Diane Judy v. Hinkle Trucking, a West Virginia Corporation, Gary Hinkle, Individually and in his capactiy as an officer of Hinkle Trucking, Inc, and Travis Hinkle, individually and in his capacity as an officer of Hinkle Trucking, Inc.

FILED
February 14, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA

Diane Judy,
Plaintiff Below, Petitioner

vs.) No. 22-0101 (Pendleton County 17-C-5)

Hinkle Trucking, a West Virginia
Corporation, Gary Hinkle, individually and in
his capacity as an officer of Hinkle Trucking, Inc.,
and Travis Hinkle, individually and in
his capacity as an officer of Hinkle Trucking, Inc.
Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Diane Judy appeals three orders from the Circuit Court of Pendleton County
granting summary judgment to respondents on all of petitioner’s claims. 1 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. Proc. 21.

Petitioner was an at-will employee of Respondent Hinkle Trucking as a driver on three
separate occasions between 1998 and October 10, 2016, when petitioner resigned without notice.
On August 31, 2016, petitioner filed a lawsuit against respondents, alleging they violated West
Virginia Code § 21-5-3 of the West Virginia Wage Payment and Collection Act (“WPCA”) with
respect to her compensation by failing to pay her all wages due under her employment agreement.
That action, Pendleton County Civil Action No. 16-C-24, was dismissed by agreed order on
October 29, 2018. After resigning in 2016, petitioner filed Pendleton County Civil Action No. 17-
C-5, and eventually filed a second amended complaint, advancing a claim under the West Virginia
Human Rights Act (“WVHRA”) in Count I, specifically asserting that, as a female, she is a
member of a protected class.

Respondents filed motions for summary judgment, which the circuit court granted in three
separate orders, including one that was filed under seal. A substantial portion of the circuit court’s
findings, and our findings related to petitioner’s assignments of error on appeal, are based upon

1
Petitioner is represented by Harley O. Staggers, Jr., Lia DiTrapano Fairless, and L. Tom
Price, and respondents are represented by Julie A. Moore, Jerry D. Moore, and Jared T. Moore.

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the “Settlement Agreement and General Release” (“Release”) petitioner signed when resolving
16-C-24. That release provided, in relevant part, that petitioner fully and forever waives, releases,
and discharges respondents

from any and all claims, demands, actions, causes of actions, judgments, rights,
fees, damages, debts, obligations, liabilities, and expenses (inclusive of attorneys’
fees) of any kind whatsoever, whether known or unknown, that [petitioner] may
have or has ever had against [respondents], or any of them, arising out of, or in any
way related to [petitioner’s] hire, benefits, employment, or separation from
employment, by reason of any actual or alleged act, omission, transaction, practice,
conduct, occurrence, or other matter from the beginning of time up to and including
the date of [petitioner’s] execution of this Agreement, including but not limited to:
(a) any claims or causes of action arising under any federal, state, or local law,
including but not limited to . . . the West Virginia Human Rights Act (WVHRA),
W.Va. Code § 5-11-1, et seq. . . . any claims arising under tort, contract, or quasi-
contract law, including, but not limited to . . . employment . . . or retaliatory
discharge, claims based on Harless and its progeny . . . The only claims that shall
not be released by [petitioner] are the causes of action asserted by her within her
Second Amended Complaint in 17-C-5.

On appeal, petitioner asserts that the circuit court erroneously granted the motions for
summary judgment. 2 As this Court has consistently stated, “‘A circuit court’s entry of summary
judgment is reviewed de novo.’ Syllabus Point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d
755 (1994).” Syl. Pt. 1, Goodman v. Auton, -- W. Va. --, 880 S.E.2d 57 (2022).

Although petitioner’s argument headings do not follow her assignments of error, as
required by Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, it appears that she
contends that she presented a prima facie case of discriminatory motive so respondents’ motions
for summary judgment should have been denied. We have held that

[i]n order to make a prima facie case of employment discrimination . . . the
plaintiff must offer proof of the following: (1) That the plaintiff is a member of a
protected class. (2) That the employer made an adverse decision concerning the
plaintiff. (3) But for the plaintiff’s protected status, the adverse decision would not
have been made.

Syl. Pt. 3, Conaway v. E. Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986).
Petitioner’s discrimination claims are based upon her gender. However, in her deposition, she
denied that three of the five pleaded acts of alleged discrimination ever occurred; she specifically

2
Petitioner’s nine-sentence statement of the case lacks any citation to the record and
provides very little substantive information. We, therefore, remind petitioner of the mandates of
Rule 10(c)(4) of the West Virginia Rules of Appellate Procedure, which requires that the Statement
of the Case be “[s]upported by appropriate and specific references to the appendix or designated
record, the statement of the case must contain a concise account of the procedural history of the
case and a statement of the facts of the case that are relevant to the assignments of error.”
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denied that her loads changed, her pay changed, or that anyone failed to maintain her truck. With
regard to the allegedly harassing text messages from Travis Hinkle and advertising her assigned
truck on Facebook as available, petitioner admitted that those actions were not based upon her
gender but were, instead, based on the fact that she filed her WPCA lawsuit. Further, a review of
those text messages reveals that they address petitioner driving five days a week rather than four;
petitioner bringing the truck back to the shop so another driver could use it in the evening and on
her day off; petitioner’s failure to keep the truck clean; necessary repairs on the truck; and
petitioner keeping a dog inside of the truck when she drove. Therefore, we find that the circuit
court did not err by granting respondents’ motions for summary judgment as to discriminatory
motive. 3

It appears that her final argument is that respondents were not entitled to summary
judgment because they subjected her to sexual harassment. The circuit court’s grant of summary
judgment as to this issue was based upon the Release petitioner signed when resolving her WPCA
suit. 4 At the time she signed the Release, she was represented by counsel, who also represented
her in this action, and she had filed her second amended complaint in 17-C-5, the action below
that is currently on appeal. The circuit court found, and we agree, that petitioner released any claim
for sexual harassment based upon allegations she was subjected to unwelcome sexual behavior by
the mechanics at Hinkle Trucking because the claim was not pled in her second amended complaint
– the only claims she reserved in the Release. Importantly, petitioner does not challenge the
correctness of the circuit court’s finding that the complaint does not set forth a claim for sexual
harassment based upon unwanted sexual behavior by the mechanics or its ruling that, by virtue of
the Release, petitioner released any claim she may have had against respondents for sexual
harassment based on such behavior. We, therefore, find that petitioner is not entitled to relief on
this ground, and the circuit court’s summary judgment orders on appeal are hereby affirmed.

Affirmed.

ISSUED: February 14, 2023

3
Petitioner’s second argument heading is simply titled “Respondents’ Burden,” and the
“argument” in this section is a mere four sentences. While petitioner references Hanlon v.
Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995), she fails to set forth the Hanlon standard or
apply the instant facts to that standard. Therefore, we decline to address this portion of petitioner’s
argument.
4
“The law favors and encourages the resolution of controversies by contracts of
compromise and settlement rather than by litigation; and it is the policy of the law
to uphold and enforce such contracts if they are fairly made and are not in
contravention of some law or public policy.” Syl. Pt. 1, Sanders v. Roselawn Mem’l
Gardens, 152 W. Va. 91, 159 S.E.2d 784 (1968).

Syl. Pt. 3, Triple 7 Commodities, Inc. v. High Country Mining, Inc., 245 W. Va. 63, 857 S.E.2d
403, 407 (2021).
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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn

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