WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has found no violation of rights in the dismissal of a state Department of Agriculture employee for his alleged inappropriate behavior.

The unanimous memorandum decision was filed by the court on April 26.

Robert Adams was an at-will employee of the West Virginia Department of Agriculture when the DOA investigated a report of his inappropriate behavior in February 2010. Adams was employed as a pesticide officer in the Morgantown office.

According to the opinion, the investigation found that Adams: Made reference to a pilot being distracted while joining the “mile high club” resulting in a deadly helicopter crash; played rock songs on his office radio that included a woman in apparent sexual climax; opened the door to the occupied women’s restroom while looking for a male employee; and made reference to a “hot-buttered orgy” in a conversation with co-workers.

The investigation included a search of Adam’s computer activity where it was discovered that “the petitioner routinely visited websites and accessed material in violation of DOA’s internet use policies,” the opinion states.

Additionally, DOA employees discovered other materials deemed unacceptable in his office, including: An inventory of weapons he owned; material containing “strong language, adult situations, violence, and sexual material"; images of women in various states of nudity; sexualized “anime” images; and written jokes involving sexual matters.

Adams was placed on paid administrative leave during the investigation and the DOA terminated him by letter dated March 12, 2010, after the investigation was completed.

Following his discharge, Adams filed a civil action in the Circuit Court of Kanawha County alleging deprivation of a property interest in his continued employment, wrongful termination, harassment and age discrimination.

The circuit court granted the DOA’s motion for summary judgment and rejected Adams' motion for summary judgment, finding:

“There is no genuine dispute: 1) that Plaintiff cannot identify any basis for asserting a property interest in continued employment with the WVDOA; 2) Plaintiff’s claim for “wrongful termination” is not legally supportable under West Virginia law; 3) Plaintiff has not identified any harassment which can be linked to his sex, age, or other protected characteristic; and 4) Plaintiff has not demonstrated a prima facie case for age discrimination or any evidence sufficient to overcome the WVDOA’s legitimate, nondiscriminatory basis for his discharge.”

Adams appealed to the state Supreme Court, arguing that there were genuine issues of material fact which entitled him to a trial on the merits.

“The petitioner asserts the circuit court erred by granting summary judgment in favor of the respondents on the issue of his liberty interest. We find that the circuit court properly rejected this argument because the petitioner failed to pursue this claim in his pleadings,” the opinion says.

“A liberty interest cause of action was not raised in the complaint. Furthermore, the petitioner did not attempt to amend and supplement his pleadings pursuant to Rule 15(a) of the West Virginia Rules of Civil Procedure. The issue was not raised until the petitioner moved for summary judgment. Petitioner offered no explanation for his failure to request leave to amend the complaint.

“In Count I of his complaint, the petitioner alleged he had a ‘property interest in his continued employment’ with the DOA. A fair reading of that document limits the cause of action to that theory. Petitioner was undisputedly an at-will employee. Therefore, the circuit court correctly found that the petitioner could not identify any basis for a property interest in continued employment.

“As discussed above, the circuit court addressed all of the issues raised in the pleadings and disposed of this claim on several grounds. However, the petition for appeal addressed only the liberty interest issue.

“Insofar as the petitioner failed to raise or argue any issue in his brief pertaining to summary judgment on his other wrongful termination claims, we deem the matters to be waived... For the foregoing reasons, we affirm the circuit court’s order granting summary judgment in favor of the respondents.”