Thompson v. Town of Alderson

• Decision Date: 27 May 2004
• Docket Number: No. 31393.,31393.
• Citation: 600 S.E.2d 290,215 W.Va. 578
• Court: West Virginia Supreme Court
• Parties: Lois THOMPSON, Plaintiff Below, Appellant, v. TOWN OF ALDERSON; Harryette Williams; John C. McCurdy; Ann Eskins; George Lively; Mike Hanna; and Tod Hanger, individually and in their official capacities; and Charles M. Lobban, Jr., in his official capacity, Defendants Below, Appellees.

600 S.E.2d 290

215 W.Va. 578

Lois THOMPSON, Plaintiff Below, Appellant, v. TOWN OF ALDERSON; Harryette Williams; John C. McCurdy; Ann Eskins; George Lively; Mike Hanna; and Tod Hanger, individually and in their official capacities; and Charles M. Lobban, Jr., in his official capacity, Defendants Below, Appellees.

No. 31393.

Supreme Court of Appeals of West Virginia.

Submitted: February 24, 2004.

Filed: May 27, 2004.

William D. Turner, Esq., Crandall, Pyles, Haviland & Turner, Lewisburg, for Appellant.

Richard D. Klaber, Esq., Anne L. Wilcox, Esq., Dickie, McCamey & Chilcote, Pittsburgh, PA, for Appellee Town of Alderson.

STARCHER, J.

In this case we affirm a decision of a circuit court that denied a motion for reinstatement by an employee, in a case involving our state's Whistle-Blower Law.

I. Facts & Background

In the instant case, the appellant, Lois Thompson ("Ms.Thompson"), was fired from her position as Accounts Receivable Clerk for the appellee Town of Alderson ("the Town") in 1999. The appellant filed suit against the Town, asserting a claim under the "Whistle-Blower Law," W.Va.Code, 6C-1-1, et seq.

The appellant claimed that her termination was caused or contributed to by her reporting of significant water losses in the Town's public water system. The appellant also asserted a breach of contract count against the Town and a count of slander against the Town's mayor, who made the decision to terminate the appellant.

The case was tried to a jury, which found for the appellant on the Whistle-Blower count. On that count, the jury awarded the appellant $16,000.00 for back pay, $0 for front pay, and $0 for emotional distress and mental anguish. The jury found against the appellant on the breach of contract count, but found for the appellant on the slander count—awarding her $0 for damages to the appellant's reputation and her past and future income, and $750.00 for her emotional distress and mental anguish.

The jury was instructed that if they found that the appellant had been wrongfully discharged, they should award her a sum that would make her whole in light of all the circumstances. The jury was specifically told that they could award "front pay¹ ... for such period of time as you find appropriate"—if they found that the appellant would have continued her employment with the Town, had she not been wrongfully terminated.²

The trial lasted a week. At one point during their deliberations the jury told the judge that they were deadlocked; the judge encouraged them to continue. The jury also asked the judge if they could consider the issue of reinstatement. The judge sent the jury a note telling them that they did not have the option of considering reinstatement, but that reinstatement might be a remedy that the judge could consider—if the jury reached a verdict, and depending on the nature of that verdict.

The appellant presented expert testimony at trial that her total "back pay" wage loss at the time of trial was in the amount of $57,658.00. The appellant also put on expert evidence that her "front pay" or future lost earnings until age 67 were in the amount of $672,715.00.³

Following the jury's verdict, the appellant made a motion for a post-trial injunction requiring the Town to reinstate her to her former job. The circuit judge denied the motion, explaining his decision as the result of considering four factors: first, that the appellant was clearly an at-will employee; second, that the appellant was not awarded her full past wages and benefits by the jury; third, that appellant was not awarded any front pay by the jury; and fourth, that the appellant's discharge was not a violation of the appellant's constitutional rights. It is from this ruling by the circuit court that the appellant appeals.

II. Standard of Review and Discussion⁴

The Whistle-Blower Law states at W.Va.Code, 6C-1-5 [1988]:

A court, in rendering a judgment for the complainant in an action brought under this article, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.

In Dobson v. Eastern Associated Coal Corp., 188 W.Va. 17, 24, 422 S.E.2d 494, 501 (1992), this Court recognized that "make-whole" relief could include an award by a jury of front pay in a wrongful discharge case, where reinstatement was not appropriate. Where a plaintiff is offered and accepts reinstatement to a comparable position, however, reinstatement and front pay are not an issue. See, e.g., Haynes v. Rhone-Poulenc, Inc., 206 W.Va. 18, 25-26, 521 S.E.2d 331, 338-39 (1999). Similarly, in Casteel v. Consolidation Coal Co., 181 W.Va. 501, 507, 383 S.E.2d 305, 311 (1989), we recognized that a jury may award front pay in a Human Rights Act case where the employer, by opposing reinstatement, "elected front pay rather than reinstatement."

In Perilli v. Board of Education of Monongalia County, 182 W.Va. 261, 387 S.E.2d 315 (1989), we recognized the proper role of the jury in calculating front pay as opposed to in deciding on reinstatement. We held that a person who was seeking inter alia an injunction requiring that she be hired for a job from which she claimed to have been illegally barred by sex discrimination was entitled to a jury trial on the discrimination issue and on her damages—but not on the injunction issue.⁵

As previously noted, the remedies set forth in the Whistle-Blower Law, W.Va.Code, 6C-1-5 [1988] are reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate. And, as our discussion has shown, the issue of ordering reinstatement for a prevailing plaintiff is an equitable decision that is committed to the sound discretion of the trial judge, and not the jury. Perilli, supra.⁶

Procedurally, addressing the issue of reinstatement in an employment law case is susceptible to several different approaches, depending on the circumstances. A plaintiff and defendant may stipulate prior to trial, or a court may rule preliminarily, that reinstatement is not a remedy that will be considered by the court, should the plaintiff prevail on the merits. Such a determination will most likely affect the fashion in which instructions are given and a verdict rendered. In the absence of such a determination, a jury may be instructed that in the event that the plaintiff prevails on the merits, there is a possibility of reinstatement by the trial court—and that any front pay award calculated by the jury may be mooted if there is a decision by the judge to order some form of reinstatement.⁷ Other fact patterns may require other approaches.

A number of factors may go into a trial judge's exercise of discretion relating to the reinstatement issue in a given employment case; it would be difficult to create an exhaustive list. For example, in Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 322 (1st Cir.1989), the court stated:

Whenever an ex-employee sues alleging wrongful dismissal by a government agency, job restoration may be a material aspect of meaningful relief. Yet in the real world, reinstatement in unlawful-discharge cases often will place some burden on the agency: there will likely be tension (or even hostility) between the parties when forcibly reunited; employees who have assumed duties previously performed by the fired worker will have to be displaced when he or she returns; and, as a result, the public's business may be conducted somewhat less efficaciously.

Obviously, the considerations with private employers may be somewhat different, but equally multifaceted.

Our task in the instant case is to review a discretionary decision by a circuit court— made on the basis of evidence that was adduced at a one-week trial, the record of which is not before us. Based on what is before us, we cannot conclude that the trial court erred in not awarding reinstatement to the appellant.⁸

We find it significant, as did the trial court, that the jury was instructed that they should "make the plaintiff whole" if they found a wrongful discharge—and, so instructed, they declined to award the appellant even one-half of her calculated back wages, or any "front pay." The jury may have concluded that the appellant had not mitigated her damages before trial; or they may have concluded that she would have been properly discharged at some time well before trial. In the absence of any evidence to the contrary, a plausible reading of the jury's verdict is that the appellant was not entitled to have kept her former job up until the time of trial, much less after trial. Under these circumstances, we believe that the trial court was within his discretion to decline to enter an injunctive order requiring that the appellant be reinstated to her former job.⁹

III. Conclusion

For the foregoing reasons, the decision of the Circuit Court of Monroe County is affirmed.

Affirmed.

1. "`Front pay' is a shorthand term frequently used ... to refer to future lost pay and benefits." Tadsen v. Praegitzer Industries, Inc., 324 Or. 465, 472 n. 5, 928 P.2d 980, 981 n. 5 (1996). The Oregon court concluded in Tadsen that front pay damages, when...