CHARLESTON TOWN CENTER COMPANY, LP,
THE WEST VIRGINIA HUMAN RIGHTS COMMISSION AND AUGUSTA
ROBINSON, ON BEHALF OF KEVIN STREETS, A MINOR,
Appeal from West Virginia Human Rights Commission
Submitted: September 22, 2009
Filed: November 17, 2009
| L. Kevin Levine, Esq.
Constance H. Weber, Esq.
Anne L. Haight, Esq.
Kay, Casto & Chaney
Charleston, West Virginia
Attorneys for Appellant
| Darrell V. McGraw, Jr., Esq.
Paul R. Sheridan, Esq.
Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellees
Terri S. Baur, Esq.
Charleston, West Virginia
Attorney for Amicus Curiae
Walt Auvil, Esq.
Rusen & Auvil
Parkersburg, West Virginia
Attorney for Amicus Curiae
WV Employment Lawyers' Association
Sarah Crawford, Esq.
Elliot G. Hicks, Esq.
Spilman Thomas & Battle
Charleston, West Virginia
Jerry Jackson, Esq.
Noel Symons, Esq.
Attorneys for Amici Curiae
Lawyers Committee for Civil
Rights Under Law,
Mountain State Bar Association, and
WV State Conference of the NAACP
The Opinion of the Court was delivered PER CURIAM.
2. The complainant may still prevail if it can be shown that the reason given by the respondent is merely a pretext for a discriminatory motive. Syllabus Point 3, K-Mart Corp. v. Human Rights Com'n, 181 W. Va. 473, 383 S.E.2d 277 (1989).
This case involves two consolidated appeals by the Charleston Town Center Company, LP of the West Virginia Human Rights Commission's November 26, 2008, final orders which adopted the Administrative Law Judge's final decisions dated May 23, 2008. In its orders, the Human Rights Commission found that Charleston Town Center, LP discriminated against the appellees based on their race. Upon review of the record before the Human Rights Commission and the briefs and arguments of counsel, we reverse the Human Rights Commission's final orders for the reasons provided below. (See footnote 1)
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), 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 Com'n, 217 W. Va. 761, 619 S.E.2d 274 (2005). With regard to the standard of review applied by a circuit court to Human Rights Commission orders, we have indicated that West Virginia Human Rights Commission's findings of fact should be sustained by reviewing courts if they are supported by substantial evidence or are unchallenged by the parties. Syllabus Point 1, Human Rights v. Transp. Union # 655, 167 W. Va. 282, 280 S.E.2d 653 (1981). Finally, we have held:
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
Syllabus Point 2, Shepherdstown V.F.D. v. W. Va. Human Rights, 172 W. Va. 627, 309 S.E.2d 342 (1983). With these standards to guide us, we now consider the issues in this case.
* Juvenile groups of four (4) or more will be dispersed. Customers must keep
moving in an orderly fashion through the premises and not block walkways
or store entrances.
* Seating benches are to be used for shopping breaks not to exceed 15 minutes.
* Food Court seating is for paying customers of the Food Court.
* Loud and boisterous behavior will not be permitted.
* Obscene or offensive language will not be permitted.
* Spitting, sitting in the planters, leaning on railings or throwing objects over them will not be permitted.
* Running, inappropriate behavior, vandalism or any unacceptable conduct on the premises will be grounds for ejection.
* When conditions contribute to an overflow of juveniles, management reserves the right to disperse or eject individuals or groups.
* Proper clothing is required at all times, which includes shoes, shirts and no gang attire or colors.
* Individuals of school age are expected to be in attendance at school during the hours their schools are in session or otherwise in transit to or from home.
As a second basis for its finding of pretext, the ALJ placed great weight on Lt.
Hager's testimony that generally he will explain to people how they are violating the code
of conduct and suggest how they may comply with the code to alleviate the problem. (See footnote 11) However, Lt. Hager testified that he did not explain to the appellees at the food court that if
they quieted down or purchased food they could stay. This Court's review of the record
indicates, however, that Lt. Hager explained that he did not utilize this practice with the
group at the food court because some members of the group immediately became belligerent.
Further, Mall security guards are afforded considerable discretion in their application of the
Mall's code of conduct depending on several factors in any given circumstance such as the
size of the group of juveniles, the group's conduct, the group's attitude and demeanor, and
the condition of the mall, i.e., how crowded the Mall is. It is undisputed that the appellees
were in a group of seven or eight individuals, at least several of whom were not paying
customers of the food court. It is also undisputed that the group refused to leave the food
court when instructed to do so by Lt. Hager. Therefore, under these facts, we find that the
alleged inconsistency in Lt. Hager's treatment of the appellees creates no inference that he
acted in a racially discriminatory manner.
As a third basis for his decision, the ALJ indicates that
There is no rule which prohibits window shopping, yet Complainants were
approached and told they had to keep moving. The same thing occurred when
Complainants were escorted out of the Mall. They were asking why are we
being asked to leave now, when everyone else is being left alone to leave on
their own? No explanation; again a call for the Charleston Police Department
to remove them from the premises while other members of the public were not.
The ALJ's analysis is problematic for several reasons. First, while there is no rule that prohibits window shopping, the code of conduct provides that Customers must keep moving in an orderly fashion through the premises and not block walkways or store entrances. While the appellees testified in cursory fashion that they were not blocking traffic, the fact remains that Mall security has the discretion to enforce the code of conduct in accord with Mall conditions. Absent additional details about this alleged occurrence, it cannot be inferred that the unidentified security guard had an unlawful motive for his conduct.
The ALJ explains the final basis for its decision as follows:
Finally, there is the incident outside of Chili's restaurant, which resulted
in the arrest of Complainants for trespass. Lt. Hager associated Complainants
with the group that was causing trouble that night outside the Mall entrance
simply because they were African-American teenagers. Should Complainants
have been white, Lt. Hager would not have instructed Charleston City Police
to remove them from the sidewalk just because they were outside Chili's restaurant. Only because Complainants had questioned the treatment they were receiving from Mall security and him specifically earlier in the evening, Lt. Hager pointed them out to Charleston City Police and directed that they be told to go somewhere which placed them in danger, when they were entitled to stay right where they were. That insistence resulted in their arrest, which Respondent now claims is the result of Complainant's own behavior, completely disowning their responsibility in the events. (See footnote 12) (Footnote added).
For the following reasons, we find the ALJ's conclusion that the incorrect identification of the appellees with the larger group of African-American teenagers proves racial animus to be speculative.
It is undisputed that there was a large group of African-American males, perhaps 15 to 20, confronting Mall security guards somewhere between the Mall entrance on Court Street and Chili's restaurant during the time the appellees exited Chili's and proceeded to stand at a rail along the front of the restaurant. At some point, the larger group migrated in the direction of the appellees so that the appellees were among the larger group. Mr. Streets testified to this facts as follows:
A. We just started walking out, and we saw other teenagers, African-
American, standing right under that Town Center Mall [sign] and they was
[sic] just running around, playing around, and then you could see as they
started having a confrontation with the security guards. And we just stood
there waiting for [Mr. Bumpus's] mom. And we just set [sic] there and pretty
much watched what was going on. And then as they started confronting, it
seemed like more, it seemed like some of them eased their way over here and
then we became part of their group and the security guard said everybody
needs to leave, even though we just stood there and we weren't part of it at all.
And we just _ and then the same thing, we just watched as it kept going on.
Q. Okay. And then what happened?
A. Then they kept getting in it. Threats were being made to each other and _
Q. When you say threats being made to each other?
A. From the other teenagers and the security guards. And they, then they said the police are coming now, so we'll see how you all act when they come. Then that's when we hear the sirens and stuff going off and they all just run.
Q. Who ran?
A. All those teenagers of African-American blood, all of us except for me, [Mr. Bumpus], Larry, and Lamar had already gone. So they all left and it was just me, Steven, and Larry.
Under these facts, it does not follow that the security guards' identification of the appellees with the larger group of individuals proves racial animus. Rather, according to the evidence, the action taken against the appellees by the security guards was based on the guard's belief that the appellees had violated the code of conduct by being among a large group that was being disruptive. The fact that the security guards believed this in part because the appellees were of the same race as the members of the larger group is not evidence of racial animus against the appellees.
These facts are similar to those in K-Mart v. Human Rights Com'n, supra, wherein a family of Syrian descent who were watched by employees and a police officer because they fit the profile of a band of gypsy shoplifters filed a claim under the Human Rights Act alleging discrimination based on national origin. As discussed above, this Court found that the complainants in K-Mart failed to show a prima facie case of unlawful discrimination because they were not actually denied, refused, or withheld any services or amenities as required by the Human Rights Act. Significantly, this Court went on to find that
Even assuming, however, that the complainant had made a prima facie case of discrimination, we believe that the appellee demonstrated a legitimate, nondiscriminatory reason for its actions. K-Mart points to its previous experience with shoplifting bands, the warning call it received in the week prior to the incident, and its obligation to protect both its customers from danger and its inventory from shrinkage.
181 W. Va. at 478, 383 S.E.2d at 282. This Court then concluded that the chance fact the family group fit the profile of the shoplifting band precipitated the police summons [to watch the complainants], not discrimination. Id. Similarly, in the instant case, the fact that the appellees were of the same race of and were actually among the group of offenders caused the security guards to identify the appellees as being a part of the group. The fact that the individuals in the larger group were disbanded due to their number and their conduct constitutes a legitimate, nondiscriminatory reason for the security guards' actions. Further, the fact that the security guards presumed that the appellees were members of the group due to their race and the fact that they were among the group is not unreasonable under the circumstances and does not raise an inference of racial animus. Therefore, for the reasons stated above, we conclude that the evidence relied upon by the ALJ in his decision is insufficient to prove by a preponderance of the evidence that the appellees were discriminated against based on their race. (See footnote 13)
Our conclusion with regard to the evidence relied on by the ALJ is supported by other evidence of record. The appellees cannot seriously dispute that they were in violation of the code of conduct on the date of the incidents in question. Specifically, the evidence shows that the appellees were among a group of seven or eight youths in the food court, several, if not all, of whom were not paying customers of the food court. When the appellees were asked to leave the Mall around closing time, they were in a group of at least four. Finally, it is undisputed that the appellees were identified as being among a large group of individuals outside of Chili's who were disruptive and argumentative with security guards. This Court has recognized that [d]iscipline imposed upon a minority  does not alone equate to racial discrimination unless there is a preponderance of evidence that the discipline was imposed in a discriminatory manner or for a discriminatory purpose. Cobb, 217 W. Va. at 776, 619 S.E.2d at 289. Further, Mr. Bumpus testified that he had been to the Town Center hundreds if not thousands of times before the events at issue, apparently without an occurrence similar to the ones in this case. This Court previously has indicated that such evidence significantly weakens a claim of unlawful denial of access to public accommodations. See K-Mart, 181 W. Va. at 478, 383 S.E.2d at 282 (finding that the [complainants'] allegations that their garb and skin tone precipitated the police summons were weakened by their admission that they shopped at that K-Mart without incident for an extended period prior to [the date of the alleged discrimination]). Finally, Charleston Police Officer Keith Peoples who, in addition to being a police officer, had provided security at the Town Center for almost 16 years, stated that he had never been aware of security guards referring to African-American youth in derogatory terms and never witnessed African- American youth being harassed or mistreated by Mall security.
In addition, we find that the ALJ's weighing of the evidence below is arbitrary. First, the ALJ ignores the cursory and nonspecific testimony of the appellees as it relates to the occurrences which form the bases of the appellees' claims. Second, the ALJ disregards material discrepancies in the appellees' testimony. For example, Mr. Bumpus provided general testimony with regard to the incident at the food court that his friends were eating food from the Subway restaurant, he had purchased a cookie from Subway, and Mr. Streets also had purchased food. Mr. Streets testified, in contrast, that an individual named Keith Harris and two others had purchased food, but that Mr. Streets had not purchased any food. He also did not indicate that Mr. Bumpus had purchased food. In addition, with regard to the appellees' eviction from the Mall, Mr. Bumpus testified in very cursory fashion that several police officers escorted them from the Mall, and he does not indicate that a Mall security guard was involved in the eviction. Specifically, he states that we were going around on the first floor, and I guess they had radioed police or whatever and they came up to us and told us that they were escorting us out of the mall without any explanation. Mr. Streets appears to testify, however, that the appellees were informed, apparently by security guards, that the Mall was closing down and they needed to leave. Also, Mr. Streets testimony concerning whether the Mall was closing when they were asked to leave is ambiguous. Specifically, Mr. Streets testified as follows:
Q. Okay. And you say things were closing down?
Q. Okay. So the stores inside the mall were closing?
A. Well, at the time, you didn't see, because from where I've been there now, you see gates closing, you didn't see it real thinned out. You still seen everything open, but I guess from the time they just, I guess from the time it was being, they told us we needed to leave, even though I still didn't _ I still seen other people there. So it became like an argument, why did we specifically need to leave, and that was like a concern and kind of just, we just want to know why. And it never got answered, we just got escorted out.
These discrepancies in testimony are material to the issues of the appellees' conduct at the time action was taken against them by the security guards as well as the legitimacy of the action taken against the appellees
Another indication of the ALJ's arbitrariness is the fact that the ALJ credits in every single instance the uncorroborated testimony of the appellees as it relates to the conduct of Mall security guards and police officers. Examples include the ALJ's statement that Lt. Hager allowed the police to bully one of the individuals who was with the appellees' group at the food court; the ALJ's indication that one of the police officers involved in the appellees' arrest was clearly out of control, acting in an irresponsible fashion; the ALJ's contention that [t]he plain clothes officer was hostile and belligerent toward the [appellees]; and the ALJ's opinion that the [Town Center] really objects to Complainants 'running the Mall[,] which in reality means nothing more that 'hanging out at the Mall' which is apparently alright as long as you're an off duty white Mall security officer. The ALJ's fact-finding in this regard is especially noteworthy in light of the undisputed fact that the appellees and/ or their friends were argumentative and recalcitrant toward Mall security on two occasions, and that the appellees' demeanor toward city police officers resulted in the their arrests.
Finally, it is significant that the ALJ, without exception, excuses or finds irrelevant evidence of misconduct on the part of the appellees. For example, while acknowledging Mr. Streets' admission that he had words with a police officer outside of Chili's restaurant, the ALJ credits Mr. Streets' explanation that his outburst was caused by the fact that he was astounded by the way [the appellees] were being treated, and it made him angry. Elsewhere, the ALJ characterizes Lt. Hager's testimony that the appellees' group mouthed him as actually amounting to nothing more than the appellees protesting and questioning how they were being treated. Finally, the ALJ sarcastically comments that when told to leave the Mall, the appellees had the unmitigated gall to mouth Lt. Hager, by asking why this was being done.
Based on the above, we find that the ALJ's decision is clearly wrong in view of the reliable, probative, and substantial evidence on the whole record. Further, we find the ALJ's fact finding to be arbitrary. Finally, this Court finds that the ALJ's decision is tainted by a hostility and sarcasm toward the Town Center and its agents that casts doubt on the ALJ's fairness in deciding the instant case.
Prior to concluding, we deem it necessary to briefly address the arguments proffered by the appellees in support of the ALJ's decision. First, the appellees cite from the record alleged evidence of inconsistencies pertaining to Lt. Hager's version of the incident at the food court. Specifically, the appellees cite an answer to an interrogatory produced by the Town Center in which it is asserted that Lt. Hager approached the appellees' group in response to a food vendor's complaint that the group was being disruptive which, say the appellees, is inconsistent with Lt. Hager's testimony that he approached the group after he witnessed them being disruptive. (See footnote 14) We note, however, that Lt. Hager explained that after the youths left the food court, one of the vendors indicated to Lt. Hager that he had planned to complain to security about the group's conduct. The appellees also refer to a supplemental report completed by Lt. Hager five months after the incidents at issue wherein he recorded about the food court incident that a large group of black males . . . were playing around and yelling. Our review of this report also indicates, however, that Lt. Hager wrote in that same sentence that I asked them to leave food court if they were not eating. (Emphasis added.). Far from being contradictory, the reports and testimony cited by the appellees are consistent with the fact that a group of seven or eight individuals, including the appellees, were initially approached by Lt. Hager for being loud and were subsequently instructed to exit the food court because they were not paying customers. There simply is no basis on which to infer racial animus from this evidence.
In addition, the appellees assert in their brief that
There is also a complete lack of corroboration for Lt. Hager's version of events, notwithstanding that security guard David Gandee was there at the food court, at least for the end of the incident and Charleston Police Department Officers Midkiff and Ross were integrally involved in the eviction. The Charleston Town Center Mall chose not to call Gandee and Ross to testify. And Midkiff, who was called as a witness by the Commission, could not corroborate Hager's version of events. (See footnote 15) There was no testimonial or written evidence of a disturbance provided from the manager of Best of Crete, who allegedly complained about a disturbance. (Citations omitted and footnote added).
The problem with the appellees' argument is that it seems to ignore the fact that the appellees had the burden of proving unlawful discrimination. Once the Town Center explained that the treatment of the appellees was based on their violation of the code of conduct, it was incumbent upon the appellees to prove that the actual reason for their treatment was racial animus. In other words, the appellees were charged with producing evidence, not speculation, including corroborating evidence, sufficient to show that racial animus was more likely than not the reason for the action taken against them. In light of this fact, it is more remarkable that the appellees did not call David Gandee or others to corroborate the appellees' version of events.
No. 34739 - Reversed.
No. 34740 - Reversed.