Chico Dairy Co., Store No. 22 v. West Virginia Human Rights Com'n, 18317

CourtSupreme Court of West Virginia
Citation181 W.Va. 238,382 S.E.2d 75
Docket NumberNo. 18317,18317
Parties, 51 Empl. Prac. Dec. P 39,423, 2 A.D. Cases 347 CHICO DAIRY COMPANY, STORE NO. 22 v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Terrah Elynn Alfred.
Decision Date27 June 1989

Syllabus by the Court

1. The rule of the West Virginia Human Rights Commission, 6 W.Va.Code of State Rules § 77-1-2.7 (1982), defining a "handicapped person," for purposes of the West Virginia Human Rights Act, to include a person who does not in fact have a "handicap," as defined by W.Va.Code, 5-11-3(t), as amended, but who "is regarded as having such a handicap," is invalid. That rule is a "legislative rule" under W.Va.Code, 29A-1-2(d), as amended, but was not submitted to the legislative rule-making review committee for its approval, as required by W.Va.Code, 29A-3-9 to 29A-3-14, as amended.

2. "Rules and Regulations of the West Virginia Human Rights Commission must faithfully reflect the intention of the legislature; when there is clear and unambiguous language in a statute, that language must be given the same clear and unambiguous force and effect in the Commission's Rules and Regulations that it has in the statute." Syl. pt. 4, Ranger Fuel Corp. v. West Virginia Human Rights Commission, --- W.Va. ----, 376 S.E.2d 154 (1988).

3. It is an unlawful discriminatory practice under the West Virginia Human Rights Act for an employer to refuse to offer a job promotion to an employee on account of the person's "handicap," as defined by W.Va.Code, 5-11-3(t), as amended. However, where a complainant never alleges, and the evidence does not indicate, that the discrimination was on account of the complainant's "handicap," as statutorily defined, but solely because the employer regarded the complainant's physical appearance to be unacceptable, the conduct of the employer is not actionable under the clearly restrictive definition of "handicap" contained in the West Virginia Human Rights Act.

Charles G. Brown, Atty. Gen., Charleston, Barbara E. Fleischauer, Sp. Asst. Atty. Gen., Morgantown, for appellants.

Jackson & Kelly, Charleston, for Chico Dairy Co.

McHUGH, Justice:

This appeal is by the West Virginia Human Rights Commission and by a complainant before that body, both of whom assert here a violation of the West Virginia Human Rights Act, W.Va.Code, 5-11-1 to -19, as amended. Presented for our review is a final order of the Circuit Court of Kanawha County, West Virginia. The circuit court, upon an appeal by the complainant's former employer, reversed a decision of the West Virginia Human Rights Commission in favor of the complainant. We conclude that the circuit court correctly applied the statute to the claim that there had been an unlawful discrimination in this case based upon an alleged "handicap." Accordingly, we affirm the circuit court's ruling that there was, as a matter of law, no violation of the Act as alleged in this case. We reverse the circuit court's ruling that a remand to the West Virginia Human Rights Commission is appropriate in this case to allow for investigation and conciliation of the handicap issue.

A. The Facts

The complainant, Ms. Terrah Elynn Alfred, had been employed, as an assistant manager, by Chico Dairy Company (the "employer") at its Chico Dairy Mart Store No. 22 in Fairmont, West Virginia. The complainant is blind in her left eye. That eye was removed when she was an infant to abate cancer. She wears a prosthesis, or artificial, replacement eye. The socket around that eye is somewhat sunken or hollow.

As the assistant manager of a Chico Dairy Mart the complainant's duties included opening the store, getting the cash registers ready, preparing deposits, keeping track of inventory, ordering goods from vendors and dealing with customers and the vendors. The manager of a Chico Dairy Mart store performs essentially the same duties as the assistant manager and also has the final responsibility for running the affairs of the store, including supervising, hiring and firing subordinate personnel.

On each of two separate occasions, the first time in July, 1980 and the second time on July 24, 1981, a male, part-time clerk with a Chico Dairy Mart who had less experience than the complainant was promoted to store manager at her store, instead of the complainant. The complainant was at least as well qualified as the first of these men and undoubtedly better qualified than the second for the promotion to store manager.

The employer employed many women as managers of its various stores. One of these female store managers, a Ms. Vandergrift, who had previously been the store manager at the complainant's store, testified that the employer's area supervisor, who is responsible for selecting store managers, told Ms. Vandergrift, in August, 1980, that the complainant would not be his choice for a store manager's position because of the complainant's noticeable "facial deformity." According to Ms. Vandergrift, he also stated that it would not be wise to promote the complainant to the position of store manager, strictly on the basis of her physical appearance, because, in his opinion, the complainant's "facial deformity" was not something a vendor or customer "would like to encounter." 1

After being "passed over" the second time for a promotion to the position of store manager, the complainant was so upset that she, on July 25, 1981, submitted her resignation from employment. Her resignation was effective on August 1, 1981.

B. Proceedings before the Commission

The complainant thereafter timely filed a complaint against the employer with the West Virginia Human Rights Commission (the "Commission"), alleging that her resignation was a constructive discharge based upon unlawful discrimination on account of her sex. Much later, but as soon as she learned from Ms. Vandergrift about the area supervisor's statements concerning his opinion of the complainant's physical appearance, the complainant amended her complaint to add an allegation of unlawful discrimination against her by the employer on account of her alleged "handicap," expressly referring to the manner in which the employer regarded her physical appearance, not to her blindness in one eye. In her amended complaint the complainant stated that she was able to perform the job, and she did not mention any actual handicap for which the employer should have made reasonable accommodations.

After an evidentiary hearing, a hearing examiner for the Commission found that there had been no unlawful discrimination by the employer against the complainant on account of her sex. On the other hand, the hearing examiner found that there had been an unlawful discrimination by the employer against the complainant on account of her "handicap." The "handicap" was, not her blindness in one eye, but the perception of the employer's area supervisor that the complainant's "facial deformity" was "unsavory and unacceptable" for a store manager who dealt with vendors and customers. It was this perception which was the reason that the complainant was not promoted to the position of store manager. The hearing examiner expressly found that the complainant's "facial deformity" in no way affected her ability to perform the duties of a store manager in a satisfactory manner.

Having found an employment-related discrimination on account of what he believed was a "handicap," the hearing examiner concluded that the employer had violated the West Virginia Human Rights Act. 2 Accordingly he awarded back pay and compensatory emotional damages (the latter in the amount of $1,000.00) and ordered the employer to rehire the complainant, with the additional requirement of placing her in the next available store manager's position after some "refresher" training.

The Commission subsequently adopted the hearing examiner's findings of fact and conclusions of law, except that the Commission ordered a recalculation of the amount of back pay. The parties later stipulated that the amount of back pay would be $49,223.70, if the conclusion that a violation had occurred was ultimately upheld.

C. Review by the Circuit Court

Upon appeal by the employer the Circuit Court of Kanawha County reversed and remanded. It held, inter alia, that the Commission's finding of discrimination on account of a "handicap" was erroneous as a matter of law because the statute, W.Va.Code, 5-11-3(t) [1981], requires an actual, not merely a perceived, physical or mental impairment. 3 The circuit court, concerned with procedural fairness to the employer, remanded the case for investigation and attempts at conciliation with respect to the statutorily defined "handicap" issue, for neither of those prehearing procedures had occurred on that issue; instead, the "perceived handicap" issue, due to the timing of the addition of that issue, was administratively handled initially at the evidentiary hearing.

The Commission and the complainant then prosecuted this appeal.

A. The Commission's Rule on Perceived Handicaps

According to W.Va.Code, 5-11-2 [1981], "[i]t is the public policy of the state of West Virginia to provide all of its citizens equal opportunity for employment, ... Equal opportunity in the area [ ] of employment ... is hereby declared to be a human right or civil right of all persons without regard to ... blindness or handicap." Nonetheless, W.Va.Code, 5-11-3(i), as amended, provides that "[t]he term 'unlawful discriminatory practices' includes only those practices specified in section nine of this article[,]" referring to W.Va.Code, 5-11-9 [1981], see supra note 2 (emphasis added above to section 3(i)). The applicability of W.Va.Code, 5-11-9 [1981] with respect to a person with a "handicap" depends, in part, upon the definition of "handicap," see supra note 3.

Effective formally on August 1, 1982, the Commission promulgated so-called "interpretive rules" on discrimination against the handicapped. 6 W.Va.Code of State Rules §§ 77-1-1 to...

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