West Virginia Institute of Technology v. West Virginia Human Rights Com'n

• Decision Date: 28 June 1989
• Docket Number: No. 18608,18608
• Parties: , 55 Ed. Law Rep. 1194 WEST VIRGINIA INSTITUTE OF TECHNOLOGY v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Hassan Zavareei, Ph.D.
• Court: West Virginia Supreme Court

Page 490

383 S.E.2d 490

181 W.Va. 525, 55 Ed. Law Rep. 1194

WEST VIRGINIA INSTITUTE OF TECHNOLOGY v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Hassan Zavareei, Ph.D.

No. 18608.

Supreme Court of Appeals of

West Virginia.

June 28, 1989.

Syllabus by the Court

1. "In order to make a prima facie case of [disparate-treatment] employment discrimination under the West Virginia Human Rights Act, W.Va.Code § 5-11-1 [to 5-11-19, as amended], the plaintiff must offer proof of the following: (1) That the plaintiff is a member of a protected class. (2) That the employer made an adverse decision concerning the plaintiff. (3) But for the plaintiff's protected status, the adverse decision would not have been made." Syl. pt. 3, Conaway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986).

2. The complainant's prima facie case of disparate-treatment employment discrimination can be rebutted by the employer's presentation of evidence showing a legitimate and nondiscriminatory reason for the employment-related decision in question which is sufficient to overcome the inference of discriminatory intent.

3. The complainant will still prevail in a disparate-treatment employment discrimination case if the complainant shows by the preponderance of the evidence that the facially legitimate reason given by the employer for the employment-related decision is merely a pretext for a discriminatory motive.

4. Unlawful employment discrimination in the form of compensation disparity based upon a prohibited factor such as race, gender, national origin, etc., is a "continuing violation," so that there is a present violation of the antidiscrimination statute for as long as such compensation disparity exists; that is, each paycheck at the discriminatory rate is a separate link in a chain of violations.

5. W.Va.Code, 5-11-10, as amended, does not authorize a "cap" or time limits on back pay in continuing violation cases.

Anthony F. Serreno, Asst. Atty. Gen., Charleston, for West Virginia Institute of Technology.

Sharon M. Mullins, Asst. Atty. Gen., Charleston, for HRC.

Lee H. Adler, Beckley, for Hassan Zavareei.

McHUGH, Justice:

This appeal presents some novel issues for this Court to decide, including whether there was employment discrimination because of national origin and whether there should be a limited period for which back pay may be recovered in a compensation disparity case under the West Virginia Human Rights Act. The final order of the circuit court affirming (with a clerical change) the decision of the West Virginia Human Rights Commission adverse to the employer is affirmed in part and modified in part, for the reasons set forth in this opinion.

I.

The complainant, Hassan Zavareei, Ph.D., is a native of Iran. ¹ The complainant was hired by the employer, the West Virginia Institute of Technology, on August 10, 1974, as an assistant professor of economics. His starting annual salary was $10,629, which was the same salary paid to his predecessor, an instructor without a doctorate degree, plus $504 to recognize his "all but dissertation" status toward his Ph.D. degree at that time.

In January, 1975, the employer hired a Mr. Thomas Bell, a non-Iranian, also as an assistant professor of economics, at a starting annual salary of $12,636, the amount paid to his predecessor, and about twenty percent greater than the complainant's salary. Mr. Bell at the time he was hired had less teaching experience and fewer graduate hours than the complainant. He was hired with the express understanding that he must obtain a doctorate degree within seven years. He never accomplished that goal during the entire period of time in controversy.

During the 1977-78 school year, the complainant, on the other hand, obtained his Ph.D. degree and was awarded the normal $500 pay raise for that accomplishment. After considerable struggle the employer's president reluctantly ratified the complainant's colleagues' evaluation of him and promoted him to associate professor during the 1978-79 school year. ² As a result of this promotion the complainant received the normal $400 pay raise. Mr. Bell, in contrast, was not promoted to associate professor until the 1983-84 school year.

For each of the school years between 1975-76 and 1984-85, the complainant and Mr. Bell received exactly the same amount of statutory increases in salary; in all but two of those years the complainant's percentage increases, calculated for purposes of this litigation, were greater than Mr. Bell's solely because the complainant's salary was less than Mr. Bell's. At the end of the 1984-85 school year, Mr. Bell was still receiving a greater salary than the complainant ($22,536 per year, compared with $21,641 per year for the complainant). For the school year 1983-84, when Mr. Bell was promoted to associate professor without a doctorate degree, he received $20,958 plus $400 for the promotion, while the complainant received $20,112, despite the fact that the complainant had earned his doctorate degree about six years earlier and had been promoted to associate professor about five years earlier.

During the 1982-83 school year, the employer hired a Mr. Rajendra Gupta, a native of India, as an assistant professor to teach finance and economics courses. Mr. Gupta had a masters, but not a doctorate, degree and was paid a starting annual salary of $22,500. At that time the complainant, in his ninth year with the employer, had his doctorate degree and was an associate professor but was paid an annual salary of $20,112.

The complainant discovered the compensation disparities between Messrs. Bell and Gupta and himself on an unspecified date in August, 1984, when the facts about the salaries of the faculty were disseminated. The complainant filed his complaint with the West Virginia Human Rights Commission ("the Commission") on November 9, 1984. In his complaint he alleged employment discrimination (salary disparity) based upon his national origin (Iran). After an evidentiary hearing in September, 1985, a hearing examiner for the Commission found, in December, 1985, that the salary disparity realized by the complainant was due to his national origin. The hearing examiner recommended an award of back pay in the amount of $7,029 and incidental damages for embarrassment and humiliation in the amount of $10,000.

The Commission in May, 1986, adopted the hearing examiner's findings of fact and conclusions of law, but awarded $5,000, not the recommended $10,000, for incidental damages.

On appeal the Circuit Court of Kanawha County, West Virginia, in November, 1987, affirmed the Commission's ruling, with a "clerical change," as stipulated by the parties, pertaining to the amount of back pay, $12,576.04, then due, along with modifications with respect to the calculation of interest.

The employer subsequently brought this appeal to this Court. The employer asserts that the circuit court committed reversible error by affirming the Commission's finding that the salary disparity realized by the complainant was because of his national origin. Should the finding of disparate-treatment employment discrimination be affirmed, the employer contends that the award of back pay should not be calculated all the way back to the time the complainant was hired but, rather, should be limited so that the back-pay award is to commence no earlier than the date two years immediately preceding the time when the complaint was filed with the Commission, that is, no earlier than November 9, 1982.

II.

A.

As a threshold argument the employer claims that the complainant failed to establish a prima facie case of disparate treatment (compensation disparity) based upon the complainant's national origin (Iran). We disagree.

W.Va.Code, 5-11-2, as amended, ³ which is part of the West Virginia Human Rights Act, ⁴ states the legislative declaration of policy with respect to, inter alia, employment discrimination because of certain prohibited factors, including national origin or ancestry: "It is the public policy of the [S]tate of West Virginia to provide all of its citizens equal opportunity for employment, ... Equal opportunity in the area[ ] of employment ... is hereby declared to be a human right or civil right of all persons without regard to ... national origin [or] ancestry[.]" Under W.Va.Code, 5-11-9(a) as amended, ⁵ it is an unlawful discriminatory practice "[f]or any employer to discriminate against an individual with respect to compensation ... if the individual is able and competent to perform the services required[.]" W.Va.Code, 5-11-3(h), as amended, defines the terms "discriminate" or "discrimination" to mean, in relevant part, "to exclude from, or fail or refuse to extend to, a person equal opportunities because of ... national origin [or] ancestry[.]" ⁶

Because this case gives us the first opportunity to discuss employment discrimination because of national origin, we have not heretofore discussed the elements of a prima facie case in this specific context. ⁷ This Court has, however, previously formulated a general test for a prima facie case of disparate-treatment employment discrimination, and that test is applicable to a case, such as this one, involving an employment-related decision made allegedly because of a complaint's national origin. In syllabus point 3 of Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986), involving alleged age discrimination, our holding on this point was stated as follows:

In order to make a prima facie case of [disparate-treatment] employment discrimination under the West Virginia Human Rights Act, W.Va.Code § 5-11-1 [to 5-11-19, as amended], the plaintiff must offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the plaintiff.

(3) But for the plaintiff's protected status, the adverse decision would not have been made.

Accord, syl. pt....