STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Gregory Toney, FILED 

Plaintiff Below, Petitioner June 13, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 13-1101 (Kanawha County 12-C-834) OF WEST VIRGINIA 

EQT Corporation, and Daniel Crowe, individually, 

Defendants Below, Respondents 

MEMORANDUM DECISION 

Petitioner Gregory Toney, by counsel Mark L. French and Sean W. Cook, appeals the 

Circuit Court of Kanawha County’s “Order Granting Defendants’ Renewed Motion to Dismiss 

and Compel Arbitration and Denying Plaintiff’s Motion for Stay of Arbitration,” entered on 

August 29, 2013. Respondents EQT Corporation (“EQT”) and Daniel Crowe, by counsel Kevin 

L. Carr, Lewis G. Brewer, and Ellen J. Vance, filed a response. Petitioner filed a reply. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

Facts and Procedural Background 

Petitioner was employed by EQT for several years prior to his termination in January of 

2012. Respondent Daniel Crowe had served as petitioner’s immediate supervisor since 2008. On 

May 9, 2012, following his termination from employment, petitioner filed a civil action against 

respondents alleging age discrimination, hostile work environment based on age, retaliatory 

discharge, hostile work environment and unlawful retaliation based on petitioner reporting 

alleged violations of the West Virginia Human Rights Act, breach of express and/or implied 

employment contract, breach of implied covenant of good faith and fair dealing in employment, 

violation of West Virginia Wage Payment and Collection Act, and intentional and reckless 

infliction of emotional distress. 

On April 22, 2013, respondents filed a renewed1 motion to dismiss petitioner’s civil 

action and to compel arbitration based upon an Alternative Dispute Resolution Agreement 

1 Respondents renewed motion to dismiss followed (1) the circuit court’s denial of their 

original motion to dismiss on October 16, 2012, in which the circuit court determined that 

discovery was necessary on the issue of whether petitioner received consideration for signing the 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(“ADR Agreement”) executed between petitioner and respondents on March 7, 2007. The ADR 

Agreement covered “any claim that is related in any way to an individual’s employment with 

Equitable [now EQT] that is recognized in the federal or state courts where the employee 

works,” with certain exclusions not relevant to this case.2 Petitioner filed a response to 

respondents’ motion, and the circuit court held a hearing thereon on August 13, 2013.3 The 

circuit court granted respondents’ motion and compelled arbitration by order entered on August 

29, 2013. Petitioner now appeals the August 29, 2013, order to this Court. 

In compelling arbitration,4 the circuit court found that by signing the ADR Agreement, 

petitioner agreed to submit specified employment related disputes to arbitration, and EQT 

likewise became (1) mutually obligated to be bound by the result of arbitration, and (2) mutually 

obligated to submit specified disputes it had with petitioner to arbitration. Additionally, in 

exchange for signing the ADR Agreement in March 2007, petitioner became eligible to 

participate in EQT’s 2007 Short Term Incentive Plan (“STIP”) and future STIPs offered by EQT. 

The STIP is an incentive program that provides employees who meet certain performance goals 

with cash bonuses. Had petitioner not signed the ADR Agreement, he would not have been 

ADR Agreement; (2) this Court’s refusal of respondents’ petition for writ of prohibition on 

November 14, 2012, where respondents sought to prohibit discovery beyond the arbitration issue 

and to proceed summarily to that issue; and (3) the United States District Court for Southern 

District of West Virginia’s denial of respondents’ petition seeking to compel arbitration on April 

26, 2013, on the basis of judicial abstention. These prior rulings did not rule upon the 

enforceability of the ADR Agreement. 

2 In addition to requiring both EQT and petitioner to submit all employment disputes to a 

neutral arbitrator, the ADR Agreement also contained language whereby petitioner expressly 

acknowledged that the agreement did not change his status as an “at-will” employee who could 

be terminated with or without cause or with or without notice. 

3 According to the circuit court, both parties indicated that no further discovery was 

required on the issue of the enforceability of the ADR Agreement. 

4 In Syllabus Point 2 of State ex rel. TD Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 

692 S.E.2d 293 (2010), this Court held that 

[w]hen a trial court is required to rule upon a motion to compel arbitration 

pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1–307 (2006), the authority 

of the trial court is limited to determining the threshold issues of (1) whether a 

valid arbitration agreement exists between the parties; and (2) whether the claims 

averred by the plaintiff fall within the substantive scope of that arbitration 

agreement. 

In the present case, the parties do not dispute that petitioner’s claims fall within the substantive 

scope of the ADR Agreement. The issue here is whether the ADR Agreement is valid. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

eligible to participate in the 2007 STIP or future STIPs.5 However, the circuit court found that 

petitioner would have continued his employment with EQT had he refused to sign, but he would 

not have been eligible to receive the bonuses provided by the STIP. 

At the time petitioner signed the ADR Agreement, EQT had already determined that he 

was eligible to receive a cash bonus pursuant to the 2007 STIP. The only remaining eligibility 

requirement for petitioner’s participation in the STIP was his execution of the ADR Agreement. 

As a direct result of his signing the ADR Agreement, petitioner received a gross bonus of $8,475 

under the 2007 STIP. The circuit court also found that because petitioner remained eligible for 

subsequent STIPs as a result of his signing the ADR Agreement in 2007, he received additional 

gross bonuses totaling $59,035 for the subsequent years until his termination in 2012. 

The circuit court concluded that because petitioner’s claims in his civil action fell within 

the substantive scope of the ADR Agreement, pursuant to the Federal Arbitration Act, such 

claims must be arbitrated according to the terms of the ADR Agreement. The circuit court 

concluded that because both EQT and petitioner agreed to submit their respective “employment 

disputes” to arbitration and to be bound by the results thereof, petitioner had been provided 

adequate consideration supporting the ADR Agreement. The circuit court further concluded that 

participation in the STIPs, and the additional compensation petitioner received as a result of his 

participation, constituted additional consideration supporting the ADR Agreement. Because 

petitioner participated in the STIP in 2007, continued to participate until his termination, and 

received substantial additional compensation as a result of his participation, the court concluded 

that the consideration provided by EQT was not illusory. Lastly, the circuit court determined that 

the ADR Agreement was neither procedurally nor substantively unconscionable. Petitioner now 

appeals to this Court and challenges the circuit court’s determination that a valid arbitration 

agreement existed between the parties. 

Discussion 

The standard of review is set forth in Syllabus Point 4 of McGraw v. American Tobacco 

Co., et al., 224 W.Va. 211, 681 S.E.2d 96 (2009), which states as follows: 

This Court will preclude enforcement of a circuit court's order compelling 

arbitration only after a de novo review of the circuit court's legal determinations 

leads to the inescapable conclusion that the circuit court clearly erred, as a matter 

of law, in directing that a matter be arbitrated or that the circuit court's order 

constitutes a clear-cut, legal error plainly in contravention of a clear statutory, 

constitutional, or common law mandate. 

Moreover, whether an arbitration agreement constitutes a valid contract is a matter of 

state contract law. See State ex rel. Clites v. Clawges, 224 W.Va. 299, 305, 685 S.E.2d 693, 699 

(2009); Southland Corp. v. Keating, 465 U.S. 1, 16 (1984). In West Virginia, the fundamental 

elements of a legal contract are an offer and acceptance supported by consideration. See Syl. Pt. 

5 Petitioner participated in the STIP prior to 2007. However, it was not until 2007 that 

EQT required employees execute the ADR Agreement to be eligible to participate. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1, First Nat’l Bank of Gallipolis v. Marietta Mfg. Co., 151 W.Va. 636, 153 S.E.2d 172 (1967). 

This Court has held that 

[i]t is elementary that mutuality of assent is an essential element of all contracts. 

Wheeling Downs Racing Ass’n v. West Virginia Sportservice, Inc., 158 W.Va. 

935, 216 S.E.2d 234 (1975). In order for this mutuality to exist, it is necessary that 

there be a proposal or offer on the part of one party and an acceptance on the part 

of the other. Both the offer and acceptance may be by word, act or conduct that 

evince the intention of the parties to contract. That their minds have met may be 

shown by direct evidence of an actual agreement or by indirect evidence through 

facts from which an agreement may be implied. See Lacey v. Cardwell, 216 Va. 

212, 217 S.E.2d 835 (1975); Charbonnages de France v. Smith, 597 F.2d 406, 

415–416 (4th Cir.1979). 

Ways v. Imation Enters. Corp., 214 W.Va. 305, 313, 589 S.E.2d 36, 44 (2003). In addition, in 

Syllabus Points three and four of Kirby v. Lion Enterprises, Inc., __ W.Va. __, 756 S.E.2d 493 

(2014), we held as follows: 

“The formation of a contract with multiple clauses only requires consideration for 

the entire contract, and not for each individual clause. So long as the overall 

contract is supported by sufficient consideration, there is no requirement of 

consideration for each promise within the contract, or of ‘mutuality of obligation,’ 

in order for a contract to be formed.” Syl. Pt. 6, Dan Ryan Builders, Inc. v. 

Nelson, 230 W.Va. 281, 737 S.E.2d 550 (2012). 

The law enunciated in syllabus point six of Dan Ryan Builders, Inc. v. Nelson, 

230 W.Va. 281, 737 S.E.2d 550 (2012), that “the formation of a contract with 

multiple clauses only requires consideration for the entire contract, and not for 

each individual clause” modified the law set forth in Board of Education v. W. 

Harley Miller, Inc., 160 W.Va. 473, 236 S.E.2d 439 (1977), to the extent that an 

arbitration clause in a contract need not be specifically “bargained for.” 

With the above case law in mind, including our recent decision in Kirby, we now address 

petitioner’s appeal, in which he raises three assignments of error. First, he argues that the ADR 

Agreement is unenforceable for lack of adequate consideration. Because he was enrolled in the 

STIP prior to 2007, petitioner contends that he did not receive any new consideration when he 

signed the ADR Agreement and gave up his right to pursue his grievances in court. Citing 

Williston on Contracts § 7:7, *2, petitioner states that “the doctrine that past consideration is no 

consideration represents the overwhelming weight of authority and has represented the weight of 

authority since the early common law.” However, by focusing so heavily on the STIP, petitioner 

ignores the fact that the ADR Agreement contains mutual commitments by EQT and petitioner to 

submit their respective employment disputes to binding arbitration. “A valuable consideration 

may consist either in some right, interest, profit, or benefit accruing to the one party or some 

forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other.” Syl. 

Pt. 1, Tabler v. Hoult, 110 W.Va. 542, 158 S.E. 782 (1931). In the present case, the circuit court 

was correct in finding that the mutual commitments to arbitrate alone constitute sufficient 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

consideration to support the contract. Accordingly, we reject petitioner’s first assignment of 

error. 

Focusing again on only the STIP, petitioner argues in his second assignment of error that 

the ADR Agreement is unenforceable because participation in the STIP was based on an 

“illusory promise.” Petitioner points to the United States Court of Appeals for the Fourth Circuit, 

which addressed illusory promises as a deficient form of consideration and held that 

A promise becomes consideration for another promise only when it constitutes a 

binding obligation. Unlike a binding obligation, an “illusory promise” appears to 

be a promise, but it does not actually bind or obligate the promisor to anything. 

Because an illusory promise is not binding on the promisor, an illusory promise 

cannot constitute consideration. 

Hill v. Peoplesoft USA, Inc., 412 F.3d 540, 543 (4th Cir. 2005) (internal citations omitted). 

Petitioner contends that EQT’s promise that petitioner would be eligible for STIPs is an illusory 

promise because the income gained from the STIP was not guaranteed, but rather is based on 

EQT’s “complete and sole discretion.” 

We reject petitioner’s second assignment of error for much the same reason as we 

rejected his first. We believe the ADR Agreement is supported by valid consideration inasmuch 

as it contains mutual commitments by the parties to arbitrate their respective disputes. However, 

even if we examine the alleged illusory nature of eligibility in the STIP, we disagree with 

petitioner. The circuit court correctly found that petitioner received valuable consideration – over 

$8,000 in gross pay – as a direct result of accepting the ADR Agreement in 2007. At that time, 

petitioner was aware that he would receive this bonus pursuant to the 2007 STIP; all that was 

required was his execution of the ADR Agreement. He chose to sign and received the bonus. 

There was nothing illusory about this promise at the time it was made. 

As for the STIPs in subsequent years, the record shows that they were never a condition 

of employment or an entitlement for EQT employees. As such, EQT did not promise in 2007 that 

it would continue the STIPs in perpetuity, but rather, that employees who executed the ADR 

Agreement would remain eligible to participate in future STIPs so long as they met certain 

performance criteria. We believe EQT’s promise of future eligibility constitutes a statement of a 

future contingency, not a meaningless gesture, or an illusory promise. Cf. Syl. Pt. 6, State ex rel. 

Saylor v. Wilkes, 216 W.Va. 766, 613 S.E.2d 914 (2005) (“An employer’s promise merely to 

review an employment application in exchange for a job applicant’s promise to submit 

employment-related disputes not associated with the application process to arbitration does not 

represent consideration sufficient to create an enforceable contract to arbitrate such employment 

disputes.”). 

Petitioner’s final assignment of error is that the ADR Agreement is an unconscionable 

contract of adhesion, and thus, is unenforceable. In Syllabus Point 5 of Kirby, we held that 

“The doctrine of unconscionability means that, because of an overall and 

gross imbalance, one-sidedness or lop-sidedness in a contract, a court may be 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

justified in refusing to enforce the contract as written. The concept of 

unconscionability must be applied in a flexible manner, taking into consideration 

all of the facts and circumstances of a particular case.” Syl. Pt. 12, Brown ex rel. 

Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011), 

overruled in part on other grounds sub nom. Marmet Health Care Ctr., Inc. v. 

Brown, ––– U.S. ––––, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012). 

__ W.Va. __, 756 S.E.2d. 493 (2014). Moreover, petitioner must establish both procedural and 

substantive unconscionability in order to invalidate the agreement. See Dan Ryan Builders, Inc. 

v. Nelson, 230 W.Va. 281, 737 S.E.2d 550 (2012); State ex rel. Johnson Controls, Inc. v. Tucker, 

229 W.Va. 486, 729 S.E.2d 808 (2012). 

With respect to procedural unconscionability, this Court has held: 

Procedural unconscionability is concerned with inequities, improprieties, 

or unfairness in the bargaining process and formation of the contract. Procedural 

unconscionability involves a variety of inadequacies that results in the lack of a 

real and voluntary meeting of the minds of the parties, considering all the 

circumstances surrounding the transaction. These inadequacies include, but are 

not limited to, the age, literacy, or lack of sophistication of a party; hidden or 

unduly complex contract terms; the adhesive nature of the contract; and the 

manner and setting in which the contract was formed, including whether each 

party had a reasonable opportunity to understand the terms of the contract. 

Syl. Pt. 17, Brown ex rel. Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 

(2011). The record in the present case reveals that petitioner is a high school graduate; graduated 

from the State Police Academy; earned an associate degree as a petroleum engineer; and held a 

responsible position with EQT as an assistant superintendent in pipeline operations. 

Additionally, the evidence demonstrates that, prior to signing the ADR Agreement, petitioner 

had the opportunity to ask questions of EQT’s human resources department.6 There is simply 

nothing in the record to indicate procedural unconcionability. 

Substantive unconscionablility involves unfairness in the contract itself 

and whether a contract term is one-sided and will have an overly harsh effect on 

the disadvantaged party. The factors to be weighed in assessing substantive 

unconscionability vary with the content of the agreement. Generally, courts 

should consider the commercial reasonableness of the contract terms, the purpose 

and effect of the terms, the allocation of the risks between the parties, and public 

policy concerns. 

Syl. Pt. 19, id. Here, petitioner simply repackages his arguments in support of his first two 

assignments of error regarding an alleged lack of consideration, which we have rejected above. 

We do not find the ADR Agreement to be substantively unconscionable. 

6 Petitioner admitted that he did not read the ADR Agreement prior to signing it, but 

knew that he needed to sign in order to participate in the STIP. 

6
 
 

 

 

 

 

 

 

 

 

For the foregoing reasons, we affirm. 

ISSUED: June 13, 2014 

CONCURRED IN BY: 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Affirmed. 

7