State of West Virginia ex rel. Gabriel Devono and The Board of Education of Randloph County v. The Honorable David H. Wilmoth, Judge of the Circuit Court of Randolph Coutny, Sherman Arbogast, and Marlene Arbogast

No. 22-0480, SER Gabriel Devono & The Board of Education of Randolph Co. v. Hon.

David H. Wilmoth, Judge of the Circuit Court of Randolph Co., Sherman Arbogast &

Marlene Arbogast FILED

June 15, 2023

Walker, C.J. dissenting, in part, and concurring, in part. released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Ms. Arbogast is a former “employee”1 of the Board of Education of

Randolph County.2 She has brought claims in circuit court against the Board and its former

superintendent, Mr. Devono, stemming from the termination of her employment. The

Legislature has provided an administrative remedy for claims like Ms. Arbogast’s—the

prosecution of a “grievance,” as defined in West Virginia Code § 6C-2-1(i) (2023), before

the West Virginia Public Employees Grievance Board.3 “The general rule is that where an

administrative remedy is provided by statute or by rules and regulations having the force

and effect of law, relief must be sought from the administrative body, and such remedy

must be exhausted before the courts will act.”4 Because the Legislature has provided Ms.

Arbogast with an administrative remedy for her claims of wrongful and retaliatory

1

Ms. Arbogast satisfies the definition of “employee” found in West Virginia Code

§ 6C-2-2(e)(1) (2023) (“‘Employee’ means any person hired for permanent employment

by an employer for a probationary, full- or part-time position.”).

2

See W. Va. Code § 6C-2-2(g) (defining “employer” to mean a “county board of

education,” among other entities).

3

See W. Va. Code §§ 6C-2-1 to 8 (“West Virginia Public Employees Grievance

Procedure”).

4

Syl. Pt. 1, Daurelle v. Traders Fed. Sav. & Loan Ass’n of Parkersburg, 143 W.

Va. 674, 104 S.E.2d 320 (1958).

1

discharge (Counts III, IV, and V), she is bound to exhaust her remedies before the

Grievance Board before turning to the circuit court for relief .5 Ms. Arbogast has not done

that. So, she has failed to “satisfy the jurisdictional prerequisite to resort to the courts;”6

the circuit court lacks jurisdiction over Counts III, IV, and V of the amended complaint;

and the circuit court should have dismissed those claims under West Virginia Rule of Civil

Procedure 12b)(1).7

Count III

The majority concludes that the circuit court may exercise jurisdiction over

Count III because, there, Ms. Arbogast has alleged that she was “wrongfully discharged in

violation of the Whistle-[B]lower Law, West Virginia Code §§ 6C-1-1 to -8.” The majority

then reasons that West Virginia Code § 6C-1-4(a) (2020) “clearly and unambiguously

5

See Ragione v. Bd. of Educ. of Preston Cnty., No. 17-0037, 2018 WL 300576, at

*3 (W. Va. Jan. 5, 2018) (affirming dismissal of breach of contract, fraudulent inducement,

civil conspiracy, and unjust enrichment claims where plaintiff failed to appeal adverse

level-three Grievance Board decision); Redd v. McDowell Cnty. Bd. of Educ., No. 15-0566,

2016 WL 2970303, at *4 (W. Va. May 20, 2016) (affirming dismissal of claims that board

of education had violated “various state statutes governing the management of school

personnel” where plaintiff failed to appeal adverse level-three Grievance Board decision);

Subramani v. W. Va. Univ. Bd. of Governors, No. 14-0924, 2015 WL 7628720, at *6 (W.

Va. Nov. 20, 2015) (affirming dismissal of professor’s employment-related claims where

he failed to exhaust administrative remedies); see also Vest v. Bd. of Educ. of Cnty. of

Nicholas, 193 W. Va. 222, 224–25, 455 S.E.2d 781, 783–84 (1995) (stating that “the

Grievance Board, through its hearing examiners, has ‘jurisdiction’ to decide grievances”).

6

Daurelle, 143 W. Va. at 682, 104 S.E.2d at 326.

7

I concur with the majority that the circuit court should have dismissed Counts I,

II, and VII.

2

provides that a person claiming to be a victim of retaliatory action as a result of being a

whistle-blower may institute a civil action in a court of competent jurisdiction.”8 So,

according to the majority, Ms. Arbogast was not bound by the common law to seek relief

for the harm alleged in Count III before the Grievance Board before turning to the circuit

court.

I disagree with the first step of the majority’s analysis—Count III is not a

claim for relief under the Whistle-Blower Law that the Legislature has exempted from “the

jurisdictional prerequisite” of exhaustion of administrative remedies before the Grievance

Board. In Count III, Ms. Arbogast alleges that (1) she reported the pre-K teacher’s alleged

wrongdoing to the School Board and Mr. Devono; (2) Mr. Devono engaged in a malicious

“pattern of conduct to cover-up the mistreatment and abuse of students and to create bogus

reasons to discharge [Ms. Arbogast] as punishment for [Ms. Arbogast] informing him of

the wrongdoing of [the pre-K teacher];” (3) Mr. Devono got others to do the same in

furtherance of the termination of Ms. Arbogast’s employment; and (4) Mr. Devono and the

Board terminated her employment in violation of the Whistleblower Act, the Human Rights

Act, and the Board’s policy prohibiting discharge and retaliation for the good faith

reporting of wrongdoing.

8

See W. Va. Code § 6C-1-4(a) (2020) (“A person who alleges that he or she is a

victim of a violation of this article may bring a civil action in a court of competent

jurisdiction for appropriate injunctive relief or damages, or both, within two years after the

occurrence of the alleged violation.”).

3

From those allegations, the majority summarily concludes that Ms. Arbogast

alleges a claim for wrongful discharge in violation of the Whistle-Blower Law under West

Virginia Code § 6C-1-4(a). Despite Ms. Arbogast’s invocation of the Human Rights Act

and Board policy in that count—as well as the Whistle-Blower Act—I could go along with

that conclusion based on the title of the claim alone: “Wrongful Discharge in Violation of

Whistleblower Statute.” But the substance of a claim does not depend solely on its title,

and a careful review of the allegations in Count III demonstrates that it is nothing more

than a claim for wrongful discharge, i.e., a “grievance” under § 6C-2-2(i)(1), that must be

taken to the Grievance Board.

Ms. Arbogast claims that Mr. Devono’s and the Board’s wrongful actions

violated “the West Virginia Human Rights Act, Whistle Blower Statute and other

substantial public policy . . . .”9 Ms. Arbogast’s invocation of “substantial public policy”

signals that Count III is something other than a claim under West Virginia Code

§ 6C-1-4(a).10 Ms. Arbogast also seeks relief beyond that afforded by the Legislature for

violations of the Whistle-Blower Law—again, a signal that Count III is something other

than a claim under West Virginia Code § 6C-1-4(a). The Whistle-Blower Law grants

specific remedies to the successful complainant:

9

Emphasis added.

10

Cf. Syl., in part, Harless v. First Nat. Bank in Fairmont, 162 W. Va. 116, 246

S.E.2d 270 (1978) (holding 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”).

4

[a] court, in rendering a judgment for the complainant

in an action brought under this article, shall order, as the court

considers appropriate, reinstatement of the employee, the

payment of back wages, full reinstatement of fringe benefits

and seniority rights, actual damages or any combination of

these remedies. A court may also award the complainant all or

a portion of the costs of litigation, including reasonable

attorney fees and witness fees, if the court determines that the

award is appropriate.[11]

Despite the Legislature’s clear articulation of remedies available under the

Whistle-Blower Act, Ms. Arbogast seeks damages for “emotional stress, embarrassment,

humiliation, damage to her reputation, lost wages, and annoyance and inconvenience,”

present and future. That Ms. Arbogast seeks relief beyond that afforded by the Whistle-

blower Act is another signal that Count III is something other than a plea for relief under

the Whistle-Blower Act. Of course, the next question is, “What is Ms. Arbogast really

claiming in Count III if not a violation of West Virginia Code § 6C-1-4(a)?” The answer?

A common law, wrongful discharge claim—a “grievance” under West Virginia Code

§ 6C-2-1(i)(1)(v) subject to exhaustion requirements.

Counts IV and V

11

W. Va. Code 6C-1-5 (1998); see also Syl. Pt. 1, Thompson v. Town of Alderson,

215 W. Va. 578, 600 S.E.2d 290 (2004) (“The remedies set forth in the Whistle–Blower

Law, W.Va.Code, 6C–1–1, et seq. [1988] are reinstatement of the employee, the payment

of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or

any combination of these remedies. A court may also award the complainant all or a portion

of the costs of litigation, including reasonable attorney fees and witness fees, if the court

determines that the award is appropriate. The issue of ordering reinstatement for a

prevailing plaintiff is an equitable decision committed to the sound discretion of the trial

judge, and not the jury.”).

5

I also disagree with the majority’s conclusion that Counts IV (“Retaliatory

Discharge in Violation of First Amendment Right to Free Speech”) and V (“Wrongful

Discharge in Violation of Constitutional Right to Retain Counsel, Seek Access to Courts

and for a Jury Trial”)12 are not grievances.13 Like Count III, Counts IV and V are common

law, wrongful discharge claims that Ms. Arbogast was bound to take to the Grievance

Board before resorting to circuit court. Those claims aren’t transformed into something

other than that simply because Ms. Arbogast invokes the federal constitution.

Ms. Arbogast alleged in Count IV that (1) she reported a matter of public

concern to Mr. Devono; (2) Mr. Devono retaliated against her for exercising her speech

rights under the First Amendment by fabricating grounds to terminate her employment;

and (3) Mr. Devono and the Board terminated Ms. Arbogast’s employment in retaliation

for exercising her First Amendment rights. And in Count V, Ms. Arbogast alleged that (1)

she has constitutionally protected rights to obtain counsel and seek redress in the courts;

12

The majority treats these claims as if both alleged violations of Ms. Arbogast’s

First Amendment speech rights. That is not accurate. In Count V, Ms. Arbogast alleges

that defendants violated her Sixth Amendment right to obtain counsel. Subject to few

exceptions, that right arises in criminal proceedings, only. See U.S. Const. Amend. VI (“In

all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of

counsel for his defense.”).

13

The majority specifically concludes that “the circuit court did not err in denying

the petitioners’ motion to dismiss counts four and five pursuant to Rule 12(b)(1).” To get

there, the majority necessarily had to conclude that Couns IV and V were not

“grievances”—otherwise, the Public Employee Grievance Board has authority to resolve

those claims, not the circuit court.

6

(2) Mr. Devono and the Board interfered with her efforts to secure counsel; (3) Mr. Devono

fabricated reasons for the termination of her employment to punish her for attempting to

exercise constitutionally protected rights; and (4) Mr. Devono and the Board wrongfully

terminated Ms. Arbogast’s employment because she exercised constitutionally protected

rights.

The Grievance Board has dealt with employees’ claims that an adverse

employment action violated their First Amendment rights or that the adverse action was

taken in retaliation for the exercise of rights guaranteed by the First Amendment. In

Alderman v. Pocahontas County Board of Education,14 a vice principal grieved the

termination of his employment of grounds of insubordination, arguing that messages he

posted to a public website maligning the school board’s treasurer and the county

superintendent were speech protected by the First Amendment. The Grievance Board

found that the vice principal’s statements were not protected speech, and so denied his

grievance. The circuit court reversed the Grievance Board, and this Court reversed the

circuit court, reinstating the Grievance Board’s rejection of the vice principal’s claim to

First Amendment protections. In Reed v. West Virginia State Police, this Court affirmed

the circuit court’s order affirming the Grievance Board’s order denying a state trooper’s

grievance, despite the trooper’s contention that the at-issue posts to his personal Facebook

14

Alderman v. Pocahontas Cnty. Bd. of Educ., 223 W. Va. 431, 675 S.E.2d 907

(2009).

7

page were protected speech.15 In Jarrell v. New River Community and Technical College.,

this Court affirmed the circuit court’s order affirming the Grievance Board’s denial of the

employee’s grievance, despite the employee’s assertion “that her contract was not renewed

as retaliation for her questioning of NRCTC’s vice-president at a faculty senate meeting”

but where the Grievance Board found the employee’s allegedly protected activities were

not protected by the First Amendment.16 In Smith v. West Virginia Workers’ Compensation

Fund, this Court reversed the circuit court’s order reversing the Grievance Board’s denial

of claims investigators’ grievances where the “hearing examiner ultimately found that the

[claims investigators] had failed to establish a prima facie case of political

discrimination.”17 In Watson v. West Virginia Department of Health and Human Services,

this Court affirmed the circuit court’s order reversing the Grievance Board’s order granting

the employee’s grievance where the Grievance Board had incorrectly determined that

employee’s First Amendment rights were violated when he was disciplined for failing to

15

Reed v. W. Va. State Police, No. 15-0598, 2016 WL 2970305 (W. Va. May 20,

2016).

16

Jarrell v. New River Cmty. & Tech. Coll., No. 101403, 2011 WL 8183123, at *3

(W. Va. Sept. 23, 2011) (“‘[B]ickering and running disputes with the department heads”

do not come within First Amendment protection.’”) (quoting Chitwood v. Feaster, 468

F.2d 359, 360–1 (4th Cir. 1972)).

17

Smith v. W. Va. Workers’ Comp. Fund, 190 W. Va. 573, 575, 439 S.E.2d 438, 440

(1993) ( “dismissal of a non-civil service employee is improper and thus violates one’s first

amendment rights when made for political patronage reasons”).

8

abide by his employer’s directive not to communicate with coworkers during an internal

investigation.18

Despite that authority, the majority follows Ms. Arbogast’s lead to Orr v.

Crowder19 and Corbett v. Duerring.20 The majority is correct that an allegedly wronged

public employee sought to vindicate First Amendment rights in those cases. But the

majority is not correct that those cases affect the ultimate question of whether the circuit

court may exercise jurisdiction over Counts IV and V of Ms. Arbogast’s complaint for

several reasons. First, in Orr and Corbett, the allegedly wronged public employees pursued

relief under 42 U.S.C. § 1983 for alleged violations of their First Amendment rights. Those

cases don’t include a discussion of the exhaustion of administrative remedies. The majority

takes that absence and runs with it, implicitly concluding that the § 1983 claims (First

Amendment) brought by the public employees in those cases are not subject to

administrative exhaustion requirements,21 so Ms. Arbogast’s common law, wrongful

discharge claims aren’t, either.22

18

Watson v. W. Va. Dep’t of Health & Hum. Res., No. 11-0191, 2012 WL 2924123,

at *6 (W. Va. Jan. 19, 2012).

19

173 W. Va. 335, 315 S.E.2d 593 (1983).

20

780 F.Supp.2d 486 (S.D. W. Va. 2011).

21

The majority cites no law to support this reasoning.

22

This even though this Court limited the holding in Orr to § 1983 claims:

9

The majority’s analysis shortchanges the meaningful differences between

Claims IV and V in Ms. Arbogast’s amended complaint and the § 1983 claims at issue in

Orr and Corbett. First, even under our forgiving pleading standard, Claims IV and V don’t

state a claim for relief under § 1983. Counts IV and V don’t include allegations that track

the elements of that claim or reference that statute.23 While we construe the allegations in

complaint in the light most favorable to a plaintiff, we cannot rewrite those allegations to

save a claim from the claimant’s failure to exhaust her administrative remedies. Second,

Ms. Arbogast doesn’t assert in her response brief that she has pleaded claims under § 1983;

rather, she alludes to Orr and Corbett for the substantive law regarding First Amendment

retaliation claims brought by public employees. Third, if Counts IV and V of the amended

complaint are § 1983 claims, then how can Ms. Arbogast seek relief from the Board for the

In a suit under 42 U.S.C. § 1983, where the plaintiff

claims that he was discharged for exercising his First

Amendment right of free speech, the burden is initially upon

the plaintiff to show: (1) that his conduct was constitutionally

protected; and (2) that his conduct was a substantial or

motivating factor for his discharge. His employer may defeat

the claim by showing that the same decision would have been

reached even in the absence of the protected conduct.

Syl. Pt. 4, Orr, 173 W. Va. at 339, 315 S.E.2d at 597.

23

Cf. Hutchison v. City of Huntington, 198 W. Va. 139, 151–52, 479 S.E.2d 649,

661–62 (1996) (“In order to recover damages under § 1983, a plaintiff must show that (1)

the conduct complained of was committed by a person acting under color of state law; and

(2) whether this conduct deprived a person of rights, privileges or immunities secured by

the Constitution or laws of the United States.”) (internal quotation omitted).

10

alleged retaliation perpetrated by Mr. Devono?24 Similarly, if Counts IV and V are § 1983

claims, may Mr. Devono now assert the defense of qualified immunity?25

At best, the majority has confused the line between two, distinct procedural

vehicles for vindication of a discharged, public employee’s First Amendment rights. That

is, it has blurred the line between a common law, wrongful discharge claim 26 and a claim

under 42 U.S.C. § 1983. At worst, it has given license to public employees to ignore the

Legislature’s clear direction that “grievances” like Ms. Arbogast’s are subject to the

authority of the Public Employees Grievance Board.

24

See Cincotta v. Hempstead Union Free Sch. Dist., 313 F. Supp. 3d 386, 409

(E.D.N.Y. 2018) (“a municipality cannot be held liable under § 1983 on a respondeat

superior theory” unless “the policies or customs it has sanctioned, led to an independent

constitutional violation” or “inadequate training reflects deliberate indifference to

constitutional rights”) (internal quotations omitted).

25

See, e.g., Brickey v. Hall, 828 F.3d 298, 303 (4th Cir. 2016) (“Qualified immunity

shields government officials from personal liability when their conduct does not violate

clearly established rights of which a reasonable person would have known.”) (cleaned up);

Robertson v. Anderson Mill Elementary Sch., 989 F.3d 282, 290 (4th Cir. 2021) (principal

was qualifiedly immune from §1983 claim (First Amendment) where student had not

pleaded a violation of a federal constitutional right); see also Robinson v. Pack, 223 W.

Va. 828, 834, 679 S.E.2d 660, 666 (2009) (“federal law is controlling when public officials

are sued in state court for violations of federal rights under 42 U.S.C. § 1983”).

26

See Feliciano v. 7-Eleven, Inc., 210 W. Va. 740, 750, 559 S.E.2d 713, 723 (2001)

(to determine whether an employee has “successfully presented a claim of relief for

wrongful discharge in contravention of substantial public policy” court must consider

whether “a clear public policy existed and was manifested in a state or federal

constitution”) (emphasis added).

11

Here is my bottom line: Counts III, IV, and V of the amended complaint are

common law, wrongful discharge claims in their purest form. And, because they have been

brought by Ms. Arbogast, an “employee”27 against an “employer,”28 and they satisfy the

pivotal definition of “grievance,” Ms. Arbogast had to seek “relief . . . from the [Public

Employees Grievance Board” before running to circuit court. She did not do that. So, I

repeat, Ms. Arbogast has failed to “satisfy the jurisdictional prerequisite to resort to the

courts;”29 the circuit court lacks jurisdiction over Counts III, IV, and V of the amended

complaint; and the circuit court should have dismissed those claims under West Virginia

Rule of Civil Procedure 12b)(1).

I am authorized to state that Justice Armstead joins in this separate opinion.

27

See note 1, supra.

28

See note 2, supra.

29

Daurelle, 143 W. Va. at 674, 104 S.E.2d at 322.

12