Austin v. Preston County Commission et al

Filing 49

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION 41 FOR SUMMARY JUDGMENT. Signed by District Judge Irene M. Keeley on 10/14/2014. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COURTNEY AUSTIN,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:13CV135
(Judge Keeley)

PRESTON COUNTY COMMISSION
and CRAIG JENNINGS, individually,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 41]
Before the Court is the motion for summary judgment (dkt. no.
41) filed by the defendants, the Preston County Commission (“the
Commission”), the governing body of Preston County, West Virginia,
and Craig Jennings (“Jennings”), President of the Preston County
Commission, individually.

For the reasons that follow, the Court

GRANTS IN PART and DENIES IN PART the Commission’s1 motion for
summary judgment as to Counts One, Two, Three, Four, Six, Seven,
and Eight of the complaint.
I. BACKGROUND
This case concerns the Commission’s termination of Courtney
Austin (“Austin”), the director of the Preston County Animal

1

Both defendants moved for summary judgment, but the Court
will refer to them collectively as “the Commission” for purposes of
this opinion.

AUSTIN V. PRESTON COUNTY COMMISSION

1:13CV135

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Shelter (“Shelter”).

The questions presented on summary judgment

include:
1)

Was Austin fired for posts she wrote on Facebook in
violation of the First Amendment pursuant to 42 U.S.C.
§ 1983;

2)

Was Austin wrongfully discharged in violation of West
Virginia public policy;

3)

Was Austin discharged after raising issues of wrongdoing
or waste in violation of the West Virginia Whistle-Blower
Act, W. Va. Code § 6C-1-3(a);

4)

Did

the

Commission

and

Jennings

make

defamatory

statements regarding Austin during the Commission meeting
on February 4, 2013, and thereafter in the media;
5)

Did the Commission fail to pay Austin for overtime, in
violation of the West Virginia Wage Payment Act, W. Va.
Code § 21-5-4;

6)

Did Austin have a property interest in her employment
with the Commission that was terminated in violation of
the Due Process Clause of the United States and West
Virginia Constitutions;

2

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
7)

Can Austin be awarded punitive damages under the West
Virginia Tort Claims Act, W. Va. Code §§ 29-12A-1 et.
seq.; and,

8)

Is

Jennings

entitled

to

qualified

immunity

as

a

government official undertaking discretionary activities
in his official capacity.
The Commission did not move for summary judgment on Austin’s
claim, in Count V of the Complaint, that she is entitled to
overtime wages under the Fair Labor Standards Act (“FLSA”).

Thus,

the Court will not address that Count.
A.

Factual Background
The Commission hired Austin as manager of the Shelter on

September 12, 2011.

Initially, the Commission compensated her on

an hourly basis, but, at her request, switched her compensation to
a salary basis sometime during June 2012.

At the time of Austin’s

termination, she was Shelter Director.
Around October 10, 2011, Austin created a Facebook “page”
titled “Preston County Animal Shelter” within her own personal
Facebook account. County Administrator Kathy Mace (“Mace”) granted
Austin permission to create the page.

Throughout her employment,

Austin posted information about the Shelter on the page.

The

Commission did not have administrative access rights to the page.
3

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
On February 19, 2013, Austin posted a message on the page
regarding euthanasia:
Guess what everybody!!! Yesterday marked 60 DAYS WITHOUT
ANY EUTHANASIA!!!!! IF YOU LIKE THIS, please comment or
LIKE THIS POST SO WE CAN SHOW EVERYONE THERE ARE OTHER
OPTIONS!!!!!!
The following day, Austin commented on her earlier post. “The
more people we get to like this comment, the more we can brag about
it.

Get your friends to like No Euthanasia for PCAS.”
On February 28, 2012, Mace gave Austin a written warning for

“refusal to comply with reasonable instructions of a supervisor”
regarding the Facebook post.

The written warning stated that

Austin had been warned “about giving the public the impression that
we are moving toward a no-kill shelter in Preston County” on
previous occasions.

Mace was concerned with Austin giving the

public the impression that the animal shelter was no-kill.
Austin was not formally disciplined again for almost one year.
On January 23, 2013, Austin posted another message on the Facebook
page:
We are in need of several transporters this weekend for
animals. I know the weather is rough, but imagine if
it’s that hard on you, how rough it is on our outdoor
kenneled dogs.
Additionally we have no heat in our
indoor animal areas, intake and indoor kennels, and this
has caused our water to freeze making it nearly
impossible to perform daily tasks requiring water for
4

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
cleaning and watering.
It is very cold, and we have
several rescues stepping up and wanting to help more
animals.
For sure we have rescues lined up for 6
animals, and we need to move these dogs to get them into
warmer homes and fosters. If you can help us with one of
the transports, or are headed out of town, and wouldn’t
mind a furry companion, please see if you transport for
us.
For additional information, or to see about
transporting in general, maybe another time, email
[e-mail] and in the subject line title,
use transporter/volunteer. We hope some of you are eager
to make a new furry buddy.
Jennings saw Austin’s post, and asked Mace whether the Shelter was
indeed without water and heat. Mace sent a maintenance employee to
check on the conditions at the Shelter.

It is undisputed that it

was a very cold day in Preston County.

The Commission received a

number of telephone calls from concerned citizens who saw the post
and worried that animals were suffering at the Shelter.
By way of background, it appears that in the Fall of 2011, one
of the two furnaces at the Shelter failed.

A contractor connected

the duct work from the failed furnace to the working furnace to
pump heat throughout the Shelter, but the Commission soon began
seeking

ideas

contractors.

for

a

more

permanent

solution

from

various

Mace informed Austin of the bidding process and

proposals. On January 30, 2013, Austin e-mailed the Commissioners,
raising several concerns about the process of soliciting ideas from

5

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
contractors.

Jennings responded to Austin’s e-mail, stating that

the Commissioners “have it under control.”
On Monday, January 28, 2013, after Austin’s January 23, 2013,
Facebook post, she met with Jennings, Mace, Commissioner Vicki Cole
(“Cole”), and Commissioner David Price (“Price”).

The Commission

instructed Austin to have all future Facebook posts approved by two
of four people:

Mace, Cole, Price, or Jennings.

also requested access to the Facebook page.

The Commission

Austin explained that

the page was created within her personal Facebook account.

Austin

voiced her privacy concerns, and refused to provide her password or
other account information.

The Commissioners and Mace suggested

that Austin close the page and open a new one, but ultimately
discarded that option because the page was well-established and had
many “likes.” At the end of the meeting, the Commission, Mace, and
Austin agreed that Mace would contact an IT employee to try to find
a solution, and would relate what she found to Austin.
After the Monday meeting, Mace met with IT personnel.

On

Thursday, January 31, 2013, Mace e-mailed Austin, telling her to
change her Facebook password to “123abc,” and to provide her log-in
information by Friday, February 1, 2013, at 1:30 P.M.

Austin did

not respond to the e-mail.

On Friday, Mace and the IT employee

waited for Austin’s reply.

Mace called Austin and left her a
6

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
voicemail requesting that Austin return her call.

At 1:59 P.M.,

Mace e-mailed Austin and again asked her to return Mace’s phone
call.
Finally, Mace called the Shelter and spoke to Shelter employee
Elaine Smith (“Smith”).

Austin said in the background to Smith,

“Tell her [Mace] that I’ve closed the page.”

Mace replied “Well

truly that was not what you were instructed to do, so come see me.”
Austin told Mace that she was unavailable until Monday, but
eventually agreed to stop by the office to meet Mace.
Later that day, Austin and Smith met with Mace and Cole. Mace
suspended Austin with pay until the Commission’s meeting at 6:00
P.M. on the following Monday, February 4, 2013.

The suspension

notice stated that Austin was suspended due to her “refusal to
provide passwords and emails to the Facebook account for the
Preston County Animal Shelter by 1:30 p.m. on Friday, February 1,
2013.”
The Commission’s scheduled meeting on Monday, February 4,
2013, was set to begin at 6:30 P.M.

The published agenda for the

meeting does not indicate that the Commission was addressing
personnel issues.

The emergency meeting commenced at 5:30 P.M.,

and Austin accepted the Commission’s offer to go into Executive
Session.
7

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Jennings and the Commission unanimously voted to terminate
Austin’s employment at the Shelter for insubordination.

Jennings

stated on the record that the Commissioners felt “they have had
fraud perpetrated on them, that Mrs. Austin has knowingly and
willingly allowed public false accusations against other county
employees, that friends and families have been misled to believe
that there was no water or heat at the shelter....”
In the days following Austin’s termination, Jennings stated in
both television and print media that the Commission had temporarily
closed the Shelter to audit the financial records.

In an article

published by the Dominion Post on March 5, 2013, Jennings stated
that

“the

bookkeeping

end

of

it

[the

Shelter]

was

in

such

disarray,” and noted unpaid veterinarian bills.
B.

Procedural Background
On May 5, 2013, Austin sued the Commission and Jennings in

this Court. (Dkt. No. 1). Austin’s complaint contains eight counts.
In Count I, Austin alleges that the Commission disciplined her
due to the content of her Facebook posts, and that the Facebook
posts were protected speech within the meaning of the First
Amendment to the United States Constitution, in violation of 42
U.S.C. § 1983.

Id. at 9.

8

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In Count II, Austin alleges that she was discharged in
retribution for exercising her constitutionally protected rights,
in violation of West Virginia law and/or public policy. Id. at 10.
In Count III, Austin alleges that she was discharged after she
raised concerns over wasteful spending, adequate heat, and adequate
water at the Preston County Animal Shelter, in violation of the
West Virginia Whistle-Blower Act.

Id. at 11-12.

In Count IV, Austin alleges that the Commission and Jennings
made false and defamatory statements about her during the February
4, 2013, Commission meeting.

Id. at 12.

Austin alleges that the

statements were published to third parties, both at the February 4,
2013, meeting and to the media through print, television, and
radio. Id. at 13. In addition, Austin alleges that the statements
were knowingly false and intentionally designed to defame her, or,
in the alternative, that they were negligent.

Id.

In Count V, Austin alleges that the Commission failed to pay
her overtime, and that she was entitled to overtime as a non-exempt
worker under the FLSA.

Id. at 13-14.

In Count VI, Austin alleges that the Commission failed to pay
the overtime wages owed to her under the FLSA within seventy-two

9

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
hours2 of her termination, as required by the West Virginia Wage
Payment and Collection Act.

Id. at 15.

As a result, Austin claims

that she is entitled to her unpaid wages and an amount equal to
three times her unpaid wages as liquidated damages.

Id.

In Count VII, Austin alleges that she maintained a property
interest in her employment with the Commission, and was deprived of
notice and an opportunity to be heard before termination of that
interest

pursuant

to

the

West

Virginia

Open

Proceedings Act, W. Va. Code §§ 6-9a-1, et. seq.

Governmental

Id. at 15-16.

In Count VIII, Austin alleges that she was discharged due to
her efforts to raise concerns regarding adequate food and water for
the animals being sheltered in the Preston County Animal Shelter,
in violation of West Virginia public policy regarding the treatment
and protection of animals.

Id. at 17.

See W. Va. Code §§ 7-10-4;

19-20-1, et. seq.; 61-8-19.
On June 17, 2013, the Commission and Jennings filed an answer
to Austin’s complaint.

(Dkt. No. 7).

2

In their answer, the

The seventy-two hour standard in W. Va. Code § 21-5-4(b) has
been revised to provide that an employer must pay a discharged
employee’s wages in full no later than the next regular payday, or
four business days, whichever comes first.
The time period is
irrelevant for purposes of this motion because the Commission has
not paid Austin any overtime as a result of her dismissal.
10

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Commission and Jennings advanced a number of affirmative defenses,
including qualified immunity.

Id. at 9-12.

Following discovery, on June 13, 2014, the Commission and
Jennings filed a motion for summary judgment, alleging the issues
previously mentioned.

(Dkt. No. 41).

On July 7, 2014, Austin

responded (Dkt. No. 44), and on July 21, 2014, the Commission and
Jennings filed a reply. (Dkt. No. 47).

The matter is now ripe for

review.
II. STANDARD OF REVIEW
Summary
documents,

judgment

is

electronically

declarations,

stipulations

appropriate
stored
.

.

where

the

information,
.,

admissions,

“depositions,
affidavits

or

interrogatory

answers, or other materials” show that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law.”

Fed R. Civ. P. 56(c)(1)(A), (a).

When ruling on

a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party.

Providence

Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000).

The Court must avoid weighing the evidence or determining

the truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist.
Lobby, Inc., 477 U.S. 242, 249 (1986).
11

Anderson v. Liberty

AUSTIN V. PRESTON COUNTY COMMISSION

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

nonexistence of genuine issues of fact.
477 U.S. 317, 323 (1986).

of

establishing

the

Celotex Corp. v. Catrett,

Once the moving party has made the

necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.”

Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

reasonably find for the nonmoving party.

trier

of

fact

could

Id. at 248–52.

III. DISCUSSION
A.

Count One:
Austin

First Amendment

alleges

that

the

Commission

violated

her

First

Amendment rights when it disciplined her for her Facebook posts.
(Dkt. No. 1 at 9-10).

The Commission argues that Austin was not

fired for her Facebook posts, but for insubordination. (Dkt. No. 42
at 10).
When analyzing whether a public employee’s First Amendment
rights were violated, the first inquiry is whether the employee was
speaking as a citizen on a matter of public concern.

Pickering v.

Board of Ed. Of Tp. High School Dist. 205, Will County, Illinois,
12

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
391 U.S. 563, 574, 88 S.Ct. 1731, 1737 (1968).

The threshold

question of whether an employee spoke as a private citizen on a
matter of public concern is a question of law for the court.
Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000).
If an employee is speaking as an employee on a matter of
employment, she has no First Amendment cause of action, but if she
is speaking as a citizen on a matter of public concern, “[t]he
question becomes whether the relevant government entity had an
adequate justification for treating the employee differently from
any other member of the general public.” Garcetti v. Ceballos, 547
U.S. 410, 418, 126 S.Ct. 1951, 1958 (2006).

The Court also must

determine whether the employee’s speech was a substantial factor
motivating her termination.

Smith v. Frye, 488 F.3d 263, 267 (4th

Cir. 2007).
The controlling factor in determining whether an employee is
speaking as a citizen on a matter of public concern or as an
employee on a matter of employment is whether the statement was
made pursuant to the employee’s job duties.
421.

Garcetti, 547 U.S. at

Whether the statement was made publicly or within the

workplace is not dispositive; whether the statement concerned the
subject matter of employment also is not dispositive.

13

Id.

AUSTIN V. PRESTON COUNTY COMMISSION

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In Garcetti, the Supreme Court of the United States held that
a deputy district attorney named Ceballos, who had written a
memorandum detailing serious misrepresentations in an affidavit,
was not entitled to First Amendment protection after his employer
reassigned him and denied him a promotion.

Id. at 414-15.

The

Court reversed the lower court’s ruling that Ceballos’ speech was
protected, finding that he had spoken pursuant to his official job
duties as a deputy district attorney, and particularly as a
calendar deputy.

Id. at 421.

The Court held “that when public employees make statements
pursuant to their official duties, the employees are not speaking
as citizens for First Amendment purposes, and the Constitution does
not insulate their communications from employer discipline.”

Id.

Importantly, the Court noted that an employer’s restriction of
speech “that owes its existence to a public employee’s professional
responsibilities does not infringe any liberties the employee might
have enjoyed as a private citizen. It simply reflects the exercise
of employer control over what the employer itself has commissioned
or created.”

Id. at 421-22.

reality

an

that

employer

The Court’s decision reflected the

has

the

authority

“to

take

proper

corrective action” if an employee’s speech “was inflammatory or
misguided.”

Id. at 423.
14

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The Court did not define the scope of an employee’s duties in
Garcetti, but noted that “[t]he proper inquiry is a practical one.
Formal job descriptions often bear little resemblance to the duties
an employee actually is expected to perform, and the listing of a
given task in an employee’s written job description is neither
necessary nor sufficient to demonstrate that conducting the task is
within the scope of the employee’s professional duties for First
Amendment purposes.”

Id. at 424-25.

Specifically, a public

employee with “a confidential, policymaking, or public contact
role”

who

“speaks

out

in

a

manner

that

interferes

with

or

undermines the operation of the agency” enjoys “substantially less
First Amendment protection than does a lower level employee.”
McVey v. Stacy, 157 F.3d 271, 278 (4th Cir. 1998).
Bethune,

232

Fed.

App’x

212,

215-16

(4th

Cir.

See Bevis v.
May

2,

2007)

(unpublished) (finding that a supervisor’s statements reprimanding
an employee were not a matter of public concern).
An employee may still be acting “pursuant to official duties,”
and therefore may be unprotected by the First Amendment, even if
she engages in speech that is not part of her official job duties
so long as it is in furtherance of such job duties.

Weintraub v.

Board of Educ. of City School Dist. of City of New York, 583 F.3d
196, 202 (2d Cir. 2010)(“Our conclusion that Weintraub spoke
15

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
pursuant to his job duties is supported by the fact that his speech
ultimately took the form of an employee grievance....”).

See also

Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.
2007) (The fact that an athletic director was not required to write
memoranda as part of his job did not preclude the Court’s decision
that he spoke pursuant to his official duties under Garcetti
because “activities undertaken in the course of performing one’s
job are activities pursuant to official duties.”).
Even after taking the facts in the light most favorable to
Austin, it is clear that she was posting on the Shelter Facebook
page pursuant to her duties as Shelter Director.

Her posts

therefore are not protected by the First Amendment.

Austin may

have set up the Shelter Facebook page as part of her personal
account, but it was not used for personal communication.

The page

was titled “Preston County Animal Shelter,” and Austin posted as
“Preston County Animal Shelter,” rather than as Courtney Austin.
(Dkt. No. 47-1, Exhibit 1A).

The Shelter’s informational page

lists the Facebook page as the Shelter’s website (Dkt. No. 47-1,
Exhibit 2A), and the great majority of Austin’s posts on the page
use language such as “we” and “us,” as opposed to “I.”
47-1, Exhibit 3A).

16

(Dkt. No.

AUSTIN V. PRESTON COUNTY COMMISSION

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Although Austin’s job duties did not include maintaining a
Facebook page or website when she was first hired, she assumed that
task voluntarily when she asked Mace for permission to open the
Facebook page.

(Dkt. No. 41-3 at 48; Dkt. No. 44-5 at 36).

Austin

acknowledged that social media “had become a tool for shelters and
animal rescues across the nation...” and that she wanted to
maintain the page, even with posting restrictions, to continue to
reach a wide audience.

Id.

Austin felt that the Facebook page

benefitted the Shelter because she could improve adoption rates and
get a quicker public response when problems arose. (Dkt. No. 47-3
at 78-79).
When Mace granted Austin permission to create the Shelter
Facebook page, she told Austin to speak with IT personnel to figure
out how to set the page up.

(Dkt. No. 44-5 at 36).

Mace felt that

the page was a “useful tool” to let people know which animals were
available for adoption, and when the Shelter hosted events. Id. at
37-38.

Although the Commission did not have administrative rights

over the page, it did take an interest in certain comments Austin
posted.

Id.

Even before Austin was cautioned for her post about

euthanasia, and then disciplined for the comments regarding the
lack of heat and water at the Shelter, Mace discussed with Austin
her negative dialogue with a member of the public who posted on the
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
page.

Id.

At that time, Mace cautioned her to “grin and bear it”

when members of the public made negative comments because the page
was “to let people know the animals we have up for adoption, [and]
the events we’re doing....”

Id. at 37.

Austin argues that the Commission never questioned her right
to use the Facebook page; they only cared when her message differed
from

their

own.

(Dkt.

No.

44

at

11).

Indeed,

Mace

and

the

Commissioners provided oversight when they disagreed with the
content

of

discussing

Austin’s
them

inappropriate.

with

messages,
her

when

often
they

reading
felt

her
the

posts
posts

and
were

(Dkt. No. 44-1 at 86-87).

Austin’s argument, however, lends support to the view that the
Commission had every right to control her postings because she made
them pursuant to or in furtherance of her job duties as Shelter
Director.

Austin’s Facebook postings as the Preston County Animal

Shelter Director were in furtherance of her job duties because she
used the postings to interest the public in adoption, and to gain
support when the Shelter encountered problems.
78-79).

(Dkt. No. 47-3 at

Austin was a public employee with “a public contact role”

who enjoyed “substantially less First Amendment protection than
[did] a lower level employee” because she spoke out in a manner
that undermined administration of the Shelter.
18

McVey, 157 F.3d at

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
278.

Austin was an employee speaking pursuant to her job duties,

and therefore was not entitled to the protections of the First
Amendment.

The Court therefore grants the Commission’s motion for

summary judgment as to Count One.
B.

Count Two: Wrongful Discharge in Violation of West Virginia
Public Policy
Austin claims that the Commission terminated her employment in

retribution for exercising her constitutionally protected right to
freedom of speech.

(Dkt. No. 1 at 10).

The Commission argues that

Austin was not terminated for her Facebook posts, but, rather, for
insubordination.

(Dkt. No. 42 at 13).

In the alternative, it

asserts that, even if Austin was fired for her Facebook posts,
doing so did not violate her First Amendment rights because her
speech was unprotected.

Id.

West Virginia recognizes a cause of action for discharge in
violation of public policy when an at-will employee can show that
“the firing was motivated by an intention to contravene some
substantial

public

policy.”

Harless

Fairmont, 162 W. Va. 116, 120 (1978).

v.

First

Nat.

Bank

in

“[T]he rule giving the

employer the absolute right to discharge an at will employee must
be tempered by the further principle that where the employer’s
motivation for the discharge contravenes some substantial public
19

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
policy principle, then the employer may be liable to the employee
for damages occasioned by the discharge.”
124.

Harless, 162 W. Va. at

Whether public policy exists is a question of law, rather

than a question of fact for the jury.

Wiley v. Asplundh Tree

Expert Co., 2014 WL 1017208 (S.D.W. Va. 2014).
The burden is initially on the employee to “show that the
exercise of his or her constitutional right(s) was a substantial or
motivating factor for the discharge.”

McClung v. Marion County

Com’n, 360 S.E.2d 221, 227-28 (W. Va. 1987). The employer can then
defeat the employee’s claim by showing that it would have fired the
employee even in the absence of the protected conduct.

Id.

In the alternative, the Commission seeks dismissal of Austin’s
public policy claim because she cannot state a Harless claim if the
law affords her another remedy.

(Dkt. No. 47 at 8).

See Hope v.

Bd. of Dirs., 2013 WL 3340699 (S.D.W. Va. July 2, 2013).

Here, the

Commission argues that Austin could enforce her claim under the
First Amendment, or under the West Virginia Whistle-Blower law, and
therefore cannot avail herself of a Harless cause of action. (Dkt.
No. 47 at 9).
The Court need not decide whether Austin’s First Amendment or
Whistle-Blower Act claims would vindicate her public policy claim.
She argues that she was dismissed for her Facebook posts, in
20

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
violation of her First Amendment rights.

(Dkt. No. 1 at 10).

As

the Court has already found, however, Austin’s speech was not
protected by the First Amendment.

Therefore, it is irrelevant

whether Austin was terminated for posting on Facebook, as she
alleges,

or

for

insubordination,

as

the

Commission

alleges.

Because Austin’s speech was unprotected by the First Amendment, her
public

policy

claim

fails.

The

Court

therefore

grants

the

Commission’s motion for summary judgment as to Count Two.
C.

Count Three: Violation of the West Virginia Whistle-Blower Act
In Count Three of her complaint, Austin claims that the

Commission violated the West Virginia Whistle-Blower Act, W. Va.
Code § 6C-1-1, et seq., because its decision to terminate her was
based in substantial part on her decision to raise issues of
“wrongdoing” or “waste.”

(Dkt. No. 1 at 11-12).

The Commission

argues that Austin cannot avail herself of the protection of the
Whistle-Blower Act because her Facebook posts were made to the
public, rather than to her employer.

(Dkt. No. 42 at 13).

In

addition, the Commission argues that Austin’s posts and e-mail
about

the

heating

and

water

situation

are

not

reports

of

“wrongdoing” or “waste” as those terms are defined in the WhistleBlower Act.

Id.

See W. Va. Code §§ 6C-1-2(f) and (h).

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West

Virginia’s

Whistle-Blower

Act

provides

that

“[n]o

employer may discharge, threaten or otherwise discriminate or
retaliate

against

compensation,

an

terms,

employee
conditions,

by

changing

location

or

the

employee’s

privileges

of

employment because the employee...makes a good faith report or is
about to report, verbally or in writing, to the employer or
appropriate authority an instance of wrongdoing or waste.”

W. Va.

Code § 6C-1-3(a).
“‘Wrongdoing’ means a violation which is not of a merely
technical or minimal nature of a federal or state statute or
regulation, of a political subdivision ordinance or regulation or
of a code of conduct or ethics designed to protect the interest of
the public or the employer or appropriate authority.”
§ 6C-1-2(h).

W. Va. Code

“‘Waste’ means an employer or employee’s conduct or

omissions which result in substantial abuse, misuse, destruction or
loss of funds or resources belonging to or derived from federal,
state or political subdivision sources.”

W. Va. Code § 6C-1-2(f).

Austin argues that the Commission violated the Whistle-Blower
Act when it terminated her due to two separate and distinct
communications:

her January 23, 2013, Facebook post regarding the

lack of adequate heat and water in the shelter; and her January 30,

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2013, e-mail to Jennings regarding the Commission’s plans to
replace and repair the furnace.
1.

(Dkt. No. 1 at 11-12).

Austin’s January 23, 2013, Facebook Post

Setting aside the Commission’s argument that Austin’s post did
not constitute “waste” or wrongdoing,” her January 23, 2013,
Facebook post, and all previous or subsequent Facebook posts
regarding the lack of heat and water at the shelter, are not
cognizable under the Whistle-Blower Act because they were not made
“to the employer or appropriate authority.”

(Dkt. No. 1 at 11).

An appropriate authority is “a federal, state, county, or municipal
government body, agency or organization having jurisdiction over
criminal
conduct

law
or

enforcement,

ethics,

or

regulatory

waste;

or

a

violations,
member,

professional

officer,

agent,

representative, or supervisory employee of the body, agency, or
organization.”

W. Va. Code § 6C-1-2(a).

supervising one or more employees....”

An employer is “a person
W. Va. Code § 6C-1-2(c).

Austin’s January 23, 2013, Facebook post was accessible to the
general public, and was not directed at Jennings or the other
Commissioners.

(Dkt. No. 44-1 at 66-80).

purpose of the post was to ask for help.

Austin stated that the
Id. at 79 (“I was asking

people to either help us move our animals to alleviate the problem,
or to, you know, to find some other way to make things better, a
23

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
better means for us there.”). Austin cannot and does not seriously
argue that her Facebook posts were directed to her employer or an
appropriate authority.

See id.

The Court therefore grants the

Commission partial summary judgment as to Count Three insofar as
Austin’s Whistle-Blower claim is based on her Facebook posts.
2.

Austin’s January 30, 2013, E-mail

Turning to Austin’s January 30, 2013, e-mail to Jennings, it
is clear that Austin satisfies the “to the employer or appropriate
authority” requirement.

(Dkt. No. 44 at 14-15).

that Austin e-mailed Jennings, her employer.

It is undisputed

(Dkt. No. 42 at 13-

14; Dkt. No. 44 at 13-15; Dkt. No. 44-8 at 102).

Importantly, it

is undisputed that Austin reported her perceived allegations of
waste in good faith.

(Dkt. No. 44-8 at 102).

The Court also emphasizes that proof of retaliation under the
Act does not require proof of the unlawfulness of the underlying
action.

Therefore,

if

Austin

indeed

reported

“waste,”

the

Commission’s alleged violation of the Whistle-Blower Act occurred
when it retaliated against Austin for making a good faith report of
what she perceived to be waste, and it is irrelevant that the
Commission

did

not

actually

break

any

laws.

Campbell, 640 S.E.2d 113, 119 (W. Va. 2006).

See

Kalany

v.

The remaining

elements in dispute are whether Austin’s report was of “wrongdoing”
24

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
or “waste,” and whether Austin was discharged “in retaliation” for
her reports.
a.

Wrongdoing or Waste

The parties vigorously dispute whether Austin’s allegations,
even if true, constituted “wrongdoing” or “waste” within the
meaning of the Act.

(Dkt. No. 42 at 13-14; Dkt. No. 44 at 13-15).

As a preliminary matter, the Commission argues that Austin’s
communications about the process of replacing the Shelter’s heating
system do not highlight the type of “wrongdoing” contemplated by
the statute. (Dkt. No. 42 at 13-14). “Wrongdoing” for purposes of
the Whistle-Blower Act means “a violation,” other than a merely
technical or minimal violation, “of a federal or state statute or
regulation, of a political subdivision ordinance or regulation or
of a code of conduct or ethics designed to protect the interests of
the public or the employer.”

W. Va. Code § 6C-1-2(h).

The Commission points out that Austin has failed to show that
the Commission violated a regulation or statute.
14).

(Dkt. No. 42 at

The Court agrees that Austin has failed to show “wrongdoing”

within the meaning of the statute, as she has failed to point to
any law, regulation, or code of ethics the Commission violated.

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Austin need only prove waste or wrongdoing to prevail under the
statute, however.
Austin’s e-mail concerned the hasty and disjointed process of
replacing the heating system at the Shelter.
Dkt. No. 44-1 at 92).

(Dkt. No. 44 at 15;

Although she admittedly knew little about

the Commission’s bidding process, she was generally concerned that
“the most efficient solution to heat” the Shelter was not outlined
at

the

start,

and

that

the

contractors

would

be

unable

to

adequately heat the area “due to poor insulation.”

(Dkt. No. 44-

10; Dkt. No. 44-1 at 94; Dkt. No. 44-8 at 98-99).

The Commission

argues that Austin’s concerns about the heating problem were not
about “waste,” because any potential loss or misuse of public funds
was not “substantial.” (Dkt. No. 47 at 10). The Commission points
out that the job was under $ 10,000, the threshold after which the
Commission is required to bid jobs competitively.

Id. at 10-11.

See W. Va. Code § 7-15-16.
“Waste” is defined as “an employer or employee’s conduct or
omissions which result in substantial abuse, misuse, destruction or
loss of funds or resources belonging to or derived from federal,
state or political subdivision sources.”
(emphasis added).

26

W. Va. Code § 6C-1-2(f)

AUSTIN V. PRESTON COUNTY COMMISSION

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The West Virginia legislature has not defined “substantial,”
but the Court defines a term according to its “ordinary and
familiar significance.”

State v. General Daniel Morgan Post No.

548, V.F.W., Syl. Pt. 4, 144 W. Va. 137 (1959).

Merriam-Webster

defines “substantial” as “large in amount, size, or number,” “
strongly made,” and “being largely but not wholly that which is
specified.”

Merriam-Webster Dictionary.

The federal Whistleblower Protection Act contains a similar
provision, and its legislative history and subsequent body of case
law are instructive.

5 U.S.C. § 2302(b)(8)(A)(ii).

The federal

Act provides that a government employer cannot take or fail to take
a

personnel

action

regarding

an

employee

because

mismanagement, [or] a gross waste of funds....”3

of

“gross

5 U.S.C. §

2302(b)(8)(A)(ii).
In Herman v. Department of Justice, the Federal Circuit, while
reviewing the legislative history of the Whistleblower Protection
Act, noted that “the Act was not intended to apply to disclosure of
trivial or de minimis matters.

193 F.3d 1375, 1379 (Fed. Cir.

3

The Supreme Court of West Virginia has used “substantial”
and “gross” interchangeably when analyzing whether an action is
sufficient to constitute “waste” under the Whistle-Blower Act. Bee
v. West Virginia Supreme Court of Appeals, 2013 WL 5967045 at *3
(W. Va. Nov. 8, 2013).
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1999).

See S.Rep. No. 969, 95th Cong., 2d Sess. 8 (1978),

reprinted in 1978 U.S.C.C.A.N. 2723, 2730 (the Act should be used
to protect “the pentagon employee who discloses billions of dollars
in cost overruns, [or] the GSA employee who discloses widespread
fraud....”).

The Court finds the legislative history and the case

interpreting the federal act to be persuasive authority as to the
meaning of “substantial” in the definition of waste under the West
Virginia Whistle-Blower Act.
The Court lacks the factual basis to decide whether the
potential misuse of funds was “substantial.”

For example, facts

like the total size of the Shelter budget, the percentage of the
overall Commission budget allocated to the Shelter, and the average
size of expenditures at the Shelter would be useful for the jury to
determine whether the potential misuse here was “substantial” as
compared to the total amount of funds the Shelter generally had at
its disposal.

See Merriam-Webster (defining “substantial” as a

large part of a specified whole).

The Commission’s assertion that

the job was under $ 10,000, the bidding threshold, and therefore,
was not “substantial” does not hold water if an expenditure of even
one thousand dollars on a furnace would be significant as compared
to the overall budget of the Shelter.

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Therefore, the Court finds a dispute as to a material fact:
whether Austin’s allegation in her e-mail identified potential
misuse of funds substantial enough to constitute “waste.”

(See

Dkt. No. 47 at 10-11; Dkt. No. 44 at 14; Dkt. No. 44-8 at 97-98).
b.
The

In Retaliation

parties

also

dispute

the

causal

connection

Austin’s termination and her statements in the e-mail.
42 at 10, 13; Dkt. No. 44 at 15; Dkt. No. 44-8 at 89-90).

between

(Dkt. No.
Austin’s

e-mail challenged the Commission’s planning process, and stated
that she wanted to help the Shelter save money and maximize
efficiency by replacing the heating system correctly the first
time. (Dkt. No. 44-10). As Austin describes, “everything changed”
after the e-mail.

(Dkt. No. 44 at 15).

The Commission asked

Austin to change her password, suspended her when she refused to do
so, and then terminated her several days later.

Id.

Jennings denied that Austin’s termination was motivated by her
January 30, 2013, e-mail.

(Dkt. No. 44-8 at 89-90) (“I don’t take

this [e-mail] as being insubordinate at all. This has nothing to do
with anything that I’m here to talk about.”).

Therefore, a

disputed issue of material fact exists as to whether Austin’s
report of waste was causally connected to her termination.

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The Court denies the Commission’s motion for summary judgment
as it relates to Austin’s Whistle-Blower Act claim stemming from
her January 30, 2013, e-mail to Jennings because a genuine dispute
of material fact exists as to whether “waste” occurred, and as to
the causal connection between Austin’s e-mail and her termination.
Insofar as Austin’s claim stems from her Facebook posts, including
her January 23, 2013, post, the Court grants partial summary
judgment.
D.

Count Four:

Defamation

Austin claims that the Commissioners, particularly Jennings,
the Commission President, made false and defamatory statements
about her during the February 4, 2013, Commission meeting and
thereafter in the media.

(Dkt. No. 1 at 12).

The Commission

argues that Jennings’ statements were true and, that as a limited
purpose public figure, Austin cannot prove that any of its members
acted with malice.

(Dkt. No. 42 at 15-16).

In West Virginia, the

tort of defamation consists of six elements:

(1) defamatory

statements; (2) a non-privileged communication to a third party;
(3)

falsity;

(4)

reference

to

the

plaintiff;

(5)

at

least

negligence on the part of the publisher; and, (6) resulting injury.
Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 77 (W. Va. 1983).

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1.

Defamatory Meaning

First, the Court must decide, as a matter of law, whether the
challenged statements are capable of a defamatory meaning. Maynard
v. Daily Gazette Co., 447 S.E.2d 293, 295 (W. Va. 1994).

In doing

so, it differentiates between statements of fact and statements of
opinion.

It is the Court’s duty to determine initially whether a

statement is one of fact or opinion.

Long v. Egnor, Syl. Pt. 7,

346 S.E.2d 778 (W. Va. 1986).
Statements of opinion “are absolutely protected under the
First Amendment and cannot form the basis for a defamation action.”
Long, 346 S.E.2d at 778.

Statements of opinion are given special

treatment for at least three reasons:

(1) because an opinion

cannot be “false,” it generally cannot be proved to be “true”
either, and the defendant would therefore lose the benefit of the
truth defense; (2) an opinion does not carry as much weight as a
fact, and is “therefore inherently less likely to threaten the
interests and values” safeguarded by defamation laws; and, (3)
opinions,

like

most

constitutional value.

forms

of

speech,

have

an

affirmative

Potomac Valve & Fitting Inc. v. Crawford

Fitting Co., 829 F.2d 1280, 1286 (4th Cir. 1987).

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The Supreme Court of the United States has described this
constitutional distinction as being between “fact” and “non-fact,”
cautioning, however, that a “wholesale defamation exception” does
not exist just because a statement is labeled an “opinion.”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695,
2705 (1990).

Rather, a statement of opinion “which does not

contain a provably false assertion of fact is entitled to full
constitutional protection.”

Pritt v. Republican Nat. Committee,

557 S.E.2d 853, 861 (W. Va. 2001) (quoting Maynard, 447 S.E.2d at
293).
Austin alleges that Jennings made the following statements
during

the

February

4,

2013,

Commission

meeting

before

he

terminated her employment:
That the Preston County Commissioners feel they have had
fraud perpetrated on them, that Mrs. Austin has knowingly
and willingly allowed public false accusations against
other county employees, that friends and family have been
misled to believe that there was no water or heat at the
shelter. These actions have also put the animals at risk
because people have been backing off from making
donations and even rescuers are backing off.... Worst of
all, Mrs. Austin placed herself above all the taxpayers
of this county by these false accusations.
(Dkt. No. 41-1 at 5).
In addition, Austin claims that Jennings’ March 5, 2013,
interview published in the Dominion Post contained false statements
32

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that defamed her.

In that article, Jennings is quoted as saying

that “[i]t is our understanding that there is a significant
difference in the number of animal adoptions and the money that has
been collected associated with those adoptions.

The county could

have a substantial liability regarding adoption vouchers.”
No. 44-19; see also Dkt. No. 44-17).

(Dkt.

Jennings commented that

“there’s not enough money in the shelter accounts, which were
managed by Austin, to cover the number of [adoption] vouchers that
should be outstanding, based on the adoption numbers she provided
in January.”

Id.

He also stated that “the county can’t find

paperwork at the shelter to validate Austin’s numbers”; that “the
bookkeeping end of it was in such disarray”; and, that he had
spoken with “Preston Prosecutor Melvin C. Snyder III about the
situation but referred questions about possible charges to Snyder.”
Id.

Jennings stated that the Shelter would be closed until April

“while [the Commission] sorts out funds.”

Id.

The Court must first determine whether these statements were
facts or opinions.

Pure opinions are protected from a defamation

claim, but a statement of opinion containing a “provably false
assertion of fact” is not entitled to constitutional protection.
Pritt, 557 S.E.2d at 861.

During the February 4, 2013, Commission

meeting, Jennings prefaces his comments with his statement that the
33

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Commissioners “feel they have had fraud perpetrated on them....”
(Dkt. No. 41-1 at 5).

This statement appears to be Jennings’

opinion; however, the Court must consider it in the context of the
rest of Jennings’ comments.

Jennings goes on to state that the

Commissioners feel that “Mrs. Austin has knowingly and willingly
allowed public false accusations against other county employees,
that friends and families have been misled to believe that there
was no water or heat at the shelter.”

Id.

These statements, while prefaced with “the Preston County
Commissioners feel...” are clearly based on underlying facts.
Jennings explained that when he accused Austin of perpetrating a
fraud, he meant that “she had knowingly misled the public into
believing that there was no heat or water at the shelter when, in
fact, there was heat and water at the shelter... [she] [k]new it
wasn’t true to the extent that she let it out there and continued
to let that go.”

(Dkt. No. 44-8 at 30-31).

“She allowed other

members of the–county employees to, you know, get harassed over the
issue knowing that what was causing the problem wasn’t true.”

Id.

at 35.
Jennings is referencing, of course, Austin’s January 23, 2013,
Facebook post and the public’s reaction to that post.

When taken

as a whole, Jennings’ statements during the February 4, 2013,
34

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Commission meeting contain assertions of fact that can be proven to
be true or false at trial.

Whether Austin knew that she was

exaggerating the conditions at the Shelter, thereby misleading the
public to garner support, is a question of fact.

Similarly,

Jennings’ statement that Austin’s “actions have also put the
animals at risk because people have been backing off from making
donations

and

assertion.

even

rescuers

are

backing

off”

is

a

factual

Finally, Jennings stated that Austin “has placed

herself above all the taxpayers of this county by these false
accusations.” This statement, like those quoted above, is based on
an underlying fact–whether Austin’s January 23, 2013, Facebook post
truthfully portrayed the situation at the Shelter.
Likewise, Jennings’ statements in the March 5, 2013, Dominion
Post article, (Dkt. No. 44-19), also quoted in an article on WDTV’s
website (Dkt. No. 44-17), are facts.
“there

is

a

significant

difference

Jennings’ assertions that
in

the

number

of

animal

adoptions and the money that has been collected associated with
those adoptions”; that “[t]he county could have a substantial
liability regarding adoption vouchers”; that “there’s not enough
money in the shelter accounts, which were managed by Austin, to
cover the numbers of vouchers that should be outstanding...”; that
“the county can’t find paperwork at the shelter to validate
35

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
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Austin’s numbers”; that “the bookkeeping end of it was in such
disarray”; and, that Jennings “talked with Preston Prosecutor
Melvin C. Snyder III about the situation but referred questions
about possible charges to Snyder” are clearly not statements of
opinion, but are factual assertions.

(Dkt. No. 44-19).

Likewise,

the statement that the shelter would be closed “until April, while
[the Commission] sorts out funds” is a fact.

Id.

Therefore, the

Court declines to award summary judgment to the Commission on the
basis that Jennings’ statements were opinion.
2.

Falsity

After the Court has decided whether a statement is of fact or
opinion,

the

defamation.

plaintiff
The

must

parties

prove

do

not

the

remaining

dispute

elements

whether

of

Jennings’

communications were privileged or were communicated to a third
party, so the Court begins with falsity, the Commission’s main
contention on summary judgment.
No. 42 at 15-16).

Pritt, 557 S.E.2d at 861.

(Dkt.

Truth is an affirmative defense to a defamation

allegation because the plaintiff must prove falsity to succeed. If
the allegedly defamatory communication is true, published with good
motives, and for justifiable ends, the plaintiff cannot recover,
even if actual malice is present.

36

Crump, 320 S.E.2d at 79.

AUSTIN V. PRESTON COUNTY COMMISSION

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Austin alleges that Jennings’ statements made during the
February 4, 2013, Commission meeting, and those made thereafter in
the Dominion Post, quoted above, are false.

(Dkt. No. 1 at 12).

The Commission argues that Jennings’ statements were true (Dkt. No.
42 at 15).

According to the Commission, Jennings’ statement that

Austin perpetrated fraud upon the public meant “that the Commission
and the public were ‘deceived,’ as there was heat and water at the
shelter.”4

Id.

Furthermore, the Commission argues that Austin’s

own testimony that there was “running water in a kitchen and
bathroom sink” in the Shelter, and that the temperature gauge in
the Shelter read 40 degrees at one point, establish that Jennings’
statements were true.

(Dkt. No. 41-3 at 75).

Austin has presented sufficient evidence to create a genuine
dispute of a material fact.

During her deposition, she testified

that the furnace used to heat the indoor animal areas, intake, and
indoor kennels had been removed in September of 2012.
44-1 at 67).
down.”

Id.

(Dkt. No.

As a result, “there was no heat from the office on
When questioned as to whether there was any heat at

4

Jennings’ statements reference Austin’s January 24, 2013
Facebook post. In relevant part, it read “[a]dditionally we have
no heat in our indoor animal areas, intake and indoor kennels, and
this has caused our water to freeze making it nearly impossible to
perform daily tasks requiring water for cleaning and watering.”
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all, she replied that “[i]t was pretty cold. I mean, we had to suit
up like we were outside. We had heavy coats and jackets and
gloves.” Id. at 68. Austin testified that on the day of her
Facebook post she hadn’t read the thermometer in the area, but that
water pipes in multiple locations froze and burst.

Id. at 68-72.

In addition, Austin explained that the running water in the
kitchen and bathroom sinks was insufficient for the Shelter’s daily
cleaning needs, and that there “was no access to water in that
lower area.”
overstated

Id. at 74-75.

the

conditions

When asked if she had embellished or
at

the

Shelter

to

attract

public

attention, Austin denied doing so, reiterating that “[t]here was a
heat problem, and water froze because of the heat or lack of heat.”
Id. at 79-80.
The Commission bases its summary judgment motion on the truth
of Jennings’ statements, and alleges that Jennings’ statements were
not false because Austin’s Facebook post was inaccurate.

Austin

has established a genuine dispute as to whether there was heat and
water at the shelter at the time of her Facebook post, a material
fact in her dispute with the Commission and Jennings. As a result,
the Court denies the Commission’s motion for summary judgment as to
Count Four.

38

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3.

Limited Purpose Public Figure

The Court will also address the Commission’s contention that
Austin was a limited purpose public figure.

(Dkt. No. 42 at 15-

16).

A plaintiff is a public figure for a limited range of issues

when

she

“voluntarily

injects

[herself]

particular public controversy....”

or

is

drawn

into

a

Gertz v. Robert Welch, Inc.,

418 U.S. 323, 351, 94 S.Ct. 2997, 3013 (1974).
A

plaintiff

is

a

limited

purpose

public

figure

if

the

defendant proves that:
(1) the plaintiff voluntarily engaged in significant
efforts to influence a public debate-or voluntarily
assumed a position that would propel him to the forefront
of a public debate-on a matter of public concern;
(2) the public debate or controversy and the plaintiff’s
involvement in it existed prior to the publication of the
allegedly libelous statement; and
(3) the plaintiff had reasonable access to channels of
communication that would permit him to make an effective
response to the defamatory statement in question.
Wilson, 588 S.E.2d at 206.

Whether a person is a limited purpose

public figure is a question of law.

Carr v. Forbes, Inc., 259 F.3d

273, 278 (4th Cir. 2001).
Most of the parties’ disagreement surrounds the first element,
whether Austin “voluntarily engaged in” significant efforts to
influence a public debate, or “voluntarily assumed a position” that

39

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
would propel her to the forefront of a public debate.

(Dkt. No. 42

at 15-16; Dkt No. 44 at 15-18; Dkt. No. 47 at 11-16).

The

Commission bases its argument on a January 29, 2013, e-mail sent
from Austin with her Shelter e-mail account to ten recipients.
(Dkt. No. 47 at 12; Dkt. No. 47-1 at 40).

Many of the e-mail

recipients are affiliated with animal organizations or shelters,
and many are community members concerned with animal safety and
welfare.

(Dkt. No. 47 at 13; Dkt. No. 47-1 at 40).

In that e-

mail, Austin updates the recipients as to her employment status
following her meeting with Mace and the commissioners.
I have not been fired but am under what feels like
restriction....I am not allowed to post on Facebook
without the Commission approval of post first.
The
[C]ommissioners are very upset with what info I have
shared about the furnace situation, even though they knew
we hadn’t had heat since Sept., in those areas. You guys
know how screwed up our [C]ommissioners are, and how much
they really don’t care about animals in general. The
only Commissioner that didn’t jump down my back was Dave
Price....I’m not the type of person to wait for change,
if you want something to happen, remember, you have to be
the force to make a difference and see the change. That
being said, I have to keep a low profile and play it cool
for a while, so I’m going to keep a low profile. We
still have plenty of work and improvements to make up
here, and we are going to keep doing that.
Dkt. No. 47-1 at 40.
Many

of

the

recipients

encouragement to Austin.

replied,

Id. at 41-43.
40

offering

support

and

One recipient, Sheree

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Nixon from Pet Helpers Inc., responded that the Commissioners
wouldn’t look bad “[i]f they were doing their job...” because then
“the furnace would not be an issue.”

Id. at 41.

Other recipients

discuss whether Austin can get around the posting restriction on
the Shelter Facebook page, asking if she “can at least post about
the pets without approval,” and advising her that just because she
was restricted from posting on Facebook “[d]oesn’t mean the rest of
us can’t...[a]nd [information] doesn’t necessarily need to be
posted on the [Shelter] page....”

Id. at 41-42.

One recipient,

“Trish M” from Happy Dog Rescue, advises Austin that “[t]here’s
ways to get the word out without the [C]ommissioners seeing what’s
posted.

Especially if the Preston Co page is set up so only mods

can post...so nobody can forward it there without her approval.”
Id. at 42.
While Austin claims that she neither engaged in nor assumed a
position in a public debate, the record suggests that she did both.
Austin emphasizes that she did not encourage her friends and family
to create a “Support Courtney Austin” Facebook page, or to attend
the February 4, 2013, Commission meeting to speak on her behalf.
(Dkt. No. 44 at 18).

Austin’s argument disregards the fact that

she engaged in a public debate by (1) posting about the Shelter
conditions on the Shelter Facebook page; and, (2) furthering the
41

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
debate about the Commission’s actions at the Shelter by sending her
January 29, 2013, e-mail.
It is clear from the context of Austin’s e-mail that the
recipients had previous knowledge of Austin’s issues with the
Commission, and that the January 29, 2013, e-mail was merely a
continuation of an earlier discussion about the wisdom of the
Commission’s decisions.

Furthermore, it is clear that the debate

was not just about Austin’s employment, but was about the welfare
of the animals at the Shelter, a matter of public concern.
Second, Austin’s engagement in this debate predated Jennings’
allegedly libelous statements.

Austin’s e-mail is dated January

29, 2013, after her meeting with the Commissioners discussing the
posting restriction. (Dkt. No. 47-1 at 40). Jennings’ statements,
however, occurred during the February 4, 2013, Commission meeting,
and thereafter in the news media.

(Dkt. No. 44-1 at 5; Dkt. No.

44-19).
Finally, Austin had access to channels of communication to
rebut Jennings’ statements.

She could have remained in the

February 4, 2013, meeting and spoken publicly to defend herself, as
many of her friends and family did.

(Dkt. No. 41-1 at 6-8).

Likewise, she could have contacted the Dominion Post or other news
media to provide her side of the story.
42

In fact, the Dominion Post

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
stated in its article that it contacted Austin’s attorney, but had
not received any response.

(Dkt. No. 44-19).

The Court therefore

holds that Austin is a limited purpose public figure, and must
prove by clear and convincing evidence that Jennings spoke with
knowledge that his statement was false, or with reckless disregard
as to whether it was false or true.

State ex rel. Suriano v.

Gaughan, 480 S.E.2d 548, 556 (W. Va. 1996).
E.

Count Six: The West Virginia Wage Payment and Collection Act
Austin alleges that the Commission violated the West Virginia

Wage Payment and Collection Act (the “Wage Payment Act”), W. Va.
Code § 21-5-1, et seq., when it failed to pay overtime allegedly
owed to her under the federal Fair Labor Standards Act (“FLSA”).
(Dkt. No. 1 at 15). The Wage Payment Act provides that “[w]henever
a person, firm or corporation discharges an employee, the person,
firm or corporation shall pay the employee’s wages in full no later
than the next regular payday or four business days, whichever comes
first....”

W. Va. Code § 21-5-4(b).

If the person, firm or

corporation fails to pay the discharged employee within four days,
he or she is entitled to “three times that unpaid amount as
liquidated damages....”

W. Va. Code § 21-5-4(e).

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As a preliminary matter, Austin was entitled to overtime wages
under the FLSA for all hours worked over forty hours in a work
week.

Austin was an “employee” under the FLSA.

§ 203(e)(2)(C).

29 U.S.C.

While employers must pay overtime wages to most

hourly employees who work more than forty hours in a work week, the
majority of salary employees are exempt from the maximum hours and
minimum wage provision of the FLSA.

29 U.S.C. § 213(a).

When Austin switched from an hourly employee status to a
salary employee status under the FLSA, however, she did not meet
the exemption provision of 29 C.F.R. § 541.600.

Section 541.600

provides that an employee’s salary must average at least $ 455 per
week to qualify as exempt from the FLSA’s minimum wage and maximum
hours provision.

29 C.F.R. § 541.600.

Austin was paid a salary of

$ 23,400 per year, (Dkt. No. 1 at 2), which averaged out to $ 450
per week, bringing her right below the $ 455 cut off in § 541.600.
Therefore, Austin was entitled to overtime pay for all hours over
forty she worked in one workweek.

29 U.S.C. § 207(a)(1).

The Commission did not move for summary judgment on Austin’s
FLSA claim in Count Five.

Austin’s claim in Count Six is that,

although the FLSA governed her overtime wages as an employee of a
political subdivision, the Wage Payment Act governed the timing of

44

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
those payments, and therefore, the treble damages provision in the
Wage Payment Act applied to her.

(Dkt. No. 1 at 15).

The Commission, however, contends that political subdivisions
are not governed by the Wage Payment Act, and that the FLSA both
creates Austin’s right to overtime pay and provides the exclusive
remedy for recovery of that pay.
Payment

Act,

by

corporation.”
defined

as

employee.”

its

terms,

(Dkt. No 42 at 17).

applies

to

W. Va. Code § 21-5-4(b).
“any

person,

firm

or

“a

person,

firm,

or

An “employer” is likewise

corporation

W. Va. Code § 21-5-1(m).

The Wage

employing

any

A “firm” includes “any

partnership, association, joint-stock company, trust division of a
corporation, the administrator or executor of the estate of a
deceased individual, or the receiver, trustee, or successor of any
of the same, or officer thereof, employing any person.”

W. Va.

Code § 21-5-1(a).
A

political

subdivision

is

suspiciously

absent

otherwise expansive definition found in § 21-5-1(m).

from

the

This absence

is even more notable when the Court considers W. Va. Code § 21-55a, a provision that changes the definition of an “employer” only
for purposes of §§ 5(b), (c), and (d), which govern an employer’s
use

of

lie

“individual,

detectors.
person,

There,

corporation,
45

an

“employer”

department,

includes

board,

any

bureau,

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
agency, commission, division, office, company, firm, partnership,
council or committee of the state government; public benefit
corporation, public authority or political subdivision of the
state; or other business entity, which employs or seeks to employ
an individual or individuals.”

W. Va. Code § 21-5-5a(1) (emphasis

added).
The

West

Virginia

legislature

provided

two

different

definitions of an employer within Article 5, lending force to the
Commission’s argument that the legislature purposefully exempted
political subdivisions from liability under the Wage Payment Act.
This conclusion is bolstered by the few cases on point. Where
the FLSA creates the right to overtime for employees, it also
“provides the exclusive remedy for the recovery of such premium
pay.”

Westfall v. Kendle Intern., CPU, LLC, 2007 WL 486606 at * 15

(N.D.W. Va. Feb. 15, 2007) (holding that the plaintiff may not
pursue her overtime claim under the Wage Payment Act as a matter of
law because overtime pay under the FLSA applies). See also Scruggs
v. Skylink, Ltd., 2011 WL 6026152 at *9 (S.D.W. Va. Dec. 2, 2011)
(denying the plaintiffs’ claims under the Wage Payment Act because
they were relying on the FLSA for their rights, but invoking the
Wage Payment Act as a source of remedies).

46

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In Anderson v. Sara Lee Corp., the United States Court of
Appeals for the Fourth Circuit drew a distinction between state
laws that grant more maximum hour and minimum wage protections than
the FLSA, and state laws that govern only the source of remedies
for a FLSA violation.

508 F.3d 181, 193-94 (4th Cir. 2007).

The

Fourth Circuit found that the former type of state law was not
preempted under the FLSA, but that the latter type was preempted
because “in the FLSA Congress manifested a desire to exclusively
define the private remedies available to redress violations of the
statute’s

terms.”

Id.

at

194

(citing

Kendall

Chesapeake, Va., 174 F.3d 437, 439 (4th Cir. 1999)).

v.

City

of

Therefore,

the Court grants the Commission’s motion for summary judgment as to
Count Six.
F.

Count Seven:

Violation of Due Process

Austin claims that the Commission violated her due process
rights

by

terminating

her

employment

during

a

personnel matters were not placed on the agenda.5
5

hearing

where

(Dkt. No. 1 at

According to Austin, the Commission was required under the
West Virginia Open Governmental Proceedings Act, W. Va. Code § 69a-1, et seq., to post an agenda detailing the actions that would
be taken during the February 4, 2013, meeting. (Dkt. No. 1 at 16).
Because the agenda did not mention Austin, she contends, the
Commission was prohibited from taking any action on her employment.
The Court need not decide whether the Commission violated the Open
Governmental Proceedings Act because Austin does not have a
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15-16).

The Commission disputes that Austin had a property

interest in her employment in the first place, and argues that
Austin was a statutorily at-will employee. (Dkt. No. 42 at 17-18).
First, an employee challenging her termination on due process
grounds must show a “legitimate claim of entitlement” to a property
interest in employment.

The Board of Regents of State Colleges v.

Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972).

A property

interest can be created by statute, ordinance, or contract, either
express or implied.

“The sufficiency of the claim of entitlement

must be decided by reference to state law.”

Pittman v. Wilson

County, 839 F.2d 225, 227 (4th Cir. 1988).
Second, if an employee has a protected property interest, the
Court must then determine whether sufficient process was provided
before the employee was terminated.

See Mathews v. Eldridge, 424

U.S. 319, 335, 96 S.Ct. 893, 903 (1976).

Under the Mathews

framework, the Court must consider three factors: (1) “the private
interest that will be affected by the official action”; (2) “the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards”; and, (3) “the [g]overnment’s

protected property
Commission.

interest

in
48

continued

employment

with

the

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.”

Id. at 335, 903.

Austin did not have a “legitimate claim of entitlement” to a
property interest in continued employment with the Commission. The
parties do not dispute that Austin was hired without an employment
contract.

(Dkt. No. 42 at 17-18; Dkt. No. 1 at 15-17).

Austin

claims that she is “statutorily entitled” to employment because the
employee handbook set forth a progressive disciplinary system.
(Dkt. No. 44 at 21).

Austin cites several cases to support her

alternative

that

argument

she

is

“statutorily

employment as a “permanent civil service” employee.

entitled”

to

Those cases,

however, are inapposite because they describe classified civil
service jobs where the term of employment is specified by statute.
Swiger v. Civil Service Com’r, 179 W. Va. 133, 136 (W. Va. 1987).
In contrast, Austin is a statutorily at-will employee under W.
Va. Code § 7-1-3m.

Section 7-1-3m is part of Article 1, Chapter 7

of the West Virginia Code, which describes the general powers of
county commissions.

Section 7-1-3m, “Authority to employ, fix

compensation for and discharge personnel,” provides that “[s]uch
[county] courts shall have authority to discharge at their will and

49

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
pleasure,

any

such

personnel

by

filing

with

their

clerks

a

statement in writing showing such action, to be entered in, and
made a part of, their order book or other daily record book.”

W.

See Williams v. Brown, 437

Va. Code § 7-1-3m (emphasis added).

S.E.2d 775, 778 (W. Va. 1993) (ruling that the phrase “serve at the
pleasure of the attorney general” indicates the Legislature’s
intent

to

give

the

attorney

general

unfettered

control

over

employment decisions).
Austin’s claim that the Commission’s employee handbook created
her entitlement to continued employment likewise fails.
handbook

states

prominently

employees are at-will.

and

repeatedly

that

(Dkt. No. 44-18 at 1, 3, 5).

The

Commission
Furthermore,

the terms of an employee handbook cannot override state law.
Darlington v. Mangum, 450 S.E.2d 809, 812-13 (W. Va. 1994).

This

means that any promises of employment made to at-will employees who
are not statutorily covered by the civil service cannot override
state law to the contrary.
(W. Va. 1985).

Freeman v. Poling, 338 S.E.2d 415, 419

It is unnecessary to consider whether Austin was

provided with notice and an opportunity to be heard under the West
Virginia Open Governmental Proceedings Act because she does not
have

a

protected

property

interest

50

in

continued

employment.

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Therefore, the Court grants the Commission’s motion for summary
judgment as to Count Seven.
G.

Count Eight:
Wrongful Discharge in Contravention of West
Virginia Public Policy Regarding the Treatment and Protection
of Animals
Austin claims that she was terminated for attempting to raise

concerns over insufficient heat and water for the animals at the
Shelter, a condition that violated West Virginia public policy
regarding the treatment and protection of animals.
17).

(Dkt. No. 1 at

The Commission argues that Austin fails to state a claim.

(Dkt. No. 42 at 18).
West Virginia recognizes a cause of action for discharge in
violation of public policy when an at-will employee can show that
“the firing was motivated by an intention to contravene some
substantial

public

policy.”

Harless

v.

Fairmont, 162 W. Va. 116, 120 (1978).

First

Nat.

Bank

in

“[T]he rule giving the

employer the absolute right to discharge an at will employee must
be tempered by the further principle that where the employer’s
motivation for the discharge contravenes some substantial public
policy principle, then the employer may be liable to the employee
for damages occasioned by the discharge.”
124.

Harless, 162 W. Va. at

Whether public policy exists is a question of law, rather

51

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than a question of fact for the jury.

Wiley v. Asplundh Tree

Expert Co., 2014 WL 1017208 (S.D.W. Va. 2014).
The burden is initially on the employee to “show that the
exercise of his or her constitutional right(s) was a substantial or
motivating factor for the discharge.”

McClung v. Marion County

Com’n, 360 S.E.2d 221, 227-28 (W. Va. 1987). The employer can then
defeat the employee’s claim by showing that it would have fired the
employee even in the absence of the protected conduct.

Id.

Austin points to W. Va. Code § 61-8-19 as a source of public
policy.

As relevant here, § 61-8-19 makes it unlawful for any

person to intentionally, knowingly, or recklessly “[w]ithhold
proper sustenance, including food or water...[and] [s]helter that
protects [animals] from the elements of weather....”
§ 61-8-19(a)(1)(C)(I)-(ii).

W. Va. Code

Any person who violates § 61-8-

19(a)(1) is guilty of a misdemeanor, and cannot possess, own, or
reside with an animal for five years after conviction. § 61-819(b), (I).

Austin also identifies § 7-10-4, which provides

authority for a humane officer to take custody of and care for
neglected or abandoned animals.

W. Va. Code § 7-10-4(a).

Austin

also points to § 19-20-1, which provides that dogs over the age of

52

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six months are personal property subject to taxation.6
§ 19-20-1.

W. Va. Code

Finally, § 7-10-2 imposes a duty on humane officers to

“prevent the perpetration or continuance of any act of cruelty upon
any animal...” and vests in humane officers the right to arrest any
person they believe, upon probable cause, to be engaged in cruel or
forbidden practices.

W. Va. Code § 7-10-2(a).

(Dkt. No. 44 at

24).
Although Austin has identified public policy regarding the
treatment and protection of animals, it is the Court’s duty to
determine whether it is “substantial” public policy.

Birthisel v.

Tri-Cities Health Services Corp., 424 S.E.2d 606, 612 (W. Va.
1992). The West Virginia Supreme Court of Appeals used the term
“substantial public policy...to exclude claims that are based on
insubstantial considerations.” Id. An employer should not be held
liable “where a public policy standard is too general to provide
any specific guidance or is so vague that it is subject to
different interpretations.”

Id.

6

The existence of a substantial

It is unclear why § 19-20-1, a provision requiring dogs over
six months of age to be taxed, is relevant to Austin’s claim.
Therefore, the Court relies on the other code provisions cited by
Austin.
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public policy is to be construed narrowly.

Johnson v. Verizon

Communications, 2011 WL 4352405 at *4 (S.D.W. Va. Aug. 25, 2011).
The Supreme Court of Appeals of West Virginia has adopted a
four-part test to determine whether an employee has successfully
presented a claim for wrongful discharge in violation of public
policy.

Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713, 723 (W. Va.

2001).

First, did a clear public policy exist, and was it

manifested

in

a

state

or

federal

regulation, or in the common law?

constitution,

statute

or

(“The clarity element”).

Second, would dismissing employees under circumstances like those
involved in the plaintiff’s dismissal jeopardize the public policy?
(“The jeopardy element”).
motivated

by

conduct

causation element”).

Third, was the plaintiff’s dismissal

relating

to

the

public

policy?

(“The

And, finally, did the employer lack an

overriding legitimate business justification for the dismissal?
(“The overriding justification element”).

Id.

First, Austin points to a clear public policy, enumerated in
several West Virginia statutes.

Section 61-8-19 prohibits cruelty

and mistreatment of animals, whereas §§ 7-10-2 and 7-10-4 vest
humane officers with rights and duties to care for abandoned or
neglected animals.

Austin has satisfied the clarity element by

54

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identifying clear public policy, enumerated in three separate
statutes.
The Court must also determine, however, whether these statutes
represent substantial public policy.

A substantial public policy

standard cannot be “too general to provide any specific guidance
or...so vague that it is subject to different interpretations,” and
must

“provide

specific

guidance

Birthisel, 424 S.E.2d at 612.
specific

duties

on

the

part

to

a

reasonable

person.”

All three statutes enumerate
of

humane

officers

prohibited acts on the part of the public.

or

specific

The statutes were

legislatively enacted, a factor the Supreme Court of Appeals of
West Virginia noted as significant in Birthisel.

Id.

The Court

therefore finds that §§ 61-8-19, 7-10-2, and 7-10-4 represent
substantial public policy.
Austin

must

also

show

that

dismissing

employees

under

circumstances similar to hers would jeopardize the public policy,
and that her discharge was causally connected to the public policy
violation (the jeopardy and causation elements).

Austin claims

that her dismissal was motivated by her attempts to raise concerns
over insufficient heat and water for the animals, and that the
Commission’s actions were in retaliation for her attempt to protect
the animals in the Shelter.

(Dkt. No. 1 at 17).
55

Of course, the

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Commission vigorously disputes Austin’s allegations, and responds
that it is “undisputed that there was no animal cruelty in this
matter.”

(Dkt. No. 47 at 23).

The Court will not dismiss Austin’s public policy claim on
summary judgment because there are disputed material facts, both
regarding why Austin was terminated, and whether the alleged lack
of heat and water constituted cruel conditions for the animals in
the Shelter in contravention of the statutes named above. (Dkt. No.
41-3 at 67-72).

Therefore, the Court denies the Commission’s

motion for summary judgment as to Count Eight.
H.

Qualified Immunity
The Commission moves for summary judgment as to Austin’s

claims against Jennings in his individual capacity because Jennings
is entitled to qualified immunity for his statements and actions.
(Dkt. No. 42 at 19).

Austin alleges that Jennings (1) violated

both her First Amendment right to freedom of speech and her
Fourteenth Amendment right to due process, under § 1983; (2)
violated her statutory right under the West Virginia Whistle-Blower
Act to report instances of waste or wrongdoing; (3) violated her
right to report animal mistreatment pursuant to West Virginia

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public policy; and, (4) violated her right not to be defamed.
(Dkt. No. 1 at 9-18; Dkt. No. 44 at 25).
The Court has already granted the Commission’s motion for
summary judgment as to Austin’s First Amendment and due process
claims, both cognizable under § 1983.

Therefore, it is not

necessary to analyze Jennings’ qualified immunity defense under
federal law as to those claims.
for

qualified

immunity

as

to

Although the Commission’s claim
Austin’s

Whistle-Blower,

public

policy, and defamation counts is governed by West Virginia law, the
Commission’s motion did not specifically assert the West Virginia
Governmental Tort Claims and Insurance Reform Act (“the Tort Claims
Act”) as a defense to Jennings’ liability. W. Va. Code § 29-12A-5.
(Dkt. No. 42 at 19; Dkt No. 47 at 24).

Nonetheless, it is

appropriate to consider whether Jennings is immune under the Tort
Claims Act.
Whether
court.

an official is immune is a question of law for the

Wilcox v. City of Sophia ex rel. Barr, 2014 WL 1272513 at

*3 (W. Va. Mar. 28, 2014).

An employee of a political subdivision

is immune from liability under the Tort Claims Act unless one of
three scenarios applies: (1) the employee’s acts or omissions were
“manifestly

outside

the

scope

of

employment

or

official

responsibilities”; (2) the employee’s acts or omissions “were with
57

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
malicious purpose, in bad faith, or in a wanton or reckless
manner”; or, (3) the legislature has expressly imposed liability on
the employee by another provision of the code.
12A-5(b) (emphasis added).

W. Va. Code § 29-

An employee includes “any elected or

appointed official of a political subdivision.”

W. Va. Code § 29-

12A-3(a).
Austin alleges that Jennings violated her statutory right to
report instances of wrongdoing or waste, her right to report animal
mistreatment, and her right not to be defamed.
25).

(Dkt. No. 44 at

Each of these allegations stems from the same operative

facts:

(1) Austin’s January 23, 2014, Facebook post regarding the

lack of heat and water at the shelter (Dkt. No. 44-1 at 67-80); (2)
Austin’s January 30, 2013, e-mail to Jennings regarding the furnace
replacement process (Dkt. No. 44 at 15; Dkt. No. 44-1 at 92); and,
(3) Jennings’ statements at the February 4, 2013, Commission
meeting where Austin was terminated, and his interview in the
Dominion Post (Dkt. No. 41-1 at 207; Dkt. No. 44-19).
As

a

preliminary

matter,

Jennings

possesses

statutory

authority as President of the Commission to discipline and fire
employees.

W. Va. Code § 7-1-3m.

(Dkt. No. 44-8 at 16-19).

It is

therefore unlikely that Jennings acted “manifestly outside the
scope of his employment” when he terminated Austin.
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Austin need only show that one element of § 29-12A-5(b)
exists, however, to preclude Jennings from receiving immunity. The
parties still contest the underlying facts needed to determine
whether Jennings’ actions were malicious, in bad faith, or wanton
and reckless.

W. Va. Code § 29-12A-5(b)(2).

Wanton or reckless

behavior means that the person “has intentionally done an act of an
unreasonable character in disregard of a risk known to him or so
obvious that he must be taken to have been aware of it, and so
great as to make it highly probable that harm would follow.”
Holsten v. Massey, 490 S.E.2d 864, 878 (W. Va. 1997).
Immunity is only appropriate “when the plaintiff has not
demonstrated any genuine issues of material fact which must be
resolved

to

determine

whether

the

defendant’s

reasonable under clearly established law.”

actions

were

Ball v. Baker, 2012 WL

4119127 at * 13 (S.D.W. Va. Sept. 18, 2012) (quoting Kelly v. City
of Williamson, 655 S.E.2d 528, 534 (W. Va. 2007)).
In her complaint, Austin alleges that Jennings’ actions were
“taken with malicious purpose, in bad faith and in a wanton and
reckless manner.”

(Dkt. No. 1 at 2, 12, 13, 17).

There is a

factual dispute about this, and a jury could find that Jennings
acted maliciously, in bad faith, and in a wanton and reckless
manner when he spoke about Austin at the Commission meeting and in
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the Dominion Post.

It could also find that he maliciously, in bad

faith, or in a wanton and reckless manner terminated her employment
in retaliation for the January 23, 2013, Facebook post and January
30, 2013, e-mail.

On that basis, the Court cannot determine that

Jennings is entitled to qualified immunity under W. Va. Code § 2912A-5(b) as a matter of law and reserves the matter until the
contested facts are resolved by a jury.

It therefore denies the

Commission’s motion for summary judgment as to qualified immunity.
I.

Punitive Damages
The Commission claims that it is protected from an award of

punitive damages by W. Va. Code § 29-12A-1 et seq.
18).

Section

29-12A-7

political subdivision.
Austin

admits

prohibits

punitive

(Dkt. No. 42 at

damages

a

W. Va. Code § 29-12A-7(a).

that

her

punitive

damages

claim

cognizable against Jennings in his individual capacity.
44 at 24).

against

is

only

(Dkt. No.

In Huggins v. City of Westover Sanitary Sewer Board,

the West Virginia Supreme Court of Appeals implied that when an
employee of a political subdivision is named in his individual
capacity, rather than his official capacity, punitive damages are
available.

712 S.E.2d 482, 487-88 (W. Va. 2011).

Austin has remaining in her complaint three claims that could
potentially result in punitive damages liability for Jennings: her
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Whistle-Blower Act claim, her defamation claim, and her Harless
claim.
1.

Whistle-Blower Act Claim

In Count Three, Austin claims that Jennings fired her in
retaliation for reporting waste or wrongdoing under the West
Virginia Whistle-Blower Act.

The Whistle-Blower Act enumerates

various remedies the Court may award a successful plaintiff,
including

reinstatement

of

the

employee,

back

pay,

full

reinstatement of fringe benefits and seniority rights, actual
damages, the cost of litigation, attorney’s fees, and witness fees,
as the Court deems appropriate.

W. Va. Code § 6C-1-5.

Thompson v.

Town of Alderson, 600 S.E.2d 290, 293 (W. Va. 2004) (enumerating
the remedies available under the Whistle-Blower Act).
The express provisions of the Whistle-Blower Act control the
remedies

available

to

a

plaintiff.

W.

Va.

Code

§

6C-1-5.

Therefore, punitive damages are not available to Austin as to her
Whistle-Blower Act claim, and the Court grants partial summary
judgment to Jennings on that basis.
2.

Defamation Claim

In Count Four, Austin alleges that Jennings defamed her during
the

February

4,

2013,

Commission

61

meeting,

and

thereafter

in

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
interviews with news media.

As explained earlier, Austin is a

limited purpose public figure for purposes of her defamation claim.
Therefore, to recover punitive damages, she must show actual
malice–“that the defendant published false and defamatory material
either knowing that it was false or with reckless disregard of
whether

it

was

false,

and

with

an

intent

plaintiff”–by clear and convincing evidence.

to

injure

the

Reuber v. Food

Chemical News, Inc., 925 F.2d 703, 708 (4th Cir. 1991); Hinerman v.
Daily Gazette Co., Inc., 423 S.E.2d 560, 579 (W. Va. 1992).
If a punitive damages award is justified under the malice
standard, the Court must then examine the amount of the award
pursuant to certain aggravating and mitigating criteria.

Perrine

v. E.I. du Pont de Nemours and Co., 694 S.E.2d 815, 882 (W. Va.
2010).

The West Virginia Supreme Court of Appeals cautions that

punitive damages must “bear a reasonable relationship to the
potential of harm caused by the defendant’s actions,” and “a
reasonable relationship to actual damages.”
Landfill, Inc., 413 S.E.2d 897, 908 (1991).

Garnes v. Fleming
A jury cannot return

an award for punitive damages unless it finds compensatory damages.
Id. The jury may consider “the reprehensibility of the defendant’s
conduct,” whether the defendant profited from his wrongful conduct,
and the financial position of the defendant.
62

Id.

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
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In addition, the Court must consider several factors when
reviewing

a

jury

award

of

punitive

damages:

the

cost

of

litigation, any criminal sanctions also imposed on the defendant,
any

other

civil

appropriateness

of

actions

against

punitive

the

damages

to

defendant,
encourage

and

“the

fair

and

reasonable settlements when a clear wrong has been committed.” Id.
at 909.

The Court may consider the defendant’s insurer’s ability

to pay, but it should “not have the subject of insurance raised
before the jury.”

Id. at 910.

West Virginia courts set a clear

outer limit on the ratio of punitive damages to compensatory
damages. See TXO Production Corp. v. Alliance Resources Corp., 419
S.E.2d 870, 888-890 (distinguishing between “really mean” and
“really

stupid”

defendants

punitive damage awards).

when

deciding

the

outer

limit

of

Therefore, if Austin prevails in her

defamation claim, she can attempt to hold Jennings liable for
punitive damages as to that claim.
3.

Harless Claim

In Count Eight, Austin alleges that Jennings discharged her in
violation of West Virginia public policy regarding the safety and
treatment

of

animals.

Punitive

damages

are

available

under

Harless, but only in circumstances where an employer’s conduct is

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“wanton, willful or malicious.”

Harless v. First National Bank in

Fairmont, 289 S.E.2d 692, 703 (W. Va. 1982)(citing O’Brien v.
Snodgrass, Syl. Pt. 1, 16 S.E.2d 621 (W. Va. 1941)).
A plaintiff’s recovery of punitive damages is not automatic
and must be limited to the appropriate circumstances.

“The mere

existence of a retaliatory discharge will not automatically give
rise to the right to punitive damages.

The plaintiff must prove

further egregious conduct on the part of the employer.”

Id. at

703. For example, punitive damages may arise under Harless if “the
employer circulates false or malicious rumors about the employee
before or after the discharge or engages in a concerted action of
harassment to induce the employee to quit or actively interferes
with the employee’s ability to find other employment.” Id. at 703,
fn. 19.
Of

particular

concern

is

a

situation

where

a

plaintiff

recovers for emotional distress because “a jury may weigh the
defendant’s conduct in assessing the amount of damages and to this
extent [,] emotional distress damages may assume the cloak of
punitive damages.”

Harless, 289 S.E.2d at 702.

Put another way,

if a plaintiff recovers for emotional distress under Harless “when
the distress arises out of the extreme and outrageous conduct
intentionally caused by the defendant, damages awarded for the tort
64

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of outrageous conduct are essentially punitive damages. Therefore,
in many cases emotional distress damages serve the policy of
deterrence that also underlies punitive damages.”7

Dzinglski v.

Weirton Steel Corp., Syl. Pt. 8, 445 S.E.2d 219, 222 (W. Va. 1994).
The

West

Virginia

Supreme

Court

of

Appeals

cautions

against

“stack[ing] punitive damages upon punitive damages” in this manner.
Id. at 229.
Although Austin is permitted to argue for punitive damages
from Jennings under Harless, her right to recover is not automatic.
As stated above, Austin must show that Jennings engaged in wanton,
wilful, or malicious conduct.
For the reasons stated above, the Court:
C

grants the motion for summary judgment on Austin’s punitive
damages claim as to the Commission;

C

denies the motion as to Jennings in his individual capacity as
to Austin’s Harless and defamation claims; and

7

In Tudor v. Charleston Area Medical Center, Inc., the West
Virginia Supreme Court of Appeals sought to clarify situations
where this double recovery is impermissible. 506 S.E.2d 554, 574
(W. Va. 1997).
When the jury is presented with an intentional
infliction of emotional distress claim without physical trauma or
psychiatric proof of emotional or mental trauma, any damages
awarded by the jury necessarily encompass punitive damages. Id. at
574-75.
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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
C

grants the motion as to Jennings in his individual capacity as
to Austin’s Whistle-Blower Act claim.
IV. CONCLUSION
For the reasons discussed above, the Court GRANTS IN PART and

DENIES IN PART the Commission’s motion for summary judgment.
Specifically, it:
C

GRANTS the motion as to Counts One, Two, Six, and Seven;

C

As to Count Three, it GRANTS IN PART the motion insofar as it
relates to Austin’s Facebook posts, and DENIES IN PART the
motion insofar as it relates to Austin’s e-mail;

C

DENIES the motion as to Counts Four and Eight;

C

FINDS

that

§§

61-8-19,

7-10-2,

and

7-10-4

represent

substantial public policy;
C

As to Jennings’ defense of qualified immunity under 42 U.S.C.
§ 1983, it DENIES AS MOOT the Commission’s motion based on the
dismissal of Counts 1 and 7;

C

As to Jennings’ defense of qualified immunity under the West
Virginia Tort Claims Act, it DENIES the Commission’s motion;

C

GRANTS

the

Commission’s

motion

punitive damages liability;

66

as

to

its

immunity

from

AUSTIN V. PRESTON COUNTY COMMISSION

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MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
C

DENIES the motion as to Jennings’ immunity from punitive
damages liability for Austin’s Harless and defamation claims;
and,

C

GRANTS the motion as to Jennings’ immunity from punitive
damages liability for Austin’s Whistle-Blower claim.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order

to counsel of record.
DATED: October 14, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

67