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Cabell County Commission v. Whitt

Supreme Court of Appeals of West Virginia

November 19, 2019

CABELL COUNTY COMMISSION and BETH THOMPSON, Defendants Below, Petitioners
v.
JOSEPH WHITT, Plaintiff Below, Respondent

          Submitted: October 1, 2019

          Appeal from the Circuit Court of Cabell County The Honorable Gregory L. Howard, Jr., Judge Civil Action No. 16-C-741

          Wendy E. Greve, Esq. Drannon L. Adkins, Esq. Pullin, Fowler, Flanagan, Brown & Poe, PLLC Charleston, West Virginia Counsel for Petitioners

          Kurt E. Entsminger, Esq. Estep Entsminger Law Group PLLC Raymond L. Harrell, Jr., Esq. Flaherty Sensabaugh Bonasso PLLC Charleston, West Virginia Counsel for Respondent

         SYLLABUS

         1. "This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Syl. Pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

         2. "'A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the "collateral order" doctrine.' Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009)." Syl. Pt. 2, W.Va. Dep't of Health and Human Res. v. Payne, 231 W.Va. 563, 746 S.E.2d 556 (2013).

         3. "West Virginia Code § 29-12A-5(b) provides that employees of political subdivisions are immune from personal tort liability unless '(1) [h]is or her acts or omissions were manifestly outside the scope of employment or official responsibilities; (2) [h]is or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or (3) [l]iability is expressly imposed on the employee by a provision of this code.'" Syl. Pt. 1, Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317 (1993).

         4. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

          WORKMAN, JUSTICE.

         On September 19, 2016, respondent, Joseph Whitt, was terminated from his employment as IT Director for Cabell County. The decision to terminate was made by respondent's employer, petitioner Cabell County Commission, and then carried out by petitioner Beth Thompson, Cabell County Administrator, who was accompanied by a Cabell County deputy sheriff when she went to respondent's office to inform him of his termination. The deputy then escorted respondent out of the courthouse and to the parking lot.

         Thereafter, on or about November 23, 2016, respondent filed suit against both petitioners, alleging, inter alia, wrongful discharge under West Virginia's Whistle-Blower Law, W.Va. Code § 6C-1-1 to -8 (2019) and intentional infliction of emotional distress resulting from the manner of his discharge; subsequently, respondent amended his complaint to add a claim for false imprisonment arising from the manner of his discharge. This is an appeal from the circuit court's order of April 18, 2018, denying petitioner Thompson's motion for summary judgment on grounds of immunity and both petitioners' motions for summary judgment on the merits of the substantive claims in the respondent's complaint. For the reasons set forth in this Opinion, infra, only two of the issues raised on appeal will be discussed herein.

         After careful review of the appendix record, the parties' briefs and oral arguments, and the applicable law, we reverse the circuit court's order insofar as it denied summary judgment to petitioner Thompson on the intentional infliction of emotional distress and false imprisonment claims, as we find that Ms. Thompson is immune from liability on those claims. We decline to consider the remaining issue raised by the petitioners-the court's denial of summary judgment on the whistleblower claim-as the issue does not fall within the collateral order doctrine and is not properly before this Court on a petition for extraordinary relief.

         I. FACTS AND PROCEDURAL HISTORY

         Prior to his dismissal on September 19, 2016, respondent Joseph Whitt had been employed for twelve years by the Cabell County Commission ("the Commission"), first as an IT specialist and then, following his promotion in July, 2015, as the Commission's IT Director. At the same time respondent was promoted, petitioner Beth Thompson ("Ms. Thompson") was hired as Cabell County Administrator and became respondent's immediate supervisor. The record indicates that during the fourteen months in which Ms. Thompson supervised respondent, there were no job problems or concerns raised about respondent's work.

         On July 6, 2015, just days after respondent's appointment as IT Director, he sent Ms. Thompson an email which began, "Okay, so you wanted and [sic] explanation of what is backed up and what is not" on the county's computer systems. Respondent's lengthy report informed Ms. Thompson, in relevant part, that backup capability on the systems ranged from nonexistent to "about 70 percent reliable. If the tape and recording heads on backup device is in good shape, about 90 percent. Problem is that tape could break at any time, including while it is being used for recovery." Subsequently, respondent presented Ms. Thompson with a proposal from Alpha Technologies that, in his words, "was aimed to remediate these serious backup deficiencies." It appears that Ms. Thompson presented the proposal to, or at least discussed it with, the Commission, which rejected it citing budgetary constraints.

         Fourteen months later, on August 31, 2016, the AP1 server, which housed all of the Cabell County Clerk's financial data, crashed. The cause of the crash has never been ascertained. As a result of what the parties agree was this "catastrophic failure," nine months of electronic financial data including budget, payroll, and accounts payable, was lost, because the county's existing backup system was not working at the time of the crash. In this latter regard, no one knows how long the backup system was inoperable because it is undisputed that during his tenure as IT Director, respondent had never verified that data was actually being backed up.

         Initially, there was some attempt by the Commission to place blame on the Cabell County Clerk, who was suing the Commission at that time (on unrelated grounds).[1] At the same time, respondent stated to Ms. Thompson, and thereafter to each member of the Commission, that the loss of data was directly attributable to the Commission's failure to procure the additional backup capabilities that respondent had recommended. Finally, on September 16, 2016, Ms. Thompson convened a meeting of various elected county officials to address the issues arising from the systems crash; during the meeting, in response to officials' questions about why the crash had occurred, respondent again stated that "the reason the loss had occurred was because the Cabell County Commission had not procured additional data backup capabilities as he had recommended."[2]

         After the meeting, Ms. Thompson telephoned each member of the Commission to advise them of what respondent had said. Two days later, in the evening of September 18, 2016 (a Sunday), or early in the morning of September 19, 2016 (a Monday), a decision was made to terminate respondent's employment. Ms. Thompson testified in her deposition that this decision was made by each Commissioner individually, by phone, and without deliberation among themselves or the convening of a formal meeting. At the beginning of the work day on September 19, 2016, Ms. Thompson first asked respondent for certain information such as passwords; it is undisputed that respondent was compliant with all requests. Later that day, she consulted with the Commission's attorney regarding the manner in which the termination should be carried out and was advised to have a deputy accompany her to respondent's office and thereafter escort him from the building.[3] Thereafter, at approximately 4:00 p.m., Ms. Thompson and Deputy Robert McQuaid, who was on duty in the courthouse that day, went to respondent's office, at which time Ms. Thompson handed respondent a termination letter.[4] She then left, although the deputy stayed and, after respondent had gathered his personal belongings, accompanied respondent from his third floor office down to the first floor and out of the building to where his car was parked. It is undisputed that the deputy never touched respondent, although there is some dispute as to whether the two exchanged any words. It is also undisputed that the deputy was in uniform and armed.

         As previously noted, on or about November 23, 2016, respondent filed suit against both petitioners, alleging, inter alia, wrongful discharge under West Virginia's Whistle-Blower Law, W.Va. Code § 6C-1-1 to -8, and intentional infliction of emotional distress resulting from the manner of his discharge; subsequently, respondent amended his complaint to add a claim for false imprisonment arising from the manner of his discharge. Following extensive discovery, petitioners moved for summary judgment, not only on grounds of immunity but also on the merits of the individual causes of action.

         On November 30, 2017, the circuit court entered its "Order Denying Defendants' Motion for Summary Judgment," ruling that the evidence was sufficient to support the plaintiff/respondent's claims of whistleblower violation, intentional infliction of emotional distress, and false imprisonment, and further finding that defendant/petitioner Thompson was neither immune from liability under the Governmental Tort Claims and Insurance Reform Act, W.Va. Code § 29-12A-1 to -18 (2018), nor entitled to qualified immunity. Thereafter, on April 6, 2018, the court entered its "Order Denying Plaintiff's Motion to Strike and Granting in Part and Denying in Part Defendants' Renewed and Supplemental Motion for Summary Judgment."[5] In this second order, the court concluded that the Commission was statutorily immune from respondent's claims of intentional infliction of emotional distress and false imprisonment, and this ruling has not been made the subject of a cross assignment of error by respondent in this appeal. The court declined to disturb its previous ruling that Ms. Thompson was not entitled to either statutory or qualified immunity on the intentional infliction of emotional distress and false arrest claims, finding that "[t]here is a material question of fact as to whether Thompson acted with malicious purpose, in bad faith, or in a wanton or reckless manner when terminating Plaintiff's employment, precluding ...


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