W. Va. Code R. § 77-2-3

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 77-2-3 - Complaint: Content, Filing Time, Amendment, Withdrawal and Dismissal; Preservation of Records

3.1. Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice may make, sign and file with the Commission a written, verified complaint.

3.2. Any employer whose employees, or some of them, hinder or threaten to hinder compliance with the provisions of the Act may make, sign and file with the Commission a written, verified complaint requesting assistance by conciliation or other remedial action.

3.3. The Commission or the Attorney General may make, sign and file a complaint whenever either has reason to believe that any person has engaged, or is engaging, or proposes to engage in an unlawful discriminatory practice.

3.4. Any organization which has an individual member claiming to be aggrieved by an alleged unlawful discriminatory practice may make, sign and file with the Commission a written, verified complaint.

3.5. A complaint deferred/referred to the Commission by the United States Equal Employment Opportunity Commission pursuant to the Civil Rights Act of 1964 or the Age Discrimination in Employment Act or by the United States Department of Housing and Urban Development pursuant to the Civil Rights Act of 1968 shall be deemed filed with the Commission as of the date such complaint was received by the United States Equal Employment Opportunity Commission or the United States Department of Housing and Urban Development.

3.6. Assistance in drafting and filing complaints shall be available to complainants through the Commission and its staff.

3.7. The complaint shall be in writing, the original being signed and verified before a notary public or other person duly authorized to administer oaths and take acknowledgements. The complaint shall be filed with the Commission and where feasible, shall be upon forms prepared by the Commission, blanks of which shall be supplied by the Commission upon request. Notarial service shall be furnished without charge by the Commission.

3.8. Each complaint shall contain the following to the best information of the complainant:

3.8.a. The name and address of the complainant;

3.8.b. The name and address of the respondent;

3.8.c. A concise statement setting forth the facts deemed to constitute the alleged discrimination;

3.8.d. The date or dates of the alleged unlawful discriminatory practice, or if the alleged unlawful discriminatory practice is of a continuous nature, the date on which the unlawful practice began and the last day on which it occurred; and

3.8.e. The verified signature of the complainant.

3.9. Manner of filing a complaint:

3.9.a. A complaint may be filed at any Commission office either by personal delivery or by mail;

3.9.b. The complaint shall be deemed filed as of the date it is received at any Commission office;

3.9.c. When a complaint is received at a Commission office, the person accepting the complaint shall stamp the complaint with the date it was so received. Docketing of all complaints shall be completed promptly, and

3.9.d. Timeliness of complaint:

3.9.d.1. A complaint shall be filed within three hundred and sixty-five (365) days after the occurrence of the alleged unlawful discriminatory practice or act;

3.9.d.2. If the alleged unlawful discriminatory practice or act is of a continuing nature, the date of the occurrence of the said alleged unlawful practice shall be deemed to be any date subsequent to the commencement of the alleged unlawful practice up to and including the date upon which the unlawful practice has ceased;

3.9.d.3. Where the Commission is informed by an individual, who is claiming to be aggrieved and who has given sufficient information as set forth below prior to the expiration of the three hundred and sixty-five-day (365) limitation period, the Commission may institute a memorandum of complaint. Such memorandum of complaint shall contain the essential elements of a complaint as required by these regulations, excepting signature and verification by the complainant, and shall be signed, dated and verified before a notary public or other person duly authorized to administer oaths and take acknowledgements by the person drafting such memorandum of complaint. A complaint received by the Commission subsequent to and based upon said memorandum of complaint shall be deemed filed as of the date that the said memorandum of complaint has been signed and verified;

3.9.d.4. Any complaint alleging acts which are unlawful under the West Virginia Human Rights Act which is filed with federal agencies having deferral/referral arrangements with the Commission, shall be deemed filed with the Commission on the same day as the complaint was received by such federal agency; and

3.9.d.5. In computing any period of time prescribed or allowed by these rules or by any applicable statute, the date of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation period.

3.10. Amending the complaint:

3.10.a. The Commission or the complainant may amend a complaint or any part thereof to cure technical defects or omissions, including but not limited to, failure to verify the complaint, or to clarify and amplify allegations made therein, when such amendments relate back to the original filing date; provided, however, an amendment alleging additional acts constituting unlawful discriminatory practices which are not related to or growing out of the subject matter of the original complaint will be permitted only when, as of the date of the amendment, the allegations could have been timely filed as a separate charge; and

3.10.b. A complaint may be amended any time prior to a finding of probable cause, and thereafter for good cause shown at the discretion of the administrative law judge.

3.11. Upon the filing of a complaint or amended complaint, the Commission shall promptly serve the respondent with a copy thereof together with a notice setting forth the requirements of Rule 4.2.

3.12. Withdrawal of a complaint:

3.12.a. Upon written notice to the Commission, or administrative law judge if the case has been noticed for public hearing, a complainant may withdraw the complaint. A complainant may withdraw a complaint at any time; and

3.12.b. Upon such withdrawal of complaint, the Commission, by its executive director or chairperson, may initiate its own complaint based on the allegations of the withdrawn complaint. The filing date of such Commission-initiated complaint shall relate back to the original filing date of the withdrawn complaint.

3.13. Dismissal of complaint:

3.13.a. Whenever it appears upon investigation of a complaint that the Commission lacks jurisdiction over the parties or the subject matter of the complaint, the Commission shall dismiss the complaint without further action, except such as is provided by Rule 4.14;

3.13.b. The Commission may, upon its own initiative, dismiss a complaint for the following reasons:

3.13.b.1. A showing of discharge in bankruptcy of the respondent or that the complainant no longer has a right to file as a creditor or that such filing would be unproductive;

3.13.b.2. Failure to locate the complainant; provided, that reasonable effort has been made by the Commission's staff to locate the complainant. Reasonable effort shall be deemed to have been made if there has been a return of certified or regular mail stating that the complainant has moved and left no forwarding address and an unproductive inquiry into complainant's whereabouts has been made from the contact person listed in the background information form submitted by the complainant;

3.13.b.3. Refusal by complainant to cooperate with the processing of the complaint or otherwise to cooperate with the Commission's staff or the Commission's attorney, provided that the complainant shall first be notified and warned via certified mail that continued failure or refusal to cooperate shall result in the dismissal of the complaint;

3.13.b.4. Death of the complainant, provided that next-of-kin has indicated verbally or in writing to the Commission that she or he does not wish to proceed in the matter;

3.13.b.5. Mootness of the allegations of the complaint;

3.13.b.6. Failure of the complaint, when construed in a light most favorable to complainant, and after reasonable investigation, to state facts upon which relief can be granted under the Act. Whether a reasonable investigation has been conducted shall be determined on a case-by-case basis;

3.13.b.7. Such other reason, for which there is clear and convincing support in the record, indicating that to proceed on the complaint would be contrary or inimical to the purposes of the Act; and

3.13.c. When a complaint has been dismissed, the complainant, and respondent when the complaint has been served, shall be notified in writing of the disposition of the complaint together with the reasons therefor and the complainant shall be notified of her/his proposed dismissals provided in Rule 4.14.

3.14. Respondents shall have the duty to preserve the following records:

3.14.a. When a complaint has been served on an employer, labor organization or employment agency, the respondent shall preserve all personnel records relevant to the investigation until such complaint is finally adjudicated and the respondent shall be so advised in the notice mentioned in Rule 3.11. The term "relevant to the investigation" shall include, but not be limited to, personnel, employment or membership records relating to the complainant and to all other employees, applicants or members holding or seeking positions similar to that held or sought by the complainant, and application forms or test papers completed by any unsuccessful applicant and by all other applicants or candidates for the same position or membership as that for which the complainant applied and was not accepted and any records which are relevant to the scope of the investigation as defined in the notice or complaint;

3.14.b. Where a complaint or notice of investigation has been served on a membership club, respondent in a housing complaint, or respondent in a public accommodation complaint, the respondent shall preserve all records relevant to the investigation until such complaint is finally adjudicated and the respondent shall be so advised in the notice mentioned in Rule 3.11. The term "relevant to the investigation" shall include, but not be limited to, applications on file at the time the complaint was filed and those received following service of the complaint whether or not they have been accepted or rejected, membership lists, records of payment of initiation fees or regular dues, together with the minutes of meetings of the club conducted in conformity with the constitution or by-laws adopted by the membership;

3.14.c. Any other books, papers, documents, or records of any form which are relevant to the scope of any investigation as defined in the notice or complaint shall be preserved during the pendency of any proceedings by all parties to the proceedings unless the Commission specifically orders otherwise; and

3.14.d. Violation of this rule may result in prosecution as in W. Va. Code § 5-11-14.

3.15. Class actions.

3.15.a. Prerequisites to a class action. One or more members of a class may file a complaint as representative parties on behalf of all, or, upon a determination by the Commission that class wide relief may be appropriate, the Commission may independently file a complaint, when the behavior of the respondent reflects a pattern or practice of discrimination which is illegal under the West Virginia Human Rights Act, subject to the following provisions;

3.15.b. Class actions maintainable. An action may be maintained as a class action if, in the opinion of the executive director, Rule 3.15.a. is satisfied, and if:

3.15.b.1. The executive director determines that the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or

3.15.b.2 The executive director determines that the party opposing the class has acted or refused to act on the grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

3.15.b.3. The executive director determines that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

3.15.b.3.A. The interest of members of the class in individually controlling the prosecution or defense of separate actions;

3.15.b.3.B. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

3.15.b.3.C. The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

3.15.b.3.D. The difficulties likely to be encountered in the management of a class action.

3.15.c. Determination by order whether a class action to be maintained; notice; judgment; actions conducted partially as class actions.

3.15.c.1. In a class action maintained under this rule, where the West Virginia Human Rights Commission pursues the complaint on behalf of the class, as soon as possible after a finding of probable cause, the Commission shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. However, where the West Virginia Human Rights Commission does not pursue the complaint on behalf of the class, the named complainants shall direct notice to the members of the class. The cost of notification shall be reimbursed by respondents who either agree to a settlement or are found liable of violating the West Virginia Human Rights Act. Notice shall advise each member that:

3.15.c.1.A. The class action is pending;

3.15.c.1.B. The administrative law judge will exclude the member from the class if the member so requests by a specified date; and

3.15.c.1.C. The judgment will be binding on all members who do not request exclusion or who have not filed a separate and independent complaint.

3.15.c.2. When appropriate, a complaint may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly,

3.15.c.3. Settlement procedures. The parties in a class action may agree to a settlement, of which all class members shall receive notice. The respondent shall pay for the notice of settlement; and

3.15.c.4 Dismissal or compromise. A class action shall not be dismissed or compromised without the approval of the administrative law judge, and notice of any proposed compromise shall be given to all members of the class in such manner as the administrative law judge directs.

W. Va. Code R. § 77-2-3