State Supreme Court says discrimination lawsuit shouldn’t be dismissed

By Kyla Asbury | Dec 14, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a discrimination lawsuit against two companies should not be dismissed.

Raven Crest Contracting and Xinergy of West Virginia asked the Supreme Court 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 Nov. 8 majority opinion. “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.”

Justice Menis Ketchum authored the majority opinion. Chief Justice Allen Loughry concurred and authored a separate opinion.

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, according to the opinion.

“The circuit court therefore refused to dismiss the former employee’s failure to rehire claim,” Ketchum wrote. “We find no error with the circuit court’s order and deny the employer’s request for a writ of prohibition.”

Larry Adkins alleged he began working for the defendants in 2008 and in 2012, he began to experience medical problems and physical disabilities related to his heart. On April 11, 2012, the defendants “idled” the surface mine and dismissed all employees.

In January 2014, the defendants again began mining coal at the facility and the plaintiff sought to be re-employed by was not re-hired. Adkins filed a lawsuit against the defendants on Sept. 12, 2014.

The circuit court refused to dismiss the plaintiff’s claim that the defendants wrongfully failed to rehire him and the defendants filed a petition for a writ of prohibition with the Supreme Court.

“Put simply, the plaintiff’s complaint, filed nine months after the alleged discriminatory failure to rehire him, asserted a timely cause of action,” Ketchum wrote. “We therefore find no error in the circuit court’s June 13, 2017, order denying the defendants’ motion to dismiss the plaintiff’s claim for failure to rehire. We find nothing in the record to show the circuit court exceeded its legitimate powers when it issued its June 13, 2017, order. Accordingly, the requested writ of prohibition must be denied.”

In his concurring opinion, Loughry said he concurred with the majority’s conclusion that the writ of prohibition should be denied, based solely upon the specific facts underlying the instant case.

“These facts fail to justify application of the rule prohibiting reapplication for employment to surreptitiously extend the statute of limitations, which rule the majority has incorporated into a new syllabus point,” Loughry wrote. “The respondent herein was originally terminated as part of the idling of the petitioner’s mine, along with all other employees. As such—and despite the respondent’s poorly and inaccurately drafted complaint—the respondent’s claim is a singular one of subsequent failure to hire, which statute of limitations commenced as of the date the petitioner refused to rehire him to work at the mine.”

Loughry wrote separately to make clear that only under these limited and peculiar circumstances does the respondent’s claim survive the well-accepted rule that absent a discrete, new act of discrimination, a failure to rehire does not give rise to a new claim or otherwise serve to extend the statute of limitations.

“I write further to set forth what I believe to be the appropriate analysis to resolve this matter, rather than the somewhat convoluted rationale contained in the majority opinion.

Because his original discharge was occasioned by widespread discharge of the work force due to the idling of the mine, the respondent could have reasonably believed that when the mine reopened, he would be considered for employment, Loughry wrote.

“There was nothing about the original discharge—certainly no demonstrable discriminatory animus—which would suggest he would be unlikely to be considered upon reopening and therefore would make reapplication futile,” Loughry said.

Loughry said he also wanted to clarify one additional point to avoid misconstruction of the majority’s “somewhat cryptic opinion.”

“Nothing herein should be construed to prohibit an employer from moving to dismiss an action for failure to hire or rehire simply because the employee wisely chooses not to plead an ‘original’ discharge claim which has expired,” he wrote. “That is to say, an employee cannot avoid the preclusive effect of the reapplication rule espoused herein by simply ignoring the expired claim. If an employer can demonstrate that a failure to hire or rehire claim actually emanates from an unpled original act of discrimination which has expired and is therefore not a new act of discrimination, it should be permitted to present that argument in aid of dismissal.”

W.Va. Supreme Court of Appeals case number: 17-0620

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