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Holstein v. Norandex
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1995 Term
No. 22518
MELVIN HOLSTEIN, Plaintiff Below, Appellant,
v.
NORANDEX, INC., AND MICHAEL COUNTS, Defendant Below, Appellees
Appeal from the Circuit Court of Kanawha County Honorable Charles E. King, Judge Civil Action No. 93-C-2721
REVERSED AND REMANDED
Submitted: May 10, 1995                  Filed: July 17, 1995
Mike Kelly
Charleston, West Virginia
Attorney for the Appellant

Charles L. Woody
Niall A. Paul
Spilman, Thomas & Battle
Charleston, West Virginia
Attorneys for the Appellees

JUDGE FOX delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUDGE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX, sitting by temporary assignment.

JUSTICE CLECKLEY concurs and reserves the right to file a concurring opinion. SYLLABUS BY THE COURT

1. "'"'"A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith." Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63
S.E. 385 (1908).' Syl. Pt. 1, State ex rel. Simpkins v. Harvey, [172] W.Va. [312], 305 S.E.2d 268 (1983)." Syl. Pt. 3, Shell v. Bechtold, 175 W.Va. 792, 338 S.E.2d 393 (1985).' Syl. pt. 1, State v. White, 188 W.Va. 534, 425 S.E.2d 210 (1992)." Syllabus point 7, State ex rel. Goff v. Merrifield, 191 W.Va. 473, 446 S.E.2d 695 (1994).
2.
"'An agent or employee can be held personally liable for his own torts against third parties and this personal liability is independent of his agency or employee relationship. Of course, if he is acting within the scope of his employment, then his principle or employer may also be held liable.' Syllabus point 3, Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 281 S.E.2d 499 (1981)." Syllabus point 3, Barath v. Performance Trucking Company, Inc., 188 W.Va. 367, 424 S.E.2d 602 (1992).

3.
The term "person," as defined and utilized within the context of the West Virginia Human Rights Act, includes both employees and employers. Any contrary interpretation, which might have the effect of barring suits by employees against their supervisors, would be counter to the plain meaning of the statutory language and contrary to the very spirit and purpose of this particular legislation.

4.
A cause of action may be maintained by a plaintiff employee as against another employee under the West Virginia Human Rights Act. Further, the cause of action may properly be based upon an allegation that the defendant employee aided or abetted an employer engaging in unlawful discriminatory practices. Fox, Judge:See footnote 1


    The appellant, Melvin Holstein, was sixty -three years of age when he was discharged from his employment as an inside salesperson with the appellee, Norandex, Inc., in Nitro, West Virginia. On 29 April 1991, appellee Michael Counts, the manager of Norandex's Nitro office, informed Holstein: "Mel . . . I have some bad news for you . . . Norandex has eliminated your job. They don't need you any longer." Norandex characterizes Holstein's firing as a "cost cutting measure," but Holstein argues the reason given for his discharge is merely a pretext for unlawful age discrimination. Holstein alleges a new and much younger employee was hired within months, thereby giving Norandex the same number of employees it had before he was fired.
    On 9 September 1991, Holstein filed an administrative complaint with the West Virginia Human Rights Commission, in which he charged Norandex with unlawful age discrimination. Counts was not a named respondent, but was referred to in the complaint.
    Holstein initiated a civil suit in the Circuit Court of Kanawha County, West Virginia, on 28 April 1993, and named both Norandex and Counts as defendants. The complaint alleged two causes of action: (1) that Norandex violated W.Va. Code

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