Drew Capuder’s Employment Law Blog

10-13-09: The West Virginia Supreme Court addressed the enforceability of employment arbitration agreements in State ex rel. Clites v. Clawges, — S.E.2d –, 2009 W.L. 3320488 (2009) (opinion at Findlaw’s web site). This Clites decision is discussed in my chart of West Virginia Supreme Court decisions.

Clites Goes To Work For TeleTech And Signs An Arbitration Agreement

The plaintiff, Jill Clites, went to work for TeleTech in October 2004 as a Customer Service Representative. During new employee orientation, Clites met with a human resources representative for about 90 to 120 minutes, during which time Clites reviewed and signed a large number of documents related to the orientation. In the record before the West Virginia Supreme Court, there were disputes over whether individual documents were discussed with Clites and whether she was required to sing all the documents during the orientation session, but it appears that during that session Clites signed an arbitration agreement which TeleTech required of most or all new employees.

Clites remained employed at TeleTech until July 12, 2007, when she was terminated. She then filed suit for sexual harassment and retaliation. Clites alleged she complained about the sexual harassment, that TeleTech failed to take appropriate corrective action, and that TeleTech retaliated against her for the complaint by firing her.

Clites Files Suit In West Virginia Circuit Court

Clites filed suit in West Virginia Circuit Court in Morgantown. TeleTech then invoked the arbitration agreement by filing a motion to dismiss the lawsuit and by filing a separate lawsuit in federal court arguing that Clites waived her rights to a jury trial  by signing the arbitration agreement. In essence, TeleTech argued that Clites gave up her right to file suit and obtained a jury trail by signing the arbitration agreement, and that her only remedy was to file an arbitration proceeding (with the American Arbitration Association) pursuant to the arbitration agreement.

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I have prepared a chart containing a summary of West Virginia Supreme Court decisions significantly affecting employment law. The chart starts on January 1, 2009, with decisions issued after that date. The chart contains hyperlinks to the opinions, both on the West Virginia Supreme Court’s web site, and on Findlaw. If you click on the photos of each Justice, that will take you to the biography page for that Justice on the Supreme Court’s web site. Finally, the chart contains hyperlinks to this blog.

Click the line below to open the chart, which is an Adobe Acrobat PDF:

WV Supreme Court Employment Decisions

(click here to download the free Acrobat Reader, if you don’t already have it installed on your computer).

Prepared by Drew M. Capuder (contact information)

On October 1, 2009, a jury in Charleston, West Virginia returned a verdict in an age discrimination case, awarding James Nagy a total of $1,750,450. That verdict consists of:

• $200,450 for past lost wages and benefits,

• $900,000 for future lost wages and benefits,

• $150,000 for humiliation,

• $150,000 for emotional distress, and

• $350,000 in punitive damages.

Under the West Virginia Human Rights Act (which prohibits age and other forms of discrimination in the workplace), Nagy’s counsel will file a motion additionally requesting attorneys’ fees and expenses.

Read the articles about the trial result in the Charleston Daily Mail and The Charleston Gazette and on WSAZ Television’s site.

James Nagy filed suit in Charleston in March 2008 against West Virginia American Water Company, alleging that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was represented by Maria W. Hughes and Stephen Weber at Kay Casto & Chaney PLLC. West Virginia American Water Company was represented by Mychal Schulz at Dinsmore & Shohl LLC.

The case is pending in Circuit Court in Kanawha County, West Virginia, before Judge Jennifer Bailey-Walker.

Prepared by Drew M. Capuder (contact information)

October 25, 2007: In Colgan Air, Inc. v. West Virginia Human Rights Commission, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Virginia Supreme Court addressed claims of harassment (based on religion and national origin) and retaliation under the WV Human Rights Act, W. Va. Code § 5-11-1 et seq.

The plaintiff was a pilot, Rao Zahid Khan, who alleged that his co-workers subjected him to frequent derogatory and insulting comments about his national origina and religeon (he was Arabic). The West Virginia Supreme Court ruled that Colgan Air (a) was not liable for harassment because it had policies and procedures prohibiting harassment and took swift and decisive action after learning about the harassment, and (b) was not liable for retaliation because Colgan Air terminated the employee (Mr. Khan) for a legitimate and non-discriminatory reason–he failed to pass a mandatory FAA proficiency test for pilots.

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