W.Va. Division of Natural Resources v. Steven Dawson and Angela Dawson ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term FILED
_____________ June 3, 2019
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 18-0026 SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
WEST VIRGINIA DIVISION OF NATURAL RESOURCES,
JERRY JENKINS, BRADFORD DEBORD, AND STEPHEN ANTOLINI,
Defendants Below, Petitioners
V.
STEVEN DAWSON AND ANGELA DAWSON,
Plaintiffs Below, Respondents
________________________________________________
Appeal from the Circuit Court of Hampshire County
The Honorable C. Carter Williams, Judge
Civil Action No. 15-C-80
AFFIRMED, IN PART; REVERSED, IN PART; AND
REMANDED
________________________________________________
Submitted: March 13, 2019
Filed: June 3, 2019
Keith C. Gamble Jerry D. Moore
Nathan A. Carroll Jared T. Moore
Pullin, Fowler, Flanagan, Brown & The Moore Law Firm, PLLC
Poe, PLLC Franklin, West Virginia
Morgantown, West Virginia Attorneys for the Respondents
Attorneys for the Petitioners
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘A circuit court’s denial of summary judgment that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under
the “collateral order” doctrine.’ Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d
660 (2009).” Syllabus point 1, City of Saint Albans v. Botkins, 228 W. Va. 393, 719 S.E.2d
863 (2011).
2. “‘This Court reviews de novo the denial of a motion for summary
judgment, where such a ruling is properly reviewable by this Court.’ Syllabus Point 1,
Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002).”
Syllabus point 2, West Virginia State Police v. Hughes, 238 W. Va. 406, 796 S.E.2d 193
(2017).
3. “The ultimate determination of whether qualified or statutory
immunity bars a civil action is one of law for the court to determine. Therefore, unless
there is a bona fide dispute as to the foundational or historical facts that underlie the
immunity determination, the ultimate questions of statutory or qualified immunity are ripe
for summary disposition.” Syllabus point 1, Hutchison v. City of Huntington, 198 W. Va.
139, 479 S.E.2d 649 (1996).
i
4. “‘In the absence of an insurance contract waiving the defense, the
doctrine of qualified or official immunity bars a claim of mere negligence against a State
agency not within the purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29-12A-1 et seq., and against an officer of that
department acting within the scope of his or her employment, with respect to the
discretionary judgments, decisions, and actions of the officer.’ Syl. Pt. 6, Clark v. Dunn,
195 W. Va. 272, 465 S.E.2d 374 (1995).” Syllabus point 7, West Virginia Regional Jail &
Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
5. “To the extent that governmental acts or omissions which give rise to
a cause of action fall within the category of discretionary functions, a reviewing court must
determine whether the plaintiff has demonstrated that such acts or omissions are in
violation of clearly established statutory or constitutional rights or laws of which a
reasonable person would have known or are otherwise fraudulent, malicious, or oppressive
in accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992).
In absence of such a showing, both the State and its officials or employees charged with
such acts or omissions are immune from liability.” Syllabus point 11, West Virginia
Regional Jail & Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751
(2014).
6. “If the plaintiff identifies a clearly established right or law which has
been violated by the acts or omissions of the State, its agencies, officials, or employees, or
ii
can otherwise identify fraudulent, malicious, or oppressive acts committed by such official
or employee, the court must determine whether such acts or omissions were within the
scope of the public official or employee’s duties, authority, and/or employment. To the
extent that such official or employee is determined to have been acting outside of the scope
of his duties, authority, and/or employment, the State and/or its agencies are immune from
vicarious liability, but the public employee or official is not entitled to immunity in
accordance with State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992)
and its progeny. If the public official or employee was acting within the scope of his duties,
authority, and/or employment, the State and/or its agencies may be held liable for such acts
or omissions under the doctrine of respondeat superior along with the public official or
employee.” Syllabus point 12, West Virginia Regional Jail & Correctional Facility
Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).
7. “A government employer implicates its employee’s liberty interest in
his/her good name when the following elements are alleged: (1) a stigmatizing statement;
(2) which was false; (3) was published, or made accessible to the public; (4) in connection
with a serious adverse employment action. When these elements are met, the employee
must be afforded procedural safeguards under Article III, Section 10 of the West Virginia
Constitution.” Syllabus point 6, West Virginia Department of Education v. McGraw, 239
W. Va. 192, 800 S.E.2d 230 (2017).
iii
Jenkins, Justice:
The Petitioners, the West Virginia Division of Natural Resources (“the
DNR”); and Jerry Jenkins (“Col. Jenkins”),1 Bradford DeBord (“Maj. DeBord”),2 and
Stephen Antolini (“Sgt. Antolini”)3 (collectively “the DNR employees”), appeal a
December 8, 2017 order of the Circuit Court of Hampshire County that denied their motion
for summary judgment on the ground of qualified immunity. In the underlying civil action
filed by Respondent, Steven Dawson (“Mr. Dawson”)4, Mr. Dawson alleged that his former
employer, the DNR, and its employees, Col. Jenkins, Maj. DeBord, and Sgt. Antolini,
“committed alleged acts of defamation, false light, infringement of a liberty interest
without due process, and reckless infliction of emotional distress, along with claims of loss
of consortium and punitive damages.” On the DNR’s and the DNR employees’ motion for
summary judgment asserting qualified immunity, the circuit court found that there is a
genuine issue of material fact as to whether Mr. Dawson’s liberty interest was implicated,
and, if so, whether he was afforded due process; whether the DNR and the DNR employees
were in violation of Mr. Dawson’s clearly established rights of which a reasonable person
1
Col. Jenkins was sued in the underlying matter individually and in his
capacity as Colonel and Chief of the Law Enforcement Section of the DNR.
2
Maj. DeBord was sued in the underlying matter individually and in his
capacity as Major and Coordinator of the Law Enforcement Section of the DNR.
3
Sgt. Antolini was sued in the underlying matter individually and in his
capacity as Sergeant of the Law Enforcement Section of the DNR.
4
In the underlying matter, Mr. Dawson’s wife, Angela Dawson, was also a
named plaintiff. Mr. and Mrs. Dawson are also both named parties in this appeal; therefore,
Mr. and Mrs. Dawson will be referred to collectively as “the Dawsons.”
1
would have known; whether the DNR and the DNR employees acted maliciously in their
investigation of Mr. Dawson; and whether the actions of the DNR employees were within
the scope of their employment.
On appeal, the DNR and the DNR employees raise the following issues: (1)
the circuit court erred by failing to find qualified immunity because (a) there is no evidence
of a violation of any clearly established statutory or constitutional right or law of which a
reasonable person would have known, and (b) there is no evidence of conduct on behalf of
the DNR and the DNR employees that could be characterized as fraudulent, malicious, or
oppressive; (2) no genuine issues of material fact existed, and no reasonable juror could
find the DNR employees acted outside their official capacity as DNR officers; and (3) the
circuit court improperly found that the DNR and the DNR employees’ motion for summary
judgment, filed after the close of discovery, was inconsistent with the provisions of Maston
v. Wagner, 236 W. Va. 488, 781 S.E.2d 936 (2015), which encourages a ruling on qualified
immunity early in the proceedings.
Having considered the briefs submitted on appeal, the appendix record, the
parties’ oral arguments, and the applicable legal authority, we find no error in the circuit
court’s decision that there are genuine issues of material fact as to whether the DNR and
the DNR employees’ acts or omissions were fraudulent, malicious, or oppressive and
whether the individual DNR employees acted outside of their scope of employment. We
further find no error in the circuit court’s findings regarding the timing of the motion for
2
summary judgment. Therefore, we affirm as to those three issues. However, we find that
the Dawsons cannot demonstrate a violation of a clearly established statutory or
constitutional right or law of which a reasonable person would have known. Accordingly,
we reverse the circuit court’s decision as to that issue and direct the circuit court to enter
summary judgment in favor of the DNR and the DNR employees as to that issue only and
remand for further proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
In summer 2014, the DNR was investigating the offenses of illegal bear
hunting and prohibited driving of motor vehicles within the Nathanial Mountain Wildlife
Management Area (“WMA”) in Hampshire County, West Virginia. Mr. Dawson was
employed by the DNR as a natural resources police officer. Although Mr. Dawson was
assigned to Hardy County, West Virginia, he assisted the Hampshire County investigation
at the request of DNR Officer Terry Srout (“Officer Srout”). On September 7, 2014,
Officer Srout and Mr. Dawson placed two game-trail cameras in the WMA.5 The cameras
were set along trails where they believed there was illegal driving activity. Officer Srout
and Mr. Dawson retrieved the cameras on September 21, 2014. One camera, a Moultrie-
brand camera (the “Moultrie Camera”), contained eleven photos that showed two vehicles:
5
There was a third camera also set up that same day; however, it is not
significant for the purposes of this appeal.
3
(1) a gray/silver Dodge truck, that the investigating officers determined belonged to Ralph
Buckley, and (2) a white Sport Utility Vehicle. Upon inspection of the second camera, a
Bushnell-brand camera (the “Bushnell Camera”), it was discovered that the memory card
was missing. However, upon further inspection, Officer Srout discovered that the Bushnell
Camera did contain twelve photos that were saved to the internal drive. The photos were
timestamped, but the dates and times did not correspond with the time the Bushnell Camera
had been deployed by Officer Srout and Mr. Dawson. According to the circuit court,
“[t]hese photos reveal a person very close to the lens of the camera, with the individual’s
clothing visible. It also appears that a hand is covering or shielding the camera lens.”
Mr. Dawson contends that he and other investigating officers believed that
the driver of the Dodge truck was Ralph Buckley and he stole the memory card from the
Bushnell Camera. They obtained a search warrant based upon that belief from the
Hampshire County Magistrate Court.6 Mr. Dawson had been the one to complete the
search warrant affidavit. Once Mr. Dawson obtained the search warrant, he and the other
investigating officers attempted to execute it at the Buckley residence; however, Ralph
Buckley was not home. Mr. Dawson then called Jeremy Buckley, Ralph Buckley’s son,
and informed him that he had a search warrant for Ralph Buckley’s property. Ralph
Buckley returned home and spoke to Mr. Dawson. At some point, Mr. Dawson had an
6
However, the circuit court noted that “[Mr.] Dawson has admitted herein
that, from the Bushnell photos, he cannot see the Buckley truck, Ralph or Jeremy Buckley
(Ralph’s son), an SD card, and/or anyone actually removing the card from the camera.”
4
opportunity to observe the bed of Ralph Buckley’s truck and discovered that the striations
of the truck bed were dissimilar to those captured by the Bushnell Camera. Because of this
observation, Mr. Dawson chose not to execute the search warrant and, instead, wrote Ralph
Buckley a ticket for driving in the WMA and conspiracy to drive within the WMA based
on the photographs retrieved from the Moultrie Camera. Mr. Dawson did not issue a
citation to Jeremy Buckley out of concern that it might affect his job as a federal
correctional officer.
On or about December 28, 2014, Ralph Buckley and his son, Jeremy
Buckley, filed a Professional Standards Unit (“PSU”) complaint against Mr. Dawson,
Officer Srout, and another officer involved in the acquisition of the search warrant. The
PSU complaint alleged that the officers failed to obey the laws governing DNR officers
and that Mr. Dawson used false information to obtain the search warrant. Sgt. Antolini, a
PSU investigator, was officially assigned to the investigation on January 8, 2015, by Maj.
DeBord.
The DNR and the DNR employees contend that Sgt. Antolini conducted a
thorough investigation from January 8, 2015 to February 7, 2015, including interviewing
Mr. Dawson twice; presenting Mr. Dawson with a copy of the PSU complaint; interviewing
the other officers named in the complaint, the complainants, and other witnesses; and
visiting the location where the cameras were installed. Sgt. Antolini concluded that there
was no evidence to support Mr. Dawson’s search warrant affidavit. Col. Jenkins then asked
5
Sgt. Antolini to conduct a supplemental investigation, and Sgt. Antolini interviewed Mr.
Dawson a third time. During that interview, evidence was again shown to Mr. Dawson,
questions were asked by Sgt. Antolini, and Mr. Dawson agreed to undergo a polygraph
examination. Sgt. James A. Hunt (“Sgt. Hunt”) of the Charleston Police Department was
engaged to conduct the polygraph examination of Mr. Dawson. The purpose of the exam
was to ascertain if Mr. Dawson intended to be deceptive when he applied for the subject
search warrant.
Sgt. Antolini’s supplemental report indicated that “Sgt. Hunt advised that a
polygraph examination to determine whether Officer Dawson had lied would not be
advisable due to the fact that an investigation had already been completed and sustained
the information on the search warrant as false.” The supplemental report also stated that
Sgt. Hunt had “further explained that a polygraph examination regarding Officer Dawson’s
intent at the time the search warrant was filed could be conducted even though that type of
test was not routinely done.”7 Sgt. Antoloni informed Sgt. Hunt that he would like to move
7
Sgt. Hunt stated in his report that he had informed Sgt. Antolini that “a
polygraph could not be given on the issue of whether Steven Dawson had lied when he
filed the search warrant due to an investigation proving he had.” Sgt. Hunt also stated in
his report that he informed Sgt. Antolini that a polygraph “could be conducted to determine
if [Mr.] Dawson intended to lie[.]” However, “[a] polygraph regarding a person’s
intentions are not typically given, because a deception test of one’s intent is not a valid test
through the American Polygraph Association (APA.).” Furthermore Sgt. Hunt’s report
stated that “[t]his examination should not be used for any legal standing since a polygraph
on one’s intent is not a valid issue.”
6
forward with the polygraph examination. Sgt. Hunt performed the polygraph “[d]ue to
requests from both the accused, and a party of interest[.]” Sgt. Hunt concluded that Mr.
Dawson’s responses regarding his intent yielded “consistent and significant responses
indicative of deceptive responses.” Mr. Dawson resigned his employment immediately
following the administration of the polygraph test.
After completing the supplemental investigation, the DNR and the DNR
employees concluded that Mr. Dawson knowingly provided false or misleading
information in an affidavit for a search warrant. On April 20, 2015, Maj. DeBord wrote to
Jeremy Buckley concerning the results of the complaint and informed him that the
complaint was sustained and that appropriate action had been taken. According to the
Dawsons, once Jeremy Buckley received the letter, news of Mr. Dawson’s falsification of
evidence in a search warrant affidavit spread quickly throughout the law enforcement
community and community at large.
On May 18, 2015, Mr. Dawson filed a grievance with the West Virginia
Public Employee’s Grievance Board pursuant to West Virginia Code § 6C-2-1 (LexisNexis
2015). Mr. Dawson sought exoneration of the charge that he had falsified a search warrant
(. . . continued)
Nevertheless, later in the underlying litigation, Sgt. Hunt stated in an
affidavit that, based on his training, experience, and education, Mr. Dawson’s “polygraph
produced valid, accurate, and reliable results.”
7
affidavit and removal of the finding from his personnel file. Specifically, Mr. Dawson
argued that he was constructively discharged and sought a rescission of his resignation.
The grievance was denied at Level One, and a Level Two mediation session was
unsuccessful. Mr. Dawson appealed to Level Three, and a hearing was held on September
29, 2016. The final decision of the Grievance Board Administrative Law Judge was issued
on December 14, 2016. The Grievance Board determined that numerous provisions of
General Order No. 58 had been violated; directed Mr. Dawson to be reinstated to his
previous position with back pay and interest, seniority, and benefits;9 and ordered the DNR
to expunge all negative, unprofessional, or detrimental information contained in Mr.
Dawson’s personnel file arising from the PSU complaint. No appeal of this decision was
ever taken by the DNR.10
During the course of the grievance proceedings, on August 5, 2015, the
Dawsons filed their initial complaint against the DNR and the DNR employees11 alleging
defamation, false light, infringement of liberty interest without due process, reckless
8
General Order No. 5 is a written, internal investigation policy of the DNR.
9
Mr. Dawson gave his two weeks’ notice of his intent to resign from his
employment on the day he returned to employment with the DNR.
10
West Virginia Code § 6C-2-5 (LexisNexis 2015) provides for the ability
to appeal the decision of the administrative law judge to the Circuit Court of Kanawha
County.
11
The complaint was also filed against Jeremy Buckley; however, Mr.
Buckley is not a party to this appeal.
8
infliction of emotional distress, and loss of consortium, and seeking both compensatory
and punitive damages. On June 2, 2016, the circuit court entered an order staying the
circuit court action to allow the resolution of the grievance proceedings. Following the
decision of the Grievance Board, the Dawsons moved to amend their complaint to add an
additional count of misrepresentation against Sgt. Antolini, and the circuit court granted
the motion to amend. Thereafter, the DNR and the DNR employees filed a motion to
dismiss the amended complaint for failure to state a claim upon which relief can be
granted.12 The circuit court granted, in part, the motion to dismiss the amended complaint
by dismissing the Dawsons’ claim for punitive damages against the DNR and the DNR
employees, but denied the motion to dismiss as to all other claims.
Once discovery was closed, the DNR and the DNR employees filed a motion
for summary judgment on the basis of, among others, qualified immunity; and, after a
hearing on September 7, 2017, the circuit court asked the parties to submit supplemental
briefing on the issue of qualified immunity. On December 8, 2017, the circuit court denied
the motion for summary judgment. The circuit court observed that, despite the DNR and
the DNR employees’ assertion that Sgt. Antolini conducted a proper and thorough
investigation, the DNR chose not to appeal the Grievance Board decision, which found that
the investigation violated numerous provisions of General Order No. 5. The circuit court
also noted that the Grievance Board decision found that Sgt. Antolini mischaracterized the
12
This motion to dismiss was not based upon qualified immunity principles.
9
validity of the polygraph examination. Additionally, the circuit court found that a clear
reading of Sgt. Antolini’s report suggests that the DNR determined that Mr. Dawson
committed the crime of false swearing, although the DNR never pursued any criminal
charges against Mr. Dawson for the alleged offense.
The circuit court took notice of the findings of the Grievance Board decision,
where the Board found that “[t]here can be little question under the circumstances of this
case that [Mr. Dawson’s] resignation was involuntary” and ruled that “[a] finding that a
law enforcement officer made false statements in an affidavit is a potential career ending
event. But for the failure of the [DNR] to reach the correct decision in the internal
investigation, [Mr. Dawson] would not have tendered his resignation.”
The circuit court further found that Mr. Dawson was entitled to due process
under General Order No. 5; the DNR and the DNR employees violated numerous
provisions of that order; and there was a genuine issue of material fact regarding the exact
number of violations of General Order No. 5. Heavily relying upon the Grievance Board
decision, the circuit court found the following potential violations of General Order No. 5:
(1) the DNR does not have a standard of proof to utilize to determine if a complaint should
be sustained; (2) the investigator failed to notify Mr. Dawson regarding the nature of the
complaint; (3) Sgt. Antolini failed to collect critical evidence, including the Bushnell
Camera; (4) Maj. DeBord did not make a recommendation concerning the investigation;
(5) interviews of potential witnesses were not recorded as required; and (6) an invalid
10
polygraph examination was administered, in spite of the fact that the test could not be used
for legal purposes. The circuit court also found that Col. Jenkins sustained the complaint
on the invalid polygraph, as Col. Jenkins admitted that he believed Mr. Dawson before the
polygraph was administered. As a result of these findings, the circuit court concluded that
there are genuine issues of material fact as to whether Mr. Dawson was afforded due
process and as to whether the DNR and the DNR employees’ acts or omissions were in
violation of Mr. Dawson’s clearly established constitutional rights, of which a reasonable
person would have known.
The circuit court also found that, due to the number of potential violations of
General Order No. 5 and Mr. Dawson’s testimony that the environment at the DNR was
hostile to him as a former law enforcement officer with the West Virginia State Police,
there was a genuine issue of material fact regarding whether the DNR and the DNR
employees’ actions were malicious or oppressive. The circuit court further found that there
is a genuine issue of material fact as to whether the DNR employees were acting within the
scope of their employment because of the potential numerous violations of General Order
No. 5. Ultimately, the circuit court concluded that “the record in this matter is laden with
genuine issues and questions of material fact underlying the immunity determination” and
denied the DNR and the DNR employees’ motion for summary judgment. The DNR and
the DNR employees now appeal the decision of the circuit court arguing that they are
entitled to qualified immunity from the Dawsons’ claims.
11
II.
STANDARD OF REVIEW
Ordinarily, an order denying a motion for summary judgment is interlocutory
and not appealable; however, this Court has explicitly recognized “‘[a] circuit court’s
denial of summary judgment that is predicated on qualified immunity is an interlocutory
ruling which is subject to immediate appeal under the “collateral order” doctrine.’ Syl. Pt.
2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009).” Syl. pt. 1, City of Saint
Albans v. Botkins, 228 W. Va. 393, 719 S.E.2d 863 (2011). Furthermore, “‘[t]his Court
reviews de novo the denial of a motion for summary judgment, where such a ruling is
properly reviewable by this Court.’ Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins.
Co., 213 W. Va. 80, 576 S.E.2d 807 (2002).” Syl. pt. 2, W. Virginia State Police v. Hughes,
238 W. Va. 406, 796 S.E.2d 193 (2017). This review, however, is guided by the following
principle regarding qualified immunity:
[t]he ultimate determination of whether qualified or
statutory immunity bars a civil action is one of law for the court
to determine. Therefore, unless there is a bona fide dispute as
to the foundational or historical facts that underlie the
immunity determination, the ultimate questions of statutory or
qualified immunity are ripe for summary disposition.
Syl. pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996). “In
this connection, it is the jury, not the judge, who must decide the disputed ‘foundational’
or ‘historical’ facts that underlie the immunity determination, but it is solely the prerogative
of the court to make the ultimate legal conclusion.” Id. at 149, 479 S.E.2d at 659.
“Accordingly, a circuit court may not summarily dispose of a claim on grounds of qualified
12
or statutory immunity where there is a genuine issue of material fact underlying the
immunity determination.” Maston v. Wagner, 236 W. Va. 488, 498, 781 S.E.2d 936, 946
(2015). Additionally, we “must draw any permissible inference from the underlying facts
in the light most favorable to the party opposing the motion.” Painter v. Peavy, 192 W. Va.
189, 192, 451 S.E.2d 755, 758 (1994) (citations omitted). Furthermore, when considering
evidence at the summary judgment stage, courts must apply the following guidelines:
The circuit court’s function at the summary judgment stage is
not to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.
Consequently, we must draw any permissible inference from
the underlying facts in the most favorable light to the party
opposing the motion. In assessing the factual record, we must
grant the nonmoving party the benefit of inferences, as
credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge. Summary judgment should be
denied even where there is no dispute as to the evidentiary facts
in the case but only as to the conclusions to be drawn
therefrom. Similarly, when a party can show that demeanor
evidence legally could affect the result, summary judgment
should be denied.
Williams v. Precision Coil, Inc., 194 W. Va. 52, 59, 459 S.E.2d 329, 336 (1995) (citations
and quotations omitted). With these standards in mind, we proceed to the parties’
arguments.
13
III.
DISCUSSION
While the DNR and the DNR employees raise four assignments of error, all
involve the basic legal structure of qualified immunity. Accordingly, we will begin by
reviewing this Court’s established qualified immunity principles. We have held that,
“[i]n the absence of an insurance contract waiving the
defense, the doctrine of qualified or official immunity bars a
claim of mere negligence against a State agency not within the
purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29-12A-1 et seq., and
against an officer of that department acting within the scope of
his or her employment, with respect to the discretionary
judgments, decisions, and actions of the officer.” Syl. Pt. 6,
Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).
Syl. pt. 7, W. Virginia Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d
751 (2014). Furthermore, this Court has held that,
[t]o the extent that governmental acts or omissions
which give rise to a cause of action fall within the category of
discretionary functions, a reviewing court must determine
whether the plaintiff has demonstrated that such acts or
omissions are in violation of clearly established statutory or
constitutional rights or laws of which a reasonable person
would have known or are otherwise fraudulent, malicious, or
oppressive in accordance with State v. Chase Securities, Inc.,
188 W. Va. 356, 424 S.E.2d 591 (1992). In absence of such a
showing, both the State and its officials or employees charged
with such acts or omissions are immune from liability.
Syl. pt. 11, A.B., 234 W. Va. 492, 766 S.E.2d 751.
In the case sub judice, it is undisputed that the DNR is a state agency and that
Col. Jenkins, Maj. DeBord, and Sgt. Antolini were DNR employees during the relevant
14
time period. It is further undisputed that the acts or omissions of the DNR and the DNR
employees at issue in this matter were discretionary.13 Therefore, the Dawsons may
overcome the DNR and the DNR employees qualified immunity protections by
demonstrating that these acts or omissions were in violation of a clearly established right
of which a reasonable person would have known or were otherwise fraudulent, malicious,
or oppressive. Additionally, even if these acts or omissions were in violation of a clearly
established right of which a reasonable person would have known or were otherwise
fraudulent, malicious, or oppressive, to determine whether the DNR, itself, retains its
immunity protections, it must be established whether the individual DNR employees were
acting outside the scope of their employment.
A. Clearly Established Right of which a Reasonable Person Would Have Known
There being no question that the acts or omissions of the DNR and the DNR
employees were discretionary, we first turn to the question of whether these alleged acts or
omissions could be in violation of a clearly established right of which a reasonable person
would have known. See Syl. pt. 11, A.B., 234 W. Va. 492, 766 S.E.2d 751. The sole clearly
established right asserted by the Dawsons and addressed by the circuit court below is the
13
See Taylor v. W. Virginia Dep’t of Health & Human Res., 237 W. Va. 549,
558-59, 788 S.E.2d 295, 304-05 (2016) (“For purposes of qualified immunity, this Court
has noted that ‘the broad categories of training, supervision, and employee retention . . .
easily fall within the category of “discretionary” governmental functions.’ W. [Virginia]
Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 514, 766 S.E.2d 751, 773
(2014).”).
15
infringement of a liberty interest without appropriate procedural due process protections.
The DNR and the DNR employees contend that no liberty interest was implicated, and,
even if it was, they did not violate the interest during the investigation of the PSU complaint
and/or the alleged violated right was not clearly established. On the other hand, the
Dawsons argue that there was an implicated liberty interest, that inadequate due process
procedural protections were in place, and that this right was clearly established at the time
of the DNR and the DNR employees’ actions.
The Dawsons assert that Mr. Dawson’s status as a state civil service
employee entitled him to a constitutionally protected liberty interest in his good name. We
apply a two-step inquiry to determine whether an employer infringed on its employee’s
liberty or property interest. First, we must determine if “the employee [has] a liberty or
property interest at stake[.]” W. Virginia Bd. of Educ. v. Marple, 236 W. Va. 654, 664, 783
S.E.2d 75, 85 (2015). If so, we must determine “how much process is he/she entitled [to
receive] under our Due Process Clause.” Id. Accordingly, we have to first determine
whether Mr. Dawson had a liberty interest at stake. We have previously recognized a
liberty interest in one’s good name. See Syl. pt. 2, Waite v. Civil Serv. Comm’n, 161
W. Va. 154, 241 S.E.2d 164 (1977), overruled on other grounds by W. Virginia Dep’t of
Educ. v. McGraw, 239 W. Va. 192, 800 S.E.2d 230 (2017) (“The ‘liberty interest’ includes
an individual’s right to freely move about, live and work at his chosen vocation, without
the burden of an unjustified label of infamy. A liberty interest is implicated when the State
makes a charge against an individual that might seriously damage his standing and
16
associations in his community or places a stigma or other disability on him that forecloses
future employment opportunities.”). This Court has recently further held that
[a] government employer implicates its employee’s
liberty interest in his/her good name when the following
elements are alleged: (1) a stigmatizing statement; (2) which
was false; (3) was published, or made accessible to the public;
(4) in connection with a serious adverse employment action.
When these elements are met, the employee must be afforded
procedural safeguards under Article III, Section 10 of the West
Virginia Constitution.
Syl. pt. 6, W. Virginia Dept. of Educ. v. McGraw, 239 W. Va. 192, 800 S.E.2d 230 (2017).
Therefore, if all four of these elements are satisfied, then an employee’s liberty interest in
his/her good name is implicated, and procedural safeguards must be provided.14
The DNR and the DNR employees argue that at least three of the four
elements are not satisfied: stigmatizing statement, publication, and adverse employment
action. Because we agree that there was no publication, we do not need to examine the
other three elements. The Dawsons allege that a publication occurred for two separate
reasons: (1) Mr. Dawson would have to abide by mandatory disclosures regarding the
14
To the extent our cases can be construed to give civil service employees a
liberty interest in continued government employment, see W. Virginia Dept. of Educ. v.
McGraw, 239 W. Va. 192, 199 n.23, 800 S.E.2d 237 n.23 (2017), those procedural
protections have also been afforded to Mr. Dawson in this case. Specifically, Mr. Dawson
received numerous opportunities to present evidence and explain himself during the three
interviews given prior to his resignation and during the Grievance Board hearing post-
termination. Moreover, it does not appear that he requested any further hearing prior to his
resignation that he was not provided, and the Grievance Board ultimately expunged this
sustainment from his employment records, cleared his name, and reinstated him to his
previous position.
17
sustainment of allegations that he falsified a search warrant affidavit if he participated in
any court proceedings in the context of his employment and (2) a disposition letter
regarding the complaints was sent to Jeremy Buckley following the sustainment. We are
not persuaded that either of these particular situations under this set of facts rises to the
level of what constitutes a publication of a stigmatizing statement15 as a matter of law in
the context of implicating a liberty interest in one’s good name.
As an initial matter, in determining whether a stigmatizing statement was
made public, it is important to examine the history of this Court’s case law on publication
in the context of violation of a liberty interest. In Syllabus point 2 of Waite, 161 W. Va.
154, 241 S.E.2d 164, we held that
[t]he “liberty interest” includes an individual’s
right to freely move about, live and work at his chosen
vocation, without the burden of an unjustified label of
infamy. A liberty interest is implicated when the State
makes a charge against an individual that might
seriously damage his standing and associations in his
community or places a stigma or other disability on him
that forecloses future employment opportunities.
In Freeman v. Poling, 175 W. Va. 814, 822, 338 S.E.2d 415, 423 (1985), we stated that
“[w]ithout a public disclosure of accusations against [the employee], he cannot claim that
15
On appeal, the Dawsons assert that the stigmatizing statement was the
underlying charge and labeling of Mr. Dawson “as dishonest by finding that he
intentionally inserted false information in an affidavit for [a] search warrant.” However,
we do not need to reach a decision on whether this was a stigmatizing statement because
we find there to be no publication in this case.
18
his ‘standing and associations in his community’ have been damaged.” (citations omitted).
Finally, in McGraw, 239 W. Va. at 195, 800 S.E.2d at 230, we explained that publication
was one of four elements necessary to actually implicate a government employee’s liberty
interest. Moreover, in McGraw, this Court explained that its rationale for the publication
element
is that if the statement is not made public, “it cannot properly
form the basis for a claim that the [employee’s] interest in his
‘good name, reputation, honor, or integrity,’ was . . . impaired.”
A statement about a government employee which is kept
private is not sufficiently likely to affect the employee’s good
name outside his/her work-world and thus form a proper basis
for a liberty interest violation.
McGraw, 239 W. Va. at 201, 800 S.E.2d at 239 (alteration in original) (footnote omitted).
Accordingly, as demonstrated by the above, the heart of the infringement of a liberty
interest in one’s good name is whether there was dissemination of a stigmatizing statement
that adversely affects an individual’s prospective employment.
We now need to examine the Dawsons’ two assertions of publication using
the above as a guidepost. The Dawsons first assert that “a finding that a law enforcement
officer falsified an affidavit unmistakably falls within the mandatory disclosure
requirements of Brady v. Maryland, 373 U.S. [83, 83 S. Ct. 1194, 10 L. Ed. 2d 215] (1963),
Giglio v. United States, 405 U.S. 150[, 92 S. Ct. 763, 31 L. Ed. 2d 104] (1972), and their
progeny whenever Dawson testified in later criminal cases.” The Dawsons further contend
that Mr. Dawson was “actually required to make such disclosures to criminal defendants[,]
19
and as such, his sustainment was publicized.”16 This assertion rests solely on Mr.
Dawson’s own compelled self-publication of his sustainment of the charges.
The Dawsons cite to no legal authority for their proposition that Mr.
Dawson’s own statements constitute publication. While our Court has not addressed the
issue of compelled self-publication, federal courts in West Virginia have. In Rice v.
Community Health Association, 40 F. Supp. 2d 783, 786 (S.D.W. Va. 1998), the plaintiff
raised a claim of compelled self-publication. Id. The Rice court noted that “West Virginia
courts have not addressed or recognized this issue of compelled self-publication” but that
the Fourth Circuit Court of Appeals had examined this issue. Id. After analyzing the
Fourth Circuit’s opinion, the Rice court rejected the “theory of defamation through
compelled self-publication.” Id. Accord Rice v. Rose & Atkinson, 176 F. Supp. 2d 585,
594 (S.D.W. Va. 2001), aff’d, 36 F. App’x 97 (4th Cir. 2002) (“This Court previously
rejected Plaintiff’s theory of defamation through compelled self-publication as a matter of
law.” (citation omitted)). See also Prater v. Henry Schein, Inc., 621 F. Supp. 2d 363, 371
(S.D.W. Va. 2008) (“If a West Virginia court were to address compelled self-publication,
this Court is far from convinced that it would adopt the doctrine.”).
16
We note that the deposition testimony that Mr. Dawson cites to only
indicates that Mr. Dawson told two attorneys that were working on criminal cases that he
had this sustainment. There is no indication that he actually testified in court regarding his
sustainment. Moreover, since that time the Grievance Board reinstated Mr. Dawson and
expunged his entire record relating to these events.
20
Furthermore, other jurisdictions have thoroughly considered this notion. The
majority of the cases that have discussed the doctrine of compelled self-publication do so
in the common law defamation context. See, e.g., Lewis v. Equitable Life Assurance Soc’y,
389 N.W.2d 876, 886-88 (Minn. 1986).17 That is not the case before us now, and even if
it were, the vast majority of courts have declined to utilize or adopt this doctrine. See, e.g.,
Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir. 1994) (“Since [compelled self-
defamation] is a minority view, and a very questionable one—it makes it impossible for an
employer to communicate his grounds for discharging an employee to the employee even
confidentially without incurring a grave risk of being sued for defamation[.]”).18
Additionally, even in the minority of jurisdictions that have adopted the
doctrine of compelled self-publication, courts have distinguished utilizing it in the liberty
interest context. For example, in Phillips v. State, 725 N.W.2d 778, 785 (Minn. Ct. App.
2007), the court noted that “Minnesota has recognized the doctrine of compelled self-
publication, but only as it relates to defamation actions.” (citation omitted). However, the
Phillips court held that, “in Minnesota, the doctrine of compelled self-publication as it
relates to separation from employment is limited to defamation actions and does not
17
However, after Lewis was decided, the Minnesota legislature limited the
Lewis court’s holding. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 580 n.1 (Tex.
2017) citing Minn. Stat. Ann. § 181.933(2).
18
Additionally, “[n]umerous federal courts applying state law have also
rejected a cause of action for compelled self-defamation.” Emery v. Ne. Illinois Reg’l
Commuter R.R. Corp., 880 N.E.2d 1002, 1011 (Ill. App. 2007) (citing cases).
21
support a claim alleging violation of a liberty interest.” Id. (citation omitted). The Phillips
court was persuaded by the federal courts reasoning “that [the] doctrine of compelled self-
publication ‘is inconsistent with the fundamental principle of mitigation of damages’
because likelihood of self-publication is speculative and applying [the] doctrine in [a] due
process context would encourage plaintiffs to unnecessarily publish to increase
damages[.]” Id. (quoting Olivieri v. Rodriguez, 122 F.3d 406, 408-09 (7th Cir. 1997)).19
Accordingly, as a matter of law, we are not persuaded that Mr. Dawson’s alleged compelled
self-publication constitutes a publication that would infringe upon his liberty interest in his
own good name.
Second, the Dawsons assert that the DNR and its employees “sent Jeremy
Buckley, a member of the public, a disposition letter advising that his complaints against
[Mr.] Dawson had been sustained.”20 The Dawsons further assert that the DNR and its
19
The Seventh Circuit also noted that the doctrine of compelled self-
publication is “largely discredited” and that “[m]ost states . . . reject self-defamation as a
basis for a tort claim, and it would be odd for federal constitutional law to embrace this
questionable doctrine.” Olivieri v. Rodriguez, 122 F.3d 406, 408-09 (7th Cir. 1997).
20
The entirety of the letter read as follows:
Dear Mr. Buckley:
I have received the results of the Internal Affairs Unit
Investigation in the matter of the conduct of NRPO Steven
Dawson. This investigation was initiated as a result of the
complaint filed by you, which was received on January 5,
2015.
22
employees “did not request for the disposition to remain confidential.” Once again, the
Dawsons cite to absolutely no legal authority for the proposition that this particular conduct
constitutes a publication regarding a violation of one’s liberty interest in his good name.
While this Court has not yet defined particular conduct that demonstrates
exactly what constitutes a publication in the context of an infringement of a liberty interest
in one’s good name, a review of other jurisdictions and how they have examined the issue
of publication is instructive. Other courts have noted that “[t]he distinction between mere
defamation and an infringement of liberty of occupation is merely one of degree, especially
when the defamation relates to a person’s fitness for a particular type of employment, but
it is a distinction to which the courts are committed.” Olivieri, 122 F.3d at 408. See also
Aitken v. Reed, 949 P.2d 441, 447-48 (Wash. App. 1998) (“The constitutional liberty
interest in one’s good name is different from a general defamation claim—the publication
(. . . continued)
A thorough review of the facts surrounding the incident has
supported your allegation. The complaint has been closed as
sustained, and the appropriate action has been taken.
If you have any questions, you may contact me at (XXX)
XXX-XXX.
BY DIRECTION OF THE CHIEF
COLONEL JERRY B. JENKINS
Major B.C. DeBord, Coordinator
LES Internal Investigations and Inquiries
23
must prevent one from obtaining future employment, not merely damage one’s reputation.
Ratliff v. City of Milwaukee, 795 F.2d 612, 627 (7th Cir.1986); Waddell v. Forney, 108
F.3d 889, 896 (8th Cir.1997).”). In other words, while the issues of defamation and
infringement of employment liberty interests are similar in nature, each has its own
distinctions that must be kept in mind and that what might constitute a publication is
different for defamation than for a violation of a liberty interest. Essentially, publication
in the liberty interest context is a higher burden than in the defamation context. See Potter
v. Bd. of Regents of the Univ. of Nebraska, 844 N.W.2d 741, 751 (Neb. 2014) (footnote
omitted) (“[M]ore is required to allege the necessary level of defamation and dissemination
in a stigma-plus due process claim than the kind of damage to reputation sufficient for a
simple tort defamation claim.”). See also Ratliff, 795 F.2d at 627 (“In a common law
defamation action, any publication of false and defamatory material might be sufficient,
but in the context of the liberty interest protected by the Fourteenth Amendment, [the
plaintiff] was required to show broader publication.”).
Notably, other courts have found it difficult to pinpoint what exactly
constitutes a publication in the context of a violation of a liberty interest:
The purpose of the requirement is to limit a constitutional
claim to those instances where the stigmatizing charges made
in the course of discharge have been or are likely to be
disseminated widely enough to damage the discharged
employee’s standing in the community or foreclose future job
opportunities. In determining the degree of dissemination that
satisfies the “public disclosure” requirement, we must look to
the potential effect of dissemination on the employee’s
standing in the community and the foreclosure of job
24
opportunities. As a result, what is sufficient to constitute
“public disclosure” will vary with the circumstances of each
case.
Brandt v. Bd. of Co-op. Educ. Servs., Third Supervisory Dist., Suffolk Cty., N.Y., 820 F.2d
41, 44 (2d Cir. 1987).
Here, the record before us demonstrates no evidence that the act of giving
this vague, one-page letter to the person who made the initial complaint foreclosed any
employment opportunities that may have otherwise been available to Mr. Dawson.21 The
substance of the letter in and of itself is only four sentences that essentially state that some
undescribed allegation has been sustained and that some undescribed appropriate action
has been taken. The disposition letter does not contain any direct statement that the
allegation sustained concerned falsifying a search warrant affidavit, and there were no other
documents attached, let alone documents that would show what allegation had been
sustained.22 Moreover, there are no allegations or evidence in the record that documents
were placed in Mr. Dawson’s personnel file that were detrimental to him.23 There also are
21
In fact, during his deposition, Mr. Dawson admitted that it is important for
an agency that has completed an investigation “to let the person who complained know the
resolution of the complaint[.]” Furthermore, General Order No. 5 § 2.4 provides that “[t]he
chief, or his/her designee, shall notify all concerned parties, as determined by the chief,
upon completion of the internal investigation.”
22
Additionally, Jeremey Buckley’s complaint alleged several allegations,
not just that Mr. Dawson falsified a search warrant affidavit. This letter is not clear as to
which allegation has even been sustained.
23
See Sciolino v. City of Newport News, Va., 480 F.3d 642, 650 (4th Cir.
2007) (“A plaintiff need not allege that his file has actually been disseminated to particular
25
no allegations or evidence in the record that demonstrate that the underlying investigative
documents, reports, or polygraph results were ever disseminated to anyone;24 that the DNR
or the DNR employees gave this letter to any prospective employers or that any prospective
employers even knew about the letter’s existence;25 that any prospective employers spoke
to the DNR or the DNR employees regarding any employment opportunities or the
prospective employers. But, he must allege more than that his file ‘may be available’ to
them. We thus hold that an employee must allege (and ultimately prove) a likelihood that
prospective employers (i.e., employers to whom he will apply) or the public at large will
inspect the file.”). See also Brandt v. Bd. of Co-op. Educ. Servs., Third Supervisory Dist.,
Suffolk Cty., N.Y., 820 F.2d 41, 45 (2d Cir. 1987) (“Courts of appeals for other circuits have
similarly concluded that the public disclosure requirement has been satisfied where the
stigmatizing charges are placed in the discharged employee’s personnel file and are likely
to be disclosed to prospective employers.” (citations omitted)).
24
See Buhr v. Buffalo Pub. Sch. Dist. No. 38, 509 F.2d 1196, 1199 (8th Cir.
1974) (“[W]here reasons for nonrenewal are announced publicly or are incorporated into a
record made available to prospective employers, such reasons may indeed affect the
dischargee’s chances of securing another job.”).
25
Mr. Dawson testified that he has not applied for any other employment
since he resigned from the DNR after the polygraph examination on April 1, 2015. He
further testified that he has been offered several employment positions since the
sustainment, including chief deputy in Hardy County, assistant chief of police in
Moorefield, a plainclothes investigator, and a private investigator. Mr. Dawson testified
that he voluntarily told these individuals offering employment about the PSU sustainment
and that there were some that still offered him the employment. However, he told each
employer that he could not accept the offers because of the Giglio disclosures. He further
stated that he does not apply for any employment because he would have to disclose his
sustainment. Moreover, Mr. Dawson testified that he has not tried to contact anyone for a
position since the Grievance Board ruling clearing his name of all allegations and
expunging all negative statements and documents retained by the DNR regarding this PSU
sustainment.
26
sustainment;26 or that the letter was sent to a news media outlet or public forum.27 Thus,
we find under the particular facts and narrow circumstances of this case that the
dissemination of the disposition letter to Jeremey Buckley, the initial complainant, does
not constitute publication. Because one essential element, publication, is not satisfied, Mr.
Dawson cannot show that his liberty interest was implicated.28 In turn, he was not entitled
to procedural safeguards under the Due Process Clause in this regard.29 Accordingly, we
reverse the circuit court’s denial of summary judgment as to whether there was a violation
of a clearly established right, and find the DNR and the DNR employees are entitled to
26
See Fontana v. Comm’r of Metro. Dist. Comm’n, 606 N.E.2d 1343, 1346
(Mass. App. Ct. 1993) (“A liberty interest arises where, as here, a public employee is
discharged because of stigmatizing charges alleged by the employee to be false and which
are disseminated to the public or are likely to be communicated to prospective employers.”
(citations omitted)).
27
See Ventetuolo v. Burke, 596 F.2d 476, 484 (1st Cir. 1979) (“Moreover, as
the district court noted, these cases that found a liberty interest infringement due to
disclosure usually involved public meetings or the news media. See, e. g., Owen v. City of
Independence, 560 F.2d 925, 936-37 (8th Cir. 1977), vacated and remanded on other
grounds, 438 U.S. 902, 98 S. Ct. 3118, 57 L. Ed. 2d 1145 (1978); Staton v. Mayes, 552 F.2d
908, 911 n.6 (10th Cir.), cert. denied, 434 U.S. 907, 98 S. Ct. 309, 54 L. Ed. 2d 195 (1977)
(public meeting with representatives of press present); Huntley v. Community School Board
of Brooklyn, 543 F.2d 979, 983 (2d Cir. 1976), Cert. denied, 430 U.S. 929, 97 S. Ct. 1547,
51 L. Ed. 2d 773 (1977) (public meeting); David Gonzalez v. Calero, 440 F. Supp. 989, 996
(D.C.P.R.1977) (newspaper publicity); Galaway v. Lawson, supra, 438 F.Supp. at 974
(newspaper publicity).”).
28
Because all four elements must be satisfied, when one element is not met
we need not further discuss whether the other three elements were met. See Syl. pt. 6,
McGraw, 239 W. Va. 192, 800 S.E.2d 230.
29
We also note that this finding is limited to the context of infringement of a
liberty interest, and this Court makes no decision on whether a publication occurred for
any other cause of action.
27
partial summary judgment and have established their entitlement to qualified immunity as
to this first method.
B. Fraudulent, Malicious, or Oppressive Conduct
Because the two methods for establishing that a discretionary governmental
act is subject to qualified immunity are stated in the alternative, our determination that the
first element is satisfied necessitates that we examine whether the Dawsons’ claims might
overcome immunity as to the second element.30 Accordingly, we must examine whether
there are genuine issues of material fact concerning whether these acts or omissions of the
DNR and the DNR employees were otherwise fraudulent, malicious, or oppressive. In the
instant matter, the DNR and the DNR employees assert that the circuit court incorrectly
found that there is a genuine issue regarding a material fact as to whether the conduct of
30
The DNR and the DNR employees further state that “[t]he only
constitutional right identified by the [circuit court] was the liberty interest associated with
[the Dawsons’] infringement of a liberty interest without due process of law claim.” They
attempt to argue that the claims of defamation, false light, reckless infliction of emotional
distress, and misrepresentation must be dismissed because they, themselves, do not
implicate any violation of a constitutional or statutory right. However, this argument is
misplaced because each of these claims are also based upon the contention that the DNR
and the DNR employees substantiated a false complaint by conducting a fundamentally
flawed investigation borne out of hostility and reprisal. As such, this could also satisfy the
alternative requirement test of fraudulent, malicious, or oppressive conduct and does not
necessitate a dismissal. See Taylor v. W. Virginia Dep’t of Health & Human Res., 237
W. Va. 549, 559, 788 S.E.2d 295, 305 (2016) (“Moreover, petitioners’ false light invasion
of privacy claims are based upon their contention that respondents’ investigation and the
ensuing search warrant were unsubstantiated accusations of criminal activity borne out of
reprisal—plainly satisfying the requirement of ‘fraudulent, malicious, or oppressive’
activity.”).
28
the DNR and the DNR employees was malicious and/or oppressive. On the contrary, the
Dawsons allege that “[i]n consideration of the record evidence and permissible inferences
to be drawn therefrom, the circuit court correctly concluded that genuine issues of material
fact exist regarding whether the Petitioners’ actions were malicious or oppressive.” We
agree with the Dawsons.
Throughout the history of our qualified immunity case law, this Court has
continually and consistently held that one way to defeat qualified immunity is by alleging
that the acts or omissions of a public official or employee were fraudulent, malicious, or
oppressive. See, e.g., Syl., in part, State v. Chase Sec., Inc., 188 W. Va. 356, 424 S.E.2d
591 (1992) (“There is no immunity for an executive official whose acts are fraudulent,
malicious, or otherwise oppressive. To the extent that State ex rel. Boone National Bank of
Madison v. Manns, 126 W. Va. 643, 29 S.E.2d 621 (1944), is contrary, it is overruled.”).
Accord Syl. pt. 8, Parkulo v. W. Virginia Bd. of Prob. & Parole, 199 W. Va. 161, 483
S.E.2d 507 (1996) (same); Hutchison, 198 W. Va. at 149, 479 S.E.2d at 659 (same); Syl.
pt. 3, Clark, 195 W. Va. 272, 465 S.E.2d 374 (same). See also Syl. pt. 12, in part, A.B.,
234 W. Va. 492, 766 S.E.2d 751 (“If the plaintiff . . . can otherwise identify fraudulent,
malicious, or oppressive acts committed by [the State, its agencies, officials, or employees],
the court must then determine whether such acts or omissions were within the scope of the
public official or employee’s duties, authority, and/or employment.” (emphasis added)).
Moreover, in Hutchison, this Court essentially equated “malicious” conduct to conduct that
29
is “wilful [sic] or intentional wrongdoing.” 198 W. Va. at 149, 479 S.E.2d at 659.31
Accordingly, it is clear that our case law has continuously recognized that a state actor’s
malicious conduct will overcome qualified immunity protections.
We now turn to the facts of the case sub judice. Because we address this
issue in the context of summary judgment, we express no view on the merits of the
Dawsons’ underlying claims. This Court’s sole purpose is to determine whether there are
genuine issues of material fact that would preclude summary judgment. Furthermore, we
have previously found that, “[p]articularly in complex cases . . . where issues involving
motive and intent are present, summary judgment should not be utilized as a method of
resolution.” Kelley, 221 W. Va. at 510, 655 S.E.2d at 532 (citations and quotations
omitted). Additionally, this Court has noted that the determination of whether a state
actor’s conduct was malicious is a “question[] for the fact-finder.” Maston, 236 W. Va. at
508 n.15, 781 S.E.2d at 956 n.15. See also Taylor v. W. Virginia Dep’t of Health & Human
31
Furthermore, other jurisdictions have construed the term “malice”
similarly. For example, in Shoemaker v. Smith, 353 Md. 143, 146, 725 A.2d 549, 551
(1999), the Maryland Court of Appeals defined what constituted “malice” under the
qualified immunity doctrine holding that an “actual malice” standard would apply—in
other words, was the conduct of the state actor “motivated by ill will, by an improper
motive, or by an affirmative intent to [cause injury].” Id. at 164, 725 A.2d at 560. This
“motive or animus may exist even when the conduct is objectively reasonable.” Id.
Additionally, Georgia courts also employ a similar standard. See, e.g., Russell v. Barrett,
296 Ga. App. 114, 118, 673 S.E.2d 623, 627 (2009) (“However, the 1991 amendment
specifies the actions that remove the protection of immunity—those done with actual
malice or with actual intent to cause injury. Our Supreme Court has construed the term
‘“actual malice” [as requiring] a deliberate intention to do wrong.’” (emphasis added)
(citation omitted)).
30
Res., 237 W. Va. 549, 559, 788 S.E.2d 295, 305 (2016) (“[T]his case contains a pervasive
factual dispute about each of the parties’ motivations, precluding entry of summary
judgment on qualified immunity grounds.”).
In the present matter, the circuit court posed the following question:
Based upon the numerous, undisputed and clear
violations of General Order No. 5 throughout the internal
investigation process in light of the magnitude and serious
nature of the charge against [Mr.] Dawson, were the acts or
omissions of the [DNR and the DNR employees] merely an
oversight or negligence? Or, do conflicting or permissible
inferences from the record exist to permit a trier of fact to
determine such conduct by the [DNR and the DNR employees]
as malicious or oppressive?
The circuit court then found that it would be required to weigh the evidence and make
credibility determinations to decide whether the conduct was malicious or oppressive and
that it would be improper for the circuit court to do so at the summary judgment stage. We
agree.
Here, the DNR and the DNR employees “argue that no evidence of malice
or oppressive conduct exists in the record evidence.” However, as the circuit court
correctly noted, there is evidence in the record that could lead a jury to infer a malicious or
oppressive motive. This evidence includes, but is not limited to: (1) the failure to review
the actual search warrant that was at issue in the underlying investigation; (2) the potential
numerous violations of General Order No. 5 over the course of the underlying
31
investigation;32 (3) the failure to secure the Bushnell camera at issue and its subsequent
destruction; (4) the failure to interview the owner of the SUV that was also photographed
in the WMA; (5) Sgt. Antolini’s characterization of several critical facts about the
polygraph examination; (6) Maj. DeBord’s failure to make a separate recommendation
concerning the investigation as he was required to do pursuant to General Order No. 5; (7)
the sustainment of the complaint against only Mr. Dawson and not the other officers; and
(8) the general allegations of hostility towards Mr. Dawson when he enlisted with the DNR
following his retirement from the West Virginia State Police. Although these facts
themselves may be undisputed, differing conclusions and inferences may be drawn
therefrom. See Williams, 194 W. Va. at 59, 459 S.E.2d at 336 (citation omitted) (finding
that summary judgment should “be denied ‘even where there is no dispute as to the
evidentiary facts in the case but only as to the conclusions to be drawn therefrom’”).
32
The DNR and the DNR employees, relying on Crouch v. Gillispie, 240 W.
Va. 229, 809 S.E.2d 699 (2018), argue that evidence of internal policy violations are not
material to a qualified immunity analysis and, therefore, cannot be relied upon to examine
whether a state actor has acted maliciously. This argument is misplaced. The Crouch
Court did not examine whether a state actor’s conduct was malicious in any capacity.
Rather the focus of Crouch was whether internal policy violations rose to the level of being
violations of a clearly established right. Ultimately, the Crouch Court held:
[w]e are wary of allowing a party to overcome qualified
immunity by cherry-picking a violation of any internal
guideline irrespective of whether the alleged violation bears
any causal relation to the ultimate injury. Therefore, in the
absence of allegations tying the alleged violations to [the]
death, we are unable to view this case as more than an abstract
assertion that DHHR could have investigated more thoroughly.
Crouch, 240 W. Va. at 237, 809 S.E.2d at 707 (footnote omitted).
32
Therefore, the circuit court correctly found that there are genuine issues of material fact
regarding whether the actions of the DNR and the DNR employees were malicious and
oppressive, and that these are questions for the fact-finder.33
C. Scope of Employment
Because we have found that the Dawsons’ claims might overcome the DNR
and the DNR employees’ assertion of qualified immunity as to the second method, i.e. that
the acts and omissions of the DNR and the DNR employees were fraudulent, malicious, or
oppressive, we must next examine whether a reasonable juror could find that the DNR
employees’ acts or omissions were outside of their official capacity as DNR officers. As
we have previously held,
[i]f the plaintiff identifies a clearly established right or
law which has been violated by the acts or omissions of the
State, its agencies, officials, or employees, or can otherwise
identify fraudulent, malicious, or oppressive acts committed by
such official or employee, the court must determine whether
such acts or omissions were within the scope of the public
official or employee’s duties, authority, and/or employment.
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The extent to which these facts may be subjective is of no moment, and we
are unpersuaded by the DNR and the DNR employees’ argument that courts must always
and only apply an objective analysis in the context of qualified immunity. The DNR and
the DNR employees rely on Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009),
for its assertion. This reliance is misplaced. A complete reading of Robinson provides that
“[t]he subjective motivations of a police officer are not relevant to a determination of
whether qualified immunity exists in connection with allegations of an unreasonable search
and seizure, an unlawful detention, or the use of excessive force.” Syl. pt. 4, Robinson v.
Pack, 223 W. Va. 828, 679 S.E.2d 660. The Robinson Court made it very clear that it was
deciding only whether a subjective analysis was appropriate in the context of evaluating an
officer’s conduct regarding three causes of action: (1) unreasonable search and seizure, (2)
unlawful detention, and (3) excessive force. Id. This is not the case before us now.
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Syl. pt. 12, in part, A.B., 234 W. Va. 492, 766 S.E.2d 751. This Court has further held that,
“[t]o the extent that such official or employee is determined to have been acting outside of
the scope of his duties, authority, and/or employment, the State and/or its agencies are
immune from vicarious liability, but the public employee or official is not entitled to
immunity[.]” Id. However, “[i]f the public official or employee was acting within the
scope of his duties, authority, and/or employment, the State and/or its agencies may be held
liable for such acts or omissions under the doctrine of respondeat superior along with the
public official or employee.” Id.
In the present matter, the DNR employees essentially assert that the actions
of Col. Jenkins, Maj. DeBord, and Sgt. Antolini were all specifically or impliedly directed
by the employer, and, therefore, within their respective scopes of employment. However,
the Dawsons argue that the circuit court correctly determined that there are genuine issues
of material fact as to whether the DNR employees were acting within their respective
scopes of employment and that this issue must be decided by the fact-finder.
Whether an employee was acting within the scope of his employment “may
or may not turn on disputed issues of material fact.” A.B., 234 W. Va. at 508, 766 S.E.2d
at 767. Furthermore, in A.B. this Court applied general principles of agency in the qualified
immunity context. Id. at 508, 766 S.E.2d at 767. Specifically, as this Court held
in Syllabus Point four of Griffith v. George Transfer and
Rigging, Inc., 157 W. Va. 316, 201 S.E.2d 281 (1973), whether
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an agent is “acting within the scope of his employment and
about his employer’s business . . . , is generally a question of
fact for the jury and a jury determination on that point will not
be set aside unless clearly wrong.” (emphasis added). See also
Syl. Pt. 1, in part, Laslo v. Griffith, 143 W. Va. 469, 102 S.E.2d
894 (1958) (“When the facts relied upon to establish the
existence of an agency are undisputed, and conflicting
inferences can not be drawn from such facts, the question of
the existence of the agency is one of law for the court[.]”);
Cremeans v. Maynard, 162 W. Va. 74, 86, 246 S.E.2d 253, 259
(1978) (stating where evidence “conclusively shows lack of
authority and where conflicting inferences cannot be drawn”
the court may decide issues of agency).
A.B., 234 W. Va. at 509, 766 S.E.2d at 768. We have further noted that “‘[s]cope of
employment’ is a relative term and requires a consideration of surrounding circumstances
including the character of the employment, the nature of the wrongful deed, the time and
place of its commission and the purpose of the act.” Griffith, 157 W. Va. at 326, 201 S.E.2d
at 288.
Here, the particular function being carried out by the DNR employees, i.e.
investigation of Mr. Dawson’s conduct, was certainly within the scope of their
employment. However, we find the manner in which they carried out this function,
including violating multiple internal rules; Col. Jenkins’ approval of the violations of
General Order No. 5; discussions with Mr. Dawson on personal time; failure to exonerate
Mr. Dawson; Maj. DeBord’s failure to make his own recommendations; dissemination of
the disposition letter which conceivably inaccurately implied that all complaint allegations
were sustained against Mr. Dawson; insistence on an improper polygraph examination;
failure to secure certain evidence, review certain evidence, and interview certain witnesses;
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sustainment of the complaint against only Mr. Dawson and not the other officers; and Sgt.
Antolini’s alleged hostility towards Mr. Dawson after Mr. Dawson became employed by
the DNR following his employment with the West Virginia State Police raise conflicting
inferences and questions of fact as to whether such conduct was within the scope of
employment such that a jury should determine this issue. Accordingly, the circuit court
correctly found that there are genuine issues of material fact regarding whether the actions
of the DNR employees were acting within their respective scopes of employment.
D. Timing of Motion for Summary Judgment
Lastly, the DNR and the DNR employees contend that the circuit court erred
to the extent it based its denial of their motion for summary judgment, which was filed
after the close of discovery, upon its finding that the motion was untimely and inconsistent
with Matson v. Wagner, 236 W. Va. 488, 781 S.E.2d 936 (2015), which encourages a ruling
on qualified immunity early in the proceedings. While the circuit court did include a very
general finding in its order that the DNR and the DNR employees did not file this motion
until two years after the filing of the complaint (which is a correct statement), it clearly did
not rely solely on the timing of the motion in making its ruling. The circuit court’s forty-
four page order includes a detailed analysis regarding the other three issues discussed above
and found that the genuine issues of material fact preclude summary judgment.
Specifically, the circuit court ruled:
In light of the foregoing, and being cognizant that this
Court’s function at the summary judgment [stage] is not to
weigh the evidence and/or determine the truth of the matter but
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to determine whether there are genuine issues for trial, the
Court FINDS and CONCLUDES that the record in this matter
is laden with genuine issues and questions of material fact
underlying the immunity determination – those that have the
capacity to sway the outcome of the litigation under applicable
law – which prohibit this Court from summarily disposing of
the [DNR and the DNR employees’] claims.
Accordingly, we decline to reverse the circuit court’s order based upon this issue.
IV.
CONCLUSION
For the reasons previously stated, we affirm, in part; and reverse, in part the
circuit court’s order denying summary judgment on the ground of qualified immunity. We
further direct the circuit court to enter an order granting partial summary judgment to the
DNR and the DNR employees as directed by the foregoing discussion, and remand this
matter to the circuit court for further proceedings consistent with this opinion.
Affirmed, in part;
Reversed, in part; and Remanded.
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