On November 7, 2012, the Supreme Court of Appeals of West Virginia issued an important decision upholding a jury verdict in excess of $2,000,000 in favor of a plaintiff in an employment discrimination case.  In rendering its decision, the Supreme Court of Appeals also reaffirmed a number of controversial legal issues that have troubled West Virginia employers for years. 

In Burke-Parsons-Bowlby Corporation v. Rice, the plaintiff, Mr. Rice, had his position of Controller eliminated by the defendant after a change in ownership and reorganization, resulting in Mr. Rice’s termination after approximately 23 years.  Like employees who have often been with one company for a long time, Mr. Rice had an excellent personnel record throughout the course of his employment.  Notably, just prior to Mr. Rice’s termination, the employer hired a 29-year-old employee to fill the position of Assistant Controller, and Mr. Rice was instructed to teach the new hire all that he knew about his position.     

On appeal from the jury award, the Supreme Court addressed several important issues.  First, the Supreme Court upheld the trial court’s decision to allow evidence relating to alleged discrimination against a co-worker – commonly called “me, too” evidence.  The co-worker, who worked in the State of Washington, also alleged that he was terminated by the defendant because of his age.  The Supreme Court reaffirmed that a plaintiff may call a witness to testify about incidents of employment discrimination that the witness believes that the employer perpetrated against them so long as the testimony is relevant to the type of employment discrimination that the plaintiff has alleged.  Although the co-worker was based in Washington, the Court allowed the evidence because the same supervisor made the decision to terminate both employees.

Second, the employer argued on appeal that Mr. Rice should have been barred from receiving any lost wages after the defendant made an unconditional offer of reinstatement.  Despite Mr. Rice refusing the offer of reinstatement, the jury awarded lost wages beyond the date of the reinstatement offer. 

In affirming the jury’s award, the Supreme Court reiterated that a plaintiff may refuse reinstatement if anything has occurred to render further association between the parties offensive or degrading to the employee.  The Supreme Court found that Mr. Rice had satisfied this burden because during the course of discovery, Mr. Rice’s former supervisors testified negatively about Mr. Rice’s work performance.

Finally, the employer argued that the jury’s award of back pay and front pay without considering mitigation constituted a de facto finding of punitive damages.  The Court upheld the award because the jury found that the defendant’s discharge of Mr. Rice was malicious.  As the West Virginia Supreme Court of Appeals has previously held, if a jury finds that a discharge is malicious, then the plaintiff is relieved of any duty to mitigate his damages.  As a result, Mr. Rice’s post-termination income and reasonably expected income were not to be considered by the jury. 

The Rice decision continues a recent trend in which the Supreme Court of Appeals is seeing more and more large jury verdicts in West Virginia employment discrimination cases.  Given the Court’s latest reaffirmation of some of the key legal principles which govern employment terminations, employers need to be as vigilant as ever with their employment practices.  Employers who fail to do so risk being subject to a suit and potential adverse verdict which would be another in a growing line of recent seven-figure jury awards in the state.


Joseph Leonoro concentrates his practice in matters involving labor and employment law.
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