Gino's Pizza of West Hamlin, Inc. v. West Virginia Human Rights Com'n

• Decision Date: 15 May 1992
• Docket Number: No. 20084,20084
• Citation: 418 S.E.2d 758,187 W.Va. 312
• Parties: GINO'S PIZZA OF WEST HAMLIN, INC., Plaintiff Below, Appellee, v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Lori S. Evans Defendants Below, Appellants.
• Court: West Virginia Supreme Court

Page 758

418 S.E.2d 758

187 W.Va. 312

GINO'S PIZZA OF WEST HAMLIN, INC., Plaintiff Below, Appellee, v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Lori S. Evans

Defendants Below, Appellants.

No. 20084.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1992.

Decided May 15, 1992.

Syllabus by the Court

1. "In order to prove 'quid pro quo' sexual harassment at the workplace, the complainant must prove: (1) that the complainant belongs to a protected class; (2) that the complainant was subject to an unwelcome sexual advance by an employer, or an agent of the employer who appears to have the authority to influence vital job decisions; and (3) the complainant's reaction to the advancement was expressly or impliedly linked by the employer or the employer's agent to tangible aspects of employment." Syl. pt. 1, Westmoreland Coal Co. v. Human Rights Commission, 181 W.Va. 368, 382 S.E.2d 562 (1989).

2. "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).

3. "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.' " Syl. pt. 2, Shepherdstown Volunteer Fire Dep't v. State ex rel. State Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).

4. "Our original authorization in Human Rights Commission v. Pearlman Rlty. Agcy., 161 W.Va. 1, 239 S.E.2d 145 (1977) of damages for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity, contemplated only 'incidental' awards. We approved $1,000 as an incidental award for such damages. That figure may be adjusted for inflation, but the Commission must be aware of its jurisdictional limitations because awarding a higher amount impinges upon a defendant's constitutional right to trial by jury." Syl. pt. 2, Bishop Coal Co. v. Salyers, 181 W.Va. 71, 380 S.E.2d 238 (1989).

Charles R. Garten, Charleston, for appellants.

Mark A. Sorsaia, Hurricane, for appellee.

PER CURIAM:

This case is before the Court upon the appeal of Lori S. Evans and the West Virginia Human Rights Commission ("the Commission") from the Circuit Court of Lincoln County, which reversed the decision of the Commission. The appellant contends that the circuit court committed reversible error when it found that the order of the Commission was not supported by substantial evidence. The Commission had found that the appellee, Gino's Pizza of West Hamlin, Inc. ("Gino's") had discriminated against the complainant on the basis of her sex by terminating her employment because she rebuked the unwelcome sexual advances of her supervising manager. We reverse the decision of the circuit court, and reinstate, in part, the decision of the Commission.

Lori Evans began working for Gino's in March, 1982. She was employed as a cook/cashier/waitress until she quit in mid-1983. Ms. Evans was rehired to the same position in December, 1983 and continued in that position until May 17, 1985. Ms. Evans contends she was terminated by Gino's the following day; Gino's contends Ms. Evans effectively quit on May 17, 1985.

Ms. Evans filed a complaint with the Commission alleging that she had been subjected to abusive behavior and sexual harassment from her manager. After a hearing was conducted, the hearing examiner issued a proposed order, which was thereafter adopted (with minor amendments) by the Commission.

The appellant testified before the hearing examiner that she had resided with the manager and his wife (also an employee of Gino's) and their two children for four to six weeks beginning in December, 1984. She alleged that the manager made sexual advances to her on two occasions while she resided with him, and although she rebuked him on both occasions, she felt compelled to move out immediately thereafter.

Appellant further testified that the manager resumed making sexual advances three and one-half months later (in mid-April, 1985) during work shifts when they were alone together. ¹ Appellant contended that the manager frequently (six or seven times per work shift) tried to touch her, and often made suggestive comments to her; however, when she made it clear that she would not submit to his advances, ² the manager became increasingly critical of her work performance. Appellant did not discuss the sexual harassment with any other person until May 18, 1985. ³ The manager never explicitly threatened appellant with the loss of her job for failing to submit to the advances.

On May 15, 1985 appellant sought out the area supervisor of Gino's and informed him that her manager had been unduly critical of her work in front of customers. He agreed such criticism was unwarranted, and advised her to take the following day off, which she did.

On May 17, 1985 the manager again criticized appellant in front of customers. She immediately left work although her shift had not ended. She attempted to return to work the following day, but was informed by the manager that she was no longer employed.

The manager denied ever touching or making sexually suggestive comments of any kind. He further denied being overly critical of appellant's work performance. ⁴ A co-employee, Judy Goddard, testified that she had not noticed the manager criticizing appellant in front of customers. The area supervisor acknowledged that appellant was given the day off on May 16, 1985, but stated she never informed him that the manager was being critical of her work, only that she was "nervous." He did not inquire as to why she was nervous.

The Commission found that appellant was terminated for rejecting the unwelcome sexual advances of her manager, largely on the basis of the perceived demeanor of appellant as compared to her manager, and on the basis of inconsistencies in the testimony of the witnesses for appellee. Most significantly the Commission found that the manager could not adequately explain what he meant when he stated on a company reprimand form (filed at the time appellant's employment was terminated) that complainant could not get along with others. The manager testified that he had the impression that complainant and Ms. Goddard occasionally were not speaking to each other, but he never asked why or got involved. Beyond those instances, he testified, the two got along fine. He also testified that complainant did not get along with his wife (who was also employed by Gino's), although he admitted that, during the time period in question, complainant did not work with his wife. ⁵ The Commission noted that appellant's testimony also contained inconsistencies, but found that they were minor and related only to time.

As part of its cease and desist order, the Commission awarded the complainant $5,000 for "humiliation, embarrassment, emotional and mental distress and the loss of personhood and dignity," resultant from the alleged discriminatory treatment. The Commission ordered that complainant be reinstated to her former position, and awarded her back wages. ⁶ The Commission also awarded the complainant attorney's fees in the amount of $4,950.00 and costs in the amount of $474.40.

Appellee appealed to the Circuit Court of Lincoln County pursuant to W.Va.Code, 29A-5-4 [1964]. The circuit court reversed the Commission in regard to the sexual harassment finding, and, therefore, denied all relief.

The reasoning for the reversal of the Commission's order was contained in the circuit court's order:

[T]he Court does hereby hold that the findings of the Human Rights Commission in this case is [sic] not supported by substantial evidence as defined in the cases of Westmoreland Coal Co. vs. WVHRC and Shirley A. Boone [181 W.Va. 382 S.E.2d 562 (1989) ] and Bishop Coal Co. vs. Slayers [sic] [181 W.Va. 71, 380 S.E.2d 238]. After a review of the record, the court finds that the Appellee, Lori S. Evans, made no complaints to no other parties, including her relatives, coworkers, immediate superiors, or to any other person in support of her claim of sexual harassment, made by her immediate supervisor, James Watts. An examination of the record finds that there was absolutely no testimony upon which Ms. Evans' allegations of sexual harassment could be corroborated. I do further find that to charge an employer with such an award and the award not being based upon substantial evidence would be a miscarriage of justice.

We articulated the standard for "quid pro quo" sexual harassment claims in syllabus point 1 of Westmoreland Coal Co. v. Human Rights Commission, 181 W.Va. 368, 382 S.E.2d 562 (1989):

In order to prove 'quid pro quo' sexual harassment at the workplace, the complainant must prove: (1) that the complainant belongs to a protected class; (2) that the complainant was subject to an unwelcome sexual advance by an employer, or an agent of the employer who appears to have the authority to influence vital job decisions; and (3) the complainant's reaction to the advancement was expressly or impliedly...