FILED 

No. 17-0620 – Raven Crest Contracting, LLC et al v. Adkins 

LOUGHRY, Chief Justice, concurring: 

November 8, 2017 

released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

I concur in the majority’s conclusion that the writ of prohibition should be 

denied, based solely upon the specific facts underlying the instant case. These facts fail 

to justify application of the rule prohibiting reapplication for employment to 

surreptitiously extend the statute of limitations, which rule the majority has incorporated 

into a new syllabus point. The respondent herein was originally terminated as part of the 

idling of the petitioner’s mine, along with all other employees. As such—and despite the 

respondent’s poorly and inaccurately drafted complaint—the respondent’s claim is a 

singular one of subsequent failure to hire, which statute of limitations commenced as of 

the date the petitioner refused to rehire him to work at the mine. However, I write 

separately to make clear that only under these limited and peculiar circumstances does 

the respondent’s claim survive the well-accepted rule that absent a discrete, new act of 

discrimination, a failure to rehire does not give rise to a new claim or otherwise serve to 

extend the statute of limitations. I write further to set forth what I believe to be the 

appropriate analysis to resolve this matter, rather than the somewhat convoluted rationale 

contained in the majority opinion. 

As set forth in the majority opinion, the respondent was on medical leave 

when the petitioner’s mine was idled. Once the mine reopened, he applied for 

reemployment. At oral argument, the respondent’s counsel advised that the allegations 

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contained in the complaint alleging both wrongful discharge (emanating from the original 

termination when the mine was idled) and failure to rehire (arising when respondent 

reapplied for employment when the mine was reopened) were in error and that the 

respondent intended to allege only the latter.1 Accordingly, with that concession, there 

was no “original” discharge due to discrimination; rather, the original discharge occurred 

across the board due to the mine idling and without discriminatory intent. 

1 The Court accepts as true the representation by the respondent’s counsel and as 

set forth in the petitioner’s brief that the respondent was on medical leave when the 

original termination due to idling occurred and that the respondent was terminated along 

with other employees for that reason. The respondent’s complaint supports this 

contention: “[A]fter the defendants ‘idled’ the surface mine further described above, the 

plaintiff was provided with a valid release to return to work[.]” However, neither the 

respondent’s brief nor the circuit court’s order make that all-important distinction. The 

respondent’s brief vaguely indicates that he was terminated on April 11, 2012, and that 

the mine was idled “from April 2012 to January 2014[.]” The circuit court’s order quite 

erroneously states that the termination preceded the idling and that “almost immediately 

after Plaintiff’s termination the mine was idled[.]” 

The distinction is critical: lack of clarity about the permanence of his original 

discharge (caused by the termination due to idling rather than some other reason) is all 

that saves the respondent’s claim from the rule discussed herein. See discussion, infra. If 

the respondent were individually terminated before the mine was idled, such discharge 

would give rise to a discrete adverse employment action, which, if alleged to be 

discriminatory, would be independently actionable and subject to the statute of 

limitations. It would not, however, give rise to a new or continuing claim of 

discrimination when he was subsequently denied rehire assuming the same 

discriminatory animus was alleged. However, where his discharge was contemporaneous 

with the mine idling and discharge of the entire workforce, it would be virtually 

impossible to suggest that such discharge was discriminatory (as expressly conceded by 

his counsel at oral argument). 

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Unquestionably, the respondent’s inexplicably inaccurate pleadings 

endangered his claim by creating the impression that he was trying to circumvent the 

expired statute of limitations by alleging a secondary, subsequent act of discrimination 

which was pled within the statute. Ordinarily, this pleading error would be construed 

against the respondent. However, given the representations of both the respondent’s 

counsel and the petitioner that the discharge occurred commensurate with the mine idling 

and not as the result of an adverse employment action against the respondent independent 

of that closure, equity demands that we accept counsel’s confession of error in that regard 

as true. Certainly, any allegation that the respondent was discriminatorily discharged 

when in fact the mine was idled and he was merely discharged along with other 

employees would fail on its face. As such, it rings true that the respondent’s inclusion of 

the original discharge claim was in error. 

However, given the oddity occasioned by the facts of this case, it is 

necessary to distinguish and clarify this case such as to avoid abuse of the Court’s limited 

holding. This Court long-ago observed that “failure to rehire after an alleged 

discriminatory discharge, absent an independent discrete act of discrimination, does not 

constitute a new or continuing violation of the civil rights law.” Independent Fire Co. 

No. 1 v. W. Va. Human Rights Comm’n, 180 W. Va. 406, 411, 376 S.E.2d 612, 617 

(1988). The basis for this rule is obvious: “Otherwise, the limitation period could always 

be circumvented by simply reapplying for employment.” Id. This rule emanates from 

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the Eleventh Circuit’s conclusion that “a failure to rehire subsequent to an allegedly 

discriminatory firing, absent a new and discrete act of discrimination in the refusal to 

rehire itself, cannot resurrect the old discriminatory act.” Burnam v. Amoco Container 

Co., 755 F.2d 893, 894 (11th Cir. 1985) (emphasis added). Viewed properly, the 

subsequent application merely “seeks to redress the original termination.” Collins v. 

United Airlines, Inc., 514 F.2d 594, 596 (9th Cir.1975). Accord Hargett v. Valley Fed. 

Sav. Bank, 60 F.3d 754, 763–64 (11th Cir. 1995) (“Because Hargett alleges the same 

discriminatory reasons to support his claim of discrimination in rehiring, Hargett fails to 

demonstrate that the rehire claim is derived from a separate act of discrimination by 

Valley.”); Riddle v. Citigroup, 449 F. App’x 66, 71 (2d Cir. 2011) (dismissing claim 

which “alleged no discrete acts of discrimination and were based on the same alleged 

conduct underlying [] other untimely claims.”). As well-explained by the Seventh 

Circuit: 

An employer’s refusal to undo a discriminatory decision is 

not a fresh act of discrimination. If it were, then an employee 

could avoid [time limitations] by filing a series of appeals or 

fresh requests[.] . . . An applicant does not have to sue about 

the first wrong to be entitled to contest a second. But when 

the first decision is connected to and implies the second— 

when, in other words, a single discriminatory decision is 

taken, communicated, and later enforced despite pleas to 

relent—the time starts with the initial decision. 

Lever v. Nw. Univ., 979 F.2d 552, 556 (7th Cir. 1992) (citations omitted). 

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The foregoing then begs the question of when a subsequent failure to rehire 

would constitute a new act of discrimination. First, I would observe that a simple refusal 

to rehire does not, on its face, necessarily constitute a new act of discrimination. It is this 

aspect of the majority’s opinion with which I take the most issue: while it is difficult to 

argue that the refusal is not a new act, it is not a new act of discrimination. The 

majority’s clumsy handling of this issue potentially suggests otherwise. 2 Where a 

plaintiff alleges the same discriminatory animus which existed at the time of the original 

discharge—or at a minimum fails to demonstrate that such animus has abated—there is 

no “new” discrimination. As such, some showing sufficient to demonstrate that a 

reapplication was not an exercise in futility—because of the continued existence of prior 

discriminatory animus—is necessary. 

To that end, courts have found intermediate changes in substantive policy 

that produced an initial firing or disparate treatment in the reinstatement process itself to 

be exceptions to the general rule. The majority takes a glancing blow at these exceptions 

and yet fails to observe the exception applicable herein. With regard to the original 

adverse employment action, courts have found failures to rehire actionable “in the face of 

2 In particular, the majority’s unqualified statement that the respondent “alleged a 

new and discrete act of discrimination [because] . . . the defendants refused to rehire him 

because of his age and his perceived disability” misses the point entirely. A failure to 

rehire upon reapplication will always constitute a “new” act by its very definition. It is 

whether this allegation alleges new discrimination that is key. 

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uncertainty regarding the initial adverse action.” Kaufman v. Perez, 745 F.3d 521, 529 

(D.C. Cir. 2014) (emphasis added). It is this exception that necessitates the relief 

afforded the respondent herein.3 

The rationale for this exception was aptly explained by the Seventh Circuit. 

In Webb v. Indiana National Bank, 931 F.2d 434 (7th Cir. 1991), the plaintiff was turned 

down for the position of corporate trust administrator, then reapplied within the statutory 

period and was turned down for the same reason—her lack of a college degree. Id. at 436. 

The defendant in Webb argued that the plaintiff “should not be permitted by the facile 

expedient of reapplication to force the court to adjudicate the bona fides of conduct 

outside the period of the statute of limitations[.]” Id. In explaining why the plaintiff’s 

reapplication did not serve to restart her statute of limitations, the court explained: 

Suppose the proper interpretation of the defendant’s refusal to 

consider the plaintiff for the position of corporate trust 

administrator back in March 1986 just days outside the 

limitations period is that she would never be considered for 

the position because she is black; and the plaintiff knew this. 

Then the refusal to appoint her later was the inevitable 

consequence of the earlier determination . . . and her suit 

would indeed be time-barred. . . . Only if the defendant has 

made clear that the plaintiff will not receive further 

consideration is the plaintiff on notice of a permanent 

3 As indicated, the majority makes brief reference to “futile gesture[s]” and the 

“permanen[cy]” of the original discharge, but fails to fully set forth the exception and 

properly apply the facts to reach its conclusion. In so doing, it breeds uncertainty about 

the application of the new syllabus point it creates: uncertainty that this Court will 

undoubtedly have to rectify in the future. It is in this regard that I write separately to 

provide guidance on proper application of these principles. 

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exclusion—a freeze, a ceiling on advancement, parallel to a 

denial of tenure—that starts the statute of limitations running 

on any future job applications. Or put differently, if it 

obviously would be futile to make a future application for the 

job for which he has just been turned down, the plaintiff 

cannot delay suit and use those futile applications to delay the 

running of the statutory period indefinitely. 

Id. at 437. In short, if circumstances objectively demonstrate that a plaintiff’s discharge 

is final and that future attempts at employment would be futile, the plaintiff cannot restart 

the statute of limitations by reapplying for employment. Certainly, when a plaintiff 

alleges discrimination in an original discharge it is unlikely that plaintiff is not 

sufficiently on notice that the discharge is undoubtedly final as pertains to that employer. 

As stated, it is this exception to the general reapplication rule that provides 

the respondent herein relief. Because his original discharge was occasioned by 

widespread discharge of the work force due to the idling of the mine, the respondent 

could have reasonably believed that when the mine reopened, he would be considered for 

employment. There was nothing about the original discharge—certainly no demonstrable 

discriminatory animus—which would suggest he would be unlikely to be considered 

upon reopening and therefore would make reapplication futile. 

Finally, I wish to clarify one additional point to avoid misconstruction of 

the majority’s somewhat cryptic opinion. Nothing herein should be construed to prohibit 

an employer from moving to dismiss an action for failure to hire or rehire simply because 

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the employee wisely chooses not to plead an “original” discharge claim which has 

expired. That is to say, an employee cannot avoid the preclusive effect of the 

reapplication rule espoused herein by simply ignoring the expired claim. If an employer 

can demonstrate that a failure to hire or rehire claim actually emanates from an unpled 

original act of discrimination which has expired and is therefore not a new act of 

discrimination, it should be permitted to present that argument in aid of dismissal. 

Accordingly, I respectfully concur. 

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