Robert A. Lockhart
Jackson & Kelly
Charleston, West Virginia
Attorney for the Appellant
Mary K. Buchmelter
Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellee,
Human Rights Commission
Ray E. Ratliff, Jr.
Charleston, West Virginia
Attorney for the Appellee,
Albert Jackson Gregory
This Opinion was delivered PER CURIAM.
"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, West Virginia Human Rights Commission v. United
Transportation Union, Local 655, 167 W.Va. 282, 280 S.E.2d 653
This is an appeal by Donaldson Mine Company from an order
entered by the West Virginia Human Rights Commission on October 3,
1991. That order held that the appellant, Donaldson Mine Company,
had discriminated against Albert J. Gregory on the basis of his age
and awarded him back pay, attorney fees, and incidental damages for
humiliation, embarrassment, emotional distress, and loss of
personal dignity. On appeal, the appellant claims that the
Commission erred in finding that it had discriminated against Mr.
Gregory on the basis of age, that the Commission erred in finding
that Mr. Gregory's claim was not pre-empted by federal law, and
that the Commission erred in awarding incidental damages for
humiliation, embarrassment, emotional and mental distress, and loss
of personal dignity. After reviewing the questions raised by the
appellant, as well as the record in this matter, this Court can
find no reversible error. Accordingly, the final order of the West
Virginia Human Rights Commission is affirmed.
This action commenced on May 8, 1987, when Albert J. Gregory filed a complaint with the West Virginia Human Rights Commission against Donaldson Mine Company, d.b.a. Valley Camp Coal Company. The complaint alleged that he was denied employment with
Donaldson and that the denial was based upon his age, in violation
of the West Virginia Human Rights Act.See footnote 1
The Human Rights Commission investigated Mr. Gregory's complaint, and on November 12, 1987, determined that no probable cause existed to demonstrate that age discrimination had occurred. The Commission also notified the parties that an appeal could be sought within ten days, and such an appeal was taken. The case was then assigned to a hearing examiner, and extensive proceedings and lengthy hearings were conducted. At the conclusion of the hearings, the hearing examiner on March 21, 1991, found that the appellant had discriminated against Mr. Gregory because of his age
and awarded him $29,085.20 in back pay and incidental damages of
$2,500.00 for humiliation, embarrassment, emotional and mental
distress, and loss of personal dignity. Attorney fees and costs
were also awarded.
In findings made in conjunction with the decision, the
hearing examiner reviewed Mr. Gregory's work history and found that
he had worked for the employer and its predecessors from 1952 until
February 22, 1985, and that during that time he had received
regular increases in salary, had never been reprimanded or
disciplined, and had never been criticized by a superior for his
management style and had never been told to improve his management
style or the way he dealt with people. The hearing examiner noted
that Mr. Gregory was born on September 9, 1934, and that the mine
for which he worked was shut down on December 31, 1984, but that
Mr. Gregory continued to work until February 22, 1985, overseeing
the sealing of the mine and recovery of equipment.
According to the hearing examiner, Mr. Gregory, on the
day he was laid off, submitted an employment application with
Donaldson Mining Company indicating a foreman's job or other
supervisory position. He was rehired on September 1, 1985, but
again terminated on December 31, 1985. He was employed from
August 1, 1986, until March, 1988, by the Cannelton Coal Company at
a mine in Boone County.
According to the hearing examiner, from 1986, including
the time he was employed by Cannelton Coal Company, Mr. Gregory
continued to make inquiries about employment with Donaldson Mining
Company. The hearing examiner stated:
His most important reason for doing so, was the fact that he was nearing the age of eligibility for retirement, that being 55 years of age, and the complainant wanted to be reinstated in the respondent's pension plan, as there was a substantial reduction in benefits if he were to retire while on layoff status.
In focusing on the particular event identified in Mr.
Gregory's complaint as the discriminatory act, the hearing examiner
found that in early 1987, Mr. Gregory learned that the assistant
superintendent in Donaldson's #12A mine was planning to retire.
Mr. Gregory notified the superintendent of the mine on March 8,
1987, to express his interest in the position. He personally went
to Donaldson's offices on March 11, 1987, to discuss the opening
and he was informed that an individual from the midnight shift was
going to be promoted to the opening and that Mr. Gregory "wouldn't
fit in." Subsequently, Terry Green from the midnight shift was
promoted to the position. The reason later given for the failure
to hire Mr. Gregory was that management did not agree with his
management style and the way he dealt with people.
In conjunction with the promotion of Terry Green to the assistant superintendent's job, several other supervisory positions which became available by the shifting of personnel were filled by
Donaldson with individuals other than Mr. Gregory. Three of the
positions were filled with people who were 34, 38, and 39 years
The hearing examiner, after examining extensive evidence
relating to Donaldson's hiring practices, found that prior to the
time Mr. Gregory filed his discrimination claim on May 11, 1987,
Donaldson had hired fourteen supervisory personnel following the
layoffs on December 31, 1984. The average age was 38.5 years. One
man in his 50's was hired, five in their 40's, six in their 30's,
and two in their 20's. Six out of fourteen were in the protected
class of those forty or over.
After the filing of the complaint, seven more were hired
with an average age of 45.4. Three were in their 50's, three in
their 40's, and one in his 20's.
The hearing examiner concluded that the overall evidence
showed that Mr. Gregory had been the subject of age discrimination.
After the hearing examiner rendered the decision in the case, the appellant, in a post-hearing memorandum, took the position that if there was any violation of statutory rights in its treatment of Mr. Gregory, the violation was of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1140,
and that action by the West Virginia Human Rights Commission was
pre-empted by any potential ERISA violation.
The Human Rights Commission, after examining the hearing
examiner's conclusions and the memoranda of the parties, rejected
the appellant's pre-emption contention and affirmed the hearing
examiner's decision. It is from that ruling that the appellant now
On appeal, the appellant claims that the West Virginia
Human Rights Commission erred in finding that it had discriminated
against Mr. Gregory on the basis of age.
The basic rule in this State is that the findings of the
Human Rights Commission should be sustained on review if they are
supported by substantial evidence. This rule is set forth in
syllabus point 1 of West Virginia Human Rights Commission v. United
Transportation Union, Local 655, 167 W.Va. 282, 280 S.E.2d 653
(1981), as follows:
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.
In Conaway v. Eastern Associated Coal Corporation, 178 W.Va. 164, 358 S.E.2d 423 (1987), this Court discussed at some length the question of what evidentiary showing is necessary to
support a human rights decision. In syllabus point 3, the Court
In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer proof of the following:
(1) That the plaintiff is a member of a
(2) That the employer made an adverse
decision concerning the plaintiff.
(3) But for the plaintiff's protected
status, the adverse decision would not have
The Court has further indicated that if a plaintiff succeeds in
proving a prima facie case, the burden of production of evidence
shifts to the defendant to articulate some legitimate
nondiscriminatory reason for the employee's rejection. If the
defendant carries this burden, the plaintiff then must have an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not the true
reasons, but a pretext for discrimination. State ex rel. State of
West Virginia Human Rights Commission v. Logan-Mingo Area Mental
Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985);
Shepherdstown Volunteer Fire Department v. West Virginia Human
Rights Commission, ___ W.Va. ___, 309 S.E.2d 342 (1983).
In the present case, the evidence rather clearly shows that Mr. Gregory was a member of a protected class, in that he was more than forty years of age at the time of the events giving rise
to his complaint. It is also rather clear that the appellant, who
was the employer, made an adverse decision concerning him, in that
the appellant failed to hire him for an opening which was available
and, in lieu of hiring him, hired a younger individual.
Given these circumstances, the Court believes that Mr.
Gregory has indisputably established the first two elements of a
prima facie case as outlined in Conaway v. Eastern Associated Coal
Corporation, supra. The third element is that, but for the
plaintiff's status, the adverse decision would not have been made.
This Court explained in Kanawha Valley Regional Transportation
Authority v. West Virginia Human Rights Commission, 181 W.Va. 675,
383 S.E.2d 857 (1989), that in articulating the prima facie test
set forth in syllabus point 3 of Conaway, the Court did not intend
to create a more narrow standard of analysis in discrimination
cases than undertaken in the federal courts. The Court further
explained in Kanawha Valley Regional Transportation Authority that:
[B]ecause discrimination is essentially an element of the mind, there will normally be very little, if any, direct evidence available. Direct evidence is not, however, necessary. What is required of the complainant is to show some circumstantial evidence which would sufficiently link the employer's decision and the complainant's status as a member of a protected class so as to give rise to an inference that the employment related decision was based upon an unlawful discriminatory criterion.
181 W.Va. at 678-79, 383 S.E.2d at 860, quoting West Virginia
Institute of Technology v. West Virginia Human Rights Commission,
181 W.Va. 525, 530, 383 S.E.2d 490, 495 (1989).
The evidence adduced in the present case showed that Mr. Gregory was qualified for the positions which he sought. He had worked for the employer for thirty years and had held many positions, including that of mine foreman and mine superintendent. There is evidence in the record that even the employer's witnesses admitted that Mr. Gregory was qualified for the positions for which he applied. There is also evidence that he was never disciplined or counseled during his employment.
There was evidence in the record that the appellant hired
a younger person for the position which Mr. Gregory was seeking.
There was also statistical evidence suggesting that in the time
frame in which the events giving rise to the present claim arose,
the appellant rather consistently hired younger individuals rather
than older for supervisory positions which became available. Those
younger individuals were less experienced than Mr. Gregory.
In this Court's view, this evidence constituted
substantial evidence supporting the West Virginia Human Rights
Commission's implicit finding that Mr. Gregory made a prima facie
case for age discrimination.
To rebut the evidence that Mr. Gregory was discriminated against on the basis of his age, the appellant introduced evidence suggesting that Mr. Gregory was only interested in upper level supervisory work, which did not exist, and that he was not hired
because of his "management style." The hearing examiner found the
appellant's defenses pretextual, essentially on the basis of the
fact that there were upper level supervisory jobs available and
upon the fact that Mr. Gregory had for many years successfully
worked in such jobs for the employer and that he never received any
reprimand or counseling about an allegedly defective management
Although the appellant adduced the testimony of
individuals who had worked with Mr. Gregory in the distant past,
and who suggested that he was autocratic and lacked the ability to
communicate well with the rank and file, the appellant did not
offer the testimony of individuals whom Mr. Gregory had supervised
in the time frame preceding the events giving rise to the present
claim. Also, the evidence rather clearly showed that the appellant
had retained Mr. Gregory at his job until such time as his job no
longer existed because of the closing of a mine.
Overall, this Court believes that the substantial evidence in the case is such that it cannot conclude that the ultimate finding of the Human Rights Commission that Mr. Gregory was discriminated against on the basis of his age was not supported by substantial evidence, and, therefore, in accordance with the rule set forth in syllabus point 1 of West Virginia Human Rights Commission v. United Transportation Union, Local 655, supra, the Court believes that the appellant's contention that Mr. Gregory was
discriminated against on the basis of age was not supported by
substantial evidence and was erroneous and is without merit.
On appeal, the appellant next claims that action by the
West Virginia Human Rights Commission was pre-empted by the
provisions of ERISA and that, under the circumstances, the Human
Rights Commission decision in the present case is erroneous.
On appeal, the appellant argues that although Mr.
Gregory's action was brought in the form of an age discrimination
complaint, his real claim is that the appellant refused to hire him
in order to avoid the increase in pension benefits which would
accrue to him upon retirement. The appellant claims that such
conduct clearly states a claim under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1001 et seq., which provides
It shall be unlawful for any person to . . . discriminate against a participant or beneficiary . . . for the purpose of interfering with the attainment of any right to which such participant may become entitled under this [employee benefit] plan . . . .
29 U.S.C. § 1140.
The appellant also argues that ERISA provides that its
provisions "shall supersede any and all State laws insofar as they
may now or hereafter relate to any employee benefit plan described
in [29 U.S.C. § 1003(a)] . . ." 29 U.S.C. § 1144(a).
The appellant argues that it was clearly the intent of
Congress to pre-empt state laws in this area in the quest for
uniformity of decision for all questions relating to employee
In arguing its point, the appellant states that the
Commission found that Mr. Gregory's complaint is for age
discrimination, to which the appellant's pension plan is merely one
of many relevant facts. The appellant argues that although ERISA
does not completely pre-empt every state statute which has an
impact on a pension plan, any claim brought under such a statute
which alleges interference with the plan participant's pension
benefits is pre-empted. See Fixx v. United Mine Workers of
America, District 17, 645 F.Supp. 352 (S.D.W.Va. 1986).
In a number of cases involving preemption under ERISA, federal district courts have recognized that where retirement benefits are peripheral to an employee's claim of age discrimination, even though the denial of retirement benefits was in issue in the case, the claim should be held to be an age discrimination claim and not an ERISA claim. See Yageman v. Vista Maria, Sisters of the Good Shepherd, 767 F.Supp. 144 (E.D.Mich. 1991); Clark v. Coats & Clark, Inc., 865 F.2d 1237 (11th Cir. 1989). The courts have further recognized that the mere fact that the relief which is to be afforded to an employee or former employee under state law may involve an employee benefit plan does
not mean that the case is subject to ERISA preemption. Martori
Brothers Distributors, Inc. v. James-Massengale, 781 F.2d 1349 (9th
Cir. 1986), cert. denied 479 U.S. 1018, 107 S.Ct. 670, 93 L.Ed.2d
722 (1986); Schultz v. National Coalition of Hispanic Mental Health
Organizations, 678 F.Supp. 936 (D.D.C. 1988).
In Pizlo v. Bethlehem Steel Corp., 884 F.2d 116 (4th Cir.
1989), the Fourth Circuit held that there is no ERISA pre-emption
for a claim where damages would be measured in part by the lost
pension benefits the complaining party would have received, but the
pension trust itself would not be liable and the administrators of
the pension plan would not be burdened in any way.
It appears that in the present case, from the complaint
filed by Mr. Gregory that he was principally pursuing relief under
the West Virginia Human Rights Act. The overall record shows that
he was seeking back wages, and a fair reading of the record
suggests, contrary to the hearing examiner's remark, that pension
issues were merely peripheral to the principal questions in the
case. Also, there is no pension trust defendant, and although the
amount of recovery could in part be measured by benefits the plan
would have provided, the recovery itself did not become an
obligation of the pension plan.
Under the overall circumstances of the case and given the
federal precedent in Pizlo, this Court believes that the Human
Rights Commission did not err in finding that Mr. Gregory's claim
is not pre-empted by federal law.
Lastly, the appellant claims that the Human Rights
Commission erred in awarding incidental damages. It essentially
argues that there was no evidence that Mr. Gregory felt
embarrassment, shame, or humiliation as a result of its failure to
During the hearings in this case, contrary to assertions
of the appellant, Mr. Gregory testified in a manner which suggested
that he was humiliated and embarrassed because of the action taken
by the appellant in refusing to hire him. As previously indicated,
at one point while Mr. Gregory was seeking a job he spoke with a
supervisory individual in the appellant's organization who
basically told him that he would not fit in with the company. Mr.
Gregory testified that he had been with the company for over thirty
years and that:
I sat there maybe five or ten seconds after that. I don't know whether it means anything to anybody else in the world or not, but you couldn't have took a knife and cut my heart out and made me hurt any worse inside, when a man tells you you don't fit in.
He further testified that the discrimination affected him mentally. He said: "[A]s far as working for a company basically all your life and then they tell you that you don't fit in when you get a
few years on you. I think that most people would have felt the
same way that I did. It hurt."
This Court has indicated that complainants who
successfully challenge discrimination before the Human Rights
Commission are entitled to damages for humiliation and
embarrassment. State Human Rights Commission v. Pearlman Realty
Agency, 161 W.Va. 1, 239 S.E.2d 145 (1977); State ex rel. State of
West Virginia Human Rights Commission v. Logan-Mingo Area Mental
Health Agency, Inc., supra; Bishop Coal Company v. Salyers, 181
W.Va. 71, 380 S.E.2d 238 (1989).
This Court believes, contrary to the appellant's
assertion, that Mr. Gregory did submit evidence of humiliation,
embarrassment, and emotional distress and that, under the
circumstances, the Court cannot conclude that the Human Rights
Commission erred in awarding him incidental damages.
For the reasons stated, the decision of the West Virginia
Human Rights Commission is affirmed.
Footnote: 1The complaint specifically alleged:
1. On March 11, 1987, I was denied
gainful employment with Donaldson Mining
2. Tim Ross, Manager of Mines, stated
that he had selected another employee for the
3. I believe I have been discriminated
against because of my Age, 52, in that:
a. I have extensive experience in
mining. Those selected for employment were
younger than I, and had less experience.
b. I was told that "I did not fit
in," therefore, it was necessary to hire
other employees for supervisory positions.
c. Former employees who have less seniority and are younger, were interviewed for positions with the Respondent. I have help multiple supervisory positions with the Respondent.