No. 16-0848 –         Henry Metz v. Eastern Associated Coal, LLC                    FILED
                                                                                 April 12, 2017
                                                                                   released at 3:00 p.m.
                                                                                 RORY L. PERRY, II CLERK

                                                                               SUPREME COURT OF APPEALS

                                                                                    OF WEST VIRGINIA




Davis, Justice, concurring, in part, and dissenting, in part, joined by Justice Workman:

              With the majority’s holding in new Syllabus point 2, I readily concur.

Establishing the operative date from which the statute of limitations begins to run in an

employment discrimination case alleging failure to hire as the date upon which an employee

plaintiff first learns of the employer’s adverse employment decision giving rise to such claim

is consistent with this Court’s prior decisions in similar cases. See, e.g., Syl. pt. 1, Jones v.

Trustees of Bethany Coll., 177 W. Va. 168, 351 S.E.2d 183 (1986) (“The statute of

limitations ordinarily begins to run when the right to bring an action for personal injuries

accrues which is when the injury is inflicted.”); Syl. pt. 2, Steeley v. Funkhouser, 153 W. Va.

423, 169 S.E.2d 701 (1969) (“The general rule is that a statute of limitations commences to

run on a cause of action when the right to institute an action thereon arises.”); State ex rel.

Magun v. Sharp, 143 W. Va. 594, 599, 103 S.E.2d 792, 796 (1958) (“The statute of

limitations as to a cause of action commences to run at the time of the accrual thereof.”).



              However, I simply cannot agree with the majority’s adoption of new Syllabus

point 3. This holding unnecessarily distinguishes between causes of action based upon

statutory rights and those sounding strictly in tort, with no statutory underpinnings, as a


                                               1

means for rejecting application of the discovery rule to claims alleging discriminatory failure

to hire. Moreover, the majority’s decision of this issue fails to reconcile the remedial intent

of the Human Rights Act with the benevolent tolling provisions of the discovery rule.

Accordingly, from this portion of the majority’s opinion, I respectfully dissent.



              First, I do not agree with the majority’s adoption of Syllabus point 3 because

the majority’s rejection of the discovery rule in employment discrimination cases alleging

failure to hire simply because such cause of action is recognized by statute is preposterous.

This Court has applied the discovery rule in a myriad of other cases whose rights of recovery

are inextricably intertwined with statutory law. See, e.g., Syl. pt. 5, Sheena H. ex rel. Russell

H. ex rel. L.H. v. Amfire, LLC, 235 W. Va. 132, 772 S.E.2d 317 (2015) (claim for workers’

compensation dependent’s death benefits provided by Worker’s Compensation Act); Syl. pts.

7 & 8, Bradshaw v. Soulsby, 210 W. Va. 682, 558 S.E.2d 681 (2001) (cause of action arising

under Wrongful Death Act). See also Clark v. Milam, 192 W. Va. 398, 452 S.E.2d 714

(1994) (discovery rule applies to action filed by receiver of insolvent insurance company

acting pursuant to authority conferred by West Virginia Insurance Code). Thus, the fact that

Mr. Metz’s claims against EAC come within the purview of rights and protections secured

by the West Virginia Human Rights Act does not provide sufficient justification to

categorically reject application of the discovery rule to this right of recovery.




                                               2

              Moreover, denial of the discovery rule’s application to claims filed pursuant

to the Human Rights Act directly contradicts the Act’s own beneficent purposes. In its

promulgation of the Act, the Legislature expressly has stated that the Human Rights Act is

benevolent and that its provisions should be construed so as to afford relief to all citizens of

this State, including employees who are the victims of their employers’ discriminatory

employment practices. See generally W. Va. Code § 5-11-2 (1998) (Repl. Vol. 2013)

(declaring human rights public policy); W. Va. Code § 5-11-4 (2001) (Repl. Vol. 2013)

(establishing powers and objectives of Human Rights Commission). This Court, also, has

acknowledged the remedial purposes of the Act and has construed and applied it consistently

with this definitive legislative intent. See, e.g., Skaggs v. Elk Run Coal Co., Inc., 198 W. Va.

51, 64, 479 S.E.2d 561, 574 (1996) (recognizing “remedial provisions” of Human Rights

Act); State ex rel. West Virginia Human Rights Comm’n v. Pauley, 158 W. Va. 495, 499-500,

212 S.E.2d 77, 79 (1975) (acknowledging “[t]he forceful language used by the Legislature

[in the Human Rights Act] mandates the eradication of unlawful discrimination”). By the

same token, the discovery rule secures an injured plaintiff’s right of recovery when, through

no fault of his/her own, said plaintiff does not know, or reasonably should know, within the

statutory limitations period the nature of his/or injury, the tortfeasor, and/or the tortfeasor’s

wrongful conduct that caused such injury; a tortfeasor’s concealment of his/her misfeasance

also operates to toll the applicable statute of limitations. See generally Syl. pt. 2, Dunn v.

Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009) (“The ‘discovery rule’ is generally


                                               3

applicable to all torts, unless there is a clear statutory prohibition to its application.”); Harris

v. Jones, 209 W. Va. 557, 562, 550 S.E.2d 93, 98 (2001) (per curiam) (“The purpose of a

‘discovery rule’ is the recognition of the inherent unfairness of barring a claim when a party’s

cause of action could not have been recognized until after the ordinarily applicable period

of limitation.”). See also Syl. pt. 5, Dunn, 225 W. Va. 43, 689 S.E.2d 255 (adopting analysis

to determine timeliness of cause of action); Syl. pt. 4, Gaither v. City Hosp., Inc., 199 W. Va.

706, 487 S.E.2d 901 (1997) (describing when statute of limitations begins to run when it has

been tolled by discovery rule).



               It is simply incongruous to recognize the Human Rights Act as remedial

legislation on the one hand and to deny the citizens of this State who seek to enforce their

statutory rights thereunder the benefit of the discovery rule to ensure that they are permitted

to maintain such claims. Neither does it make sense to categorically exclude employment

discrimination claims for failure to hire from the purview of the discovery rule simply

because they enforce rights secured by statute.           I cannot condone the creation and

endorsement of such inconsistent principles of law that surely will beget much confusion for

the citizens of this State as well as the attendant loss of their statutorily-guaranteed protection

from unlawful discrimination. Accordingly, from the majority’s adoption of Syllabus point

3 and the discussion surrounding this holding in the majority’s opinion, I respectfully dissent.




                                                 4

I am authorized to state that Justice Workman joins me in this separate opinion.




                                5

