West Virginia Human Rights Commission v. Wilson Estates, Inc.

152 appeal, Stephanie DAVIS, C.J.,

On MAYNARD, Harvit also claims J., deeming the circuit court erred in refusing disqualified, participate themselves did not require pay Robert B. Harvit to attor- the decision this case.

ney’s fees. ALSOP, Judge, sitting by temporary as- signment. rule, general

As a a trial court has attorney discretion award fees and costs in proceeding involving the modification of an alimony obligation. Goff, v. 177 W.Va. Goff (1987). Further, 356 S.E.2d 496 in di

vorce-type proceedings, a trial court’s rul

ings, fees, as to counsel should not be dis turbed appears this Court unless it

the trial court Rogers abused its discretion. WEST VIRGINIA HUMAN RIGHTS Rogers, v. COMMISSION, W.Va. 475 S.E.2d 457 on its own behalf and (1996); Hinerman, v. Hinerman Caprice Stephen, Appel on behalf of A. (1995); lant, Cummings v. Cummings, 170 W.Va. 296 S.E.2d 542 v. (1982). ESTATES, INC., WILSON A West Hillberry Hillberry, Corporation, and Brian 466 S.E.2d 451 this Wilson, Appellees. stated K. principal inquiry in determining No. 24142. compel

whether to party in a divorce pay attorney’s action to fees and costs to the Supreme Appeals Court of party other is whether the financial circum Virginia. parties stances of the dictate that the award Jan. Submitted attorney’s necessary. fees is May 18, Decided In the case where the evi Concurring Opinion of Justice dence shows that Robert B. Harvit has as McCuskey June $1,000,000.00, sets in excess of whereas Ste phanie V. Harvit has appear assets which substantially $100,000.00, less than

where Robert B. Harvit has approximately

$30,000.00 income, per year in Stephanie essentially

V. Harvit has steady no income

apart alimony, from her the Court believes

that an attorney’s award of Stephanie fees to appropriate.

Harvit is stated,

For the reasons the judgment of of Mingo County Circuit Court is re-

versed, alimony with directions that the obli-

gation be continued. The Court also con-

cludes that Robert B. Harvit pay should

Stephanie attorney’s Harvit’s fees

case. is, The judgment of the circuit court there-

fore, reversed, and this ease remanded for proceedings,

further consistent with what is

stated above.

Reversed remanded. County

of the Circuit Court of Marion dated granting summary judg- October ment, Inc., Estates, Appellees, Wilson, Brian K. in a brought action under the (hereinafter Housing Act sometimes referred “Act”), Virginia §§ to as the West Code 5- (1994). 11A-1 to stating any -20 Without ruling, for its the lower concluded court genuine that there was no of issue material not, Appellees fact and that had as a matter law, of committed discrimination.2 argues summary The Commission that the improper award was as sufficient evidence of discrimination was to permit proceed Upon this matter to to trial. law, a applicable review of the record we determine that the lower court erred granting summary judgment according- ly, pro- we reverse remand for further ceedings.

I. FACTS 22, 1991, August On Wilson en- Estates one-year agreement tered into a lease with Caucasian, Caprice Stephen, A. a to an rent McGraw, Jr., General, V. Attorney Darrell apartment Street, located at 720 Pike 1/2 Mary McLaughlin, Attorney Blain Assistant Barrackville, Virginia. West Ms. Stephens General, Charleston, Appellant. for apartment August moved into the on Brooks, Furbee, Amos, Stephen R. Webb following day, and the Brian K. Wilson Critchfield, Fairmont, Appellees. & for Estates, as the President of Wilson asked Stephen Ms. her apartment. to vacate The WORKMAN, Justice: suggests record that Mr. request Wilson’s The West Commis- was motivated the fact Stephen that Ms. (“Commission”)1 appeals sion an apartment from order had moved into the with the assis- discriminatee, alleged Stephen, 1. While the judge Ms. the indicates that trial law understood the Commission, complainant was the proscribe before the un to discrimination based on the race of provisions der of companions, a tenant’s the lower court’s sum- Housing (1994), §§ W.Va.Code 5-11A-1 to -20 mary judgment ruling appear does not to have party proceed elects to in circuit Appellees’ argument Stephen turned on that Ms. court rather than before an administrative law protection qualify did not for under the "race” Commission, judge selected the Commis appears classification. The circuit court to have entity responsible filing sion is the for an action persuaded by been both statute of limitations in circuit court. See W.Va.Code 5-11A- Stephen fact Ms. 13(o)(1); see infra note 6. permitted to live in the for the dura- period. of tion the rental The Commission however, points petition, out separate in its cir- 2. The circuit court stated no reasons for wrongly granting court cuit concluded ex- Appellees’ summary its of lease motion for pired year. judgment, position after choosing rely The Commission’s instead to on those bases apparently Appellees’ supporting specific based of asserted in lack memorandum. grounds agreement The two termination date in the assisted asserted the memoran- lease signed by Stephen dum were a statute limitations issue and the Mr. Wilson and Ms. on No- 4, 1991, inability provided Commission to establish Ms. vember the Hous- Stephen protected entitling ing Authority City respon- fell into a class her to of Fairmont was protections Stephen’s payments. Act. Since the record sible Ms. rent timely phen complied this notice friends. with American of her African tance specified on the date. vacating the all expended fact she had Básed with the in connection her available funds filed November On to, place no move that she had move and Commission, alleging that with complaint move. Mr. Wilson’s refused to against her discriminated Estates had notify Au- next action and marital status. on the basis race (“Authori- City Fairmont thority of the finding probable cause issued a Commission 7, 1991, that: ty”) by letter dated October 21, 1994, to Ms. regard on October make recom not be will able complaint. Pursuant to West Vir Stephen’s Street, repairs 5-11A-13(a),6 at 720 Pike mended 1/2 elected ginia Code Barrackville, per your letter dated October by the have the action heard Circuit County.7 of Marion Therefore, appreciate the Ca- would Following discovery, Appellees extensive family price vacating the Stevens [sic] judgment the summary on moved for possible. as apartment soon Stephen was a member grounds that Ms. not again subject pro- not to her Stephen chose vacate to the Act’s protected Ms. of a class a apartment signed Specifically, Appellees and Estates both asserted Wilson tections. based prove and an assisted could not voucher contract that she 4,1991, allegation the of racial discrimina- agreement on November which on race as lease Stephen’s race of provided Authority respon- the Ms. that the was the tion stemmed from and her own monthly African American friends not entity Stephen’s for rent sible Ms. addition, that Ms. Appellees argued race. payments of $208.4 discrimina- Stephen could not demonstrate 21, 1992, July Estates notified On Wilson marital based predicated her status tion on was to her Stephen Ms. that she vacate apart- the on the fact Mr. Wilson rented apartment expiration of lease on at knowledge single her with full of her toment 22, Stephen August 1992. Ms. refused The circuit court heard status. motherhood time. On vacate the stated 9, September on motion on oral 31,1992, Estates instituted an August Wilson 1996, Appellees, in favor and then ruled of wrongful occupation of residential action for genuine finding no issue of there was magistrate force property in court to rental Appellees fact were enti- material and that Twy- Magistrate Ms. Stephen. an of eviction judgment as a matter of law. tled to proceeding.5 eviction man dismissed the 27, 1996, Stephen Sep- September Ms. on the Commission Wilson Estates notified On 1992, 12, of was to vacate her a motion for reconsideration that she filed tember 4, ruling it had not grounds Ms. court’s on November 1992. Ste- 7, 1991, Magistrate Twyman deter- Ms. 5. assert that 3. letter indicates that The October copy expire Stephen Stephen’s was to of this letter. lease did not receive mined that Ms. year date the contract from the of until 4. viewed Mr. Wilson's While the circuit court authorizing Stephen's rent— of Ms. subsidization housing voucher of the contract execution 4, represents The Commission November 1991. agreement as that he the assisted lease evidence Twyman Ste- determined that Ms. that Ms. discriminating against longer Ms. Ste- was no phen, phen the terms the lease had broken that Mr. viewed the record is clear Appellees' accordingly, no for there was Ms. entered into with the initial contract he occupation petition. wrongful 1991, 22, August binding agree- Stephen as a on forcing prevented her to him from ment which option to to have Any party elect premises during has the duration. vacate the lease’s in cir proceeding brought under the Act heard signing contract re- of the voucher hearing be of receiv- Mr. Wilson's desire to assured an adminis flects court in lieu of a before cuit monthly payment, ing but not a relin- rent judge Commission. law selected trative opinion was quishment 5-11A-13(a), of his (b). See W.Va.Code Indeed, neighborhood.” compatible “not to the initiating regard Wilson's actions with Mr. wrongful on proceeding initiated circuit 7. The court occupation complaint magistrate 14, 1994, filing of a com- December expiration suggest prior to the court lease's its behalf plaint on own Commission removing upon to be intent Mr. Wilson continued Stephen's behalf. on Ms. apartment. from his 156 adequate point notice Peavy,

received motion for bus one of Painter v. 192 W.Va. 189, judgment summary consequently had 451 755 is “de S.E.2d novo.” It “ ‘ presenting precluded from been evidence summary is axiomatic that “[a] motion for opposition to such motion.8 In response to judgment granted only should it is motion, hearing the Commission’s a second genuine clear that there no fact issue of summary judgment on the motion for inquiry concerning be tried and the facts is held on 1996.9 At the October conclusion clarify application not desirable to of the hearing, again circuit court ruled Syllabus law.” Casualty Point Aetna & Appellees’ ap- favor. The Commission Surety v. Federal Co. Insurance Co. New peals judg- summary from lower court’s York, (1963).’ 770 S.E.2d ruling. ment Syllabus Point Andrick v. Town Buck hannon, II. STANDARD OF REVIEW (1992).” Syl. Peavy, Pt. Painter (1994). Our standard of review sum W.Va. for S.E.2d 755 articu We mary rulings, sylla- stated in granting summary we lated the standard Although clearly transcript proceeding record reflects the Com- A9. review of the from this objections scheduling mission's indicates while the court circuit did ostensi- hearing September the circuit court bly permit the Commission to revisit the issue of proceeded hearing to hold the on that date. The summary judgment ruling, the the lower court's objected being to Commission served with the attorney comments to the Commission's indicate 6, 1996, September along motion on awith no- hearing pro only that the that the forma hearing Sep- tice of on the motion scheduled for give court not did serious to the consideration 9, 1996, citing requirement tember the of Rule arguments. Commission's valid Proof of this is 56 of the West Rules of Civil Procedure by demonstrated the fact that the Commission summary judgment that a motion must be served Appellees’ eviscerated claim, statute limitations respective parties days on the at least before a by correctly pointing both out the fact that hearing place. takes motion The record timely complaint had filed her with despite further reflects that the Commission’s by the informing Commission and the lower willingness participate judg- to summary means, court hearing by Virgi- of the decision of telephonic necessary, ment this Court in West if Garretson, the circuit court nia advised the at Commission Commission p.m. September 12:00 on that all coun- any delay S.E.2d 733 that person p.m. sel be were to in at the 2:00 removing housing the Commission dis- hearing Despite scheduled for that date. a com- complaint crimination to circuit court will not be rep- munication to the that circuit court counsel complainant timely held who has filed resenting the Commission was en to route complaint spite her with the Commission. In hearing Clarksburg for the and would be there edification, the lower court refused to recon- p.m., between 2:00 and 2:30 the court the held ruling sider its on the statute of issue. limitations hearing p.m. 2:07 at without the Commission's Appellees counsel and ruled in favor of on their reviewing transcript hearing the from the judgment summary eight motion for after on the Commission's motion for reconsideration minutes. we must remonstrate the circuit for court its beginning hearing At the on their motion treatment of the Commission’s counsel. When summary judgment, Appellees for stated on the attempting counsel was to make her initial state- dispositive record all that motions to were court, interrupted ment to the lower the court days pursuant filed 15 before the trial date to the going her and her it told that was not to listen to agreed pre-trial Since order. trial was scheduled her read to the court and that she could “submit 19th, September Appellees Sep- calculated a format, you written brief” that "[i]f don't like this summary tember 4th as the date on which their know, you you appeal.” make take an judgment motion had to be filed acted ac- Then, "May go Commission asked I cordingly. Appellees pointed further out to the through prima housing facie elements September circuit p.m. court that 9th 2:00 discrimination case and evidence this case?" originally a date and time that had been reserved so, responded, the lower court "I don’t think pretrial the Commission for motions. This specifi- The counsel.” fact that the circuit court recognizes fully validity of a lower cally prevented presenting the Commission from regard Appel- court's time frame order to argument aspect on this crucial case is they required lees' were file to especially argu- critical as the Commission was summary judgment September their 4, motion on ing wrongly had on relied obligation summary judg- 1996. file a prima date, however, employment facie of an elements discrimi- ment motion on such require did not case, hearing prior appli- nation rather on be held ten- than those elements day period set Rule forth in cable to a discrimination case. she cerning request initial syllabus point four of Mr. Wilson’s judgment motions August on vacate Painter: talking phone Q. Now we were about appropriate Summary me, in you got from Mr. Tell call Wilson. record a whole could where the taken as recall, you he much detail as can what to find for lead a rational trier of fact you you to him? what said said nonmoving party, as where such August 24th? This was on party has make a suf- nonmoving failed to told phone. I answered the He A. Yes. showing an element of essential ficient I going me I was to have to move out. prove. it case that has the burden said, just why. He “I don’t asked him 190, 451 at 756. 192 W.Va. at you.” ... to rent to like want someone said, why. him I “I haven’t And I asked III. DISCUSSION said, I anything.” He “Because don’t done friends; your and the like the looks of A. Prima Facie Proof of Discrimination things, also.” neighbors saying have been necessarily of this be- Our review matter gins with the statute under which Ms. Ste- you Q. else do recall about What sought Through complaint, phen relief. conversation? Stephen alleged Appellees had vio- asking kept A. I him what he meant five lated subsection of the West my friends. And he didn’t like looks of specifically address- saying, I mean. kept he “You know what context of es discrimination you say just me want Don’t make it. rental or sale: out.” move be unlawful: [I]t shall the issue of Additional evidence adduced on (a) To refuse to sell or rent after that Mr. motivation was the fact Mr. Wilson’s offer, refuse to making of a bona fide or to African Amer- had never rented to an Wilson of, other- negotiate for the sale or rental or by the pre-trial The order submitted ican. dwelling deny, a wise make unavailable or following forth the on the issue of parties set race, color, any person reli- because Appellees’ motivation and intent: sex, status, ancestry, blind- gion, familial Wilson, Hope president, sec- vice Janet ness, handicap origin; or national stockholder, Es- retary, director of Wilson (b) against any person To discriminate Wilson, tates, wife to had evict- Brian terms, privileges of sale conditions or tenant, unmarried female ed another white provision dwelling, or rental of or Edwards, having mixed race Nancy there- in connection of services facilities she and guests apartment in and out of the race, color, with, religion, ances- because night before Brian Wilson owned. blindness, sex, status, handi- try, familial evicted, two Nancy was she had Edwards origin[.] cap or national her other party men to a card with black (b). 5-llA-5(a), ... men § The stated These two black friends. same W.Va.Code Stephen’s into 720 helped Caprice Stephen in Ms. move ground for discrimination ... with original complaint was her association Pike Street. 1/2 com- African Americans. In her amended Stephen’s Ms. familial status The issue of Stephens her familial plaint, Ms. included presented as single mother was also single gender her mother-—and status —a alleged discriminatory conduct -for the bases discrimination. additional complaint In her filed with Appellees. Commission, Stephen alleged that Mr. Ms. pre-trial confer- During the course of a planned to be he assumed ence, court’s at- “stated called the Wilson Commission single preferred to rent to mo- married to evidence Mr. Wilson tention depo- tenancy her Ms. testified Stephen’s terminate females.” tivated to Ms. January 1992 Mr. Wilson Ameri- her association with African sition based on inquired her door and following knocked on evidence included the cans. That place to had another Stephen’s con- she found deposition as whether excerpt from live. When she said that she intended to with necessity”); business Slack v. Kanawha remain in the for the duration of County Housing Auth., Redevelopment period, said, “Well, the lease Mr. why 144, 153-55, 188 W.Va. 423 S.E.2d 556- you gotten haven’t yet?” married (1992) (defining elements of constructive discharge by adopting cases majority view of Appellees argued that could federal decisions decided under both Title not demonstrate a violation of the Act as she Age VII and Discrimination in Employment protected not a member of a class sub- Act, § seq.); U.S.C. et Frank’s Shoe ject protections. position Act’s Their Commission, Store v. Rights Human First, Caucasian, is two-fold. that as a she 53, 58-59, rely protected cannot 365 S.E.2d designa- 256-57 class (1986) (citing Pregnancy tion of race. The here is that even Discrimination Act if against discriminated Ms. Ste- amendment to Title VII and United States phen friends, based on the race of her Supreme it is Court decision interpreting her race that determines whether she is amendment as holding basis for that discrim recovery entitled to seek under the Act. Sec- upon ination pregnancy based il constitutes ond, Appellees argue that because Ms. Ste- legal sex discrimination under West phen’s familial single status as a mother was Act); Rights see also Paxton v. known to Mr. Wilson at the time he entered Crabtree, original into the agreement, lease ipso facto (1990) n. (observing that “we have he could not have discriminated adopted precedent federal when we believed on the basis of her status as an unmarried compatible it was rights our human mother. statute”). We first premise examine the assert Just as Title VII is the analogue federal ed Appellees that discrimination cannot Rights Act, our Human the Federal Fair occur under the Act person’s from a associa (1994) 42 U.S.C. 3601-3631 tion with a member protected of a class. precedent federal act that served as the This consistently Court has looked to federal genesis of our state fair housing act. See dealing law with Title VII of W.Va.Code 5-11A-1 to -20. Based on this the Civil Act of 42 U.S.C. Court’s longstanding practice applying (1994) 2000e to e-17 interpreting analytical same framework used the fed provisions of our rights state’s human stat- eral courts deciding arising eases under utes. Horne, v. Nursing Sundale Barefoot Act, Rights the Human decisions involving 193 W.Va. 457 S.E.2d 159 the Federal Housing Fair equally Act are (1995) (noting that brought “cases under the precedent provided valid statutory that the Virginia West Rights Human gov- Act are language under consideration is similar. erned the analytical same framework Cf. and Barefoot, 193 W.Va. at 457 S.E.2d at 160 developed VII, structures under Title at least n. 9 (noting that language where of West where our language statute’s does not direct Virginia Rights Human Act substantially otherwise”); dif Virginia West University v. fers from Title Decker, provisions, VII “we have in 567, 573-74, (1994) legislative ferred a State diverge intent to (altering 265-66 disparate impact law”). from the previously provisions test federal The established based on 1991 Act at Virginia amendments to Title issue § VII which here —West shifted bur- Code 5- (b) production 11A-5(a), den of persuasion and employ- virtually to identical to their —are prove er particular to employment prac- federal counterparts stated in 42 U.S.C. policy “job tice or (b).10 is 3604(a), related” and “consistent The difference between housing provides:' race, The federal color, sex, fair act religion, because of familial status, origin. or [I]t national shall be unlawful— (b) (a) against any person To To making refuse to sell or discriminate rent after the in the offer, terms, conditions, of a negotiate bona fide privileges or to refuse or to of sale or rental of, for the sale dwelling, or rental provision or otherwise of a or in the of make services or deny, dwelling unavailable any person therewith, or to facilities in connection because of

159 recipient can be of race discrimina under son and state statutes consider- the federal just housing three is that our state statute contains tion within the context —not ation ancestry, blind- who are mem additional those individuals themselves classifications — ness, appli- handicap of which are protected racial Id. bers of classification.12 —none ease. note 10. cable to this See making ruling, court In its referenced Supreme holding in United States law, judice— sub federal the issue Under Metropolitan v. Insurance meaning Trafficante Co., Life discrimination within whether 409 93 34 L.Ed.2d U.S. S.Ct. housing occur when the ten a fair act can (1972), 415 white were found tenants which and the race of the ant’s race is Caucasian standing have under Fair Hous to sue tenant’s associates is African American —is ing Act for the loss of interracial association In Lundy, 667 well-settled. Woods-Drake racially dis (5th due owner’s Cir.1982), F.2d 1198 the court consid criminatory F.2d at tenant selections. 667 who had been evicted ered whether whites 1201-02; v. L & H see also United States their following entertainment African (S.D.Fla. Corp., F.Supp. Land guests rented American in their 1976) housing that federal fair (recognizing had a cause of action under federal fair The housing appellate “prohibits act. Id. at 1199. act white discrimination entry court’s court reversed the district of persons of the race or color of their because landlord, finding favor of the guests”). that a cause of action existed under both the counterpart, Like its our Act seeks federal act under U.S.C. 1982.11 equal housing opportu encourage fair and appellate F.2d at 1204. The court ruled expounded in peoples. nities for all We West “[gjiven finding court’s district Commission v. Gar plaintiffs because plaintiffs defendant evicted retson, 468 S.E.2d 733 persons guests, the had black conclusion liability under 1982 and under the Section Housing The Fair Act is Housing inescapable.” Id. at Fair Act is legislative worded a broad mandate to holding pro that such conduct was against, eliminate discrimination Lundy hibited for, all equalize housing opportunities language of court underscored the the 42 “ pronouncement 3604(b) races. Act a clear reads, shall '[I]t U.S.C. the ex- of our commitment to end against any per ... State’s unlawful discriminate terms, clusion African-Americans from conditions, privileges or son Thus, right to American mainstream. dwelling ... rental or a ... because of race is es- be free from ...’” F.2d 1201. Determinative to statutory goal sential of an harmonious Lundy language court was the society. any unequivocally provides per- unbiased color, sex, race, status, Supreme Court has determined religion, familial United States predicated origin. on the race that discrimination national 3604(a), (b). pub companions § can also occur under 42 U.S.C. one’s provision II. See lic of Title accommodations 5, Co., 144, provides "[a]ll That section that citizens of the U.S. n. 90 11. Adickesv. & 398 150 Kress right, (1969) every 1598, (noting same United States shall have the in 142 S.Ct. 26 L.Ed.2d by Territory, enjoyed and as is white citi- State white teacher at lunch store’s refusal to serve lease, inherit, sell, hold, purchase, accompaniment by to zens thereof Afri her six counter based on convey personal property.” students, 42 real and brought while as a viola can American Lundy 1983, § a 1982. The court observed that equally U.S.C. was violative of tion of 42 U.S.C. ("full equal II, 42 violation of U.S.C. 1981 provision of Title the Public Accommodations occurred, laws”) but 2000a). of all also focused Supreme benefit 42 The United States U.S.C. language Adickes, 1982 because that on the of Section principles that "[f]ew observed prop- specifically "refers to the use real statute firmly constitu law stitched into our are more 1200, erty.” 667 F.2d at n. 3. proposition State that a tional than the fabric against person a because must not discriminate companions, or in race of his of his race or the Although language of the federal fair segre any way compel encourage racial act to discrimina- act makes clear 151-52, any gation.” at S.Ct. 1598. person, U.S. 90 predicated extend to 398 tion on race can 160 124, Wilson, at

196 W.Va. at 739. Consis- There was evidence that Mr. who goal with that and with the actual lan- tent had never rented to an African American Act, specifically pro- guage of the person, began her his efforts to force out of discriminatory against any apartment scribes treatment day Stephen his after Ms. race, ;person we hold that under based on apartment help moved into with the a cause of According African American friends. to for evidence, action exists discrimination directed candidly Mr. other Wilson told Ms. against a tenant based race of those Stephen she “not compatible whom individuals with the tenant chooses to neighborhood” why, and when she asked he “[djon’t associate. said, say make me it.” After Mr. got Stephen apart- Ms. to leave the Appellees and the circuit court both ment, he a single, rented the all misunderstood fact that a discrimina evidence, childless white male.13 This when plaintiff prima a tion need show is case facie light viewed in the most favorable to the summary ruling. judgment to survive a We Commission, results in the conclusion that syllabus explained point Conaway two of present did in fact an inference Corp., Eastern v. Associated Coal W.Va. 178 Appel- of discrimination sufficient to survive (1986), 164, 358 S.E.2d 423 a in which case summary judgment lees’ motion. prima we set forth the facie elements for discrimination, employment suc “[t]o explained in v. Williams Preci We cessfully defend a motion sum for Coil, Inc., sion 459 S.E.2d 329 mary judgment, plaintiff must make “[cjourts special should take care showing some of fact which support would a considering summary judgment in em prima Subsequent facie case his claim.” ployment and discrimination cases because ly, only we clarified that an infer Barefoot of mind, intent, may state of and motives necessary ence es crucial elements.” Id. at 459 S.E.2d at prima a tablish facie case of discrimination Summary judgment imprudent is often necessary summary judgment to survive a in discrimination cases that issues of 484-85, ruling. 193 W.Va. at 457 S.E.2d at because, recognized motive or as intent we Addressing 161-62. conflicting the fact that “ Williams, determinations, ‘[credibility evidence on the ultimate issue of discrimina evidence, weighing of drawing and the presented, routinely tion we stated that legitimate jury inferences from facts are “[tjhis resulting by conflict must be resolved ” functions, judge[.]’ not those of a Id. at jury a circuit court a matter 336 (quoting 459 S.E.2d at v. Lib Anderson of law.” Id. at 457 S.E.2d at 165. Un Inc., erty Lobby, U.S. S.Ct. alleged less the discriminator “comes for (1986)); 91 L.Ed.2d 202 accord Pierce dispositive, ward evidence of a nondis Co., (4th v. Ford Motor 190 F.2d criminatory reason toas which there is no Cir.1951) (holding summary dispute real ‘which no rational trier of should be denied “even where there is no reject, fact could the conflict between the dispute evidentiary as to the facts case plaintiffs establishing prima evidence facie but the conclusions to be drawn employer’s case and the evidence of a nondis therefrom”). case, jury, the instant criminatory question reason reflects of fact court, rather than the trial should decide ” to be resolved the factfinder after trial.’ asking whether violated Act Barefoot, 193 W.Va. at to move out of the Co., (quoting n. 19 Cronin Aetna Ins. Life in, days continuing two after she moved (2nd Cir.1995)). 196, 46 F.3d through wrongful occupa seek her removal a presented by in petition, refusing permit evidence this case tion her to was that Mr. tenancy, by Wilson “didn’t like the looks” of permitting continue then Stephen’s single African American apartment. friends. a white male to rent the that, move, 13. Evidence was introduced whereas Ms. ment if she decided to other tenants were Stephen by routinely repairs was told Mr. Wilson that he would reimbursed for made their repairs aparl- apartments during reimburse her tenancy. she made to the their actual Appellees maintained that the last of Limitations B. Statute purposes of the Act’s one- possible date for summary- for its an alternate basis As November year statute of limitations was motion, Appellees asserted that which Ms. 1992—the date on had run be applicable of limitations statute apartment. Because required to vacate the in circuit court. was filed fore the action complaint instigated her with the Com she is that The essence of this 3, 1993, November mission on timely be action was not filed circuit court statutory filing requirements im met initiated the circuit cause the Commission § Virginia 5-11A- posed West Code 14, 1994, more court action on December 11(a)(1)(A).14 holding in Under this Court’s thirty days Appellees elected on than after Garretson, a the Commission’s failure to file 11, 1994, in proceed circuit November thirty- complaint in circuit court within syllabus point court. three of Garretson Virginia day period specified West Code held this Court 5-11A-13(o)(1) § does not act as bar to claim, Housing Act Dismissal of a instant discrimination suit as Ms. timely properly had been filed complaint Stephen filed her initial within Commission, the Human be complained compli in year of the events timely agency’s failure to cause of Virginia § ance with West Code 5-11A- provid to circuit court as remove case 11(a)(1)(A) and because have failed 5-llA-13(o)(1) in ed W.Va.Code prejudice. 196 W.Va. at to demonstrate deprive complainant prop of his would Thus, at 737. the circuit court 468 S.E.2d right erty interest to redress erred in its conclusion that the Commission and. to a decision on discrimination proceeding with Ms. was time-barred from charge violate merits of his and would thus Stephen’s complaint. III, § the Due Process Clause Article Virginia of the West Constitution. foregoing, hereby Based on the we reverse of Marion the decision of the Circuit Court at 468 S.E.2d at 736. We W.Va. further County and remand this matter for Virginia that West determined Garretson (cid:127) 5-11A-13(o)(1) proceedings. not a statute of Code “is at 468 S.E.2d at limitations.” 196 W.Va. Reversed and remanded. Instead, commented, thirty- as we day period forth in that section is time set McCUSKEY, JJ., concur. MAYNARD 122-23, 468 for removal.” Id. at “deadline why In explanation at 737-38 n. 3. McCUSKEY, Justice, concurring: provision applied not be the removal should 1998) (Filed June jurisdictional require mandatory “as a majority’s conclusion I concur with the ment,” we stated: Virginia Fair Act that our West paradigm ex- case would this makes association-based victim would ample in which an innocent However, majority ar- unlawful. of his be forced to suffer the dismissal by following a at their destination rived failed to lawsuit because the Commission dangerous rather than twisted and shortcut that such an properly. act It is doubtful clearly following the direct route shown contemplated anomalous result jurisprudence. map the road placed the fate of a victim Legislature that provide more I intend this concurrence in the hands of of racial discrimination travelers on this directions for future concise Commission. important legal route. at 196 W.Va. at 468 S.E.2d ease, involved would The statute further observed that such result We 5-11A-5(a) (1992), provides it shall spirit of the stat Code be “inconsistent with the at 742. be unlawful: ute.” 196 W.Va. terminated, 5-11A-11(a)(1)(A) com- practice file a has occurred states

14. West Code alleging plaint a discrimi- may, with the commission aggrieved person not later than "[a]n natory housing practice.” alleged discriminatory housing year after an included, making juris To refuse to sell or rent after the When the word “his” is other offer, negoti- of a bona fide or to refuse to dictions have held that association-based dis of, crimination is not actionable. When it is not ate for the sale or rental or otherwise included, deny, association-based discrimination is dwelling make unavailable or Ferri, proscribed. race, color, See 106 R.I. any person religion, because of Buffi (1970), 259 A.2d 847 sex, McGill v. 830 S. status, blindness, ancestry, familial Hotel, Michigan Ill.App.2d handicap origin. or national (1966). N.E.2d 273 markedly language This is different from the Using analysis, this more Virginia concise the ma- of another West discrimination stat 5-11-9(6)(A) jority easily ute, would still have (1992), reached the W.Va.Code ultimate decision which it did reach in the portion of the West case, is, that association-based public Act which deals with accommodations. discrimination in is unlawful. provides: That statute discriminatory prac- It shall be an unlawful using approach, majori- Instead of tice, upon occupa- ty, unless based a bona fide as reflected in footnote indicates that qualification, except tional or body where based our implicitly discrimination law con- upon applicable security regulations an holding estab- tains inherent that asso- by ciation-based lished the United States or the state of discrimination is unlawful. The cases which I suggest have cited above agencies political West or its or nothing there is of this sort inherent in subdivisions: dis- indicates that an individual is discriminated that the whereas W.Va.Code hair-splitting distinction. individual because of “his” similar anti-discrimination statutes have held exclude it rienced discriminate makes it unlawful to portant clude the word “his”. Legislature’s decision to include the word “his” vantages, Other blindness or such indirectly, [Emphasis added.] any color, public accommodations to: dent, agent lessee, proprietor, manager, superinten- , (A) Refuse, (6) comparing individual because of his legal because of “his” inclusion of a word which For to note that W.Va.Code place national one anti-discrimination statute and mental basis of jurisdictions facilities, any of the the other much scholar would conclude that the any person being or handicap, ^[*] these two withhold from or origin, employee public privileges or services of which have examined- Even the most 5-11A-5, ^[*] is accommodations, ancestry, race, race, either statutes, accommodations. ^[*] race, religion, religion, more than a any place rather does not in- specifically directly against sex, it is im- deny inexpe- 5-11-9 owner, than was aware of the cases which I have cited etc., age, ad- an- tected Rights Commission, properly in Ranger decisions that federal S.E.2d 154 federal no federal statute is involved and no federal precedent providing guidance fundamental basis afford crimination law is distinct from the funda- strued. Rhodes v. J.B.B. Coal 71, 90 S.E. 796 proscribing of the common standing principle statutes, and in finding an inherent basis for statutes are in law. In how it is crimination is made unlawful crimination law I common majority majority am also disturbed more classes. ignoring construed and magically is law, association-based decisions can often be protection Fuel has has turned its back on the controlling. (1916). our state law. As and, thus, generally, given law should be when, Here, derogation that statutes in inherent in our Corporation in analyzing our specific to federal statutes and much in the case before applied, Virginia’s the deference that individuals our discrimination and I cannot see While I believe majority, of our common language of federal dis- discrimination, Co., strictly can v. Human statute, pointed derogation law, law. helpful 79 W.Va. law, actually of our long- pro- con- Dis- out us, in generally, critically race important above, de- unconsciously usurped Legis- has termining proscribes whether the statute power proscribe lature’s association-based only direct discrimination or whether it also generally. Legisla- What our proscribes said, actually association-based discrimination. ture and the eases which have proscrip- cited, support a broad such do therefore, has majority chosen

tion. enactments, are worded differ- federal law, and federal decisions

ently from our enactments, to serve those

based decision. of their disap- that I know me know

Those who discrimination, I want to reiter-

prove of I concur with the result reached

ate that However, I believe that this majority. precedent by setting dangerous

conjuring up an “inherent” basis the deci- blindly dangerous to in this case. It is

sion statutes and decisions control-

use federal authority brought cases

ling state’s statutes.

under our authorized to state that Justice MAY- am joins concurring opinion. in this

NARD

503 S.E.2d 17

Lonnie BREWER Alan Brewer, Plaintiffs

Vivian

Below/Appellants, ASSOCI MANAGEMENT

HOSPITAL Kentucky Corporation ATES, INC., a doing

qualified to do busi business Virginia, of West

ness State Management

Health Associates West Inc., Virginia Corpora

Virginia, a West Salton, III,

tion, A. and Robert Russell as Co-Executors Estate

L. Salton M.D., deceased, Salton, Al Russell A. Tchou, of the Es K. Administratrix ice M.D., deceased, Tchou,

tate of Robert J. Hospital, a Memorial

and Williamson

Partnership, Below/Appel Defendants

lees. 24645.

No. Appeals of

Supreme Court of Virginia. 6,May 1998.

Submitted May

Decided

Dissenting of Justice Opinion July

Workman

Case Details

Case Name: West Virginia Human Rights Commission v. Wilson Estates, Inc.

Court Name: West Virginia Supreme Court

Date Published: Jun 1, 1998

Citation: 503 S.E.2d 6

Docket Number: 24142

Court Abbreviation: W. Va.