Eric Burke v. Wetzel County Commission
815 S.E.2d 520
W. Va.2018Background
- Eric Burke was a Field Appraisal Supervisor in the Wetzel County Assessor’s office (employed Feb 2013; supervisor title from Jan 2014) and alleges a back condition that required surgery and FMLA leave in 2015.
- After seeking FMLA leave and returning with an unrestricted medical release, Burke alleges Assessor Scott Lemley demanded additional releases, seized work credentials, required drug testing without cause, reduced duties, restricted vehicle/computer access, made demeaning comments, and suspended him without pay.
- Burke reported the conduct to the Assessor’s office and the Wetzel County Commission, then filed to run against Lemley for county assessor; he alleges increased retaliation and was terminated July 11, 2016 for alleged poor performance.
- Burke sued the Commission and Lemley (individually and in official capacity) alleging hostile work environment, wrongful/retaliatory discharge (public-policy and constitutional), violations of the FMLA, the West Virginia Human Rights Act (disability discrimination/hostile work environment), and the Whistle-blower Law.
- The circuit court granted a Rule 12(b)(6) dismissal, finding no joint-employer relationship with the Commission, that Burke received accommodation, that his constitutional claim failed (not state actor), and that Lemley was entitled to qualified immunity; Burke appealed.
- The Supreme Court of Appeals reversed and remanded, holding the pleadings (construed in Burke’s favor) sufficiently alleged joint employment, statutory and constitutional public-policy violations, hostile work environment and FMLA/whistleblower claims, and that qualified immunity was inappropriate at the pleading stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commission was joint employer | Burke: hired under W. Va. Code §7-7-7 and W-2 lists Commission as employer; factual issue | Lemley/Commission: Commission not employer; assessor controls staff, §11-1C-8 governs valuation-fund hires | Court: Factual dispute exists; dismissal premature—claim survives to allow discovery |
| Qualified immunity for Lemley | Burke: alleged conduct violated clearly established statutory and constitutional rights; alleged malicious/retaliatory motive | Lemley: acted within official discretion and entitled to immunity because no clearly established law was violated | Court: At pleading stage, allegations of bad faith/retaliation preclude dismissal on qualified immunity grounds |
| Human Rights Act claims (disability discrimination; hostile work environment) | Burke: alleged disability (back condition), perceived disability treatment, harassment and disparate treatment after leave | Defendants: Burke received FMLA accommodation; no actionable discrimination | Court: Allegations suffice to plead disability discrimination and hostile work environment for Rule 12(b)(6) purposes |
| FMLA, retaliatory discharge, and Whistle-blower claims | Burke: not returned to equivalent conditions (duties/privileges); termination motivated by protected activity (FMLA use, running for office, reporting misconduct) | Defendants: provided reasonable accommodation; no protected activity; not state actors for constitutional claim | Court: FMLA/equivalence and retaliatory discharge pleadings adequate to survive dismissal; constitutional-claim aspects are employment‑based retaliatory claims (not Tort Claims Act dismissal); whistle‑blower claim pleaded sufficiently (reported to appropriate authority) |
Key Cases Cited
- Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (W. Va. 1996) (qualified/statutory immunity is a legal question appropriate for summary disposition absent factual disputes)
- Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 555 (W. Va. 2008) (statutory distinction on hires paid from county general fund (§7-7-7) vs. valuation fund (§11-1C-8); hiring authority and joint-employer analysis)
- Harless v. First Nat’l Bank, 162 W. Va. 116, 246 S.E.2d 270 (W. Va. 1978) (recognizing public-policy wrongful/retaliatory discharge exception to at-will employment)
- Conaway v. Eastern Assoc. Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (W. Va. 1986) (prima facie elements for employment discrimination under the Human Rights Act)
- Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741 (W. Va. 1995) (elements for hostile work environment claims under Human Rights Act)
- Stone v. St. Joseph’s Hospital, 208 W. Va. 91, 538 S.E.2d 380 (W. Va. 2000) (definition of "person with a disability" and recognition of "perceived as" disabled under Human Rights Act)
- McClung v. Marion Cty. Comm’n, 178 W. Va. 444, 360 S.E.2d 221 (W. Va. 1987) (public employees may not be discharged in retaliation for exercising constitutional rights; burden-shifting in retaliatory-discharge cases)