Independent Fire Co. No. 1 v. West Virginia Human Rights Com'n

• Decision Date: 11 May 1988
• Docket Number: No. 1,No. CC984,1,CC984
• Parties: Page 612 376 S.E.2d 612 180 W.Va. 406, 53 Empl. Prac. Dec. P 40,027 INDEPENDENT FIRE COMPANY NO. 1 v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Daniel Lutz. Supreme Court of Appeals of West Virginia. Syllabus by the Court 1. Under W.Va.Code,
• Court: West Virginia Supreme Court

Page 612

376 S.E.2d 612

180 W.Va. 406, 53 Empl. Prac. Dec. P 40,027

INDEPENDENT FIRE COMPANY NO. 1 v WEST VIRGINIA HUMAN RIGHTS COMMISSION and Daniel Lutz.

No. CC984.

Supreme Court of Appeals of

West Virginia.

Syllabus by the Court

1. Under W.Va.Code, 5-11-10, the time period for filing a complaint with the Human Rights Commission alleging a violation of the Human Rights Act is not jurisdictional in nature and is subject to waiver and equitable doctrines of tolling and estoppel.

2. In cases alleging a discriminatory discharge from employment under W.Va.Code, 5-11-10, the time period for filing a complaint with the Human Rights Commission ordinarily begins to run on the date when the employer unequivocally notifies the employee of the termination decision.

John C. Skinner, Jr., F. Samuel Byrer, Nichols & Skinner, Charles Town, for appellant.

Robert S. Baker, Beckley, for Lutz.

Sharon Mullins, Asst. Atty. Gen., Charleston, for HRC.

MILLER, Justice.

This certified question proceeding ¹ from the Circuit Court of Jefferson County raises two questions of first impression concerning the timely filing of a complaint with the West Virginia Human Rights Commission ("HRC" or "Commission"): (1) whether the statutory time period for filing a complaint with the HRC ² is jurisdictional in nature, or rather is akin to a statute of limitations which can be waived or modified by traditional equitable doctrines; and (2) when does the limitation period commence to run in a case where an employee is told he is being indefinitely suspended, not terminated, and is subsequently denied reinstatement.

I.

The facts and procedural history of the case are not complicated and will be reviewed only to the extent necessary to resolve the legal issues raised in this proceeding. The complainant, Daniel Lutz, was a member of the Independent Fire Company, No. 1, Inc., a volunteer fire company located in Shepherdstown, West Virginia, from March 1, 1969, until May 9, 1977, when he was indefinitely suspended from membership.

Prior to his suspension, the complainant had endorsed the application of a female, Debbie Armstrong, for membership in the volunteer fire company. A committee conducted an investigation concerning her character and background and, at a regular meeting on May 5, 1977, issued a favorable report on her application. The membership then voted to reject her membership application. ³ The complainant made a motion for reconsideration, but the motion was ruled out of order. At that point in time, the volunteer fire company had never had a female member.

After the May 5, 1977 meeting had adjourned, the complainant was interviewed by a newspaper reporter from Hagerstown, Maryland, and discussed the results of the membership vote. A subsequent newspaper article concerning the rejected application, published on May 7, 1977, contained several comments made by the complainant. On May 9, 1977, the complainant was at the firehall and was confronted by Donald W. Clendening, the president of the organization, and two other company officers. He was advised that the Board of Directors had voted to indefinitely suspend him from the fire company. After this notification of his suspension, the complainant in June, 1977, contacted an attorney who sought to secure his reinstatement. By letter of November 4, 1977, the complainant was advised by his counsel that attempts to negotiate his reinstatement had been fruitless.

The Commission concluded it had jurisdiction over the complaint as it had been filed on January 30, 1978, and was thus filed within ninety days after the complainant was denied reinstatement on November 4, 1977. The Commission also concluded that the respondent organization was a public accommodation subject to the Human Rights Act ⁴ and had engaged in a practice of denying females access to the privileges of membership. See Shepherdstown Volunteer Fire Dep't v. State ex rel. W. Va. Human Rights Comm'n, 172 W.Va. 627, 633, 309 S.E.2d 342, 348 (1983). ⁵ The Commission found that although the complainant may have violated many of the respondent organization's By-Laws during his membership, he had been suspended for his actions surrounding the endorsement of a female for membership with the organization. The fire company retaliated against the complainant because of his sponsorship of a female for membership and had, therefore, violated the Act.

The respondent organization appealed, contending that the Commission had no jurisdiction over the case, and the circuit court certified the question set forth in note 1, supra. The circuit court answered the question in the negative, rejecting the argument that the complainant's indefinite suspension was a continuing violation of the law that was not complete until he was denied reinstatement in November, 1977. The circuit court reasoned that the complainant's indefinite suspension was tantamount to a termination which commenced the time period for filing an administrative complaint.

II.

The foremost question presented in this appeal concerns the nature of the time period for filing an administrative complaint alleging an unlawful discriminatory practice in violation of the Human Rights Act. The United States Supreme Court in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), considered a similar question involving whether the statutory time limit for filing charges with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., is a jurisdictional bar to instituting an action in federal court. In a unanimous opinion by Justice White, the Supreme Court held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." 455 U.S. at 393, 102 S.Ct. at 1132, 71 L.Ed.2d at 243. (Footnote omitted). The Supreme Court stated that to hold the filing period was not jurisdictional was to "honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer." 455 U.S. at 398, 102 S.Ct. at 1135, 71 L.Ed.2d at 246-47.

Zipes, of course, is not controlling here, but it is not without persuasive force. Unfortunately, in Zipes, the Supreme Court, while holding that the failure to file with the federal EEOC within the ninety-day period did not bar the district court's jurisdiction, it did not explain what equitable event caused the tolling. Nor does it appear that the Supreme Court has addressed this question in any detail.

One of the better discussions of this question is found in Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 291 (7th Cir.1986), where the court made this general statement:

"Indeed, two types of equitable modification are generally recognized: '(1) equitable tolling, which often focuses on the plaintiff's excusable ignorance of the limitations period and on lack of prejudice to the defendant and (2) equitable estoppel, which usually focuses on the actions of the defendant.' Naton v. Bank of California,649 F.2d 691 (9th Cir.1981) (citations omitted)."

The court in Mull, 784 F.2d at 291, then proceeded to a more specific statement as to the concept of equitable tolling:

"Dealing first with equitable tolling, it is well-established that the limitations period is tolled until ' "facts that would support a charge of discrimination ... [are] apparent or should [be] apparent to a person with a reasonably prudent regard to his rights similarly situated to the plaintiff." ' Vaught [v. R.R. Donnelley & Sons Co., 745 F.2d 407] at 410-11 [ (7th Cir.1984) ] (quoting Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.1975))."

It then discussed in some detail the doctrine of equitable estoppel:

"Equitable estoppel is available only if the employee's otherwise untimely filing was the result 'either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.' Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982). Among other factors, the granting of equitable estoppel should be premised upon (1) 'a showing of the plaintiff's actual and reasonable reliance on the defendant's conduct or representations' and (2) 'evidence of improper purpose on the part of the defendant or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct.' Naton, 649 F.2d at 696." 784 F.2d at 292. ⁶

A number of state courts have also held that the limitation period for filing a discrimination complaint is not jurisdictional and is subject to equitable tolling principles. e.g., Carlson v. Independent School Dist. No. 623, 392 N.W.2d 216 (Minn.1986) (in claims arising after 1981); Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 525 N.E.2d 643 (1988); Copeland v. Desert Inn Hotel, 99 Nev. 823, 673 P.2d 490 (1983); see generally B. Schlei & P. Grossman, Employment Discrimination Law ch. 28 (2d ed. 1983). The Massachusetts Supreme Court in Christo relied on Zipes in coming to a similar conclusion, and found that if "Christo was misled by agency employees ... from filing a timely complaint with the [agency], perhaps the six-month filing period should be tolled[.]" 402 Mass. at 817, 525 N.E.2d at 645.

We have never expressly considered the legal character of the time period for filing a discrimination complaint with the Commission, though we have on occasion made some reference to the requirement being jurisdictional in nature. ⁷ For example, in West Virginia Human Rights Comm'n v. United Transp. Union, Local No. 655, 167 W.Va. 282, 290-91, 280 S.E.2d 653, 658 (1981), we stated that the filing requirement is "a jurisdictional prerequisite ... and is nonwaivable." ⁸...