Mary Zerfoss v. Hinkle Trucking, Inc and Gary Hinkle

FILED
April 26, 2022
STATE OF WEST VIRGINIA released at 3:00 p.m.
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MARY ZERFOSS,
Plaintiff below, Petitioner,
vs.) No. 19-1126 (Pendleton County 17-C-7)
HINKLE TRUCKING, INC. and GARY HINKLE,
Defendants below, Respondents.
MEMORANDUM DECISION
The petitioner (plaintiff below) Mary Zerfoss appeals following an adverse jury verdict
and the circuit court’s November 19, 2019, order denying her motion for a new trial. The petitioner
alleges that her former employer, the respondents (defendants below) Hinkle Trucking, Inc. and
its owner Gary Hinkle, 1 violated the West Virginia Wage Payment and Collection Act (“WPCA”)2
and breached her employment contract by failing to pay her an agreed-upon rate of pay. 3 On
appeal, the petitioner argues the circuit court erroneously prevented the jury from hearing that the
respondents violated the WPCA by not specifying her rate of pay in writing at the time of her hire,
and the circuit court wrongly concluded that liquidated damages were not available for her WPCA
claim. She also contends that the circuit court erroneously sanctioned her for halting her discovery
deposition. The respondents argue in support of the circuit court’s rulings.
After considering the parties’ written and oral arguments, as well as the record on appeal
and the applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s order denying a new trial is
appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.
1
The petitioner is represented by attorneys Lonnie C. Simmons, Harley O. Staggers, Lia
DiTrapano Fairless, and L. Tom Price. The respondents are represented by attorneys Julie A.
Moore, Jerry D. Moore, and Jared T. Moore.
2
W. Va. Code §§ 21-5-1 to -18.
3
The petitioner’s Complaint also asserted a count of gender discrimination pursuant to the
West Virginia Human Rights Act. After discovery and briefing, the circuit court granted summary
judgment for the respondents on this claim. The petitioner’s brief to this Court asserted error
regarding this summary judgment order, but during oral argument the petitioner’s counsel
announced that, after further review, his client was abandoning the appeal of the discrimination
claim. Accordingly, the discrimination issue is not addressed in this decision.
1
I. Facts and Procedural Background
The petitioner was hired as a commercial truck driver at Hinkle Trucking in February 2011.
She worked there until January 29, 2014, when she resigned to work for a different employer. Two
months later, on March 31, 2014, she was rehired at Hinkle Trucking under the same terms as her
previous employment. She remained employed until January 21, 2016, when she again resigned.
The petitioner filed the underlying civil action against Hinkle Trucking, Gary Hinkle, and
Travis Hinkle 4 on March 31, 2017. With regard to her WPCA and breach of contract claims, she
asserted that she was not paid all of the wages owed to her. 5 She sought the recovery of unpaid
wages, statutory liquidated damages, punitive damages, attorney’s fees, and interest. At the center
of this dispute was the parties’ disagreement over the rate of the petitioner’s pay.
When she was hired, the petitioner’s rate of pay was not set forth in writing as required by
the WPCA at West Virginia Code § 21-5-9(1) (1975). 6 The petitioner asserts that she was verbally
promised twenty-five percent of the gross price paid to the respondents on each load that she
hauled. However, the respondents assert that during the interview process, respondent Mr. Hinkle
informed the petitioner that she would be paid a certain dollar amount for each ton of material she
hauled to a customer’s requested destination, but the specific amount would vary for the different
customers and different destinations.
During discovery, the respondents’ counsel deposed the petitioner on January 9, 2018. The
petitioner arrived at the deposition earlier than her lawyer, with two notebooks in her possession.
As the petitioner waited for the deposition to begin, she was observed reviewing the contents of
the notebooks. During the deposition, the respondents’ counsel asked whether she had reviewed
any documents to help refresh her memory about the case. When the petitioner answered “no,” the
respondents’ counsel asked if she had reviewed the notebooks. Her lawyer objected and summarily
asserted that the information in the notebooks was protected by the attorney-client privilege. The
respondents’ counsel then asked the petitioner if she had written the information in the notebooks,
to which she answered “yes.” The respondents’ counsel queried, “[w]ithout telling me what
information you wrote down, was the information in those notebooks communicated to you by
your attorney?” and “[w]here did the information come from that you wrote down in your
notebooks?” The petitioner’s counsel objected to these questions and did not permit the petitioner
4
Claims against Travis Hinkle, who is the son of respondent Gary Hinkle, are not at issue
in this appeal.
5
West Virginia Code § 21-5-3(a) (2015) provides, in part, that “[e]very person, firm or
corporation doing business in this state . . . shall settle with its employees at least twice every
month . . . and pay them the wages due, less authorized deductions and authorized wage
assignments, for their work or services.” The 2015 version of subsection 3(a) is quoted here
because it was in effect during the petitioner’s employment, but earlier and subsequent versions
are substantially the same.
6
West Virginia Code § 21-5-9 provides, in part, that “[e]very person, firm and corporation
shall: (1) Notify his employees in writing, at the time of hiring of the rate of pay[.]”
2
to answer. The respondents’ counsel then asked the petitioner whether the notebooks contained
“information intended to go to your attorney?” The petitioner’s counsel again objected, restating
that the notebooks contained privileged communications. When the respondents’ counsel
attempted to further question the petitioner, her lawyer unilaterally halted the deposition. The
respondents’ counsel indicated that he was not finished with the deposition, but the petitioner and
her lawyer departed.
On February 14, 2018, the respondents electronically filed a “Motion for Rule 37 Sanctions
for Improper Unilateral Termination of Plaintiff’s [Petitioner’s] Deposition.” 7 The next day,
February 15, 2018, the petitioner filed a “Motion for a Rule 30(d)(3) Order” to halt her deposition. 8
In an order entered March 9, 2018, the circuit court granted the respondents’ motion and denied
the petitioner’s motion. The court ordered the petitioner to surrender her notebooks to a discovery
commissioner for an in camera determination of whether they were protected by the attorney-
client privilege and, upon the conclusion of that review, ordered that the deposition would resume.
The court ordered the petitioner and/or her lawyer Mr. Staggers to pay the respondent’s reasonable
attorney’s fees and costs and the court reporter’s costs.
After reviewing the notebooks, the discovery commissioner concluded that the contents
were prepared by the petitioner for purposes of memorializing issues to be discussed with her
counsel and thus were protected by the attorney-client privilege. The discovery commissioner also
deemed the discovery dispute to have been in good faith. By order of April 27, 2018, the circuit
court accepted the discovery commissioner’s recommendation regarding the protected nature of
the notebooks, but it disagreed that the dispute had been in good faith. After reading the transcript
and watching the video of the petitioner’s deposition, the court found that
7
Rule 37(a)(2) of the West Virginia Rules of Civil Procedure provides, in part, that “if a
deponent fails to answer a question propounded . . . the discovering party may move for an order
compelling an answer[.]” Rule 37(a)(4)(A) provides that
[i]f the motion is granted, the court shall, after affording an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion or the party
or attorney advising such conduct or both of them to pay to the moving party the
reasonable expenses incurred in obtaining the order, including attorney’s fees,
unless the court finds that the motion was filed without the movants first making a
good faith effort to obtain the discovery without court action, or that the opposing
party’s answer, response, or object was substantially justified, or that other
circumstances make an award of expenses unjust.
8
Rule 30(d)(3) of the West Virginia Rules of Civil Procedure provides, in part, that
[a]t any time during the taking of the deposition, on motion of a party or of
the deponent and upon a showing that the examination is being conducted in bad
faith or in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the court . . . may order the officer conducting the examination
to cease forthwith from taking the deposition, or may limit the scope and manner
of the taking of the deposition as provided in Rule 26(c).
3
[respondents’] counsel was properly questioning [petitioner] to
explore whether a privilege existed with respect to the information
contained in her notebooks and, if so, whether such privilege was
waived when [petitioner] reviewed the notebooks in anticipation of
her deposition while waiting for her attorney to arrive.
[Respondents’] counsel did not ask questions about the contents of
the notebooks. [Petitioner’s] counsel would not allow inquiry to
establish a record regarding the facts and circumstances surrounding
the creation of the information contained in [petitioner’s] notebooks.
Then, [petitioner’s] counsel terminated the deposition. . . . The Court
finds that if [petitioner’s] counsel had allowed [respondents’]
counsel to ask their proper questions, then this issue would not have
necessitated the involvement of the Discovery Commissioner.
After considering the reasonableness of the respondents’ fee request, the court ordered the
petitioner and/or her counsel to pay the respondents’ counsel $3,217.15 in fees and costs. The court
also ordered the petitioner and/or her counsel to pay $1,239.25 in court reporter appearance fees
for the terminated deposition, and $421.30 to compensate the discovery commissioner.
Leading up to trial, both sides filed various motions in limine. The petitioner filed a motion
asking that she be allowed to offer evidence that her employment agreement was not reduced to
writing in violation of West Virginia Code § 21-5-9(1). 9 The circuit court ruled that it was proper
for the petitioner to introduce evidence that her employment terms were not reduced to writing,
but the court prohibited her from offering testimony or argument that this violated West Virginia
Code § 21-5-9(1). When this issue arose during trial, the court further explained this evidentiary
ruling as follows:
[R]ecognizing that the agreement is not in writing, I have let you [petitioner]
inquire, cross-examine, argue, everything except say that that is a violation of the
Wage Pay[ment] and Collection Act under 21-5-9. And maybe I haven’t explained
it sufficiently enough in my mind where I’m coming from on it. But, to me, if you
do a balancing test under [West Virginia Rules of Evidence] 401 and 403, that the
prejudicial impact of explaining to a jury or trying to explain to the jury that, yes,
they violated 21-5-9, even though that’s just an administrative remedy, 10 and then
9
See supra, n. 6.
10
The circuit court prefaced this evidentiary ruling with a reference to a federal district
court decision that found there is no private cause of action for a violation of West Virginia Code
§ 21-5-9(1). See Byard v. Verizon W. Va., Inc., No. 1:11CV132, 2012 WL 1085775, *16-18
(N.D.W.Va. Mar. 30, 2012). The district court concluded that the only recourse for violation of
this statute is to file an administrative complaint with the West Virginia Commissioner of Labor.
Id. at *18. It is unnecessary for our Court to decide whether there is a private cause of action for
the failure to set forth the terms of employment in writing at the time of hiring in violation of West
4
having them [the jury] still try to interpret what the contract is based on the evidence
and what the—what the agreement was, what [the petitioner] says, what Travis
[Hinkle] says, what [respondent] Gary [Hinkle] says would be impossible. It would
not be fair to try to do that. That’s where I’m coming from.
(Footnote added.) The petitioner also filed a motion in limine to prohibit the respondents from
offering testimony regarding ambiguity in her employment agreement. The court denied the
motion, concluding that “[i]nasmuch as this is a contractual dispute, the Court is going to allow
both parties to testify to their belief of the verbal agreement regarding [petitioner’s] rate of pay.”
The respondents filed a motion in limine to prevent the jury from considering or awarding
liquidated damages pursuant to the WPCA. The respondents argued that the petitioner’s WPCA
claim was brought pursuant to West Virginia Code § 21-5-3(a), which requires employers to settle
with their employees at least twice every month, and not West Virginia Code § 21-5-4(b), which
requires an employer to timely provide a final paycheck to an employee who resigns or is
discharged. The respondents argued that pursuant to specific language in the WPCA, liquidated
damages are available for violation of § 21-5-4(b) but not for violation of § 21-5-3(a). The circuit
court agreed with the respondents, granted this motion in limine, and granted summary judgment
to the respondents on the issue of liquidated damages. 11
A jury trial was held on October 1 and 2, 2019. Both sides offered their evidence and
argument regarding the petitioner’s rate of pay and her claims. The jury found in favor of the
respondents, concluding that they had not violated the WPCA or breached the petitioner’s
employment contract. Subsequently, the petitioner filed a motion for a new trial. Following a
hearing, the circuit court denied the motion by order entered on November 19, 2019. In this appeal,
the petitioner challenges the circuit court’s adverse in limine rulings and the order denying her
motion for a new trial.
II. Standard of Review
When considering the appeal of a circuit court’s order denying a new trial,
[t]his Court reviews the rulings of the circuit court concerning a new trial
and its conclusion as to the existence of reversible error under an abuse of discretion
standard, and we review the circuit court’s underlying factual findings under a
clearly erroneous standard. Questions of law are subject to a de novo review.
Virginia Code § 21-5-9(1) because, as the petitioner’s counsel reaffirmed during oral argument,
the petitioner did not assert a cause of action for this.
11
The circuit court’s ruling was based upon language in West Virginia Code § 21-5-4(e)
allowing for the recovery of liquidated damages for violations “under this section.” However, as
explained infra, this Court is not deciding on the availability of liquidated damages for a violation
of West Virginia Code § 21-5-3(a) because the issue is moot in this case.
5
Syl. Pt. 1, Burke-Parsons-Bowlby Corp. v. Rice, 230 W. Va. 105, 736 S.E.2d 338 (2012),
superseded by statute on other grounds as recognized in Martinez v. Asplundh Tree Expert Co.,
239 W. Va. 612, 617, 803 S.E.2d 582, 587 (2017). We have also explained that
[a]lthough the ruling of a trial court in granting or denying a motion for a
new trial is entitled to great respect and weight, the trial court’s ruling will be
reversed on appeal when it is clear that the trial court has acted under some
misapprehension of the law or the evidence.
Syl. Pt. 4, Sanders v. Georgia-Pac. Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976). With these
standards in mind, we consider the parties’ arguments.
III. Discussion
After abandoning the appeal of her gender discrimination claim, 12 the petitioner asserts
three remaining assignments of error: the circuit court erroneously prevented the jury from hearing
that the respondent’s conduct violated West Virginia Code § 21-5-9(1); the circuit court
erroneously found that liquidated damages were not available for the petitioner’s WPCA claim;
and the circuit court wrongly sanctioned the petitioner regarding the termination of her deposition.
We will consider each of these issues in turn.
At trial, the petitioner was permitted to inform the jury, multiple times, that the amount of
her pay at Hinkle Trucking was not set forth in writing when she was hired. 13 However, she was
not allowed to indicate or argue that this failure violated West Virginia Code § 21-5-9(1). 14 The
court’s decision on this was an evidentiary ruling pursuant to the West Virginia Rules of Evidence,
specifically, the balancing test of Rule 403. This rule provides that “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Id.
A circuit court has significant discretion in the application of Rule 403. “As to the balancing
under Rule 403, the trial court enjoys broad discretion. The Rule 403 balancing test is essentially
a matter of trial conduct, and the trial court’s discretion will not be overturned absent a showing
of clear abuse.” Syl. Pt. 10, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994); accord
Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (“A trial court’s evidentiary
12
See supra, n. 3.
13
The respondents’ brief points to the mention of the lack of a writing three times during
the petitioner’s opening statement; six times in the petitioner’s direct testimony; twice during the
testimony of Hinkle Trucking’s payroll administrator; eight times in respondent Gary Hinkle’s
cross-examination; on cross-examination of Travis Hinkle; and on cross-examination of a Hinkle
Trucking dispatcher.
14
See supra, n. 6.
6
rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of
discretion standard.”).
Although it is undisputed that the petitioner’s rate of pay was not reduced to writing at the
time of hiring, the petitioner did not seek to pursue a separate cause of action for the violation of
West Virginia Code § 21-5-9(1) and, to this Court’s knowledge, did not file an administrative
complaint with the Commissioner of Labor. When applying the balancing test, the circuit court
was obviously concerned that if the jurors were told of this statutory violation, they would be
confused and potentially misled into rendering a verdict solely upon this violation without holding
the petitioner to her burden of proving the claims in her Complaint. In light of the specific facts
and circumstances of this case, we conclude that the circuit court did not commit a clear abuse of
discretion.
Turning to the next assignment of error, the petitioner challenges the circuit court’s in
limine ruling that statutory liquidated damages are not legally available for her particular WPCA
claim. 15 The WPCA’s liquidated damages statute, West Virginia Code § 21-5-4(e), provides that
“[i]f a person, firm or corporation fails to pay an employee wages as required under this section,
the person, firm or corporation, in addition to the amount which was unpaid when due, is liable to
the employee for two times that unpaid amount as liquidated damages.” (Emphasis added.) For
purposes of the petitioner’s case, the issue of whether the jury should have been instructed on
liquidated damages is wholly moot because the jury determined that the respondents did not fail
to pay the petitioner any wages and did not violate the WPCA. As such, the petitioner is not entitled
to any damages—compensatory, liquidated, or otherwise. This Court will not “resolve mere
academic disputes or moot questions or render mere advisory opinions which are unrelated to
actual controversies.” W. Va. Human Rights Comm’n v. Esquire Grp., Inc., 217 W. Va. 454, 463,
618 S.E.2d 463, 472 (2005) (internal citations omitted). Accordingly, this legal issue must be saved
for another day.
Finally, the petitioner assigns error in the circuit court’s order sanctioning her and one of
her lawyers for unilaterally terminating her deposition. She argues that the respondents’ counsel
was inquiring into matters protected by the attorney-client privilege, to which her counsel objected
in good faith, thus she had the right to suspend the deposition and seek redress by filing a motion
with the circuit court pursuant to Rule 30(d)(3) of the Rules of Civil Procedure. 16 The petitioner
quotes syllabus point one of Policarpio v. Kaufman, 183 W. Va. 258, 395 S.E.2d 502 (1990): “The
appropriate initial procedure for a deponent who believes a deposition is being conducted
improperly is to suspend the deposition under Rule 30(d) of the West Virginia Rules of Civil
Procedure and promptly apply to the court for an order to terminate the deposition or to limit its
scope.”
The respondents counter by arguing that the petitioner was observed reviewing the
notebooks immediately prior to the start of her deposition, and the questions were carefully crafted
to explore whether the notebooks actually contained privileged communications without revealing
15
See supra, n. 11.
16
See supra, n. 8.
7
the specific contents therein. The respondents argue that the attorney-client privilege may be
waived, and “when a witness uses a writing . . . to refresh memory . . . before testifying . . . [a]n
adverse party is entitled to have the writing . . . produced at the . . . deposition to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion that relates to the
witness’s testimony.” W. Va. R. Evid. 612, in part. 17 The respondents argue that the circuit court
correctly ruled that the petitioner unilaterally terminated the deposition in bad faith.
This Court has long held that “[t]he imposition of sanctions by a circuit court under W.Va.
R. Civ. P. 37(b) for the failure of a party to . . . permit discovery is within the sound discretion of
the court and will not be disturbed upon appeal unless there has been an abuse of that discretion.”
Syl. Pt. 1, in part, Bell v. Inland Mut. Ins. Co., 175 W. Va. 165, 332 S.E.2d 127 (1985). Having
reviewed the record, we find no abuse of discretion in the circuit court’s sanctions orders.
In Policarpio, the Court explained that
the relator’s approach at the deposition was misguided when he announced through
his attorney that he was terminating the deposition. It is clear from the language of
Rule 30(d) that it is the court that makes the decision to terminate a deposition upon
an application by the deponent. The appropriate initial procedure for a deponent
who believes a deposition is being conducted improperly is to suspend the
deposition under Rule 30(d) and promptly apply to the court for an order to
terminate the deposition or to limit its scope.
Policarpio, 183 W. Va. at 260, 395 S.E.2d at 504 (emphasis added). Here, while the petitioner
argues that she merely suspended the deposition to file a Rule 30(d) motion, she waited more than
three weeks and then only filed after the respondents filed their motion for discovery sanctions.
17
West Virginia Rule of Evidence 612 provides:
(a) Scope. This rule gives an adverse party certain options when a witness
uses a writing or object to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to
have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. An adverse party
is entitled to have the writing or object produced at the trial, hearing, or deposition
to inspect it, to cross-examine the witness about it, and to introduce in evidence any
portion that relates to the witness's testimony. If the producing party claims that the
writing or object includes unrelated matter, the court must examine the writing or
object in camera, delete any unrelated portion, and order that the rest be delivered
to the adverse party. Any portion deleted over objection must be preserved for the
record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced
or is not delivered as ordered, the court may issue any appropriate order. If
production of the writing or object at the trial or hearing is impracticable, the court
may order it be made available for inspection.
8
Moreover, the circuit court reviewed the videotape of the deposition, observed the demeanor of
everyone involved, and carefully considered the questions asked by the respondents’ counsel and
the objections of the petitioner’s counsel. Under these circumstances, we find no abuse of
discretion in the circuit court’s finding that the deposition was unilaterally terminated by the
petitioner.
We similarly reject the argument that the petitioner acted in good faith. After observing the
petitioner reviewing the notebooks in preparation for her deposition, the respondents’ counsel had
the right to inquire into the nature of the notebooks. The respondents’ counsel did not ask for the
specific information contained in the notebooks; rather, counsel asked, “[w]ithout telling me what
information you wrote down [in the notebooks][,]” “was the information communicated to you by
your attorney” and “[w]here did the information come from[?]” The circuit court found that the
respondents’ counsel was attempting to establish a record of whether the notebooks were protected
by the attorney-client privilege, but the petitioner’s counsel would not permit this. The circuit court
found that if the respondents’ counsel had been permitted to ask these “proper questions,” this
issue would not have necessitated the involvement of the discovery commissioner. We find no
abuse of discretion in this reasoning.
IV. Conclusion
For the foregoing reasons, the circuit court’s November 19, 2019, order denying the motion
for a new trial is affirmed.
Affirmed
ISSUED: April 26, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Alan D. Moats, sitting by temporary assignment
DISSENTING:
Justice William R. Wooton
Wooton, Justice, concurring, in part, and dissenting, in part:
I concur with the majority’s determination that the issue of liquidated damages is moot,
and further concur with its affirmance of the discovery sanctions imposed by the circuit court.
However, I respectfully dissent from the majority’s conclusion that the court properly prohibited
9
the petitioner, Mary Zerfoss, from offering testimony or argument that her employment terms were
not reduced to writing, as required by law. The petitioner’s rate of pay was the critical issue in
dispute. Under the particular facts and circumstances of this case I believe that the court’s refusal
to permit her counsel to argue to the jury that the respondents, Hinkle Trucking, Inc. and Gary
Hinkle, failed to comply with the company’s statutory duty to reduce the rate of her pay to writing
‒ indeed, that the respondent deliberately failed to comply with that duty ‒ was reversable error.
West Virginia Code § 21-5-9 (2019) provides in relevant part that “[e]very person, firm
and corporation shall (1) [n]otify his employees in writing, at the time of hiring of the rate of pay,
and of the day, hour, and place of payment.” As we have held in a long line of cases,
“the word ‘shall,’ in the absence of language in the statute showing a contrary intent on the part of
the Legislature, should be afforded a mandatory connotation.” Syl. Pt. 6, in part, Foster Found. v.
Gainer, 228 W. Va. 99, 717 S.E.2d 883 (2011); see also State ex rel. Staley v. Wayne Cnty. Ct.,
137 W. Va. 431, 440, 73 S.E.2d 827, 832 (1953) (“The rule that the word ‘shall’ should be
construed as mandatory has appropriate application when the provision of the statute relates to the
essence of the thing to be done, or to matters of substance.”) (citing State ex rel. Boone County
Coal Corporation v. Davis, 133 W.Va. 540, 56 S.E.2d 907, 913 (1949)). It is readily apparent that
the statutory command serves various purposes, one of which is to facilitate review by State
agencies, when necessary. See text infra. However, another important purpose of the statute is to
protect employees by ensuring that everyone clearly understands up front how, when, and how
much employees will be paid, thus cutting off any possibility of dispute at a later date. In this
regard, the Court in Robertson v. Opequon Motors, Inc., 205 W. Va. 560, 519 S.E.2d 843 (1999),
“made clear that the Wage Payment and Collection Act [(WPCA”)]
was created for the benefit of employees, who may often be at a
disadvantage when dealing with their employers. ‘The West
Virginia Wage Payment and Collection Act is remedial legislation
designed to protect working people and assist them in the collection
of compensation wrongly withheld.’”
Id. at 564, 519 S.E.2 at 847 (citing Syl. Pt. 3, Jones v. Tri-County Growers, Inc., 179 W.Va. 218,
366 S.E.2d 726 (1988)). As we further explained, “[t]hough the Act does not establish a particular
rate of pay, it does require an employer to notify an employee of the rate of pay, and of any changes
to that rate, to spare workers from trying to hit an ever-moving target.” Opequon, 205 W. Va. at
566, 519 S.E.2d at 849.
The United States District Court for the Northern District of West Virginia has held that
there is no private cause of action for a violation of West Virginia Code § 21-5-9(1), a fact upon
which the circuit court relied in its refusal to allow the petitioner to argue to the jury that
respondents had violated the statute. See Byard v. Verizon W. Virginia, Inc., No. 1:11CV132, 2012
WL 1085775, at *18 (N.D.W. Va. Mar. 30, 2012) (“The plain language of the WPCA and
accompanying regulations place administration and enforcement of W. Va. Code § 21-5-9 squarely
within the purview of the Commissioner. To the extent the plaintiffs have any sort of claim arising
under this provision, a fact far from clear, it is not one that they are entitled to privately enforce or
bring to court in the first instance.”). We have not had occasion to determine whether Byard
accurately foretold how this Court would rule on this issue, and we need not do so in the instant
10
case because the issue is a red herring. I agree with the majority on this point; the petitioner did
not claim to have suffered damages resulting from the respondents’ breach of their statutory duty.
However, the majority glosses over the undeniable fact that evidence concerning the
respondents’ non-compliance with their statutory duty was relevant to the issue of the petitioner’s
rate of pay and would have added considerable heft to her side of that argument, which had been
reduced to a “he said, she said” dispute in the absence of the documentation required by section
21-5-9(1) – documentation that had admittedly, and intentionally, never been provided to the
petitioner. As respondent Gary Hinkle testified in his deposition:
Q: Why didn’t you provide a written notice of Mary’s pay rate?
A: The trucking industry is a real competitive industry, and we
don’t want our rates out there, our rate of pay, out in the general
public for everyone to discuss. If they have a question, all they have
to do is come ask us to find the rate.
Q: And what you testified to previously we don’t give that out
because we’re in a competitive industry.
A: We don’t give it out to fifty-some drivers as a general
practice.
Q: So it’s an intentional decision not to give it out?
COUNSEL: Object to form, calls for a legal conclusion.
A: Yes.
The circuit court held that it would be unduly prejudicial to the respondents to allow the
jury to be told that they had violated an express statutory mandate, 1 a ruling that was, in my view,
clear error. First, why should the respondents be shielded from the consequences of their decision
– an intentional, fully considered decision – to break the law? Second, in its analysis, see supra
note 1, the court failed to take into consideration that the exclusion of the crucial corroborating
evidence of her claimed rate of pay was far more prejudicial to the petitioner than its admission
would be to the respondents. In that regard, the jury might well have concluded that the
respondents’ refusal to provide the petitioner with the documentation required by the statute, either
1
The circuit court stated that
the prejudicial impact of explaining to a jury or trying to
explain to the jury that, yes, they violated 21-5-9, even though that’s
just an administrative remedy, and then having them still try to
interpret what the contract is based on the evidence and what the –
what the agreement was, what Mary says, what Travis says, what
Gary says would be impossible. It would not be fair to try to do that.
11
at the time she was hired or thereafter, left petitioner to flail at an “ever-moving target” which,
given the petitioner’s burden of proof, would be difficult to prove under the best of circumstances.
See Opequon, 205 W. Va. at 566, 519 S.E.2d at 849. Third, under the facts and circumstances of
this case, where the respondents purposefully violated section 21-5-9(1), it could reasonably be
argued that the petitioner was entitled not only to argue the violation, but also to have the jury
instructed that any ambiguity in the evidence with respect to the rate of pay should be construed
against the respondents. Cf. Syl. Pt. 6, Meadows v. Wal–Mart Stores, Inc., 207 W. Va. 203, 530
S.E.2d 676 (1999) (“Terms of employment concerning the payment of unused fringe benefits to
employees must be express and specific so that employees understand the amount of unused fringe
benefit pay, if any, owed to them upon separation from employment. Accordingly, this Court will
construe any ambiguity in the terms of employment in favor of employees.”); see also Lipscomb
v. Tucker Cnty. Comm’n, 206 W. Va. 627, 628, 527 S.E.2d 171, 172 (1999).
Although a circuit court has broad discretion with respect to the admission of evidence or
argument, that discretion is not unlimited; the bottom-line question is whether the ruling at issue
was fundamentally fair. In my view, this ruling was not. The petitioner’s presentation of her side
of the case was hamstrung by a ruling that gave the respondents an unfair advantage – and a
significant advantage at that. Accordingly, I respectfully dissent.
12