Wheeling-Pittsburgh Steel Corp. v. Rowing

• Decision Date: 16 July 1999
• Docket Number: No. 25825.,25825.
• Citation: 517 S.E.2d 763,205 W.Va. 286
• Court: West Virginia Supreme Court
• Parties: WHEELING-PITTSBURGH STEEL CORPORATION, Appellant Below, Appellant, v. Kyu Chong ROWING and West Virginia Human Rights Commission, Appellee Below, Appellee.

517 S.E.2d 763

205 W.Va. 286

WHEELING-PITTSBURGH STEEL CORPORATION, Appellant Below, Appellant, v. Kyu Chong ROWING and West Virginia Human Rights Commission, Appellee Below, Appellee.

No. 25825.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1999.

Decided July 16, 1999.

Sandra K. Law, Esq., Aimee L. Morgan, Esq., Schrader Byrd & Companion, PLLC, Wheeling, West Virginia, Attorney for Appellant.

Darrell V. McGraw, Jr., Attorney General, Mary Catherine Buchmelter, Deputy Attorney General, Charleston, West Virginia, Attorneys for West Virginia Human Rights Commission.

Allan N. Karlin, Esq., Morgantown, West Virginia, Attorney for all Amici Curiae.

Jane E. Peak, Esq., Allan N. Karlin & Associates, Morgantown, West Virginia, Attorney for AARP and all Amici Curiae.

Franklin D. Cleckley, Esq., Morgantown, West Virginia, Attorney for amicus curiae, West Virginia State Conference of Branches of the NAACP.

Ron L. Tucker, Esq., Fairmont, West Virginia, Attorney for amicus curiae, West Virginia State Conference of Branches of the NAACP.

Grant Crandall, Esq., Charleston, West Virginia, Attorney for amicus curiae, United Mine Workers of America. William B. McGinley, Esq., Charleston, West Virginia, Attorney for amicus curiae, West Virginia Education Association.

Christine M. Hedges, Esq., Spencer, West Virginia, Attorney for amicus curiae, West Virginia Chapter of the National Organization for Women.

Thomas Patrick Maroney, Esq., Charleston, West Virginia, Attorney for amicus curiae, West Virginia AFL-CIO. McGRAW, Justice:

Appellant, Wheeling-Pittsburgh Steel Corporation ("Wheeling-Pittsburgh"), appeals the Circuit Court of Kanawha County's affirmance of the final decision of the West Virginia Human Rights Commission ("HRC" or "Commission"), which found that Wheeling-Pittsburgh violated the West Virginia Human Rights Act (the "Human Rights Act"), W. Va.Code §§ 5-11-1 to -19, by discriminating against an employee on the basis of national origin. Wheeling-Pittsburgh asserts that the circuit court erred in failing to reverse the action of HRC, arguing that the Commission (1) was barred from acting on the employee's complaint based upon the exclusivity and/or preclusive effect of previous grievance proceedings, (2) erroneously determined that Wheeling-Pittsburgh failed to meet its burden of production; and (3) failed to treat a statement contained in the employee's complaint as a judicial admission. We reject these arguments, and accordingly affirm the decision of the circuit court.

I. BACKGROUND

The complainant before the Commission, Kyu Chong Rowing ("Rowing"), was born in Korea and became a naturalized United States citizen in 1995. Rowing stands five-feet, one-inch tall, and weighs 105 pounds. On May 11, 1990, she was hired by Wheeling-Pittsburgh as a probationary employee under an on-the-job training program administered under the Job Training Partnership Act ("JTPA" or the "Act"), 29 U.S.C. §§ 1501, et seq.

At the time she was hired, it was anticipated that Rowing would work for 520 hours as a probationary employee, or the equivalent of 13 weeks. During that period, she would be rotated to various departments and allowed to perform a variety of tasks related to Wheeling-Pittsburgh's steel-manufacturing process.

Rowing was initially assigned to Wheeling-Pittsburgh's coke plant at Follansbee, West Virginia. Her work there consisted primarily of shoveling coke onto a conveyor belt. Shortly thereafter, Rowing was assigned to an oxygen furnace located in Mingo Junction, Ohio, where she was given the tasks of sweeping floors and assisting in the laying of cement. Upon reassignment to the coke plant, Rowing was instructed to open a "chuck door"—an approximately nine-foot tall door through which a leveling bar is inserted to remove excess coal. A fellow employee demonstrated the technique one time before leaving Rowing with the task. Rowing took approximately five-to-ten minutes to open the door, but nevertheless completed the job. Monte Smith, who had previously worked the job of opening the chuck doors, later testified that it would take more than 10 or 20 minutes to become proficient in operating the doors. Rowing was apparently never given an additional opportunity to become more skillful at the task.

Rowing resumed the job of shoveling coke and worked until July 5, 1990, when she was called to the personnel office and told by Brian Morrow that she was being terminated because of her small size. She had worked only 280 of the 520 hours that the JTPA contract required. The record indicates that Rowing was never informed of any shortcomings in her work prior to termination.

After her termination by Wheeling-Pittsburgh, Rowing pursued a grievance under procedures adopted by the Northern Panhandle Private Industry Council ("NPPIC"), the local entity responsible for administering JTPA programs.¹ Rowing followed the grievance process through Level III, where her claim of national-origin discrimination was rejected in May 1991 following an informal hearing. Rather than appealing the grievance determination to the Governor as permitted by federal regulations, Rowing filed a complaint with HRC on April 25, 1991, alleging that Wheeling-Pittsburgh discriminated against her on the basis of national origin in violation of W. Va.Code § 5-11-9(1).

A hearing was conducted before an administrative law judge ("ALJ") on June 15, 1995. The Commission's evidence at the hearing focused primarily on proving that Rowing was treated differently from similarly-situated, American-born employees.

Linda Carter, who was a probationary employee in 1978, testified that when she was unable to clean the chuck doors on the coke oven because of her short height, she was transferred to the machine shop rather than fired. Another Wheeling-Pittsburgh employee, Kathryn Woods, stated that when she was a probationary employee in 1979 she was assigned to work with heavy sheets of steel. When Woods could not perform this task because of her size, she was moved to the shipping department. Woods further testified that Wheeling-Pittsburgh "moved everyone around until they could find a job they could do good."

Burla Williams, Wheeling-Pittsburgh's Superintendent of Human Resources at the time Rowing was employed,² stated that it was routine practice to give new employees "every chance possible during the probationary period." Evidence relating to other probationary employees who were terminated indicated that they were given several warnings prior to being let go. Williams further testified that during the 12 years preceding Rowing's firing, very few probationary employees were terminated—and then only for drug abuse, disciplinary problems, or the inability to properly perform any assigned task after being given several opportunities. Moreover, she stated that to her knowledge, no one had ever been terminated because they were too short or did not weigh enough.

Evidence was also presented concerning the reaction of other Wheeling-Pittsburgh employees to Rowing's Korean origin. Rowing testified that she was questioned about her national origin and asked whether she was Vietnamese. Monte Smith, co-chair of the union civil rights committee, testified that he had heard other employees use derogatory slang terms to refer to persons of Asian ancestry.

Wheeling-Pittsburgh's evidence before the ALJ was in the form of several documents admitted by stipulation. The most significant of these documents were three evaluations made by Rowing's supervisors, which indicated that she was physically too small to perform many of her assigned duties. Evidence adduced at the hearing indicated that Rowing was never shown or informed about these adverse evaluations at the time of her termination.

The ALJ issued a decision on December 20, 1996, concluding that Wheeling-Pittsburgh had unlawfully discriminated against Rowing based upon national origin. Specifically, the ALJ found that Wheeling-Pittsburgh had failed to meet its burden of production. Alternatively, the ALJ determined that Wheeling-Pittsburgh's proffered reason for firing Rowing—her short stature—was pretextual based upon the experiences of similarly situated workers. The ALJ's findings were sustained by the Commission with minor modification in a final order issued on July 28, 1997.

Wheeling-Pittsburgh sought judicial review of HRC's decision in the Circuit Court of Kanawha County pursuant to W.Va.Code § 29-5-4 (1998). The circuit court denied relief by an order entered October 26, 1998, and this appeal followed.

II. STANDARD OF REVIEW

Judicial review of HRC's disposition of Rowing's discrimination complaint is governed by the West Virginia Administrative Procedures Act ("APA"), W. Va.Code ch. 29A. The scope of judicial review in contested cases³ is delineated by the APA:

The court may affirm the order or decision of the agency or remand the case for further proceedings. It 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 of the administrative findings, inferences, conclusions, decision 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.

W. Va.Code § 29A-5-4(g) (1998); see Syl. pt. 1, Clark v. West Virginia Bd. of Med., 203 W.Va. 394, 508 S.E.2d 111 (1998); Syl. pt. 1, HCCRA v. Boone Mem'l Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996). Although limited, judicial review of a contested case must nevertheless be careful, thorough, and probing. Review is limited to the record made before the...