Greyhound Lines-East, Operating Div. of Greyhound Lines, Inc. v. Geiger

• Decision Date: 01 February 1988
• Docket Number: CL,D,AFL-CI,No. 17527,LINES-EAST,17527
• Citation: 366 S.E.2d 135,179 W.Va. 174
• Court: West Virginia Supreme Court
• Parties: , 47 Empl. Prac. Dec. P 38,205 GREYHOUND, an OPERATING DIVISION OF GREYHOUND LINES, INC., a corporation, and Amalgamated Transit Unionivision 1493 v. Berley GEIGER, Jr., et al., and the West Virginia Human Rights Commission.

Page 135

366 S.E.2d 135

179 W.Va. 174, 47 Empl. Prac. Dec. P 38,205

GREYHOUND LINES-EAST, an OPERATING DIVISION OF GREYHOUND

LINES, INC., a corporation, and Amalgamated

Transit Union AFL-CIO, CLC, Division 1493 v. Berley GEIGER, Jr., et al., and the West Virginia Human

Rights Commission.

No. 17527.

Supreme Court of Appeals of

West Virginia.

Feb. 1, 1988.

Syllabus by the Court

1. "Our human rights act prohibits present practices that perpetuate pre-Act discrimination by freezing employees into inferior positions. W.Va.Code, 5-11-9." Syllabus Point 3, West Virginia Human Rights Comm'n v. United Transp. Union Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).

2. "W.Va.Code, 5-11-9, does not immunize 'bona fide competitive-status based' seniority systems from proscriptions against unlawful practices." Syllabus Point 4, West Virginia Human Rights Comm'n v. United Transp. Union Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).

3. "Prior discriminatory practices perpetuated by facially neutral seniority systems are continuous violations of the West Virginia Human Rights Act. W.Va.Code, 5-11-1, et seq." Syllabus Point 5, West Virginia Human Rights Comm'n v. United Transp. Union Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).

4. "A determination, by the West Virginia Human Rights Commission, that an employer has accorded disparate treatment to members of different races, is a finding of fact which may not be reversed by a circuit court upon review, unless such finding is clearly wrong in view of the reliable, probative and substantial evidence on the whole record." Syllabus Point 5, State ex rel. Human Rights Comm'n v. Logan- Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985).

5. A state civil rights commission may proceed by way of an administrative class action and order relief for similarly situated individuals who have been victims of unlawful discriminatory practices where the commission or its executive director is given the right to initiate complaints, as is the case under W.Va.Code, 5-11-10.

6. Compliance with class action requirements under rules of civil procedure is not necessary in an administrative civil rights class action; but notice must be given to the employer that a class action is being undertaken, and evidence is required about the individual damages suffered, if such individual relief is awarded.

David D. Johnson, III, Charleston, Richard Stanton, Chicago, Ill., for Greyhound Lines and Amalgamated Transit Union.

Tom Hindes, Deputy Atty. Gen., Charleston, for W.V. Human Rights Com'n.

Allan N. Karlin, Franklin Cleckley, Morgantown, for amicus curiae.

MILLER, Justice:

The West Virginia Human Rights Commission (Commission) and the complainant, Berley Geiger, Jr., appeal from a final order of the Circuit Court of Kanawha County pursuant to the West Virginia Administrative Procedures Act, W.Va.Code, 29A-6-1. For the reasons set forth herein, we affirm in part, reverse in part, and remand for further proceedings.

This case was previously before this Court in Greyhound Lines-East v. Geiger, 168 W.Va. 229, 283 S.E.2d 858 (1981) (Greyhound I), where we reversed the lower court's holding based upon our decision in West Virginia Human Rights Comm'n v. United Transp. Union Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981). In that case, we concluded that the West Virginia Human Rights Act differed from the federal Civil Rights Act of 1964 in that it did not contain an exemption immunizing bona fide seniority systems that perpetuate prior discriminatory practices as did the federal act under Section 703(h), 42 U.S.C. § 2000e-2(h). ¹

We also held in United Transp. Union that the operation of a facially neutral seniority system which has the effect of perpetuating pre-Act discrimination is unlawful and constitutes a continuing violation of our Human Rights Act, ² as stated in Syllabus Points 3, 4, and 5:

"3. Our human rights act prohibits present practices that perpetuate pre-Act discrimination by freezing employees into inferior positions. W.Va.Code, 5-11-9.

"4. W.Va.Code, 5-11-9, does not immunize 'bona fide competitive-status based' seniority systems from proscriptions against unlawful practices.

"5. Prior discriminatory practices perpetuated by facially neutral seniority systems are continuous violations of the West Virginia Human Rights Act. W.Va.Code, 5-11-1, et seq."

Greyhound I was remanded to the circuit court to determine whether the complainant had proven that he had been a victim of discrimination during the initial period of his employment with Greyhound Lines-East (Greyhound). The complainant had been hired initially as a porter on August 8, 1963. He alleged that he wanted to be a bus driver when he was hired, but did not apply for that position because the company at that time did not hire blacks as bus drivers. The circuit court on remand concluded that the evidence before the Commission did not support a finding of discrimination since the complainant had not applied for the bus driver position until sometime in late 1967 or early 1968, at which point he was accepted into Greyhound's next driver training school and was given a position as a bus driver.

The circuit court determined that the evidence would not support a finding that he had desired to be an operator at the time of his initial employment application. The lower court also concluded that the Commission erred in treating the complaint as an administrative class action made on behalf of all similarly situated black employees.

I.

The threshold issue presented here is whether the evidence supports the Commission's finding that Mr. Geiger was a victim of discrimination and entitled to relief. In reviewing the factual determinations made by administrative agencies, including the Commission, we have recognized that the scope of judicial review is narrowly circumscribed by the provisions of the Administrative Procedures Act, as stated in Syllabus Point 3 of State ex rel. Human Rights Comm'n v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985):

" '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 VFD v. West Virginia Human Rights Commission, W.Va. , 309 S.E.2d 342 (1983)."

We also held in Logan-Mingo, in accord with federal decisions, that an administrative ruling that an employer has engaged in discrimination is a question of fact, as stated in Syllabus Point 5:

"A determination, by the West Virginia Human Rights Commission, that an employer has accorded disparate treatment to members of different races, is a finding of fact which may not be reversed by a circuit court upon review, unless such finding is clearly wrong in view of the reliable, probative and substantial evidence on the whole record."

The record reveals the following facts. Mr. Geiger, a black employee of Greyhound, began work at its Charleston terminal in 1963 as a platform terminal worker, or porter. At the time of his employment, all porters at the Charleston terminal were black while all bus operators or drivers were white. It is undisputed that no black driver was hired at the Charleston terminal until April, 1967, when S.V. Dalton applied for and successfully completed a training school for bus operators. Prior to 1967, two black drivers had been transferred to Charleston for brief periods as a result of furlough and bumping procedures under a collective bargaining agreement and then returned to their home terminals in other states. In 1973, when the public hearings were conducted in this case, there were approximately 113 bus operators in Charleston. Only four of these were black, and they were hired in 1967 or later.

Mr. Geiger testified that at the time of his application for employment with Greyhound he did not apply for a position as a bus operator because he knew of no blacks that were drivers with Greyhound and he knew of no other position that blacks were employed in other than porters or janitors. Consequently, he applied for the position of porter. Mr. Geiger testified that he had wanted to be a driver perhaps since junior high school.

At the time of his application, Mr. Geiger met the hiring requirements to become a driver, which included age, height, vision health, and prior driving record. Although Greyhound and union officials denied engaging in discriminatory practices, Ceybert Smith, a black employee of Greyhound, testified that when he had made inquiry in 1960 to a company representative about becoming a driver, he was told "there was no one black on the lines[,] period."

In 1968, Mr. Geiger successfully completed training to become a bus operator and transferred from his position as a porter to a bus operator. Under the provisions of the collective bargaining agreement, Mr. Geiger's seniority date as an operator began upon completion of his training as a bus operator on May 3, 1968. Mr. Geiger in 1971 sought the assistance of the union to convert his seniority date to his initial date of hire in 1963, but neither the company nor the union was willing to allow...