C. Jane Moran
Erwin
L. Conrad
Jane Moran Law Office Conrad & Conrad
Williamson, West Virginia Fayetteville,
West Virginia
Attorney for the Appellant Attorney
for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. “A final order of the hearing examiner
for the West Virginia Education and State Employees Grievance Board, made
pursuant to W.Va.Code, 29-6A-1, et seq. [1988], and based upon
findings of fact, should not be reversed unless clearly wrong.” Syllabus, Quinn
v. W. Va. Northern Community College, 197 W. Va. 313, 475 S.E.2d 405
(1996).
2. “Where the issue on an appeal from the
circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo standard of review.” >Syl.
Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).>
3. “Although we accord great deference to
the findings of fact of the West Virginia Educational Employees Grievance
Board, we review, de novo, questions of law.” Syl. Pt. 2, Maikotter
v. Univ. of W. Va. Bd. of Trustees, 206 W. Va. 691, 527 S.E.2d 802 (1999).
4. “Grievance rulings involve a combination
of both deferential and plenary review. Since a reviewing court is obligated
to give deference to factual findings rendered by an administrative law judge,
a circuit court is not permitted to substitute its judgment for that of the
hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled
to deference. Plenary review is conducted as to the conclusions of law and
application of law to the facts, which are reviewed de novo.” Syl. Pt.
1, Cahill v. Mercer County Bd. of Educ., 208 W. Va. 177, 539 S.E.2d
437 (2000).
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 Nat'l
Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978).
6. “'“In an action to redress an unlawful
retaliatory discharge under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et
seq., as amended, the burden is upon the complainant to prove by a preponderance
of the evidence (1) that the complainant engaged in protected activity, (2)
that complainant's employer was aware of the protected activities, (3) that
complainant was subsequently discharged and (absent other evidence tending
to establish a retaliatory motivation), (4) that complainant's discharge
followed his or her protected activities within such period of time that
the court can infer retaliatory motivation.” Syl. pt. 4, Frank's
Shoe Store v. West Virginia Human Rights Commission, 179 W. Va. 53, 365
S.E.2d 251 (1986).' Syl. pt. 1, Brammer v. Human Rights Commission, 183 W. Va. 108, 394 S.E.2d 340 (1990).” Syl. Pt. 10, Hanlon v.
Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995).
Per Curiam:
This is an appeal by Peggy Freeman (hereinafter “Appellant”)
from a decision of the Circuit Court of Fayette County affirming a decision
of the West Virginia Education and State Employees Grievance Board
(hereinafter “Grievance Board”) denying the Appellant's grievance.
The Appellant's grievance had been filed based upon an alleged retaliatory
discharge from her position as Associate Superintendent of the Fayette County
Board of Education (hereinafter “BOE”). Upon thorough review
of the briefs, record, and arguments of counsel, we find that the lower court
erred in denying the Appellant's grievance. We therefore reverse the decision
of the lower court and remand this matter to the Grievance Board for entry
of an order granting the Appellant's grievance, reinstating her to her former
position should the Appellant choose to accept reinstatement, (See
footnote 1) and calculating an appropriate
award of back pay and attorney fees.
The Appellant thereafter filed a second grievance, alleging that she had been discharged in retaliation for the filing of her first grievance and that the BOE had failed to provide her with the due process rights to which she was entitled. This retaliatory discharge grievance proceeded to a Level IV hearing on August 8, 2002. (See footnote 4) The audio tapes of that hearing, however, failed to provide a clear record of that proceeding, and the Appellant agreed to permit the administrative law judge to proceed to decision based solely upon the administrative law judge's recollection of the testimony. (See footnote 5)
By order dated October 2, 2002, the administrative law judge concluded that the Appellant had established a prima facie case of retaliatory discharge. However, the administrative law judge further held that the BOE had defeated that prima facie case when “Mr. Domingues testified he had no knowledge of the other grievances . . . when he decided not to renew Grievant's contract.” Although the Appellant did admit that she and Mr. Domingues had not personally discussed her former grievance, the Appellant contends that Mr. Domingues did not testify at the hearing in question. (See footnote 6) The BOE did introduce the July 1, 2002, letter from Mr. Domingues indicating that he was not aware or the Appellant's prior grievance until that date.
The Appellant requested reconsideration of the administrative law judge's decision by letter dated October 4, 2002. As grounds for that request, she directed the administrative law judge's attention to the fact that although Mr. Domingues attended the August 8, 2002, hearing, neither he nor any other BOE witness testified. The administrative law judge did not respond to the Appellant's letter. The Circuit Court of Fayette County affirmed the decision of the administrative law judge.
On appeal to this Court, the Appellant claims that
the administrative law judge erred in finding that the testimony of Mr. Domingues
successfully rebutted her prima facie case of retaliatory discharge. The
Appellant contends that the administrative law judge's decision was apparently
based upon an erroneous recollection of the evidence presented at the Level
IV hearing. The Appellant also asserts that because the BOE did not provide
a legitimate basis for the termination, she was not granted an opportunity
to cross-examine any such witness' testimony in an attempt to prove that the allegedly legitimate
ground was pretextual.
Further, in syllabus point one of Cahill v. Mercer County Board of Education, 208 W. Va. 177, 539 S.E.2d 437 (2000), this Court observed as follows:
Grievance rulings involve a combination
of both deferential and plenary review. Since a reviewing court is obligated
to give deference to factual findings rendered by an administrative law judge,
a circuit court is not permitted to substitute its judgment for that of the hearing
examiner with regard to factual determinations. Credibility determinations made
by an administrative law judge are similarly entitled to deference. Plenary review
is conducted as to the conclusions of law and application of law to the facts,
which are reviewed de novo.
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.
In proving an allegation of retaliatory discharge, three phases of evidentiary
investigation must be addressed. First, the employee claiming retaliation must
establish a prima facie case. In syllabus point ten of Hanlon v. Chambers,
195 W. Va. 99, 464 S.E.2d 741 (1995), this Court explained:
“'In an action
to redress an unlawful retaliatory discharge under the West Virginia Human
Rights Act, W.Va.Code, 5-11-1, et seq., as amended, the burden
is upon the complainant to prove by a preponderance of the evidence (1) that
the complainant engaged in protected activity, (2) that complainant's employer
was aware of the protected activities, (3) that complainant was subsequently
discharged and (absent other evidence tending to establish a retaliatory motivation),
(4) that complainant's discharge followed his or her protected activities within
such period of time that the court can infer retaliatory motivation.' Syl.
pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission,
179 W. Va. 53, 365 S.E.2d 251 (1986).” Syl. pt. 1, Brammer v. Human
Rights Commission, 183 W. Va. 108, 394 S.E.2d 340 (1990).
Once the employee has satisfied that burden of
establishing a prima facie case of retaliatory discharge, as the administrative
law judge found that the Appellant had done in the present case, the burden
shifts to the employer to provide a legitimate, intervening reason for the
dismissal. During that second phase of the retaliatory discharge
claim, an employer seeks to rebut the presumption of retaliatory action by
offering “credible evidence of legitimate nondiscriminatory reasons
for its actions. . . .” Mace v. Pizza Hut, Inc., 180 W. Va. 469,
472, 377 S.E.2d 461, 464 (1988).
If the employer articulates a legitimate, non-discriminatory
reason for its action, the third phase returns the burden to the employee.
The employee is provided an opportunity to address the employer's
allegedly legitimate basis for the adverse action and to prove that the reasons
offered by the employer were merely pretextual. As this Court stated in West Virginia Department of Natural Resources v. Myers, 191
W. Va. 72, 443 S.E.2d 229 (1994), “[s]hould the employer succeed in
rebutting the presumption, the employee then has the opportunity to prove
by a preponderance of the evidence that the reasons offered by the employer
for discharge were merely a pretext for unlawful discrimination.” Id.
at 76, 443 S.E.2d at 233.
The three phases were succinctly summarized by this Court in Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W. Va. 53, 365 S.E.2d 251 (1986), as follows:
If the complainant is
successful in creating this rebuttable presumption of discrimination, the respondent
may offer some legitimate, nondiscriminatory reason for the rejection. If the
respondent then should succeed in rebutting the presumption of discrimination,
the complainant may prove by a preponderance of the evidence that the reasons
offered by the respondent were merely a pretext for discrimination.
179 W. Va. at 60, 365 S.E.2d at 258.
In Ruby v. Insurance Commission of West Virginia,
197 W. Va. 27, 475 S.E.2d 27 (1996), this Court explained that once the employee,
Ms. Ruby, established a prima facie case, the burden shifted “to the Insurance
Commission to show that it had a legitimate, non-retaliatory reason for dismissing
Ms. Ruby.” 197 W. Va. at 34, 475 S.E.2d at 34. Subsequent to the employer's
presentation of a legitimate basis for the discharge, “[t]he burden then shifted back to Ms. Ruby 'to prove by a preponderance of the
evidence that the reasons offered by the respondent were merely a pretext
for the unlawful' retaliatory discharge.” Id. at 35, 475 S.E.2d
at 35, quoting syl. pt. 3, in part, Shepherdstown Volunteer Fire Dept.
v. State ex rel. State Human Rights Comm'n, 172 W. Va. 627, 309 S.E.2d
342 (1983).
As stated above, this Court has consistently reviewed grievance board decisions by according deference to the findings of fact made below. However, we “review de novo the conclusions of law and application of law to the facts.” Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 304, 465 S.E.2d 399, 406. (See footnote 7) The Appellant'>s establishment of a prima facie case of retaliatory discharge, as found by the administrative law judge, imposed a clear burden upon the BOE to produce competent evidence rebutting such presumption. In Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the United States Supreme Court explained as follows:
If the defendant carries this burden
of production, the presumption raised by the prima facie case is rebutted, and
the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to
meet the plaintiff's prima facie case by presenting a legitimate reason for
the action and to frame the factual issue with sufficient clarity so that
the plaintiff will have a full and fair opportunity to demonstrate pretext.
The sufficiency of the defendant's evidence should be evaluated by the extent
to which it fulfills these functions.
Id. at 255-56 (footnote omitted). The employee thereafter has “the
opportunity to demonstrate that the proffered reason was not the true reason
for the employment decision.” Id. at 256; see also United
States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
On appeal in the case
sub judice, the Appellant maintains that the administrative law judge erred in
finding that the BOE successfully rebutted the Appellant's prima facie showing
that her discharge was in retaliation for the filing of her prior grievance.
The administrative law judge found that although the Appellant established a
prima facie case of retaliatory discharge, the BOE rebutted the Appellant's contention
that her discharge was retaliatory by advancing legitimate, non-retaliatory reasons
for her dismissal and by asserting that Mr. Domingues did not have knowledge
of the filing of her prior grievance and consequently could not have fired her
in retaliation for such filing.
In the findings of fact and conclusions of law submitted by the administrative law judge, a finding regarding the first prong of the retaliatory discharge triad is explicitly made; the Appellant was determined to have established a prima facie case of retaliatory discharge. The administrative law judge also included a specific finding regarding the second prong; the employer was found to have presented a legitimate basis for the adverse employment decision. However, the third prong of the triad is absent. The administrative law judge did not include a finding regarding the third prong of a retaliatory discharge action, specifically whether the Appellant, upon the presentation of that legitimate, non-retaliatory motive by the employer, demonstrated that the reasons offered for her discharge were merely a pretext for a retaliatory motive.
In addition to the absence of a ruling regarding the third prong of a retaliatory discharge action, we must address the Appellant's contention that the BOE could not have successfully rebutted the prima facie case since the BOE allegedly failed to present any evidence at the hearing. Counsel for the BOE was questioned concerning that assertion during oral argument before this Court on June 9, 2004, and he asserted that he was unable to recall whether he presented witnesses at the hearing in question to rebut the Appellant's prima facie case of retaliation. The record does contain the July 1, 2002, letter in which Mr. Domingues claims that he was unaware of the first grievance filed by the Appellant until that date.
Based upon our review of the record and the history of this litigation, we find Mr. Domingues' assertion that he did not have any knowledge concerning the filing of the Appellant's prior grievance to be inherently incredible and insufficient to rebut the Appellant's prima facie case of retaliation. The evidence indicated that Mr. Domingues began to be intimately involved in the workings of the BOE prior to assuming the actual job responsibilities of that office on July 1, 2002. While he and the Appellant, by the Appellant's own admission, did not have personal conversation regarding the filing of her prior grievance, it is nearly inconceivable that Mr. Domingues did not have any knowledge of the filing of a grievance by the most senior administrator in the BOE asserting that she should have been appointed as the Interim Superintendent during the selection process for the Superintendent, a position to which Mr. Domingues was thereafter appointed.
In our review of the administrative
law judge's decision, as well as the documentary evidence upon which the
judge relied, (See
footnote 8) we find that the administrative law judge erred in concluding that the evidence submitted by the BOE was sufficient
to overcome the Appellant's prima facie case of retaliatory discharge. The
glaring absence of any finding regarding the third prong of a retaliatory
discharge action which should have provided the Appellant with an opportunity
to respond to the employer's allegations of a legitimate discharge also supports
our conclusion. Even if we were to assume that the employer's assertion of
a legitimate basis for the termination had successfully rebutted the Appellant's
prima facie case, the absence of a finding or conclusion regarding the third
prong of a retaliatory discharge action would be cause for reversal.
The BOE asserts that the Appellant
invited error by agreeing to allow the administrative law judge to utilize her
own recollection of the proceedings. The BOE alleges that the Appellant “seeks to be entitled to invite error and then
claim error.” We find such argument disingenuous and utterly without
merit. The error of which the Appellant complains is not the fact that the
judge utilized her recollection to reach a decision; the alleged error is
that such decision was wrong. The Appellant did not waive her right to petition
for an appeal by consenting to the issuance of a decision based on the administrative
law judge's recollection. The right to petition for an appeal still exists,
regardless of the basis for the judge's decision.
Based upon the foregoing,
we reverse the October 2, 2002, order of the administrative law judge for
the Grievance Board and the April 22, 2003, circuit court order affirming
that decision. We remand this matter to the Grievance Board for entry
of an order granting the Appellant's grievance, reinstating her to her former
position should the Appellant choose to accept reinstatement, and
calculating an appropriate award of back pay and attorney fees.
Reversed
and Remanded With Directions.
Please be advised on July
1, 2002, I will assume the contract for the position of Superintendent of
Schools for the Fayette County School System.
Because of this change and subsequent
applicable statutes I wish to advise you that as of midnight June 30, 2002 your
contract as Associate Superintendent of Curriculum and Instruction with the Fayette
County School System ends.
Should you find the need to discuss further please contact the Personnel Director.
Mr. Domingues testified
he had no knowledge of the other grievances when he was hired as Superintendent,
and when he decided not to renew Grievant's contract. Obviously, the Board
was aware of the previous grievances when it approved his recommendation,
but the fact remains that at the time he made his initial decision, Mr. Domingues
did not know of the grievances. Therefore, that cannot have been the basis
of his decision not to renew Grievant's contract. The Board has demonstrated a legitimate, nonretaliatory reason for Grievant's non-renewal,
which is that a new Superintendent was hired who wanted someone whose philosophy
was closer to his.
The administrative law judge further concluded as follows:
The Board demonstrated a legitimate, nonretaliatory reason for the termination of Grievant's contract of employment, in that she served at the will and pleasure of the superintendent, and had no entitlement to the continuation of her contract past the expiration of the incumbent superintendent's term of employment, in this case, June 30, 2002, and there was no evidence Superintendent Domingues was aware of her previous grievances when he made his decision not to renew her contract.