No. 13-1084 - Constellium Rolled Products Ravenswood, LLC et al v. Griffith et al.

                                                                           FILED
                                                                         June 10, 2015
                                                                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA

LOUGHRY, Justice, concurring, in part, and dissenting, in part:


              I once again express my staunch disagreement with the majority’s baseless

conclusion that the respondents advanced a viable gender discrimination claim. Faced with

an opportunity on rehearing to correct its initial mishandling of this verdict, a majority of

this Court refuses to apply well-established principles of employment law and common

sense, as more fully explained below.



              At the outset, let me be clear that my concurrence is limited strictly to the

striking of punitive damages due solely to the absence of an actionable claim in the first

instance. In no way do I subscribe to the majority’s pretextual analysis regarding the

punitive damages claim inasmuch as there is quite simply no claim upon which damages of

any type–punitive or otherwise–may be awarded. In my view, the majority’s substantive

analysis in support of striking the punitive damages is a thinly veiled attempt to mask the

plainly inadequate claim advanced by the respondents and obscure the majority’s empty

analysis in support of it. Striking punitive damages does nothing to “cure” the injustice

occasioned by this verdict, and I will not subscribe to a false analysis of damages which

should not exist in the first instance. With every word in support of striking punitive

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damages, the author of this plurality opinion1 underscores the meritless nature of the gender

discrimination to which the author lends his unqualified support.



              Concerning the issue of the viability of the gender discrimination claim, let me

reiterate that while I emphatically agree that the language utilized by Mr. Keifer in the

original comment cards was without question both highly inappropriate and certainly an

unacceptable manner of referring to a female co-worker, regardless of the context or

situation, the incivility at issue in this case did not rise to the level of proof necessary to

establish a claim of gender discrimination, sexual harassment, or hostile work environment.

Highly significant is the fact that in affirming the jury’s verdict as to compensatory damages,

the majority fails to cite a single factually analogous case. This omission, especially

considering the vast federal and state jurisprudence addressing allegations of workplace

discrimination, signals loud and clear that the evidence in this case was woefully inadequate

to sustain the respondents’ claims.



       1
        Inasmuch as I concur in the result only as it pertains to punitive damages and do not
concur in the rationale advanced by the author, the analysis as to punitive damages does not
“enjoy[] the assent” of three Justices and is therefore, as to that aspect, a plurality opinion.
Marks v. United States, 430 U.S. 188, 193 (1977) (citing Gregg v. Georgia, 428 U.S. 153,
169 n. 15 (1976)). As we previously explained, “[w]hen a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of [a majority of] Justices, ‘the
holding of the Court may be viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds . . .’” State v. Kennedy, 229 W. Va. 756, 735
S.E.2d 905 (2012) (citations omitted).


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              In this case, the respondents were subjected to three written, anonymous

comment cards, which contained redacted epithets that referred to them individually, or

collectively, as a “lazy worthless b_____ and a “lazy a___.” These comment cards were

posted by the employer one time on a bulletin board alongside numerous other comment

cards and other unrelated employment postings, and they were taken down immediately after

only a couple of days. These comments were treated in precisely the same manner as similar

comments that were directed toward male employees–redacted for employee name and

profanity and responded to by the employer in a gender-neutral fashion with regard to the

substance of the comment. Moreover, testimony was adduced that the respondents, who

claim to be victims of gender discrimination, often used “rough language” while at work,

such as “b*tch,” “sh*t,” and “d*mn,” and referred to each other as “lazy b*tches” and to

other employees as “a**hole,” “qu*er,” and “little baldheaded pr*ck.”



              It is well-accepted in federal jurisprudence2 that “the use of a gender-specific

term in a derogatory comment does not necessarily indicate that the comment is directed at

the person’s gender.” State v. Franklin, 534 S.E.2d 716 (S.C. App. 2000); see Johnson v.

Waters, 970 F.Supp. 991 (M.D. Ala.1997) (holding that use of derogatory term, standing



       2
        This Court has repeatedly held that we analyze cases brought under the Human
Rights Act consistent with the manner in which federal anti-discrimination laws are applied,
barring statutory distinctions or other compelling reasons. See Hanlon v. Chambers, 195 W.
Va. 99, 112, 464 S.E.2d 741, 754 (1995).

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alone, is not necessarily direct showing of discrimination, but rather must be considered in

context of its use); Kriss v. Sprint Comm’ns Co., 58 F.3d 1276, 1281 (8th Cir. 1995)

(concluding that use of term “bitch” did not indicate “a general misogynist attitude” as it was

directed at only one woman and thus was not “particularly probative of gender

discrimination”); Blankenship v. Warren Cnty. Sheriff’s Dept., 939 F.Supp. 451 (W.D. Va.

1996) (“Even though the term ‘bitch’ is usually offensive, it is not necessarily

gender-based.”); Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d 1164, 1168 (7th

Cir. 1996), overruled in part on other grounds by National R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (calling someone “bitch” fails to establish conclusively that such harassment

“was motivated by gender rather than by a personal dislike unrelated to gender”); Panelli v.

First American Title Ins. Co., 704 F. Supp.2d 1016 (D. Nev. 2010) (“Use of the word,

‘bitch,’ standing alone, is not sufficient to show gender bias.”); Neuren v. Adduci, Mastriani,

Meeks & Schill, 43 F.3d 1507, 1513 (D.C. Cir.1995) (considering plaintiff’s evaluation by

supervisor that she was a “bitch” in conjunction with accompanying commentary that

plaintiff was “extremely difficult on secretarial and support staff” as stating gender-neutral

concerns about plaintiff’s interpersonal relations with co-workers, rather than discriminatory

considerations); Williams v. KETV TV, Inc., 26 F.3d 1439, 1441 n.2 (8th Cir. 1994)

(affirming judgment for employer on charge of sex and race discrimination despite evidence

at trial that personnel involved in hiring decision referred to plaintiff as “black bitch”);

Moulds v. Wal-Mart Stores, Inc., 935 F.2d 252, 253-54 n.1, 256-57 (11th Cir. 1991)


                                              4
(affirming judgment for employer on sex and race discrimination charge despite evidence

that employer told plaintiff she would have to be more of a “bitch” to become manager);

Bressner v. Caterpillar, Inc., 2008 WL 345550, at *4 (C.D. Ill. Feb. 7, 2008) (finding that

“[n]o jury would find that referring to a woman as a ‘bitch,’ even a ‘f*cking bitch,’ . . . is

evidence of a discriminatory intent.”).



              As the Eighth Circuit explained in Kriss:

              While these comments are rude, they do not furnish much proof
              of gender discrimination. Calling a particular person ugly or
              using an epithet characterizing a person as unpleasant is not
              particularly probative of whether someone would refuse to
              promote someone else for improper reasons. Specifically, the
              word “bitch,” it seems to us, is not an indication of a general
              misogynist attitude. Rather, it is a crude, gender-specific
              vulgarity, which in this case was directed toward only one
              woman, rather than women in general. (We note the existence
              of many vulgar epithets that are used only of men that, we
              believe, would not be indicative of animus against males.).

58 F.3d at 1281. Similarly, in the case at bar, the mere fact that Mr. Keifer is male and the

respondents are female is not indicative of gender bias. See also Hawkins v. PepsiCo, Inc.,

203 F.3d 274, 282 (4th Cir. 2000) (“Law does not blindly ascribe to race all personal

conflicts between individuals of different races. To do so would turn the workplace into a

litigious cauldron of racial suspicion.”); Phillips v. Raytheon Applied Signal Technology,

Inc., 2013 WL 5440802 (D. Md. 2013). Likewise, the law does not “blindly ascribe” gender

animus to all conflicts between men and women, particularly when the source of the conflict


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is gender-neutral. In this case, it is perfectly clear from a plain and objective reading of the

comments that the source of Mr. Keifer’s vitriol was not the respondents’ gender but his

perception that the respondents are lazy. Further, his complaints of alleged laziness were

corroborated by very fact-specific instances of the respondents’ purported work-place

indolence–none of which had anything to do with the fact that they were women.



              The majority’s decision in this case is as baseless as that once bemoaned by my

colleague Justice Davis in Fairmont Specialty Services v. West Virginia Human Rights

Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999). As Justice Davis aptly stated in her

dissent:

              Where the majority goes seriously astray is in its fundamental
              misconception that anti-discrimination laws were intended to
              completely eliminate any and all bickering and even profanity
              from the workplace. As the United States Supreme Court has
              made clear, “Title VII does not prohibit all verbal or physical
              harassment in the workplace.” Rather, it is directed only at
              prohibited discriminatory conduct.

206 W. Va. at 99-100, 522 S.E.2d at 193-94 (Davis, J., dissenting) (citations omitted). The

majority, now joined by Justice Davis, finds itself veering seriously astray of established

employment law principles. As the United States Supreme Court has stated:

              We have never held that workplace harassment, even
              harassment between men and women, is automatically
              discrimination because of sex merely because the words used
              have sexual content or connotations. “The critical issue, Title
              VII’s text indicates, is whether members of one sex are exposed
              to disadvantageous terms or conditions of employment to which

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              members of the other sex are not exposed.”

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998) (quoting Harris v.

Forklift Systems, Inc., 510 U.S. 17, 25 (1993) and emphasis added).



              “[F]ederal as well as state anti-discrimination laws are not codes of civility.

Employers, much as they would like, simply cannot rid the workplace of all instances of

inappropriate employee behavior.” Fairmont Specialty, 206 W. Va. at 103, 522 S.E.2d at

197 (Davis, J., dissenting) (citations omitted). The alleged discriminatory activity in this case

was so fleeting, isolated, and legally inconsequential that I am forced to echo the sentiments

of Justice Davis fifteen years ago when she poignantly queried: “And we wonder why it is

so difficult to attract new employers to this State?” Id. at 103, 522 S.E.2d at 197.



              Therefore, for the reasons stated above, I respectfully dissent to the majority’s

decision to uphold the award of compensatory damages based on its erroneous conclusion

that the respondents established a viable gender discrimination claim. For that same reason,

and that reason alone, I concur that punitive damages must be stricken from this verdict.




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