788 S.E.2d 295
W. Va.2016Background
- Petitioners Jennifer Taylor (General Counsel) and Susan Perry (Deputy Secretary for Legal Services) reviewed and raised concerns about the technical scoring of a DHHR RFP for advertising services; Procurement law requires separate technical and cost scoring and forbids certain corrupt conduct.
- DHHR officials (including Keefer and Fucillo) viewed the review as potentially improper; an Inspector General investigation began in July 2012 and a search warrant (drafted by the IG) was executed and later released to media.
- Petitioners were placed on administrative leave/reassignment; Taylor admitted emailing privileged attorney-client material to her husband; criminal prosecution was declined; Taylor was terminated Feb 20, 2013; Perry was terminated June 28, 2013.
- Petitioners sued alleging whistle-blower violations, Harless retaliatory discharge (including Ethics Act and professional duties), gender discrimination under the Human Rights Act, and false-light invasion of privacy; defendants moved for summary judgment.
- The circuit court granted summary judgment to respondents on all claims; the Supreme Court of Appeals affirmed dismissal of retaliatory discharge, gender discrimination, and false-light claims but reversed and remanded as to the whistle-blower claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Qualified immunity for DHHR officials | Petitioners say defendants violated clear statutory rights (Whistle-blower Law, Human Rights Act, Harless) and acted maliciously, so immunity doesn't apply | Defendants argue employment decisions are discretionary and therefore entitled to qualified immunity | Court: defendants not entitled to summary judgment on immunity; factual disputes over motive preclude immunity at summary judgment |
| Whistle-blower statute (§ 6C-1) — protected good-faith report/wrongdoing or waste | Petitioners claim their RFP review was a good-faith report of procurement wrongdoing/waste and protected activity | Defendants argue petitioners acted outside authority, merely performed job duties, or were incorrect — so no reasonable belief of wrongdoing | Court: reversed circuit court; genuine disputes of material fact exist on good-faith belief, wrongdoing/waste, and job‑duties issue — remand for trial |
| Harless retaliatory discharge (Ethics Act / professional duties) | Petitioners contend discharge contravened public policy (Ethics Act and obligation to give honest legal advice) | Defendants assert no specific provision of Ethics Act was contravened and professional rules are not clearly a source for Harless claim | Court: affirmed summary judgment — petitioners failed to identify specific substantial public policy violation under Ethics Act; Harless claim based on Ethics Act not supported |
| Gender discrimination (Human Rights Act) | Petitioners point to reassignment, replacement by male, and other treatment as showing sex-based adverse action | Defendants say lack of evidence that decision-makers were motivated by gender and cite nondiscriminatory explanations | Court: affirmed — petitioners failed even de minimis prima facie showing to permit inference of gender discrimination |
| False-light invasion of privacy (search warrant/publicity) | Petitioners assert the investigation and search warrant publicized false allegations about them, placing them in a false light | Defendants say they did not publicize the warrant; Prosecutor released it and it was a public record; privilege/newsworthiness applies | Court: affirmed — petitioners failed to show respondents gave publicity; search warrant release by prosecutor and public-record status defeats claim |
Key Cases Cited
- Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 765 (W. Va. 1994) (summary judgment reviewed de novo)
- Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (W. Va. 1963) (summary judgment tests whether genuine factual issue exists)
- Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (W. Va. 1978) (retaliatory discharge when discharge contravenes substantial public policy)
- W. Va. Reg'l Jail & Corr. Facility Auth. v. AB., 234 W.Va. 492, 766 S.E.2d 751 (W. Va. 2014) (qualified immunity for discretionary governmental functions unless violation of clearly established rights or conduct fraudulent/malicious)
- Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (W. Va. 1983) (false-light/privacy law; newsworthiness and public-figure doctrines; qualified privileges)
- Shepherdstown Volunteer Fire Dep't v. W. Va. Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (W. Va. 1983) (burden shifting in discrimination/retaliation contexts)
- Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (W. Va. 1995) (prima facie discrimination and summary judgment standards)
- Conaway v. Eastern Assoc. Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (W. Va. 1986) (elements to make prima facie discrimination case)