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Richard Holloway V. Consolidated Coal Company

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STATE OF WEST VIRGINIA HUMAN RIGHTS COMMISSION 215 PROFESSIONAL BUILDING 1036 QUARRIER STREET CHARLESTON. WEST VIRGINIA 25301 ARCH A MOORE. jR TELEPHONE 304-348-2616 Governor October 8, 1987 Richard Holloway 133 Savannah Ave. Westover, WV 26505 Consolidation Coal Co. P.O. Box 1314 Morgantown, WV 26505 Danny L. Fassio, Esq. Consolidation Coal Co. 1800 Washington Rd. Pittsburg, PA 15241 Allan N. Karlin, Esq. 174 Chancery Row Morgantown, WV 26505 Franklin Cleckley, Esq. P.O. Box 4 Morgantown, WV 26505 Robert M. Steptoe, Jr., Esq. Steptoe & Johnson Union National Center East Clarksburg, WV 26301 RE: Holloway v. 'Consolidation Coal Co. ER-486-86 Dear Parties: Herewith, please find the final order of the WV Human Rights Com- mission in the above-styled and numbered case. Pursuant to WV Code, Chapter 5, Article 11, Section 11, amended and effective April 1, 1987, any party adversely affected by this final order Richard Holloway October 8, 1987 Page two may file a petition for review with the supreme court of appeals with- in 30 days of receipt of this final order. Howard D. Kenney Executive Directo HDK/mst Attachments CERTIFIEDMAIL-RE~~ RECEIPT REQDtSTED NCT:C~ OF STATUTORY RIGHT TO JUDICIAL REVIEW .i:\."".,E)TD ED A~T:) E~:EC:' :-r:: 1 (a: F:-Qr7'. ~:::9~f~::~l or dsr 0[· ~::'2 c:Jr:::7.t:S3~O:1.. an e) :.;:~i:c:,.::o;: fer :-2'0":2'.': r.::.::,. b2 ;::'G'::2~:"::::4:' b:: ~~c::e!"' .., ' .., ... .. .. OJ Pj.:-::: to :::~ s:.:;:r::::,.e ~:L:::0: :.l;;:e:::'~3 '."::C':;'::: ~:::!..::;.cays •• , " •• , I .•••• •• r:·0~. c::~ !'":'.;e:;:c ~.--:::-':''';: a~:~..-':: :::~::; 0: \l ;:t::::~on ... .. ::-:~~::IJr co 5~~~~ C~L::': :1;;=":::::;: ~::2: L:Jr..:-:-::~3:tJn ::":".c. t:;.e ~C:'/~:-3~ p~:-::/ as :t;::;=ur:lle!'::..:. c..::C: ~::~ c::::-:..: at 5~C~ -I ccur ; shc ll noc:E:: e::L:~ 0: C:'"':e: r:::::;onJ.~~.~3 arid t:t~ S commission of ~;.2 fiIir::; of such ;:.:::c:on. The COr.1:-:l.tS- sicn 5h~!1. \vfc.~in C~!1 d~:::3 ::.r:::::* r~t.:~fpc or such notice, f1[ e v: ic:: c!;!:! c!e r :( 0 ( C:~ t::: c 0 u r : c:: ere c G r C. o t t!1 e •••••• , ••• I •• • • 1 :~t! co u r ; 0 r ~~:1:: J ~ G.~';~ ~~ :: :.2'J: t:-: .".~:'l::'::!J:1 rn ~:l' C::~~=T.1;';C:1 c!~~~:.~~:-:t! 9.V;:~~;:~!·or l:0C ~: ~·~'::~'.'ishall bt:: :;:-:'::-::2,j ...-\.:-:C: tr" ~:-::::c:::·.1 co ~!. ~u;.!·:::::il~:::~.CIJ{ ~!-::~:5~~ce. 1.5 h~ shall be r~~'Jr~"=·i to e;:~I':·..!~~ :.~c~'i~':!".';::::c~e clerk IS b~~·ore such or de r or r:v~~t,'.~ :::--:~Ir br;:I';'J~.~ c::c'.::i",e. a 17 bon d. w ich S 2 C ''': r i:::to b ~ a :; ;J ro ': eci b :: t h ~ c: er k. 18 conditioned to perforrn any' jr..:C::!:::en~ which may be 19 awarded o.~::..tns~ him th e r eon. The commission may .j,20 cer::f:t to the court arid re~~e~: its decision of any .:....:.. question of 1::\;- a:"'t.5!r1g upon c:-:e r eccrd. arid withhold ..,.') iC5 ftlr'~!:~~·prac,=~di;:g in tr;e C::~-2. p'2~d~~g- c;:e decision 2:) or cour ; on :r.8 c9~:lfted quest io n. or u:!::i notice that the .) I court has c.e/.:llr.eC: to COC:·:2t ~::~ 5:-..~-2. [:. a review be :25 g:-=-~.:ed or t h e c~~:ifie'i q!"':2::::IJ:: c e d~,ck=:2:d for "_'J. r:e~:-:n:;.t::2 c~e~:,s~:lrI ncc~f:,j·~:-.288:1':-::: 8,;:C :::2 parties 27 litigan; or their attorneys arid c;'.e ccrnmissicn of the fact 0'" .:..'-' :23 bv• mail~ .••• __ •• r:J" ~(,l. ~'-..eviewI..V be 0'"",,-..,-r.:.,l_ •••.••.•• _ '" \" •••. 0;;;;; ce••.•••••• r cified4.•• 1. question'- •• ·'. :29 docketed. the C:!..S2 shall be l::::=.:-dby the COtl!"C in the 30 mariner provided fer ocher cases. .•..... , i V.J..'='1 The appeal procedure con;:;~.:::ed in this subsection •..... v •..., sh al l be the exclusive means of r-aview. notwithstanding , . .." ... .. .. trie orOYI:5IOr.S or cnc ace r twentv-rune-a ems coae: ...• , 0. v-: Prot·",ded. 1(13.C such e:-:c!:.:sive r..~~!"'.sof review shall not apply to 0.;).:: case \vhe:-e~n an a ppe al 01" 3. pe ti tion for e nfor cernent of a ce:lse arid ce::isc order has been filed \V1Cl: a circuit court of this state prier to the firs; day of Apr il, one thousand nine hundr sd e!g-h~:!-:;2':2n. .......• 9 (Enr. E. B. 2638 39 (0) In the event that any person shall tan to obey a -to f:~:l.loreer oc the commission within thir::-' days after 41 re-:e!;=c of the sarns. or. if applicable. within thir:] days 4:2 a'::e!":l. fi:1:.i order at the supreme court of appeals. a ;.t~ p:1.:-::: or the commission may seek an order from the 4~ clrcuit COl.;:: for its enforcement, Such proceeding shall ~5 C~ :ni~::.:aci 0:' t::'e fiiing of a petition in said court, arid ";6 s.::';ec ucon the respondent in the mariner provided by 47 law for ~he service ot summons in civil actions: a hearing 43 shall b.: held on such petlc:on" within sixty days of the 49 date of service. The court may g'!"j.nc appropriate 50 temporcry relief, and shall make and enter upon the 51 pleadings. tescirnony and proceedings such order as is 5:2 ne'.:e53:':-:: co enforce the order oc the commission or J I I 1- BEFORE ras WEST VIRGINIA HUMAN RIGII'S C(M.1ISSION RIOIARD OOI.LCMAY, CCMPLAINANT , v Docket No: ER 486-86 CONSOLIDATED COAL COMPANY, RESPONDENT . FINAL ORDER On the 8th day of October 1987, the Commission reviewed the proposed order and decision of Hearing Examiner, James Gerl, in the above-captioned matter. After consideration of the aforementioned and exceptions thereto, the Commission does hereby adopt said proposed order and decision, encompassing proposed findings of fact, conclusions of law, discussion of conclusions, and relief, as its own, with modifications and amendments set forth below. In the subsection titled Findings of Fact, the paragraph enumerated as 21 is modified by striking the number "136.9" contained therein and substituting therefor the number "146.3." In the subsection titled Discussions of Conclusions, referencing the 2nd paragraph contained therein, the final sentence which reads, "He had never received a suspension, a written reprimand or an oral reprimand from respondent in twenty-one years of employment" is stricken. Substituted therefor is the following language: "The evidence further reveals that non-members of the protected class were not disciplined or were disciplined less severely than the complainant, although engaging in similar if not more egregious conduct. State ex rei. State Human Rights Commission v Logan-Mingo Area Health Agency, Inc., 329 S.E. 2d 77 (W.Va. 1985, Burdette v FMC Corp., 566 F. Supp. 808 (N.D. W.Va. 1983)." Based upon the foregoing, it is hereby Ordered that the Hearing Examiner's Proposed Order and Decision be attached hereto and made a part of this Final Order except as amended by this Final Order. It is further Ordered as follows: 1. The complaint of Richard Holloway is sustained. 2. Respondent shall immediately cease and desist from discriminating against individuals on the basis of race in making employment decisions. 3. Respondent shall offer and unconditionally reinstate complainant into his former position, with full benefits and seniority restored, at a rate of pay comparable to that which complainant would be receiving but for the unlawful termination, within 30 days. 4. Respondent shall pay complainant a sum equal to the wages he would have earned but for respondent's unlawful termination of complainant's employment. Such wages for the period from the date of complainant's discharge to September 20, 1987, is $99,458.53. Compounded interest on said backpay award shall be computed at the statutory rate of 10%. Respondent shall pay said amount plus interest within 30 days. For each subsequent month thereafter an additional $4,972.93 shall be added, less any interim wages earned by complainant, until complainant is reinstated or refuses a bona fide offer of reinstatement. 5. Respondent shall pay complainant within 30 days the sum of $8,000.00 for incidental damages for humiliation, embarassment, emotional and mental distress and loss of personhood and dignity 2 as a result of the discriminatory treatment toward him by the agents and employees of respondent. Respondent shall pay complainant's reasonable attorney fees in the amount of $21,945.00 for Allan Karlin and $5,625.00 for Franklin Cleckley. (Said fee affidavits are appended as Exhibit A.) 6. Respondent shall pay complainant the sum of $1,280.30 for costs reasonably expended by complainant and reasonably necessary to the litigation of this matter. (Said cost schedule is appended as Exhibit B.) Complainant is directed to surrender any transcripts of this matter in the possession of complainant to the respondent forthwith after respondent has complied with all provisions of this Order. It is finally ORDERED that respondent provide to t.he Commission proof of compliance with the Commission's Final Order within 35 days of service of said Final Order by copies of cancelled checks, affidavits or other means calculated to provide such proof. By this Final Order, a copy of which shall be sent by certified mail to the parties, the parties are hereby notified that they have ten days to request a reconsideration of this Final Order and that they may seek judicial review.
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