West Virginia Department of Education v. McGraw , 239 W. Va. 192 ( 2017 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term FILED
_______________
May 17, 2017
released at 3:00 p.m.
No. 16-0679 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
WEST VIRGINIA DEPARTMENT OF EDUCATION,
Petitioner
v.
TAMMY MCGRAW,
Respondent
____________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Carrie L. Webster, Judge
Civil Action No. 15-C-1893
REVERSED
____________________________________________________________
Submitted: April 25, 2017
Filed: May 17, 2017
Jan L. Fox, Esq. John D. Wooton, Esq.
Mark C. Dean, Esq. Wooton, Davis, Hussell & Ellis
Steptoe & Johnson PLLC Beckley, West Virginia
Charleston, West Virginia Counsel for the Respondent
Counsel for the Petitioner
Matthew S. Criswell, Esq.
Mark L. French, Esq.
Criswell French, PLLC
Charleston, West Virginia
Counsel for the Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE WORKMAN, deeming herself disqualified, did not participate in the
decision of the Court.
JUDGE JOSEPH K. REEDER sitting by temporary appointment.
SYLLABUS BY THE COURT
1. “A circuit court’s denial of a motion to dismiss that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under
the ‘collateral order’ doctrine.” Syl. Pt. 1, W.Va. Bd. of Educ. v. Marple, 236 W.Va. 654,
783 S.E.2d 75 (2015).
2. “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.” Syl. Pt. 11, W.Va. Reg’l
Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014).
3. “The Due Process Clause, Article III, Section 10 of the West
Virginia Constitution, requires procedural safeguards against state action which affects a
liberty or property interest.” Syl. Pt. 1, Waite v. Civ. Serv. Comm’n, 161 W.Va. 154, 241
S.E.2d 164 (1977).
4. “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
i
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.” Syl. Pt. 2, Waite v. Civ. Serv. Comm’n, 161 W.Va. 154, 241 S.E.2d 164
(1977).
5. To state a claim for a violation of a government employee’s liberty
interest in his/her good name, the employee must allege that the stigmatizing statement
made against him/her was false. To the extent that our opinion in Waite v. Civil Service
Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977), is inconsistent with this holding, it
is overruled.
6. 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.
ii
Justice Ketchum:
The West Virginia Department of Education (“the DOE”) appeals an order
by the Circuit Court of Kanawha County. In its order, the circuit court denied the DOE’s
motion to dismiss based on qualified immunity.
The underlying lawsuit was filed by Tammy McGraw after the DOE
terminated her at-will employment. The lawsuit contained the following two claims
against the DOE: (1) a constitutional tort claim, and (2) a claim for wrongful termination.
As to her constitutional tort claim, Ms. McGraw alleged that the DOE leaked a letter it
received from her previous government employer revealing that she was under
investigation for misallocating public funds for personal use. Although she does not
dispute that she was, in fact, under investigation on those charges, she alleges the DOE’s
leak of this letter violated her constitutionally-protected liberty interest.
Upon review, we find that Ms. McGraw failed to outline a liberty interest
violation sufficient to overcome the DOE’s qualified immunity because the truth of the
allegedly leaked letter, i.e., that she was under investigation for misallocating public
funds, was not disputed. Therefore, the DOE’s qualified immunity bars Ms. McGraw’s
constitutional tort and wrongful termination claims. We reverse the circuit court’s order
and dismiss Ms. McGraw’s claims against the DOE.
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises from the DOE terminating Ms. McGraw’s at-will
employment as its Executive Director of the Office of Instructional Technology. This
termination was, at least in part, due to the DOE’s receipt of a letter from Ms. McGraw’s
previous employer, the Virginia Department of Education.1 The letter stated as follows:
Tammy McGraw has been the focus of an ongoing
investigation by [The Office of the Virginia State Inspector
General] and the [Virginia] department of education for
illegal activities and misuse of state funds. . . . . These charges
involve such things as diverting programmatic funds to cover
personal travel expenses, purchasing equipment for personal
use, falsely submitting travel invoices, and making payments
to contractors without contracts and for work not performed. .
..
While the investigation is still continuing and a
decision on the indictment has not been made, McGraw has
been relieved of her position at the Virginia Department of
Education for the above violations of law.
(Emphasis added). In short, the letter revealed that Ms. McGraw was under investigation
in Virginia for misallocating public funds for personal use but that a decision on the
investigation had not yet been made. The DOE claims that Ms. McGraw failed to
disclose this ongoing investigation during her employment interview.
1
Ms. McGraw attached the letter to her complaint. We have held: “A
circuit court ruling on a motion to dismiss . . . may properly consider exhibits attached to
the complaint[.]” Syl. Pt. 1, in part, Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748
(2008).
2
Ms. McGraw does not dispute that she was under investigation in Virginia
for misallocating public funds for personal use. Instead, she complains that the letter was
leaked to local news media in response to media inquiries as to why the DOE terminated
her at-will employment. Ms. McGraw’s complaint states the letter “was provided to the
Charleston Gazette by a member of the West Virginia Department of Education[,]” and
“[m]ultiple news articles were published based on the false information contained in the
letter.”
Ms. McGraw filed a lawsuit against the DOE asserting claims for a
constitutional tort and wrongful termination.2 The DOE filed a motion to dismiss her
lawsuit under West Virginia Rule of Civil Procedure 12(b)(6),3 asserting that qualified
immunity barred Ms. McGraw’s claims.4 The circuit court failed to order Ms. McGraw
2
Ms. McGraw joined the Virginia Department of Education and one of its
employees as defendants in her constitutional tort claim, and she asserted various other
claims against them as well. The Virginia Department of Education and its employee are
not parties to this appeal, and the claims against them are not pertinent to our resolution
of this dispute.
3
West Virginia Rule of Civil Procedure 12(b)(6) [1998] allows a defendant
in a civil action to file a motion to dismiss a claim against him/her for “failure to state a
claim upon which relief can be granted[.]”
4
When the DOE filed its motion to dismiss, Ms. McGraw had filed an
amended complaint. The DOE’s motion to dismiss specified that it sought dismissal of
Ms. McGraw’s amended complaint because that was the then-operative pleading. While
the motion to dismiss was pending, Ms. McGraw filed a second amended complaint in
which her constitutional tort and wrongful termination claims remained substantively the
same. Because Ms. McGraw’s second amended complaint was identical to the amended
complaint in regard to her constitutional tort and wrongful termination claims, our ruling
herein extends to both the amended complaint and the second amended complaint.
3
to file a reply to the DOE’s motion to dismiss pleading qualified immunity; instead, it
scheduled a hearing on the DOE’s motion.5
On June 16, 2016, the circuit court entered an order denying the DOE’s
motion to dismiss, finding that Ms. McGraw pleaded sufficient facts to outline a liberty
interest violation and that qualified immunity does not bar her claims for a constitutional
tort or wrongful termination. It is from that order that the DOE brings this appeal.
II.
STANDARD OF REVIEW
In this appeal, we assess a circuit court order denying a motion to dismiss
based on qualified immunity. We have held: “A circuit court’s denial of a motion to
dismiss that is predicated on qualified immunity is an interlocutory ruling which is
subject to immediate appeal under the ‘collateral order’ doctrine.”6
5
In Hutchison v. City of Huntington, 196 W.Va. 139, 149-50, 479 S.E.2d
649, 659-60 (1996), we stated that when a defendant’s answer pleads the defense of
governmental immunity, the circuit court should order the plaintiff to file a reply tailored
to the defendant’s immunity defense. We provided: “Under the West Virginia Rules of
Civil Procedure, the plaintiff is required to file a reply to a defendant’s answer only if the
circuit court exercises its authority under Rule 7(a) to order one. . . . The court’s
discretion not to order such a reply ought to be narrow; where the defendant demonstrates
that greater detail might assist an early resolution of the dispute, the order to reply should
be made.” Id. Ms. McGraw’s original complaint provided scant detail of the basis of her
constitutional tort claim against the DOE, and consequently, she filed two amended
complaints in the course of the proceedings before the circuit court. Had the circuit court
required Ms. McGraw to file a reply to the DOE’s motion to dismiss pleading qualified
immunity, it might have assisted an early resolution to this dispute.
6
Syl. Pt. 1, W.Va. Bd. of Educ. v. Marple, 236 W.Va. 654, 783 S.E.2d 75
(2015).
4
Having established that this appeal is properly before this Court, we review
the circuit court’s order de novo.7 “In conducting a de novo review, we apply the same
standard applied in the circuit court.”8 That is, generally, “dismissal for failure to state a
claim is only proper where it is clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations in the complaint.”9 “If the complaint
alleges sufficient facts, it must survive a . . . motion to dismiss even if it appears that
recovery is very remote and unlikely.”10 Under this general pleading standard, “the
complaint is construed in the light most favorable to plaintiff [Ms. McGraw], and its
allegations are to be taken as true.” 11 However, to the extent Ms. McGraw’s complaint is
based on allegations of fraud, a heightened pleading standard applies, and the
circumstances constituting fraud must be stated with particularity.12
7
Syl. Pt. 4, in part, Ewing v. Bd. of Educ. of Cty. of Summers, 202 W.Va.
228, 503 S.E.2d 541 (1998) (“When a party . . . assigns as error a . . . denial of a motion
to dismiss, the circuit court’s disposition of the motion to dismiss will be reviewed de
novo.”).
8
Forshey, 222 W.Va. at 749, 671 S.E.2d at 754 (regarding circuit court
order granting defendant’s motion to dismiss).
9
Marple, 236 W.Va. at 660, 783 S.E.2d at 81.
10
Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer, Jr.,
Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6) at 385-86 (4th
ed. 2012).
11
John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605,
245 S.E.2d 157, 158 (1978).
12
West Virginia Rule of Civil Procedure 9(b) [1998].
5
III.
ANALYSIS
The DOE argues the circuit court erred by failing to dismiss Ms. McGraw’s
claims based on qualified immunity. “Qualified immunity preserves the freedom of the
State, its agencies, and its employees to deliberate, act, and carry out their legal
responsibilities within the limits of the law and constitution.”13 As we explain below,
qualified immunity bars recovery for Ms. McGraw’s constitutional tort and wrongful
termination claims. We discuss the standard for qualified immunity and its application to
Ms. McGraw’s claims in turn.
A. Qualified Immunity in General
The first step in determining whether a state agency is entitled to qualified
immunity is:
[A] reviewing court must first identify the nature of the
governmental acts or omissions which give rise to the suit for
purposes of determining whether such acts or omissions
constitute legislative, judicial, executive or administrative
policy-making acts or involve otherwise discretionary
governmental functions.14
The facts giving rise to Ms. McGraw’s suit were the DOE’s termination of her at-will
employment and its alleged leak of a letter explaining its non-retention of Ms. McGraw
13
Marple, 236 W.Va. at 660, 783 S.E.2d at 81.
14
Syl. Pt. 10, in part, W.Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234
W.Va. 492, 766 S.E.2d 751 (2014) (emphasis added).
6
as an employee. We have stated, “employee retention . . . fall[s] within the category of
‘discretionary ’ governmental functions.”15
As to discretionary functions,
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.16
Thus, the second step in our analysis is to determine whether the DOE violated a clearly
established statutory or constitutional right or law (or otherwise acted fraudulently,
maliciously, or oppressively) in its alleged acts or omissions giving rise to Ms. McGraw’s
suit. We now evaluate Ms. McGraw’s claims against this qualified immunity standard.
B. Constitutional Tort Claim
First, we examine Ms. McGraw’s claim that the DOE violated her
constitutionally-protected liberty interest in her good name. The DOE argues that
qualified immunity bars this claim for two reasons: (1) the facts alleged in the complaint
do not outline a liberty interest violation (or any other clearly-established constitutional
or statutory violation); and (2) she makes no clear allegations of fraud, malice, or
15
A.B., 234 W.Va. at 514, 766 S.E.2d at 773.
16
Syl. Pt. 11, A.B., 234 W.Va. 492, 766 S.E.2d 751 (emphasis added).
7
oppression. For the reasons explained below, we agree with the DOE on both these
arguments.
i. There Was No Liberty Interest Violation
In her complaint, Ms. McGraw alleged that the DOE leaked a letter written
by the Virginia Department of Education to the Charleston Gazette.17 The letter revealed
that she was the subject of an investigation in Virginia for misallocating public funds for
personal use. It also stated that the investigation had not been completed. Ms. McGraw
does not dispute the truth of the letter, that is, that she was under investigation in Virginia
for misallocating funds for personal use. Nevertheless, she claims that the DOE’s leak of
the letter violated her constitutionally-protected liberty interest in her good name. By
contrast, the DOE asserts these facts are not sufficient to outline a liberty interest
violation.
We use the following standard to determine whether an individual’s
constitutionally-protected liberty interest in his/her good name has been implicated: “A
liberty interest is implicated when the state makes a charge against the individual that
might seriously damage his standing and associations in the community or places a
17
The DOE argues that Ms. McGraw presented insufficient evidence that it
leaked the letter to local news media. Ms. McGraw’s complaint alleges the letter “was
provided to the Charleston Gazette by a member of the West Virginia Department of
Education.” (Emphasis added). In assessing the DOE’s motion to dismiss, “the
complaint[’s] allegations are to be taken as true.” John W. Lodge Distrib. Co., Inc. v.
Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1998). As required by our well-
established law, for the limited purpose of this appeal based on the DOE’s motion to
dismiss, we take as true Ms. McGraw’s factual allegation that the DOE leaked the letter.
8
stigma or other disability on him that forecloses future employment opportunities.”18
When an individual’s liberty interest is implicated, he/she must be afforded procedural
safeguards under Article III, Section 10 of the West Virginia Constitution (the Due
Process Clause).19
Under certain circumstances, this liberty interest concept applies in the
realm of government employment. The Supreme Court of the United States provided in
Bd. of Regents v. Roth that:
There might be cases in which a State refused to re­
employ a person under such circumstances that interest in
liberty would be implicated. . . . For ‘where a person’s good
name, reputation, honor, or integrity is at stake because of
what the government is doing to him, notice and an
opportunity to be heard are essential.’20
Relying on Roth, this Court found in Waite v. Civil Service Commission:
A liberty interest is implicated when the state “makes a
charge against him that might seriously damage his standing
and associations in the community.” Bd. of Regents v. Roth,
408 U.S. 564, 573 (1972). The Roth Court stated that a
charge of dishonesty or immorality would implicate an
individual’s liberty interests. We follow these principles and
find that an accusation or label given the individual [state
employee] by his employer which belittles his worth and
dignity as an individual and, as a consequence, is likely to
18
Syl. Pt. 2, in part, Waite v. Civ. Serv. Comm’n, 161 W.Va. 154, 241
S.E.2d 164 (1977).
19
Syl. Pt. 1, Waite, 161 W.Va. 154, 241 S.E.2d 164 (“The Due Process
Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural
safeguards against state action which affects a liberty or property interest.”).
20
Roth, 408 U.S. 564, 573 (1972).
9
have severe repercussions outside his work world, infringes
one’s liberty interest.21
Again, in Major v. DeFrench, we provided:
[T]he government cannot dismiss an employee on
charges that call into question her good name, or that impose
a stigma upon an employee which could foreclose her
freedom to pursue other employment opportunities, without
providing the employee notice of the charges against her and
a hearing in which the factual basis of the charges can be
contested.22
Therefore, under certain circumstances, a government employer may implicate its
employee’s constitutionally-protected liberty interest in his/her good name through a
statement which might seriously damage the employee’s standing and associations in the
community or imposes a stigma which forecloses future employment opportunities.23
21
Waite, 161 W.Va. 154, 159-60, 241 S.E.2d 164, 167-68 (1977).
22
Major, 169 W.Va. 241, 256, 286 S.E.2d 688, 697 (1982) (emphasis
added).
23
However, to be clear, “not all public employees have a protected liberty
interest in continued government employment, even when his/her termination makes
him/her less attractive to future employers.” Marple, 236 W.Va. at 665, 783 S.E.2d at
86. There are limited exceptions to this general rule which are not at issue in this case:
tenured employees and classified civil service employees. See Bd. of Educ. of Cnty. of
Mercer v. Wirt, 192 W.Va. 568, 574, 453 S.E.2d 402, 408 (1994) (“There can be little
doubt that tenured employees have . . . liberty interests in their employment.”); Buskirk v.
Civ. Serv. Comm’n, 175 W.Va. 279, 283 S.E.2d 579, 583 (1985) (“[A] classified civil
service employee has a sufficient interest in his continued [un]interrupted employment to
warrant against the arbitrary discharge of such employee under [The Due Process Clause]
of our Constitution.”).
Citing cases pertaining to tenured employees and classified civil service
employees, we held in Syllabus Point 12, in part, of Queen v. W.Va. Univ. Hosp., 179
W.Va. 95, 365 S.E.2d 375 (1987), that: “A person employed by a state actor cannot be
(continued . . .)
10
Although this Court has long recognized the liberty interest concept in the
area of government employment, we have not defined the elements required to state a
liberty interest tort claim by a government employee. Most courts require the following
four elements to find that a government employer implicated its employee’s liberty
interest in his/her good name: (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.24 Once these elements are alleged, the employee must be afforded
due process protections.
summarily discharged without any procedural protections, because the fundamental
promise of due process is freedom from arbitrary treatment.” Despite Queen’s broad
language, we recently explained, “not all public employees have a protected liberty
interest in continued government employment[.]” Marple, 236 W.Va. at 665, 783 S.E.2d
at 86. Therefore, we question the applicability of Syllabus Point 12 of Queen outside the
limited context of tenured employees and classified civil service employees.
24
See, e.g., Wojcik v. Mass. St. Lottery Comm’n, 300 F.3d 92, 103 (1st Cir.
2002) (requiring following elements to implicate government employee’s liberty interest:
stigmatizing statement; employee must dispute charges as false; employer intentionally
publicized statement; and statement was made in conjunction with an alteration of the
employee’s status); Segal v. Cty. of N.Y., 459 F.3d 207, 212 (2d Cir. 2006); (establishing
following elements for deprivation of employee’s liberty interest: stigmatizing statement;
statement was made public by employer; statement was made in close temporal
relationship to plaintiff’s dismissal from employment; and in footnote 5, providing that
plaintiff must allege falsity); Sciolino v. Cty. of Newport News, 480 F.3d 642, 646 (4th
Cir. 2007) (“To state this type of liberty interest claim under the Due Process Clause, a
plaintiff must allege that the charges against him: (1) placed a stigma on his reputation;
(2) were made public by the employer; (3) were made in conjunction with his termination
or demotion; and (4) were false.”); White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981)
(“[A] constitutionally protected liberty interest is implicated only if an employee is
discharged in a manner that creates a false and defamatory impression about him and thus
stigmatizes him[.]”); Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir. 1989) (“[W]hen a
‘nontenured employee shows he has been stigmatized by the voluntary, public
dissemination of false information in the course of a decision to terminate his
(continued . . .)
11
As to the first requisite element to state a claim for a liberty interest
violation, a stigmatizing statement, we have said: “West Virginia does not have a bright-
line rule regarding when a charge sufficiently stigmatizes an employee’s good name or
forecloses his/her prospects for future employment.”25 On the one hand, unexplained
terminations and mere charges of incompetence are not stigmatizing enough to implicate
a liberty interest.26 On the other hand, statements which strike at the employee’s worth as
an individual, such as charges of dishonesty or immorality, implicate a liberty interest.27
employment, the employer is required to afford him an opportunity to clear his name.’”);
Parker v. Town of Chelsea, 275 Fed. Appx. 769, 773 (10th Cir. 2008) (“[T]o support a
claim for a violation of his liberty interests, [the plaintiff] must show that the defendants
made statements that: (1) impugned his ‘good name, reputation, honor, and integrity;’ (2)
were false; (3) occurred in the course of termination; and (4) were published.”); Francis
C. Amendola, et al., What Constitutes Deprivation of Liberty Interests of School
Employees, 16D C.J.S. Constitutional Law § 2206 (2017) (“In order for an educator to
demonstrate a deprivation of a liberty interest by defamatory statements, the educator
must demonstrate all four of the following elements: (1) the statements impugned the
educator’s good name, reputation, honor, or integrity; (2) the statements were false; (3)
the statements must have occurred in the course of terminating the educator or must have
foreclosed other employment opportunities; and (4) the statements must have been
published.”).
25
Marple, 236 W.Va. at 665, 783 S.E.2d at 86.
26
Syl. Pt. 5, Freeman v. Poling, 175 W.Va. 814, 338 S.E.2d 415 (“Courts
are rather uniform in holding that an unexplained termination or discharge from
employment does not create a sufficient stigma to invoke a liberty interest protection.”);
Marple, 236 W.Va. at 665, 783 S.E.2d at 86 (finding no liberty interest violation in the
Board of Education’s possible charge of incompetence against its superintendent).
27
Marple, 236 W.Va. at 665, 783 S.E.2d at 86 (“[A] charge regarding an
employee’s character flaw implicate a liberty interest (i.e., charges of dishonesty,
immorality, or criminality).”); Waite, 161 W.Va. at 159-60, 241 S.E.2d at 167-68 (“[A]
charge of dishonesty or immorality would implicate an individual’s liberty interest.”)
12
“Allegations of substance abuse, mental illness, criminal conduct, dishonesty, and
immorality clearly rise to the level of stigmatization required to state a claim for a
deprivation of a liberty interest.”28 In short, the statement must impugn the employee’s
good name, reputation, honor, or integrity.
Second, the plaintiff must allege that the statement forming the basis of
his/her liberty interest violation was false. The United States Supreme Court has
explained the rationale behind this rule as follows:
[T]he hearing required where a nontenured employee
has been stigmatized in the course of a decision to terminate
his employment is solely “to provide the person an
opportunity to clear his name.” If he does not challenge the
substantial truth of the material in question, no hearing would
afford a promise of achieving that result for him.29
The majority of jurisdictions agree that it serves no useful purpose to require a name-
clearing hearing for an employee who does not dispute the charges against him/her.30
Our research has not revealed a single jurisdiction outside West Virginia in which a
government employer implicates its employee’s liberty interest through an uncontested
statement.
Nevertheless, in Waite v. Civil Service Commission, we stated in a footnote
that: “the truth or falsity of the charge does not enhance or diminish the impairment of the
28
Jenny S. Brannon, The Publication Debate in Deprivation of Occupation
Liberty Claims, 47 U. Kan. L. Rev. 171, 183 (1998).
29
Codd v. Velger, 429 U.S. 624, 627-28 (1977).
30
See sources cited supra note 24, at 11.
13
liberty interest.”31 We are persuaded that the United States Supreme Court was correct;
there is no useful purpose behind requiring a government employer to afford its employee
a hearing to clear his/her name of charges the employee does not dispute.
Therefore, we hold that to state a claim for a violation of a government
employee’s liberty interest in his/her good name, the employee must allege that the
stigmatizing statement made against him/her was false. To the extent that our opinion in
Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977), is
inconsistent with this holding, it is overruled.
Third, the stigmatizing and false statement must have been made accessible
to the public for there to be a violation of the employee’s liberty interest in his/her good
name.32 The rationale behind this rule 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.”33 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.
31
Waite, 161 W.Va. at 161 n.5, 241 S.E.2d at 168 n.5.
32
Bishop v. Wood, 426 U.S. 341, 348 (1976); Freeman, 175 W.Va. at 822,
338 S.E.2d at 423 (“Without a public disclosure of accusations against [the employee], he
cannot claim that his ‘standing and associations in his community’ have been
damaged.”).
33
Bishop, 426 U.S. at 348.
14
Fourth, and finally, the statement forming the basis of the liberty interest
claim must have been made in connection with a serious adverse employment action.
This requirement is derived from Paul v. Davis, in which the Court clearly provided that
there is “no constitutional doctrine converting every defamation by a public official into a
deprivation of liberty within the meaning of the Due Process Clause[.]”34 To hold
otherwise “would make of the [Due Process Clause] a font of tort law.”35 Thus,
reputation alone, “apart from some more tangible interest, such as employment, . . . . is
[insufficient] to invoke the procedural protection of the Due Process Clause[.]”36
Therefore, we hold 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.
Applying these principles to the present case, the facts alleged in Ms.
McGraw’s complaint do not state a claim for a liberty interest violation. Her complaint
does not dispute the truth of the letter, i.e., that she was under investigation in Virginia
34
Paul, 424 U.S. 693, 702 (1976).
35
Paul, 424 U.S. at 701.
36
Paul, 424 U.S. at 702.
15
for misallocating public funds for personal use. Indeed, her complaint confirms that she
was accused on those charges in Virginia.
In a similar case, Melton v. City of Okla. City,37 the court found that a
police department did not violate a terminated police officer’s liberty interest by
informing news media that the FBI was investigating the officer for perjury, even though
the charge was ultimately found to be baseless. The court explained its finding as
follows: “all the statements made by Lt. McBride were true. Mr. Melton was accused by
the FBI of having committed perjury[.] . . . . Fairly read in context, there is nothing
contained in either publication which suggests Lt. McBride . . . accepted the accusation as
true or accepted it as its own.”38
Likewise, Ms. McGraw was under investigation in Virginia for
misallocating public funds for personal use, and the DOE had no part in leveling the
underlying charges against her or causing the investigation to be brought about.
Therefore, even if the DOE leaked the letter to the Charleston Gazette, as Ms. McGraw
has alleged, the letter’s statements were true. We find no distinguishing factor in this
case which sets Ms. McGraw apart from the plaintiff in Melton.
Thus, we find that under the facts of this case, Ms. McGraw’s liberty
interest was not implicated. She was not entitled to procedural safeguards under the Due
37
928 F.2d 920 (10th Cir. 1991).
38
Melton, 928 F.2d at 928 (emphasis in original).
16
Process Clause. There was no liberty interest violation in this case, and we do not find
any other constitutional or statutory right infringed upon by the DOE.
ii. No Factual Allegations Revealing Fraud, Malice, or Oppression
The DOE further argues that Ms. McGraw failed to allege facts revealing
fraud, malice, or oppression sufficient to overcome its qualified immunity. While Ms.
McGraw’s complaint is silent on this issue, she argues before this Court that the DOE
acted fraudulently, maliciously, and oppressively in failing to investigate the truth of the
letter before leaking it to local news media. Nevertheless, she was, as stated in the letter,
under investigation in Virginia for misallocating public funds for personal use.
To the extent Ms. McGraw relies on fraud, West Virginia Rule of Civil
Procedure 9(b) [1998] provides: “In all averments of fraud . . . , the circumstances
constituting fraud must be shall be stated with particularity.” Ms. McGraw failed to
allege any circumstances revealing fraud. Likewise, her complaint fails to indicate the
DOE acted either maliciously or oppressively.
It is undisputed that Ms. McGraw was, as stated in the letter, under
investigation in Virginia for misallocating public funds for personal use in her previous
employment and that she failed to disclose this investigation to the DOE. She alleged her
termination was based on the DOE learning of this investigation through its receipt of the
letter, and the DOE seems to concur by arguing that it terminated her for her lack of
candor in failing to disclose the investigation during her employment interview.
Therefore, even if the DOE leaked the letter to local news media in
response to media inquiries on why it terminated Ms. McGraw, it would have been an
17
honest response to the media’s questions. Thus, we find no fraud, malice, or oppression
in the alleged acts giving rise to Ms. McGraw’s constitutional tort claim.
C. Wrongful Termination.
Next, we examine Ms. McGraw’s wrongful termination claim. Unlike her
constitutional tort claim, which was based on an alleged leak of a letter, Ms. McGraw’s
claim for wrongful termination is based solely on the DOE’s decision to terminate her at-
will employment.
Ms. McGraw stated in her complaint that her employment was governed by
the DOE Employment Handbook. The Employment Handbook provides that: “The
employment relationship of each employee is ‘at will.’ ‘At-will’ means that it is for no
definite period and is terminable at any time at the will of the State Superintendent, with
or without notice, cause or compensation.” Moreover, a letter39 sent by the DOE to Ms.
McGraw outlining some of her employment terms states: “All [DOE] employees are non-
contractual, at-will employees.”
As to at-will employment, we have held: “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
39
This letter was attached to Ms. McGraw’s complaint, and is thus properly
considered in the DOE’s motion to dismiss.
18
federal law.”40 On this record, we find no constitutional provision, statute, policy, or
other rule which prohibited the termination of Ms. McGraw’s at-will employment.
Therefore, unless the DOE acted fraudulently, maliciously, or oppressively
in terminating her at-will employment, qualified immunity bars recovery under Ms.
McGraw’s claim for wrongful termination. Upon review of Ms. McGraw’s complaint,
we find no factual allegations revealing fraud, malice, or oppression in the termination of
her at-will employment. She merely claims that the DOE did not fully explain the reason
why it terminated her at-will employment, which is not fraudulent, malicious, or
oppressive, as required to overcome qualified immunity. Accordingly, the circuit court
erred by failing to dismiss Ms. McGraw’s claim for wrongful termination.41
40
Will. v. Precision Coil, Inc., 194 W.Va. 52, 63, 459 S.E.2d 329, 340
(1995).
41
Ms. McGraw’s complaint also contained a separate claim for punitive
damages. Ms. McGraw voluntarily dismissed this claim, but she still asserts the DOE is
liable to pay her punitive damages. By contrast, the DOE cites West Virginia Code § 55­
17-4(3) [2002], which provides: “No government agency may be ordered to pay punitive
damages in any action.” Because we found that qualified immunity precludes recovery
by Ms. McGraw on her constitutional tort and wrongful termination claims, resolution of
the parties’ punitive damages argument is not necessary. Therefore, we decline to
address this issue.
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IV.
CONCLUSION
Ms. McGraw failed to outline a liberty interest violation sufficient to
overcome the DOE’s qualified immunity because the truth of the allegedly leaked letter,
i.e., that she was under investigation in Virginia for misallocating funds, was not
disputed. Therefore, the DOE’s qualified immunity bars Ms. McGraw’s constitutional
tort and wrongful termination claims. We reverse the circuit court’s order and dismiss
Ms. McGraw’s claims against the DOE.
Reversed.
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