Darrell V. McGraw, Jr., Esq.
Paul R. Sheridan, Esq.
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for West Virginia Human Rights Commission
JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
West Virginia Human Rights Commission as part of its cease and desist orders
may award to complainant incidental damages as compensation for humiliation,
embarrassment, emotional and mental distress, and loss of personal dignity,
without proof of monetary loss. W.Va. Code, 5-11-8. Syllabus,
State Human Rights Commission v. Pearlman Rlty. Agcy., 161 W.Va. 1,
239 S.E.2d 145 (1977).
2. Our original authorization in Human Rights Commission v. Pearlman Rlty. Agcy., 161 W.Va. 1, 239 S.E.2d 145 (1977) of damages for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity, contemplated only 'incidental' awards. We approved $1,000 as an incidental award for such damages. That figure may be adjusted for inflation, but the Commission must be aware of its jurisdictional limitations because awarding a higher amount impinges upon a defendant's constitutional right to trial by jury. Syllabus Point 2, Bishop Coal Co. v. Salyers, 181 W.Va. 71, 380 S.E.2d 238 (1989).
3. When the West Virginia Human Rights Commission awards incidental damages to a complainant, the limit of damages provided in Bishop Coal Co. v. Salyers, 181 W.Va. 71, 380 S.E.2d 238 (1989), applies per case rather than per respondent.
This case is before the
Court upon the appeal of the West Virginia Human Rights Commission from the
Circuit Court of Kanawha County, which affirmed in part, and reversed in part,
the decision of the Human Rights Commission. The Commission contends that
the circuit court committed reversible error by holding that the respondents,
Future Inns of America-Huntington, Inc. and Richard Huff, are jointly and
severally liable for the incidental damages suffered by the complainant, Angela
Frye. The Commission argues that incidental damages should be assessed against
each respondent. We disagree and affirm.
Future Inns of America-Huntington, Inc. (Future Inns) owns the Econo Lodge in Huntington, West Virginia. Richard Huff owns Hospitality Services Unlimited, Inc. (Hospitality Services) which provides contractual management services for Future Inns. (See footnote 1) In April 1992, Richard Huff hired the complainant, Angela Frye, to work at the Econo Lodge as an assistant manager or manager trainee. She was promoted to the position of general manager when the manager resigned in May 1993. Although Ms. Frye was paid by Future Inns, Richard Huff supervised her.
During the time that Ms.
Frye worked for Future Inns, she lived on hotel property. Mr. Huff did not
reside in Huntington; however, he visited the Econo Lodge about once each
month. During these visits, he usually stayed in a hotel room on the premises.
Ms. Frye often joined him for dinner to discuss management issues. Following
one such dinner in August or September 1993, Mr. Huff made sexual advances
toward Ms. Frye. She testified in a hearing before the administrative law
judge (ALJ) that following dinner she returned to the Econo Lodge with Mr.
Huff. He attempted to kiss her. She rebuffed his efforts. He nonetheless followed
her to her room insisting that they needed to discuss business. After stating
that the ice machine made too much noise to talk in the hallway, he entered
her room. He once again tried to kiss her at which time she asked him to leave.
Rather than leaving, he pushed her down on the bed, got on top of her, and
tried to lift her skirt. Ms. Frye resisted Mr. Huff's advances and once again
asked him to leave her room. At that time, he left.
About a month later, Mr. Huff was once again occupying a room at the Econo Lodge while visiting the hotel property. He and Ms. Frye had dinner together. Upon returning to the hotel, Mr. Huff stated that some maintenance problems existed in his room.
He indicated that Ms. Frye should follow him to his room so he could show
her the problems. Once inside the room, Mr. Huff tried to kiss Ms. Frye and
asked her to spend the night. She refused.
Ms. Frye also testified
that from September 1993 through May 1995, Mr. Huff repeatedly asked her to
spend the night with him. She repeatedly refused. She says that she did not
discontinue her employment with the hotel because she was a student at Marshall
University and needed the job. Mr. Huff did not document a single act of misconduct
or a single performance problem during Ms. Frye's tenure at the hotel. In
fact, Mr. Huff gave Ms. Frye two $1,000 bonuses and a bonus vacation for improving
occupancy levels. However, after Ms. Frye filed her action with the Human
Rights Commission, Mr. Huff generated a list of twenty-two performance problems.
Ms. Frye also believes the bonus vacation was delayed because she told Mr.
Huff she preferred to choose her companion as opposed to going away for a
week with him.
Ms. Frye severed her employment
relationship with Future Inns on May 19, 1995. She suffered a brief period
of lost wages but mitigated these damages by accepting a job in Columbus,
Ohio. She subsequently moved to Cincinnati, Ohio where she is currently employed
in the hotel industry.
On July 26, 1995, Ms. Frye filed
a complaint with the West Virginia Human Rights Commission alleging sexual harassment
and discrimination. She named both Mr. Huff and Future Inns as respondents.
She contended that Mr. Huff made these sexual demands as a condition of
employment. When I rejected his sexual demands he began to constantly harass
me about my work performance. Ms. Frye claimed that [t]he Respondent
created a sexually hostile working atmosphere. A hearing was held before
an ALJ on January 13 and 14, 1998. The ALJ's final decision was entered on January
28, 1999. The ALJ found that the evidence credibly establishes that the
complainant was subjected to quid pro quo sexual harassment by respondent, Richard
Huff, during the period between September, 1993 and the spring of 1995.
The ALJ also determined that [t]he complainant has established that respondent,
Future Inns of America, Inc., is liable for the sexual harassment of its employee,
Angela Frye, by its manager Richard Huff.
The ALJ concluded:
6. The respondent, Future Inns of America, Inc. and the respondent, Richard Huff, are jointly and severally liable for damages of back pay, benefits, prejudgment interest in the amount of $7,807.27 through the end of July, 1998 . . . and thereafter prejudgment interest through December of 1998.
7. Each respondent is liable for incidental damages in the amount of $3,227.45 for the emotional distress wreaked upon complainant by their illegal sexual harassment.
Richard Huff and Future Inns
appealed the ALJ's decision to the Commission alleging that the findings of
fact and conclusions of law were not supported by the evidence. The respondents
argued that Richard Huff was not the agent of Future Inns and Future Inns had
not acted improperly; consequently, Future Inns could not be liable. The respondents
argued that Ms. Frye filed her action after the statute of limitations had run.
They also maintained that Ms. Frye submitted no evidence, such as income tax
returns or payroll check stubs, upon which an award for lost wages could be
based and her allegations were insufficient to sustain the verdict. After reviewing
the record, the Human Rights Commission adopted the Administrative Law
Judge's Final Decision as its own, without modification or amendment.
Pursuant to W.Va. Code § 5-11-11 (1989), (See footnote 2) Richard Huff and Future Inns appealed the Commission's decision to circuit court. The respondents opined that [t]he decision is clearly wrong in view of the reliable, probative and substantial evidence on the
whole record. They believed the Commission erred because Richard Huff
was the only person accused of wrongdoing and he was not an agent, servant,
or employee of Future Inns; the claim was filed after the statute of limitations
had run; Ms. Frye failed to report any misconduct; and the best evidence rule
was violated because Ms. Frye failed to submit any documents such as tax returns
or payroll check stubs to support her claim for lost wages. The Commission
filed a motion to dismiss arguing that the circuit court did not have jurisdiction
to hear the appeal because the incidental damage award against each respondent
did not exceed $5,000.00.
The circuit court preliminarily
considered the Commission's jurisdictional challenge. In its order entered
on October 18, 1999, the court concluded that [b]ecause the statute
speaks to awards of damages in 'cases,' not to award[s] of damages with respect
to individual defendants or claims, the Court is of the opinion that it is
the aggregate of the amounts awarded against the defendants in a case that
determines whether or not this Court has jurisdiction. After considering
the evidence, the circuit court agreed with Mr. Huff and Future Inns
that it defies logic for the commission to hold that two parties are jointly and severally liable for damages in the form of back pay arising out [of] a series of acts, but to hold that the same two parties are severally liable for incidental damages for emotional [distress] arising out [of] the same series of acts.
The circuit court's final order was entered on June 13, 2001. The court found
that the respondents' timeliness and best evidence issues were completely
groundless. This was so because Ms. Frye alleged that at least one act
of sexual harassment took place in the year immediately preceding the filing
of her complaint, and she was attempting to prove lost wages rather than the
content of a document. The court finally held that Mr. Huff and Future Inns
were jointly and severally liable for any damages suffered by the appellee.
After making a minor modification for lost wages, the court reduced the incidental
damages award by $3,277.45. The respondents were jointly and severally liable
for the remaining $3,277.45 incidental damages award. It is from this order
that the Commission appeals.
This Court first recognized
the authority of the Commission to award money damages in State Human Rights
Commission v. Pauley, 158 W.Va. 495, 212 S.E.2d 77 (1975). In Pauley,
Charles Robinson filed a complaint with the West Virginia Human Rights Commission
against Edith M. Pauley charging Ms. Pauley with racial discrimination because she refused to rent him an apartment. The Commission found Ms. Pauley guilty
of discrimination and imposed damages in the amount of $480 as compensation
for time and effort expended in finding suitable housing; $100 as compensation
for embarrassment and loss of personal dignity; and $100 as exemplary damages
for alleged misconduct. Ms. Pauley appealed to circuit court. The court agreed
that Ms. Pauley had discriminated against Mr. Robinson but found that the
Commission had no statutory authority to award monetary damages.
The Commission appealed
to this Court. The Pauley Court found no constitutional objection to
legislative authorization of an administrative agency to award damages to
a victim of unlawful discrimination. The Court then decisively stated that
[u]nder the authority granted by the Human Rights Act, as provided in
W.Va. Code, 1931, 5-11-1 et seq., as amended, the Human Rights Commission
may make an award of monetary damages to a victim of unlawful discrimination
as defined in that Act. Syllabus Point 1, id. However, Pauley
was limited to allowing complainants to receive compensatory damages and
then only upon proper proof of monetary loss.
Two years later, in State
Human Rights Commission v. Pearlman Rlty. Agcy., 161 W.Va. 1, 239 S.E.2d
145 (1977), this Court disapproved the Pauley language which seem[ed]
to allow [an] award to the complainant only of 'out of pocket' expenses, properly proved. Id., 161 W.Va. at 5, 239 S.E.2d at 147. The Pearlman
Court determined that the Commission could award damages for humiliation,
embarrassment, emotional and mental distress, and loss of personal dignity
when the complainant demonstrated no monetary loss. The Court's single syllabus
point states, The West Virginia Human Rights Commission as part of its
cease and desist orders may award to complainant incidental damages as compensation
for humiliation, embarrassment, emotional and mental distress, and loss of
personal dignity, without proof of monetary loss. W.Va. Code, 5-11-8.
This Court was presented
with a more troubling issue in Bishop Coal Co. v. Salyers, 181 W.Va.
71, 380 S.E.2d 238 (1989). The facts of Bishop Coal show that Brenda
Salyers was employed by Bishop Coal Company. She bid for a vacant job as a
scoop operator but was not given the job allegedly because no foreman could
vouch for her ability to operate a scoop. She protested and the employer arranged
a test. She admitted that she did not do very well on the test but nonetheless
filed a grievance. During arbitration the parties agreed to another test.
Once again the test results were not very satisfactory but evidence was submitted
to show that the equipment may not have been in perfect operating condition.
When she was not hired for the job, she filed a complaint with the West Virginia
Human Rights Commission alleging gender-based harassment, gender-based job
discrimination, and gender-based discrimination in training opportunities.
The Commission found that the
employer discriminated against Ms. Salyers because three to four months before
she bid for the scoop operator job, a male employee with little or no training
or experience was promoted to the position of scoop operator. The male employee
was not tested nor was he required to demonstrate his proficiency on the scoop.
The employer admitted that the male employee was continuing to be given on-the-job
training when Ms. Salyers entered her bid but disputed the issue of whether
Ms. Salyers was accorded disparate treatment because of her gender. The Commission
found that Ms. Salyers was a victim of gender-based discrimination and awarded
her $400 in back pay plus $7,500 for mental anguish. Bishop Coal Company appealed
directly to this Court. On appeal, this Court affirmed the Commission's decision
that Ms. Salyers was discriminated against because of her gender and upheld
the $400 award. The troubling area for the Court was whether to affirm the $7,500
In considering the incidental
damages award, the Bishop Coal Court reasoned as follows:
We agree with the majority view of the states with statutes similar to our own that hold such statutes do not allow human rights commissions to award punitive or compensatory damages except for back pay and incidental damages. Allowing the commission to award money other than limited incidental damages, without a jury, would violate W.Va. Const., art. III, § 13. We also emphasize that our statute does allow a grievant to pursue his action in a circuit court and specifically authorizes the court to award legal or equitable relief. W.Va.Code, 5-11- 13 . W.Va.Code, 5-11-8  (authorizing the commission to issue cease and desist orders) does not contain a specific authorization for legal relief.
Bishop Coal, 181 W.Va. at 79, 380 S.E.2d at 246. In Syllabus Point 2, the Court held:
Our original authorization in Human Rights Commission v. Pearlman Rlty. Agcy., 161 W.Va. 1, 239 S.E.2d 145 (1977) of damages for humiliation, embarrassment, emotional and mental distress, and loss of personal dignity, contemplated only incidental awards. We approved $1,000 as an incidental award for such damages. That figure may be adjusted for inflation, but the Commission must be aware of its jurisdictional limitations because awarding a higher amount impinges upon a defendant's constitutional right to trial by jury.
The current figure used by the Commission is $3,277.45. The question left unanswered by Bishop Coal which we must resolve today is whether that figure applies per respondent or per case.
Without offering an explanation,
the ALJ held that Future Inns and Mr. Huff were jointly and severally liable
to Ms. Frye for compensatory damages but severally liable for incidental damages.
The Commission adopted the ALJ's order without modification or amendment.
By incorporating the ALJ's decision into its final order, the Commission found
that [t]he only person who had the authority to end the sexual harassment
was the very person who was engaging in it and concluded that [t]he
liability for Mr. Huff's sexual harassment of complainant therefore is imputed
to Future Inns of America, Inc. Ms. Frye's noncompensatory damages grew
out of the exact same complaint as her compensatory damages. The Commission nonetheless ordered one compensatory damage award
and two incidental damage awards.
The circuit court found
this position untenable and stated that [i]t is apparent from the record
in this action that the appellants are jointly and severally liable for any
damages suffered by the appellee. (Emphasis added). The court supported
this holding by stating, The constitutional limitation pertains to the
amount in controversy in the suit, not the amount in controversy with respect
to each defendant.
We agree with the circuit
court that the liability in this case is joint and several. Richard Huff owns
Hospitality Services which operates the Econo Lodge under a contract for Future
Inns. During the relevant time period, Mr. Huff controlled the terms and conditions
of Ms. Frye's employment, including the authority to hire, supervise, discipline,
and terminate employment. Ms. Frye did not present any evidence which showed
that Future Inns actively participated in creating a hostile working environment
or that Future Inns engaged in any activity separate and apart from Mr. Huff
which might be a source of independent liability on its part. The liability
of Future Inns is derived solely from the fact that its designated manager
created a hostile working environment.
(See footnote 4) Moreover, W.Va. Code § 5-11-11 makes no distinction between the number of awards a complainant
may be granted for compensatory damages versus noncompensatory damages. The
language in the statute is clear. The statute speaks to damages which are
awarded in cases rather than against individual respondents.
Richard Huff and Future
Inns are, therefore, equally liable for the sexual harassment inflicted upon
Ms. Frye. We agree with the Court of Appeals of New York that:
When multiple tort-feasors are found to be liable for damages, they may not be said to have an inseverable interest in the judgment, even though the factual basis for each party's liability is identical. Liability is said to be joint and several, meaning that each party is individually liable to plaintiff for the whole of the damage[.]
Hecht v. City of New York, 60 N.Y.2d 57, 62, 454 N.E.2d 527, 530, 467 N.Y.S.2d 187, 190 (1983). (Citation omitted). We do not interpret W.Va. Code § 5-11-11 to mean that a complainant may collect multiple incidental damage awards because multiple respondents exist in the case. The circuit court correctly concluded that the amount of incidental damages awarded by the commission was in excess of the amount it may award. We, therefore, hold that when the Human Rights Commission awards incidental damages to a complainant, the limit of damages provided in Bishop Coal Co. v. Salyers, 181 W.Va. 71, 380 S.E.2d 238 (1989), applies per case rather than per respondent.
For the foregoing reasons, the decision of the Circuit Court of Kanawha County is affirmed.