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Burke v. Wetzel County Commission

Supreme Court of West Virginia

June 6, 2018

ERIC BURKE, Plaintiff Below, Petitioner
v.
WETZEL COUNTY COMMISSION and SCOTT LEMLEY, Individually and as Wetzel County Assessor, Defendants Below, Respondent

          Submitted: May 16, 2018

          Appeal from the Circuit Court of Wetzel County The Honorable David W. Hummel, Jr., Judge Civil Action No. 16-C-91

          Jeffrey A. Holmstrand, Esq. Jeffrey A. Grove, Esq. Grove, Holmstrand & Delk, PLLC Wheeling, West Virginia Counsel for the Petitioner

          Karen T. McElhinny, Esq. Roberta F. Green, Esq. Caleb B. David, Esq. Shuman, McCuskey & Slicer, PLLC Charleston, West Virginia Counsel for the Respondents

         SYLLABUS BY THE COURT

         1. "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770');">194 W.Va. 770, 461 S.E.2d 516 (1995).

         2. "'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)." Syllabus Point 3, Chapman v. Kane Transfer Co., 160 W.Va. 530');">160 W.Va. 530, 236 S.E.2d 207 (1977).

         3. "The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition." Syllabus Point 1, Hutchison v. City of Huntington, 198 W.Va. 139');">198 W.Va. 139, 479 S.E.2d 649 (1996).

         4. "When a county assessor seeks to hire an employee to perform duties other than assessing and appraising duties, the assessor is required to first obtain the advice and consent of the county commission pursuant to W.Va. Code § 7-7-7 (2000) (Repl.Vol. 2006)." Syllabus Point 8, in part, Harrison Cty. Comm'n v. Harrison Cty. Assessor, 222 W.Va. 25');">222 W.Va. 25, 658 S.E.2d 555 (2008).

         5. "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');">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." Syllabus Point 11, W.Va. Reg'l Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492');">234 W.Va. 492, 766 S.E.2d 751 (2014).

         6. "In order to make a prima facie case of employment discrimination under the Human Rights Act, a plaintiff must offer proof of the following: (1) that the plaintiff is a member of a protected class; (2) that the employer made an adverse decision concerning the plaintiff; (3) but for the plaintiff's protected status, the adverse decision would not have been made." Syllabus Point 3, Conaway v. Eastern Assoc. Coal Corp., 178 W.Va. 164');">178 W.Va. 164, 358 S.E.2d 423 (1986).

         7. "Under our Human Rights Act, W.Va. Code, 5-11-1 et seq., a 'person with a disability' within the meaning of the law means a person who has one or more physical or mental impairments that substantially limits one or more major life activities; a person who has one or more physical or mental impairments that does not substantially limit one or more major life activities, but that is treated by others as being such a limitation; a person who has one or more physical or mental impairments that substantially limits major life activities only as a result of the attitudes of others toward such impairment; and a person who has no such impairments, but who is treated by others as having such impairments." Syllabus Point 3, Stone v. St. Joseph's Hospital, 208 W.Va. 91');">208 W.Va. 91, 538 S.E.2d 380 (2000).

         8. "To establish a claim for sexual harassment under the West Virginia Human Rights Act, W.Va. Code § 5-11-1, et seq., based upon a hostile or abusive work environment, a plaintiff-employee must prove that (1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create an abusive work environment; and (4) it was imputable on some factual basis to the employer." Syllabus Point 5, Hanlon v. Chambers, 195 W.Va. 99');">195 W.Va. 99, 464 S.E.2d 741 (1995).

         9. "To establish a claim for ancestral discrimination, under the West Virginia Human Rights Act, West Virginia Code §§ 5-11-1 to -20 (1999) based upon a hostile or abusive work environment, a plaintiff-employee must prove that: (1) that the subject conduct was unwelcome; (2) it was based on the ancestry of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment; and (4) it was imputable on some factual basis to the employer." Syllabus Point 2, Fairmont Specialty Services v. W. Virginia Human Rights Comm'n, 206 W.Va. 86');">206 W.Va. 86, 522 S.E.2d 180 (1999).

         10. "The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge." Syllabus Point 1, Harless v. First Nat'l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).

         11. "To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions." Syllabus Point 2, Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371');">188 W.Va. 371, 424 S.E.2d 606 (1992).

         12. "Inherent in the term 'substantial public policy' is the concept that the policy will provide specific guidance to a reasonable person." Syllabus Point 3, Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371');">188 W.Va. 371, 424 S.E.2d 606 (1992).

         13. "In a retaliatory discharge action, where the plaintiff claims that he or she was discharged for exercising his or her constitutional right(s), the burden is initially upon the plaintiff to show that the exercise of his or her constitutional right(s) was a substantial or a motivating factor for the discharge. The plaintiff need not show that the exercise of the constitutional right(s) was the only precipitating factor for the discharge. The employer may defeat the claim by showing that the employee would have been discharged even in the absence of the protected conduct." Syllabus Point 3, McClung v. Marion Cty. Comm'n, 178 W.Va. 444');">178 W.Va. 444, 360 S.E.2d 221 (1987).

          OPINION

          WALKER JUSTICE

         In 2016, Eric Burke was terminated from his employment as a Field Appraisal Supervisor in the office of the Wetzel County Assessor. He then filed a lawsuit against the Wetzel County Commission and Scott Lemley, the Wetzel County Assessor, claiming wrongful discharge in violation of public policy and violation of the West Virginia Human Rights Act, Family Medical Leave Act and West Virginia Whistle-blower Law, among other things. Finding that Mr. Lemley was entitled to qualified immunity and that all of Mr. Burke's claims lacked merit based entirely on the amended complaint, the circuit court dismissed the case pursuant to Rule 12(b)(6). Construing the amended complaint in the light most favorable to Mr. Burke, we reverse and remand to the circuit court to allow for discovery and further proceedings.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Burke began his employment in the Wetzel County Assessor's office in February 2013 and subsequently took the position of Field Appraisal Supervisor in January 2014.[1] Mr. Burke alleges that during the course of his employment he suffered from a back condition of which Mr. Lemley was aware, and that at times it was disabling because it substantially limited his daily life activities, and required various types of treatment, including rest and pain medication. In March of 2015, Mr. Burke applied for leave from work under the Family Medical Leave Act (FMLA)[2] for back surgery in April of 2015. Mr. Burke asserts that on March 31, 2015, Mr. Lemley raised an issue with the medication Mr. Burke was taking and stated that he needed a release from a physician to return to work either before or after his FMLA leave. The amended complaint states that Mr. Burke "attempted to return to work prior to taking his FMLA as he was off work sick due to bronchitis and was required to provide a full medical release to Mr. Lemley to allow unfettered access to his medical records to which [he] objected." Mr. Burke further alleges that "Mr. Lemley confiscated [Mr. Burke's] keys to [the] courthouse, electronic key fob, and his state ID and demanded that [Mr. Burke] leave the premises."

         Mr. Burke alleges that on August 12, 2015, following his surgery and leave, he provided Mr. Lemley with a medical authorization clearing him to return to full unrestricted work duties, but Mr. Lemley refused to accept the medical authorization and instead demanded a release from another physician and a list of all of his medications. Mr. Burke further alleges that Mr. Lemley (1) demanded that Mr. Burke undergo drug testing, although he admitted he had no reason to believe that Mr. Burke was using illegal drugs; (2) had co-employees hand deliver correspondence to Mr. Burke's home concerning the assessor's compliance with the Federal Drug Free Workplace Act; (3) failed to return Mr. Burke to his pre-leave duties; (4) made various demeaning comments regarding Mr. Burke in the presence of other employees; (5) restricted Mr. Burke's use of a county vehicle though Mr. Burke was under no medical driving restriction; and (6) imposed an unfounded suspension on September 11, 2015 for failing to sign a discipline statement, for which Mr. Burke was not compensated.

         Mr. Burke asserts that he reported the alleged harassment to the Commission "per policy of the Assessor's Office" in September of 2015, and that he filed to run against Mr. Lemley for county assessor in November of 2015. Mr. Burke alleges that he was subjected to increased harassment and discrimination by Mr. Lemley following his filing. Mr. Lemley was re-elected in May of 2016. Mr. Lemley informed Mr. Burke on July 11, 2016, that his employment was terminated for a poor performance evaluation conducted a month prior.[3]

         On September 29, 2016, Mr. Burke filed a complaint against the Commission and Mr. Lemley, in his capacity as county assessor, asserting that, following Mr. Burke's extended medical leave and decision to challenge Mr. Lemley for the office of county assessor, Respondents: (1) created a hostile work environment and discharged him in a retaliatory fashion; (2) violated his state and federal constitutional rights to run for public office; (3) unlawfully discharged him in violation of the FMLA and West Virginia Human Rights Act (Human Rights Act)[4]; and (4) violated the West Virginia Whistle-blower Law.[5]On October 31, 2016, Mr. Lemley and the Commission filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Respondents argued that that the Commission was not Mr. Burke's employer; that the facts set forth in Mr. Burke's complaint showed that Mr. Lemley made reasonable accommodation for Mr. Burke's medical needs; and that with respect to Mr. Burke's constitutional claims, neither Mr. Lemley nor the Commission were state actors. Mr. Lemley also asserted that he is entitled to qualified immunity. On November 28, 2016, Mr. Burke filed an amended complaint that added an additional claim against Mr. Lemley in his individual capacity.

         Following a hearing, the circuit court granted the motion to dismiss by order entered on May 1, 2017. Although there had been no discovery in the case, it found that (1) according to West Virginia Code § 29-12A-3(3), the "State" does not include political subdivisions and its employees are thus not afforded due process of law, and Respondents thus were incapable of violating Mr. Burke's constitutional right to run for office; (2) the Commission could not be liable under the theory of respondeat superior because it has no control over Mr. Lemley, who answers to his electorate constituency, and who is granted the power by West Virginia Code § 7-7-7(b) to discharge his assistants; (3) Mr. Burke set forth no facts in his complaint stating a claim for violation of the Human Rights Act because he acknowledged that his employer granted him the accommodation he requested; and (4) Mr. Burke did not assert that he made a report of public interest, but only that he reported his own personal harassment, and he is thus not a whistleblower. The circuit court also concluded that Mr. Lemley is entitled to qualified immunity because he acted in his official capacity and did not violate any clearly established law of which a reasonable official would have known.

         It is from that order that Mr. Burke now appeals.

         II. STANDARD OF REVIEW

         This Court has long held that our "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo."[6] "The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint. A trial court considering a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do substantial justice."[7] "Since the preference is to decide cases on their merits, courts presented with a motion to dismiss for failure to state a claim construe the complaint in the light most favorable to the plaintiff, taking all allegations as true."[8] Therefore, "[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."[9]

         Furthermore, with respect to the issue of qualified immunity presented in this case,

[t]he ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.[10]

         With these standards in mind, we review the circuit court's decision to dismiss Mr. Burke's amended complaint.

         III. DISCUSSION

         A. Joint Employment Relationship

         Mr. Burke first argues that he alleged sufficient facts to demonstrate that Mr. Lemley and the Commission were his joint employers and that these allegations were sufficient to overcome dismissal of the Commission as a party. He argues that two West Virginia statutes-West Virginia Code § 7-7-7(a)[11] and § 11-1C-8(a)[12]-potentially apply to individuals employed in county assessor offices and that this Court has determined that county employees hired under the former are joint employees of the elected official and the county commission.[13] Mr. Burke contends that he was hired pursuant to West Virginia Code § 7-7-7(a) and at a minimum, the question of which statute Mr. Burke was hired under is a factual question that could not be resolved at the pleading stage.[14] H e also alleges that the Commission was listed as the "employer" on his federal W-2 form, and that Respondents do not deny this allegation.

         This Court has previously held that employees hired pursuant to West Virginia Code § 7-7-7(a) are joint employees of the county commission and elected county officials.[15] Applying this statute in Fury v. County Court of Wood County, [16] the United States District Court for the Southern District of West Virginia expressed that:

The resolution of Defendants' motions to dismiss turns upon the issue of whether the County Commission is the Plaintiff's employer or whether Plaintiffs are employed by the elected county officials in whose offices they work. The statute controlling this issue, W.Va. Code, § 7-7-7, makes it clear that as a general proposition the County Commission and individual elected county officials are joint employers of those employees in the various county offices.[17]

         In the context of determining whether a county commission was a joint employer of individuals appointed or employed by a sheriff, we have observed, ". . . it is the Commission who retains the ultimate responsibility for the compensation of these persons and the assurance of the orderly operation of the county government[.]"[18] In State ex rel. Morrisey v. W.Va. Office of Disciplinary Counsel, we recently cited Fury and held that an assistant prosecutor appointed under West Virginia Code § 7-7-7 is considered an employee of the prosecutor and the county, and is paid by the county.[19] In sum, we held that "in the absence of a statute indicating otherwise, a prosecutor's appointment of assistants under [West Virginia] Code § 7-7-8 (1987) (Repl. Vol. 2010) and [West Virginia] Code § 7-7-7 (2011) (Supp.2014) is generally limited to that of appointing attorneys as employees of the prosecutor and county commission."[20]

         Although in this case, the circuit court's order does not clearly identify the statute it relied on, to the extent that the circuit court, in relying upon our prior holding in Harrison County Commission, assumed that Mr. Burke was employed under West Virginia Code § 11-1C-8(a) instead of West Virginia Code § 7-7-7, such a ruling was premature. Mr. Burke not only alleges that he was hired under West Virginia Code § 7-7-7, but also alleges that the Commission is identified as his employer on his W-2. Thus, a factual dispute exists that should have been permitted to be the subject of discovery by the parties.

         And, to the extent that the circuit court determined that "no evidence was adduced that the . . . Commission had policies or customs that led to his termination or that the . . . Commission terminated his employment, " such a finding is likewise premature. Mr. Burke's amended complaint alleged that to the extent that the Commission permitted and/or authorized Lemley to take adverse employment action against their joint employee such action constitutes the official policy, custom, and practice of the Commission and that "the Commission's policy, custom, and/or practice is . . . reflected in its prior knowledge and permitting similar terminations of Commission employees to occur by Lemley and other County offices."[21] Rule 12(b)(6) does not call for "evidence" but rather requires a court to construe allegations in the light most favorable to the plaintiff.

         B. Qualified Immunity

         In its dismissal order, the circuit court found that Mr. Lemley is a "public executive official who [was] acting within the scope of his authority and . . . is entitled to qualified immunity from personal liability for official acts if the involved conduct did not violate clearly established laws of which a reasonable official would have known." With respect to the issue of qualified immunity, we have stated,

We agree with the United States Supreme Court to the extent it has encouraged, if not mandated, that claims of immunities, where ripe for disposition, should be summarily decided before trial. Public officials and local government units should be entitled to qualified immunity from suit under § 1983, or statutory immunity under W.Va. Code, 29-12A-5(a), unless it is shown by specific allegations that the immunity does not apply. See State v. Chase Securities, Inc., 188 W.Va. 356');">188 W.Va. 356, 424 S.E.2d 591 (1992).[22]

         But, as to qualified immunity for discretionary functions, such as employee hiring and retention, we have held:

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');">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.[23]

         Mr. Burke argues that the circuit court erred in determining that Mr. Lemley was entitled to qualified immunity by improperly making legal and factual determinations that Mr. Lemley did not violate any clearly established laws of which a reasonable official would have known. Mr. Burke argues that his claims arise from the employment relationship, that the Tort Claims Act does not apply, and that his amended complaint set forth clearly established laws that Mr. Lemley is deemed to know about, and that Mr. Lemley violated. [24] We agree.

         Even a cursory analysis of the amended complaint reveals that Mr. Burke's claims are not barred by qualified immunity. The circuit court, without the benefit of any discovery or other factual development, improperly determined that Mr. Lemley did not violate any law of which a reasonable official would have known by ignoring the numerous allegations that Mr. Burke's termination was motivated by the unlawful conduct set forth in the amended complaint. The issue of motive for a discharge presents a question of fact.[25]

         In Brown v. City of Montgomery, [26] this Court discussed the impropriety of granting a 12(b)(6) motion to a public official who was defending a claim of wrongful discharge, and specifically reversed that circuit court's application of qualified immunity to the mayor in that case finding that "[t]here is no immunity for an executive official whose acts are fraudulent, malicious, or otherwise oppressive."[27] In Brown, a police chief filed a lawsuit against the City of Montgomery and its Mayor alleging that he had been wrongfully discharged after refusing to retaliate against a fellow officer who filed a race discrimination claim.[28]

         Similarly, in this case, Mr. Burke's amended complaint expressly includes claims based upon state and federal statutes, common law, and the public policy of this state, which a public official employer is deemed to know. Furthermore, Mr. Burke's amended complaint specifically alleges that Mr. Lemley's actions "were conducted in bad faith, fraudulent, malicious, reckless, intentional, wanton, willful and otherwise oppressive and did further violate the clearly established laws of which a reasonable official would have known." He also alleges facts that, if proven true, could lend themselves to a finding of such conduct. Thus, we find little difficulty in concluding that these allegations preclude application of qualified immunity in the context of a motion under Rule 12(b)(6).

         C. Claims Asserted in the Amended Complaint

         When considering a motion to dismiss, a trial court must take as true all factual allegations contained in the pleading. Under Rule 12(b)(6), we consistently have held that a trial court's role is limited:

All that the pleader is required to do is set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist. The trial court should not dismiss a complaint merely because it doubts the plaintiff will prevail in the action, and whether the plaintiff can prevail is a matter properly determined on the basis of proof and not merely on the pleadings.[29]:

         "The policy of the rule is thus to decide cases upon their merits, and if the complaint states a claim upon which relief can be granted under any legal theory, a motion under Rule 12(b)(6) must be denied."[30] However, essential material facts must appear on the face of the complaint.[31] The complaint must set forth enough information to outline the elements of a claim or permit inferences to be drawn that these elements exist.[32]

         As an initial matter, we note the inartful, "kitchen sink" manner of pleading demonstrated by Mr. Burke's amended complaint. And, the confounding and overreaching dismissal order, which was prepared by Respondents' counsel, fails to accurately identify and respond to each of the claims asserted. Due to the confusing manner in which the claims in the amended complaint are asserted and organized, in addressing Mr. Burke's assignments of error, we will discuss each claim separately.[33]

         1. West Virginia Human Rights Act Claims

         Mr. Burke's amended complaint appears to allege both a claim for unlawful discharge under the Human Rights Act (in Count III) and a claim for hostile work environment under the Human Rights Act (in Count I). To the extent that both of these claims involve separate violations of the Human Rights Act, we will discuss each.

         a) Unlawful Discharge Under the Human Rights Act

         Our law clearly makes it unlawful to discriminate or retaliate against individuals having a disability, or who are regarded by their employer as having a disability, in regard to the terms, conditions, or privileges of employment. The Human Rights Act declares it unlawful for an employer to "discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment[.]"[34]"Discrimination" means to "exclude from, or fail or refuse to extend to, a person equal opportunities because of race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status[.]"[35]

         We have held that:

[i]n order to make a prima facie case of employment discrimination under the Human Rights Act, W.Va. Code § 5-11-1 et seq. (1979) a plaintiff must offer proof of the following: (1) that the plaintiff is a member of a protected class; (2) that the employer made an adverse decision concerning the plaintiff; (3) but for the plaintiff's protected status, the adverse decision would not have been made.[36]

         After a prima facie case has been made, "the burden then shifts to the respondent to offer some legitimate and nondiscriminatory reason for the [adverse employment action]."[37] If the presumption is rebutted, "then the complainant has the opportunity to prove by a preponderance of the evidence that the reasons offered by the ...


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