Bertrand v. Marshall County Commission et al
MEMORANDUM OPINION AND ORDER GRANTING 11 MOTION TO DISMISS: Count I of the Complaint is hereby DISMISSED WITH PREJUDICE and the remaining state law claims are hereby DISMISSED WITHOUT PREJUDICE. The Clerk is directed to STRIKE this matter from the active docket of this Court and enter judgment in favor of defendants. Signed by District Judge John Preston Bailey on 7/14/2021. (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 5:21-CV-35
MARSHALL COUNTY COMMISSION,
TERRY McDIFFITT, and
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
Pending before this Court is Defendants’ Motion to Dismiss Amended Complaint
[Doc. 11], filed June 7, 2021. On June21, 2021, plaintiff filed a response in opposition to
the Motion. [Doc. 13]. On June 29,2021, defendants filed a reply. [Doc. 14]. Accordingly,
the Motion is now fully briefed and ripe for decision. For the reasons that follow, this Court
will grant the motion and dismiss this case.
This case arises out of alleged violations of plaintiffs First Amendment rights
pursuant to 42 U.S.C.
§ 1983. The plaintiff in this case was employed by defendant
Marshall County Commission, where she worked with defendant MeDiffit, who was County
Assessor, and defendant Pest, who was the Clerk of Court of Marshall County. As alleged
in the Complaint, the Commission “maintained a custom and pattern of allowing public
officials to mix political activity with their official public duties,” which, in the context of this
case, included MeDiffit’s campaign to be reelected County Assessor. [Doe. 8 at
According to the Complaint, McDiffit “set upon a course of abuse and bullying
toward certain County employees, including Plaintiff,” who he perceived did not support
him in the election. [Id. atj 18]. This included defendant Pest confronting plaintiff about
Facebook posts she believed plaintiff had posted supporting McDiffit’s opponent, Eric
Buzzard, as well as McDiffit “flip[ping] her the finger” behind her back when she walked by,
and plaintiff being warned by Pest to not say anything negative about McDiffit. [Id. at
The tensions between plaintiff and McDiffit came to a head on March 9,2020, when,
while helping another employee, plaintiff asked McDiffit “if she could take the empty box
which was sitting outside the door to the Assessor’s office, to which McDiffit repled, ‘It’s not
my box.” [Id. at
¶ 21]. Believing this to mean the box might belong to someone else,
plaintiff walked away from McDiffit who, “unprovoked, walked up behind her and Ms.
Carney, grabbed Plaintiff by the arm, squeezing it, yelling ‘you better shut your f...ing
mouth, I’m sending my attorneys to get you!” [Id.]. Following this event, plaintiff filed a
criminal charge of battery against McDiffit with the Sheriffs Office of Marshall County. [Id.
After that event, McDiffit began harassing plaintiff online and plaintiff was led to
believe that McDiffit would not be allowed in the County Clerk’s Office. [Id. at ¶1124—25].
When McDiffit nonetheless came into the Clerk’s Office, plaintiff called the County
administrator, Betsy Frohnapfel, then went to defendant Pest to discuss the matter. [Id.
¶11 26—24]. Defendant Pest proceeded to yell and berate plaintiff, causing plaintiff to
experience a panic attack; at that time plaintiff began a medical leave, which was extended
by her physician several times and during which her physician advised her that “the
harassing and abusive treatment [plaintiff] was experiencing at work due to her political
speech, affiliation, and beliefs was exacerbating her panic attacks.
During a May 14, 2020, phone call, defendant Pest informed plaintiff that she was not
considered on medical leave and implied that she expected plaintiff to drop the criminal
charges against McDifflt before she could return to work. [Id. at ¶132]. After some further
correspondence without response from defendant Pest, plaintiff’s counsel eventually
informed defendants that plaintiff would not be returning to work, believing she had been
constructively discharged. Plaintiff filed suit in this Court on the basis of federal question
jurisdiction on March 8, 2021; the Amended Complaint brings claims for involuntary
termination or constructive discharge in violation of her First Amendment rights and under
§ 1983, as well as pendent state claims for assault and battery against McDiffit, two counts
for wrongful discharge in violation of state law, a claim for failure to accommodate her
disability, and a defamation claim against McDiffit and Pest.
A complaint must be dismissed if it does not allege ‘enough facts to state a claim
to relief that is plausible on its face.” Bell At!. Corp. v. Twombly, 550
(2007); see also Giarratano v. Johnson, 521 F.3d 296, 302 (4th Cir. 2008) (applying the
Twombly standard and emphasizing the necessity of plausibility). When reviewing a
motion to dismiss pursuant to Rule 1 2(b)(6) of the Federal Rules of Civil Procedure, the
Court must assume all of the allegations to be true, must resolve all doubts and inferences
in favor of the plaintiff, and must view the allegations in a light most favorable to the
plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 243—44 (4th Cir. 1999).
When rendering its decision, the Court should consider only the allegations
contained in the Complaint, the exhibits to the Complaint, matters of public record, and
other similar materials that are subject to judicial notice.
Anheuser-Busch, Inc. v.
Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995). In Twombly, the Supreme Court, noted
that “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do
Twombly, 550 US. at 555, 570 (upholding the dismissal of a
complaint where the plaintiffs did not “nudge theirclaims across the line from conceivable
Count I of the Amended Complaint brings a claim pursuant to 42 U.S.C.
alleging plaintiff was wrongfully terminated in violation of her First Amendment rights.
Plaintiff’s argument is that she was wrongfully terminated (or constructively discharged) in
retaliation for her political speech and beliefs, namely, supporting McDiffit’s political rival
in an election for county assessor. “Section 1963 allows for a plaintiff to assert a claim
against any ‘person who, acting under color of state law, ‘depriv[ed] [another] of any rights,
privileges, or immunities secured by the Constitution.’ 42 U.S.C.
seeking to bring a claim under
§ 1983. A plaintiff
§ 1983 must meet two requirements: (1) the conduct
complained of was committed by a person acting under color of law; and (2) the conduct
deprived the plaintiff of rights, privileges, or immunities secured to him by the Constitution
and the laws of the United States. See Wirth v. Surles, 562 F.2d 319, 321 (4th Cir. 1977)
(citing Monroe v. Pape, 365 U.S. 167 (1961)).”
Taylor v. Ohio Cty. Comm’n, No.
5:17-CV-148, 2017 WL 5761610, at *3 (N.D. W.Va. Nov. 28, 2017) (Bailey, J.).
“To determine if a public employee has a cognizable First Amendment claim for
retaliatory discharge, we apply a test derived from Pickering v. Bd. of Educ., 391 U.S.
563 (1968), in which we consider: [1(1) whether the public employee was speaking as a
citizen upon a matter of public concern or as an employee about a matter of personal
interest; (2) whether the employee’s interest in speaking upon the matter of public concern
outweighed the government’s interest in providing effective and efficient services to the
public; and (3) whether the employee’s speech was a substantial factor in the employee’s
termination decision.[’] McVey v. Stacy, 157 F.3d 271, 277—78 (4th Cir. 1998).” Billioni
v. Bryant, 998 F.3d 572, 576 (4th Cir. 2021).
In order to consider the above factors, this Court must determine what speech, as
alleged in the Complaint, was the basis for her termination. Despite plaintiff’s assertion
that the involuntary termination or constructive discharge was due to her political support
of Buzzard and her statements to that effect on Facebook, the allegations in the Complaint
point instead to the criminal charges plaintiff filed against McDiffit. When plaintiff called
defendant Pest regarding her medical leave, she was told: “you know the “situation” and
what you have to do,’ which Plaintiff understood to mean that Defendant Pest expected her
to dismiss the charges against Defendant McDiffit before she could return to work.” [Doc. 8
at ¶ 32]. Despite plaintiff’s arguments otherwise, the Complaint does not plausibly allege
that her termination was due to her statements on Facebook supporting Buzzard.
Following a confrontation with defendant Pest, plaintiff began medical leave due to panic
attacks. Although defendant Pest asserted that plaintiffs medical leave was not valid, it
appears from the alleged conversation that Pest was upset with plaintiff for not returning
to work, rather than preventing her from returning. And though plaintiff alleges that she
understood the above comment about the “situation” to imply she was expected to drop
the criminal charges before she could return, nothing in that conversation indicates that she
was prevented from returning because of her political affiliation or previous statements.
Taking the allegations as true, the Complaint shows that plaintiffs termination was
due to either her medical condition, which defendant Pest apparently believed was invalid,
or due to plaintiffs refusal to drop criminal charges against McDiffit, but not due to the
earlier political statements on Facebook or in the office. As plaintiff points out as the basis
for Count V of the Complaint, defendants actions regarding her medical leave may be
unlawful; however, they are not relevant to the
§ 1983 First Amendment claim.
On the other hand, the filing of a lawsuit can be protected activity. “If public
employee litigation is protected by the First Amendment at all, it must be because the
lawsuit is of a character that involves the ‘public employee speak[ing].
matters of public concern
as a citizen upon
Baker v. Mecklenburg Cty., 853 F. Supp. 889, 893
(W.D.N.C. 1994), affd, 48 F.3d 1215 (4th Cir. 1995) (citing Connick v. Myers, 461 U.S.
138, 147 (1983). “Personal grievances, complaints about conditions of employment, or
expressions about other matters of personal interest do not constitute speech about
matters of public concern that are protected by the First Amendment, but are matters more
immediately concerned with the self-interest of the speaker as employee.” Stroman v.
Colleton Cty. Sch. Dist, 981 F.2d 152, 156 (4th Cir. 1992) (citing Connick, 461 U.S. at
Here, the Courtfindsthatthe criminal charges plaintifffiled against McDiffitwas not
speech about a matter of public concern. While a criminal charge for battery is a fairly
serious “personal grievance,” it is not a matter of public concern: the lawsuit was not about
the election, the political corruption alleged in this case, or the alleged partisan political
animosity. While plaintiff asserts that defendant Pest’s implication that plaintiff must drop
the charges before returning to work “implicated Plaintiff’s political affiliation, beliefs, and
speech (i.e., supporting McDiffit’s candidacy) as a condition of her employment,” that
connection is tenuous. As alleged, the battery occurred after a disagreement over taking
an empty box, a disagreement which was perhaps exacerbated by Bertrand and McDiffit’s
political differences. Accordingly, the Complaint does not allege facts which meet the test
set forth in Mc Vey and Count I of the Complaint should be dismissed for failure to state a
This case is in this Court on the basis of federal question jurisdiction, based on the
§ 1983 claim in Count I. The remaining claims are in front of this Court on the basis of
pendent jurisdiction. Pendent jurisdiction
need not be exercised in every case in which it is found to exist. It has
consistently been recognized that pendent jurisdiction is a doctrine of
discretion, not of plaintiff’s right. Its justification lies in considerations of
judicial economy, convenience and fairness to litigants; if these are not
present a federal court should hesitate to exercise jurisdiction over state
United Mine Workers ofAm. v. Gibbs, 383 U.S. 715, 726(1966) (citations omitted). The
Gibbs Court further stated that “[c]ertainly, if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense, the state claims should be
dismissed as well.” Id. See also Fox v. Custis, 712 F.2d 84 (4th Cir. 1983) (In the
context of a suit against state corrections employees, Court found that when § 1983 claims
were dismissed, the district court should have exercised its discretion not to decide
pendent state law claims). Here, as the only federal claim is being dismissed before trial,
the Court finds it is appropriate to dismiss the state claims as well.
Upon consideration of the above, Defendants’ Motion to Dismiss Amended
Complaint [Doc. 11] is hereby GRANTED. Count I of the Complaint is hereby DISMISSED
WITH PREJUDICE and the remaining state law claims are hereby DISMISSED WITHOUT
PREJUDICE. The Clerk is directed to STRIKE this matter from the active docket of this
Court and enter judgment in favor of defendants.
It is so ORDERED.
The Clerk is directed to transmit a copy of this Order to all counsel of record herein.
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