IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1999 Term
TINA R. RICHMOND,
Appeal from the Circuit Court of Raleigh County
Honorable Robert A. Burnside, Jr., Judge
Civil Action No. 96-C-691-B
Submitted: April 14, 1999
Filed: June 24, 1999
John D. Wooton, Esq.
B. Kostol, Esq.
Wooton Law Firm Beckley, West Virginia
Beckley, West Virginia Attorney for Appellee
Attorney for Appellant
Darrell V. McGraw, Jr.
Janie O'Neal Peyton
Assistant Attorney General
Attorney for Amicus Curiae
West Virginia Human Rights Commission
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW, deeming himself disqualified, did not participate in the decision of this case.
1. "'The standard of review recited in Syllabus Point 1 in Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994) and in Syllabus Point 1 in Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995), and their progeny, is clarified to read as follows: In reviewing a trial court's denial of a motion for judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a denial of a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of the appellate court to reverse the circuit court and to order judgment for the appellant.' Syllabus point 1, Alkire v. First National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996). Syl. Pt. 1, Dodrill v. Nationwide Mut. Ins. Co., 201 W.Va. 1, 491 S.E.2d 1 (1996).
2. 'In determining whether there is sufficient evidence to support a jury verdict, the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved. Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 38 L.Ed.2d 319 (1984).' Syllabus point 3, Realcorp, Inc. v. Gillespie, 193 W.Va. 99, 454 S.E.2d 393 (1994) (per curiam). Syl. Pt. 6, Maples v. West Virginia Dep't of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996).
3. 'Where an objection is made to an instruction for the first time on appeal and such instruction is not so deficient so as to require invocation of the plain error rule, in consonance with Rule 51, W.Va.R.C.P., this Court will not consider the late objection.' Syl. Pt. 1, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974). Syl. Pt. 1, Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 (1988).
Appellant James Ellenbogen appeals from
the January 21, 1998, order of the Circuit Court of Raleigh County denying post-trial
motions that he filed following an adverse jury verdict in a sexual
harassment/constructive discharge case. Appellant asserts error with regard to the
sufficiency of the evidence presented against him and the burden of proof instruction
given by the trial court. After considering these averments in conjunction with a thorough
review of the record, we find no error and accordingly, we affirm.
I. Factual Background
Appellant owns a dry-cleaning establishment located in Beckley, West Virginia, known as Mountaineer Cleaners. On October 12, 1995, Appellee Tina Richmond began working for Appellant. Appellee alleged that after the first three weeks of her employment, Appellant began to make numerous unwelcome sexual comments, to engage in sexual touching, and to request sex from her. When she could no longer tolerate the situation, Appellee terminated her employment on March 2, 1996. During the period of her employment, Appellee was living in an apartment owned by Appellant.See footnote 1 1
Appellee filed a complaint in circuit
court on October 11, 1996, alleging claims predicated on theories of intentional
infliction of emotional distress, assault, battery, outrageous conduct, sex
discrimination, sexual harassment, and retaliatory discharge. The case was heard by a jury
on December 9, 10, and 12, 1997 and the jury returned a verdict for Appellee for a total
amount of $71, 225.00.See footnote 2 2 Following
the verdict, Appellant filed motions seeking a judgment notwithstanding the verdict and a
new trial. The circuit court denied his post-trial motions and Appellant now seeks relief
from this Court.
II. Standard of Review
We recently set forth the standard of review for judgments notwithstanding the verdictSee footnote 3 3 in syllabus point one of Dodrill v. Nationwide Mutual Insurance Co., 201 W.Va. 1, 491 S.E.2d 1 ( 1996):
"The standard of review recited in Syllabus Point 1 in Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994) and in Syllabus Point 1 in Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995), and their progeny, is clarified to read as follows: In reviewing a trial court's denial of a motion for judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a denial of a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of the appellate court to reverse the circuit court and to order judgment for the appellant." Syllabus point 1, Alkire v. First National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996).
201 W.Va. at 3, 491 S.E.2d at 3. The standard of review with regard to a trial court's decision on the issue of a new trial is abuse of discretion. See Syl. Pt. 3, In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994).
We begin with Appellant's assignment that the evidence presented at trial was insufficient as a matter of law. We explained in syllabus point six of Maples v. West Virginia Department of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996), that
'In determining whether there is sufficient evidence to support a jury verdict, the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.' Syl. Pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 38 L.Ed.2d 319 (1984). Syllabus point 3, Realcorp, Inc. v. Gillespie, 193 W.Va. 99, 454 S.E.2d 393 (1994) (per curiam).
We review the evidence presented at trial against this standard.
Appellee testified to numerous
instances of uninvited and unwelcome conduct of a sexual nature that she experienced
during her brief employment at Mountaineer Cleaners. Examples of the harassing conduct
that Appellee endured included Appellant's constant offer to accompany her to the bathroom
to help . . . [her] pull up and down . . . [her] pants. On one occasion he
even remarked that Appellee didn't need toilet paper because he would dry . . .
[her] off with his tongue. When she declined his offer, Appellant responded,
That's okay. I have a camera up there. Based on Appellant's repeated comments
regarding the placement of a camera in the bathroom, Appellee completely stopped using the
bathroom while at work.See footnote 4 4 Before
she ceased using the bathroom, however, Appellant added insult to injury by blocking her
path to return to her work areaSee footnote 5 5
by put[ting] one hand against the wall and one hand on the rail and tell[ing] .
. . her that . . . [she'd] have to give him a kiss if . . . [she] wanted to come
downstairs. On one such occasion, Appellee pushed him away . . . and he
twisted . . . [her] arm and told . . . [her] not to ever push him away again.See footnote 6 6
Appellee testified that she was forced
to endure unwelcome physical contact from Appellant on almost a daily basis. When the
telephone rang and Appellee answered it, Appellant would take his hands and rub . .
. [her] face and tell her that she had beautiful skin. Despite her
repeated directives to stop, to which his response was laughter, Appellant continued this
conduct. In addition to stroking her face, Appellant would rub Appellee's leg area, from
her ankle to her knee while she was sitting at the press. She would ask him to stop, which
he might do momentarily, and then he would quickly resume the same type of physically
invasive contact. Appellee's only recourse was to get up and leave the room. Perhaps the
most egregious instance of harassing physical conduct was when Appellant came up behind
Appellee while she was steaming a shirt at the press, and rubbed his genital area
against . . . [her] backside, causing . . . [her] to fall forward and burn . . . [her]
left arm.See footnote 7 7 Appellee
testified that following Appellant's inappropriate comment about how her jeans fit,See footnote 8 8 she began wearing long
sweaters and other clothing that did not reveal her figure.See footnote 9 9 In addition, Appellee testified that she
had to repeatedly remove Appellant's hands from her hipbones.See footnote 10 10 Although Appellant would sometimes
feign an explanation for his conduct to the effect that he need[ed] to get by,
oftentimes he just placed his hands on her body without any stated basis. Appellant also
repeatedly smacked Appellee on . . . [her] legs and . . . [her] butt with
rolled up shirts that needed pressing.
At Christmas, Appellee testifiedSee footnote 11 11 that Appellant give
her a wrapped present, which consisted of a necklace, a black nightie and a frying
pan.See footnote 12 12 Appellee
stated that although she threw the presents down after opening them inside the cleaners,
when she left work that day they were in her car.See
footnote 13 13 During the last week of her employ at Mountaineer Cleaners,
Appellant related a dream that he had had the night before to Appellee and while doing so,
[h]e was taking the back of his thumb and rubbing up and down on his zipper.
On the very last day when Appellee was leaving for lunch, she inquired whether Appellant
wanted her to bring him something back. His answer was to inquire whether she
was going to make love to him when . . . she c[a]me back. When she responded
in a negative fashion, Appellant said, Well, then don't come back. Appellee
testified that she then requested the wages owed to her and that she was paid before she
left the cleaners.
Although Appellant contends that
Appellee offered absolutely no corroborative evidence,See footnote 14 14 the record reveals that at least three
witnesses testified to various aspects of Appellee's account of the facts. Robin Trent, a
female friend with whom Appellee had previously worked with at Revco Drug Store for a
four-year period, testified both as to seeing the Christmas gifts that Appellant gave
Appellee and to Appellee's fragile emotional state in response to her work situation. Ms.
Trent testified that she either spoke with or saw Appellee on a daily basis and Appellee
often cried or had headaches over her employment conditions. Ms.
Trent also testified to having endured similar unwanted physical touching from Appellant
when she worked at Mountaineer Cleaners for a brief period.See footnote 15 15 Another witness, Mark Ford, a Beckley
City Police Department employee, testified that Appellee spoke with him in a personal
capacity about the problems she was having with Appellant. He also testified as to seeing
her in an emotional state on various occasions when he went into the cleaners to pick up
his laundry.See footnote 16 16 He
further testified to observing a check that was written by Appellee and made payable to
Appellant in the approximate amount of $225, which was posted on a bulletin board inside
the cleaners. Mr. Ford's testimony thus supported Appellee's claim that she had written
checks to Appellant in payment of the rent, which he refused to cash. Leora Lilly, an
employee with the West Virginia Unemployment Compensation Division testified that
Appellant admitted to giving Appellee both a necklace and a frying pan. She also testified
that Appellant made no complaints about Appellee with reference to his employment of her,
and that he had in fact requested that Appellee return to work for him.
Appellant's defense to Appellee's
allegations was essentially that the lawsuit amounted to nothing more than a swearing
contest and that Appellee was lying.See footnote 17
17 Appellant testified additionally that Appellee was a bad employee who
fell asleep on the job and stole from him.See
footnote 18 18 Appellee, in closing argument, pointed out several
discrepancies with Appellant's version of the facts. First and foremost, Appellant
admitted to contacting Appellee after she had left his employ and asking her to come back
to work for him.See footnote 19 19 If
Appellee had been the poor employee and thief, as Appellant had testified at trial, the
obvious question, which Appellee called to the jury's attention, is why an admittedly
astute business person would even consider rehiring someone like Appellee.See footnote 20 20 Second, Appellee
argued that Appellant's testimony that Appellee just quit without any reason whatsoever
completely defies logic in light of Appellee's dire need of a job and income.See footnote 21 21 Appellee had
testified that she was divorced and the sole individual responsible for her then
three-year-old son, who had numerous medical problems requiring treatment.See footnote 22 22 Third, the testimony
concerning the lack of a rental agreement,See
footnote 23 23 arguably supports Appellee's version of the facts, rather
than Appellant's rendition. Whereas Appellant testified that he gave Appellee a place to
live out of humanitarian concern for her situation,See
footnote 24 24 if indeed that was his motivation, why then would he have
disconnected the utilities, without giving her any notice of his intention to do so,
shortly after she left his employ.See footnote 25 25
Appellee contended that this action supported her suggestion that Appellant had a quid
pro quo arrangement in mind when he refused to enter into a specific rental arrangement
with her.See footnote 26 26
After reviewing the record in this
matter, we are left with the firm resolve that the jury was provided with sufficient
evidence from which they could have reached a conclusion that Appellant had indeed
committed sexual harassment. Giving Appellee the benefit of the doubt, as we are required
to do, and considering all the favorable inferences, which the evidence presented as to
Appellee, we conclude that the jury could have reasonably determined based on the evidence
they heard that Appellee, and not Appellant, was the one telling the truth. Accordingly,
we find no error with regard to Appellant's insufficiency of the evidence assignment.
Appellant asserts error with regard to
the standard of proof applied by the trial court. Rather than the preponderance of the
evidence standard, Appellant argues that the trial court should have used a clear and
convincing standard. Notwithstanding the fact that the standard of evidence required for
the claims brought by Appellee is indeed a preponderance of the evidence,See footnote 27 27 Appellant, as
Appellee observes, even requested the insertion of the terms preponderance of the
evidence in plaintiff's instruction number 1 and the trial court so modified the
instruction.See footnote 28 28
This Court stated in syllabus point one
of Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 (1988),
'Where an objection is made to an instruction for the first time on appeal and such
instruction is not so deficient so as to require invocation of the plain error
rule, in consonance with Rule 51, W.Va.R.C.P., this Court will not consider the late
objection.' Syl. Pt. 1, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).
Because we find Appellant failed to object to the remaining instructional errors about
which he now complains, we find that he has expressly waived such error since none of the
alleged errors invite review under the plain error doctrine. See Muzelak,
179 W. Va. at 341, 368 S.E.2d at 711, syl. pt. 1. Accordingly, we find no error as to
Appellant's assignment with regard to the burden of proof applied by the trial court or as
to any further instructional error.
Based on the foregoing, the decision of
the Circuit Court of Raleigh County is hereby affirmed.
Footnote: 11The landlord/tenant relationship resulted when Appellant learned that Appellee needed a place to live and he offered rental property for her use. No lease agreement was ever signed and the specific terms of the rental arrangement were never made known to Appellee. Despite pressing Appellant to give her a sum certain that she owed for rent, Appellee testified that he would not provide a figure. Whenever she asked Appellant about the rent, he would respond, As long as you're working for me, don't worry about it, or As long as you're working for me, we're not going to discuss it.
Appellee would calculate what she thought she owed Appellant and write out monthly rental checks, but Appellant refused to cash the checks. Since Appellee was always paid the same amount ($200 per week) no matter how many hours she worked in excess of the initially agreed upon forty-hour work week (typically, she worked 44 to 48 hours), she figured that Appellant was withholding the additional compensation owed her for rent purposes. Only when Appellee finally left Appellant's employ did Appellant cash the final rent check that Appellee wrote to him.
Footnote: 22The jury verdict included $1,225 for lost wages; $40,000 for emotional distress, annoyance and inconvenience, humiliation and degradation; and $30,000 in punitive damages.
Footnote: 33We recognize that with the 1998 amendments to Rule 50 of the West Virginia Rules of Civil Procedure, a judgment notwithstanding a verdict is now referred to as a judgment as a matter of law.
Footnote: 44She testified that she was so convinced of the existence of a camera in the bathroom that she tore that bathroom apart looking for the camera.
Footnote: 55The bathroom was on the second floor and there was only one stairway that allowed an individual to go to the second floor.
Footnote: 66It was after this incident that Appellee ceased using the bathroom facilities at Mountaineer Cleaners.
Footnote: 77After this incident, which occurred on a Saturday, Appellee testified that she stopped working on Saturdays as she was afraid to be alone with Appellant. Apparently, she was the only employee who worked at the cleaners on those Saturdays.
Footnote: 88Appellee testified that Appellant stated in front of several customers with regard to a pair of blue jeans she was wearing that he could see every crack and that he would buy . . . [her] seven pairs of jeans if . . . [she] would wear them every day to work.
Footnote: 99Appellant's own witness, Gabrielle Elmore, corroborated that Appellee often wore long, loose-fitting sweaters.
Footnote: 1010Appellee testified that Appellant would put his hands on her hips on a daily basis, as many as six to ten times each day
Footnote: 1111While at trial Appellant only admitted to giving Appellee the frying pan, an employee of the state unemployment compensation division, Leora Lilly, testified at trial that Appellant admitted to giving Appellee both the necklace and the frying pan, during a hearing held in connection with Appellee's application for unemployment benefits.
Footnote: 1212According to Appellee, Appellant stated that he wanted . . . [her] to wear the nightgown and the necklace when . . . [she] was fixing him dinner with the frying pan.
Footnote: 1313All three of these items were introduced as exhibits at trial. A friend and former co- worker, Robin Trent, testified that she saw the Christmas presents the evening that Appellee came home with them.
Footnote: 1414Appellant wrongly argues that absent such evidence Appellee could not be successful with regard to her sexual harassment claim. See Gino's Pizza v. West Virginia Human Rights Comm'n, 187 W. Va. 312, 418 S.E.2d 758 (1992) (holding that sexual harassment can be proven without corroborating testimony).
Footnote: 1515Appellant reportedly told Ms. Trent not to come back to work when she asked for time off to go on a trip with a male customer. Ms. Trent testified that she had reproached several advances for dates from Appellant, as well as his unwelcome touching.
Footnote: 1616Mr. Ford testified specifically that generally, she would appear upset. Sometimes she would appear to have been weeping. Sometimes she would appear angry.
Footnote: 1717He also offered, apparently as a defense, the fact that he was old enough to be Appellee's father and he further suggested that, because he was allegedly impotent and therefore could not carry out the sexual act, he was not legally capable of sexual harassment.
Footnote: 1818Appellant claimed that Appellee took $20 out of the cash register on the day she left to pay Gabrielle Elmore, an individual who did alteration work for Appellant's customers, for money owed for alterations. Appellant admitted at trial, however, that he never indicated this occurrence to the Unemployment Compensation Division of the West Virginia Bureau of Employment Programs. When questioned at trial regarding this omission, his stated response was, [w]ell, it was only $20.
Footnote: 1919Not only did Appellant contact Appellee orally, he made her a written offer of employment that was dated March 30, 1996.
Footnote: 2020Appellee argued to the jury, If she was that bad of an employee, no rational businessperson would have asked her to come back.
Footnote: 2121Appellee's need of a job was so critical that on the very day she quit, she telephoned Appellant within a matter of hours and stated that she would come back to work, if he would just stop touching me. Appellee testified that Appellant hung up in response to her request.
Footnote: 2222Appellee testified that her son required daily treatments for his asthmatic condition and that he was on a heart monitor as well. The jury heard testimony by Appellee that, without notice, Appellant had her electricity and water turned off when she left his employ and that the lack of electricity prevented her from giving her son some of his required breathing treatments. Appellee testified that she was in the middle of administering one of the daily breathing treatments when the power went off.
Footnote: 2323See supra note 1.
Footnote: 2424He testified that he agreed to let Appellee live in his rental property rent-free and that she only had to pay for the utilities. The only stated benefit to Appellant from this arrangement was that his previously unoccupied rental property would now have a tenant and this would possibly prevent vandalism. The record indicates that the utilities remained in Appellant's name until after Appellant had them turned off and Appellee had to put down deposits to get them turned back on.
Footnote: 2525See supra note 22.
Footnote: 2626Appellee testified that on one occasion Appellant entered her rental home without notice or invitation at 10:30 p.m. and that she had additional locks installed to prevent a reoccurrence. Appellant denied doing this, and testified that he only entered the rental premises for the express purpose of making necessary and requested repairs.
Footnote: 2727See Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995); Slack v. Kanawha County Hous. and Redevelopment Auth., 188 W.Va. 144, 423 S.E.2d 547 (1992); Cook v. Heck's Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986).
Footnote: 2828Appellant stated: Judge, . . . I think we need to put the language in these instructions that they must find a verdict by a preponderance of the evidence.