Theresa L. Weimer v. Thomas Sanders, etc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term
FILED
November 13, 2013
No. 12-0477 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
THERESA L. WEIMER,
Plaintiff Below, Petitioner
V.
THOMAS SANDERS, individually
and in his official capacity; C.C. LESTER,
in his official capacity; and POCAHONTAS
COUNTY BOARD OF EDUCATION,
Defendants Below, Respondents
Appeal from the Circuit Court of Pocahontas County
Honorable Joseph C. Pomponio, Jr., Judge
Civil Action No. 11-C-54
REVERSED AND REMANDED
AND
No. 12-1506
VICKY LOU HUGHES,
Plaintiff Below, Petitioner
V.
WEST VIRGINIA UNIVERSITY,
JEANETTE MOTSCH and
MARY ROBERTA “BOBBIE” BRANDT,
Defendants Below, Respondents
Appeal from the Circuit Court of Monongalia County
Honorable Phillip D. Gaujot, Judge
Civil Action No. 12-C-321
REVERSED AND REMANDED
Submitted: October 1, 2013
Filed: November 13, 2013
COUNSEL IN CASE NUMBER 12-0477:
Roger D. Forman Robert P. Martin
Daniel T. Lattanzi Michael W. Taylor
The Law Office of Bailey & Wyant, PLLC
Roger D. Forman, L.C. Charleston, West Virginia
Charleston, West Virginia Attorneys for the Respondents
Attorneys for the Petitioner
Allan N. Karlin Patrick Morrisey
Jane E. Peak Attorney General
Allen N. Karlin & Associates Jamie S. Alley
Morgantown, West Virginia Senior Assistant Attorney
Attorneys for Amici Curiae: General
West Virginia Advocates, Inc.; Civil Rights Division
The West Virginia Conference Charleston, West Virginia
of Branches of the NAACP; Attorneys for Amicus Curiae,
WV Free; The Mountain State The West Virginia Human Rights
Bar Association; and American Civil Commission
Liberties Union of West Virginia
David M. Hammer
Hammer, Ferretti & Schiavoni
Martinsburg, West Virginia
Attorney for Amicus Curiae,
Employment Lawyers Association
COUNSEL IN CASE NUMBER 12-1506:
Walt Auvil Monte L. Williams
Rusen & Auvil, PLLC Deva A. Solomon
Parkersburg, West Virginia Steptoe & Johnson PLLC
Attorney for the Petitioner Morgantown, West Virginia
Attorneys for the Respondents
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE WORKMAN, deeming herself disqualified, did not participate.
SYLLABUS BY THE COURT
1. “Appellate review of a circuit court’s order granting a motion to dismiss
a complaint is de novo.” Syllabus point 2, State ex rel. McGraw v. Scott Runyan
Pontiac–Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
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.”
Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
3. “The primary object in construing a statute is to ascertain and give effect
to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen’s Compensation
Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).
4. “Where the language of a statute is clear and without ambiguity the plain
meaning is to be accepted without resorting to the rules of interpretation.” Syllabus point 2,
State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
5. “In the absence of any definition of the intended meaning of words or
terms used in a legislative enactment, they will, in the interpretation of the act, be given their
i
common, ordinary and accepted meaning in the connection in which they are used.” Syllabus
point 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled
on other grounds by Lee–Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
6. A public employee may file a written grievance to the West Virginia
Public Employee Grievance Board pursuant to W. Va. Code § 6C-2-4(a)(1) (2008) (Repl.
Vol. 2010); however, such filing is permissive and not mandatory under the clear wording
of the statute.
7. “A plaintiff may, as an alternative to filing a complaint with the Human
Rights Commission, initiate an action in circuit court to enforce rights granted by the West
Virginia Human Rights Act.” Syllabus point 1, Price v. Boone County Ambulance Authority,
175 W. Va. 676, 337 S.E.2d 913 (1985).
8. “The West Virginia Education and State Employees Grievance Board
does not have authority to determine liability under the West Virginia Human Rights Act,
W. Va. Code, § 5-11-1, et seq.; nevertheless, the Grievance Board’s authority to provide
relief to employees for ‘discrimination,’ ‘favoritism,’ and ‘harassment,’ as those terms are
defined in W. Va. Code, 18-29-2 (1992), includes jurisdiction to remedy discrimination that
also would violate the Human Rights Act.” Syllabus point 1, Vest v. Board of Education, 193
ii
W. Va. 222, 455 S.E.2d 781 (1995).
9. A plaintiff may, as an alternative to filing a grievance with the West
Virginia Public Employees Grievance Board, initiate an action in circuit court to enforce
rights granted by the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq.
10. “A civil action filed under the West Virginia Human Rights Act, W. Va.
Code, 5-11-1, et seq., is not precluded by a prior grievance decided by the West Virginia
Education and State Employees Grievance Board arising out of the same facts and
circumstances.” Syllabus point 3, Vest v. Board of Education, 193 W. Va. 222, 455 S.E.2d
781 (1995).
11. “For issue or claim preclusion to attach to quasi-judicial determinations
of administrative agencies, at least where there is no statutory authority directing otherwise,
the prior decision must be rendered pursuant to the agency’s adjudicatory authority and the
procedures employed by the agency must be substantially similar to those used in a court. In
addition, the identicality of the issues litigated is a key component to the application of
administrative res judicata or collateral estoppel.” Syllabus point 2, Vest v. Board of
Education, 193 W. Va. 222, 455 S.E.2d 781 (1995).
iii
12. A civil action commenced in circuit court under the West Virginia
Human Rights Act, W. Va. Code § 5-11-1 et seq., is not precluded by a grievance that was
filed with, but not decided by, the West Virginia Education and State Employees Grievance
Board, W. Va. Code § 6C-2-1 et seq., and arising out of the same facts and circumstances.
iv
Davis, Justice:
These consolidated appeals submit the same legal issue for this Court’s review:
whether a circuit court action alleging violations of the West Virginia Human Rights Act,
W. Va. Code § 5-11-1 et seq. (“WVHRA”) is proper in the absence of the exhaustion of
administrative remedies available pursuant to the West Virginia Public Employees Grievance
Procedure, W. Va. Code § 6C-2-1 et seq. (“Grievance Procedure”). In these combined cases,
Theresa Weimer (“Ms. Weimer”) and Vicky Lou Hughes (“Ms. Hughes”) (collectively, “the
petitioners”) appeal the respective circuit courts’ dismissals of their complaints. On appeal
to this Court, the petitioners argue that the circuit courts erred in the determinations that the
exhaustion of the Grievance Procedure was a necessary precondition to the filing of a circuit
court action. Upon a review of the parties’ briefs,1 the appendix records designated for
appellate consideration, the governing law, and the parties’ oral arguments, we reverse the
rulings of the circuit courts and remand for further proceedings. Specifically, in Case
Number 12-0477 regarding Ms. Weimer, we reverse the March 12, 2012, “Order Granting
Motion to Dismiss for Failure to Exhaust Administrative Remedies” entered by the Circuit
1
We acknowledge the contribution of the following amici curiae who filed
briefs in this case: Employment Lawyers Association; The West Virginia Human Rights
Commission; West Virginia Advocates, Inc.; The West Virginia Conference of Branches of
the NAACP; WV Free; The Mountain State Bar Association; and American Civil Liberties
Union of West Virginia. All of the amici briefs were filed in Ms. Weimer’s appeal, Case
Number 12-0477, and posit that the dismissal of claims for failure to exhaust grievance
procedures should be reversed. We value the participation of the amici and will consider
their briefs in conjunction with the parties’ arguments.
1
Court of Pocahontas County and remand the case for further consideration consistent with
this opinion. Additionally, in Case Number 12-1506 regarding Ms. Hughes, we reverse the
Circuit Court of Monongalia County’s November 13, 2012, “Order Granting Defendants’
Motion to Dismiss” and remand for additional judicial proceedings comporting with the
discussion contained herein.
I.
FACTUAL AND PROCEDURAL HISTORY
Because the errors assigned in each of the cases sub judice are substantially the
same, they have been consolidated for this Court’s consideration and decision. Resolution
of these cases is based purely on the legal issues. However, a brief recitation of the
individual facts giving rise to each appeal is set forth below.
A. Theresa L. Weimer, Case Number 12-0477
In 2006, Ms. Weimer began teaching at Pocahontas County High School
(“PCHS”), a public school. During her teaching career at PCHS, she suffered from
insulin-dependent diabetes, lumbar degenerative disk disease, depression, degenerative joint
disease, fibromyalgia, plantar fasciitis, acute renal failure, hypertension, and sleep apnea.
Ms. Weimer’s medical problems were known to her supervisor, the school principal. Ms.
Weimer asserts that the school principal harassed her, told her he needed “healthy teachers,”
2
and failed to provide accommodations. She received a letter in 2009 from the principal
regarding her alleged inability to teach. Further, she was suspended without pay on
November 30, 2009; however, this suspension eventually was converted to family medical
leave. Ms. Weimer returned to work in Fall 2010, and states that she expected work
accommodations. In particular, she requested smaller class sizes and/or assistance from a
teacher’s aide, which she asserts were refused by the principal.
In late 2011, Ms. Weimer tripped and fell in her classroom. Ms. Weimer
contends that the principal used this incident against her based on the perception that it
occurred because of her disabilities. Shortly thereafter, it was recommended that Ms.
Weimer’s employment be terminated: a pretermination hearing was conducted, which
included evidence that Ms. Weimer had teaching deficiencies, including falling asleep while
teaching and leaving students unattended. Based upon the recommendations of the school
principal and the school superintendent, Ms. Weimer’s position as a public school teacher
was terminated by the Pocahontas County Board of Education on October 27, 2011.
Subsequent thereto, on November 30, 2011, Ms. Weimer filed a complaint in
the Circuit Court of Pocahontas County against Thomas Sanders, the Principal of PCHS;
C.C. Lester, the Superintendent of the Pocahontas County Board of Education; and the
Pocahontas County Board of Education (collectively, “the Weimer respondents”). Ms.
3
Weimer did not file a grievance with the West Virginia Public Employees Grievance Board
(“Grievance Board”). See W. Va. Code § 6C-2-1 et seq. The circuit court complaint asserted
violations under the WVHRA: discriminatory discharge on the basis of actual or perceived
disability; hostile work environment on the basis of actual or perceived disability; and
disparate discipline on the basis of actual or perceived disability.
The Weimer respondents filed a motion to dismiss the lawsuit, in which they
argued that Ms. Weimer’s complaint was flawed because she failed to exhaust her
administrative remedies with the Grievance Board. By order entered March 12, 2012, the
circuit court granted the motion to dismiss. The lower court reasoned that facts alleged in
the complaint point to “discrimination,” “harassment,” “favoritism,” and other matters that
may properly be addressed by the Grievance Procedure. Ultimately, the circuit court ruled
that Ms. Weimer first must exhaust her administrative remedies available through the
Grievance Procedure prior to bringing a claim pursuant to the WVHRA before the circuit
court. Ms. Weimer appealed to this Court, and her case was consolidated with Hughes v.
West Virginia University, Case Number 12-1506.
B. Vicky Lou Hughes, Case Number 12-1506
Ms. Hughes began employment in December 2007 as a coordinator/clinical
associate for the Center for Excellence in Disabilities (“CED”), a branch of West Virginia
4
University (“WVU”). Her position provided Traumatic Brain Injury (“TBI”) services
throughout the state. During the interview process, Ms. Hughes advised the CED that she
has a disability known as multiple chemical sensitivity, which requires reasonable
accommodation. Initially, the CED accommodated Ms. Hughes’s requests, permitting her
to use her personal vehicle for work travel and allowing her to work from a different office
location while her regular office location was undergoing renovation.
On April 6, 2010, a meeting was held wherein Ms. Hughes was informed that
there had been consumer complaints regarding her job performance. After an investigation,
a warning letter was issued June 11, 2010, stating that Ms. Hughes’s work quality was
unsatisfactory. After the April 6, 2010, meeting, it was alleged that Ms. Hughes had engaged
in additional inappropriate and potentially unethical clinical procedures and client
interactions. Ms. Hughes argued that these allegations were false and were made with the
purpose and intent of harassing her in retribution for her requests for accommodation.
Ms. Hughes, in June 2010, suffered an orthopedic injury that resulted in a
medical leave of absence of approximately one year. When she attempted to return to work,
she was advised that several of her requests for accommodation had been rejected. On
October 31, 2011, her employment was terminated.
5
Ms. Hughes initiated the Grievance Procedure, asserting that her employer had
refused to provide needed reasonable accommodations. Reportedly, several grievance
hearings had occurred, with another grievance hearing scheduled to take place in late 2012.
However, prior to the holding of the latest grievance hearing, Ms. Hughes filed the instant
civil action in circuit court against the respondents: WVU;2 Jeanette Motsch, Executive
Officer for Social Justice; and Mary Roberta “Bobbie” Brandt, Medical Management and
ADA Compliance Officer (collectively, “the Hughes respondents”). In her civil action, Ms.
Hughes alleged violations of the WVHRA for the failure to provide reasonable
accommodations for her disability. The Hughes respondents moved the circuit court to
dismiss the complaint, arguing that the circuit court lacked subject matter jurisdiction based
upon Ms. Hughes’s failure to exhaust all available administrative remedies prior to filing the
civil action. Moreover, the Hughes respondents argued that Ms. Hughes had started the
grievance process, which must be completed prior to a civil action on the same issues.
By order of November 13, 2012, the circuit court granted the motion to dismiss,
finding that a circuit court action under the WVHRA is not precluded by prior grievance
proceedings. However, the circuit court found that a parallel, contemporaneous proceeding
2
Recognizing the circuit court’s explanation that the parties incorrectly named
WVU as the defendant and that the true party defendant is the West Virginia Board of
Governors, we use the misnomer “WVU” to maintain consistency with the case styling
below.
6
may not be maintained. Accordingly, the circuit court ruled that Ms. Hughes, having elected
the Grievance Procedure, must exhaust her administrative remedies before filing an action
in circuit court. Ms. Hughes appealed to this Court, and her case was consolidated with
Weimer v. Sanders, Case Number 12-0477.
II.
STANDARD OF REVIEW
The consolidated appeals before this Court result from the lower courts’
granting of motions to dismiss. It is well settled that “[a]ppellate review of a circuit court’s
order granting a motion to dismiss a complaint is de novo.” Syl. pt. 2, State ex rel. McGraw
v. Scott Runyan Pontiac–Buick, Inc., 194 W. Va. 770, 461 S .E.2d 516 (1995). Further,
recognizing that this case requires review of a purely legal issue, we have counseled that
“[w]here 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). Mindful of this applicable
standard, we now consider the substantive issues raised herein.
7
III.
DISCUSSION
On appeal to this Court, Ms. Weimer asserts that the circuit court erred in its
determination that administrative procedures must be exhausted before an action can be
maintained in the circuit court. Thus, Ms. Weimer claims that the circuit court’s dismissal
of her complaint was flawed. Similarly, Ms. Hughes argues that the circuit court erred in
dismissing her complaint based on its finding that she had not completed the grievance
process and, further, in its ruling that commencement of the Grievance Procedure requires
conclusion of the same. In essence, these cases present to this Court the question of whether
a public employee, whose employment confers grievance rights before the Grievance Board,
is required to exhaust the administrative Grievance Procedure before initiating a complaint
in the circuit court alleging violations of the WVHRA. Moreover, Ms. Hughes’s case raises
the additional question of whether commencement of the Grievance Procedure precludes the
institution of a circuit court action prior to exhaustion of the Grievance Procedure.
At the outset, the initial question for this Court is whether the Grievance
Procedure supplies an exclusive remedy or mandatory proceeding to the petitioners. To
determine the answer, this Court must look to the statute. The Grievance Procedure applies
to public employees and states, in pertinent part, that
[w]ithin fifteen days following the occurrence of the
event upon which the grievance is based, or within fifteen days
8
of the date upon which the event became known to the
employee, or within fifteen days of the most recent occurrence
of a continuing practice giving rise to a grievance, an employee
may file a written grievance with the chief administrator stating
the nature of the grievance and the relief requested and request
either a conference or a hearing. . . .
W. Va. Code § 6C-2-4(a)(1) (2008) (Repl. Vol. 2010). The first step in statutory
construction is to identify the intent expressed by the Legislature in promulgating the
provision at issue. “The primary object in construing a statute is to ascertain and give effect
to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159
W. Va. 108, 219 S.E.2d 361 (1975). Next, we look to the particular language used by the
Legislature. “Where the language of a statute is clear and without ambiguity the plain
meaning is to be accepted without resorting to the rules of interpretation.” Syl. pt. 2, State
v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). Accord Syl. pt. 5, State v. General Daniel
Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959)
(“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.”). Further guidance states that, “[i]n the absence of any
definition of the intended meaning of words or terms used in a legislative enactment, they
will, in the interpretation of the act, be given their common, ordinary and accepted meaning
in the connection in which they are used.” Syl. pt. 1, Miners in Gen. Group v. Hix, 123
W. Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee–Norse Co. v.
Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
9
Under the plain wording of the statute, a public employee has a fifteen day time
limit that begins to accrue based upon different factual scenarios. Within the applicable
fifteen day period, “an employee may file a written grievance with the chief administrator
stating the nature of the grievance[.]” (Emphasis added). As a general rule, the word “may”
is afforded a permissive connotation, which renders the referenced act discretionary, rather
than mandatory, in nature. See State v. Hedrick, 204 W. Va. 547, 552, 514 S.E.2d 397, 402
(1999) (“The word ‘may’ generally signifies permission and connotes discretion.” (citations
omitted)). Thus, applying this discretionary connotation to the present case, we now hold
that a public employee may file a written grievance to the West Virginia Public Employee
Grievance Board pursuant to W. Va. Code § 6C-2-4(a)(1) (2008) (Repl. Vol. 2010);
however, such filing is permissive and not mandatory under the clear wording of the statute.
Having determined that the Grievance Procedure is discretionary, we turn to
the issue of whether the decision to forego the filing of the permissive grievance with the
Grievance Board precludes a petitioner’s right to file a cause of action elsewhere. In other
words, we must determine whether the exhaustion of administrative remedies is a
precondition to the filing of an action in circuit court.
10
As noted previously, Ms. Weimer filed her action in the circuit court pursuant
to the WVHRA, without having filed a grievance with the Grievance Board.3 We have
expressly held that a claimant may pursue an action in either the Human Rights Commission
or the circuit court. Specifically, “[a] plaintiff may, as an alternative to filing a complaint
with the Human Rights Commission, initiate an action in circuit court to enforce rights
granted by the West Virginia Human Rights Act.” Syl. pt. 1, Price v. Boone Cnty.
Ambulance Auth., 175 W. Va. 676, 337 S.E.2d 913 (1985).4 Despite the fact that the Human
Rights Commission is an administrative agency that has jurisdiction to evaluate such claims,
there is no requirement that a complainant must exhaust the administrative remedies available
through the Human Rights Commission prior to filing a circuit court action.5
3
Factually and legally, Ms. Hughes’s case raises an additional issue than Ms.
Weimer’s situation. Ms. Weimer never availed herself of the grievance process. However,
Ms. Hughes originally filed a grievance, but then abandoned the claim and filed her case in
circuit court. The legal impact of this factual departure will be discussed, infra.
4
Similarly, in a recent decision under the West Virginia Wage Payment and
Collection Act (“WVWPCA”), this Court focused on the clear language of the WVWPCA
and held that, “[p]ursuant to W. Va. Code, 21-5-12(a) (1975), a person whose wages have
not been paid in accord with [WVWPCA] may initiate a claim for the unpaid wages either
through the administrative remedies provided under the Act or by filing a complaint for the
unpaid wages directly in circuit court.” Syl. pt. 3, Beichler v. West Virginia Univ. at
Parkersburg, 226 W. Va. 321, 700 S.E.2d 532 (2010). This Court was persuaded that if the
Legislature had intended to require a claimant to exhaust administrative remedies prior to
filing a civil action under the WVWPCA, the Legislature could have so provided, but it did
not. Similar to the WVWPCA, the WVHRA has no requirement for the exhaustion of any
administrative remedies prior to pursuing a civil action.
5
The general rule in this Court with regard to the exhaustion of administrative
remedies provides “that where an administrative remedy is provided by statute or by rules
(continued...)
11
It stands to reason that if a claimant is not required to maintain an action before
the Human Rights Commission prior to filing a claim in the circuit court, the claimant is,
5
(...continued)
and regulations having the force and effect of law, relief must be sought from the
administrative body, and such remedy must be exhausted before the courts will act.” Syl. pt.
1, Daurelle v. Traders Fed. Sav. & Loan Ass’n., 143 W. Va. 674, 104 S.E.2d 320 (1958).
See also Syl. pt. 1, Sturm v. The Bd. of Educ. of Kanawha Cnty., 223 W. Va. 277, 672 S.E.2d
606 (2008) (same); Syl. pt. 7, Expedited Trans. Sys. Inc. v. Vieweg, 207 W. Va. 90, 529
S.E.2d 110 (2000) (same). However, we also have recognized
that where separate legislative enactments exist which provide
separate administrative remedies, preclusive doctrines will not
necessarily be applied. See Collins v. Elkay Mining Co., 179
W. Va. 549, 371 S.E.2d 46 (1988); Davis v. Kitt Energy Corp.,
179 W. Va. 37, 365 S.E.2d 82 (1987); Wiggins v. Eastern
Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (1987).
Liller v. West Virginia Human Rights Comm’n, 180 W. Va. 433, 441, 376 S.E.2d 639, 647
(1988). Indeed, our cases require us to determine “whether applying the doctrines [of
preclusion] is consistent with the express or implied policy in the legislation which created
the body.” Syl. pt. 3, in part, Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 359 S.E.2d 124
(1987).
We also have recognized exceptions to the rule requiring the exhaustion of
remedies. Indeed, in Price, we recognized that the alternative administrative and judicial
avenues run “counter to the general rule of statutory construction that where a new right is
created by statute, the remedy provided for its violation is exclusive.” Price v. Boone Cnty.
Ambulance Auth., 175 W. Va. 676, 678, 337 S.E.2d 913, 916-17 (1985). “Where the
available administrative remedy is inadequate, this Court recognizes an exception to the
general rule that where a new right is created by statute, the remedy can be only that which
the statute prescribes.” Syl. pt. 2, Wiggins v. Eastern Assoc. Coal Corp., 178 W. Va. 63, 357
S.E.2d 745 (1987). Also, “[t]his Court will not require the exhaustion of administrative
remedies where such remedies are duplicative or the effort to obtain them futile.” Syl. pt. 6,
Wiggins, id. Finally, “[t]he doctrine of exhaustion of administrative remedies is inapplicable
where resort to available procedures would be an exercise in futility.” Syl. pt. 1, State ex rel.
Board of Educ. v. Casey, 176 W. Va. 733, 349 S.E.2d 436 (1986).
12
likewise, not required to file a grievance with the Grievance Board before filing a claim
pursuant to the WVHRA in the circuit court. This is especially true given the fact that the
Human Rights Commission has broader power and authority to remedy discrimination claims
than does the Grievance Board.6 As this Court has explained,
[t]he West Virginia Education and State Employees
Grievance Board does not have authority to determine liability
under the West Virginia Human Rights Act, W. Va. Code,
§ 5-11-1, et seq.; nevertheless, the Grievance Board’s authority
to provide relief to employees for “discrimination,”
“favoritism,” and “harassment,” as those terms are defined in
W. Va. Code, 18-29-2 (1992),[7] includes jurisdiction to remedy
discrimination that also would violate the Human Rights Act.
Syl. pt. 1, Vest v. Board of Educ., 193 W. Va. 222, 455 S.E.2d 781 (1995) (internal footnote
added). Therefore, we now hold that a plaintiff may, as an alternative to filing a grievance
with the West Virginia Public Employees Grievance Board, initiate an action in circuit court
to enforce rights granted by the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et
seq.
6
While the Grievance Board has authority to provide remedies for causes of
action within its definitions, we note that the Grievance Procedure and the WVHRA have
different definitions for the term “discrimination.” Under the grievance process,
“discrimination” refers to “any differences in the treatment of similarly situated employees,
unless the differences are related to the actual job responsibilities of the employee or are
agreed to in writing by the employees.” W. Va. Code § 6C-2-2(d). However, pursuant to the
WVHRA, “‘discriminate’ or ‘discrimination’ means to exclude from, or fail or refuse to
extend to, a person equal opportunities because of race, religion, color, national origin,
ancestry, sex, age, blindness, disability or familial status and includes to separate or
segregate.” W. Va. Code § 5-11-3(h).
7
W. Va. Code §18-29-2 (1992) has been recodified and now is found at W. Va.
Code § 6C-2-2 (2008) (Repl. Vol. 2010).
13
To hold otherwise would create a disparity between remedies for WVHRA
violations available to public employees and employees in the private sector. The
Legislature, in enacting the WVHRA, sets forth that all West Virginia citizens shall have
equal employment opportunities:
It is the public policy of the state of West Virginia to
provide all of its citizens equal opportunity for employment,
equal access to places of public accommodations, and equal
opportunity in the sale, purchase, lease, rental and financing of
housing accommodations or real property. Equal opportunity in
the areas of employment and public accommodations is hereby
declared to be a human right or civil right of all persons without
regard to race, religion, color, national origin, ancestry, sex, age,
blindness or disability. Equal opportunity in housing
accommodations or real property is hereby declared to be a
human right or civil right of all persons without regard to race,
religion, color, national origin, ancestry, sex, blindness,
disability or familial status.
The denial of these rights to properly qualified persons by
reason of race, religion, color, national origin, ancestry, sex, age,
blindness, disability or familial status is contrary to the
principles of freedom and equality of opportunity and is
destructive to a free and democratic society.
W. Va. Code § 5-11-2 (1998) (Repl. Vol. 2011). We discern no reason why a public
employee should be treated differently than a private employee in cases of alleged
discrimination, et cetera, and be deprived of the opportunity to proceed directly to the Human
Rights Commission or the circuit court.8 Thus, we find that the circuit court erred when it
8
One argument set forth by the petitioners is that selecting any one specific
avenue for relief could result in an expiration of time within which to file a proper action in
(continued...)
14
dismissed Ms. Weimer’s action on the basis that she had failed to exhaust the administrative
remedies afforded to her under the Grievance Procedure. Furthermore, dismissal of Ms.
Hughes’s claim on the basis that she failed to exhaust her administrative remedies was also
in error.
Having determined that a claimant is not required to pursue his or her
administrative remedies under the Grievance Procedure prior to the commencement of an
action in circuit court that alleges a claim under the WVHRA, we now turn to discuss the
additional legal issue raised by the facts of Ms. Hughes’s case. Ms. Hughes initiated the
Grievance Procedure and several grievance hearings were held. Another grievance hearing
was scheduled; however, prior to the time for the scheduled grievance hearing, Ms. Hughes
filed the instant civil action in circuit court. The circuit court granted the motion to dismiss
on the basis that “Ms. Hughes has failed to exhaust her available remedies by pursuing an
action in Circuit Court while the grievance process she had previously commenced is still
pending.”
We have held that a previous grievance does not preclude a subsequent action
in circuit court. In that regard, we stated that “[a] civil action filed under the West Virginia
8
(...continued)
one of the other forums. Our resolution of this matter obviates any need to discuss perceived
issues regarding lapsing of time frames.
15
Human Rights Act, W. Va. Code, 5-11-1, et seq., is not precluded by a prior grievance
decided by the West Virginia Education and State Employees Grievance Board arising out
of the same facts and circumstances.” Syl. pt. 3, Vest, 193 W. Va. 222, 455 S.E.2d 781.
Because of the striking differences between the procedures before the Grievance Board and
the Human Rights Commission and/or a circuit court, the Vest Court determined that even
a resolution of a grievance by the Grievance Board does not preclude further adjudication of
the claims pursuant to the WVHRA. Specifically,
[f]or issue or claim preclusion to attach to quasi-judicial
determinations of administrative agencies, at least where there
is no statutory authority directing otherwise, the prior decision
must be rendered pursuant to the agency’s adjudicatory authority
and the procedures employed by the agency must be
substantially similar to those used in a court. In addition, the
identicality of the issues litigated is a key component to the
application of administrative res judicata or collateral estoppel.
Syl. pt. 2, Vest, id.
In reaching the result in Vest, we explained that
[t]he procedures employed by the Grievance Board are
not substantially similar to those employed by either a court of
law or the Human Rights Commission (Commission), and the
differences are of profound significance. Thus, even if a
grievance hearing examiner concludes that an employer’s
adverse action to a grievant was not “discriminatory,” but was
job related, that determination is not binding on a court or the
Commission deciding a claim under the Human Rights Act–
regardless of whether the grievant alleged or adduced evidence
of discriminatory motive or disparate impact at the grievance
hearing and regardless of whether the Grievance Board made a
16
determination about such issues.
As noted above, the Legislature designed the grievance
process to be simple and expeditious. Consequently, the process
is streamlined and lacks many of the adversarial accoutrements
found in judicial and Commission’s proceedings. In the vast
majority of grievances, for example, the grievant is not
represented by a lawyer. Moreover, and more importantly, the
grievance process does not provide for any of the discovery
mechanisms available under the Rules of Civil Procedure and
the Commission’s procedural rules. Finally, in stark contrast to
the Human Rights Act, the grievance statute does not provide
for the right to an independent investigation of each grievance
filed before the Board, does not make available at public
expense representation by a lawyer for cases that proceed to a
hearing before an administrative law judge, and does not give
employees the option of skipping the administrative process and
pursuing their claims de novo in circuit court where jury trials
and the full array of legal and equitable remedies are obtainable.
Vest, 193 W. Va. at 227, 455 S.E.2d at 786.
Factually, Ms. Vest, a substitute teacher at a public school, filed a grievance
with the Grievance Board based on her termination. At a grievance hearing, Ms. Vest
presented evidence in support of her discrimination claim. However, in her post-hearing
brief, she voluntarily relinquished her claim upon her belief that the Grievance Procedure
was not the proper forum to hear her discrimination claim. Ms. Vest’s grievance was denied
in a decision that contained no conclusions of law with regard to her discrimination claim.
Despite the fact that her grievance had culminated in a decision, albeit a decision that did not
17
address the discrimination claim, we found the Grievance Board’s determinations had no
preclusive effect over her human rights claims.
Vest stands for the proposition that a claimant can prosecute a case before the
Grievance Board to its conclusion, yet still retain the right to redress for the same issue
before the circuit court. The logic follows that, if a claimant commences an action before
the Grievance Board and then abandons or relinquishes the claims so that there is no final
decision from the Grievance Board, there is nothing to preclude a subsequent action in the
circuit court. Based on the foregoing and this Court’s previous allusions to the same, we now
specifically hold that a civil action commenced in circuit court under the West Virginia
Human Rights Act, W. Va. Code § 5-11-1 et seq., is not precluded by a grievance that was
filed with, but not decided by, the West Virginia Education and State Employees Grievance
Board, W. Va. Code § 6C-2-1 et seq., and arising out of the same facts and circumstances.9
9
We recognize that there may be some overlap of remedies between the
different statutory schemes. We emphasize, however, that there can be only one recovery for
each injury. An award under either process will be set off against any recovery from the
other forum.
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IV.
CONCLUSION
Based on the foregoing, the circuit courts’ dismissal orders are reversed and
remanded for further consideration.
Reversed and Remanded.
19