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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
Respondent Below, Appellant,
WEST VIRGINIA HUMAN RIGHTS
COMMISSION and BEVERLY WATTIE
on behalf of KRYSTAL WATTIE,
Complainants Below, Appellees.
Appeal from the Final Order of the
West Virginia Human Rights Commission
Docket Number PAR-282-01
Submitted: April 5, 2005
Filed: July 7, 2005
| James M. Haviland
Robert J. Smith
Pyles Haviland Turner & Smith, LLP
Charleston, West Virginia
Attorneys for Appellant
| Darrell V. McGraw, Jr.
Paul R. Sheridan
Deputy Attorney General
Attorneys for Appellee
JUSTICE BENJAMIN delivered the opinion of the Court.
JUSTICE MAYNARD concurs and reserves the right to file a separate opinion.
CHIEF JUSTICE ALBRIGHT dissents and reverses the right to file a separate opinion.
JUSTICE STARCHER dissents and reverses the right to file a separate opinion.
SYLLABUS BY THE COURT
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 is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a)
and reviews questions of law presented de novo; findings of fact by the
administrative officer are accorded deference unless the reviewing court believes
the findings to be clearly wrong. Syllabus Point 1, in part, Muscatell
v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
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 Comm'n v. United Transp.
Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981). Syllabus
Point 2, Smith v. West Virginia Human Rights Commission, 216 W. Va.
2, 602 S.E.2d 445 (2004).
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 discretion.'
Syllabus Point 2, Shepherdstown Volunteer Fire Department v. State ex rel.
State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d
342 (1983). Syllabus Point 3, Smith v. West Virginia Human Rights Commission,
216 W. Va. 2, 602 S.E.2d 445 (2004).
State has a compelling interest in providing a safe and secure environment to
the school children of this State. Syl. Pt. 3, in part, Cathe A.; see
also Syl. Pt. 3, J.M. v. Webster County Bd. of Educ., 207 W. Va.
496, 534 S.E.2d 50 (2000).
an action to redress unlawful discriminatory practices in employment and access
to 'place[s] of public accommodations' under The West Virginia Human Rights Act, as
amended, W. Va. Code, 5-11-1 et seq., the burden is upon the
complainant to prove by a preponderance of the evidence a prima facie case of
discrimination. . . . If the complainant is successful in creating this rebuttable
presumption of discrimination, the burden then shifts to the respondent to offer
some legitimate and nondiscriminatory reason for the rejection. Should the respondent
succeed in rebutting the presumption of discrimination, then the complainant
has the opportunity to prove by a preponderance of the evidence that the reasons
offered by the respondent were merely a pretext for the unlawful discrimination.'
Syl. pt. 3, in part, Shepherdstown VFD v. W. Va. Human Rights Comm'n, 172
W. Va. 627, 309 S.E.2d 342 (1983). Syllabus Point 4, Conaway v.
Eastern Associated Coal Corporation, 178 W. Va. 164, 358 S.E.2d 423
Virginia public school teachers and school administrators stand in loco parentis to
their students and are authorized to impose appropriate discipline in order to
maintain an orderly environment in the schools necessary to educate our children.
XII, Section 1 of the West Virginia Constitution, which guarantees the right
to a thorough and efficient education, requires West Virginia public schools
and teachers to impose such discipline as is reasonably required to maintain
order in our public
schools and facilitate the education of our children. Where discipline of a
student or students is deemed necessary to the maintenance of an orderly educational
process, West Virginia public schools can and should impose such reasonable
discipline in an even-handed and racially-blind manner. Discipline imposed
upon a minority student 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. Even if discrimination is shown by
a preponderance of the evidence, this Court must then take the next step in
the analysis to determine if there is a legitimate, nondiscriminatory reason
for the discrimination, and if such finding is made, whether the reason is
merely a pretext.
is an appeal of the West Virginia Human Rights Commission's January 30, 2004
Final Order which adopted an Administrative Law Judge's Final Decision dated
August 26, 2003 in its entirety. Upon extensive review of the record before the
West Virginia Human Rights Commission (HRC), together with the briefs
and argument of counsel, we reverse the HRC's January 30, 2004 Final Order for
the reasons set forth below.
FACTS AND PROCEDURAL HISTORY
April 2001, Beverly Wattie filed a complaint (See
with the HRC on behalf of her daughter, Krystal Wattie (See
, a student at Riverside High School in Kanawha County,
West Virginia at all times relevant, against several parties, including the
Appellant Barbara Cobb,
a teacher at Riverside High School. An amended complaint was filed on September
20, 2001 asserting claims of racial harassment and reprisal. The amended complaint
alleges that, on or about December 5, 2000, prior to and continuing, Krystal
Wattie, an African American child, was harassed by her English teacher, Ms.
Cobb, due to her race; that Ms. Cobb continued to engage in racial harassment
after being instructed not to address Krystal Wattie in October 2000; that,
on December 6, 2000, Ms. Cobb informed Krystal Wattie she would have Krystal
expelled from school, get her and the fight was not over;
that Ms. Cobb insisted Krystal Wattie be removed from her class during the
Fall semester of 1999, a move to which Beverly Wattie objected; and that Ms.
Cobb falsely accused Krystal Wattie of not doing her summer reading assignment
as an act of reprisal. The amended complaint also included harassment allegations
against another teacher and allegations of failure to rectify a racially hostile
environment against the Kanawha County Board of Education, Riverside High School
and Principal Richard Clendenin. (See
certain discovery, a public hearing was commenced before an Administrative Law
Judge on January 14, 2003. The hearing continued on January 15, 2003 and was
concluded by the taking of testimony on February 25, 2003. Testimony was taken
from Krystal Wattie, Beverly Wattie, Barbara Cobb, Principal Richard Clendenin,
teachers and administrators at Riverside High School during the time in question
and a Riverside Student, P.B., who was in Ms. Cobb's class and was Krystal's
friend. The testimony provided by these witnesses reveals the following facts.
High School opened in Kanawha County, West Virginia in 1999, before the 1999-2000
school year began. Appellant Barbara Cobb was a teacher at Riverside High School,
teaching Spanish and 9th
Grade English classes that year. Krystal
began her 9th
Grade year at Riverside High School in Fall 1999 when
the school opened. Krystal was placed as a student in Ms. Cobb's second semester,
first block, 9th
Grade English class which began in January, 2000. (See
Krystal admits that she was often late to Ms. Cobb's
class and alleges that Ms. Cobb would then lock her out of the classroom. (See
There is also evidence that Krystal would talk during
class and otherwise be disruptive to the educational process. Krystal also alleges
that Ms. Cobb would confuse her with her friend, A.W., another African American
student in the class. There appears to have been issues with both Krystal's and
A.W.'s conduct in Ms. Cobb's class and in the hallways of Riverside High School,
including tardiness, talking in class, noise and general disruptiveness. Two
meetings were held
between administrators, Ms. Cobb, Krystal and Beverly Wattie regarding the
classroom issues. During the first meeting, Ms. Cobb indicated that her problems
with Krystal in class centered upon Krystal's tardiness and rudeness -- she
expected Krystal to come to class on time, not disrupt class and be prepared.
Beverly Wattie agreed that those expectations were fair. During the second
meeting, it appears that problems were still occurring, although the conduct
had improved. Krystal admits stating race was not an issue during
these meetings. Principal Clendenin testified that Krystal admitted during
one of the meetings that the problems, i.e.
, her behavior in class,
were because she did not like Ms. Cobb and that race was not mentioned until
the end of the 2000-2001 school year. The problems apparently continued and,
eventually, both Krystal and A.W. were given the option of being transferred
from Ms. Cobb's class. A.W. accepted the transfer, Krystal chose to remain
in Ms. Cobb's class.
Krystal's time in Ms. Cobb's 9th
Grade English class, an incident
occurred on or about March 22, 2000, in the school's library regarding the turning
in of class notebooks for grading. Prior to leaving Ms. Cobb's classroom to go
to the library, Ms. Cobb informed the class that they could turn in their notebooks
to be graded for extra credit. Not having their notebooks with them, Krystal
and P.B. went to their lockers before continuing on to the library. According
to Krystal, the incident began when she asked Ms. Cobb for a copy of the syllabus
(or rubric) that she was using to grade so she could get her notebook
ready. (See footnote 6)
incident continued with voices being raised and Krystal leaving the library.
Ms. Cobb and Krystal's friend, P.B., stated that Krystal's departure from the
library was without permission. Krystal maintains she was told to go to the
office. (See footnote 7)
received two days ALC (See
from the administration as discipline for this incident.
also maintains that Ms. Cobb denied receiving Krystal's summer reading assignment
resulting in Krystal not receiving a grade for the same. (See
Krystal maintains the assignment was timely turned in.
Ms. Cobb maintains there is no record that it was ever turned in. Krystal also
alleges that Ms. Cobb frequently sent her to the office from class, that Ms.
Cobb would respond to her questions in class by stating it was not the right
time to ask, and that Ms. Cobb would refuse to give her make-up work after an
absence without the intervention of an administrator. Ms. Cobb remained Krystal's
Grade English teacher until late March 2000, when Ms. Cobb took
leave to undergo cancer treatment.
also indicates that Riverside High School was experiencing problems with excessive
noise in hallways during its first few years. The excessive noise complaints
centered primarily upon a group of students which included Krystal. This included
complaints of students in halls during Jump Start (See
and classes. The excessive noise in the hallways was
primarily being experienced in the hallway where both Ms. Cobb's classroom and
Krystal's locker were located. It appears the administration tried to address
this problem with increased faculty presence and monitoring in the hallways.
It also appears that the group of students, including Krystal, were given a talk by
members of Riverside High School's administration regarding proper conduct.
returned to Riverside in Fall 2000 at the beginning of the 2000-2001 school year.
Krystal was not a student in any of Ms. Cobb's classes at this time. However,
her locker remained near Ms. Cobb's classroom door. The record reveals that problems
between the two continued, particularly in the hallway near Ms. Cobb's classroom.
The record reveals several incidents occurring during the Fall 2000 semester,
some of which were witnessed by other teachers or administrators. These incidents
included Krystal and her friends making comments to the affect of just
let her say something when Ms. Cobb would
pass. In addition, at times, Krystal and her friends virtually blocked Ms.
Cobb's path in the hallway. One incident resulted in Ms. Hopkins, another teacher,
taking Krystal away from a confrontation with Ms. Cobb and counseling Krystal
not to have a conversation with Ms. Cobb outside the presence of an administrator.
There is conflicting evidence on the record as to how the confrontation began,
whether Krystal approached Ms. Cobb or vice versa. However, it appears the
discussion included Krystal inquiring about Ms. Cobb's talking about her.
It is undisputed that after Ms. Hopkins took Krystal away, Ms. Cobb approached
the two and stated something to the effect that it was a good thing Ms. Hopkins
came along when she did because she (Ms. Cobb) did not know what would have
the primary hallway incidents occurred on or about October 11, 2000, during the
Jump Start period when Ms. Cobb noticed several students at their lockers and
instructed them to go to Jump Start. (See
Krystal was one of the students at her locker at that
time and admitted to ignoring Ms. Cobb's instruction to get out of her locker
and move on to class. When Krystal finally exited her locker and started toward
class, Ms. Cobb inquired as to why she had not listened when instructed to get
out of her locker. Krystal's notes regarding this incident indicate that she
did not get out because she was not finished and that she inquired of Ms. Cobb
why she (Ms. Cobb) did not say anything to anyone else in the
hallway at the time. Ms. Cobb asserts that Krystal approached her after leaving
the locker, asked why are you like this, you always got to say something, made
several other comments and flailed her fingers in Ms. Cobb's face.
Krystal testified that she (Krystal) said come on, let's go, I'm going
to the office. Krystal and her friend, M.A., then proceeded to the office,
followed by Ms. Cobb. On the way to the office, Krystal, M.A., and Ms. Cobb
passed a classroom where Krystal's mother, Beverly Wattie, was holding an Upward
Bound meeting. Krystal and Beverly Wattie testified that Ms. Cobb asked Beverly
Wattie if she was going to let her daughter (Krystal) treat her (Ms. Cobb)
like this. (See footnote
Upon arriving at the school office, Krystal remained with administrators
and Ms. Cobb was instructed to return to her first block class. After completing
her Upward Bound meeting, Beverly Wattie joined her daughter in the school
office and then together proceeded to Ms. Cobb's classroom.
class instruction time, Beverly Wattie entered Ms. Cobb's classroom and crossed
the room to her desk, where Ms. Cobb was seated and taking roll. Though the parties
related somewhat inconsistent details, it appears that Beverly Wattie requested
to talk with Ms. Cobb or to schedule a meeting (presumably during Ms. Cobb's
planning time). Ms. Cobb indicated that any meeting would need to be during her
planning time. Although
Krystal denies saying anything to Ms. Cobb during this time, Beverly Wattie
admits her daughter said something and that she was told to stop by her mother.
Ms. Cobb alleges both Krystal and Beverly Wattie were making derogatory remarks
about Ms. Cobb in front of the class, including calling her a two-year old
and that she was acting like a student. It is also undisputed that Ms. Cobb
called the office twice during this time to have the Watties removed from her
classroom. The administrator who responded informed Beverly Wattie that she
should not deal unprofessionally like this and that she could not
enter teachers' classrooms during class time. (See
At the direction of Ms. Cobb, her students recorded
what they had witnessed. (See
incident occurred involving Krystal Wattie, Beverly Wattie and Ms. Cobb outside
Ms. Cobb's classroom on or about December 5, 2000. According to Ms. Cobb, she
heard noise in the hall during class, looked out and saw the Watties. She claims
to have closed the door and, a short time later saw Beverly Wattie through the
small window in her door. She then claims to have opened the door and asked Beverly
Wattie if she could help her. She claims Ms. Wattie responded by instructing
her to go back to class and teach, that it was not her (Ms. Cobb's) concern what
she (Beverly Wattie) was doing. Ms. Cobb noted
that Beverly Wattie was not wearing a visitor's pass. Ms. Cobb claims to have
returned to the classroom and called the office regarding a parent peering
in her classroom and making remarks to her. She also admits to returning to
the hallway where heated words were exchanged. According to Beverly
Wattie, the incident occurred as she was walking down the hallway by herself
when Ms. Cobb came out of the classroom and confronted her regarding not wearing
a visitor's pass. Beverly Wattie testified that Ms. Cobb told her that teachers
had told her (Ms. Cobb) what Beverly Wattie had said about Ms. Cobb to other
teachers. Beverly Wattie admits telling Ms. Cobb to go back in her classroom
and teach and to stop acting like a two-year old. Ms. Wattie also testified
that an administrator, Ms. Switzer, came down the hall and tried to coax Ms.
Cobb back into her classroom. Ms. Switzer, called as a witness by the Commission,
testified to recalling little regarding the incident. According to Ms. Switzer,
Ms. Cobb may have been in her room at the time Switzer arrived. (See
While the majority of incidents occurred
during the Fall 2000 semester, the most serious incident occurred on March 31,
2001 during a school play. Both Ms. Cobb and Krystal were in attendance at the
school play being held in Riverside High School's
auditorium on March 31, 2001. During the second intermission, Ms. Cobb went
to an empty ladies room. While Ms. Cobb was in a stall, Krystal entered the
restroom while talking on her cell phone. Krystal and Ms. Cobb's versions of
what occurred next are somewhat divergent. According to Ms. Cobb, she waited
to see if Krystal would leave before exiting the stall. When Krystal did not
leave, Ms. Cobb exited the stall and proceeded to the sink area to wash her
hands. According to Ms. Cobb, she was edged toward the sink furthest from the
door by Krystal's movements as Ms. Cobb was attempting to avoid contact with
Krystal. After washing and drying her hands, Ms. Cobb testified that Krystal
accused her of coming too close to her (Krystal) as Ms. Cobb was attempting
to exit the ladies room. Ms. Cobb testified she initially ignored the comment
and Krystal continued screaming her name, asking why she was not answering
her (Krystal), and making comments regarding Ms. Cobb's age. According to Ms.
Cobb, she responded to Krystal's comments by stating I just came in here
to use the bathroom, that's all. Ms. Cobb testified that she asked two
students who had entered the restroom to go get help.
to Krystal, Ms. Cobb left the stall, washed her hands and bumped into Krystal
as she went to dry her hands. Krystal testified that Ms. Cobb did not respond
when Krystal asked her why did you touch me with all this room in this
restroom. According to Krystal, Ms. Cobb did not immediately respond, but
dried her hands before saying you're (Krystal) not always right. At
that point, Krystal states they got into an
argument. Krystal admits asking Ms. Cobb why Ms. Cobb had a grudge against
her. According to Krystal, Ms. Cobb responded that she did not hold a grudge,
that you (Krystal) just always think you're right and who do you think
you are. Krystal then stated two girls came in and Ms. Cobb asked them
to go get help.
agree that after Ms. Cobb asked the girls to get help, Jacqueline Switzer, a
Riverside High School administrator, came into the restroom. Upon Ms. Switzer's
arrival, Ms. Cobb told Ms. Switzer what had occurred. According to Krystal, while
Ms. Switzer was present and listening to Ms. Cobb, Ms. Cobb was also physically throwing
her body all on me, pushing Krystal backwards. Krystal also stated that
Ms. Cobb accused Krystal of hitting her (Ms. Cobb). According to Ms. Cobb, Krystal shouldered her
while she was telling Ms. Switzer how Krystal had tried to block her passage
to leave the restroom. Ms. Cobb also testified that Ms. Switzer acknowledged
witnessing Krystal shoulder Ms. Cobb in the restroom. In her testimony
and report (See footnote
regarding the incident, Ms. Switzer relates that when she entered
the restroom, both Krystal and Ms. Cobb were shouting. Ms. Cobb then reenacted what
had happened for Switzer. Ms. Switzer's report and testimony are contradictory
about whether physical contact (See
did take place during the reenactment. A
second teacher, Rebecca Burch, testified to entering the restroom after hearing
screaming. Ms. Burch testified that she saw Krystal pushing Ms. Cobb with her
shoulder. After the shouldering incident, Ms. Cobb left the restroom
and called police to report an assault. Ms. Switzer then took Krystal to the
gym. Ms. Switzer did not allow police to speak to Krystal that evening.
from the record that Krystal was assigned an escort to walk with her between
classes after this incident. (See
Various other incidents, too numerous to discuss in
detail herein, were related in the record. However, testimony regarding the above
incidents was provided in detail and provides a good overview of the situation
underlying the present action. After taking testimony and considering briefs
submitted by the parties, the Administrative Law Judge made findings and entered
a Final Decision on August 23, 2003, which found Ms. Cobb had discriminated against
Krystal on the basis of race, awarded Krystal $500.00 in damages and assessed
$1,426.31 in costs incurred by the HRC in prosecuting the claims against Ms.
Cobb. Ms. Cobb appealed the August 23, 2003 Final
Decision to the HRC. The HRC affirmed the Administrative Law Judge's findings
and adopted the same as its own by Final Order dated January 30, 2004. We accepted
Ms. Cobb's appeal of the HRC's Final Order by Order dated September 2, 2004.
STANDARD OF REVIEW
appeal may properly be characterized as challenging the HRC's findings of fact,
application of law to facts and conclusions of law. Pursuant to W. Va. Code § 5-11-11
(1989), appeals from an order issued by the HRC may be brought directly to this
Court, instead of first being reviewed by the circuit court pursuant to W. Va.
Code § 29A-5-4 (1998). (See
Where an appellant exercises the statutory option to
by-pass the circuit court and directly appeal a HRC Order to this Court, we have
generally applied the same standards of review as those required to be applied
by the circuit court in an administrative appeal while not specifically holding
that the same are applicable. Therefore, we now hold that where an appeal from
an Order issued by the West Virginia Human Rights Commission is brought directly
to this Court, 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. Thus, upon review, this Court is bound by the statutory
standards contained in W. Va. Code § 29A-5-4(a) and reviews questions
of law presented de novo;
findings of fact by the administrative officer
are accorded deference unless the reviewing court believes the findings to
be clearly wrong." Syl. Pt. 1, in part, Muscatell v. Cline,
W.Va. 588, 474 S.E.2d 518 (1996). See also Smith v. West Virginia Human
, 216 W. Va. 2, 602 S.E.2d 445, 449 (2004) (same). We
have also noted that an administrative law judge's application of law to the
facts is reviewed de novo
. See Martin v. Randolph County Bd. of Educ.
195 W. Va. 297, 304, 465 S.E.2d 399, 406 (1995) (involving appeal taken
from West Virginia Employees Grievance Board and noting similarity between
standards of review applicable to decisions under W. Va. Code § 18-29-7
(Employees Grievance Board) and W. Va. Code § 29A-5-4(g) (Administrative
Procedures Act)). '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 Comm'n v. United Transp. Union, Local No. 655,
167 W. Va.
282, 280 S.E.2d 653 (1981). Syllabus Point 2, Smith v. West Virginia
Human Rights Commission
, 216 W. Va. 2, 602 S.E.2d 445 (2004).
we cited with approval the standard set forth in Shepherdstown Volunteer Fire
Department v. State ex rel. State of West Virginia
, 172 W. Va. 627,
S.E.2d 342 (1983), as applicable to this Court's review of orders issued by
the HRC. In syllabus point 2 of Shepherdstown Volunteer Fire Department
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 discretion.
Syl. Pt. 2, Shepherdstown Volunteer Fire Department. With these principles
in mind, we examine the Administrative Law Judge's August 23, 2003 Final Decision
which was adopted in its entirety by the HRC on January 30, 2004.
Final Order finds in favor of Krystal and Beverly Wattie on their complaints
of racial discrimination and reprisal asserted against Barbara Cobb, a teacher
at Riverside High School. Through its adoption of the Administrative Law Judge's
Decision, the HRC found as a matter of fact and of law, that [Ms. Cobb]
created a racially hostile environment for [Krystal], which interfered in [Krytal's]
enjoyment of equal access to the public accommodation of public schooling.
Court shall reverse
or modify the order or
decision of the [HRC] if the substantial rights of the [Appellant] have been
prejudiced because the administrative findings, inferences, conclusions, decisions,
or order are: '. . . (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
discretion.' Syl. Pt. 2, Shepherdstown Volunteer Fire Department
added). This Court's review of many of the material findings of fact and conclusions
of law made by the Administrative Law Judge and adopted by the HRC reveals the
findings and conclusions are not supported by evidence on the record and are clearly
wrong in view of the reliable, probative and substantial evidence on the whole
record. As demonstrated by the following discussion of several findings
and conclusions made by the Administrative Law Judge and adopted by the HRC,
a disturbing number of the findings and conclusions are arbitrary, capricious
and characterized by abuse of discretion. Collectively, the type and number of
blatant errors in the findings below by the Administrative Law Judge greatly
trouble the Court and raise profound questions regarding the fundamental fairness
afforded Ms. Cobb, individually, and the school system generally in the administrative
the Administrative Law Judge, in Finding of Fact 5, states: Principal Clendenin
admitted that Respondent was in conflict with the African American students in
her second semester 9th Grade English Class, and that his suggestion
was to remove the African-American students from Respondent's class. The
record reveals that there were at least four and possibly more African American
students in Ms. Cobb's second semester 9th Grade English Class. Principal
Clendenin actually testified that there were problems with only one or two African
American students in the class besides Krystal. Only Krystal and A.W. were given
the option of being removed from the class. This Court can find no testimony
by Principal Clendenin or P.B., another African American student in the class
and a friend of Krystal, that there was conflict with all the African American
students in Ms. Cobb's class. The only testimony regarding conflict with all African
American students in the class was offered by Krystal.
finding of Fact 6 states: Assistant Principal Potter testified credibly
that Respondent sent discipline slips for Complainant [Krystal] for being part
of a group of African American students who were too loud and disruptive in the
hallways. Ms. Potter's specific testimony was:
let me ask this, let's get this straight. Were you ever _ did you ever get any
disciplinary forms from Ms. Cobb concerning Krystal Wattie?
know that she and I verbally talked. As for writing, I don't have those records
in front of me. They would be input into the computer under the County system,
but to testify that, yes, I directly received something in writing, I can't recall
Further, Ms. Potter testified that she doesn't recall Ms. Cobb ever discussing
race when discussing noise caused by a group of students in the
hallways. Moreover, Ms. Potter testified that she did not believe Ms. Cobb's
complaints regarding the noise from this group were unfounded as she had received
complaints from other teachers and had witnessed the behavior herself.
Finding of Fact 7 states: During the first nine weeks that Respondent taught,
according to Principle Clendenin, [Krystal] had a B in the Respondent's 9th Grade,
2nd Semester English Class, even though she was number one in the
class as far as the graded assignments that were posted. Actually, Principal
Clendenin's testimony is silent as to any reference to Krystal's grades in Ms.
Cobb's English Class. This finding's correct
reference in the record is not to Principal Clendenin, but instead, Krystal
herself. (See footnote
20) There is simply no other basis for this finding in the record.
Finding of Fact 10, in discussing the library incident, states: This precipitated
a big argument between Complainant and Respondent, with the Complainant being
taken to the office. To the contrary, the record, including part of Krystal's
own testimony and that of P.B., her friend, indicates that Ms. Cobb did not take
Krystal to the office (Krystal alleges that she was told to go the office, a
statement contradicted by both P.B. and Ms. Cobb), but that Krystal left the
library voluntarily against Ms. Cobb's instruction.
Finding of Fact 13 states: When Complainant and her African American friends
were attending football games, Respondent complained that they were staring at
her and on one occasion, that she saw [Krystal] mouth the word 'you B****'. Principle
Clendenin threatened her [Krystal] with expulsion and instructed them to remain
by the gate, away from Respondent. Principal Clendenin never mentioned
expulsion in any context at any time during his testimony. The only mention of
expulsion in the entire record was the following testimony by Krystal:
that tenth grade year, did Ms. Cobb ever make any comments to you about expulsion?
don't recall anything?
Moreover, only one football game was mentioned during the hearing. Krystal
did not testify that Mr. Clendenin had stated Ms. Cobb accused Krystal of making
the alleged comment. The only possible basis for any part of Finding of Fact
13 was the testimony of P.B., who was with Krystal at a football game. The
actual record shows that P.B. testified that Ms. Cobb had alleged A.W., not
Krystal, made the comment referred to by the Administrative Law Judge. Furthermore,
P.B.'s testimony is silent as to any reference to expulsion.
Finding of Fact 21 states: The Complainant was continually being sent to
the office for being at her locker during the jump start period. The record
reveals only one incident, discussed above, where Krystal went to the office
after Ms. Cobb caught her at her locker during Jump Start. As indicated above,
Krystal admits going to the office on her own accord and being followed by
Ms. Cobb. Krystal also testified that Principal Clendenin made notes each
time she was sent to the office. Although the HRC called several Riverside High
School administrators, including Principal Clendenin, as witnesses at the hearing,
the testimony of these witnesses does not support any finding that Krystal was continually
being sent to the office by Ms. Cobb. In fact, to the contrary, both Principal
Clendenin and Ms. Potters testified that referrals to the office by Ms. Cobb
were not frequent. Office documentation regarding office referrals, particularly
Principal Clendenin's notes, was not introduced into evidence nor discussed during
the testimony of the administrators.
Law Judge's Order Discussion is also suspect. In this regard, the Administrative
Law Judge notes, Respondent's consistent refusal to provide [Krystal] with
make up assignments and her failure to accurately record and grade [Krystal's]
work is indicative of racial bias. The record instead reveals only one
instance where Ms. Cobb allegedly refused to provide Krystal with a make-up assignment (See
footnote 21) and one incident
where Ms. Cobb allegedly failed to accurately record and grade her work (the
summer reading assignment). It is unclear what the basis is for the reference
to a consistent refusal, in this discussion.
Order Discussion states: Respondent continually was sending both AW and
[Krystal] to the office for offences which did not result in white students being
disciplined similarly. To the contrary, the record reveals that more white
students were referred to the office by Ms. Cobb than were African American students
for similar offenses.
Discussion states further: Respondent made several references to fear of
violence from [Krystal] and [Beverly] which simply had no explanation other than
as a stereotype of African Americans generally. The Administrative Law
Judge provides no support for this finding. This finding is directly contradicted
by the incidents related above and the testimony of other witnesses that Ms.
Cobb attempted to avoid any contact with Krystal.
Order Discussion states: Whether or not
Respondent, Ms. Cobb, consciously believes that she is racially discriminating,
the fact that all four African American Students were given the 'opportunity'
to remove themselves from her class, clearly indicates that a racial issue existed
in fact for her students, notwithstanding
that only one of the four elected to leave. As noted above, the testimony
reveals that only two students, Krystal and A.W., were provided with the option
of transferring from Ms. Cobb's class.
Order Discussion states: The efforts of Respondent to discipline [Krystal]
for being in the halls during jump start, even after being informed that she
should not engage in hall monitoring duties or interact with [Krystal] by the
principal, clearly reeks of retaliation for filing of the Human Rights complaint. The
incident where Ms. Cobb attempted to discipline Krystal for being in the halls
during Jump Start occurred on or about October 11, 2000. The initial complaint
in this matter was not filed until April 2001, nearly six months later. (See
footnote 22) This Court cannot fathom how an incident occurring nearly
six months prior to the filing of a complaint can be deemed to clearly
reek of retaliation for filing the complaint. At a minimum, this reference
highlights a disturbing pattern of exaggerations and outright inaccuracies by
the Administrative Law Judge below, errors which raise for us troubling questions
regarding the fundamental fairness and justice accorded Ms. Cobb in the hearing
underlying the instant appeal. (See
Court cannot and will not condone misrepresentations of facts erected by judges,
administrative or otherwise, as foundations for what can only be seen on review
as judging to reach a predetermined result -- here, a finding of discrimination.
We observe that these distortions seemed to occur mainly in the findings of fact which
serve as the basis to justify a determination of discrimination.
of the above identifications of misrepresentations of the record in the factual
findings relied upon below, this Court has no choice but to find the Final Order
issued by the HRC clearly wrong in view of the reliable, probative and substantial
evidence on the whole record. It is arbitrary, capricious and characterized by
an abuse of discretion and we reverse the same.
then becomes whether to simply reverse the HRC's Final Order or to reverse and
remand the matter for the reconsideration of the actual evidence on the record.
In making this determination, we look to see whether there is some evidence on
the record which could support a finding in favor of Krystal and Beverly Wattie
if this matter is remanded for reconsideration and the issuance of findings of
fact and conclusions of law which are actually supported by some evidence in
the record. Previously, this Court has held:
an action to redress unlawful discriminatory practices in employment and access
to 'place[s] of public accommodations'
under The West Virginia Human Rights Act, as amended, W. Va. Code, 5-11-1 et
seq., the burden is upon the complainant to prove by a preponderance
of the evidence a prima facie case of discrimination. . . . If the complainant
is successful in creating this rebuttable presumption of discrimination, the burden
then shifts to the respondent to offer some legitimate and nondiscriminatory
reason for the rejection. Should the respondent succeed in rebutting the
presumption of discrimination, then the complainant has the opportunity
to prove by a preponderance of the evidence that the reasons offered
by the respondent were merely a pretext for the unlawful discrimination.
Syl. pt. 3, in part, Shepherdstown VFD v. W. Va. Human Rights Comm'n, 172
W. Va. 627, 309 S.E.2d 342 (1983).
Syl. Pt. 4, Conaway v. Eastern Assoc. Coal Corp., 178 W. Va. 164,
358 S.E.2d 423 (1987) (emphasis added). Further,
order to make a prima facie case of discrimination in a place of public accommodation,
the complainant must prove the following elements: (a) that the complainant is
a member of a protected class; (b) that the complainant attempted to avail himself
of the accommodations, advantages, privileges or services of a place
of public accommodation; and (c) that the accommodations, advantages, privileges
or services were withheld, denied or refused to the complainant.
Syl. Pt. 1, K-Mart Corp. v. West Virginia Human Rights Comm'n, 181 W. Va.
473, 383 S.E.2d 277 (1989). In K-Mart, 181 W.Va. at 477, 383 S.E.2d
at 281, fn. 6, quoting Conaway, 178 W. Va. at 171, 358 S.E.2d
at 430, we stated that the non-discriminatory reason given in rebuttal need
not be one which the judge or jury would have acted upon and can
be any other reason except that the [complainant] was a member of a protected
class. In order to overcome a showing of non-discriminatory reason, the
complainant must demonstrate by a preponderance of evidence that the
claimed non-discriminatory reason was merely a pretext. Syl. Pt. 4, Conaway.
Pretext may be demonstrated by showing that the articulated reasons were implausible.
Syl. Pt. 5, Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457
S.E.2d 152 (1995) (holding that after a non-discriminatory justification for
action is articulated, a plaintiff need not show more than the articulated
reasons were implausible and, thus, pretexual in order to defeat a motion
for directed verdict).
if we were to assume that a prima facie case of discrimination was established, (See
footnote 24) Appellant has presented ample evidence of a non-discriminatory
reason for the actions taken against Krystal, i.e., imposition of discipline
for unacceptable behavior by a high school student. Findings relating to the
bad behavior of student Krystal Wattie, including problems with noise, tardiness,
comments made to Ms. Cobb, and the complaints of other teachers regarding Krystal's
behavior, are amply supported by the testimony of various witnesses, including
Krystal's own testimony. W. Va. Code § 18A-5-1, which governs
a teacher's authority, provides, in part:
The teacher shall stand in the place of the parent(s), guardian(s) or custodian(s)
in exercising authority over the school and shall have control of all pupils
enrolled in the school from the time they reach the school until they have returned
to their respective homes[.]
. . .
The teacher shall have authority to exclude from his or her classroom or school
bus any pupil who is guilty of disorderly conduct; who in any manner interferes
with an orderly educational process; who threatens, abuses or otherwise intimidates
or attempts to intimidate a school employee or a pupil; or who willfully disobeys
a school employee; or who uses abusive or profane language directed at a school
. . .
For the purposes of this section: (1) Pupil or student shall include
any child, youth or adult who is enrolled in any instructional program . . .
under public school direction [.] . . . and (2) teacher shall mean
all professional educators as defined in section one, article one of this chapter[.]
According to this statute, Ms. Cobb stands in loco parentis
to her students
and was authorized and, arguably, required to impose appropriate discipline
when and where needed. (See
footnote 25) See
Syl. Pt. 4, Smith v. W. Va. State
Bd. of Educ.
, 170 W. Va. 593, 295 S.E.2d 680 (1982) (holding in
doctrine codified in W. Va. Code § 18A-5-1 does
prohibit certain forms of physical punishment in disciplining public school
students); Rogliano v. Fayette Cnty Bd. of Educ.
, 176 W. Va. 700,
705, 347 S.E.2d 220, 226 (1986) (Neeley, J., dissenting) (recognizing that teachers
are not merely instructors in sciences and letters. They are authority figures,
role models, behavioral examples, surrogate parents. After a fashion, teachers
stand in loco parentis. Children learn much more from their teachers than the
quadratic equation and the proper spelling of 'dirndl'--they learn important
values and morals. One of the most important values children learn from their
teachers is respect for the law.). Thus, we hold, West Virginia public
school teachers and school administrators stand in loco parentis
their students and are authorized to impose appropriate discipline in order
to maintain an orderly environment in the schools necessary to educate our
is the cornerstone of our society. Article XII, Section I of the West Virginia
mandates that [t]he legislature shall provide, by general
law, for a thorough and efficient system of free schools. The mandatory
requirements of 'a thorough and efficient system of free schools' found in Article
XII, Section 1 of the West Virginia Constitution, make education a fundamental
constitutional right in this State. Syl. Pt. 3, Pauley v. Kelly,
W. Va. 672, 255 S.E.2d 859 (1979); Syl. Pt. 1, Cathe A. v. Doddridge
County Bd. of Educ.
, 200 W. Va. 521, 490 S.E.2d 340 (1997). Moreover,
this Court has recognized, on several occasions, that the State has a compelling
interest in providing a safe
and secure environment
to the school children of this State. Syl.
Pt. 3, in part, Cathe A.
(emphasis added); see also
3, J.M. v. Webster County Bd. of Educ.
, 207 W. Va. 496, 534 S.E.2d
In Phillip Leon M. v. Greenbrier County Board of Education
199 W. Va. 400, 484 S.E.2d 909 (1996) we held, in syllabus point 4:
within the West Virginia constitutional guarantee of a 'thorough and efficient
system of free schools' is the need for a safe and secure school environment.
Without a safe and secure environment, a school is unable to fulfill its basic
purpose of providing an education.
Syl. Pt. 4, in part, Phillip Leone M.
; Cathe A.
, 200 W. Va.
at 528, 490 S.E.2d at 347, quoting
, Phillip Leone M..
, we likewise noted:
by a student, whether in class or out, whether it stems from the time, place,
or type of behavior, which materially disrupts classwork or involves the substantial
disorder or invasion of the rights of others, is not constitutionally immunized.
An individual does not have the right to exercise his fundamental constitutional
rights at all times, under all circumstances, and by all methods.
, at 528, at 347, quoting
, Keith D. v. Ball,
W. Va. 93, 95, 350 S.E.2d 720, 722- 23 (1986)(internal citations omitted).
with providing a safe and secure environment and providing a thorough and
efficient education is the ability to maintain order and discipline in
the classroom and hallways of our public schools. Where a student's unruly behavior
is left unchecked, the student infringes upon other students' rights to a thorough
and efficient education. Thus, one of the paramount responsibilities of
a teacher is to maintain order and discipline while instructing students on the
academic subjects. An orderly learning environment is absolutely necessary for
teachers to teach and for students to be able to learn. Such discipline also
prepares students for life. In J.M, we recognized that almost any
student charged with any violation at school is likely to make all manner of
excuses for his or her actions. J.M., 207 W. Va. at 503, 534
S.E.2d at 57. Discipline should be imposed where appropriate to maintain order
in our public schools and to facilitate all students' educational experiences.
This is not to say that discipline may be imposed in a discriminatory manner
or for discriminatory reasons. Rather, discipline in schools which is imposed
in a nondiscriminatory manner should not be discouraged where it is deemed to
be necessary for the maintenance of an appropriate learning environment in West
we hold that Article XII, Section 1 of the West Virginia Constitution, which
guarantees the right to a thorough and efficient education, requires West Virginia
public schools and teachers to impose such discipline as is reasonably required
maintain order in our public schools and to facilitate the education of our
children. Where discipline of a student or students is deemed necessary to
the maintenance of an orderly educational process, West Virginia public schools
can and should impose such reasonable discipline in an even-handed and racially-blind
manner. Discipline imposed upon a minority student 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.
Even if discrimination is shown by a preponderance of the evidence, this Court
must then take the next step in the analysis to determine if there is a legitimate,
nondiscriminatory reason for the discrimination, and if such finding is made,
whether the reason is merely a pretext.
of the record in this case indicates that even if one were to conclude that the
Watties met their initial burden, the HRC cannot establish pretext by a preponderance
of the evidence. (See footnote
26) Krystal admits Ms. Cobb was not the only teacher or administrator
to discipline her or complain about her presence and noise in the hallways. Krystal
also admits to confronting Ms. Cobb on a number of occasions and to being tardy
for class. Our review of the record as a whole and in the light most favorable
to the HRC on behalf of Krystal and Beverly Wattie does not reveal sufficient
evidence to prove that Ms. Cobb's attempts to
discipline Krystal were more likely than not due to Krystal's race or that
such discipline was imposed in a racially discriminatory manner. To the contrary,
the record reveals a compelling case for the need of appropriate discipline
in this case. Therefore, remand is not necessary.
we are reversing the HRC's January 30, 2004 Order in the instant matter, this
Court recognizes the important role the HRC plays in attempting to rid our society
of unlawful discriminatory conduct. No person, including a high school student,
should be subject to unlawful discrimination. However, there must be proof sufficient
to meet the standards previously articulated by this Court that unlawful discrimination
actually have occurred before liability may be imposed. Otherwise, the legitimacy
of the HRC will be brought into question, putting at risk the vital and important
role served by the HRC. The HRC must ensure that its decisions are made in a
fair and even-handed manner, and, unlike here, based on the actual evidence
introduced on the record before it.
find the January 30, 2004 Final Order issued by the West Virginia Human Rights
Commission herein to be clearly wrong in light of the reliable, probative and
substantial evidence within the whole record and further find said Order to
be arbitrary, capricious and characterized by an abuse of discretion. Our review
of the record as a whole indicates a lack of evidence sufficient to demonstrate
pretext by a preponderance of evidence when viewed in the light most favorable
to the complainants. (See
Therefore, the January 30, 2004 Final Order of the
West Virginia Human Rights Commission is reversed.
April 2001 complaint was not included in the record forwarded to this Court
by the HRC.
Wattie was a minor at the time the original complaint was filed and had reached
the age of majority by the time of the administrative hearings in this matter.
Although this Court will often use initials to identify minor parties where
sensitive issues are involved, see, e.g., In re Stephen Tyler R.
W. Va. 725, 729, 584 S.E.2d 585, fn. 1 (2003), Krystal Wattie was an adult
at the time of the administrative hearings, is a party in interest in this
litigation and has been identified by name by counsel in the filings before
this Court and during oral argument. We therefore identify her by name. However,
to the extent this Court references testimony by or regarding other students
at Riverside High School who are not parties to this action, we will identify
those students by initials only in order to protect their identity.
allegations against these parties were resolved prior to the commencement of
the administrative hearings in this matter and the claims dismissed.
the September 2001 amended complaint alleges that Krystal Wattie was a student
in Ms. Cobb's Fall 1999 9th
Grade English Class, the record, including
the testimony of both Krystal Wattie and Beverly Wattie is clear. Krystal Wattie
was not in Ms. Cobb's English class until the second (Spring) semester.
facts related herein are done so in the light most favorable to Appellees and,
to the extent possible, are based upon the testimony of Krystal and Beverly
Wattie. Facts ascertained from testimony of other witnesses are noted as such.
another student in the class, admitted that a syllabus was given at the beginning
of the semester to show how the notebooks were to be kept during the semester.
Ms. Cobb stated that notebooks were required to be kept current on a daily
one supported Krystal's version of her departure, according to the record.
is a form of in school suspension. There is a suggestion on the record that
Krystal did not serve both days of the imposed discipline.
reading assignments were to be completed by incoming 9th
during the Summer of 1999. Students whose 9th
Grade English classes
did not begin until the second (Spring) semester were not required to turn
in their summer reading assignments until the start of the second (Spring)
Start is a short period of time before the start of regular classes when students
are permitted to catch up on assignments or speak to teachers regarding class
work. Students are not assigned a particular class room for Jump Start, but
are permitted to go to any teacher's class room.
Cobb testified that she said something only after hearing another teacher instruct
the students to get out of their lockers several times without a response.
Wattie testified she was standing near the door to the classroom when Ms. Cobb
passed and made this comment.
Clendenin also testified that after the incident he instructed Beverly Wattie
not to go into teachers' classrooms unannounced and disrupt the educational
process after this incident.
notes authored by the students support Ms. Cobb's version of events.
Ms. Switzer testified:
you remember Ms. Cobb being there?
don't know whether she stayed in her room or if she came out in the hall, I'm
Switzer's report, dated April 5, 2000, references a March 31, 2000 incident.
However, the dates appear to be typographical errors as the record indicates
this incident occurred in 2001.
Switzer testified that she did not recall physical contact. However, in her
report, she indicates physical contact occurred during the re-enactment, but
it was not
record is not entirely clear as to when this escort was assigned. This Court's
review of the record indicates that the escort likely began in April 2001,
as this was the first mention of an escort in various notes authored by Ms.
Cobb. These notes, which were entered into evidence without limitation or objection
as exhibits by the HRC, indicate that Krystal, in April 2001, now has
an escort. Principal Clendenin testified that the escort may have begun before
the restroom incident and that he saw the escort as a protective measure for
Code § 5-11-10 (1994) specifies that all pertinent provisions of W. Va.
Code § 29A-5-1 et seq.
shall apply to and govern the hearing
and the administrative procedures in connection with and following [a] hearing before
the HRC unless otherwise provided in Chapter 5, Article 11. Parties
are not required to appeal to the circuit court, but may elect this option
under three specific circumstances.
a party's recollection of what someone told them (arguably, self-serving hearsay)
is sufficient without more in the eyes of this Administrative Law Judge to
support a finding of fact, then one may reasonably question why the Administrative
Law Judge did not also make a finding of fact that Principal Clendenin advised
Ms. Cobb to seek a restraining order against Beverly Wattie and to file a harassment
complaint against Krystal Wattie. The HRC introduced into evidence, without
limitation, notes authored by Ms. Cobb documenting incidents with Krystal and
the school administration's response thereto. Ms. Cobb's December 6, 2000,
note written after the hallway incident with Beverly Wattie involving the visitor's
pass indicate that Mr. Clendenin advised her to file for a restraining order
against Beverly Wattie and to file a harassment complaint against Krystal.
Moreover, Ms. Cobb heard reports of Krystal stating she would knock the
wig off Ms. Cobb's head one day at the Town Center (Ms. Cobb apparently
wore a wig as a result of treatment for cancer). If hearay is sufficient to
establish a fact, then all semblance of justice is lost. West Virginia law
requires more. HRC proceedings are bound by the West Virginia Rules of Evidence.
W. Va. Code § 29A-5-2(a) (1964); W. Va. Code § 55-11-10
testified that she asked Ms. Cobb for make-up work during class and that Ms.
Cobb told her now is not the time. Krystal then sought intervention
from an administrator to obtain the assignment.
previously noted, the initial April 2001 complaint was not included in the
record submitted to this Court for review. The only complaint contained in
the record before this Court is the September 21, 2001 complaint which is denominated
an amended complaint. This amended complaint was filed
nearly a year after
the incident in question.
errors herein listed are but a subset of those found by this Court in its review
of the Administrative Law Judge's decision. These errors being sufficiently
demonstrative, we choose not to include others.
only possible evidence of racial bias on the part of Ms. Cobb is a comment
made, allegedly referring to Krystal and A.W., that it was in their nature
to be loud.
opinion herein is not inconsistent with our prior decision in Smith
we held, in Syllabus Point 3,
[t]he doctrine of in loco parentis
as contained in W. Va. Code, 18A-5-1, in light of the present day standards
and legislative enactments in the child abuse area cannot be interpreted as
permitting corporal punishment of public school children by means of a paddle,
whip, stick or other mechanical devices.
The generally accepted
meaning of preponderance of the evidence is more likely than not. Jackson
v. State Farm Mut. Auto. Ins. Co.
, 215 W. Va. 634, 640, 600 S.E.2d
346, 352 (2004).
This conclusion is reached
only after assuming arguendo, that the complainant was able to prove a prima
facie case of discrimination.