Fired W.Va. State administrator files complaint against attorney

By Lawrence Smith | Jan 18, 2007

CHARLESTON – A former West Virginia State University administrator is asking the state Bar Association investigate allegations his attorney acted in bad faith in handling the settlement of his wrongful termination suit.

On Jan. 8, Nick Wounaris Jr., 56, lodged a complaint with the Office of Disciplinary Counsel against Lonnie C. Simmons and Franklin S. Fragale. Though both are named in the compliant, Wounaris specifically alleges that Simmons lied to him in 2005 when after the parties informally agreed to a settlement which would have enabled him to qualify for retirement and health coverage, Wounaris only received a small cash settlement.

"Mr. Simmons went on to tell me that he was making this offer as a one-time, take it or leave it deal, and that I would have to find another lawyer and start all over, if I did not accept it," Wounaris said in his complaint. "I thought about it for several days, but I finally accepted the offer, because I could not stand the thought of starting the process all over again with a new lawyer."

Five-year legal battle

According to his complaint, Wounaris' legal ordeal began on Oct. 8, 1998 when he was "terminated without justification" from WVSU. At the time, he was working as the institution's assistant vice-president for administrative affairs.

"After being denied due process by the lawyers representing the Board of Directors and WVSC (they denied my right to file a grievance), I was granted a grievance hearing in April of 1999, which I won," Wounaris said in his complaint. At the time of his grievance, West Virginia State was still a college and, along with all other state colleges, governed by the State College System's board of directors.

A month later, Wounaris says in his compliant, he was reinstated to his job. However, the next day on May 20, 1999, he was fired for a second time.

Upon the recommendation of Michael Kelley, who initially agreed to handle the case but later withdrew after being appointed as a Family Law Master in October 1999, Wounaris says he hired Simmons from the Charleston law office of DiTrapano, Barrett and DiPiero.

Court records show while WVSU was appealing Wounaris' first grievance to Kanawha Circuit Court, Wounaris' lost his second grievance for retaliation, whereupon he filed a civil suit for wrongful termination (Case No. 00-C-2627).

Though a jury ruled in WVSU's favor, Wounaris was successful in appealing his case to the state Supreme Court (Case No. 30845). On May 7, 2003, the Court in a 3-2 decision ruled that Judge James C. Stucky erred in not informing the jury of both the circuit and Supreme Court's upholding the administrative law judge's May 18, 1999 decision that WVSU improperly fired Wounaris the first time.

"Because we have determined that, under the facts of this case, the firing of Mr. Wounaris before the completion of the grievance process as simply not permissible, we conclude that the jury in this case was not properly instructed," the Court said in its ruling delivered per curium. "Although offered an opportunity to infer an improper motive on the part of the College, we believe that the jury instead should have been told to presume such an improper motive in the absence of some significant and novel reason for the termination.

"We recognize that the court could not possibly have anticipated the specifics of our ruling in this case. Nonetheless, we find it necessary to reverse."

Unanticipated settlement

As the Oct. 25, 2004 date for the re-trial in his suit approached, Wounaris says he proffered a settlement. According to his compliant, Wounaris said the terms of his settlement "included back pay of $1,000 per month for the entire time since my firing, payment of my attorney fees, and repayment of the retirement contributions I had withdrawn from the Consolidated Public Employees Retirement Board."

"These actions would enable me to retire with 30 years of service on 6-30-05 and receive 10 years of paid-up health insurance."

The terms of the settlement, Wounaris says in his complaint, is something to which WVSU's attorney Charles R. Bailey from the Charleston law office of Bailey and Wyant "agreed to in principle."

However, Wounaris says he began to sense something was amiss when "[i]t then took from 10-05-04 to 4-25-05 before Mr. Bailey and the College officially accepted by offer. Wounaris alleges "I talked with Mr. Simmons each week during this process, and he kept making excuses as to why he was dragging his feet in my case."

After Bailey agreed to the settlement, Wounaris says he met with Simmons on May 25, 2005, to sign-off on it. However, it was there Wounaris alleges in his complaint that Simmons presented him with the ultimatum of settling the case for $2,000 or finding another attorney.

"It was then that Lonnie Simmons told me that the College had never agreed to pay me the $1,000 per month back pay, and that I would only be paid for one or two months," Wounaris said. "This was not only a lie as evidenced by the documents I am providing, it meant that I would not receive credit for the 6 years of service I needed to be eligible for retirement, and I would lose hundreds of days of sick and annual leave that would have been paid for my health insurance for over 10 years."

Because he opted to take the settlement, Wounaris says he could only get health insurance through COBRA for 18 months which "is about to expire."

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