Price v. Boone County Ambulance Authority

• Decision Date: 06 December 1985
• Docket Number: No. CC954,CC954
• Citation: 175 W.Va. 676,337 S.E.2d 913
• Parties: , 53 Fair Empl.Prac.Cas. (BNA) 1746, 40 Empl. Prac. Dec. P 36,239 Edward E. PRICE v. BOONE COUNTY AMBULANCE AUTHORITY, et al
• Court: West Virginia Supreme Court

Page 913

337 S.E.2d 913

175 W.Va. 676, 53 Fair Empl.Prac.Cas. (BNA) 1746,

40 Empl. Prac. Dec. P 36,239

Edward E. PRICE v. BOONE COUNTY AMBULANCE AUTHORITY, et al

No. CC954.

Supreme Court of Appeals of West Virginia.

Dec. 6, 1985.

Syllabus by the Court

1. A plaintiff may, as an alternative to filing a complaint with the Human Rights Commission, initiate an action in circuit court to enforce rights granted by the West Virginia Human Rights Act.

2. The remedies available in circuit court for violation of W.Va. Code § 5-11-9 are those set out in W.Va.Code § 5-11-13(c).

Mike Kelly, Mary Catherine Buchmelter, Legal Aid Society of Chas., Charleston, for appellant.

Francis M. Curnutte, III, Madison, for appellees.

BROTHERTON, Justice:

This case is before the Court on two questions certified by the Circuit Court of Boone County. That court asks, in essence, whether or not a plaintiff may sue to enforce the substantive provisions of the West Virginia Human Rights Act, chapter 5, article 11 of the Code, without complying with the Act's procedural requirements. For the reasons set out below, we affirm the circuit court's ruling that the plaintiff has a right to sue in circuit court, as an alternative to filing a complaint with the Human Rights Commission.

The defendant in this case, the Boone County Ambulance Authority ("the Authority"), is a public corporation created by the Boone County Commission pursuant to W.Va. Code § 7-15-4 (1975). ¹ The petitioner, Edward-Price, was a part-time employee of the Authority prior to a reorganization in which all part-time positions were eliminated. In the reorganization, the Authority created several new full-time positions, and Price applied for a full-time job as an ambulance driver. He was not hired.

Approximately 117 days later, Price filed suit in the Circuit Court of Boone County, alleging that the Authority refused to hire him because he is black. This, he alleged, constituted a violation of the West Virginia Human Rights Act, specifically Code § 5-11-9(a). ² He did not file a complaint with the West Virginia Human Rights Commission. The Authority moved to dismiss the complaint because Price had not filed a complaint with the Human Rights Commission within ninety days of the alleged act of discrimination, as required by Code § 5-11-10 (1979). The circuit court denied the Authority's motion, and in recognition of the importance of the jurisdictional issue posed, certified the following two questions to this Court:

1. Whether a person alleging to be aggrieved by an unlawful discriminatory act as prohibited by the West Virginia Human Rights Act must, as a matter of law, file a complaint with the West Virginia Human Rights Commission within ninety days after the alleged act of discrimination or be forever barred from prosecuting in the courts of this State any claim arising under the Act.

2. Whether a person alleging to be aggrieved by an unlawful discriminatory act as prohibited by the West Virginia Human Rights Act has, as an alternative remedy to the administrative procedures set forth in the Act, the right to directly initiate a civil action under the Act in the circuit court of the county wherein the defendant resides or transacts business without the necessity of first filing a complaint with the Human Rights Commission, provided that he or she does so before the expiration of the statute of limitations on the claim.

The circuit court answered the first question in the negative and the second in the affirmative, concluding that Price should be allowed to sue in the circuit court for violations of the Human Rights Act even though he did not follow the Act's procedural requirements.

The controversy centers around the interpretation of W.Va. Code § 5-11-13 (Supp.1985). Each side reads this section to support its own position. Section 5-11-13 provides:

(a) Except as provided in subsection (b), nothing contained in this article shall be deemed 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 handicap, but as to acts declared unlawful by section nine [§ 5-11-9] of this article the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the complainant concerned. If such complainant institutes any action based on such grievance without resorting to the procedure provided in this article, he may not subsequently resort to the procedure herein....

(emphasis added). The italicized language permits no clear conclusion. On the one hand, it appears to say that the Act's procedure is the exclusive means for vindicating rights declared unlawful by § 5-11-9. On the other hand, the insertion of "when invoked" indicates that the exclusivity provision applies only when an injured party has initiated administrative action. Because the statute is ambiguous, we must construe it in light of its legislative intent. See, e.g., State ex rel. Simpkins v. Harvey, 172 W.Va. 312, 317, 305 S.E.2d 268, 273 (1983).

The overall purpose of the Human Rights Act was expressed by the Legislature in its declaration of policy: "[T]o provide all ... citizens equal opportunity for employment, equal access to places of public accommodations, and equal opportunity in the sale, purchase, lease, rental, and financing of housing accommodation § or real property." W.Va. Code § 5-11-2 (Supp.1985). The purpose of creating an administrative enforcement mechanism was to circumvent civil or criminal suits for civil rights violations, which had proven expensive and ineffective, and to utilize instead administrative investigation, conciliation, and enforcement. See generally Note, The Right to Equal Treatment: Administrative Enforceme nt of Antidiscrimination Legislation, 73 Harv.L.Rev. 526, 526-28, 573-74 (1961). If this route proved too slow, the Legislature provided, in 1983 amendments, a mechanism for transferring a case to circuit court for resolution. See W.Va. Code § 5-11-13(b) (Supp.1985). ³ This provision for transfer, along with the express savings clause, ⁴ demonstrates that the Legislature intended some combination of administrative and judicial enforcement of the rights granted by the Human Rights Act. ⁵ It may reasonably be concluded that although the Legislature created the Human Rights Commission as the primary enforcement mechanism for rights created by the Act, it intended to preserve the ability of a complainant to resort to circuit court when either he had an independent right to do so or when the administrative process proved ineffective.

This conclusion is counter to the general rule of statutory construction that where a new right is created by statute, the remedy provided for its violation is exclusive. See, e.g., Smith v. Police & Firemen's Retirement & Relief Bd., 460 A.2d 997, 1000 (D.C.1983); Soley v. State Comm'n on Human Relations, 277 Md. 521, 526, 356 A.2d 254, 257-58 (1976); Pompey v. General Motors, Inc., 385 Mich. 537, 552-53, 189 N.W.2d 243, 251 (1971); Lynch v. Merchant's Nat'l Bank, 22 W.Va. 554, 557 (1883). Courts have recognized an exception to this rule, however, where there is no adequate administrative remedy. See, e.g., Poe v. Baltimore City, 241 Md. 303, 308-09, 216 A.2d 707, 709-10 (1966). This Court, in Allen v. State Human Rights Comm'n, 174 W.Va. 139, 324 S.E.2d 99 (1984), recognized that the administrative process established by our Human Rights Act was not achieving its intended purpose, and in addition noted that few plaintiffs were taking advantage of their right to transfer their cases to circuit court for resolution. See id., 174 W.Va. at 145-146 n. 4, 324 S.E.2d at 105-06 n. 4, 114-15. It could, therefore, be concluded that the administrative remedies and the mechanism for transfer to circuit court provided by the statute are at this time inadequate for enforcing the fundamental civil rights granted by our Human Rights Act. In light of this fact and of the legislative purpose and intent as interpreted above, we conclude that § 5-11-13(a) should be construed to give those aggrieved by human...