dissenting:
The majority’s view of this case is, at best, naive as to the facts and, at worse, a distortion of our human rights law. Conspicuously absent in the majority’s Syllabus and its textual discussion is any mention of our traditional rule with regard to court review of an administrative decision. The rule is set out in Syllabus Point 2, in part, of Shepherdstown Volunteer Fire Department v. State ex rel. West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983):
“The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: ‘(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.’ ”
See also Thomas v. West Virginia Human Rights Comm’n, 181 W.Va. 428, 383 S.E.2d 60 (1989); State ex rel. West Virginia Human Rights Comm’n v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985).
The only basis for overturning the Human Rights Commission’s decision was that the judge disagreed with the Commission’s view of the evidence. In essence, the circuit judge substituted his view of the facts for that of the Commission and its hearing examiner, who had heard the witnesses’ testimony and were in the best position to judge their credibility. The majority obviously fails to discuss this standard of review because application of it in this case would have required reversal of the circuit judge’s actions.
It must be remembered that the advertisement for the position of executive director of the Romney Housing Authority stated only two qualifications: (1) management experience, and (2) knowledge of the rules and regulations of the Department of Housing and Urban Development (HUD).
Ms. Gates had thirteen years of experience managing federal housing projects in Marlow Heights, a suburb of Washington, D.C., and was extremely familiar with HUD regulations. From 1969 through 1977, Ms. Gates was the resident manager of a 474-unit apartment project. She was responsible for preparation and rental of all units, implementation of both HUD regulations and company policy, review of tenant applications, and preparation of employees’ work schedules. In 1977, Ms. Gates was promoted to property manager. In this capacity, Ms. Gates was responsible for developing and implementing the housing complex’s annual budget and was the company’s representative when negotiating with vendors, maintenance personnel, tenant organizations, and HUD officials.
Before working at the apartment project, Ms. Gates spent twenty years as co-owner of a fifty-unit motel on the St. Lawrence River and was instrumental in all decisions concerning management, construction, and repairs. From 1950 to 1957, she assisted her father in the construction and management of six business stores and five apartments.
In addition to possessing the two qualifications which were advertised in the paper, Ms. Gates also had extensive construction experience. While employed at the apartment complex, she oversaw the restoration of two units which had been severely damaged in a fire. In 1981, the company sent her to an apartment complex in New Jersey to supervise the refurbishing of sixty units which had been vandalized. Ms. Gates and her husband have completely restored three different homes, designed and built a garage apartment, and renovated a 100-*214year-old eighteen-room house for business purposes. Even though Ms. Gates had outstanding qualifications, she was never even interviewed by the Housing Board. Neither were the two other candidates.
Instead, the Housing Authority selected one of its former members, Dale Moore, who had been the acting director for only six months. Contrary to the majority’s assertion, except for his short tenure as acting director, Mr. Moore had no other managerial housing experience. He did have some construction and repair experience, but this was not a part of the advertised qualifications for the job. * Nor could it be demonstrated from the record that Mr. Moore had any more than minimal familiarity with HUD regulations.
The majority’s decision flies in the face of precedents in other jurisdictions which hold that it is impermissible to post qualifications and then ignore them in hiring or promoting. In Consolidated Edison Co. v. New York State Division of Human Rights, 11 N.Y.2d 411, 568 N.Y.S.2d 569, 570 N.E.2d 217 (1991), for example, the Court of Appeals of New York held that promotion of an Hispanic male over a more experienced black female could not be justified on the ground that the male had a college education where the advertisement for the position did not list such an education as a requirement of the job. It has also been held unlawful for an employer to tailor job qualifications to suit the education and experience of a particular individual or to change the qualifications so as to exclude others from consideration where the true motive is race, sex, or other discrimination. See, e.g., Geisler v. Folsom, 735 F.2d 991 (6th Cir.1984); Greer v. University of Arkansas Bd. of Trustees, 544 F.Supp. 1085 (E.D.Ark.1982), affirmed in part, vacated in part sub nom. Behlar v. Smith, 719 F.2d 950 (8th Cir.1983), cert. denied sub nom. University of Arkansas Bd. of Trustees v. Greer, 466 U.S. 958, 104 S.Ct. 2169, 80 L.Ed.2d 552 (1984) (judgment vacated by Court of Appeals only as to issue of damages). This is exactly what occurred in this case. It is apparent that the majority’s refusal to discuss the law is reflective of its inability to justify its legal position.
It seems evident that Mr. Moore’s additional “qualifications” were only a pretext to justify the Housing Authority’s decision to hire him over the more experienced and, according to the objective criteria set forth in the advertisement, the more qualified Ms. Gates. Mr. Moore’s real qualifications were his connections with the local political scene, which doubtless played a role in his selection. In addition to lacking this “qualification,” Ms. Gates also had the misfortune of having been born both female and Canadian.
For the foregoing reasons, I dissent, and I am authorized to state that Justice McHUGH joins me in this dissent.
The majority speaks of Mr. Moore’s work in the Navy at Kingsville, Texas, where "his job [was] to see that some 125 houses and apartments were occupied and maintained," and of his job at Guantanamo Bay, Cuba, for the Public Works Department, "which managed some 900 units of family housing.” 185 W.Va. at 211, 406 S.E.2d at 437. The Commission found that Mr. Moore's work was not as a manager, but as a maintenance person. Even the majority acknowledges Mr. Moore’s real work experience when it speaks "of his extensive construction experience in the military.” 185 W.Va. at 212, 406 S.E.2d at 438.