Appalachian Regional Health Care, Inc. v. West Virginia Human Rights Com'n, 18197

• Court: Supreme Court of West Virginia
• Writing for the Court: BROTHERTON
• Citation: 180 W.Va. 303,376 S.E.2d 317
• Parties: , 51 Empl. Prac. Dec. P 39,430 APPALACHIAN REGIONAL HEALTH CARE, INC. dba Beckley Appalachian Regional Hospital v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Anne D. Hooper.
• Docket Number: No. 18197,18197
• Decision Date: 15 December 1988

Page 317

376 S.E.2d 317 180 W.Va. 303, 51 Empl. Prac. Dec. P 39,430 APPALACHIAN REGIONAL HEALTH CARE, INC. dba Beckley
Appalachian Regional Hospital
v.
WEST VIRGINIA HUMAN RIGHTS COMMISSION and Anne D. Hooper. No. 18197. Supreme Court of Appeals of
West Virginia. Dec. 15, 1988. Syllabus by the Court

1. "After an investigating commissioner's finding of probable cause to credit a timely complaint to the West Virginia Human Rights Commission as true, and failure of conference and conciliation efforts, the commission has a statutory, nondiscretionary duty to proceed to hearing on the charge. Code, 5-11-10." Syllabus, Currey v. State of West Virginia Human Rights Commission, 166 W.Va. 163, 273 S.E.2d 77 (1980).

2. "Under West Virginia Code § 5-11-10 (1979 Replacement Vol.), the Human Rights Commission has a mandatory duty to place on its docket all complaints tendered that meet five criteria: (1) verification; (2) name and address of the respondent; (3) description of the alleged discriminatory action or practice; (4) other information as required in rules and regulations promulgated by the Commission; and (5) filing within ninety days after the alleged act of discrimination." Syl. pt. 5, Allen v. State of West Virginia Human Rights Commission, 174 W.Va. 139, 324 S.E.2d 99 (1984).

3. "Administrative agencies and their executive officers are creatures of statute and delegates of the Legislature. Their power is dependent upon statutes, so that they must find within the statute warrant for the exercise of any authority which they claim. They have no general or common-law powers but only such as have been conferred upon them by law expressly or by implication." Syl. pt. 3, Mountaineer Disposal Service, Inc. v. Dyer, 156 W.Va. 766, 197 S.E.2d 111 (1973).

4. The Human Rights Commission has no statutory authority to reopen, sua sponte, a case properly closed.

Michael T. Chaney, Kay, Casto & Chaney, Charleston, for appellant.

Regina L. Charon, Morgantown, for Anne D. Hooper.

Antoinette Eates, Asst. Atty. Gen., Charleston, for HRC.

Page 318

[180 W.Va. 304] BROTHERTON, Justice:

This proceeding involves an appeal by the Beckley Appalachian Regional Hospital (Hospital) from the September 11, 1987, order of the West Virginia Human Rights Commission, which found the Hospital unlawfully discriminated against the complainant, Anne D. Hooper, M.D. The Hospital contends that the Human Rights Commission did not have jurisdiction to enter this order since the case, along with an earlier Human Rights complaint, were closed by order dated May 23, 1979.

The complainant-respondent, Anne D. Hooper, is a physician who was first employed as chief pathologist at the Williamson Appalachian Regional Hospital in 1971. At her request, Dr. Hooper was transferred to the Beckley Appalachian Regional Hospital in 1974, where she became a staff pathologist. On January 1, 1976, Dr. Hooper was promoted to the position of chief of pathology at the Beckley Appalachian Regional Hospital by the Hospital Administrator, David Elliott. As chief of pathology, Dr. Hooper was under the control of the hospital administrator, although she had the ultimate responsibility for insuring the proper functioning and staffing of the pathology laboratory.

In the fall of 1976, Dr. Zarina Rasheed, a female pathologist working under Dr. Hooper, complained to Mr. Elliott that the pathology laboratory was not sufficiently staffed so that a pathologist was available at all times. Dr. Rasheed later testified that Dr. Hooper was frequently absent from the laboratory. ¹ The Hospital points to a memo dated December 6, 1976, wherein Dr. Hooper wrote "I cannot get overly concerned that coverage is less than ideal" as indicative of her attitude about the problem. ²

On November 8, 1976, Dr. Hooper filed her first human rights complaint against the Hospital, complaining of sex discrimination and harassment (Human Rights Commission Docket No. ES-163-77). Dr. Hooper charged that the Executive Committee and the Administration of the Hospital had ordered her to recruit someone else for the position she held. She alleged that Dr. James Yates told her that the Executive Committee wanted her to step down as director of the pathology laboratory so that a man could be hired. ³ Dr. Yates denied making that statement.

In late November or early December of 1976, Dr. Hooper discussed with the Administrator her desire to become a member of the Red Cross Advisory Board. In a memo to Dr. Hooper dated December 6, 1976, Mr. Elliott advised Dr. Hooper that she should not accept an appointment to the Red Cross Advisory Board due to the workload at the pathology laboratory. ⁴ Dr. Hooper admitted that she received the memorandum, but attended the meeting despite his instructions.

By letter to the complainant dated December 10, 1976, Mr. Elliott terminated Dr. Hooper's employment at the Hospital. In the letter, Mr. Elliott cited the complainant's unscheduled absences and her disregard of his instructions as reasons for the termination. ⁵ Upon the termination of Dr. Hooper's employment, Dr. Zarina Rasheed, a female pathologist, was appointed acting chief of pathology at the Hospital. Dr. Rasheed became the chief of pathology after she received her Board Certification. She currently holds that position.

Page 319

[180 W.Va. 305] On December 23, 1976, the complainant filed a second human rights complaint against the Hospital (Human Rights Commission Docket No. ES-216-77). She specifically alleged that the termination of her employment on December 10, 1976, was in retaliation of the sex discrimination complaint filed in November of 1976.

On November 16, 1977, the Human Rights Commission issued an initial determination finding probable cause with regard to the second complaint. However, no further proceedings were held with regard to either complaint. Thereafter, by order dated May 23, 1979, the Human Rights Commission stated that:

Upon a review of all of the evidence gathered by the Commission staff during the investigation, the Investigating Commissioner was of the opinion that the circumstances did not warrant taking these cases to public hearing and recommended same to the full Commission. On May 12, 1979, the West Virginia Human Rights Commission concurred with the Investigating Commissioner's recommendation. Therefore it is ORDERED that the above-styled administrative case be closed and dismissed.

Dr. Hooper did not file an appeal to this order, nor did she request a rehearing. ⁶

There was no further action in either claim until May 1, 1985, when the Human Rights Commission entered an order stating that "it appears that the above styled cases were in fact erroneously closed and should now be reopened." The order reopened the two human rights complaints without request from or notice to either party.

The Hospital...