WANDA KEENER and KATHERINE ASBURY v. CLAY COUNTY DEVELOPMENT CORPORATION
No. 21-0267
Supreme Court of Appeals of West Virginia
November 3, 2022
September 2022 Term
Appeal from the Circuit Court of Clay County
The Honorable Richard Facemire, Judge
Case No. 18-C-6
AFFIRMED
Submitted: September 13, 2022
Filed: November 3, 2022
Walt Auvil, Esq.
Kirk Auvil, Esq.
The Employment Law Center, PLLC
Parkersburg, West Virginia
Counsel for Petitioners
M. Andrew Brison, Esq.
The Law Office of M. Andrew Brison, PLLC
Charleston, West Virginia
Counsel for Respondent
JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE ARMSTEAD, having been disqualified, did not participate in the decision of this case.
JUDGE HOKE sitting by temporary assignment.
- “A circuit court‘s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
- Familial status is not a protected group for purposes of an employment discrimination claim under the West Virginia Human Rights Act,
W. Va. Code §§ 5-11-1 to -9 (2022) . - “A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
- “In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.” Syl. Pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
- As used in the West Virginia Human Rights Act,
West Virginia Code § 5-11-2 (2022) , ancestry means discrimination based on some characteristic like race, ethnicity, or national origin that is passed down by lineal descendants. In the context of employment, familial status is not included among the groups entitled to protection by the Human Rights Act. - “Where an employee seeks to establish a permanent employment contract or other substantial employment right, either through an express promise by the employer or by implication from the employer‘s personnel manual, policies, or custom and practice, such claim must be established by clear and convincing evidence.” Syl. Pt. 3, Adkins v. Inco Alloys Int‘l, Inc., 187 W. Va. 219, 417 S.E.2d 910 (1992).
- “An employee handbook may form the basis of a unilateral contract if there is a definite promise therein by the employer not to discharge covered employees except for specified reasons.” Syl. Pt. 6, Cook v. Heck‘s Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986).
- “A promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee‘s continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer‘s promise binding and enforceable.” Syl. Pt. 5, Cook v. Heck‘s Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986).
- “An employee handbook which contains a clear and conspicuous disclaimer of job security will preserve the at-will status of the employment relationship.” Syl. Pt. 8, Mace v. Charleston Area Med. Ctr. Found., Inc., 188 W. Va. 57, 422 S.E.2d 624 (1992).
- “An employer may protect itself from being bound by any and all statements in an employee handbook by placing a clear and prominent disclaimer to that effect in the handbook itself.” Syl. Pt. 5, Suter v. Harsco Corp., 184 W. Va. 734, 403 S.E.2d 751 (1991).
WOOTON, Justice:
The petitioners, Wanda Keener (“petitioner Keener“) and Katherine Asbury (“petitioner Asbury“), appeal the order entered by the Circuit Court of Clay County, West Virginia, on March 5, 2021, granting summary judgment to respondent Clay County Development Corporation (“CCDC“) in regard to petitioners’ claims of discrimination in violation of the West Virginia Human Rights Act (“the Act“),
I. Facts and Procedural Background
The CCDC is a nonprofit organization that provides services to senior citizens in Clay County, including in-home and community-based services, through federal and state monies, Medicaid, and various grants. Petitioner Keener worked for the CCDC for thirty years in several positions but spent the last twenty years as a filing clerk. Petitioner Asbury, petitioner Keener‘s sister, worked for the CCDC for forty years and had the title “3B Project Director.” The petitioners were also the sisters of Pamela Taylor, the CCDC‘s former Executive Director. Ms. Taylor was initially suspended and ultimately terminated from her employment with the CCDC after she made the following post on Facebook in November of 2016, which gained national attention: “It will be refreshing to have a classy, beautiful, dignified First Lady in the White House [referring to former First Lady Melania Trump]. I‘m tired of seеing an Ape in heels [referring to former First Lady Michelle Obama].”
As a result of Ms. Taylor‘s post, the CCDC was investigated and monitored by the State of West Virginia Bureau of Senior Services (“Bureau“) and the Appalachian Area Agency on Aging (“AAA“).1 In December of 2016, the Bureau and the AAA launched an investigation into the CCDC‘s policies, procedures, and finances. By letter dated December 14, 2016, both Robert Roswall, the Bureau‘s Commissioner, and Romana McNeely-Stanley, AAA‘s Director, informed the CCDC that these two agencies were at the CCDC “to monitor your agency‘s programs and policies and procedures.” Specifically, in accordance with the Service Provider conditions,
“[t]he Service Provider agrees to cooperate with the AAA and assist in any efforts undertaken or approved by the Bureau, the AAA or Administration on Aging (AoA) to monitor and/or evaluate its programs. The Bureau, AAA or AoA shall, if requested, have access to all documents relating to the operation of the Service Provider, including but not limited to, documents providing information relating to the following: payroll, tax, travel, purchasing, financial management, and any internal or external audit information generated by the Service Provider or third party. Any Service Provider receiving Grants through the Bureau shall make full and complete disclosure in a timely manner of any and all financial, operational, and/or administrative information, if requested by the Bureau, AAA or AoA. Failure to do so shall result in suspension of the Grants and may lead to termination of the Grants.”
According to Ms. McGlothlin, during the course of the investigation and audit a significant debt of approximately $250,000.00 was discovered in the CCDC‘s budget. This debt
Ms. McGlothlin further averred that during the Bureau‘s and AAA‘s involvement with the CCDC, “there was emphasis on aggressively reducing the CCDC‘s debt and addressing the various outstanding IRS payments, penalties, and interest, as well as repaying the State of West Virginia for previous Medicaid overpayments made to the CCDC.” Further, based on information from West Virginia Bureau of Senior Services Commissiоner Roswall, she stated that the CCDC‘s contracts were in jeopardy - which cast doubt on the continuing viability of the organization. Finally, Ms. McGlothlin averred that in 2016, the petitioners “were the two highest paid non-professional employees at the CCDC. Wanda Keener was paid $46,597.20 and Katherine Asbury was paid $72,360.”
On December 21, 2016, the CCDC Board of Directors (“Board“) met and voted to execute a contract with AAA to manage the organization for a six-month period. Further, the Board voted to approve the “involuntary separation of both” of the petitioners, the two highest paid employees, from employment with the CCDC. The petitioners were terminated on December 22, 2016. Ms. McGlothlin stated that on the date of discharge, most of petitioner Asbury‘s “job responsibilities were being performed by other employees.” Indeed, both of the petitioners’ resрective job duties were absorbed by the remaining employees and their positions were never filled.
Critically, the information provided by Ms. McGlothlin in her affidavit was confirmed by the CCDC‘s corporate representative (and then-current Executive Director, Stephanie Duffield) in a 30(b)(6) deposition taken by the petitioners. See
With specific regard to the petitioners’ termination, the CCDC had a policy and procedure manual, the Employment Guide, in effect at the time of the events which gave rise to the subject of this litigation.3 There is an introduction on the third page of the Employment Guide directed “To the Employee:” which conveys that this document “is designed to provide information and direction on personnel matters and to assure fair and equal treatment to all CCDC employees.” At the bottom of this page - a page that contains seventy-six words in total - is the following language: ”Note-Receipt of this Employment Manual does not constitute an employment contract with this agency.” Also, in the section of the Employment Guide entitled “USE OF THE MANUAL,” the following language is found: “[T]he manual should be used as a guide in dealing with agency personnel matters.” Significantly, there is no term of employment set out in the manual.
The Employment Guide also provides for two classifications of involuntary termination. The first is “Positive Dismissal,” which is defined as a termination “based on circumstances beyond the employee‘s control.” The second is “Negative Dismissal,” which is based upon behavior that is controlled by the employee. The applicable causes for an involuntary
D. INVOLUNTARY TERMINATION
. . . .
2. Causes for Involuntary Termination
(1) Positive Termination
. . . .
b. Insufficient Funding
Termination of an employee may be necessary prior to the time indicated in the work plan when there is a short fall in funds, or the program is defunded.
c. Reorganization and Discontinuance of a Particular Position or Area of Service
Termination of an employee (except when on extended sick leave) may result when reorganization and discontinuance of a particular position or area of service occurs.
The CCDC contends that the petitioners were involuntarily terminated under the “Positive Termination” category because their termination arose out of circumstances beyond their control, i.e., the CCDC‘s financial situation. Thus, the petitioners were terminated pursuant to the “Insufficient Funding and Reorganization and Discontinuance of a Particular Position or Area of Service” sections of the “Positive Dismissal” section in the Employment Guide. The petitioners’ positions were dissolved, their work duties were easily absorbed by others, and the dissolution of these positions resulted in a savings to the nonprofit organization in excess of $115,000.00 per year.
Following their termination, the petitioners filed a lawsuit against the CCDC, alleging violations of the Act,
The petitioners responded that ancestry discrimination was the basis of their termination in that Ms. Taylor, see text supra, was their sister.5 The petitioners further asserted,
By order entered March 5, 2021, the circuit court granted the CCDC‘s motion for summary judgment. With respect to the petitioners’ claim that the Act was violated as a result of discrimination based upon ancestry, specifically, their familial relationship with Ms. Taylor, the court found that “[i]t is undisputed that Plaintiffs were born and raised in the United States, are Caucasian, [and] complain of no disabilities“; and that the petitioners “acknowledged in their depositions that they were not discriminated against on the basis of their race, religion, color, sex, age, blindness, or disability.” The court concluded that “ancestry discrimination does not include discrimination based upon a family relationship. Ancestry has a broader meaning than just a relationship to one specific other person.” Accordingly, the court determined that the petitioners’ claims were not actionable under the Act.
In regard to the petitioners’ claims that the CCDC breached an implied contract as a result of their termination, the circuit court found that the uncontradicted evidence was that at the end of 2016 and the beginning of 2017 the CCDC suffered from “a large financial debt” that exceeded $250,000.00, and that it “did not have sufficient funding to cover its ongoing payroll obligations.” The court also expressly found that the petitioners presented “no evidence or countervailing affidavit to contradict” the following:
16. Mrs. McGlothlin‘s affidavit further stated that Plaintiffs were the highest paid non-professional employees at CCDC with a combined total salary in excess of One Hundred Fifteen Thousand Dollars ($115,000.00) per year.
17. It is also set forth in the McGlothlin affidavit that neither of Plaintiffs’ employment positions were replaced, and their job duties were absorbed by other employees.
Further, the circuit court found that it was undisputed that the Employment Guide had a “clear” disclaimer at the bottom of page three. The court recognized the petitioners’ argument that because the Employment Guide contained a progressive disciplinary process, which the petitioners contended had to be followed before an employee could be discharged, an implied contract was formed with each employee. However, the court found that the Employment Guide contained no terms that reasonably can be construed to promise job security to the petitioners. In regard to the progressive disciplinary process, the court determined that “Plaintiffs’ discharge was unrelated to any conduct that would trigger the disciplinary process[.]” Succinctly stated, the petitioners’ involuntary termination was “a Positive Dismissal” based on financial circumstances beyond the petitioners’ control. Therefore, the court concluded, the Employment Guide did not form a contract for employment, the petitioners were at-will employees, and accordingly they could be terminated for any nondiscriminatory reason.
This order forms the basis for the petitioners’ appeal.
II. Standard of Review
On appeal, “[a] circuit court‘s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Further, we have stated that under our summary judgment standard,
a party seeking summary judgment must make a preliminary showing that no genuine issue of material fact exists. This means the movant bears the initial responsibility of informing the circuit court of the basis of the motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. However, the movant does not need to negate the elements of claims on which the nonmoving party would bear the burden at trial.
Powderidge Unit Owners Ass‘n v. Highland Props., Ltd., 196 W. Va. 692, 698-99, 474 S.E.2d 872, 878-79 (1996). If a moving party meets this initial burden,
the nonmovant must go beyond the pleadings and contradict the showing by pointing to specific facts demonstrating a “trialworthy” issue. To meet this burden, the nonmovant must identify specific facts in the record and articulate the precise manner in which that evidence supports its claims. As to material facts on which the nonmovant will bear the burden at trial, the nonmovant must come forward with evidence which will be sufficient to enable it to survive a motion for directed verdict at trial. If the nonmoving party fails to meet this burden, the motion for summary judgment must be granted.
Id. at 699, 474 S.E.2d at 879. Under the foregoing principles, we address the issues before us.
III. Discussion
A. Ancestry Discrimination
The petitioners argue that the circuit court erred in finding that ancestral discrimination is duplicative of the West Virginia Human Rights Act‘s protections against national origin and ethnic discrimination,6 and more specifically that it does not include discrimination based on familial relation. The petitioners contend it is possible for an individual to be the victim of ancestry discrimination based solely on his or her familial status, without any consideration of their ethnicity or national origin. In support of this theory, they ask this Court to hold that that “ancestry” includes “sibling or familial status” under the Act. In contrast, the CCDC argues that “ancestry employment discrimination protection has never been extended to ‘siblings‘” and that West Virginia law does not recognize “familial status” in the employment law context, because “[f]amilial status is simply not the kind of innate characteristic that anti-discrimination laws like the West Virginia Human Rights Act were enacted to protect.”
First, it is clear that the Legislature did not expressly designate “familial status” as a basis for discrimination in the employment context. In relevant part,
Next, we examine petitioners’ claim that even though familial status is not expressly included in the Act for purposes of employment discrimination, it is encompassed within the term “ancestry” which is undefined in the Act. See W. Va. Inst. of Tech. v. W. Va. Hum. Rts. Comm‘n, 181 W. Va. 525, 529, n.6, 383 S.E.2d 490, 494 n.6 (1989) (“We note that
Applying the above-mentioned principles of statutory construction, the plain, ordinary meaning of the word “ancestry” is defined as “[a] line of descent; collectively, a person‘s forebears; lineage.” Ancestry, Black‘s Law Dictionary (11th ed. 2019); see also Ancestry, Webster‘s New World College Dictionary (5th ed. 2014) (“family descent or lineage.“). Here, petitioners’ attempt to shoehorn their claims into this basic definition of “ancestry” must fail because siblings are not lineal descendants. More broadly stated, where family status does not involve lineal descent, it does not fall within the protected class of “ancestry” in the context of employment discrimination,
Further, contrary to the petitioners’ argument that ancestry must be viewed separately and distinctly from the other protected classes set forth in the Act,7 we cannot look at the term “ancestry” in isolation to ascertain its meaning “but it must be drawn from the context in which it is used.” W. Va. Health Care Cost Rev. Auth., 196 W. Va. at 338, 472 S.E.2d at 423. The United States District Court for the Southern District of
First, the district court acknowledged that “West Virginia‘s Human Rights Act does not define the word ‘ancestry,’ nor does any decision of the West Virginia Supreme Court of Appeals.” Id. at *6. Further, the court rejected arguments that ancestry was identical to ethnicity or national origin, finding that it did “not believe that the including of ‘ancestry’ in the Human Rights Act is merely redundant or meaningless.” Id.
The district court turned to the constructs established by this Court in Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152 (1995) (discussing аlleged discrimination based on “Native American ancestry“), and Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W. Va. 86, 522 S.E.2d 180 (1999) (discussing alleged discrimination based on “Mexican-American ancestry“), which the court described as “suggest[ing] that ancestry is a meaningful part of the act. Discrimination based on ancestry means discrimination based on some type of characteristic like race, ethnicity, or national origin that is passed down by lineal ascendants.‘” 2020 WL 5646901, at *6. The court relied upon the following analysis by this Court in Fairmont Specialty Services:
In Fairmont Specialty Services, the West Virginia Supreme Court of Appeals upheld an award to a plaintiff who alleged harassment based on her ancestry. Fairmont Specialty Servs., 522 S.E.2d at 183. Specifically, the plaintiff was “a United States citizen of Mexican ancestry.” Id. at 184. There the plaintiff complained that a coworker made derogatory remarks relating to her being “a Mexican,” Id. at 183-88. The Court explicitly discussed how this is the kind of language that is actionable under the anti-discrimination laws like the Human Rights [Act]. Id. at 188.
Conduct such as use of the “N” word to describe an African-American, the “C” word to describe women, the terms “Sic,” “W.P.” or “Jap” to describe those of other ancestral heritages, or other racial, sexual or ethnic pseudonym, intended to denigrate others, cannot be tolerated in the workplace. They are the type of outrageous discriminatory conduct that may be considered to be of an aggravated nature such that the threshold for it to be actionable is much lower than more subtle forms of discrimination which cumulatively cause conduct to be actionable under the Human Rights Act.
This kind of actionable discrimination relates to innate characteristics that are shared by a class of persons. This can be seen in the othеr protected classes under the West Virginia Human Rights Act.
W.Va. Code § 5-11-2 (“Equal opportunity in the areas of employment and public accommodations is hereby declared to be a human right or civil right of all persons without regard to race, religion, color, national, origin, ancestry, sex, age, blindness or disability.“).
Billiter, 2020 WL 5646901, at *7.
The district court in Billiter, citing the same principles of statutory construction that we now apply, determined that “the meaning of ‘ancestry’ should be understood to mean something akin to the words surrounding it, the other grounds upon which discrimination
In light of the foregoing, we hold that as used in the West Virginia Human Rights Act,
B. Implied Contract
The petitioners’ remaining assignments of error overlap and are repetitive. They argue that the circuit court erred: 1) in finding that the Employment Guide did not form a contract between the petitioners and the CCDC, 2) in holding that even if a contract had been formed, the CCDC was within its rights to terminate them pursuant to other terms of the Employment Guide; and 3) in finding that the petitioners were at-will employees who could be terminated for any nondiscriminatory reason. At its core, the petitioners contend that that they were not at-will employees because the Employment Guide created an implied contract between them and the CCDC that prevented the CCDC from terminating them without following the progressive disciplinary policies set forth in the Employment Guide.10 Conversely, the CCDC argues that the petitioners were at-will employees who could be terminated for any nondiscriminatory reason and who cannot prevail on their breach of contract theory.
“In West Virginia, the law presumes employment to be terminable at will.” Suter v. Harsco Corp., 184 W. Va. 734, 737, 403 S.E.2d 751, 754 (1991); see Williams v. Precision Coil, Inc., 194 W. Va. 52, 63, 459 S.E.2d 329, 340 (1995) (“As a general rule, West Virginia law provides that the doctrine of employment-at-will allows an employer to discharge an employee for good reason, no reason, or bad reason without incurring liability unless the firing is otherwise illegal under state or federal law.“). Further, the petitioners have the burden to defeat the presumption of at-will employment. Suter, 184 W. Va. at 737, 403 S.E.2d at 754 (“The burden is on the party contending that the relationship was other than terminable at will to rebut the presumption of employment terminable at will.“). A “party asserting that an employment was other than at-will bears the burden of rebutting the at-will presumption.” Younker v. E. Associated Coal Corp., 214 W. Va. 696, 700, 591 S.E.2d 254, 258 (2003). This burden is heavy one that must be established by clear and convincing evidence, as we held in syllabus three of Adkins v. Inco Alloys Int‘l, Inc., 187 W. Va. 219, 417 S.E.2d 910 (1992): “Where an employee seeks to establish a permanent employment contract or other substantial employment right, either through an express promise by the employer or by implication from the employer‘s personnel manual, policies, or custom and practice, such claim must be established by clear and convincing evidence.” Id. In regard to the at-will employee presumption, we explained in Suter that
[i]f the presumption in West Virginia were against employment terminable at will, an employеr seeking to create an employment at will relationship would have to disclaim guarantees of job security in a very bold and definite way, perhaps with language such as “Employees serve at the will and pleasure of the employer and can be fired at any time and without any notice, for any reason or no reason at all.” However, because we operate on the opposite presumption—that is, that every employment relation is terminable at will, any promises alleged to alter that presumptive relationship must be very definite to be enforceable.
184 W. Va. at 737, 403 S.E.2d at 754.
Here, the petitioners acknowledge the at-will employment status presumption. See Mace v. Charleston Area Med. Ctr. Found., Inc., 188 W. Va. 57, 63, 422 S.E.2d 624, 630 (1992) (“In West Virginia, the law presumes that employment is terminable at will, permitting an employer to discharge an employee for cause, for no cause, or even for wrong cause.“). However, they argue that an implied contract existed between them and the CCDC due to “the various rights created by the handbook for [the CCDC‘s] employees, particularly those protecting its employees from dismissal without following handbook procedures, . . . coupled with the CCDC handbook‘s promises regarding the terms and conditions of Petitioners’ employment[.]”
The parties do not dispute that “an employee handbook may form the basis of a unilateral contract if there is a definite promise therein by the employer not to discharge covered employees except for specified reasons.” Syl. Pt. 6, Cook v. Heck‘s Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986); accord Williams, 194 W. Va. at 56, 459 S.E.2d at 333, Syl. Pt. 5; see Cook, 176 W. Va. at 369, 342 S.E.2d at 454, Syl. Pt. 3 (“Contractual provisions relating to discharge or job security may alter the at will status of a particular employee.“). Further,
[a] promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee‘s continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer‘s promise binding and enforceable.
Id. at 369, 342 S.E.2d at 454, Syl. Pt. 5 (emphasis added); accord Williams, 194 W. Va. at 56, 459 S.E.2d at 333, Syl. Pt. 4. However, “[a]n employee handbook which contains a clear and conspicuous disclaimer of job security will preserve the at-will status of the employment relationship.” Mace, 188 W. Va. at 59, 422 S.E.2d at 626, Syl. Pt. 8. Further, “[a]n employer may protect itself from being bound by any and all statements in an employee handbook by placing a clear and prominent disclaimer to that effect in the handbook itself.” Suter, 184 W. Va. at 735, 403 S.E.2d at 752, Syl. Pt. 5.
Based on our careful review of the petitioners’ evidence, we agree with the circuit court‘s conclusion that the petitioners failed to carry their burden of proving the еxistence of an implied employment contract between them and the CCDC. The language of the Employment Guide contains neither a promise of job security nor a term of employment. To the contrary, the Employment Guide specifically provides the following in regard to “Tenure of Employment“: “As most Federal/State Funds are appropriated on a yearly basis, no guarantee of employment can be made beyond the grant period.” Further, and significantly, on the third page of the Employment Guide is the following language: “Note-Receipt of this Employment Manual does not constitute an employment contract with this agency.”
In consideration of the foregoing, we find that that the circuit court did not err in its determination that the language of the Employment Guide failed to support the petitioners’ claim that the language formed an implied employment contract. See Syl. Pt. 2, iPacesetters, LLC v. Douglas, 239 W. Va. 820, 806 S.E.2d 476 (2017) (“‘It is the province of the court, and not of the jury, to interpret a written contract.’ Syl. Pt. 1, Stephens v. Bartlett, 118 W. Va. 421, 191 S.E. 550 (1937).“).
Further, the petitioners failed to carry their burden by not producing any other facts tending to show that an implied contract existed. In this regard, it is undisputed that the petitioners had a copy of the Employment Guide and that neither petitioner, when questioned during their respective depositions, denied the existence of the disclaimer language in the Employment Guide.11 Also, when specifically questioned, neither petitioner could identify any language in the Employment Guide upon which they respectively relied to support their claim that an employment contract existed between them and the CCDC.
The parties agree that the petitioners “did not commit any offense that would lead to immediate termination as identified in the Guide[.]” However, the petitioners failed to produce any evidence to refute the CCDC‘s evidence that they were involuntarily terminated under the “Insufficient Funding and Reorganization and Discontinuance of a Particular Position or Area of Service” categories within the “Positive Dismissal” section in the Employment Guide because their termination arose out of circumstances beyond their control, i.e., the CCDC‘s financial situation. The petitioners’ positions were dissolved, their work duties were easily absorbed by others, and the dissolution of their positions resulted in a savings to thе nonprofit organization in excess of $115,000.00 per year. Additionally, Ms. Duffield, then-CCDC Executive Director, testified as the CCDC‘s 30(b) designated representative that the petitioners were terminated because they “were at-will employees. And our agency had to make some tough decisions. We were a quarter of a million dollars in debt and we had to terminate the positions that were the most easily absorbed. We had to make some tough decisions.” Ms. Duffield further explained that the petitioners did not have as many duties and responsibilities as most of the other employees, and therefore their jobs were easily absorbed. Ms. Duffield confirmed that the petitioners’ dissolved positions were never reconstituted. Critically, the petitioners failed to offer any evidence to rebut Ms. Duffield‘s testimony, Ms. McGlothlin‘s affidavit, or the CCDC‘s position in regard to their termination. Tо the contrary, the petitioners testified that they had no knowledge of the financial condition of the CCDC.
In short, the petitioners provided no evidence to support their claim that they were not at-will employees. See Adkins, 187 W. Va. at 220, 417 S.E.2d at 911, Syl. Pt. 3. Thus, they have failed to prove by clear and
IV. Conclusion
For the foregoing reasons, the circuit court‘s March 5, 2021, order granting summary judgment to the CCDC and dismissing the case from the court‘s docket is affirmed.
Affirmed.
Notes
Eunice Thomas, CCDC Board President, advised Robert Roswall, Commissioner West Virginia Bureau of Senior Services and Romona Stanley, Executive Director Appalachian Area Agency on Aging, in writing on November 14, 2016, that the CCDC “was at a crossroad” and asked their assistance and guidance related to the actions and conduct of its then suspended Executive Director.
Petitioner Asbury also recounted that during this meeting Mr. Roswall called Ms. Thomas and yelled at her to get out of the meeting immediately because she had no business speaking with petitioner Asbury. Ms. Thomas replied that she had spoken with the attorney for the Board of Directors for the CCDC, Andrew Brison, who had told her she could speak with petitioner Asbury to offer the arrangement mentiоned above.
Critically, while the petitioners rely upon this testimony to demonstrate the CCDC‘s intent to terminate them because of their relationship with their sister, Ms. Taylor, neither Mr. Roswall nor his staff, who interviewed various CCDC employees as part of their investigation and monitoring of the CCDC, were employees of the CCDC or otherwise affiliated with the CCDC. Further, the petitioners failed to provide any evidence or law to support the notion that Mr. Roswall‘s actions and conduct in the exercise of his State-mandated official duties as the Bureau‘s Commissioner could be imputed to the CCDC.
Syl. Pt. 3, Conaway v. E. Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986).[i]n order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act,
W.Va. Code § 5-11-1 et seq. (1979) , the plaintiff must offer proof of the following:(1) That the plaintiff is a member of a protected class.
(2) That the employer made an adverse decision concerning the plaintiff.
(3) But for the plaintiff‘s protected status, the adverse decision would not have been made.