Davidson v. Shoney's Big Boy Restaurant
| Citation | 380 S.E.2d 232,181 W.Va. 65 |
| Decision Date | 21 April 1989 |
| Docket Number | No. 18669,18669 |
| Parties | , 53 Empl. Prac. Dec. P 39,947, 6 A.D. Cases 1035 Kim DAVIDSON v. SHONEY'S BIG BOY RESTAURANT, the City of Charleston Human Rights Commission, et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "When a provision of a municipal ordinance is inconsistent or in conflict with a statute enacted by the Legislature the statute prevails and the municipal ordinance is of no force and effect." Syllabus Point 1, Vector Co. v. Board of Zoning Appeals, 155 W.Va. 362, 184 S.E.2d 301 (1971).
2. In deciding whether an employee poses a serious threat to her personal safety, the employer must show a reasonable probability of a materially enhanced risk of substantial harm to the employee based on a consideration of the job requirements in light of the employee's handicap, and the employee's work and medical history.
3. As a general rule, to satisfy the standard of a serious threat to one's health or safety, the employer must establish that it relied upon competent medical advice that there exists a reasonably probable risk of serious harm.
Carter Zerbe, Charleston, for Kim Davidson.
Fred F. Holroyd, Holroyd & Yost, Charleston, for Shoney's Big Boy.
No appearance for city of Charleston.
In this appeal, we are asked to determine if the discharge of a person having petit mal epilepsy was a violation of the City of Charleston's human rights ordinance. The Circuit Court of Kanawha County concluded that the discharge was warranted because the test was whether there was a reasonable possibility of injury to herself or others. We disagree as we believe the more appropriate test is whether there was a reasonable probability of injury to herself or others. Moreover, we believe that under the evidence, no such showing has been made under either test.
An excellent summary of the extent and nature of epilepsy was set out by the New Jersey Supreme Court in Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 367-68, 541 A.2d 682, 684 (1988):
Many of the basic facts in this case are not disputed. Kim Davidson is married and was twenty-four years of age at the time of her discharge in December, 1982. She has a high school education. Between 1978 and 1980, she worked at the Court Restaurant in Lewisburg, West Virginia, where she did a variety of tasks, i.e., cutting vegetables, tending the salad bar, and clearing and washing dishes.
In 1981, she worked as a salad bar attendant at a Bonanza restaurant in Lewisburg. In February, 1982, she was hired as a salad bar attendant at the Shoney's restaurant in Lewisburg. At Shoney's, she received on-the-job training, passed a written test, and successfully completed her ninety-day probationary period of employment. In August, 1982, she transferred to the Shoney's restaurant in Charleston, where she continued working as a salad bar attendant.
Her duties as a salad bar attendant are basically confined to setting the bar up in the morning as a breakfast bar, keeping it supplied, and changing it to a salad bar for lunch and dinner. There is no evidence that during her work as a salad bar attendant her condition ever caused her to drop, spill, or break things. Her former employer at the Court Restaurant in Lewisburg testified that her work was not affected by her condition and that she did not miss work because of it.
Mrs. Davidson was terminated on December 12, 1982, after she had a seizure early in the morning shortly before the restaurant opened. She felt the seizure coming on and was able to sit down until the seizure passed in a minute or two. There is also no substantial disagreement that she suffered from a mild form of epilepsy which involves relatively brief seizures. Even though she takes medication for her seizures, they occur on an average of four to six times a month. It appears that most of the time, Mrs. Davidson is able to tell when a seizure is imminent and, by sitting down, is able to pass through the seizure which lasts only a minute or so.
Several Shoney's employees testified that they had seen her fall during a seizure and strike her head. It does not appear that she suffered any injury. While these employees expressed concern over her condition as being a potential danger to herself or others, they gave no specific instance where harm had occurred. Several of Shoney's employees stated that Mrs. Davidson indicated the reason for some of her seizures was that she did not have sufficient funds to maintain her medication. 1 Mrs. Davidson denies that she had ever received any injury at work as a result of a seizure.
Resolution of this case, however, does not turn so much on the facts, as on the legal standard applied. The circuit court was of the view that "[t]he [Charleston] Human Rights Commission has the discretion to adopt its own standards in interpreting its own ordinance ... [and it] has chosen to apply a 'reasonable possibility of injury' standard."
This conclusion is not supported by our law. We begin with the traditional statement that municipal corporations are creatures of the State, Alderson v. City of Huntington, 132 W.Va. 421, 52 S.E.2d 243 (1949), and their powers are as stated in Syllabus Point 2 of Sharon Steel Corp. v. City of Fairmont, 175 W.Va. 479, 334 S.E.2d 616 (1985), appeal dismissed, 474 U.S. 1098, 106 S.Ct. 875, 88 L.Ed.2d 912 (1986):
" '
Furthermore, where both the State and a municipality enact legislation on the same subject matter, it is generally held that if there are inconsistencies, the municipal ordinance must yield. Justice Caplan spoke to this point in Syllabus Point 1 of Vector Co. v. Board of Zoning Appeals, 155 W.Va. 362, 184 S.E.2d 301 (1971):
"When a provision of a municipal ordinance is inconsistent or in conflict with a statute enacted by the Legislature the statute prevails and the municipal ordinance is of no force and effect."
In Vector Co., a municipal zoning ordinance required a four-fifths vote to obtain an exception to the zoning ordinance, whereas a majority vote was sufficient under the state statute. In holding that the state law prevailed, we also stated: "That municipal ordinances are inferior in status and subordinate to legislative acts is a principle so fundamental that citation of authorities is unnecessary." 155 W.Va. at 367, 184 S.E.2d at 304.
A somewhat analogous issue is found in Cogan v. City of Wheeling, 166 W.Va. 393, 274 S.E.2d 516 (1981), where we found that the City of Wheeling's human rights ordinance conflicted with the state statute. We recognized initially that the city's power to enact a local human rights ordinance was a result of the delegation of that authority under W.Va.Code, 5-11-12. We then stated "the general rule [is] that a municipal ordinance exercising a power granted to it by a statute must not conflict with the state statute." 166 W.Va. at 395, 274 S.E.2d at 518. (Citations omitted).
At issue in Cogan was a portion of the city's ordinance which the trial court construed as giving city council the power to fire the director of the local human rights commission. We pointed out that such an interpretation would be out of harmony with the state statute, W.Va.Code, 5-11-12(c), which authorizes "[t]he local commission ... to appoint such employees and staff, as it may deem necessary, to fulfill its purpose."
The basic rationale for such a rule is apparent. Where both the State and a municipality are authorized to regulate a matter, it would be illogical to permit the two entities to adopt different standards of regulation unless the statute delegating the authority to the municipality plainly and specifically authorized such a divergence.
In the present case, the finding that the possibility of an injury is sufficient to preclude employment is at odds with our construction of the state statute from which the municipality derives its authority.
In Ranger Fuel Corp. v. West Virginia Human Rights Comm'n, 180 W.Va. 260, 376 S.E.2d 154 (1988), we discussed the issue of the employer's burden of proving that a handicapped person constitutes a danger to herself or others by virtue of the handicap. This defense has been recognized as arising from language contained in Section 15-9(a) of the Charleston ordinance and W.Va.Code, 5-11-9(a), precluding discrimination in employment "if the individual is able and competent to perform the services required[.]"
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