Hope v. Board of Directors of Kanawha Public Service District et al
Filing
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MEMORANDUM OPINION & ORDER granting in part and denying in part defendant David Howell's 5 MOTION to Dismiss; granting said motion, directing that Count II is dismissed; Count III is dismissed as to due process claims under the Fourteenth Amendment and Article III, section 10 of the West Virginia Constitution; and Count IV is dismissed; and otherwise denying said motion. Signed by Judge John T. Copenhaver, Jr. on 7/2/2013. (cc: attys; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
SAM M. HOPE, II,
Plaintiff,
v.
Civil Action No. 2:12-cv-6559
THE BOARD OF DIRECTORS OF KANAWHA
PUBLIC SERVICE DISTRICT and
KANAWHA PUBLIC SERVICE DISTRICT,
a political subdivision, and
DAVID HOWELL, C.P.A., individually
and in his capacity as Chairman
of the Kanawha Public Service District,
Defendants.
MEMORANDUM OPINION & ORDER
Pending is the motion to dismiss by defendant David
Howell, C.P.A., filed October 12, 2012.
On October 19, 2012,
defendants Kanawha Public Service District (“KPSD”) and the
Board of Directors of Kanawha Public Service District (“the
Board”) joined Howell’s motion.
I. Background
This case arises from the allegedly wrongful and
retaliatory termination of plaintiff Sam M. Hope II from his
employment with KPSD.
The following allegations of fact are
taken from Hope’s first amended complaint (“the complaint”).
Hope is a resident of Kanawha County, West Virginia.
Compl. ¶ 1.
KPSD is a Kanawha County government agency and is
operated by the Board.
Id. ¶ 2.
KPSD’s “predecessor in title”
was Chelyan Public Service District (“CPSD”).
is and was the chairman of the KPSD Board.
Id. ¶ 1.
Id. ¶ 3.
Howell
The date
and nature of the CPSD’s transition to KPSD are unclear from the
complaint.
Likewise, it is unclear whether Howell had served as
the chairman of the CPSD Board.
Hope was an employee of KPSD “and/or” its predecessor,
CPSD, beginning October 14, 1995.
Id. ¶ 5.
On his final date
of employment, September 13, 2012, he served as General Manager.
The complaint does not state when Hope began his position as
General Manager or mention any previous roles he had at KPSD.
Id.
On dates unspecified in the complaint, Hope reported to the
West Virginia Ethics Commission, the Public Service Commission
of West Virginia, and “others” concerning “illegal, unethical
and/or improper practices” at KPSD.
Id. ¶ 6.
These practices
occurred “under the watch or by the direction of” Howell and
included “unethical hiring practices, the revision of the
Administrative practices to permit nepotism and favoritism by
Defendant Howell, the termination of employees for pointing out
financial irregularities to Defendant Howell, and/or the hiding
of misappropriation of funds by employees of KPSD.”
2
Id.
On September 13, 2012, the defendants terminated
Hope’s employment with KPSD.
Id. ¶ 5.
The termination was said
to be the result of “a financial reorganization eliminating his
position.”
Id. ¶ 9.
Hope asserts that his termination was in
retaliation for the ethics complaints.
Id.
The financial
reorganization was “a ruse or pretense to disguise the true
motivation behind [the defendants’] actions, especially inasmuch
as the plaintiff was a General Manager.”
Id.
Hope states that
he “has suffered and continues to suffer lost wages, great
annoyance and inconvenience, mental anguish, pain and suffering,
and other damages to be proven at trial.”
Id. ¶ 10.
The following day, on September 14, 2012, Hope filed
this action in the Circuit Court of Kanawha County, West
Virginia.
Five days later, Hope filed a first amended
complaint.
On October 12, 2012, the defendants removed the
action to federal court, pursuant to this court’s federal
question jurisdiction under 28 U.S.C. § 1331.
Hope’s complaint sets forth four counts.
Count I
alleges violation of the West Virginia Whistle-blower Law.
Count II alleges discharge in contravention of public policy,
commonly known as a Harless claim.
Count III alleges
constitutional torts, particularly the violation of the First
and Fourteenth Amendments to the U.S. Constitution and Article
III, sections 10 and 16 of the West Virginia Constitution.
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Lastly, Count IV alleges intentional infliction of emotional
distress.
II. The Governing Standard
Under Federal Rule of Civil Procedure 8(a)(2), a
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Rule 12(b)(6)
correspondingly permits a defendant to challenge a complaint
when it “fail[s] to state a claim upon which relief can be
granted.”
Fed. R. Civ. P. 12(b)(6).
The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir.
2007).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570); see also Monroe v. City of Charlottesville, 579 F.3d 380,
386 (4th Cir. 2009).
Facial plausibility exists when the court
is able “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Iqbal, 566 U.S. at 678
(quoting Twombly, 550 U.S. at 556).
The plausibility standard
“is not akin to a ‘probability requirement,’” but it requires
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more than a “sheer possibility that a defendant has acted
unlawfully.”
Id. (quoting Twombly, 550 U.S. at 556).
In assessing plausibility, the court must accept as
true the factual allegations contained in the complaint, but not
the legal conclusions.
Id.
“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Id.
The determination is
“context-specific” and requires “the reviewing court to draw on
its judicial experience and common sense.”
Id. at 679.
III. Discussion
A. Sufficiency of the pleadings
Howell argues that Hope’s complaint consists of
“conclusory, unsupported allegations” and fails to satisfy the
pleadings standards set forth in Twombly and Iqbal.
Mem. Supp. Mot. Dismiss 9.
Howell’s
Howell first contends that the
complaint is deficient for failing to allege specifics regarding
Hope’s ethics complaints and the underlying conduct.
Howell,
however, provides no authority that Hope must plead such
specifics to set forth any of his claims.
With respect to Count
I, for example, additional details of the underlying complaints
appear unnecessary: the Whistle-blower Law requires only that
the plaintiff “makes a good faith report or is about to report,
verbally or in writing, to the employer or appropriate authority
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an instance of wrongdoing or waste.”
W. Va. Code § 6C-1-3(a).
Hope’s complaint alleges that he made several such reports,
providing both the nature of the reported wrongdoing (albeit in
somewhat general terms) and the names of the authority to whom
the reports were made.
1.
Compl. ¶ 6.
Count I
Howell seeks dismissal of the Count I Whistle-blower
Law claim on the ground that Hope failed to allege Howell’s
awareness of the ethics complaints.
At the pleadings stage the
court must “draw all reasonable inferences in favor of the
plaintiff,” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009), and it is reasonable to infer
that the chairman of a board of directors for a public service
district would, in the course of his duties, become aware of
ethics complaints an employee made about him to the West
Virginia Ethics Commission and the Public Service Commission of
West Virginia.
2.
Count II
Howell seeks to dismiss Hope’s Count II Harless claim
for discharge in contravention of public policy on the basis
that the complaint incorrectly states that the alleged violation
arose from Hope’s “reassignment, demotion, and/or
sequestration.”
Howell Mem. Supp. Mot. Dismiss 7 (quoting
6
Compl. ¶ 12).
Howell argues that the allegations are based on a
termination and that there are “absolutely no facts alleged”
that Hope was reassigned, demoted or sequestered.
Id.
Notwithstanding the complaint’s imprecise language, Hope’s
meaning is sufficiently clear to adequately state a claim
inasmuch as he has elsewhere in the complaint alleged that he
was fired.
Nonetheless, the defendants argue persuasively that
Hope cannot assert a Harless claim -- for discharge in
contravention of public policy -- because the Whistle-blower Law
already gives him a mechanism to enforce the underlying public
policy.
In Harless, the West Virginia Supreme Court of Appeals
considered a lending institution’s firing of an employee who had
reported violations of the West Virginia Consumer Credit and
Protection Act.
Harless v. First Nat’l Bank in Fairmont, 246
S.E.2d 270, 272 (W. Va. 1978).
In Harless, the court first
noted that:
The rule that an employer has an absolute right to
discharge an at will employee must be tempered by the
principle that where the employer’s motivation for the
discharge is to contravene some substantial public
policy principle, then the employer may be liable to
the employee for damages occasioned by this discharge.
Syl., id. at 271.
“[M]anifest public policy” would be
“frustrated” if an employee who had taken steps to enforce the
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public policy could be “discharged without being furnished a
cause of action for such discharge.”
Id. at 276.
The “without being furnished” language is critical.
In Hill v. Stowers, the high court declined to extend the
Harless cause of action to a plaintiff who alleged that he had
lost an election due to his opponent’s election fraud.
S.E.2d 66, 69 (W. Va. 2009).
680
The court explained,
In Harless, this Court found that a private cause of
action was appropriate because there was no other
mechanism available to enforce the public policy at
issue. . . . [T]here are procedures in place that
allow a candidate in an election to contest the
results. These procedures constitute the mechanism by
which the Legislature has sought to secure free and
fair elections in this State.
Id. at 76.
Consequently, resort to Harless was deemed inapt
inasmuch as other mechanisms existed to reinforce the public
policy at issue.
Here, the same principle prevents Hope from asserting
a Harless claim along with his claim under the West Virginia
Whistle-blower Law.
The Whistle-blower Law enables Hope to
enforce his right to report ethical violations without the fear
of retaliatory employment actions.
With a clear mechanism in
place to enforce this public policy, a Harless cause of action
is unavailable.1
1
In a notice of supplemental authority, filed June 17, 2013,
Howell asserts that a recent state Supreme Court memorandum
decision further supports the dismissal of Count II based on
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3.
Count III
Count III alleges the following constitutional torts:
The actions of the defendants constitute a
constitutional tort in that the plaintiff has been
deprived of his property, to-wit: his employment, his
reputation, his freedom of association, and others,
without due process of law as guaranteed by the
provisions of Article 3, § 10 & § 16 of the West
Virginia Constitution and the First, and Fourteenth
Amendments of the Constitution of the United States.
Moreover, the termination of the plaintiff was in
retaliation for exercising the rights and privileges
guaranteed under the First Amendment, i.e. the right
of the people to petition the Government for a redress
of grievances.
Compl. ¶ 16.
The court construes these somewhat vague
allegations as asserting the following claims: 1) a violation of
Fourteenth Amendment procedural due process, 2) a First
Amendment retaliation claim, and 3) violations of West Virginia
Constitution, Article III, sections 10 and 16.
In moving for
dismissal, Howell argues that Hope did not plead facts with
respect to how his reputation, freedom of association, and other
property rights were deprived or how the termination could have
violated his constitutional rights.
Howell’s Mem. Supp. Mot.
Dismiss 7.
a.
Fourteenth Amendment
The Due Process Clause of the Fourteenth Amendment
provides that no state shall “deprive any person of life
“statutory preemption.” See Broschart v. Dept. of Health &
Human Servs., No. 11-C-38, 2013 WL 2301777 (W. Va. May 24,
2013).
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liberty, or property, without due process of law.”
amend. XIV, § 1.
U.S. Const.
“‘The root requirement’” for due process is
“‘that an individual be given an opportunity for a hearing
before he is deprived of any significant protected interest.’”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)
(quoting Boddie v. Connecticut, 401 U.S. 593, 599 (1972))
(emphasis omitted).
The Supreme Court has summarized the two-
step analysis as follows: “We first ask whether there exists a
liberty or property interest of which a person has been
deprived, and if so we ask whether the procedures followed by
the State were constitutionally sufficient.”
Swarthout v.
Cooke, 131 S.Ct. 859, 861 (2011).
Hope fails to state a claim for the violation of his
procedural due process rights.
Most noticeably, the complaint
lacks any allegation that the defendants denied Hope an
opportunity for a hearing.
Additionally, the complaint fails to
allege the deprivation of a recognizable property interest.
“In
order to have a protected property interest in his employment, a
person must possess a legitimate claim of entitlement to it -created, for example, by contract or state law.”
Ridpath v. Bd.
of Governors Marshall Univ., 447 F.3d 292, 308 n.14 (4th Cir.
2006) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577-78
(1972)).
Hope provides no allegations suggesting he had a
“legitimate claim of entitlement.”
Hope’s position at KPSD
appears to be at-will in that he references no contract,
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statutory provisions, or implied promises from which the court
might infer otherwise.
Further, Hope’s alleged reputational injury does not
constitute a liberty interest that supports a due process claim.
The Supreme Court has explained that the mere fact a public
employee is discharged does not implicate a liberty interest:
In Board of Regents v. Roth, we recognized that
the nonretention of an untenured college teacher might
make him somewhat less attractive to other employers,
but nevertheless concluded that it would stretch the
concept too far “to suggest that a person is deprived
of ‘liberty’ when he simply is not rehired in one job
but remains as free as before to seek another.” This
same conclusion applies to the discharge of a public
employee whose position is terminable at the will of
the employer when there is no public disclosure of the
reasons for the discharge.
Bishop v. Wood, 426 U.S. 341, 348 (1976) (internal citations
omitted).
Hope received an innocuous explanation for his
termination, and no factual allegations suggest that the
defendants made any records or communications regarding the
termination that might damage Hope’s reputation.
In the absence
of allegations that he was denied a hearing, and lacking a valid
property or liberty interest, Hope fails to assert a tenable
procedural due process claim.
b.
First Amendment
The lack of a property interest, however, does not
thwart Hope’s First Amendment claim.
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“[P]ossession of a
property right is immaterial to a plaintiff’s claim that he was
deprived of some valuable benefit as a result of exercising his
First Amendment rights.”
Huang v. Bd. of Governors of Univ. of
N.C., 902 F.2d 1134, 1140 (4th Cir. 1990) (citing Perry v.
Sindermann, 408 U.S. 593, 597 (1972)).
It is well-settled that a public employer “may not
retaliate against a public employee who exercises her First
Amendment right to speak out on a matter of public concern.”
Love–Lane v. Martin, 355 F.3d 766, 776 (4th Cir. 2004) (citing
Pickering v. Bd. of Educ., 391 U.S. 563, 573 (1968)).
To prove
that a retaliatory employment action violated a public
employee’s free speech rights, the employee must satisfy the
following three-prong test formulated by the court of appeals in
McVey v. Stacy:
First, the public employee must have spoken as a
citizen, not as an employee, on a matter of public
concern. Second, the employee’s interest in the
expression at issue must have outweighed the
employer’s interest in providing effective and
efficient services to the public. Third, there must
have been a sufficient causal nexus between the
protected speech and the retaliatory employment
action.
157 F.3d 271, 277-78 (4th Cir. 1998); see also Smith v. Frye,
488 F.3d 263, 267 (4th Cir. 2007) (applying “the McVey test”);
Ridpath, 447 F.3d at 316 (same).
Taking the complaint’s allegations as true and viewing
them in the light most favorable to Hope, as the court must at
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this stage, Hope has adequately established each of the McVey
test’s three prongs.
Respecting the first prong, “[a]n
employee’s speech involves a matter of public concern if it
addresses ‘an issue of social, political, or other interest to a
community.’”
Ridpath, 447 F.3d at 316 (quoting Urofsky v.
Gilmore, 216 F.3d 401, 406-07 (4th Cir. 2000)).
Hope alleges
that he reported to the West Virginia Ethics Commission
unethical conduct of the KPSD under Howell, including unethical
hiring practices and nepotism, the termination of employees for
pointing out financial regularities, and the hiding of
misappropriation of funds.
Compl. ¶ 6.
Inasmuch as the public
would expect the fair administration of a government agency
charged with regulating utilities, Hope’s speech is on a matter
of public concern.
See, e.g., Corbett v. Duerring, 780 F. Supp.
2d 486, 493 (S.D. W. Va. 2011) (concluding that a plaintiff
sufficiently alleged a matter of public concern where the speech
addressed the “fair and impartial enforcement of rules by school
administrators”).
Respecting the second McVey prong, the balancing of
interests, the court “must take into account the context of the
employee’s speech and the extent to which it disrupts the
operation and mission of the institution.”
317 (internal quotation marks omitted).
Ridpath, 447 F.3d at
The complaint’s
allegations support an inference at this stage that Hope’s
interest in First Amendment expression outweighs the defendants’
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interests in providing effective and efficient services to the
public.
The defendants offer no argument that Hope’s speech
disrupted their ability to provide effective and efficient
services.
The defendants’ assertion that Hope’s termination was
the result of the KPSD’s financial reorganization is properly
considered within the third McVey prong, concerning the causal
relationship.
A plaintiff must “demonstrate a causal
relationship between his protected speech and the termination of
his [employment].”
78).
Id. at 318 (citing McVey, 157 F.3d at 277-
Hope alleges that the termination was the retaliatory
result of his expression, with the reorganization being merely a
ruse.
The “causation requirement is rigorous,” Huang, 902 F.2d
at 1140, and must be further developed to create a triable
issue, but at the pleadings stage Hope’s allegations provide
sufficient grounds for the court to infer causation.
c.
West Virginia Constitution
The court reaches the same conclusions with regard to
Hope’s state constitution claims: the due process claim fails,
while the free speech claim is viable.
Article III, section 10
of the West Virginia Constitution is analogous to the Due
Process Clause of the Fourteenth Amendment, stating that “[n]o
person shall be deprived of life, liberty, or property, without
due process of law, and the judgment of his peers.”
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W. Va.
Const. art. III, § 10.
The West Virginia Supreme Court has
stated that “[a] property interest ‘must be more than a
unilateral expectation of continued employment.’”
Kessel v.
Monongalia Cnty. Gen. Hosp. Co., 600 S.E.2d 321, 327-28 (W. Va.
2004) (quoting Major v. DeFrench, 286 S.E.2d 688, 695 (W. Va.
1982)).
Having pled only a unilateral interest in his continued
employment, Hope’s state constitutional due process claim, like
his federal claim, fails for lack of a recognizable property
interest.
Article III, section 16 of the West Virginia
Constitution provides that “[t]he right of the people to
assemble in a peaceable manner, to consult for the common good,
to instruct their representatives, or to apply for redress of
grievances, shall be held inviolate.”
§ 16.
W. Va. Const. art. III,
“[T]he right to petition the government found in Section
16 of Article III of the West Virginia Constitution is
comparable to that found in the First Amendment to the United
States Constitution.”
550 (W. Va. 1993).
Syl., Harris v. Adkins, 432 S.E.2d 549,
Consequently, for the reasons discussed
above with regard to the First Amendment, Hope adequately states
an Article III, section 16 claim.
4.
Count IV.
In arguing for the dismissal of Count IV’s intentional
infliction of emotional distress claim, the defendants assert
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that Hope fails to allege outrageous conduct.
Intentional
infliction of emotional distress is defined as follows:
“One who by extreme or outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other
results from it, for bodily harm.”
Roth v. DeFeliceCare, Inc., 700 S.E.2d 183, 194 (W. Va. 2010)
(quoting Dzinglski v. Weirton Steel Corp., 445 S.E.2d 219, 225
(W. Va. 1994)).
The conduct must be “so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community.”
Dzinglski, 445 S.E.2d at 225).
Id. (quoting
Specifically within the context
of a wrongful discharge claim,
The prevailing rule in distinguishing a wrongful
discharge claim from an outrage claim is this: when
the employee’s distress results from the fact of his
discharge -- e.g., the embarrassment and financial
loss stemming from the plaintiff’s firing -- rather
than from any improper conduct on the part of the
employer in effecting the discharge, then no claim for
intentional infliction of emotional distress can
attach. When, however, the employee’s distress
results from the outrageous manner by which the
employer effected the discharge, the employee may
recover under the tort of outrage. In other words,
the wrongful discharge action depends solely on the
validity of the employer’s motivation or reason for
the discharge. Therefore, any other conduct that
surrounds the dismissal must be weighed to determine
whether the employer’s manner of effecting the
discharge was outrageous.
Id. (quoting Syl. Pt. 2, Dzinglski, 445 S.E.2d at 221).
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Hope’s allegations are insufficient to support a claim
for intentional infliction of emotional distress.
Regarding the
defendants’ manner of effecting the termination, Hope states
only that his firing was explained as “a financial
reorganization eliminating his position.”
Compl. ¶ 9.
There
are no allegations concerning the conduct by Howell or other
board members that “surrounds the dismissal.”
Nor are there
other facts from which the court could infer that outrageous
conduct by the defendants and not the loss of his job caused
Hope’s emotional distress.
See Roth, 700 S.E.2d at 195 (“Given
the proximity between Mrs. Roth’s observation [of her supervisor
in a sexually compromising position] and her termination, there
are sufficient allegations to support her claim that her
emotional distress resulted from the outrageous manner by which
the employer effected the discharge.”).
Absent these
allegations, Hope has failed to state a claim for intentional
infliction of emotional distress.
B. Immunity
The defendants argue that Howell is immune from
liability as a public service district board member by statute
and is otherwise entitled to qualified immunity.
The West Virginia Code expressly limits the liability
for public service district board members:
17
The members of the board are not personally liable or
responsible for any obligations of the district or the
board, but are answerable only for willful misconduct
in the performance of their duties.
W. Va. Code § 16-13A-4.
Similarly, but more generally, West
Virginia law provides qualified immunity to public executive
officials acting within the scope of their authority:
A public executive official who is acting within the
scope of his authority and is not covered by the
provisions of W. Va. Code, 29-12A-1, et seq., is
entitled to qualified immunity from personal liability
for official acts if the involved conduct did not
violate clearly established laws of which a reasonable
official would have known. There is no immunity for
an executive official whose acts are fraudulent,
malicious, or otherwise oppressive.
Syl., State v. Chase Secs., Inc., 424 S.E.2d 591, 591-92 (W. Va.
1992).
The defendants assert that Howell is entitled to
immunity from personal liability because his conduct occurred in
the performance of his duties as the chairman of the board.
Hope responds that immunity is improper where the actions are
clearly illegal, and he asserts that such was the case with
Howell’s allegedly retaliatory firing.
Opp’n 5 (“To argue that
Defendant Howell could have reasonably believed that firing an
individual for turning in allegations of misconduct was within
the bounds of the law is disingenuous.”).
Inasmuch as Hope
claims that Howell fired him in retribution for reporting ethics
violations, the complaint adequately alleges “willful, wanton,
[and] malicious” conduct beyond the scope of Howell’s authority.
18
Compl. ¶ 21.
Taking these allegations as true, as the court
must do at the pleadings stage, Howell is not entitled to
immunity.
KPSD and the Board argue that dismissal is nonetheless
appropriate because the defendants did not violate a known
statutory or constitutional right.
KPSD’s Reply 6-7.
They cite
Harlow v. Fitzgerald, in which the Supreme Court held that
“government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.”
457 U.S. 800, 818 (1982).
It is clearly established,
however, that “a plaintiff asserting ‘whistle-blower’ type
claims . . . whose expressions relate to a matter of public
concern and are alleged to have provoked retaliatory action are
afforded First Amendment protection.”
Givens v. O’Quinn, 121 F.
App’x 984, 997 (4th Cir. 2005) (citing Connick v. Myers, 461
U.S. 138, 146-51 (1983)).
Howell also asserts that he could not have known that
the firing violated established laws, absent allegations that he
was first aware of Hope’s ethics complaints.
As discussed above
with regard to pleading standards, Howell’s knowledge of the
complaints can reasonably be inferred at this stage.
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IV.
Based upon the foregoing discussion, it is,
accordingly, ORDERED that the defendants’ motion to dismiss be
granted as set forth herein and otherwise denied.
It is further ORDERED as follows:
1.
Count II is dismissed;
2.
Count III is dismissed as to due process claims under
the Fourteenth Amendment and Article III, section 10
of the West Virginia Constitution; and
3.
Count IV is dismissed.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER:
July 2, 2013
John T. Copenhaver, Jr.
United States District Judge
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