The respondents, Sue J. Erps and William G. Erps, d/b/a Improvements Unlimited were found by the Human Rights Commission to be liable to their employee, Victor Peoples, for claims of hostile work environment and retaliatory discharge arising from a single June 16, 2004, workplace incident. The HRC ordered the Respondents to pay the Commission's costs in the amount of $1,854.06, and to pay Peoples $24,085.30 in lost wages, $3,813.51 in interest, and the statutory maximum $5,000.00 in incidental damages.
The incident occurred between Victor Peoples, a black employee, and Wayne Bragg, his white coworker. Although there had been no prior tension, arguments or problems between the two, Mr. Peoples picked on Mr. Bragg the morning of June 16, calling him names such as “white trash” and “honky.” According to Mr. Bragg, the racially-charged name calling angered him. Mr. Peoples continued his goading of Mr. Bragg by making fun of the way he talked. At some point, Mr. Peoples criticzed the work Mr. Bragg was doing, and Bragg responded by saying, "You say another word I'll cut your f***ing head off with this shovel, n*****."
The men approached their supervisor, who ordered them back to work in separate locations. Peoples was not satisfied with the response and continued to ask him what he was going to do about Bragg's comment. The supervisor replied, “That's done, over, get back to work.” When Peoples persisted in his demand for immediate action, he was told to get back to work or he was fired. Peoples would not go back to work and he was fired.
Peoples filed a complaint with the West Virginia Human Rights Commission alleging race discrimination and retaliation. After a public hearing, the ALJ entered an order finding the Erps and Improvements Unlimited liable for fostering a hostile work environment, retaliatory discharge for engaging in a protected activity, i.e., complaining about Mr. Braggs' comment which was characterized in the order as sufficiently severe to constitute racial harassment, and retaliation for filing a complaint with the Commission. The HRC ruled in favor of Mr. Peoples, and the Respondents appealed.
Supreme Court Reverses In Part
On appeal, the West Virginia Supreme Court reversed the HRC's monetary damages award, finding that the HRC erred in imposing liability for a racially hostile work environment, and for finding a retaliatory discharge. It affirmed the HRC's finding of post-discharge retaliation, but the HRC had not awarded any damages for that violation, and the Court prohibited it from doing so because the issue was not appealed by Peoples.
Clarification of "Unwelcomeness"
The Court noted that it had not previously addressed what constitutes "unwelcome" conduct in the workplace. "In light of the Commission's findings relative to Mr. Peoples' actions precipitating Mr. Bragg's comments on June 16, 2004, we find it necessary to address this element of a hostile work environment claim further."
In reviewing the racial harassment incident, the Court was careful to note that although the use of the "n" word is deplorable, it does not automatically create a hostile work enviroment. Citing with approval an Oregon Court of Appeals decision in Garcez v. Freightliner Corporation, 72 P.3d 78 (Ore. Ct. App. 2003) (Title VII), the Court noted that "'[M]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII." The court will not assume that even use of the "n" word is unwelcome. Instead, the Court instructed trial coourts to inquire into the "totality of the circumstances, including examination of the plaintiff's own actions."
In new syllabus points 5 and 6, the Court set out a new standard to determine "unwelcomeness" of alleged harassment:
5. In order to constitute harassment and satisfy the first prong of a hostile work environment claim as set forth in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W. Va. 86, 522 S.E.2d 180 (1999), the subject conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.The Court concluded that "[u]nder the established law outlined above, the Commission's order holding the appellants liable for a racially hostile work environment cannot stand. Mr. Peoples failed, as a matter of law, to satisfy the first element of a hostile work environment claim by failing to put forth evidence from which a reasonable fact-finder could conclude that the subject conduct was unwelcome."
6. When a plaintiff bringing a hostile work environment claim pursuant to the standards enunciated in syllabus point 2 of Fairmont Specialty Services v. West
Virginia Human Rights Commission, 206 W. Va. 86, 522 S.E.2d 180 (1999), has solicited, incited or participated in the subject offensive conduct, the plaintiff must introduce evidence indicating (1) that he or she ultimately informed the involved co-workers and/or supervisors that future instances of such conduct would be unwelcome, and (2) that conduct thereafter continued. Where such evidence is produced, a question of fact is created as to whether or not the conduct was unwelcome.
The Court went on to conclude that the HRC was "clearly wrong" in finding that Mr. Peoples was terminated in retaliation for complaining about the harassment. Based on the evidence presented at the public hearing, the Court found that even if Mr. Peoples were able to make out a prima facie case of retaliatory discharge, he presented no evidence that the employer's proffered reason for discharging him (that he refused to get back to work) was pretextual.
Retaliation for Filing His Complaint
The HRC had also found that Improvements Unlimited subjected Mr. Peoples to retaliation for filing a complaint with the Commission through a series of actions such as following him, staring at him and offering him money to dissuade him from pursuing his complaint. (Some details of the conduct appear in footnotes 19 and 20.)
The Court concluded that "[b]ecause the findings on this issue are made upon credibility determinations in light of competing testimony, they are to be afforded deference. Accordingly, we affirm the finding that Mr. Peoples was intimidated and retaliated against for filing his complaint with the Commission." However, because Peoples was not awarded monetary damages for this alleged retaliation and intimidation and did not appeal this aspect of the order below, he was not entitled any monetary award.
The Court specifically ordered that "[t]he Commission may not, hereafter, award monetary damages for this claim because monetary damages were not previously awarded for this specific retaliation claim in the appealed orders and no exception to this lack of monetary damages being awarded on this issue was taken by Mr. Peoples." This resulted in an almost complete victory for the employer.
Justice Benjamin's well-written opinion highlights the importance of the plaintiff's own conduct in contributing to workplace harassment. The HRC and the trial courts cannot simply ignore the Plaintiff's own racially hostile conduct.
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