(Kanawha County 15-C-22)
Soraya McClung, by counsel Mark A. Atkinson and Paul L.
Frampton, appeals the Circuit Court of Kanawha County's
November 14, 2016, order granting respondent's motion for
summary judgment and dismissing her retaliatory discharge
claim. Respondent West Virginia State Police
("WVSP"), by counsel Lou Ann S. Cyrus and Kimberly
M. Bandy, filed a response. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in
granting respondent's motion for summary judgment because
it erred in finding that she spoke as an employee, not as a
private citizen, on a matter of public concern.
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.
was employed by the WVSP forensic crime laboratory beginning
in 1990. In October of 2007, she was appointed as the
Director of the WVSP forensic crime laboratory. Sometime
during the 2014 legislative session, petitioner began
discussions with a West Virginia legislative senator and his
staff regarding the possibility of removing the forensic
crime laboratory from the organizational structure of the
WVSP. Without the WVSP's knowledge, (1) petitioner
gathered information regarding the forensic crime
laboratory's removal and pay increases for employees, (2)
provided the information to the West Virginia Legislature
("legislature"), and (3) testified before
legislative committees. As a result of the efforts, a
legislative bill was drafted that called for the forensic
crime laboratory's removal from the organizational
structure of the WVSP. In March of 2014, the WVSP
administration met with petitioner wherein petitioner
initially denied her involvement with the legislative bill,
but ultimately disclosed that she provided information to the
Legislature. After meeting with the WVSP administrators,
petitioner was reassigned from the Laboratory Director to an
Analyst IV position, a demotion. The WVSP stated that
petitioner was demoted because she lobbied the Legislature
for the forensic crime laboratory's removal from the
organizational structure of the WVSP and for a pay increase
for laboratory employees.
January of 2015, petitioner filed a complaint in the Circuit
Court of Kanawha County claiming that her reassignment from
the Laboratory Director to Analyst IV constituted
"unlawful, retaliatory demotion and constructive
discharge." Petitioner claimed that the WVSP violated
her right to free speech in terminating her employment for
engaging with the legislature on a matter of public concern.
In July of 2016, respondent filed a motion for summary
judgment. In August of 2016, the circuit court held a hearing
on respondent's motion. Following the hearing, on
November 14, 2016, the circuit court granted respondent's
motion for summary judgment on the basis that petitioner
"was speaking as an employee of the WVSP and not as a
private citizen." It is from this order that petitioner
circuit court's entry of summary judgment is reviewed
de novo." Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Our review
is guided by the principle that
"'[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)." Syllabus Point 1, Andrick v. Town of
Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl.
Pt. 2. Furthermore,
"[s]ummary judgment is appropriate where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, such as where the nonmoving
party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove."
Syllabus point 4, Painter v. Peavy, 192 W.Va. 189,
451 S.E.2d 755 (1994).
Syl. Pt. 5, Toth v. Bd. of Parks & Recreation
Comm'rs, 215 W.Va. 51, 593 S.E.2d 576 (2003).
The circuit court's function at the summary judgment
stage is not to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue
for trial. We, therefore, must draw any permissible inference
from the underlying facts in the light most favorable to the
party opposing the motion.
Painter, 192 W.Va. at 192, 451 S.E.2d at 758. Upon
our review, we find no error below.
appeal, petitioner argues that her reassignment from
Laboratory Director to an Analyst IV position constituted an
unlawful, retaliatory demotion, and constructive discharge,
in violation of Article III, Section 7 of the West Virginia
Constitution. Petitioner claims that her free speech rights
were violated because she was demoted for "expressing
her opinions regarding governmental policies and engaging in
lawful political activities."
Article III, Section 7 of the West Virginia Constitution
provides that, [n]o law abridging the freedom of speech, or
of the press, shall be passed; but the Legislature may, by
suitable penalties, restrain the publication or sale of
obscene books, papers, or pictures, and provide for the
punishment of libel, and defamation of character, and for the