C. D., Plaintiff Below, Petitioner
Grant County Board of Education, Defendant Below, Respondent
C.D., by counsel Jared T. Moore, appeals the
order of the Circuit Court of Grant County that granted
summary judgment in favor of the Grant County Board of
Education ("the Board"). The Board, by counsel
Ancil G. Ramey, filed a response to which petitioner filed a
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
times relevant herein, petitioner was a senior at Petersburg
High School. She suffers from diabetes, and her illness
requires her to wear an insulin pump in order to check her
blood sugar levels frequently. Because of her condition, the
Board agreed to excuse any absences related to her illness,
pursuant to a 504 plan. According to petitioner's 504 plan,
petitioner would not be penalized for absences required for
medical appointments/illness. During the 2014-2015 school
year, petitioner's 504 team met to discuss her condition
at the beginning of the school year, but did not meet again.
fall semester of 2014, petitioner missed several days of
school. In December of 2014, Assistant Principal Paula Weese,
called petitioner's father to tell him that petitioner
had accumulated more than five absences. A notice was also
sent to petitioner, who was not living with her parents, but
with a boyfriend, that informed her of the accumulation of
five unexcused absences, and that a truancy complaint would
be filed if she continued to be absent without an excuse.
Petitioner also met with Ms. Weese regarding her
absences in December of 2014.
to petitioner, during that meeting she provided written
excuses for all of her absences, and was informed that the
Board knew about her condition, and that she did not have to
worry about a truancy complaint. Petitioner also asserts that
Ms. Weese told her during the meeting that "due to Ms.
D. being on a 504 plan, the [Board] would contact Ms. D. or
her father before truancy was considered." The Board
denies that petitioner provided an excuse for all of her
absences, and asserts that the excuses were not provided
until January of 2015. The Board also asserts that some of
the excuses were due to a "job interview, "
"transportation problems, " and "back
spring semester of 2015, petitioner accumulated fourteen
additional unexcused absences. A truancy complaint was filed
on April 9, 2015. The Board did not send petitioner an
additional notice, or make additional attempts to contact
petitioner or her father prior to filing the complaint.
Petitioner was arraigned on the truancy complaint on April
15, 2015. On May 12, 2015, petitioner's father sent a
letter to the Board identifying the dates that petitioner was
absent due to her diabetes. Subsequently, the truancy
complaint was dismissed.
filed suit against the Board on July 17, 2015, asserting
claims for failure to accommodate pursuant to the West
Virginia Human Rights Act; malicious prosecution; and
reckless infliction of emotional distress. The Board filed an
answer and a motion for summary judgment. Petitioner also
filed a motion for summary judgment. At a hearing held
September 19, 2016, the circuit court granted the Board's
motion for summary judgment as to all three claims in the
complaint, stating as follows:
The problem that this whole thing led to was the process was
explained, and your clients didn't follow it. The only
thing that's undisputed and unrebutted is she didn't
bring in the notes when she needed to, as she was told and
instructed to do.
There was probable cause to file this. I've been a
prosecutor for twenty years. I've dealt with truancy out
the ying-yang [sic]. There was probable cause to file this.
There was no malice. There may have been negligence by not
sending the letter; but the intentional infliction or
intentional malice, I don't believe that.
I wanted to dismiss this months ago, but we let it play
itself out. But this case, the only thing that was outrageous
to me is we've been here dealing with this.
circuit court entered its order granting summary judgment to
the Board on October 6, 2016. In its order, the circuit court
found that the Board complied with the West Virginia
Legislative rules concerning attendance and the West Virginia
Code. Regarding petitioner's malicious prosecution claim,
the circuit court found that petitioner presented no evidence
to prove the essential elements of malice or lack of probable
cause. Regarding petitioner's accommodation claim, the
circuit court found that petitioner was not exempt from the
policies of the school handbook, which required her to submit
a written note for each absence, and that the failure to
provide the notes, and her absences led to the filing of the
truancy complaint. The circuit court likewise found that
petitioner could not prevail on the reckless infliction of
emotional distress claim, finding that the "initiation
of a truancy proceeding was not extreme and outrageous
conduct." Petitioner now appeals the October 6, 2016,
order, and asks this Court to reverse the circuit court's
appeal petitioner argues that the circuit court erred in
failing to recuse himself due to bias, and in granting
summary judgment on petitioner's failure to accommodate,
malicious prosecution, and reckless infliction of emotional
Court reviews a circuit court's entry of summary judgment
de novo. See Syl. Pt. 1, Painter v. Peavy,
192 W.Va. 189, 451 S.E.2d 755 (1994). "'A motion for
summary judgment should be granted only when it is clear that
there is no genuine issue of fact to be tried and inquiry
concerning the facts is not desirable to clarify the
application of the law.' Syllabus point 3, Aetna
Casualty & Surety Co. v. Federal Insurance Co. of New
York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl.
Pt. 1, Carr v. Michael Motors, Inc., 210 W.Va. 240,
557 S.E.2d 294 (2001). We note that "[t]he circuit
court's function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter, ...