Tuesday, February 21, 2006

Can jurors be expected to apportion "fault" between God and man?

A post at Overlawyered asks Do Acts of God Still Exist?. Certainly, they seem as rare as hen's teeth these days. But where better to answer such a question than "Almost Heaven?"

Coincidentally, a few days ago, this article in the West Virginia Record entitled Jury must apportion blame for flood among God and businesses poses a related conundrum. The article notes that in a trial beginning March 1, 2006, "[a] Raleigh County jury must divide the blame for the flood of July 8, 2001, between God and businesses." The plaintiffs claim that that "coal mines, timber operations and railroads changed the landscape in ways that made the flood worse.

Although I'm not sure the jury will be asked to apportion "blame" between humans and God (afterall, God is without fault), they will be instructed in accordance with Syllabus 10 of In Re Flood Litigation:
Where a rainfall event of an unusual and unforeseeable nature combines with a defendant's actionable conduct to cause flood damage, and where it is shown that a discrete portion of the damage complained of was unforeseeable and solely the result of such event and in no way fairly attributable to the defendant's conduct, the defendant is liable only for the damages that are fairly attributable to the defendant's conduct. However, in such a case, a defendant has the burden to show by clear and convincing evidence the character and measure of damages that are not the defendant's responsibility; and if the defendant cannot do so, then the defendant bears the entire liability.
So, Overlawyered may get its question answered, to some extent, next month.

Saturday, February 18, 2006

W.Va. Supreme Court decides two worker's compensation discrimination cases

The West Virginia Supreme Court of Appeals issued two per curiam opinions in favor of employers late last term.

In Fravel v. Sole's Electric Co., No. 32164 (Per Curiam) (November 30, 2005), the Court affirmed partial summary judgment for the defendant employer on the plaintiffs' workers' compensation discrimination claims while also affirming a jury defense verdict on a remaining age discrimination claim.

The trial court noted that one of the Plaintiffs, Keith Wyckoff, was off work due to his workers' compensation injury from May 1997 until August 1997 and returned to work thereafter, but he was not laid off from work by Soles until September, 2000.

In ruling on the employer's motion for summary judgment, the circuit court found that Mr. Wyckoff's layoff was "simply too far removed temporally from his workers' compensation claim . . . to support a jury finding of a causal connection." The circuit court also noted that there was no evidence of harassing conduct, and there was substantial evidence of a nondiscriminatory reason for the layoff. The employer submitted evidence that nearly forty percent of its non-exempt employees had filed some type of workers' compensation claim.

Upholding the trial court's dismissal of the claim, the Court wrote: "Upon our review of the record, the trial court did not grant summary judgment on the sole basis of the passage of time, but on the basis that there was insufficient other evidence offered or pointed to by Wyckoff that would permit a jury to infer a likely illegal discriminatory motive, given the very lengthy time period (more than three years) that had passed since the workers' compensation event."

The practice points on this are:

(1) The passage of three years between a workers' compensation claim and a discharge is probably not, by itself, sufficient evidence of workers' compensation discrimination (at least where the employer offers evidence of a non-discriminatory reason).

(2) Statistical evidence showing that a large percentage of employees (in this case 40%) had filed workers' compensation claims and were not discharged is relevant evidence tending to rebut an inference of discrimination.

The second half of this short opinion shot down part of jury instruction I frequently see offered by plaintiffs' attorneys. The Court held that the circuit court properly refused the following language:
Because discrimination is essentially an element of the mind, there probably will be very little direct proof available. Gone are the days, if, indeed, they ever existed, when an employer freely will admit to taking adverse action against an employee for illegal reasons.
This language is taken from footnote 21 of Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 72, 479 S.E.2d 561, 582 (1996). However, just because language appears in a court opinion does not make it appropriate in a jury instruction. As the Court held here, "[i]t is neither customary nor ordinarily appropriate for this sort of discursive language that is used in opinions to explain the court's reasoning to be included in jury instructions."

The Court also found no error in the circuit court's decision to allow the following language:
Whether the defendant's decision seemed fair or wise to you is not a basis upon which you may rely in finding that the defendant unlawfully discriminated against the plaintiff.
This instruction is consistent with language in Skaggs, supra; 198 W.Va. at 79, 479 S.E.2d at 589. Although the Court does not note it, similar language can be found in the model jury instructions for age discrimination cases posted on the Court's web site. The Court held that "[t]aken in the context of the entire charge to the jury, giving this instruction was not reversible error."

Also, in Bailey v. Mayflower Vehicle Systems, Inc., No. 32584 (Per Curiam) (December 1, 2005), the Court affirmed a judgment as a matter of law in a workers' compensation discrimination case. The facts of the case are pretty odd. The employee suffered several work-related injuries. He was asked to keep the employer apprised of his condition, but failed to do so. In May 1998, 17 months after he reached maximum medical improvement, he received a letter from the benefits coordinator requesting that he contact her about his employment within 10 days. The letter stated that if he did not respond by the deadline, the employer would assume that he had voluntarily resigned. He didn't respond and was terminated in June (four years after the initial injury) for violating the employer’s absenteeism policy.

The story does not end there. Four months later, his physician released him to return to work, so he called the HR director and asked if he could return. The HR director told him his previous position wasn’t available but that there was another position open, but to be eligible for that, the employee would have to undergo a functional capacity evaluation and clear up some issue with his insurance. He passed the FCE but failed to resolve the insurance issue. The employer and employee played a very laid-back form of phone tag for about another year or so (obviously, I'm skipping a lot), but the employee was never rehired.

In July 2002, the employee filed a claim alleging that the termination of his employment constituted discrimination under the West Virginia Workers’ Compensation Act. The court threw out the case on a motion for judgment as a matter of law. The West Virginia Supreme Court affirmed, holding that
Bailey's termination was remote in time not only to the time of the filing of his workers' compensation claim, but also to his last receipt of workers' compensation benefits. There is likewise no evidence of a pattern of harassing conduct for Bailey's filing of a workers' compensation claim. While we cannot say whether SCSM's absenteeism policy is neutral because the policy is not presented in the record before us, we do observe that the period of absenteeism by Bailey after reaching his maximum degree of medical improvement strains the concept of reasonability. More importantly, Bailey has presented no evidence that he was terminated for any reason other than his absenteeism. Therefore, we find that Bailey has failed to meet the requirements of West Virginia Code § 23-5A-1.
The Court also found that the defendant did not violate § 23-5A-3(a) because the plaintiff was not on TTD at the time he was fired. It also did not violate § 23-5A-3(b) (regarding reinstatement) because the employee waited two years after reaching maximum medical improvement to return to work and because "an employer cannot be held to a duty to honor an employee's [reinstatement] rights when, as here, an employee does not avail himself or herself of the position that was open and offered to him or her."