Brammer v. West Virginia Human Rights Com'n

• Decision Date: 31 May 1990
• Docket Number: Nos. 19434,19437,s. 19434
• Court: West Virginia Supreme Court
• Parties: Cherylann E. BRAMMER v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Tidewater Grill, and TIDEWATER GRILL v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Cherylann E. Brammer.

Page 340

394 S.E.2d 340

183 W.Va. 108

Cherylann E. BRAMMER v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Tidewater Grill, and TIDEWATER GRILL v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Cherylann E. Brammer.

Nos. 19434, 19437.

Supreme Court of Appeals of

West Virginia.

May 31, 1990.

Syllabus by the Court

1. "In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant's employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation) (4) that complainant's discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation." Syl. pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986).

2. "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), questioned on another point, Independent Fire Co. No. 1 v. West Virginia Human Rights Commission, 180 W.Va. 406, 409, 376 S.E.2d 612, 615 (1988).

3. "In the absence of evidence to the contrary public officers will be presumed to have properly performed their duties and not to have acted illegally, but regularly and in a lawful manner." Syl. pt. 2, State ex rel. Staley v. County Court, 137 W.Va. 431, 73 S.E.2d 827 (1952).

G. Nicholas Casey, Jr., Michael J. Del Giudice, and Claude S. Smith, III, Lewis, Ciccarello & Friedberg, Charleston, for Tidewater Grill.

Dan L. Hardway, Charleston, for Cherylann E. Brammer.

PER CURIAM:

Pursuant to W.Va.Code, 5-11-11(a) [1987, 1989], both the complainant, Cherylann E. Brammer, and the former employer, Tidewater Grill ("the employer"), have filed these two direct appeals to this Court for review of the final order of the West Virginia Human Rights Commission ("the Commission"). The complainant is aggrieved by the Commission's reduction of the back-pay and incidental-damage awards recommended by the hearing examiner. The employer is aggrieved by the Commission's finding of liability. We believe that there is substantial evidence on the whole record to support the findings of the Commission, and, accordingly, we affirm in both appeals.

I

The complainant was hired as a food server at the employer's restaurant, in August, 1985. She subsequently was promoted to the position of assistant manager in charge of the employer's dining room operations. The complainant was not informed by her supervisors of any significant, on-going problems with her job performance.

During her employment with the employer, the complainant witnessed improper sexual advances over several months by two male assistant managers (a Mr. Lusk and a Mr. Thompson) towards other female employees. The complainant herself was also a victim of improper sexual advances by the employer's management personnel. As a result of the complainant's report to her immediate supervisor, whose title was general manager, the employer discharged an assistant manager (Mr. Lusk), in August, 1986, for sexual harassment. Immediately thereafter, the general manager recommended to his supervisor, the vice-president of operations, that the complainant be discharged because she "did not get along with" the two male assistant managers who had been sexually harassing employees at the employer's restaurant. The complainant was not, however, discharged at that time.

Subsequently, in November, 1986, the complainant reported to the general manager that the second male assistant manager who had been sexually harassing several of the female employees (Mr. Thompson) was continuing to harass a particular food server. Unlike in August, 1986, the general manager did not inform the vice-president of operations about this sexual harassment. ¹ Instead, the vice-president of operations learned of this sexual harassment from the victim thereof and from another employee, a boyfriend of another food server who also had been sexually harassed by Mr. Thompson. These two persons informed the vice-president of operations about the sexual harassment upon the encouragement of the complainant, after they had asked her advice on how to end the sexual harassment.

One of the food servers who had been sexually harassed, and not the complainant, had discussed the sexual harassment with the employees in general.

After investigating the matter the employer's vice-president of operations discharged three of the managerial personnel: (1) the male general manager, on January 5, 1987, for, primarily, his failure to handle the sexual harassment matter; (2) the male assistant manager (Mr. Thompson), on January 6, 1987, for the sexual harassment by him; and (3) the complainant, on January 7, 1987, for "spreading rumors" about the sexual harassment.

The complainant later timely filed a complaint with the West Virginia Human Rights Commission, alleging that she had been unlawfully discharged in retaliation for her efforts at ending the sexual harassment, in violation of W.Va.Code, 5-11-9(i)(3) [1981]. ² The Commission's hearing examiner found the employer liable as alleged and awarded, among other things, back pay in the amount of $31,231.94 and "incidental" damages for humiliation, etc., in the amount of $15,000.00.

The Commission affirmed the hearing examiner's recommended decision as modified. Without explanation, the Commission reduced the back-pay award to $14,800.00 and the incidental-damage award to $2,500.00. The complainant had been paid by the employer at the rate of $280.00 per week immediately prior to her discharge (with expected raises of $15.00 per week every four months), and had been discharged about one year and eight months at the time of the hearing examiner's decision and about two years and nine months at the time of the Commission's decision.

The complainant argues before this Court that the Commission erred in reducing the amount of monetary relief. The employer has also appealed, arguing that liability is not supported by the evidence.

II

Addressing first the liability issue, we conclude that the guiding principles are set forth in syllabus point 4 of Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986):

In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant's employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation) (4) that complainant's discharge...