Holbrook v. Poole Associates, Inc.

Decision Date17 December 1990
Docket NumberNo. 19178,19178
Citation400 S.E.2d 863,184 W.Va. 428
CourtWest Virginia Supreme Court
PartiesMargie Ann HOLBROOK v. POOLE ASSOCIATES, INC., and The West Virginia Human Rights Commission.

Syllabus by the Court

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 Comm'n v. United Transp. Union, Local 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).

2. "In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W.Va.Code § 5-11-1, et seq. (1979), the plaintiff must offer proof of the following: (1) That the plaintiff is a member of a protected class. (2) That the employer made an adverse decision concerning the plaintiff. (3) But for the plaintiff's protected status, the adverse decision would not have been made." Syl. Pt. 3, Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).

3. "The complainant's prima facie case of disparate-treatment employment discrimination can be rebutted by the employer's presentation of evidence showing a legitimate and non-discriminatory reason for the employment-related decision in question which is sufficient to overcome the inference of discriminatory intent." Syl. Pt. 2, West Virginia Inst. of Technology v. Human Rights Comm'n, 181 W.Va. 525, 383 S.E.2d 490 (1989).

4. "The complainant will still prevail in a disparate-treatment employment discrimination case if the complainant shows by a preponderance of the evidence that the facially legitimate reason given by the employer for the employment-related decision is merely a pretext for a discriminatory motive." Syl. Pt. 3, West Virginia Inst. of Technology v. Human Rights Comm'n, 181 W.Va. 525, 383 S.E.2d 490 (1989).

5. "Once a claimant establishes a prima facie case of discrimination and presents evidence on the issue of damages, the burden of producing sufficient evidence to establish the amount of interim earnings or lack of diligence shifts to the defendant. The defendant may satisfy his burden only if he establishes that: (1) there were substantially equivalent positions which were available; and (2) the claimant failed to use reasonable care and diligence in seeking such positions." Syl. Pt. 4, Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990).

George P. Stanton, III, Clarksburg, for Margie Ann Holbrook.

Kevin Nelson, Kay, Casto, Chaney, Love, Wise & Woodroe, Charleston, for Poole Associates, Inc.

PER CURIAM:

This is an appeal by Margie Ann Holbrook from a final order of the Circuit Court of Kanawha County, dated May 4, 1988, affirming a July 23, 1985, decision of the West Virginia Human Rights Commission finding unlawful discrimination by the appellee, Poole Associates, Inc. The appellant contends that the trial court erred by failing to award back pay as damages for unlawful discrimination. We agree with the appellant and reverse the decision of the Circuit Court of Kanawha County insofar as it failed to award back pay.

The appellant was employed as a waitress in the restaurant at the Charleston House Holiday Inn in Charleston, West Virginia, for approximately fifteen years. The appellee assumed management of the restaurant on May 2, 1982. 1 Upon assuming management, representatives of the appellee conducted a meeting of all former employees of Phillips, the appellee's predecessor in management, who were interested in retaining their positions. The appellant attended that meeting and indicated her interest in remaining in her position as a waitress at the hotel. The appellee offered employment to former Phillips personnel, including the appellant, subject to a thirty-day probationary period.

During the probationary period, the appellee instituted various alterations in the management of the restaurant. 2 The appellant allegedly experienced difficulty preparing guest checks, calculating bills, writing service numbers as required, properly pricing food items, and appropriately performing her duties as a waitress. The appellee also reported complaints regarding the appellant's performance and a general unwillingness by the appellant to cooperate with new management. The restaurant supervisor, Ms. Linda Jarvis, testified that she had conducted several meetings with the appellant regarding the appellant's performance and had specifically informed her that her job would be in jeopardy if she failed to improve. Ms. Barbara Fletcher, approximately 20-30 years of age, was hired on May 5, 1982, as an additional waitress. The appellant contends that Ms. Fletcher, who according to the appellee actually began working on May 19, 1982, was hired as her replacement.

On May 14, 1982, the appellant's employment was terminated. At the time of her dismissal, the appellant was sixty-two years of age. On July 9, 1982, the appellant filed a complaint with the West Virginia Human Rights Commission alleging that the appellee had discharged her in violation of the West Virginia Human Rights Act, W.Va.Code §§ 5-11-1 to -19 (1990). After an investigation of the complaint, the Human Rights Commission found probable cause to believe that the appellant had been unlawfully discriminated against on the basis of her age. Hearing Examiner Robert R. Harpold, Jr. conducted a hearing on the matter on May 16, 1985, and submitted his proposed findings of fact and conclusions of law to the Human Rights Commission on July 23, 1985. The hearing examiner found that the appellant had not been discriminated against and that she had been dismissed for reasons unrelated to her age. By order dated October 10, 1985, the Human Rights Commission refused to adopt the conclusions of the hearing examiner and determined that the appellant had been discriminated against on the basis of her age. The Human Rights Commission awarded the appellant $1,000.00 in damages for embarrassment and humiliation.

Upon appeal by both parties to the Circuit Court of Kanawha County, the court, by order dated November 19, 1987, reversed the Human Rights Commission and remanded the case back to the Commission for a new hearing. The circuit court reasoned that a new hearing was required because the Commission had reversed the findings of fact of the hearing examiner without having at least one member of the Commission present at the hearing as required by West Virginia Human Rights Commission Rule 7.4(a). See W.Va.C.S.R. § 77-2-7.4(a) (effective September 6, 1985). Upon a motion for reconsideration, however, the circuit court learned that the parties had waived the right to have a member of the Commission present pursuant to Commission Rule 7.4(c), modified its previous order, and affirmed the Commission's finding of discrimination. The circuit court did not, however, award back pay to the appellant. On June 9, 1989, the appellant petitioned this Court for appeal from that May 4, 1988, final order of the Circuit Court of Kanawha County. Based upon the thirteen-month delay, the appellee moved to dismiss the appellant's petition. We denied the appellee's motion to dismiss and permitted the appellant to proceed with this appeal. 3

The appellee has advanced a counter-assignment of error contending that the trial court erred by affirming the Human Rights Commission's finding of discrimination. The appellee first suggests that the Human Rights Commission's failure to make specific findings of fact and conclusions of law warrants reversal of the decision. 4 We find no merit to the appellee's argument regarding the absence of findings of fact and conclusions of law. While the Human Rights Commission did not explicitly divide its October 10, 1985, order into "Findings of Fact" and "Conclusions of Law," it did make twenty-three specific factual findings upon which it predicated its decision. These findings were based upon testimony received at the hearing held before Hearing Examiner Robert Harpold. "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 Comm'n v. United Transp. Union, Local 655, 167 W.Va. 282, 280 S.E.2d 653 (1981). Based upon our review of the record, we conclude that, while the evidence is certainly conflicting, there is substantial evidence upon which the Human Rights Commission could have based its findings and conclusions.

The appellee also advances the argument that the appellant failed to prove that she had been unlawfully discriminated against. We first address the contentions of the appellee with regard to the existence of discrimination. We then address the issue of the appellant's entitlement to back pay.

I.

We have enumerated three specific stages through which a successful claim of discrimination must progress. West Virginia Inst. of Technology v. The West Virginia Human Rights Comm'n, 181 W.Va. 525, 383 S.E.2d 490 (1989). The claimant must first establish a prima facie case of discrimination. In syllabus point 3 of Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986), we stated the following:

In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W.Va.Code § 5-11-1, et seq. (1979), the plaintiff must offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the plaintiff.

(3) But for the plaintiff's protected status, the adverse decision would not have been made.

Second, the employer must be afforded an opportunity to provide a legitimate non-discriminatory reason for its actions. "The complainant's prima facie case of disparate-treatment employment discrimination can be rebutted by the employer's presentation of evidence showing a legitimate and non-discriminatory reason...

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