SER Tinsman v. Hott
Annotate this CaseSeptember 1992 Term
___________
No. 21307
___________
STATE OF WEST VIRGINIA EX REL
BRENDA K. TINSMAN AND DOUGLAS P. TINSMAN,
Petitioners,
v.
HONORABLE DONALD C. HOTT,
JUDGE OF THE CIRCUIT COURT OF BERKELEY COUNTY,
BY DESIGNATION; PLAZA PERSONNEL AND REPORTING
SERVICES, INC., AND KENNETH GRAYBILL
___________________________________________________________
Writ of Prohibition
WRIT GRANTED
___________________________________________________________
Submitted: September 8, 1992
Filed: November 12, 1992
Laura Cotelli, Esq.
Preiser, Tabor, Linsay & Cotelli
Martinsburg, West Virginia
Attorney for the Petitioners
Barry Beck, Esq.
Martin & Seibert
Martinsburg, West Virginia
Attorney for Respondents Plaza Personnel and
Reporting Services, Inc., and Kenneth Graybill
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "'Rulings on the admissibility of evidence are
largely within a trial court's sound discretion and should not be
disturbed unless there has been an abuse of discretion.' State v.
Louk, 171 W. Va. 639, 301 S.E.2d 596, 599 (1983). Syllabus Point
2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983)."
Syllabus Point 9, TXO Production Corp. v. Alliance Resources Corp.,
___ W. Va. ___, 419 S.E.2d 870 (1992), petition for cert. filed, 61
U.S.L.W. 3206 (Sept. 17, 1992)(No. 92-479).
2. "Parties moving for separate trials of issues
pursuant to West Virginia Rule of Civil Procedure 42(c), or the
court if acting sua sponte, must provide sufficient justification
to establish for review that informed discretion could have
determined that the bifurcation would promote the recognized goals
of judicial economy, convenience of the parties, and the avoidance
of prejudice, the overriding concern being the provision of a fair
and impartial trial to all litigants." Syllabus Point 6, Bennett
v. Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988).
3. "Protection against unfair prejudice from evidence
admitted under Rule 404(b) of the West Virginia Rules of Evidence
[1985] is provided by: (1) the requirement of Rule 404(b) that the
evidence be offered for a proper purpose; (2) the relevancy
requirement of Rule 402 - as enforced through Rule 104(b); (3) the
assessment the trial court must make under Rule 403 to determine
whether the probative value of the similar acts evidence is
substantially outweighed by its potential for unfair prejudice;
and, (4) Rule 105, which provides that the trial court shall, upon
request, instruct the jury that the similar acts evidence is to be
considered only for the proper purpose for which it was admitted."
Syllabus Point 8, TXO Production Corp. v. Alliance Resources Corp.,
___ W. Va. ___, 419 S.E.2d 870 (1992), petition for cert. filed, 61
U.S.L.W. 3206 (U.S. Sept. 17, 1992)(No. 92-479).
4. "'Rules 402 and 403 of the West Virginia Rules of
Evidence [1985] direct the trial judge to admit relevant evidence,
but to exclude evidence whose probative value is substantially
outweighed by the danger of unfair prejudice to the defendant.'
Syllabus Point 4, Gable v. The Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991)." Syllabus Point 10, TXO Production Corp. v.
Alliance Resources Corp., ___ W. Va. ___, 419 S.E.2d 870 (1992),
petition for cert. filed, 61 U.S.L.W. 3206 (Sept. 17, 1992)(No. 92-479).
5. "In determining whether to grant a rule to show
cause in prohibition when a court is not acting in excess of its
jurisdiction, this Court will look to the adequacy of other
available remedies such as appeal and to the over-all economy of
effort and money among litigants, lawyers and courts; however, this
Court will use prohibition in this discretionary way to correct
only substantial, clear-cut, legal errors plainly in contravention
of a clear statutory, constitutional, or common law mandate which
may be resolved independently of any disputed facts and only in
cases where there is a high probability that the trial will be
completely reversed if the error is not corrected in advance."
Syllabus Point 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744
(1979).
Per Curiam:
Brenda K. Tinsman and Douglas P. Tinsman, her husband,
seek to prohibit the Honorable Donald C. Hott, Judge of the Circuit
Court of Berkeley County, by designation, from enforcing a pretrial
order in their sexual harassment suit against Plaza Personnel and
Reporting Services, Inc. (Plaza) and Kenneth Graybill. The
pretrial order limits the evidence to the testimony of Mrs.
Tinsman's co-workers and requires a separate trial on punitive
damages. Because we agree that part of this pre-trial order was an
abuse of discretion under criteria established by Hinkle v. Black,
164 W. Va. 112, 262 S.E.2d 744 (1979), we award the writ as molded.
I
Mrs. Tinsman was employed by Plaza as its temporary
placement division manager from November 2, 1987 until May 12,
1988. Mrs. Tinsman, who was paid on commission, maintains that
during her employment Mr. Graybill, Plaza's president and her
supervisor, sexually harassed her, engaged in outrageous conduct,
used insulting words and failed to pay all of her commissions.See footnote 1
Mr. Tinsman's claim is for loss of consortium. Before trial, Plaza
and Mr. Graybill requested a separate trial on punitive damages
alleging that the evidence justifying punitive damages was highly
prejudicial. Plaza and Mr. Graybill also sought to limit testimony
of sexual harassment to that of Mrs. Tinsman's co-workers.See footnote 2 After
a hearing and over the objections of Mr. and Mrs. Tinsman, Judge
Hott limited evidence of liability to the testimony of Mrs.
Tinsman's co-workers and ordered a separate trial on punitive
damages.
Alleging that the pre-trial order was an abuse of
discretion, Mr. and Mrs. Tinsman petitioned this Court for a writ
of prohibition. Mr. and Mrs. Tinsman want to introduce testimony
from Mr. Graybill's former wife that he sexually harassed other
female employees in 1983-84. Mr. and Mrs. Tinsman also want a
court reporter to testify that Mr. Graybill failed to pay her
proper commission pursuant to an unrelated employment contract.
Finally, Mr. and Mrs. Tinsman maintain that a separate trial on
punitive damages is superfluous because the substantiation of their
claims of sexual harassment, outrageous conduct and the use of
insulting words, also justifies the award of punitive damages.
II
Mr. and Mrs. Tinsman's first assignment of error concerns
the exclusion of certain testimony, which they contend is designed
to show that Mr. Graybill created a hostile work environment,
engaged in patterns and practices that sexually harassed his
employees and engaged in an intentional plan to deprive employees
of earned commissions. Specifically, the Tinsmans want Mr.
Graybill's former wife to testify about alleged incidents of sexual
harassment that occurred in 1983-84 and a court reporter to testify
that Mr. Graybill, pursuant to an unrelated employment contract,
failed to pay proper commissions. The circuit court's pre-trial
order did not permit the Tinsmans to introduce evidence that Mr.
Graybill had "allegedly sexually harassed other female employees
who worked with him prior to the Plaintiff's employment with
Defendant Plaza" and that Mr. Graybill had failed to pay a court
reporter commission pursuant to an unrelated employment contract.
We have long held that "'[r]ulings on the admissibility
of evidence are largely within a trial court's sound discretion and
should not be disturbed unless there has been an abuse of
discretion.' State v. Louk, 171 W. Va. 639, 301 S.E.2d 596, 599
(1983); Syllabus Point 2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983)" Syllabus Point 9, TXO Production Corp. v.
Alliance Resources Corp., ___ W. Va. ___, 419 S.E.2d 870 (1992),
petition for cert. filed, 61 U.S.L.W. 3206 (Sept. 17, 1992)(No. 92-479). In Syllabus Point 6, State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986), overruled, in part, on other grounds, State v.
Edward Charles L., Sr., 183 W.Va. 641, 398 S.E.2d 123 (1990), we
held that in order to be considered relevant the "collateral crimes
must have occurred reasonably close in point of time to the present
offense." In State v. Dolin, we concluded that "[i]t is
impermissible for collateral sexual offenses to be admitted into
evidence solely to show a defendant's improper or lustful
disposition toward his victim." Syllabus Point 7, State v. Dolin,
id.See footnote 3
The Supreme Court in Meritor Saving Bank v. Vinson, 477 U.S. 57 (1986), a sexual harassment case, noted that evidence of
the plaintiff's provocative speech and dress was relevant and that
"[t]he EEOC Guidelines emphasize that the trier of fact must
determine the existence of sexual harassment in light of 'the
record as a whole' and 'the totality of circumstances, such as the
nature of the sexual advances and the context in which the alleged
incidents occurred.' 29 CFR § 1604.11(b) (1985)." 477 U.S. at 69.
The Supreme Court then concluded that the district court should
determine the "[r]espondent's claim that any marginal relevance of
the evidence in question was outweighed by the potential for unfair
prejudice . . . ." 477 U.S. at 69.
Other jurisdictions that have addressed the question of
the proper evidence in a sexual harassment case require the
evidence to be contemporaneous and directly related to the alleged
incident. When the question of whether incidents of sexual
harassment directed at other employees could be used as evidence in
the plaintiff's claim of a hostile work environment, the court in
Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987),
said "[t]he answer seems clear: one of the critical inquiries in a
hostile environment claim must be the environment. [Emphasis
supplied.]" In Hicks, the court held that evidence that other
employees had been sexually harassed should be considered to
determine if a hostile work environment existed. Hicks, 833 F.2d
at 1416. In Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985),
aff'd in part and rev'd in part, 477 U.S. 57 (1986), the court
held:
[E]vidence tending to show Taylor's
harassment of other women working alongside
Vinson is directly relevant to the question
whether he created an environment violative of
Title VII. (Footnote omitted.)
In Stockett v. Tolin, 791 F. Supp. 1536, 58 FEP Cases 1441 (S.D.
Fla. 1992), the court, when considering the defendant's liability,
allowed testimony of other female employees and of incidents that
were known to or seen by the plaintiff. In Stockett, the court
considered "acts other than the acts giving rise to the defendant's
liability to the plaintiff on the issue of punitive damages." Id.
791 F. Supp. at 1557-58. In Jones v. Flagship Intern., 793 F.2d 714, 721 n.7 (5th Cir. 1986), cert. denied, 479 U.S. 1065 (1987),
the evidence was required to "bear on [the plaintiff's] individual
claim of sexual harassment . . . ." See Hall v. Gus Construction
Co., Inc., 842 F.2d 1010, 1015 (8th Cir. 1988)("evidence of sexual
harassment directed at employees other than the plaintiff is
relevant to show a hostile work environment"); Spencer v. General
Elec. Co. 697 F. Supp. 204, 219 (E. D. Vir. 1988)(evidence showed
"workplace was pervaded by sexual innuendo, sexually-oriented games
and intimate touching . . .").
In the present case, in order to prove that Mr. Graybill
sexually harassed Mrs. Tinsman, evidence of Mrs. Tinsman's work
environment is relevant and should be admitted. Although we agree
with Mrs. Tinsman that events occurring before her employment could
be evidence of a hostile working environment, for these events to
be relevant, and therefore admissible, they must have helped to
create her work environment. The evidence that the Tinsmans seek
to introduce would not show any impact on Mrs. Tinsman's work
environment. Mr. Graybill's former wife's testimony would concern
events that allegedly occurred four years before Mrs. Tinsman's
employment in a different employment agency and in a different
state. The court reporter's testimony would concern commissions
based on an unrelated employment contract. Based on the record, we
find that the circuit judge did not abuse his discretion in
refusing to admit testimony from Mr. Graybill's former wife and the
court reporter on the issue of liability.See footnote 4
III
Mrs. Tinsman also maintains that a separate trial on the
issue of punitive damages is not justified. Rule 42(c) of the West
Virginia Rules of Civil Procedure [1978] allows a circuit court to
order a separate trial by providing:
The court, in furtherance of convenience or
to avoid prejudice, or when separate trials
will be conducive to expedition and economy,
may order a separate trial of any claim,
cross-claim, counterclaim, or third-party
claim, or of any separate issue or of any
number of claims, cross-claims, counterclaims,
third-party claims, or issues, always
preserving inviolate the right of trial by
jury as declared by Article III, Section 13 of
the West Virginia Constitution or as given by
a statute of this State.
The granting of separate trial was within the sound discretion of
the trial court. In Syllabus Point 6, Bennett v. Warner, 179 W.
Va. 742, 372 S.E.2d 920 (1988), we said:
Parties moving for separate trials of issues
pursuant to West Virginia Rule of Civil
Procedure 42(c), or the court if acting sua
sponte, must provide sufficient justification
to establish for review that informed
discretion could have determined that the
bifurcation would promote the recognized goals
of judicial economy, convenience of the
parties, and the avoidance of prejudice, the
overriding concern being the provision of a
fair and impartial trial to all litigants.
In seeking to prohibit a separate trial on punitive
damages, the Tinsmans argue that bifurcation would not serve the
goals of judicial economy or convenience of the parties. According
to the Tinsmans, no conservation of judicial effort could be
achieved because the evidence justifying the claims of sexual
harassment, outrageous conduct and insulting words also justify the
award of punitive damages. In addition, because the same witnesses
would be called in both trials, a separate trial would consume
additional court time and the witnesses would be inconvenienced.
Mr. Graybill argues that a separate trial on punitive
damages is necessary because to consider punitive damages the jury
would hear highly prejudicial information about him and would be
encouraged to judge his liability on his ability to pay and his
past actions.
Recently in TXO Production v. Alliance Resources, ___
W. Va. ___, ___, 419 S.E.2d 870, 881-84 (1992), petition for cert.
filed, 61 U.S.L.W. 3206 (U.S. Sept. 17, 1992)(No. 92-479), we
discussed the protection provided against unfair prejudice:
Protection against unfair prejudice from
evidence admitted under Rule 404(b) of the
West Virginia Rules of Evidence [1985] is
provided by: (1) the requirement of Rule
404(b) that the evidence be offered for a
proper purpose; (2) the relevancy requirement
of Rule 402 - as enforced through Rule 104(b);
(3) the assessment the trial court must make
under Rule 403 to determine whether the
probative value of the similar acts evidence
is substantially outweighed by its potential
for unfair prejudice; and, (4) Rule 105, which
provides that the trial court shall, upon
request, instruct the jury that the similar
acts evidence is to be considered only for the
proper purpose for which it was admitted.
Syllabus Point 8, TXO id. Although a separate trial on punitive
damages is not listed in TXO as a protection against unfair
prejudice, in extraordinary cases when none of the listed
protections suffice, a separate trial on punitive damage is
justified.
In this case, some of the evidence that Mr. Graybill
contends is prejudicial supports the Tinsmans' claims and,
therefore, will be considered on the issue of liability. However,
evidence concerning Mr. Graybill's ability to pay and the prior
sexual harassment charges against him, although not relevant on the
issue of liability (See supra Part II), are admissible on the issue
of punitive damages.See footnote 5 In Garnes v. Fleming Landfill, 186 W. Va.
656, 413 S.E.2d 897 (1991), we allowed a jury considering punitive
damages to hear evidence about a defendant's conduct and ability to
pay. Syllabus Point 3, in part, Garnes states:
(2) The jury may consider (although the
court need not specifically instruct on each
element if doing so would be unfairly
prejudicial to the defendant), the
reprehensibility of the defendant's conduct.
The jury should take into account how long the
defendant continued in his actions, whether he
was aware his actions were causing or were
likely to cause harm, whether he attempted to
conceal or cover up his actions or the harm
caused by them, whether/how often the
defendant engaged in similar conduct in the
past, and whether the defendant made
reasonable efforts to make amends by offering
a fair and prompt settlement for the actual
harm caused once his liability became clear to
him.
. . .
(5) The financial position of the defendant
is relevant. (Emphasis added).See footnote 6
Under Garnes, Mr. Graybill's ability to pay and prior
similar conduct is relevant on the issue of punitive damages.
However, to be considered on the issue of punitive damages, the
evidence of similar conduct must be sufficient "to support a
finding by the jury that the defendant committed the similar act."
Huddleston v. U. S., 485 U.S. 681, 685 (1988). See TXO, supra at
___, 419 S.E.2d at 883-84, for an application of the Huddleston
analysis.
Once the similar conduct evidence is admissible under
Huddleston, we then require the trial judge to weigh its probative
value against the danger of unfair prejudice.
"Rules 402 and 403 of the West Virginia
Rules of Evidence [1985] direct the trial
judge to admit relevant evidence, but to
exclude evidence whose probative value is
substantially outweighed by the danger of
unfair prejudice to the defendant." Syllabus
Point 4, Gable v. The Kroger Co., 186 W. Va.
62, 410 S.E.2d 701 (1991).
Syllabus Point 10, TXO supra.
In the present case on the issue of punitive damages, the
trial court decided to admit the evidence of Mr. Graybill's ability
pay and prior bad acts, but because of the danger of unfair
prejudice, a separate trial was ordered. However a separate trial
on the issue of punitive damages does not promote the goals of
judicial economy and convenience of the parties because most of the
allegedly prejudicial evidence will be introduced to prove
liability. The only evidence to be introduced exclusively on
punitive damages concerns Mr. Graybill's ability to pay and his
alleged prior bad acts. Because of the limited evidence admissible
on punitive damages, the goal of avoidance of prejudice can be
achieved without resorting to a separate trial by using Rule 105 of
the West Virginia Rules of Evidence [1985], which provides:
When evidence which is admissible as to one
party or for one purpose but not admissible as
to another party or for another purpose is
admitted, the court, upon request, shall
restrict the evidence to its proper scope and
instruct the jury accordingly.
See supra p. 8 for Syllabus Point 8, TXO.
We find that in this case a separate trial on punitive
damages is not justified, because the alleged benefit, avoidance of
prejudice, can be achieved without sacrificing the goals of
judicial economy and convenience of the parties by using Rule 105
to restrict the evidence of Mr. Graybill's ability to pay and prior
bad acts to its proper scope and instruct the jury accordingly.
IV
The standard for this Court's use of prohibition when a
court is not acting in excess of its jurisdiction was stated in
Syllabus Point 1, Hinkle v. Black, supra, which stated:
In determining whether to grant a rule to
show cause in prohibition when a court is not
acting in excess of its jurisdiction, this
Court will look to the adequacy of other
available remedies such as appeal and to the
over-all economy of effort and money among
litigants, lawyers and courts; however, this
Court will use prohibition in this
discretionary way to correct only substantial,
clear-cut, legal errors plainly in
contravention of a clear statutory,
constitutional, or common law mandate which
may be resolved independently of any disputed
facts and only in cases where there is a high
probability that the trial will be completely
reversed if the error is not corrected in
advance.
In the present case, because there is no post-trial
remedy, such as appeal, that would serve "the overall economy of
effort and money among litigants, lawyers and courts" (Hinkle,
id.), the proper remedy is a writ of prohibition. We find that a
rule to show cause in prohibition is justified because by using the
limited admissibility provided for in Rule 105 of the West Virginia
Rules of Evidence [1985], a single trial on both issues can avoid
prejudice against the defendant without sacrificing the goals of
judicial economy and convenience of the parties.
For the above stated reasons, the writ of prohibition is
granted as moulded and the case is remanded for proceedings
consistent with this opinion.
Writ granted as moulded.
Footnote: 1See Hutson v. Henry, 184 W. Va. 692, 403 S.E.2d 435 (1991),
rejecting the consolidation of Mrs. Tinsman's case with a sexual
harassment and wage dispute action brought by another former
employee of Plaza.
Footnote: 2According to Mrs. Tinsman's petition the pretrial order
"preclude[d] Brenda Tinsman from introducing evidence of prior and
ongoing sexual harassment of employees on the part of Defendant
Graybill . . . ." However, the pretrial order stated that "the
Plaintiffs shall not be permitted to introduce in their case-in-chief any evidence that the Defendant Kenneth Graybill allegedly
sexually harassed other female employees who worked with him prior
to the Plaintiff's employment with Defendant Plaza . . . ."
Footnote: 3See infra Section III for a discussion of the protection
provided against unfair prejudice.
Footnote: 4See supra n. 2 for the circuit court's pre-trial order
allowing the testimony of Mrs. Tinsman's co-workers. Although the
pre-trial order's prohibition is broader than necessary, given that
the Tinsmans want to introduce testimony about instances that
occurred four years before the alleged harassment, we find that
error to be harmless.
Footnote: 5On the issue of punitive damages, the pre-trial order allows
the Tinsmans to introduce evidence that Mr. Graybill sexually
harassed employees who worked for him before Mrs. Tinsman's
employment. However, the pre-trial order did not permit the
Tinsmans "to introduce in their case in chief any evidence that
Defendant Kenneth Graybill allegedly withheld commissions or had
improper business dealings . . . ."
Footnote: 6In its entirety, Syllabus Point 3, Garnes, supra states:
When the trial court instructs the jury on
punitive damages, the court should, at a
minimum, carefully explain the factors to be
considered in awarding punitive damages.
These factors are as follows:
(1) Punitive damages should bear a
reasonable relationship to the harm that
is likely to occur from the defendant's
conduct as well as to the harm that
actually has occurred. If the defendant's
actions caused or would likely cause in a
similar situation only slight harm, the
damages should be relatively small. If
the harm is grievous, the damages should
be greater.
(2) The jury may consider (although the court need not specifically instruct on each element if doing so would be unfairly prejudicial to the defendant), the reprehensibility of the defendant's conduct. The jury should take into
account how long the defendant continued
in his actions, whether he was aware his
actions were causing or were likely to
cause harm, whether he attempted to
conceal or cover up his actions or the
harm caused by them, whether/how often the
defendant engaged in similar conduct in
the past, and whether the defendant made
reasonable efforts to make amends by
offering a fair and prompt settlement for
the actual harm caused once his liability
became clear to him.
(3) If the defendant profited from his
wrongful conduct, the punitive damages
should remove the profit and should be in
excess of the profit, so that the award
discourages future bad acts by the
defendant.
(4) As a matter of fundamental
fairness, punitive damages should bear a
reasonable relationship to compensatory
damages.
(5) The financial position of the
defendant is relevant.
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