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Day v. West Virginia Department of Military Affairs

Supreme Court of West Virginia

May 14, 2018

Douglas A. Day, Plaintiff Below, Petitioner
West Virginia Department of Military Affairs and Public Safety, and West Virginia Division of Protective Services, Defendants Below, Respondents

          Kanawha County 14-C-1756


         Petitioner Douglas A. Day, by counsel Mark A. Atkinson, John-Mark Atkinson, and Robert B. Warner, appeals the Circuit Court of Kanawha County's February 24, 2017, order that granted summary judgment in favor of Respondents West Virginia Department of Military Affairs and Public Safety and West Virginia Division of Protective Services on petitioner's wrongful termination claim. Respondents, by counsel Gary E. Pullin and Christopher C. Ross, filed a response in support of the circuit court's order. Petitioner submitted a reply.

         This 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.

         Respondents hired petitioner as a police officer in August of 2011. It is undisputed that petitioner was a classified-exempt, [1] at-will employee. On January 30, 2014, while petitioner was working his normal shift at the West Virginia State Capitol Complex, a public rally was conducted on the Capitol grounds. The rally related to a chemical spill that had recently contaminated the public's water supply.

         The day after the rally, petitioner posted the following comments on his personal Facebook account:

If there was anytime (sic.) I despised wearing a Police uniform, it was yesterday @ the Capitol during the water rally. There was an incident involving a fellow concerned citizen, all of my friends out there know which incident I refer (sic.). I was embarrassed to be in the uniform during that episode. A girl I know who frequents the Capitol for environmental concerns looked @ me and wanted me to participate with her in the event. I told her I have to remain unbiased while on duty @ these events, she responded by saying, "You're a person are'nt (sic.) you?" That comment went straight through my heart!

         According to petitioner, the incident to which his post referred involved a citizen's "forcible removal" from the rally for bringing a jug of the contaminated water collected from his dying father's home. Petitioner explains that the citizen intended to show the jug to the legislators who were present in the building, but that he was escorted out of the Capitol building by Capitol police (but not by petitioner) because the contents of the jug had not first been tested or identified as water.

         On February 6, 2014, petitioner was terminated from his employment by letter delivered by West Virginia Division of Protective Services Deputy Director Kevin Foreman. The letter did not state a reason for petitioner's termination but indicated that, as an at-will employee, petitioner may be terminated without cause. Petitioner's termination was effective immediately.

         Petitioner thereafter filed a Level Three grievance under the West Virginia Public Employees Grievance Procedure. See W.Va. Code § 6C-2-4(a)(4). The grievance was denied.

         On September 25, 2014, petitioner filed a complaint in the Circuit Court of Kanawha County against respondents alleging that his termination

constituted unlawful retaliatory discharge motivated by issues in violation of the substantial public policy of the State of West Virginia as articulated in . . . Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978), in that [petitioner] was retaliated against, discriminated against, and/or terminated in part, for making comments related to an issue of public concern in violation of the Constitution of West Virginia.

         On December 5, 2014, respondents filed a motion to dismiss under West Virginia Rules of Civil Procedure 12(b)(1) and (6) alleging lack of subject matter jurisdiction and res judicata on the ground that petitioner filed a direct action rather than an appeal from the Level Three grievance decision. A hearing on the motion was conducted and, on February 3, 2016, the circuit court denied the motion.

         Discovery ensued and, on October 28, 2016, respondents filed a motion for summary judgment in which respondents again challenged the court's jurisdiction over the subject matter. During a December 12, 2016, hearing, the circuit court denied respondents' motion to dismiss. Instead, by order entered February 24, 2017, the court granted their motion for summary judgment. This appeal followed.

         We begin with a review of the circuit court's February 24, 2017, summary judgment order that concluded, as a matter of law, that petitioner's posted comments were not entitled to free speech protections under the First Amendment and that his at-will employment was properly terminated. We review petitioner's appeal of this order de novo. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). (holding that "[a] circuit court's entry of summary judgment is reviewed de novo."). Under Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment should be granted "where the moving party shows by 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, . . . that there is no genuine issue as to any material fact and that the moving party is ...

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