Town of Romney Housing Authority v. West Virginia Human Rights Commission

406 S.E.2d 434, 185 W. Va. 208

• Court: West Virginia Supreme Court
• Decided: July 31, 1991
• Docket: 19625
• Status: Published

Opinions

PER CURIAM:

This is an appeal by Joan M. Gates from an order of the Circuit Court of Hampshire County entered on February 23, 1989. That order reversed a decision of the West Virginia Human Rights Commission finding that the appellant had been the victim of sex discrimination and awarding her back pay and incidental damages. On appeal, the appellant claims that the record establishes that she was the victim of discrimination and that the circuit court erred in reversing the decision of the Human Rights Commission. After reviewing the record, this Court disagrees. Accordingly, the judgment of the Circuit Court of Hampshire County is affirmed.

In late 1983 or early 1984, there was a vacancy in the office of executive director of the Town of Romney Housing Authority. To fill that vacancy, the Housing Authority placed an advertisement in the Hampshire Review, a newspaper of general circulation in Hampshire County. The advertisement stated that the qualifications for the position were housing management experience and knowledge of the rules and regulations of the Federal Department of Housing and Urban Development. It further indicated that applicants for the position should submit resumes between February 15 and March 5, 1984.

Four persons, two males and two females, applied for the position. The appellant Joan M. Gates, was one of the female applicants.

On March 6, 1984, the Board of Commissioners of the Housing Authority met and considered the candidates, and after approximately an hour of deliberations awarded the position to Dale Moore, a male applicant who had previously been serving as temporary or interim executive director of the Housing Authority. Following the selection, the Housing Authority advised the appellant, by letter dated April 10, 1984, that she had not been selected, but that her resume would be kept on file for one year. The letter also thanked her for her interest in the position.

On June 15, 1984, the appellant filed a complaint with the Human Rights Commission, alleging that she had not been selected for the position as a result of sexual discrimination. In her complaint, she alleged that Dale Moore, the male who had been selected, was a local man with no prior housing experience, and that she had thirteen years experience as a professional paid property manager, in addition to a family background in property management.

After extensive preliminary proceedings, a hearing was held before a Human Rights Commission hearing examiner on May 28, 1986. At the conclusion of that hearing, the hearing examiner found that the appellant was a female who was qualified for the position of executive director. He indicated that the advertisement published by the Housing Authority listed as qualifications housing management experience and knowledge of the rules and regulations of the Federal Department of Housing and Urban Development, but that in making the selection to fill the executive director’s position, the Board considered construction experience as a qualification. He also found that the appellant was more qualified for the position of executive director than was Dale Moore. Specifically, the hearing examiner found that the appellant had thirteen years of hands-on experience in managing multi-unit housing, whereas Moore had only minimal experience in housing management among other duties during his military service. The hearing examiner also found that the appellant had an excellent working knowledge of HUD rules and regulations, whereas Moore had difficulty with the rules and regulations and was required to consult with the executive director of the Keyser Housing Authority concerning such rules and regulations. The hearing examiner stated that because of time pressures the members of the Board failed to review the resumes and applications before them adequately and that, as a result of the Board’s failure to hire her, the appellant was embarrassed and humiliated. The examiner concluded that the appellant had established a prima facie case of sex discrimination and that the reasons given by the Housing Authority for failing to hire her were a mere pretext for discrimination.

On September 10, 1986, the Human Rights Commission reviewed the hearing examiner’s findings and conclusions and largely adopted them. The Commission, in effect, found that the appellant had been a victim of sex discrimination and awarded her back pay and incidental damages.

After the Human Rights Commission rendered its decision, the Town of Romney Housing Authority petitioned the Circuit Court of Hampshire County for review. The court reviewed the record in the case and, by order dated February 23, 1989, reversed the findings of the Human Rights Commission and denied the appellant all relief.

In reversing the decision, the court found that the evidence was not clear that the appellant was rejected, and Dale Moore hired, on the basis of sex. Contrary to what the hearing examiner found, the court noted that Mr. Moore’s recent experience as acting director of the Housing Authority and his work on the project managed by the Authority supported his hiring on the basis of qualification. The court found that the applications of all four applicants were before the Board at the time the hiring decision was made and that about an hour was expended in reviewing the applications. The court concluded that the record showed that the Board knew of Dale Moore’s abilities, dedication, dependability, and interest, and that the evidence did not show that the appellant was more qualified for the position than Mr. Moore.

In the present proceeding, the appellant claims that the trial court erred in reversing the decision of the Human Rights Commission.

Recently in Mingo County Equal Opportunity Council v. State Human Rights Commission, 180 W.Va. 240, 376 S.E.2d 134 (1988), the Court discussed the test to be employed in determining whether discrimination has occurred in situations such as the one involved in the present case.¹ In syllabus point 1, the Court stated:

“In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the plaintiff.

(3) But for the plaintiffs protected status, the adverse decision would not have been made.”

Syl. pt. 3, Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).

The Court went on to state that once a prima facie case of discrimination is established that: “Where a respondent presents a nondiscriminatory reason for the action in question sufficient to overcome the inference of discriminatory intent, the complainant’s prima facie case is rebutted.” Syl. pt. 2, Mingo County Equal Opportunity Council v. State Human Rights Commission, Id. And even where the prima facie case is rebutted: “The complainant may prevail if it is shown the reason presented by the respondent is merely a pretext for a discriminatory motive.” Syl. pt. 3, Mingo County Equal Opportunity Council v. State Human Rights Commission, Id.

After examining the record presently before the Court, this Court believes that the appellant has clearly established that she, as a female, is member of a group protected under the Human Rights Statute, that she applied for the position which was open, and that she was rejected. To counter the appellant’s case, the Town of Romney Housing Authority adduced the testimony of the members of the Town of Romney Housing Authority. From their testimony, it appears that at the time the selection was made the Housing Authority had before it the applications of four individuals, the appellant, Dale Moore, who was ultimately selected, and one other male and one other female. The evidence shows that the members of the Housing Authority discussed all the applications and the qualifications of the applicants over approximately a one-hour period during the selection process. At the conclusion of that period, the appellant was rejected and Dale Moore was selected for the opening which was available. There is no indication that after that point the Housing Authority continued to accept applications of similarly qualified persons.

Contrary to the appellant’s allegations, further testimony in the record demonstrates that Dale Moore did have experience in the management of housing. It shows that while in the Navy, Mr. Moore was stationed in Kingsville, Texas, where it was his job to see that some 125 houses and apartments were occupied and maintained. Further, while he was stationed at Guantanamo Bay, Cuba, he worked in the Public Works Department, which managed some 900 units of family housing. The record also shows that Mr. Moore successfully filled the position of executive director of the Town of Romney Housing Authority, on a temporary or acting basis, for a number of months prior to the selection proceeding.

According to Leona Kidwell, a member of the Housing Authority Board at the time Mr. Moore had become involved in the Housing Authority, the project which the Housing Authority was managing was in trouble. Mr. Moore accompanied the Board members to Washington, D.C. to discuss the project with certain politicians. While there he displayed a good working knowledge of rules and regulations. At another point, she suggested that the Housing Authority’s project had been almost in chaos when Mr. Moore was hired and that Mr. Moore had been instrumental in getting the project back on track. She further indicated that many of the difficulties involved construction, that only sixty units of the two hundred unit apartment project were complete, and the Board knew that Mr. Moore was very familiar with programming construction projects and with programmed maintenance.

This Court believes that the members of the Housing Authority did advance clear nondiscriminatory reasons for selecting Mr. Moore over the appellant. They indicated that the apartments which the executive director was to manage were incomplete and that there were serious construction problems potentially affecting the executive director’s effectiveness. They indicated that, while serving as acting director, Dale Moore had very successfully coped with those problems and that, because of his extensive construction experience in the military, as well as his closeness to the project, they felt especially confident that as full time acting director he could handle like problems. There is some further suggestion that the members of the Housing Authority believed that the Authority might obtain some monetary assistance in paying Mr. Moore’s salary from the Veteran’s Administration because of the fact that Dale Moore was a disabled Viet Nam veteran.

In her brief, the appellant strenuously argues that the selection process was not fair because the Housing Authority considered qualifications other than those contained in its advertisement for the opening. She points to the fact that the advertisement for the opening made no mention of construction experience.

In reviewing the record, this Court believes that the record does suggest that the Housing Authority considered construction experience and that the Housing Authority failed to inquire into the appellant’s qualifications in that area. In a human rights case, however, the question is not whether an employment decision was essentially fair or whether it was made in accordance with pre-established procedures. The question is whether the individual was discriminated against because of race, religion, col- or, national origin, ancestry, sex, age, blindness, or handicap. W.Va.Code, 5-11-2.

Recently, in Currey v. West Virginia Human Rights Commission, 178 W.Va. 471, 360 S.E.2d 387 (1987), the Court indicated that an employer may consider factors other than the specific skills involved in a position description in making a hiring decision. While in that case the Court indicated that the other factors might be such things as overall education, ability to communicate, ability to work with others, physical capacity to perform a job, and interest in and probable dedication to the job, the Court also believes that any description of qualifications for a position must, of necessity, be general, and implied in any such description there must be such qualifications as are reasonably necessary to carry out the general duties.

The vacant position in the present case involved the management of public housing. From the evidence adduced, it is clear that the management involved many construction problems. The Court believes that the ability to manage such construction problems was an implied qualification encompassed within the broader expressed qualification of housing management experience and that the hiring authority reasonably considered it in making the decision.

Overall, the Court believes that a fair reading of the record in the present case indicates that Dale Moore was selected because he had shown that he had the peculiar qualifications necessary to act in the position which was available. In effect, the Town of Romney Housing Authority met the test set forth in syllabus point 2 of Mingo County Equal Opportunity Council v. State Human Rights Commission, Id., and demonstrated nondiscriminatory reasons for hiring Mr. Moore. There is nothing to show, or to raise the reasonable inference, that the reasons advanced constituted a mere pretext for discrimination. Under the circumstances, the Court concludes that the appellant has failed to establish that the Circuit Court of Hampshire County erred in failing to find discrimination and in overruling her human rights award.

The judgment of the Circuit Court of Hampshire County is, therefore, affirmed.

Affirmed.

MILLER, C.J., and McHUGH, J., dissent and reserve the right to file dissenting opinions.

1 . The appellant argues that this case should be decided under the test enunciated in syllabus point 3 of Shepherdstown Volunteer Fire Department v. West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983). That test states that:

In an action to redress unlawful discriminatory practices in employment and access to "placets] 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, which burden may be carried by showing (1) that the complainant belongs to a protected group under the statute; (2) that he or she applied and was qualified for the position or opening; (3) that he or she was rejected despite his or her qualifications; and (4) that after the rejection the respondent continued to accept the applications of similarly qualified persons. If the complainant is successful in creating this re-buttable 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.

In the present case, there is no evidence that after the rejection of the appellant the Town of Romney Housing Authority continued to accept the applications of similarly qualified persons. Thus, the Court believes that the general test set forth in Mingo County Equal Opportunity Council v. State Human Rights Commission, supra, rather than the more fact specific test in the Shepherdstown case, should control this case.