Submitted: April 25, 2017
from the Circuit Court of Kanawha County The Honorable Carrie
L. Webster, Judge Civil Action No. 15-C-1893
Fox, Esq. Mark C. Dean, Esq. Steptoe & Johnson PLLC
Charleston, West Virginia Counsel for the Petitioner.
D. Wooton, Esq. Wooton, Davis, Hussell & Ellis Beckley,
West Virginia Counsel for the Respondent.
Matthew S. Criswell, Esq. Mark L. French, Esq. Criswell
French, PLLC Charleston, West Virginia Counsel for the
JUSTICE WORKMAN, deeming herself disqualified, did not
participate in the decision of the Court.
JOSEPH K. REEDER sitting by temporary appointment.
BY THE COURT
"A 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. of Educ. v. Marple, 236 W.Va. 654, 783
S.E.2d 75 (2015).
"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 plaintiff 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 State 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, W.Va. Reg'l Jail &
Corr. Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d
"The Due Process Clause, Article III, Section 10 of the
West Virginia Constitution, requires procedural safeguards
against state action which affects a liberty or property
interest." Syl. Pt. 1, Waite v. Civ. Serv.
Comm'n, 161 W.Va. 154, 241 S.E.2d 164 (1977).
"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 i individual that might
seriously damage his standing and associations in his
community or places a stigma or other disability on him that
forecloses future employment opportunities." Syl. Pt. 2,
Waite v. Civ. Serv. Comm'n, 161 W.Va. 154, 241
S.E.2d 164 (1977).
state a claim for a violation of a government employee's
liberty interest in his/her good name, the employee must
allege that the stigmatizing statement made against him/her
was false. To the extent that our opinion in Waite v.
Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164
(1977), is inconsistent with this holding, it is overruled.
government employer implicates its employee's liberty
interest in his/her good name when the following elements are
alleged: (1) a stigmatizing statement; (2) which was false;
(3) was published, or made accessible to the public; (4) in
connection with a serious adverse employment action. When
these elements are met, the employee must be afforded
procedural safeguards under Article III, Section 10 of the
West Virginia Constitution.
West Virginia Department of Education ("the DOE")
appeals an order by the Circuit Court of Kanawha County. In
its order, the circuit court denied the DOE's motion to
dismiss based on qualified immunity.
underlying lawsuit was filed by Tammy McGraw after the DOE
terminated her at-will employment. The lawsuit contained the
following two claims against the DOE: (1) a constitutional
tort claim, and (2) a claim for wrongful termination. As to
her constitutional tort claim, Ms. McGraw alleged that the
DOE leaked a letter it received from her previous government
employer revealing that she was under investigation for
misallocating public funds for personal use. Although she
does not dispute that she was, in fact, under investigation
on those charges, she alleges the DOE's leak of this
letter violated her constitutionally-protected liberty
review, we find that Ms. McGraw failed to outline a liberty
interest violation sufficient to overcome the DOE's
qualified immunity because the truth of the allegedly leaked
letter, i.e., that she was under investigation for
misallocating public funds, was not disputed. Therefore, the
DOE's qualified immunity bars Ms. McGraw's
constitutional tort and wrongful termination claims. We
reverse the circuit court's order and dismiss Ms.
McGraw's claims against the DOE.
FACTUAL AND PROCEDURAL BACKGROUND
appeal arises from the DOE terminating Ms. McGraw's
at-will employment as its Executive Director of the Office of
Instructional Technology. This termination was, at least in
part, due to the DOE's receipt of a letter from Ms.
McGraw's previous employer, the Virginia Department of
Education. The letter stated as follows:
Tammy McGraw has been the focus of an ongoing
investigation by [The Office of the Virginia State Inspector
General] and the [Virginia] department of education for
illegal activities and misuse of state
funds.....These charges involve such things as diverting
programmatic funds to cover personal travel expenses,
purchasing equipment for personal use, falsely submitting
travel invoices, and making payments to contractors without
contracts and for work not performed. .
While the investigation is still continuing and a
decision on the indictment has not been made, McGraw has
been relieved of her position at the Virginia Department of
Education for the above violations of law.
(Emphasis added). In short, the letter revealed that Ms.
McGraw was under investigation in Virginia for misallocating
public funds for personal use but that a decision on the
investigation had not yet been made. The DOE claims that Ms.
McGraw failed to disclose this ongoing investigation during
her employment interview.
McGraw does not dispute that she was under investigation in
Virginia for misallocating public funds for personal use.
Instead, she complains that the letter was leaked to local
news media in response to media inquiries as to why the DOE
terminated her at-will employment. Ms. McGraw's complaint
states the letter "was provided to the Charleston
Gazette by a member of the West Virginia Department of
Education[, ]" and "[m]ultiple news articles were
published based on the false information contained in the
McGraw filed a lawsuit against the DOE asserting claims for a
constitutional tort and wrongful termination. The DOE filed a
motion to dismiss her lawsuit under West Virginia Rule of
Civil Procedure 12(b)(6),  asserting that qualified immunity
barred Ms. McGraw's claims. The circuit court failed to order
Ms. McGraw to file a reply to the DOE's motion to dismiss
pleading qualified immunity; instead, it scheduled a hearing
on the DOE s motion.
16, 2016, the circuit court entered an order denying the
DOE's motion to dismiss, finding that Ms. McGraw pleaded
sufficient facts to outline a liberty interest violation and
that qualified immunity does not bar her claims for a
constitutional tort or wrongful termination. It is from that
order that the DOE brings this appeal.
STANDARD OF REVIEW
appeal, we assess a circuit court order denying a motion to
dismiss based on qualified immunity. We have held: "A
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."
established that this appeal is properly before this Court,
we review the circuit court's order de
novo. "In conducting a de novo review, we
apply the same standard applied in the circuit
court." That is, generally, "dismissal for
failure to state a claim is only proper where it is clear
that no relief could be granted under any set of facts that
could be proved consistent with the allegations in the
complaint." "If the complaint alleges sufficient
facts, it must survive a . . . motion to dismiss even if it
appears that recovery is very remote and
unlikely." Under this general pleading standard,
"the complaint is construed in the light most favorable
to plaintiff [Ms. McGraw], and its allegations are to be
taken as true." However, to the extent Ms. McGraw's
complaint is based on allegations of fraud, a heightened
pleading standard applies, and the circumstances constituting
fraud must be stated with
argues the circuit court erred by failing to dismiss Ms.
McGraw's claims based on qualified immunity.
"Qualified immunity preserves the freedom of the State,
its agencies, and its employees to deliberate, act, and carry
out their legal responsibilities within the limits of the law
and constitution." As we explain below, qualified
immunity bars recovery for Ms. McGraw's constitutional
tort and wrongful termination claims. We discuss the standard
for qualified immunity and its application to Ms.
McGraw's claims in turn.
Qualified Immunity in General
first step in determining whether a state agency is entitled
to qualified immunity is:
[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
administrative policy-making acts or involve otherwise
discretionary governmental functions.
facts giving rise to Ms. McGraw's suit were the DOE's
termination of her at-will employment and its alleged leak of
a letter explaining its non-retention of Ms. McGraw as an
employee. We have stated, "employee retention . . .
fall[s] within the ...