*3 co-worker, premises, Frymier leaving Before FMC Ms. A also out of his writer. male out”, per- area, had neither “clocked nor had she sat in the room and drank work same janitorial that were her Frymier admitted to the Hu- formed services a soda. Ms. later, responsibility. hours hearing examiner Over two Rights Commission man P.M., area, Frymier Ms. left the house and but 8:00 that she was out of her work to FMC. When confronted in the union returned claimed that she was on business. testified, parking lot FMC’s industrial relations The man in the room with Dick, manager Frymier Ms. lied and however, working on David Frymier that Ms. Kentucky business, and, further, gone she had to Fried said that personal when dinner, gone for and had not been entered the room Chicken Frymier’s supervisor Ms. forty-five hour to Frymier for more than half an whether Ms. and wanted know briefcase, Ms. minutes. had FMC documents in her his Frymier responded that it was none of Frymier Ms. that he Mr. Dick then told
business, “big him with and threatened person another had followed pursued if he the matter. trouble” gone plant; that she was for she left the hours; she not seen and that record that the man over two appears It from the Kentucky Fried Chicken. Mr. going Frymier Ms. received the room with Frymier that she Dick indicated to Ms. disсipline Fry- Ms. then form of than less severe trouble, probably going to be However, we believe that mier received. County. Syl. Shepherdstown might a union steward there Pt. that she want Com’n, discipline there could be involved. Va. Human because V.F.D. v. W. (1983), we 172 W.Va. fact-finding conference later that At a judicial set out standards for review present, evening, with her union steward circuit of cases under the Administra gone Ms. asserted that she had Act: tive Procedures dinner; Kentucky Fried Chicken Upon case judicial review of contested gone longer forty- no than she had been under Administrative the Wеst minutes; go did into a five that she Act, 29A, Chapter Article Procedure Avenue; 9th and that she had house on 4(g), may Section the circuit court affirm performed janitorial leaving duties before *4 agency or the order or decision of Unfortunately premises. for Ms. FMC’s proceedings. case for remand the further Frymier, followed when she she had been reverse, court or circuit shall vacate plant, because FMC had received left the agen- of modify order or decision Therefore, anonymous tip. because of peti- if cy the substantial surveillance, FMC knew that Ms. Fry- рrejudiced petitioners tioner or have been testifying to events that had mier was not in- findings, because the administrative transpired. ferences, conclusions, decisions or order evening of her on the Because conduct “(1) or are: In violation of constitutional light discipli- 26 and in of her June (2) provisions; statutory or excess record, Frymier discharged nary Ms. statutory authority jurisdiction or by July stipulated 2 1984. It FMC on (3) upon agency; or Made unlawful HRC examiner that Ms. before the (4) by er- procedures; or Affected other Frymier been laid off on 16 would have law; Clearly wrong ror or view Thus, Frymier September 1985. Ms. reliable, probative or substantial pay and estimated overtime claimed back record; (6) Ar- on the whole or evidence July Sep- to 16 period for the from capricious bitrary or or characterized tember 1985. clearly abuse of discretion or unwarrant- people Frymier that other Ms. claims ed exercise of discretion.” engaged plant “out of with- who similar Thus, “clearly standard of review is the punished incidents permission” out were wrong” or “abuse of discretion” standard. severely. The Human Commis- less the Commission’s The circuit found out Frymier made sion found that Ms. “clearly wrong” af- decision to be and we prima based on facie case of discrimination firm. treatment,1 employ- and that the disparate establishing er failed to meet its burden II firing Ms. nondiscriminatory basis for Filing complaints of sex or race that, Frymier. found al- The Commission activity. clearly protected is discrimination in con- engaged had though Frymier Ms. had fired because Frymier If Ms. been discipline, she did de- justifying duct she be entitled complaints, her would decided to be fired. The Commission serve found, However, the circuit court relief. filed com- had not Frymier if Ms. le managemеnt had a agree, we grievances alleging discrimina- plaints and nondiscriminatory fire gitimate, reason to FMC, received a 30 have tion she would Frymier Ms. lied. —she punishment such a day suspension and that claim that she disci- Frymier’s Ms. justified by the record. would be severely employees other plined than more plant engaged in “out of without who had behavior, regard least with permission” de appealed the Commission’s FMC incident, particularly to the 16 June of Kanawha Court cision Circuit retaliatory discharge. firing, Frymier’s claim of regard alle- Ms. 1. With essentially gation “disparate treatment" is reduce the dis- weak, differed from the Commission cannot her conduct because simply charge 30-day suspension be- employees’ conduct in one to a the other absent some perceives cause the regard. confronted about important When Likewise, showing disparate conduct, with a bold- treatment. responded she reason lie, legitimate she if the lacked a to it even when faced and stuck caught firing, in the for the the Human Commis- she was should have realized impose punishment on the em- who were ab- sion cannot employees lie. Whеn ployee finding confront- after that she was fired were sent authorization they illegally. ed, had done.2 they admitted what the Human Even IV below, Frymier noted for Ms.
which found
Ms.
contended in the circuit
that:
court that she would need a remand
confronted
Frymier’s lying when
Ms.
present
evidence to rebut the
26, 1984,
on June
will
her actions
evidence. The circuit court stated:
discipline than
justify a more severe
Regarding necessity
remand as as
to other
meeted
out
[sic]
*5
cross-ap
by
serted Ms.
in her
offenses.
similar
disagrees
the con
peal, the Court
Order,
7.,
(Commission
P. Rec.
Decision and
oрportunity to
tention that full and fair
15.) Nevertheless,
p.
the Commission went
met in
proffer rebuttal evidence was not
lying
employer
an
say, “[h]owever,
to
on to
unnecessary
this case and deems remand
not
set of circumstances does
under this
Albeit,
Frymier’s counsel
here.
Ms.
be
discharge.”
disagree. Ly-
justify
Id. We
stating
gan
evidentiary hearing(s) by
employer
a work-related
ing to an
about
only put
his intent to
on evidence relat
circumstances,
matter,
par-
any
but
under
case;
ing
prima
to the
this intent
manner,
facie
ticularly in
a
is the
such boldfaced
was, however,
open
contrаdicted both in
that makes an em-
kind of breach of trust
ing
closing remarks of counsel and
and
to an em-
ployee completely without value
days
approxi
in the
and
circuit court held the Commis-
ployer. The
pages
testimony taken at
mately 650
firing
justi-
not
finding that the
sion’s
hearing. Clearly
could
all that
have been
in
“clearly
to
error and abuse
fied
be
was,
fact,
in this case
in
said
offered
authority of
the Human
discretionary
during evidentiary hearing before the
said,
The court
“Ms.
Rights Commission.”
any
and
material evidence
she lied to
Frymier was fired because
possibly
could
be submitted оn re
which
the culmination
management, and because
certainly only tend to consti
mand would
history progres-
prior employment
testimony
al
tute cumulative evidence
discharge upon
sively supported a
violation
ready
respect to
on record with
rebuttal
evening in
company’s rules on the
of the
employer’s “non-discriminatory”
of the
Virginia Human
The
question.
[Emphasis
add
rationale
employer in
Rights Act does not limit an
ed.]
(Rec.
(Cir.Ct.
p.
Final Order
this instance.”
Rec.,
52-3.)
(Cir.Ct.
Order,
p.
Final
We
52)).
agree.
We
agree
any
taken on remand
evidence
Ill
cumulative,
would,
any
аnd
would be
Rights
The Human
Commission case,
unlikely
Frymi-
that Ms.
to show
be
powers under
has
remedial
broad
legitimate, nondiscrimi-
lying
er’s
was not a
Code,
[1987],
it has no authori
5-11-10
but
firing.
for her
natory justification
disciplinary action taken
ty to moderate the
V
em
by
employer regarding an errant
Frymier sought in the circuit
employee
Ms.
If an
fires an
ployee.
reason,
pleadings
to state a
non-discriminatory
court to amend
legitimate,
for a
itself,
lying,
Frymier’s
made her
disciplinary
boldfaced
records of
2. FMC asserts that the
far more serious than that of the other
Ms.
conduct
were better than
the othеr errant
so,
employees.
may
Frymier's.
be
but we find that Ms.
That
damages.
McHUGH, Justice,
cause of action for
The circuit
dissenting
part
correctly
concurring
court
held that such an amend-
part:
and
improper
ment would be
because the action
part.
I dissent in
concur
and
The
pursuant
before it
Administra- brevity
majority opinion
belies the
Act, W.Va.Code,
tive Procedures
29A-5-1
importance of this
primary
case. The
hold-
[1964],
seq.,
et
as a civil matter.
ing
majority opinion
leads me to
(Rec.,
47)).
(Cir.Ct.
p.
Order
As the circuit
majority
wonder whether
have
said, “Clearly, Ms. Frymier
court
cannot
rеad the same record.
appellate proceeding
transform this
into an
appeal by
In this
under
damages simply by
action at law for
seek-
Act,1
the West
ing
petition
to amend her
for review.” Id.
from final order of the Circuit Court of
general
rule is that
ex-
one must
County reversing
finding by
Kanawha
haust her administrative remedies before
the West
Commis-
going
into
court of
or equity
law
retaliatory discharge proscribed
sion
right
by
enforce a
created
statute. How-
Act,
primary
presented
issue
ever, because the
process
administrative
applied
whether the cirсuit
the proper
created
the Human
Act has fall-
scope
judicial
review of the Commis-
far
achieving
purposes
en
short of
findings
sion’s
of fact. Another issue is
Act,
we have allowed claimants under
whether the West
the Human
proceed
Act to
in circuit
authority
impose
Commission has the
its
initiating
court as an
alternative
an ad-
form
of discipline upon
own
or measure
In Syl.
ministrative action.
Pt.
Price v.
complainant who
a victim
of unlawful
*6
County
Boone
Ambulance
Authority,
discrimination but whose conduct merited
676,
(1985),
al MILLER, C.J., McHUGH, J., and part concur in and dissent in and right concurring
reserve the to file and Because the circuit reversed the dissenting opinions. finding of a dis- Commission’s factual 5-11-19, Va.Code, 1. W. 5-11-1 to as amended. finding, filing griev- for
charge in the surveillance retaliation rights complaint on complainant a human precipitated part by ances and was discrimination, the evidence alleged sex previous complainant relations between in some detail. must be discussed filing griev- employer involving and the rights complaint ances and human on Frymier, A. complainant, Teresa alleged sex discrimination. employer, employed janitor Corporation. She commenced her em- FMC complainant The surveillance of the on ployment with 26, 1984, incidentally June disclosed other Starting July discharged on leaving place employer’s March, 1983, lodged a series of ver- she permission. business without Five other grievances con- complaints and written bal discipline (five-day employees received sus- job cerning alleged sex discrimination in salaried, supervi- pensions pay without for janitor foreman and the assignments. Her sory three-day suspensions personnel and of, supervisor angered by, were aware pay hourly employees like A grievances. complaint formal these complainant), complainant only the but alleging sex discrimination was filed on discharged. employ- None of these other with the West August grievances ees had filed or human Commission.2 complaint alleged on unlawful discrimina- April, complainant tion. discipline em- first time received from the ployer the form a so-called “final When confronted with her conduct on warning involving: notice” for an incident 26, 1984, June lied about (1) being out of her area without work long gone how she had from the been em- (2) permission, the unauthorized use place ployer’s and where she business of. (a company equipment typewriter) and However, had been. one of the possession company the unauthorized salaried, supervisory employees also lied case). (a property On or about Au- brief subordinаte, an- confronted about his 8, 1983, gust was disci- employee, hourly who had been out time, plined a in the form second this time *7 employer’s place of without business three-day suspension pay of for a without permission evening the as the on same permis- being out of her work area without supervisory employee complainant, but that sion for four and one-half hours. Between discharged (he five-day was not received a 8, July August discharge her on 1983 and suspension pay). without 2, 1984, “re- complainant the received two Subsequent discharge the com- per- minders” attendance and work about timely complaint in plainant ques- filed the formance. Virginia tion the West Human precipitating complain- the The incident Commission, alleging employer that the complainant’s discharge the leav- ant’s was discharged in for her had retaliation ing employer’s place the of on business grievances previous hu- having filed and a shift, 26, 1984, during her without June complaint alleged man on sex dis- permission, hours and ten for about two evidentiary hearing crimination. After an knowledge, minutes. Without her hearing a examiner for the Commission complainant employer’s рlace the exited the a complainant that the had made found business, employer’s manage- of two of the prima of discrimination facie case unlawful as of personnel rial observed her leave (retaliatory discharge, by dispar- as shown managers had a surveillance of her. The treatment) and found that disciplinary ate “tip” com- anonymous received an that the nondiscriminatory reason articulated likely leaving plainant would be the em- (the discharge for com- evening, ployer’s place of business that poorer disciplinary his- рlainant’s allegedly permission. without The examiner tory) pretextual proscribed re- found, supports evidence was and substantial appeal. plaint an in this are not issue discrimination com- The merits that sex
719
taliatory
Accord,
The
syl.
pt.
Virgi-
Brammer v. West
adopted
findings.
Rights Commission,
nia
these
Human
183
(1990).
W.Va.
Accord, syl. Bloss Inc. v. had pt. & reсord,” spotty management’s lan- Commis- to use Virginia Human West (1990). sion, only 398 S.E.2d guage), employee 183 W.Va. and that received three-day suspension leaving the em- Court, Institute This West of permis- ployer’s place of business without Virginia Human v. Technology supports these sion. evidence Substantial 181 W.Va. Finally, significant is findings fact. it concept of (1989),explained the S.E.2d prior complainant’s discipline all of the judi- purposes evidence” “substantial shortly after she agency’s discharge to her came an administrative cial review concerning filing grievances evidence is al- commenced findings fact. Substantial evidence, discrimination, grievances on whole which leged sex such relevant might accept mind record, angered reasonable admittedly supervisors. as a finding; it must support a adequate to as short, retaliatory typical a refusal to direct a enough justify be case, conflicting discharge there was evi- verdict, if matter were tried to the factual employer’s dence this case as something is less than the jury. This discharging complainant. motivation for evidence, possibility and the weight of the conflict fa- The fact finder resolvеd the drawing two inconsistent conclusions evi- complainant, vor of the and substantial prevent not an ad- does from the evidence The circuit supports dence the fact finder. finding being from agency’s ministrative its own find- improperly substituted re- evidence. The supported by substantial discharge. The ing on motivation for the to reverse the viewing court is not entitled improp- majority clearly has condoned this simply finding of the trier of facts judicial scope er review. must assume reviewing court is convinced because by holding explained that this curious weighed the that it would havе evidence particular for this com- majority’s disdain differently it trier of the if had been the contentiousness, than plainant’s rather 532-33, at 383 S.E.2d facts. Id. 181 W.Va. precedents disagreement this Court’s Accord, Brammer, 183 497-98. at scope judicial on in human review 111, 394 at 343. cases, are overruled none which present court in the case did The circuit majority this case. disparate not there was unlawful believe emphasized The circuit court treatment.
(1) when confront- that the lied Ill poor- had a ed and that the hearing examiner and Commis- other em- disciplinary history than the er comрlainant’s lying, decided that the sion place had ployees who left the with her actions on June when confronted Neither permission. of business without discipline 26, 1984, justified more severe previ- points these is well taken. As stated to other for sim- than meted out super- employee, a ously, at one other least offenses, though lying did ilar even such confronted, that em- visor, lied Accordingly, justify un- five-day suspension, ployee received a im- examiner and Commission' discharged. complainant, who was *9 like the thirty-day posed upon complainant the prior respect comparison to With the pay, rather than a suspension without majority the discipline, the circuit court and pay suspension without that sim- three-day hearing the of this Court have overlooked situated, hourly employees received. ilarly express Commission’s examiner’s and the acted outside that the Commission believe the same finding the treated imposing authority in its own measure its the com- which included in offenses were discipline. record, ei- disciplinary as plainant’s prior W.Va.Code, [1971, pro- 5-11-10 1987] at all when minor offenses or none ther procedures be- for the administrative vides employees. In addi- by other committed Virginia Human Com- fore the West tion, the Commis- the examiner and complaint filing of the mission after employee that at least one other sion found
721 procedures Boorstin, These the Commission. include Sullivan v. 484 F.Supp. (2)
(1)
investigation,
attempts
(D.D.C.1980).
an
at elimina- 842-43
Nix
See also
v.
apparent
discriminatory
Communications,
tion of an
unlawful
WLCY Radio/Rahall
conference,
practice by
per-
and
(11th Cir.1984).
conciliation
738 F.2d
1187
plainant.
tives and
be furthered
to
form
its
form or measure
“equal opportunity
sion
post-hearing
ciliatory
aрpropriate affirmative
spondent “shall
to
appropriate
suasion,
W.Va.Code,
W.Va.Code,
While
persuade
objectives
lacks
or measure
be
the
powers,
liberally
purposes,
the
an
Virginia
cease and desist order
5-11-2
Commission,
reach
5-11-15
and
determination,
the
by allowing
authority
evidentiary hearing
would have the
of discipline,
purposes
construed
[1981, 1989],
such as
discipline.
Human
[1967]
agreement
relief
to
as
the Commission
[,]”
impose
including any
employment,”
to
provides
providing
the Commis-
to the com-
and the
those
accomplish
would not
Although
as
authоrity
and
and
its
its
to
objec-
(4)
own F.Supp.
con-
any
Act
the
re- of
ployer chose for the
lawful
reducing
out
discharge
the statutorily
should have been taken here. That
iatory discharge and
crimination
case Mosley
In that
ceived
Commission should have
497
and
A
the
pay,
remanded,
F.Supp.
case which is similar to the
is
hourly
by similarly
disparate disciplinary
complainants
case,
at 590-91. The same
the measure of
the measure of
to a
statute,
583
employees.
involving a federal antidis-
three-day suspension
This situation is situa- S.E.2d held that the West tion in which unlawful is not did discrimination Commission proved, discipline jurisdiction but the seems harsh to a have the to award such dam- reviewing that, instead, ages jury court. Under those circum- and trial it necessary. stances has dis- circuit cоurt action would be been held absent crimination, complainant argues in essence that assuming no contractual she limitations, first, proceedings: discipline may a mat- seek choice of is bifurcate ter all appropriate left to the relief from best business second, judgment if discrimination light of all considerations. unlawful contrast, repeal replacement by the former civil com- to its grievance in 1989 and state service expressly granted procedure employees, power mission was for state see W.Va.Code, [1988]). modify syl., discipline See mеted out to a state 29-6A-11 also government employee Blake v. Civil Service 172 W.Va. covered under civil (1983) (petty system: theft state service "If the commission finds that *10 clothing hospital employees pa- complained by ap- donated for the action of and taken specifically, pointing worthy discipline, authority a ten- was too severe but was with tients is cause, good day suspension pay, may provide but does not consti- the commission for without remedies, long-term remedy may good tute cause dismissal civil such other or as be for appropriate service tenured unblemished deemed and in best interest of W.Va.Code, records). parties.” (prior work 29-6-15 [1977] discrimination-eliminating three-day sus- seek in cir- proved before would, only pension pay. Finally, I like damages without those recoverable cuit court majority, affirm the of the circuit disagree, upon I in a civil action. based refusing court’s final order to allow contrary. statutory and case law herein that as clusive Code, W.Va.Code, 5-11-9, provided and the final acts as declared unlawful W.Va. 5-ll-13(a) shall, amended, determination therein [1983] invoked, “the procedure prоvides be ex tice to recover more-than-incidental emotional damages. I am authorized to state MILLER to joins cross-appeal this opinion. to circuit court Chief Jus- action, any or crim civil shall exclude
inal, grievance on the same based Bishop Coal Co.
complainant concerned.” adminis also indicates Salyers
v. court avenues are mutu and circuit
trative
ally
at 247.
Court has
clear.” Price v. Boone Ambu- Supreme Appeals of Court of 676, 679, Authority, 175 lance Virginia. (internal footnote omitted). syl. pt. Price. See also Jan. Submitted 1991. Decided March The circuit court refused to allow re- cross-appeal order to dam- cover more-than-ineidental emotional
ages. The circuit court’s rationale was syllabus point 4 expressed in
same as that opinion: “An majority administrative court cannot
proceeding appeal on circuit an action at law
be transformed into true, may I
damages.” this be While ruling court’s on
would affirm circuit point
this the more fundamental basis on and circuit court the administrative mutually are exclusive.
routes
V I previously
For stated reasons part of the circuit court's
would reverse the respect to whether there
final order with discharge, af- retaliatory thereby
was a
firming finding on the the Commission’s aforestated, would, however, as
same. thirty-
set aside the Commission-ordered
day suspension pay in favor of