Michelle Gordon v. Jefferson County Commission, Tricia Jackson, individually and in her official capacity as Jefferson County Commissioner, and Thomas Hansen, individually and in his official capacity as Jefferson County Sheriff

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

Fall 2025 Term

September 10, 2025

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

_____________________ INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

No. 24-ICA-452

_____________________

MICHELLE GORDON,

Plaintiff Below, Petitioner,

v.

JEFFERSON COUNTY COMMISSION, TRICIA JACKSON, individually and in her

official capacity as JEFFERSON COUNTY COMMISSIONER, and THOMAS

HANSEN, individually and in his official capacity as JEFFERSON COUNTY SHERIFF,

Defendants Below, Respondents.

___________________________________________________________

Appeal from the Circuit Court of Jefferson County

Honorable Michael D. Lorensen, Judge

Civil Action No. CC-19-2022-C-112

AFFIRMED

_________________________________________________________

Submitted: March 7, 2025

Filed: September 10, 2025

Walt Auvil, Esq. Andrew R. Herrick, Esq.

Kirk Auvil, Esq. James Marshall, Esq.

The Employment Law Center, PLLC Adam K. Strider, Esq.

Parkersburg, West Virginia Bailey & Wyant, PLLC

Counsel for Petitioner Martinsburg, West Virginia

Counsel for Respondents Jefferson

County Commission and Tricia Jackson

Wendy E. Greve, Esq.

Evan S. Olds, Esq.

Pullin Fowler Flanagan Brown & Poe, PLLC

Martinsburg, West Virginia

Counsel for Respondent Thomas Hansen

JUDGE WHITE delivered the Opinion of the Court.

CHIEF JUDGE LORENSEN, not participating.

WHITE, JUDGE:

Petitioner Michelle Gordon appeals the September 20, 2023, orders of the

Circuit Court of Jefferson County granting Defendants Tricia Jackson (“Commissioner

Jackson”) and the Jefferson County Commission’s Motion to Dismiss and granting

Defendants Thomas Hansen (“Sheriff Hansen”), Kevin Boyce, and Emma Brown’s Motion

to Dismiss. For reasons stated below, we affirm these orders.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ms. Gordon is a former Finance Director for Jefferson County, West Virginia

who resigned from her position on December 23, 2021, was rehired on May 20, 2022, and

resigned again on October 17, 2022. According to the allegations in her Amended

Complaint, which we must take as true for purposes of this appeal, she reported several

instances of financial misconduct and policy violations related to the Sheriff’s Office of

Jefferson County to the Jefferson County Commission. Among other charges, she

questioned Sheriff Hansen’s actions (1) using his County purchase-card for personal

expenses, including meal reimbursements for his wife and buying alcoholic beverages

during a Sheriff’s Association Conference; (2) requesting special event overtime pay for

his deputies; (3) making an inappropriate vehicle purchase request for four Chevrolet

Tahoes; (4) allowing the Chief Tax Deputy to make accounting errors that favored Toni

Milbourne, a County vendor; (5) creating a new full-time position of home confinement

1

deputy for his step-daughter without proper advertising, misrepresenting to the county

commission that his step-daughter was an active part-time employee when she had only

worked twenty-four hours in 2020; and (6) requesting that his stepdaughter be placed on

unlimited leave without pay so she could maintain her insurance.

In her Amended Complaint, Ms. Gordon further alleged that Commissioner

Jackson, the Jefferson County Commission, and Sheriff Hansen retaliated against her by

publishing defamatory statements, conducting “illegal” background checks through police

databases, and sharing the personal data obtained from those background checks, including

her address, date of birth, social security number, and driver’s license number, with a third

party, resulting in “public dissemination” of this information. Ms. Gordon contends that

she was subsequently informed by the IRS that her social security number had been

“stolen.”

On September 21, 2022, Ms. Gordon filed a complaint against the Jefferson

County Commission, Barbara Fuller, Christine Ence, Toni Milbourne, Kevin Boyce, Glen

Kilmer, Emma Brown, Commissioner Jackson (in her personal and official capacities),

Sheriff Thomas Hansen (in his personal and official capacities), Jacki Shadle, the Jefferson

County Clerk (in her personal and official capacities), and Mark Everhart. The complaint

contained three counts, one each for defamation and libel, whistle-blower retaliation under

2

West Virginia Code § 6C-1-3(a) (2020), and political affiliation discrimination under West

Virginia Code § 29-6-20(a) (2008).1

On October 24, 2022, Ms. Gordon filed an Amended Complaint, which

added one defendant, the Jefferson County Sheriff’s Office; removed one defendant,

Christine Ence; and added an additional count for invasion of privacy. According to the

circuit court’s order, an additional complaint was subsequently filed on December 6, 2022,

but it was “substantively the same as the original September 21, 2022, Complaint and with

the same exhibits attached to the Amended Complaint but with some duplicates.” This

additional complaint was not included in the appendix on appeal, so for purposes of this

opinion, we shall refer to the language and exhibits of the Amended Complaint, as did the

circuit court.2

On September 20, 2023, the circuit court entered orders dismissing the claims

against Sheriff Hansen, Commissioner Jackson, the Jefferson County Commission, and

various other defendants. On October 15, 2024, the circuit court entered an order

dismissing an additional defendant, Mark Everhart. Ms. Gordon now appeals from the

1

Ms. Gordon did not object to the dismissal of the political affiliation discrimination

count in the circuit court, and the dismissal of that count is not an issue on appeal.

According to the circuit court’s order dismissing the claims against Commissioner

2

Jackson and the Jefferson County Commission, Ms. Gordon’s counsel “represented that

the Amended Complaint contains all claims asserted and exhibits filed by Plaintiff…”

3

September 20, 2023, orders dismissing Sheriff Hansen, Commissioner Jackson, and the

Jackson County Commission.3

II. STANDARD OF REVIEW

Our review of the circuit court’s orders granting the motions to dismiss is de

novo. Bajada v. Crystal Lake Prop. Owners’ Ass’n, No. 23-ICA-292, 2024 WL 3581344,

at *4 (W. Va. Ct. App. July 30, 2024) (memorandum decision) (quoting Syl. Pt. 2, State ex

rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 773, 461 S.E.2d 516,

519 (1995)). This review is governed by the same principles applicable to the circuit court’s

decision.

West Virginia is a notice pleading jurisdiction, see Pierson v. Miles, No. 22-

0501, 2023 WL 6012535, at *2 (W. Va. Sept. 15, 2023) (memorandum decision), so a

complaint need only contain a short and plain statement of the claim sufficient to put a

defendant on fair notice, id., and to show that the pleader is entitled to some form of relief.

See W. Va. R. Civ. Pro. 8(a). “Complaints are to be read liberally as required by the notice

pleading theory underlying the West Virginia Rules of Civil Procedure.” State ex rel.

McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461 S.E.2d 516, 522

3

The same order which dismissed the claims against Sheriff Hansen also dismissed

the claims against his staff, Deputy Boyce and Administrative Assistant Brown, but those

dismissals have not been raised on appeal.

4

(1995). “A court reviewing the sufficiency of a complaint should view the motion to

dismiss with disfavor, should presume all of the plaintiff's factual allegations are true, and

should construe those facts, and inferences arising from those facts, in the light most

favorable to the plaintiff.” Mountaineer Fire & Rescue Equip., LLC v. City Nat'l Bank of

W. Va., 244 W. Va. 508, 520, 854 S.E.2d 870, 882 (2020) (citing Chapman v. Kane Transfer

Co., 160 W. Va. 530, 538, 236 S.E.2d 207, 212 (1977)).

However, Rule 8 requires that a “complaint must be intelligibly sufficient for

a circuit court or an opposing party to understand whether a valid claim is alleged and, if

so, what it is.” State ex rel. McGraw v. Scott Runyon Pontiac-Buick, Inc., 194 W. Va. 770,

776, 461 S.E.2d 516, 522 (1995); see also Highmark W. Va., Inc. v. Jamie, 221 W. Va. 487,

491, 655 S.E.2d 509, 513 (2007) (per curiam). Rule 8 does not justify a carelessly drafted

or baseless pleading. A “plaintiff’s attorney must know every essential element of his cause

of action and must state it in the complaint.” Newton v. Morgantown Mach. & Hydraulics

of WV, Inc., 242 W. Va. 650, 653, 838 S.E.2d 734, 737 (2019) (quoting Sticklen v. Kittle,

168 W. Va. 147, 164, 287 S.E.2d 148, 158 (1981)). Furthermore, the complaint must

contain sufficient information to outline the elements of a claim or permit inferences that

they exist. Fass v. Nowsco Well Serv., Ltd., 177 W. Va. 50, 52, 350 S.E.2d 562, 563 (1986)

(per curiam). To state a claim and avoid dismissal, “essential material facts must appear on

the face of the complaint.” Burke v. Wetzel Cty. Comm’n, 240 W. Va. 709, 721, 815 S.E.2d

520, 532 (2018).

5

The federal and state constitutions require trial courts to apply a stricter

pleading standard in defamation actions filed by public officials or public figures when

considering Rule 12(b)(6) motions to dismiss. In most kinds of cases, a court may only

grant a motion to dismiss where “it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to relief.” Syl. Pt. 3, in part,

Chapman v. Kane Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977).

[A]lthough this rule is generally applicable in the ordinary

case, “[t]he First Amendment to the United States Constitution

and Article III, Section 7 of the West Virginia

Constitution require that trial courts apply a stricter standard in

appraising defamation actions filed by public officials or public

figures under a motion to dismiss filed pursuant to Rule

12(b)(6) of the West Virginia Rules of Civil Procedure. Unless

the complaint demonstrates on its face sufficient facts to

support the elements of a defamation action, the complaint

should be dismissed under Rule 12(b)(6).”

Giles v. Kanawha Cnty Bd. of Educ., No. 17-0139, 2018 WL 300605, at *2-3 (W. Va. Jan.

5, 2018) (memorandum decision) (quoting Syl. Pt. 3, Long v. Egnor, 176 W. Va. 628, 346

S.E.2d 778 (1986). With these standards in mind, we turn to the dismissal orders entered

by the circuit court, focusing primarily on whether the complaint adequately pleads claims

for defamation, invasion of privacy, and whistle-blower retaliation.4

4

The parties have also briefed the issue of whether the respondents were entitled to

statutory immunity under the Governmental Tort Claims and Insurance Reform Act, West

Virginia Code § 29-12A-1 et seq. (1986). However, it is unnecessary for this Court to reach

that issue given our rulings on whether the various claims were adequately pleaded by

Petitioner.

6

III. DISCUSSION

A. Petitioner’s Claims Against Commissioner Jackson and the Jefferson County

Commission

Ms. Gordon asserts claims against Commissioner Jackson and the Jefferson

County Commission for defamation and whistle-blower retaliation,5 both of which were

properly dismissed by the circuit court.

1. Defamation

Ms. Gordon asserts a claim for defamation and libel in Count I of her

Amended Complaint,6 alleging that Commissioner Jackson defamed her through certain

5

In Count IV of her Amended Complaint, Petitioner asserts a claim for invasion of

privacy, but almost all the facts alleged therein pertain only to Sheriff Hansen, his staff, or

the Jefferson County Perspective, rather than Commissioner Jackson and the Jefferson

County Commission. The final numbered paragraph of the Amended Complaint does state

in general that: “Defendants’ actions in repeatedly publicly misrepresenting Plaintiff’s

actions and character placed Plaintiff in a false light, invading her privacy thereby.” To the

extent that Ms. Gordon may have intended to raise a claim for invasion of privacy against

Commissioner Jackson and the Jefferson County Commission, the vague and conclusory

language of Paragraph 291 was far too cursory to meet the constitutionally required

pleading standards for a false light claim against a public figure. Moreover, we note that

this potential issue was poorly developed, if at all, in the circuit court or the briefing on

appeal. Even if this claim had been properly pleaded and raised, it would fail for the same

reasons, including the failure to allege actual malice, as the invasion of privacy claim

against Sheriff Hansen which we discuss below.

6

“Defamation published in written form, as opposed to spoken form, constitutes

libel.” Syl. Pt. 8, Greenfield v. Schmidt Baking Co., 199 W. Va. 447, 485 S.E.2d 391 (1997).

Spoken slander and written libel are treated and analyzed in the same way under West

Virginia law. See Workman v. Kroger Ltd. Partnership I, Civil Action No. 5:06-CV-00446,

2007 WL 2984698, at *4 (S.D. W. Va. Oct. 11, 2007) (“Because slander and libel are treated

together as a claim for defamation under West Virginia law, the Court will examine the

claim under the same standard regardless of how it is characterized.”) (footnote omitted).

7

communications, including a letter she sent to the Jefferson County Prosecuting Attorney

encouraging him to investigate allegations which had been made about Ms. Gordon to

determine their truth. The Amended Complaint also alleges that Commissioner Jackson

made defamatory communications in social media posts on her public official Facebook

page and in quotes in two newspaper articles.7

“The essential elements for a successful defamation action by a private

individual are (1) defamatory statements; (2) a nonprivileged 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.” Syl. Pt. 1, Crump v. Beckley Newspapers, Inc., 173 W.

Va. 699, 320 S.E.2d 70 (1983). The pleading and proof requirements for public officials or

public figures are more burdensome, requiring “actual malice,” rather than mere

negligence, on the part of the defendant.

Under West Virginia law, “Plaintiffs who are public officials8 or public

figures must prove by clear and convincing evidence that the defendants made their

7

As the circuit court noted in its order, Ms. Gordon also made vague references to

alleged social media posts which were not specifically identified in the Amended

Complaint. It is impossible to determine what statements may have been contained in such

posts which the petitioner may feel were false, or defamatory, or made with actual malice.

8

“Public officials are those among the hierarchy of government employees who

have, or appear to the public to have, substantial responsibility for or control over the

conduct of government affairs; however, the public official category cannot be thought to

8

defamatory statement ‘with knowledge that it was false or with reckless disregard of

whether it was false or not.’” State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 346, 480

S.E.2d 548, 555 (1996) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)).

A public official or public figure can sustain an action for defamation only if she “can prove

that: (1) the alleged libelous statements were false or misleading; (2) the statements tended

to defame the plaintiff and reflect shame, contumely, and disgrace upon him; (3) the

statements were published with knowledge at the time of publication that they were false

or misleading or were published with a reckless and willful disregard of truth; and, (4) the

publisher intended to injure the plaintiff through the knowing or reckless publication of the

alleged libelous material.” Id. at 352, 480 S.E.2d at 561 (quoting Syl. Pt. 1, in part, Sprouse

v. Clay Comm., Inc., 158 W. Va. 427, 211 S.E.2d 674 (1975)).

“The initial step when assessing a defamation/libel claim is to determine

whether the plaintiff is a public or private figure.” Zsigray v. Langman, 243 W. Va. 163,

169, 842 S.E.2d 716, 722 (2020). “Public figures are persons not occupying a government

office but who ‘have assumed roles of especial prominence in the affairs of society ....

[T]hose classed as public figures have thrust themselves to the forefront of particular public

controversies in order to influence the resolution of the issues involved. In either event,

include all public employees.” Syl. Pt. 10, in part, Hinerman v. Daily Gazette Co., Inc., 188

W. Va. 157, 423 S.E.2d 560 (1992). In this case, none of the parties have alleged that Ms.

Gordon should be treated as a public official for purposes of our defamation analysis, so

our opinion will focus on whether she was a public figure.

9

they invite attention and comment.’” Williams v. Rigg, 458 F. Supp.3d 468, 476-77 (S.D.W.

Va. 2020) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974)).

West Virginia recognizes both “all-purpose public figures” and “limited

purpose public figures.” All-purpose public figures are people “who achieve such pervasive

fame or notoriety that they become public figures for all purposes and in all contexts” while

limited purpose public figures are people “who voluntarily inject themselves into a

particular public controversy and thereby become public figures for a limited range of

issues.” Syl. Pt. 3, Wilson v. Daily Gazette Co., 214 W. Va. 208, 588 S.E.2d 197 (2003).

Regarding limited public figures, the Supreme Court of Appeals of West Virginia

(“SCAWV”) has held:

A libel plaintiff is a limited purpose public figure if the

defendant proves the following: (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.

Syl. Pt. 3, State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 480 S.E.2d 548 (1996).

10

In this case, the circuit court correctly held that Ms. Gordon was at least a

limited public figure for purposes of defamation analysis. As the circuit judge explained in

his decision:

Here, Plaintiff had reasonable access to channels of

communications to the Sheriff as evidenced by her own

allegations that she emailed Sheriff Hansen. Of course,

Plaintiff also had reasonable access to channels of

communications to the Jefferson County Commission and its

Commissioners. Nonetheless, as Plaintiff's Exhibit B to her

Amended Complaint establishes, in mid-October 2021 (before

the Sheriff’s statement was published), Plaintiff criticized the

Sheriff’s budget request publicly, and argued that the budget

request should be denied, which it was. As Plaintiff[’]s Exhibit

K establishes, Plaintiff further voluntarily engaged in

significant efforts to influence a public debate when she wrote

an 8-page single spaced letter to the West Virginia State

Auditor's office on December 22, 2021, alleging a series of

“noncompliant” activities of the Defendants, including that the

Sheriff improperly attempted to create a new captain rank, was

somehow involved in a fraud scheme, and misused the

purchase card. On September 1, 2022, Plaintiff emailed third-

party individuals, alleging that Stephanie Grove was removed

due to some “partisan political issue.” Plaintiff’s own

Amended Complaint establishes how involved she was in the

matters that she alleges support her claims. Accordingly,

Plaintiff is either a public figure or limited purpose public

figure, and therefore has to prove her defamation allegations

by clear and convincing evidence.

On appeal, Ms. Gordon argues that the circuit court erred in holding that she

was a limited public figure at the motion to dismiss stage, rather than the summary

judgment stage, observing that the Respondents’ motions and memoranda, devoid of any

11

exhibits, were not evidence of her status. We agree that Respondents’ motions and

memoranda alone were not evidence of Ms. Gordon’s status, but her 291 paragraph

Amended Complaint, with more than 100 hundred pages of exhibits, provided ample

support for the circuit court’s findings and dismissal of the underlying claims. In deciding

a motion to dismiss, a trial court may consider the factual allegations of the complaint, as

well as any documents attached to the complaint or referenced therein, public records, and

any matters of which the court may take judicial notice. Syl. Pt. 1, Forshey v. Jackson, 222

W. Va. 743, 746 n.8, 671 S.E.2d 748, 751 n.8 (2008); see also Mountaineer Fire & Rescue

Equip., LLC v. City Nat’l Bank of W. Va., 244 W. Va. 508, 854 S.E.2d 870 (2020); Louis J.

Palmer & Robin J. Davis, Litigation Handbook on West Virginia Rules of Civil Procedure

407 (5th ed. 2017).

When the facts so gleaned from the complaint and related documents or

matters of which the court may take judicial notice conclusively establish an affirmative

defense, the court may grant a motion to dismiss for failure to state a claim upon which

relief may be granted. See Gulas v. Infocision Mgmt. Corp., 215 W. Va. 225, 599 S.E.2d

648 (2004) (affirming dismissal based on affirmative defense of res judicata); Forshey v.

Jackson, 222 W. Va. 743, 671 S.E.2d 748 (2008) (granting motion to dismiss based on

affirmative defenses of statute of limitations and statute of repose); Appalachian Mountain

Advocates v. WVU, No. 19-0266, 2020 WL 3407760 (W. Va. June 18, 2020) (memorandum

decision) (granting motion to dismiss a FOIA lawsuit based on the economic development

12

exemption); see generally Louis J. Palmer & Robin J. Davis, Litigation Handbook on West

Virginia Rules of Civil Procedure 410 (5th ed. 2017) (“In an appropriate case, an

affirmative defense may be adjudicated on a motion to dismiss for failure to state a

claim…the facts that establish the defense must be definitively ascertainable from the

allegations of the complaint… [and] the facts so gleaned must conclusively establish the

affirmative defense.”); 5B Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 1357, Westlaw (4th ed. database updated May 2025) (affirmative defenses

may be decided on a motion to dismiss).

Thus, a plaintiff’s status as a public figure may be determined on a motion to

dismiss if the pleadings provide sufficient information to make this determination. Prince

v. Intercept, 634 F. Supp.3d 114, 134 (S.D.N.Y. 2022); Resolute Forest Prod., Inc. v.

Greenpeace Int'l, 302 F. Supp.3d 1005, 1017 (N.D. Cal. 2017) (“[Plaintiff's] own

allegations about their world-wide reach and influence, as well as the public nature of its

work in forestry and sustainability, show that the company is a limited public figure for

purposes of its participation in the forestry industry, including in the Boreal

forest.”); Heller v. NBCUniversal, Inc., No. CV-15-09631-MWF-KS, 2016 WL 6573985,

at *5 (C.D. Cal. Mar. 30, 2016) (finding a limited-purpose public figure where “Plaintiff's

own allegations show that his relationship with N.W.A. was the subject of great public

interest that prompted him to write a book recounting his side of the story.”); Biro v. Conde

Nast, 963 F. Supp.2d 255, 270 (S.D.N.Y. 2013) (“Where the question whether a plaintiff is

13

a public figure can be determined based upon the pleadings alone, the Court may deem a

plaintiff a public figure at the motion to dismiss stage.”), aff'd, 807 F.3d 541 (2d Cir. 2015),

and aff'd, 622 F. App'x 67 (2d Cir. 2015); Satanic Temple, Inc. v. Newsweek Mag. LLC, 661

F. Supp.3d 159, 168 (S.D.N.Y. 2023) (“Where the question whether a plaintiff is a public

figure can be determined based upon the pleadings alone, the Court may deem a plaintiff a

public figure at the motion to dismiss stage.”); Peterson v. Gannett Co. Inc., No. CV-20-

00106-PHX-MTL, 2020 WL 1935520, at *7 (D. Ariz. Apr. 22, 2020) (“In reaching this

conclusion, the Court notes that numerous other courts have found limited-purpose public

figures at the motion to dismiss stage.”). Accordingly, we hold that the circuit court’s

determination that Ms. Gordon was at least a limited public figure for purposes of

defamation analysis was not premature.

In its thorough and well-reasoned order, the circuit court discussed each of

the allegedly defamatory communications by Commissioner Jackson, finding that the

Amended Complaint failed to identify the statements which were supposedly false

statements of fact, rather than expressions of opinion. We agree.9 Furthermore, the circuit

9

Our review of the 291 paragraphs in the Amended Complaint located only three

paragraphs which expressly allege statements which are both false and defamatory, and

two of them do not involve a statement by Commissioner Jackson. See Paragraph 219 (“On

December 1, 2021, another post appeared on the Jefferson County Perspective page calling

for Plaintiff’s termination, falsely saying Plaintiff was arrested for child abuse, claiming

that Plaintiff had admitted to falsifying a county document, and claiming that Plaintiff had

misused funds in Hagerstown,”); Paragraph 143 (“Everhart then posted the letter [between

County Clerk, Stephanie Grove, and the Clerk’s former attorney, Dan Casto] to Jefferson

County Perspective’s Facebook page, with defamatory remarks repeating the County

14

court correctly concluded that the Amended Complaint did not allege that Commissioner

Jackson made any statements with actual malice, that is, with a knowledge that they were

false, or with a reckless disregard for their truth. Consequently, the Amended Complaint’s

allegations concerning Commissioner Jackson did not satisfy the pleading standard

required when public figures seek to recover for defamation. Accordingly, we find no error

with the circuit court’s dismissal of such claims.

2. Whistle-blower Retaliation

The whistle-blower count in Ms. Gordon’s Amended Complaint relies on

West Virginia Code § 6C-1-3(a) which states that:

No employer may discharge, threaten, or otherwise

discriminate or retaliate against an employee by changing the

employee’s compensation, terms, conditions, location, or

privileges of employment because the employee, acting on his

or her own volition, or a person acting on behalf of or under

the direction of 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.

Clerk’s false accusations of stealing a signature key, and stealing or limiting [the Clerk’s]

constitutional duties.”). Mr. Everhart was dismissed as a defendant in the underlying action

and is not a party to this appeal. The complaint does not state that he acted at the direction

of Commissioner Jackson or with her knowledge. A third statement vaguely alleges false

and defamatory statements and posts made by several people and publications, including

Commissioner Jackson. See Paragraph 137 (“From September 23, 2021, Jefferson County

Perspective, Conservative Chicks of West Virginia, Defendant Jackson, Defendant Shadle,

and Defendant Hansen made defamatory and false statements and posts on Facebook and

to newspapers regarding the Plaintiff.”).

15

The circuit court dismissed this count against Commissioner Jackson and the

Jefferson County Commission after finding it was not adequately pleaded. We agree. The

Amended Complaint does not allege that Ms. Gordon was terminated. In fact, the Amended

Complaint acknowledges and specifically states that Ms. Gordon resigned her employment

with the Jefferson County Commission. Further, the Amended Complaint does not contain

any allegations that the “compensation, terms, conditions, location, or privileges of

employment” of Ms. Gordon’s employment with the Jefferson County Commission were

changed in alleged retaliation for her whistle-blowing.

Ms. Gordon argues that the criticism and harassment allegedly committed by

the Jefferson Couty Commission, Commissioner Jackson, and others acting in concert,

adversely changed the terms and conditions of her employment. In support of this position,

she cites federal cases interpreting allegedly similar language in Title VII, but we do not

find the language of that federal statute to be analogous to that of our whistle-blower

statute, West Virginia Code § 6C-1-3(a). Moreover, the cases construing Title VII do not

hold that criticism of an employee’s job performance and methods constitute a change of

the terms and conditions of their employment. Instead, these cases hold that Title VII’s

provision against discriminating against employees for exercising their rights under Title

VII is not limited to changing the terms and conditions of employment.

16

Section 703-2(a)(1) of the United States Code, which sets out Title VII’s

substantive antidiscrimination provision, provides in relevant part:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's

race, color, religion, sex, or national origin; …

(Emphasis added). Unlike West Virginia Code § 6C-1-3(a), Title VII contains a retaliation

provision separate from the substantive discrimination provision. Section 704(a) of Title

VII provides that:

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees or applicants for

employment ... because he has opposed any practice made an

unlawful employment practice by this subchapter, or because

he has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this

subchapter.” § 2000e–3(a).

The Supreme Court of the United States reviewed the language of these two provisions and

concluded:

The italicized words in the substantive provision—“hire,”

“discharge,” “compensation, terms, conditions, or privileges of

employment,” “employment opportunities,” and “status as an

employee”—explicitly limit the scope of that provision to

actions that affect employment or alter the conditions of the

workplace. No such limiting words appear in the antiretaliation

provision.

Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006). Based in large

part on the different language of these two provisions, the Court went on to hold “that the

antiretaliation provision, unlike the substantive provision, is not limited to discriminatory

17

actions that affect the terms and conditions of employment,” id. at 64, and that the jury

considering a Title VII retaliation claim “was not required to find that the challenged

actions were related to the terms or conditions of employment.” Id. at 70; see also Laurent-

Workman v. Wormuth, 54 F.4th 201, 213 (4th Cir. 2022) (“The Supreme Court [in

Burlington Northern] held that the phrase ‘discriminate against’ in the anti-retaliation

provision does not confine actionable retaliation to adverse actions that alter the terms and

conditions of employment.”).

However, in our West Virginia whistle-blower statute, West Virginia Code §

6C-1-3(a), there is one provision, not two, and the words of limitation—“the employee’s

compensation, terms, conditions, location, or privileges of employment”—appear in the

same provision and modify the language forbidding retaliation for whistle-blowing. Some

might favor a broader scope for “discriminate” or “retaliate” but it is not the job of this

court to rewrite the statute. See generally Lewis v. Canaan Valley Resorts, Inc., 185 W. Va.

684, 692, 408 S.E.2d 634, 642 (1991) (“[T]he judiciary may not sit as a superlegislature to

judge the wisdom or desirability of legislative policy determinations made in areas that

neither affect fundamental rights nor proceed along suspect lines.”).

18

B. Petitioner’s Claims Against Sheriff Hansen

Ms. Gordon’s primary claims against Sheriff Hansen are for defamation and

invasion of privacy.10

1. Defamation

Ms. Gordon’s Amended Complaint identifies one allegedly defamatory

statement by Sheriff Hansen, which appeared in The Spirit of Jefferson and Farmer’s

Advocate on October 20, 2021, and was attached to the Amended Complaint as Exhibit B.

Sheriff Hansen’s statement, which began by saying that he had “become aware of

allegations that members of his office were involved in exposing the background of the

Jefferson County Financial Director,” was offered in response to allegations that his office

had acted inappropriately. In this statement, Sheriff Hansen went on to opine that the county

finance director has no authority over how an elected county official spends their budget,

and that the financial director had “overreached” under West Virginia Code § 7-7-7 (2011)

because the county financial director “has little to no control over how the Elected Official

chooses to spend their budget as long as the Official stays within their set budget.” Based

on our review of the record, we agree with the circuit court that Sheriff Hansen’s opinion

10

To the extent that Ms. Gordon may seek to pursue a claim for whistle-blower

retaliation against Sheriff Hansen, that claim fails because Sheriff Hansen was not her

employer. Moreover, as discussed above, the Amended Complaint fails to adequately allege

a claim under our whistle-blower statute because Ms. Gordon was not discharged from her

employment, and she did not experience a change in the terms and conditions of her

employment; so, there is no actionable claim for retaliatory discharge against anyone.

19

concerning a matter of public concern was entitled to absolute privilege. See Syl. Pt. 3,

Maynard v. Daily Gazette Co., 191 W. Va. 601, 447 S.E.2d 293 (1994) (“…statements of

opinion are absolutely protected under the First Amendment and cannot form the basis for

a defamation action.”) (quoting Syl. Pt. 7, Long v. Egnor, 176 W. Va. 628, 346 S.E.2d 778

(1986)).11 In fact, even if Sheriff Hansen’s opinion were treated as a statement of fact

(rather than an opinion), the Amended Complaint does not allege that this statement was

false, that it was uttered with the knowledge that it was false or with a reckless disregard

for the truth, or that it was intended to harm Ms. Gordon (who was not even named in

Sheriff Hansen’s statement).

2. Invasion of Privacy

According to the Amended Complaint, Sheriff Hansen directed Deputy

Kevin Boyce, Deputy Glen Kilmer, and Administrative Assistant Emma Brown to access

Ms. Gordon’s background information from a law enforcement database12 and directed

11

“[W]hether a statement is one of fact or opinion is an issue that must be decided

initially by a court.” Syl. Pt. 7, in part, Long v. Egnor, 176 W. Va. 628, 346 S.E.2d 778

(1986).

12

According to the Amended Complaint, Deputy Boyce “illegally searched” Ms.

Gordon’s name and driver’s license number in the Criminal Justice Information System on

July 29, 2021. Emma Brown, the Sheriff's Office’s Administrative Assistant, then printed

Ms. Gordon’s citation record, legal records, and warrant record. Deputy Kilmer viewed

Ms. Gordon’s records during this process. On August 25, 2021, Deputy Boyce again

searched Ms. Gordon’s name, this time from a mobile unit and took a screen shot of Ms.

Gordon’s information, including her social security number, driver’s license, date of birth,

and address.

20

Deputy Kilmer to deliver this information to Barbara Fuller. The Amended Complaint also

alleges that the “Sheriff’s Office, at the direction of Defendant Hansen, disseminated the

information from Plaintiff’s background check to a local organization called Jefferson

County Perspective, who then had multiple meetings at the home of [Defendant] Christine

Ence as they plotted the best way to use this information against Plaintiff so that she would

be fired.” Paragraph 136 of the Amended Complaint alleges that: “On September 23, 2021,

Jefferson County Perspective ‘doxed’13 Plaintiff by posting [on its Facebook page] a

screenshot[,] taken by Deputy Boyce[,] of Plaintiff’s information from the Criminal Justice

Information System including her social security number, date of birth, home address and

driver’s license number.”

An invasion of privacy may occur when there is (1) an unreasonable intrusion

upon the seclusion of another; (2) an appropriation of another’s name or likeness; (3)

unreasonable publicity given to another’s private life; or (4) publicity that unreasonably

places another in a false light before the public. See Syl. Pt. 8, Crump v. Beckley

Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1983). Here, the Amended Complaint

alleges that Sheriff Hansen instructed members of the Sheriff’s Department to conduct

13

Merriam-Webster’s Online Dictionary defines “dox” as a transitive verb meaning

“to publicly identify or publish private information about (someone) especially as a form

of punishment or revenge.” https://www.merriam-webster.com/dictionary/dox. It is a

“respelling of docs, plural of doc (short for DOCUMENT entry 1)…” Id. The term is of

recent vintage, as its first known use was in 2009. Id.

21

“illegal”14 background searches of Ms. Gordon using police databases, and to provide this

information to third parties. In addition, the Amended Complaint alleges that Ms. Gordon

was placed in a false light. Thus, the complaint invokes three of the four categories of

invasion of privacy, omitting only the appropriation of a person’s name or likeness.

Regarding the first category of invasion of privacy, we find that the

conclusory allegations concerning the two background checks conducted by personnel of

the Sheriff’s Office were not sufficient to plead an unreasonable intrusion upon the

seclusion of Ms. Gordon. See Backus v. City of Parkersburg, 980 F. Supp.2d 741 (S.D.W.

Va. 2013) (dismissing complaint which alleged that law enforcement officers had “violated

U.S. Privacy Law & my 1st, 4th & 14th Amendment Rights when they conducted ‘illegal’

background checks on me.”).

We also conclude that providing the screenshot to Barbara Fuller and/or the

Jefferson County Perspective did not establish liability for the second category of invasion

of privacy, unreasonable publicity given to another’s private life,15 noting that the Sheriff

14

Neither Ms. Gordon’s Amended Complaint nor her briefing on appeal define what

constitutes an “illegal” background search.

15

The claim of unreasonable publicity given to another’s private life has the

following elements:

22

and his staff were not the ones who published the screenshot. Moreover, there are no

allegations in the Amended Complaint that Sheriff Hansen knew, or reasonably should have

known, that the Jefferson County Perspective would publish the screenshot in an

unredacted form that would reveal such sensitive personal information as Ms. Gordon’s

social security number.

The final category of invasion of privacy implicated by the complaint,

“publicity that unreasonably places another in a false light before the public,” has the

following elements:

One who gives publicity to a matter concerning another

that places the other before the public in a false light is subject

to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would

be highly offensive to a reasonable person, and

(1) that there was a public disclosure by the Defendant

of facts regarding the Plaintiff; (2) that the facts

disclosed were private facts; (3) that the disclosure of

such facts is highly offensive and objectionable to a

reasonable person of reasonable sensibilities; and (4)

that the public has no legitimate interest in the facts

disclosed.

Davis v. Monsanto Co., 627 F. Supp. 418, 421 (S.D.W. Va. 1986); Restatement (Second)

of Torts § 652D (Am. L. Inst. 1977).

23

(b) the actor had knowledge of or acted in reckless

disregard as to the falsity of the publicized matter and the false

light in which the other would be placed.

Taylor v. W. Va. Dept. of Health and Hum. Res., 237 W. Va. 549, 569-70, 788 S.E.2d 295,

315-16 (2016) (quoting Restatement (Second) of Torts § 652E (Am. L. Inst. 1977)). In

addition, “although widespread publicity is not necessarily required for recovery under a

defamation cause of action, it is an essential ingredient to any false light invasion of privacy

claim.” Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 716, 320 S.E.2d 70, 87-8

(1983); see also Blankenship v. Trump, 558 F. Supp.3d 316, 330 (S.D.W. Va. 2021)

(discussing elements of false light claim under West Virginia law).

As one might expect, there are “a number of similarities between actions for

false light invasion of privacy and actions for defamation. The most prominent

characteristic shared by the two causes of action is that the matter publicized as to the

plaintiff must be untrue.” Crump v. Beckley Newspapers, Inc., at 715-16, 320 S.E.2d at 87.

In this case, the Amended Complaint does not allege that the information provided by

Sheriff Hansen or his staff, either the statement or the screenshot, was false.

Moreover, privacy law recognizes the defense of “newsworthiness” which

allows “a defendant to avoid all liability once established.” Id. at 712, 320 S.E.2d at 83.

“There are two classes of newsworthy subjects which are privileged under privacy law:

public figures and matters of legitimate public interest.” Id. Similar to defamation, the

24

determination of whether a person is a “public figure” focuses on “the individual either by

assuming a role of special prominence in the affairs of society or by thrusting himself to

the forefront of a particular public controversy … has become a public figure.” Id. (internal

quotation marks and citations omitted).

“The ‘public figure’ doctrine in privacy law operates in the same manner as

qualified privileges operate in defamation law. Although normally a bar to recovery, the

‘public figure’ privilege may be lost through abuse, excess or actual malice.” Id. at 712,

320 S.E.2d at 83-4.16 As noted above, the Amended Complaint does not allege that Sheriff

Hansen acted with actual malice, i.e., either that he knew that his statement and screenshot

were false, or that he acted with reckless disregard for the truth when they were published.

To avoid dismissal of a false light claim, a plaintiff must allege actual malice regarding a

public figure. See Blankenship v. Trump, 558 F. Supp.3d 316, 330 (S.D.W. Va. 2021);

Herman v. Muhammed, 329 A.3d 1072, 1081 (N.J. Super. 2024) (“We conclude Herman's

amended complaint did not sufficiently allege a prima facie case of defamation and false-

light invasion of privacy because she failed to assert facts that [show] defendants’

statements … were made with actual malice.”); Greene v. Street, 2010 No. 0303, 2011 WL

10525400, at *5 (Pa. Ct. Comm. Pleas Aug. 4, 2011) (“…Greene's failure to plead actual

16

As with defamation, our state and federal constitutions require that the defendant

must act with actual malice in false light cases involving public figures to be held liable.

See Blankenship v. NBCUniversal, LLC, 60 F.4th 744, 769 (4th Cir. 2023) (under West

Virginia law, public figures alleging false light claim must prove that the defendant made

a false statement with actual malice).

25

malice in his Complaint warrants a dismissal of both his false light and defamation

claims.”). Here, we find that the failure of Ms. Gordon to adequately plead falsity and

actual malice in the Amended Complaint justified the circuit court’s dismissal of the false

light claim against Sheriff Hansen, and accordingly, we find no error.

IV. CONCLUSION

Based on the foregoing, we affirm the September 20, 2023, orders of the

Circuit Court of Jefferson County dismissing Sheriff Hansen, Commissioner Jackson, and

the Jefferson County Commission.

Affirmed.

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