And you thought you only had one plaintiff in your employment discrimination case...

In McKenzie v. Carroll International, et al., No. 31721, an age discrimination case under the West Virginia Human Rights Act, the trial court judge ruled that testimony of six non-party employees who believed they were discriminated against due to their ages should have been admitted at trial. The jury came back with a defense verdict in favor of the employer, and on the Plaintiff's appeal, the Court reversed and remanded, holding that

In an action brought for employment discrimination, a plaintiff may call witnesses to testify specifically about any incident of employment discrimination that the witnesses believe the defendant perpetrated against them, so long as the testimony is relevant to the type of employment discrimination that the plaintiff has alleged.

While it is common to put on statistics that involve other employees (e.g., employer RIF'd 30 employees and 29 of them were over 40, etc.), it is much less common to allow live testimony from these "other" employees. The Court has now held, however, that plaintiffs can put on not only the statistics, but can supplement with testimony of other witnesses as to discrimination against them, even if they are not parties to the suit. This will unavoidably lead to "mini-trials" over the circumstances related to all of these other employees.

The Court gave some "reprieve" from the circus-style atmosphere that is sure to result from allowing such evidence in footnote 7 by noting that "[o]bviously we do not believe that a plaintiff should be allowed to parade dozens of witnesses to testify about their alleged discrimination experiences with an employer, but a single digit number of witnesses, as in this case, is not too burdensome or repetitious." So, plaintiffs will have to choose the best 9.

Another significant ruling in this case was that

In an action alleging unlawful discrimination under the West Virginia Human Rights Act, a trial court may, in its discretion, admit evidence from the record of a prior administrative proceeding held before the West Virginia Human Rights Commission. In making the admissibility determination, a trial court should consider whether the evidence sought to be introduced (1) contains legal conclusions in addition to its factual content; (2) raises questions of trustworthiness under W. Va. R. Evid. 803(8)(C); (3) presents problems cognizable under W. Va. R. Evid. 403; and (4) any other relevant factor.

Thus, probable cause/no probable cause orders might be fair game. This particular ruling is a double-edged sword.