Morris Memorial Convalescent Nursing Home, Inc. v. West Virginia Human Rights Com'n

• Decision Date: 21 May 1993
• Docket Number: No. 21456,21456
• Court: West Virginia Supreme Court
• Parties: , 2 A.D. Cases 1046, 4 NDLR P 124 MORRIS MEMORIAL CONVALESCENT NURSING HOME, INC., Appellant, v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Viola Mayes, Appellees.

Page 353

431 S.E.2d 353

189 W.Va. 314, 2 A.D. Cases 1046, 4

NDLR P 124

MORRIS MEMORIAL CONVALESCENT NURSING HOME, INC., Appellant, v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Viola Mayes, Appellees.

No. 21456.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 26, 1993.

Decided May 21, 1993.

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

2. In order to establish a case of discriminatory discharge under W.Va.Code, 5-11-9 [1989], with regard to employment because of a handicap, the complainant must prove as a prima facie case that (1) he or she meets the definition of "handicapped," (2) he or she is a "qualified handicapped person," and (3) he or she was discharged from his or her job. The burden then shifts to the employer to rebut the complainant's prima facie case by presenting a legitimate nondiscriminatory reason for such person's discharge. If the employer meets this burden, the complainant must prove by a preponderance of the evidence that the employer's proffered reason was not a legitimate reason but a pretext for the discharge.

3. "A 'qualified handicapped person' under the West Virginia Human Rights Act and the accompanying regulations is one who is able and competent, with reasonable accommodation, to perform the essential functions of the job in question." Syl. pt. 1, Coffman v. West Virginia Board of Regents, 182 W.Va. 73, 386 S.E.2d 1 (1988).

Lafe C. Chafin, Barrett, Chafin & Lowry, Huntington, for appellant.

Darrell V. McGraw, Jr., Mary Catherine Buchmelter, Office of the Atty. Gen., Charleston, for appellees.

McHUGH, Justice:

This action is before this Court upon an appeal from the August 17, 1992 order of the West Virginia Human Rights Commission. The Commission determined that the appellant, Morris Memorial Convalescent Nursing Home, Inc., illegally discriminated against the appellee, Viola Mayes, with regard to her employment because of a handicap. On appeal, the appellant asks that this Court reverse the ruling of the Commission and grant such relief as may be proper. For the reasons stated below, the decision of the West Virginia Human Rights Commission is affirmed.

I

At approximately twelve years of age, Viola Mayes experienced a substantial hearing loss which has resulted in her hearing impairment. However, her speech patterns and syntax were well developed, and therefore, she does not need to use sign language in order to communicate with others.

The appellant is a West Virginia corporation licensed as an intermediate care facility. Approximately 170 patients reside at the nursing home, and 72% of the patients are confined to their rooms.

The appellant hired Ms. Mayes as a dietary aide on March 2, 1988, and she began work the next day. Ms. Mayes' duties consisted of cooking, washing dishes, filling trays, preparing food and delivering snacks. The appellant asserts that Ms. Mayes' co-workers attempted to help Ms. Mayes become acclimated to her new job; yet, Ms. Mayes could never master her duties and every day she would repeatedly ask for instructions and directions. The immediate supervisors of Ms. Mayes approached the appellant's administrator and told him they did not believe Ms. Mayes was capable of adequately performing her job.

The appellees, the Commission and Ms. Mayes, claim that Ms. Mayes was unaware of anyone being unhappy with her job performance. The appellees further assert that no one ever told Ms. Mayes that she was not doing a good job. The appellant informed Ms. Mayes that she was fired by calling her sister, Ms. Stella Alford, who was also employed by the appellant, and asked Ms. Alford to tell Ms. Mayes, "we don't need her to come back anymore." Ms. Betty Sunderland, the appellant's business manager, contacted Ms. Alford, and according to Ms. Alford, stated, "due to the communication, she's not able to do the work, she can't hear well enough." Ms. Alford then relayed the message to her sister, and on March 23, 1988, Ms. Mayes' employment with the appellant was terminated. The appellant, however, claims that Ms. Mayes' employment was terminated due to her inability to perform the duties required of a dietary aide.

Shortly thereafter, Ms. Mayes, in pursuit of employment, took the West Virginia Civil Service Examination for a food handler and scored 85.62 out of a possible score of 98. Ms. Mayes was later hired by the Veterans Home in Barboursville, West Virginia, as a food service helper performing work similar to what she had previously performed for the appellant.

II

On May 29, 1988, Ms. Mayes filed an action with the West Virginia Human Rights Commission, against the appellant, claiming that she had been illegally discriminated against with regard to her employment because of her hearing impairment. On June 6, 1990, a hearing was held in Huntington, West Virginia.

The Commission entered a final order in this case on August 17, 1992, which in essence affirmed the hearing examiner's final decision. The Commission found that the appellant had illegally discriminated against Ms. Mayes. Furthermore, in the order, the Commission concluded that Ms. Mayes, pursuant to W.Va.Code, 5-11-3(t) [1989], ¹ is a handicapped person with a physical impairment, and, with reasonable accommodation, she possesses the skill to do the job for which she was hired. The Commission further concluded that the appellant's explanation for terminating Ms. Mayes was pretextual and in violation of the West Virginia Human Rights Act. As a result of the Commission's finding of discrimination, Ms. Mayes was awarded: (1) $6,331.50 in back pay, plus pre-judgment interest thereon at the rate of 10% per annum, and (2) incidental damages in the sum of $2,950.00 for embarrassment, emotional distress, humiliation and loss of personal dignity.

It is from the order of August 17, 1992 that the appellant appeals to this Court.

III

We note initially that the "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). See Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986).

This Court has defined substantial evidence as

such relevant evidence, on the whole record, as a reasonable mind might accept as adequate to support a finding; it must be enough to justify a refusal to direct a verdict, if the factual matter were tried to a jury. 'This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.' The reviewing court is not entitled to reverse the finding of the trier of the facts simply because the reviewing court is convinced that it would have weighed the evidence differently if it had been the trier of the facts.

Brammer v. West Virginia Human Rights Commission, 183 W.Va. 108, 111, 394 S.E.2d 340, 343 (1990) (internal citations omitted), quoting West Virginia Institute of Technology v. West Virginia Human Rights Commission, 181 W.Va. 525, 532-33, 383 S.E.2d 490, 497-98 (1989). Applying this scope of review in the instant case, we believe the finding of discrimination is supported by substantial evidence on the whole record.

The ultimate issue on appeal is whether the Commission's finding that the appellant illegally discriminated against Ms. Mayes was erroneous. The appellant contends that the findings of the Commission are clearly wrong and are unsupported by substantial evidence. It is also necessary, however, to establish the principles to be applied in a case of discriminatory discharge because of a handicap.

First, we begin our analysis by recognizing that there are two theories of employment discrimination, the disparate impact theory and the disparate treatment theory. The first theory focuses on the discriminatory effect of the employer's acts, the second on the discriminatory motive of the employer. See Alexander v. Frank, 777 F.Supp. 516 (N.D.Tex.1991). More specifically, "[t]he disparate impact theory is invoked to attack facially neutral policies which, although applied evenly, impact more heavily on a protected group." Racine United School District v. Labor and Industry Review Commission, 164 Wis.2d 567, 476 N.W.2d 707, 718 (1991), citing Griggs v. Duke Power Co., 401 U.S. 424, 430-32, 91 S.Ct. 849, 853-54, 28 L.Ed.2d 158, 163-65 (1971). "Under the disparate treatment theory, the complainant must show that the employer treats some people less favorably than others because they belong to a protected class." Racine United School District, supra at 718, citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36, 97 S.Ct. 1843, 1854-55, 52 L.Ed.2d 396, 415-16 (1977). "Thus, a complainant asserting a disparate treatment theory must prove discriminatory intent to prevail, while a complainant asserting a disparate impact theory need not offer any such proof." Id.

In the instant case, the appellant denies terminating Ms. Mayes' employment because of her handicap. Rather, the appellant claims that the termination of Ms. Mayes' employment was based upon her inability to perform the skills required of a dietary aide. Therefore, the disparate treatment theory is applicable in that the issue of the employer's motivation, behind its decision to terminate Ms. Mayes' employment, must be resolved.

The standard announced in the United States Supreme Court case of McDonnell Douglas Corporation v. Green,...