Mary Catherine Buchmelter Terry D. Reed
Deputy Attorney General Hymes & Coonts
Charleston, West Virginia Buchannan, West Virginia
Attorney for the Appellant, Michael D. Farber
WV Human Rights Commission Sutton, West Virginia
Attorneys for the Appellees
Betty Jean Hall
J. Davitt McAteer
Shepherdstown, West Virginia
Christine M. Hedges
Hedges, Jones, Whitter & Hedges
Spencer, West Virginia
Attorneys for the Appellant,
This Opinion was delivered PER CURIAM.
"Where before the time has expired for the performance of a contract, there has been such a substantial compliance therewith by a party thereto, that gross injustice would be done him by denying him relief, equity will grant him relief as from a forfeiture." Syllabus point 6, Eastern Oil Company v. Coulehan, 65 W.Va. 531, 64 S.E. 836 (1909)
This is an appeal by the West Virginia Human Rights
Commission and Barbara Burns from a judgment of the Circuit Court
of Webster County in a proceeding to enforce a conciliation
agreement in a sex discrimination case. On appeal, the appellants
claim that the circuit court erred in refusing to enforce the
conciliation agreement and by making certain rulings relating to
the merits of the appellant Burns' human rights claims. After
reviewing the record and the questions presented, this Court agrees
that the circuit court erred in failing to enforce the conciliation
agreement and reverses the decision of the circuit court on that
In April, 1984, Smoot Coal Company, Inc., hired the
appellant, Barbara Burns, as a lab technician. The next year, in
the Fall of 1985, she was promoted to the position of safety
director. In the following year, she was promoted to the position
of superintendent. While she was superintendent, Mr. Burns
experienced a number of problems, including personal health
problems and problems arising from her husband's developing kidney
disease. In the Spring of 1986, she requested leave to deal with
her problems. When the president of her employer, Paul Fazenbaker,
refused to allow her several weeks off, she resigned as
superintendent and resumed the position of Smoot Coal Company's
Shortly after she resumed the position of safety director, on May 23, 1986, Ms. Burns went on sick leave. While she was on sick leave, she underwent nasal surgery, and her husband underwent a kidney transplant. After she went on sick leave, the president of Smoot Coal Company started pressing her as to her intended date of return to work. Shortly thereafter, on or about July 15, 1986, Ms. Burns filed a complaint with the West Virginia Human Rights Commission in which she claimed that Smoot Coal Company, Inc., and its President, Paul F. Fazenbaker, had discriminated against her on the basis of sex by denying her equal pay. She also claimed that she had been sexually harassed by Mr. Fazenbaker.
Following the institution of the sex discrimination and
harassment proceeding, Smoot Coal Company terminated Ms. Burns'
employment and advised her that her health insurance was being
Following the termination of her employment, Ms. Burns
filed a second Human Rights complaint, in which she alleged that
Smoot Coal Company and Mr. Fazenbaker had wrongfully retaliated
against her and committed direct acts of reprisal against her for
filing her initial sex discrimination and harassment complaint.
After the filing of the retaliation complaint, Smoot Coal Company and Paul Fazenbaker entered into conciliation negotiations
with Ms. Burns and the Human Rights Commission. The negotiations
culminated in a predetermination conciliation agreement which was
concluded on August 29, 1986. The conciliation agreement covered
Ms. Burns' retaliatory-firing complaint only and did not cover her
original sex discrimination and harassment complaint.See footnote 1
While the negotiations relating to the retaliatory-firing
complaint were being conducted, the Human Rights Commission
proceeded to investigate the initial sex discrimination and
By early January, 1987, problems arose over the
implementation of the conciliation agreement. As required by the
agreement, the Human Rights Commission contacted the Mine Safety
and Health Administration about the designation of a representative
to test Ms. Burns' competency in reading mine maps and calibrating
and setting methane detectors and dust pumps. The Mine Safety and
Health Administration advised the Human Rights Commission that it
would not designate such a representative. Then, since it was
impossible to perform in accordance with the letter of the
agreement, Ms. Burns, in an effort to show her competency in the
required areas, submitted old certificates from federal government
agencies showing that she had completed courses in methane detector
calibration and dust certification. She also submitted a sworn
certificate from S. O. Black, the superintendent of a mine owned by
Beth Energy, concluding that she was fully qualified to read a mine
map and to travel underground. Smoot Coal Company refused to
accept the documentation submitted by Ms. Burns and to restore her
to employment. Consequently, on January 9, 1987, Ms. Burns and the
West Virginia Human Rights Commission filed the present action in
the Circuit Court of Webster County to compel Smoot Coal Company to
comply with the conciliation agreement and to restore Ms. Burns to
In conjunction with her complaint, Ms. Burns filed a letter from Dr. Moosa Kasmet, dated January 6, 1987, indicating that she was mentally and physically able to return to work on
January 7, 1987. She also submitted the documentation previously
mentioned indicating that she had successfully completed a course
in dust certification at the National Mine Health and Safety
Academy, a certificate from the United States Department of Labor
dated December 18, 1986, indicating that she had completed the
approved course in methane detector calibration, and a sworn
statement dated December 12, 1986, from S. O. Black, Superintendent
of BethEnergy Mine 81, indicating that she was fully qualified to
read a mine map properly and to travel underground.
In response to the complaint, Smoot Coal Company filed an answer and a counterclaim. Count 1 of the counterclaim alleged that prior to and during the negotiations leading up to the time of the August 29, 1986, conciliation agreement, Ms. Burns had intentionally, willfully, deliberately, and fraudulently misrepresented the true state of her health, and that in reliance upon her statements, Smoot Coal Company had entered into the conciliation agreement. It, therefore, prayed that the court rule that it had the right to rescind the agreement. In Count 2 of the counterclaim, Smoot Coal Company alleged that Ms. Burns had breached the contract in that she had failed to establish satisfactorily the conditions precedent for Smoot to reinstate her. In Count 3, Smoot Coal Company claimed that Ms. Burns and the Human Rights Commission had entered into a civil conspiracy to deprive Smoot of its legal rights. In Count 4, Smoot Coal Company prayed that the court declare that by failing to provide Smoot with
evidence relevant to her medical condition, Ms. Burns had provided
Smoot with ample cause to terminate her employment.
Subsequently, the court took extensive evidence on the
issues presented, and, after approximately two years of hearings
and submissions of briefs and memoranda of law, the court, on
September 6, 1990, issued an opinion that contained findings of
fact and conclusions of law. In that opinion, the court stated
that Ms. Burns failed to provide timely medical information
regarding her medical condition. The court also concluded that Ms.
Burns had breached the job-proficiency testing requirements of the
August 29, 1986, conciliation agreement. The court stated that Ms.
Burns was unqualified to be Smoot's health and safety director, and
finally concluded that Ms. Burns' allegations of sexual harassment
were false. The court then, after discussing the law, concluded
that Smoot was entitled to judgment on its counterclaim.
To carry out the conclusions reached in the opinion, the circuit court, on September 25, 1990, entered the order from which the appellants now appeal. The court, in effect, denied the appellants' prayer that the conciliation agreement be legally enforced. The court also granted Smoot Coal Company judgment on Counts 1, 2, and 3 of its counterclaim and declared that Smoot was entitled to rescind the conciliation agreement and that, because of
Ms. Burns' actions subsequent to the agreement, Smoot Coal Company
was entitled to terminate her employment.See footnote 2
The principal assignment of error by the appellants in the present proceeding is that the trial court erred in ruling that the appellant, Barbara Burns, had not fulfilled all her obligations under the conciliation agreement.
The fact that the appellant, Barbara Burns, had not
fulfilled her obligations under the conciliation agreement was a
principal reason for denying the appellant's specific performance
of the conciliation agreement.
A careful examination of the conciliation agreement shows
that conditions precedent to Smoot Coal Company's reinstating Ms.
Burns, were: (1) that Ms. Burns obtain a doctor's statement
relating her unconditionally to return to work; (2) that Ms. Burns
demonstrate her ability to read a mine map and travel underground
to the satisfaction of a duly authorized representative of the Mine
Safety and Health Administration; (3) that Ms. Burns demonstrate
her ability to calibrate a methane detector to the satisfaction of
a duly authorized representative of the Mine Safety and Health
Administration; and (4) that she demonstrate her ability to
calibrate and set a dust pump to the satisfaction of a duly
authorized representative of the Mine Safety and Health
As previously indicated, it became impossible for Ms.
Burns to comply with the letter of the conciliation agreement
because the Mine Safety and Health Administration refused to
designate a representative to test Ms. Burns. However, in an
attempt to comply with the conditions precedent in the agreement,
Ms. Burns submitted the following documentation: (1) a letter from
Dr. Moosa Kasmet dated January 6, 1987, indicating that she was
mentally and physically competent to return to work on January 7,
1987; (2) a sworn statement from S. O. Black, Superintendent of
BethEnergy Mine 81, indicating that she was fully qualified to read
a mine map and travel underground; (3) certification from the Mine
Safety and Health Administration indicating that she had completed
the approved course in methane detector calibration; and (4) a
certificate from the National Mine Health and Safety Academy
indicating that she had successfully completed the course in "Dust
It has been recognized in a number of jurisdictions that
perfect performance is not required with every contract, but that
recovery may be had on a contract which has been substantially
performed and that only a material failure of performance by one
party discharges the other. This rule essentially was drawn into
West Virginia's law in the case of Eastern Oil Company v. Coulehan,
65 W.Va. 531, 64 S.E. 836 (1909). In that case, the Court
indicated, in syllabus point 6, that:
Where before the time has expired for the performance of a contract, there has been such
a substantial compliance therewith by a party
thereto, that gross injustice would be done
him by denying him relief, equity will grant
him relief as from a forfeiture.
In examining the facts in the case presently before the
Court, the material questions presented by the conditions precedent
imposed in the conciliation contract on Ms. Burns were whether Ms.
Burns was, first, physically capable of working and performing the
job to which she wished to be returned and, secondly, whether she
had the technical competence to read a mine map, manage a methane
detector, and manage a dust pump, as was and would be required in
her job as safety director for Smoot Coal Company, Inc. The
imposition of the requirement that she be medically certified to
return to work and that she be able to perform the requisite
activities to the satisfaction of a representative appointed by the
Mine Safety and Health Administration were strictures obviously
placed in the contract to insure that Ms. Burns' medical condition
was properly judged and that her technical competency was
appropriately assessed.See footnote 3
As previously indicated, the refusal of the Mine Safety and Health Administration to appoint a representative to assess Ms. Burns' competency in the designated areas rendered it impossible for Ms. Burns to comply strictly with the conditions imposed upon her by the conciliation agreement.
It appears that in an effort to comply substantially with the conditions imposed upon her, Ms. Burns attempted to produce certification as close to that required by the contract as possible. She produced a certificate from the United States Department of Labor Mine Safety and Health Administration indicating that she had completed an approved course in methane detector calibration, and she further produced a certificate from the National Mine Health and Safety Academy showing that she had successfully completed a course in dust certification. To show that she was fully qualified to read a mine map and to travel underground, she produced a sworn statement from the superintendent of a mine, an individual who normally is highly skilled in the reading of mine maps and in travelling underground, indicating that she was fully qualified to read a mine map properly and to travel underground.
In this Court's view, Ms. Burns made a significant effort to substantially comply with the performance requirements imposed upon her by the conciliation agreement and produced substantial evidence that she was medically capable of returning to work and technically qualified to carry out the jobs which she would be required to do in the position to which she sought reinstatement. To hold that she would be entitled to no relief because she failed to comply perfectly with the letter of the agreement, in view of her attempt at substantial compliance and in view of the fact that perfect performance was frustrated by Ms. Burns' impossibility of
securing designation of an employee of the Mine Safety and Health
Administration to test her, in this Court's view would result in
gross injustice and, in effect, would result in a forfeiture of Ms.
In view of these circumstances, this Court believes that,
in view of the rule set forth in syllabus point 6 of Eastern Oil
Company v. Coulehan, Id., the trial court erred in granting Smoot
Coal Company, Inc., judgment on its counterclaim in this matter and
in refusing to grant the appellants, the West Virginia Human Rights
Commission and Barbara Burns, an order compelling Smoot Coal
Company to reinstate her in her employment as specified in the
conciliation agreement.See footnote 4
For the reasons stated, the judgment of the Circuit Court of Webster County is reversed and this case is remanded with directions that the court enter an order granting the appellants
relief on the conciliation agreement which is at the heart of this
matter.See footnote 5
Footnote: 1The agreement provided that in exchange for Barbara Burns agreeing not to institute a lawsuit under Title VII of the Human Rights Act of 1964 based on her retaliatory complaint and the West Virginia Human Rights Commission agreeing not to process the complaint further, Smoot Coal Company and Paul F. Fazenbaker, its President, agreed:
1. To rescind the notice terminating Ms. Burns'
employment and to rescind the termination of her health
2. To return her, at the same rate of pay, to the job
she was holding when she took her leave of absence when her
doctor released her unconditionally to return to work.
It was also agreed that Ms. Burns would demonstrate to
the satisfaction of a duly authorized representative of the Mine
Safety and Health Administration her ability to read a mine map
and travel underground, her ability to calibrate a methane
detector, and her ability to calibrate and set a dust pump.
The agreement further indicated that "the investigation of the original allegations of sexual harassment is continuing," and it stipulated that the Human Rights Commission would contact the Mine Safety and Health Administration and request that they designate a representative to test Ms. Burns as required by the agreement.
Footnote: 2The circuit court's order specifically provided that:
(1) Judgement is entered in favor of
the defendants and against plaintiffs on
(2) The Preliminary Injunction entered
herein on March 4, 1986 pursuant to said
Complaint is hereby dissolved, effective as
of June 30, 1988, and defendant Smoot Coal
Company, Inc.'s ("Smoot") Motion to Modify
the Order of the Circuit Court of Webster
County, West Virginia Entered on March 4,
1986, to provide for such dissolution, is
hereby granted [The said preliminary
injunction order, which was actually entered
on March 4, 1987, rather than March 4, 1986,
as indicated by the court, was entered by the
court with the consent of the parties. It
directed Smoot Coal Company to restore Ms.
Burns to the benefits which she received on
May 23, 1986, pending resolution of the
(3) Plaintiff's Petition to Hold
Defendant Smoot in Contempt of Court for
claimed violation of March 4, 1986
Preliminary Injunction is hereby denied.
AND IT IS FURTHER ORDERED and ADJUDGED that,
(1) Judgment is entered in favor of
counter-plaintiff Smoot and against counter-defendant Barbara Burns ("Burns") on Counts
1, 2, and 4 of Smoot's Counterclaim.
(2) Judgment is entered in favor of
counter-defendant Burns and against counter-plaintiff Smoot on Count 3 of Smoot's
(3) Judgment is entered in favor of
counter-defendant West Virginia Human Rights
Commission ("HCR") and against counter-plaintiff Smoot on Counts 3 and 4 of Smoot's
(4) The Court has determined and hereby declares, in accordance with Count 1 of Smoot's Counterclaim, that Smoot is entitled to rescind the August 29, 1986 contract sued upon in plaintiff's Complaint and to terminate the employment relationship between itself and Burns;
(5) The Court has determined and hereby
declares, in accordance with Count 2 of
Smoot's Counterclaim, that by virtue of the
various material breaches of her contractual
obligations under the August 29, 1986
contract sued upon in plaintiff's Complaint,
Smoot is and has been, at all times
subsequent to the commission of such
breaches, entitled to rescind said contract
and to terminate the employment relationship
between itself and Burns;
(6) The Court has determined and hereby
declares, in accordance with Count 4 of
Smoot's Counterclaim, that by virtue of
demands respecting production of medical
documentation, submission to medical
examinations and submission to job competency
testing, Smoot is and has been, at all times
subsequent to Burns' aforesaid failure and
refusal, entitled to terminate the employment
relationship between itself and Burns, and
Barbara Burns, and all persons acting in
concert and privity therewith, are hereby
permanently restrained and enjoined from
engaging in any conduct, excepting
participation in legal proceedings, having
the purpose of effect of obstructing or
otherwise interfering with Smoot's
termination of its employment relationship
(7) The Court further declares that
Burns shall not be liable to Smoot for any
remuneration paid to Burns pursuant to the
order of this Court entered on March 4, 1986.
AND IT IS FURTHER ORDERED and ADJUDGED that the parties to this action shall each
bear their own costs and expenses, including counsel fees.
Footnote: 3The appellees, Smoot Coal Company, Inc., and Paul F. Fazenbaker, on appeal, claim that Ms. Burns had mental problems, which she concealed, in addition to her physical problems. They argue that the concealment of those problems constituted fraud which should support the trial court's recision of and refusal to enforce the conciliation agreement.
In syllabus point 1 of Home Gas Co. v. Mannington Co-operative Window Glass Co., 63 W.Va. 266, 61 S.E. 329 (1907),
this Court said:
To justify recision of a contract for fraudulent representation in procurement
thereof, such representation must be a
positive statement of a material existing
fact, present or past, made for the purpose
of procuring the contract, and actually
relied on by the other party, who must be
For thereto be fraud of such a substantial character in
the present case to support denial of relief to the appellants,
this Court believes that Ms. Burns must have made a substantial
misrepresentation of fact concerning her medical condition, and
those misrepresentations must have been of such a material nature
as to have induced the appellee to have entered into the
Rather clearly, the appellees were under threat of
sanctions for retaliatory firing and a federal human rights
action at the time they entered into the conciliation agreement.
Certainly, a principal material consideration for their entering
into agreement was to avoid such sanctions and action. Although
the health of Ms. Burns was a justifiable concern in determining
whether or when she should be restored to employment, the clear
focus of the agreement was on her medical condition at the future
time when she would seek to return. The agreement indicated that
she would have to be released unconditionally to return to work
before she could be restored to employment.
In this Court's view, the overall circumstances of this
case indicate that the condition of Ms. Burns' health prior to
entering into the agreement was not such a significant or
material factor in the agreement as was her condition at the time
when she would be seeking to return to employment.
Overall, the Court does not believe that the record shows such fraud as would, in the contemplation of the law, support recision of the agreement. The Court also believes that Ms. Burns presented satisfactory medical evidence showing that she had been unconditionally released to return to work when she sought to return under the terms of the agreement.
Footnote: 4The Court notes that the appellants claim, and expend great energy, in arguing that the circuit court erred in restraining the appellant Human Rights Commission from proceeding with the sex discrimination and harassment case of appellant Barbara Burns. In like vein, they argue that the circuit court exceeded its jurisdiction when it ruled that Barbara Burns had not been sexually harassed.
After carefully examining the circuit court's final
order dated September 25, 1990, the mandate of which is set out
in its totality in note 2 of this opinion, this Court cannot see,
in that order, from which the present appeal is being taken, that
the circuit court has restrained the appellant Human Rights
Commission from proceeding with the sex discrimination/sexual
harassment case of Barbara Burns.
From the briefs in this case, as well as from some passing references in the record, it appears that Smoot Coal Company, Inc., and Paul Fazenbaker filed a wholly separate proceeding in the Circuit Court of Webster County to restrain further proceedings on the sexual harassment complaint filed by appellant Barbara Burns, as well as on a complaint filed by another employee, Mandy Morris, until the present proceeding was concluded. Apparently, the temporary injunction sought was
issued. So far as this Court can determine after perusing the
thousands of pages of record in this case, that separate
proceeding, although related to the present one, was never
consolidated with the present one and really is not before this
Court in the present appeal. Given this circumstance, this Court
cannot see how the circuit court, in the present proceeding,
erred in failing to dissolve the temporary injunction issued in
the other wholly separate proceeding. It is true that in its
opinion the trial court found that Smoot Coal Company, Inc., and
Paul Fazenbaker had not sexually harassed Ms. Burns, but that
finding was incorporated in the court's opinion, and not its
mandate. Given the nature of the mandate, this Court believes
that the language in the opinion relating to harassment was mere
surplusage, and in line with this Court's holding in Moran v.
Clark, 30 W.Va. 358, 4 S.E. 303 (1887), this Court does not
believe its insertion in the opinion constitutes a ground for
Rather clearly, the conciliation agreement in the
present case left the initial sexual harassment complaint filed
by Barbara Burns open, and the pleadings in the present case had
nothing to do with that complaint. Under the rule in Kell v.
Crumby, 124 W.Va. 357, 20 S.E.2d 461 (1942), that the award of
relief different from that sought in the complaint constitutes
reversible error, this Court believes that it would have been
improper for the circuit court to have concluded the appellants'
rights relative to the discrimination complaint in the present
proceeding, but as previously indicated, this Court cannot see
how, in the present proceeding the circuit court concluded the
appellants' rights on the discrimination complaint.
If the appellants wish to dissolve the temporary injunction in the wholly separate proceeding instituted by Smoot Coal Company, Inc., and Paul Fazenbaker, they should file the appropriate motion in the proceeding in which that injunction was issued. If they wish to appeal the court's action, they should do so in conjunction with the record of that proceeding.
Footnote: 5After presenting their appeal, the appellants submitted a supplemental reply brief in which they alleged that certain of the officers of Smoot Coal Company and related corporations had been attempting, since the filing of the appeal, to perpetrate a fraud on the court and defeat their possibility of collection by draining assets from Smoot Coal Company. They make many factual allegations which are not in the present record. In this Court's opinion, it would be inappropriate to consider those factual allegations in the present proceeding.