Conrad v. ARA Szabo

• Decision Date: 05 December 1996
• Docket Number: No. 23304,23304
• Citation: 480 S.E.2d 801,198 W.Va. 362
• Court: West Virginia Supreme Court
• Parties: , 76 Fair Empl.Prac.Cas. (BNA) 995 Belinda CONRAD, Plaintiff Below, Appellant, v. ARA SZABO, The West Virginia Regional Jail and Correctional Facility Authority and Edward Rudloff, Defendants Below, Appellees.

Page 801

480 S.E.2d 801

198 W.Va. 362, 76 Fair Empl.Prac.Cas. (BNA) 995

Belinda CONRAD, Plaintiff Below, Appellant, v. ARA SZABO, The West Virginia Regional Jail and Correctional Facility Authority and Edward Rudloff, Defendants Below, Appellees.

No. 23304.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1996.

Decided Dec. 5, 1996.

[198 W.Va. 366] Syllabus by the Court

1. "Although the plaintiff has the ultimate burden of proving elements of the claim of discrimination by a preponderance of the evidence, the showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is de minimis. In determining whether the plaintiff has met the de minimis initial burden of showing circumstances giving rise to an inference of discrimination, the function of the circuit court on a summary judgment motion is to determine whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the circuit court itself to decide what inferences should be drawn." Syllabus Point 4, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995).

2. "An employee may state a claim for hostile environment sexual harassment if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment." Syllabus Point 7, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995).

3. "To establish a claim for sexual harassment under the West Virginia Human Rights Act, W. Va.Code § 5-11-1, et seq., based upon a hostile or abusive work environment, a plaintiff-employee must prove that (1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create an abusive work environment; and (4) it was imputable on some factual basis to the employer." Syllabus Point 5, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995).

4. An employer's liability in a case where the source of the sexual harassment does not include management personnel depends on its knowledge of the offending conduct, the effectiveness of its remedial procedures, and the adequacy of its response. An employer with effective guidelines for prohibiting and dealing with sexual harassment is not liable unless the employer had knowledge of the misconduct or reason to know of the misconduct.

5. Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with the West Virginia Human Rights Act, would be aware of the conduct.

6. " ' "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 7. "Protected activity" under the West Virginia Human Rights Act includes opposition to a practice that the plaintiff reasonably and in good faith believes violates the provisions of the Act. This standard has both an objective and a subjective element. The employee's opposition must be reasonable in the sense that it must be based on a set of facts and a legal theory that are plausible. Further, the view must be honestly held and be more than a cover for troublemaking. Thus, even if there was no actionable sexual harassment, the plaintiff could still have been engaged in a protected activity if she complained about being sexually harassed.

                [198 W.Va. 367] 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).'   Syl. pt. 1, Brammer v. Human Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990)."   Syllabus Point 10, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995)
                

8. W. Va.Code § 5-11-9(1) (1992) prohibits any person who is an employer from discriminating against any "individual" regarding his or her employment opportunities irrespective of whether the individual is an employee of or seeks work with that employer.

9. The term "person," as defined and utilized within the context of the West Virginia Human Rights Act, includes both employees and employers.

Harley O. Staggers, Jr., Staggers & Staggers, Martinsburg, for Appellant.

Cheryl H. Wolfe, Christopher K. Robertson, Jackson & Kelly Martinsburg, for Appellee ARA Szabo.

Charles F. Printz, Jr., Kimberly S. Croyle, Bowles, Rice, McDavid, Graff & Love, Martinsburg, for Appellees West Virginia Regional Jail and Correctional Facility Authority and Edward Rudloff.

CLECKLEY, Justice:

Plaintiff Belinda Conrad appeals the orders of the Circuit Court of Berkeley County granting motions to dismiss the West Virginia Regional Jail and Correctional Facility Authority and Edward Rudloff under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, and an order granting summary judgment to ARA Szabo, respectively, in this action alleging violations of the West Virginia Human Rights Act. For the reasons stated, we reverse in part, and affirm in part. ¹

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff Belinda Conrad was hired by Canteen Corporation in September, 1991, to work as a cook supervisor ² in the kitchen at the Eastern Regional Jail (the Jail). In August, 1992, ARA Szabo Services, Inc. (ARA Szabo) took over the Jail's food services contract from Canteen Corporation. During the transition period, Sharon Kees, the kitchen manager and supervisor to the plaintiff, was told by ARA Szabo district manager Dennis Hatcher that the Jail did not want ARA Szabo to hire the plaintiff. Ms. Kees, however, expressed her belief that the plaintiff was a good worker, and she was subsequently allowed to retain plaintiff as an employee.

Prior to the defendant ARA Szabo taking over the food services contract, Ms. Kees informed Mr. Hatcher that the plaintiff had been the subject of harassment by Jail employees. At a meeting with Ms. Kees and the plaintiff before the changeover, Mr. Hatcher stated that the Jail administration did not want the plaintiff to be hired by ARA Szabo because it felt she was not qualified for The plaintiff testified that harassing behavior directed at her by Jail employees increased after ARA Szabo assumed control of the kitchen. She testified that several incidents of a sexual nature occurred. For instance, a Corrections Officer Franklin often "groped" himself in the genital area while talking with the plaintiff. According to the plaintiff, each time he did this she told him to stop and he responded by commenting, "You like it when I do this," or by asking her if she "wanted some of that." The plaintiff testified that he also told her Officer Franklin would meet her wherever she chose and he would show her what a "real man" could do for her. A couple of times Officer Franklin came to the kitchen to get dinner and made comments such as, "Let's you and me go do the nasty." On one occasion, Officer Franklin asked her specifically to meet him to "make love all night" at the substation of the fire department for which they both volunteered. The plaintiff testified that she responded by telling him that he repulsed her. She reported Officer Franklin's behavior to her supervisor, Ms. Kees.

[198 W.Va. 368] her job. However, according to the plaintiff's testimony, Mr. Hatcher told the plaintiff that he would "straighten the matter out" and that he would not tolerate sexual harassment of any kind.

In approximately March, 1993, during a bad snowstorm, a corrections officer by the name of Broadus was asked by the Jail watch commander to drive the plaintiff home after her shift. The plaintiff testified that Broadus drove her home in a van belonging to the Jail and when they had almost reached her house he said, "What's to stop me from pulling the van over and giving you what I know you want?" The plaintiff stated that she was shocked by the officer's question and demanded to be let out of the van immediately. The plaintiff complained to her supervisor the next day and filled out an incident report. ³ She specifically asked her supervisor a few days later to speak with Jail Administrator Jerry Dietrick about the incident. Plaintiff also asserted that on an occasion when she was making a sandwich at a table in the kitchen, an Officer Castaldo, with several witnesses present, approached her from behind, pushed her into the table with his whole body against hers and whispered, "That feels good."

The plaintiff also complained of several incidents of non-sexual behavior by Jail employees. Several times a Sergeant Ward delivered the inmate trustees late for breakfast preparation, which resulted in breakfast being served late on the plaintiff's shift. On the morning of January 31, 1992, Sergeant Ward and another officer would not open the security door for the plaintiff when she arrived at work, and she was forced to wait five to seven minutes until someone else noticed her and let her in. On at least one occasion, Sergeant Ward ordered the plaintiff to break kitchen rules and allow his trustees to eat more food than they were entitled. There were times when Jail employees did not respond to the plaintiff's call to lock the kitchen at the end of her shift. The plaintiff testified that...