Syllabus Point 1 in Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994) and in Syllabus Point 1 in Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995), and their progeny, is clarified to read as follows: In reviewing a trial court's denial of a motion for judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a denial of a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of the appellate court to reverse the circuit court and to order judgment for the appellant." Syllabus point 1, Alkire v. First National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996).

201 W.Va. at 3,491 S.E.2d at 3. The standard of review with regard to a trial court's decision on the issue of a new trial is abuse of discretion. See Syl. Pt. 3, In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994).

III. Discussion

We begin with Appellant's assignment that the evidence presented at trial was insufficient as a matter of law. We explained in syllabus point six of Maples v. West Virginia Department of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996), that

"`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.' Syl. Pt. 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)." Syllabus point 3, Realcorp, Inc. v. Gillespie, 193 W.Va. 99, 454 S.E.2d 393 (1994) (per curiam).

We review the evidence presented at trial against this standard.

Appellee testified to numerous instances of uninvited and unwelcome conduct of a sexual nature that she experienced during her brief employment at Mountaineer Cleaners. Examples of the harassing conduct that Appellee endured included Appellant's constant offer to accompany her to the bathroom to "help ... [her] pull up and down ... [her] pants." On one occasion he even remarked that Appellee "didn't need toilet paper because he would dry ... [her] off with his tongue." When she declined his offer, Appellant responded, "That's okay. I have a camera up there." Based on Appellant's repeated comments regarding the placement of a camera in the bathroom, Appellee completely stopped using the bathroom while at work.⁴ Before she ceased using the bathroom, however, Appellant added insult to injury by blocking her path to return to her work area⁵ by "put[ting] one hand against the wall and one hand on the rail and tell[ing] ... her that ... [she'd] have to give him a kiss if ... [she] wanted to come downstairs." On one such occasion, Appellee "pushed him away ... and he twisted ... [her] arm and told ... [her] not to ever push him away again."⁶

Appellee testified that she was forced to endure unwelcome physical contact from Appellant on almost a daily basis. When the telephone rang and Appellee answered it, Appellant would "take his hands and rub ... [her] face" and tell her that she "had beautiful skin." Despite her repeated directives to stop, to which his response was laughter, Appellant continued this conduct. In addition to stroking her face, Appellant would rub Appellee's leg area, from her ankle to her knee while she was sitting at the press. She would ask him to stop, which he might do momentarily, and then he would quickly resume the same type of physically invasive contact. Appellee's only recourse was to get up and leave the room. Perhaps the most egregious instance of harassing physical conduct was when Appellant came up behind Appellee while she was steaming a shirt at the press, and "rubbed his genital area against ... [her] backside, causing ... [her] to fall forward and burn ... [her] left arm."⁷ Appellee testified that following Appellant's inappropriate comment about how her jeans fit,⁸ she began wearing long sweaters and other clothing that did not reveal her figure.⁹ In addition, Appellee testified that she had to repeatedly remove Appellant's hands from her hipbones.¹⁰ Although Appellant would sometimes feign an explanation for his conduct to the effect that he "need[ed] to get by," oftentimes he just placed his hands on her body without any stated basis. Appellant also repeatedly smacked Appellee "on... [her] legs and ... [her] butt" with rolled up shirts that needed pressing.

At Christmas, Appellee testified¹¹ that Appellant give her a wrapped present, which consisted of "a necklace, a black nightie and a frying pan."¹² Appellee stated that although she threw the presents down after opening them inside the cleaners, when she left work that day they were in her car.¹³ During the last week of her employ at Mountaineer Cleaners, Appellant related a dream that he had had the night before to Appellee and while doing so, "[h]e was taking the back of his thumb and rubbing up and down on his zipper." On the very last day when Appellee was leaving for lunch, she inquired whether Appellant wanted her to "bring him something back." His answer was to inquire whether she "was going to make love to him when ... she c[a]me back." When she responded in a negative fashion, Appellant said, "Well, then don't come back." Appellee testified that she then requested the wages owed to her and that she was paid before she left the cleaners.

Although Appellant contends that Appellee offered absolutely no corroborative evidence,¹⁴ the record reveals that at least three witnesses testified to various aspects of Appellee's account of the facts. Robin Trent, a female friend with whom Appellee had previously worked at Revco Drug Store for a four-year period, testified both as to seeing the Christmas gifts that Appellant gave Appellee and to Appellee's fragile emotional state in response to her work situation. Ms. Trent testified that she either spoke with or saw Appellee on a daily basis and Appellee often "cried" or had "headaches" over her employment conditions. Ms. Trent also testified to having endured similar unwanted physical touching from Appellant when she worked at Mountaineer Cleaners for a brief period.¹⁵ Another witness, Mark Ford, a Beckley City Police Department employee, testified that Appellee spoke with him in a personal capacity about the problems she was having with Appellant. He also testified as to seeing her in an emotional state on various occasions when he went into the cleaners to pick up his laundry.¹⁶ He further testified to observing a check that was written by Appellee and made payable to Appellant in the approximate amount of $225, which was posted on a bulletin board inside the cleaners. Mr. Ford's testimony thus supported Appellee's claim that she had written checks to Appellant in payment of the rent, which he refused to cash. Leora Lilly, an employee with...