Wanda Keener and Katherine Asbury v. Clay County Development Corporation

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_____________________ November 3, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 21-0267 SUPREME COURT OF APPEALS
_____________________ OF WEST VIRGINIA
WANDA KEENER and KATHERINE ASBURY
Plaintiffs Below, Petitioners,
v.
CLAY COUNTY DEVELOPMENT CORPORATION,
Defendant Below, Respondent.
___________________________________________________________
Appeal from the Circuit Court of Clay County
The Honorable Richard Facemire, Judge
Case No. 18-C-6
AFFIRMED
_________________________________________________________
Submitted: September 13, 2022
Filed: November 3, 2022
Walt Auvil, Esq. M. Andrew Brison, Esq.
Kirk Auvil, Esq. The Law Office of M. Andrew Brison,
The Employment Law Center, PLLC PLLC
Parkersburg, West Virginia Charleston, West Virginia
Counsel for Petitioners Counsel for Respondent
JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE ARMSTEAD, having been disqualified, did not participate in the decision of
this case.
JUDGE HOKE sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.”
Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. Familial status is not a protected group for purposes of an employment
discrimination claim under the West Virginia Human Rights Act, W. Va. Code §§ 5-11-1to -9 (2022).
3. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
4. “In the absence of any definition of the intended meaning of words or
terms used in a legislative enactment, they will, in the interpretation of the act, be given
their common, ordinary and accepted meaning in the connection in which they are used.”
Syl. Pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled
on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
5. As used in the West Virginia Human Rights Act, West Virginia Code
§ 5-11-2 (2022), ancestry means discrimination based on some characteristic like race,
ethnicity, or national origin that is passed down by lineal descendants. In the context of
i
employment, familial status is not included among the groups entitled to protection by the
Human Rights Act.
6. “Where an employee seeks to establish a permanent employment
contract or other substantial employment right, either through an express promise by the
employer or by implication from the employer’s personnel manual, policies, or custom and
practice, such claim must be established by clear and convincing evidence.” Syl. Pt. 3,
Adkins v. Inco Alloys Int’l, Inc., 187 W. Va. 219, 417 S.E.2d 910 (1992).
7. “An employee handbook may form the basis of a unilateral contract
if there is a definite promise therein by the employer not to discharge covered employees
except for specified reasons.” Syl. Pt. 6, Cook v. Heck’s Inc., 176 W.Va. 368, 342 S.E.2d
453 (1986).
8. “A promise of job security contained in an employee handbook
distributed by an employer to its employees constitutes an offer for a unilateral contract;
and an employee’s continuing to work, while under no obligation to do so, constitutes an
acceptance and sufficient consideration to make the employer’s promise binding and
enforceable.” Syl. Pt. 5, Cook v. Heck’s Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986).
9. “An employee handbook which contains a clear and conspicuous
disclaimer of job security will preserve the at-will status of the employment relationship.”
ii
Syl. Pt. 8, Mace v. Charleston Area Med. Ctr. Found., Inc., 188 W. Va. 57, 422 S.E.2d 624(1992).
10. “An employer may protect itself from being bound by any and all
statements in an employee handbook by placing a clear and prominent disclaimer to that
effect in the handbook itself.” Syl. Pt. 5, Suter v. Harsco Corp., 184 W. Va. 734, 403
S.E.2d 751 (1991).
iii
WOOTON, Justice:
The petitioners, Wanda Keener (“petitioner Keener”) and Katherine Asbury
(“petitioner Asbury”), appeal the order entered by the Circuit Court of Clay County, West
Virginia, on March 5, 2021, granting summary judgment to respondent Clay County
Development Corporation (“CCDC”) in regard to petitioners’ claims of discrimination in
violation of the West Virginia Human Rights Act (“the Act”), West Virginia Code §§ 5-
11-2 and -9 (2022), and breach of an implied employment contract. The petitioners argue
that the circuit court erred: 1) in its findings that ancestral discrimination is duplicative of
the Act’s protections against national origin and ethnic discrimination and that ancestral
discrimination does not include discrimination based on familial status; 2) in its findings
that the “Clay County Development Corporation Employment Guide” (“the Employment
Guide”) did not form an implied contract between the petitioners and the CCDC, and that
the CCDC was within its rights to terminate petitioners pursuant to other terms of the
handbook even if it had formed a contract; and 3) in its finding that the petitioners were at-
will employees who could be terminated for any nondiscriminatory reason. Upon our
careful review of the briefs, the parties’ arguments, the appendix record, the applicable law,
and all other matters before the Court, we affirm the circuit court’s decision.
I. Facts and Procedural Background
The CCDC is a nonprofit organization that provides services to senior
citizens in Clay County, including in-home and community-based services, through federal
1
and state monies, Medicaid, and various grants. Petitioner Keener worked for the CCDC
for thirty years in several positions but spent the last twenty years as a filing clerk.
Petitioner Asbury, petitioner Keener’s sister, worked for the CCDC for forty years and had
the title “3B Project Director.” The petitioners were also the sisters of Pamela Taylor, the
CCDC’s former Executive Director. Ms. Taylor was initially suspended and ultimately
terminated from her employment with the CCDC after she made the following post on
Facebook in November of 2016, which gained national attention: “It will be refreshing to
have a classy, beautiful, dignified First Lady in the White House [referring to former First
Lady Melania Trump]. I’m tired of seeing an Ape in heels [referring to former First Lady
Michelle Obama].”
As a result of Ms. Taylor’s post, the CCDC was investigated and monitored
by the State of West Virginia Bureau of Senior Services (“Bureau”) and the Appalachian
Area Agency on Aging (“AAA”). 1 In December of 2016, the Bureau and the AAA
Leslie McGlothlin was the Interim Executive Director of the CCDC
1
appointed in November, 2016, after Ms. Taylor’s termination. Prior to this appointment,
Ms. McGlothlin served as the CCDC’s payroll clerk in which her responsibilities included
payroll, payroll taxes, bill processing and payment. According to Ms. McClothlin’s
affidavit:
Eunice Thomas, CCDC Board President, advised
Robert Roswall, Commissioner West Virginia Bureau of
Senior Services and Romona Stanley, Executive Director
Appalachian Area Agency on Aging, in writing on November
14, 2016, that the CCDC “was at a crossroad” and asked their
assistance and guidance related to the actions and conduct of
its then suspended Executive Director.
2
launched an investigation into the CCDC’s policies, procedures, and finances. By letter
dated December 14, 2016, both Robert Roswall, the Bureau’s Commissioner, and Romana
McNeely-Stanley, AAA’s Director, informed the CCDC that these two agencies were at
the CCDC “to monitor your agency’s programs and policies and procedures.” Specifically,
in accordance with the Service Provider conditions,
“[t]he Service Provider agrees to cooperate with the AAA and
assist in any efforts undertaken or approved by the Bureau, the
AAA or Administration on Aging (AoA) to monitor and/or
evaluate its programs. The Bureau, AAA or AoA shall, if
requested, have access to all documents relating to the
operation of the Service Provider, including but not limited to,
documents providing information relating to the following:
payroll, tax, travel, purchasing, financial management, and
any internal or external audit information generated by the
Service Provider or third party. Any Service Provider
receiving Grants through the Bureau shall make full and
complete disclosure in a timely manner of any and all
financial, operational, and/or administrative information, if
requested by the Bureau, AAA or AoA. Failure to do so shall
result in suspension of the Grants and may lead to termination
of the Grants.”
According to Ms. McGlothlin, during the course of the investigation and
audit a significant debt of approximately $250,000.00 was discovered in the CCDC’s
budget. This debt was comprised of unpaid payroll taxes with associated penalties and
interest, Medicaid reimbursements due to overpayment to the CCDC, and various
outstanding bank loans. Further, it was discovered that during 2016, the CCDC received
several “Notice of Intent to Seize (‘levy’) Property or Rights Property” from the Internal
Revenue Service (“IRS”) related to the CCDC’s failure to pay payroll taxes. In addition
to this debt, the CCDC had an ongoing semi-monthly payroll obligation of approximately
3
$60,000 to $75,000. At the end of 2016, there was only $33,221.96 in the organization’s
checking account. 2
Ms. McGlothlin further averred that during the Bureau’s and AAA’s
involvement with the CCDC, “there was emphasis on aggressively reducing the CCDC’s
debt and addressing the various outstanding IRS payments, penalties, and interest, as well
as repaying the State of West Virginia for previous Medicaid overpayments made to the
CCDC.” Further, based on information from West Virginia Bureau of Senior Services
Commissioner Roswall, she stated that the CCDC’s contracts were in jeopardy - which cast
doubt on the continuing viability of the organization. Finally, Ms. McGlothlin averred that
in 2016, the petitioners “were the two highest paid non-professional employees at the
CCDC. Wanda Keener was paid $46,597.20 and Katherine Asbury was paid $72,360.”
On December 21, 2016, the CCDC Board of Directors (“Board”) met and
voted to execute a contract with AAA to manage the organization for a six-month period.
Further, the Board voted to approve the “involuntary separation of both” of the petitioners,
the two highest paid employees, from employment with the CCDC. The petitioners were
terminated on December 22, 2016. Ms. McGlothlin stated that on the date of discharge,
2
Ms. McGlothlin also averred in her affidavit that out of concern regarding the
CCDC’s “ability to continue to pay its employees at the end of December 2016, the
organization was required to obtain a line of credit in April of 2017, in the amount of
$20,500 to ensure its ability to meet its ongoing payroll obligations.” She further stated
that the line of credit was “for the sole purpose of being able to guarantee wage payments
to its employees so that services provided to Clay County Senior Citizens could continue.”
4
most of petitioner Asbury’s “job responsibilities were being performed by other
employees.” Indeed, both of the petitioners’ respective job duties were absorbed by the
remaining employees and their positions were never filled.
Critically, the information provided by Ms. McGlothlin in her affidavit was
confirmed by the CCDC’s corporate representative (and then-current Executive Director,
Stephanie Duffield) in a 30(b)(6) deposition taken by the petitioners. See W. Va. R. Civ.
P. 30(b)(6).
With specific regard to the petitioners’ termination, the CCDC had a policy
and procedure manual, the Employment Guide, in effect at the time of the events which
gave rise to the subject of this litigation. 3 There is an introduction on the third page of the
Employment Guide directed “To the Employee:” which conveys that this document “is
designed to provide information and direction on personnel matters and to assure fair and
equal treatment to all CCDC employees.” At the bottom of this page – a page that contains
seventy-six words in total – is the following language: “Note-Receipt of this Employment
Manual does not constitute an employment contract with this agency.” Also, in the
3
While Ms. McGlothlin stated that the CCDC adopted a new Personnel Policies and
Procedures Handbook (“the Handbook”) at the December 21, 2016, meeting, the
petitioners dispute that the Handbook was properly adopted prior to their discharge from
employment. The CCDC disagreed with the petitioners’ position below, but chose to
proceed under the Employment Guide as controlling for the resolution of the issues raised
herein.
5
section of the Employment Guide entitled “USE OF THE MANUAL,” the following
language is found: “[T]he manual should be used as a guide in dealing with agency
personnel matters.” Significantly, there is no term of employment set out in the manual.
The Employment Guide also provides for two classifications of involuntary
termination. The first is “Positive Dismissal,” which is defined as a termination “based on
circumstances beyond the employee’s control.” The second is “Negative Dismissal,” which
is based upon behavior that is controlled by the employee. The applicable causes for an
involuntary termination which are relevant to this case are also set forth in the Employment
Guide as follows:
D. INVOLUNTARY TERMINATION
....
2. Causes for Involuntary Termination
(1) Positive Termination
....
b. Insufficient Funding
Termination of an employee may be necessary
prior to the time indicated in the work plan when there
is a short fall in funds, or the program is defunded.
c. Reorganization and Discontinuance of a Particular
Position or Area of Service
Termination of an employee (except when on
extended sick leave) may result when reorganization
6
and discontinuance of a particular position or area of
service occurs.
The CCDC contends that the petitioners were involuntarily terminated under
the “Positive Termination” category because their termination arose out of circumstances
beyond their control, i.e., the CCDC’s financial situation. Thus, the petitioners were
terminated pursuant to the “Insufficient Funding and Reorganization and Discontinuance
of a Particular Position or Area of Service” sections of the “Positive Dismissal” section in
the Employment Guide. The petitioners’ positions were dissolved, their work duties were
easily absorbed by others, and the dissolution of these positions resulted in a savings to the
non-profit organization in excess of $115,000.00 per year.
Following their termination, the petitioners filed a lawsuit against the CCDC,
alleging violations of the Act, West Virginia Code §§ 5-11-2 and -9, and breach of an
implied employment contract. After a period of discovery, the CCDC moved for summary
judgment. 4 The CCDC argued that the petitioners were not discriminated against based on
their ancestry or national origin or any membership in a protected class. In this regard,
both the petitioners testified in their respective depositions that their ancestors were from
America and petitioner Keener testified that she was not fired because of some lineage she
4
The CCDC filed its motion for summary judgment on April 28, 2020, and
the petitioners filed their response on May 12, 2020.
7
had with some other nationality. The CCDC also argued that the petitioners were not
discriminated against based upon their familial status. Finally, the CCDC argued that the
petitioners were at-will employees who could be terminated for any nondiscriminatory
reason; that they could not prevail on their theory of a breach of an implied contract in
connection with the Employment Guide because it failed to suggest or imply that an
employee either has a promise of job security or employment for a fixed-term; and that no
contract existed because the disclaimer in the Employment Guide was sufficient to prevent
the formation of a contract.
The petitioners responded that ancestry discrimination was the basis of their
termination in that Ms. Taylor, see text supra, was their sister. 5 The petitioners further
5
In support of their claim that they were terminated because of their familial
relationship with Ms. Taylor, the petitioners relied upon petitioner Asbury’s testimony that
asserted then-CCDC Board President, Ms. Thomas, advised her that she (Ms. Thomas) was
instructed by both Ms. Roswall and Ms. McNeely-Stanley to fire the petitioners and Ms.
Taylor. Petitioner Asbury testified that she was told that she could either resign or be fired,
and when she refused to resign she was informed that she and petitioner Keener would be
terminated. Petitioner Keener was not privy to this meeting between petitioner Asbury and
Ms. Thomas.
Petitioner Asbury also recounted that during this meeting Mr. Roswall called Ms.
Thomas and yelled at her to get out of the meeting immediately because she had no business
speaking with petitioner Asbury. Ms. Thomas replied that she had spoken with the attorney
for the Board of Directors for the CCDC, Andrew Brison, who had told her she could speak
with petitioner Asbury to offer the arrangement mentioned above.
Critically, while the petitioners rely upon this testimony to demonstrate the CCDC’s
intent to terminate them because of their relationship with their sister, Ms. Taylor, neither
Mr. Roswall nor his staff, who interviewed various CCDC employees as part of their
investigation and monitoring of the CCDC, were employees of the CCDC or otherwise
8
asserted, in what can fairly be described as conclusory fashion, that the CCDC Employment
Guide constituted a contract due to inadequate disclaimers therein. Specifically, they
contended that the “small disclaimer is inadequate to defeat Plaintiffs’ implied contract
under West Virginia law[]” and that there was a “dispute as to whether the facts proved
or admitted in this case are such to constitute an agreement binding the parties.” Finally,
the petitioners contended that CCDC failed to meet the necessary burden of proof to sustain
a grant of summary judgment.
By order entered March 5, 2021, the circuit court granted the CCDC’s motion
for summary judgment. With respect to the petitioners’ claim that the Act was violated as
a result of discrimination based upon ancestry, specifically, their familial relationship with
Ms. Taylor, the court found that “[i]t is undisputed that Plaintiffs were born and raised in
the United States, are Caucasian, [and] complain of no disabilities”; and that the petitioners
“acknowledged in their depositions that they were not discriminated against on the basis
of their race, religion, color, sex, age, blindness, or disability.” The court concluded that
“ancestry discrimination does not include discrimination based upon a family relationship.
Ancestry has a broader meaning than just a relationship to one specific other person.”
Accordingly, the court determined that the petitioners’ claims were not actionable under
the Act.
affiliated with the CCDC. Further, the petitioners failed to provide any evidence or law to
support the notion that Mr. Roswall’s actions and conduct in the exercise of his State-
mandated official duties as the Bureau’s Commissioner could be imputed to the CCDC.
9
In regard to the petitioners’ claims that the CCDC breached an implied
contract as a result of their termination, the circuit court found that the uncontradicted
evidence was that at the end of 2016 and the beginning of 2017 the CCDC suffered from
“a large financial debt” that exceeded $250,000.00, and that it “did not have sufficient
funding to cover its ongoing payroll obligations.” The court also expressly found that the
petitioners presented “no evidence or countervailing affidavit to contradict” the following:
16. Mrs. McGlothlin’s affidavit further stated that Plaintiffs
were the highest paid non-professional employees at CCDC
with a combined total salary in excess of One Hundred Fifteen
Thousand Dollars ($115,000.00) per year.
17. It is also set forth in the McGlothlin affidavit that neither
of Plaintiffs’ employment positions were replaced, and their
job duties were absorbed by other employees.
Further, the circuit court found that it was undisputed that the Employment Guide had a
“clear” disclaimer at the bottom of page three. The court recognized the petitioners’
argument that because the Employment Guide contained a progressive disciplinary
process, which the petitioners contended had to be followed before an employee could be
discharged, an implied contract was formed with each employee. However, the court found
that the Employment Guide contained no terms that reasonably can be construed to promise
job security to the petitioners. In regard to the progressive disciplinary process, the court
determined that “Plaintiffs’ discharge was unrelated to any conduct that would trigger the
disciplinary process[.]” Succinctly stated, the petitioners’ involuntary termination was “a
Positive Dismissal” based on financial circumstances beyond the petitioners’ control.
Therefore, the court concluded, the Employment Guide did not form a contract for
10
employment, the petitioners were at-will employees, and accordingly they could be
terminated for any nondiscriminatory reason.
This order forms the basis for the petitioners’ appeal.
II. Standard of Review
On appeal, “[a] circuit court’s entry of summary judgment is reviewed de
novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Further, we
have stated that under our summary judgment standard,
a party seeking summary judgment must make a preliminary
showing that no genuine issue of material fact exists. This
means the movant bears the initial responsibility of informing
the circuit court of the basis of the motion and identifying those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact. However, the movant does not
need to negate the elements of claims on which the nonmoving
party would bear the burden at trial.
Powderidge Unit Owners Ass’n v. Highland Props., Ltd., 196 W. Va. 692, 698-99, 474
S.E.2d 872, 878-79 (1996). If a moving party meets this initial burden,
the nonmovant must go beyond the pleadings and contradict
the showing by pointing to specific facts demonstrating a
“trialworthy” issue. To meet this burden, the nonmovant must
identify specific facts in the record and articulate the precise
manner in which that evidence supports its claims. As to
material facts on which the nonmovant will bear the burden at
trial, the nonmovant must come forward with evidence which
will be sufficient to enable it to survive a motion for directed
verdict at trial. If the nonmoving party fails to meet this burden,
the motion for summary judgment must be granted.
11
Id. at 699, 474 S.E.2d at 879. Under the foregoing principles, we address the issues before
us.
III. Discussion
A. Ancestry Discrimination
The petitioners argue that the circuit court erred in finding that ancestral
discrimination is duplicative of the West Virginia Human Rights Act’s protections against
national origin and ethnic discrimination, 6 and more specifically that it does not include
discrimination based on familial relation. The petitioners contend it is possible for an
individual to be the victim of ancestry discrimination based solely on his or her familial
6
Generally,
[i]n order to make a prima facie case of employment
discrimination under the West Virginia Human Rights Act,
W.Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer
proof of the following:
(1) That the plaintiff is a member of a protected class.
(2) That the employer made an adverse decision concerning the
plaintiff.
(3) But for the plaintiff’s protected status, the adverse decision
would not have been made.
Syl. Pt. 3, Conaway v. E. Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986).
12
status, without any consideration of their ethnicity or national origin. In support of this
theory, they ask this Court to hold that that “ancestry” includes “sibling or familial status”
under the Act. In contrast, the CCDC argues that “ancestry employment discrimination
protection has never been extended to ‘siblings’” and that West Virginia law does not
recognize “familial status” in the employment law context, because “[f]amilial status is
simply not the kind of innate characteristic that anti-discrimination laws like the West
Virginia Human Rights Act were enacted to protect.”
First, it is clear that the Legislature did not expressly designate “familial
status” as a basis for discrimination in the employment context. In relevant part, West
Virginia Code section 5-11-2, entitled “Declaration of policy” sets forth this State’s public
policy as follows: “Equal opportunity in the areas of employment and public
accommodations is hereby declared to be a human right or civil right of all persons without
regard to race, religion, color, national origin, ancestry, sex, age, blindness or disability.”
Id. (emphasis added). In contrast, the statue further provides that “[e]qual opportunity in
housing accommodations or real property is hereby declared to be a human right or civil
right of all persons without regard to race, religion, color, national origin, ancestry, sex,
blindness, disability or familial status.” Id. (emphasis added). In short, while the
Legislature recognized that “familial status” could be a basis for a claim of discrimination
in regard to housing accommodations and real property, the list of bases for a claim of
discrimination in the employment context does not include “familial status.” See id.Applying a longstanding, basic principle of statutory construction to the issue before us,
13
we reiterate that “[i]t is not for this Court arbitrarily to read into [a statute] that which it
does not say. Just as courts are not to eliminate through judicial interpretation words that
were purposely included, we are obliged not to add to statutes something the Legislature
purposely omitted.” Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77
(1996) (citing Bullman v. D & R Lumber Co., 195 W.Va. 129, 464 S.E.2d 771 (1995);
Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994)); see also State ex rel. Frazier
v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994) (“Courts are not free to read into
the language what is not there, but rather should apply the statute as written.”).
Consequently, we hold that familial status is not a protected group for purposes of an
employment discrimination claim under the West Virginia Human Rights Act, W. Va.
Code §§ 5-11-1 to -9 (2022). Our holding in this regard is compelled by the indisputable
fact that the Legislature specifically and purposefully excluded familial status from the Act
in regard to “areas of employment.” Id. § 5-11-2.
Next, we examine petitioners’ claim that even though familial status is not
expressly included in the Act for purposes of employment discrimination, it is
encompassed within the term “ancestry” which is undefined in the Act. See W. Va. Inst. of
Tech. v. W. Va. Hum. Rts. Comm’n, 181 W. Va. 525, 529, n.6, 383 S.E.2d 490, 494 n.6
(1989) (“We note that W. Va. Code, 51-11-3, as amended, does not contain any definitions
of ‘national origin’ or ‘ance[]stry.’”). Given the lack of any statutory definition for the
term “ancestry,” we again apply well-established rules of statutory construction to ascertain
the meaning of the word. In this regard, we have previously held that “[a] statutory
14
provision which is clear and unambiguous and plainly expresses the legislative intent will
not be interpreted by the courts but will be given full force and effect.” Syl. Pt. 2, State v.
Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951); accord Syl. Pt. 2, Crockett v. Andrews,
153 W. Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a statute is free from
ambiguity, its plain meaning is to be accepted and applied without resort to
interpretation.”). Moreover, we have held that “[i]n the absence of any definition of the
intended meaning of words or terms used in a legislative enactment, they will, in the
interpretation of the act, be given their common, ordinary and accepted meaning in the
connection in which they are used.” Syl. Pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va.
637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170
W. Va. 162, 291 S.E.2d 477 (1982). Further, “[i]t is a fundamental principle of statutory
construction that the meaning of a word cannot be determined in isolation, but it must be
drawn from the context in which it is used.” W. Va. Health Care Cost Rev. Auth. v. Boone
Mem. Hosp., 196 W. Va. 326, 338, 472 S.E.2d 411, 423 (1996) (citations omitted).
Applying the above-mentioned principles of statutory construction, the plain,
ordinary meaning of the word “ancestry” is defined as “[a] line of descent; collectively, a
person’s forebears; lineage.” Ancestry, Black’s Law Dictionary (11th ed. 2019); see also
Ancestry, Webster’s New World College Dictionary (5th ed. 2014) (“family descent or
lineage.”). Here, petitioners’ attempt to shoehorn their claims into this basic definition of
“ancestry” must fail because siblings are not lineal descendants. More broadly stated,
15
where family status does not involve lineal descent, it does not fall within the protected
class of “ancestry” in the context of employment discrimination, W. Va. Code § 5-11-2.
Further, contrary to the petitioners’ argument that ancestry must be viewed
separately and distinctly from the other protected classes set forth in the Act, 7 we cannot
look at the term “ancestry” in isolation to ascertain its meaning “but it must be drawn from
the context in which it is used.” W. Va. Health Care Cost Rev. Auth., 196 W. Va. at 338,
472 S.E.2d at 423. The United States District Court for the Southern District of West
Virginia addressed this statutory concept in Billiter v. Jones, No. CV 3:19-0288, 2020 WL
5646901 (S.D.W. Va. Sept. 22, 2020), which was relied upon by the circuit court in
reaching its decision. In Billiter, the plaintiff’s counsel (petitioners’ counsel herein),
asserted that plaintiff Lauren Billiter, a deputy clerk in the Mason County Circuit Clerk’s
Office, was terminated from her employment in violation of the Act after her mother ran
for circuit clerk and lost. Id. at *1. More specifically, the plaintiff argued that her claim
7
The petitioners argue, albeit somewhat indirectly, that any determination that
ancestry includes characteristics of ethnicity or national origin would render the word to
be mere surplusage in the Act. See Lightner v. Riley, 233 W. Va. 573, 580, 760 S.E.2d 142,
149 (2014) (“A court may not interpret a statute such that the result is to make the statute
meaningless since one of the basic principles of statutory construction is that the
Legislature will not enact a meaningless statute.”). We reject this argument; a
determination that ancestry has characteristics of other words used in the statute, i.e.,
national origin or ethnicity, does not require this Court to “interpret” the statute, thereby
rendering it meaningless and inoperable. See id.16
fell within the Act’s prohibition of discrimination based on “ancestry” due to her familial
relationship with her mother. 8 See id.First, the district court acknowledged that “West Virginia’s Human Rights
Act does not define the word ‘ancestry,’ nor does any decision of the West Virginia
Supreme Court of Appeals.” Id. at *6. Further, the court rejected arguments that ancestry
was identical to ethnicity or national origin, finding that it did “not believe that the
including of ‘ancestry’ in the Human Rights Act is merely redundant or meaningless.” Id.The district court turned to the constructs established by this Court in
Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152 (1995) (discussing
alleged discrimination based on “Native American ancestry”), and Fairmont Specialty
Services v. West Virginia Human Rights Commission, 206 W. Va. 86, 522 S.E.2d 180(1999) (discussing alleged discrimination based on “Mexican-American ancestry”), which
the court described as “suggest[ing] that ancestry is a meaningful part of the act.
Discrimination based on ancestry means discrimination based on some type of
characteristic like race, ethnicity, or national origin that is passed down by lineal
8
The plaintiff also argued that she was discriminated against because of her mother
and her mother’s political affiliation. See Billiter, 2020 WL 5646901, at *1.
17
ascendants.” 9 2020 WL 5646901, at *6. The court relied upon the following analysis by
this Court in Fairmont Specialty Services:
In Fairmont Specialty Services, the West Virginia Supreme
Court of Appeals upheld an award to a plaintiff who alleged
harassment based on her ancestry. Fairmont Specialty Servs.,
522 S.E.2d at 183. Specifically, the plaintiff was “a United
States citizen of Mexican ancestry.” Id. at 184. There the
plaintiff complained that a coworker made derogatory remarks
relating to her being “a Mexican,” Id. at 183-88. The Court
explicitly discussed how this is the kind of language that is
actionable under the anti-discrimination laws like the Human
Rights [Act]. Id. at 188.
Conduct such as use of the “N” word to describe
an African-American, the “C” word to describe
women, the terms “Sic,” “W.P.” or “Jap” to
describe those of other ancestral heritages, or
other racial, sexual or ethnic pseudonym,
intended to denigrate others, cannot be tolerated
in the workplace. They are the type of outrageous
discriminatory conduct that may be considered
to be of an aggravated nature such that the
threshold for it to be actionable is much lower
than more subtle forms of discrimination which
cumulatively cause conduct to be actionable
under the Human Rights Act.
Id. at 188 n.8.
This kind of actionable discrimination relates to innate
characteristics that are shared by a class of persons. This can
be seen in the other protected classes under the West Virginia
Human Rights Act. W.Va. Code § 5-11-2 (“Equal opportunity
in the areas of employment and public accommodations is
hereby declared to be a human right or civil right of all persons
9
For example, in Barefoot this Court described the plaintiff’s claim as “racial or
ancestral discrimination” based on her Native American heritage. 193 W. Va. at 484-85
n.13, 457 S.E.2d at 162-63 n.13.
18
without regard to race, religion, color, national, origin,
ancestry, sex, age, blindness or disability.”).
Billiter, 2020 WL 5646901, at *7.
The district court in Billiter, citing the same principles of statutory
construction that we now apply, determined that “the meaning of ‘ancestry’ should be
understood to mean something akin to the words surrounding it, the other grounds upon
which discrimination is forbidden under the West Virginia Human Rights Act.” Id. (citing,
in part, Darlington v. Mangum, 192 W. Va. 112, 114, 450 S.E.2d 809, 811 (1994) (“‘It is
a fundamental rule of construction that, in accordance with the maxim noscitur a sociis,
the meaning of a word or phrase may be ascertained by reference to the meaning of other
words or phrases with which it is associated. Language, although apparently general, may
be limited in its operation or effect where it may be gathered from the intent and purpose
of the statute that it was designed to apply only to certain persons or things, or was to
operate only under certain conditions.’ Syllabus point 4, Wolfe v. Forbes, 159 W.Va. 34,
217 S.E.2d 899 (1975).”). The court granted the defendants’ motion for summary
judgment on the ancestry claims, concluding that neither the plaintiff nor her mother’s
political affiliation or familial status was the “kind of innate characteristic that anti-
discrimination laws like the West Virginia Human Rights Act were enacted to protect.”
2020 WL 5646901, at *7.
19
In light of the foregoing, we hold that as used in the West Virginia Human
Rights Act, West Virginia Code § 5-11-2 (2022), ancestry means discrimination based on
some characteristic like race, ethnicity, or national origin that is passed down by lineal
descendants. In the context of employment, familial status is not included among the
groups entitled to protection by the Human Rights Act. The petitioners’ claim that they
were terminated because of their familial status with their sister, Ms. Taylor, is not
actionable under the Act because familial status is not a prohibited basis for discrimination
in the employment context under the Act and does not fall within the meaning of ancestry
as used in the Act. Therefore, the circuit court did not err in granting the CCDC’s motion
for summary judgment on this issue.
B. Implied Contract
The petitioners’ remaining assignments of error overlap and are repetitive.
They argue that the circuit court erred: 1) in finding that the Employment Guide did not
form a contract between the petitioners and the CCDC, 2) in holding that even if a contract
had been formed, the CCDC was within its rights to terminate them pursuant to other terms
of the Employment Guide; and 3) in finding that the petitioners were at-will employees
who could be terminated for any nondiscriminatory reason. At its core, the petitioners
contend that that they were not at-will employees because the Employment Guide created
an implied contract between them and the CCDC that prevented the CCDC from
terminating them without following the progressive disciplinary policies set forth in the
20
Employment Guide. 10 Conversely, the CCDC argues that the petitioners were at-will
employees who could be terminated for any nondiscriminatory reason and who cannot
prevail on their breach of contract theory.
“In West Virginia, the law presumes employment to be terminable at will.”
Suter v. Harsco Corp., 184 W. Va. 734, 737, 403 S.E.2d 751, 754 (1991); see Williams v.
Precision Coil, Inc., 194 W. Va. 52, 63, 459 S.E.2d 329, 340 (1995) (“As a general rule,
West Virginia law provides that the doctrine of employment-at-will allows an employer to
discharge an employee for good reason, no reason, or bad reason without incurring liability
unless the firing is otherwise illegal under state or federal law.”). Further, the petitioners
have the burden to defeat the presumption of at-will employment. Suter, 184 W. Va. at
737, 403 S.E.2d at 754 (“The burden is on the party contending that the relationship was
other than terminable at will to rebut the presumption of employment terminable at will.”).
A “party asserting that an employment was other than at-will bears the burden of rebutting
the at-will presumption.” Younker v. E. Associated Coal Corp., 214 W. Va. 696, 700, 591
S.E.2d 254, 258 (2003). This burden is heavy one that must be established by clear and
convincing evidence, as we held in syllabus three of Adkins v. Inco Alloys Int’l, Inc., 187
10
The petitioners also contend that “no part of the handbook or any associated
documentation asked the employees at CCDC to acknowledge that they were at-will or
purported to limit the employees’ reliance on the terms and guarantees set forth by the
handbook[,]” and the “CCDC employees were never asked to acknowledge that they were
employees at-will.” However, they provide no legal authority for the proposition that the
employer is required to have the employees “acknowledge” their at-will employment
status. Further, for reasons discussed infra in greater detail, these claims are without merit.
21
W. Va. 219, 417 S.E.2d 910 (1992): “Where an employee seeks to establish a permanent
employment contract or other substantial employment right, either through an express
promise by the employer or by implication from the employer’s personnel manual, policies,
or custom and practice, such claim must be established by clear and convincing evidence.”
Id. In regard to the at-will employee presumption, we explained in Suter that
[i]f the presumption in West Virginia were against
employment terminable at will, an employer seeking to create
an employment at will relationship would have to disclaim
guarantees of job security in a very bold and definite way,
perhaps with language such as “Employees serve at the will
and pleasure of the employer and can be fired at any time and
without any notice, for any reason or no reason at all.”
However, because we operate on the opposite presumption—
that is, that every employment relation is terminable at will,
any promises alleged to alter that presumptive relationship
must be very definite to be enforceable.
184 W. Va. at 737, 403 S.E.2d at 754.
Here, the petitioners acknowledge the at-will employment status
presumption. See Mace v. Charleston Area Med. Ctr. Found., Inc., 188 W. Va. 57, 63, 422
S.E.2d 624, 630 (1992) (“In West Virginia, the law presumes that employment is
terminable at will, permitting an employer to discharge an employee for cause, for no
cause, or even for wrong cause.”). However, they argue that an implied contract existed
between them and the CCDC due to “the various rights created by the handbook for [the
CCDC’s] employees, particularly those protecting its employees from dismissal without
following handbook procedures, . . . coupled with the CCDC handbook’s promises
regarding the terms and conditions of Petitioners’ employment[.]”
22
The parties do not dispute that “an employee handbook may form the basis
of a unilateral contract if there is a definite promise therein by the employer not to discharge
covered employees except for specified reasons.” Syl. Pt. 6, Cook v. Heck’s Inc., 176 W.
Va. 368, 342 S.E.2d 453 (1986); accord Williams, 194 W. Va. at 56, 459 S.E.2d at 333,
Syl. Pt. 5; see Cook, 176 W. Va. at 369, 342 S.E.2d at 454, Syl. Pt. 3 (“Contractual
provisions relating to discharge or job security may alter the at will status of a particular
employee.”). Further,
[a] promise of job security contained in an employee
handbook distributed by an employer to its employees
constitutes an offer for a unilateral contract; and an employee’s
continuing to work, while under no obligation to do so,
constitutes an acceptance and sufficient consideration to make
the employer’s promise binding and enforceable.
Id. at 369, 342 S.E.2d at 454, Syl. Pt. 5 (emphasis added); accord Williams, 194 W. Va. at
56, 459 S.E.2d at 333, Syl. Pt. 4. However, “[a]n employee handbook which contains a
clear and conspicuous disclaimer of job security will preserve the at-will status of the
employment relationship.” Mace, 188 W. Va. at 59, 422 S.E.2d at 626, Syl. Pt. 8. Further,
“[a]n employer may protect itself from being bound by any and all statements in an
employee handbook by placing a clear and prominent disclaimer to that effect in the
handbook itself.” Suter, 184 W. Va. at 735, 403 S.E.2d at 752, Syl. Pt. 5.
Based on our careful review of the petitioners’ evidence, we agree with the
circuit court’s conclusion that the petitioners failed to carry their burden of proving the
existence of an implied employment contract between them and the CCDC. The language
23
of the Employment Guide contains neither a promise of job security nor a term of
employment. To the contrary, the Employment Guide specifically provides the following
in regard to “Tenure of Employment”: “As most Federal/State Funds are appropriated on
a yearly basis, no guarantee of employment can be made beyond the grant period.” Further,
and significantly, on the third page of the Employment Guide is the following language:
“Note-Receipt of this Employment Manual does not constitute an employment
contract with this agency.”
Notwithstanding the foregoing, the petitioners base their implied contract
claim on the progressive disciplinary procedure language contained in the Employment
Guide; their position is that this procedure was a mandatory condition precedent to their
termination. However, this argument completely ignores the fact that pursuant to express
language in the Employment Guide, involuntary termination may occur for several
different reasons, including “circumstances beyond the employee’s control,” which include
insufficient funding and “reorganization and discontinuance of a particular position or area
of service.” Where these circumstances exist, a termination from employment is a
“positive termination” which fails to trigger any progressive disciplinary procedure
pursuant to the Employment Guide. Accordingly, the petitioners’ argument in regard to
the progressive disciplinary procedure creating an implied contract fails for lack of a
“definite promise not to discharge covered employees except for a specified reasons.” See
Cook, 176 W. Va. at 369, 342 S.E.2d at 454, Syl. Pt. 6, in part.
24
In consideration of the foregoing, we find that that the circuit court did not
err in its determination that the language of the Employment Guide failed to support the
petitioners’ claim that the language formed an implied employment contract. See Syl. Pt.
2, iPacesetters, LLC v. Douglas, 239 W. Va. 820, 806 S.E.2d 476 (2017) (“It is the province
of the court, and not of the jury, to interpret a written contract.” Syl. Pt. 1, Stephens v.
Bartlett, 118 W. Va. 421, 191 S.E. 550 (1937).”).
Further, the petitioners failed to carry their burden by not producing any other
facts tending to show that an implied contract existed. In this regard, it is undisputed that
the petitioners had a copy of the Employment Guide and that neither petitioner, when
questioned during their respective depositions, denied the existence of the disclaimer
language in the Employment Guide. 11 Also, when specifically questioned, neither
petitioner could identify any language in the Employment Guide upon which they
respectively relied to support their claim that an employment contract existed between
them and the CCDC.
The parties agree that the petitioners “did not commit any offense that would
lead to immediate termination as identified in the Guide[.]” However, the petitioners failed
to produce any evidence to refute the CCDC’s evidence that they were involuntarily
11
We agree with the CCDC that because neither petitioner denied the existence of
the disclaimer contained in the Employment Guide when specifically questioned, they
cannot now claim that the disclaimer was “not conspicuous.”
25
terminated under the “Insufficient Funding and Reorganization and Discontinuance of a
Particular Position or Area of Service” categories within the “Positive Dismissal” section
in the Employment Guide because their termination arose out of circumstances beyond
their control, i.e., the CCDC’s financial situation. The petitioners’ positions were
dissolved, their work duties were easily absorbed by others, and the dissolution of their
positions resulted in a savings to the nonprofit organization in excess of $115,000.00 per
year. Additionally, Ms. Duffield, then-CCDC Executive Director, testified as the CCDC’s
30(b) designated representative that the petitioners were terminated because they “were at-
will employees. And our agency had to make some tough decisions. We were a quarter of
a million dollars in debt and we had to terminate the positions that were the most easily
absorbed. We had to make some tough decisions.” Ms. Duffield further explained that the
petitioners did not have as many duties and responsibilities as most of the other employees,
and therefore their jobs were easily absorbed. Ms. Duffield confirmed that the petitioners’
dissolved positions were never reconstituted. Critically, the petitioners failed to offer any
evidence to rebut Ms. Duffield’s testimony, Ms. McGlothlin’s affidavit, or the CCDC’s
position in regard to their termination. To the contrary, the petitioners testified that they
had no knowledge of the financial condition of the CCDC.
In short, the petitioners provided no evidence to support their claim that they
were not at-will employees. See Adkins, 187 W. Va. at 220, 417 S.E.2d at 911, Syl. Pt. 3.
Thus, they have failed to prove by clear and convincing evidence that the Employment
Guide formed the basis of a contract containing definitive and ascertainable terms
26
applicable to each of them, which would be required in order for the petitioners to prevail
on their claim that an implied contract existed in this case. See id. The circuit court did
not err in its finding that “the Plaintiffs were at-will employees, and as such could be
terminated for any non-discriminatory reason.”
IV. Conclusion
For the foregoing reasons, the circuit court’s March 5, 2021, order granting
summary judgment to the CCDC and dismissing the case from the court’s docket is
affirmed.
Affirmed.
27