JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
Appellant Herman Campbell appeals from the denial of his post-verdict motion for judgment as a matter of law with regard to a common law retaliatory discharge claim filed against him in connection with his operation of a business known as Irene's Bar. In addition, Appellant contends that the trial court erred in awarding costs and fees to Appellees Patty and Robert Kalany under the West Virginia Human Rights Act (the Act) (See footnote 1) in view of the circuit court's ruling that, based on the number of employees Mr. Campbell employed at Irene's Bar, (See footnote 2) the Act was inapplicable. Upon our studied review of this matter, we conclude that the trial court did not commit error by refusing to grant Appellant's motion for judgment as a matter of law on the retaliatory discharge claim, but we do find error with regard to the award of attorney's fees and costs. Accordingly, the decision of the Circuit Court of Ohio County is affirmed in part and reversed in part.
Appellant filed a post-verdict motion for judgment as a matter of law through
which Mr. Campbell argued that the verdict was not supported by the evidence and was
contrary to law. On April 7, 2005, Appellees filed a motion for attorney's fees and costs
based on the jury award of damages for the common law retaliatory discharge claim. The
trial court denied Appellant's renewed motion for judgment as a matter of law by its ruling
of August 3, 2005, and awarded Appellees $57,332.50 in attorney's fees and $2,762.56 in
costs by order entered on November 15, 2005. To support its award of attorney's fees, the
trial court reasoned that Mr. Campbell was a person subject to the Act and that such fees
were allowable against him in connection with his reprisal against Patty Kalany for
reporting the kiss to her husband. Through this appeal, Appellant seeks a reversal of the
trial court's decision to deny his post-verdict motion for judgment as a matter of law on the
common law retaliatory discharge claim and a reversal of the award of attorney's fees and
costs under the Act.
Even though a discharged at-will employee has no
statutory claim for retaliatory discharge under W.Va. Code, 5-
11-9(7)(C)  of the West Virginia Human Rights Act
because his or her former employer was not employing twelve
or more persons within the state at the time the acts giving rise
to the alleged unlawful discriminatory practice were committed,
as required by W.Va. Code, 5-11-3(d) , the discharged
employee may nevertheless maintain a common law claim for
retaliatory discharge against the employer based on alleged sex
discrimination or sexual harassment because sex discrimination
and sexual harassment in employment contravene the public
policy of this State articulated in the West Virginia Human
Rights Act, W.Va. Code, 5-11-1, et seq.
Appellant reasons that absent a finding of common law sexual harassment or sexual discrimination, there can be no common law retaliatory discharge claim as the public policy basis for allowing such a claim is nonexistent in such cases.
Where Appellant goes astray is to suggest that only by proving a sexual harassment claim could Appellees establish the requisite public policy violation under the facts of this case. In so arguing, Mr. Campbell overlooks this Court's recognition that it is against the public policy of this state for an employer to retaliat[e] against any individual for expressing opposition to a practice that he or she reasonably and in good faith believes violates the provisions of the West Virginia Human Rights Act. Syl. Pt. 11, in part, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995); accord Williamson, 200 W.Va. at 430, 490 S.E.2d at 32 (recognizing that [t]he West Virginia Human Rights Act establishes a clear and unequivocal public policy against sex discrimination in employment and retaliatory discharge based thereon). The alleged act of sexual harassment _ the unwelcome and forced kiss _ clearly qualifies as a practice that is in violation of the provisions of the Act. See W.Va. Code § 5-11-9-(7)(C). The record of this case supports Appellees' position that Mrs. Kalany told her husband about the alleged kiss; that Mr. Kalany discussed the incident with Mr. Campbell; and that following Mr. Kalany's meeting with Mr. Campbell about the alleged incident, Mrs. Kalany was never placed on the work schedule at Irene's Bar.
This Court has previously explained at length the rationale for encouraging individuals to report incidents of suspected sexual harassment even before the time when such conduct becomes actionable:
The legislative purpose in including the antiretaliation provision
was obviously to encourage people to come forward and expose
unlawful employment practices and to do so without fear of
reprisal. By protecting reasonable, good faith opposition, the
provision also advances the statutory purpose of ending
discrimination by engaging private citizens to help serve as
private attorneys general. An absence of such protection
would create a chilling effect on employees' willingness to join
the fight. The overriding purposes of W.Va. Code,
5-11-9(7)(C), would be wholly defeated if its protection applied
only to those individuals who confidently know the technical
area of fair employment law and who correctly predict how its
doctrine will ultimately be applied in a court of law. Given
those unpredictable variables, few rational employees would
take much solace in the protection from retaliation offered by
such a narrow construction of W.Va.Code, 5-11-9(7)(C).
This case illustrates another example supporting the prevailing federal view, that is, in hostile environment harassment cases (sexual, racial, or whatever), the offensive conduct often does not rise to the level of actionability until after there has been a significant accumulation of incidents. Both employees and employers would benefit from a standard that encourages harassed employees to come forward early, well before the ephemeral line of legal liability has been crossed, in order to root out the problem before it grows into an unmanageable and costly crisis. See generally Syl. pt. 2, in part, Curry v. Gatson, 180 W.Va. 272, 376 S.E.2d 166 (1988) (if an employee is sexually or racially harassed at the workplace and this discriminatory treatment would cause a reasonably prudent person to resign, such employee is not disqualified from receiving unemployment compensation benefits).
Hanlon,195 W.Va. at 112, 464 S.E.2d at 754.
Recently this Court addressed the very issue raised here _ whether a reprisal claim can exist independent of a sexual harassment claim. In Akers v. Cabell Huntington Hospital, Inc., 215 W.Va. 346, 599 S.E.2d 769 (2004), the trial court, in granting a directed verdict on a sexual harassment claim, presumed that if there was no sexual harassment, there could be no reprisal. (See footnote 7) Id. at 356, 599 S.E.2d at 779. Refuting this presumption, we expounded:
The law is clear that a reprisal claim can stand on its own without actionable sexual harassment. By this, we mean that in those cases where a plaintiff cannot prove that he/she was the subject of sexual harassment, the law nonetheless permits that individual to prove that his/her employer took improper employment-related action against him/her based solely on the reporting of the alleged sexual harassment. Thus, even if the trial court had properly ruled against Appellant on the sexual harassment claim, she was entitled, assuming the demonstration of a prima facie case of reprisal, to have proceeded to the jury for a determination of whether the Hospital took retaliatory action against her based on her reporting of the alleged sexual harassment.
Akers, 215 W.Va. at 357, 599 S.E.2d at 780.
The public policy concerns that supported a claim for common law retaliatory discharge in this case were twofold: (1) sexual harassment is in violation of the public policy of this State; and (2) an action of reprisal taken against an individual who reports an instance of alleged sexual harassment is in violation of the public policy of this State. Appellant is simply mistaken in suggesting that the predicate public policy violation necessary to proceed on a common law retaliatory claim under the holding of Williamson is lacking in this case. See 200 W.Va. at 423, 490 S.E.2d at 25, at syl. pt. 8. As we previously articulated in Akers, in those cases where a plaintiff cannot prove that he/she was the subject of sexual harassment, the law nonetheless permits that individual to prove that his/her employer took improper employment-related action against him/her based solely on the reporting of the alleged sexual harassment. 215 W.Va. at 357, 599 S.E.2d at 780. Provided that a plaintiff has made out a prima facie case of reprisal (here the permanent layoff following the reporting of the alleged sexual harassment), a jury is entitled to decide whether an employer took retaliatory action against an employee based on the reporting of the alleged sexual harassment. That is exactly what the jury decided in this case. Even though they apparently did not believe that Mrs. Kalany proved that the kissing incident took place, they did believe that Mr. Campbell took retaliatory action against her for the reporting of the alleged kissing incident.
While we appreciate Appellant's contention that the law should not provide relief to an employee who does not prove the underlying act of sexual harassment occurred, (See footnote 8) sexual harassment cases are often inherently difficult to prove because of the he said/she said nature of the case. In recognition of this difficulty of proof, a claim for retaliatory discharge does not require proof of the underlying claim of sexual harassment or discrimination. See Akers, 215 W.Va. at 357, 599 S.E.2d at 780; see Syl. Pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986) (setting forth elements of reprisal claim). We wish to emphasize that we are not sanctioning relief being awarded to a complainant who, as Appellant maintains, has falsely charged her employer with an act of sexual harassment. The record in this case contains no finding by the jury that the alleged kiss did not take place. And, while Appellant presumes the jury reached this conclusion based on the jury's negative response to special interrogatory number two, (See footnote 9) this Court cannot operate on presumptions in reviewing a case for reversible error.
Having rejected Appellant's argument that the predicate public policy basis for the assertion of a common law retaliatory discharge claim was absent in this case, (See footnote 10) we find no error in the trial court's decision to deny Mr. Campbell's post-verdict motion for judgment as a matter of law on the common law retaliatory discharge claim.
The goal of the West Virginia human rights law is to
protect the most basic, cherished rights and liberties of the
citizens of West Virginia. Effective enforcement of the human
rights law depends upon the action of private citizens who, from
our observations of these matters, usually lack the resources to
retain the legal counsel necessary to vindicate their rights. Full
enforcement of the civil rights act requires adequate fee awards.
Id. at 80, 380 S.E.2d at 247.
While we appreciate Appellees' attempt to extend the statutory award of fees and costs to common law actions based on the theory that the same underlying public policy rationale that seeks to encourage the prosecution of actions instituted under the Act should also apply to actions brought outside of the Act, the law does not permit us to make such an extension. Clearly, the trial court was reaching in trying to bring Mr. Campbell within the parameters of the Act by characterizing him as person subject to the Act's provisions. That Mr. Campbell was the employer of Mrs. Kalany cannot seriously be disputed. And, despite the protestations offered by Appellees, there is a rational basis for enacting state and federal legislation which addresses prohibited discriminatory conduct in a manner that does not apply to employers whose business interests do not require the use of more than a minimal number of employees. (See footnote 14) See Greenville Women's Clinic v. Bryant, 222 F.3d 157, 174 (4th Cir. 2000 ) (observing that legislative line drawing is inherent to lawmaking and recognizing that rational-basis review requires only that line must be drawn in a manner that reasonably furthers the legislative concern at issue); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir. 1993) (recognizing that Congress did not want to burden small entities with the costs associated with litigating discrimination claims).
The trial court was acting outside of the statutory authority extended by the Legislature in making an award of attorney's fees and costs under the Act in connection with a common law claim of retaliatory discharge. (See footnote 15) Mr. Campbell, as an employer who does not come within the protections of the Act based on the minimal number of employees he hires, cannot be deemed a statutory person for purposes of relying on the Act's authority to make an award of fees and costs at the discretion of the trial court. Accordingly, we reverse the award of attorney's fees and costs, finding no statutory authority for the award.
Based on the foregoing, we affirm the decision of the Circuit Court of Ohio County with regard to its denial of Appellant's post-verdict motion for judgment as a matter of law on the common law retaliatory discharge claim, but reverse the trial court's decision to award attorney's fees and costs to Appellees in connection with their recovery of damages for their claim of common law retaliatory discharge.