FEPA Discrimination Charge and Right-to-Sue Procedure — West Virginia

FEPA Discrimination Charge and Right-to-Sue Procedure (WEST VIRGINIA)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

TO: [CLIENT NAME]
FROM: [COUNSEL NAME]
DATE: [__/__/____]
RE: Eligibility — West Virginia Human Rights Act Charge

A.1 Forum Selection — Critical Choice

A.2 Coverage Analysis

A.3 Protected Class Identified

☐ Race ☐ Color ☐ National origin ☐ Ancestry
☐ Religion ☐ Sex ☐ Pregnancy (PWFA — § 16B-19)
☐ Age 40-65 ☐ Disability ☐ Blindness
☐ Retaliation
☐ Sexual orientation / gender identity (federal Title VII — Bostock)

A.4 Strategic Decision

☐ File WVHRC administrative charge only (state-only, longer SOL, free WVHRC investigation)
☐ File direct circuit-court action only (uncapped damages, faster to court, Price / Bishop Coal)
☐ Dual-track: WVHRC + EEOC; reserve right to file circuit-court action under Price
☐ Federal-court Title VII / ADA / ADEA filing
☐ Consider WV-specific 40-65 age cap vs. federal ADEA 40+

Part B — Charge of Discrimination (WVHRC Filing)

FILED WITH: West Virginia Human Rights Commission
1 Players Club Drive, Suite 350, Charleston, WV 25311
CROSS-FILED WITH: EEOC — Pittsburgh Area Office (jurisdiction over WV)

Re: Charge of Discrimination — West Virginia Human Rights Act, W. Va. Code § 16B-17-9 — [CHARGING PARTY]

B.1 Charging Party

B.2 Respondent

B.3 Cause(s) of Discrimination — § 16B-17-9

☐ Race ☐ Color ☐ National origin ☐ Ancestry
☐ Religion ☐ Sex ☐ Pregnancy / childbirth
☐ Age (40-65 under WVHRA; 40+ under federal ADEA)
☐ Disability ☐ Blindness
☐ Retaliation
☐ Sexual orientation / gender identity (federal Title VII cross-claim)

B.4 Date(s) Discrimination Took Place

B.5 The Particulars

1. I, [CHARGING PARTY], was hired by Respondent on [__/__/____] as [POSITION] at [$_____].

2. I am a member of a protected class under W. Va. Code § 16B-17-9 because [____________].

3. On [__/__/____], [INDIVIDUAL ACTOR, TITLE] [____________].

4. Similarly situated employees outside my protected class were treated more favorably: [____________].

5. I engaged in protected activity on [__/__/____] by [____________].

6. On [__/__/____], Respondent [terminated / demoted / failed to promote / harassed] me.

7. I believe I have been discriminated against in violation of the West Virginia Human Rights Act, W. Va. Code § 16B-17-9, and Title VII / ADEA / ADA (as applicable).

B.6 Verification

I declare under penalty of perjury under the laws of the State of West Virginia that the foregoing is true and correct.

Subscribed and sworn before me this [____] day of [__________], 20[____].

[____________________]
Notary Public — State of West Virginia
My commission expires: [__/__/____]

Part C — Right-to-Sue / Withdrawal Letter

[__/__/____]

Executive Director
West Virginia Human Rights Commission
1 Players Club Drive, Suite 350
Charleston, WV 25311
By certified mail, return receipt requested
Email: [email protected]

Re: Notice of Withdrawal of Charge / Election of Private Civil Action — W. Va. Code § 16B-17-11 — WVHRC Charge No. [_______________] — [CHARGING PARTY] v. [RESPONDENT]

Dear Director:

Pursuant to the West Virginia Human Rights Act and Price v. Boone County Ambulance Authority, 175 W. Va. 676 (1985), the undersigned complainant hereby provides notice of the following:

1. The above-referenced charge was filed with the WVHRC on [__/__/____].

2. The complainant elects to pursue a private civil cause of action in circuit court without further administrative exhaustion as permitted by Price v. Boone Cty. Ambulance Auth., 175 W. Va. 676 (1985), and Bishop Coal Co. v. Salyers, 181 W. Va. 71 (1989).

3. ☐ The complainant withdraws the administrative charge to permit unobstructed circuit-court adjudication.
   ☐ The complainant requests that the administrative charge be held in abeyance pending circuit-court resolution.
   ☐ The complainant requests a Notice of Closure / equivalent if WVHRC requires written notice.

4. Cross-filed federal EEOC charge (No. [_______]) ☐ remains active ☐ has been withdrawn ☐ has resulted in a Notice of Right to Sue.

5. Please confirm withdrawal / closure in writing to counsel of record.

Respectfully,

[____________________]
[CHARGING PARTY / Counsel]

Part D — Pre-Suit Civil Complaint (Template)

IN THE CIRCUIT COURT OF [____________] COUNTY, WEST VIRGINIA

Civil Action No. [_______________]
COMPLAINT — EMPLOYMENT DISCRIMINATION
(W. Va. Code § 16B-17-9; Price v. Boone Cty.)
JURY TRIAL DEMANDED

Plaintiff [NAME], by and through undersigned counsel, alleges:

I. PARTIES

1. Plaintiff [NAME] is and at all material times was a resident of [____________] County, West Virginia.

2. Defendant [EMPLOYER] is a [corporation / LLC] doing business in [____________] County, West Virginia, and at all material times employed twelve (12) or more employees within the meaning of W. Va. Code § 16B-17-3.

II. JURISDICTION AND VENUE

3. This Court has subject-matter jurisdiction pursuant to W. Va. Code § 51-2-2 and the West Virginia Human Rights Act, W. Va. Code § 16B-17-1 et seq.

4. Venue is proper in [____________] County under W. Va. Code § 56-1-1 [SELECT SUBSECTION] because [FACTS SATISFYING THAT ROUTE]. Use “does business” only within subsection (a)(2)'s corporate-entity conditions, and complete subsection (c)'s plaintiff-by-plaintiff screening.

5. Plaintiff brings this direct civil action under W. Va. Code § 16B-17-1 et seq. and Price v. Boone County Ambulance Authority, 175 W. Va. 676 (1985), without prerequisite of administrative exhaustion. This action is filed within two (2) years of the most recent discriminatory act as required by McCourt v. Oneida Coal Co., 188 W. Va. 647 (1992).

III. FACTS

6.–[__]. [Detail factual allegations].

IV. CAUSES OF ACTION

Count I — Discrimination on the basis of [____________] (W. Va. Code § 16B-17-9)
Count II — Retaliation (W. Va. Code § 16B-17-9(7))
Count III — Hostile work environment (WVHRA)
Count IV — Title VII / ADA / ADEA parallel claim (if cross-filed)

V. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendant for:

a. Back pay and lost benefits;
b. Front pay or reinstatement;
c. Compensatory damages including emotional distress (Haynes v. Rhone-Poulenc);
d. Punitive damages where Defendant acted with actual malice;
e. Reasonable attorney fees and costs;
f. Pre- and post-judgment interest;
g. Such further relief as the Court deems proper.

VI. JURY DEMAND

Plaintiff demands a trial by jury on all issues so triable.

Dated: [__/__/____]

[____________________]
[COUNSEL NAME, WV State Bar #_____]
[FIRM / ADDRESS / PHONE / EMAIL]
Attorney for Plaintiff

Part E — Pre-Filing Checklist

Forum Selection

☐ Administrative-only path (WVHRC) — pros/cons documented
☐ Direct circuit-court path under Price — pros/cons documented
☐ Dual-track (WVHRC + reserve direct action) selected
☐ Federal Title VII / ADA / ADEA layered in if applicable
☐ Client informed of strategic choice in writing

Coverage and Timing

☐ Employer has 12+ employees — § 16B-17-3
☐ Adverse act within 365 days (administrative) calendared
☐ Adverse act within 2 years (direct action under McCourt) calendared
☐ EEOC 300-day deadline calendared
☐ WV age cap 40-65 vs. federal ADEA 40+ noted
☐ Continuing-violation doctrine analyzed

Charge Drafting (if administrative path)

☐ Updated citation: § 16B-17 (NOT old § 5-11)
☐ Protected class identified with statutory subsection
☐ Each adverse act dated
☐ Actors named with title
☐ Retaliation allegation pleaded if applicable
☐ Verification notarized
☐ Cross-filing with EEOC indicated

Filing

☐ Charge filed with WVHRC (mail / online / in person)
☐ Confirmation of filing date
☐ Litigation hold to client and respondent
☐ EEOC dual-filing confirmation

Investigation Stage (if pursued)

☐ Response to position statement
☐ Witness list
☐ Document evidence
☐ Mediation/conciliation evaluated
☐ ALJ public hearing prep

Direct Civil Action Path

☐ Withdrawal letter (Part C) drafted if administrative charge filed
☐ Circuit-court venue analysis
☐ Complaint drafted
☐ All causes of action pleaded
☐ Jury demand included
☐ Filing fee or IFP

Damages

☐ Back pay calculation
☐ Front pay valuation
☐ Mitigation log
☐ Compensatory damages evidence (medical/witness)
☐ Punitive damages: actual malice evidence catalogued
☐ Attorney-fee timekeeping protocol

Sources and References

• WV Human Rights Commission (OIG) — https://oig.wv.gov/human-rights-commission
• W. Va. Code Chapter 16B (Inspector General; Human Rights Commission post-2024 recodification) — https://code.wvlegislature.gov/16B-17/
• W. Va. Code R. § 71-2 (Rules of Practice and Procedure Before WVHRC) — https://apps.sos.wv.gov/adlaw/csr/ruleview.aspx?document=18198
• WV Pregnant Workers' Fairness Act — W. Va. Code § 16B-19 — https://code.wvlegislature.gov/16B-19-1/
• Price v. Boone County Ambulance Auth., 175 W. Va. 676 (1985) — direct private right of action
• Bishop Coal Co. v. Salyers, 181 W. Va. 71 (1989) — direct action affirmed
• McCourt v. Oneida Coal Co., 188 W. Va. 647 (1992) — two-year personal-injury SOL for WVHRA
• Haynes v. Rhone-Poulenc, 206 W. Va. 18 (1999) — compensatory/punitive damages
• The Roles of the EEOC and WVHRC — https://dcemploymentlawblog.com/2025/03/14/the-roles-of-the-eeoc-and-the-west-virginia-human-rights-commission-in-workplace-discrimination-claims/
• EEOC Pittsburgh Area Office — https://www.eeoc.gov/field-office/pittsburgh/location

This template is provided for informational purposes only and does not constitute legal advice. The WVHRA was recodified in 2024 from W. Va. Code § 5-11 to § 16B-17 — confirm current citations. Consult a West Virginia-licensed attorney before filing any charge or civil action.