Recently, the Supreme Court of Appeals of West Virginia took occasion to hand down an important decision reminding employees in the state that if they are going to sue their employer for “disparate treatment” discrimination, they must demonstrate that a similarly situated person in a non-protected group was actually treated differently.

In Young v Bellofram Corp, the Plaintiff was a 60 year old female employee who had recently been promoted to a supervisor position.  After an employee under her supervision lodged a complaint of racial harassment with HR, the employer investigated and concluded that Young knew about the complaint but ignored and disregarded it.  As a consequence, Bellofram discharged Young.   In response, Young filed a Complaint for age and gender discrimination under the auspices of the W. Va. Human Rights Act.

After a bench trial, the Circuit Court of Hancock County concluded that the Plaintiff was the victim of both age and gender discrimination and awarded her several hundred thousand dollars.  A key component of the lower Court’s conclusion was the fact that another supervisor at Bellofram, Donnie Shuman, engaged in ‘similar’ conduct, but was disciplined less severely (demotion).

While there was some dispute in the record about whether the conduct Mr. Shuman engaged in was actually ‘similar’ (he failed to enforce time limits for employee breaks), the Supreme Court of Appeals held that it didn’t matter because Mr. Shuman was also over 40 years of age and, as a result, in the same protected age class as the Plaintiff.  Because the Plaintiff failed to provide a comparable employee outside of the protected age group, the Supreme Court concluded that her age discrimination claim failed.

As if that smack on the hands wasn’t enough, the Supreme Court of Appeals found the lower court’s review of the record as it related to the gender discrimination claim less than thorough as well.  According to the Supreme Court, the record indicated plainly that the things Mr. Shuman did wrong were not comparable to Ms. Young’s transgressions as a supervisor, and that the differences therefore did warrant disparate discipline.

Though the decision does not create new law in West Virginia, it is noteworthy because it provides a more recent – and authoritative – reminder of a principle that is often forgotten in cases alleging discrimination in administering discipline:  there actually has to be proof of different treatment.  It requires identifying not just an employee who engaged in similar conduct but was disciplined differently, but that such an employee also is in a non-protected group.

In addition, the case is noteworthy because it isn’t often that the Supreme Court of Appeals will overturn a decision because factual findings in the record were determined to be wrong.  To do this, the high Court must conclude that the factual findings were “clearly erroneous” below, and that’s a high threshold.  The fact that the Supreme Court of Appeals reached exactly that conclusion in this case indicates just how much was overlooked by the lower court below.

Jim Wright concentrates his practice in the area of complex and commercial litigation, particularly in the areas of energy, labor and employment and construction law as well as other business matters. He has also represented professionals before state licensure boards. During his career, he has tried numerous cases in state and federal courts throughout West Virginia and Ohio. He has also argued cases before the United States Court of Appeals for the Sixth Circuit, the West Virginia Supreme Court of Appeals and various appellate courts in the State of Ohio. Jim is a also a recognized leader in the profession, having served as a member of the West Virginia State Bar Board of Governors and currently serving as the State Bar’s Vice President.
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