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Hanlon v. Chambers
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1995 Term
No. 22595
IRENE HANLON, Plaintiff Below, Appellant
V.
TERRY CHAMBERS, INDIVIDUALLY AND DBA CHAMBERS CHIROPRACTIC OFFICES, C.C., Defendant Below, Appellee
APPEAL FROM THE CIRCUIT COURT OF BERKELEY COUNTY HONORABLE DAVID H. SANDERS, JUDGE CIVIL ACTION NO. 93-C-967
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: September 13, 1995
                 Filed: October 26, 1995 Lauren Clingan David M. Hammer Robert J. Schiavoni Hammer, Ferretti & Schiavoni Martinsburg, West Virginia Attorneys for Appellant
Barry P. Beck Martin & Seibert Martinsburg, West Virginia Attorney for Appellee
JUSTICE CLECKLEY delivered the Opinion of the Court. RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE ALBRIGHT did not participate. SYLLABUS BY THE COURT
1.
"'A circuit court's entry of summary judgment is reviewed de novo.' Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 1, Jones v. Wesbanco Bank Parkersburg, ___ W. Va. ___, 460 S.E.2d 627 (1995).

2.
"'"'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)."

Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).' Syl. pt. 2, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)." Syl. pt. 2, Jones v. Wesbanco Bank Parkersburg, ___ W. Va. ___, 460 S.E.2d 627 (1995).

3.
In most discrimination cases, once a plaintiff's allegations and evidence create a prima facie case (showing circumstances that permit an inference of discrimination on an impermissible bias), unless the employer comes forward with evidence of a dispositive nondiscriminatory reason as to which there is no genuine issue and which no rational trier of fact could reject, the conflict between the plaintiff's evidence establishing a prima facie case and the employer's evidence of a nondiscriminatory reason reflects a question of fact to be resolved by the factfinder after trial.

4.
Although the plaintiff has the ultimate burden of proving elements of the claim of discrimination by a preponderance of the evidence, the showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is de minimis. In determining whether the plaintiff has met the de minimis initial burden of showing circumstances giving rise to an inference of discrimination, the function of the circuit court on a summary judgment motion is to determine whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the circuit court itself to decide what inferences should be drawn.

5.
To establish a claim for sexual harassment under the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq., based upon a hostile or abusive work environment, a plaintiff-employee must prove that (1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create an abusive work environment; and (4) it was imputable on some factual basis to the employer.

6.
A supervisor is an employee under the West Virginia Human Rights Act, W. Va. Code 5-11-3(e) (1992), at least where the individual is not a partner, owner, or part-owner.

7.
An employee may state a claim for hostile environment sexual harassment if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment.

8.
The West Virginia Human Rights Act, W. Va. Code 5-11-9(1) (1992), imposes a duty on employers to ensure that workplaces are free of sexual harassment from whatever source.

9.
A supervisory employee can state a claim for relief against an employer on the basis of a hostile work environment created by one or more subordinate employees if the employer knew or should have known about the offending conduct, yet failed to take swift and effective measures reasonably calculated to end the harassment.

10.
"'In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant's employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation), (4) that complainant's discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation.' Syl. pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W. Va. 53, 365 S.E.2d 251 (1986)." Syl. pt. 1, Brammer v. Human Rights Commission, 183 W. Va. 108, 394 S.E.2d 340 (1990).

11.
W. Va. Code 5-11-9(7)(C) (1992), prohibits an employer or other person from retaliating against any individual for expressing opposition to a practice that he or she reasonably and in good faith believes violates the provisions of the West Virginia Human Rights Act. Cleckley, Justice:


        The plaintiff below and appellant herein, Irene Hanlon, appeals an order of the Circuit Court of Berkeley County granting summary judgment in favor of the defendant below and appellee herein, Terry Chambers, who was sued individually and through his business, the Chambers Chiropractic Offices, C.C.
I.
FACTUAL AND PROCEDURAL HISTORY

        From January 6, 1992, until April 15, 1993, the plaintiff worked as a Marketing Director at the Chambers Chiropractic Offices, which is owned and operated by Terry Chambers. The precise scope of the plaintiff's responsibilities and supervisory authority is disputed. The plaintiff admits she had the duty to supervise the office, but she denies she had the authority to make personnel decisions and, in particular, to fire other employees without consultation with the defendant, Dr. Chambers. The defendant asserts, however, that the plaintiff "had direct supervisory responsibility for all employees within the Marketing Department, including the authority to hire, discipline and terminate."
        One of the employees supervised by the plaintiff during her employment with the defendant was Jim Embrey. Mr. Embrey was hired during January of 1993, as a part- time hourly employee. The plaintiff asserts she was sexually harassed by Mr. Embrey during her employment with the defendant and she informed the defendant about Mr. Embrey's behavior. Plaintiff stated during her deposition that, on two occasions, she informed the defendant she could handle the situation. She also testified the defendant never did anything to discourage her from disciplining Mr. Embrey.
        In March of 1992, the defendant hired a management consultant to study his chiropractic business. The defendant maintains that the consultant recommended eliminating the plaintiff's position and that the recommendation prompted her subsequent release. On April 9, 1993, prior to the defendant's informing the plaintiff of her layoff, the plaintiff requested a meeting with the defendant and his office manager, Donna Hollida, to discuss Mr. Embrey's actions. The defendant asserts that he investigated the plaintiff's claims immediately after the meeting on April 9, and that he proceeded with his plan to eliminate the Marketing Director position, after concluding there was insufficient evidence to justify the plaintiff's claims of sexual harassment.
        The plaintiff filed her complaint with the Berkeley County Circuit Court on October 4, 1993, alleging two theories: (1) the defendant fired her in retaliation for her complaints about the sexual harassment, and (2) the defendant failed to "maintain a work environment free from sexual harassment by failing to promptly investigate complaints of sexual harassment and by failing to take necessary remedial actions." After limited discoverySee footnote 1, the defendant moved for summary judgment. In a written order dated April 6, 1994, the circuit court granted the defendant's motion finding the plaintiff either had direct supervisory authority, as suggested by the defendant, or at least had the power to recommend personnel decisions to the defendant. The circuit court noted "[s]exual harassment in the workplace is essentially an abuse of power" and thus interpreted the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq., as protecting powerless employees who have no other legitimate avenue of relief. Furthermore, the circuit court held that supervisors, as agents of the employer, have the responsibility to prevent sexual harassment in the workplace. The circuit court reasoned that permitting supervisors to sue employers for the harassment by subordinates would subject employers to the "ultimate 'Catch-22'" by forcing them to hire supervisors to watch supervisors and so on.
        The circuit court thus ruled in favor of the defendant based on its determination that supervisory employees may not maintain a cause of action against an employer for the sexual harassment of the supervisor by a subordinate employee. The circuit court also concluded that complaints about subordinate harassment could not, therefore, be in opposition to "any practices or acts forbidden under" the Human Rights Act. W. Va. Code 5-11-9(7)(C) (1992). As a consequence, the circuit court also dismissed the plaintiff's retaliatory discharge claim. The plaintiff appeals from the entry of the summary judgment.
II.
DISCUSSION
A.
Standard of Review        When considering a circuit court's grant of summary judgment, this Court noted in Syllabus Points 1 and 2 of

Jones v. Wesbanco Bank Parkersburg, ___ W. Va. ___, 460 S.E.2d 627 (1995):                "1. 'A circuit court's entry of summary judgment is reviewed de novo.' Syl. pt. 1, Painter v. Peavy, 192 W.
Va. 189, 451 S.E.2d 755 (1994).
                "2. '"'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).' Syl. pt. 2, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)."
A motion for summary judgment may not be granted unless the circuit court determines there is no genuine issue of material fact to be tried and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See, e.g. W. Va. R.Civ.P 56(c). See generally Williams v. Precision Coil, Inc., ___ W. Va. ___, 459 S.E.2d 329 (1995); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.E.2d 265 (1986). The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment; in assessing the record to determine whether there is a genuine issue as to any material facts, the circuit court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. The inferences to be drawn from the underlying affidavits, exhibits, answers to interrogatories, and depositions must be viewed in the light most favorable to the party opposing the motion.
        On a motion for summary judgment, neither a trial nor appellate court can try issues of fact; a determination can only be made as to whether there are issues to be tried. To be specific, if there is any evidence in the record from any source from which a reasonable inference can be drawn in favor of the nonmoving party, summary judgment is improper. As succinctly stated in both Peavy and Williams, in reviewing a grant of summary judgment, this Court is governed by the same principles and we review the record de novo.
        Although we have said that Rule 56 of the West Virginia Rules of Civil Procedure applies equally to claims of discrimination,See footnote 2 we suggested in Williams a cautious approach to summary judgment motions where issues of motive and intent must be resolved.See footnote 3 In most discrimination cases, once a plaintiff's allegations and evidence create a prima facie case (showing circumstances that permit an inference of discrimination on an impermissible bias), unless the employer comes forward with evidence of a dispositive nondiscriminatory reason as to which there is no genuine issue and which no rational trier of fact could reject, the conflict between the plaintiff's evidence establishing a prima facie case and the employer's evidence of a nondiscriminatory reason reflects a question of fact to be resolved by the factfinder at trial. See generally Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152 (1995).See footnote 4
        It is significant to understand that in discrimination cases, although the plaintiff has the ultimate burden of proving elements of the claim by a preponderance of the evidence, the showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is "de minimis." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2nd Cir. 1994). In determining whether the plaintiff has met the de minimis initial burden of showing
        "'circumstances giving rise to an inference of discrimination,' the function of the court on a summary judgment motion is to determine whether the 'proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn.'" Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2nd Cir. 1995). (Citation omitted).
        To be sure, summary judgment has a special niche in civil litigation. Its role is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether a trial is actually required. The device allows courts and litigants to avoid full blown trials in unwinable cases, thus conserving the parties' time and money and permitting courts to husband scarce judicial resources. However, although summary judgment is the appropriate device for putting a swift end to meritless litigation, Rule 56(c) of the Rules of Civil ProcedureSee footnote 5 implicitly forbids courts from entering summary judgment where there are material and genuine issues of fact to be resolved.
        Even "[i]f there is no genuine issue of material fact in dispute, . . . we [must] next determine if the substantive law was correctly applied by the . . . [circuit] court." Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 781 (10th Cir. 1995). Based upon our de novo review of the record, we find the circuit court erred in its interpretation and application of the applicable law and in its holding that no genuine issues of material fact exist.
B.
Subordinate Harassment of a Supervisor

        The defendant asserts that summary judgment should be upheld because the Human Rights Act does not provide for a cause of action against employers by supervisory employees who claim to have been sexually harassed by subordinate employees. We reject the defendant's contention.
        To establish a claim for sexual harassment based upon a hostile or abusive work environment under the Human Rights Act, a plaintiff-employee must prove that (1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was "'sufficiently severe or pervasive to alter the . . . [plaintiff's] conditions of employment and create an abusive work environment'"; and (4) it was imputable on some factual basis to the employer. Harris v. Forklift Systems, Inc., ___ U.S. ___, ___, 114 S. Ct. 367, 370, 126 L.Ed.2d 295, 301-02 (1993). (Citation omitted).
        Certainly, a supervisor is an employee under the Human Rights Act,See footnote 6 at least where the individual is not a partner, owner, or part-owner.See footnote 7 The defendant does not seriously dispute this conclusion, but argues that supervisors-employees (or at least some of them) do not enjoy the same level of protection from sexual harassment.
        Our case law, Westmoreland Coal Co. v. West Virginia Human Rights Commission, 181 W. Va. 368, 382 S.E.2d 562 (1989); the Human Rights Commission (HRC) regulations, 6 W. Va. C.S.R.

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