Filed: July 23, 1992
C. David Morrison Bryan R. Cokeley
Steptoe & Johnson Steptoe & Johnson
Clarksburg, West Virginia Charleston, West Virginia
Attorney for Appellant Attorney for Appellant
Frank M. Ellison
Madison, West Virginia
Attorney for Appellee
Mario J. Palumbo
Mary Catherine Buchmelter
Office of the Attorney General
Charleston, West Virginia
Attorneys for amicus curiae,
West Virginia Human Rights Commission
Allan N. Karlin
Morgantown, West Virginia
Attorneys for amici curiae,
West Virginia Chapter of the National Organization for Women;
West Virginia Civil Liberties Union;
West Virginia Branch of the National Association for the
Advancement of Colored People
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
Justice Neely, deeming himself disqualified, did not participate
in the consideration or decision of this case.
Justice Brotherton dissents and reserves the right to file a dissenting opinion.
"In order to make a prima facie case of employment
discrimination under the West Virginia Human Rights Act, W. Va.
Code § 5-11-1 et seq. (1979), the plaintiff must offer proof of the
following: (1) That the plaintiff is a member of a protected
class. (2) That the employer made an adverse decision concerning
the plaintiff. (3) But for the plaintiff's protected status, the
adverse decision would not have been made." Syl. pt. 3, Conaway v.
Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423
"Disparate impact in an employment discrimination case is ordinarily proved by statistics[.]" Syl. pt. 3, in part, Guyan Valley Hospital, Inc. v. West Virginia Human Rights Commission, 181 W. Va. 251, 382 S.E.2d 88 (1989).
Statistical evidence may be employed by a plaintiff in proving a claim of age discrimination in employment under the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq. Under Rule 702 of the West Virginia Rules of Evidence it is not an abuse of discretion for the circuit court to allow the use of such statistical evidence if the defendant has the opportunity to rebut the same.
Where a plaintiff, as an alternative to filing a complaint with the Human Rights Commission, has initiated an action in circuit court to enforce the West Virginia Human Rights Act,
W. Va. Code, 5-11-1, et seq., then he or she may recover damages
sounding in tort.
In a case brought under the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq., an offer of reinstatement that is subject to the passing of a physical examination is not an "unconditional" offer of reinstatement.
McHugh, Chief Justice:
This case is before the Court upon the appeal of Eastern Associated Coal Corporation, the defendant below, from the May 17, 1991 order of the Circuit Court of Boone County. The appellee and plaintiff below is Dallas S. Dobson. The appellant is aggrieved by the circuit court's denial of the appellant's motion to set aside the jury verdict rendered in favor of the appellee in the amount of $325,000, and attorney's fees and costs in the amount of $94,887.05.
The appellee was employed by the appellant as a "face supervisor," which is a front-line production foreman who supervises a crew of miners belonging to a union. He was employed by the appellant for fifteen years, holding a number of positions during that period. The appellee had been a coal miner for a total of approximately 25 years.
During the 1970's and 1980's, while the appellant had reduced its work force, the appellee had maintained his employment with the appellant. However, in December, 1987, the appellant was forced to reduce its work force again. With respect to this reduction in work force, union employees were covered by the effective collective bargaining agreement, but supervisory employees, such as the appellee, were not.See footnote 1 Consequently, the appellant resorted to a plan to conduct the reduction. John Hull,
a vice-president of the appellant, met with two lawyers from the
company's legal staff, representatives from the company's personnel
department, and outside counsel. This meeting took place on
December 10, 1987.
The appellant operated six mines in Boone County, and the reduction-in-work-force plan it chose to implement was to evaluate the foremen at each of its six mines. Because the reduction in union personnel at two of the mines would result in a 12 percent reduction in supervisory personnel, the decision was made to lay off the lowest evaluated 12 percent of foremen at each mine. Outside counsel approved the plan and testified that it was age-neutral.
With respect to the evaluation system itself, the evaluations had already been conducted in May, 1987, one month after the appellant was acquired by Peabody Holding Co., Inc. The appellee's immediate supervisor, Mark Stanley, conducted this evaluation, which consisted of assigning a numerical value from 1 to 9, to fourteen different factors, such as quality of work, safety consciousness, and job knowledge. These scores were then averaged.
The appellee received a score of 5.58.See footnote 2 Accordingly, the appellee, who was 48 years old, was laid off on January 15, 1988, along with 22 other employees.
In March, 1988, two positions of employment became
available at the appellant's mine where the appellee had been
employed. The appellee and six others were notified of the
openings, but following the interview, it was determined that the
appellee lacked the experience in "longwall moving" which the
appellant claims to have been necessary for those two positions.
A face supervisor position became available in October, 1989, and the appellee was extended an unconditional offer of reemployment, but rejected this offer because his psychiatrist was of the opinion that he was too ill to return to work.See footnote 3
The appellee filed suit against the appellant based upon age discrimination for the January 15, 1988 layoff and the failure to rehire him. Following trial, which lasted from August 15, 1990 to September 12, 1990, the jury returned a verdict in favor of the appellee in the amount of $325,000, of which $200,000 represents economic losses and $125,000 represents emotional distress damages. The appellee was also awarded attorney's fees in the amount of $94,887.05.
This appeal ensued from the trial court's failure to direct a verdict in favor of the appellant, and the denial of the appellant's motion to set aside the verdict or enter judgment notwithstanding the verdict in its favor.
Primarily, the appellant contends that the appellee failed to make a prima facie case of age discrimination. Under W. Va. Code, 5-11-9(a)(1) , it is "an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, . . . [f]or any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required[.]" "The term 'discriminate' or 'discrimination' means to exclude from, or fail or refuse to extend to, a person equal opportunities because of race, religion, color, national origin, ancestry, sex, age, blindness, handicap or familial status and includes to separate or segregate[.]" W. Va. Code, 5-11-3(h)  (emphasis supplied).
In syllabus point 3 to Conaway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986), this Court held:
In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer proof of the following:
(1) That the plaintiff is a member of a
(2) That the employer made an adverse
decision concerning the plaintiff.
(3) But for the plaintiff's protected
status, the adverse decision would not have
In Conaway, we held that a plaintiff need not show direct
proof of discrimination, but may offer alternative evidence.
The first two parts of the test are easy,
but the third [regarding whether the adverse
decision would not have been made but for the
plaintiff's protected class] will cause
controversy. Because discrimination is
essentially an element of the mind, there will
probably be very little direct proof
available. Direct proof, however, is not
required. 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.
This evidence could, for example, come in the
form of an admission by the employer, a case
of unequal or disparate treatment between
members of the protected class and others by
the elimination of the apparent legitimate
reasons for the decision, or statistics in a
large operation which show that members of the
protected class received substantially worse
treatment than others.
178 W. Va. at 170-71, 358 S.E.2d at 429-30 (emphasis supplied;
Accordingly, the appellee in this case showed statistics to support his position. It is the statistical analysis that the appellant maintains is flawed and led to prejudicial error.
Specifically, the statistical evidence introduced in this case consisted of, among other things, the testimony of three experts.
Dr. Robert Reger testified to the use of "descriptive statistics," pointing out that 76% of the retained foremen were younger than the appellee. Reger also testified that 25% of those laid off were under 40 while 36% of those retained were under 40. Appellant contends that this type of statistical evaluation was rejected by the United States Court of Appeals for the Fourth
Circuit in Moultrie v. Martin, 690 F. 2d 1078 (4th Cir. 1982),
which held that a standard deviation must be used in ensuring
racial balance of grand juries because a conclusion cannot be drawn
from a straight statistical comparison.See footnote 4 The appellant also
contends that Reger's testimony ignored the mine-by-mine basis of
the evaluations performed.
Dr. Dietrich Schaupp testified as an expert in performance evaluation systems. Dr. Schaupp testified that the appellant failed to follow its own guidelines in putting its performance evaluation system in practice. Dr. Schaupp testified that age could have been a factor in the decision to terminate the appellee's employment, although he only knew the ages of those employees who were laid off, and not of those who were retained.
Kenneth Stollings also testified. Stollings operates a mine consulting business in Boone County, and he testified to comparisons of the average age of foremen on January 15, 1988 and May 31, 1988. Stollings testified that the primary reason for the appellee's employment termination was age.
Dr. Dennis Brady testified for the appellant. Brady testified that based on a number of statistical analyses he performed, the conclusion is that the appellant's policy was age-neutral. Brady also testified that Reger's methodology, i.e., descriptive statistics, does not allow the conclusions drawn, and that his (Brady's) average age analysis concludes that older employees were laid off with younger ones, thus, there was no discrimination based upon age.
This Court has recognized the following point: "Disparate impact in an employment discrimination case is ordinarily proved by statistics[.]" Syl. pt. 3, in part, Guyan Valley Hospital, Inc. v. West Virginia Human Rights Commission, 181 W. Va. 251, 382 S.E.2d 88 (1989).See footnote 5 See also Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 180 (Iowa Ct. App. 1988) (under disparate impact theory of discrimination in employment, "plaintiff is initially required to prove, most commonly through statistics, that an employer's facially neutral rule or policy has a disparate impact upon the employment opportunities of a protected class of persons"); Gay Law Students Ass'n v. Pacific Telephone & Telegraph Co., 135 Cal. Rptr. 465, 470 (Ct. App. 1977), vacated on jurisdictional grounds, 156 Cal. Rptr. 14 (Cal. 1979) (plaintiffs failed to show discrimination based upon sexual preference where no statistics were offered to prove such).
The appellant asserts that the testimony of the appellee's witnesses in this regard was prejudicial because they should not have been qualified as experts. Rule 702 of the West Virginia Rules of Evidence provides:
Rule 702. Testimony by Experts. If
scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of
an opinion or otherwise.
In a case involving the federal Age Discrimination in
Employment Act (ADEA),See footnote 6 the United States Court of Appeals for the
Sixth Circuit upheld the admission of expert testimony of a
professor who reviewed the personnel records of the plaintiff, and
then testified to the ultimate issue that in his opinion, the
plaintiff was a victim of age discrimination. In Davis v.
Combustion Engineering, Inc., 742 F. 2d 916 (6th Cir. 1984), the
court held that the broad scope of Rule 702 of the Federal Rules of
Evidence permitted admission of such expert testimony.See footnote 7 The Davis
The decision to allow a witness to testify as an expert is largely within the discretion of the trial court and will not be disturbed on appeal unless clearly erroneous or an abuse of discretion. Mannino v. International Manufacturing Co., 650 F. 2d 846, 849 (6th Cir. 1981); Morvant v. Construction Aggregates Corp., 570 F. 2d 626, 634 (6th Cir.), cert. dismissed, 439 U.S. 801, 99 S. Ct. 44, 58 L. Ed. 2d 94 (1978); United States v. Barker, 553 F.2d 1013, 1024 (6th Cir. 1977).
Rule 702 should be broadly interpreted on the basis of whether the use of expert testimony will assist the trier of fact. Mannino, supra. The fact that a proffered expert may be unfamiliar with pertinent
statutory definitions or standards is not
grounds for disqualification. Such lack of
familiarity affects the witness' credibility,
not his qualifications to testify. Ellis v.
K-Lan Co., Inc., 695 F. 2d 157, 161 (6th Cir.
. . . .
We note further that appellant's counsel
was given, and took full advantage of, the
opportunity to challenge Professor Geraghty's
familiarity with the ADEA and his credibility
as an expert. . . . In addition, the court
carefully instructed the jury that they were
to determine the weight and credibility to be
given the expert's testimony. . . . Under
these circumstances, we conclude that the
trial court did not err in permitting the
expert testimony of Professor Geraghty.
742 F.2d at 919 (emphasis supplied).
In this case, the appellant was given the opportunity, and exercised such, through the testimony of Dr. Brady to attack the credibility of the testimony of the appellee's witnesses. The jury, however, concluded that age discrimination was a factor in the appellee's employment termination.
As indicated by the above, our case law has allowed the use of statistical evidence to prove discrimination in employment. We decline the appellant's invitation to require that a specific method of statistical analysis be employed in cases involving certain types of employment termination because we believe that this would unduly burden plaintiffs in exercising their rights under the Human Rights Act.See footnote 8
Accordingly, we hold that statistical evidence may be
employed by a plaintiff in proving a claim of age discrimination in
employment under the West Virginia Human Rights Act, W. Va. Code,
5-11-1, et seq. Under Rule 702 of the West Virginia Rules of
Evidence it is not an abuse of discretion for the circuit court to
allow the use of such statistical evidence if the defendant has the
opportunity to rebut the same.
Therefore, the judgment of the circuit court is affirmed in this regard.See footnote 9
The appellant also contends that the giving of certain instructions by the circuit court constituted reversible error. We address the one instruction that we believe merits discussion.See footnote 10
Specifically, the instruction at issue is Instruction No.
13 offered by the appellee, and given by the circuit court. That
instruction, in its entirety, provided:
The Court instructs the Jury that if you have determined that the plaintiff, Dallas Dobson, was unlawfully discharged by Eastern, by Count 1--Termination or by Count 2--Refusal to Hire, or both, then in arriving at the amount of any award for damages, you should include:
(1) the reasonable value of the time, if
any, shown by the evidence in the case to have
been necessarily lost up to date by the
plaintiff since the unlawful discharge. In
determining this amount, you should consider
any evidence of plaintiff's earning capacity,
his earnings, and the manner in which he
ordinarily occupied his time before the
unlawful discharge, and find what he was
reasonably certain to have earned during the
time so lost, had he not been unlawfully
(2) also such sum as will reasonably
compensate the plaintiff for any loss of
future earning power, proximately caused by
the unlawful discharge, which you find from
the evidence in the case that plaintiff is
reasonably certain to suffer in the future.
In determining this amount, you should
consider what plaintiff's health, physical
ability and earning power were before the
unlawful discharge and what they are now; the
nature and extent of his injuries, whether or
not they are reasonably certain to be
permanent; or if not permanent, the extent of
their duration; whether he will ever be able
to obtain employment as an underground foreman
in the coal industry; all to the end of
determining, first, the effect, if any, of his
unlawful discharge upon his future earning
capacity, and, second, the present value of
any loss of future earning power, which you
find from the evidence in the case that
plaintiff is reasonably certain to suffer in
the future, as a proximate result of the
As pointed out by the appellant, the damages contained in
this instruction concern the appellee's loss of future earning
power or front pay. See Casteel v. Consolidation Coal Co., 181
W. Va. 501, 507 n. 8, 383 S.E.2d 305, 311 n. 8 (1989). The
appellant claims that such damages have no statutory
authorization.See footnote 11
W. Va. Code, 5-11-13(c)  provides:
(c) In any action filed under this section, if the court finds that the respondent has engaged in or is engaging in an unlawful discriminatory practice charged in the complaint, the court shall enjoin the respondent from engaging in such unlawful discriminatory practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employees, granting of back pay or any other legal or equitable relief as the court deems appropriate. In actions brought under this section, the court in its discretion may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant.
The appellee acknowledges that W. Va. Code, 5-11-13(c)
 does not expressly provide the specific damages that are
contained in Instruction No. 13, but maintains that under this
Court's holdings in other cases, we have implied that such damages
are authorized. For example, in Perilli v. Board of Education, 182
W. Va. 261, 263, 387 S.E.2d 315, 317 (1989), we held:
[M]oney damages for sex discrimination sounds in tort. That is, sex discrimination is an injury to the health, welfare, and dignity of the victim. Because her claim is a species of
personal injury akin to tort, the plaintiff in
a sex discrimination case has the right to try
to a jury her factual claims that would
entitle her to money damages for personal
The appellee argues that this language as well as the
phrase "or any other legal or equitable relief as the court deems
appropriate," which is contained in W. Va. Code, 5-11-13(c) ,
is the authorization for allowing damages such as loss of future
We agree with the appellee's argument on this point. Because cases involving discrimination may be brought in the circuit courts of this state, as opposed to exclusively before the Human Rights Commission, see syl. pt. 1, Price v. Boone County Ambulance Authority, 175 W. Va. 676, 337 S.E.2d 913 (1985), then the damages would be those recoverable in any action sounding in tort.
This is consistent with an interpretation of the ADEA by a federal court.See footnote 12 In Maxfield v. Sinclair International, 766 F. 2d 788 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986), the United States Court of Appeals for the Third Circuit pointed out:
The inclusion of equitable relief strengthens the conclusion that Congress intended victims of age discrimination to be made whole by restoring them to the position they would have been in had the discrimination never occurred.
Front pay, an award for future earnings,
is sometimes needed to achieve that purpose.
Ordinarily, an employee would be made whole by
a backpay award coupled with an order for
reinstatement. Reinstatement is the preferred
remedy to avoid future lost earnings, but
reinstatement may not be feasible in all
766 F.2d at 796.
Accordingly, we hold that where a plaintiff, as an alternative to filing a complaint with the Human Rights Commission, has initiated an action in circuit court to enforce the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq., then he or she may recover damages sounding in tort.See footnote 13
Because the damages recovered by the appellee in this case are recoverable under general theories of tort law, the circuit court's instruction does not constitute reversible error. Our holding in this regard is consistent with our previous holdings that an action to enforce the provisions of the Human Rights Act may be brought in the circuit court and recovery may be obtained under general theories of tort law. See Price and Perilli.See footnote 14
The appellant also contends that the appellee should not have been permitted to introduce evidence (and presumably recover) back pay or front pay accruing after the date of the appellant's "unconditional" offer of a face supervisor position in October, 1989. The appellee, on the other hand, contends that because this offer was "conditioned" upon the passing of a physical examination, then it was not an "unconditional" offer of reinstatement.
In Ford Motor Co. v. Equal Employment Opportunity Commission, 458 U.S. 219, 102 S. Ct. 3057, 73 L. Ed. 2d 721 (1982), the United States Supreme Court held that an employer who is charged with discrimination in hiring may toll the continuing of back pay damages by unconditionally offering the plaintiff the job that was previously denied.
The appellant maintains that the requirement of the appellee passing a physical examination does not vitiate the unconditional nature of the offer. However, in Orzel v. City of Wauwatosa Fire Dep't, 697 F.2d 743, 757 (7th Cir.), cert. denied, 464 U.S. 992, 104 S. Ct. 484, 78 L. Ed. 2d 680 (1983), the court held that under the ADEA, it was not unreasonable for the plaintiff to believe that the defendant's reinstatement offer was not unconditional because it "was expressly conditioned upon [the plaintiff's] taking and passing a physical exam arranged by the [defendant]."See footnote 15
Obviously, as the Maxfield court stated, reinstatement would be the preferred remedy. However, in a case brought under the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq., an offer of reinstatement that is subject to the passing of a physical examination is not an "unconditional" offer of reinstatement.
We do not believe that the appellee was offered an "unconditional" offer of reinstatement, and therefore, the circuit court did not commit error by allowing evidence of back pay and front pay subsequent to the appellant's offer of reinstatement.
For reasons stated in this opinion, the judgment of the Circuit Court of Boone County is affirmed.See footnote 16
Footnote: 1 Two hundred sixty-four union miners were laid off as part of this reduction in force. Those selected for layoff were in accordance with the collective bargaining agreement.
Footnote: 2 As a cross-check of its evaluation system, the evaluations also consisted of ranking the supervisory employees on a "best-to-worst" basis. The appellant points out that the appellee's score coincidentally also put the appellee in the lowest 12 percent, and fifth among the five foremen evaluated by Stanley.
Footnote: 3 The appellant points out that the appellee was employed by Galvan Industries in North Carolina less than one month after he was laid off and remains employed there today.
Footnote: 4 "The 'standard deviation' is a number that . . . describ[es] the probability that chance is responsible for any difference between an expected outcome and the observed outcome in a sample consisting of two groups[.]" Harris v. Marsh, 679 F. Supp. 1204, 1296 n. 145 (E.D.N.C. 1987). "The greater the number of standard deviations, the less likely it is that chance is the cause of any difference between the expected and observed results." Id.
Footnote: 5 Guyan Valley Hospital involved allegations of racial discrimination in employment.
Footnote: 6 See 29 U.S.C. § 621, et seq.
Footnote: 7 Rule 702 of the Federal Rules of Evidence is identical to this state's version of that Rule.
Footnote: 8 In Kanawha Valley Regional Transportation Authority v. West Virginia Human Rights Commission, 181 W. Va. 675, 383 S.E.2d 857 (1989), this Court addressed an age discrimination claim in the
context of a reduction in force. There, as the appellant points out, the reduction in force consisted of only one employee. In this case, the reduction consisted of laying off 23 of 182 similarly situated employees, or approximately 12.64%. However, we do not believe that this distinction, as intimated by the appellant, has any bearing on the use of statistical evidence in proving a claim of discrimination.
Footnote: 9 This Court has also reviewed the briefs of amici curiae, specifically, the West Virginia Human Rights Commission, the West Virginia Chapter of the National Organization for Women, the West Virginia Civil Liberties Union, and the West Virginia Branch of the National Association for the Advancement of Colored People, all urging affirmance of the circuit court's admission of the statistical evidence in this case.
Footnote: 10 The appellant also asserts that the verdict forms used in this case were improper because they required the appellant to "show" and "establish" a legitimate business reason for laying off and not hiring the appellee, whereas its burden is merely to "articulate" such a reason. However, we believe that the verdict forms used in this case do not merit reversal inasmuch as the language contained therein is consistent with our holding in Conaway.
Footnote: 11 The appellant also maintains that the type of damages recovered by the appellee were under the "rubric" of emotional distress damages.
Footnote: 12 29 U.S.C. § 626(c), which is similar to W. Va. Code, 5-11-13(c) , provides that a person bringing an action under the ADEA may seek "legal or equitable relief as will effectuate the purposes of" the ADEA.
Footnote: 13 The appellant argues that because the instruction included references to the appellee's health and physical ability, then the instruction, in effect, allowed a double recovery. We do not agree with the appellant's interpretation. As can be plainly seen from the language of the instruction, the references to the appellee's health and physical ability were not in relation to recovering for such, but rather, were in relation to the effect on the appellee's future ability to earn, given his state of health, whatever it may have been.
Footnote: 14 Inasmuch as "mitigation of damages" is an aspect of recovery in tort, we note that no such issue is raised with respect thereto.
Footnote: 15 Furthermore, in Ford Motor Co., the United States Supreme Court noted that a trial court may consider the effect of
a long distance move in evaluating the plaintiff's rejection of an offer of reinstatement. 458 U.S. at 238-39 n. 27, 102 S. Ct. at 3069 n. 27, 73 L. Ed. 2d at 737 n. 27. In this case, as noted previously, the appellee had moved to North Carolina.
Footnote: 16 Other assignments of error raised by the appellant, such as the general conduct of the trial, and attorney's fees awarded are, based upon our review of the record, without merit.