*1 county in in concept such as that the rule this in any business sue in court W.Va.Code, in used 31-1-15. Because of In my opinion, gives State. this result lack of development plaintiffs factual on this shop too much freedom to for a issue, Westing- we are unable to decide favorable forum. house had sufficient minimum in contacts I would retain rule in announced County. Kanawha Trustees, Brent v. Board We, therefore, judgment reverse the and I therefore note County the Circuit Court of Kanawha and my dissent. proceedings

remand case further opinion. consistent with this I am authorized to state that Justice joins NEELY me this dissent. Reversed and Remanded. BROTHERTON, Justice, dissenting: purposes

One of the venue rules prevent See, shopping. forum e.g.,

Rodriguez v. Trunk Western Grand R.R. Mich.App. 599, 328 N.W.2d 89

(1982). If plaintiffs we allowed sue State, any giving larger court in the courts S.E.2d 423 plaintiffs. verdicts would overrun be Dorwin CONAWAY unequal

This load would unfair be both to v. corporate the courts and to I defendants. EASTERN ASSOCIATED COAL majority, by construing believe the ven- CORPORATION. ue statute to coincide with the constitution- personam al limits for in jurisdiction, has No. 16969. plaintiffs suing given corporations carte Appeals Court of shop. blanche to forum majority in this case has tied venue jurisdictional very to the broad test enunci- Dec. Volkswagen Corp.

ated World-wide Dissenting Opinion June Woodson, S.Ct.

L.Ed.2d 490 The World-wide

Volkswagen test is “that the defendant’s

conduct connection with the forum reasonably

State are such that he should

anticipate being haled court into there.”

444 U.S. at at 567. S.Ct.

would be a workable rule for venue if it light particular injury,

were read in

i.e., require the defendant’s contacts county

with the forum such that reasonably being anticipate

should called county particular

into court in a in connec- particular product with a or injury.

tion injury,

Without a connection to the meaningless

venue rules are almost in the large

context of a tort suit out-of- corporation. An company,

state electric Westinghouse, may

such as well conduct every county

business activities injured A plaintiff by Westing-

State. conceivably, could

house transformer under *3 Cleckley,

Franklin D. Morgantown, Greg- Hinton, Fairmont, ory appellant. T. Wolfe, Roger Charleston, A. James B. Stoneking, Morgantown, appellee. BROTHERTON, enough keep Justice: of an asset to him as an employee. appeal summary judg- This is an from a Later, an incident occurred which granted in appellee, ment favor of the prompted Conaway’s At approx- dismissal. Corporation, Eastern Associated Coal imately Saturday, 7:45 a.m. on October appellant, Conaway, by Dorwin 1980, Conaway reported for work Monongalia County, the Circuit Court of Conaway expected Federal No. 2 Mine. Conaway, a former boss,” required to “fire would be Eastern, charged his former duty posted since a notice of this had been wrongful Thursday on the mine board on bulletin discharge, and breach of contract. We *4 Friday bossing of that Fire week. involves action, agree with the trial court’s and af- checking safety the mine for violations and firm. monitoring gas methane levels the mine. Conaway employed by Mr. was first It is mandated both Federal and State March, 1968, utility Eastern as a man in law. In

and became foreman Decem- mine, Upon Conaway his arrival at the ber, 1971, Conaway voluntarily resigned his Buchanan, orally by was instructed Charles position accepted with Eastern and a sim- foreman, assistant mine to position company. ilar with another How- oversee the work of two-man track bolt- ever, he later returned to work for Eastern ing Conaway accompanied crew. the track September, as a section foreman in bolting crew into the mine. Later that Fairview, the Federal No. 2 Mine near morning, Stump, Bernard another mine Virginia. exception West With of a foreman, Conaway that he to advised was twenty-one lay-off month aas result of a Conaway fire the mine. boss refused. injury, Conaway back continued to work Stump Eastern asserts that Mr. returned October, discharge in for Eastern until his unsigned Conaway and delivered an note to Conaway which indicated that was to fire disputed by Conaway, This is who boss. Conaway employee. Mr. not a model was claims never to have seen a note. When record, numerous noted in the On occasions ended, gave the shift Mr. Buchanan Cona- Conaway issued was verbal written no- way indicating a written note that he had safety-related violations or re- tices obey given to He failed an order. was then management. fusing obey orders from discharge told a formal notice of and was reviews, Conaway performance In his was report to the senior mine accountant. acceptable rating, given an overall but the discharge shortcomings. Conaway appealed his to the reports showed several He management personnel pursuant Eastern unacceptable rating obey- received company policy governing to the labor January ing safety regulations on a It discipline employees. of salaried was initiative, review. As to his work management, the consensus of the how- report noted: “Feels that other should take that, ever, upon Conaway’s prior based responsible he is for. Tries care of needs 18, 1980, incident, record and the October doing. If done instead of to talk work discharge proper. was talk, doing spent time was instead of more his accomplish goals.” As to knowl- would December, Conaway filed a dis- company edge of the UMWA contract and Virgi- complaint with the West crimination Conaway policy, the review noted that Rights against nia Human Commission using way his instead of Eastern, charging age “tries to BS On discrimination. Additionally, Virginia the review noted: Hu- January facts.” the West older, “Conaway experienced Rights probable more is an man Commission issued get by against on his BS foreman. He feels he can cause determination Eastern and on March performance. his actual Need instead Still, Virginia Commis- despite short- the West in this area.” work Conaway right Conaway sion issued a notice January Eastern felt comings, Conaway sue. then filed suit in the Circuit act to toll the statute of limitations from Monongalia County, Virgi- running Court on his other causes of action. nia, June, 1983, alleging in an amended (1) complaint four causes of action: that he II. Pension Benefits discharged prevent so as to him from Conaway Mr. further asserts becoming eligible for benefits under East- pension rights was dismissed so his long-term disability program; ern’s benefits vest, public would not in violation of the (2) discharged pre- in order to policy of the State of West pension rights (3) vesting; vent his from preempted law, area is by Federal ERISA discharge that his was in violation of his seq. see 29 U.S.C. 1001et and such § Eastern; (4) contract with illegal action is under 29 U.S.C. §

that he was against discriminated because (1982).1 age. of his Conaway, however,

Mr. presented I.Long-term Disability no support Benefits evidence whatsoever this alle gation. To successfully defend claims that he was motion for summary judgment, plain eligible fired so that he become *5 ' tiff showing must make some of fact which long-term disability benefits. This support prima facie case for his cause of action basically wrongful one of 56(c). claim. See W.Va.R.Civ.P. Mr. Cona discharge. Wrongful discharge is a tort way Therefore, fails in this. we hold that Bank, action. See Harless v. First Nat’l the trial correctly court dismissed this 116, 124-25, 162 W.Va. 246 S.E.2d cause of action. (1978). respondent contends, n. 5 The be Conaway Mr. years cause waited over two III. Contract suit, to file this cause is barred because of two-year the statute of limitations W.Va. Conaway argues Mr. also that his (1981). Code 55-2-12 § will,” employment was not “at but was governed by syllabus point contract. Conaway Mr. claims that the stat Heck’s, Inc., 6 of Cook v. 176 W.Va. ute of limitations for this action should be (1986), 342 S.E.2d 453 we held that an age tolled because his discrimination action handbook form the basis for pending Rights was before the Human a unilateral contract. This rule has some disagree. Commission. A We statute of application Although in this case. Mr. Con- limitations commences to run when the away was not covered under the formal right syl. to sue pt. accrues. See Jones Wage National Bituminous Agree Coal Bethany v. Trustees College, 177 W.Va. foreman, ment of 1978because he was a he (1986); Sansom v. San by was covered a statement of som, 603, 607, policies applied which to all salaried em respect age With to the discrimina ployees. alone, tion claim that cause of action did document, however, merely set out 31, 1983, not accrue until March when the appeal an procedure discharged employ- Virginia Rights Human Commission ees: Conaway right issued Mr. a notice of sue. All other Discharge: causes of action accrued Discharge, employees Conaway’s coming October when Mr. dis policy, under this must first

charge by management was confirmed by reviewed the Industrial Relations Conaway’s Department Eastern. The fact that Mr. approved and by the Vice age during discrimination claim charge was tolled President department period proceeding which was before Employees involved. should be sus- pended Commission does not pending period. this review 1. The statute of limitations for this action is therefore this action is not time barred. years, three see U.S.C. 1113 and § Discharge employees for such should be the other areas of discrimina- by all concerned and carefully Unfortunately, many considered tion. courts have at- only action taken as a final re- tempted adapt Douglas such course. draft- test to situations unforeseen its ers. original.) Conaway Mr. (Emphasis given appeal and he lost. The labor his parties Both in this case offer cases outcome, guarantee just an

policy did not Douglas which use an altered McDonnell Therefore, appeal. an even the labor test for discrimination. Mr. contract, policy is construed as a Mr. Cona- Textron, Inc., points the Court Loeb v. alleged way no facts which would show (1st Cir.1979). In the 600 F.2d 1003 Loeb of it. violation case the first examined the McDon- court attempted test and then nell Age Discrimination

IV. McDonnell Douglas Corp. v. way’s way ments most courts have tion W.Va.Code § crimination. We noted that the elements Other agree S.Ct. case for disagree not, discrimination a This Court The prima becomes, therefore, made a 1817, that 58 A.L.R.Fed. only *6 courts that have examined the issue necessary claim because of his facie case will on how to cause of action left is Mr. Cona- 36 L.Ed.2d 668 Douglas discrimination has not 5-11-9 case) discrimination is hold that he did not. to make a Green, prove for facie case for looked to spoken the authority. age, in necessary whether vary according to it. 411 U.S. on the (1973) Nevertheless, discriminated employment. violation McDonnell wrong, key ques- to make See age require 792, (a Court Cona- race An but 93 In charge due to adapt 600 F.2d at 1013 To would be tive. See possibility in the fired) 358 quate job performance, ing analogous L.Ed.2d need for the same services own, ment show “qualified” in the sense that he was do- apply critical that test to a case of n. that his which involves protected with thus must be modified to 44, job 396]. the above required that he was Teamsters, 431 U.S. 97 elements well qualifications demonstrating a continued age inference. employer sought S.Ct. class, i.e., He would also have to (footnotes omitted). enough discrimination: concept to show that he was 1843 (beyond being firing, absolute fired for inade- to rule out the [1866 age similar to his wrongful Complainant produce and skills. 40-65, a n. ^[324] replace- or rela- present hiring, 44, with- dis- 52 at each case. 411 U.S. the circumstances of test, above, out The Loeb set out works The 802 n. 93 S.Ct. at 1824 n. 13. at (1) plaintiff a four factor test: that the to gave example, saying that Court also class; (2) protected a of the was member race way prima to make a facie case of one fired; (3) doing his that he was that he was plaintiff the to show: discrimination is for inadequate job job enough to rule out well discharge; for performance as a reason (2) (1) minority; belongs to a racial (4) sought. replacement was and that qualified joba applied he and was for that employer seeking appli the which places heavy burden on the The test (4) cants; (3) rejected; he and that that was doing plaintiff.. prove He must that he was rejection employer the continued after his enough possi- “rule out the job to well the applicants persons from to seek job fired for bility that he was inadequate at plaintiffs qualifications. mistakes. All humans make performance.” at 1824. S.Ct. employees point can to such a Very few “rule out the perfect record that it would example is known as the “McDon- discharged for an in- being fairly possibility” It is a workable Douglas nell test.” Everyone has performance.2 adequate discrimination for certain kinds of test Further, record. marks on the adapt to some black hiring practices, does not well but category. Certainly into this Mr. would not fall employer disparate it is the burden of show a certain treatment cases. See nondiscriminatory discharge, reason for at W.Va. at S.E.2d prove the burden Courts need a test for determin- legitimate no reason there was for the dis- ing plaintiff prima has whether the made a charge. Douglas, 411 U.S. See present, plaintiff At facie case. at 1824. 93 S.Ct. meets one of the narrow tests he then has points Eastern instead this Court case, prima plaintiff made a facie but if the Houser v. Roebuck & 627 F.2d Sears tests, fails to meet one of the narrow Cir.1980). (4th requires Houser may way still have a case. There is no plaintiff, prima that the order to make a intelligent ruling the court to make an (1) show that: he was a member plaintiff on a motion for class; (2) protected discharged; he was summary judgment, because there are no (3) qualified job;3 (4) he was to do his plaintiff prove, set factors which a must actually replaced by he was one outside of only scattered sets of factors which he protected group. See 627 F.2d at 757. prove. We also have trouble with this test. In a We, therefore, propose gener now Conaway’s situation such as Mr. where determining plain al test for whether the many employees performing are there es- prima imper tiff has made a facie case of task, sentially impossible the same it is missible discrimination. or point person replaced to one who Cona- employ der to make a facie case of Therefore, way. plaintiff could almost plaintiff ment must never make a facie case of discrimi- prove that: nation such a situation. (1) That the is a member of a problem approaches with both is that protected class. they trying are to stretch the McDonnell (2) That the made an adverse Douglas case much farther than it was concerning plaintiff. decision go. ever intended to The result is tests (3) plaintiffs protected But for the sta- which are too narrow. The McDonnell tus, the adverse decision would not have test never intended been made.5 *7 Supreme panacea Court to be a to correct wrongs.4 all discrimination parts State ex rel. The first two of the test Rights easy, State Human are but the third W.Va. Comm’n will cause controver of Logan-Mingo Agen- sy. Area Mental Health Because essentially discrimination is 711, 77, cy, mind, 174 probably W.Va. 83 an element of the there will Douglas very proof we examined the McDonnell test little direct be available. Direct it, however, interpreting proof, required. and several cases and deter- is not What is discriminatory discharge required plaintiff mined thát is to show some Douglas cases the formulation evidence sufficiently which would link the changed. Agen- employer’s plaintiff’s must be In Mental Health decision and the sta however, cy, stopped proposing protected we short of tus as a member of a class so as general give a test and employ- instead set out a test for rise to inference that the "qualified” say layman 3. We assume that the term would three sentences to what the could Loeb, meaning supra. say layman say: have the same as in as well in one. A “I was _ demoted, (fired, etc.) because I was old, black, _(too woman, etc.).” a If the Supreme 4. Court noted in a later decision sentence, plaintiff proof can offer of this one Douglas that the McDonnell decision "did not has a otherwise no. purport to create an inflexible formulation" for facie case of discrimination. Int'l Further, this test is not new material. The States, Brotherhood Teamsters v. United 431 every' of elements are first two inherent in test so 324, 358, 1843, 1866, 97 S.Ct. 52 L.Ed.2d element, far devised. The third the “but for” (1977). 396 causation, accepted by has been the United States Court in McDonald v. Santa Fe 273, 10, judicial Transp. great 427 U.S. n. 5. This test is no feat of construc- Trail 96 tion, 2574, 10, merely proof (1976). but that it takes a court S.Ct. 2580 n. 49 L.Ed.2d 493 illegal ment decision was based on an practices, guilty business is not of discrimi- criminatory could, criterion.6 This evidence nation. Essentially, operates this as an example, come the form of an admis- Therefore, affirmative defense. it would by employer,7 sion unequal a case of or 8(c) be covered under Rule of the Rules of disparate treatment between members of Civil Procedure.13 protected class and others8 the elim- apparent legitimate ination of the reasons course, Of after has decision,9 for the or statistics in large decision, set out his reason for the operation which show that of members employee will have the chance to rebut the protected class received substantially employer’s evidence showing with a that worse treatment than others.10 the stated merely pretext reason was plaintiff Once the has met this discriminatory motive.14 burden, the burden would shift to the em Note that this test does not overrule or ployer to show some nondiscriminatory rea Shepherds- modify previous our tests in son for the decision. The reason need not town VFD15 Mental Health Agency.16 or particularly good be a one.11 It need not Rather, this test is inclusive of those. Both one judge jury be which the would have of these tests have the same factors as the upon. acted any The reason can be other general test, but state them in a more except reason that the was a mem useful, specific fact protected manner. These ber of class.12 If tests the fact find proffered er are more workable and helpful believes than is the reason was decision, test, the true reason for the then the and therefore specific employer, guilty poor while he of tests they should be used where apply, 6. See Int'l Brotherhood governs Teamsters v. United Procedure affirmative defenses. We in- of States, 324, 358, 8(c) 431 U.S. S.Ct. clude this defense under to make clear the (1977). L.Ed.2d 396 concerning pleading rules the burdens of proof asserting this defense. See, Textron, Inc., 1003, e.g., Loeb v. 600 F.2d (1st Cir.1979). 1014 n. 12 3, syl. pt. Shepherdstown 14. See VFD v. W.Va. Comm’n, 627, Rights 172 W.Va. See, e.g., State ex rel. State W.Va. Human S.E.2d 342 Rights Logan-Mingo Comm’n v. Area Mental Agency, Health S.E.2d Shepherdstown 15. Id. The VFDtest is a restate- applies ment of the McDonnell test. It 9. See Int'l Brotherhood Teamsters v. United unequal well to certain cases of treatment States, 431 U.S. 358 n. 97 S.Ct. hiring situations. (1977); 1866 n. 52 L.Ed.2d 396 Loeb v. Textron, (1st Cir.1979). 600 F.2d 1013-14 16. State ex rel. State W.Va. Human *8 Logan-Mingo Comm’n v. Area Mental Health See, Rawlinson, 321, e.g., Dothard v. 433 U.S. 711, Agency, (1985). 174 W.Va. 329 S.E.2d 77 2720, (1977). 97 S.Ct. 53 L.Ed.2d 786 syllabus point 2 the Court sets out a test as reason, however, surely 11. An absurd be follows: very difficult the fact finder to believe. treatment, complainant disparate A in a Also, if the stated reason violates a substantial criminatory discharge brought case under the then, public policy, while it will exonerate the Act, Code, Virginia 5—11— employer on it will assure an 1, seq., may et meet the initial facie judgment wrongful discharge. adverse on See by proving, by preponderance burden a of the Bank, Syllabus, Harless v. First Nat'l 162 W.Va. evidence, (1) complainant that the ais mem- 116, (1978). 246 S.E.2d 270 Act; (2) group protected by ber of a the that complainant discharged, the or forced to Gunther, County Washington 12. See v. 452 of (3) resign, employment; from and that a non- 161, 169-70, 2242, 2247-48, U.S. 101 S.Ct. 68 protected group member of the was not disci- (1981) ("any L.Ed.2d 751 other factor other than plined, disciplined severely, or was less than sex” an affirmative defense in sex discrimina- complainant, though engaged the both in sim- case). tion ilar conduct. Belton, useful, generally Pleading very 13. See Burdens and This is a workable test for un- of Theory equal employees, in Discrimination Cases: Toward a treatment of but it is limited Proof 1205, Justice, by relatively Procedural 34 Vand.L.Rev. the narrow fact situation which of 8(c) applies. of 1257-58 Rule the Rules Civil it

172 However, trial, granted test. diet will he should not instead of the the crafted for certain fact in specific try tests were the case advance on a motion for situations, they 1, summary judgment. and should not be extended Syl. Pt. Masinter they comfortably Co., 241, can reach. further than 164 262 S.E.2d v. Webco W.Va. hand, Turning to the case at we judge prematurely disposed Conaway was a member of a The trial

find that appellant’s summary judg an adverse decision protected class and the case at the by employer concerning made his him. Mr. stage compounded ment and this Court has fails, however, any to show nexus injustice by articulating stringent employer’s between the decision and a dis establishing prima standard for facie case criminatory reason. No admission was only discrimination. Not made, unequal no alleged, treatment was majority’s opinion does the confuse presented and the statistics with the record disparate standards for treatment and dis showed, anything, employ that the older parate cases, impact discrimination it con slightly ees were treated better than the requirements setting fuses the out a younger ones. Because he fails to show prima plaintiff’s facie case ulti discharge some links his nexus which to his proof. mate burden of The for” for “but age, we hold that the trial court was cor only determining mulation is useful summarily dismissing age rect his dis plaintiff proven whether the has case his crimination claim. evidence, by preponderance consid ering only but also This was not discrimination or employer’s showing of some nondis wrongful discharge. This was a case criminatory reason for the adverse decision marginal being dismissed be any showing by plaintiff and rebuttal many cause of one too Because violations. that the reason advanced Conaway’s all four of Mr. causes of action pretext. is mere See McDonald v. Santa fail, summary judgment favor of 273, Transportation Fe Trail U.S. Eastern is affirmed.17 282 n. 96 S.Ct. 2580 n. Affirmed. (1976); L.Ed.2d 493 Green, 792, 804, Corp. v. 93 S.Ct. McGRAW, Justice, dissenting: Chief (1973); 36 L.Ed.2d 668 Wilhelm summary judgment Motions for are Bell, Inc., (4th v. Blue 773 F.2d state, with caution in viewed this Price Cir.1985). Bennett, majority explains its “but for” re- granting summary judgment quirement, saying that “the is to appropriate complex seldom cases or give show some evidence ... so as to rise involving cases where issues motive and to an inference” of discrimination or that present, Nutting, intent are Karnell v. he must show a “nexus em- between the (1980). Any W.Va. ployer’s discriminatory decision and a rea- genuine doubts as to the existence of a son.” Neither of these artic- statements issue of fact must be resolved application ulates traditional of the “but party moving summary judgment, Aet *9 (normally rule in determining for” used Surety na v. Federal Casualty and Co. cases), proximate cause tort which is Insurance defendant’s conduct is a cause varying If inferences “[t]he evidence, of the event if the event would have drawn from the nonmovant’s conduct; or, true, occurred for that con- accepted the motion for sum but when as versely, the defendant’s conduct is not a mary judgment must be denied. Id. Even event, judge if the trial feels that a directed ver- cause of the if the event would have challenges timely provided 17. Mr. also the amount of manner as for W.Va.R.Civ.P. 54(d) any objection. the award assessed fortunately, him for costs. Un- and therefore waived objection he did not make this in a occurred without it.” Rudeck v. Wright,

218 Mont. 709 P.2d 621 adopt

In its rush to test for

determining whether a has made

out a facie case of

crimination, majority has further con- already

fused an murky area of the law

and, if the applied “but for” test is in a fashion,

traditional plaintiffs has made the I, therefore,

task more difficult. must re-

spectfully dissent. SOCIETY,

W. VA. CHIROPRACTIC

INC., et al.

Mary MERRITT, Martha

Commissioner, etc.

No. 17266. Appeals Court of

May