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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term
MARY J. WELLS,
Plaintiff Below, Appellant
KEY COMMUNICATIONS, L.L.C., d/b/a West Virginia Wireless,
Defendant Below, Appellee.
Appeal from the Circuit Court of Kanawha County
Honorable James C. Stucky, Judge
Civil Action No. 06-C-312
Submitted: September 7, 2010
Filed: October 28, 2010
J. Michael Ranson, Esq.
George B. Morrone, III, Esq.
Ranson Law Offices
Charleston, West Virginia
Attorneys for Appellant
Ellen J. Vance, Esq.
Samuel Brock, Esq.
Spilman, Thomas & Battle
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE WORKMAN disqualified. JUDGE SPAULDING sitting by temporary
SYLLABUS BY THE COURT
1. In an action brought for employment discrimination, a plaintiff may call
witnesses to testify specifically about any incident of employment discrimination that the
witnesses believe the defendant perpetrated against them, so long as the testimony is relevant
to the type of employment discrimination that the plaintiff has alleged. Syllabus Point 2,
McKenzie v. Carroll International Corp., 216 W. Va. 686, 610 S.E.2d 341 (2004).
The instant action is before this Court upon the appeal of Mary J. Wells
[Appellant], from the circuit court's order denying her Motion for New Trial following an
adverse jury verdict in her age discrimination lawsuit filed against her former employer, Key
Communications, L.L.C. d/b/a West Virginia Wireless [Appellee]. Herein, Appellant
asserts that the circuit court erroneously excluded admissible evidence regarding age
discrimination against another employee of West Virginia Wireless. This Court has before
it the petition for appeal, all matters of record and the briefs and argument of counsel. For
the reasons expressed below, the September 24, 2009, order of the Circuit Court of Kanawha
County is affirmed.
FACTUAL AND PROCEDURAL HISTORY
West Virginia Wireless, which is owned by Robert and Linda Martin, is a
wireless communications business in West Virginia that provides cell phone services in West
Virginia and portions of Ohio, Kentucky, and Virginia. The Appellant was hired by West
Virginia Wireless on April 8, 2002, and was assigned to work in the position of Office
Administrator. At the time of her hire, Appellant was fifty years old. In October 2002, at
the age of fifty-one, Appellant was promoted to the position of Administrative Manager. In
both positions, Appellant worked on the administrative/sales side of the business as an
assistant to the General Manager.
Due to financial difficulties in 2003, West Virginia Wireless decided it was
necessary to make a reduction in workforce because the company was not profitable and was
not meeting the objectives set forth in its operating budget. As a result, a task team
compromised of some of the company's leadership determined that it was necessary to
eliminate one employee from the administrative/sales side and one employee from the
technical/operations side in order to reduce costs and try to improve sales. Appellant, who
worked on the administrative/sales side, was chosen to be terminated. Another employee that
worked as a field technician on the technical/operations side of the business, Alfred Nelson,
was also selected to be terminated.
(See footnote 1)
On June 30, 2004, Dennis Bloss, who was the General Manager and
Appellant's supervisor, terminated Appellant from her position of Administrative Manager
based upon the recommendation of the owner and primary decision-maker, Linda Martin.
At the time of her termination, the Appellant was fifty-two. Prior to Appellant's termination,
Mrs. Martin had the opportunity to spend several weeks at West Virginia Wireless
overseeing a number of changes and evaluating its staff. During this time, Linda Martin had
the opportunity to work extensively with Appellant, to observe her job duties and
performance, and to evaluate which duties could most easily be absorbed by other personnel.
Based on her observations, Linda Martin recommended to Dennis Bloss that they eliminate
the Administrative Manager position. Linda Martin concedes that she was the primary
decision maker in the decision to eliminate this particular position. Appellant filed the
underlying action against Dennis Bloss and West Virginia Wireless in February 2006,
alleging that they discriminated against her based on her age by eliminating her position of
Administrative Manager and terminating her employment. Appellant asserted that West
Virginia Wireless retained a younger employee, Sheila Wilson, who had poorer performance
and abilities. Appellant claimed that she had higher performance ratings than Wilson and
other younger, more recently hired co-workers who were retained.
With respect to the technical/operations side of the business, the record reflects
that James Williams, Operations Manager, was charged with identifying the position and/or
the person to be eliminated on the technical/operations side. In evaluating the
technical/operations workforce, Mr. Williams testified that he determined that the position
to be eliminated needed to come from one of the three field technician positions, because
they could not afford to lose any more switch technicians. After discussing the need to
eliminate one of the three field technicians with Ron Doyle, Field Technicians Immediate
Supervisor, Mr. Williams decided to eliminate Alfred Nelson's position and terminate him.
Mr. Williams testified that although generally, each of the three field
technicians were good, in evaluating the three, it was determined that Mr. Nelson had several
instances where other employees had to redo his work, or send someone out to help Mr.
Nelson in order to get his work done; whereas, the other two field technicians could function
independently and complete the required tasks. Additionally, Mr. Williams testified that Mr.
Nelson had problems with being asked to work overtime hours, and because of the fact that
the network could not be taken off-line during peak hours, there was a lot of overtime work
that was required. Mr. Nelson was terminated on the same day the Appellant was terminated,
June 30, 2004. In his lawsuit, Mr. Nelson alleged age discrimination, asserting that he was
terminated despite having a higher performance rating than younger, more recently hired co-
workers at West Virginia Wireless. West Virginia Wireless denied Mr. Nelson's allegations.
Mr. Nelson's lawsuit was settled prior to the trial in that case.
Prior to the trial in this instant case, West Virginia Wireless moved in limine
under Rules 401 and 403 of the West Virginia Rules of Evidence to exclude evidence of Mr.
Nelson's termination and age discrimination claim from the Appellant's trial asserting that
the two terminations were wholly unrelated and dissimilar because Mr. Nelson worked in a
different department than the Appellant and because the decisions to fire each were made by
different supervisors. The circuit court granted West Virginia Wireless's motion finding that
the Appellant was prohibited from introducing any testimony, evidence or arguments of
counsel regarding alleged discrimination against Mr. Nelson because such evidence was both
irrelevant and unfairly prejudicial to West Virginia Wireless.
Following the circuit court's ruling, Appellant filed a Motion in Limine to
Exclude Any Evidence, Testimony or Counsel Argument Regarding Termination of Alfred
Nelson and a Motion in Limine to Exclude Any Evidence, Testimony or Counsel
Arguments That Defendants Retained Any Employees Age 40 or Over asserting that West
Virginia Wireless should not be permitted to argue at trial that its termination of Mr. Nelson
and retention of other employees in her age-protected class were part of a legitimate, non-
discriminatory reason such as a workforce reduction. During the course of arguments on
these motions, the circuit court ruled that both parties would be permitted to present
evidence, testimony, and arguments regarding employees who worked on the
administrative/sales side of the business at West Virginia Wireless and worked under the
general supervision of Linda Martin and/or Dennis Bloss. The circuit court further ruled that
evidence regarding employees who worked on the technical/operations side of the business
under the supervision of other managers would be excluded.
Consistent with these rulings, Appellant presented evidence and arguments at
trial that Linda Martin made the decision to discharge West Virginia Wireless's former
General Manager, Bob Wilson, and hire Dennis Bloss in his place, based upon his age
instead of work performance or abilities. Appellant was also permitted to present evidence
regarding the general makeup of the administrative/sales side of the business at West
Virginia Wireless and argued that the jury should infer age discrimination from the fact that
the administrative/sales side of the business was largely comprised of employees under forty
years of age.
Following the five day trial, the jury returned a verdict in favor of West
Virginia Wireless. Thereafter, in a September 24, 2009, order denying Appellant's Motion
for a New Trial, the court again ruled that evidence regarding Mr. Nelson's termination was
properly excluded. In concluding that the evidence relating to Mr. Nelson's termination was
properly excluded because such information was not relevant, was unduly prejudicial, and
would have confused and misled the jury, the circuit court made the following findings of
1. Plaintiff worked on the Administrative/Sales side of the business
at West Virginia Wireless.
2. Alfred Nelson worked on the Operations side of the business.
3. Linda Martin and/or Dennis Bloss were involved in the decision
to terminate Plaintiff.
4. James Williams and/or Ron Doyle were involved in the decision
to terminate Alfred Nelson.
5. Any alleged discrimination against Nelson was dissimilar from
Appellant now appeals from the circuit court's order denying her Motion for
a New Trial.
STANDARD OF REVIEW
With regard to our standard for reviewing a circuit court's ruling on a motion
for a new trial, we have explained that
[a]s a general proposition, we review a circuit court's rulings on a
motion for a new trial under an abuse of discretion standard. In re State
Public Building Asbestos Litigation, 193 W. Va. 119, 454 S.E.2d 413
(1994) . . . Thus, in reviewing challenges to findings and rulings made
by a circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning a new
trial and its conclusions as to the existence of reversible error under an
abuse of discretion standard, and we review the circuit court's
underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.
Williams v. Charleston Area Med. Ctr., 215 W. Va. 15, 18, 592 S.E.2d 794, 797
(2003)(quoting Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 S.E.2d
374, 381 (1995)). We have also explained that
[a]lthough the ruling of a trial court in granting or denying a motion for
a new trial is entitled to great respect and weight, the trial court's ruling
will be reversed on appeal when it is clear that the trial court has acted
under some misapprehension of the law or the evidence.
Williams, 215 W. Va. at 18, 592 S.E.2d at 797 (quoting Andrews v. Reynolds Mem'l Hosp.,
Inc., 201 W. Va. 624, 630, 499 S.E.2d 846, 852 (1997)(other internal citations omitted)).
Furthermore, we have previously held that [r]ulings on motions in limine lie
within the trial court's discretion. State v. Dillon, 191 W. Va. 648, 662, 447 S.E.2d 583, 597
(1994). Our function on . . . appeal is limited to the inquiry as to whether the trial court
acted in a way that was so arbitrary and irrational that it can be said to have abused its
discretion. State v. McGinnis, 193 W. Va. 147, 159, 455 S.E.2d 516, 528 (1994).
Similarly, [t]he West Virginia Rules of Evidence and the West Virginia Rules
of Civil Procedure allocate significant discretion to the trial court in making evidentiary and
procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed to the
discretion of the trial court. Absent a few exceptions, this Court will review evidentiary . .
. rulings of the circuit court under an abuse of discretion standard. Reynolds v. City Hosp.,
Inc., 207 W. Va. 101, 108-9, 529 S.E.2d 341, 348-9 (2000); see also Jenkins v. CSX
Transportation, Inc., 220 W. Va. 721, 649 S.E.2d 294 (2007). Specifically, this Court has
determined that, in reversing a lower court's ruling on a relevancy issue, an abuse of
discretion must be shown. Miller v. Lambert, 196 W. Va. 24, 31, 467 S.E.2d 165, 172
(1995)(citing State v. Bass, 189 W. Va. 416, 432 S.E.2d 86 (1993)). Under the abuse of
discretion standard, we will not disturb a circuit court's decision unless the circuit court
makes a clear error of judgment or exceeds the bound of permissible choices in the
circumstances. Graham v. Wallace, 214 W. Va. 178, 182, 588 S.E.2d 167, 171
(2003)(quoting Hensley v. WV DHHR, 203 W. Va. 456, 461, 508 S.E.2d 616, 621 (1998)).
This Court has also noted that [o]nly where we are left with a firm conviction that an error
has been committed may we legitimately overturn a lower court's discretionary ruling.
'Where the law commits a determination to a trial judge and his discretion is exercised with
judicial balance, the decision should not be overruled unless the reviewing court is actuated,
not by a desire to reach a different result, but by a firm conviction that an abuse of discretion
has been committed.' Covington v. Smith, 213 W. Va. 309, 322-23, 582 S.E.2d 756, 769-70
(2003)(internal citations omitted).
In the present case, Appellant alleges that because the trial court excluded
evidence and testimony regarding Alfred Nelson's discharge, Appellant was prevented from
introducing evidence to the jury: (1) that her former age-protected co-employee had also
made a claim of age-based discriminatory conduct against the Appellee; (2) that both former
co-employees had allegedly been discharged by the Appellee in efforts to retain younger
employees with lower performance ratings; and (3) that both former co-employees had been
discharged by the Appellee for the same pre-textual reason of alleged financial hardship.
Appellant submits that the exclusion of this relevant and probative evidence adversely
affected Appellant's ability to meet her burden of proof on proving the employer's motive,
intent or discriminatory animus at trial.
Specifically, Appellant alleges that the circuit court committed plain error in
excluding any evidence and testimony regarding Alfred Nelson because the evidence was
clearly admissible pursuant to this Court's prior decision in McKenzie v. Carroll
International Corp., 216 W. Va. 686, 610 S.E.2d 341 (2004). Appellant argues that
McKenzie is clear that non-litigant employees may testify about age discrimination they
experienced at the hands of their employers.
In Syllabus Point 2 of McKenzie, 216 W. Va. 686, 610 S.E.2d 341, this Court
In an action brought for employment discrimination, a plaintiff may call
witnesses to testify specifically about any incident of employment
discrimination that the witnesses believe the defendant perpetrated
against them, so long as the testimony is relevant to the type of
employment discrimination that the plaintiff has alleged.
Id., Syl. Pt. 2. In so holding, this Court went on to expressly warn that [t]here are, however,
limitations to the admissibility of such evidence. Incidents that are too remote in time or too
dissimilar from a plaintiff's situation are not relevant. Id. at 691-92, 346-47 (quoting Stair
v. Lehigh Valley Carpenters Local Union No. 600 of United Bhd. of Carpenters & Joiners
of America, 813 F.Supp. 1116, 1119 (E.D.Pa. 1993)).
The admissibility of the alleged discrimination evidence is governed by Rules
401, 402, and 403 of our Rules of Evidence. Rule 401 of the West Virginia Rules of
Evidence defines relevant evidence as evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence. W.Va.R.Evid. 401. Rule 402 of the
West Virginia Rules of Evidence provides that [a]ll relevant evidence is admissible, except
as otherwise provided by the Constitution of the United States, by the Constitution of the
State of West Virginia, by these rules, or by other rules adopted by the Supreme Court of
Appeals. Evidence which is not relevant is not admissible. W.Va.R.Evid. 402. Rule 403
of the West Virginia Rules of Evidence provides that [a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence. W.Va.R.Evid. 403. The
admissibility of evidence of alleged discrimination is indeed fact dependent.
Herein, Appellant asserts that evidence regarding Alfred Nelson was
admissible under McKenzie because her and Mr. Nelson's incidents were similar enough in
nature to be deemed relevant. For example, Appellant alleges that they were both employed
in Charleston, West Virginia, within approximately seven months of one another; they were
terminated on the same date; they were both in a protected class based upon their respective
ages of fifty-two and fifty-six; and both were allegedly terminated under the general
management of Dennis Bloss and the decision making owners, Robert and Linda Martin for
the same alleged pretextual reason of financial difficulties.
While we acknowledge that there are indeed various general commonalities as
noted by the Appellant, upon review of the record in its entirety, we find that the record
supports the circuit court's fact finding decision that the two discharges were too dissimilar
to be relevant under McKenzie. In it's order denying Appellant's motion for a new trial, the
circuit court made sufficiently detailed findings of fact and conclusions of law to support its
decision, as further detailed below.
First, the circuit court specifically noted that plaintiff's overall trial theme was
based on her contention that the poor performance of the Sales Department at Key
Communications demonstrated its alleged discriminatory intent against her. In support of
her theme, plaintiff presented evidence regarding her termination, the termination of Sales
Manager Bob Wilson, and the overall makeup of the administrative/sales side of the business.
Plaintiff argued that Key Communications' poor sales record demonstrated that its retention
of Sheila Wilson instead of her and the hiring of Dennis Bloss in place of Bob Wilson was
based on age instead of work performance and abilities. The circuit court found that Mr.
Nelson's termination had nothing to do with the sales functions at Key Communications,
which was the entire focus of plaintiff's case, as Mr. Nelson was employed on a different
side of the business than the Appellant. Thus, any evidence relating to Mr. Nelson's
termination would not have been applicable to the Appellant's claim and/or her overall theme
Second, the circuit court's order also found that the evidence in the record at
the time of its ruling on the Motion in Limine
showed that the Appellant was discharged by
different supervisors than those involved in the discharge of Mr. Nelson. Specifically, the
court found that Linda Martin and/or Dennis Bloss were involved in the decision to terminate
the Appellant, and James Williams and/or Ron Doyle were involved in the decision to
terminate Alfred Nelson. The court found that the decisions to discharge the Appellant and
Mr. Nelson were two separate and distinct decisions that were made by different supervisors
in connection with two separate departments. For all these reasons, the court concluded that
any alleged discrimination against Mr. Nelson was too dissimilar from Plaintiff's situation
Our own review of the record confirms that the termination decisions in both
the Appellant's and Mr. Nelson's discharges were in fact made by two different sets of
supervisors in two separate and distinct departments. While the testimony reveals that
Dennis Bloss and Linda Martin were the immediate supervisors involved in the decision to
discharge the Appellant, they were not involved in the actual decision to terminate Mr.
Nelson specifically. The testimony reveals that Mr. Williams and Mr. Doyle, Mr. Nelson's
immediate supervisors, made the specific determination to discharge Mr. Nelson. Mr.
Williams testified that he and Mr. Doyle, as Mr. Nelson's direct supervisors, had complete
and total authority to make the selection as to who they needed to terminate, based upon
performance. They were not given any particular guidelines from Dennis Bloss or the
Martins regarding termination, but were only told to keep the best performers. Once Mr.
Williams and Mr. Doyle made their independent determination to discharge Mr. Nelson, they
reported their recommendation to Linda Martin and Dennis Bloss.
(See footnote 2)
Accordingly, because the evidence on the record shows that the Appellant was
employed on a different side of the business than Mr. Nelson and she was discharged by
different supervisors than those involved in the decision to discharge Mr. Nelson, we find
that the circuit court did not abuse its discretion in determining that the alleged incident of
discrimination against Mr. Nelson was too dissimilar from Appellant's situation.
Additionally, the circuit court did not abuse its discretion in finding that the evidence
pertaining to Mr. Nelson was not relevant to assessing the Appellee's alleged discriminatory
intent against the Appellant. The decision to discharge Mr. Nelson from employment could
not logically or reasonably be tied to the decision to discharge the Appellant from
employment, as the decisions to discharge the Appellant and Mr. Nelson were two separate
and distinct decisions that were made by different supervisors in connection with two
separate and distinct departments at West Virginia Wireless. Lastly, the circuit court did not
abuse its discretion in determining that any evidence relating to Mr. Nelson's termination
would not have been applicable to the Appellant's claim and/or her overall trial theme in this
matter, and thus, would have been irrelevant, unduly prejudicial and would have confused
and misled the jury. For all these reasons, we find that in the specific set of circumstances
presently before us, the evidence relating to Mr. Nelson's termination was properly excluded.
Accordingly, for the foregoing reasons, the September 24, 2009, order of the
Circuit Court of Kanawha County denying Appellant's Motion for a New Trial is affirmed.
The parties have represented that at the time of his hire, Mr. Nelson was fifty-three years
old. He was continuously thereafter employed by West Virginia Wireless as a field technician on
the technical/operations side of the business until his termination on June 30, 2004, at the age of
fifty-six. Mr. Nelson was one of three field technicians on the technical/operations side of the
business. The record reflects that the technical/operations side was comprised of three field
technicians and three switch technicians.
The record shows that Linda Martin and Dennis Bloss were only involved in the
overarching business decision to have the company select two different individuals to terminate,
based upon the financial difficulties they were having. Dennis Bloss testified that he made this
decision to reduce the workforce in conjunction with Robert and Linda Martin, members of the
management team. Furthermore, contrary to Appellant's allegations, Robert Martin testified in his
deposition that he did not have any involvement whatsoever in terminating Mr. Nelson or the