Transcript WV Insurance Law After Michael v. Appalachian Heating

Getting Started- Bringing the
Claims/Defending the Claims
Charlotte A. Hoffman Norris, Esq.
Farrell, White & Legg PLLC
March 25, 2014
DISCLAIMER
 This presentation is not to be construed as “legal
advice” or to create an attorney-client relationship with
any attendee. It is not a substitute for researching or
investigating any claims.
 This presentation also does not intend to cover every
kind of employment law claim or every possible venue.
 This presentation is only the beginning of the
discussion.
 Any example given is fictional and no one should infer
the identify of any person or persons, alive or dead
2012 Statistics
 EEOC Complaints- 99,412 received
 Monetary Awards- $365,400,000 (administrative
process only before EEOC; does not include litigation;
does not include matters handled by WVHRC)
2012 Statistics (cont.)
 Claims originating in WV
 40.6% sex based charges
 34.5% disability
 34.5% age
 17.6% race
 9.7% national origin
 37.6% included retaliation claims
Sample WV Verdicts
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$500,000 (2012- Jackson Co.-Gender)
$626,000 (2011- Wood Co.- WC/Disability)
$120,000 (2011- Cabell Co.-Retaliation)
$1.67 Million (2010- Kanawha Co. –Age)
$2 Million (2010-Boone- Sexual Harassment)
$2.1 Million (2010-Jackson Co.- Age)
$3.25 Million (2009-Raleigh Co.- Disability)[included $2.2 Million in punitive
damages
$100,000 (2009- McDowell Co.- Retaliation)
$1.8 Million (2008-Boone Co.- Age)
$1.9 Million (2007- Boone Co.- Retaliation)
$302,910 (2007- Kanawha Co.- Disability)
$427,000 (2005-Cabell Co.-Sexual Harassment)
$2 Million (2005- Kanawha Co.- Retaliation)
W.Va. Code § 5-11-9(7)(A) (1998) (2006) of the
WVHRA establishes 3 distinct causes of action.
Specifically, it is an unlawful discriminatory practice
for any person, employer, employment agency, labor
organization, owner, real estate broker, real estate
salesman or financial institution to: (1) engage in any
form of threats or reprisal, or; (2) engage in, or hire, or
conspire with others to commit acts or activities of any
nature, the purpose of which is to harass, degrade,
embarrass or cause physical harm or economic loss, or
(3) aid, abet, incite, compel or coerce any person to
engage in any of the unlawful discriminatory practices
defined in W.Va. Code § 5-11-9.
Who is a Person under W.Va. Code 5-11-9(7)
The term “person” is defined by the Human Rights
Act, in W.Va. Code 5-11-3(a) (1998) (2006), as “one or
more individuals, partnerships, associations,
organizations, corporations, labor organizations,
cooperatives, legal representatives, trustees, trustees in
bankruptcy, receivers and other organized groups of
persons.”
W.Va. Code 5-11-9(7)(A) (1998) (2006) of the
W.Va.HRA prohibits unlawful discrimination when the
discrimination is based upon race, religion, color,
national origin, ancestry, sex, age, blindness, disability
or familial status.
Two Venues for Obtaining
Remedies Under the WVHRA
1.
The WV Human Rights Commission
See WVa Code §5-11-10
Note: Rules of Practice before the Commission are found at
77 CSR2
2.
Circuit Courts
See Syl. Pt. 1, Price v. Boone County Ambul. Auth., 175 W.Va. 676, 337
S.E.2d 913 (1985)
Note: No requirement to exhaust administrative remedies; however, if before the
Comm’n must have a “Right to Sue” letter before filing in Circuit Court
State Regs for WVHRA
 Title 77
 Series 1- Disability Discrimination
 Series 2- Rules of Practice and Procedure
 Series 3- Religious Discrimination
 Series 4- Sexual Harassment
 Series 5- Exemption of Private Clubs
 Series 6- Waiver of Rights (Settlements)
 Series 7- Employer Defined
Note:
Series 8 under Title 77 are the Rules of Procedure for
Claims under the WV Fair Housing Act
Before the WV HRCommission
 Two Phases
 Pre-Hearing Phase
 Hearing Phase (triggered by a Probable Cause finding at
the conclusion of the Pre-Hearing Phase)
Before the Human Rights
Commission
 Verified complaint, signed by the complainant and
notarized, with a concise statement of alleged
discrimination and the dates of alleged discrimination
 Timeliness: 365 days after the alleged discrimination (77
CSR 2-3.9.d.1)
 Obligation of all parties to preserve records: as may be
relevant to the Comm. Investigation (77 CSR 2-3-14.c)
 Class Actions: May be heard by the Commission (77CSR 2-
3.15)- dismissal or settlement approved by ALJ
Before the Commission– Time
Frames
 Compliance Director has “within 75 days, but not to exceed
150 days” to complete an investigation into the Complaint
77-2-4.1 This is the Pre-Hearing Phase
 Once Complaint received by Commission, Commission
provides notice of claim to Respondent 77-2-3.11
 Respondent has 10 days from receipt of notice of claim to
submit a written reply
 Statement of facts and circumstances surrounding allegations
 May include documents or other evidence
 This is technically is not an Answer with Affirmative Defenses
Before the Commission- Discovery
 At the pre-hearing stage, all discovery conducted by
the Commission, not the parties
 Interviews and depositions (77-2-4.3)
 Production of documents for copying and inspection
(77-2-4.4)
 Interrogatories (77-2-4.5)
 Failure of any party to voluntarily comply may result in
an adverse inference (77-2.4.6) and/or compulsory
efforts via subpoena (77-2.4.7)
Resolution as to Complainant’s
Claim in the Pre-Hearing Phase
 Probable Cause (Proceeds to hearing)
 No Probable Cause (Notice to all parties)
 Complainant may see administrative review and submit new
evidence (77-2-4.14)
 Standard= “arbitrary, capricious and not in accordance with
the law”
 No Probable Cause finding at this stage triggers a Right to Sue
letter (77-2-4.14.f.6.)
 Settlement/Conciliation
 Between Complainant and Respondent OR
 Between Respondent and Commission (77-2-4.13.e.)
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Complainant receives notice and opportunity to object
If submits objections, may have hearing on objections
During the PreHearing Phase
 Matter is being investigated by an assigned
“Investigator” who is not an attorney, but who has had
some experience/training on what constitutes
discrimination and how to conduct an investigation
 Although not officially tendered to the AG’s office, a
representative from the AG’s office (an Assistant WV
AG) is available to the investigators to respond to
questions and review materials
Mediations May Be Ordered in
Commission Cases
 7 CSR 2-4.15.a.
 Note that the Mediation Rules follow the West Virginia
Trial Court Rules regarding mediations
Once The Commission Has a Foot
in the Door…..
 Settlement between the parties does not necessarily
mean that the case will be closed if the Commission
has an interest in a claim against a Respondent beyond
that of the Complainant (77-2-4.9)
 Similarly, a No-Probable Cause finding as to the
Complainant’s claims will not close the case if the
Commission has discovered grounds for holding a
Respondent liable for a discriminatory practice (77-24.11)
Probable Cause= Hearing Phase
 If a Probable Cause Determination is made, the case
proceeds to hearing
 Respondent has 10 days from Receipt of Notice of
Hearing and Complaint to file an Answer 77-2-6
(admitting or denying allegations, asserting defenses,
etc.)
 Hearings are open to the public, generally held in the
county where the Respondent conducts business (772-7.1 and.2)
Hearing, cont.
 ALJ presides and is subject to Judicial Code of Ethics (77-2-7.4.a.)
 Comm’ns attorney or agent presents the evidence for the Complainant
unless the Complainant has a private attorney and obtains permission
for the attorney to present evidence (where Commission does not have
independent interest in claim) (77-2-7.7)
 Motion practice 77-2-7.11
 Subpoena power 77-2-7.12 and see W.Va. Code 29A-5-1(b)
 Limited discovery permitted at this stage, including limited discovery
of Commission staff (See 77-2-7.14 and 16 and 17)
 Unlike Rule 26, WVRCivP, limited obligation to supplement (77-2-7.20)
Hearing (cont.)
 Rules of Evidence apply, “as modified by W.Va. Code §
29A-5-2, except when contrary to the Act or these
Rules” (77-2-7.31)
 ALJ has the authority to make rulings regarding
privileges, including holding in camera reviews of
“privileged” materials
 Syl. Pt. 2, Marshall County Comm’n v. Carter, 225 W.Va.
68, 689 S.E.2d 796 (2010)
How to endear yourself to the ALJs
 WVHRC’s adjudicatory process more formal than
many other admin agencies. Attys (and pro se
defendants) should be prepared to follow the rules of
evidence during the Administrative Hearing, as well as
the procedural rules found at WV CSC § 77-2-1, et seq.
 There are key differences between Rules of Practice
and Procedure before WVHRC and the WV Rules of
Civil Procedure:
 Be familiar with the differences and apply them
correctly
 For example, discovery before the WVHRC does not
include Requests for Admissions. You will not endear
yourself to the ALJ by attempting inappropriate
discovery. 
ALJ “pet peeve”– create your
record
 “One of [the ALJs] biggest frustrations comes from
lawyers who refuse to file the appropriate discovery
motions. Attorneys will complain about the opposing
party’s discovery practices throughout the discovery
process and the administrative hearing, but the record
is devoid of motions to compel, motions for protective
orders, motions to quash, etc. [The ALJs] will not
listen to attorneys complain when they were too lazy to
take any corrective action.”
Set the agenda
 “Attorneys need to be prepared to frame the specific
issues presented in a matter on record at the beginning
of any administrative hearing, as well as the specific
remedies sought (i.e. reinstatement, back pay, front
pay, dismissal, etc.). It continues to surprise [the ALJs]
how frequently we get to a hearing and the parties are
focused on completely different issues.”
 Maintain decorum- over yourself and your client
 Use civility
 “The ALJ’s take note and truly appreciate attorneys
who engage in appropriate courtroom behavior and
insist that their clients do the same. While this is not a
new concept, attorneys do not realize how distracting
and often times detrimental their behavior can
become when an ALJ has to focus on maintaining
order rather than on the legal issues presented
 Cite to the record & cite to the law
 Attorneys should remember “that proposed findings of
fact and conclusions of law are of no merit unless they
contain citations to the transcripts and/or case law. It
is appalling how often [the ALJs] receive briefs which
are almost devoid of citations to source materials.
ALJ Rulings
 ALJ has 1 year from the filing of the Complaint to
complete the hearing phase and issue a final ruling
containing findings of fact and conclusions of law (772-9.1)
 Finding of no discriminatory act- Dismissal
 Finding of discriminatory act
 Order to cease and desist
 Award economic damages (77-2-9.3.a)
 Award incidental damages up to $2,950 (or as may be
adjusted by the Commission) (77-2-9.3.b)
 Award equitable relief “as will make the complainant whole,
including attorneys’ fees” (77-2-9.3.c)
Appeals from ALJ
 Within 30 days of receipt of the ALJ’s final decision,
either party may file a notice of appeal to the
Commission (not an automatic stay unless a stay is
requested), and a petition is NOT mandatory (77-2-10)
 If a notice of appeal is not filed within 30 days, then
the Commission will enter an Order either affirming
the ALJ’s final decision or, sua sponte, modifying or
setting aside the decision
Appeals from AJL (cont.)
 Within 20 days of receipt of the notice of appeal (and
any Petition) the other party(ies) may file a response
 Within 60 days of the notice of appeal, the
Commission shall
 Affirm,
 Modify or Set Aside the ALJ’s Final Decision, or
 Remand for further proceedings
Appeal from
the Commission’s Decision
 The Commission’s final order on the ALJ’s final
decision can be appealed to the WV Supreme Court of
Appeals
 Notice of appeal must be filed within 30 days after
receipt of the Commission’s final order (77-2-11)
Commission Files Are
Subject to FOIA
 CSR 77-2-15
 Complaint
 Answer
 Orders, including Consent Orders
 Determinations and final dispositions
 Pleadings
 Briefs
 Subpoenas
 Motions and responses
 Hearing Notices
 Transcripts, exhibits and evidence of record
 Notice of Appeal
Multiple differences
 Between Proceeding before the Commission rather
than Circuit Court-- Two biggest difference is that in Circuit Court
 the Plaintiff can seek PUNITIVE DAMAGES
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See Dobson v. Eastern Assoc. Coal Corp., 188 W.Va. 17, 422
S.E.2d 494 (1992)(Where plaintiff sought relief in Circuit
Court rather than before the WVHRC, plaintiff may seek
damages sounding in tort.)
 Statute of repose extends 1 year limitation period (W.Va.
Code 5-11-13)
Prima Facie Claim
 Evidentiary standards for WVHRA claims are identical to
the federal cases under Title VII (unless statutory language
differs). See e.g. Ways v. Imation Enterprises Corp., 214
W.Va. 305, 589 S.E.2d 35 (2003)
 Said differently, most cases will involve the McDonnell
Douglas burden shifting approach
 But, disability claims under the WVHRA are “not
mechanically tied to federal disability jurisprudence” Stone v.
St. Joseph’s Hospital of Parkersburg, 208 W.Va. 91, 538 S.E.2d
389 (2000)
Prima Facie Claim
 The Plaintiff is in a protected status;
 The Defendant took adverse action
against the Plaintiff;
 But for the Plaintiff’s protected
status, the Defendant would not have
taken the adverse action
Prima Facie Claim (cont)
• Note: It is a de minimus burden
- See Conrad v. ARA Szabo, 198 W.Va. 362, 480
S.E.2d 801 (1996)
 Direct evidence of discrimination is not necessary;
circumstantial evidence may be used to link the adverse
decision to the plaintiff’s protected status to give rise to an
inference of discriminatory intent
 See W.Va. Institute of Techn. v. W.Va. Human Rights Comm’n,
181 W.Va. 525, 383 S.E.2d 490 (1989)
Rebuttable Presumption
 Defendant can rebut the prima facie claim by
presenting evidence of a legitimate, nondiscriminatory basis for the adverse action.
 Plaintiff has the opportunity of then presenting
evidence that the reason given by the defendant is
mere pretext for discrimination
 Mixed motive– burden is upon Defendant to
demonstrate that it would have taken the same action
even absent the “bad motive.”
Protected Status
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Sex
Race/color
Age (>40)
Religion
National origin/ancestry
Disability
Genetics (related to disability)
Association (familial status)
Individuals who participate in investigations of
harassment/discrimination (retaliation claims)
Disability
The term “disability” means, with respect to an
individual—
 A physical or mental impairment that substantially
limits one or more major life activities of such
individual;
 A record of such impairment; or
 Being regarded as having such an impairment
Major Life Activities/Bodily
Function
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Caring for oneself
Performing manual tasks
Seeing
Hearing
Eating
Sleeping
Walking
Standing
Lifting
Bending
Speaking
Breathing
Learning
Reading
Concentrating
Thinking
Communicating, and
Working
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Immune system
Normal cell growth
Digestive
Bowel
Bladder
Neurological
Brain
Respiratory
Circulatory
Endocrine, and
Reproductive functions
Examples of disabilities
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Alcoholism/Drug Addiction
Allergies
Alzheimers
Autism
Brain-Head Impairment
Brain-Head Injury (Trauma)
Cancer
Cerebral Palsy
Chemical Sensitivity
Cystic Fibrosis
Disfigurement
Dwarfism
Epilepsy
Gastrointestinal Impairments
Genetic Discrimination
Hearing Impairment
Heart/Cardiovascular Impairment
HIV
Kidney Impairment
Diabetes
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Learning Disabilities
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Multiple Sclerosis
Non-Paralytic Orthopedic Impairment
Orthopedic and Structural Impairments of the Back
Blood Disorders
Other neurological Impairments
Paralysis Psychological /Psychiatric Disorders
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Anxiety disorder
SAD
Schizophrenia
Bipolar Disorder
Depressive Disorder
Post Traumatic Stress Disorder (PTSD)
Pulmonary Disorders
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Dyslexia
ADHD
Dysgraphia
Mental Retardation
Asthma
COPD
Emphysema
Tuberculosis
Speech Impairment
Vision Impairment
Disabilities are not
 Transient or temporary conditions, like a cold, the flu,
a cut finger or broken bone that is expected to heal
Victim/Perpetrator
 Both can be in the same “protected status”
 Woman vs. Woman
 African American vs. African American
 Etc.
What is Discrimination?
Discrimination
Not Discrimination
 Treating someone differently
 When decisions are made
by virtue of protected status
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Hiring
Compensation
Advancement
Hours
Assignments
Benefits
Other terms and conditions
of employment
based on merit
(employment)
 When decisions are made
based upon statutory
requirements
 When decisions are made
based on essential job
functions (employment)
 When decisions are made
based on business necessity
 Disparate treatment is when one person in a protected
status is treated differently than someone who is not in
a protected status– motive is key
 Disparate impact is when a group of people in a
protected status is treated differently than those who
are not in that protected status– discriminatory effect
is key
What is Deemed Discriminatory
Conduct?
 Evidence that plaintiffs may discover to demonstrate
the discriminatory conduct
 Employer policy, procedures and practices
 Statistical analysis of how individuals in protected
versus non protected groups have been treated
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See Dobbs v. Eastern Assoc. Coal Corp, 181 W.Va. 251, 382
S.E.2d 88 (1989) regarding Rule 702 evidence in
discrimination cases
Hostile Work Environment
(In the employment setting)
 Four elements
 Plaintiff was subjected to unwelcome conduct
 The unwelcome conduct must be based on a protected
status (sex, race, etc.)
 The conduct must be sufficiently severe and pervasive as
to alter the plaintiff’s conditions of employment and
create an abusive work environment
 The unwelcome conduct must be imputable on some
factual basis to the employer
Unlawful Harassment
 Slurs (name calling)
 Jokes
 Offensive or derogatory remarks
 Offensive or derogatory images
 Tying (business) decisions to the individual
submitting to sexual advances or
slurs/jokes/remarks/images
Unwelcome Conduct
Means the alleged victim
 Did not solicit or incite it
 Regarded the conduct as undesirable or offensive
If the alleged victim did solicit, incite or participated in
the offensive conduct, then he/she must present evidence
that
a) he/she ultimately informed the other person that the
conduct was unwelcome; and
b) thereafter, the offensive conduct continued
Syl. Pt. 6, Erps v. WV Human Rights Comm’n, 224 W.Va. 126, 680
S.E.2d 371 (2009)
Imputable to Employer
 Knew or should have known of the offensive conduct
and failed to take corrective action
 Obligation to have effective rules
 prohibiting harassment and
 addressing harassment
How do employers meet (or fail to
meet) their obligations under the
WVHRA?
 Have and Enforce Policies
 Investigate Claims of Discrimination and/or
Harassment
 Make “Reasonable” Accommodations for claims
handling
Reasonable Accommodations
(in employment cases)
 Required in instances when a person’s religious beliefs
interferes with a job duty/function
 Required for individuals with disabilities if a
reasonable accommodation by the employer will assist
the employee to perform an essential job duty
Reasonable Accommodations
CAN INVOLVE
(A) making existing facilities used by employees
readily accessible to and usable by individuals with
disabilities; and
Reasonable Accommodations
CAN INVOLVE
(B) job restructuring, part-time or modified work
schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices,
appropriate adjustment or modifications of
examinations, training materials or policies, the
provision of qualified readers or interpreters, and
other similar accommodations
A word about transfers to vacant
positions
 The employer should not assume that a vacant
position is undesirable to an employee
needing/desiring an accommodation. Reduced salary,
reduced duties, even a different location (requiring an
employee to move) are not reasons for the employer
not to offer the accommodation
 In other words, if the employee is “otherwise
qualified,” then extend the offer and let the employee
decide
Employer is NOT Required
 To implement any and/or all accommodations that the
employee may request or that the employee’s physician
suggests
 The employer is entitle to evaluate what
accommodations may be available and are reasonable
Undue Hardship
 Any “action requiring significant difficulty or expense”
Retaliation Prohibited
 Plaintiff engaged in protected activity
 Defendant took adverse action against Plaintiff
 Evidence (including, inference drawn from time
nexus) that protected activity led to or caused the
adverse action
 Burden shifts to defense to prove legitimate, nonretaliatory basis for adverse action
 Burden shifts back to plaintiff to prove pretext
Protected Activity
 Can be making a report of discrimination or
harassment
 Within the company
 To an enforcement agency (WVHRC or a local human
relations commission)
 During an investigation or in a legal proceeding
(deposition/trial)
 Even if there is no actionable discrimination or
harassment present, the report itself puts the plaintiff
into a protected status
Settlements
 State regulations regarding any waiver (settlement) of
a claim that is cognizable under the WV Human
Rights Act (discrimination on the basis of age, sex,
disability, national origin, religion, race, association,
etc.) is not valid and binding unless the requirements
of 77CSR §6-3.2are met
Settlements (cont)
§ 77-6-3.2 Provides that the waiver be part of a written agreement
 In plain English written in a manner calculated to be understood by the average
person with a similar education
 That specifically references the rights or claims made under the WV Human
Rights Act
 That provides that the waiver does NOT extend to rights or claims that may
arise after the date the wavier is executed
 That provides additional consideration specific to the waiver of rights
(additional to anything of value to which the individual is already entitled
 That advises the individual to consult with an attorney prior to executing the
agreement and provides the individual with the toll free telephone number of
the West Virginia State Bar Association (1-800-642-3617);
 That provides a period of at least twenty-one (21) days within the individual
can consider the agreement; and
 That provides for a period of at least seven (7) days following execution of such
agreement during which the individual may revoke the agreement in writing
HOWEVER….
77-6-3.3 also provides that:
If a party who has filed a complaint pursuant to the
West Virginia Human Rights Act executes a written
release in connection with the settlement of the claims
made in the complaint, and the release is entered into
by the party with the direct assistance of an attorney
who has made an appearance on behalf of such
complaining party, the release may be considered a
knowing and voluntary waiver without regard to the
requirements of 3.2.e., 3.2.f. and 3.2.g.
Questions?