State ex rel. State of W. Va. Human Rights Com'n v. Logan-Mingo Area Mental Health Agency, Inc.

Decision Date11 April 1985
Docket NumberNo. 16015,LOGAN-MINGO,16015
Citation329 S.E.2d 77,174 W.Va. 711
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. STATE OF W. VA. HUMAN RIGHTS COMMISSION and Rose Bradsher v.AREA MENTAL HEALTH AGENCY, INC.

Syllabus by the Court

1. "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 rejections. 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, W.Va., 309 S.E.2d 342 (1983).

2. A complainant in a disparate treatment, discriminatory discharge case brought under the West Virginia Human Rights Act, Code, 5-11-1, et seq., may meet the initial prima facie burden by proving, by a preponderance of the evidence, (1) that the complainant is a member of a group protected by the Act; (2) that the complainant was discharged, or forced to resign, from employment; and (3) that a nonmember of the protected group was not disciplined, or was disciplined less severely, than the complainant, though both engaged in similar conduct.

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 VFD v. West Virginia Human Rights Commission, W.Va., 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 655, W.Va., 280 S.E.2d 653 (1981).

5. A determination, by the West Virginia Human Rights Commission, that an employer has accorded disparate treatment to members of different races, is a finding of fact which may not be reversed by a circuit court upon review, unless such finding is clearly wrong in view of the reliable, probative and substantial evidence on the whole record.

6. "The West Virginia Human Rights Commission as part of its cease and desist orders may award to complainant incidental damages as compensation for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity, without proof of monetary loss. W.Va.Code, 5-11-8." Syllabus, Pearlman v. WVHRC, 161 W.Va. 1, 239 S.E.2d 145 (1977).

Gail Ferguson, Asst. Atty. Gen., Charleston, for appellants.

John R. Glenn, Logan, for appellee.

McHUGH, Justice:

The West Virginia Human Rights Commission and Rose Bradsher appeal from a final order, dated September 24, 1982, entered in the Circuit Court of Logan County, reversing and setting aside the Commission's order of March 4, 1980, which found that the Logan-Mingo Area Mental Health Agency, Inc. had unlawfully discriminated against Ms. Bradsher, a black female employee, by coercing her resignation because of her race. This Court has before it the petition for appeal, records of the administrative and circuit court proceedings, and the briefs and oral arguments of counsel.

I

On August 19, 1974, Rose Marie Bradsher resigned from her position as an instructor at the Logan County Day Care Center. On September 12, 1974, she filed a complaint with the West Virginia Human Rights Commission, charging her employer 1 and her immediate supervisor with an unlawful discriminatory practice based on race. W.Va.Code, 5-11-9(a). The facts alleged in the complaint are as follows:

I am a 21 years old Black female.

On January 29, 1974, I began work as an Instructor at the Logan County Day Care Center for $350 a month. On August 16, 1974, one of our students got out of the classroom while I was attending to other students. Although Ms. Nancy Wilson was the last person to leave the room before the student got out--she must have left the door open--Ms. Gibson and I were put on probation because of this incident. However on August 19, 1974, Ms. Wilson called me in and told me that I must resign by 3:00 P.M. or that I would be fired. Although I have been on probation twice before the incident of August 16, 1974, both times were the result of unfair allegations against me.

I believe that I have been treated unfairly and also forced to resign because of my race. I therefore charge the Logan County Day Care Center and Nancy Wilson with race discrimination which is in violation of the West Virginia Human Rights Act, as amended.

On September 12, 1975, the Commission notified the employer that a probable cause determination had been made, and that Code, 5-11-10, required an immediate effort through conference and conciliation to eliminate the unlawful practice. On forms supplied by the Commission, the complainant indicated her willingness to enter conciliation discussions, but the employer declined to participate in such discussions.

At a meeting on May 20, 1977, the Commission voted in favor of a motion to conduct a public hearing in this case. The hearing was held on four days: December 15, 1977; April 17 and 18, 1978; and May 15, 1978. The hearing examiner, Charlotte Lane, submitted her findings of fact, conclusions of law, and proposed order on March 26, 1979. The hearing examiner concluded that the complainant had established a prima facie case of racial discrimination; that her discharge, or forced resignation, was not warranted; and that the disparate treatment accorded Ms. Bradsher and a white female employee (Duanne Gibson) constituted racial discrimination. The hearing examiner recommended that a back pay award of $8,750 be granted to compensate the complainant for wages lost while she was out of work.

On March 4, 1980, the Commission issued its findings of fact, conclusions of law, and order. The Commission's findings include a comparison between the complainant's work record and that of a white employee, Duanne Gibson. Both were instructors in a day care center for retarded children. Gibson acted as Bradsher's supervisor for a brief period. At the time of Bradsher's resignation, the two women shared the teaching duties in one of the classrooms of the day care center. The Commission found that both Gibson and Bradsher were responsible for an incident in which a six year-old boy managed to get outside the building. The day after the escape, Bradsher was forced to resign, and Gibson was placed on probation.

Ms. Bradsher's attendance record shows that she was absent from work twice without approval, absent from one parents' group meeting, and late for work twice. The first tardiness was 24 minutes; the second was ten minutes. Bradsher's personnel file also shows that she received a "warning of probation" for sending a note to one student's parents instructing them to keep the child home. With respect to Bradsher's work performance, the Commission found: "Except for the incidents noted in the personnel file the complainant had a good work record. Her co-workers and the parents seemed pleased with her job performance."

Duanne Gibson started working at the center six or seven months earlier than Ms. Bradsher. The Commission found no attendance or disciplinary problems in Gibson's personnel file prior to August 19, 1974. 2 During 1975 and 1976, she was tardy four times and absent one day without notifying her employer. The personnel file also reveals the following: Gibson received a reprimand for using the center telephone for personal reasons; other employees reported two separate incidents in which Gibson physically abused children; Gibson was placed on probation and relieved of her supervisory duties following the second incident; she was warned that any further physical abuse or punishment of students would result in suspension of employment; law enforcement officers visited the center twice, looking for Ms. Gibson in connection with "bad check" charges; she failed twice to turn in lesson plans, and, on one occasion, missed a scheduled home visit. Gibson was terminated from employment on June 17, 1976, "due to neglect of job responsibilities."

The Commission found that charges against Gibson concerning physical abuse of children were more serious than the charge brought against Bradsher for allowing a child to get out of the classroom. The Commission found further that the employer held Bradsher to a higher standard of performance than was Gibson "because only a few complaints against Complainant precipitated her termination, while numerous complaints of a more serious nature over a longer period of time against Ms. Gibson were tolerated."

The Commission concluded that the complainant had established a prima facie case...

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