Mike Kelly Jeffrey G. Blaydes
Charleston, West Virginia James M. Haviland
Attorney for the Plaintiff Crandall, Pyles & Haviland
Charleston, West Virginia
Charles R. Bailey Attorneys for Amicus Curiae
Belinda B. Neal West Virginia Education
Shuman, Annand & Poe Association
Charleston, West Virginia
Attorneys for the Defendant Paul R. Sheridan
Senior Assistant Attorney
Charleston, West Virginia
Attorney for Amicus Curiae
West Virginia Human Rights
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
1. 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.
2. 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.
3. 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.
This case involves two questions certified to us by the
United States District Court for the Southern District of West
Virginia involving the authority of the West Virginia Education and
State Employees Grievance Board (Grievance Board) to hear a gender-
based discrimination claim.
The plaintiff, Barbara L. Vest, served as a substitute teacher at Summersville Junior High School in Nicholas County. The plaintiff asserts she was terminated from that position on the basis of pregnancy and sex. The plaintiff filed a grievance against the defendant, the Board of Education of the County of Nicholas, with the Grievance Board. At a level IV grievance hearing, the plaintiff presented evidence in support of her discrimination claim. However, in her post-hearing brief, the plaintiff voluntarily relinquished her claim upon her belief that it was not the proper forum to hear her discrimination claim. At the hearing, the plaintiff was not assisted by a lawyer, but was assisted by a "representative" as permitted by W. Va. Code, 18-29- 3(f) (1985).See footnote 1 By decision dated May 20, 1992, the plaintiff's grievance was denied. The decision contained no conclusions of law with regard to the plaintiff's discrimination claim.See footnote 2
Subsequently, on June 12, 1992, the plaintiff filed her
discrimination claim with the United States Equal Employment
Opportunity Commission (EEOC). According to the plaintiff, the
EEOC determined there was probable cause under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, and issued the
plaintiff a Notice of Right to Sue on July 20, 1993. Thereafter,
the plaintiff filed an action in the federal district court against
the defendant under the Civil Rights Act and the West Virginia
Human Rights Act, W. Va. Code, 5-11-1, et seq. The defendant filed
a motion for summary judgment with the district court arguing the
discrimination claim was barred by the doctrines of res judicata
and collateral estoppel because of the plaintiff's previous hearing
before the Grievance Board. The following questions then were
certified to this Court:
1. "Does the West Virginia Education and State Employees Grievance Board ('Grievance Board') have subject matter jurisdiction over claims alleging discrimination because of gender-based discrimination?
2. "If the Grievance Board has such
jurisdiction, is a civil action filed pursuant
to the West Virginia Human Rights Act
precluded by a prior grievance proceeding
involving the same parties and arising out of
the same facts and circumstances, but which
did not result in any findings of fact or
conclusions of law regarding the
After review, we answer the first certified question in the affirmative and the second certified question in the negative.
The Legislature established the grievance procedure in W. Va Code, 18-29-1, et seq., to provide the State's education employees with "a simple, expeditious and fair process for resolving [employment] problems[.]" W. Va. Code, 18-29-1 (1992); see Triggs v. Berkeley County Bd. of Educ., 188 W. Va. 435, 425 S.E.2d 111 (1992); Fayette County Bd. of Educ. v. Lilly, 184 W. Va. 688, 403 S.E.2d 431 (1991). Under W. Va. Code, 18-29-5(a) (1989), the Grievance Board is created and is directed to employ hearing examiners to conduct and decide level IV hearings, as provided in W. Va. Code, 18-29-4 (1992). W. Va. Code, 18-29-5(b) (1989), authorizes the hearing examiners to "provide such relief as is deemed fair and equitable in accordance with the provisions of [article twenty nine.]" Grievances, according to W. Va. Code, 18-29-2(a) (1992), may include claims by employees alleging "discrimination" in the application or interpretation of written rules or procedures, "discrimination" in the "application of unwritten policies or practices of the board, [and] any specifically identified incident of harassment or favoritism[.]" W. Va. Code, 18-29-2 (1992), also defines the following terms for purposes of article twenty-nine:
"(m) 'Discrimination' means any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.
"(n) 'Harassment' means repeated or
continual disturbance, irritation or annoyance
of an employee which would be contrary to the
demeanor expected by law, policy and
"(o) 'Favoritism' means unfair
treatment of an employee as demonstrated by
preferential, exceptional or advantageous
treatment of another or other employees."
Thus, the Grievance Board, through its hearing examiners,
has "jurisdiction" to decide grievances that include claims of
discrimination, harassment, and favoritism which have the potential
to overlap claims under the Human Rights Act. The latter prohibits
discrimination in public and private employment on the basis of
race, religion, color, national origin, ancestry, sex, age,
blindness, or handicap. W. Va. Code, 5-11-9 (1992). The two
statutes may, in a given case, provide alternative remedies to
aggrieved persons. Obviously, a state educational employee who is
denied a job benefit solely because of her gender would have a meritorious grievance based on either "discrimination" or
"favoritism" and also would have a claim for relief under the Human
Rights Act. Similarly, a victim of sexual harassment would be
entitled to relief in a grievance that alleged "harassment"See footnote 3 and in
a claim (administrative or judicial) under the Human Rights Act.
E.g., Westmoreland Coal Co. v. West Virginia Human Rights Comm'n,
181 W. Va. 368, 382 S.E.2d 562 (1989). These overlapping remedies
lead to issues, such as are presented in this case, where we must reconcile the goals of various statutory schemes with the policiesSee footnote 4
supporting the doctrines of claim and issue preclusion doctrines.
Clearly, the Grievance Board's authority extends only to
resolving grievances made cognizable by its authorizing
legislation, that is, those grievances recognized in W. Va. Code,
18-29-2. Just as certainly, there is no authority in the statute
for the Grievance Board to decide whether a person states a claim
under the Human Rights Act. In fact, W. Va. Code, 5-11-10 (1994),
W. Va. Code, 5-11-11 (1989), and W. Va. Code, 5-11-13 (1983),
commit interpretation and enforcement of the Human Rights Act to
the Human Rights Commission and to the courts of this State. Price
v. Boone County Ambulance Auth., 175 W. Va. 676, 337 S.E.2d 913
On the other hand, the Grievance Board can entertain
grievances claiming that a particular employment action was the
result of discrimination based on sex or any of the other
prohibited motivations listed in the Human Rights Act. If a
grieving employee can prevail on the claim that she has been the
victim of "discrimination," "harassment," or "favoritism," it
necessarily follows that the employee also can prevail by showing
that the "discrimination," "harassment," or "favoritism" was
motivated by sexual, racial, or some other invidious ground.
Conversely, an employment decision that treats an employee
differently because of the employee's race or gender, etc., is, by
definition, not one that is "related to the actual job
responsibilities of the [employee.]" W. Va. Code, 18-29-2(m).
For example, as a practical matter, a grievant who has
persuasive evidence that sexual or racial bias entered into an
employment decision may want to present such evidence at a
grievance hearing both to prove "discrimination" and to rebut the
employer's neutral or job-related explanation for its action. To
hold that a grievant could not present evidence of an illicit
motive to help prove "discrimination" just because such motive also
is prohibited by the Human Rights Act would be both unfair to the
grievant and inefficient for our administrative and judicial
systems. It would be unfair to the grievant because it
artificially would limit probative evidence relevant to
discrimination. It would be inefficient because a grievance decision in favor of the grievant may, in many cases, end the
controversy and preclude the need for further administrative or
judicial proceedings under the Human Rights Act; and, it does so by
a procedure that is much faster and less expensive.
Thus, the answer to the District Court's first certified
question is in the affirmative. The Grievance Board does not have
authority to determine liability under the 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. In
other words, the Grievance Board does have subject matter
jurisdiction over gender-based discrimination claims--just as it
has subject matter jurisdiction over any claim of discrimination,
meaning employment decisions that are not based on job-related
reasons or agreed to in writing by the employees.
"Discrimination," "favoritism," and "harassment" in W. Va. Code,
18-29-2, comprise, inter alia, employment discrimination that also
is prohibited by the Human Rights Act. Accordingly, we must
proceed to answer the District Court's second certified question.
We have held that for preclusion to attach to quasi- judicial determinations of administrative agencies, at least where there is no statutory authority directing otherwise,See footnote 5 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[.]" Liller v. West Virginia Human Rights Comm'n, 180 W. Va. 433, 440, 376 S.E.2d 639, 646 (1988). In addition, "[t]he identicality of issues litigated is a key component to the application of administrative res judicata or collateral estoppel[.]" 180 W. Va. at 440, 376 S.E.2d at 646. Using that analysis, we find no preclusive effects to the Grievance Board's determinations over human rights claims.
First, there are not identical issues. As we stated
above, a "discrimination" claim under W. Va. Code, 18-29-2(m), only
need establish that the adverse employment decision was neither job
related nor agreed to by the employees. Section 2(m) imposes no
requirement for proving that the "discrimination" was caused by an illicit motive or was the result of a discriminatory policy having
a disparate impact,See footnote 6 as would be the case under the Human Rights
Act. E.g., University of West Virginia v. Decker, 191 W. Va. 567,
447 S.E.2d 259 (1994). Thus, claim preclusion would apply only if
we were to hold that subsequent litigation by grievants of claims
arising out of the same facts as their grievances is barred not
only as to arguments actually litigated, but also as to those that
could have been litigated in the grievance. See Syl. pt. 2, Conley
v. Spiller, 171 W. Va. 584, 301 S.E.2d 216 (1983); Lane v. Williams
150 W. Va. 96, 100, 144 S.E.2d 234, 236 (1965). As we did in
Liller,See footnote 7 supra, we refuse to impose such a bar on subsequent
litigation under the Human Rights Act. Employees appearing before
the Grievance Board may have legitimate reasons for not raising the
more difficult and far more contentious issue of discriminatory
motive, and because many grievants lack the assistance of a lawyer,
they may not even recognize the potential for a human rights claim.
By not imposing a collateral bar, we reinforce the Legislature's
purpose in enacting W. Va. Code, 18-29-1, et seq., of creating a simple and expeditious procedure for resolving employees'
The second reason that causes us to reject claim
preclusion also persuades us that issue preclusion should not
apply. The 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 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.See footnote 8
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,See footnote 9 does not
make available at public expense representation by a lawyer for
cases that proceed to a hearing before an administrative law
judge,See footnote 10 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.See footnote 11
The issues in a human rights case--especially unlawful
motive and disparate impact--are extremely difficult and often
complex. Invariably, they require substantial degrees of fact gathering and familiarity with the concepts of discrimination law.
A grievant without a lawyer could not possibly be expected to grasp
the significance of that law, put together a case of
discrimination, and comprehend the full impact of claim and issue
preclusion doctrines. A grievant with a lawyer would have an
unfairly difficult task trying to prove illicit motive or disparate
impact without access to the full panoply of discovery
opportunities. The problem especially is apparent by the fact that
in matters of motive and disparate impact the employer ordinarily
possesses the crucial evidence. Thus, in the language of Syllabus
Point 3, in part, of Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 359
S.E.2d 124 (1987), the plaintiff in this case was not "afforded a
full and fair opportunity to litigate the matters in dispute[.]"
We stated in Liller, 180 W. Va. at 441, 376 S.E.2d at
647, "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)." 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." Syllabus Point 3, in part,
Mellon-Stuart Co., supra. In this case, we have W. Va. Code, 18-
29-1, et seq., a legislatively provided administrative remedy for state employees that is designed to assure them of a fast, easy-to-
use, and inexpensive procedure for resolving the entire spectrum of
legitimate employee complaints. We also have in the Human Rights
Act a complex array of procedures and protections designed to give
effect to the "civil right of all persons" to equal employment
opportunity and to end the invidious discrimination that "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 (1989). We think our answers to the certified questions
best accommodate the different legislative goals that support the
two statutes involved in this case.See footnote 12
In so holding, we particularly remain mindful of the
primacy that the Legislature has accorded to eliminating invidious
discrimination in this State. As we stated in Allen v. State Human
Rights Commission, 174 W. Va. 139, 149, 324 S.E.2d 99, 109 (1984),
"[e]qual opportunity in this State is a fundamental principle"
grounded in several provisions of our State Bill of Rights.
"[E]very act of unlawful discrimination in employment . . . is akin to an act of treason, undermining the very foundations of our
democracy." 174 W. Va. at 148, 324 S.E.2d at 108. The sense of
betrayal is even greater when the discriminator is, as alleged in
this case, a public servant. We cannot allow the substantial
protections promised by the Human Rights Act from such assaults on
our personal and institutional integrities to be compromised by
unthinking adherence to technical doctrines. If we permit public
employers to use prior decisions rendered by a loose administrative
apparatus--engaged in by unwary and often uncounseled employees and
lacking important procedural rudiments--to preclude victims of
discrimination from subsequently invoking the promises made by the
Human Rights Act, we, thereby, would add our own breach of trust to
those already committed by public discriminators. Thus, we refuse
to so hold.See footnote 13
We, therefore, find it unnecessary to resolve the dispute
between the parties in the present case as to whether the plaintiff
"actually litigated" her discrimination claim before the Grievance
Board.See footnote 14 Accordingly, our response to the District Court's second certified question is negative. A civil action filed under the
Human Rights Act is not precluded by a prior grievance decided by
the Grievance Board arising out of the same facts and
circumstances. The grievance procedures and the Human Rights Act
provide enforcement mechanisms to accomplish different legislative
purposes and neither preempts the other.See footnote 15
For the foregoing reasons, we find the West Virginia Education and State Employees Grievance Board has subject matter jurisdiction over any claim of discrimination, and a civil action filed under the Human Rights Act is not precluded by such a prior grievance which involves the same facts and circumstances. The certified questions answered, this case is dismissed.
Answered and dismissed.
Footnote: 1 W. Va. Code, 18-29-3(f), provides, in part: "An employee may have the assistance of one or more fellow employees, an employee organization representative or representatives, legal counsel or any other person in the preparation and presentation
of the grievance." A "representative" is defined in W. Va. Code, 18-29-2(r) (1985), as "any employee organization, fellow employee, legal counsel or other person or persons designated by the grievant as the grievant's representative." The language quoted from these sections is identical to the current versions enacted in 1992.
Footnote: 2 The plaintiff's claim was denied on the grounds she, inter alia, was not dismissed as a substitute, failed to establish her right to be retained in a specific position at the school, and failed to demonstrate she had a fundamental property or liberty interest in her substitute assignment. On May 2, 1994, the Circuit Court of Kanawha County affirmed the level IV decision. The plaintiff's petition for appeal filed with this Court was denied on November 29, 1994.
Footnote: 3 We are aware that the Grievance Board in Connor v. Barbour County Board of Education, No. 93-01-154 (1994), a decision by an administrative law judge, has stated it has no jurisdiction to entertain sexual harassment claims. See also Norton v. West Virginia Northern Community College, No. 89-BOR-503 (1993). As should be clear from the ensuing discussion in the text, the Connor decision is correct to the extent that it holds the Grievance Board has no authority to decide whether an employer has violated the Human Rights Act. However, harassing treatment of an employee does not fall outside of "harassment" within the meaning of W. Va. Code, 18-29-2, simply because it is motivated by or related to the victim's sex. In a grievance under W. Va. Code 18-29-1, et seq., an employee alleging harassment only needs to prove harassment. The motivation or nature of the harassment is irrelevant.
Footnote: 4 As we previously stated in Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 298, 359 S.E.2d 124, 131 (1987):
"[R]es judicata [or claim preclusion] serves
to advance several related policy goals--(1)
to promote fairness by preventing vexatious
litigation; (2) to conserve judicial
resources; (3) to prevent inconsistent
decisions; and (4) to promote finality by
bringing litigation to an end. E.g.,
Pitsenbarger v. Gainer, 175 W. Va. 31, 330
S.E.2d 840 (1985); Conley v. Spillers, 171
W. Va. 584, 301 S.E.2d 216 (1983)."
Collateral estoppel or issue preclusion "is supported by the same public policy considerations as res judicata." 178 W. Va. at 299, 359 S.E.2d at 132, citing Conley, 171 W. Va. at 588, 301 S.E.2d at 220.
Footnote: 5 Nothing in either of the relevant statutes, W. Va. Code 5- 11-1, et seq., and W. Va. Code, 18-29-1, et seq., expressly resolves the preclusion issues presented by the District Court's second certified question.
Footnote: 6 It is by no means certain that a disparate impact claim would be cognizable before the Grievance Board. Given our disposition of the certified questions presented and the fact this case did not involve such a claim, we need not address the issue here.
Footnote: 7 Liller involved the question whether a Deputy Sheriffs' Civil Service Commission's decision regarding a discharge precluded a subsequent human rights action concerning the same facts. We held that, because the civil service commission had not ruled on the employee's claim of pregnancy discrimination, her human rights claim could proceed.
Footnote: 8 We note that in Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 300, 359 S.E.2d 124, 133 (1987), where we accorded preclusive effect to the decisions of the court of claims, we emphasized that the court of claims maintains procedural and discovery rules similar to those that govern our courts.
Footnote: 9 W. Va Code, 5-11-10 (1994), directs the Commission to investigate all claims filed with it. See Allen v. State Human Rights Commission, 174 W. Va. 139, 324 S.E.2d 99 (1984).
Footnote: 10 By virtue of W. Va. Code, 5-11-7 (1967), the State prosecutes all claims in which probable cause is found and in which the complainant is not represented by private counsel, and the Attorney General has a mandatory duty to furnish all legal services required by the Commission. Allen, supra.
Footnote: 11 See W. Va. Code, 5-11-13 (1983); Price v. Boone County Ambulance Auth., supra. Jury trials, of course, are not available in the administrative process; and, because of that fact, a complainant's recovery before the Commission is limited to equitable relief and may not include large awards for emotional distress or punitive damages. Bishop Coal Co. v. Salyers, 181 W. Va. 71, 380 S.E.2d 238 (1989).
Footnote: 12 We note that the United States Supreme Court has reached similar conclusions in order to give full effect to Congress's purposes in enacting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. E.g., University of Tennessee v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 92 L.Ed.2d 635 (1986) (a judicially unreviewed state administrative decision on a claim of race discrimination does not bar subsequent Title VII litigation of the same claim); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L.Ed.2d 147 (1974) (a grievance decision applying an anti-discrimination provision in a collective bargaining agreement does not preclude subsequent Title VII litigation on the same set of facts).
Footnote: 13 Our statements in the text, of course, should not be construed to express any opinion on the merits of the plaintiff's charges of discrimination in this case. Rather, we merely hold that the Human Rights Act entitles her to a full and complete opportunity to prove those allegations before the Commission or a trial court.
Footnote: 14 As noted above, at the level IV grievance hearing the plaintiff presented evidence on discrimination, but then "relinquished" the claim in her post-hearing brief before the issue was decided. Liller would seem to dictate a finding that the Grievance Board's decision, therefore, would not preclude a
subsequent Human Rights Act complaint. The issue in Liller was whether a decision of a civil service commission should be given preclusive effect. We concluded that "where the issue of sex discrimination has not been decided by a deputy sheriff civil service commission, the involved deputy is not foreclosed from filing a complaint with the human rights commission." 180 W. Va. at 441, 376 S.E.2d at 647. (Footnote omitted; emphasis added). See also 180 W. Va. at 441 n.16, 376 S.E.2d at 647 n.16 (citing cases under federal civil rights law reaching the same conclusion); cf. Wilfong v. Chenowith Ford, Inc., ___ W.Va. ___, ___ S.E.2d ___ (No. 22362 11/18/94).
Footnote: 15 We emphasize, however, that employees can recover only once for each injury. Thus, for example, if the Grievance Board awards backpay to a discharged employee who later, based on the same set of facts, prevails on a Human Rights claim, the grievance award would be set off against the employee's recovery under the Human Rights Act.