Shepherdstown Volunteer Fire Dept. v. State ex rel. State of West Virginia Human Rights Com'n, Nos. 15467

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH
Citation172 W.Va. 627,309 S.E.2d 342
PartiesSHEPHERDSTOWN VOLUNTEER FIRE DEPT., a Corp. v. STATE of West Virginia ex rel. STATE OF WEST VIRGINIA HUMAN RIGHTS COMMISSION and Patricia Waldeck and Judy Pittinger. BERKELEY SPRINGS VOLUNTEER FIRE DEPT. v. Christine SWAIM, Judy Younker, Linda Vangosen, and State of W. Va. Human Rights Commission.
Docket NumberNos. 15467,15749
Decision Date10 November 1983

Page 342

309 S.E.2d 342
172 W.Va. 627
SHEPHERDSTOWN VOLUNTEER FIRE DEPT., a Corp.
v.
STATE of West Virginia ex rel. STATE OF WEST VIRGINIA HUMAN
RIGHTS COMMISSION and Patricia Waldeck and Judy Pittinger.
BERKELEY SPRINGS VOLUNTEER FIRE DEPT.
v.
Christine SWAIM, Judy Younker, Linda Vangosen, and State of
W. Va. Human Rights Commission.
Nos. 15467, 15749.
Supreme Court of Appeals of
West Virginia.
Nov. 10, 1983.

Page 343

[172 W.Va. 628] Syllabus by the Court

1. A volunteer fire department, organized and operated pursuant to the laws of the State of West Virginia, and which receives funding from public sources, is a "place of public accommodations" as defined by W.Va.Code, 5-11-3(j) [1981], and is thereby subject to the provisions of The West Virginia Human Rights Act, as amended, W.Va.Code, 5-11-1 et seq.

2. 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."

3. 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, which burden may be carried by showing (1) that the complainant belongs to a protected group under the statute; (2) that he or she applied and was qualified for the position or opening; (3) that he or she was rejected

Page 344

despite his or her qualifications; [172 W.Va. 629] and (4) that after the rejection the respondent continued to accept the applications of similarly qualified persons. 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.

Chauncey H. Browning, Atty. Gen. and Gail Ferguson, Asst. Atty. Gen., Charleston, for appellants in both cases.

Peter L. Chakmakian, Charles Town, for appellee in No. 15467.

Rice, Hannis & Douglas and Richard L. Douglas, Martinsburg, for appellee in No. 15749.

McHUGH, Justice:

These actions, No. 15467 and No. 15749, involving the appellees, Shepherdstown Volunteer Fire Department and Berkeley Springs Volunteer Fire Department (V.F.D.), respectively, present similar issues and have been consolidated for the purpose of argument. Both actions are before this Court upon appeal pursuant to W.Va.Code, 29A-6-1 [1964], of the West Virginia Administrative Procedure Act. They arise from the final orders of the Circuit Courts of Jefferson and Morgan Counties wherein the trial courts reversed the findings of the West Virginia Human Rights Commission (hereinafter "Commission") when it determined that the appellees were guilty of unlawful discriminatory practices under The West Virginia Human Rights Act, as amended, W.Va.Code, 5-11-1 et seq. This Court has before it the petition for appeal, most matters of record and the briefs and oral argument of counsel. 1

SHEPHERDSTOWN V.F.D.

The action involving the Shepherdstown V.F.D. is before this Court upon the appeal of Patricia Waldeck, Judy Pittinger and the Commission from the final order of the Circuit Court of Jefferson County.

The Shepherdstown V.F.D. is a nonprofit corporation organized and chartered under the laws of this State. At the time of the alleged discriminatory acts, the appellants, Patricia Waldeck and Judy Pittinger, were both over 18 years of age and residents of Jefferson County, West Virginia.

In January, 1977, appellants Waldeck and Pittinger applied for membership in the Shepherdstown V.F.D. In accordance with the fire department's constitution and by-laws, the appellants were interviewed by a review board composed of five male members of the active membership. It was the duty of the review board to ascertain the qualifications of the applicants and make recommendations to the voting membership at the next regularly scheduled meeting. The constitution of the fire department provides that membership is limited to persons 18 years of age or older.

In February, 1977, the appellants, along with one other female, were denied membership in the Shepherdstown V.F.D. by a vote of the active members. At the same meeting, two males were accepted for membership. Neither appellant was given a reason for her denial of membership. Both were informed of the rejection by their respective spouses who are active members of the fire department.

In May, 1977, the appellants were denied an opportunity for reconsideration. On June 11, 1977, the appellants filed complaints with the Commission charging the Shepherdstown V.F.D. "with sex discrimination in places of Public Accommodations, which is in violation of the West Virginia

Page 345

Human Rights Act...." After informal attempts at conference and conciliation failed, the two cases were consolidated and a formal administrative hearing was held in [172 W.Va. 630] Shepherdstown, Jefferson County, on March 29 and 30, 1979, to determine whether unlawful sex discrimination had occurred.

At the hearing the appellants testified that they had applied for membership in the Shepherdstown V.F.D. at the urging of their respective spouses because of an apparent need in the fire department for qualified emergency medical personnel. They asserted that one month prior to application for membership, they both had successfully completed training to become emergency medical technicians and were duly certified as such by the West Virginia Department of Health. The record also indicates that the Shepherdstown V.F.D. receives approximately 25% of its funding from governmental sources, which includes the Jefferson County Commission, the Town of Shepherdstown, and Shepherd College. The remainder of the fire department's budget is acquired through public solicitation.

Several members of the department indicated that the appellants had been denied membership because their personalities "were incompatible with the efficient operation of the fire department." However, in a final order entered August 20, 1980, the Commission found the Shepherdstown V.F.D. to be a "place of public accommodations" pursuant to W.Va.Code, 5-11-3(j) [1981], and thereby subject to the provisions of The West Virginia Human Rights Act, as amended, W.Va.Code, 5-11-1 et seq. Based upon the evidence, the Commission determined that the appellants had been the victims of unlawful sex discrimination in violation of W.Va.Code, 5-11-9(f)(1) [1981] when they were rejected for membership.

As remedial action, the Commission ordered the Shepherdstown V.F.D. to cease and desist further discriminatory practices; to refrain from retaliatory action against any person who opposed such discriminatory practices; to establish and publish a policy against intimidation and harassment; to implement a specified "affirmative action program"; to install appellants Waldeck and Pittinger as full members of the Shepherdstown V.F.D.; and that the prospective receipt of all state and federal funds by the Shepherdstown V.F.D. be contingent upon its compliance with the aforementioned order. In addition, the Commission ordered the Mayor and Town Council of Shepherdstown, along with the officers of the Shepherdstown V.F.D., to file with the Commission periodic sworn statements of compliance for a period of two years following the date of the order.

Pursuant to W.Va.Code, 29A-5-4 [1964], 2 the Shepherdstown V.F.D. sought judicial review of the findings of the Commission in the Circuit Court of Jefferson County contending that the fire department is not a "place of public accommodations" under The West Virginia Human Rights Act; that the Commission exceeded its remedial authority when it ordered officials of Shepherdstown to submit periodic statements of compliance, and that public funds be withheld pending such compliance. It further argued that the rejection of appellants Waldeck and Pittinger on the basis of their "incompatible" personalities was not unlawful discrimination.

In March, 1981, the Circuit Court of Jefferson County stayed the order of the Commission pending the appeal, and in a final order entered May 13, 1981, the trial court "overruled, vacated and held for naught" the decision of the Commission and concluded that the Shepherdstown V.F.D. is a "private club" under W.Va.Code, 5-11-19 [1971], 3 and therefore, exempt from the [172 W.Va. 631] provisions

Page 346

of The West Virginia Human Rights Act. The court further determined that "[i]n this case, all people are treated equally; they have an unquestioned equal right to apply for membership ...," therefore, appellants Waldeck and Pittinger were not discriminated against due to their sex when they were rejected for membership in the Shepherdstown V.F.D. (emphasis in original).

BERKELEY SPRINGS V.F.D.

The action involving the Berkeley...

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183 practice notes
  • Trimble v. West Virginia Bd. of Directors, No. 28490.
    • United States
    • Supreme Court of West Virginia
    • April 6, 2001
    ...clearly unwarranted exercise of discretion." Syl. pt. 2, Shepherdstown Volunteer Fire Dep't. v. State ex rel. State Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983). Accord Syl. pt. 1, Modi v. West Virginia Bd. of Med., 195 W.Va. 230, 465 S.E.2d 230 (1995). We have also stated that......
  • West Virginia Div. of Environmental Protection v. Kingwood Coal Co., No. 23876
    • United States
    • Supreme Court of West Virginia
    • July 16, 1997
    ...of discretion.' " Syl. Pt. 2, Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).' Syllabus Point 1, St. Mary's Hospital v. State Health Planning and Development Agency, 178 W.Va. 792, 364 S.E.2d 805 ......
  • Burke v. Wetzel Cnty. Comm'n, No. 17-0485
    • United States
    • Supreme Court of West Virginia
    • June 6, 2018
    ...Corp ., 178 W. Va. 164, 358 S.E.2d 423 (1986).37 Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human Rights Comm’n, 172 W. Va. 627, 637, 309 S.E.2d 342, 352 (1983).38 Id.39 208 W. Va. 91, 538 S.E.2d 389 (2000).40 Id. at Syl. Pt. 3 (emphasis added); see also W. Va. Code......
  • Barefoot v. Sundale Nursing Home, No. 22165
    • United States
    • Supreme Court of West Virginia
    • April 13, 1995
    ...our decisions in either Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983) (applying the federal test formulated in McDonnell Douglas, supra ), or State ex rel. State of West Virginia Human Rights Com......
  • Request a trial to view additional results
185 cases
  • Trimble v. West Virginia Bd. of Directors, No. 28490.
    • United States
    • Supreme Court of West Virginia
    • April 6, 2001
    ...clearly unwarranted exercise of discretion." Syl. pt. 2, Shepherdstown Volunteer Fire Dep't. v. State ex rel. State Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983). Accord Syl. pt. 1, Modi v. West Virginia Bd. of Med., 195 W.Va. 230, 465 S.E.2d 230 (1995). We have also stated that......
  • West Virginia Div. of Environmental Protection v. Kingwood Coal Co., No. 23876
    • United States
    • Supreme Court of West Virginia
    • July 16, 1997
    ...of discretion.' " Syl. Pt. 2, Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).' Syllabus Point 1, St. Mary's Hospital v. State Health Planning and Development Agency, 178 W.Va. 792, 364 S.E.2d 805 ......
  • Burke v. Wetzel Cnty. Comm'n, No. 17-0485
    • United States
    • Supreme Court of West Virginia
    • June 6, 2018
    ...Corp ., 178 W. Va. 164, 358 S.E.2d 423 (1986).37 Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human Rights Comm’n, 172 W. Va. 627, 637, 309 S.E.2d 342, 352 (1983).38 Id.39 208 W. Va. 91, 538 S.E.2d 389 (2000).40 Id. at Syl. Pt. 3 (emphasis added); see also W. Va. Code......
  • Barefoot v. Sundale Nursing Home, No. 22165
    • United States
    • Supreme Court of West Virginia
    • April 13, 1995
    ...our decisions in either Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983) (applying the federal test formulated in McDonnell Douglas, supra ), or State ex rel. State of West Virginia Human Rights Com......
  • Request a trial to view additional results

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