Supreme Court says former lab director’s free speech wasn’t violated

By Kyla Asbury | Nov 27, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals issued a memorandum decision last week ruling that the former director of the West Virginia State Police forensic laboratory’s free speech was not violated three years ago.

The court ruled that Soraya M. McClung was not acting as a private citizen when she talked to legislators about issues at the lab in 2014. She was later demoted at the lab for sharing her concerns about the conditions at the lab to legislators.

McClung appealed Kanawha Circuit Court’s Nov. 14, 2016, order granting the state police’s motion for summary judgment and dismissing her retaliatory discharge claim.

On appeal, McClung argued that the circuit court erred in granting WVSP’s motion for summary judgment because it erred in finding that she spoke as an employee, not as a private citizen, on a matter of public concern.

McClung was employed by the WVSP forensic crime laboratory beginning in 1990, and in October 2007, she was appointed as the director of the WVSP forensic crime laboratory.

Sometime during the 2014 legislative session, McClung began discussions with a West Virginia legislative senator and his staff regarding the possibility of removing the forensic crime laboratory from the organizational structure of the WVSP.

Without the WVSP’s knowledge, McClung gathered information regarding the forensic crime laboratory’s removal and pay increases for employees; provided the information to the West Virginia Legislature; and testified before legislative committees.

As a result of the efforts, a legislative bill was drafted that called for the forensic crime laboratory’s removal from the organizational structure of the WVSP.

In March 2014, the WVSP administration met with McClung, wherein she initially denied her involvement with the legislative bill, but ultimately disclosed that she provided information to the Legislature.

After meeting with the WVSP administrators, McClung was reassigned from the laboratory director to an Analyst IV position, which was a demotion.

“The WVSP stated that petitioner was demoted because she lobbied the Legislature for the forensic crime laboratory’s removal from the organizational structure of the WVSP and for a pay increase for laboratory employees,” the memorandum decision states.

In January 2015, McClung filed a complaint with the Kanawha Circuit Court, claiming that her reassignment constituted “unlawful, retaliatory demotion and constructive discharge.”

McClung claimed the WVSP violated her right to free speech in terminating her employment for engaging with the legislature on a matter of public concern.

In July 2016,  WVSP filed a motion for summary judgment. In August 2016, the circuit court held a hearing on its motion.

Following the hearing, the circuit court granted respondent’s motion for summary judgment on the basis that petitioner “was speaking as an employee of the WVSP and not as a private citizen.”

“In this case, petitioner, in opposing the WVSP’s motion for summary judgment, argued that when she presented information to the legislature, she was speaking as a citizen on a matter of public concern,” the decision states. “However, the record…supports the circuit court’s finding that petitioner presented information to the legislature, ‘not as a citizen but as the Director of the State Police Forensic Laboratory.’”

Indeed, McClung acknowledged that she presented information to the legislature in her capacity as the laboratory director and it is undisputed that she was approached by a senator to provide information for a WVSP forensic crime laboratory financial study, knowing that she was the director.

“The information was then presented by petitioner to a legislative committee in her capacity as the director of the WVSP forensic crime laboratory,” the decision states. “According to the record, petitioner used her position as the director to convene a meeting with the forensic crime laboratory department supervisors and solicited information from them for the legislative committee.”

McClung admitted that the laboratory employees “probably” provided her with the information she requested because she was the director and not because she was a private citizen, as she suggests in her brief before the Supreme Court.

“Therefore, viewing the underlying facts in the light most favorable to petitioner, the circuit court correctly concluded that because she did not engage in constitutionally protected speech, and had no First Amendment cause of action based on the WVSP’s reaction to the speech, summary judgment was proper,” the decision states.

The Supreme Court affirmed the circuit court’s November 2016 decision.

W.Va. Supreme Court of Appeals case number: 16-1157

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