Wounaris case presented another conflict for Starcher

By Lawrence Smith | Jan 22, 2007


CHARLESTON – Court records show the case of a twice-fired West Virginia State University administrator appeal to the state Supreme Court was at least the third time in as many years in which the membership of one the Justices on a statewide commission presented a potential conflict in him hearing the case.

On Jan. 8, Nick Wounaris Jr. lodged a compliant with the state Bar Association's Office of Disciplinary Counsel against his former attorney Lonnie C. Simmons. Wounaris, 56, WVSU's former assistant vice-president for administrative affairs, alleges that Simmons of the Charleston law office of DiTrapano, Barrett and DePiero, lied to him in 2005 about the terms of settling the wrongful discharge suit he brought against WVSU in 2000 (Kanawha Circuit Court, Case No. 00-C-2627).

According to his compliant, Wounaris proffered to settle his case in October 2004 after the Supreme Court 18 months earlier reversed a jury's finding in WVSU's favor. Participating in the case was Justice Larry V. Starcher, who at the time of the ruling was the Court's Chief Justice, and a member of the Martin Luther King , Jr. Holiday Commission along with WVSU's President Hazo W. Carter, Jr.

Court sides with Wounaris

According to his complaint, Wounaris was fired on Oct. 8, 1998, for "unspecified reasons." Though he alleges WVSU officials attempt to thwart his attempt to file a grievance, he was eventually able to file one, and on May 18, 1999, an administrative law judge ruled in his favor.

However, the next day, WVSU fired Wounaris again. An administrative law judge ruled in WVSU's favor on a second grievance Wounaris filed for retaliation.

After losing his second grievance, Wounaris filed a wrongful termination suit against WVSU. Though a jury ruled in WVSU's favor in 2002, 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."

Albright: Retaliation occurred

Joining in the majority opinion was Justice Joseph Albright. Though the majority's opinion rested on the fact the jury was not informed of Wounaris' second firing before the process of his first grievance had not run its course, Albright believed that the second firing was an attempt to retaliate against him for the first grievance.

"The case before us arose in the first instance by reason of alleged violation of the rights of a member of a protected class under the West Virginia Human Rights Act," Albright said. "As the case came before us it also involved an allegation that the second discharge of Mr. Wounaris constituted an attempt to frustrate the grievance procedure.

"While these allegations rest initially on rights created and prescribed by statute," Albright added, "they also should be seen as testing the vitality of basic tenants of the public policies the respective statutes were designed to promote and protect, i.e. strongly discouraging racial discrimination and protecting public employees from arbitrary and capricious treatment."

In is opinion, Albright noted that at-will employees like Wounaris "would not typically have a legitimate basis for filing a grievance with respect to his or her discharge." However, the Court's finding in the 1978 case of Harless v. First National Bank of Fairmont creates an exception to discharge of at-will employees, both private and public, and applies in Wounaris' case.

" 'The rule that an employee 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 must be liable to the employee for damages occasioned by this discharge,'" Albright said in quoting from the Harless decision.

Starcher raises issue

Dissenting from the Court's finding was Starcher. In his opinion, Starcher made light of allegations that Wounaris was often absent from work.

"The obvious reason (a reason not mentioned the majority opinion) is that several members of the College staff came forward after the first firing, and reported new facts about Mr. Wounaris," Starcher said. "These new facts showed the College – and the jury – that there were good reasons for firing Mr. Wounaris, in addition to the outrageous job demands that led to his first firing.

"These new facts included Mr. Wounaris' frequently leaving his office for hours at a time. During these excursions, Mr. Wounaris would give his assistants phone numbers where he could be reached. The phone numbers turned out to be for 'The Plaza Colonial Room,' J.J.'s Lounge and Billiards,' and the 'Goal Line.'

"In other words, Mr. Wounaris was leaving work during the day and hanging out at bars (His car was also seen parked outside a bar during work hours).

"To summarize: this case was well-tried. The College took on the challenge of showing a jury why they fired a man twice, even after was reinstated. The College was successful before a jury. Mr. Wounaris had a fair chance to present his side of events, and he was not successful."

Conflicts in hearing cases

When the case came before the Court, Starcher was, and continues to be, a member of the state Martin Luther King Jr. Holiday Commission. According to his biography on the Court's Web site, he was appointed that post by then-Gov. Bob Wise.

One of Starcher's fellow board members is WVSU President Hazo W. Carter Jr. He has served as the board's chairman since 1998.

The Court, in laying out the facts of his case, stated that Wounaris, who started work at State on March 1, 1985, as the Director of Fiscal Affairs, became unhappy with his position as assistant vice-president and met with Carter sometime in September 1998 to discuss his issues with Carter. When Carter took no action on his concerns, Wounaris delivered a letter to Carter's office on Oct. 5, 1998, again outlying his issues, and the ways State could address them.

"In that letter, Mr. Wounaris made several demands, including a new job title, a raise of $20,000, and significant changes in his job duties," the Court wrote. "Apparently, Mr. Wounaris believed that many other people received promotions instead of him, and that if had been promoted fairly he would already be making $20,000 a year more."

"Mr. Wounaris said in his letter that, if the College did not do what he asked, he would file complaints with the Human Rights Commission, the Ethics Commission, and that he would also file a lawsuit in the circuit court in which we would ask for $200,000 in compensatory damages and $2 million in punitive damages."

In his letter, the Court said, Wounaris believed the pay disparity made him a victim of "reverse racial discrimination." A copy of the letter Wounaris drafted to Carter was submitted to his supervisor Cassandra Whyte, "in which he said many of the same things in the first letter, and also demanded a written warning to a co-worker whom Mr. Wounaris believed to be acting in an unprofessional and racist manner toward him."

According to the Court's finding, on Oct. 8, Whyte handed a letter to Wounaris stating that he was terminated "effective immediately." The only explanation for his termination is that "the College had 'lost confidence' in [his] ability to perform his duties ..."

Wounaris' case is not the first where Starcher had a possible conflict of interest. Court records show in 2004 and 2005, Starcher did not recuse himself from hearing cases involving the disciplinary cases of two attorneys who either were a Commission board member or had ties to the board.

In Dec. 2004, the Court ruled on a 6-point statement of charges brought by the Lawyer Disciplinary Board, the Bar's prosecutorial arm, against Keith L. Wheaton of Martinsburg (Case No. 31275). In its statement, the Board found that Wheaton committed 31 violations of the Rules of Professional Conduct when he wrote worthless checks to two clients for civil suits they won, and failed to file cases for four other clients after he was paid a retainer.

Despite asking for leniency citing his lack of a prior disciplinary record, inexperience in the practice of law and remorse in harm to his clients as mitigating factors, the Court in a 3-2 decision voted to annul Wheaton's license citing how "aggravating factors outweigh the possible presence of any mitigating factors."

In its ruling the Court categorically rejected Wheaton's claims of mitigating factors citing a pattern of misconduct from 1997 to 2002, "misappropriating funds and unlawfully converting client funds to his own personal use" and "making false statements to disciplinary counsel during investigations of ethical complaints."

Dissenting from the Court's ruling was Starcher and former Justice Warren McGraw. In his dissenting opinion, Starcher said Wheaton was due some leniency since in 1996 when he moved from Charleston where we was working in the criminal investigation division of the state Department of Tax and Revenue, to Martinsburg, to "establish a solo practice there to help meet the under-served needs of that area's large African-American community."

This move, Starcher said in his opinion, was "urged by my friend, the distinguished former Justice of this Court, Franklin Cleckley."

Along with Starcher, Cleckley serves as a Commission board member.

A year later, the Court ruled on an 11-count statement of charges the Board brought against South Charleston attorney Theodore R. "Ted" Dues (Case No. 31713), another Commission board member. In its statement, the Board alleged Dues committed 39 violations of the Rules of Professional Conduct when he failed to properly handle the cases of nine clients who all filed separate legal complaints with the ODC, and reply to the ODC's inquiry.

The board recommended to the Court that Dues make restitution to his clients, and his license to practice law be suspended for 18 months. Though it agreed to the restitution recommendation, the Court in a 4-1 decision voted to restrict Dues to hearing mental hygiene cases for the next 24 months.

Joining in the majority's decision was Starcher. According to his profile on the Court's Web site, when he served as Chief Justice in 1999 and 2003, Starcher "promoted action in several areas of judicial administration, specifically ... mental hygiene commission…"

Records show that Dues in fiscal year 2005-06 was the highest paid mental hygiene commissioner earning $113,103.25.

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