CHARLESTON – A Brooke County bank worker who alleged that intolerable work conditions forced her to resign has lost her appeal to the state Supreme Court.

The unanimous Court issued the memorandum opinion in Sherry Frame v. JPMorgan Chase, Cathy Martindill, and Donna Willis on June 24.

Sherry Frame alleged that while working at JPMorgan Chase’s Bae Mar branch in Wheeling, she was subjected to a hostile work environment by bank manager Cathy Martindill. After Frame and other co-workers complained to the bank’s human resources manager in Charleston, Donna Willis, Martindill was terminated.

Shortly after Martindill’s termination, Frame applied for but was not hired to the position vacated by Martindill’s exit. In a complaint filed in the Circuit Court of Brooke County, Frame alleged that she was forced to resign because her exposure to a hostile work environment coupled with the bank’s failure to promote her created working conditions so intolerable that she was “constructively discharged” from her employment with JPMorgan Chase.

The circuit court granted summary judgment to the defendants on July 13, 2012, and Frame appealed to the state’s highest court.

“Petitioner asserts six assignments of error: 1) the circuit court’s order improperly relied on federal law; 2) the circuit court improperly considered petitioner’s gender in evaluating her claim of hostile environment; 3) the circuit court failed to hold Respondent JPMorgan Chase to the heightened standard required when a hostile environment is created by a manager; 4) the circuit court erred by deciding facts relevant to petitioner’s failure-to-promote claim; 5) the circuit court erred by resolving her failure-to-promote claim at the summary judgment stage; and 6) the circuit court erred by resolving the constructive discharge claim at the summary judgment stage,” the opinion states.

“With respect to petitioner’s first assignment of error, we perceive nothing in the circuit court’s order suggesting that the court reviewed federal law in reaching its decision.

“Petitioner’s second and third assignments of error relate to her claim that she was subjected to a hostile work environment from around April of 2007 until Respondent Martindill’s employment was terminated on June 4, 2008. Petitioner states that in that period, Respondent Martindill on one occasion admired a male customer’s stomach muscles and suggested that she touch them and, on another, complimented petitioner’s breasts.

“Otherwise, she acknowledges that Respondent Martindill’s conduct was not directed at her; however, she argues that she did not have to be the target of the conduct to be subjected to a hostile work environment.

“We have held:

"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.

“While the record on appeal suggests juvenile and inappropriate behavior by Respondent Martindill, the conduct was not ‘based on the sex’ of petitioner. Petitioner witnessed Respondent Martindill engage in such behavior as kissing male customers, telling male employees that she was a sex addict, talking to a male employee about oral sex and ‘crotchless pantyhose[,]’ and generally discussing her sexual encounters. None of these actions, however, were in any way related to petitioner’s gender.

“Petitioner testified that she was treated no worse than any other employee at the Bae Mar branch. In fact, most of the conduct about which petitioner complains was directed at a male employee or male customers, and a great deal of the conduct—for example, asking a male employee to borrow money, sleeping at work, feigning illness while lying on the office couch, or telling employees that her boyfriend was threatening to kill her— was not sexual in nature. Petitioner has not presented evidence sufficient to meet the second prong of the prima facie test.

“Petitioner’s fourth and fifth assignments of error relate to her claim that Respondent JPMorgan Chase failed to promote her to the position of branch manager after the termination of Respondent Martindill’s employment both because she was a woman and because she complained to her employer about Respondent Martindill’s conduct.

“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 that: (1) the plaintiff is a member of a protected class; (2) the employer made an adverse decision concerning the plaintiff; and (3) but for the plaintiff's protected status, the adverse decision would not have been made.

“Petitioner, as a woman, is a member of a protected class, but the record on appeal contains no evidence of a gender-based motive behind the decision not to promote her. Though petitioner argues that the circuit court resolved issues of fact in granting summary judgment, this is not so. Rather, the circuit court recognized that Respondent JPMorgan Chase expressed in the job posting its requirement of a minimum of two years of experience in retail or sales management and its strong preference for candidates with a college degree.

“Petitioner did not meet these qualifications; the male hired for the position did. Respondents put forth a legitimate, non-discriminatory reason for respondent employer’s hiring choice, and there is no evidence that the reason was pretextual. Petitioner did not establish her prima facie case of discrimination based on her protected class, and the matter was properly resolved at the summary judgment stage.

“Petitioner’s final assignment of error is that the circuit court wrongly granted summary judgment on her claim of constructive discharge. Petitioner is incorrect in asserting that the circuit court required that she must show the constructive discharge was related to her gender.

“The court’s order reflected the appropriate consideration: In order to prove a constructive discharge, a plaintiff must establish that working conditions created by or known to the employer were so intolerable that a reasonable person would be compelled to quit. It is not necessary, however, that a plaintiff prove that the employer’s actions were taken with a specific intent to cause the plaintiff to quit.

“The circuit court thoroughly addressed each of petitioner’s claims under the appropriate standards articulated by this Court. The court did not resolve issues of fact, but viewed the facts in the light most favorable to petitioner and found that she did not make a prima facie case of hostile work environment harassment, failure-to-promote discrimination, or constructive discharge. We find no error in the court’s analysis.”

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