Bailey & Wyant, PLLC Managing Member Charles Bailey and Member, James Marshall were successful in defending our client, The Kanawha County Board of Education, against the plaintiff's appeal of the judgement as a matter of law against the plaintiff. On appeal, the West Virginia Supreme Court of Appeals found that the circuit court had committed no error in the order dismissing the action against the defendant. The plaintiff had filed a claim for age discrimination, pursuant to the West Virginia Human Rights Act, alleging that the plaintiff had not been re-hired as head coach for Capital High due to the plaintiff's age. However, the plaintiff could not establish that the plaintiff had suffered disparate treatment in the hiring process of the new head coach for the Capital High boys' basketball coach.

In order for the plaintiff to have prevailed, the plaintiff would have first needed to establish a prima facie case of discrimination.   Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457, S.E.2d 152 (1995). To make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq. (1979), the plaintiff must establish that 1) the plaintiff is a member of a protected class; 2) that the employer made an adverse decision concerning the plaintiff; and 3) but for the plaintiff's protected status, the adverse decision would not have been made.  Conway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986). As for the third prong, the "but for" element requires that a plaintiff needs only to show an inference of discrimination. Barefoot, 193 W. Va. at 484, 457 S.E.2d at 161.

The Supreme Court of Appeals concluded that the plaintiff had failed to show evidence that sufficiently linked the Board of Education's actions with the plaintiff's age as to give rise to an inference of illegal discrimination. A review of the entire record before the court, considered in a light most favorable to the plaintiff, instructed that only unsupported assumptions and speculation had been advanced in an effort to create an inference of age discrimination. The Supreme Court of Appeals continued by stating that the purely speculative argument that was put forth by the plaintiff amounted to a request to treat the plaintiff different from others in the county system. Because the nature of the plaintiff's argument was speculative and that there was nothing on the record that suggested a prohibited age bias in the Board of Education's actions, the Supreme Court of Appeals sustained the order of the circuit court granting judgment in favor of our client, the Kanawha County Board of Education.