Sizemore v. Peabody Coal
Annotate this Case
September 1992 Term
_________
NO. 21014
_________
ARNOLD SIZEMORE,
Plaintiff Below, Appellee
V.
PEABODY COAL COMPANY, A DELAWARE
CORPORATION DOING BUSINESS IN WEST VIRGINIA;
PEABODY HOLDING COMPANY, INC.,
A MISSOURI CORPORATION; AND EASTERN
ASSOCIATED COAL CORPORATION, A
WEST VIRGINIA CORPORATION,
Defendants Below, Appellants
__________________________________________________________
Appeal from the Circuit Court of Wyoming County
Honorable John S. Hrko, Judge
Civil Action No. 89-C-24
REVERSED
____________________________________________________________
Submitted: September 22, 1992
Filed: December 11, 1992
Richard G. Rundle
Pineville, West Virginia
Attorney for the Appellee
C. David Morrison
Steptoe & Johnson
Clarksburg, West Virginia
Stephen P. McGowan
Steptoe & Johnson
Charleston, West Virginia
Robert Browning, Jr.
Bailey, Worrell, Viers & Browning
Pineville, West Virginia
Attorneys for the Appellants
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "In order to make a prima facie case of
discrimination under W. Va. Code, 23-5A-1, the employee must prove
that: (1) an on-the-job injury was sustained; (2) proceedings were
instituted under the Workers' Compensation Act, W. Va. Code, 23-1-1, et seq.; and (3) the filing of a workers' compensation claim was
a significant factor in the employer's decision to discharge or
otherwise discriminate against the employee." Syllabus Point 1,
Powell v. Wyoming Cablevision, Inc., 184 W. Va. 700, 403 S.E.2d 717
(1991).
2. "When an employee makes a prima facie case of
discrimination, the burden then shifts to the employer to prove a
legitimate, nonpretextual, and nonretaliatory reason for the
discharge. In rebuttal, the employee can then offer evidence that
the employer's proffered reason for the discharge is merely a
pretext for the discriminatory act." Syllabus Point 2, Powell v.
Wyoming Cablevision, Inc., 184 W. Va. 700, 403 S.E.2d 717 (1991).
3. "'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.' Syllabus Point 5,
Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert.
denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed. 2d 319 (1984)."
Syllabus Point 3, Powell v. Wyoming Cablevision, Inc., 184 W. Va.
700, 403 S.E.2d 717 (1991).
4. "'When the plaintiff's evidence, considered in the
light most favorable to him, fails to establish a prima facie right
of recovery, the trial court should direct a verdict in favor of
the defendant.' Syllabus Point 3, Roberts v. Gale, 149 W. Va. 166,
139 S.E.2d 272 (1964)." Syllabus Point 5, Adkins v. Inco Alloys
International, Inc., 187 W. Va. 219, 417 S.E.2d 910 (1992).
Per Curiam:
Eastern Associated Coal Corporation (Eastern) appeals a
final order of the Circuit Court of Wyoming County entering
judgment on a jury verdict awarding Eastern's former employee,
Arnold Sizemore, $1,560,028 in damages for retaliatory discharge.
On appeal, Eastern argues that Mr. Sizemore failed to rebut
Eastern's showing of a legitimate, nondiscriminatory reason for
terminating him. We agree; therefore, we reverse the final order
of the trial court.See footnote 1
I.
In April of 1987, Eastern, a West Virginia corporation,
was acquired by Peabody Holding Company, Inc.See footnote 2 Among its numerous
facilities, Eastern operates a mining complex in Boone County,
known as the "Wells Complex." Until the end of 1987, the Wells
Complex consisted of a preparation plant, the attendant shop, a
mine office, and two operating coal mines, Lightfoot No. 1 and
Lightfoot No. 2.
Before January 15, 1988, Mr. Sizemore worked in the Wells
Complex mine office as a senior mine clerk. Three other clerks
worked with him. All four positions were salaried. The employees
performed general administrative duties, including preparing the
payroll.
At the end of 1987, Eastern closed the Lightfoot No. 2
mine. As a result, the hourly work force at the Wells Complex was
reduced by 170.See footnote 3 When operations were suspended at the Lightfoot
No. 2 mine and the hourly workforce reduced by nearly 40 percent,
Eastern realized it would be necessary to lay off twenty-three
salaried employees. Because the workforce was drastically reduced,
Eastern concluded that it only needed three clerks to work at the
Wells Complex mine office and would need to lay off one of the four
employees working there.
On December 10, 1987, several members of Eastern's
management, two in-house attorneys, and Ricklin Brown, a private
attorney retained by Eastern, met to devise a legal and equitable
system for determining which salaried employees would be laid off.
Mr. Brown, who specializes in employment law, advised Eastern to
lay off the employees in each of the necessary job categories who
had received the lowest scores on their last job performance
evaluations. These evaluations had been conducted in May of 1987,
months before Eastern realized it would have to lay off several
salaried employees. According to Eastern's witnesses, the criteria
for these evaluations were designed to be neutral and to ignore
factors such as age, race, and workers' compensation history.
Because Mr. Sizemore had the lowest evaluation of the
four clerks at the Wells Complex mine office, he was laid off. Mr.
Sizemore does not dispute that his most recent performance
evaluation was the lowest of the four clerks employed at the Wells
Complex mine office or that the company had a legitimate business
reason to lay off salaried employees. Rather, he contends that the
real reason he was chosen to be laid off was because he had
indicated to several Eastern management personnel that he wanted to
reopen an old workers' compensation claim.
After his layoff, Mr. Sizemore filed suit against
Eastern, alleging that he was laid off because he expressed a
desire to reopen his workers' compensation claim, a violation of
W. Va. Code, 23-5A-1.See footnote 4 Eastern denied these allegations and
asserted that Mr. Sizemore was laid off because of a general work
force reduction. A jury trial was held from July 15 through 18,
1991.
At trial, Mr. Sizemore testified that in 1984 he had
suffered a work-related back injury, for which he was granted a 6
percent permanent partial disability award. In late November or
early December of 1987, Mr. Sizemore aggravated his back injury
while deer hunting. Shortly after he reinjured his back, Mr.
Sizemore called Gerald Blair, Eastern's supervisor for workers'
compensation claims, and Richard Wallace, an employees relations
representative, and discussed with them the possibility of
reopening his 1984 claim.
Mr. Sizemore testified that Mr. Blair informed him that
"salaried people didn't have injuries" and suggested he "apply to
[his] major medical instead of compensation[.]" According to Mr.
Sizemore, Mr. Blair further warned him that "there was an impending
layoff of some salaried people at the mine location and that [he]
could be one of them." Mr. Sizemore testified that he took this
statement as a veiled threat of termination if he filed a workers'
compensation claim. Mr. Sizemore also testified that Mr. Wallace
advised him not to petition to reopen his claim. Accordingly, Mr.
Sizemore decided not to seek reopening of his 1984 workers'
compensation claim.
During Eastern's case-in-chief, Mr. Blair testified that
although he had no recollection of his conversation with Mr.
Sizemore, he was confident that he never threatened Mr. Sizemore
with the loss of his job, because he had no authority in the
hiring, firing, or laying off of any employees. Mr. Wallace did
recall speaking with Mr. Sizemore; however, he remembered the
contents of the conversation much differently. Mr. Wallace
testified that he neither encouraged nor discouraged Mr. Sizemore
with regard to reopening his claim. He simply told Mr. Sizemore
"[y]ou are going to have to make up your own mind if you want to
reopen your claim for medical care."
At the close of the evidence, Eastern moved for a
directed verdict. Eastern argued that Mr. Sizemore had failed to
rebut its proof of a legitimate nondiscriminatory reason for the
lay off as prescribed in our holding in Powell v. Wyoming
Cablevision, 184 W. Va. 700, 403 S.E.2d 717 (1991). The trial
court denied this motion, and the case was submitted to the jury.
The jury returned a verdict for the plaintiff and awarded him
$60,028 in back pay, $500,000 for emotional distress, and
$1,000,000 in punitive damages.
II.
In Powell v. Wyoming Cablevision, Inc., supra, we
discussed our law regarding a claim brought based on W. Va. Code,
23-5A-1, which prohibits an employer from discriminating against an
employee who receives or attempts to receive workers' compensation
benefits. In Syllabus Points 1 and 2 of Powell, we explained the
key ingredients of such a claim:See footnote 5
"1. In order to make a prima facie
case of discrimination under W. Va. Code, 23-5A-1, the employee must prove that: (1) an
on-the-job injury was sustained; (2)
proceedings were instituted under the Workers'
Compensation Act, W. Va. Code, 23-1-1, et
seq.; and (3) the filing of a workers'
compensation claim was a significant factor in
the employer's decision to discharge or
otherwise discriminate against the employee.
"2. When an employee makes a prima
facie case of discrimination, the burden then
shifts to the employer to prove a legitimate,
nonpretextual, and nonretaliatory reason for
the discharge. In rebuttal, the employee can
then offer evidence that the employer's
proffered reason for the discharge is merely a
pretext for the discriminatory act."
In Syllabus Point 3 of Powell, we reiterated our general
rule regarding the sufficiency of the evidence to support a jury's
verdict:
"'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.' Syllabus Point 5, Orr v. Crowder,
173 W. Va. 335, 315 S.E.2d 593 (1983), cert.
denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed. 2d 319 (1984)."
Applying these standards, we conclude that the jury's
verdict must be set aside. Even if we assume that the plaintiff
proved his prima facie case under Syllabus Point 1 of Powell,See footnote 6 the
plaintiff failed to show that Eastern's reason for the discharge
was pretextual. The plaintiff did not present any evidence to
rebut the employer's showing that the reduction in salaried
workforce was necessary because the workload at the mine office
significantly decreased. Indeed, on cross-examination, Mr.
Sizemore conceded that after the Lightfoot No. 2 mine closed, there
was less work at the Wells Complex mine office and that Eastern had
not filled his position with another employee since he had been
laid off. Moreover, Mr. Sizemore did not dispute that he had the
lowest score in the last job evaluation of the four employees who
worked at the Wells Complex mine office. We believe that Eastern's
decision to lay off the employee who had the poorest job
performance was both legitimate and nondiscriminatory.
Accordingly, Eastern's motion for a directed verdict at
the close of all the evidence should have been granted in
accordance with the rule contained in Syllabus Point 5 of Adkins v.
Inco Alloys International, Inc., 187 W. Va. 219, 417 S.E.2d 910
(1992):
"'When the plaintiff's evidence,
considered in the light most favorable to him,
fails to establish a prima facie right of
recovery, the trial court should direct a
verdict in favor of the defendant.' Syllabus
Point 3, Roberts v. Gale, 149 W. Va. 166, 139 S.E.2d 272 (1964)."
III.
For the foregoing reasons, we reverse the judgment of the
Circuit Court of Wyoming County.
Reversed.
Footnote: 1Eastern raises several other assignments of error, which we
need not address.
Footnote: 2Mr. Sizemore was originally hired by Eastern. Eastern and
Peabody Coal Company are sister corporations, each of which is a
separate, wholly-owned subsidiary of Peabody Holding Company,
Inc. After Peabody Holding Company acquired Eastern, Mr.
Sizemore was offered continued employment with Peabody Holding
Company. Mr. Sizemore filed suit against Eastern, Peabody
Holding Company, Inc., and Peabody Coal Company. For purposes of
this appeal, we will refer to these entities collectively as
"Eastern."
Footnote: 3At the same time, another mine, Kopperston No. 1, which was
not a part of the Wells Complex, had a severe depletion of coal
reserves. Eastern was forced to eliminate a number of shifts at
that mine, which resulted in laying off approximately 80 hourly
work force employees.
Footnote: 4W. Va. Code, 23-5A-1, provided: "No employer shall
discriminate in any manner against any of his present or former
employees because of such present or former employee's receipt of
or attempt to receive benefits under this chapter."
Footnote: 5In 1990, the legislature clarified some of the parameters
of W. Va. Code, 23-5A-1, by enacting W. Va. Code, 23-5A-3. See
Powell v. Wyoming Cablevision, 184 W. Va. at 705 n.10, 403 S.E.2d 722 n.10.
Prior to the enactment of W. Va. Code, 23-5A-1, we recognized that the right to receive workers' compensation benefits was a matter of pubic policy, and, consequently, if an employer fired an employee who sought such benefits, the employer could be found liable for retaliatory discharge. See Shanholtz v. Monongahela Power Co., 165 W. Va. 305, 270 S.E.2d 178 (1980). Footnote: 6We question whether there was sufficient evidence to support the third prong of the prima facie case test, i.e., that "the filing of a workers' compensation claim was a significant factor in the employer's decision to discharge or otherwise discriminate against the employee." Syllabus Point 1, in part, Powell v. Wyoming Cablevision, supra.
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