On appeal, the defendant argued (1) that his retaliation claims were preempted by federal labor law; (2) that collateral estoppel barred the claims; (3) that the front pay claim should not have been permitted to go to a jury, and (4) punitive damages should not have been awarded. The West Virginia Supreme Court disagreed and affirmed the judgement.
The employer claims the plaintiff, who was a member of the union, was fired for missing two consecutive days with no proof of sickness. Pursuant to the CBA, his case was arbitrated, and the employer prevailed. The employer argued that the retaliation claims later filed in circuit court were preempted by federal labor laws.
Hearkening back to its prior ruling in Yoho v. Triangle PWC, Inc., 175 W. Va. 556, 336 S.E.2d 204 (1985), the court held that worker's compensation retaliation claims are not preempted because such claims do not require the interpretation of a collective bargaining agreement for their resolution. See Syl. pt. 2, Yoho, 175 W. Va. 556, 336 S.E.2d 204 (“An action for wrongful termination under W. Va. Code § 23-5A-1 (1981) is not pre-empted by federal labor law.”).
New syllabus point:
"8. An action for wrongful termination under W. Va. Code § 23-5A-3 (1990) (Repl. Vol. 2005) is not pre-empted by federal labor law."
Next, the employer argued that because the arbitrator resolved factual issues pertaining to whether the plaintiff had violated the collective bargaining agreement's “two-day rule,” such rulings constituted a final determination on the merits, and the circuit court should not have allowed such issues to be relitigated during the trial in this case.
The Court, however, found that the two cases did not involve the same issue. "[I]t is clear that the two litigations involve different central issues: the arbitration sought to resolve, under the collective bargaining agreement, whether Rivers Edge terminated Mr. Peters because he had violated the 'two-day rule' while the circuit court litigation sought to resolve, under our workers' compensation discrimination statutes, whether Rivers Edge's termination of Mr. Peters based upon his violation of the 'two-day rule' was pretextual."
The defendant first argued that the front pay award was improper because front pay is paid in lieu of reinstatement, and reinstatement was not an available remedy under our common law. (The statute does not provide any particular remedy).
The Court found that reinstatement is indeed an available remedy, and so too is front pay:
11. An employee who asserts a claim alleging workers’ compensation discrimination in accordance with W. Va. Code § 23-5A-1, et seq., may recover damages for front pay in lieu of reinstatement. Whether the facts of a particular case warrant an award of front pay in lieu of reinstatement is a decision committed to the circuit court, and such a determination will be reviewed for an abuse of discretion.
The court found that the award of front pay was supported by the evidence.
The remainder of the opinion reviewed the evidence supporting the punitive damages award. The Supreme Court found there was ample evidence to support the award. The jury was apparently not happy with the employer's decision to use surveillance to determine whether the employee was able to work.