RETALIATION DEMAND LETTER

West Virginia Human Rights Act and Anti-Retaliation Claims

[ATTORNEY/FIRM LETTERHEAD]

[Firm Name]
[Address Line 1]
[City, West Virginia ZIP]
Tel: [Phone Number]
Fax: [Fax Number]
[Attorney Email]
[West Virginia State Bar Number]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL TO: [recipient_email]

[Date]

[Employer Contact Name]
[Title]
[Company Legal Name]
[Company Address]
[City, State ZIP]

Copy to:
[General Counsel]
[EPLI Carrier, if known]

Re: Unlawful Retaliation Against [Client Full Name]
WV HRC Charge No.: [XXXXX] (if applicable)
EEOC Charge No.: [XXX-XXXX-XXXXX] (if applicable)
CONFIDENTIAL SETTLEMENT COMMUNICATION PURSUANT TO W. VA. R. EVID. 408

Dear [Mr./Ms./Mx. Last Name]:

This firm represents [Client Full Name] ("our client") in connection with claims of unlawful retaliation against [Company Legal Name] ("[Company Short Name]" or "the Company"). Please direct all future communications regarding this matter to our office.

Our client engaged in legally protected activity by [briefly describe protected activity], and [Company Short Name] retaliated by [briefly describe adverse action]. This retaliation violates West Virginia law and exposes the Company to substantial liability for compensatory damages, punitive damages, and attorney's fees.

We write to demand immediate resolution of this matter and to advise that we are prepared to file suit if a satisfactory response is not received.

I. WEST VIRGINIA-SPECIFIC LEGAL FRAMEWORK

A. West Virginia Human Rights Act (WVHRA)

The West Virginia Human Rights Act, W. Va. Code Section 5-11-1 et seq., prohibits discrimination and retaliation in employment.

Anti-Retaliation Provision: W. Va. Code Section 5-11-9(7) makes it an unlawful discriminatory practice to engage in any form of reprisal or otherwise discriminate against any person because that person has opposed any practices forbidden by the WVHRA, or because that person has filed a complaint, testified, or assisted in any proceeding under the WVHRA.

Protected Classes:
- Race
- Religion
- Color
- National origin
- Ancestry
- Sex (including pregnancy)
- Age (40+)
- Blindness
- Disability

Administrative Exhaustion: A complaint must be filed with the West Virginia Human Rights Commission (HRC) within 365 days of the alleged violation. W. Va. Code Section 5-11-10.

Statute of Limitations: After completing the administrative process, a complaint may be filed in court within two (2) years of receiving notice of right to sue.

Remedies under WVHRA:
- Back pay
- Front pay
- Compensatory damages (including emotional distress)
- Punitive damages
- Reinstatement
- Attorney's fees and costs
- Injunctive relief

B. Harless Public Policy Exception (Common Law)

West Virginia was an early leader in recognizing the public policy exception to at-will employment under Harless v. First National Bank in Fairmont, 162 W. Va. 116 (1978).

Key Case Law:
- Harless v. First Nat'l Bank in Fairmont, 162 W. Va. 116 (1978) (seminal case)
- Feliciano v. 7-Eleven, Inc., 210 W. Va. 740 (2001) (discussing scope)
- Birthisel v. Tri-Cities Health Servs. Corp., 188 W. Va. 371 (1992) (healthcare whistleblowing)
- Collins v. Elkay Mining Co., 179 W. Va. 549 (1988) (reporting safety violations)

Requirements:

Under Harless and its progeny, West Virginia recognizes a tort action for wrongful discharge when:
1. A clear and substantial public policy is violated;
2. The public policy is evidenced by constitutional provisions, statutes, administrative regulations, or judicial decisions; and
3. The discharge resulted from the employee's conduct that furthered the public policy.

Broad Application: West Virginia courts have broadly applied the Harless doctrine to protect:
- Reporting illegal activity
- Refusing to participate in illegal activity
- Exercising statutory rights
- Performing public duties

Statute of Limitations: Two (2) years for tort claims. W. Va. Code Section 55-2-12.

C. West Virginia Whistleblower Law (Public Employees)

W. Va. Code Section 6C-1-1 et seq. protects state employees who report wrongdoing.

Protected Activity:
- Reporting waste of public funds
- Reporting violations of law
- Reporting abuse of authority
- Reporting specific dangers to public health or safety

Application: This statute applies primarily to state employees. Private sector employees rely on the Harless doctrine.

Statute of Limitations: 180 days from the adverse action.

D. Workers' Compensation Retaliation

W. Va. Code Section 23-5A-1 prohibits discharge or discrimination against employees who file workers' compensation claims.

Remedies:
- Reinstatement
- Back pay with interest
- Lost fringe benefits
- Reasonable attorney's fees

II. NATURE OF THE PROTECTED ACTIVITY

Our client engaged in one or more forms of protected activity that triggered [Company Short Name]'s unlawful retaliation:

A. Type of Protected Activity

[Check all that apply]

Opposition to Discrimination/Harassment (WVHRA)
- [ ] Complained internally about discrimination based on [race / religion / color / national origin / ancestry / sex / age / blindness / disability]
- [ ] Complained internally about harassment or hostile work environment
- [ ] Reported discrimination or harassment to human resources
- [ ] Filed a formal internal complaint or grievance

Participation in Discrimination Proceedings (WVHRA)
- [ ] Filed a complaint with WV HRC or EEOC
- [ ] Participated in an HRC investigation
- [ ] Testified or provided information in a discrimination proceeding
- [ ] Served as a witness in a co-worker's discrimination case

Public Policy-Based Activity (Harless Doctrine)
- [ ] Reported illegal activity to management
- [ ] Reported illegal activity to a government agency
- [ ] Refused to participate in illegal activity
- [ ] Reported safety violations
- [ ] Exercised a statutory right
- [ ] Performed a public duty

Workers' Compensation Activity (Section 23-5A-1)
- [ ] Filed a workers' compensation claim
- [ ] Testified in a workers' compensation proceeding
- [ ] Sought treatment for a work-related injury

Other Protected Activity
- [ ] Engaged in concerted activity protected by the NLRA
- [ ] Reported OSHA violations
- [ ] [Other: describe]

B. Timeline of Protected Activity

C. Detailed Narrative

On [Date], our client [describe the protected activity in detail]:

[Provide comprehensive narrative including:
- What our client observed, learned, or experienced that prompted the protected activity
- The specific concerns raised or actions taken
- To whom the concerns were raised (names, titles)
- The manner of reporting (verbal, written, formal complaint)
- Any response received from management or HR
- Any instructions given to our client regarding the matter
- Any witnesses to the protected activity]

Our client's [complaint / report / testimony / action] was made in good faith and based on a reasonable belief that [the conduct complained of was unlawful / the information reported was accurate / the activity opposed was illegal].

III. THE RETALIATORY CONDUCT

A. Adverse Employment Actions

Following our client's protected activity, [Company Short Name] subjected [him/her/them] to the following retaliatory adverse employment actions:

[Check all applicable actions and provide details]

Termination/Constructive Discharge
- [ ] Our client was terminated on [Date]
- [ ] Our client was forced to resign due to intolerable conditions on [Date]

Demotion/Reassignment
- [ ] Demoted from [Former Position] to [New Position] on [Date]
- [ ] Reassigned to less desirable duties/location/shift on [Date]
- [ ] Stripped of [responsibilities / authority / direct reports] on [Date]

Compensation Reductions
- [ ] Salary reduced from $[Amount] to $[Amount] on [Date]
- [ ] Bonus denied or reduced on [Date]
- [ ] Hours reduced from [X] to [X] per week on [Date]

Performance/Discipline
- [ ] Received negative performance review on [Date] (previously had positive reviews)
- [ ] Placed on performance improvement plan (PIP) on [Date]
- [ ] Received written warning on [Date] for [pretextual reason]
- [ ] Suspended [with/without] pay from [Date] to [Date]

Hostile Treatment/Exclusion
- [ ] Excluded from meetings, communications, or decisions
- [ ] Subjected to increased scrutiny and micromanagement
- [ ] Isolated from coworkers or ostracized
- [ ] Given impossible tasks or set up to fail

Other Adverse Actions
- [ ] Denied promotion to [Position] on [Date]
- [ ] Negative reference provided to prospective employer
- [ ] [Other: describe]

B. Timeline of Retaliation

C. Evidence of Causal Connection

The causal connection between our client's protected activity and the adverse actions is demonstrated by:

1. Temporal Proximity

The adverse actions began just [X days/weeks] after our client's protected activity. West Virginia courts recognize that close temporal proximity between protected activity and adverse action supports an inference of causation. See Mace v. Pizza Hut, Inc., 180 W. Va. 469 (1988).

2. Knowledge

The decision-makers who took adverse action against our client had knowledge of [his/her/their] protected activity.

3. Pattern of Antagonism

Following the protected activity, our client experienced a sudden shift in treatment from positive to hostile.

4. Pretext

The reasons offered by [Company Short Name] for the adverse actions are pretextual.

IV. LEGAL CLAIMS

A. West Virginia Human Rights Act - Retaliation

W. Va. Code Section 5-11-9(7)

Our client [opposed discrimination / filed a complaint / testified / participated in an investigation] and suffered retaliation as a result.

The protected conduct related to discrimination based on [identify protected class under WVHRA].

B. Harless Common Law Wrongful Discharge

As established in Harless v. First Nat'l Bank in Fairmont, 162 W. Va. 116 (1978), our client is entitled to recover for wrongful discharge in violation of public policy because:

[Select applicable theory]

• [ ] Reporting Theory: Our client was discharged for reporting illegal activity, specifically [describe the reporting and cite the public policy source].

• [ ] Refusal Theory: Our client was discharged for refusing to participate in illegal activity, specifically [describe the refusal and cite the public policy source].

• [ ] Exercise of Right Theory: Our client was discharged for exercising a statutory right, specifically [describe the right and cite the statute].

The clear and substantial public policy at issue is established by [cite specific West Virginia statute, constitutional provision, regulation, or judicial decision].

C. Workers' Compensation Retaliation

W. Va. Code Section 23-5A-1

Our client was discharged or discriminated against for [filing a workers' compensation claim / exercising rights under the Workers' Compensation Act].

D. Federal Claims (If Applicable)

[Include if federal claims are being asserted alongside West Virginia claims]

• [ ] Title VII Anti-Retaliation, 42 U.S.C. Section 2000e-3(a)
• [ ] 42 U.S.C. Section 1981 (Race-Based Retaliation)
• [ ] ADA Anti-Retaliation, 42 U.S.C. Section 12203
• [ ] ADEA Anti-Retaliation, 29 U.S.C. Section 623(d)
• [ ] FLSA Anti-Retaliation, 29 U.S.C. Section 215(a)(3)

V. DAMAGES

A. Economic Damages

1. Lost Wages (Back Pay)

2. Lost Benefits

3. Front Pay

B. Compensatory Damages

For emotional distress and other non-economic harm:

• [Describe emotional impact]
• [Describe physical manifestations]
• [Describe impact on daily life]

Compensatory damages: $[Amount]

Note: West Virginia imposes NO statutory caps on compensatory damages.

C. Punitive Damages

For willful, malicious, or egregious conduct:

Punitive damages: $[Amount]

Note: West Virginia imposes NO statutory caps on punitive damages.

D. Interest

Pre-judgment interest as provided by West Virginia law.

E. Attorney's Fees and Costs

West Virginia law provides for recovery of reasonable attorney's fees in WVHRA cases.

Estimated fees through trial: $[Amount]
Estimated costs: $[Amount]

F. Summary of Damages

VI. SETTLEMENT DEMAND

Based on the foregoing, we demand that [Company Short Name] pay $[Settlement Demand Amount] in full and final settlement of all claims arising from the unlawful retaliation against our client.

Settlement Terms

In addition to the monetary payment, settlement must include:

• [ ] Neutral Reference: [Company Short Name] will provide only dates of employment and final position
• [ ] Personnel File: Expungement of all documents related to the pretextual discipline and termination
• [ ] Non-Disparagement: Mutual non-disparagement provisions
• [ ] Confidentiality: Subject to negotiation
• [ ] Unemployment: [Company Short Name] will not contest unemployment benefits

VII. RESPONSE DEADLINE

Please respond to this demand in writing within fourteen (14) calendar days of receipt, no later than [Response Deadline Date].

Critical Deadlines:
- WV HRC 365-day filing deadline: [Date]
- Harless tort (2 years): [Date]
- EEOC filing deadline (if applicable): [Date]

If we do not receive a satisfactory response, we will file suit in [West Virginia Circuit Court, [County] County] or [United States District Court, Northern/Southern District of West Virginia] asserting:

1. Retaliation in violation of West Virginia Human Rights Act, W. Va. Code Section 5-11-9(7)
2. Common law wrongful discharge under Harless
3. Workers' compensation retaliation, W. Va. Code Section 23-5A-1 [if applicable]
4. [Additional claims as applicable]

VIII. DOCUMENT PRESERVATION

This letter constitutes formal notice of litigation. [Company Short Name] must immediately implement a litigation hold to preserve all documents and ESI relevant to our client's employment, the protected activity, and all adverse actions.

Spoliation of evidence may result in sanctions and adverse inferences under West Virginia law.

IX. CONFIDENTIALITY

This letter is a confidential settlement communication protected by West Virginia Rule of Evidence 408 and applicable state law.

We are prepared to discuss resolution of this matter at your earliest convenience. Please contact me to arrange a settlement conference.

Sincerely,

[Attorney Name]
[Title]
[Firm Name]

[Attorney Signature Block]

Enclosures:
- [ ] WV HRC Complaint (if applicable)
- [ ] EEOC Charge (if applicable)
- [ ] Right to Sue Notice (if applicable)
- [ ] Authorization to Represent

cc: [Client Name] (via email)
[File]

WEST VIRGINIA-SPECIFIC PRACTICE NOTES

Pioneer in Public Policy Exception: West Virginia was one of the earliest states to recognize the public policy exception to at-will employment in Harless (1978). The doctrine has been broadly applied.

Broad Harless Doctrine: The Harless doctrine provides robust protection for private sector employees who report or refuse to participate in illegal activity. West Virginia courts have been receptive to these claims.

No Damage Caps: West Virginia imposes no statutory caps on compensatory or punitive damages. This makes West Virginia a favorable jurisdiction for plaintiffs with substantial damages.

365-Day HRC Deadline: West Virginia provides 365 days to file with the Human Rights Commission, which is longer than the typical 180-day federal deadline.

Coal Mining and Energy Sector: West Virginia's economy includes significant coal mining and energy sector employment. Safety reporting and retaliation issues frequently arise in these industries.

Healthcare Whistleblowing: West Virginia courts have specifically protected healthcare workers who report patient safety concerns. See Birthisel v. Tri-Cities Health Servs. Corp.

Workers' Compensation Protection: West Virginia has explicit statutory protection against retaliation for filing workers' compensation claims.

Dual Track: Employees may pursue both WVHRA claims and Harless common law claims simultaneously, providing multiple avenues for relief.

Small State Considerations: West Virginia is a small state with a close-knit legal community. Consider reputational factors in settlement negotiations.

Economic Factors: West Virginia's economic conditions may affect damage calculations and jury perceptions. Be prepared to address these issues.