Drew Capuder’s Employment Law Blog

The West Virginia Supreme Court recently issued an opinion dealing with one of those stereotypically awkward situations, where an employee allegedly stumbles into a room where the boss is having sex with a co-worker. The decision was  Roth v. DeFeliceCare, Inc., – W. Va. –, – S.E.2d –, 2010 WL 2346248 (June 8, 2010) (per curiam). It was a 3-2 decision, in which the 3-vote majority consisted of Justices Robin Davis, Margaret Workman, and  Thomas McHugh. Justices Menis Ketchum and Brent Benjamin dissented, and Justice Ketchum wrote a dissenting opinion.

The Facts–Sex at Work

These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.

Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.

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May 29, 2007: In Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618, 128 S. Ct. 2162 (2007) (FindLaw site opinion), the United States Supreme Court, in a 5-4 decision, issued an important decision in a sex discrimination case under Title VII of the Civil Rights Act of 1964, which substantially limited the time period available to assert a claim for pay discrimination. The Supreme Court affirmed the decision of the Eleventh Circuit in Ledbetter v. Goodyear Tire and Rubber Company, Inc., 421 F.3d 1169 (11th Cir. 2005).

Ledbetter’s Claims of Sex Discrimination and Lower Pay, and the Trial Result

Ledbetter filed a charge of sex discrimination with the EEOC in 1998 and then later in the year retired. She claimed that, years earlier in her career at Goodyear, male supervisors gave her bad performance reviews compared to what men received. She claimed that Goodyear awarded raises based on those performance reviews, so that her pay raises were reduced as a result of the discriminatory performance reviews.

Ledbetter went to trial and persuaded the jury that the performance reviews, years before she filed her EEOC charge, were discriminatory based on her sex, and the jury found her rights had been violated and awarded her damages based on her lower paychecks throughout her career. The trial judge entered a "judgment" in Ledbetter’s favor based on the jury’s verdict. So Ledbetter won at trial on her sex discrimination claim under Title VII. The Eleventh Circuit Court of Appeals threw out the jury verdict and trial court judgment for Ledbetter, and entered a judgment in favor of Goodyear, based on her failure to file her EEOC charge within 180 days of when the performance reviews had been conducted. The United States Supreme Court affirmed, meaning that Goodyear won.

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