                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


CARL CLARK,                                                                         FILED
Plaintiff Below, Petitioner                                                       May 9, 2018
                                                                                   released at 3:00 p.m.
                                                                               EDYTHE NASH GAISER, CLERK
vs.) No. 17-0616 (Kanawha County No. 15-C-1470)                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

KANAWHA COUNTY BOARD OF EDUCATION,
Defendant Below, Respondent

                              MEMORANDUM DECISION


               The petitioner herein and plaintiff below, Carl Clark (“Coach Clark”), by
counsel, Richard W. Walters and Todd A. Mount, appeals an order entered June 13, 2017,
by the Circuit Court of Kanawha County. By that order, the circuit court granted judgment
as a matter of law pursuant to Rule 50 of the West Virginia Rules of Civil Procedure to
respondent herein and defendant below, Kanawha County Board of Education (“the Board”).
The Board is represented by Charles R. Bailey, James W. Marshall, III, and Unaiza Riaz. On
appeal to this Court, Coach Clark contends that he submitted ample evidence upon which a
reasonable jury could conclude that the actions of the Board in posting a vacancy for the
position of head coach of the Capital High School boys’ basketball team and thereafter
failing to re-hire Coach Clark were motivated by age discrimination.

               Upon our thorough and considered review of the assignments of error, the
parties’ arguments, the appendix record, and the pertinent authorities, we find that the circuit
court committed no error in the order dismissing the action against the Board. Consequently,
we affirm the circuit court’s June 13, 2017, order. Because this case does not present a new
or substantial question of law, and for the reasons set forth herein, we find the issuance of
a memorandum decision is appropriate pursuant to Rule 21(c) of the West Virginia Rules of
Appellate Procedure.

               Coach Clark was a respected athletic coach and certified teacher in the
Kanawha County public school system. He began his career as a teacher and coach
employed by the Board in 1971. By 1977, Coach Clark was teaching and successfully
coaching girls’ and boys’ basketball at Stonewall Jackson High School. In 1989, he began
teaching and coaching at newly consolidated Capital High School (Capital High). Initially,
he was the assistant boys’ basketball coach and the head coach for the girl’s basketball team.
Ultimately, Coach Clark became head coach for the Capital High boys’ basketball team; a
position he filled for some twenty-one years. During that period, the team won state titles

                                               1

as well as numerous regional and sectional championships. Coach Clark also won numerous
awards for his coaching achievements.

               In 2014, recognizing the toll that the dual positions of teaching and coaching
had taken on his family, Coach Clark, wanting to spend more time with his family, made the
decision to retire from teaching. He discussed his situation with then long-time Charleston
High principal Clinton Giles and represented that he wanted to continue as head coach for
the boys’ basketball team. Principal Giles apparently agreed that Coach Clark could continue
as head coach for the 2014-2015 season even if he retired as a teacher. This agreement was
made despite a requirement that employed teachers have a right of first refusal to coaching
positions.

               Following Coach Clark’s October 1, 2014, retirement from teaching, principal
Giles did not declare the position of head coach for the boys’ basketball team vacant and did
not post the position for applicants. On November 7, 2014, Coach Clark signed an Extra-
Curricular Assignment Agreement (“Agreement”) with the Board to serve in the position at
a rate of compensation of $2,500.00 for the 2014-2015 school year. The season was
successful with nineteen wins and four losses, a sectional championship win, and a regional
championship win. Additionally, Coach Clark was named Coach of the Year of the
Mountain State Conference and by the Charleston Gazette-Mail newspaper.

               In January 2015, in the middle of the basketball season, principal Giles
unexpectedly resigned. David Miller became the acting principal. The basketball season
ended on March 10, 2015, and Coach Clark received his compensation for the completion
of his duties pursuant to the Agreement. Coach Clark informed both acting principal Miller
and athletic director Cody Clay that he wanted to continue coaching and requested that any
new principal be so informed.

               Mr. Clay, having been hired as the athletic director in August 2014, was
relatively new to the position of athletic director. Previously, Mr. Clay relied on principal
Giles for decisions regarding the posting of, and hiring for, coaching positions. In the
absence of principal Giles, in the spring of 2015, Mr. Clay contacted the Board’s human
resources department for guidance on posting and filling coaching positions for the 2015­
2016 school year. Given the cumbersome, time-consuming requirements for posting,
interviewing, recommending, and subsequent approval by the Board, Mr. Clay was preparing
for the next athletic seasons. Mr. Clay was advised by human resources that any position not
held by a full-time teacher had to be posted as available. After compiling a list of all
coaching positions that needed to be posted, Mr. Clay again contacted the human resources
office and confirmed that all coaching positions held by non-teachers in 2014-2015,
including retired teachers, had to be posted as available. There were multiple coaches in the
category of retired or non-teacher. Mr. Clay prepared the list of vacancies for posting and

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it was submitted to human resources. The list included the boys’ head basketball coach
position and twelve other coaching positions at Capitol High.

              From April 24, 2015, through April 30, 2015, the boys’ head coach position,
together with the twelve other coaching positions at Capital High, and nine other coaching
positions in the county system, were posted on the Board’s Job Vacancy Hotline. Upon
posting the position, acting principal Miller and Mr. Clay telephoned Coach Clark to advise
him that the position was posted and that he needed to submit an application for the position.
Coach Clark immediately completed and submitted the online application on April 24, 2015.

               In the meantime, during the last week of April, the Board hired Larry Bailey
to serve as the principal at Capital High. Upon assuming his position, principal Bailey was
confronted with the task of filling teaching, service personnel, and coaching vacancies. He
learned that seven applicants had applied for the boys’ basketball head coach position.
Principal Bailey contacted his supervisor to obtain advice on how to proceed. He was told
to interview all the applicants for the position. He selected a committee to sit in on the
interviews and assist in the hiring decision. The committee consisted of Mr. Clay, assistant
principal Matthew Shock, and assistant principal Abbey Stevens. The committee members
were all under the age of forty.

              The interviews were held during the week of May 18, 2015. Prior to the
interviews, the committee was provided with only the names of the applicants. No other
information was provided. Mr. Clay prepared a list of ten questions to ask each of the
interviewees. The questions were prepared in advance of knowing who the applicants were
and were based upon a general hypothetical applicant. The list was provided to each of the
committee members. Each applicant was asked the ten questions during the course of the
interview. There was no deviation and no follow-up questioning. The first question
contained three parts. First, “[w]hat are your career goals as a basketball Coach?” Second,
“[w]here do you see yourself in five years?” Third, “[w]hat kind of commitment can you
give us if you were given this position?”

               The committee was operating with the understanding and instruction that the
position had to be offered to a currently employed certified professional educator if one
applied for the position. Thus, an applicant such as Matthew Greene, a then-current teacher
at Capitol High, had a right of first refusal for a coaching position. Mr. Greene came to the
interview with a resume and prepared portfolio materials outlining his ideas for the program
and was enthusiastic about the possibility of coaching. On the other hand, Coach Clark was
terse and took the approach in the interview, without elaborating, that his record spoke for
itself. Coach Clark felt “degraded” by the interview process. He did not believe he should
have to “sell” himself. Coach Clark felt that the composition of the committee and the nature
of the first questions meant that the process was “stacked against him.”

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                Following the interviews, the committee agreed to offer the position to Mr.
Greene as a currently employed certified teacher at Capital High. Had Mr. Greene refused
the offer, the next in line for the position would have been Ron Beatty who was a long-term
currently employed certified professional educator at another school in the county and who
had served for years as an assistant coach of the Capital High boys’ basketball team with
Coach Clark. In the event that Mr. Beatty refused an offer, the committee may have wanted
to offer the position to Pat McGinnis, a long-time teacher and coach who had impressed the
committee, but who informed the committee that he was retired as a teacher. In any event,
under the rules in place at the time, Coach Clark could not have been offered the position
unless both Mr. Greene and Mr. Beatty first declined an offer.

                On June 1, 2015, principal Bailey submitted a request to hire Capital High
teacher Mr. Greene to be the head coach of the Capital High boys’ basketball team. Mr.
Greene was thirty-five-years-old. The request was formally approved by the Board at its
scheduled meeting on June 8, 2015. The approval of the request was done by the Board at
the same time it approved seven other coaching assignments for Capital High and thirty-two
other coaching positions at high schools and middle schools throughout the county, including
head and assistant girls’ and boys’ basketball coaching positions. Additionally, the record
reflects that in April and May 2015, hundreds of coaching positions from around the county
were posted. The record establishes that the newly hired coaches for the Capital High boys’
basketball team for the 2015-2016 season were under the age of forty. The record is silent
as to the ages for those individuals in other coaching positions at Capitol High and for those
individuals who were part of the applicant pools.

              On May 21, 2015, subsequent to interviewing for the coaching position, Coach
Clark applied to become a substitute teacher. The record is undeveloped regarding whether
the committee was informed of the substitute teaching application. The application was
approved by the Board on June 8, 2015, in the same personnel agenda setting that approved
Mr. Greene and forty others for coaching positions. Coach Clark has not filled a substitute
teaching position. At some point, when no employed teacher applied for the position,
principal Bailey called Coach Clark and offered him the position of assistant basketball coach
of the boys’ team. Coach Clark had applied online for the assistant coach position at the
same time he applied for the head coach position. Coach Clark refused the position as he
found the offer insulting and states that he mistakenly applied for the position.

                Coach Clark filed his three count complaint grounded in age discrimination and
in intentional and negligent infliction of emotional distress on August 3, 2015. Thereafter,
Coach Clark withdrew the claims of intentional and negligent infliction of emotional distress
as well as his claims for past and future lost wages and his request for punitive damages. On
November 14, 2016, a jury trial commenced on the remaining issues of whether the Board
engaged in age discrimination in violation of the West Virginia Human Rights Act (“Human

                                              4

Rights Act”), W. Va. Code § 5-11-1, et seq. (1967) (Repl. Vol. 2013), and whether Coach
Clark was entitled to an award of emotional distress damages as a result. Coach Clark
testified and presented the testimony of principal Bailey, former assistant principal and
member of the interview committee, Matthew Shock, and the former athletic director, Mr.
Clay. A number of exhibits and stipulations were admitted in evidence. Thereafter,
argument was had on the motion of the Board for judgment as a matter of law pursuant to
Rule 50 of the West Virginia Rules of Civil Procedure. Based upon a review of the evidence
including the testimony, exhibits, and stipulations, the circuit court concluded that there was
no legally sufficient evidentiary basis for a reasonable jury to find that the Board
discriminated against Coach Clark on the basis of his age. Accordingly, on June 13, 2017,
the circuit court entered an order granting the Board’s motion and dismissed the matter from
the court’s docket. Coach Clark filed and perfected his appeal from that order.

              This Court applies a de novo standard of review to the grant or denial of a
motion for judgment as a matter of law.

                     The appellate standard of review for the granting of a
              motion for a [judgment as a matter of law] pursuant to Rule 50
              of the West Virginia Rules of Civil Procedure is de novo. On
              appeal, this court, after considering the evidence in the light
              most favorable to the nonmovant party, will sustain the granting
              of a [judgment as a matter of law] when only one reasonable
              conclusion as to the verdict can be reached. But if reasonable
              minds could differ as to the importance and sufficiency of the
              evidence, a circuit court’s ruling granting a [judgment as a
              matter of law] will be reversed.

Syl. pt. 3, Brannon v. Riffle 197 W. Va. 97, 475 S.E.2d 97 (1996).

              Under the Human Rights Act, it is unlawful “[f]or any employer to discriminate
against an individual with respect to compensation, hire, tenure, terms, conditions or
privileges of employment. . . .” W. Va. Code § 5-11-9(1) (1998) (Repl. Vol. 2013).
Discrimination, under the terms of the Human Rights Act “means to exclude from, or fail or
refuse to extend to, a person equal opportunities because of. . .” among other things, “age.”
W. Va. Code § 5-11-3(h) (1998) (Repl. Vol. 2013). The term “age” is defined as meaning
“the age of forty or above[.]” W. Va. Code § 5-11-3(k) (1998) (Repl. Vol. 2013).

               Coach Clark’s complaint is predicated upon a claim of disparate treatment
meaning that he alleges that the Board discriminated against him on the basis of age. This
allegation is distinct from one sounding in disparate impact, which is used to attack facially
neutral policies that disproportionately impact a protected group. “[A] complainant asserting

                                              5

a disparate treatment theory must prove discriminatory intent to prevail, while a complainant
asserting a disparate impact theory need not offer any such proof.” Morris Mem’l.
Convalescent Nursing Home, Inc. v. West Virginia Human Rights Comm’n, 189 W. Va. 314,
317, 431 S.E.2d 353, 356 (1993)(describing differences between disparate impact and
disparate treatment claims of unlawful discrimination). Coach Clark alleged, and must
prove, that the Board intentionally discriminated against him due to his age.

              This Court has long held that cases brought under the Human Rights Act are
governed by the same evidentiary framework developed under Title VII and enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
As was discussed in Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152
(1995), pursuant to the McDonnell Douglas framework, a plaintiff must first create an
inference of discrimination by establishing a prima facie case. Barefoot, 193 W. Va. at 483,
457 S.E.2d at 160. Thereafter, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the negative action taken. Id. Lastly, the plaintiff has an
opportunity to show that the articulated rationale of the defendant was merely a pretext for
discrimination. Id.

              In Conway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423
(1986) we addressed what is required of a plaintiff to establish a prima facie case of age
discrimination. Specifically, this Court held:

                     In order to make a prima facie case of employment
              discrimination under the West Virginia Human Rights Act,
              W. Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer
              proof of the following:

                     (1) That the plaintiff is a member of a protected class.

                    (2) That the employer made an adverse decision
              concerning the plaintiff.

                    (3) But for the plaintiff’s protected status, the adverse decision
              would not have been made.

Syl. pt. 3, Conway, 178 W. Va 164, 358 S.E.2d 423.

              As to the third prong of proof, we have made it abundantly clear that the “but
for” element requires only that a plaintiff show an inference of discrimination. Barefoot, 193
W. Va. at 484, 457 S.E.2d at 161. This Court has discussed the third prong of proof:


                                              6

              Because discrimination is essentially an element of the mind,
              there will probably be very little direct proof available. Direct
              proof, however, is not required. What is required of the plaintiff
              is to show some evidence which would sufficiently link the
              employer’s decision and the plaintiff’s status as a member of the
              protected class so as to give rise to an inference that the
              employment decision was based on an illegal discriminatory
              criterion. This evidence could, for example, come in the form
              of . . . a case of unequal or disparate treatment between members
              of the protected class and others[.]

Conway, 178 W. Va. at 170-71, 358 S.E.2d at 429-30. With this paradigm of proof in mind,
we turn to an analysis of the evidence presented and the circuit court’s entry of judgment as
a matter of law.1

                At the time the vacancy was posted and interviewing undertaken, Coach Clark,
at the age of sixty-eight, was a member of a protected class. The Board, at the posting stage
and/or with the decision to hire a thirty-five-year-old individual, made an adverse decision
concerning Coach Clark. Coach Clark argues he offered evidence that he was a successful
coach who provided good and loyal service and nevertheless a decision was made to declare
a vacancy and ultimately replace him with someone not in his protected class.

              The Board contends that Coach Clark voluntarily, of his own accord, retired
from his teaching position in October 2014. Principal Giles apparently made a decision not


              1
               We note that the facts of this case demonstrate some of the analytical
       challenges of the proof scheme and the shifting of the burden of presumption in
       discrimination cases. While the Board’s motion was made at the conclusion of Coach
       Clark’s case-in-chief, Coach Clark called Board witnesses to establish proof of age
       discrimination. The Board elected to develop its case when examining those
       witnesses during Coach Clark’s case-in-chief. The Board also reserved the right to
       call those same witnesses in the presentation of its case. Some of the evidence could
       be analyzed in terms of the prima facie case or as pretext. The characterization of the
       assessment of the evidence does not particularly matter. What matters is whether
       Coach Clark sustained his burden of proving that age entered into the decision to
       declare a vacancy, interview, and hire for the coaching position. As former Justice
       Cleckley correctly observed, if a prima facie case is established such that a
       presumption of discrimination was created, the case, as a matter of law, could not be
       dismissed at the conclusion of his case-in-chief. Barefoot, 193 W. Va. at 485-86, 457
       S.E.2d at 162-63.

                                              7

to post the head coach position; choosing instead to have Coach Clark continue with
coaching for the 2014-2015 season, which ended in early March 2015. However, Principal
Giles’ sudden resignation left a newly-appointed interim principal and a new athletic director
to address all coaching positions for Capital High for the next school year. They properly
sought guidance from the Board’s human resources department and followed the direction
that such positions filled by retired teachers must be posted because the law at the time
dictated that county boards of education give priority for coaching positions to currently
employed certified professional educators. As a result, Capital High posted thirteen coaching
positions including the boys’ basketball head coach position that had been held by Coach
Clark some twenty-one years. Those positions were posted by the Board as vacant together
with other coaching positions in the county. The position and the hiring process was treated
in the same manner as other positions. The position was offered and accepted by an eligible
applicant who was employed by the board as a teacher and, as such, had a right of first
refusal.

               The question that must be analyzed is whether Coach Clark has shown
evidence that “sufficiently links” the Board’s actions with his status as a member of a
protected class due to his age so as to give rise to an inference of illegal discrimination.
Coach Clark argues that he showed that the interview panel consisted of individuals under
the age of forty, that some of the interview questions as applied to him suggested ageism, and
that he was replaced by a thirty-five-year-old individual. He also contends that his contract
was not actually concluded until the end of the school year on June 30, 2015, and duties
remained to be performed such that the position was improperly declared vacant and posted
as part of a manipulative age-related scheme designed and advanced by Mr. Clay. It is
argued that Mr. Clay was the architect of a scheme to get rid of the older Coach Clark in
favor of a younger individual who would take the boys’ basketball team in a new and
different direction.

               Coach Clark asks too much of the evidence. A whole record review
undertaken in a light most favorable to Coach Clark instructs that only unsupported
assumptions and speculation have been advanced in an effort to create an inference of age
discrimination. Coach Clark is correct that he is not required to elicit a blatant confession
of discrimination. This Court recognizes that it is the nature of discrimination that “smoking
gun” evidence of unlawful motive is rarely available. However, there must be some evidence
of discriminatory intent which could come in a variety of forms such as looking to
comparison employees, showing evidence of those in the protected class being treated
differently, or statistical analysis.

               The record reflects that Coach Clark’s independent, October 2014, voluntary
decision to retire as a teacher set in motion the events leading to the head coaching position
being posted as a vacancy. We note that the record also establishes that, had Coach Clark

                                              8

not retired, he would have continued in the position absent some serious misconduct on his
part. Coach Clark argues that the extra-curricular Agreement remained in force until the end
of the school calendar year on June 30, 2015, such that the position should not have been
posted as vacant in April 2015. According to Coach Clark, he had always performed
coaching activities during a permissible three week period in June, outside the basketball
season, and intended to do so again despite having already received payment.

               The Agreement at issue is a form extra-curricular agreement that indicates that
the extra-curricular duties required by the Agreement were subordinate to instructional duties
required by the employee’s employment contract. It further indicated that the extra-curricular
duties may require modification in order to avoid interference with instructional duties. The
Agreement provided that it was for the 2014-2015 “school year.” The Agreement also
explicitly provided that “[p]ayment of the compensation set forth above shall be made upon
completion of the duties of the extra-curricular assignment or upon such other schedule
mutually agreed upon by the parties.” There is no dispute that Coach Clark was paid the
compensation amount of $2,500.00 at the conclusion of the boys’ basketball season in March
2015. That was the conclusion of the duties of the head coach for the 2014-2015 season.
Additionally, the employee extra-curricular Agreement stated that “[e]mployee retirement,
resignation, or termination ends this contract agreement.” Considered with the fact that this
was an extra-curricular assignment for Board employees and, due to his voluntary retirement,
Coach Clark had no instructional duties, acting principal Miller and Mr. Clay had every
reason to understand that Coach Clark’s position for the extra-curricular coaching ended at
the conclusion of the boys’ basketball season and to proceed with posting it in the same
fashion as other positions at Capital High and other schools within the Board system.

              Furthermore, the record reflects that Coach Clark made several significant
admissions in response to requests for admission from the Board. These admissions include
that he was not a full-time educator when he applied for, and when he interviewed for, the
head coach position in April and May of 2015. Coach Clark also admitted that he was not
employed in any capacity by the Board when he applied for, and interviewed for, the head
coach position in April and May 2015. It is noteworthy that on his substitute application of
May 21, 2015, Coach Clark indicated that he was not “currently under contract.”

              It is clear to this Court that, once Coach Clark was paid, he was no longer
employed by the Board in any capacity, either as a teacher or as an extra-curricular coach.
In April 2015, it was entirely reasonable for Mr. Clay and acting principal Miller to proceed
with posting the position together with twelve other coaching positions as guidance from
human resources directed and as was done with hundreds of positions around the county.
There is no evidence of unequal treatment or unlawful age discrimination entering the
decision to post the position.


                                              9

               The law in place at the time of Coach Clark’s retirement and the conclusion of
the boys’ basketball season provided that persons could serve in the public schools as athletic
coaches subject to the limitation that a “currently employed certified professional educator
has not applied for the position.” W. Va. Code § 18A-3-2a(e)(3)(B) (2012) (Repl. Vol.
2012). Additionally, the West Virginia Code of State Regulations in place at the time
provided that a certified coach may be contracted by a county school board “only if an
employed certified professional educator within the county has not applied for and accepted
the coaching position.” 127 CSR § 3-6.1 & 6.4.c. Further, the West Virginia Secondary
Sports Athletic Commission (“SSAC”) Handbook incorporated the requirement of a
preference for an employed certified professional educator to hold coaching positions. See
also Hanlon v. Logan Cty. Bd. of Educ., 201 W. Va. 305, 496 S.E.2d 447 (1997) (indicating
that, in some circumstances, a board of education’s authority to hire an individual as a coach
is restricted by then W. Va. Code § 18A-3-2 when a currently employed professional
educator has applied for the position).

               Coach Clark conceded that he was aware of the various requirements
governing coaching positions. Having worked with them for years, Coach Clark knew the
SSAC rules. He was well-aware that for years the assistant positions for the boys’ basketball
team were posted at the end of the season due to the status of the individuals as non-faculty
members. Nevertheless, he argues that, despite his retirement as an educator, he had an
expectation of a continuing extra-curricular contract based, in part, on the fact that former
principal Giles permitted him to continue coaching during the 2014-2015 season. Coach
Clark “felt” that he would be able to continue as head coach without posting the position for
as long as he wanted to remain. Notably, principal Giles did not testify. Coach Clark’s
reliance on any representations made by principal Giles, which appear to have constituted a
bending of the rules, was misplaced.

                During its session of 2015, the Legislature removed the requirement in W. Va.
Code § 18A-3-2a(e)(3)(B) that employed certified professional educators be given the right
of first refusal on all coaching positions as effective June 12, 2015. W. Va. Code § 18A-3­
2a(e) (2015) (Repl. Vol. 2016). Coach Clark points to this change to argue that the Board
could have waited until the law changed to post his position or make the hiring decision.
Had this been done, the preference for currently employed teachers would not have been in
place. Coach Clark contends that there was no prohibition precluding the Board from either
waiting to fill the position after the rule preference change on June 12, 2015, or conditioning
his re-hiring upon him once again becoming employed as a certified teacher which was
accomplished on June 8, 2015, when he was approved as a substitute. Coach Clark also
complains that he was not given advance notice that the position was going to be declared
vacant and posted. Additionally, he complains he was not told that he could avail himself
of the preferential hiring rule by becoming re-hired. It is argued that these matters constitute
proof of Mr. Clay’s discriminatory manipulative scheme.

                                              10

               The argument is purely speculative. Further, the argument amounts to a request
to treat Coach Clark differently from others in the county system. The process of
determining what coaching positions needed to be posted began weeks after the conclusion
of the basketball season. In an unsettled administrative environment, administrators were
attempting to put the school in proper position for the next athletic seasons with the
knowledge of the importance of the three week period in June when coaches can work with
potential athletes. Every Capital High position was treated exactly the same. Indeed, the
record instructs that extra-curricular positions throughout the county were treated in the
same manner. We observe that discrepancies in the testimony of principal Bailey and Mr.
Clay were minor, explained, and of no moment in the effort to establish intentional
discrimination. As to the hiring of Mr. Greene, the record reflects that Mr. Clay was unaware
of any interest by Mr. Greene in the position until after it was posted.

               There is simply nothing in the record to suggest a prohibited age bias in the
actions of the Board. Coach Clark has failed in showing evidence that would “sufficiently
link the [Board’s] decision and [his] status as a member of the protected class so as to give
rise to an inference that the employment decision was based on an illegal discriminatory
criterion.” Conway, 178 W. Va. at 170-71, 358 S.E.2d at 429-30. Coach Clark has not
established a prima facie case of disparate treatment on the basis of age because he did not
offer proof, either direct or circumstantial, that but for his protected status, the adverse
actions of the Board would not have been made.

               Accordingly, based upon the foregoing analysis, considering the evidence in
a light most favorable to Coach Clark, we find that reasonable minds could not differ as to
the importance and sufficiency of the evidence, and, therefore, sustain the June 13, 2017,
order of the circuit court granting judgment to the Board as a matter of law.

                                                                                  Affirmed.

ISSUED: May 9, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry, II
Justice Elizabeth D. Walker




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