dissenting in part and concurring in part:
I dissent in part and concur in part. The brevity of the majority opinion belies the importance of this case. The primary holding of the majority opinion leads me to wonder whether the majority and I have read the same record.
In this appeal by the complainant under the West Virginia Human Rights Act,1 from a final order of the Circuit Court of Kanawha County reversing a finding by the West Virginia Human Rights Commission of a retaliatory discharge proscribed by that Act, the primary issue presented is whether the circuit court applied the proper scope of judicial review of the Commission’s findings of fact. Another issue is whether the West Virginia Human Rights Commission has the authority to impose its own form or measure of discipline upon a complainant who was a victim of unlawful discrimination but whose conduct merited some discipline. The final issue is whether a complainant under the West Virginia Human Rights Act may supplement the relief provided by the West Virginia Human Rights Commission with relief in the form of more-than-incidental emotional damages by bringing a subsequent action (or cross-appealing) in circuit court.
I believe there is substantial evidence supporting the Commission’s findings of fact and, therefore, I would reverse the part of the circuit court’s final order with respect to whether there was a retaliatory discharge. I also believe, though, that the Commission lacked the authority to impose a thirty-day suspension without pay and, therefore, I would set aside that part of the Commission’s final order. Finally, I would, like the majority, affirm the part of the circuit court’s final order refusing to allow the complainant to cross-appeal to the circuit court for more-than-incidental emotional damages.
I
Because the circuit court reversed the Commission’s factual finding of a dis*718charge in retaliation for the filing of grievances and a human rights complaint on alleged sex discrimination, the evidence must be discussed in some detail.
The complainant, Teresa A. Frymier, was employed as a janitor by the employer, FMC Corporation. She commenced her employment with the employer in 1975 and was discharged on July 2, 1984. Starting in March, 1983, she lodged a series of verbal complaints and written grievances concerning alleged sex discrimination in job assignments. Her foreman and the janitor supervisor were aware of, and angered by, these grievances. A formal complaint alleging sex discrimination was filed on August 16, 1983, with the West Virginia Human Rights Commission.2
In April, 1983, the complainant for the first time received discipline from the employer in the form of a so-called “final notice” warning for an incident involving: (1) being out of her work area without permission, (2) the unauthorized use of company equipment (a typewriter) and (3) the unauthorized possession of company property (a brief case). On or about August 8, 1983, the complainant was disciplined a second time, this time in the form of a three-day suspension without pay for being out of her work area without permission for four and one-half hours. Between August 8, 1983 and her discharge on July 2, 1984, the complainant received two “reminders” about attendance and work performance.
The incident precipitating the complainant’s discharge was the complainant’s leaving the employer’s place of business on June 26, 1984, during her shift, without permission, for about two hours and ten minutes. Without her knowledge, when the complainant exited the employer’s place of business, two of the employer’s managerial personnel observed her leave as part of a surveillance of her. The managers had received an anonymous “tip” that the complainant likely would be leaving the employer’s place of business that evening, without permission. The hearing examiner found, and substantial evidence supports the finding, that the surveillance of the complainant was precipitated in part by previous relations between the complainant and the employer involving her filing grievances and the human rights complaint on alleged sex discrimination.
The surveillance of the complainant on June 26, 1984, incidentally disclosed other employees leaving the employer’s place of business without permission. Five other employees received discipline (five-day suspensions without pay for salaried, supervisory personnel and three-day suspensions without pay for hourly employees like the complainant), but only the complainant was discharged. None of these other employees had filed grievances or a human rights complaint on alleged unlawful discrimination.
When confronted with her conduct on June 26, 1984, the complainant lied about how long she had been gone from the employer’s place of. business and where she had been. However, one of the employer’s salaried, supervisory employees also lied when confronted about his subordinate, another hourly employee, who had been out of the employer’s place of business without permission on the same evening as the complainant, but that supervisory employee was not discharged (he received a five-day suspension without pay).
Subsequent to her discharge the complainant timely filed the complaint in question with the West Virginia Human Rights Commission, alleging that the employer had discharged her in retaliation for her having filed grievances and a previous human rights complaint on alleged sex discrimination. After an evidentiary hearing a hearing examiner for the Commission found that the complainant had made a prima facie case of unlawful discrimination (retaliatory discharge, as shown by disparate disciplinary treatment) and found that the nondiscriminatory reason articulated by the employer for the discharge (the complainant’s allegedly poorer disciplinary history) was pretextual for the proscribed re*719taliatory discharge. The Commission adopted these findings.
The employer appealed to the Circuit Court of Kanawha County. The circuit court reversed. The circuit court found no disparate disciplinary treatment, in light of the fact that the complainant had lied and in light of some evidence indicating that the complainant had a poorer disciplinary history than the other employees who were also caught outside the employer’s place of business without permission the same evening.
The complainant has prosecuted this appeal.
II
W.Va.Code, 5 — 11—9(i)(3) [1981], effective at the relevant time in this case, provided, that it shall be an unlawful discriminatory practice for any person to “[e]ngage in any form of reprisal or otherwise discriminate against any person because he [or she] has opposed any practices or acts forbidden under this article or because he [or she] has filed a complaint, testified or assisted in any proceeding under this article[.]”3 In syllabus point 4 of Frank’s Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986), this Court set forth the requirements to prove an unlawful reprisal or retaliatory discharge under this statute:
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.
Accord, syl. pt. 1, Brammer v. West Virginia Human Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990).
One of the ways of showing a retaliatory motivation is by presenting evidence of disparate treatment, that is, evidence that the employer disciplined the complainant, a member of a group protected by the West Virginia Human Rights Act (such as those who actively oppose unlawful discrimination), and the complainant was disciplined in a more severe manner than a nonmember of a statutorily protected group. Unlawful disparate treatment is established when, without a legitimate, nondiscriminatory reason, “a nonmember of the protected group was not disciplined, or was disciplined less severely, than the complainant, though both engaged in similar conduct.” Syl. pt. 2, in part, State ex rel. State Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985).
As was held in syllabus point 5 of the Logan-Mingo Area opinion:
A determination, by the West Virginia Human Rights Commission, that an employer has accorded disparate treatment ... is a finding of fact which may not be reversed by a circuit court upon review, unless such finding is clearly wrong in view of the reliable, probative and substantial evidence on the whole record.
This holding is a specific application of the broader holding set forth in syllabus point 2 of Brammer v. West Virginia Human Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990):
‘West Virginia Human Rights Commission’s findings of fact should be sustained by reviewing courts if they are supported by substantial evidence or are unchallenged by the parties.’ Syl. pt. 1, West Virginia Human Rights Commission v. United Transportation Union, Local 655, 167 W.Va. 282, 280 S.E.2d 653 (1981), questioned on another point, Independent Fire Co. No. 1 v. West Virginia Human Rights Commission, [180] W.Va. [406], [409], 376 S.E.2d 612, 615 (1988).
*720Accord, syl. pt. 2, Bloss & Dillard, Inc. v. West Virginia Human Rights Commission, 183 W.Va. 702, 398 S.E.2d 528 (1990).
This Court, in West Virginia Institute of Technology v. West Virginia Human Rights Commission, 181 W.Va. 525, 383 S.E.2d 490 (1989), explained the concept of “substantial evidence” for purposes of judicial review of an administrative agency’s findings of fact. Substantial evidence is such relevant evidence, on the whole record, as a reasonable mind might accept as adequate to support a finding; it must be enough to justify a refusal to direct a verdict, if the factual matter were tried to a jury. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. The reviewing court is not entitled to reverse the finding of the trier of the facts simply because the reviewing court is convinced that it would have weighed the evidence differently if it had been the trier of the facts. Id. 181 W.Va. at 532-33, 383 S.E.2d at 497-98. Accord, Brammer, 183 W.Va. at 111, 394 S.E.2d at 343.
The circuit court in the present case did not believe there was unlawful disparate treatment. The circuit court emphasized (1) that the complainant lied when confronted and (2) that the complainant had a poorer disciplinary history than the other employees who had left the employer’s place of business without permission. Neither of these points is well taken. As stated previously, at least one other employee, a supervisor, lied when confronted, and that employee received a five-day suspension, unlike the complainant, who was discharged. With respect to the comparison of prior discipline, the circuit court and the majority of this Court have overlooked the hearing examiner’s and the Commission’s express finding that the employer treated the same offenses which were included in the complainant’s prior disciplinary record, as either minor offenses or none at all when committed by other employees. In addition, the hearing examiner and the Commission found that at least one other employee had a comparable disciplinary history (“a spotty record,” to use management’s language), and that employee received only a three-day suspension for leaving the employer’s place of business without permission. Substantial evidence supports these findings of fact. Finally, it is significant that all of the complainant’s discipline prior to her discharge came shortly after she commenced filing grievances concerning alleged sex discrimination, grievances which admittedly angered her supervisors.
In short, as in the typical retaliatory discharge case, there was conflicting evidence in this case as to the employer’s motivation for discharging the complainant. The fact finder resolved the conflict in favor of the complainant, and substantial evidence supports the fact finder. The circuit court improperly substituted its own finding on motivation for the discharge. The majority has condoned this clearly improper scope of judicial review. I must assume that this curious holding is explained by the majority’s disdain for this particular complainant’s contentiousness, rather than by disagreement with this Court’s precedents on the scope of judicial review in human rights cases, none of which are overruled by the majority in this case.
Ill
The hearing examiner and the Commission decided that the complainant’s lying, when confronted with her actions on June 26, 1984, justified more severe discipline than meted out to other employees for similar offenses, even though such lying did not justify her discharge. Accordingly, the hearing examiner and the Commission' imposed upon the complainant a thirty-day suspension without pay, rather than a three-day suspension without pay that similarly situated, hourly employees received. I believe that the Commission acted outside its authority in imposing its own measure of discipline.
W.Va.Code, 5-11-10 [1971, 1987] provides for the administrative procedures before the West Virginia Human Rights Commission after the filing of a complaint with *721the Commission. These procedures include (1) an investigation, (2) attempts at elimination of an apparent unlawful discriminatory practice by conference, conciliation and persuasion, (3) an evidentiary hearing and (4) a post-hearing determination, including any appropriate cease and desist order and any appropriate affirmative relief to the complainant.
While the Commission, as part of its conciliatory powers, would have the authority to persuade the complainant and the respondent to reach an agreement as to the form or measure of discipline, the Commission lacks the authority to impose its own form or measure of discipline. Although W.Va.Code, 5-11-15 [1967] provides that the West Virginia Human Rights Act “shall be liberally construed to accomplish its objectives and purposes [,]” those objectives and purposes, such as providing for “equal opportunity for employment,” W.Va.Code, 5-11-2 [1981, 1989], would not be furthered by allowing the Commission to substitute its own disciplinary measures when a complainant is found to have been the victim of unlawful disparate disciplinary treatment, but whose conduct merited some discipline. In this situation the West Virginia Human Rights Commission is empowered to eliminate the disparate treatment, for the West Virginia Human Rights Act addresses unlawful discrimination, not employee discipline per se.4
This situation is analogous to the situation in which unlawful discrimination is not proved, but the discipline seems harsh to a reviewing court. Under those circumstances it has been held that absent discrimination, and assuming no contractual limitations, the choice of discipline is a matter left to the employer’s best business judgment in light of all considerations. Sullivan v. Boorstin, 484 F.Supp. 836, 842-43 (D.D.C.1980). See also Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984).
A case which is similar to the present case is Mosley v. General Motors Corp., 497 F.Supp. 583 (E.D.Mo.1980), affirmed and remanded, 691 F.2d 504 (8th Cir.1982). In that case, involving a federal antidis-crimination statute, the court found a retaliatory discharge and limited the discipline of the complainants to the discipline received by similarly situated nonmembers of the statutorily protected group. 497 F.Supp. at 590-91. The same approach should have been taken here. That is, the Commission should have eliminated the unlawful disparate disciplinary treatment by reducing the measure of discipline from a discharge to a three-day suspension without pay, the measure of discipline the employer chose for the most similarly situated other hourly employees.
IV
Upon appeal by the employer to the circuit court the complainant cross-appealed to obtain more-than-incidental emotional damages which she allegedly had sustained as a result of the discharge. To protect the defendant-employer’s constitutional right to a trial by jury on the issue of such damages, this Court, in syllabus point 2 of Bishop Coal Co. v. Salyers, 181 W.Va. 71, 380 S.E.2d 238 (1989), held that the West Virginia Human Rights Commission did not have the jurisdiction to award such damages and that, instead, a jury trial in a circuit court action would be necessary. The complainant argues in essence that she may bifurcate the proceedings: first, seek all appropriate relief from the Commission and second, if unlawful discrimination is *722proved before the Commission, seek in circuit court those damages recoverable only in a civil action. I disagree, based upon statutory and case law to the contrary.
W.Va.Code, 5-ll-13(a) [1983] provides that as to acts declared unlawful by W. Va. Code, 5-11-9, as amended, “the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the complainant concerned.” Bishop Coal Co. v. Salyers also indicates that the administrative and circuit court avenues are mutually exclusive. 181 W.Va. at 80, 380 S.E.2d at 247. Finally, this Court has explicitly concluded that the Commission and circuit court routes are alternative, not supplementary, avenues for relief: “[T]hose aggrieved by human rights violations [have] the option to proceed in circuit court, as an alternative to initiating administrative action. These two avenues are, of course, mutually exclusive, as § 5-11-13(a) makes clear.” Price v. Boone County Ambulance Authority, 175 W.Va. 676, 679, 337 S.E.2d 913, 916 (1985) (internal footnote omitted). See also syl. pt. 1, Price.
The circuit court refused to allow the complainant to cross-appeal in order to recover more-than-ineidental emotional damages. The circuit court’s rationale was the same as that expressed in syllabus point 4 of the majority opinion: “An administrative proceeding on appeal in circuit court cannot be transformed into an action at law for damages.” While this may be true, I would affirm the circuit court’s ruling on this point on the more fundamental basis that the administrative and circuit court routes are mutually exclusive.
V
For the reasons stated previously I would reverse the part of the circuit court's final order with respect to whether there was a retaliatory discharge, thereby affirming the Commission’s finding on the same. I would, however, as aforestated, set aside the Commission-ordered thirty-day suspension without pay in favor of a discrimination-eliminating three-day suspension without pay. Finally, I would, like the majority, affirm the part of the circuit court’s final order refusing to allow the complainant to cross-appeal to circuit court to recover more-than-incidental emotional damages.
I am authorized to state that Chief Justice MILLER joins in this opinion.
. W. Va.Code, 5-11-1 to 5-11-19, as amended.
. The merits of that sex discrimination complaint are not an issue in this appeal.
. The identically worded current version of this statute is W.Va.Code, 5-ll-9(a)(9)(C) [1989].
. In contrast, the former state civil service commission was expressly granted the power to modify the discipline meted out to a state government employee covered under the civil service system: "If the commission finds that the action complained of and taken by the appointing authority was too severe but was with good cause, the commission may provide for such other remedy or remedies, as may be deemed appropriate and in the best interest of the parties.” W.Va.Code, 29-6-15 [1977] (prior to its repeal in 1989 and replacement by the grievance procedure for state employees, see W.Va.Code, 29-6A-11 [1988]). See also syl., Blake v. Civil Service Commission, 172 W.Va. 711, 310 S.E.2d 472 (1983) (petty theft by state hospital employees of clothing donated for patients is worthy of discipline, specifically, a ten-day suspension without pay, but does not constitute good cause for dismissal of long-term civil service tenured employees with unblemished work records).