Supreme Court upholds action against employee who faced allegations of credit card misuse

By Kyla Asbury | Mar 7, 2019

CHARLESTON — The West Virginia Supreme Court of Appeals sided with an energy company in an appeal initiated by a former employee who was fired after reportedly making unauthorized credit card purchases.

The Supreme Court found there was no genuine issue of material fact and that respondent was entitled to judgment on petitioner’s claims as a matter of law, according to the Feb. 22 memorandum decision obtained by The West Virginia Record.

"Therefore, we conclude that the Circuit Court did not err in awarding respondent summary judgment," the Supreme Court ruled.

Douglas W. Smith II, a Pennsylvania resident who has a criminal record, worked for Lightning Energy Services as a salesperson from October 2014 to January 2015. Smith was serving a term of probation for theft by deception and writing a bad check and, on Jan. 23, 2015, he reported to his probation officer and failed a drug test, which caused him to be incarcerated in Pennsylvania.

On that same day, the West Virginia State Police filed a criminal complaint against Smith in Ohio Magistrate Court, charging him with two counts of fraudulent use of a corporate credit card belonging to respondent in Wheeling on Jan. 3, 2015. The complaint against Smith alleged he used the credit card to make two “unauthorized” purchases at a Sheetz store in the amounts of $211.90 and $215.85. A warrant was then issued for Smith's arrest and it was served on him at the prison in Pennsylvania.

Smith was then transferred to West Virginia and arraigned on Feb. 20, 2015. A preliminary hearing was held March 10, 2015, and Lightning Energy Services Chief Financial Officer Tom Buck testified. Smith cross-examined him and questioned him regarding a Jan. 2, 2015, agreement between him and the respondents that any unauthorized purchases with his corporate credit card would be deducted from his paycheck.

The magistrate found probable cause to bind the matter over for presentation to the Ohio County grand jury, but before presentation to the grand jury, Smith and the state entered into an agreement pursuant to which the state would dismiss the charges in exchange for Smith reimbursing the company for the unauthorized purchases in the amount of $427.75 and his criminal case was dismissed, with prejudice.

West Virginia then discharged Smith from incarceration and he returned to his home in Pennsylvania.  However, a week later, he was re-incarcerated in Pennsylvania until the state received proof of the dismissal of charges in West Virginia, where he stayed for about one day.

On Nov. 30, 2015, Smith filed a civil action against the respondents alleging false imprisonment, malicious prosecution, abuse of process, defamation and intentional or reckless infliction of emotional distress.

On April 11, 2017, the Circuit Court concluded that there was no genuine issue of material fact and awarded the respondent summary judgment. Smith then appealed.

The Supreme Court affirmed the Circuit Court’s April 11, 2017 order awarding summary judgment.

The West Virginia Supreme Court of Appeals Case No. is 17-0521.

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