Liller v. West Virginia Human Rights Com'n

• Decision Date: 21 December 1988
• Docket Number: 18535,Nos. 18318,s. 18318
• Citation: 180 W.Va. 433,376 S.E.2d 639
• Parties: , 69 Fair Empl.Prac.Cas. (BNA) 565, 51 Empl. Prac. Dec. P 39,386 Jim LILLER, Sheriff of Preston County, and Preston County Sheriff's Department v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Cynthia McCrobie. Jim LILLER, Sheriff v. Cynthia D. McCROBIE v. PRESTON COUNTY CIVIL SERVICE COMMISSION FOR DEPUTY SHERIFFS.
• Court: West Virginia Supreme Court

Page 639

376 S.E.2d 639

180 W.Va. 433, 69 Fair Empl.Prac.Cas. (BNA) 565,

51 Empl. Prac. Dec. P 39,386

Jim LILLER, Sheriff of Preston County, and Preston County Sheriff's Department v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Cynthia McCrobie.

Jim LILLER, Sheriff v. Cynthia D. McCROBIE v. PRESTON COUNTY CIVIL SERVICE COMMISSION FOR DEPUTY SHERIFFS.

Nos. 18318, 18535.

Supreme Court of Appeals of

West Virginia.

Dec. 21, 1988.

Syllabus by the Court

1. " 'It is well established that the word "shall," in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.' Syl. Pt. 1, Nelson v. West Virginia Public Employees Ins. Bd., 171 W.Va. 445, 300 S.E.2d 86 (1982)." Syllabus Point 1, Underwood v. County Comm'n of Kanawha County, 176 W.Va. 740, 349 S.E.2d 443 (1986).

2. W.Va.Code, 7-14-17 (1981), requires the award of back pay and certain limited attorney's fees when a deputy sheriff is reinstated by a deputy sheriff civil service commission.

3. Civil service commissions have no authority beyond that bestowed by statute or necessarily implied from such statute.

4. The legislature did not intend that the exclusivity provisions of W.Va.Code, 5-11-13(a) (1981), would automatically preclude an employee who files a civil service claim from subsequently filing a complaint with the Human Rights Commission alleging a violation of the West Virginia Human Rights Act.

5. Where the issue of sex discrimination has not been decided by a deputy sheriff civil service commission, the involved deputy is not foreclosed from filing a complaint with the human rights commission.

Charles G. Brown, Atty. Gen., Antionette Eates, Asst. Atty. Gen., Charleston, Barbara Fleischauer, Morgantown, for Cynthia McCrobie.

Melvin C. Snyder, Jr., Pros. Atty., Kingwood, for Liller.

Edwin C. Runner, Kingwood, for Civil Service Com'n.

MILLER, Justice.

Cynthia McCrobie, a former deputy sheriff in Preston County who was discharged by Preston County Sheriff Jim Liller, appeals two adverse decisions of the Circuit Court of Preston County, both of which arise from circumstances of her employment and discharge. Deputy McCrobie first appeals the circuit court's decision concerning her civil service grievance, which denied her back pay and attorney's fees under W.Va.Code, 7-14-1, et seq. (1986). She also appeals the circuit court's dismissal of her sex discrimination complaint to the West Virginia Human Rights Commission under W.Va.Code, 5-11-1, et seq. (1967). Because of the interrelationship of both appeals, we have considered them together and, for the reasons set forth below, we reverse the decisions of the circuit court.

I.

On February 20, 1984, Deputy McCrobie became the first woman deputy sheriff in Preston County. In January, 1986, Deputy McCrobie became pregnant. She desired to continue to work both before and after the birth of her child. On April 10, 1986, Deputy McCrobie reported for work out of uniform because her uniform no longer fit properly, and Sheriff Liller called her into his office to speak with her concerning her uniform. Before this time, Deputy McCrobie had not communicated directly to Sheriff Liller any information concerning her pregnancy. ¹ As a result of the April 10, 1986 meeting, Sheriff Liller sent Deputy McCrobie home. He provided her with information on sick leave and requested that she provide him with information on her physical limitations, including any limitations recommended by her doctor.

On April 18, 1986, the parties reached an understanding concerning her duties and uniform. Sheriff Liller paid the cost of the maternity uniforms and she provided the sheriff with a list of duties she could perform, one of which was filling in for a dispatcher. The sheriff credited her with working on April 10 and 18, 1986, and counted the remaining days missed as three compensatory and two vacation days. On her return, Deputy McCrobie worked as a dispatcher until her discharge on June 14, 1986.

In Preston County, the dispatcher's office serves as a communication center for all emergency services, including fire and police, and is operated twenty-four hours per day. On June 14, 1986, Deputy McCrobie was scheduled to work in the dispatch office on the 12:01 a.m. to 8:00 a.m. shift. The schedule was prepared by Vince Padovini, the chief dispatcher, about the end of May for the entire month of June. ² When this schedule was first prepared, Deputy McCrobie objected. At a meeting with the chief dispatcher and chief deputy, she was advised that she would have to work the days listed on the schedule.

On June 4, 1986, Deputy McCrobie submitted a written request to Chief Deputy Fields for compensatory days off, one of which was June 14, 1986. Chief Deputy Fields decided to deny her request, but was unable to contact her verbally before he left for vacation on June 6, 1986, and did not notify her in writing of his denial. No changes were made in the schedule. By June 12, 1986, Deputy McCrobie had received no notice concerning her request.

The usual practice of the sheriff's department concerning compensatory days off was to submit a written request and to receive verbal notification of approval or denial. ³ Deputy McCrobie left a memo dated June 12, 1986, for the day shift dispatcher. The memo stated that she did not know if she had received approval for a compensatory day off on the 14th, and requested the dispatcher to "count the 14th as a sick day and call me sometime around 1200 hours on the 14th to let me know about the 15th." Deputy McCrobie did not report for work on June 14, 1986, and, because of the advance notice, Sheriff Liller made arrangements for another dispatcher for the midnight shift.

About 12:30 p.m. on June 14, 1986, some four hours after the scheduled shift ended, Deputy McCrobie spoke to Sheriff Liller to see if her leave had been approved. Sheriff Liller told her that she was terminated because of her failure to report as scheduled. By letter dated June 16, 1986, Sheriff Liller confirmed the termination of her employment because of (1) her failure to report for duty on June 14, 1986, and (2) her "failure to report for duty for a number of days in April of 1986 ..., without any prior approval, [which] has demonstrated a lack of regard or responsibility by a Deputy Sheriff."

As a result of her termination, Deputy McCrobie sought relief from both the Civil Service Commission for deputy sheriffs in Preston County (CSC) under W.Va.Code, 7-14-1, et seq. (1987), and the West Virginia Human Rights Commission (HRC) under W.Va.Code, 5-11-1, et seq. (1967). On June 18, 1986, Deputy McCrobie filed a grievance with the CSC. ⁴ Following a hearing held on July 18, 1986, the CSC entered an order on September 15, 1986, finding that although Deputy McCrobie's action indicated a wrongful intent, her action did not constitute gross misconduct because she gave notice as to her time off and the rights and interests of the public were not adversely affected. Based on this finding of insufficient cause for termination, the CSC ordered that Deputy McCrobie be reinstated immediately to her position without back pay and without an award of attorney's fees.

This order was appealed to the Circuit Court of Preston County by Deputy McCrobie on the basis that the CSC was required to award back pay and attorney's fees under W.Va.Code, 7-14-17(a) (1981), once reinstatement was found to be appropriate. The sheriff also appealed contending the record supported the discharge. On July 7, 1987, the circuit court upheld the decision of the CSC as to reinstatement, but declined to order back pay or attorney's fees.

On September 5, 1986, the HRC received background information from Deputy McCrobie. On September 12, 1986, a Memorandum of Complaint was filed by the HRC alleging sex discrimination. Sheriff Liller filed a motion to dismiss and an answer with the HRC. By letter dated November 3, 1986, Howard D. Kenny, Executive Director of the HRC, informed the Sheriff that the HRC had jurisdiction in this matter. ⁵

On January 9, 1987, the HRC issued a subpoena duces tecum to the Preston County Sheriff's Department. On January 16, 1987, Sheriff Liller requested that the Circuit Court of Preston County quash the subpoena duces tecum and dismiss the case before the HRC. The circuit court subsequently granted the motion, quashed the subpoena, and dismissed the case. ⁶

On appeal, Deputy McCrobie argues that the circuit court in her civil service case erroneously denied her back pay and attorney's fees in contravention of W.Va.Code, 7-14-17(a) (1981). In her human rights case, Deputy McCrobie argues that the circuit court incorrectly applied the exclusivity provisions of W.Va.Code, 5-11-13 (1983). Because we agree, we reverse both decisions of the circuit court.

II.

Deputy McCrobie contends that the CSC's order granting her reinstatement contained a mistake of law, because it failed to grant her back pay and attorney's fees as required by W.Va.Code, 7-14-17(a) (1981):

"[I]n the event the removing sheriff fails to justify his action before the commission, then the deputy removed, discharged, suspended or reduced shall be reinstated with full pay, forthwith and without any additional order, for the entire period during which he may have been prevented from performing his usual employment.... The deputy if reinstated or exonerated, shall, if represented by legal counsel, be awarded an attorney fee of no more than two hundred fifty dollars[.]" (Emphasis added). ⁷

We have consistently held that the word "shall" in a statute must be given a mandatory connotation, absent a showing of a contrary intent. In Syllabus Point 1 of Underwood v. County Comm'n of Kanawha County, 176 W.Va. 740, 349 S.E.2d 443 (1986), we stated:

" 'It is well established that the word "shall," in the absence of language in the statute showing a contrary intent on the part of the Legislature,...