The appeal was from Kanawha Circuit Court’s May 16, 2014, and June 13, 2014, orders granting summary judgment in favor of the WVHDDR, Rocco Fucillo and Warren Keefer on each of Jennifer N. Taylor and Susan S. Perry’s claims surround their discharge from employment.
“The circuit court ostensibly found, in sum, that petitioners failed to create a genuine issue of material fact surrounding their claims and respondents were likewise entitled to qualified immunity on all such claims,” the April 14 opinion states.
Justice Margaret Workman authored the majority opinion. Justice Robin Jean Davis deemed herself disqualified and did not participate in the case. Chief Justice Ketchum concurred and authored a concurring opinion. Justice Brent Benjamin concurred in part and dissented in part and authored his own opinion.
“Based upon our review … we affirm the circuit court’s grant of summary judgment as to petitioners’ retaliatory discharge, gender discrimination claims pursuant to the Human Rights Act and false light invasion of privacy claims,” the opinion states. “However, the court finds that the circuit court erred in granting summary judgment on petitioners’ whistleblower claims and we therefore reverse and remand to the circuit court for further proceedings as to those claims.”
Perry and Taylor are the former Deputy Secretary for Legal Services and General Counsel of DHHR and their case centers around their involvement with a request for proposal soliciting bids for a contract to provide advertising services to DHHR.
Perry and Taylor claimed that they were discharged from their employment for discovering and alerting others to what they purportedly believed to be errors or irregularities with the procurement process.
During the pendency of their administrative reassignment, but before they were terminated, Perry and Taylor filed the instant action against DHHR, Fucillo and Keefer and subsequently amended their complaints upon termination.
After extensive discovery, the respondents filed various dispositive motions and on April 15, 2014, the circuit court entered an order granting summary judgment as to Taylor’s discharge claims against Keefer, finding that Keefer did not discharge her or participate in her discharge.
On May 16, 2014, the circuit court entered an order granting summary judgment as to Perry’s discharge claims against all defendants, finding that Perry was not discharged from DHHR and was instead discharged by the Governor’s Office.
“Despite having awarded summary judgment to respondents on ostensibly the entirety of both petitioners’ discharge claims…leaving only the gender discrimination and invasion of privacy claims, the circuit court entertained a ‘combined’ motion for summary judgment on all claims pled by both petitioners and awarded summary judgment to respondents as reflected in its June 13, 2014, omnibus order dismissing the entirety of petitioners’ claims against respondents,” the opinions states.
Taylor and Perry then filed their appeal.
The Supreme Court ruled that the circuit court erred in granting summary judgment in favor of the respondents on the petitioners’ whistleblower claims and remands the claims back to Kanawha Circuit Court for further proceedings.
In his concurring opinion, Ketchum stated that he agreed with the majority that the plaintiffs failed to identify how their discharges contravened the Ethics Act.
“They have no retaliatory discharge claim based on the Ethics Act,” he said. “However, it is clear that the plaintiffs can, in fact, assert a valid retaliatory discharge claim under our Procurement Statute and should be permitted to amend their pleadings to conform to the evidence in this case.”
Ketchum said it is plain from the evidence that there is a substantial public policy relating to the plaintiffs’ discharges under the statutory procurement procedures contained in West Virginia Code.
“The entirety of plaintiffs’ case centers around their contention that they were discharged for investigating and revealing what they believed to be irregularities or errors with the administration and execution of the RFP process, as governed by statute,” he said. “If a jury believes they were discharged for this reason, they have proven a retaliatory discharge.”
Ketchum said the plaintiffs should be permitted to present the case to a jury under both the whistleblower statute and the common law on retaliatory discharge.
In his own opinion, Benjamin said while he concurred with the majority as it affirmed the circuit court’s grant of summary judgment to the respondents on the gender discrimination, retaliatory discharge and false light invasion of privacy claims.
“However, I dissent to the majority opinion insofar as it reverses the circuit court’s grant of summary judgment to the respondents on the petitioners’ whistleblower claims,” Benjamin said.
Benjamin said the petitioners completely failed to offer evidence to support their whistleblower claims.
“I believe that the circuit court correctly concluded that the petitioners cannot prevail on their whistleblower claims because they cannot establish that they made a ‘good faith report’ of an ‘instance of wrongdoing or waste,’ as those terms are defined in the Whistleblower Law,” he said.
The petitioners have wholly failed to offer sufficient evidence for a reasonable jury to find in their favor on their whistleblower claims, according to Benjamin’s opinion.
Taylor and Perry were represented by Barbara H. Allen, Michele Rusen and Walt Auvil of Rusen & Auvil.
The WVDHHR, Fucillo and Keefer were represented by Charles R. Bailey and Betsy L. Stewart of Bailey & Wyant PLLC.
W.Va. Supreme Court of Appeals case number: 14-0679