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

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

FILED

January 2023 Term

June 15, 2023

_____________________ released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

No. 22-0480 OF WEST VIRGINIA

_____________________

STATE OF WEST VIRGINIA EX REL. GABRIEL DEVONO AND

THE BOARD OF EDUCATION OF RANDOLPH COUNTY,

Petitioners,

v.

THE HONORABLE DAVID H. WILMOTH, JUDGE OF THE CIRCUIT COURT OF

RANDOLPH COUNTY, SHERMAN ARBOGAST, AND MARLENE ARBOGAST,

Respondents.

___________________________________________________________

PETITION FOR A WRIT OF PROHIBITION

WRIT GRANTED, IN PART, AND DENIED, IN PART

_________________________________________________________

Submitted: April 19, 2023

Filed: June 15, 2023

Susan L. Deniker, Esq. James R. Fox, Esq.

Jeffrey M. Cropp, Esq. Fox Law Office, PLLC

Steptoe & Johnson PLLC Hurricane, West Virginia

Bridgeport, West Virginia Attorney for Respondents Sherman

Attorneys for Petitioners Arbogast and Marlene Arbogast

JUSTICE HUTCHISON delivered the Opinion of the Court.

CHIEF JUSTICE WALKER and JUSTICE ARMSTEAD concur, in part, and dissent, in

part, and reserve the right to file separate opinions.

JUSTICE BUNN, deeming herself disqualified, did not participate in the decision in this

case.

JUDGE THOMAS E. SCARR, sitting by temporary assignment.

SYLLABUS BY THE COURT

1. “Prohibition lies only to restrain inferior courts from proceeding in

causes over which they have no jurisdiction, or, in which, having jurisdiction, they are

exceeding their legitimate powers and may not be used as a substitute for writ of error,

appeal or certiorari.” Syl. Pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).

2. “A writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syl. Pt. 2,

State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).

3. “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ had no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

i

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va.

12, 483 S.E.2d 12 (1996).

4. “‘“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.” Syl. pt. 1, Daurelle v. Traders Federal Savings & Loan Association, 143 W.Va.

674, 104 S.E.2d 320 (1958).’ Syl. Pt. 1, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35

(1984).” Syl. Pt. 10, State ex rel. Miller v. Reed, 203 W. Va. 673, 510 S.E.2d 507 (1998).

5. “A plaintiff may, as an alternative to filing a grievance with the West

Virginia Public Employees Grievance Board, initiate an action in circuit court to enforce

rights granted by the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq.” Syl.

Pt. 9, Weimer v. Sanders, 232 W. Va. 367, 752 S.E.2d 398 (2013).

6. “In order to make a prima facie case of employment discrimination

under the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. (1979), the

plaintiff must offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the plaintiff.

ii

(3) But for the plaintiff’s protected status, the adverse decision would not have been made.”

Syl. Pt. 3, Conaway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423

(1996).

7. “The primary rule of statutory construction is to ascertain and give

effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138 W. Va. 660, 76

S.E.2d 885 (1953).

8. “When a statute is clear and unambiguous and the legislative intent is

plain, the statute should not be interpreted by the courts, and in such case it is the duty of

the courts not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel

Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

9. The filing of a grievance with the West Virginia Public Employees

Grievance Board for an alleged violation of the Whistle-blower Law is permissive and the

failure to do so does not preclude an employee from initiating an action in circuit court to

enforce rights provided by West Virginia Code § 6C-1-3 (2020).

10. “Under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731,

20 L.Ed.2d 811 (1968), public employees are entitled to be protected from firings,

demotions and other adverse employment consequences resulting from the exercise of their

free speech rights, as well as other First Amendment rights. However, Pickering

iii

recognized that the State, as an employer, also has an interest in the efficient and orderly

operation of its affairs that must be balanced with the public employees’ right to free

speech, which is not absolute.” Syl. Pt. 3, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d

593 (1983).

11. “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 v. Crowder, 173 W. Va. 335, 315

S.E.2d 593 (1983).

12. “The circuit courts of West Virginia, being courts of general

jurisdiction, have original jurisdiction to hear and resolve claims under Title 42, U.S.C.A.

§ 1983 (1979).” Syl. Pt. 3, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d

649 (1996).

iv

HUTCHISON, Justice:

Petitioners Gabriel Devono and the Board of Education of Randolph County

invoke this Court’s original jurisdiction and seek a writ of prohibition to prevent the

Honorable David H. Wilmoth, Judge of the Circuit Court of Randolph County, from

enforcing a May 5, 2022, order denying their motion to dismiss certain claims set forth in

an amended complaint alleging wrongful termination of employment filed by the

respondents, Marlene and Sherman Arbogast. The petitioners contend that certain claims

should have been dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)

of the West Virginia Rules of Civil Procedure because Mrs. Arbogast failed to exhaust her

administrative remedies through the West Virginia Public Employees Grievance

Procedure, West Virginia Code §§ 6C-2-1 to -8. The petitioners further assert that other

claims were subject to dismissal pursuant to Rule 12(b)(6) for failure to set forth a claim

upon which relief can be granted.1 For the reasons set forth below, we find that some of

the claims asserted by the respondents should have been dismissed, but that others are not

1

Rule 12(b) of the West Virginia Rules of Civil Procedure provides, in pertinent

part:

How presented. – Every defense, in law or fact, to a

claim for relief in any pleading, whether a claim, counterclaim,

cross-claim, or third-party claim, shall be asserted in the

responsive pleading thereto if one is required, except that the

following defenses may at the option of the pleader be made

by motion:

(1) lack of jurisdiction over the subject matter,

....

(6) failure to state a claim upon which relief can be

granted[.]

1

barred by the exhaustion rule and have been sufficiently pled to go forward. Accordingly,

the requested writ is granted, in part, and denied, in part.

I. Facts and Procedural Background

The underlying civil action arose as a result of the termination of Mrs.

Arbogast’s employment as cafeteria manager and “head cook” at the Beverly Elementary

School in Randolph County. The amended complaint filed on August 18, 2021,2 indicates

that Mrs. Arbogast learned during her employment that students in the pre-K program at

the school, which included her son, had been confined to a closet and mistreated by the

pre-K teacher. According to Mrs. Arbogast, the pre-K teacher “engaged in multiple acts

of physical, emotional, and mental abuse towards her students.” Mrs. Arbogast alleges that

when she reported this information to Mr. Devono, who was then serving as superintendent

of the Board of Education of Randolph County,3 he refused to investigate the matter and,

instead, attempted to “cover-up” the abuse. Mrs. Arbogast claims that Mr. Devono then

took adverse actions against her and ultimately caused her employment to be terminated.

In her amended complaint, Mrs. Arbogast alleges eight claims. Counts one

and two allege retaliatory discharge and constructive retaliatory discharge, respectively, in

violation of the West Virginia Human Rights Act (“Human Rights Act”), West Virginia

2

The initial complaint was filed on February 1, 2021.

3

The record indicates that Mr. Devono is now retired.

2

Code §§ 5-11-1 to -20. Count three alleges wrongful discharge in violation of the Whistle-

blower Law, West Virginia Code §§ 6C-1-1 to -8. Counts four and five allege that Mrs.

Arbogast’s constitutional rights were violated by the petitioners. Count six alleges tortious

interference with Mrs. Arbogast’s part-time employment with U-Haul and specifically,

asserts that Mr. Devono “maliciously, willfully and in bad faith caused [Mrs.] Arbogast’s

termination of her employment with U-Haul.” Count seven alleges tortious interference

with Mrs. Arbogast’s medical care and asserts that Mr. Devono sought disclosure of her

confidential medical information with the intent of obtaining embarrassing information that

he could use for harassment and as a basis for terminating her employment. Finally, count

eight is a claim for punitive damages. The complaint also sets forth derivative claims for

loss of consortium on behalf of Mr. Arbogast.

On September 1, 2021, the petitioners filed a motion to dismiss, seeking

dismissal of counts one through five and count seven pursuant to Rule 12(b)(1). The

petitioners argued that the circuit court lacked subject matter jurisdiction because Mrs.

Arbogast did not exhaust her administrative remedies.4 The petitioners also argued that

the claims asserting violations of the Human Rights Act and the claim alleging tortious

4

The petitioners also sought dismissal of count eight, the punitive damages claim.

In the May 5, 2022, order, the circuit court deferred ruling on that issue, finding that

additional consideration and review was required. The petitioners are not seeking dismissal

of the punitive damages claim through their petition for a writ of prohibition. With regard

to count six, which alleges tortious inference with Mrs. Arbogast’s employment with U-

Haul, the petitioners did not seek dismissal of that claim below, nor do they seek dismissal

of that claim in their petition for a writ of prohibition.

3

interference with Mrs. Arbogast’s medical care were subject to dismissal pursuant to Rule

12(b)(6) for failure to set forth claims upon which relief could be granted. A hearing was

held on the motion on December 9, 2021, and by order entered May 5, 2022, the circuit

court denied the motion. The circuit court found that Mrs. Arbogast did not have to file a

grievance as a jurisdictional prerequisite; that she had asserted viable claims under the

Human Rights Act; and that she had set forth sufficient factual allegations to support her

claims. Following entry of that order, the petitioners filed their petition for a writ of

prohibition with this Court.

II. Standard for Issuance of Writ

This Court has recognized that when a motion to dismiss has been denied by

a circuit court, a party may seek relief through a petition for a writ of prohibition. See State

ex rel. Skyline Corp. v. Sweeney, 233 W. Va. 37, 40, 754 S.E.2d 723, 726 (2014) (“When

the request for extraordinary relief concerns a circuit court’s denial of a motion to dismiss,

we consider the matter as a petition for a writ of prohibition.”). However, “[p]rohibition

lies only to restrain inferior courts from proceeding in causes over which they have no

jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers

and may not be used as a substitute for writ of error, appeal or certiorari.” Syl. Pt. 1,

Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953). We have made clear that “[a]

writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It

will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds

4

its legitimate powers. W. Va. Code, 53-1-1.” Syl. pt. 2, State ex rel. Peacher v.

Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). We have further explained that

[i]n determining whether to entertain and issue the writ

of prohibition for cases not involving an absence of jurisdiction

but only where it is claimed that the lower tribunal exceeded

its legitimate powers, this Court will examine five factors: (1)

whether the party seeking the writ had no other adequate

means, such as direct appeal, to obtain the desired relief; (2)

whether the petitioner will be damaged or prejudiced in a way

that is not correctable on appeal; (3) whether the lower

tribunal’s order is clearly erroneous as a matter of law; (4)

whether the lower tribunal’s order is an oft repeated error or

manifests persistent disregard for either procedural or

substantive law; and (5) whether the lower tribunal’s order

raises new and important problems or issues of law of first

impression. These factors are general guidelines that serve as a

useful starting point for determining whether a discretionary

writ of prohibition should issue. Although all five factors need

not be satisfied, it is clear that the third factor, the existence of

clear error as a matter of law, should be given substantial

weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). With these

standards in mind, we consider the parties’ arguments.

III. Discussion

The petitioners first contend that they are entitled to a writ of prohibition

because the circuit court lacks subject matter jurisdiction over several of the counts set

forth in the amended complaint as a result of Mrs. Arbogast’s failure to exhaust her

administrative remedies. See W. Va. R. Civ. P. 12(b)(1). They rely upon “‘“[t]he general

rule . . . 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

5

body, and such remedy must be exhausted before the courts will act.” Syl. pt. 1, Daurelle

v. Traders Federal Savings & Loan Association, 143 W.Va. 674, 104 S.E.2d 320 (1958).’

Syl. Pt. 1, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984).” Syl. Pt. 10, in part,

State ex rel. Miller v. Reed, 203 W. Va. 673, 510 S.E.2d 507 (1998). As a public school

employee,5 Mrs. Arbogast had access to the West Virginia Public Employees Grievance

Procedure. The grievance procedure provides for an administrative “resolution of

employment grievances raised by the public employees of the State of West Virginia[.]”

W. Va. Code § 6C-2-1(a) (2023).6 Under West Virginia Code § 6C-2-2(i)(1), a “grievance”

means

a claim by an employee alleging a violation, a

misapplication or a misinterpretation of the statutes, policies,

rules or written agreements applicable to the employee

including:

(i) Any violation, misapplication or misinterpretation

regarding compensation, hours, terms and conditions of

employment, employment status or discrimination;

(ii) Any discriminatory or otherwise aggrieved application of

unwritten policies or practices of his or her employer;

(iii) Any specifically identified incident of harassment;

(iv) Any specifically identified incident of favoritism; or

(v) Any action, policy, or practice constituting a substantial

detriment to or interference with the effective job performance

of the employee or the health and safety of the employee.

5

See W. Va. Code § 6C-2-2 (2023) (defining “employee” and “employer” under the

West Virginia Public Employees Grievance Procedure). We cite to the current version of

the statute because the differences in the applicable statutory language between the current

and prior version are merely stylistic. See W. Va. Code § 6C-2-2 (2008).

6

We cite to the current version of this statute because the language quoted is

identical to that in the prior version. See W. Va. Code § 6C-2-1(a) (2008).

6

The petitioners contend that Mrs. Arbogast’s claims fall within the definition

of “grievance” set forth in West Virginia Code § 6C-2-2(i)(1) and because she failed to

challenge the termination of her employment by filing a grievance, she may not seek relief

from the circuit court. Alternatively, the petitioners argue that some of the counts in the

amended complaint should have been dismissed for failure to state a claim upon which

relief can be granted. See W. Va. R. Civ. P. 12(b)(6). Given that the petitioners’ arguments

are specific to the nature of the claim asserted, our analysis is guided by the counts in the

amended complaint, which we will consider separately below.

A. Human Rights Act claims

As set forth above, counts one and two in the amended complaint allege

retaliatory discharge and constructive retaliatory discharge, respectively, in violation of the

Human Rights Act. Specifically, the Arbogasts allege in count one that Mr. Devono

“maliciously, wantonly and in bad faith, and in violation of the West Virginia Human

Rights Act, solicited the help of others to take adverse employment actions against Marlene

Arbogast and to create bogus reasons for her discharge in retaliation for her reporting the

abusive misconduct.” Count two of the amended complaint asserts:

The Defendants [petitioners herein] violated the West

Virginia Human Rights Act and other substantial public policy

in retaliating against [Mrs. Arbogast], creating bogus

employment fractions, suspensions and threatening to

terminate [Mrs. Arbogast’s] employment as a reprisal and in

retaliation for disclosing the abuse and to impede and obstruct

her truthful testimony.

7

....

The repeated retaliation, reprisals, harassment, bullying

and intimidation violated the West Virginia Humans Rights

Act, and were so intolerable that Marlene Arbogast had no

alternative except to leave her employment to prevent further

injuries and damages.

The petitioners acknowledge that the exhaustion rule does not apply to

alleged violations of the Human Rights Act. As this Court has held, “[a] plaintiff may, as

an alternative to filing a grievance with the West Virginia Public Employees Grievance

Board, initiate an action in circuit court to enforce rights granted by the West Virginia

Human Rights Act, W. Va. Code § 5-11-1 et seq.” Syl. Pt. 9, Weimer v. Sanders, 232 W.

Va. 367, 752 S.E.2d 398 (2013). In so holding, this Court reasoned that

if a claimant is not required to maintain an action before

the Human Rights Commission prior to filing a claim in the

circuit court,7 the claimant is, likewise, not required to file a

grievance with the Grievance Board before filing a claim

pursuant to the WVHRA in the circuit court.

Id. at 375, 752 S.E.2d at 406 (footnote added).8

7

See Syl. Pt. 1, Price v. Boone Cty. Ambulance Auth., 175 W. Va. 676, 337 S.E.2d

913 (1985) (“A plaintiff may, as an alternative to filing a complaint with the Human Rights

Commission, initiate an action in circuit court to enforce rights granted by the West

Virginia Human Rights Act.).

8

There are other recognized exceptions to the exhaustion rule. See, e.g., Syl. Pt. 3,

Beicher v. WV Univ. at Parkersburg, 226 W. Va. 321, 700 S.E.2d 532 (2010) (“Pursuant

to W.Va.Code, 21-5-12(a) (1975), a person whose wages have not been paid in accord with

the West Virginia Wage Payment and Collection Act may initiate a claim for the unpaid

wages either through the administrative remedies provided under the Act or by filing a

complaint for the unpaid wages directly in circuit court.”). This Court has also held that

“the rule which requires the exhaustion of administrative remedies is inapplicable where

8

The petitioners argue that although Mrs. Arbogast could pursue a claim in

the circuit court for a violation of the Human Rights Act even though she never filed a

grievance, these two counts should have nonetheless been dismissed because there is no

allegation in the amended complaint that Mrs. Arbogast is a member of a protected class

as defined by the Human Rights Act. Absent such an allegation, the petitioners contend

that the Arbogasts have failed to set forth a claim under the Human Rights Act upon which

relief can be granted requiring dismissal of these claims under Rule 12(b)(6). We agree.

“The Human Rights Act declares it unlawful for an employer to ‘discriminate

against an individual with respect to compensation, hire, tenure, terms, conditions or

privileges of employment[.]’” Burke v. Wetzel Cnty. Comm’n, 240 W. Va. 709, 722, 815

S.E.2d 520, 533 (2018), (citing W. Va. Code § 5-11-9(1) (2017)). Under the Human Rights

Act, “‘[d]iscrimination’ means to ‘exclude from, or fail or refuse to extend to, a person

equal opportunities because of race, religion, color, national origin, ancestry, sex, age,

blindness, disability or familial status[.]’” Burke, 240 W. Va. at 722, 815 S.E.2d at 533,

(citing W.Va. Code § 5-11-3(h) (2013)). This Court has held that

[i]n order to make a prima facie case of employment

discrimination under the West Virginia Human Rights Act,

no administrative remedy is provided by law.” Duarelle, 143 W. Va. at 674, 104 S.E.2d

at 322, syl. pt. 2. However, “[t]he rule of exhausting administrative remedies before actions

in courts are instituted is applicable, even though the administrative agency cannot award

damages, if the matter is within the jurisdiction of the agency. In any event, damages can

always be obtained in the courts after the administrative procedures have been followed, if

warranted.” Bank of Wheeling v. Morris Plan Bank & Trust Co., 155 W. Va. 245, 249,

183 S.E.2d 692, 695 (1971) (citations omitted).

9

W.Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer

proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the

plaintiff.

(3) But for the plaintiff’s protected status, the adverse decision

would not have been made.

Syl. Pt. 3, Conaway v. E. Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1996).

In addition, this Court has declared that

to be covered under the Human Rights Act, prohibited

actions must be perpetrated against a member of one of the

specific protected classes identified therein. Although W. Va.

Code § 5-11-9(7)(A) does not expressly state that it applies

only to members of a protected class, this limitation is

understood because W. Va. Code § 5-11-9 expressly proscribes

“unlawful discriminatory practices.” (Emphasis added). The

meaning ascribed to the term “discriminate” or

“discrimination” by the Human Rights Act is “to exclude from,

or fail or refuse to extend to, a person equal opportunities

because of race, religion, color, national origin, ancestry, sex,

age, blindness, disability or familial status and includes to

separate or segregate.” W. Va. Code § 5-11-3(h) (1998)

(Repl.Vol.2006) (emphasis added).

Michael v. Appalachian Heating, LLC, 226 W.Va. 394, 402 n.16, 701 S.E.2d 116, 124 n.

16 (2010).

As the petitioners assert, there is no allegation in the amended complaint that

Mrs. Arbogast is a member of a protected class—an essential element of proof required to

set forth a prima facie case of employment discrimination under the Human Rights Act.

With respect to Rule 12(b)(6), we have explained that

the policy of the rule is . . . to decide cases upon their

merits, and if the complaint states a claim upon which relief

10

can be granted under any legal theory, a motion under Rule

12(b)(6) must be denied. However, essential material facts

must appear on the face of the complaint. The complaint must

set forth enough information to outline the elements of a claim

or permit inferences to be drawn that these elements exist.

Burke, 240 W. Va. at 721, 815 S.E.2d at 532 (footnotes, additional citations, and internal

quotations omitted) (emphasis added). Here, the Arbogasts have failed to allege an

essential material fact—that Mrs. Arbogast is a member of a protected class. Therefore,

we find that the circuit court should have granted the petitioners’ motion to dismiss counts

one and two of the amended complaint under Rule 12(b)(6), and, in failing to do so, it

exceeded its legitimate powers. Accordingly, we grant the requested writ with respect to

these claims. The writ is also granted with respect to Mr. Arbogast’s loss of consortium

claims pertaining to these two counts. As we have explained, “the derivative claim for loss

of consortium is a mere incident to a cause of action and not the subject of an action itself.”

State ex rel. Small v. Clawges, 231 W. Va. 301, 310, 745 S.E.2d 192, 201 (2013) (internal

quotations and citation omitted). Therefore, because Mrs. Arbogast has not sufficiently set

forth claims for wrongful discharge under the Human Rights Act upon which relief can be

granted, neither has Mr. Arbogast.

B. Whistle-blower claim

Count three of the amended complaint alleges that Mrs. Arbogast was

wrongfully discharged in violation of the Whistle-blower Law, West Virginia Code §§ 6C-

1-1 to -8. Specifically, it is asserted that Mr. Devono “engaged in a pattern of conduct to

cover-up the mistreatment and abuse of students and to create bogus reasons to discharge

11

Marlene Arbogast as punishment for informing him of the wrongdoing of [the pre-K

teacher].” West Virginia Code § 6C-1-3(a) (2020) provides that

[n]o 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.

The petitioners contend that the exhaustion rule applies to this claim and,

therefore, it should have been dismissed pursuant to Rule 12(b)(1) because Mrs. Arbogast

did not file a grievance. However, West Virginia Code § 6C-1-4(a) (2020) expressly

provides that “[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.” The

statute further provides that “[a]ny employee covered by the civil service system who has

suffered a retaliatory action as a result of being a whistle-blower may pursue a grievance

under the West Virginia Public Employees Grievance Procedure.” Id. § 6C-1-4(e)

(emphasis added).

This Court has long held that “[t]he primary rule of statutory construction is

to ascertain and give effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb,

138 W. Va. 660, 76 S.E.2d 885 (1953). To that end, “[w]hen a statute is clear and

unambiguous and the legislative intent is plain, the statute should not be interpreted by the

12

courts, and in such case it is the duty of the courts not to construe but to apply the statute.”

Syl. Pt. 5, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.

Va. 137, 107 S.E.2d 353 (1959). West Virginia Code § 6C-1-4(a) clearly and

unambiguously 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.

While the statute also provides for the filing of a grievance, it does not

mandate that course of action. “[T]he Legislature routinely uses terms like ‘shall’ when it

intends to give a mandatory direction.” In re R.S., 244 W. Va. 564, 571, 855 S.E.2d 355,

362 (2021); see also syl. pt. 1, Nelson v. W. Va. Pub. Emps. Ins. Bd., 171 W. Va. 445, 300

S.E.2d 86 (1982) (“It is well established that the word ‘shall,’ in the absence of language

in the statute showing a contrary intent on the part of the Legislature, should be afforded a

mandatory connotation.”). Conversely, when the word “may” is used, as it is in West

Virginia Code § 6C-1-4(e), it “generally signifies permission and connotes discretion.”

State v. Hedrick, 204 W. Va. 547, 552, 514 S.E.2d 397, 402 (1999); see also Weimer-

Godwin v. Bd. of Educ. of Upshur Co., 179 W. Va. 423, 427, 369 S.E.2d 726, 730 (1988)

(“The word ‘may’ generally should be read as conferring both permission and power, while

the word ‘shall’ generally should be read as requiring action.”). Therefore, we find that

use of the word “may” in West Virginia Code § 6C-1-4(e) means that the filing of a

grievance with respect to an alleged violation of the Whistle-blower Law is permissive and

not mandatory.

13

Having determined that the filing of a grievance pursuant to West Virginia

Code § 6C-1-4(e) is permissive, we necessarily find that an employee is not precluded by

the exhaustion rule from instituting an action in the circuit court for an alleged violation of

the Whistle-blower Law. “Where separate legislative enactments exist which provide

separate . . . remedies, preclusive doctrines will not necessarily be applied.” Vest v. Bd. of

Educ. of Cnty. of Nicholas, 193 W. Va. 222, 228, 455 S.E.2d 781, 787 (1995) (internal

quotations and citations omitted). As we have explained in that regard, “our cases require

us to determine whether applying the doctrines [of preclusion] is consistent with the

express or implied policy in the legislation[.]” Id. (internal quotations and citation omitted).

The Whistle-blower Law evidences a clear public policy of encouraging public employees

to come forward and report suspected violations of the law. To protect those employees

who have suffered retaliatory action for doing so, the Legislature has provided a clear

remedy–the filing of a civil action. Given the expressed public policy and the provision of

a clear statutory remedy, the exhaustion of administrative remedies is not required before

relief may be sought in the circuit court. Accordingly, we now hold that that the filing of

a grievance with the West Virginia Public Employees Grievance Board for an alleged

violation of the Whistle-blower Law is permissive and the failure to do so, does not

preclude an employee from initiating an action in circuit court to enforce rights provided

by West Virginia Code § 6C-1-3 (2020).9 Thus, the circuit court has subject matter

9

Mrs. Arbogast also asserted in count three that it was a violation of the Human

Rights Act for Mr. Devono “to create bogus reasons to discharge [her] as punishment for

[her] informing him of the wrongdoing of the [pre-K teacher.]” However, a whistle-blower

14

jurisdiction over Mrs. Arbogast’s whistle-blower claim. The requested writ for count three

of the amended complaint is, therefore, denied.

C. Constitutional claims

In count four of the amended complaint, the Arbogasts allege that the

petitioners “maliciously, willfully and in bad faith, wrongfully terminated Marlene

Arbogast in retaliation for Plaintiff exercising her First Amendment Rights to free speech.”

Count five alleges that Mr. Devono “maliciously, willfully, and in bad faith created bogus

reasons to discharge Marlene Arbogast as punishment because Plaintiff intended to

exercise her Constitutional right to seek the advice of counsel and pursue legal remedies

available to her” for the alleged mistreatment of her son. The petitioners contend that

these claims were also subject to the grievance process and Mrs. Arbogast’s failure to

exhaust her administrative remedies required the circuit court to dismiss these counts

pursuant to Rule 12(b)(1).

The petitioners maintain that counts four and five in the amended complaint

were subject to the grievance process because they are simply Harless-type10 wrongful

does not fall within the protected classes under the Human Rights Act. Thus, while Mrs.

Arbogast may assert a cause of action under the Whistle-blower Law, she has no claim

under the Human Rights Act for any retaliation she suffered as a result of reporting any

wrongdoing by the pre-K teacher. See Conaway, 178 W. Va. at 166, 358 S.E.2d at 435,

syl. pt. 3.

See Syl., Harless v. First Nat’l Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d

10

270 (1978) (“The rule that an employer has an absolute right to discharge an at will

15

discharge claims premised upon public policy manifested in the federal constitution. In

other words, the petitioners contend that it does not matter that the Arbogasts have pointed

to the United States Constitution as the source of public policies violated by Mrs.

Arbogast’s alleged discharge. They argue that a wrongful, retaliatory discharge claim—

even when based upon a public policy manifested in the Constitution—must still be grieved

and the grievance process must be exhausted before a civil action may be filed in circuit

court. In support of their argument, the petitioners rely upon Corbett v. Duerring, 726

F.Supp.2d 648 (S.D. W. Va. 2010) (hereinafter “Duerring I”), a case in which the plaintiff

claimed that he was wrongfully discharged from his employment as a vice principal for

exercising his right to free speech. Id. at 651. Specifically, the plaintiff alleged that the

defendant county board of education and superintendent “‘negligently, wantonly,

recklessly, willfully and/or maliciously terminated plaintiff’s employment in retaliation for

his exercise of his constitutional right to free speech and expression and his refusal to ‘make

deals’ effecting [sic] the unequal treatment of students in Kanawha County schools.’” Id.

The petitioners contend that the district court’s dismissal of the plaintiff’s wrongful

termination and negligence claims in Duerring I because of his failure to exhaust

administrative remedies establishes that Mrs. Arbogast was required to file a grievance

with respect to her constitutional claims. Upon review, we find the petitioners’ reliance

upon Duerring I to be misplaced.

employee must be tempered by the principle that where the employer’s motivation for the

discharge is to contravene some substantial public policy principle, then the employer may

be liable to the employee for damages occasioned by this discharge.”).

16

In Duerring I, the plaintiff’s complaint set forth three claims: wrongful

termination in count one; negligent supervision in count two; and deprivation of

constitutional rights under 42 U.S.C. § 198311 in count three based on his contention that

he was fired for exercising his First Amendment right of free speech. 726 F.Supp.2d at

651. While the district court dismissed counts one and two under the exhaustion rule, count

three was dismissed because the district court found that the plaintiff had failed to allege

sufficient facts to support the elements of a First Amendment retaliation claim—not

because the plaintiff had failed to file a grievance. 725 F.Supp.2d at 659. Notably, the

complaint was dismissed without prejudice and, shortly thereafter, the plaintiff filed

another complaint with the district court reasserting his First Amendment retaliation claim.

The defendants then filed another motion to dismiss that was denied by the district court in

11

42 U.S.C. § 1983 (1996) provides:

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, except that in

any action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity, injunctive

relief shall not be granted unless a declaratory decree was

violated or declaratory relief was unavailable. For the purposes

of this section, any Act of Congress applicable exclusively to

the District of Columbia shall be considered to be a statute of

the District of Columbia.

17

Corbett v. Duerring, 780 F.Supp.2d 486 (S.D. W. Va. 2011) (Duerring II), with a finding

that, this time, the plaintiff had sufficiently alleged a First Amendment retaliation claim.

Id. at 497.

As the district court observed in Duerring II, “[i]t is well-settled that a public

employer ‘may not retaliate against a public employee who exercises her First Amendment

right to speak out on a matter of public concern.’ Love-Lane v. Martin, 355 F.3d 766, 776

(4th Cir.2004) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731, 20

L.Ed.2d 811 (1968)).” 780 F.Supp.2d at 492. Indeed, this Court has long recognized that

[a] public officer or public employee, even one who

serves at the will and pleasure of the appointing authority, may

not be discharged in retribution for the exercise of a

constitutionally protected right, unless a substantial

governmental interest outweighs the public officer’s or public

employee’s interest in exercising such right. See Connick v.

Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d

708, 716-17 (1983); syl. pt. 2, Woodruff v. Board of Trustees,

173 W.Va. 604, 319 S.E.2d 372 (1984), and cases cited at 377;

syl. pt. 3, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593

(1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d

319 (1984).

McClung v. Marion Cnty. Comm’n, 178 W. Va. 444, 450, 360 S.E.2d 221, 227 (1987). As

this Court observed in syllabus point three of Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d

593 (1983),

Under Pickering v. Board of Education, 391 U.S. 563,

88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), public employees are

entitled to be protected from firings, demotions and other

adverse employment consequences resulting from the exercise

of their free speech rights, as well as other First Amendment

rights. However, Pickering recognized that the State, as an

18

employer, also has an interest in the efficient and orderly

operation of its affairs that must be balanced with the public

employees/ right to free speech, which is not absolute.

In Orr, a college librarian brought a 42 U.S.C. § 1983 action alleging that

college administrators discharged her from her employment for exercising her free speech

rights and criticizing their remodeling plans for a new library facility. This Court explained

in Orr that “some general restrictions on the public employee’s right to free speech were

recognized in Pickering” and that the “speech to be protected must be made with regard to

matters of public concern.” 173 W.Va. at 343-44, 315 S.E.2d at 601-602. Upon review,

it was determined that the plaintiff had engaged in protected speech and, therefore, the

jury’s verdict in her favor was upheld. In doing so, this Court formulated the following

standard regarding the burden of proof for a First Amendment retaliation claim:

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.

Orr, 173 W. Va. at 339, 315 S.E.2d at 596, syl. pt. 4.

Having carefully reviewed the amended complaint, we find that Mrs.

Arbogast has asserted First Amendment retaliation claims in counts four and five of the

amended complaint. In that regard, she has alleged that “as a mother and private citizen,

[she] was concerned about the risk posed to students by the former Pre-K teacher and aid

19

and made statements regarding this matter of public concern.” She further asserts that her

“expression and statement as a private citizen and mother regarding this matter of

substantial public concern outweighed any potential interests of the Defendants [petitioners

herein] in providing effective and efficient services to the public.” Finally, she contends

that her conduct was a motivating factor in the termination of her employment.

Because Mrs. Arbogast has pled First Amendment retaliation claims, the

circuit court did not err in denying the petitioners’ motion to dismiss counts four and five

pursuant to Rule 12(b)(1). As this Court has held, ‘[t]he circuit courts of West Virginia,

being courts of general jurisdiction, have original jurisdiction to hear and resolve claims

under Title 42, U.S.C.A. § 1983 (1979).” Syl. Pt. 3, Hutchison v. City of Huntington, 198

W. Va. 139, 479 S.E.2d 649 (1996). Accordingly, we deny the requested writ with regard

to the constitutional claims asserted in counts four and five of the amended complaint.

D. Tortious Inference with Medical Care claim

In count seven of the amended complaint, Mrs. Arbogast sets forth a claim

that she characterizes as tortious inference with her medical care. Specifically, she alleges:

Defendant Devono willfully, wantonly, maliciously and

in bad faith sought information concerning Plaintiff’s

treatment and her medical records from Plaintiff’s healthcare

provider with the intent to harass, intimidate, degrade, and

retaliate against Marlene Arbogast and to create bogus reasons

for her discharge, in violation of the West Virginia Human

Rights Act.

....

20

Defendant Devono willfully, wantonly, maliciously and

in bad faith intended to induce the disclosure of Plaintiff’s

medical care, knowing that the disclosure would violate

Plaintiff’s confidentiality and with the intent to obtain

embarrassing information that he could use as harassment and

a basis for termination in violation of the West Virginia Human

Rights Act.

The petitioners again argue that Mrs. Arbogast has failed to set forth a claim under the

Human Rights Act because she has not asserted that she is a member of a protected class.

Further, the petitioners contend that the circuit court does not have subject matter

jurisdiction for this claim because the allegations fall within the definition of “grievance”

under West Virginia Code § 6C-2-2(i)(1), and therefore, the exhaustion rule bars the claim.

We agree.

Mrs. Arbogast has not set forth a prima facie case under the Human Rights

Act because she has not alleged that she is a member of a protected class. See Conaway,

178 W. Va. at 166, 358 S.E.2d at 425, syl. pt. 3. And, while she argues that this cause of

action is not dependent on the existence of an employment relationship, she has specifically

alleged in her amended complaint that Mr. Devono sought her medical information “to use

as harassment and a basis for [her] termination.” As set forth above, “grievance” is defined

to include, inter alia, “any specifically identified incident of harassment” and “any action .

. . constituting a substantial detriment to or interference with the effective job performance

of the employee or the health and safety of the employee.” W. Va. Code § 6C-2-2(i)(1).

Given the specific allegations made in count seven, we find that Mrs. Arbogast was

required to file a grievance with respect to this claim and her failure to do so bars this cause

21

of action. Because this claim should have been dismissed by the circuit court pursuant to

Rule 12(b)(1), we grant the requested writ with respect to count seven of the amended

complaint.12 The writ is also granted with regard to Mr. Arbogast’s derivative claim under

this count. See Clawges, 231 W. Va. at 310, 745 S.E.2d at 201.

IV. Conclusion

For the reasons set forth above, the requested writ of prohibition is granted

with regard to counts one, two, and seven in the amended complaint, and denied with regard

to counts three, four, and five.

Writ granted, in part, and denied in part.

12

Having found that this claim should have been dismissed under Rule 12(b)(1), we

need not address the petitioner’s alternative argument under Rule 12(b)(6).

22