CHARLESTON – A former administrative law judge has been awarded a $2.2 million verdict following a month-long gender discrimination trial.
A Kanawha Circuit Court jury ruled January 31 that the West Virginia Offices of the Insurance Commission took adverse employment actions against Rebecca Roush based on her gender. Roush was the Chief Administrative Law Judge before she was told her term would end in late 2019 and she would be replaced with a male judge. She filed her civil lawsuit soon after.
Roush claimed during her employment, her salary remained the same except for across-the-board cost of living adjustments that were given to all state employees. She said male employees she supervised made nearly $6,000 more than her. She also said her predecessor made nearly $12,000 more than she did.
“The verdict is one that addresses the issue of an employer responding to a manager trying to get equal pay for employees with a retaliation against the manager for that effort,” attorney Walt Auvil, who represented Roush, told The West Virginia Record. “There’s a reason the law doesn’t allow an employer to retaliate. The law says it’s protected activity. The employee may not be right, but they have a right to put forward their issues.”
Auvil said Roush also was fighting for equal pay for other female employees in the office.
“They complained to Roush, and she wrote a memo saying what was happening,” he said. “She was saying, ‘Let’s do something to fix it.’ The insurance commission at first said she was right. But eventually, it all came around and the commission said it couldn’t do anything about it. But she wouldn’t leave it alone. She kept pushing and saying this was a problem.
“The basic gist of it is that it reinforces that you can’t legally retaliate against somebody because they’re trying to do the right thing by their workers.”
Auvil said it came to a head when the other women filed a federal lawsuit under the Equal Pay Act.
“That’s when things really went south,” he said. “The employer and General Counsel Andrew Pauley yelled at Roush about it, saying she was the reason they were in this case in federal court.
“The next thing you know, they came up with this cold attack, put her out of her office and suspended her without pay in retaliation for supporting these ladies.”
According to the complaint, Roush then approached Kathy Damron, the former Human Resources director for the WVOIC, regarding female judge candidates receiving substantially less than their male counterparts. It says Damron asked Roush to submit a memorandum to the insurance commissioner explaining the pay disparity.
Roush claimed she continued to bring up the pay disparity on several occasions until she was accused of sending an inappropriate Facebook message to Nancy Workman, an employee, in December 2017 by Insurance Commissioner Allan McVey.
Roush later was ordered to resign or face public humiliation. McVey ordered her to empty and vacate her office and she was ordered not to communicate with any of the employees, according to the suit.
Roush claims WVOIA interfered in a proceeding in her case involving her employment and the Facebook message with Workman, and repeatedly denied requests for essential operating resources. The office also underfunded the Office of Judges to the point of dysfunction and impacting the quality of work performed.
Workman pleaded guilty to harassment by electronic communication in March 2019 for falsifying the Facebook message that caused Roush so much trouble at work.
"Defendants' retaliation against plaintiff ... has interfered with the autonomy of the office as contemplated by statute," the complaint states.
“The attacks they made on her were pretty ugly,” Auvil said. “After you have made all of these public statements about this woman (Roush) and injured her reputation as a judge and then you found it all was a fraud.
“I asked them why they didn’t do something to fix it, but there was no answer to that question. They just wanted rid of her. They were unapologetic.”
Auvil and his son Kirk from The Employment Law Center in Parkersburg represented Roush. The defense was represented by Chuck Bailey and Michael Taylor of Bailey & Wyant in Charleston.
Bailey declined comment on the verdict except to say it would be appealed.
Circuit Judge Joanna Tabit oversaw the trial that began January 9.
“It was the longest trial I’ve ever been on in 40 years as an attorney,” Auvil said. “But, it’s a long, long road between a jury verdict and actually having the case over.”
Kanawha Circuit Court case number 19-C-1057