Kerns v. Bucklew

• Decision Date: 15 May 1987
• Docket Number: No. 17493,17493
• Citation: 178 W.Va. 68,357 S.E.2d 750
• Court: West Virginia Supreme Court
• Parties: , 40 Ed. Law Rep. 1037 Laura KERNS and the West Virginia Human Rights Commission v. Neil BUCKLEW, President, West Virginia University, and the West Virginia Board of Regents.

Page 750

357 S.E.2d 750

178 W.Va. 68, 40 Ed. Law Rep. 1037

Laura KERNS and the West Virginia Human Rights Commission v. Neil BUCKLEW, President, West Virginia University, and the West Virginia Board of Regents.

No. 17493.

Supreme Court of Appeals of West Virginia May 15, 1987.

Syllabus by the Court

1. In addition to the overriding effect of the supremacy clause of the Constitution of the United States (art. VI, cl. 2) upon contrary state law, federal legislation which is expressly authorized by section 5 of the fourteenth amendment to the Constitution of the United States and which implements such amendment will by its own force override contrary state constitutional or statutory law, such as governmental immunity ( W. Va. Const. art. VI, § 35), which state law provides less protection or relief than provided by the fourteenth amendment and its implementing legislation, such as the Equal Employment Opportunity Act of 1972, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (1982).

2. Affirmative relief, such as an award of back pay and reasonable attorney's fees, is recoverable against the State of West Virginia as an employer in employment discrimination cases adjudicated before the West Virginia Human Rights Commission or in the court system of this State, as well as being recoverable in actions or proceedings in federal forums, state constitutional governmental immunity notwithstanding. In employment discrimination cases the federal law, which is paramount, is intended by the fourteenth amendment and Congress to "be vindicated at the state or local level." New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 66, 100 S.Ct. 2024, 2032, 64 L.Ed.2d 723, 735 (1980).

Regina L. Charon, Morgantown, for appellant.

Charles Brown, Atty. Gen., Silas Taylor, Dist. Atty. Gen., for appellee.

McIntyre, Haviland & Jordan, Webster J. Arceneaux, III, Charleston, for AFSCME.

Barbara J. Fleischauer, Morgantown, for NOW.

McHUGH, Justice:

In this original proceeding the petitioners, Laura Kerns and the West Virginia Human Rights Commission, seek a writ of mandamus compelling the respondents, the President of West Virginia University and the West Virginia Board of Regents, to pay Ms. Kerns the damages that were awarded to her by the West Virginia Human Rights Commission as the result of the Commission's finding of employment discrimination by the respondents' agents against Ms. Kerns on the basis of her sex. The respondents assert that they are immune from liability for the employment discrimination damages by virtue of state constitutional governmental immunity. They argue that Ms. Kerns should seek to enforce the Commission's monetary award by seeking a recommendation of a moral obligation in the West Virginia Court of Claims and funding of the same by the legislature. We hold that state constitutional governmental immunity is superseded in this case by federal constitutional protection against employment discrimination. Accordingly, we grant the writ of mandamus.

I

On May 30, 1978, the petitioner Laura Kerns submitted an application for employment with the West Virginia University Cooperative Extension Service, seeking employment in agriculture and community development, as an extension agent or an associate extension agent. At all times relevant to this proceeding, the West Virginia University Cooperative Extension Service has been a division of the West Virginia University Center for Continuing Education and has been under the ultimate control of the respondent President of West Virginia University and the respondent West Virginia Board of Regents.

At the time that Laura Kerns submitted her application for employment, she had completed both a bachelor of science degree in wildlife and fisheries management and a master's degree in agriculture, in the School of Agriculture and Forestry at West Virginia University, and had employment experience related to the positions she sought.

After Laura Kerns submitted her application for employment, there were a number of vacancies for extension agents and associate extension agents, in agriculture and community development; however, Laura Kerns was notified that she would not be hired for any of the positions she sought. She later learned that each of the positions had been filled by a male applicant who had only a bachelor's degree and was no more qualified for the positions than she.

In March of 1979, Laura Kerns timely filed a complaint of employment discrimination with the West Virginia Human Rights Commission. ¹

After Laura Kerns had been denied employment with West Virginia University and had filed her complaint with the West Virginia Human Rights Commission, she continued to work at various jobs that paid less than the positions she had sought at West Virginia University. These jobs, in her opinion, did not offer as great a degree of professional fulfillment as would the positions at West Virginia University. Laura Kerns also completed additional schooling to qualify for a position as a high school teacher. She has been employed as a high school teacher on a full-time basis for several years.

After over six years of administrative agency delay, Ms. Kerns' complaint was brought on for hearing. In September and October of 1985, a hearing examiner for the West Virginia Human Rights Commission held a hearing on Laura Kerns' complaint. The evidence adduced at the hearing indicated that, in 1978, respondents employed fifty-three males and one female as agricultural extension agents. By 1985, these numbers had changed little: fifty males and two females were employed as agricultural extension agents throughout the State. In contrast, in 1978, forty-four females and no males were employed as home economics extension agents throughout the State, and by 1985, forty-seven females and no males were employed in that job capacity.

Following this hearing, the hearing examiner, on December 9, 1985, issued a recommended decision, which included detailed findings of fact and conclusions of law and a determination that Laura Kerns had been discriminated against in employment on the basis of her sex by the West Virginia University Cooperative Extension Service. The recommended decision of the hearing examiner found that Laura Kerns was entitled to back pay in the stipulated amount of $23,242.98; costs of further education in the amount of $1,740.50; damages for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity in the amount of $1,000.00; ² and reasonable attorney's fees and costs, in the amount of $18,193.45.

On March 11, 1986, the West Virginia Human Rights Commission reviewed the findings of fact and conclusions of law submitted by the hearing examiner and adopted these findings and conclusions as its own, with two modifications: damages for back pay in the amount of $23,242.98 were amended by the addition of prejudgment interest at the rate of ten percent per year from September 15, 1978, to September 13, 1985, the date the hearing commenced; and damages for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity were increased to $5,000.00. These modifications were set out in the order entered by the West Virginia Human Rights Commission on March 21, 1986.

The West Virginia University Cooperative Extension Service promptly requested reconsideration of the Commission's order. On September 11, 1986, the West Virginia Human Rights Commission issued an order denying the motion for reconsideration.

Pursuant to the pertinent portion of the State Administrative Procedures Act, W.Va.Code, 29A-5-4(b), as amended, the respondents herein had thirty days from receipt of the final order of the West Virginia Human Rights Commission to seek judicial review. ³ No appeal was ever filed by the respondents herein.

After receiving a negative reply from the respondents to a letter demanding payment of the West Virginia Human Rights Commission's employment discrimination award (totalling over $70,000, including interest on the back pay, in November, 1986), the petitioner, Laura Kerns, brought this mandamus proceeding to compel payment of the award. She also seeks recovery of reasonable attorney's fees incurred in this proceeding. The West Virginia Human Rights Commission joined in this proceeding to preserve the integrity of its orders. ⁴

In addition to the briefs of the parties, we have reviewed the briefs of amici curiae, namely, the National Organization for Women, the National Association for the Advancement of Colored People, the Mountain State Bar Association, the National Lawyers Guild and the American Federation of State, County and Municipal Employees.

II

A.

W. Va. Const. art. VI, § 35 provides: "The State of West Virginia shall never be made defendant in any court of law or equity, ..." In syllabus point 2 of Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979), this Court recognized that this state constitutional provision protects the fiscal integrity of the State:

In certain instances a suit may be maintained against a State official in his individual capacity, notwithstanding the constitutional immunity provision found in Article VI, Section 35 of the West Virginia Constitution, where the relief sought involves a prospective declaration of the parties' rights. However, where the relief sought involves an attempt to obtain a retroactive monetary recovery against the official based on his prior acts and which recovery is payable from State funds, the constitutional immunity provision bars such relief. ⁵

That the primary purpose of this state constitutional provision is to prevent the diversion of state money from legislatively appropriated purposes to the payment of court awards is apparent also in syllabus point 2 of Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983): "Suits which seek no recovery from state funds, but rather allege that recovery is sought...