Allen v. State, Human Rights Com'n

• Decision Date: 06 December 1984
• Docket Number: No. 16303,16303
• Citation: 174 W.Va. 139,324 S.E.2d 99
• Parties: , 54 Fair Empl.Prac.Cas. (BNA) 2 Edith ALLEN, Marguerite Francisco, Virginia Lucas, Henry Clay Moore, and Peggy Haid v. STATE of West Virginia HUMAN RIGHTS COMMISSION, and Howard D. Kenney, the Executive Director of the West Virginia Human Rights Commission.
• Court: West Virginia Supreme Court

Page 99

324 S.E.2d 99

174 W.Va. 139, 54 Fair Empl.Prac.Cas. (BNA) 2

Edith ALLEN, Marguerite Francisco, Virginia Lucas, Henry

Clay Moore, and Peggy Haid v. STATE of West Virginia HUMAN RIGHTS COMMISSION, and Howard

D. Kenney, the Executive Director of the West

Virginia Human Rights Commission.

No. 16303.

Supreme Court of Appeals of

West Virginia.

Dec. 6, 1984.

Syllabus by the Court

1. "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. "Mandamus will not be denied on the ground that there is another remedy unless such other remedy is equally convenient, beneficial, and effective." Syl. pt. 5, Hardin v. Foglesong, 117 W.Va. 544, 186 S.E. 308 (1936).

3. "A peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty." Syl. pt. 4, Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612 (1939).

4. "The word 'shall' in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).

5. Under West Virginia Code § 5-11-10 (1979 Replacement Vol.), the Human Rights Commission has a mandatory duty to place on its docket all complaints tendered that meet five criteria: (1) verification; (2) name and address of the respondent; (3) description of the alleged discriminatory action or practice; (4) other information as required in rules and regulations promulgated by the Commission; and (5) filing within ninety days after the alleged act of discrimination.

6. Under West Virginia Code § 5-11-6 (1979 Replacement Vol.), the Human Rights Commission has a mandatory duty to employ at least one full-time hearing examiner, who is an attorney duly licensed to practice law in the State of West Virginia, for the conduct of public hearings authorized under the West Virginia Human Rights Act.

7. Under West Virginia Constitution art. III, § 10, which provides that "No person shall be deprived of life, liberty, or property, without due process of law ...," and under West Virginia Constitution art. III, § 17, which provides that "justice shall be administered without ... delay," administrative agencies performing quasi-judicial functions have an affirmative duty to dispose promptly of matters properly submitted.

8. Under West Virginia Constitution art. III, §§ 10 and 17; West Virginia Code § 5-11-10 (1979 Replacement Vol.); and West Virginia Code § 5-11-13 (Supp.1984), the Human Rights Commission has a mandatory duty to hold adjudicatory hearings within one hundred eighty days, and to issue final orders within one year, from the date of filing of complaints upon which it is determined probable cause exists for substantiating their allegations.

9. The Human Rights Commission has a mandatory duty to promulgate rules and regulations pursuant to West Virginia Code § 5-11-8(h) (Supp.1984) specifying internal procedural time limits through which adjudicatory time limits can be met.

10. Under West Virginia Code § 5-11-5 (1979 Replacement Vol.), the governor has a mandatory duty to immediately fill vacancies on the Human Rights Commission, with the advice and consent of the senate, so as to maintain membership on the Commission at nine members.

11. Any officer, department or agency of state government has a mandatory duty, under West Virginia Code § 5-11-7 (1979 Replacement Vol.), to assist the Human Rights Commission upon request in its hearings, programs, and projects.

12. The Attorney General has a mandatory duty, under West Virginia Code § 5-11-7 (1979 Replacement Vol.), to furnish all legal services required by the Human Rights Commission.

13. West Virginia Constitution art. VII, § 5, casts the governor in the responsible role of insuring that all executive agencies comply fully with their mandatory duty to assist the Human Rights Commission without recompense in the preservation and vindication of the fundamental human and civil rights guaranteed under the Human Rights Act and under our state constitution.

Mike Kelly, Charleston, for petitioners.

Gail Ferguson, Asst. Atty. Gen., Charleston, for respondents.

Jane Moran, Williamson, for amicus curiae Now & Nat'l. Council of Jewish Women & W.Va. Civil Liberties Union.

James E. Williams, Lonesome, Price & Williams, Charleston, Cheryl L. Henderson, Henderson & Henderson, Huntington, Grant Crandall, Crandall, Pyles & Crandall, Charleston, Sharon Mullens, Cross Lanes, Joseph Franklin Long, Bluefield, Allan N. Karlin, Morgantown, for amicus curiae, W.Va. State Conference of Branches of Nat'l. Assoc. for Advancement of Colored People & Mountain State Bar Assoc.

McGRAW, Justice:

The petitioners in this mandamus action, four individuals who have filed complaints with the West Virginia Human Rights Commission, and one individual who has attempted to file a complaint with the Commission, seek to compel the Commission, and its Executive Director, Howard D. Kenney, to: (1) accept complaints which meet criteria established in the statute and in rules and regulations promulgated by the agency; (2) employ at least one full-time hearing examiner to conduct public hearings; (3) promptly investigate all complaints filed; (4) conduct an immediate conciliation conference following probable cause determinations on all complaints filed; (5) hold public hearings within a reasonable time following probable cause determinations on all complaints filed; (6) promptly dispose of a number of docketed cases which are hampering the operation of the agency's administrative machinery; and (7) reimburse them for attorneys fees and other costs associated with the prosecution of this mandamus action. Following a brief description of the status of each petitioner's complaint before the Human Rights Commission; a discussion of the appropriateness of mandamus in this case; and an analysis of the structure and function of the Human Rights Commission, each of the issues raised by the petitioners will be addressed.

I Edith Allen

In 1974, and for several years thereafter, petitioner Edith Allen, a black female, filed applications for employment with the Union Carbide Corporation at its South Charleston and Institute plants. On February 2, 1977, the petitioner filed a complaint with the Human Rights Commission, charging that Union Carbide had failed to hire her on the basis of race when it hired white applicants with comparable training and experience. On January 11, 1979, almost two years after her complaint was filed, the Human Rights Commission determined that there was probable cause to believe her charge of race discrimination, stating that its investigation revealed a set of circumstances which "strongly support the findings of Probable Cause based on race discrimination in employment." Despite this finding of probable cause, no further action was taken by the Commission for over four years. Finally, the petitioner's complaint was scheduled for hearing on February 24, 1983. This hearing, however, was not held on the date scheduled, but was rescheduled for June 6, 1983. This rescheduled hearing was also continued generally with no specific hearing date set. Although the Human Rights Commission indicated, following institution of this mandamus action in April 1984, that a hearing might be held in August 1984, one was not scheduled because of the unavailability of a hearing examiner. It has now been over seven years since the petitioner filed her complaint with the Human Rights Commission.

Marguerite Francisco and Virginia Lucas

On January 6, 1979, petitioners Marguerite Francisco and Virginia Lucas, who were then fifty-one and fifty-eight years of age respectively, were notified by their employer, Thorofare Markets, Inc., that it was closing its Pennyfare store in St. Albans where they worked on January 13, 1979. Petitioner Francisco had been employed at that same location by a number of supermarket operators for twenty-nine years, and petitioner Lucas had been employed at that same location for twenty-seven years. The next day, they were notified by their union that it had accepted a "package deal" which required the petitioners, along with other female employees, to either transfer to a distant Thorofare store or to resign in return for $4000.00 in severance pay. This "deal," negotiated by the union without the knowledge or consent of the petitioners, allowed male employees, who were younger and had less seniority, to remain at the Pennyfare location in St. Albans. On February 27, 1979, the Human Rights Commission docketed complaints from the petitioners charging Thorofare and Pennyfare with unlawful sex and age discrimination. On March 14, 1979, similar complaints were filed against the petitioners' union local. On February 1, 1982, almost three years after the petitioners' complaints had been filed, the Human Rights Commission determined that there was probable cause to believe that Thorofare had engaged in unlawful age and sex discrimination. A similar probable cause determination was issued against the Food Store Employees Union, Local 347, on April 5, 1982. The petitioners' complaints were scheduled for hearings to begin on August 11, 1982. These hearings were continued, however, on the motion of the union. The hearings were rescheduled for October 26, 1982. Again, these hearings were continued, this time on the motion of Thorofare. The hearings were rescheduled for December 14, 1982. These hearings were also continued on motion of the Commission. Finally, on February 22, 1983, over four years after the initiation of these discrimination actions, hearings began on the complaints of...