West Virginia Record

Monday, February 24, 2020

Court denies Beckley’s motion to dismiss in retirement lawsuit

By Kyla Asbury | Apr 18, 2016


CHARLESTON – Kanawha Circuit Court Judge Carrie L. Webster has denied the City of Beckley’s motion to dismiss in a lawsuit against it for allegedly failing to properly submit retirement paperwork.

On April 17, 2015, the parties, by counsel, participated in a hearing on Beckley’s motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.

“This court finds that West Virginia Code … does not prohibit plaintiff’s claims against this defendant,” the March 6 order states. “This court finds that the plaintiff may pursue his cause of action under his public policy retaliation claim at this time.”

The court also notes that the City of Beckley may renew any of the previous arguments at a later time, should such argument be applicable after further discovery has been conducted, according to the order.

Also on March 8, Webster granted the West Virginia Consolidated Public Retirement Board’s motion to dismiss based upon its qualified immunity.

Manuel M. Cartell filed his lawsuit against the City of Beckley and Consolidated Public Retirement Board on Oct. 19, 2014, in Kanawha Circuit Court.

In October 2012, Cartell requested a retirement estimate from the Public Employees Retirement System and, at this time, he also advised the mayor of Beckley that he intended to retire March 1, 2013.

Cartell claims the city did not submit the proper paperwork to PERS and/or PERS failed to process the requested retirement estimate from October 2012 through the end of February 2013, and by Feb. 28, 2014, he still had not received his retirement estimate from PERS.

While he was off work on a Workers’ Compensation claim due to a work-related auto accident, Beckley forced Cartell to use his accumulated sick leave, which he would not have used had the city and/or PERS not negligently failed to process his requested retirement estimate and allowed him to retire on March 1, 2013, as planned, according to the suit.

Cartell claims the use of his accumulated sick leave damaged him in two ways: it caused him to not receive a lump sum payout for his accumulated sick leave and vacation time; and, because he was forced to use his sick leave, he was not able to apply the amount of sick leave in excess of the percentage he would have taken in lump sum to his retirement, thereby lowering his total service at retirement which then lowered his estimated retirement benefits.

The plaintiff should have been able to retire March 1, 2013, but, due to the defendants’ negligent failure to timely calculate his retirement, he was unable to retire until July 18, 2014, according to the suit.

Cartell claims the defendants’ actions caused him to suffer substantial economic harm, severe emotional and mental distress, anxiety, depression, aggravation, annoyance and inconvenience.

The defendants actions also violated the West Virginia Wage Payment of Collection Act, according to the suit.

Cartell is seeking compensatory damages. He was originally represented by Matthew S. Criswell and Mark L. French of Criswell French PLLC. He is represented pro se now.

The City of Beckley is represented by Chip E. Williams and Jared C. Underwood of Pullin, Fowler, Flanagan, Brown & Poe PLLC.

WVCPRB is represented by Dwayne E. Cyrus of Shuman, McCusky & Slicer PLLC.

Kanawha Circuit Court case number: 14-C-1846

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Organizations in this Story

Criswell FrenchPullin Fowler Flanagan Brown & Poe PLLCPullin, Fowler, Flanagan, Brown & Poe, PLLC