H. B. 2052


(By Delegate Hubbard (By Request))

[Introduced February 14, 2001; 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 is considered 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 excludes any other action, civil or criminal, based on the same grievance of the complainant concerned. If such the complainant institutes any action based on such a 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 applies to such the 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) of
this section 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 the ninety-day period or as further provided in subsection (e) of this section, then at any time during which such the statute of limitations has not expired. If a suit is filed under this section the proceedings pending before the commission shall be deemed considered 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 the notice or the longer period as provided in subsection (e) of this section. Service of the notice shall be is 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 the 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 considers 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 are 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) of this section 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 must 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.