CHARLESTON - The W.Va. Supreme Court of Appeals has ruled that Jorea Marple cannot sue L. Wade Linger and the state school board over her 2012 firing.

The court's decision reversed the decision of Kanawha Circuit Judge James C. Stucky from last year in which he ruled that the school board and former president were not immune from the lawsuit.

Justice Menis Ketchum authored the Nov. 10 majority opinion. Chief Justice Margaret Workman disqualified herself from the decision and Judge Christopher C. Wilkes sat by temporary appointment in her place.

The court found that Marple's complaint failed to alleged a cause of action sufficient to overcome the board's and Linger's discretion to terminate her and that qualified immunity bars each of her claims.

"We do not pass judgment on the wisdom, correctness, or fairness of Dr. Marple’s termination," the opinion states. "The West Virginia Constitution, statutory law, and her employment contract all gave the Board and Mr. Linger discretion to terminate her position at their will and pleasure. As a matter of law, Dr. Marple had no constitutionally protected interest in continued employment as superintendent.”

Marple was terminated as superintendent of schools in November 2012. She had severed as superintendent for almost two years under an at-will employment contract, during which time she received an exemplary performance evaluation and a pay raise.

The board also issued a press release describing her as an outstanding visionary and leader who brought national recognition to the state and, as such, she had no reason to feel that her at-will employment might be terminated, according to her suit.

The board voted to terminated Marple's employment in a regularly-scheduled meeting held on Nov. 14 and 15, 2012, and, two weeks later, on Nov. 29, 2012, the board held another meeting to reconsider its decision.

At Linger's recommendation, publicly voted to affirm Marple's termination and issued a statement with negative education statistics, but did not state that the statistics were Marple's fault, not did it deny that the problems pre-dated her employment.

Marple had no opportunity to object to or rebut the board's statement or her termination and she claimed her due-process rights were violated when she was fired.

After she filed her lawsuit, the board and Linger did not file an answer, however, they filed a motion to dismiss asserting that their immunity barred each of Marple's claims.

Stucky ruled that they were not immune and the board and Linger then appealed the circuit court's order denying their motion to dismiss.

In his statement, Linger said that they "were not saying...Marple is any more responsible than governors, legislators, educators or board members for these shortcomings," and that considering everything, he believed they needed a change in direction and, in order to do that, they needed a change in leadership.

Two board members, Priscilla Haden and Jenny Phillips, voted against firing Marple and resigned in protest after the vote.

"Under the procedural facts of this case, we cannot say that the timing of the Board's assertion of qualified immunity waived the defense or subjected Dr. Marple to unfair surprise or prejudice," the opinion states. "Therefore, we reject Dr. Marple's argument that we are precluded from considering the Board's qualified immunity."

The board and Linger were represented by J. Victor Flanagan, Julie Meeks Greco and Katie L. Hicklin of Pullin, Fowler, Flanagan, Brown & Poe PLLC.

Marple was represented by Timothy N. Barber, Thomas Patrick Maroney and A. Andrew MacQueen III.

W.Va. Supreme Court of Appeals case number: 14-1264

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