In
Kalany v. Campbell, No. 33078 (November 16, 2006), the West Virginia Supreme Court of Appeals reversed an award of attorney fees in a common law wrongful discharge case, holding in syllabus point two that "[a]n employer who does not come within the protections of the West Virginia Human Rights Act, West Virginia Code § 5–11-1 to -21 (Repl. Vol. 2006), based on the minimal number of employees he hires, cannot be deemed a statutory 'person' for purposes of relying on the Act’s authority to make an award of fees and costs at the discretion of the trial court."
The plaintiff was employed as a waitress at the defendant's bar. She claims the defendant grabbed her and kissed her at work, and after she complained to her husband (who paid the defendant a visit), she was terminated. In her complaint, she asserted causes of action for "discrimination in the form of hostile work environment and retaliatory discharge in violation of the [West Virginia Human Rights] Act; intentional infliction of emotional distress; common law sexual harassment; common law retaliatory discharge; battery; and a loss of consortium as to Mr. Kalany."
Because the defendant employed fewer than 12 people, the statutory claims were dismissed. However, the court did not dismiss the claims for "common law sexual harassment," (more on that in minute) and common law retaliatory discharge (a la
Williamson v. Greene), and battery, which all went to the jury.
The jury found in favor of the plaintiff on the retaliatory discharge claim, but not on the other two claims. It awarded the plaintiff $7,824 for past lost wages and an additional $2,539 in prejudgment interest. The trial judge then awarded $57,332.50 in attorney fees and $2,762.56 in costs, finding that the defendant was a "person" subject to the Human Rights Act. The defendant appealed the judgment and the award of attorney fees.
On appeal, the West Virginia Supreme Court upheld the jury verdict, but reversed the award of fees. It found that because the defendant did not fall within the Human Rights Act, the Act could not be the basis of an attorney fee award. The common law tort carries with it the American Rule presumption that each side pays its own attorney fees. Justice Albright authored the majority opinion, and Justice Starcher has promised a dissenting opinion.
The one part of the majority opinion that troubles me is the casual use of the term "common law sexual harassment," which appears four times in the opinion. To my knowledge, there is no such thing as "common law sexual harassment."
Williamson v. Greene held that even where an employer has fewer than 12 employees, a "discharged employee may nevertheless maintain a common law claim for retaliatory discharge against the employer based on alleged ... sexual harassment because ... sexual harassment in employment contravene[s] the public policy of this State ...." However,
Williamson never held that sexual harassment that does not result in discharge (or at least constructive discharge) is actionable under a common law theory. While the concept of "retaliation" under the Human Rights Act covers more employment actions than discharges, the wrongful discharge tort is narrow, and has not been extended beyond discharges. After all, it was crafted as an exception to the general rule of employment at will.
There was no claim in this case that the Plaintiff was constructively discharged, that is, that the alleged kiss made her quit. In fact, she was fired. Still, the trial court let the following two interrogatories to be presented to the jury:
1. "Has plaintiff proved by a preponderance of the evidence her sexual harassment claim against defendant Herman Campbell?" (which the jury answered "No") and
2. "Do you find that Patty Kalany has proven by a preponderance of the evidence that she was discharged by Herman Campbell in retaliation of her complaint of sexual harassment?" (which the the jury answered "Yes").
The court noted in the opinion that "[u]pon its consideration of the evidence, the jury found that Appellees had failed to prove a claim grounded in common law sexual harassment or a battery claim." For that reason, the judgment finding no "common law sexual harassment" was not appealed.
My question is, why was interrogatory no. 1 ever permitted to go to the jury in the first place? And more importantly, why didn't the majority opinion note that no such cause of action exists (at least in a footnote)?
The majority opinion correctly notes that it was not necessary for the plaintiff to prove sexual harassment in order to prove wrongful discharge. So why was there even a separate interrogatory asking about sexual harassment?
The defendant's theory apparently was that the Plaintiff made a knowingly false complaint of sexual harassment and therefore lacked a good faith belief that her employer violated the Human Rights Act. If that were proved at trial, the lack of good faith belief would have negated her retaliation claim. (As the court noted in Footnote 8, "Appellant is correct in arguing that it is not a violation of public policy to discharge an employee for making false accusations about physical contact between an employer and an employee.") That leads me to believe that maybe the first interrogatory should have asked the jury not whether sexual harassment occurred, but whether the Plaintiff's complaint of sexual harassment was knowingly false. If they found that it was knowingly false, they would not have had to consider the second question at all.
