Getting Started- Bringing the Claims/Defending the Claims Charlotte A. Hoffman Norris, Esq. Farrell, White & Legg PLLC March 25, 2014

DISCLAIMER This presentation is not to be construed as legal advice or to create an attorney-client relationship with any attendee. It is not a substitute for researching or investigating any claims. This presentation also does not intend to cover every kind of employment law claim or every possible venue. This presentation is only the beginning of the discussion. Any example given is fictional and no one should infer the identify of any person or persons, alive or dead

2012 Statistics EEOC Complaints- 99,412 received Monetary Awards- $365,400,000 (administrative process only before EEOC; does not include litigation; does not include matters handled by WVHRC)

2012 Statistics (cont.) Claims originating in WV 40.6% sex based charges 34.5% disability 34.5% age 17.6% race 9.7% national origin 37.6% included retaliation claims

Sample WV Verdicts $500,000 (2012- Jackson Co.-Gender) $626,000 (2011- Wood Co.- WC/Disability) $120,000 (2011- Cabell Co.-Retaliation) $1.67 Million (2010- Kanawha Co. Age) $2 Million (2010-Boone- Sexual Harassment) $2.1 Million (2010-Jackson Co.- Age) $3.25 Million (2009-Raleigh Co.- Disability)[included $2.2 Million in punitive damages $100,000 (2009- McDowell Co.- Retaliation) $1.8 Million (2008-Boone Co.- Age) $1.9 Million (2007- Boone Co.- Retaliation) $302,910 (2007- Kanawha Co.- Disability) $427,000 (2005-Cabell Co.-Sexual Harassment) $2 Million (2005- Kanawha Co.- Retaliation)

W.Va. Code 5-11-9(7)(A) (1998) (2006) of the WVHRA establishes 3 distinct causes of action. Specifically, it is an unlawful discriminatory practice for any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to: (1) engage in any form of threats or reprisal, or; (2) engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss, or (3) aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in W.Va. Code 5-11-9.

Who is a Person under W.Va. Code 5-11-9(7) The term person is defined by the Human Rights Act, in W.Va. Code 5-11-3(a) (1998) (2006), as one or more individuals, partnerships, associations, organizations, corporations, labor organizations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups of persons.

W.Va. Code 5-11-9(7)(A) (1998) (2006) of the W.Va.HRA prohibits unlawful discrimination when the discrimination is based upon race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status.

Two Venues for Obtaining Remedies Under the WVHRA 1. The WV Human Rights Commission See WVa Code 5-11-10 Note: Rules of Practice before the Commission are found at 77 CSR2 2. Circuit Courts See Syl. Pt. 1, Price v. Boone County Ambul. Auth., 175 W.Va. 676, 337 S.E.2d 913 (1985) Note: No requirement to exhaust administrative remedies; however, if before the Commn must have a Right to Sue letter before filing in Circuit Court

State Regs for WVHRA Title 77 Series 1- Disability Discrimination Series 2- Rules of Practice and Procedure Series 3- Religious Discrimination Series 4- Sexual Harassment Series 5- Exemption of Private Clubs Series 6- Waiver of Rights (Settlements) Series 7- Employer Defined Note: Series 8 under Title 77 are the Rules of Procedure for Claims under the WV Fair Housing Act

Before the WV HRCommission Two Phases Pre-Hearing Phase Hearing Phase (triggered by a Probable Cause finding at the conclusion of the Pre-Hearing Phase)

Before the Human Rights Commission Verified complaint, signed by the complainant and notarized, with a concise statement of alleged discrimination and the dates of alleged discrimination Timeliness: 365 days after the alleged discrimination (77 CSR 2-3.9.d.1) Obligation of all parties to preserve records: as may be relevant to the Comm. Investigation (77 CSR 2-3-14.c) Class Actions: May be heard by the Commission (77CSR 2- 3.15)- dismissal or settlement approved by ALJ

Before the Commission Time Frames Compliance Director has within 75 days, but not to exceed 150 days to complete an investigation into the Complaint 77-2-4.1 This is the Pre-Hearing Phase Once Complaint received by Commission, Commission provides notice of claim to Respondent 77-2-3.11 Respondent has 10 days from receipt of notice of claim to submit a written reply Statement of facts and circumstances surrounding allegations May include documents or other evidence This is technically is not an Answer with Affirmative Defenses

Before the Commission- Discovery At the pre-hearing stage, all discovery conducted by the Commission, not the parties Interviews and depositions (77-2-4.3) Production of documents for copying and inspection (77-2-4.4) Interrogatories (77-2-4.5) Failure of any party to voluntarily comply may result in an adverse inference (77-2.4.6) and/or compulsory efforts via subpoena (77-2.4.7)

Resolution as to Complainants Claim in the Pre-Hearing Phase Probable Cause (Proceeds to hearing) No Probable Cause (Notice to all parties) Complainant may see administrative review and submit new evidence (77-2-4.14) Standard= arbitrary, capricious and not in accordance with the law No Probable Cause finding at this stage triggers a Right to Sue letter (77-2-4.14.f.6.) Settlement/Conciliation Between Complainant and Respondent OR Between Respondent and Commission (77-2-4.13.e.) Complainant receives notice and opportunity to object If submits objections, may have hearing on objections

During the PreHearing Phase Matter is being investigated by an assigned Investigator who is not an attorney, but who has had some experience/training on what constitutes discrimination and how to conduct an investigation Although not officially tendered to the AGs office, a representative from the AGs office (an Assistant WV AG) is available to the investigators to respond to questions and review materials

Mediations May Be Ordered in Commission Cases 7 CSR 2-4.15.a. Note that the Mediation Rules follow the West Virginia Trial Court Rules regarding mediations

Once The Commission Has a Foot in the Door.. Settlement between the parties does not necessarily mean that the case will be closed if the Commission has an interest in a claim against a Respondent beyond that of the Complainant (77-2-4.9) Similarly, a No-Probable Cause finding as to the Complainants claims will not close the case if the Commission has discovered grounds for holding a Respondent liable for a discriminatory practice (77-2- 4.11)

Probable Cause= Hearing Phase If a Probable Cause Determination is made, the case proceeds to hearing Respondent has 10 days from Receipt of Notice of Hearing and Complaint to file an Answer 77-2-6 (admitting or denying allegations, asserting defenses, etc.) Hearings are open to the public, generally held in the county where the Respondent conducts business (77- 2-7.1 and.2)

Hearing, cont. ALJ presides and is subject to Judicial Code of Ethics (77-2-7.4.a.) Commns attorney or agent presents the evidence for the Complainant unless the Complainant has a private attorney and obtains permission for the attorney to present evidence (where Commission does not have independent interest in claim) (77-2-7.7) Motion practice 77-2-7.11 Subpoena power 77-2-7.12 and see W.Va. Code 29A-5-1(b) Limited discovery permitted at this stage, including limited discovery of Commission staff (See 77-2-7.14 and 16 and 17) Unlike Rule 26, WVRCivP, limited obligation to supplement (77-2-7.20)

Hearing (cont.) Rules of Evidence apply, as modified by W.Va. Code 29A-5-2, except when contrary to the Act or these Rules (77-2-7.31) ALJ has the authority to make rulings regarding privileges, including holding in camera reviews of privileged materials Syl. Pt. 2, Marshall County Commn v. Carter, 225 W.Va. 68, 689 S.E.2d 796 (2010)

How to endear yourself to the ALJs WVHRCs adjudicatory process more formal than many other admin agencies. Attys (and pro se defendants) should be prepared to follow the rules of evidence during the Administrative Hearing, as well as the procedural rules found at WV CSC 77-2-1, et seq.

There are key differences between Rules of Practice and Procedure before WVHRC and the WV Rules of Civil Procedure: Be familiar with the differences and apply them correctly For example, discovery before the WVHRC does not include Requests for Admissions. You will not endear yourself to the ALJ by attempting inappropriate discovery.

ALJ pet peeve create your record One of [the ALJs] biggest frustrations comes from lawyers who refuse to file the appropriate discovery motions. Attorneys will complain about the opposing partys discovery practices throughout the discovery process and the administrative hearing, but the record is devoid of motions to compel, motions for protective orders, motions to quash, etc. [The ALJs] will not listen to attorneys complain when they were too lazy to take any corrective action.

Set the agenda Attorneys need to be prepared to frame the specific issues presented in a matter on record at the beginning of any administrative hearing, as well as the specific remedies sought (i.e. reinstatement, back pay, front pay, dismissal, etc.). It continues to surprise [the ALJs] how frequently we get to a hearing and the parties are focused on completely different issues.

Maintain decorum- over yourself and your client Use civility The ALJs take note and truly appreciate attorneys who engage in appropriate courtroom behavior and insist that their clients do the same. While this is not a new concept, attorneys do not realize how distracting and often times detrimental their behavior can become when an ALJ has to focus on maintaining order rather than on the legal issues presented

Cite to the record & cite to the law Attorneys should remember that proposed findings of fact and conclusions of law are of no merit unless they contain citations to the transcripts and/or case law. It is appalling how often [the ALJs] receive briefs which are almost devoid of citations to source materials.

ALJ Rulings ALJ has 1 year from the filing of the Complaint to complete the hearing phase and issue a final ruling containing findings of fact and conclusions of law (77- 2-9.1) Finding of no discriminatory act- Dismissal Finding of discriminatory act Order to cease and desist Award economic damages (77-2-9.3.a) Award incidental damages up to $2,950 (or as may be adjusted by the Commission) (77-2-9.3.b) Award equitable relief as will make the complainant whole, including attorneys fees (77-2-9.3.c)

Appeals from ALJ Within 30 days of receipt of the ALJs final decision, either party may file a notice of appeal to the Commission (not an automatic stay unless a stay is requested), and a petition is NOT mandatory (77-2-10) If a notice of appeal is not filed within 30 days, then the Commission will enter an Order either affirming the ALJs final decision or, sua sponte, modifying or setting aside the decision

Appeals from AJL (cont.) Within 20 days of receipt of the notice of appeal (and any Petition) the other party(ies) may file a response Within 60 days of the notice of appeal, the Commission shall Affirm, Modify or Set Aside the ALJs Final Decision, or Remand for further proceedings

Appeal from the Commissions Decision The Commissions final order on the ALJs final decision can be appealed to the WV Supreme Court of Appeals Notice of appeal must be filed within 30 days after receipt of the Commissions final order (77-2-11)

Commission Files Are Subject to FOIA CSR 77-2-15 Complaint Answer Orders, including Consent Orders Determinations and final dispositions Pleadings Briefs Subpoenas Motions and responses Hearing Notices Transcripts, exhibits and evidence of record Notice of Appeal

Multiple differences Between Proceeding before the Commission rather than Circuit Court--- Two biggest difference is that in Circuit Court the Plaintiff can seek PUNITIVE DAMAGES See Dobson v. Eastern Assoc. Coal Corp., 188 W.Va. 17, 422 S.E.2d 494 (1992)(Where plaintiff sought relief in Circuit Court rather than before the WVHRC, plaintiff may seek damages sounding in tort.) Statute of repose extends 1 year limitation period (W.Va. Code 5-11-13)

Prima Facie Claim Evidentiary standards for WVHRA claims are identical to the federal cases under Title VII (unless statutory language differs). See e.g. Ways v. Imation Enterprises Corp., 214 W.Va. 305, 589 S.E.2d 35 (2003) Said differently, most cases will involve the McDonnell Douglas burden shifting approach But, disability claims under the WVHRA are not mechanically tied to federal disability jurisprudence Stone v. St. Josephs Hospital of Parkersburg, 208 W.Va. 91, 538 S.E.2d 389 (2000)

Prima Facie Claim The Plaintiff is in a protected status; The Defendant took adverse action against the Plaintiff; But for the Plaintiffs protected status, the Defendant would not have taken the adverse action

Prima Facie Claim (cont) Note: It is a de minimus burden -See Conrad v. ARA Szabo, 198 W.Va. 362, 480 S.E.2d 801 (1996) Direct evidence of discrimination is not necessary; circumstantial evidence may be used to link the adverse decision to the plaintiffs protected status to give rise to an inference of discriminatory intent See W.Va. Institute of Techn. v. W.Va. Human Rights Commn, 181 W.Va. 525, 383 S.E.2d 490 (1989)

Rebuttable Presumption Defendant can rebut the prima facie claim by presenting evidence of a legitimate, non- discriminatory basis for the adverse action. Plaintiff has the opportunity of then presenting evidence that the reason given by the defendant is mere pretext for discrimination Mixed motive burden is upon Defendant to demonstrate that it would have taken the same action even absent the bad motive.

Protected Status Sex Race/color Age (>40) Religion National origin/ancestry Disability Genetics (related to disability) Association (familial status) Individuals who participate in investigations of harassment/discrimination (retaliation claims)

Disability The term disability means, with respect to an individual A physical or mental impairment that substantially limits one or more major life activities of such individual; A record of such impairment; or Being regarded as having such an impairment

Major Life Activities/Bodily Function Caring for oneself Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending Speaking Breathing Learning Reading Concentrating Thinking Communicating, and Working Immune system Normal cell growth Digestive Bowel Bladder Neurological Brain Respiratory Circulatory Endocrine, and Reproductive functions

Examples of disabilities Alcoholism/Drug Addiction Allergies Alzheimers Autism Brain-Head Impairment Brain-Head Injury (Trauma) Cancer Cerebral Palsy Chemical Sensitivity Cystic Fibrosis Disfigurement Dwarfism Epilepsy Gastrointestinal Impairments Genetic Discrimination Hearing Impairment Heart/Cardiovascular Impairment HIV Kidney Impairment Diabetes Learning Disabilities Dyslexia ADHD Dysgraphia Mental Retardation Multiple Sclerosis Non-Paralytic Orthopedic Impairment Orthopedic and Structural Impairments of the Back Blood Disorders Other neurological Impairments Paralysis Psychological /Psychiatric Disorders Anxiety disorder SAD Schizophrenia Bipolar Disorder Depressive Disorder Post Traumatic Stress Disorder (PTSD) Pulmonary Disorders Asthma COPD Emphysema Tuberculosis Speech Impairment Vision Impairment

Disabilities are not Transient or temporary conditions, like a cold, the flu, a cut finger or broken bone that is expected to heal

Victim/Perpetrator Both can be in the same protected status Woman vs. Woman African American vs. African American Etc.

What is Discrimination? Discrimination Not Discrimination Treating someone differently by virtue of protected status In employment cases: Hiring Compensation Advancement Hours Assignments Benefits Other terms and conditions of employment When decisions are made based on merit (employment) When decisions are made based upon statutory requirements When decisions are made based on essential job functions (employment) When decisions are made based on business necessity

Disparate treatment is when one person in a protected status is treated differently than someone who is not in a protected status motive is key Disparate impact is when a group of people in a protected status is treated differently than those who are not in that protected status discriminatory effect is key

What is Deemed Discriminatory Conduct? Evidence that plaintiffs may discover to demonstrate the discriminatory conduct Employer policy, procedures and practices Statistical analysis of how individuals in protected versus non protected groups have been treated See Dobbs v. Eastern Assoc. Coal Corp, 181 W.Va. 251, 382 S.E.2d 88 (1989) regarding Rule 702 evidence in discrimination cases

Hostile Work Environment (In the employment setting) Four elements Plaintiff was subjected to unwelcome conduct The unwelcome conduct must be based on a protected status (sex, race, etc.) The conduct must be sufficiently severe and pervasive as to alter the plaintiffs conditions of employment and create an abusive work environment The unwelcome conduct must be imputable on some factual basis to the employer

Unlawful Harassment Slurs (name calling) Jokes Offensive or derogatory remarks Offensive or derogatory images Tying (business) decisions to the individual submitting to sexual advances or slurs/jokes/remarks/images

Unwelcome Conduct Means the alleged victim Did not solicit or incite it Regarded the conduct as undesirable or offensive If the alleged victim did solicit, incite or participated in the offensive conduct, then he/she must present evidence that a) he/she ultimately informed the other person that the conduct was unwelcome; and b) thereafter, the offensive conduct continued Syl. Pt. 6, Erps v. WV Human Rights Commn, 224 W.Va. 126, 680 S.E.2d 371 (2009)

Imputable to Employer Knew or should have known of the offensive conduct and failed to take corrective action Obligation to have effective rules prohibiting harassment and addressing harassment

How do employers meet (or fail to meet) their obligations under the WVHRA? Have and Enforce Policies Investigate Claims of Discrimination and/or Harassment Make Reasonable Accommodations for claims handling

Reasonable Accommodations (in employment cases) Required in instances when a persons religious beliefs interferes with a job duty/function Required for individuals with disabilities if a reasonable accommodation by the employer will assist the employee to perform an essential job duty

Reasonable Accommodations CAN INVOLVE (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

Reasonable Accommodations CAN INVOLVE (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations

A word about transfers to vacant positions The employer should not assume that a vacant position is undesirable to an employee needing/desiring an accommodation. Reduced salary, reduced duties, even a different location (requiring an employee to move) are not reasons for the employer not to offer the accommodation In other words, if the employee is otherwise qualified, then extend the offer and let the employee decide

Employer is NOT Required To implement any and/or all accommodations that the employee may request or that the employees physician suggests The employer is entitle to evaluate what accommodations may be available and are reasonable

Undue Hardship Any action requiring significant difficulty or expense

Retaliation Prohibited Plaintiff engaged in protected activity Defendant took adverse action against Plaintiff Evidence (including, inference drawn from time nexus) that protected activity led to or caused the adverse action Burden shifts to defense to prove legitimate, non- retaliatory basis for adverse action Burden shifts back to plaintiff to prove pretext

Protected Activity Can be making a report of discrimination or harassment Within the company To an enforcement agency (WVHRC or a local human relations commission) During an investigation or in a legal proceeding (deposition/trial) Even if there is no actionable discrimination or harassment present, the report itself puts the plaintiff into a protected status

Settlements State regulations regarding any waiver (settlement) of a claim that is cognizable under the WV Human Rights Act (discrimination on the basis of age, sex, disability, national origin, religion, race, association, etc.) is not valid and binding unless the requirements of 77CSR 6-3.2are met

Settlements (cont) 77-6-3.2 Provides that the waiver be part of a written agreement In plain English written in a manner calculated to be understood by the average person with a similar education That specifically references the rights or claims made under the WV Human Rights Act That provides that the waiver does NOT extend to rights or claims that may arise after the date the wavier is executed That provides additional consideration specific to the waiver of rights (additional to anything of value to which the individual is already entitled That advises the individual to consult with an attorney prior to executing the agreement and provides the individual with the toll free telephone number of the West Virginia State Bar Association (1-800-642-3617); That provides a period of at least twenty-one (21) days within the individual can consider the agreement; and That provides for a period of at least seven (7) days following execution of such agreement during which the individual may revoke the agreement in writing

HOWEVER. 77-6-3.3 also provides that: If a party who has filed a complaint pursuant to the West Virginia Human Rights Act executes a written release in connection with the settlement of the claims made in the complaint, and the release is entered into by the party with the direct assistance of an attorney who has made an appearance on behalf of such complaining party, the release may be considered a knowing and voluntary waiver without regard to the requirements of 3.2.e., 3.2.f. and 3.2.g.

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Getting Started- Bringing the Claims/Defending the Claims Charlotte A. Hoffman Norris, Esq. Farrell, White & Legg PLLC March 25, 2014