James M. Cagle Darrell
V. McGraw, Jr.
Charleston, West Virginia Attorney
General
Attorney for the Appellant, Paul
R. Sheridan
Heeter Construction, Inc. Deputy
Attorney General
Harry P. Henshaw, III
Charleston,
West Virginia
Charleston, West Virginia Attorney
for the Appellee,
Amicus Curiae on behalf of West
Virginia Human Rights
Heeter Construction, Inc. Commission
The Opinion of the Court was delivered PER CURIAM.
Justice Starcher concurs and reserves the right to file a concurring opinion.
1. “Upon judicial review of a contested
case under the West Virginia Administrative Procedure Act, Chapter 29A, Article
5, Section 4(g), the circuit court may affirm the order or decision of the agency
or remand the case for further proceedings. The circuit court 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 the administrative
findings, inferences, conclusions, decisions 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.'
Syllabus Point 2, Shepherdstown Volunteer Fire Department v. State ex rel.
State of West Virginia Human Rights Commission, 172 W. Va. 627, 309
S.E.2d 342 (1983).” Syllabus point 3, Smith v. West Virginia Human Rights
Commission, 216 W. Va. 2, 602 S.E.2d 445 (2004).
2. “Where an appeal from an order issued
by the West Virginia Human Rights Commission is brought directly to the West
Virginia Supreme Court of Appeals, pursuant to W. Va. Code § 5-11-11
(1989) [Repl. Vol. 2002], this Court will apply the same
standard of review that is applied to Human Rights Commission orders appealed
to a circuit court.” Syllabus point 1, Cobb v. West Virginia Human
Rights Commission, ___ W. Va. ___, ___ S.E.2d ___ (No. 31854, July
7, 2005).
Per Curiam:
Heeter Construction, Inc. (hereinafter “Heeter”)
appeals from a final judgment order entered June 30, 2004, by the West Virginia
Human Rights Commission (hereinafter “the Commission”). By that order,
the Commission affirmed the decision of the administrative law judge (hereinafter “ALJ”)
as to liability and damages, finding Heeter engaged in unlawful discriminatory
hiring practices. On appeal, Heeter argues that the hearing procedure was not
conducted in a fair and impartial manner. (See
footnote 1) Based upon the parties' arguments, (See
footnote 2) the record designated for our consideration, and the
pertinent authorities, we reverse the decision of the Commission, and remand
the case for a new hearing.
Heeter is a heavy construction firm and was
hired by the West Virginia Division of Highways to widen two portions of Route
10 near Man, West Virginia. A local office was opened and work began in March
2000. Peter Kelly, Octavia Binder, Kerry Walker, Timothy Boykins, Sherri Thomas,
and Andrea Thomas-Pauley (hereinafter the
“Complainants”) all applied for jobs as flaggers or rock truck drivers
on Heeter's Route 10 project. All of the Complainants are African American, and
none were hired by Heeter.
Each of the Complainants filed a claim alleging
that Heeter was guilty of discriminatory hiring practices under The West Virginia
Human Rights Act. W. Va. Code § 5-11-1, et. seq. All Complainants
alleged racial discrimination, and some Complainants also alleged discrimination
based on sex and/or age. The Commission investigated and found probable cause,
and the cases were consolidated and set for hearing. Evidence relating to the
allegations of discrimination, as well as Heeter's defenses thereto, was heard
over an eight-day period before an ALJ. To lay the foundation for our decision
in this case, it is important to note some of the colloquies that occurred during
the eight days of hearings.
[Commission's
counsel]: Jeez.
[Heeter's counsel]: Judge,
I'm going to ask him not to use curse words during the hearing.
[Commission's counsel]: I
said Jesus. Is that a curse word?
[Heeter's counsel]: Absolutely.
That's taking the Lord's name in vain.
[Commission's counsel]: I'm
terribly sorry. I know how committed you are to christian charity.
[Heeter's counsel]: Judge,
if you don't put some order in this Court, I am leaving. And I will submit the
proper things I need to submit to the Bar, because no [one] is going to curse
and say anything about my religion. Or sit in here and laugh.
[Commission's counsel]: This
is her 2000 - -
[ALJ]: Hold
it.
[Heeter's counsel]: That
is it. That is it. If you don't have any more control over a courtroom than this,
Judge.
[ALJ]: [A]re
you going to abandon your client during the middle of a hearing?
. . . .
[ALJ]: I'm
giving you both warnings. I've given you both warnings about this.
[Heeter's counsel]: I
am not going to sit in a hearing
and have someone use the Lord's name in vain and make religious remarks to
me. I am not going to do it. Not for you, Judge, and not for any other Judge.
And no other Judge would ask me to do that. And while we're on the record,
I want him to put on the record what specifically he called [Heeter's co- counsel],
because I think all this needs brought to light.
[ALJ]: Very
well.
[Commission's counsel]: I'm
sorry, Your Honor.
[ALJ]: If
we can both please sit down and continue with the hearing. I am not going to
tell him he cannot say Jesus in the hearing.
. . . .
[Heeter's co-counsel]: I
think he's engaging in religious discrimination. He's supposed to be a civil
rights attorney.
[Heeter's counsel]: That
is right. This is - - and I want on the record what he called [co- counsel],
because this whole scenario needs exposed, Judge, that you're allowing people
to carry on in a courtroom in this manner.
Thereupon, counsel for the Commission stated that Heeter's co-counsel called
him “a dick under his breath”, which was denied, and counsel for
the Commission stated that he responded by calling Heeter's co-counsel a “[j]erkoff.” As
the discussion progressed,
Heeter's counsel moved for the ALJ to recuse himself and the following discussion
was held on the record:
[Heeter's counsel]: May
I please, Judge, just to get this for the record. That you're going to allow
him to make those remarks in front of me which are highly religiously offensive
to me. I think that for whatever reason you have a desire to protect [Commission's
counsel] in these proceedings, of which I don't know why, but I'm going to ask
that you recuse yourself and give us another hearing examiner that I think will
see this case without partiality.
[ALJ]: Okay.
And your grounds for my recusal are because I am protecting [Commission's counsel]
for reasons you don't know?
[Heeter's counsel]: Yes.
And not only are you protecting him for reasons I don't know, when we asked that
something be done about both his language and his religious remarks, rather than
do anything in this courtroom regarding that matter, you make accusations against
[Heeter's co-counsel]. And I think that is blatantly obvious that something is
wrong and I don't feel that based on that you're going to see that this courtroom
is under order or that you're going to give us an impartial hearing.
[ALJ]: [Y]our
motion is denied. And I
resent the accusations that I am not trying my best to maintain order. And
I resent the fact that you think I am protecting one side or the other in this
matter over the interests of one party or the other.
The hearing progressed and on day four, Heeter's
counsel accused the Commission's counsel of “making faces” at her and
further accused the ALJ of “allowing it,” to which the ALJ responded, “I've
had it with you, [Heeter's counsel]. I've had it.” Further evidence of the
conduct exhibited during the hearings occurred on day six when the Commission's
counsel questioned a witness about a recently-deceased employee of Heeter. During
questioning, the Commission's counsel stated to the witness “[y]ou haven't
spoken to him recently, have you,” which he then stated was a “joke.” Co-counsel
for Heeter then asked the Commission's counsel if he wanted to “make fun
of any more dead people,” to which the Commission's counsel replied “[o]nly
when you die.”
The hearing continued to be punctuated by
contestable behavior and the last day of hearings, on day eight, contained the
following exchange:
[Heeter's counsel]: Judge,
I'd like to put on the record this morning that after I gave that [motion for
contempt] to [Commission's counsel], that he came in the hall, threatened me,
pointed his finger in my face, and called me a s-h-i-t head, and I
would also like on the record what he said to my client.
[Commission's counsel]: Judge,
she's being dishonest, flat out, undeniably dishonest. I didn't threaten her.
I didn't call her what she says I called her. I called her a chicken. . . . The
fact of the matter is that things did happen yesterday, words were exchanged
after the hearing. I overreacted to some deliberately provocative conduct by
[Heeter's co-counsel], and for that reason, I am responsible, because I have
yet to learn that when individuals like [Heeter's co- counsel] and like [Heeter's
counsel], who deliberately try and push your buttons in order to get you angry,
in order to get you to react, are doing it not because of any other reason than
to get you to - - to make you vulnerable to these kinds of ridiculous charges.
. . . .
[Commission's counsel]: This
is deliberate conduct. [Heeter's counsel] stated as much yesterday that she was
deliberately trying to provoke me, and it worked. And to that point, I am pathetic,
and I am miserable. I've been in this hearing for nine days, listening and observing
what I - - you know, I have never in my life observed members of the bar behaving
in the way that these two individuals have behaved.
. . . .
[Heeter's co-counsel]: Well,
Judge, I want to say one thing. First of all, he is putting the blame on his
unprofessional conduct, tortious conduct, and saying that I provoked him. I have
never provoked him. He has always been the instigator. All I did was packing
up and leaving, and he called me an a-hole. I didn't even respond. [Heeter's
counsel] addressed it, and then he started using f-bombs and everything else.
I told him he was not worth my time, and he wanted to provoke a fight. He called
me a chicken shit, got up into my face, was yelling. He's not worth my time,
and I thought it was pathetic.
At the conclusion of the hearings, the ALJ
found that Heeter discriminated in its hiring practices based on the impermissible
considerations of race, age, and sex. More specifically, the ALJ found that Peter
Kelly was discriminated against on the basis of race, and awarded him back pay,
prejudgment interest, and money for humiliation, embarrassment, emotional distress,
and loss of personal dignity. It was also found that Octavia Binder was discriminated
against on the basis of race and age. Ms. Binder was awarded back pay, prejudgment
interest, and money for humiliation, embarrassment, emotional distress, and loss
of personal dignity. The ALJ further found that Kerry Walker would not have been
hired by Heeter, even if the impermissible factors of race and sex had not been
considered. Despite
this finding, the ALJ awarded Mr. Walker money for humiliation, embarrassment,
emotional distress, and loss of personal dignity. According to the ALJ's findings,
Timothy Boykins was discriminated against on the basis of race and age. Mr.
Boykins was awarded back pay, prejudgment interest, and money for humiliation,
embarrassment, emotional distress, and loss of personal dignity. Additionally,
Complainant Sherri Thomas, as found by the ALJ, would not have been hired by
Heeter, even if the impermissible factor of race had not been considered. Despite
this finding, the ALJ awarded Ms. Thomas money for humiliation, embarrassment,
emotional distress, and loss of personal dignity. Finally, the ALJ found that
Heeter would not have hired Andrea Thomas-Pauley, even if the impermissible
factor of race had not been considered. Despite this finding, the ALJ awarded
Ms. Thomas-Pauley money for humiliation, embarrassment, emotional distress,
and loss of personal dignity.
Further, the ALJ found that Heeter articulated
legitimate, non-discriminatory reasons for the failure to hire the Complainants
because Heeter hires family, friends, and those persons recommended by family,
friends, and other trusted business associates. However, the ALJ found that the
Complainants proved by a preponderance of the evidence that although a legitimate,
non-discriminatory reason was involved in the hiring decisions, the impermissible
factor of race was a factor for all Complainants, and age and sex were additional
impermissible factors for some Complainants.
The ALJ ordered Heeter to
pay the West Virginia Office of the Attorney General, Civil Rights Division,
costs of $120.28, as reimbursement of travel expenses, and to the West Virginia
Human Rights Commission costs of $6,408.60, as reimbursement of its witness
fees and deposition and hearing transcript costs. The Commission, by its June
30, 2004, order, affirmed the decision of the ALJ finding liability for unlawful
discriminatory practices, and awarding damages. Heeter appealed the Commission's
decision directly to this Court.
Upon
judicial review of a contested case under the West Virginia Administrative Procedure
Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order
or decision of the agency or remand the case for further proceedings. The circuit
court 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 the administrative findings, inferences, conclusions, decisions 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.” Syllabus Point 2, Shepherdstown
Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights
Commission, 172 W. Va. 627, 309 S.E.2d 342 (1983).
Syl. pt. 3, Smith v. West Virginia Human Rights Comm'n, 216 W. Va.
2, 602 S.E.2d 445 (2004).
We have recently clarified this standard
when a party chooses to petition this Court directly on appeal. In that regard,
we have stated:
Where
an appeal from an order issued by the West Virginia Human Rights Commission is
brought directly to the West Virginia Supreme Court of Appeals, pursuant to W. Va.
Code § 5-11-11 (1989) [Repl. Vol. 2002], this Court will apply the same
standard of review that is applied to Human Rights Commission orders appealed
to a circuit court.
Syl. pt. 1, Cobb v. West Virginia Human Rights Comm'n, ___ W. Va.
___, ___ S.E.2d ___ (No. 31854, July 7, 2005).
Mindful of these applicable standards, we
proceed to consider the parties' arguments.
[t]o
do all other acts and deeds necessary and proper to carry out and accomplish
effectively the objects, functions and services contemplated by the provisions
of this article, including the promulgation of legislative rules in accordance
with the provisions of article three [§§ 29A-3-1 et seq.], chapter
twenty- nine-a of this code, implementing the powers and authority hereby vested
in the commission.
W. Va. Code § 5-11-8(h) (1998) (Repl. Vol. 2002). Although
the Code of Judicial Conduct states that “[t]he Code does not apply to
an administrative law judge, hearing examiner, or similar officer within the
executive branch of government,” W. Va. Code of Judicial Conduct,
Canon 6(A) Commentary, (1994), the regulations governing proceedings such as
the one below specifically direct that “[t]he conduct of the administrative
law judge shall,
where applicable, be guided by the Judicial Code of Ethics. (See
footnote 5) ” W. Va. C.S.R. § 77-2-7.4a (1999). To
this end, “[an administrative law] judge should participate in establishing,
maintaining, and enforcing high standards of conduct, and shall personally
observe those standards so that the integrity and independence of the judiciary
will be preserved.” W. Va. Code of Judicial Conduct, Canon 1 (1994).
Moreover, “[a] judge shall require order and decorum in proceedings before
the judge[,]”and “[a] judge shall be patient, dignified, and courteous
to litigants, jurors, witnesses, lawyers, and others with whom the judge deals
in an official capacity, and shall require similar conduct of lawyers . . .
subject to the judge's direction and control.” W. Va. Code of Judicial
Conduct, Canon 3, (B) (3 - 4) (1994).
Applying
these regulations and judicial canons to the facts of this case, it is clear
that even if the Commission's argument is accepted as true that Heeter's counsel
caused or induced the improper conduct, it is still the responsibility of the
ALJ to maintain control and decorum during its proceedings. The ALJ had the duty
to conduct a fair and impartial hearing, and is afforded the power to remove
counsel from the room to achieve this goal. The record amply demonstrates that
the ALJ failed to keep the parties' counsel under control, which in turn, deprived
all parties of a fair and impartial hearing. The Commission argues that a new
hearing merely rewards Heeter's counsel for bad behavior; however, we disagree.
All parties are afforded the right to create the record. In many instances,
Heeter's counsel vouched the record with issues relating to conduct of the
Commission's counsel. Because the ALJ did not remove himself from presiding
over the hearing, Heeter's counsel had no alternative but to spread objections
upon the record and such proffers were necessary to afford this Court, who
was not present at the hearings, the opportunity to evaluate the behavior of
counsel, both verbal and nonverbal. (See
footnote 6)
Finally, “[a]
judge shall not . . . by words or conduct manifest bias or prejudice . . . based
upon . . . religion . . . and shall not permit . . . others subject to the judge's
direction and control to do so.” W. Va. Code of Judicial Conduct, Canon
3 (B) (5) (1994). Moreover, “[a] judge shall require lawyers in proceedings
before the judge to refrain from manifesting, by words or conduct, bias or prejudice
based upon . . . religion . . . against parties, witnesses, counsel, or others.” W. Va.
Code of Judicial Conduct, Canon 3 (B) (6) (1994). It is apparent that the ALJ
not only overlooked one counsel's use of the Lord's name in vain, but more importantly,
allowed counsel to continue to argue over the semantical use of the name, whether
it be in a civil or religious context. The point of the hearing was to determine
whether the Complainants were victims of discriminatory hiring practices. The
ALJ's failure to maintain control over the proceedings stripped the Complainants
of the opportunity to
fairly present their case, and further denied Heeter the right to adequately
defend itself against the allegations. (See
footnote 7) Therefore, because no parties received a fair and impartial
hearing, the decision of the Commission is reversed, and this case is remanded
for a new hearing. (See
footnote 8)