Frank's Shoe Store v. West Virginia Human Rights Com'n, No. 16913

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH; BROTHERTON
Citation365 S.E.2d 251,179 W.Va. 53
Parties, 45 Empl. Prac. Dec. P 37,800 FRANK'S SHOE STORE v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Kathy Varney.
Docket NumberNo. 16913
Decision Date10 July 1986

Page 251

365 S.E.2d 251
179 W.Va. 53, 45 Empl. Prac. Dec. P 37,800
FRANK'S SHOE STORE
v.
WEST VIRGINIA HUMAN RIGHTS COMMISSION and Kathy Varney.
No. 16913.
Supreme Court of Appeals of
West Virginia.
July 10, 1986.
Dissenting and Concurring Opinion Sept. 16, 1986.

Page 252

Syllabus by the Court

[179 W.Va. 54] 1. "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." Syl. pt. 1, West Virginia Human Rights Commission v. United Transportation Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).

2. Discrimination based upon pregnancy constitutes illegal sex discrimination under the West Virginia Human Rights Act, W.Va.Code, 5-11-9(a) [1981].

3. When a pregnant employee who capably performs her duties experiences a reduction in work hours, solely because of her pregnant condition, such action by the employer constitutes illegal discrimination based upon the employee's sex and is violative of W.Va.Code, 5-11-9(a) [1981].

4. 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.

5. An award of back pay is proper in a case where an employer has violated W.Va.Code, 5-11-9(a) [1981], by reducing work hours for discriminatory reasons of a pregnant employee and ultimately discharging her in retaliation for her involvement in protected activities.

James W. St. Clair, Marshall and St. Clair, Huntington, for appellants.

Charles G. Brown, Atty. Gen., Emily A. Spieler, Deputy Atty. Gen., Charleston, for appellee.

[179 W.Va. 55] McHUGH, Justice:

This case is before this Court upon appeal pursuant to W.Va.Code, 29A-6-1 [1964], part of the State Administrative Procedures Act. It arises from the final order of the Circuit Court of Cabell County wherein the trial court reversed the findings of the West Virginia Human Rights Commission (hereinafter "Commission")

Page 253

which had determined that the appellee was guilty of an unlawful discriminatory practice under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., as amended. This Court has before it the petition for appeal, all matters of record and the briefs of counsel.

Appellants are the West Virginia Human Rights Commission and Kathy Varney. The Commission is the state administrative agency charged with enforcement of the West Virginia Human Rights Act. Mrs. Varney is the aggrieved former employee of Frank's Shoe Store.

Appellee is Frank's Shoe Store, a locally owned and operated business in Huntington, West Virginia.

I

The appellant, Kathy Varney, began working for the appellee in June of 1975. Her job consisted of a variety of duties including: bookkeeping, working as a cashier and selling shoes. In May, 1976, the appellant learned that she was pregnant. She notified the appellee of her condition and requested that she be permitted to continue working, both before and after the birth of her child. The appellee agreed to this request.

In November, 1976, the appellee removed Mrs. Varney from the sales force and reduced her duties to minor record keeping and temporary cashier. This limitation correspondingly reduced the appellant's work week by one full day: from five days to four days per week. A month later, the appellant's work week was reduced from four to three days. The appellant received no notice of the action taken by her employer. No other employees experienced similar restrictions on duties or hours worked.

On December 21, 1976, the appellant filed a complaint with the Commission alleging that her employer had discriminated against her on the basis of sex. She continued working for the appellee until she was discharged. 1 On February 14, 1977, Mrs. Varney filed a second complaint, charging that she was illegally terminated for having filed the initial complaint.

Following hearings and investigation, the Commission determined that the appellee had reduced Mrs. Varney's hours as a result of illegal sex discrimination and held that discrimination based upon pregnancy constitutes illegal sex discrimination under the Human Rights Act. The Commission issued its final order and ordered the appellee to cease and desist its discriminatory practices and to pay Mrs. Varney back wages.

The appellee then filed a petition for appeal in the Cabell County Circuit Court. The circuit court reversed the Commission on both its findings of fact and conclusions of law; the circuit court held that the change in the appellant's employment classification and subsequent work reduction was not sex-based, but justified by a concern for the well-being of the appellant and her unborn child.

[179 W.Va. 56] II

The initial issue before this Court is whether the Circuit Court of Cabell County, in substituting its findings of fact for those of the agency charged with enforcement of the West Virginia Human Rights Act, erred by failing to comply with W.Va.Code, 29A-5-4(g) [1964].

Page 254

Syllabus point 2 of Shepherdstown Volunteer Fire Department v. State ex rel. State Human Rights Commission, 172 W.Va. 627,, 309 S.E.2d 342 (1983), concisely charts the process of judicial review to which the circuit court in such cases must adhere:

Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions, or order are:

'(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.'

In the case now before us, the appellant challenges the findings of fact as made by the Circuit Court of Cabell County. The appellant contends that such court erred by substituting its own judgment regarding the facts for the findings submitted by the Commission, thereby failing to apply the appropriate standard of review set forth above.

In order to adhere to the statutory and precedential prerequisite mentioned above, a reviewing court must evaluate the record of the agency's proceeding to determine whether there is evidence on the record as a whole to support the agency's decision. The evaluation is conducted pursuant to the administrative body's findings of fact, regardless of whether the court would have reached a different conclusion on the same set of facts. Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518, 528 (1985).

The Supreme Court of the United States has recently stressed the extremely limited scope of review when applying the "clearly wrong" standards to Title VII actions tried in federal courts. The Court emphasized the narrow nature of this review:

This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.... If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous.

Anderson v. City of Bessemer City, supra, 470 U.S. at 573-74, 105 S.Ct. at 1511-12, 84 L.Ed.2d at 528. See also United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150, 153 (1949).

Pursuant to W.Va.Code, 29A-5-4(g)(5) [1964], the rejection of administrative findings is sanctioned only when "an order of an administrative body based upon a finding of facts ... is contrary to the evidence, or is not supported by the evidence, or is based upon a mistake of law, ..." Guine v. Civil Service Commission, 149 W.Va. 461, 469, 141 S.E.2d 364, 369 (1965). Otherwise, if in reviewing administrative decisions or orders in contested cases, the courts routinely substitute their judgments for those of the agencies, the utility of administrative adjudication would be lost. [179 W.Va. 57] A. Neely, Administrative Law In West Virginia § 5.57 at 438 (1982).

This Court has applied the standards described above to Human Rights Commission appeals and has not hesitated to reverse orders entered by the circuit courts when their reversals of Commission rulings have been based on an inappropriate application of the "clearly wrong" principle.

Page 255

See West Virginia Human Rights Commission v. United Transportation Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981); Shepherdstown Volunteer Fire Department v. State ex rel. State Human Rights Commission, supra.

We must stress the doctrine established earlier by this Court in appeals of this nature: "West Virginia Human Rights Commission's findings of fact should be sustained by reviewing courts if they...

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  • West Virginia Div. of Environmental Protection v. Kingwood Coal Co., No. 23876
    • United States
    • Supreme Court of West Virginia
    • July 16, 1997
    ...or conducted its mining operations within the meaning of 38 C.S.R. 2-2.84(b)(6) (1996). See Frank's Shoe Store v. Human Rights Com'n, 179 W.Va. 53, 56, 365 S.E.2d 251, 254 (1986) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518, 528 (1......
  • Stone v. St. Joseph's Hosp. of Parkersburg, No. 26962.
    • United States
    • Supreme Court of West Virginia
    • July 14, 2000
    ...under both Title VII and Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.); Frank's Shoe Store v. Human Rights Commission, 179 W.Va. 53, 58-59, 365 S.E.2d 251, 256-57 (1986) (citing Pregnancy Discrimination Act amendment to Title VII and United States Supreme Court decision in......
  • State v. Chase Securities, Inc., No. 20863
    • United States
    • Supreme Court of West Virginia
    • November 25, 1992
    ...1. v. West Virginia Human Rights Comm'n, 180 W.Va. 406, 376 S.E.2d 612 (1988); Frank's Shoe Store v. West Virginia Human Rights Comm'n, 179 W.Va. 53, 365 S.E.2d 251 (1986); State ex rel. State of West Virginia Human Rights Comm'n v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711......
  • Skaggs v. Elk Run Coal Co., Inc., No. 23178
    • United States
    • Supreme Court of West Virginia
    • July 11, 1996
    ...Co. v. State of W. Va. Human Rights Comm'n, 179 W.Va. 291, 367 S.E.2d 760 (1988); Frank's Shoe Store v. West Va. Human Rights Comm'n, 179 W.Va. 53, 365 S.E.2d 251 (1986); Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986); Montgomery General Hosp. v. West Va. Hum......
  • Request a trial to view additional results
74 cases
  • West Virginia Div. of Environmental Protection v. Kingwood Coal Co., No. 23876
    • United States
    • Supreme Court of West Virginia
    • July 16, 1997
    ...or conducted its mining operations within the meaning of 38 C.S.R. 2-2.84(b)(6) (1996). See Frank's Shoe Store v. Human Rights Com'n, 179 W.Va. 53, 56, 365 S.E.2d 251, 254 (1986) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518, 528 (1......
  • Stone v. St. Joseph's Hosp. of Parkersburg, No. 26962.
    • United States
    • Supreme Court of West Virginia
    • July 14, 2000
    ...under both Title VII and Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.); Frank's Shoe Store v. Human Rights Commission, 179 W.Va. 53, 58-59, 365 S.E.2d 251, 256-57 (1986) (citing Pregnancy Discrimination Act amendment to Title VII and United States Supreme Court decision in......
  • State v. Chase Securities, Inc., No. 20863
    • United States
    • Supreme Court of West Virginia
    • November 25, 1992
    ...1. v. West Virginia Human Rights Comm'n, 180 W.Va. 406, 376 S.E.2d 612 (1988); Frank's Shoe Store v. West Virginia Human Rights Comm'n, 179 W.Va. 53, 365 S.E.2d 251 (1986); State ex rel. State of West Virginia Human Rights Comm'n v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711......
  • Skaggs v. Elk Run Coal Co., Inc., No. 23178
    • United States
    • Supreme Court of West Virginia
    • July 11, 1996
    ...Co. v. State of W. Va. Human Rights Comm'n, 179 W.Va. 291, 367 S.E.2d 760 (1988); Frank's Shoe Store v. West Va. Human Rights Comm'n, 179 W.Va. 53, 365 S.E.2d 251 (1986); Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986); Montgomery General Hosp. v. West Va. Hum......
  • Request a trial to view additional results

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