IN THE SUPREME COURT OF APPEALS OF 'VEST VIRGINIA

Docket No. 16-0679

WEST VIRGINIA DEPARTMENT OF EDUCATION,

Petitioner herein; Defendant below;

v.

TAMMY MCGRAW,

Respondent herein; Plaintiff below.

Appeal from an Order of the Circuit Court of Kanawha County CIVIL ACTION NO. lS-C-1893 Honorable Carrie L. Webster

BRIEF OF PETITIONER WEST VIRGINIA DEPARTMENT OF EDUCATION

Counsel for Petitioner

Jan L. Fox, Esq. (WVSB #1259)

Mark C. Dean, Esq. (WVSB #12017)

STEPTOE & JOHNSON PLLC Chase Tower, Seventeenth Floor 707 Virginia Street, East P.O. Box 1588 Charleston, WV 25326-1588 (304) 353-8000 (304) 353-8180 facsimile J an.F ox@Steptoe-Johnson.com Mark.Dean@Steptoe-Johnson.com

Counsel for Respondent

John D. Wooton, Sr., Esq. (WVSB #4138)

WOOTON, DAVIS, HUSSELL & ELLIS

PO Box 2600 Beckley, West Virginia 25802-2188 (304) 255-2188 John. Wooton@wwdhe.com

Matthew S. CriswelL Esq. (WVSB #8796)

CRISWELL FRENCH PLLC 105 Capitol Street Suite 200 Charleston. WV 25301 (304) 720-6220 mcriswell@criswellfrench.com

TABLE OF CONTENTS

I. ASSIGNMENT OF ERROR ............................................................................................... 1

II. STATEMENT OF THE CASE ........................................................................................... 1

A. Background.............................................................................................................. 2

1. Factual Background ..................................................................................... 2

2. Procedural History ....................................................................................... 3

III. SUMMARY OF ARGUMENT ........................................................................................... 4

IV. STATEMENT REGARDING ORAL ARGUMENT AND DECISION ........................... .4

V. ARGUMENT ..................................................................................................................... 5

A.. Standard of Revie\v ................................................................................................. 5

B. Discussion........................................ '" ..................................................................... 7

1. Qualitied immunity generally ...................................................................... 8

2 The circuit court erred in denying WVDE's Motion to Dismiss because WVDE is entitled to qualified immunity as a State agency for its discretionary actions relating to discharging Respondent from her at-will employment. ................................................................................................ 9

a. All of Respondent's allegations against WVDE involve its discretionary actions and decisions in discharging Respondent ti'om at-will employment.. ............................................................... 9

b. Respondent fails to adequately plead that WVDE's discretionary acts were fraudulent, malicious. or oppressive; moreover, the circuit court erred in holding that Respondent is entitled to discovery to "develop" her feeble allegations ............................... 14

VI. CONCLUSION ................................................................................................................. 15

TABLE OF AUTHORITIES

CASES

City oISt. Albans v. Botkins, 228 W. Va. 393, 719 S.E.2d 863 (2011) ............................. 6.8,9, 14

Coma v. AIcJunkin, 178 W. Va. 158.358 S.E.2d 242 (1987) ......................................................... 6

Dovalina v. NlIno, 48 S.W.3d 279 (Tex. App. 2001) .................................................................... 10

Ewing v. Bd. o/Edltc. o/Cnty. o/Slimmers, 2020 W. Va. 228, 503 S.E.2d 562 (1998) ................. 6

Fass v. Nowsco Well Serv., Ltd., 177 W. Va. 50, 350 S.E.2d 562 (1986) ....................................... 7

Forshey v. Jackson, 222 W. Va. 743,671 S.E.2d 748 (2008) ..................................................... 6. 7

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ..................................................................................... 9

Hunter v. Bryan, 502 U. S. 224 (1991 ) ............................................................................................. 9

Hutchison v. City oj'Huntingfon. 198 W. Va. 139,479 S.E.2d 649 (1996) .................... 7,8,10,14

Jarvis v. W. Va. State Police. 227 W. Va. 472.711 S.E.2d 542 (2010) ...................................... 5, 6

John W. Lodge Distr. Co. v. Texaco, Inc.. 161 W. Va. 603, 245 S.E.2d 157 (1978) ......................................................................................................................................................... 6

Alaior v. DeFrench, 169 W. Va. 241,286 S.E.2d 688 (1982) ...................................................... 12

.\Ii/chell v. For!,yth, 472 U.S. 511 (1985) .................................................................................... 8,9

Murphy v. Smallridge, 196 W. Va. 35,468 S.E.2d 167 (1998) ...................................................... 7

Orteza v. Monongalia Cnty. Gen. Hasp., 173 W. Va. 461, 318 S.E.2d 40 (1984 ) ........................ 11

Price v. Halstead, 177 W. Va. 592, 355 S.E.2d 380 (1987) ............................................................ 7

Robinson v. Pack, 223 W. Va. 828,679 S.E.2d 660 (2009) ........................................................ 7,8

State ex reI. Arrow Concrete Co. v. Hill, 194 W. Va. 239, 460 S.E.2d 54 (1995) .......................... 5

State ex ref. :v/cGraw v. Scoff Runyan Pontiac-Buick, Inc., 194 W. Va. 770.461 S.E.2d 516 (1995) ........................................................................................................................................... 6, 7

Stiebitz v. lvlahoney, 134 A.2d 71 (Conn. 1957) ............................................................................ 10

Stiegert v. Gilley, 500 U.S. 226 (1991) ........................................................................................... 9

Uinta Cnty. v. Pennington. 286 P.3d 138 (Wyo. 2012) ................................................................. 10

II

United Black Firefighters v. Hirst. 604 F.2d 844 (41h Cir. 1979) .................................................... 6

TV Va. Bd. ofEduc. v. /v/arple, 236 W. Va. 654, 783 S.E.2d 75 (2015) ............................. 5.12,13

TV Va. Reg 'I Jail & Carr. Facility AlIlh. v. A.B .. 234 W. Va. 492. 766 S.E.2d 781 (2014) .1, 8,10

Waitev. CivilServ. Comm'n, 161 W. Va. 154,241 S.E.2d 164(1977) .................................. 11.12

Wilhelmv. W. Va. LOllery, 198W. Va. 92.479S.E.2d603(1996) ........................................ 12, 13

CONSTITUTIONAL PROVISIONS

W. VA. CONST. ART. III § 10 ........................................................................................................ 11

MISCELLANEOUS

Franklin D. Cleckley, Robin J. Davis, & Louis 1. Palmer, Jr., LITIGATION HANDBOOK ON WEST VIRGINIA RULES OF CIVIL PROCEDURE § 12(b)(6)[2] (3d ed. 2008) ................................................ 6

III

I. ASSIGNMENT OF ERROR

The Circuit Court erred by denying Petitioner's Motion to Dismiss because the West

Virginia Department of Education C'WVDF') is entitled to qualitied immunity as a State agency

for the discretionary actions it undertook relating to the decision to discharge Respondent from

her at-will employment, as all of Respondent's allegations against WVDE arise from its

discretionary governmental functions and duties in making employment decisions.

Whether the Circuit Court erred by denying Petitioner's Motion to Dismiss. depriving

WVDE of qualitied immunity, where all of Respondent's allegations against WVDE arise from

its exercise of its discretionary duties and governmental functions in making employment

decisions. See, e.g., W. Va. Reg'IJai/ Allih. v. A.B., 234 W. Va. 492.514,766 S.E.2d 751,776

(recognizing that "'employee retention ... easily falls within the category of 'discretionary'

government functions" for qualified immunity purposes).

[I. STATEMENT OF THE CASE

Tammy McGraw was formerly an at-will employee of the West Virginia Department of

Education ("WVDE") in the position of Executive Director, Office of Instructional Technology.

She was dismissed from employment on December 4, 2014 due to the State Superintendent's

"loss of contidence in [McGraw's] ability to discharge the duties and responsibilities of [her]

position effectively." Ms. McGraw then sued WVDE 1 asserting various claims related to her

discharge ti'om employment. WVDE tiled a motion to dismiss on qualitied immunity grounds.

The Circuit Court of Kanawha County denied WVDE's motion. holding that Respondent had

demonstrated "violation of constitutional rights" and that she was "entitled to have additional

Ms. McGraw also brought claims against her former employer. Virginia Depal1ment of Education ("V DOE") and an individual, Lan Neugent (together, the "Virginia Defendants"). The Virginia Defendants are not parties to th is appeal.

discovery to develop the issue of fraud, malice or oppression .... " WVDE now appeals the

circuit court's order.

As explained more fully below. the circuit court's ruling depriving WVDE of qualitied

immunity was in error as a matter of law. Ms. McGraw has not met the heightened pleading

standard demanded when immunity issues are implicated. She has not demonstrated a

constitutionally-protected liberty interest in continued at-will employment, nor is she entitled to

"additional discovery to develop" her nearly nonexistent allegations of fraud, malice or

oppressIOn. Accordingly, this COUl1 should reverse the circuit court's judgment below, denying

Petitioner qualitied immunity, and order that this case be remanded with directions to the circuit

court to dismiss Respondent's claims against Petitioner.

A. BACKGROUND

1. Factual Background

WVDE is a state government agency. [Appx. at 28, ~ 5]. On or about November 12,

2014. WVDE hired Respondent as Executive Director. Ot1ice of Instructional Technology. [ld.

at 31, ~r 15]. Respondent rep0l1ed to work on December 1,2014. [ld.l Respondent's salary and

the terms and conditions of her employment were set forth in a letter dated December 1. 2014.

[Id. at 801. Like all WVDE employees, Respondent was a non-contractual, at-will employee.

[ld.].

Prior to her employment with WVDE. Respondent had been employed by the Virginia

Department of Education ("VDOE") as Director of Educational Technology and Director of

Digital Innovations and Outreach. [Appx. at 30, ~I 11]. On or about November 28. 2014.

WVDE received an anonymous letter alleging that Respondent was the focus of an ongoing

investigation by the Virginia Oftice or Inspector General for misuse of state funels and equipment

relating to her employment with VDOE. [Id. at 84-85]. Respondent was dismissed from

employment with WVDE on December 4.2014. [Id. at 82]. The reason given for Respondent's

dismissal was the State Superintendent's "loss of contidence in [Respondent's] ability to

discharge the duties and responsibilities of [her] position effectively." [IeI.].

2. Procedural History

On October 14, 2015. Respondent tiled a Complaint in the Circuit Court of Kanawha

County against the West Virginia Board of Education ("Board"). the VDOE. and Lan Neugent.

As against the Board. Respondent brought claims of violation of her constitutional rights,

wrongtul termination, and "punitive damages."l [Appx. at 3-26]. Respondent tiled an Amended

Complaint on November 5, 20 IS that changed the named Defendant from the Board to WVDE

because Respondent was hired by, employed by, and discharged by WVDE. [Id. at 28-39]. The

substance of Respondent's claims remained unchanged. On December 21, 2015, WVDE tiled its

Motion to Dismiss Respondent's Amended Complaint on qualitied immunity grounds. [Id. at

42-60].

Subsequent to WVDE's filing of its Motion to Dismiss, Respondent moved to amend her

Complaint on or about March 10.2016. [Appx. at 87-119]. Leave to amend was granted by the

circuit court the very next day. on March 11. 2016, before WVDE 's motion to dismiss was

heard.3 [Id at 1201. On April 19.2016. the circuit court held a hearing on WVDE's motion to

dismiss. predicated on qualitied immunity. The circuit court denied the motion and entered its

Respondent withdrew her standalone count for punitive damages; however. she continues to erroneously assert that she is entitled to an award of punitive damages against WVDE as an element of reliet: notwithstanding the strict and explicit statutory prohibition of the same. See W. VA. CODE § 55­17-4(3 ).

As indicated by the Docket Sheet, Petitioner did not receive a copy of the corresponding Order. [Appx. at I, lines 25-26]. Thus. Petitioner had no knowledge that the motion to amend had been granted until the April 19, 2016 hearing.

corresponding written order on June 15.2016. [Id. at 189-921. On July 15.2016, WVDE timely

filed its Notice of Appeal of the circuit court's order. [ILl. at 198-2121.

Ill. SUMMARY OF ARGUMENT

The circuit court erred by denying WVDE's Motion to Dismiss because. as a State

agency, WVDE is entitled to qualitied immunity from suit arising from its discretionary actions

relating to discharging Respondent from her at-will employment. WVDE did not violate any

clearly-established rights of Respondent, nor were its actions in discharging Respondent from

her at-will employment fraudulent, malicious, or oppressive. Because all of Respondent's

allegations against WVDE arise from its discretionary acts in the perfonnance of its duties,

government function, and authority to retain at-will employees, WVDE is entitled to qualified

immunity from the claims presented in Respondent's Amended Complaint.

IV. STATEMENT REGARDING ORAL ARGUMENT AND DECISION

In accordance with West Virginia Rule of Appellate Procedure 18(a), oral argument is

necessary on this appeal because the decisional process of the Court would be significantly aided

by oral argument. Accordingly, Petitioner requests oral argument pursuant to Rule 19 as the

instant appeal involves assignments of error in the ci rcuit court's appl ication of settled law on the

issue of Petitioner's entitlement to qualified immunity from suit. Further, this appeal involves a

narrow issue of law. Should this Court determine that a Rule 19 argument is appropriate,

Petitioner believes that the ten-minute maximum time for argument will be sufticient.

Alternatively, to the extent that this appeal involves issues of fundamental public

importance. Petitioner requests oral argument pursuant to Rule 20. There is public interest in

this mattcr because if Respondent is allowed to proceed with her suit. the State and its taxpayers

\vill incur furthcr prohibitive and unnecessary expenditures of costs and resources as it is evident

that Respondent's claims do not entitle her to relief. This matter is particularly of tundamental

public importance because allowing Respondent to proceed with her meritless claims, for which

Petitioner enjoys qualified immunity, would essentially preclude WVDE and possibly any other

State agency from discharging an at-will employee at its will and pleasure. Consequently,

abrogating Petitioner's qualified immunity could potentially open the Court's floodgates to

similar meritless lawsuits by similarly-situated State employees who are disgruntled by discharge

from their at-will employment. Should this Court determine that a Rule 20 argument is

appropriate, Petitioner believes that the twenty-minute maximum time for argument will be

sufticient.

Petitioners state that a memorandum decision pursuant to Rule 21 is not appropriate in

this matter, and instead, the issuance of an opinion pursuant to Rule 22 is warranted.

V. ARGUMENT

A. STANDARD OF REVIEW

This is an interlocutory appeal from the Order of the Circuit Court of Kanawha County,

entered on June 15, 2016, denying Petitioner's Motion to Dismiss predicated on qualified

immunity grounds. "Ordinarily the denial of a motion tor failure to state a claim upon which

relief can be granted made pursuant to West Virginia Rules of Civil Procedure l2(b)(6) is

interlocutory and is, theretore, not immediately appealable." Syl. Pt. 2. State ex reI. Arrow

Concrete Co. v. Hill. 194 W. Va. 239, 460 S.E.2d 54 (1995). However. this Court has held that .•

circuit court's denial of a motion to dismiss that is predicated on qualified immunity is an

interlocutory ruling which is subject to immediate appeal under the ·collateral order' doctrine:'

Syl. Pt. 1. W Va. Bd. olEduc. v. Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015): see also Jarvis

v. W Va. State Police. 227 W. Va. 472,476,711 S.E.2d 542, 546 (2010) (finding that ··[b]ecause

5

the instant order denying a motion to dismiss is an interlocutory order that is predicated in part

on qualitied immunity, we tind that the order is subject to immediate appeal under our holding in

[Robinson v. Pack. 223 W. Va. 828. 679 S.E.2d 660 (2009)],,).

Appellate review of a circuit court's order denying a motion to dismiss a complaint is de

novo. Syl. Pt. 4, Ewing v. Bd. (~lEduc. (~lCnty. afSummers. 202 W. Va. 228. 503 S.E.2d 541

(1998): accord Syl. Pt. 2. State ex reI. AkCJraw v. Scali Runyan Pontiac-Buick. Inc., 194 W. Va.

770. 461 S.E.2d 516 (1995). Nevertheless, "[b]eing subject to interlocutory appeal, a trial

court's pretrial ruling involving the existence of qualitied immunity must clearly set out factual

findings sufficient to permit meaningful appellate review of the issues herein identitied." City of

Sf. Albans v. Botkins, 228 W. Va. 393 ... WO-Ol, 479 S.E.2d 649. 659 (1996).

"The purpose of a motion under Rule 12(b)( 6) is to test the tormal sufficiency of the

complaint." Callia v. AIcJunkin, 178 W. Va. 158, 159,358 S.E.2d 242,243 (1987) (citations

omitted). Courts ordinarily assume the allegations stated in the complaint to be true and construe

that pleading in the light most favorable to the plaintiff. Jahn W Lodge Dis/r. Ca. v. Texaco.

Inc .. 161 W. Va. 603. 605. 245 S.E.2d 157, 158-59 (1978). The court may. however, "ignore

legal conclusions. unsupported conclusions, unwarranted inferences and sweeping legal

conclusions cast in the torm of factual allegations." Farshey v. Jackson, 222 W. Va. 743, 756,

671 S.E.2d 748. 761 (2008) (quoting Franklin D. Cleckley, et al., LITIGATION HANDBOOK ON

WEST VIRGINIA RULES OF CIVIL PROCEDURE § 12(b)(6)[21. at 347).-1

Motions to dismiss should be granted when a party requests relief that it cannot receive or

attempts to entorce rights that it does not have. See. e.g., Scalf Rlinyan Pontiac-BlIick. Inc .. 194

Applying the identical federal rule. federal COLllts have been clear that a plaintiff cannot insulate a claim tj'om dismissal by alleging incorrect conclusory ·'facts." ColiltS. thus. need not accept conclusory factual allegations devoid of any reference to actual events. See. e.g.. United Black Firejighters v. Hirst, 604 F.2d 844. 847 (4th eir. 1979).

6

W. Va. at 776, 461 S.E.2d at 522 (stating that a plaintiff "may not fumble searching for a

meritorious claim within the elastic boundaries of a barebones [pleading], ... or where the claim

is not authorized bv the laws of West Virginia"). Motions should also be granted when "it is. ~ ~

clear that no relief could be granted under any set of facts that could be proved consistent with

the allegations:' Forshey, 222 W. Va. at 750, 671 S.E.2d at 755 (quoting Alurphy v. Smallridge.

196 W. Va. 35,36,468 S.E.2d 167, 168 (1998) (additional citation omitted)). Accordingly,

although a "plaintiff's burden in resisting a motion to dismiss is a relatively light one ... [s]he is

required at a minimum to set forth sufficient information to outline the elements of [her] claim.

If [s]he fails to do so, dismissal is proper:' Price v. Halstead, 177 W. Va. 592, 594, 355 S.E.2d

380,383 (1987) (citations omitted). In other words, the "essential material facts must appear on

the face of the Complaint," and "sketchy generalizations of a conclusive nature unsupported by

operative facts do not set forth a cause of action." Fass v. Nowsco Well Service, Ltd.. 177 W.

Va. 50, 52-53. 350 S.E.2d 562. 563-64 (1986). Here, as Petitioner invokes qualified immunity,

Respondent's claims must meet a heightened pleading requirement. Hutchison v. City of

Hunting/on. 198 W. Va. 139, 149. 479 S.E.2d 649, 659 (1996) (""[I]n civil actions where

immunities are implicated, the trial court mllst insist on heightened pleading by the plaintiff'].

B. DISCUSSION

WVDE is entitled to qualified immunity from Respondent's claims as all of Respondent's

allegations against WVDE arise from its discretionary acts in the performance of its duties,

government function. and authority relating to discharging Respondent from at-will employment,

which did not violate any of Respondent's clearly established rights and were not fraudulent,

malicious, or oppressive.

7

1. Qualified immunity generally

As this Court has recently claritied and elaborated:

To determine whether the State, its agencies, ofticials. andlor employees are entitled to qualitied immunity, a reviewing court must first identify the nature of the governmental acts or omissions which give rise to the suit for purposes of determining whether such acts or omissions constitute legislative, judicial. executive or admimistrative policy-making acts or illvolve otherwise discretionary governmell1al jllnctions ....

Syl. Pt. 10, W. Va. Reg 'I Jail and Corr. Facility AUlh. v. A.B., 234 W. Va. 492. 766 S.E.2d 751

(2014).

To the extent that governmental acts or omissions which give rise to a cause of action fall within the category of discretionary functions. a reviewing court must determine whether the plaintitf has demonstrated that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known or are otherwise fraudulent. malicious, or oppressive in accordance with Stale v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or employees charged with such acts or omissions are immune from liability.

Syl. Pt. 11, id.

As this Court has consistently observed, "allowing interlocutory appeal of a qualified

immunity ruling is the only way to preserve the intended goal of an immunity ruling: to afford

public ofticers more than a defense to liability by providing them with 'the right not to be subject

to the burden ora triaL'" City of'SI. Albans v. Botkins. 228 W. Va. 393,397,719 S.E.2d, 863,

867 (2011) (quoting Robinson. 223 W. Va. at 833. 679 S.E.2d at 665) (additional citations

omitted». This Court views qualitied immunity as an "immunity fr0111 suit rather than a mere

defense to liability" that is "effectively lost if a case is erroneously permitted to go to trial."

Botkins. 228 W. Va. at 398.719 S.E.2d at 868 (quoting /vlitchell v. For.\yth, 472 U.S. 511, 526

(1985». Accordingly, this Court has emphasized the need for a court to determine claims of

immunity, which are a pure question of law. where ripe for disposition. Syl. Pt. I. Hutchison,

8

198 W. Va. at 144, 479 S.E.2d at 656 C'Therefore, unless there is a bona fide dispute as to the

foundational or historical facts that underlie the immunity determination, the ultimate questions

of statutory or qualified immunity are ripe for summary disposition.")

Moreover, the Supreme Court of the United States has emphasized the importance of

determining issues of qualified immunity at the earliest possible stage of litigation to avoid

expending unnecessary costs and resources:

[n a suit against an officer for a violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence. Where the defendant seeks qualified immuility, a ruling Oil that issue should be made early ill the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is all entitlement /lot to stand trial or face the other burdells of litigation. Mitchell v. Forsyth, 472 U.S. 51 L 526 (1985). The privilege is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if the case is erroneously permitted to go to trial. Ibid. As a result we repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation. Hunter v. Btyan, 502 U.S. 224, 227 (1991) (per curiam).

Suucter v. Katz. 533 U.S. 193. :WO-Ol (2001) (emphasis added). Indeed. "until this threshold

immunity question is resolved, discovery should not be allowed." Sliegert v. Gilley, 500 U.S.

226, 231 (1991) (emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982».

2. The circuit court erred in denying WVDE's Motion to Dismiss because WVDE is entitled to qualified immunity as a State agency for its discretionary actions relating to discharging Respondent from her at-will employment

a. All of Respondent's allegations against WVDE illvolve its discretionary (lctiolls alld decisiolls in discharging Respondent from at-will employment.

As an initial matter, Petitioners note that although the circuit court was required to clearly

set out factual findings involving the existence of qualified immunity sut1icient to permit

meaningful appellate review, the Order utterly fails to do so in any way whatsoever. See

Botkins, 228 W. Va. at ' ..1-00-01. 719 S.E.2d at 870-71. Indeed. the Order fails to even reterence

9

the heightened standard of pleading required when immunity questions are implicated, much less

attempt to explain how it deemed Respondent's allegations to have met those heightened

standards. Hutchison. 198 W. Va. at 149. 479 S.E.2d at 659.5 Rather, the circuit court merely

declares in the broadest of strokes that ··[t]he Court does tind that the plaintiff has alleged

violation of constitutional rights." without stating any factual basis for that determination. or

even identifying the clearly-established constitutional right which WVDE allegedly violated.

Appx. at 192, -r 6].

Like all employees of WVDE, Respondent was a "non-contractual, at-will" employee.

[Appx. at 57-59; 80]. It is unequivocal that the authority to select and retain at-will employees is

a discretionary government tunction of WVDE. See .-I.B. at 773. Indeed, this Court has

specitically held that ·'the broad categories of training, supervision, and employee retention, as

characterized by respondent, easily fall within the category of 'discretionary' governmental

functions." Id. (emphasis added) (citing Stiebitz v. lv!ahoney, 134 A.2d 71, 73 (Conn. 1957) (the

duties of hiring and suspending individuals require "the use of a sound discretion"); see also

Dovalina v. Nuno, 48 S.W.3d 279. 282 (Tex. App. 2001) (hiring, training, and supervision are

discretionary acts); Uinta Cnty. v. Pennington. 286 P.3d 138, 145 (Wyo. 2012) ("hiring, training,

and supervision of employees involve the policy judgments protected by the discretionary

req uiremenC).

Given Respondent's considerable vagueness detining the constitutional provisions which

she alleges WVDE violated, Petitioner was forced to hunt tor the trufnes buried in her Amended

Complaint in tiling its Motion to Dismiss. Taking Respondent's allegations in the light most

favorable to her. Respondent appears to assert that she possessed a liberty interest in continued

[n fact, as discussed be [ow, the circuit court held that Petitioner was not entitled to immunity "at this time" because Respondent should be allowed "additional discowry to deve[op" her claims.

10

employment at WVDE and that her dismissal from that employment violated due process rights

guaranteed by W. VA. CONST. Art. rrr § 10. [Appx. at 34. ~ 30: 36. ~1451.6

Under West Virginia law, a two-step process is utilized to determine whether a state

employer infringed on its employee's liberty or property interest: (1) did the employee have a

liberty or property interest at stake: and (2) if so, how much process is she entitled to under the

Due Process Clause. Waite v. Civil Servo Comm 'n, 161 W. Va. 154, 159.241 S.E.2d 164, 167

(1977). "[I]f the answer [to the tirst question] is no. the second step becomes unnecessary

because [the employee] has no claim warranting constitutional protection:' lei. ''The threshold

question in any claim of due process deprivation is isolation of the property interest or liberty

interest that the plaintiff alleges was at stake:' Orteza v. Monongalia Cnty. Cell. Hasp., 173 W.

Va. 461,466-67,318 S.E.2d 40, 45 (1984). This Court has defined a "liberty interest" as

follows:

The "liberty interest" includes an individual's right to freely move about, live and work at his chosen vocation, without the burden of an unjustified label of infamy. A liberty interest is implicated when the State makes a charge against an individual that might seriously damage his standing ami associations ill his commullity or places a stigma or other disability on him that forecloses jlltllre employment opportunities.

(, Respondent's counsel contirmed at hearing that Respondent's claims were predicated on a breach

of a constitutional liberty interest and violation of due process:

MR. CRISWELL: .... Plaintiffs plead under qualified immunity we have to show that there is a constitutional violation. We've alleged a constitutional violation. It is plead as one of our counts. breach of a constitutional violation. So, there's no question we've handled the tirst prong of that.

THE COURT: And what facts do you rely on to support the constitutional violation claim against -

MR. CRISWELL: AIIt/tlIat's tile bread, (~lthe liberty interest. Am/tlIlIt's where we get illto tile violatiolt of due process. And. again, these are aIL kind ot: circular arguments....

[Appx. at 160, transcript p. 25. lines 4-14] (emphasis added).

1 1

Syl. Pt. 2, Waite. 161 W. Va. at 154,241 S.E.2d at 164 (emphasis added). Accordingly, a liberty

interest encompasses two of a state employee's most basic interests: (1) her good name; and (2)

her prospects for future employment. Major v. DeFrench, 169 W. Va. 241, 256, 286 S.E.2d 688,

697 (1982).

West Virginia does not have a bright-line rule regarding when a charge sutliciently

stigmatizes an employee's good name or forecloses her prospects for future employment.

Examples of a charge which could implicate a liberty interest are dishonesty, immorality, or

criminality. See Waite, 161 W. Va. at 160,241 S.E.2d at 168. It is well-established, however,

that not all public employees have a protected liberty interest in continued government

employment, even when his/her termination makes her less attractive to potential employers.

Freeman v. Poling, 175 W. Va. 814.822,338 S.E.2d 415, 422 (1985). Indeed. statements and

communications that merely suggest incompetence, unsatisfactory job performance,

interpersonal issues, and similar traits do not give rise to a protected liberty interest. See Wilhelm

v. W Va. [ollery. 198 W. Va. 92. 95-96, 479 S.E.2d 603, 605-06 (1996) (per curiam). Further,

"an unexplained termination or discharge from employment does not create a sufticient stigma to

invoke a liberty interest protection!.]" M.

This Court recently considered the question of a liberty interest with regard to at-will

public employment in W Va. Bd (~lEduc. v. lvlarple, 236 W. Va. 654. 783 S.E.2d 75 (2015), a

case with operative facts nearly identical to the one at bar. In Marple. Superintendent of Schools

Jorea Marple. an at-will public employee, was dismissed from employment due to the Board of

Education's opinion that satisfactory progress had not been made in West Virginia's education

system and that a new superintendent could achieve ditferent results. Id. at 659, 80. The circuit

court below denied the Board of Education's motion to dismiss on qualitied immunity grounds;

the Board appealed. In that appeal, Marple argued that the Board's statement cast doubt on her

competence, creating a stigma sufticient to implicate a liberty interest. Id. at 664-65, 85-86.

This Court rejected Marple's arguments, noting that West Virginia law has long

explicitly recognized that "a statement explaining the termination as the 'loss of contidence in

your ability to affectively [sic] discharge the duties and responsibilities of your position[,]' was

IWt sufficient to 'reach the level of stigmatization which would foreclose lutllre employment

opportunities or seriously damage . .. {the individual'sf standing alld associations ill the

community.'" Marple, 236 W. Va. at 665,783 S.E.2d at 86 (quoting Wilhelm, 198 W. Va. at 93,

479 S.E.2d at 603 (l996)) (emphasis added). Accordingly, in part because Marple's allegations

regarding loss of contidence in her abilities and doubt upon her competence did not reach the

level of stigmatization sufficient to implicate a liberty interest, this Court unanimously reversed

the circuit court below and ordered dismissal of the lawsuit pursuant to a Rule 12(b)(6) standard.

236 W. Va. at 658,669. 783 S.E.2d at 79,90.

Here. Respondent was not dismissed on a charge of dishonesty, immorality, or

criminality. Rather. as in Marple, Respondent was dismissed from employment due to the

Superintendent's "loss of contidence in [Respondent's] ability to discharge the duties and

responsibilities of [her] position effectively." [Appx. at 82]. As made plain in Marple and

Wilhelm, a statement of dismissal charging loss of contidence does not, as a matter of law, rise to

the level of stigmatization sunicient to implicate a cognizable liberty interest. Accordingly,

WVDE did not (and could not) have violated any clearly-established constitutional rights in

discharging her from her at-will employment. and the circuit court below clearly eiTed as a

matter of law in denying Petitioner's motion to dismiss. predicated on qualitied immunity

grounds.

13

b. Respolldent fails to adequately plead that WVDE's discretiollary acts were fraudulent, malicious, or oppressive; moreover, the circuit court erred in Itolding that Respondent is elltitled to discovery to "develop" Iter feeble allegations.

Respondent's Amended Complaint does not contain any allegation whatsoever that

WVDE acted fraudulently, maliciously, or oppressively, yet the circuit court's Order allows

Respondent to proceed with such a claim anyway. As before. although the circuit court was

required to clearly set out factual Endings involving the existence of qualitied immunity

sufticient to permit meaningful appellate review. the Order utterly fails to delineate any facts

whatsoever to support its conclusion that Respondent had adequately pled fraud. malice~ or

oppression. See Botkins, 228 W. Va. at 400-01, 719 S.E.2d at 870-7l. And again, the Order

fails to even reference the heightened standard of pleading required when immunity questions

are implicated, much less attempt to explain how it deemed Respondent's allegations to have met

those heightened standards with regard to fraud, malice, or oppression. Hutchison. 198 W. Va.

at 149, 479 S.E.2d at 659. Rather. the Court summarily declares that Respondent should be

"entitled to have additional discovery to develop the issue of fraud, malice. or oppression, and

further that [WVDE] is not entitled, at this time, to qualitied immunity ...." [Appx. at 191, ~

7].

In other words. the circuit court's Order implicitly acknowledges that Respondent's

claims of fraud. malice. or oppression are feeble-to-nonexistent. yet allows her to proceed with

her case anyway. This erroneous reasoning that factual discovery should be necessary to resolve

the clear legal question of qualitied immunity is ret1ected in the Order. wherein the circuit court

held that WVDE was not ·'entitled. lit this time, to qualitied immunity." [Appx. at 191. ~ 7].

Taken in sum. the circuit court's rulings clearly (and improperly) attempt to defer the

critical threshold question of qualified immunity until after WVDE would have already

14

unnecessarily expended considerable costs and resources under the signiticant burdens of

discovery and litigating Respondent's claims - at which point the immunity would have

effectively been lost. This is precisely the scenario that qualified immunity is intended to

eliminate, and such rationale nies directly contrary to the voluminous body of case law stating

that the question of qualitied immunity should be resolved at the earliest possible opportunity

and that discovery should not be allowed until the resolution is reached. Accordingly, the circuit

court below clearly erred as a matter of law in denying Petitioner's motion to dismiss, predicated

on qualitied immunity grounds.

VI. CONCLUSION

WHEREFORE, for the foregoing reasons, Petitioner West Virgina Department of

Education respectfully requests that this Court REVERSE the circuit court's Order denying

WVDE's Motion to Dismiss, entered on June 15, 2016, and remand this Civil Action back to the

circuit court with directions that the circuit court enter an Order granting WVDE's Motion to

Dismiss and dismissing Respondent's claims against WVDE with prejudice.

15

Respectfully submitted this I til day of October, 2016.

STEPTOE & JOHNSON PLLC Of Counsel

004600.01633 730t!817

WEST VIRGINIA DEPARTMENT OF EDUCATION,

By Counsel,

~r6. ~~ ~. Fox. Esq. (WVS #12)9) Mark C. Dean, Esq. (WVSB #12017) Chase Tower, Seventeenth Floor 707 Virginia Street East P.O. Box 1588 Charleston, WV 25326-1588 (304) 353-8000 (304) 353-8180 facsimile Jan.Fox@Steptoe-Johnson.com Mark.Dean@Steptoe-Johnson.com

16

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA Docl<et No. 16-0679

"VEST VIRGINIA DEPARTMENT OF EDUCATION,

Petitioner herein; Defendant below;

v. Appeal from an Order of the Circuit Court of Kanawha County CIVIL ACTION NO. lS-C-1893 Honorable Carrie L. Webster

TAMMY MCGRA"V,

Respondent herein; Plaintiff below.

CERTIFICATE OF SERVICE

I hereby certify that the foregoing "Brief of Petitioner West Virginia Department of Education" was served on all the parties hereto via U. S. First Class Mail, this 1i h day of October, 2016, to counsel as follows:

John D. Wooton, Sr., Esq. PO Box 2600 Beckley, West Virginia 25802 john. wooton@wwdhe.com Counsellor Respondent

Matthew S. Criswell, Esq. CRISWELL FRENCH PLLC 105 Capitol Street, Suite 200 Charleston, West Virginia 25301 mcriswcll@criswellfrench.com Counsellhr Re.~p()ndent