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
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
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.
hired petitioner as a police officer in August of 2011. It is
undisputed that petitioner was a classified-exempt,
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.
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!
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.
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
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.
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.
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.
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.
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 ...