AND THE ONSLAUGHT CONTINUES….

For those close enough to Ohio County to know of, and be encouraged by, a Judge’s dismissal of the Plaintiffs’ claims in the case of Roth v. Defelicecare, Inc. about 18 months ago, the latest in an increasingly long line of opinions unfavorable to employers released by the West Virginia Supreme Court of Appeals must be a significant disappointment.

In a climate where the boundaries limiting what can pass as a cause of action under Federal and State prohibitions against sex discrimination are routinely stretched beyond the limits of logic and common sense, the Judge’s decision at the Circuit Court level briefly restored some measure of clarity and reason. However, by reversing most aspects of that decision, the Supreme Court of Appeals invited future sex discrimination and sexual harassment complaints based on novel theories and speculative grounds.

The facts of the case are simple. Plaintiff Tricia Roth’s boss, Leslie Defelice, told her to come into the office over the weekend. Roth alleges that when she came in, she found Defelice partially undressed and engaged in sexual activity with another female employee. According to the complaint, Defelice told Roth to forget what she had seen, and threatened her with termination and loss of her respiratory therapy license if she did not go along. Roth then went on a vacation. When she returned, Defelice fired her, and allegedly gave his dislike of her choice of clothing and hairstyle as the reason. Roth filed a complaint alleging a hostile workplace, wrongful termination in violation of public policy, and intentional/reckless infliction of emotional distress, among other claims.

The Judge below dismissed the hostile environment claim because he found nothing on the face of the complaint which suggested that the unwelcome conduct Roth was subjected to (i.e., seeing Defelice with the female co-worker and discharge) was due to her gender. During oral argument on the claim before the Supreme Court of Appeals, Roth’s attorney offered nothing more than speculation based on gender-based stereotypes. He contended, “it is reasonable to conclude that a similarly-situated male employee would not have been subjected to summarily [sic] firing under the factual circumstances at issue. All too often, males view such inappropriate, unwelcome sexually explicit harassing acts and behaviors as sexual conquest to be admired.”

Incredibly, rather than disavow such stereotypical comments as the antithesis of relevant evidence, the Court of Appeals endorsed the argument by relying on it to reverse the Judge below. The Court’s explanation was that there is some possibility that a set of facts could be proven lending credence to the argument. The Court did not even attempt to explain the inexplicable: how can evidence that some men act badly some of the time prove that it is more or less likely that Defelice treated Roth differently in this case because she was a woman?

Roth’s attorney didn’t stop there, however. He was particularly imaginative when framing a cause of action for wrongful discharge in violation of substantial public policy. He alleged that the public policies violated included criminal statutes prohibiting public nudity, statues prohibiting sex discrimination and harassment, and the prohibition against terminating employees because they have given or may give truthful testimony, and it was the Court’s analysis of the third of those arguments that stands out the most.

West Virginia certainly prohibits discharging employees who have given or may give truthful testimony. However, there was nothing alleged in this case which would suggest that Roth had given or was about to give such testimony. To cure that problem, the Court engaged in still more speculation by finding that Roth might someday be asked to testify in another case pending against Defelice. In light of the Court’s reasoning, a cause of action survives under this public policy even if there is no allegation that the employee is about to give testimony, or that the employer thinks an employee is about give testimony. The mere possibility that testimony might be given at some undefined time in the future is sufficient.

The final proverbial nail in DeFelice’s appellate coffin came in the Court’s analysis of the plaintiff’s claim for intentional infliction of emotional distress. The Court actually recognized the distinction under West Virginia law between the reasons for termination and the manner in which it is carried out, but then essentially eviscerated that distinction by concluding that Roth had pled such a cause of action even though she did not plead or argue that the manner in which she was terminated was outrageous. Therefore, if the reason seems malevolent enough, then a cause of action for outrage likely exists even if the discharge is carried out with the utmost politeness, increasing the likelihood that any claim for discriminatory discharge in the future will automatically include a cognizable intentional infliction claim.

As I mentioned earlier, there were other reasons for the Supreme Court of Appeals’ reversal of the lower court’s decision, meaning there is even more to be concerned about within the Supreme Court’s latest offering to concern employers. Based just on the few elements of the opinion I have highlighted, however, this case has the unfortunate potential to shift the playing field even further in favor of plaintiffs and imaginative plaintiffs’ counsel.

“Jack” Merinar is the leader of the firm’s NLRA team. He got his introduction to labor law in the early 1990’s seeking injunctions of picket line misconduct and handling arbitrations. By the mid 1990’s he was advising employers through union campaigns and elections. His experience with campaigns led Jack to develop a focus on advising employers how to avoid campaigns where possible.
 
» See more articles by John R. Merinar, Jr.
» Read the full biography of John R. Merinar, Jr. at Steptoe & Johnson

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