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Martin v. Covestro LLC

Supreme Court of West Virginia

October 20, 2017

Rebecca Martin, Plaintiff Below, Petitioner
v.
Covestro LLC and Randy Hively, Defendants Below, Respondents

         Kanawha County 15-C-594

          MEMORANDUM DECISION

         Petitioner Rebecca Martin, by counsel Hoyt Glazer, appeals the Circuit Court of Kanawha County's grant of summary judgment to respondents in its October 26, 2016, order. Respondents Covestro LLC and Randy Hively, by counsel Jan L. Fox and Mark C. Dean, filed their response to which petitioner submitted a reply.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner Rebecca Martin is an employee of Respondent Covestro LLC (formerly Bayer) ("Covestro") where she had been employed as a chemical operator in South Charleston since 2007. According to the circuit court, petitioner and Respondent Randy Hively ("Hively) previously worked together at Dow Chemical Company and the two got to know one another after petitioner was hired by Bayer in 2007. Prior to the events at issue, petitioner never had issues with or concerns about Hively and petitioner had not heard of concerns regarding Hively from other female employees. Hively worked as a shift supervisor but did not supervise petitioner's regular shift; however, Hively was petitioner's shift supervisor when she worked overtime.

         On August 1, 2014, petitioner was scheduled to work an overtime shift beginning at 12:45 a.m., with the first four hours of that shift being under Hively's supervision. The unit where the two worked is located on an island in the middle of the Kanawha River in South Charleston. Normally, employees can park on the island near the jobsite, but construction and maintenance work on the bridge sometimes made it necessary for employees to move their cars to the "mainland" to ensure that their vehicles are available at the end of their shifts. Due to bridge issues on August 1, 2014, Hively asked a co-worker to watch petitioner's job while petitioner moved her car to the mainland. Hively offered petitioner a ride back to the island but also offered to have a security guard drive her back. Petitioner chose to ride back with Hively. When she got into Hively's truck, Hively told petitioner he wanted her to know how much he cared for her son, Martin Powers, who had been discharged from his job at Covestro on July 31, 2014. Petitioner began to cry, and Hively placed his hand on petitioner's shoulder. Hively then briefly discussed a man that petitioner had dated many years prior, who was Hively's cousin.[1]The two then went back inside the workplace. Petitioner's regular supervisor arrived at 4:15 or 4:20 a.m., and petitioner told the supervisor about her conversation with Hively and that she needed to go home. That supervisor drove petitioner to the mainland to retrieve her car. Thereafter, petitioner missed over a month of work.

         On March 27, 2015, petitioner filed her complaint.[2] She filed her amended complaint on April 8, 2015, setting forth four causes of action: (1) sexual harassment/hostile work environment; (2) defamation; (3) tort of outrage; and (4) deliberate intent. On June 30, 2015, petitioner gave notice to the circuit court that her deliberate intent claim was voluntarily withdrawn. By order entered on September 23, 2015, the circuit court dismissed petitioner's claim for the tort of outrage upon respondents' motion. By agreed order entered on July 7, 2016, petitioner stipulated to a voluntary withdrawal of her claim for defamation.

         Respondents filed a motion for summary judgment on July 18, 2016, on petitioner's remaining claim of sexual harassment/hostile work environment, to which petitioner submitted a response and respondents later submitted a reply. The circuit court heard oral argument on that motion on August 19, 2016, and on October 26, 2016, entered its order granting summary judgment to respondents. In that order, the circuit court found that petitioner's claim for sexual harassment/hostile work environment fails as a matter of law, finding that if petitioner failed to prove any of the elements set forth in syllabus point five of Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995), her claim of hostile work environment fails as a matter of law. The circuit court found that petitioner had identified only one isolated incident which she alleges was harassing - Hively's placing of his hand on her shoulder - which petitioner admitted had no sexual connotation. It also found that petitioner had failed to demonstrate that the conduct of which petitioner complained would have occurred "but for" petitioner's sex. In addition, it concluded that petitioner had failed to provide evidence of any conduct "that remotely could be described as severe." Thus, it held that the undisputed facts and conduct did not rise to the level of being sufficiently severe or pervasive to alter the conditions of petitioner's employment or create an abusive work environment. Because it held that petitioner's sexual harassment/hostile work environment claim fails as a matter of law, the circuit court granted summary judgment to respondents and dismissed petitioner's claim with prejudice. Petitioner appeals from that order.

         As we have previously stated, "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Further,

[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

Syl. Pt. 4, id.

         In the instant case, petitioner sets forth four assignments of error. Initially, she asserts that the circuit court committed clear legal error and abused its discretion by improperly inferring from the facts that there was no hostile work environment or sexual harassment. She argues that she properly pled the required elements for a hostile work environment claim and offered sufficient evidence to support a jury conclusion that she suffered from harassment at work. Petitioner contends that based on her interaction with Hively, the other men in the workplace believed she would perform sexual favors so that she was shunned. While she asserts that the circuit court invaded the province of the jury when it held that the only conclusion to be drawn from the facts is that the subject conduct was not based on petitioner's gender, in support of that statement she points only to her counsel's argument during the summary judgment hearing below.

To establish a claim for sexual harassment under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., based upon a hostile or abusive work environment, a plaintiff-employee must prove that (1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create an abusive work environment; and (4) it was imputable on some factual basis to the employer.

Syl. Pt. 5, Hanlon.

         Each of petitioner's other assignments of error fall within this single standard: the circuit court erred in finding the harassment was an isolated incident; the circuit court erred in finding that the subject conduct was not based on petitioner's sex; and the circuit court erred in finding that respondents' conduct was not sufficiently severe and ...


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