Nichols v. County Commission of Cabell County

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

JASON NICHOLS,

Plaintiff,

v. CIVIL ACTION NO. 3:18-0266

COUNTY COMMISSION OF CABELL

COUNTY, a public corporation,

BETH THOMPSON, in her official capacity

and individually, and

PHYLISS SMITH, in her official capacity

and individually.

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are the Motions to Dismiss, pursuant to Federal Rule of Civil

procedure 12(b)(6), submitted by Defendants County Commission of Cabell County (“Cabell

County”), Beth Thompson, and Phyllis Smith. Def. Cabell County’s Mot. to Dismiss, ECF No. 10;

Def. Beth Thompson’s Mot. to Dismiss, ECF No. 12; Def. Phyllis Smith’s Mot. to Dismiss, ECF

No. 14. Defendant Beth Thompson moves to dismiss all Counts of Plaintiff’s complaint, whereas

Defendant Cabell County moves to dismiss only Counts II, III, and IV, and Defendant Phyllis

Smith moves to dismiss only Count IV. Def. Cabell County’s Mot. to Dismiss, at 1; Def. Beth

Thompson’s Mot. to Dismiss, at 1; Def. Phyllis Smith’s Mot. to Dismiss, at 1.

In Count I and II, Plaintiff claims that Defendants terminated his employment because of

his exercise of his First Amendment right to free speech, in violation of 42 U.S.C. §1983 (“section

1983”); in Count III, Plaintiff claims that Defendants unlawfully retaliated against him in violation

of the West Virginia Whistle-blower Law; and in Count IV, Plaintiff claims that Defendants fired

him in violation of West Virginia public policy, constituting an unlawful retaliatory discharge.

Compl., ECF No. 1, at 6, 8, 10, 12.

The parties have fully briefed the issues and the motions are now ripe for adjudication. As

explained below, the Court DENIES Defendants’ motions.

I. BACKGROUND

Plaintiff, Jason Nichols, by counsel, filed a complaint with this Court on February 6, 2018,

seeking relief from Defendants Cabell County, Phyllis Smith, and Beth Thompson. Compl., at 1.

In his complaint, Plaintiff alleges the same three claims against all Defendants: (1) violation of 42

U.S.C. §1983; (2) unlawful retaliation in violation of the West Virginia Whistle-blower Law; and

(3) a West Virginia common law claim for unlawful retaliatory discharge in violation of substantial

public policy, also known as a Harless claim. Id. at 6, 8, 10, 12. In his section 1983 claim, Plaintiff

is suing Defendants Thompson and Smith in both their individual and official capacities. Id. at 6,

8.

The following facts are alleged by Plaintiff, Jason Nichols, in his complaint, and are

assumed true for purposes of this Motion to Dismiss. Plaintiff was employed with the Cabell

County Commission as a deputy clerk from August of 2015 until January 8, 2018, where he was

responsible for administrative and ministerial tasks related to Cabell County’s budget. Id. at 3.

Starting on September 1, 2017, Plaintiff began reporting directly to the newly appointed Clerk of

Cabell County, Defendant Phyllis Smith. Id. Additionally, the County Administrator of Cabell

County, Defendant Beth Thompson, frequently sought to direct and control Plaintiff’s work. Id.

Defendant Thompson was appointed by Defendant Cabell County on or about July 1, 2015. Id. at

1–2.

Beginning around the Spring of 2017, the Office of the Prosecuting Attorney of Cabell

County (“OPA”) was investigating the financial affairs of Cabell County. Id. at 3. The scope of

that investigation increased over time, due in part, to reports that Plaintiff made to the OPA

describing suspected instances of misconduct. Id. For example, Plaintiff reported to the OPA that

Defendant Thompson intended to hand over full control, responsibility for, and privileges of Cabell

County’s payroll accounts to an out-of-state third-party vendor, which he believed to be illegal

under West Virginia law. Id. Plaintiff also reported to the OPA his concern that Cabell County

taxpayers were paying large amounts of insurance for approximately $30 million of fixed assets

when there had been no physical audit of the fixed assets to verify if such assets even existed. Id.

at 4. Finally, Plaintiff reported to the OPA his concern that Defendant Thompson stated that Cabell

County employees were going to be required to pay more for medical insurance. Id. Plaintiff

reported that the required increases appeared to be unwarranted because the County had been given

a refund on claims the previous year, and the account holding the self-insured medical insurance

funds contained an excessive amount of funds. Id. Plaintiff further reported that Defendant

Thompson had drawn on the medical insurance account to transfer funds to the general fund and

then used those general funds to pay the local jail invoices. Id.

Before reporting the above issues to the OPA, Plaintiff had repeatedly expressed these

same concerns to Defendant Thompson and Defendant Smith, who conveyed Plaintiff’s concerns

to Defendant Cabell County. Id. Defendant Thompson and Smith also knew that Plaintiff contacted

the Office of the West Virginia State Auditor regarding outsourcing of payroll. Id. at 4–5. This

information was also conveyed by Defendant Thompson to Defendant Cabell County. Id. at 5.

Multiple instances give rise to the inference that Defendants Thompson and Smith knew

that the OPA investigation had expanded, at least due in part, to the reports Plaintiff had made. For

example, after Plaintiff raised the concerns regarding the outsourcing of payroll, the lack of a

physical audit, and the increase on medical insurance contributions, members of the OPA

contacted Defendants Thompson and Smith to ask questions about some of these same issues. Id.

Additionally, in full view of at least Defendant Smith, members of the OPA had frequently come

to Plaintiff’s office and requested him to provide additional information surrounding their

investigation. Id. Further, during a meeting in November of 2017, when Plaintiff questioned

handing over the control of the payroll account to a third-party, Defendant Thompson told Plaintiff

to “stop stirring the pot.” Id. At this same meeting Defendant Thompson also informed those

present that she was going to hand over control of the payroll account to the third-party “whether

anyone liked it or not.” Id. Finally, in December of 2017, the OPA issued a West Virginia Freedom

of Information Act (“WVFOIA”) request for information surrounding some of the same issues

Plaintiff had raised with Defendants. Id. Approximately one week before Plaintiff was fired,

Defendant Smith learned from the Chief Deputy Clerk that Plaintiff had been assisting with the

preparation of documents in response to the WVFOIA request. Id. At that time, the Chief Deputy

Clerk also informed Defendant Smith that a member of the OPA had come and spoken with

Plaintiff in his office. Id. at 6. In response, Defendant Smith told the Chief Deputy Clerk that if

anyone from the OPA came in the future, the OPA member should be directed to come to her

personally and not Plaintiff. Id.

Thereafter, Plaintiff believed that Defendant Thompson intended to control what

information was given to the OPA. Id. For example, when Plaintiff asked Defendant Smith

questions about documents to be produced in response to the WVFOIA request, Defendant Smith

would state that she had to ask Defendant Thompson. Id. Defendant Smith also cautioned Plaintiff

that nothing could be produced in response to the WVFOIA request until both she and Defendant

Thompson had reviewed the response. Id.

On January 8, 2018, during a meeting with Defendants Thompson and Smith, along with

others, Plaintiff again expressed concerns over the outsourcing of the payroll function and how

that would be implemented in compliance with the law. Id. Defendant Thompson became visibly

agitated and told Plaintiff he was “no longer needed,” and later that day Defendant Smith informed

Plaintiff that he was being terminated from employment. Id. When Plaintiff asked Defendant Smith

why he was being terminated, she told him, that “they do not have to give you a reason.” Id.

It is important to note that Plaintiff asserts this is not the first time Defendant Thompson

has been involved in a wrongful termination dispute. In 2016, Defendant Thompson discharged

the IT Director who had engaged in whistleblowing about the fact that Defendant Thompson and

Defendant Cabell County repeatedly failed to purchase an adequate means for back up of financial

data, resulting in a loss of public financial data. Id. at 9. Defendant Thompson discharged the IT

director without following the County’s procedures for termination, and a lawsuit is currently

pending in that matter. Id. Since the discharge of the IT director, Defendant Cabell County has

allocated the oversight of Defendants’ response to the ongoing OPA investigation of the County’s

financial affairs to Defendant Thompson. Id. Upon Plaintiff’s information and belief, Defendant

Cabell County did so with full knowledge that Plaintiff had expressed the aforementioned concerns

to Defendants Thompson and Smith, that Plaintiff made similar reports to the OPA that resulted

in the expansion of the investigation, and that he was participating in that investigation at the

OPA’s request. Id. at 9–10.

Each Defendant filed a motion to dismiss (ECF No. 10, 12, 14) on March 27, 2018, with

an accompanying Memorandum in Support of the Motion (ECF No. 11, 13, 15). Plaintiff filed a

Response to all motions on April 5, 2018 (ECF No. 16, 17, 18), and Defendants Cabell County

and Beth Thompson filed a Reply on April 12, 2018 (ECF No. 19, 20). Defendant Phyllis Smith

did not file a Reply.

II. STANDARD OF REVIEW

Federal Rule 8(a) requires a complaint to include “a short and plain statement of the claim

. . . showing entitle[ment] to relief.” Fed. R. Civ. P. 8(a)(2). To overcome a motion to dismiss

under Federal Rule 12(b)(6), a complaint must also be plausible. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 546 (2007). This standard requires a plaintiff to set forth the “grounds” for an

“entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Id. at 555 (internal quotations and citations

omitted). 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) (internal quotations

and citation omitted). Facial plausibility exists when a claim contains “factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (citation omitted).

Accepting the factual allegations in the complaint as true—even when doubtful—the

allegations “must be enough to raise a right to relief above the speculative level . . . .” Twombly,

550 U.S. at 555 (citations omitted). If the allegations in the complaint, assuming their truth, do

“not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point

of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal

quotations and citations omitted). “Although for the purposes of a motion to dismiss we must take

all of the factual allegations in the complaint as true, we are not bound to accept as true a legal

conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations and citation

omitted). Finally, a court must also “draw[ ] all reasonable factual inferences from those facts

[alleged] in the plaintiff’s favor . . . .” Martin v. Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (internal

quotations omitted) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (internal citations

omitted)).

III. DISCUSSION

As Defendants have moved to dismiss, in total, all three of Plaintiff’s claims, the Court will

address each in turn.

A. Count I and II: 42 U.S.C. §1983

i. Defendant Cabell County

Defendant Cabell County argues that Plaintiff has failed to assert the facts needed to hold

a local government liable under section 1983. Mem. in Supp. of Def. Cabell County’s Mot. to

Dismiss, ECF No. 11, at 7, 9. The relevant portion of section 1983 states that:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. §1983.

While section 1983 technically limits the scope of potential defendants to “person[s],” the

Supreme Court has held that “Congress . . . intend[ed] municipalities and other local government

units to be included among those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs.

of City of New York, 436 U.S. 658, 690 (1978). However, while Monell held that local governments

may be held liable under section 1983, it also held that “a municipality cannot be held liable solely

because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under §

1983 on a respondeat superior theory.” Id. at 691. Rather, the Court concluded that a local

government is liable only when the “execution of a government's policy or custom . . . inflicts the

injury.” Id. at 694 (emphasis added). However, the “policy or custom” language from Monell

leaves the question of when a “policy or custom” occurs unanswered. The Fourth Circuit has held

that a policy or custom for which a local government may be found liable can arise in one of four

possible ways:

(1) through an express policy, such as a written ordinance or

regulation; (2) through the decisions of a person with final

policymaking authority; (3) through an omission, such as a failure

to properly train officers, that manifests deliberate indifference to

the rights of citizens; or (4) through a practice that is so persistent

and widespread as to constitute a custom or usage with the force of

law.

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (internal quotations and citations omitted).

Consistent with the rejection of respondeat superior liability for local governments, the

Fourth Circuit has also held that a causation element is required in section 1983 liability, making

a local government liable only when there is a “deprivation of constitutional right caused by [its

policy]. . . .” See Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983) (emphasis added).

In its Memorandum of Law in Support of its Motion to Dismiss, Defendant Cabell County

argues that there are two reasons why it is not liable under section 1983. The first argument

involves the interpretation of element four of Lytle. Defendant claims that Plaintiff attempts to

establish its liability under “element four” of Lytle by claiming that it was the “custom” of the

Cabell County to terminate employees that engaged in whistleblowing activities. See Mem. in

Supp. of Def. Cabell County’s Mot. to Dismiss, at 9. Defendant then accurately points to Lytle for

the clear rule that “isolated incidents of unconstitutional conduct by subordinate employees are

not sufficient to establish a custom or practice,” and there must instead “be numerous particular

instances of unconstitutional conduct in order to establish a custom or practice.” Lytle, 326 F.3d at

473 (emphasis added). Defendant argues that Plaintiff’s complaint is therefore flawed because his

only factual allegation tending to show this “custom” of Cabell County is the single instance when

Defendant Thompson, a county official, discharged the IT director when the director engaged in

whistleblowing activities. See Mem. in Supp. of Def. Cabell County’s Mot. to Dismiss, at 10–11.

Defendant Cabell County’s first argument is flawed for several reasons. First, the motion

at issue here is a motion to dismiss under 12(b)(6). When the Court in Lytle was analyzing what

facts are needed to successfully show “a practice . . . so persistent . . . as to constitute a custom or

usage,” the Court was deciding whether to affirm a district court’s grant of a motion for summary

judgment, not a motion to dismiss under 12(b)(6). See Lytle, 326 F.3d at 468. Thus, while it is true

that Plaintiff will need to show more than just a single or isolated incident to ultimately prevail in

his claim or to survive a motion for summary judgment, this Court is only evaluating if Plaintiff

has asserted enough to prevail on a motion to dismiss. Under Iqbal, this means Plaintiff’s complaint

must only contain enough facts that, accepted as true, allows this Court to draw the “reasonable

inference” that there have been a sufficient number of particular instances of unconstitutional

conduct by Defendant Cabell County’s officials. Additionally, this Court must draw all reasonable

factual inferences in Plaintiff’s favor.

Based on Plaintiff’s complaint, this Court can draw a reasonable inference that there may

have been other instances of unconstitutional conduct by county officials. In his complaint,

Plaintiff states that Defendant Thompson is currently involved in an additional wrongful

termination dispute stemming from a 2016 discharge of an IT Director who had engaged in

whistleblowing. Defendant can argue that only one alleged instance of past unconstitutional

conduct by a single official cannot, by itself, give rise to a “reasonable inference” that there have

been other instances. However, this single act must be viewed in combination with three other

crucial facts. First, Defendant Cabell County appeared to make a strategic decision when it

assigned Defendant Thompson—an official who is currently embroiled in a lawsuit for past

unconstitutional conduct against a whistleblower—to oversee the investigation that a current

employee, and whistleblower, is assisting the OPA in. Second, Defendant Thompson, as an

appointed Administrator of Cabell County, was a relatively high-level official in a small

organization, whose acts are more likely to become known and approved of by Defendant Cabell

County, and thus reoccurring. Finally, when Plaintiff asked why he was terminated, Plaintiff was

told by Defendant Smith that “they” do not have to give him a reason, implying that either

Defendant Cabell County or multiple people made the decision to terminate his employment. The

inference drawn here is that if a group is responsible for a final decision, as opposed to a single

individual, that decision is more likely to be based on a pattern of similar decisions made in the

past. Based on these facts, this Court can draw a reasonable inference that there may have been

other instances of unconstitutional conduct by county officials.

The second reason why Defendant Cabell County’s argument is flawed is because it

improperly narrows its scope of liability based on Plaintiff’s complaint. Despite Defendant’s

assertion that Plaintiff attempts to establish its liability under “element four” of Lytle, Plaintiff has

not in fact limited his argument to a single theory of liability. Plaintiff sets forth numerous facts in

his complaint that “state a claim to relief that is plausible on its face” based on the additional

theories of liability available in Lytle.1 For example, Plaintiff’s complaint explains that he reported

directly to appointed Clerk of Cabell County, Defendant Smith, and that the appointed County

Administrator of Cabell County, Defendant Thompson, frequently sought to direct and control

Plaintiff’s work. Additionally, before reporting his concerns to the OPA, Plaintiff expressed the

1 More specifically, the second theory that requires decisions of officials “with final policymaking authority,” and the

third theory that requires “an omission, such as a failure to properly train officers, that manifests deliberate indifference

to the rights of citizens.” Lytle, 326 F.3d at 471.

same concerns to Defendants Thompson and Smith, who upon Plaintiff’s information and belief,

conveyed Plaintiff’s concerns to Defendant Cabell County. Finally, Defendant Thompson

eventually told Plaintiff to “stop stirring the pot” and that he was “no longer needed,” while

Defendant Smith personally informed Plaintiff that he was being terminated from employment.

It can be reasonably inferred from these facts that either one, or all,2 of Defendants

Thompson, Smith, or Cabell County had “final policymaking authority,” and that either one, or

all, of these Defendants made the final decision to terminate Plaintiff because of his exercise of

his First Amendment right to free speech. Because of the questionable circumstances surrounding

Plaintiff’s termination, it can also be reasonably inferred that Defendant Cabell County failed to

properly train Defendants Thompson and Smith, and that failure manifests a deliberate indifference

to the rights of citizens. Thus, even if Plaintiff failed to meet the factual standard required to

survive a 12(b)(6) motion to dismiss under the “custom or usage” theory available in Lytle,

Plaintiff’s factual allegation in his complaint meets the 12(b)(6) standard on at least two of the

other three theories of local government liability available in Lytle.

Defendant Cabell County’s second argument for why it is not liable under section 1983 is

that the causation requirement is not met. Defendant Cabell County asserts that causation is not

shown because Plaintiff does not “allege that the Commission or anyone acting on its behalf

terminated his employment,” as Plaintiff merely states that the county clerk informed him that he

had been terminated. Mem. in Supp. of Def. Cabell County’s Mot. to Dismiss, at 11. Additionally,

Defendant Cabell County asserts that neither it nor “anyone acting on its behalf, including County

Administrator Thompson, had the ability or authority to terminate Plaintiff,” even though it

2 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (holding that “municipal liability under § 1983 attaches

where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by

the official or officials responsible for establishing final policy with respect to the subject matter in question) (emphasis

added).

concedes that it is a “statutory co-employer of non-elected officials who are employed in county

offices.” Id. at 12. Defendant Cabell County points to West Virginia Code 7-7-7 for authority on

this position, which states, in relevant part:

The county clerk, circuit clerk, sheriff, county assessor and

prosecuting attorney, by and with the advice and consent of the

county commission, may appoint and employ, to assist them in the

discharge of their official duties for and during their respective terms

of office, assistants, deputies and employees. The county clerk may

designate one or more of his or her assistants as responsible for all

probate matters.

Each county official named in this section shall have the authority

to discharge any of his or her assistants, deputies or employees by

filing with the clerk of the county commission a discharge statement

specifying the discharge action: Provided, That no deputy sheriff

appointed pursuant to the provisions of article fourteen, chapter

seven of this code, shall be discharged contrary to the provisions of

that article.

W. Va. Code § 7-7-7 (a), (h) (emphasis added).

Defendant Cabell County goes as far as to state that section (h) vests the “sole” authority

to terminate an employee with the elected official. Mem. in Supp. of Def. Cabell County’s Mot. to

Dismiss, at 12.

Defendant’s position is contrary to West Virginia caselaw, as well as misleading. First, it

is clear Plaintiff has alleged facts that suggest it is plausible and reasonable to infer that Defendant

Cabell County, or Defendants Thompson or Smith acting on its behalf, terminated his employment.

In his complaint, Plaintiff explains that when he asked Defendant Smith why he was being

terminated, she told him that “they do not have to give you a reason.” The obvious conclusion that

can be drawn from this statement is that “they” refers to Defendant Cabell County. This pleaded

fact alone satisfies Plaintiff’s requirement to allege that Defendant Cabell County terminated his

employment.

Second, a clear reading of West Virginia statutes, as well as West Virginia caselaw,

demonstrate that Defendant Cabell County, or those acting on its behalf, had the authority to

terminate Plaintiff. West Virginia Code 7-7-7(h) does not use or imply the word “sole”—despite

Defendant Cabell County’s best efforts to convince this Court otherwise—when vesting elected

officials with the authority to terminate employees. Additionally, the Supreme Court of West

Virginia, in Burke v. Wetzel County Commission, 815 S.E.2d 520 (W. Va. 2018), held that as a co-

employer, a county commission does in fact have the legal right to terminate an employee of an

official listed in West Virginia Code 7-7-7. In Burke, the plaintiff was terminated from his

employment in the office of the Wetzel County Assessor, and filed a lawsuit against the Wetzel

County Commission, alleging wrongful discharge. Id. at 526. The circuit court eventually

dismissed the case pursuant to a motion to dismiss, finding that the plaintiff failed to allege that

the Commission was the “appropriate authority.” Id. at 539. However, the West Virginia Supreme

Court overruled the circuit court’s decision to dismiss the case, holding that its decision was

erroneous, as the County Commission was his “joint employer” under West Virginia Code 6C-1-

3(a), and thus could potentially be held responsible for his wrongful discharge. See id. at 540.

Thus, Defendant Cabell County’s position that the causation element of 1983 is not met in this

case is incorrect, and its motion to dismiss Plaintiff’s section 1983 claim should denied.

ii. Defendant Beth Thompson

Defendant Thompson argues that Plaintiff has failed to assert the facts needed to hold her,

the County Administrator, liable under section 1983. Mem. in Supp. of Def. Thompson’s Mot. to

Dismiss, ECF No. 15, at 6–9. As a government official being sued in her personal capacity,

Defendant Thompson has the privilege of asserting qualified immunity. See Kentucky v. Graham,

473 U.S. 159, 165–167 (1985). For a plaintiff to defeat a government official’s qualified immunity,

the plaintiff must demonstrate that the defendant violated “clearly established statutory or

constitutional rights of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S.

730, 739 (2002). Logically, this means that at the pleading stage the plaintiff “must allege sufficient

facts to set forth a violation of a constitutional right” to avoid a motion to dismiss under Rule

12(b)(6). See Sims v. Labowitz, 885 F.3d 254, 260 (4th Cir. 2018).

When the case at issue involves a government employee claiming his employer violated

his First Amendment rights specifically, the Fourth Circuit uses “a three-prong test to determine if

the employee's rights under the First Amendment were violated.” Crouse v. Town of Moncks

Corner, 848 F.3d 576, 583 (4th Cir. 2017). Relevant in this case is the third prong, which requires

that “there [be] a sufficient causal nexus between the protected speech and the retaliatory

employment action.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 316 (4th Cir.

2006). This causation requirement forces the plaintiff to show “that but for the protected expression

the employer would not have taken the alleged retaliatory action.” Huang v. Bd. of Governors of

Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990) (internal quotations and citations omitted).

In her Memorandum of Law in Support of her Motion to Dismiss, Defendant Thompson

argues that “Plaintiff is unable to demonstrate that [she] is the ‘but for’ cause of his termination

for two reasons.” Mem. in Supp. of Def. Thompson’s Mot. to Dismiss, at 9. First, Defendant

Thompson argues that Plaintiff, in his complaint, never even factually alleged that she terminated

him, but instead only stated that “Defendant Smith” informed him that he was being fired. Id.

Defendant Thompson’s position is flawed, as she crucially overlooks other facts that demonstrate

Plaintiff has factually alleged that she was the supervisor who actually terminated him. For

example, Plaintiff asserts that in November of 2017 Defendant Thompson told Plaintiff to “stop

stirring the pot,” in response to Plaintiff’s questioning of Defendant Thompson’s actions. Id. at 5.

Plaintiff also stated that Defendant Thompson was the first person to suggest he was going to be

discharged from employment when she told him that he was “no longer needed” on the same day

that Defendant Smith informed him that he was being terminated. Id. at 7. Thus, while discovery

may lead to a contrary finding, Plaintiff has at least factually alleged that Defendant Thompson

was the “but for” cause of his termination.

Defendant Thompson’s second argument for why Plaintiff is unable to demonstrate that

she was the ‘but for’ cause of his termination mirrors Defendant Cabell County’s argument above:

that she had no “statutory authority” to carry out the termination. Mem. in Supp. of Def.

Thompson’s Mot. to Dismiss, at 9. Defendant Thompson relies on West Virginia Code 7-7-7(h)

for the proposition that only the County Clerk had the power terminate Plaintiff’s employment,

which, as discussed above, is incorrect based on the West Virginia Supreme Court’s decision in

Burke. Additionally, West Virginia Code 7-1-1a (1)(3)(E) states that Defendant Thompson, as the

county administrator, has the authority to “employ all subordinates and employees for whose

duties or work he or she is responsible to the commission.” W. Va. Code § 7-1-1a (1)(3)(E).

Therefore, if Plaintiff was a “subordinate” of Defendant Thompson under this statute, Defendant

Thompson would have had the authority to terminate Plaintiff. Plaintiff’s complaint states multiple

facts that make it plausible that Plaintiff was a subordinate of Defendant Thompson. For example,

Defendant Thompson instructed Plaintiff to “stop stirring the pot,” Defendant Smith cautioned

Plaintiff that nothing could be produced in response to the WVFOIA request until both she and

Defendant Thompson had reviewed the response, and Defendant Cabell County had allocated to

Defendant Thompson the oversight of the response of Defendants to the ongoing OPA

investigation of the County’s financial affairs. Because Plaintiff has factually alleged in his

complaint that Defendant Thompson was the “but for” cause of his termination, her motion to

dismiss Plaintiff’s section 1983 claim should be denied.

B. Count III: West Virginia Whistle-blower Law

i. Defendants Cabell County and Thompson

Defendants Cabell County and Thompson argue that Plaintiff’s whistle-blower claim fails

as a matter of law. Mem. in Supp. of Def. Cabell County’s Mot. to Dismiss, at 13; Mem. in Supp.

of Def. Thompson’s Mot. to Dismiss, at 11. The West Virginia Whistle-blower law prohibits

discharge by an “employer” in response to an employee’s “good faith” report of “an instance of

wrongdoing or waste” to the employer or appropriate authority. W. Va. Code § 6C-1-3(a). The

Whistle-blower law broadly defines an “employer” to include “a person supervising one or more

employees, including the employee in question, a superior of that supervisor, or an agent of a

public body.” W. Va. Code § 6C-1-2(c).

Defendants Cabell County and Thompson’s arguments for why they cannot be liable under

the Act mirror their arguments discussed supra: they were not Plaintiff’s “statutory employer,”

and thus had no authority to terminate Plaintiff, and even if they were, Plaintiff did not factually

allege he was terminated by either of them. See Mem. in Supp. of Def. Cabell County’s Mot. to

Dismiss, at 13; Mem. in Supp. of Def. Thompson’s Mot. to Dismiss, at 11–12. For the same reasons

discussed above in Section (A), Defendants’ arguments are without merit, and their motion to

dismiss Plaintiff’s West Virginia Whistle-blower claim should be denied.

C. Count IV: Unlawful Retaliatory Discharge

i. Defendants Cabell County, Thompson, and Smith

Defendants Cabell County, Thompson, and Smith each claim, for precisely the same

reasons, that Plaintiff’s common law claim for unlawful retaliation—also known as a Harless

claim—must fail as a matter of law.

In general, employers in West Virginia “may discharge an ‘at will’ employee at any time

for any reason.” Herbert J. Thomas Memorial Hosp. Ass’n v. Nutter, 795 S.E.2d 530, 540 (W. Va.

2016) (citing Kanagy v. Fiesta Salons, Inc., 541 S.E.2d 616, 619 (W. Va. 2000)). However, the

West Virginia Supreme Court, in Harless v. First. Nat’l Bank in Fairmont, 246 S.E.2d 270 (W.

Va. 1978), tempered this unrestricted right of an employer to fire an employee. In Harless, the

Court held that “where [an] employer’s motivation for [a] discharge is to contravene some

substantial public policy principle, then [an] employer may be liable to [an] employee for damages

occasioned by this discharge.” Syl. Pt. 1, Harless, 246 S.E.2d at 271. However, the West Virginia

Supreme Court has limited Harless claims to situations where “there [is] no other mechanism

available to enforce the public policy at issue.” Hill v. Stowers, 680 S.E.2d 66, 76 (W. Va. 2009).

The West Virginia Supreme Court has provided four elements necessary to state a claim

for retaliatory discharge: (1) That a clear public policy existed and was manifested in a state or

federal constitution, statute or administrative regulation, or in the common law (the clarity

element); (2) That dismissing employees under circumstances like those involved in the plaintiff's

dismissal would jeopardize the public policy (the jeopardy element); (3) That plaintiff's dismissal

was motivated by conduct related to the public policy (the causation elements); (4) The employer

lacked overriding legitimate business justification for the dismissal (the overriding justification

element). Feliciano v. 7–Eleven, Inc., 559 S.E.2d 713, 723 (W. Va. 2001) (internal quotations and

citations omitted).

Defendants do not assert that any of the four elements necessary in Feliciano have not been

met. Instead, Defendants only state that Plaintiff already has mechanisms available—the Whistle-

blower law and state constitutional tort claims—to enforce the public policies at issue, and

therefore his Harless claim should be dismissed pursuant to Hill. See Mem. in Supp. of Def. Cabell

County’s Mot. to Dismiss, at 16; Mem. in Supp. of Def. Thompson’s Mot. to Dismiss, at 14; Mem.

in Supp. of Def. Smith’s Mot. to Dismiss, at 9. Plaintiff concedes that—with respect to the public

policies that the Whistle-blower Law protects—Defendants’ argument is valid so long as the

motion to dismiss Plaintiff’s Whistle-blower claim is denied. See Mem. in Opp. to Def. Cabell

County’s Mot. to Dismiss, ECF No. 16, at 19. Plaintiff concludes that if Defendants’ motions to

dismiss Plaintiff’s Whistle-blower claim is granted, then “the Whistleblower claim would not be

available to Plaintiff . . . .” Id. (emphasis added).

This Court agrees with Plaintiff that Defendants’ argument—with respect to the public

policies that the Whistle-blower Law protects—is valid, but rejects Plaintiff’s position that the

outcome of Defendants’ motions to dismiss are relevant. In Hill, the Supreme Court made clear

that a Harless claim is unavailable when the legislature has created “procedures” that will enforce

the West Virginia public policy at issue. See Hill, 680 S.E.2d at 76. Thus, the question of whether

a mechanism is available to Plaintiff based on the facts of his case is irrelevant to the question of

whether the West Virginia legislature has provided him with a mechanism to enforce the public

policies at issue. This can be the only logical position, as any flaw in Plaintiff’s complaint that

would require this Court to grant a 12(b)(6) motion regarding the Whistle-blower claim would also

require this Court to grant a 12(b)(6) motion regarding the Harless claim. Therefore, because the

West Virginia Whistle-blower Law is a mechanism that allows plaintiffs to report wrongdoing

without fear of being discharged, Plaintiff cannot maintain a Harless claim for retaliatory

discharge for reporting wrongdoing.

The next, and final, question is whether Plaintiff can still maintain a Harless claim for

retaliatory discharge in violation of other public policies, for which there are no other mechanisms

available. Plaintiff states in his complaint that the “West Virginia Constitution provides for both

the freedom of speech and the right to redress grievances to the government,” and that his “exercise

of his constitutional rights . . . was a substantial or motivating factor for Plaintiff’s discharge from

employment,” in contravention of the substantial public policy of West Virginia. Compl., at 12–

13. Again, Defendants do not assert that any of the four elements necessary in Feliciano have not

been met. Defendants argue only that Plaintiff has another mechanism available for the public

policy violation that occurs when an employee is terminated for exercising his state constitutional

rights, specifically a “state constitutional tort claim” based on the Supreme Court’s decision in

Hutchison v. City of Huntington, 479 S.E.2d 649 (W. Va. 1996). See Mem. in Supp. of Def. Cabell

County’s Mot. to Dismiss, at 16; Mem. in Supp. of Def. Thompson’s Mot. to Dismiss, at 14; Mem.

in Supp. of Def. Smith’s Mot. to Dismiss, at 9.

Defendants are incorrect to rely on Hutchison for the proposition that it recognizes a

general common law state constitutional tort action. As plaintiff notes, Hutchison was specifically

deciding only a due process issue. See Mem. in Opp. to Def. Cabell County’s Mot. to Dismiss, at

20; Hutchison, 479 S.E.2d at 660 (holding that “[t]here is no dispute . . . that a private cause of

action exists where state government, or its entities, cause injury to a citizen by denying due

process.”) (emphasis added). Additionally, even if a general common law state constitutional tort

action is an available remedy under Hutchison, it is not clear to this Court that the remedy would

render a Harless claim in this case “unavailable.” As stated earlier, the mechanism that rendered a

Harless claim unavailable in Hill was created by the legislature, as opposed to the judicially

created state constitutional tort cause of action argued here. See Hill, 680 S.E.2d at 76 (holding

that there are “procedures in place” that “constitute the mechanism by which the Legislature has

sought” to enforce the public policy at issue, and that “criminal statutes” are relevant in

determining that there are other mechanisms available) (emphasis added). Therefore, because

Plaintiff has pled his constitutional right of free speech and right of redress as substantial public

policies, and because he has no other mechanisms available to enforce violations of these public

policies, Defendants’ motions to dismiss Plaintiff's unlawful retaliatory discharge claim should be

denied.

IV. CONCLUSION

Based upon the analysis provided above, the Court DENIES Defendants Cabell County,

Thompson, and Smith’s Motions to Dismiss (ECF No. 10, 12, 14).

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented parties.

ENTER: August 22, 2018

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

20