West Virginia Code of State Rules › Agency 77 - Human Rights Commission › Title 77 - LEGISLATIVE RULE HUMAN RIGHTS COMMISSION › Series 77-02 - Rules of Practice and Procedure Before the West Virginia Human Rights Commission › Section 77-2-4 - Investigation; Determination; Conciliation; Request for Review; and Mediation

Current through Register Vol. XLI, No. 28, July 12, 2024
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.