State Human Rights Commission v. Pearlman Realty Agency

• Decision Date: 29 November 1977
• Docket Number: No. 13898,13898
• Citation: 239 S.E.2d 145,161 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: , 16 Empl. Prac. Dec. P 8122 STATE of West Virginia HUMAN RIGHTS COMMISSION v. PEARLMAN REALTY AGENCY.

Page 145

239 S.E.2d 145

161 W.Va. 1, 16 Empl. Prac. Dec. P 8122

STATE of West Virginia HUMAN RIGHTS COMMISSION v. PEARLMAN REALTY AGENCY.

No. 13898.

Supreme Court of Appeals of West Virginia.

Nov. 29, 1977.

Syllabus by the Court

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.

Billy Jack Gregg, Asst. Atty. Gen., Charleston, for appellants.

Arthur J. Recht, Weirton, for appellee.

HARSHBARGER, Justice.

The West Virginia Human Rights Commission upon complaint by Nora Coleman, a black person, found Pearlman Realty Agency guilty of racial discrimination in denying her the opportunity to view a house. The Commission entered a "remedial" order requiring the agency to cease and desist from engaging in any unlawful discriminatory practice in the future; to adopt an advertising program which would feature its listings as being available equally to everyone; to advise its employees and anyone listing property with it, present and future, of its non-discriminatory practices; to pay Ms. Coleman $1,000.00 as "compensation and damages for the humiliation, embarrassment, emotional and mental distress, and loss of personal dignity"; and to report regularly to the Commission about its compliance with the order.

Pearlman Realty appealed to the Circuit Court of Brooke County, which reversed, on the basis of our decision in State of West Virginia Human Rights Commission v. Pauley, W.Va., 212 S.E.2d 77 (1975), the part of the order that awarded damages. No monetary loss had been proved by Ms. Coleman and no damages for such were awarded by the Commission.

The question, therefore, is whether our Human Rights Commission can award compensatory damages for "humiliation, embarrassment, emotional and mental distress and loss of personal dignity", absent any monetary loss by the party discriminated against, as part of its cease and desist order in a discrimination case.

W.Va.Code, 5-11-1, et seq. empowers the West Virginia Human Rights Commission to enforce the civil rights of our citizens to be free from discrimination in employment and housing. It shall "receive, investigate and pass upon . . . complaints alleging discrimination in the sale, purchase, lease, rental and financing of housing accommodations or real property . . ." Code, 5-11-8(c).

One of the enforcement methods provided the Commission is its power to issue cease and desist orders; and it is further allowed "(t)o do all other acts and deeds necessary and proper to carry out and accomplish effectively the objects, functions and services contemplated by the provisions of this article (11)". Code, 5-11-8(h).

The Commission's procedures and remedies "shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the complainant concerned. If such complainant institutes any action based on such grievance without resorting to the procedure provided in the article, he may not subsequently resort to the procedure herein." Code, 5-11-13.

This Court decided the obvious question about the effect of the constitutional right to jury trial as it relates to award of damages by an administrative agency in Pauley, supra. We cited with approval the New Jersey court's persuasive opinion in Jackson v. Concord Company, 54 N.J. 113, 253 A.2d 793 (1969).

The question here has also been addressed by that court. In Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 301 A.2d 754, 61 A.L.R.3d 927 (1973), it was asked to do just what we are asked: to reinstate an administrative damages award there for $750.00 for humiliation and pain and suffering caused by a real-estate agent's discrimination against an unmarried female. It concluded, 301 A.2d at 763:

We have no hesitancy in determining that the Director acted fairly within the orbit of the legislative delegation to him when he awarded $750 to the complainant as incidental compensatory damages for the pain and suffering inflicted on her.

The court answered the argument that allowing administrative agencies to award damages for pain and suffering would inevitably lead to substantial administrative, non-jury awards of damages which would be unconstitutional:

But it would seem entirely evident that the recognition of administrative authority to make minor or incidental awards need not carry with it any authority to entertain a matter where, because of the severity of the consequential injury and the extensiveness of the claim, the item of damages has become primary and the other relief incidental rather than the reverse. Surely there is nothing incompatible in concluding that while the Legislature contemplated that the Director would have authority to award compensatory damages for pain and suffering as well as economic loss, his authority would be confined to an award which truly constituted only "incidental relief" . . . rather than a primary item. 301 A.2d at 761-762.

It must be particularly noted that we, as did the New Jersey court, deal with damages incidental to the use by the Commission of its power to issue cease and desist orders vested in it by the statute. See, Harvard v. Bushberg Brothers, Inc., 137 N.J.Super. 537, 350 A.2d 65 (1975); A. P. Green Service v. State Fair Employment Practice Commission, 19 Ill.App.3d 875, 312 N.E.2d 314 (1974); Williams v. Joyce, 4 Or.App. 482, 479 P.2d 513, 40 ALR 3d 1272 (1971).

The right to trial by jury before deprivation...