Cleckley, J., dissenting:
The majority's opinion commits several egregious errors
that will, if not corrected, threaten to rewrite important elements
of employment discrimination law in this State and seriously
increase the burden imposed on plaintiffs to prove human rights
violations. Thus, I dissent.
Thus, this Court's sole task on review is to determine
whether the evidence supported a reasonable jury conclusion that
the defendant intentionally discriminated against Ms. Lambert. See
St. Mary's Honor Center v. Hicks, ___ U.S. ___, 113 S. Ct. 2742,
125 L.Ed.2d 407 (1993). Because the jury found that the plaintiff
bore her burden, we can reverse the circuit court only if we find
that the jury's decision was clearly erroneous. Mildred L.M. v.
John O.F., __ W. Va. __, __ S.E.2d __ (No. 22037 12/8/94) (the task
of an appellate court on review of a jury's verdict is to determine
whether the evidence was such that a reasonable trier of fact might
have reached the decision below).
Even though Aikens tells us that the prima facie case is
irrelevant at this stage, I nevertheless feel compelled to correct the majority's complete failure to follow State and federal
precedent regarding the prima facie case. Because I fear circuit
courts might rely upon the majority's errors and too easily dismiss
human rights cases at the summary judgment or directed verdict
stage, I must demonstrate that the majority's opinion is an
The difficulty can be traced to the third prong of the
analysis we set forth in Conaway, that "but for the plaintiff's
protected status, the adverse decision would not have been made."
178 W. Va. at 170, 358 S.E.2d at 429. Use of the "but for"
language in that test may have been unfortunate, at least if it
connotes that the plaintiff must establish any thing more than an
inference of discrimination.
(See footnote 4) But the Conaway decision itself
disavowed any desire to require more: "What is required of the
plaintiff is to show some evidence which would sufficiently link
the employer's decision and the plaintiff's status as a member of a protected class so as to give rise to an inference that the
employment decision was based on an illegal discriminatory
criterion." 178 W. Va. at 170-71, 358 S.E.2d at 429-30. Moreover,
Conaway expressly noted that it was not overruling our decisions in
Shepherdstown Volunteer Fire Department v. State ex rel. State of
West Virginia Human Rights Commission, 172 W. Va. 627, 309 S.E.2d
342 (1983), which had used the federal test formulated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L.Ed.2d 668 (1973), or State ex rel. State of West Virginia Human
Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc.,
174 W. Va. 711, 329 S.E.2d 77 (1985), which had used a variation on
the McDonnell Douglas standard. Rather, Conaway said its general
test was inclusive of the analysis in those cases.
When Conaway is read with this backdrop, it becomes clear
that the plaintiff in this case offered a prima facie case; in
fact, depending upon how one wants to break down the facts, she
offered two. Plaintiff alleged a discriminatory discharge and
adduced evidence that: (1) she was a member of a protected class
(See footnote 5) ); (2) she provided competent, capable, and loyal
service to her employer; (3) she was discharged; and (4) she was
replaced by someone not of her protected class. These facts,
standing alone, create an inference of discrimination. If the decision is not explained, we would suspect the employer had an
illicit motive; a fair and rational employer does not fire an
employee who is performing adequately and then hire someone totally
new to replace the discharged worker. Of course, the employer
might have a rational explanation for its action. But that is the
function of the prima facie case; it is designed to smoke out the
defendant and force it to come forward with some explanation for
its action. E.g., Conaway, supra; Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981).
In this case, the plaintiff supported the skeletal prima facie case
with evidence that the employer also purged all other members of
plaintiff's class from its workforce over a period of six to eight
months. Thus viewed, the plaintiff clearly established an
inference of discrimination, and the circuit court was correct in
requiring the defendant to offer a legitimate nondiscriminatory
reason for its discharge decision or face a directed verdict.
The defendant in this case, of course, did respond. It
offered that the plaintiff was terminated because she hit a patient
at the nursing home. Undoubtedly, that would be (if believed by
the jury) a legitimate, nondiscriminatory reason. But that
explanation also gave rise in this case to a second possible prima
(See footnote 6) That is, the plaintiff offered evidence that other employees, who were not members of her protected class, had hit
patients but were not discharged. This meets the prima facie case
outlined in Syllabus Point 2, in part, of Logan-Mingo Mental Health
Agency, which Conaway expressly reaffirmed
(See footnote 7) :
"A complainant in a disparate treatment, discriminatory discharge case . . . may meet the initial prima facie burden by proving, by a preponderance of the evidence, (See footnote 8) (1) that the complainant is a member of a group protected by the Act; (2) that the complainant was discharged, or forced to resign, from employment; and (3) that a nonmember of the protected group was not disciplined, or was disciplined less severely, than the complainant, though both engaged in similar conduct."
Accord, McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S. Ct. 2574, 49 L.Ed.2d 493 (1976). This prima facie burden is precisely what the plaintiff offered in this case.
The second comparison employee, Ms. Edgell, was a member
of a protected class, the Court decides, because she testified,
without substantiation, that she had "Native American heritage"
from her grandmother's side "back about six generations." It is
not clear whether that is six generations back from her grandmother
or from Ms. Edgell. Here, the majority fails to consider that an
employer could discriminate against an individual who is obviously
and predominantly a member of a racial minority but would not
discriminate against one who is somewhere between 1/64 and 1/256
minority blood (depending upon where those six generations start).
If an employer disciplines the former but not the latter when both
have engaged in similar conduct, that is prima facie evidence of
racial or ancestral discrimination, and unless it is explained,
such disparate treatment violates the Human Rights Act.
Moreover, the jury may very well have disbelieved Ms. Edgell that she, too, had Native American ancestry. Certainly, the defendant offered no evidence to support Ms. Edgell's ancestral claim. Although we cannot tell from the record, the jury may also have taken into account the witnesses' (both Ms. Barefoot's, a relative of the decedent-plaintiff, and Ms. Edgell's) physical appearance. This record fails to justify a conclusion that no reasonable jury could disbelieve Ms. Edgell.
This line of reasoning does not follow inexorably from
the record, but it does follow reasonably. And under the
appropriate standard of review, that is enough. Indeed, reversing
this case violates the limitations imposed on judges by the right
to trial by jury in Article III, § 13 of the West Virginia
I do, however, dissent from the Court's gratuitous
conclusion that the defendant made out a business necessity
defense. While the defendant's proffered reason for the discharge,
that the plaintiff hit a patient, is clearly a nondiscriminatory
reason and is job related, I do not think this record warrants a
conclusion that a per se rule is necessary. The Court's casual
conclusion on this matter creates the impression the business
necessity defense is easily established and is similar to the
defendant's burden in responding to a disparate treatment prima
facie case. I disassociate myself from any such implication. A
defendant can sustain the business necessity defense only by
bearing the burden of proving through evidence (and not merely
judicial intuition) that its challenged employment practice is both
related to its employees' ability to do the job in question and is
necessary to achieve an important employer objective.
On the other hand, a circuit court could, to assist the
jury in analyzing a complicated set of facts, instruct the jury
by explaining the Conaway three step analysis (prima facie
case/legitimate, nondiscriminatory reason/pretext). In that
context, the circuit court's instructions could appropriately
require the plaintiff to prove the prima facie elements by a
preponderance of the evidence. Alternatively, the circuit court
could simply instruct the jury that the plaintiff's burden is to
prove, by a preponderance, that the alleged illicit motive
contributed to the employer's adverse action against the
plaintiff. Once proven, the plaintiff must prevail unless the
defendant can show by a preponderance that the same decision
would have been made in the absence of the discriminatory motive.
Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104
L.Ed.2d 268 (1989), superseded by the 1991 Civil Rights Act, see
Stender v. Lucky Stores, Inc., 780 F.Supp. 1302 (1992); Adams v. Nolan, 962 F.2d 791 (8th Cir. 1992); Hodgon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 624 A.2d 1122 (1992).