CHARLESTON — The West Virginia Supreme Court partially granted a writ of prohibition, finding that certain claims should have been dismissed, while others rightfully stayed.
The Supreme Court found that some of the claims in the underlying case should have been dismissed, according to the majority opinion authored by Justice John Hutchison.
Justices Beth Walker and Tim Armstead concurred in part and dissented in part. Justice Haley Bunn did not participate in the case's decision.
"Petitioners Gabriel Devono and the Board of Education of Randolph County invoke this Court’s original jurisdiction and seek a writ of prohibition to prevent the Honorable David H. Wilmoth, Judge of the Circuit Court of Randolph County, from enforcing a May 5, 2022, order denying their motion to dismiss certain claims set forth in an amended complaint alleging wrongful termination of employment filed by the respondents, Marlene and Sherman Arbogast," Hutchison wrote.
The petitioners argued that certain claims should have been dismissed for lack of subject matter jurisdiction because Marlene Arbogast failed to exhaust her administrative remedies through the West Virginia Public Employees Grievance Procedure.
The petitioners further assert that other claims were subject to dismissal pursuant to Rule 12(b)(6) for failure to set forth a claim upon which relief can be granted.
"For the reasons set forth below, we find that some of the claims asserted by the respondents should have been dismissed, but that others are not barred by the exhaustion rule and have been sufficiently pled to go forward," Hutchison wrote. "Accordingly, the requested writ is granted, in part, and denied, in part."
The underlying civil action arose as a result of the termination of Marlene Arbogast’s employment as a cafeteria manager and "head cook" at Beverly Elementary School in Randolph County.
Marlene Arbogast claimed she learned during her employment that students in the Pre-K program at the school, which included her son, had been confined to a closet and mistreated by the Pre-K teacher.
The Pre-K teacher "engaged in multiple acts of physical, emotional, and mental abuse towards her students.” Marlene Arbogast alleged that when she reported this information to Devono, who was then serving as superintendent of the Board of Education of Randolph County, he refused to investigate the matter and, instead, attempted to "cover up" the abuse.
"Mrs. Arbogast claims that Mr. Devono then took adverse actions against her and ultimately caused her employment to be terminated," the opinion states.
Hutchison wrote that given the specific allegations made in count seven of the amended complaint, the court find that Marlene Arbogast was required to file a grievance with respect to this claim and her failure to do so bars this cause of action.
"Because this claim should have been dismissed by the circuit court pursuant to Rule 12(b)(1), we grant the requested writ with respect to count seven of the amended complaint," Hutchison wrote. "The writ is also granted with regard to Mr. Arbogast’s derivative claim under this count."
The Supreme Court the writ was granted for counts one, two and seven and denied for three, four and five.
In her dissenting in part opinion, Walker wrote that the three claims that were denied are "common law, wrongful discharge claims in their purest form."
"And, because they have been brought by Ms. Arbogast, an 'employee' against an 'employer,' and they satisfy the pivotal definition of 'grievance,' Ms. Arbogast had to seek 'relief . . . from the [Public Employees Grievance Board' before running to circuit court."
Walker notes that she did not do that.
"So, I repeat, Ms. Arbogast has failed to 'satisfy the jurisdictional prerequisite to resort to the courts;' the circuit court lacks jurisdiction over Counts III, IV, and V of the amended complaint; and the circuit court should have dismissed those claims under West Virginia Rule of Civil Procedure 12b)(1)."
West Virginia Supreme Court of Appeals case number: 22-0480
