W. Va. Code R. § 77-2-4

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

Section 77-2-4 - Investigation; Determination; Conciliation; Request for Review; and Mediation

4.1. After a complaint has been filed, the compliance director shall within seventy-five (75) days but not to exceed one hundred and fifty (150) days conduct a prompt investigation of the allegations of the complaint.

4.2. Any person against whom a complaint has been filed shall serve upon the Commission and the complainant a written reply to the complaint within ten (10) days of receipt of the complaint. Such reply shall contain a statement of the facts and circumstances surrounding the allegations contained in the complaint and may include any documents or other evidence related to the subject matter of the complaint.

4.3. The Commission may by interview or deposition take the testimony of any person, including a party, relating to the subject matter of a complaint. Any person making a statement may obtain a copy of that statement.

4.4. The Commission may order any person, including a party, to produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, or other tangible things, not privileged, which may constitute or contain evidence relating to the subject matter of a complaint.

4.5. The Commission may order any party to complete a questionnaire or interrogatories relating to the subject matter of a complaint. Such questionnaire or interrogatories shall be completed and returned to the Commission within ten (10) days of receipt thereof. For good cause, the compliance director may grant an extension of time for its completion and return of up to seven (7) calendar days at his/her discretion.

4.6. To effectuate the purposes of the Act, whenever possible the Commission will seek to obtain documentary evidence, statements, and testimony from witnesses by voluntary compliance with the request of the Commission for such discovery. However, if there is non-compliance with such voluntary requests for discovery, such actions shall, at the discretion of the executive director, result in the application of an adverse inference against the party to whom the request for discovery is propounded regarding all unanswered inquiries. If it is decided to apply such adverse inference against a party, such party must be notified of this action in writing.

4.7. In addition to the adverse inference mentioned in Rule 4.6., if there has been non-compliance with the request of the Commission for such discovery, the executive director or the chairperson may issue subpoenas and subpoenas duces tecum in the name of the Commission for the purpose of obtaining any information relevant to any lawful activity of the Commission. Such subpoenas may be signed by the chairperson, or her/his representative in her/his absence, and/or the executive director.

4.8. If the Commission conducts an interview of any person at the place of work of that person, the Commission shall conduct the interview so as not to interfere with the party's duties and responsibilities to his employer. Where the Commission conducts such interview, the employer shall be given reasonable notice. Failure of the employer to cooperate subjects the employer to the penalties described in W. Va. Code § 5-11-14.

4.9. If during the investigation of a complaint, terms of settlement are agreed to between complainant and respondent, the same shall be reduced to writing, signed by the parties and attached to a withdrawal executed by the complainant, whereupon the case shall be closed unless the Commission has determined that it has a continuing interest in the case independent of that of the complainant.

4.10. The executive director, or the compliance director, or the Commission's attorney, as designated by the executive director, shall authorize a ruling dismissing a complaint when it has been determined after a reasonable investigation of the allegations of such complaint that there is no probable cause to believe that respondent has engaged in an unlawful discriminatory practice pending appeal by complainant pursuant to Rule 4.14. A copy of a ruling dismissing a complaint shall be served upon the complainant and respondent within fifteen (15) days of such determination.

4.11. If it is decided that there is no probable cause to credit the allegations of an individual complainant as such allegations pertain to that individual, but it appears that there is probable cause to credit allegations or findings of a pattern and practice of discrimination by the respondent, no matter whether such pattern and practice was alleged by complainant or discovered through investigation, in such case the individual complainant shall be dismissed from further proceedings by the Commission, pending appeal by complainant pursuant to Rule 4.14., and the Commission shall proceed to prosecute the complaint, as amended, in its own name.

4.12. If the executive director, or compliance director, or the Commission's attorney, as designated by the executive director, finds that probable cause exists for crediting the allegations of the complaint, the Commission shall promptly notice the case for public hearing.

4.13. The Commission encourages settlement efforts during all phases of its procedures. When engaging in conciliation endeavors, the Commission shall adhere to the following guidelines:

4.13.a. Nothing that is said or done during and as a part of the endeavors of the Commission to eliminate unlawful discriminatory practices by methods of conference, conciliation, and persuasion may be made a matter of public information by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the parties concerned: provided, that the Commission may publish the terms of a conciliation agreement when the complaint has been settled without disclosing the identities of the parties involved;

4.13.b. This subsection does not apply to such disclosures to the representatives of federal, state, and local agencies as may be appropriate or necessary to the carrying out of the Commission's functions under the Act: provided, that the Commission may refuse to make disclosures to any such agency which does not maintain the confidentiality of such endeavors in accord with this section or in any circumstance where the disclosures will not serve the purposes of the effective enforcement of the Act;

4.13.c. The requirements of this subsection shall not be construed to limit the power of the Commission to conduct further investigations in preparation for a hearing or for other purposes in connection with its statutory duties while it is engaging in conciliation endeavors, nor shall they be construed to prohibit the use of evidence obtained through such investigations;

4.13.d. If the Commission or its executive director determines that either party or its agents, assigns, or successors has violated or is violating the terms of settlement and adjustment, the Commission or any party may initiate action in the circuit court of the county where the respondent resides or transacts business, as set forth in W. Va. Code § 5-11-8(d)(5) or may take any action consistent with the Act which it deems appropriate; and

4.13.e. In appropriate circumstances to be determined by the executive director or her/his designee, the Commission may exercise its statutory authority to conciliate a complaint without the approval or agreement of the complainant. In such circumstances, the following guidelines shall apply:

4.13.e.1. If, after a reasonable investigation, the respondent and the Commission, but not the complainant, agree upon conciliation terms consistent with the requirements of the complaint, the Commission shall serve upon the complainant a copy of the proposed conciliation agreement. If the complainant now agrees to the terms of the agreement, or fails to object to such terms in writing within fifteen (15) days after its service upon her/him, the Commission shall issue an order embodying such conciliation agreement;

4.13.e.2. If complainant does file written objections, unless they are met or withdrawn within ten (10) days after service thereof, the Commission shall either end its conciliation efforts and notice the complaint for hearing or, upon a written finding by the Commission or its executive director that the terms of the proposed conciliation agreement are in the public interest and the specific reason(s) therefor, execute the agreement regardless of complainant's objections and notice the parties for hearing solely as to the merits of the complainant's objections to the agreement. The agreement may be executed on behalf of the Commission by its executive director or her/his designee;

4.13.e.3. Each conciliation agreement shall include provisions requiring the respondent to refrain from the commission of unlawful discriminatory practices in the future and shall contain such further provisions as may be agreed upon by the Commission and the respondent;

4.13.e.4. Not later than one year from the date of a conciliation agreement, the Commission shall investigate whether the respondent is complying with the terms of such agreement. Upon a findings of non-compliance, the Commission shall take appropriate action to assure compliance; and

4.13.e.5. If, after a hearing regarding the merits of the complainant's objections to the conciliation agreement, the administrative law judge finds that the agreement, when compared to the merits of the complainant's underlying case, is arbitrary, capricious, an abuse of discretion or based upon incorrect assessments of fact or conclusions of law, the administrative law judge may void the agreement, in whole or in part, and schedule a public hearing on the complaint or that portion of the agreement which has been voided. Otherwise, the administrative law judge shall affirm the agreement and enter a final decision dismissing complainant's objections and adopting the agreement.

4.14. The following procedures shall apply whenever there is a proposed dismissal of the complaint, except when a complaint is dismissed by an administrative law judge or pursuant to a settlement reached by the parties or pursuant to a conciliation agreement between the Commission and the respondent, in which cases these procedures do not apply:

4.14.a. Upon the notice to the complainant of the proposed dismissal of her/his complaint, a complainant may request from the Commission, through its compliance director or such other person as the executive director may designate, a meeting to discuss the proposed dismissal of her/his complaint. Requests shall be in writing, and shall be filed at the Commission's office within ten (10) days from the date of complainant's receipt of the adverse determination;

4.14.b. If a after having received proper notice, the complainant does not appear at the meeting, the complainant shall be deemed to have waived all rights to a meeting unless it is shown to the satisfaction of the executive director or the chairperson that the failure to appear was due to circumstances beyond the complainant's control;

4.14.c. The meeting shall be conducted as follows:

4.14.c.1. All decisions and actions growing out of or upon any such meeting shall be reserved for determination by the chairperson or the executive director;

4.14.c.2. The Commission's executive director or other designated person shall meet with the complainant who shall be provided with all public information in the Commission's file pertaining to the complaint. The complainant shall have the opportunity to present any relevant information that the determination of no probable cause was in error. The presiding person, after considering the information, shall file a confidential report and recommendation with the executive director which shall recommend mat the dismissal of the complaint be upheld, reversed, or modified or that the complaint be remanded for further investigation. The confidential report shall be filed within fifteen (15) days after the meeting;

4.14.c.3. If, following such meeting it is determined that probable cause exists to substantiate the allegations in the complaint, a recommended finding of probable cause will be made and reported to the chairperson or executive director. The chairperson or executive director shall forward the case to the administrative law judge for public hearing;

4.14.c.4. If, following such meeting, the determination of no probable cause is affirmed, the complaint shall be dismissed and the complainant and respondent shall be sent notification of such finding by certified mail, return receipt requested within fifteen (15) days of such determination;

4.14.c.5. If, following such meeting, it is determined that additional investigation would assist the Commission in determining whether probable cause exists, the chairman or the executive director shall return the case to the investigator for an additional investigation as may be required; and

4.14.c.6. The determination of the Commission or executive director regarding the meeting is not a determination on the merits of the case. Upon a finding of no probable cause, a dismissal order, accompanied by a "right to sue" letter, shall be provided to the complainant.

4.15. The Commission, in cooperation with the West Virginia State Bar and other organizations and individuals, has adopted the following procedure with regard to mediation of complaints alleging a violation of the Act:

4.15.a. Scope. These rules shall govern mediation of complaints filed with the West Virginia Human Rights Commission;

4.15.b. Mediation defined. Mediation is an informal, non-adversarial process whereby a neutral third person, the mediator, assists parties to a dispute to resolve by agreement some or all of the differences between them. In mediation, decision-making authority remains with the parties; the mediator has no authority to render a judgment on any issue of the dispute. The role of the mediator is to encourage and assist the parties to reach their own mutually-acceptable settlement by facilitating communication, helping to clarify issues and interests, identifying what additional information should be collected or exchanged, fostering joint problem-solving, exploring settlement alternatives and other similar means. The procedures for mediation are extremely flexible, and may be tailored to fit the needs of the parties to the particular dispute;

4.15.c. Selection of cases for mediation. Pursuant to these rules, the executive director of the Commission may choose, or an administrative law judge may on his or her own motion, upon motion of any party, or by stipulation of the parties, refer a case to mediation. Upon entry of an order referring a case to mediation, the parties shall have fifteen (15) days within which to file a written objection, specifying the grounds. The administrative law judge shall promptly consider any such objection, and may modify his or her original order for good cause shown. A case ordered for mediation shall remain on the docket and hearing calendar;

4.15.d. Listing of mediators. The West Virginia State Bar shall maintain and make available to the administrative law judges, interested parties and the public, a listing of persons willing and qualified to serve as mediators before the West Virginia Human Rights Commission. The State Bar shall establish minimum qualifications for training and experience, application procedures and fees, and other appropriate requirements for persons interested in being listed. The listing shall identify those persons who are willing to serve as mediators on a volunteer basis (i.e., without compensation). The listing shall be open to all persons who meet the qualifications and complete the application required by the State Bar;

4.15.e. Selection of mediator. Within fifteen (15) days after entry of an order or stipulation referring a case to mediation, the parties, upon approval of the Commission, may choose their own mediator, who may or may not be a person listed on the State Bar listing. In the absence of such agreement, the administrative law judge shall designate the mediator from the State Bar listing, either by rotation or by some other neutral administrative procedure established by the Commission;

4.15.f. Compensation of mediator. If the parties by their own agreement choose a mediator who requires compensation, then the parties shall by written agreement determine how the mediator will be compensated. If the Commission designates the mediator, then it shall whenever possible select a mediator who is willing to serve without compensation. The Commission may reimburse a volunteer mediator for reasonable travel expenses. If a voluntary mediator is not available, then the administrative law judge shall inquire of the parties whether they are willing to pay the fees of a mediator. If so, then either the parties by stipulation or the Commission shall select the mediator, and the parties by written agreement shall determine how the mediator will be compensated;

4.15.g. Mediator disqualification. A mediator shall be subject to Canon 3 of the Code of Judicial Conduct regarding disqualification for partiality or conflict of interest. Any party may move the administrative law judge to disqualify a mediator for good cause. In the event a mediator is disqualified, the parties or the administrative law judge shall select a replacement in accordance with Rules 4.15.e. and 4.15.f.;

4.15.h. Provision of preliminary information to the mediator. The administrative law judge may require the parties to provide pertinent information to the mediator prior to the first mediation session. Such information may include, but is not limited to:

(1) copies of the pleadings, transcripts or other litigation-related documents or

(2) a confidential statement summarizing a party's position on the issues, status of settlement discussions, and what relief would constitute an acceptable settlement;

4.15.i. Timeframes for conduct of mediation. Unless otherwise agreed by the parties and the mediator, or otherwise ordered by the administrative law judge, the first mediation session will be conducted within sixty (60) days after appointment of the mediator. Mediation shall be completed within forty-five (45) days after the first mediation session, unless extended by agreement of the parties and the mediator, or by order of the administrative law judge. The mediator is empowered to set the date and time of all mediation sessions, upon reasonable notice to the parties;

4.15.j. Appearances; sanctions. The following persons, if furnished reasonable notice, are required to appear at any mediation session scheduled by the mediator, unless excused by the mediator or the administrative law judge:

(1) each party, or the party's representative, having full authority to settle without further consultation;

(2) each party's counsel of record; and

(3) a representative with settlement authority of the insurance carrier for any insured party. If a party, or its representative, counsel, or insurance carrier, fails to appear at a duly noticed mediation session without good cause, the Commission upon motion may impose sanctions including an award of reasonable mediator and attorney fees and other costs, against the responsible party;

4.15.k. Participation. No party may be compelled by these rules, the administrative law judge or the mediator to settle a case involuntarily or against the party's own judgment or interest. All parties involved in the mediation, however, and their respective representatives, counsel and insurance carriers, shall be prepared to negotiate openly and knowledgeably about the case in a mutual effort to reach a fair and reasonable settlement;

4.15.l. Confidentiality of mediation process. Mediation shall be regarded as confidential settlement negotiations, subject to Rule 408 of the West Virginia Rules of Evidence. A mediator shall maintain and preserve the confidentiality of all mediation proceedings and records. A mediator shall keep confidential from opposing parties information obtained in an individual session unless the party to that session or the party's counsel authorizes disclosure. A mediator may not be subpoenaed or called to testify or otherwise be subject to process requiring disclosure of confidential information in any proceeding relating to or arising out of the dispute mediated;

4.15.m. Immunity. A person acting as mediator under these rules shall have immunity in the same manner and to the same extent as a circuit court judge;

4.15.n. Enforceability of settlement agreement. If the parties reach a settlement and execute a written agreement, the agreement is enforceable in the same manner as any other written contract;

4.15.o. Report of mediator. Within ten (10) days after mediation is completed or terminated, the mediator shall report to the Commission the outcome of the mediation. With the consent of the parties, the mediator may identify any pending motions, discovery, or other issues which, if resolved, would facilitate the possibility of settlement and

4.15.p. Statistical information. The West Virginia Human Rights Commission shall determine the need and method for statistical reporting on disputes referred for mediation under these rules. The administrative law judges, mediators, parties and counsel shall cooperate with requests for information under this rule.

W. Va. Code R. § 77-2-4