FAIRMONT SPECIALTY v. HUMAN RIGHTS COM'N

• Decision Date: 16 July 1999
• Docket Number: No. 25335.,25335.
• Citation: 522 S.E.2d 180,206 W.Va. 86
• Court: West Virginia Supreme Court
• Parties: FAIRMONT SPECIALTY SERVICES, Appellant, v. The WEST VIRGINIA HUMAN RIGHTS COMMISSION and Irma P. Voyle, Appellees.

522 S.E.2d 180

206 W.Va. 86

FAIRMONT SPECIALTY SERVICES, Appellant, v. The WEST VIRGINIA HUMAN RIGHTS COMMISSION and Irma P. Voyle, Appellees.

No. 25335.

Supreme Court of Appeals of West Virginia.

Submitted January 12, 1999.

Decided July 16, 1999.

Dissenting Opinion of Justice Davis July 20, 1999.

Concurring Opinion of Chief Justice Starcher November 4, 1999.

Nancy W. Brown, Esq., Steptoe & Johnson, Clarksburg, West Virginia, Ancil G. Ramey, Esq., Steptoe & Johnson, Charleston, West Virginia, Attorneys for Fairmont Specialty Services.

Darrell V. McGraw, Jr., Esq., Attorney General, Mary Catherine Buchmelter, Esq., Deputy Attorney General, Charleston, West Virginia, Attorneys for The West Virginia Human Rights Commission.

J. Lawrence Hajduk, Esq., Leslie Crosco, Esq., Hajduk and Associates, P.C., Markleysburg, Pennsylvania, Attorneys for Voyle.

WORKMAN, Justice:

This case is before this Court upon appeal from a final order of the West Virginia Human Rights Commission (hereinafter "Commission") entered on May 28, 1998.¹ In September 1996, Appellee Irma Voyle filed a complaint with the Commission alleging that her employer, Fairmont Speciality Services (hereinafter "FSS"), unlawfully discriminated against her in violation of West Virginia Code § 5-11-9(1) (1999) by creating or tolerating a hostile work environment based on discriminatory actions relative to her Mexican-American ancestry. While the administrative law judge ("ALJ") determined that the alleged discriminatory conduct towards Ms. Voyle was unwelcome; that such conduct was, at least in significant part, due to Ms. Voyle's Mexican ancestry; and that such conduct was sufficiently severe and pervasive to alter Ms. Voyle's conditions of employment and to create a hostile or abusive work environment, he ruled in FSS' favor, after determining that FSS met its burden of demonstrating that it took prompt remedial action reasonably calculated to end the harassment. Upon review, the Commission reversed the administrative law judge's decision, finding that Mr. Fluharty's harassment was not "trivial ... [or] isolated" and that "[u]nder these circumstances, management should have known about the harassment much earlier." The Commission further found that FSS did not prove by a preponderance of the evidence that it took prompt remedial action reasonably calculated to end the harassment, and awarded Ms. Voyle $3,277.45 for incidental damages and $11,406.18 for attorney fees and costs. FSS seeks a reversal of the Commission's final order.

FSS contends that the Commission erred by substituting its findings of fact for those of the ALJ and concluding that FSS failed to take prompt remedial action reasonably calculated to address the reported harassment. Alternatively, FSS contends that both the Commission and the administrative law judge erred as a matter of law by concluding that the alleged harassment resulted in a discriminatory hostile or abusive environment and that FSS failed to meet its burden of proving that prompt remedial measures were taken. After a complete review of the record in this case, as well as the arguments presented by counsel, we affirm the decision of the Commission.

I. Standard of Review

The standard under which the Commission reviews a decision of an administrative law judge is established by statute.² West Virginia Code § 5-11-8(d)(3) states that the "commission shall limit its review upon such appeals [from the administrative law judge's decision] to whether the administrative law judge's decision is:

(A) In conformity with the constitution and the laws of the state and the United States;

(B) Within the commission's statutory jurisdiction or authority;

(C) Made in accordance with procedures required by law or established by appropriate rules of the commission;

(D) Supported by substantial evidence on the whole record; or

(E) Not arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

With regard to this Court's review of the factual findings made by the Commission, we stated in syllabus point one of West Virginia Human Rights Commission v. United Transportation Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981), that "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."³ While the substantial evidence rule applies to findings of fact rendered by an administrative agency such as the Commission, legal rulings made by the Commission are subject to de novo review. See Ruby v. Insur. Comm'n, 197 W.Va. 27, 475 S.E.2d 27 (1996).

In Morris Memorial Convalescent Nursing Home, Inc. v. West Virginia Human Rights Comm'n, 189 W.Va. 314, 431 S.E.2d 353 (1993), we discussed what is meant by "substantial evidence":

such relevant evidence, on the whole record, as a reasonable mind might accept as adequate to support a finding; it must be enough to justify a refusal to direct a verdict, if the factual matter were tried to a jury. `This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.' The reviewing court is not entitled to reverse the finding of the trier of the facts simply because the reviewing court is convinced that it would have weighed the evidence differently if it had been the trier of the facts.

Id. at 316, 431 S.E.2d at 355 (quoting Brammer v. West Virginia Human Rights Comm'n, 183 W.Va. 108, 111, 394 S.E.2d 340, 343 (1990)). In addition, we have repeatedly observed that "[t]he credibility of witnesses... [are] for the hearing examiner to determine." Westmoreland Coal Co. v. West Virginia, Human Rights Comm'n, 181 W.Va. 368, 373, 382 S.E.2d 562, 567 n. 6 (1989); see also Martin v. Randolph Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995) (stating that "ALJ's credibility determinations are binding unless patently without basis in the record").

The Rules of Practice and Procedure Before the West Virginia Human Rights Commission provide, in part:

Within sixty (60) days after the date on which the notice of appeal was filed, the Commission shall render a final order affirming the decision of the administrative law judge, or an order remanding the matter for further proceedings before an administrative law judge, or a final order modifying or setting aside the decision.

6 W.Va.C.S.R. § 77-2-10.6 (1996). The administrative rules further provide that

the Commission shall limit its review to whether the administrative law judge's decision is:

In conformity with the Constitution and laws of the state and the United States;

Within the Commission's statutory jurisdiction or authority;

Made in accordance with procedures required by law or established by appropriate rules or regulations of the Commission;

Supported by substantial evidence on the whole record; or

Not arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Id. at 77-2-10.8.a to -10.8.e.

Thus, while the Commission and this Court must give deference to the findings of fact of the ALJ, the Commission is not precluded from making additional findings of fact that are not in conflict with those reached by the ALJ. In addition, the Commission may determine that the ALJ's decision is clearly not supported by substantial evidence on the whole record. With these standards in mind, we examine the findings of fact reached by the ALJ, and to the extent they were properly modified, those of the Commission.

II. Factual Background

Because one of the chief contentions raised by FSS it that the Commission improperly substituted its judgment for the ALJ with regard to the findings of fact, we examine the facts in that context. By way of initial background, there is no dispute that Irma Voyle began working for FSS in April 1990. Ms. Voyle is a United States citizen of Mexican ancestry.⁴ In 1995, FSS directed Ms. Voyle to train Scott Fluharty, a commission employee.⁵ The first time Ms. Voyle reported a problem with Mr. Fluharty was on March 16, 1995. This initial conflict between Ms. Voyle and Mr. Fluharty is described in the ALJ's findings of fact numbers 8 through 10:

8. The trouble between Ms. Voyle and Mr. Fluharty began in or about March 1995. Ms. Voyle's calendar containing her contemporaneous handwritten notes ... has an entry on 16 March 1995 stating "Talk to Jeff about Butch [Fluharty]. Laziness and ugliness. Said he'd talk to him." (Emphasis in original). "Jeff" refers to Jeff Noechel, respondent's production coordinator, a management position. Based on a review of the testimony, and after an assessment of credibility, I find as fact that 16 March 1995 was the first time that Ms. Voyle brought Mr. Fluharty's treatment of her to the attention of management. To the extent this finding is contradicted by the testimony of Mr. Fluharty and/or Mr. Noechel, both of whom identify a date in April 1995 as the fi[r]st reported incident of alleged harassment, their testimonies are rejected.

9. Ms. Voyle testified that the incident that occurred on or about 16 March 1995 consisted of Mr. Fluharty "cussing me and calling me a Mexican bitch and telling me he wasn't going to do what a Mexican told him to do." This is the "ugliness" mentioned in her calendar.

10. Ms. Voyle's testimony was inconsistent as to whether she told Mr. Noechel on 16 March 1995 about the anti-Mexican aspect of Mr. Fluharty's invective. He denies that she did. Based on the evidence of record, and after an assessment of credibility, I find as fact that while she did report Mr. Fluharty for cussing and general obnoxious behavior, she did not report his ethnic references to Mr. Noechel or any management official on this occasion. This finding is based primarily on her admissions under cross examination.

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