Montgomery General Hosp. v. West Virginia Human Rights Com'n

• Decision Date: 10 July 1986
• Docket Number: No. 17028,17028
• Parties: , 43 Empl. Prac. Dec. P 37,124 MONTGOMERY GENERAL HOSPITAL v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Pamela C. Evans Franco.
• Court: West Virginia Supreme Court

Page 557

346 S.E.2d 557

176 W.Va. 580, 43 Empl. Prac. Dec. P 37,124

MONTGOMERY GENERAL HOSPITAL v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Pamela C. Evans Franco.

No. 17028.

Supreme Court of Appeals of West Virginia.

July 10, 1986.

Syllabus by the Court

1. "Discrimination based upon pregnancy constitutes illegal sex discrimination under the West Virginia Human Rights Act, W.Va.Code, 5-11-9(a) [1981]." Syl. pt. 2, Frank's Shoe Store v. West Virginia Human Rights Commission, W.Va., 365 S.E.2d 251, No. (1986).

2. " 'In an action to redress unlawful discriminatory practices in employment and access to "place[s] of public accommodations" under the West Virginia Human Rights Act, as amended, W.Va.Code, 5-11-1 et seq., the burden is upon the complainant to prove by a preponderance of the evidence a prima facie case of discrimination.... If the complainant is successful in creating this rebuttable presumption of discrimination, the burden then shifts to the respondent to offer some legitimate and nondiscriminatory reason for the rejection. Should the respondent succeed in rebutting the presumption of discrimination, then the complainant has the opportunity to prove by a preponderance of the evidence that the reasons offered by the respondent were merely a pretext for the unlawful discrimination.' Syl. pt. 3, in part, Shepherdstown VFD v. West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983)." Syl. pt. 1, State ex rel. State Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985).

3. "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 Volunteer Fire Department v. State ex rel. State Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).

4. "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 Commission v. United Transportation Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).

Sharon M. Mullens, Asst. Atty. Gen., Charleston, for appellants.

Fred Holroyd, Holroyd & Yost, Charleston, for appellee.

PER CURIAM:

The West Virginia Human Rights Commission and Pamela Franco appeal from a final order, dated April 12, 1985, entered in the Circuit Court of Fayette County, reversing the Commission's order of April 1, 1982, which found that Montgomery General Hospital unlawfully discriminated against Franco when it discharged her from employment because she was pregnant. We now reverse the order of the circuit court and reinstate the decision of the Commission.

I

Pamela Franco worked at Montgomery General Hospital as a clerk, half-time in the pharmacy and half-time in the stores department. At the time she was hired, Franco was pregnant but unaware of her condition. She indicated in her employment application that she was not pregnant. The hospital administered a pre-employment physical examination including urine and blood tests, but not a test for pregnancy.

Franco was terminated after working approximately four months. At the time of the termination, certain personnel who worked part-time or had less seniority in the pharmacy than Franco were retained. She filed a complaint with the West Virginia Human Rights Commission (Commission) charging that the hospital had discriminated against her on the basis of sex. In its answer, the hospital denied the alleged discrimination and stated that the complainant was fired for cause but did not specify the cause.

The Commission found probable cause that the hospital had engaged in unlawful discrimination based upon sex. Following a public hearing, the hearing examiner forwarded her recommendations to the Commission.

The Commission determined that the complainant carried her burden of proving a case of unlawful sex discrimination. Accordingly, the Commission ordered the complainant reinstated with back pay and awarded damages against the hospital for consequential monetary loss, emotional distress and embarrassment. ¹ The hospital appealed.

The Circuit Court of Fayette County concluded that the final order of the Commission was clearly wrong and reversed it.

The Commission and the complainant contend that the circuit court erred by failing to adhere to the limited scope of review prescribed by W.Va.Code, 29A-5-4 [1964], and by failing to analyze the evidence of discrimination in accordance with the correct legal standard.

II

At the outset we note that the employer does not dispute that employment discrimination based upon pregnancy is an unlawful discriminatory practice. For our decision in this case to rest on a solid foundation, we restate the holding that "[d]iscrimination based upon pregnancy constitutes illegal sex discrimination under the West Virginia Human Rights Act, W.Va.Code, 5-11-9(a) [1981]." Syl. pt. 2, Frank's Shoe Store v. West Virginia Human Rights Commission, W.Va., 365 S.E.2d 251, (1986).

The basic framework of an unlawful discrimination case is outlined in syl. pt. 1 of State ex rel. State Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985):

'In an action to redress unlawful discriminatory practices in employment and access to "place[s] of public accommodations" under the West Virginia Human Rights Act, as amended, W.Va.Code, 5-11-1 et seq., the burden is upon the complainant to prove by a preponderance of the evidence a prima facie case of discrimination.... If the complainant is successful in creating this rebuttable presumption of discrimination, the burden then shifts to the respondent to offer some legitimate and nondiscriminatory reason for the rejection. Should the respondent succeed in rebutting the presumption of discrimination, then the complainant has the opportunity to prove by a preponderance of the evidence that the reasons offered by the respondent were merely a pretext for the unlawful discrimination.' Syl. pt. 3, in part, Shepherdstown VFD v. West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).

This model, derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), was first adopted by this Court in Shepherdstown Volunteer Fire Department v. State ex rel. State Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).

In the case now before us, the Commission formulated the following prima facie case:

(a) that the Complainant belongs to a protected group; (b) that she is qualified to obtain or remain in that position; (c) that she is not hired or that she is removed from her position regardless of her qualifications or length of service; and (d) that the Respondent thereafter sought or retained others with equivalent qualifications who were not pregnant.

Recognizing that the Commission may tailor the elements of a prima facie case to fit the type of discrimination, we believe that the initial burden imposed on the complainant by the Commission was appropriate. See State ex rel. State Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., supra, 174 W.Va. at 716-717, 329 S.E.2d at 83.

It is clear that the Commission correctly found that the complainant established a prima facie case of unlawful discrimination. This finding was not challenged by the hospital in the circuit court proceeding, nor was it disturbed by the circuit court.

It is equally clear that the hospital successfully rebutted the presumption of unlawful discrimination created by the complainant's prima facie case. Hospital officials testified that a decrease in the patient population was the reason for the termination of the complainant. The Commission properly determined that the hospital met its burden of articulating a legitimate nondiscriminatory reason. The employer "bears only the burden of explaining clearly the nondiscriminatory reasons for its actions." Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 260, 101 S.Ct. at 1097, 67 L.Ed.2d at 219, cited in State ex rel. State Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., supra, 174 W.Va. at 720, 329 S.E.2d at 86. See also Shepherdstown Volunteer Fire Department v. State ex rel. State Human Rights Commission, supra, 172 W.Va. at 637, 309 S.E.2d at 352.

The Commission ultimately found, however, that the reason offered by the hospital to explain the termination was a pretext. See generally State ex rel. State Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., supra, 174 W.Va. at 720-721, 329 S.E.2d at 87. The circuit court reversed the Commission's decision on the grounds that the finding of a pretext was arbitrary, capricious clearly wrong and not supported by substantial evidence.

Syl. pt. 2 of Shepherdstown Volunteer Fire Department v. State ex rel. State Human...