Toth v. Board of Parks & Recreation Commissioners
593 S.E.2d 576
W. Va.
2003
Check Treatment

*1 TOTH, Geraldine Plaintiff

Below, Appellant,

BOARD AND OF PARKS RECREATION

COMMISSIONERS, BOPARC, AKA City Morgantown, Be- Defendants

low, Appellees.

No. 31340.

Supreme Appeals Court of Virginia.

Submitted Oct.

Decided Dec.

Dissenting Opinion of Justice

MeGraw Dec.

MeGraw, J., opinion. dissented filed *2 present not sufficient

Toth did favor of the resist on this claim. defendant I. AND PROCEDURAL

FACTUAL HISTORY Toth, plaintiff below Ms. Geraldine (hereinafter Toth”), “Ms. appellant herein years as the and one-half for eleven worked Senior Volunteer Director of the Retired “RSVP”) (hereinafter for Senior Program Monongalia Monongalians, senior center employment as RSVP County. Toth’s Ms. 19, 1997, to an on March came end director position. Ms. from that she was fired discharge wrongful Toth then filed claiming that Monongalians against Senior implied contract be- they had breached parties and that her termination tween communicating con- was retaliation with a operation of the RSVP cerns about the director county and the state commissioner 22, 1999, January of the RSVP. On discharged in Ms. Toth had been found that activity.1 She was $10,000 $40,000 wages and in lost awarded Ms. Toth had also distress. for emotional Bastress, Morgantown, West M. Robert job, old but such sought reinstatement Attorney Appellant. for the Virginia, contract possible as federal was not relief had been Jeffery Lilly, Rose administration the RSVP Jeffery Taylor, W. for the D. Fairmont, Monongalians to L.C., Virgi- transferred Senior Petty, Padden & of Parks and City Morgantown’s Board nia, Attorneys Appellees. for the (hereinafter “BOPARC”), the de- Recreation DAVIS, appellee herein. Justice: fendant below litigation during of her the course granting par- appeal from an order applied Monongalians, Ms. judgment, Toth with Ms. Geraldine tial position from which for the RSVP director recognize a cause of asks Court fired, being was then potential employer for failure against a Toth, who his- administered BOPARC. upon applicant’s allegedly based time, not fifty-eight years old wrongful was suing employer for tory of position. Instead BOPARC sum- hired discharge. clarifying D’AUessandri, twenty-five orders, summary judg- hired Ms. Anne like included year whose credentials orders, old woman adequate must contain ment Gerontology that was based meaningful Certificate permit and conclusions college In a eighteen hours of credit. the issue that we need reach we conclude letter, its de- subsequent defended BOPARC of action the cause of whether over to hire Ms. D’Allessandri cision not reach suggested Ms. Toth. We need geron- upon Ms. D’Allessandri’s because, assuming arguendo we Toth based the issue computer skills. action, and her tology certificate recognize such a cause of were jury rejected contract claim. 1. The interview, scoring appeals

In their of Ms. Toth’s now par- BO- court’s award of gave PARC officials zero fiscal tial

experience computer experi- two for and a resume, According to Ms. ence. Toth’s II. *3 hiring 1998 when the decision was made she Dbase, computer possessed the skills to use STANDARD OF REVIEW WordPerfect, internet, Quicken, the and e- appeal we are asked to re years experience mail. She also had twelve entry partial view a circuit court’s sum business, owning managing family’s mary judgment. It is well established that Neighborhood “The Food Market.” entry summary judg “[a] circuit court’s rejected was for the RSVP di- 1, Syl. pt. ment is de novo." reviewed Paint position, Toth rector Ms. filed the lawsuit 189, v. Peavy, er 192 W.Va. underlying appeal against BOPARC al- conducting In our de novo leging age discrimination and for same standard utilized Monongalians. against Namely, circuit court. argued allowing employers that “ summary judgment for ‘[a] motion job applicants they refuse because granted only should it be is clear brought legal previous genuine there is fact to issue wrongful for discharge would have inquiry tried and concerning the facts is chilling seeking effect on those enforce not application desirable to legal rights. them 3, Syllabus the law.’ Casualty Point Aetna Meanwhile, quit Ms. D’Allessandri after & Surety v. Federal Co. Insurance Co. of year employment.2 than a According less York, New BOPARC, vacancy created (1963).” Syllabus Point Andrick v. D’Allessandri’s with departure was filled two Buckhannon, Town closely women who had worked with her and S.E.2d 247 were, thus, program. with familiar the RSVP Syl. pt. that, Finally, Painter. we note Mary promoted DeMoss was to RSVP Di- summary function “[t]he court’s at the rector and Karen Owens was named RSVP judgment stage weigh is not to the evidence Ms. Toth then a motion Coordinator. filed matter, truth and determine the but is complaint amend her a second include genuine whether determine there is claim failure to hire. Her motion was Syl. pt. issue for trial.” Painter. granted. In complaint, her amended alleged that BOPARC’s failure to hire III. for position director the RSVP arose age discrimination and as retaliation DISCUSSION exercising her constitutional Summary Judgment A. Partial Order III, §§ rights as forth set Article of17 the West Constitution. reaching Before the substantive is summary appeal, pause a motion BOPARC filed sues raised in this first rationale, judgment. explaining sufficiency Without its address the sum circuit court as to denied the motion in this entered case. discrimination, age grant- Syllabus but point Fayette County Toth’s 3 of Na summary judgment as ed to Ms. Toth’s con- Bank v. tional (1997), claims. A “[although stitutional trial followed on we held that claim, age summary judg discrimination our standard of review novo, resulted a verdict favor of BOPARC. ment remains de circuit court’s order judgment summary final granting judgment The circuit court’s order was must set out September 2002. Ms. Toth permit meaning- entered factual sufficient to BOPARC, According Ms. D’Alessandri re- medical school. signed by attending to continue her education fact, particular issue Findings of law relevant appellate ful review. case, explained necessity, facts which the cir- in that Adkins Court include those relevant, determinative cuit court finds par- finding its [in circuit court’s sole [t]he undisputed.” explained our issues and summary entirely judgment order] tial thusly, holding for this rationale conclusory: Gary finds “the Court can- an order meaning within Adkins is insured exclusively upon merely and rest recite by Liberty policy insurance issued Mu- that, genuine issue of “[n]o a conclusion Champagne- Company to tual Insurance dispute is in material fact therefore Webber, Inc., Gary employer of Ad- granted.” For kins.” We unable assess what are *4 appellate must be meaningful more upon reaching in the circuit court relied summary granting in an order included conclusion, analysis legal this and what a judgment. This function as re- Court’s pursued grant summary judgment is to the viewing court determine whether to Mr. Adkins. granting for of sum- stated reasons the Court, argument In the their oral before by lower court are the attorneys the for both sides by In supported the record.... other interpretations seemingly of Mr. different words, pro- circuit court’s order must the Adkins’ situation. parties notice to all and the vide clear at 494 S.E.2d at 924. Al- 201 W.Va. applied reviewing court as to the rationale though the Adkins case was remanded for summary granting denying judgment. or development pursuant holding to our further 353-54, Lilly, at 484 at 199 S.E.2d W.Va. expressly we held that have never (internal omit- citations and footnote 236-37 partial summary Lilly ruling applies the ted). the judgment orders. For set out reasons grant- an Lilly The decision involved order above, now our Adkins follow rationale Here, ing full arewe ruling Lilly by expressly our granting only partial an presented with order that, holding while our standard review for Nevertheless, judgment. summary the rea- novo, a summary judgment cir- remains de holding in justifying Lilly our counsel sons granting partial summary court’s cuit order partial respect with sum- the same result findings suffi- judgment set out factual is mary judgment orders. this When Court permit meaningful appellate review. cient summary partial a asked to review fact, Findings by necessity, include those 54(b) order, under Rule the West either relevant, which circuit court finds facts the Procedure,3 or on of Civil Rules undisputed. issues and determinative the appeal conclusion of the entire case at the judice, In the case circuit courts sub the below,4 our “to it function determine provides findings of fact or rationale order granting for whether the stated reasons the judgment. for its The summary judgment by lower court are simply stated: order Lilly supported the record.” 199 W.Va. Summary Motion For The “Defendants’ Thus, at at facilitate 484 S.E.2d respect plaintiffs Judgment” with Court, meaningful a review this the circuit “public policy” upon claim based the defen- provide its rationale and court must alleged dants’ failure due to consid- it its upon facts based of the material previous litigation plaintiffs eration example An of our need for such decision. employer should previous findings in with a sum- connection granted. mary may be in our judgment order found Meador, Accordingly, specific 201 opinion in Adkins v. W.Va. (1997). discussing on conclusion of 915 stated the record Co., See, Bancshares, Community e.g., Kroger v. First Tolliver v. W.Va. Smith Inc., (2002); Meador, (1997); Adkins v. 498 S.E.2d Hosp. Jackson Mem’l Co. v. American Stonewall Co., 525 S.E.2d United Ins. Life matter, us, is of hearing on this us to Court before asks does, to, opinion hereby ORDER of action that allow cause would sue following: prospective employer failing hire her allegedly failure to hire was based upon activity suing employer (2) Motion For the “Defendants’ Sum- wrongful discharge. mary Judgment” respect plain- with to the “public policy” upon tiffs based recognized This Court has not cause alleged defendants’ failure hire the to hire based action for failure plaintiff plain- due to consideration of the applicant’s history law filing suit previous litigation against previ- tiffs correctly As former be, is, hereby, ous shall notes, however, has Court ruled GRANTED; government employees are being filing in retaliation for suit transcript hearing law No on BOPARC’s fired wages. Syllabus point collect overtime motion was included McClung Comm’n, County v. Marion 2 of appeal. the record submitted This held that comport holding does not with our *5 Nevertheless, today. we are able to resolve pub- It is in contravention of substantial particular the issue raised in this instance discharge policies for lic an to an without detailed order the in employee employee’s the court; therefore, decline to “we remand exercising his or her state constitutional so may provide that circuit court ease the petition rights grievances of for redress (W. meaningful findings 16) fact of of and conclusions Const. Art. Ill, § Va. and to seek 354, (W. law.” 199 at 484 at W.Va. S.E.2d Va. to the courts of access this State Cliver, 653, Ward v. 17) 237. 212 Ill, W.Va. action, § Const. by filing Art. an (2002) (“The 656, 263, 575 S.E.2d 266 Va.Code, to W. [1975], pursuant 21-5C-8 of the circuit court in the instant does ease wages. for overtime Lilly not meet sim [the ] standard —there is (1987) 444, (empha- 178 360 221 statutory ply boilerplate reference the added).8 sis However, language. no conclude that taking In the context of retaliation the purpose would be a remand under served hire, form of a failure to the United States case.”). facts of the instant Supreme recognized a Court has cause of B. to Hire Failure action for failure to that was based on an hire argues applicant’s Ms. Toth that the circuit court exercise of First Amendment rights, speech that erred as but ease free involved Republican rights. claim that Rutan alleging her constitutional tort associational Illinois, 62,110 2729, Party failed to hire her had 497 BOPARC because she U.S. S.Ct. Rutan, engaged in conduct that is Arti 111 52 L.Ed.2d the Gover- III, hiring procedure Virginia §§ nor of Illinois 165 176 the West instituted a cle employment political of the that on Constitution.7 Stated context based decisions III, Virginia provide § Article 16 of the West Constitu- which does not cause of action provides: right people tion “The of the prospective employers assem- based failure to manner, peaceable in a ble consult representatives, history applicant's litiga- hire for of an good, common their instruct replies tion grievances, shall be held or to inviolate.” redress that that her constitutional tort claim BOPARC’s Open hire her failure to violated the Court’s and Virgi- of the Redress of Grievances Clauses West III, Virginia § 6. Article 17 of West Constitu- brought under the nia Constitution was not provides: tion “The courts this State shall Virginia Rights Human Act and she has never every person, injury open, and for an done brought. that it contended was so him, person, property reputation, or shall his remedy by law[J" have due course McClung, employee employ- 8.In sued his had were 7. BOPARC asserts that Ms. Toth’s claims wages subsequently er for and was overtime brought improperly Hu- under West fired. Act, seq., Rights § et man W. Va.Code 5-11-1 56 dence,’ produce sufficient plaintiffs Ru-

patronage. the five One nonmoving repeatedly jury to find in a he for a reasonable “ha[d] tan claimed that Painter, guard prison at 192- employment party’s as a favor.” denied state 93, support (quoting not have of Re- Anderson did 451 S.E.2d at 758-59 because he 67, 242, 252, Inc., Party Liberty at publican Lobby, officials.” Rutan 497 v. U.S. (1986)). 2733, 2505, 202, L.Ed.2d at L.Ed.2d U.S. 110 S.Ct. S.Ct. Moreover, “condition- The Rutan Court concluded ing political on belief and hiring decisions [s]ummary judgment appropriate plainly an unconstitu- association constitutes could where taken as a whole the record condition, government unless has a tional fact to find for not lead a rational trier of doing so.” Id at vital interest U.S. nonmoving party, such as where 62,110 at 111 L.Ed.2d S.Ct. nonmoving party has a suf- failed to make recognizing authority for While there is showing ficient essential element for a on consti- cause failure to hire prove. it has the the ease that burden arising grounds tutional from First Amend- Syl. pt. Painter. rights, Toth has ment assoeiational cited showing merely Evidence authority extending of action to this cause had is sim- media attention received encompass arising a failure to satisfy ply adequate burden guarantees of from state or federal free ac- “offering mere of evi- more than a ‘scintilla petition right courts and cess ’ knowledge dence” BOPARC grievances. government for redress Painter, suit. authority no such in our have found own (citation omitted). Thus, we find However, independent research. need *6 that the court did not err ground forge not decide whether this new summary judgement to BOPARC. present appeal, in order to resolve since if even we did the cause Toth,

proposed by would proof be IV. to overcome insufficient Simmons, v. State CONCLUSION body For of this stated opinion, of the Court of the order Circuit Assuming that a claim of failure to Monongalia County granting partial sum- existed, proposed hire as Ms. Toth such a mary judgment to BOPARC is affirmed. necessarily showing require claim would applicant’s] [the “that exercise consti Affirmed. right(s) was a or a moti tutional substantial vating hiring decision. factor” adverse Justice dissents and reserves McGRAW 3, McClung Syl. pt. County v. Marion dissenting right opinion. file Comm’n, against show that Ms. Toth’s lawsuit McGRAW, Justice, dissenting: Monongalians Senior was a substantial or (Filed 11, 2003) Dee. motivating factor BOPARC’s decision not her, case, required argued to hire that she would be pre- had provide that BOPARC had suffered discrimination because she some evidence Here, against only prior lawsuit her former knowledge of the lawsuit. vailed genu- Toth in her effort I believe raised evidence majori- knowledge point. As to show that ine issue fact on this BOPARC had notes, Monongalians ty motion for “[a] subject granted only should be when it is clear fact that the lawsuit genuine is no issue of tried previously media ex there fact attention. have plained party inquiry concerning is not desir- opposing that “the application law.” satisfy proof by able to must burden Casualty offering Syl. pt. Surety Aetna Co. than ‘scintilla evi- & more mere York, Federal Insurance Co. New opportunity 148 the present of this 160, 133 jury peers. Therefore, to a S.E.2d 770 I respectfully dissent. I feel that Ms. Toth prima established facie case that she suffered discrimination

because-she had availed herself the consti-

tutionally protected right for re- grievances.

dress of Though may ultimately

have found Ms. Toth on issue, I believe she should have had