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State ex rel. Raven Crest Contracting, LLC v. Thompson

Supreme Court of West Virginia

November 8, 2017

STATE OF WEST VIRGINIA ex rel. RAVEN CREST CONTRACTING, LLC, and XINERGY OF WEST VIRGINIA, INC., Petitioners,
v.
HONORABLE WILLIAM S. THOMPSON Judge of the Circuit Court of Boone County, and LARRY ADKINS, Respondents.

          Submitted: October 17, 2017

         ORIGINAL PROCEEDING IN PROHIBITION WRIT DENIED

          Brian J. Moore, Esq. Katherine B. Capito, Esq. Dinsmore & Shohl LLP Charleston, West Virginia Counsel for the Petitioners

          Paul L. Frampton, Jr., Esq. Atkinson & Polak, PLLC Charleston, West Virginia Matthew M. Hatfield, Esq. Hatfield & Hatfield, PLLC Madison, West Virginia Counsel for the Respondents

         SYLLABUS

         1. "The statute of limitations for employment discrimination cases brought to enforce rights under the West Virginia Human Rights Act, W.Va. Code §§ 5-11-1 to -20 (2013), including allegations of discriminatory failure to hire, begins to run from the date a plaintiff first learns of the adverse employment decision." Syllabus Point 2, Metz v. E. Associated Coal, LLC, 239 W.Va. 157, 799 S.E.2d 707 (2017).

         2. Under the West Virginia Human Rights Act, W.Va. Code § 5-11-9 [2016], an employer's failure to rehire an employee subsequent to an allegedly discriminatory termination, absent a new and discrete act of discrimination in the refusal to rehire, cannot resurrect the stale discriminatory termination.

          OPINION

          KETCHUM JUSTICE

         In this action for a writ of prohibition, an employer asks us to examine a circuit court order denying a motion to dismiss a former employee's lawsuit. The former employee's complaint claimed that the employer engaged in two acts of discrimination: when it terminated the employee, and when it failed to rehire him 21 months later. The parties agree that the two-year statute of limitation precludes the wrongful termination claim. The question presented by the employer is whether the failure to rehire claim, filed only nine months after the alleged failure to rehire, is also barred by the statute of limitation.

         The circuit court found that the former employee's complaint alleged that the failure to rehire claim was a separate and new act of discrimination, and was not barred by the statute of limitation. The circuit court therefore refused to dismiss the former employee's failure to rehire claim. We find no error with the circuit court's order and deny the employer's request for a writ of prohibition.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Defendants Raven Crest Contracting, LLC, and Xinergy of West Virginia, Inc. (doing business as "Xinergy Corporation") operated a surface coal mine in Boone County, West Virginia. Plaintiff Larry Adkins alleges that he began working for the defendants as an equipment operator in 2008, and that he performed his duties in a satisfactory manner.

         In January 2012, the plaintiff experienced medical problems and physical disabilities related to his heart. The plaintiff's medical provider excused him from work due to the seriousness of his heart problems. The plaintiff alleged that the defendants knew of his disability and knew he had a medical excuse precluding him from working.

         On April 11, 2012, the defendants "idled" the surface mine and dismissed all employees, including the plaintiff, from work. At some point after the defendants closed the mine, the plaintiff's medical provider released the plaintiff to return to work.

         The plaintiff alleges that about 21 months later, in January 2014, the defendants again began mining coal at the Boone County facility. The plaintiff sought to be re-employed by the defendants but was not rehired. [1]

         Nine months after being denied reemployment, on September 12, 2014, the plaintiff filed a lawsuit against the defendants. The plaintiff alleged that he was over the age of 40 and was disabled, both of which are conditions protected by the West Virginia Human Rights Act. [2] In the complaint, the plaintiff contended, "the defendants willfully, maliciously and unlawfully terminated the plaintiff's employment and/or failed to re-hire the plaintiff." The plaintiff asserted that his discharge from employment and/or the defendants' failure to re-employ him were based upon the plaintiff's age and disability in violation of the Act.

         The defendants filed a motion to dismiss the complaint under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The defendants asserted the two-year statute of limitation barred the plaintiff's lawsuit. [3] The plaintiff's complaint alleged that the defendants discharged him on April 11, 2012, but he did not file his complaint until September 12, 2014, more than two years later. Thus, the defendants argued, all of the plaintiff's discrimination claims were time-barred and should be dismissed.

         The plaintiff responded to the defendants' motion to dismiss and pointed out that his complaint contained two separate acts of discrimination: a claim of wrongful discharge and a claim for wrongful failure to rehire. The plaintiff argued that the defendant's motion dealt exclusively with the plaintiff's claim for wrongful termination, and made no mention of the claim for failure to rehire. [4]

         The defendants replied and for the first time specifically addressed the failure to rehire claim. The defendants argued that the plaintiff knew about any alleged discrimination "at the time of his employment termination." Furthermore, the defendants asserted that the plaintiff was merely trying to save his case, and render the statute of limitation meaningless, by reapplying for employment.

         In an order dated June 13, 2017, the circuit court ruled upon the defendants' motion to dismiss. The circuit court found that the plaintiff's complaint "contained allegations of both wrongful termination and failure to hire." The plaintiff had admitted to the circuit court that he filed the claims for wrongful termination outside the two-year statute of limitation. Hence, the circuit court partially granted the defendant's motion and dismissed the plaintiff's claim that the defendants wrongfully discharged him from his job.

         However, the circuit court also concluded that the statute of limitation did not bar the plaintiff's failure to rehire claim. The circuit court found that the defendants failed to explain "how two distinct employment decisions, a termination and a failure to hire, nearly two years apart, can be considered the same act of discrimination under the law for purposes of the statute of limitations." The circuit court concluded that the failure to rehire claim "was a separate and distinct decision from the termination nearly two years prior."

         The circuit court then noted Chief Justice Loughry's recent opinion in Metz v. Eastern Associated Coal, LLC, declaring that, "The statute of limitations for employment discrimination cases brought to enforce rights under the West Virginia

          Human Rights Act, . . . including allegations of discriminatory failure to hire, begins to run from the date a plaintiff first learns of the adverse employment decision."[5] Based upon Metz, the circuit court found that the statute of limitation did not begin to run on the failure to rehire claim until after the defendants elected not rehire him in January 2014. Accordingly, the circuit court refused to dismiss the plaintiff's claim that the defendants wrongfully failed to rehire him.

         The defendants then filed a petition for a writ of prohibition with this Court. The defendants asserted that the plaintiff's failure to rehire claim (filed only nine months after the defendants allegedly failed to rehire the plaintiff for discriminatory reasons) was barred by the two-year statute of limitation. We issued a rule to show cause.

         After hearing arguments from the parties, we now deny the requested writ.

         II. STANDARD OF REVIEW

         This Court has often stated that a writ of prohibition "will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers."[6] The defendants assert that the circuit court s order exceeded its legitimate powers. We therefore apply the following guidelines:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.[7]

         III. ANALYSIS

         The defendants contend that the circuit court should have granted their motion to dismiss the plaintiff's complaint on the ground that the plaintiff's failure to rehire claim is barred by the statute of limitation. It is axiomatic that when a court considers a motion to dismiss, "[c]omplaints are to be read liberally[.]" [8] To that end, "[f]or purposes of the motion to dismiss, the complaint is construed i ...


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