Erps v. West Virginia Human Rights Com'n

• Decision Date: 22 June 2009
• Docket Number: No. 34262.,34262.
• Citation: 680 S.E.2d 371
• Parties: Sue J. ERPS and William G. Erps, d/b/a Improvements Unlimited, Appellants, v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Victor T. Peoples, Appellees.
• Court: West Virginia Supreme Court

680 S.E.2d 371

Sue J. ERPS and William G. Erps, d/b/a Improvements Unlimited, Appellants, v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Victor T. Peoples, Appellees.

No. 34262.

Supreme Court of Appeals of West Virginia.

Submitted March 10, 2009.

Decided June 22, 2009.

Syllabus by the Court

1. "Where an appeal from an order issued by the West Virginia Human Rights Commission is brought directly to the West Virginia Supreme Court of Appeals, pursuant to W. Va.Code § 5-11-11 (1989), this Court will apply the same standard of review that is applied to Human Rights Commission orders appealed to a circuit court." Syllabus point 1, Cobb v. West Virginia Human Rights Commission, 217 W.Va. 761, 619 S.E.2d 274 (2005).

2. This Court is bound by the statutory standards contained in W. Va.Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong. Syllabus point 1, in part, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

3. 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. Syllabus Point 1, West Virginia Human Rights Comm'n v. United Transp. Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981). Syllabus point 2, Smith v. West Virginia Human Rights Commission, 216 W.Va. 2, 602 S.E.2d 445 (2004).

4. "To establish a claim for ancestral discrimination, under the West Virginia Human Rights Act, West Virginia Code §§ 5-11-1 to -20 (1999) based upon a hostile or abusive work environment, a plaintiff-employee must prove that: (1) that the subject conduct was unwelcome; (2) it was based on the ancestry of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment; and (4) it was imputable on some factual basis to the employer." Syllabus point 2, Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999).

5. In order to constitute harassment and satisfy the first prong of a hostile work environment claim as set forth in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999), the subject conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.

6. When a plaintiff bringing a hostile work environment claim pursuant to the standards enunciated in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999), has solicited, incited or participated in the subject offensive conduct, the plaintiff must introduce evidence indicating (1) that he or she ultimately informed the involved co-workers and/or supervisors that future instances of such conduct would be unwelcome, and (2) that conduct thereafter continued. Where such evidence is produced, a question of fact is created as to whether or not the conduct was unwelcome.

7. "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." Syllabus point 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986).

Anthony R. Veneri, Veneri Law Offices, Princeton, WV, for Appellants.

Paul R. Sheridan, Deputy Attorney General, Civil Rights Division, Charleston, WV, for Appellee.

BENJAMIN, Chief Justice.

The instant matter comes before this Court upon direct appeal, pursuant to the provisions of W.Va.Code § 5-11-11(a) (1989), from an order entered by the West Virginia Human Rights Commission (hereinafter the "Commission") finding the appellants Sue J. Erps and William G. Erps, d/b/a Improvements Unlimited were liable to appellee Victor Peoples for claims of hostile work environment and retaliatory discharge arising from a June 16, 2004, workplace incident. The Commission's January 30, 2008, order affirmed and adopted as its own two orders entered by the Chief Administrative Law Judge in this matter after a full evidentiary hearing. The Chief Administrative Law Judge's April 6, 2007, order addressed the liability issues, found that the imposition of monetary damages was appropriate and ordered certain injunctive and remedial actions. In an August 29, 2007, supplemental order, the Chief Administrative Law Judge directed the appellants to pay a total of $32,898.81 in damages, consisting of $24,085.30 in lost wages, $3,813.51 in interest and $5,000.00 in incidental damages for humiliation, embarrassment and loss of personal dignity, plus costs. After a thorough review of the record herein, we affirm, in part, and reverse, in part, the Commission's January 30, 2008, order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Victor Peoples (hereinafter "Mr. Peoples"), is an African-American male who began employment with Improvements Unlimited on April 13, 2004.¹ Improvements Unlimited is a proprietorship owned and operated by appellee William Erps (hereinafter "Mr. Erps") and his wife, appellee Sue Erps (hereinafter "Mrs. Erps"), and located in Princeton, West Virginia. On June 16, 2004, Mr. Peoples was a member of an Improvements Unlimited crew led by supervisor David Yontz (hereinafter "Mr. Yontz") building a tie wall at a business college in Bluefield, Tazewell County, Virginia. Additional crew members included Wayne Bragg (hereinafter "Mr. Bragg") and Jason Harris (hereinafter "Mr. Harris"). All crew members, except Mr. Peoples, were white as are Mr. and Mrs. Erps. That morning an altercation occurred between Mr. Peoples and Mr. Bragg which is at the heart of the instant dispute.

On the morning of Wednesday June 16, 2004, the Improvements Unlimited crew working on the business college's tie wall met at company headquarters in Princeton, West Virginia, and drove to the job site. The area where the tie wall was being constructed was approximately 45-50 feet in length and the crew worked within that area. Mr. Yontz and Mr. Bragg were drilling holes² while Mr. Peoples and Mr. Harris followed fitting rebar into the holes with sledgehammers. Although there had been no prior tension, arguments or problems between Mr. Peoples and Mr. Bragg, Mr. Peoples picked on Mr. Bragg that morning, calling him names such as "white trash" and "honky." According to Mr. Bragg, the racially-charged name calling angered him. Mr. Peoples continued his goading of Mr. Bragg by making fun of the way he talked.³ This made Mr. Bragg angry. At some point, Mr. Peoples asked Mr. Bragg to drill the holes deeper because he was having difficulty fitting the rebar into the holes and Mr. Bragg responded by saying, "You say another word I'll cut your f* * *ing head off with this shovel, n* * * * *."⁴ The men then approached Mr. Yontz about the situation. Not having heard the exchange⁵ and realizing both men were upset and angry, Mr. Yontz feared the situation could escalate and that there might be a physical altercation. Therefore, he ordered them back to work in separate locations.⁶

Mr. Peoples was not satisfied with Mr. Yontz' response and continued to ask him what he was going to do about Mr. Bragg's comment. Instead of responding to Mr. Peoples' question, Mr. Yontz replied "That's done, over, get back to work." When Mr. Peoples persisted in his demand for immediate action, Mr. Yontz told him to get back to work or he was fired. Mr. Peoples responded by telling Mr. Yontz to send him home. Again, Mr. Yontz directed Mr. Peoples to return to work. Mr. Peoples would not go back to work, handed Mr. Yontz his sledgehammer and told him "to do what he had to do." Mr. Yontz responded by telling Mr. Peoples he was fired.

Thereafter, Mr. Peoples left the job site and apparently walked approximately eight to ten miles to his home because he had driven to the job site with Mr. Yontz. Upon arriving at home, Mr. Peoples called Mr. Erps on his cell phone to tell him about the incident. Mr. Erps responded that Mr. Bragg should not have called him the "n" word and that Mr. Erps would handle the situation.⁷ That evening, Mr. Erps took statements from Mr. Yontz and Mr. Harris after he saw them at church.⁸ Mr. Erps also spoke with Mr. Bragg about not using the "n" word, but took no further disciplinary action.

Mr. Peoples went to the Improvements Unlimited office on Friday, June 18, 2004, to pick up his paycheck.⁹ Although Mr. Erps asked Mr. Peoples to stay until after pay checks were distributed, Mr. Peoples left and did not speak with Mr. Erps about the incident. Mr. Peoples returned to the Improvements Unlimited office on Friday June 25, 2004, to pick up his final paycheck. Again, Mr. Erps asked him to stay and talk about the incident with Mr. Bragg and, again, Mr. Peoples left before Mr. Erps could speak to him. Other than asking Mr. Peoples to stay and discuss the incident when paychecks were distributed, there is no evidence in the record that Mr. Erps ever attempted to contact Mr. Peoples at home or by letter to discuss the June 16, 2004, incident with Mr. Bragg.

Mr. Peoples called the West Virginia Human Rights Commission on June 23, 2004, and requested a form to file a discrimination complaint.¹⁰ His complaint was filed on July 2, 2004. Subsequent to filing his complaint, Mr. Peoples felt that Mr. Erps and employees...