CHARLESTON – A federal judge has scheduled an April 22 jury trial for the wrongful termination lawsuit filed by former state Superintendent Jorea Marple against the Board of Education.

U.S. District Judge Thomas E. Johnston filed a scheduling order on May 2 that also sets up a March 7 settlement meeting and mediation deadline and an April 10 final settlement conference.

Marple has asked Johnston to dismiss her complaint without prejudice so that she can re-file it in state court, and the Board of Education has filed a motion to dismiss the complaint with prejudice.

Marple sued the board in February, alleging an agenda to fire her on the part of Department of Education President Wade Linger. Marple, who became the state’s first female superintendent in January 2011 and is the wife of former Attorney General Darrell McGraw, was fired in November in a vote by the board.

She filed her lawsuit in Kanawha County Circuit Court, but it was removed to federal court by the defendant. At issue are claims made under federal law.

On April 15, in response to the board’s motion to dismiss, Marple’s attorney Timothy N. Barber cited a 1999 decision from the Southern District of West Virginia.

In that decision, the late Judge Charles Harold Haden granted a plaintiff’s motion under Rule 41(a)(2) and dismissed a complaint even though discovery had been completed, Barber wrote.

“By the application of the jurisprudence in that case, Plaintiffs are entitled to a dismissal without prejudice – a new complaint shorn of federal involvement was clearly a prospect in Judge Haden’s opinion.”

Marple’s motion to dismiss noted that the defendant has not filed for summary judgment, and that there has been no discovery yet.

The Board of Education disagrees.

“If this court were to rule in Plaintiff’s favor on her motion to dismiss, it would allow Plaintiff to simply re-file the same unmeritorious claims in state court, which, in turn, would require Defendant to expend additional state resources and funds to file another motion to dismiss,” the response brief filed by the board says.

“Therefore, this court should not feel compelled to rule favorably upon Plaintiff’s motion to voluntarily dismiss while it has the authority to rule on Defendant’s dispositive motion in this matter and fully resolve this case.”

In March 2012, Winger began an agenda of his own to replace Marple in her position as superintendent and he contacted people to replace her, according to the complaint.

Marple claims Linger also contacted various board members to achieve their agreement to his proposed actions.

An agenda for a regularly held meeting was published for the meeting scheduled for Nov. 14, which included a notation that a personnel matter would be addressed in executive session during the meeting, according to the suit.

Marple claims during the executive session, Linger presented his agenda for terminating her from her position and illegally tallied a vote of a majority of the board to sustain the firing.

When the board members returned to the open meeting, Linger announced Marple’s termination would be effective at the end of the day on Nov. 15 and gave no vote details from the executive session, according to the suit.

Board members Gayle Manchin, Robert Dunlevy, William White, Michael Green and Lloyd Jackson voted along with Linger to terminate Marple’s employment.

Members Priscilla Haden and Jenny Phillips voted against firing her and resigned from the board the same day Marple was terminated.

Marple claims she had both a liberty and property interest in her employment by the defendant, which were violated by her summary dismissal from her position as superintendent.

Part of West Virginia public policy is that all contracts, including agreements of employment, include a provision that the parties shall deal with one another in good faith and fairness, free of arbitrary, capricious or despotic action, according to the suit. Marple claims the defendant’s decision to fire her violated the public policy.

The board is being represented by J. Victor Flanagan and Linnsey M. Amores of Pullin, Fowler, Flanagan, Brown & Poe.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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