Williamson v. Greene

• Citation: 490 S.E.2d 23,200 W.Va. 421
• Decision Date: 02 June 1997
• Docket Number: No. 23742,23742
• Court: Supreme Court of West Virginia
• Parties: , 76 Fair Empl.Prac.Cas. (BNA) 565, 13 IER Cases 1497 Sharon WILLIAMSON, Plaintiff, v. Warren O. GREENE, et al., Defendants.

Page 23

490 S.E.2d 23

200 W.Va. 421, 76 Fair Empl.Prac.Cas. (BNA) 565,

13 IER Cases 1497

Sharon WILLIAMSON, Plaintiff, v. Warren O. GREENE, et al., Defendants.

No. 23742.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 4, 1997.

Decided June 2, 1997.

[200 W.Va. 423] Syllabus by the Court

1. "The appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

2. "A statute, or an administrative rule, may not, under the guise of 'interpretation,' be modified, revised, amended or rewritten." Syl. pt. 1, Consumer Advocate Division v. Public Service Commission, 182 W.Va. 152, 386 S.E.2d 650 (1989).

3. " ' "When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369 [135 S.E.2d 262 (1964) ].' Syllabus Point 1, State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969)." Syl. pt. 1, W. Va. Radiologic Technology Bd. v. Darby, 189 W.Va. 52, 427 S.E.2d 486 (1993).

4. Pursuant to W.Va.Code, 5-11-3(d) [1994] of the West Virginia Human Rights Act, the term "employer" means the state, or any political subdivision thereof, and any person employing twelve or more persons within the state: Provided, That such terms shall not be taken, understood or construed to include a private club. To be an "employer" under W.Va.Code, 5-11-3(d) [1994], a person must have been employing twelve or more persons within the state at the time the acts giving rise to the alleged unlawful discriminatory practice were committed.

5. "The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy princip[le], then the employer may be liable to the employee for damages occasioned by this discharge." Syllabus, Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).

6. "To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions." Syl. pt. 2, Birthisel v. Tri-Cities Health Services, Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).

7. "Inherent in the term 'substantial public policy' is the concept that the policy will provide specific guidance to a reasonable person." Syl. pt. 3, Birthisel v. Tri-Cities Health Services, Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).

8. Even though a discharged at-will employee has no statutory claim for retaliatory discharge under W.Va.Code, 5-11-9(7)(C) [1992] of the West Virginia Human Rights Act because his or her former employer was not employing twelve or more persons within the state at the time the acts giving rise to the alleged unlawful discriminatory practice were committed, as required by W.Va.Code, 5-11-3(d) [1994], the discharged employee may nevertheless maintain a common law claim for retaliatory discharge against the employer based on alleged sex discrimination or sexual harassment because sex discrimination and sexual harassment in employment contravene the public policy of this State articulated in the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq.

Harry P. Waddell, Wilkes & Waddell, Martinsburg, for Plaintiff.

Kimberly Croyle, Charles F. Printz, Jr., Bowles Rice McDavid Graff & Love, Martinsburg, for Warren Greene.

Glenn P. Hare, Douglas S. Rockwell, Steptoe & Johnson, Charles Town, for Coalition for the Homeless.

Darrell V. McGraw, Jr., Attorney General, Mary Katherine Buchmelter, Deputy Attorney General, Charleston, for Amicus Curiae West Virginia Human Rights Commission.

McHUGH, Justice:

This case is before this Court upon four certified questions ¹ from the Circuit Court of Jefferson County regarding whether the employing entity in this case is an "employer" under W.Va.Code, 5-11-3(d) [1994] of the West Virginia Human Rights Act and, if the employing entity is not a statutory employer, whether the plaintiff can nevertheless maintain a sex discrimination claim under the Human Rights Act directly against her supervisor. We are also asked to address whether the plaintiff can maintain a cause of action at common law against her former employer for retaliatory discharge based on alleged sex discrimination or sexual harassment.

The certified questions, as well as the circuit court's answers to them, are as follows:

I. Question: As to whether an entity is an 'employer' under the West Virginia Human Rights Act, should the Court follow the standard contained in 42 U.S.C. 2000e(b) in determining the applicable period of time during which twelve or more persons must be employed?

Answer by the circuit court: Yes.

II. Question: Is the Coalition for the Homeless of Jefferson County, West Virginia, an 'employer' within the definition of the West Virginia Human Rights Act?

Answer by the circuit court: No.

III. Question: Can an employee maintain an action directly against her supervisor for sexual discrimination/harassment under the West Virginia Human Rights Act for actions of a 'statutory employer' even though the employer of both the accused supervisor and complaining employee lacks a sufficient number of employees to be subject to the West Virginia Human Rights Act?

Answer by the circuit court: No.

IV. Question: Can an 'at-will' employee maintain a tort action at common law for retaliatory discharge based on allegations of nonphysical sexual discrimination and/or harassment?

Answer by the circuit court: No.

I. FACTS

The following relevant facts of this case are undisputed and have been stipulated by the parties:

The Coalition for the Homeless of Jefferson County, West Virginia, Inc. (hereinafter "Coalition") is a non-profit corporation with its principal place of business in Jefferson County, West Virginia. Plaintiff Sharon N. Williamson (hereinafter "plaintiff") was employed as the Coalition's office manager and bookkeeper from September 9, 1994 until March 31, 1995. She was an at-will employee. During the time of plaintiff's employment at the Coalition, the Coalition also employed defendant Warren O. Greene as its executive director and plaintiff's immediate supervisor.

In March of 1995, the Coalition, through Defendant Greene, informed plaintiff that her employment was being terminated on March 31, 1995. Plaintiff subsequently filed a complaint in the Circuit Court of Jefferson County, alleging that Defendant Greene committed certain nonphysical acts and misconduct constituting sexual harassment by creating a discriminatory and/or hostile work environment for plaintiff based upon her sex. ² Plaintiff further alleged that she was terminated in retaliation for her opposition to Defendant Greene's unlawful sexual harassment and discrimination, in violation of the According to the Coalition's records, in 1994, it employed, including plaintiff and Defendant Greene, twelve or more employees during the weeks of June 19 and June 26. ³ The Coalition's records further indicate that in 1995, it employed, including plaintiff and Defendant Greene, twelve or more employees during the weeks of September 3, 10, 17 and 24, October 1, 15, 22, and 29, and November 5, 12, 19 and 26. ⁴

[200 W.Va. 425] West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq.

The above questions were certified to this Court by order entered April 19, 1996, pursuant to W.Va.Code, 58-5-2 [1967]. ⁵

II. STANDARD OF REVIEW

In syllabus point one of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), we stated: "The appellate standard of review of questions of law answered and certified by a circuit court is de novo." (citing Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th Cir.), cert denied, 484 U.S. 917, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987).) See Id., 197 W.Va. at 174, 475 S.E.2d at 174.

III. DISCUSSION

A.

As indicated above, certified questions one and two involve the definition of the term "employer" under W.Va.Code, 5-11-3(d) [1994] of the West Virginia Human Rights Act and application of that statutory definition to the employing entity in this case, the Coalition. W.Va.Code, 5-11-3(d) [1994] provides: "The term 'employer' means the state, or any political subdivision thereof, and any person ⁶ employing twelve or more persons within the state: Provided, That such terms shall not be taken, understood or construed to include a private club[.] ⁷" (footnotes and emphasis added).

Both the plaintiff and the West Virginia Human Rights Commission (hereinafter "Commission"), as amicus curiae, maintain that because W.Va.Code, 5-11-3(d) [1994], quoted above, does not specify a time period during which an employing entity must employ twelve or more persons within the state in order for such entity to be an "employer," W.Va.Code, 5-11-3(d) [1994] should be construed broadly to accomplish the purpose and objective of the West Virginia Human Rights In sharp contrast to the arguments of plaintiff and the Commission, the circuit court concluded that to be an "employer" under W.Va.Code, 5-11-3(d) [1994], the period of time during which twelve or more employees must be employed by an employing entity is that period of time set forth in W.Va.Code, 5-11-3(d) [1994]'s federal counterpart, 42 U.S.C. § 2000e(b) (1991), which specifically provides, in pertinent part: "The term 'employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding...