McJunkin Corp. v. West Virginia Human Rights Com'n

• Decision Date: 22 April 1988
• Docket Number: No. 17932,17932
• Citation: 179 W.Va. 417,369 S.E.2d 720
• Parties: , 51 Empl. Prac. Dec. P 39,398 McJUNKIN CORPORATION v. WEST VIRGINIA HUMAN RIGHTS COMMISSION; Russell Van Cleve, Chairman; and Perry Sumner.
• Court: West Virginia Supreme Court

Page 720

369 S.E.2d 720

179 W.Va. 417, 51 Empl. Prac. Dec. P 39,398

McJUNKIN CORPORATION v. WEST VIRGINIA HUMAN RIGHTS COMMISSION; Russell Van Cleve Chairman; and Perry Sumner.

No. 17932.

Supreme Court of Appeals of West Virginia.

April 22, 1988.

Syllabus by the Court

1. "Due process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments." Syl. pt. 2, State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641 (1960).

2. In an administrative adjudication before the West Virginia Human Rights Commission, a complaint alleging a violation or violations of the West Virginia Human Rights Act, W.Va.Code, 5-11-1 to 5-11-19, as amended, must be sufficient to advise the adversarial party of the matters charged, and the charges must be adequately clear and specific to allow preparation of a defense.

3. An allegation of an illegal layoff contained in a complaint to the West Virginia Human Rights Commission does not encompass an allegation of an illegal failure to rehire where no allegation relating to such failure to rehire is filed or where no amendment regarding such failure is made to the complaint within 180 days after the failure to rehire. W.Va.Code, 5-11-10 [1987].

4. Where an issue is not raised by the complainant in a complaint to the West Virginia Human Rights Commission, the Commission's hearing examiner is precluded from independently raising the issue and deciding it on the merits where the respondent has not received adequate notice of the issue in the form of a complaint or an amendment thereto nor had an opportunity to defend his or her position, provided that the issue not raised in the complaint or an amendment thereto is not heard by the express or implied consent of the parties.

Charles G. Brown, Atty. Gen., Sharon Mullens, Asst. Atty. Gen., Charleston, for WVHRC, Russell Vancleve, Perry Sumner.

Ricklin Brown, Charleston, for McJunkin Corp.

McHUGH, Chief Justice:

This case is before this Court upon appeal pursuant to W.Va.Code, 29A-6-1 [1964], part of the State Administrative Procedures Act. It arises from a final order of the Circuit Court of Kanawha County wherein the trial court reversed the findings of the West Virginia Human Rights Commission (hereinafter "the Commission"), which had determined that the appellee was guilty of an unlawful discriminatory practice under the West Virginia Human Rights Act, specifically, W.Va.Code, 5-11-9 [1981].

The appellants are the West Virginia Human Rights Commission and Perry Sumner. The Commission is the state administrative agency charged with enforcement of the West Virginia Human Rights Act. Mr. Sumner is the aggrieved former employee of McJunkin Corporation.

The appellee, McJunkin Corporation, is a West Virginia corporation with its principal corporate offices located in Charleston, West Virginia, and with operations in eighteen states.

I

The appellant, Perry Sumner, began working for the appellee in August of 1978. He was hired to drive trucks, principally tractor trailers, based in Princeton, West Virginia. Mr. Sumner was laid off on May 6, 1983, and it is undisputed by the parties that the appellant's layoff was a result of serious economic difficulties encountered by the appellee. The appellant was 45 years old at the time of his termination.

On July 5, 1983, the appellant filed two complaints with the Commission alleging that his termination from his truck driving position constituted an illegal discriminatory practice based upon age and upon a physical handicap. The Commission subsequently conducted an investigation of these complaints and determined that probable cause existed for substantiating the allegations of the complaint, pursuant to W.Va.Code, 5-11-10 [1987]. ¹ A hearing on the complaints was held before one of the Commission's hearing examiners.

Subsequent to the filing of the complaints in this proceeding, the appellee rehired at least two employees who had been laid off. Although evidence was introduced at the appellant's hearing regarding at least one of the rehires, the appellant had at no time from the date of filing the original age discrimination complaint on July 5, 1983, alleged, pleaded or amended his original complaint to include an unlawful discrimination allegation based upon the appellee's failure to rehire him. Nevertheless, the hearing examiner filed his recommended decision on March 5, 1985, in which he determined that the appellant had not met the requisite burden of proof to show age discrimination in the layoff which occurred in the spring of 1983, but that he had demonstrated that he was the victim of illegal age discrimination when the appellee failed to rehire him later that year.

The Commission entered its final order which adopted "the Findings of Fact and Conclusions of Law [of the Hearing Examiner] as its own." ² The appellee then filed a petition for an administrative appeal in the Circuit Court of Kanawha County, pursuant to W.Va.Code, 29A-5-4(b) [1964]. The circuit court reversed the Commission's order, holding that the decision was not supported by substantial evidence on the whole record presented to the court.

II

The narrow issue before this Court is whether the illegal layoff charge maintained in the appellant's complaint to the Commission encompassed an allegation of an illegal failure to rehire where no additional complaint relating to rehire and no amendments to the original complaint relating to such were filed within 180 days after the alleged discriminatory failure to rehire. ³

The appellant contends that although the allegation of an illegal failure to rehire was not specifically charged in the complaint, it was heard by the express or implied consent of the parties and should thus be treated as if it had been raised in the pleadings. ⁴

On the other hand, the appellee maintains that the appellant, from the date of filing the complaint on July 5, 1983, through and including the date of the hearing examiner's decision, never alleged or otherwise argued that he had been discriminated against because of the appellee's failure to rehire him to his job as a tractor-trailer driver. The appellee emphasizes that the appellant did not amend the complaint and that the appellee was not given notice that the rehire issue was to be an issue in the discrimination complaint or at the hearing.

The requisite notice provision for complaints filed in human rights proceedings in West Virginia is found in W.Va.Code, 5-11-10 [1987], which provides in pertinent part:

Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice shall make, sign and file with the commission a verified complaint, which shall state the name and address of the person, employer, labor organization, employment agency, owner, real estate broker, real estate salesman or financial institution alleged to have committed the unlawful discriminatory practice complained of, and which shall set forth the particulars thereof and contain such other information as may be required by the commission's rules and regulations.... Any complaint filed pursuant to this article must be filed within one hundred eighty days after the alleged act of discrimination. ⁵

In addition, the Commission has promulgated rules and regulations regarding practice and procedure before it which are helpful in the resolution of this case. Rule 3.6(a) is particularly instructive and states:

(a) The Commission or the complainant may amend a complaint or any part thereof to cure technical defects or omissions, ... to clarify and amplify allegations made therein, when such amendments relate back to the original filing date; Provided, however, That an amendment alleging additional acts constituting unlawful discriminatory practices not related [to] or growing out of the subject matter of the original complaint will be permitted only where at the date of the amendment the allegations could have been timely filed as a separate charge.

(emphasis in original)

This rule envisions that a complaint can be amended when necessary by either a complainant or the Commission to amplify or clarify allegations made in the original complaint which relate back to the original filing date. However, amendments alleging additional subsequent discriminatory practices which are not related to or do not grow out of the allegations in the original complaint are permitted only if, at the date of the amendment, those allegations could be timely brought as a separate charge.

It is fundamental that "[d]ue process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments." ⁶ Syl. pt. 2, State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641 (1960); accord, Allen v. State Human Rights Commission, --- W.Va. ---, ---, 324 S.E.2d 99, 117 (1984); syl. pt. 5, State ex rel. Bowen v. Flowers, 155 W.Va. 389, 184 S.E.2d 611 (1971); syl. pt. 2, State ex rel. Gooden v. Bonar, 155 W.Va. 202, 183 S.E.2d 697 (1971).

The right to be heard in an adjudicatory proceeding before an administrative agency has no meaning unless notice is afforded. A. Neely, Administrative Law in West Virginia § 5.11, at 274 (1982). Clearly, notice is an issue of crucial importance throughout the adjudication of a contested case. Failure to provide adequate and timely notice in a contested case is significant if the parties are to have the opportunity to prepare a defense and cross-examine witnesses. Id.

The purpose of notice requirements is to make certain that the prospective party in a contested case is aware of the impending proceeding and its substance with sufficient certainty to be in a position to answer and participate. See, e.g., Waite v. Civil Service Commission, 161 W.Va. 154, 164-65, 241 S.E.2d 164, 170 (...