CHARLESTON – The state Division of Corrections is asking a suit naming it as a co-defendant in a sexual harassment case arising out of one its facilities in Mason County be dismissed because the acts that led to it were not done in the course of a normal employee-employer setting.

On Aug. 6, WVDOC filed its reply in the civil suit filed against it, and David W. McCormick, a former employee at the Lakin Correctional Center for Women in West Columbia, by Kristin Childs.

Now a resident of Titusville, Fla., Childs alleged that in October while an inmate at Lakin, McCormick coerced her into having sex with him in exchange for agreeing to transfer her to another work detail.

As a result of their encounter, Childs become pregnant. Records show Childs did not initially report the encounter for fear it would harm her chances of parole, which was granted on March 19.

In its reply filed with the assistance of David E. Schumacher, with the Charleston law firm of Bailey and Wyant, WVDOC denies McCormick was acting within the scope of his employment. Therefore, WVDOC denies it breached any affirmative duty or standard of care with respect to keeping Childs' work environment free from intimidation and sexual harassment.

Also, Schumacher says though state law is unclear as to what constitutes a hostile work environment in a correctional institution, Childs cannot make a legitimate claim for sexual harassment because she was inmate, not an employee, of Lakin.

In their rulings in 1995 and 2004 in the cases of Hanlon v. Chamber and Akers v. Cabell-Huntington Hospital, respectively, Schumacher said the state Supreme Court "has repeatedly recognized that a cause of action alleging a hostile work environment must be asserted by an employee."

Likewise, the Court in the 1994 case or Skaff v. West Virginia Human Rights Commission found that penal institutions are not "places of public accommodations" and claims of discrimination arising from there would not fall under HRC jurisdiction. Therefore, Schumacher argued, "a prison work assignment does not constitute a workplace for non-employee inmates."

Asking relief from punitive damages

Furthermore, WVDOC raised defenses of absolute, statutory and qualified immunity under state code and the West Virginia and U.S. constitutions. Ironically, two of the amendments Schumacher cited were ones used by individuals for protection against unjust state action, including harsh imprisonment.

Though she did not specify a dollar amount, Childs asked to be awarded punitive damages for the alleged harm she suffered while at Lakin. Citing West Virginia Code 55-17-1, Schumacher said WVDOC "asserts that it is immune from the Plaintiff's claims for punitive damages."

Also, Schumacher said that if Childs were awarded any punitive damages it would deprive WVDOC of its property without due process of law in violation of the Fifth Amendment to the U.S. Constitution.

Typically, the Fifth Amendment's "takings clause" is cited in cases of eminent domain whereby the state wants to condemn an individual's property for public use.

"Further, such an award would violate the prohibition against excessive finds (sic) cited in the Eighth Amendment to the Constitution," Schumacher said.

In addition to excessive fines, the Eighth Amendment also prohibits excessive bail and the infliction of "cruel and unusual punishment." Inmates appealing their convictions often cite it.

In a related matter, McCormick, who pleaded guilty in June to one count of having sex with an inmate, was scheduled for sentencing on Aug. 18 in Mason Circuit Court. However, that hearing was postponed until Monday, Sept. 15.

At the request of McCormick's attorney, Michael Eachus, the hearing was rescheduled in order for McCormick to complete parole eligibility paperwork.

Upon completion of his sentence, McCormick will be required to register as a sex offender with the West Virginia State Police.

As of press time, records show McCormick had not been served notice of Childs' lawsuit.

Kanawha Circuit Court, Case No. 08-C-1183

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