WEST VIRGINIA RECORD

CHARLESTON – Managers of a South Charleston stamping plant discriminated against black workers, the West Virginia Supreme Court of Appeals has ruled.

The Justices upheld Kanawha County Circuit Judge Irene Berger in awarding a job and back pay to Mayflower Vehicle Systems worker Vincent Cheeks and back pay to former worker Samuel Lewis.

Before Cheeks and Lewis complained to the West Virginia Human Rights Commission, Mayflower had rehired 13 white employees who lost jobs for missing work too often.

Mayflower had not rehired any black worker who lost a job for that reason.

Mayflower no longer exists. A Cleveland group bought the plant last year and named it Union Stamping and Assembly.

While Cheeks and Lewis worked there, the plant operated under a union contract that allowed anyone to miss eight days a year without even calling in.

Thousands of hours of production slipped down the drain as workers pushed the "no call no show" privilege to the limit.

Through 2001, Mayflower fired at least 86 workers for missing nine days.

Managers further harmed morale and order by applying the rule unevenly. They allowed some workers to win jobs back by signing "last chance" agreements.

One worker, who on top of attendance lapses showed up drunk twice, signed a last chance agreement, broke it, and signed another.

One who lost his job for logging ten "no call no shows" in five months returned two months later after signing for a last chance.

For one last chance worker, Mayflower granted two extra vacation days.

Some workers did not have to sign last chance agreements. One returned in 20 days, and Mayflower reclassified his termination as a suspension.

Sometimes the union intervened to postpone or reverse decisions, and sometimes the company postponed or reversed without involving the union.

Lewis, a laborer and supervisor, knew how loosely the rules could apply.

He supervised a worker who showed up late, slept on the job, clocked out early, left without permission and logged 10 "no call no shows" in a year.

Mayflower did not fire the employee.

In June 2001, the company gave a break to an alcoholic worker who had exceeded the "no call no show" limit.

He had reached the limit three times, and Mayflower had told him each time that he could not miss again. He had received the third warning two weeks earlier.

The company let him sign for a last chance.

The worker whose termination turned into a suspension lost his job again but got it back in July 2001, with back pay and a raise.

On Aug. 17, 2001, Lewis missed work due to an injury he sustained in what the Supreme Court of Appeals called an altercation. No one noticed his absence.

Arriving the next day, Lewis reported his absence. An employee said it was his ninth "no call no show" in a year.

Lewis said it was not his ninth. He said that more than once he called in but the person who took the call did not relay the message or keep it on tape.

He said he deserved a second chance like Mayflower gave to white workers, but four days later Mayflower terminated him.

Lewis filed a grievance through his union.

Meanwhile Mayflower had again fired the worker who received a second chance after 10 "no call no shows" in five months, because he showed up drunk.

In September 2001, Mayflower rehired him again, with higher pay and 10 vacation days.

On Sept. 28, 2001, Mayflower denied Lewis's grievance. He asked his union to appeal but his union did not appeal.

Cheeks, a laborer and press operator, missed work Oct. 11 and 12, 2001.

"Mr. Cheeks suffered from a back sprain, high blood pressure, and hemorrhoids so severe that he would often have blood running down his legs at work," according to the Supreme Court of Appeals.

He missed work Oct. 18. The next day, he asked for a medical leave application. He received it Oct. 25.

He handed in the application Oct. 30, with a doctor's note.

He missed work Nov. 1 and 2. He saw his doctor and obtained another note.

Arriving for his next shift Nov. 5, he learned that Mayflower had fired him.

He asked what happened to his application for medical leave. Someone told him he never returned it.

Cheeks filed a grievance through his union. Mayflower denied it in March 2002.

Mayflower asserted that Cheeks had 15 days to return the application. Mayflower claimed he received it Oct. 12 or 13, and he returned it Nov. 5.

Lewis and Cheeks filed complaints with the Human Rights Commission, alleging discrimination on the basis of race. The commission consolidated the cases.

At a public hearing in 2003, employment records showed that all employees who were rehired after violating the rule were white.

Records showed that Mayflower rehired white employees who, like Cheeks, showed that absences resulted from medical conditions.

Records showed that Mayflower repeatedly rehired workers who, unlike Cheeks and Lewis, were disciplined for serious concerns.

The commission concluded in 2004 that discrimination occurred in the decisions not to rehire Cheeks and Lewis.

The commission ordered Mayflower to rehire Cheeks with $101,754.88 in back pay. It awarded Lewis $18,107.92 in back pay.

The commission awarded Cheeks and Lewis $3,277.45 each for humiliation, embarrassment, emotional distress and loss of dignity.

Mayflower appealed to Kanawha County Circuit Court. Judge Berger took the case.

The Human Rights Commission, after running a consolidated case for years, argued that Cheeks and Lewis deserved separate hearings. Berger agreed.

Berger refused the appeal on Lewis, because under state law a circuit court lacks jurisdiction unless back pay exceeds $30,000 or damages exceed $5,000.

Berger affirmed the commission's decision on Cheeks.

Mayflower asked the Supreme Court of Appeals to reverse Berger and find that there was not enough evidence to support a finding of unlawful discrimination.

The Justices first scolded Berger for splitting the case.

"What the Commission joined together by its own motion, it cannot presume will suddenly be put asunder," they wrote.

In oral argument Mayflower contended that it did not rehire Cheeks and Lewis because they did not exhaust the union grievance process.

Mayflower asserted that if discrimination occurred, it lay in the union's decision to drop the grievances.

The Justices rejected that defense upon finding that, "…many of the white employees terminated and then rehired by Mayflower never turned to the union for assistance."

The Justices ruled that Mayflower's reasons for firing Cheeks and Lewis were a pretext for discrimination.

Quoting a 1989 decision, they defined pretext as "an ostensible reason or motive assigned as a color or cover for the real reason or motive."

Quoting a 1986 decision, they wrote that, "…some explanations are the product of hindsight rather than a true barometer of what occurred at the time of decision."

Quoting a 1995 decision, they wrote that, "…where pretext is shown, discrimination may be inferred."

They did not look kindly upon the claim that Cheeks failed to file his application in 15 days. They wrote that Mayflower falsely represented the dates to the union.

Likewise, they wrote, Lewis established that the call-in system repeatedly failed and that several absences had mistakenly been recorded as "no call no show."

The Justices agreed with Mayflower on one point. They held that back pay for Cheeks should not begin from the day Mayflower fired him.

Damages began to accrue when Mayflower decided not to rehire him, the Justices wrote, but the record did not establish the date of that decision.

Berger now must determine the date of the decision not to rehire Cheeks, and she must recalculate his back pay accordingly.