H. B. 2988
(By Delegate Hubbard, By Request)
[Introduced February 26, 1999; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact section thirteen, article eleven,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to extending time
to file action in state court after receiving a right to sue
letter from the human rights commission.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article eleven, chapter five of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 11. HUMAN RIGHTS COMMISSION.
§5-11-13. Exclusiveness of remedy; exceptions.
(a) Except as provided in subsection subsections (b) and
(e), nothing contained in this article shall be deemed to repeal
or supersede any of the provisions of any existing or hereafter
adopted municipal ordinance, municipal charter or of any law of this state relating to discrimination because of race, religion,
color, national origin, ancestry, sex, age, blindness or
disability, but as to acts declared unlawful by section nine of
this article 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. If such complainant institutes
any action based on such grievance without resorting to the
procedure provided in this article, he or she may not
subsequently resort to the procedure herein. In the event of a
conflict between the interpretation of a provision of this
article and the interpretation of a similar provision contained
in any municipal ordinance authorized by charter, the
interpretation of the provision in this article shall apply to
such municipal ordinance.
(b) Notwithstanding the provisions of subsection (a) of this
section, a complainant may institute an action against a
respondent in the county wherein the respondent resides or
transacts business at any time within ninety days, or as provided
in subsection (e) after the complainant is given notice of a
right to sue pursuant to this subsection or, if the statute of
limitations on the claim has not expired at the end of such
ninety-day period or as further provided in subsection (e), then
at any time during which such statute of limitations has not
expired. If a suit is filed under this section the proceedings pending before the commission shall be deemed concluded.
The commission shall give a complainant who has filed a
complaint a notice of a right to sue upon: (1) The dismissal of
the complaint for any reason other than an adjudication of the
merits of the case; or (2) the request of a complainant at any
time after the timely filing of the complaint in any case which
has not been determined on its merits or has not resulted in a
conciliation agreement to which the complainant is a party. Upon
the issuance of a right to sue letter pursuant to subdivision (1)
or (2), the commission may dismiss the complaint.
Notice of right to sue shall be given immediately upon
complainant being entitled thereto, by personal service or
certified mail, return receipt requested, which notice shall
inform the complainant in plain terms of his or her right to
institute a civil action as provided in this section within
ninety days of the giving of such notice or such longer period as
provided in subsection (e). Service of the notice shall be
complete upon mailing.
(c) In any action filed under this section, if the court
finds that the respondent has engaged in or is engaging in an
unlawful discriminatory practice charged in the complaint, the
court shall enjoin the respondent from engaging in such unlawful
discriminatory practice and order affirmative action which may
include, but is not limited to, reinstatement or hiring of
employees, granting of back pay or any other legal or equitable relief as the court deems appropriate. In actions brought under
this section, the court in its discretion may award all or a
portion of the costs of litigation, including reasonable attorney
fees and witness fees, to the complainant.
(d) The provisions of this section shall be available to all
complainants whose active cases are pending before the human
rights commission as well as those complainants who file after
the effective date of this section.
(e) The court in which an action may be commenced as
provided in subsection (b) may grant the complainant an
additional time to file an action beyond ninety days following
the issuance of a notice of right to sue in order to provide time
necessary to obtain legal counsel or allow counsel time to
prepare and file the court action, upon a written request by the
complainant filed with the court within the period of ninety days
following issuance of the notice of right to sue. The request to
the court shall contain the name and address of the respondent
named in the complaint before the human rights commission and the
reason additional time is needed. The court, upon granting an
additional time to file, shall send a copy of the notice of
additional time to file to the respondent identified in the
request.
NOTE: The purpose of this bill is to permit courts to
extend the time to file court actions for human rights violations after issuance of a notice of right to sue by the state human
rights commission, where additional time is needed for the
complainant to obtain legal counsel or for counsel to prepare and
file a complaint.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.