Monongalia County 11-C-346
Pamela Schade, by counsel Edmund J. Rollo, appeals the
Circuit Court of Monongalia County's November 15, 2015,
order granting respondents' motion for summary judgment
as to her whistle-blower claim and May 3, 2018, order
granting respondents' motion for summary judgment as to
petitioner's remaining claims. Respondents West Virginia
University ("WVU") and West Virginia University
Board of Governors, by counsel Monte L. Williams and Julie A.
Moore, submitted a response.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Pamela Schade worked as an at-will, nonclassified, nontenure
track, faculty equivalent/academic professional serving as a
program coordinator within the National Environmental
Services Center ("NESC"), a program of the National
Research Center for Coal and Energy ("NRCCE"). That
program is administered by WVU's Office of the Vice
President for Research and Economic Development. Petitioner
annually received an appointment and contract. Pursuant to
that appointment, her position was fully funded by grants and
contracts. On July 30, 2010, petitioner was notified by Dr.
Richard Bajura, Director of NRCCE, and Dr. Gerald Iwan,
petitioner's supervisor, that funding to sustain
petitioner's employment beyond October 31, 2010, had not
been identified, so her position was being eliminated
effective as of that date. October 31, 2010, was
petitioner's last day of employment at NESC.
filed a grievance with the West Virginia Public Employees
Grievance Board ("WVPEGB") on October 22, 2010,
alleging that the decision not to renew her contract in 2010
was in retaliation for her prior whistle-blower activities in
2005. She also alleged that she suffered
emotional distress. However, she did not set forth any
alleged violations of the West Virginia Human Rights Act in
that grievance. Her grievance was denied at level one on
February 14, 2011. She appealed to level two, and an
unsuccessful mediation was held on May 13, 2011. She appealed
her grievance to level three, but that grievance was denied
in a December 21, 2011, decision, following an evidentiary
hearing before an administrative law judge ("ALJ").
Petitioner had the right to appeal the ALJ's decision to
the Circuit Court of Kanawha County within thirty days of
receiving that decision, but she did not do so.
31, 2011, petitioner filed suit against respondents, alleging
the violation of the West Virginia Whistle-blower Law,
retaliatory discharge in violation of a substantial public
policy, and intentional infliction of emotional
distress. Following discovery, respondents filed
their motion for summary judgment as to all claims on July
27, 2015. In that motion, they argued that petitioner's
Whistle-blower Law claim was barred by the applicable statute
of limitations; petitioner's claims were barred by the
doctrines of res judicata and collateral estoppel; and
petitioner lacked sufficient evidence to prove her claims for
retaliatory discharge and intentional infliction of emotional
distress. On September 10 and October 14, 2015, the circuit
court held hearings on that motion, and on November 15, 2015,
it entered its order granting respondents' motion for
summary judgment as to the Whistle-blower Law claim. The
court further found that petitioner had sufficiently
demonstrated genuine issues of material fact as to her claims
for retaliatory discharge and intentional infliction of
emotional distress. Therefore, it denied those portions of
respondents' motion for summary judgment. However, it
deferred ruling on respondents' assertion that
petitioner's claims were barred by the doctrine of res
judicata and held respondents' motion in abeyance pending
February 18, 2016, respondents filed a notice of new legal
authority supporting dismissal or entry of summary judgment
in favor of respondents, citing this Court's decision in
Subramani v. West Virginia University Board of
Governors, Case No. 14-0924, 2015 WL 7628720 ( W.Va.
Nov. 20, 2015) (memorandum decision). Respondents then filed
a second such notice, submitting a December 16, 2016, order
from Judge Gaujot in Stewart v. West Virginia University
Board of Governors, Monongalia County Civil Action No.
16-C-132. On May 15, 2017, the circuit court held a status
conference, during which petitioner's counsel requested
additional time to address the new points of law raised by
respondents. The circuit court entered a briefing schedule
for the parties, and set a hearing date of July 6, 2017.
Petitioner failed to submit any additional briefing, but
respondents filed a supplemental brief in support of summary
judgment on July 17, 2017.
that hearing, the circuit court entered its May 3, 2018,
order granting respondents' motion for summary judgment.
In that order, the circuit court found that respondents are
entitled to summary judgment as to petitioner's claims
for retaliatory discharge and intentional infliction of
emotional distress because she failed to exhaust her
administrative remedies as required by West Virginia Code
§ 6C-2-1. Petitioner appeals from both orders granting
summary judgment to respondents.
review a circuit court's summary judgment order de
novo. Syllabus Point 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994)." Chesapeake
Appalachia, L.L.C. v. Hickman, 236 W.Va. 421, 434, 781
S.E.2d 198, 211 (2015). Further,
[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.
Syl. Pt. 4, Painter.
appeal, petitioner sets forth two assignments of error.
First, she contends that the circuit court erred and abused
its discretion in granting respondents summary judgment as to
her whistle-blower claim because it was not time-barred by
the statute of limitations. As set forth in West Virginia
Code § 6C-1-4(a), "[a] person who alleges that he
is a victim of a violation of this article may bring a civil
action in a court of competent jurisdiction for appropriate
injunctive relief or damages, or both, within one hundred
eighty days after the occurrence of the alleged
violation." Petitioner does not challenge the
applicability of this statute; however, she asserts that the
statute of limitations did not begin to run until the last
day of her employment. She points to the fact that she was
previously notified that her contract was set to expire on
specified dates, but those dates were later extended. Based
on those notifications and extensions, she argues that her
employment was not ordinary and, without citing to the
record, contends that even the circuit court recognized that
her contract could be extended on the eve of its expiration.
In addition, without citing any precedent from this Court,
she argues that because she was required to avail herself of
the grievance procedure, the statute of limitations should be
tolled until the grievance is exhausted.
arguments ignore several prior holdings from this Court. In
addressing employment discrimination cases, we have held that
the statute of limitations "'begins to run from the
date a plaintiff first learns of the adverse employment
decision.' Syllabus Point 2, Metz v. E. Associated
Coal, LLC, 239 W.Va. 157, 799 S.E.2d 707 (2017)."
Syl. Pt. 1, in part, State ex rel. Raven Crest
Contracting, LLC v. Thompson, 240 W.Va. 8, 807 S.E.2d
256 (2017). We find petitioner's arguments unpersuasive
as to the date the statute of limitations began to run. While
the earlier notices were titled notices of appointment
extension, those notices advised her that her appointment was
being extended but that further extensions would be based on
the availability of funding. However, the July 30, 2010,
notice of nonrenewal provides that it "constitutes
formal notification to you that your current assignment . . .
will not be extended past October 31, 2010, due to the lack
of funding." That clearly meets the standard of
petitioner learning "of the adverse employment
decision," which triggered the running of the statute of
addition, in Independent Fire Company No. 1 v. West
Virginia Human Rights ...