Bishop Coal Co. v. Salyers

• Decision Date: 16 May 1989
• Docket Number: No. 18138,18138
• Citation: 181 W.Va. 71,380 S.E.2d 238
• Court: West Virginia Supreme Court
• Parties: , 69 Fair Empl.Prac.Cas. (BNA) 583, 53 Empl. Prac. Dec. P 39,880 BISHOP COAL COMPANY v. Brenda SALYERS and The West Virginia Human Rights Commission.

Page 238

380 S.E.2d 238

181 W.Va. 71, 69 Fair Empl.Prac.Cas. (BNA) 583,

53 Empl. Prac. Dec. P 39,880

BISHOP COAL COMPANY v. Brenda SALYERS and The West Virginia Human Rights Commission.

No. 18138.

Supreme Court of Appeals of West Virginia.

May 16, 1989.

Syllabus by the Court

1. " 'West Virginia Human Rights Commission's findings of fact should be sustained by reviewing courts if they are supported by substantial evidence or are unchallenged by the parties.' Syl. pt. 1, West Virginia Human Rights Commission v. United Transportation Union, Local 655, 167 W.Va. 282, 280 S.E.2d 653 (1981)." Syl. pt. 4, State v. Logan-Mingo Area Mental Health Agcy., 174 W.Va. 711, 329 S.E.2d 77 (1985).

2. Our original authorization in Human Rights Commission v. Pearlman Rlty. Agcy., 161 W.Va. 1, 239 S.E.2d 145 (1977) of damages for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity, contemplated only "incidental" awards. We approved $1,000 as an incidental award for such damages. That figure may be adjusted for inflation, but the Commission must be aware of its jurisdictional limitations because awarding a higher amount impinges upon a defendant's constitutional right to trial by jury.

3. When the relief sought in a human rights action is primarily equitable, "reasonable attorneys' fees" should be determined by (1) multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate--the lodestar calculation--and (2) allowing, if appropriate, a contingency enhancement. The general factors outlined in Syllabus Point 4 Aetna Cas. & Sur. Co. v. Pitrolo, 176 W.Va. 190, 342 S.E.2d 156 (1986) should be considered to determine: (1) the reasonableness of both time expended and hourly rate charged; and, (2) the allowance and amount of a contingency enhancement.

4. When a complainant sets forth distinct causes of action so that the facts supporting one are entirely different from the facts supporting another, and then fails to prevail on one or more such distinct causes of action, attorneys' fees for the unsuccessful causes of action should not be awarded.

Robert M. Steptoe, Jr., Steptoe & Johnson, Clarksburg, Richard J. Klein, Consolidation Coal Co., Pittsburgh, Pa., Steven P. McGowan, Steptoe & Johnson, Charleston, for appellant.

Betty Jean Hall, Dumfries, for appellee.

NEELY, Justice:

We granted this appeal to explore two issues of substantial concern in the administration of the West Virginia human rights law. The first of these issues is a review of our holdings in Human Rights Commission v. Pauley, 158 W.Va. 495, 212 S.E.2d 77 (1975) and Human Rights Commission v. Pearlman Rlty. Agcy., 161 W.Va. 1, 239 S.E.2d 145 (1977), which allowed the West Virginia Human Rights Commission to award incidental "damages when warranted by the evidence, such award being always subject to judicial review." Pauley 158 W.Va. at 502, 212 S.E.2d at 80. The second issue concerns the appropriate standards to be applied by the West Virginia Human Rights Commission and the courts in awarding attorneys' fees to prevailing claimants in discrimination cases.

I.

Brenda Salyers, a female employee of Bishop Coal Company, filed a complaint with the West Virginia Human Rights Commission in 1981 alleging gender-based harassment, gender-based job discrimination, and gender-based discrimination in her training opportunities. After two hearings before a hearing examiner, the commission initially declined to follow the examiner's recommendation and dismissed the complaint in its entirety. Thereafter, however, upon complainant's motion to reconsider, the commission did reconsider and entered an award for $7,500 as compensatory damages for "mental anguish," $21,225 in attorney's fees, and $1,875.64 in related legal expenses. Bishop Coal appealed directly to this Court under W.Va.Code, 5-11-13 [1987].

In 1981, Ms. Salyers bid for a vacant job as a scoop operator in conformity with the terms of the coal industry labor contract. Ms. Salyers was not awarded the job, ostensibly because no foreman could vouch for her ability to operate a scoop. She protested to the employer that she had the necessary skill and the employer then arranged a test. Ms. Salyers admits that she didn't do very well during the test, but she nonetheless filed a contract grievance. During arbitration of that grievance the parties agreed to another test. The second test was also not very satisfactory, but there was substantial evidence that during both tests the equipment Ms. Salyers was asked to use was not in perfect operating condition. Furthermore, after the second test Ms. Salyers was allowed to operate the scoop for the rest of the shift.

The commission's decision in Ms. Salyers' favor was not based upon her surpassing competence as a scoop operator when she bid for the job. Rather, the commission based its decision upon three conclusions amply supported by the evidence: (1) operating a scoop is not a particularly difficult job to learn; (2) a male employee with minimal training was assigned to an identical job without testing; and (3) no male had ever been tested before being assigned to the job of scoop operator.

A representative sample of the testimony during complainant's case-in-chief was that of complainant's witnesses, Mr. Smith, Mr. Sheets and Mr. Houchins, that they had learned to operate a scoop in fifteen minutes. The employer countered, offering as witnesses Mr. Noel, Mr. Woods and Mr. Moorefield, all qualified scoop operators, who testified that it had taken them months to learn how properly to operate a scoop. On surrebuttal, Mr. Sheets then acknowledged that perhaps it had, indeed, taken half a shift for him to learn how to operate a scoop rather than fifteen minutes.

The commission specifically found that three to four months before complainant's bid, the employer had promoted a male employee, who possessed little or no training or experience, to the position of scoop operator. This male employee was not tested or otherwise required to demonstrate his proficiency on the scoop, and the male employee was not a fully trained operator when complainant entered her bid and submitted to the tests. In fact, the employer admitted that the male employee in question was still being given on-the-job training.

The employer introduced evidence that the complainant was not qualified to operate the scoop, and that on occasion male employees had been tested for jobs involving equipment operation. Thus the evidence on the basic issue of whether Ms. Salyers was accorded disparate treatment because of her gender was in conflict. Upon such a record, however, we cannot say that the commission's decision in Ms. Salyers' favor concerning discrimination was "clearly wrong in view of the reliable, probative and substantial evidence on the whole record." Syl. pt. 5, Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985). In Syl. pt. 4 of Logan-Mingo we said:

West Virginia Human Rights Commission's findings of fact should be sustained by reviewing courts if they are supported by substantial evidence or are unchallenged by the parties. Syl. pt. 1, West Virginia Human Rights Commission v. United Transportation Union, Local 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).

Accordingly, we affirm the commission's decision that Ms. Salyers was the victim of gender-based discrimination and we affirm the commission's award of $400 back pay that both parties agree Ms. Salyers would have earned had her original bid for the job been accepted.

II.

We now must turn our attention to a far more troubling area, namely the commission's award of $7,500 in compensatory damages for mental anguish. The employer challenges this award on the grounds that there was no evidence of mental anguish in the record beyond the complainant's testimony that: "... I came into work and [the job] was posted 'no eligible bidder'. And that upset me...." In the hearing examiner's original recommended decision, the compensatory damages at issue here were referred to as "incidental" damages, and in the hearing examiner's amended recommended decision they were referred to as "psychic" damages.

A.

In the original case upon which the implied power of the Human Rights Commission to award incidental, monetary damages is based, Human Rights Commission v. Pauley, supra, the two syllabus points were:

1. Under the authority granted by the Human Rights Act, as provided in W.Va.Code, 1931, 5-11-1 et seq., as amended, the Human Rights Commission may make an award of monetary damages to a victim of unlawful discrimination as defined in that Act.

2. Under the provisions of the Human Rights Act compensatory damages may be awarded only upon proof of monetary loss.

In Pauley, the commission found Mrs. Pauley guilty of discrimination and awarded the complainant in that case damages in the amount of $480 as compensation for time and effort expended in finding suitable housing; $100 as compensation for embarrassment and loss of personal dignity; and, $100 as exemplary damages.

Ironically, although Pauley established the authority of the Human Rights Commission to award incidental damages, we reversed the award of damages in that case, saying:

Compensatory damages may be awarded by the commission only upon proper proof of monetary loss. No such loss was shown in this case.

Id. 158 W.Va. at 503, 212 S.E.2d at 81.

In our later case of Human Rights Commission v. Pearlman Rlty. Agcy., supra, the Court's single syllabus point expanded the authority granted in Pauley and said:

The West Virginia Human Rights Commission as part of its cease and desist orders may award to complainant incidental damages as compensation for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity, without proof of monetary loss. W.Va. Code, 5-11-8. [Emphasis added].

In Pearlman, the Human Rights Commission found that the ...