Jay Longerbeam v. Shepherd University and Donald Buracker v. Shepherd University

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

FILED

January 2024 Term

__________________ April 11, 2024

released at 3:00 p.m.

C. CASEY FORBES, CLERK

No. 22-609 SUPREME COURT OF APPEALS

OF WEST VIRGINIA

__________________

JAY LONGERBEAM,

Plaintiff Below, Petitioner,

v.

SHEPHERD UNIVERSITY,

Defendant Below, Respondent.

______________________________________________________

Appeal from the Circuit Court of Jefferson County

The Honorable Michael D. Lorensen, Judge

Civil Action No. 19-2020-C-52

REVERSED AND REMANDED

____________________________________________________________

AND

__________________

No. 22-610

__________________

DONALD BURACKER,

Plaintiff Below, Petitioner,

v.

SHEPHERD UNIVERSITY,

Defendant Below, Respondent.

Appeal from the Circuit Court of Jefferson County

The Honorable Michael D. Lorensen, Judge

Civil Action No. 19-2020-C-37

AFFIRMED, IN PART;

REVERSED, IN PART, AND REMANDED

Submitted: February 6, 2024

Filed: April 11, 2024

Christian J. Riddell, Esq. Tracey B. Eberling, Esq.

THE RIDDELL LAW GROUP STEPTOE & JOHNSON PLLC

Martinsburg, West Virginia Martinsburg, West Virginia

Counsel for Petitioners Counsel for Respondent

JUSTICE WOOTON delivered the Opinion of the Court.

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

of this case.

JUDGE JASON A. WHARTON sitting by temporary assignment.

SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is reviewed de novo.”

Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

2. “In an action to redress an unlawful retaliatory discharge under the

West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq., as amended, the burden is

upon the complainant to prove by a preponderance of the evidence (1) that the complainant

engaged in protected activity, (2) that complainant’s employer was aware of the protected

activities, (3) that complainant was subsequently discharged and (absent other evidence

tending to establish a retaliatory motivation) (4) that complainant’s discharge followed his

or her protected activities within such period of time that the court can infer retaliatory

motivation.” Syl. Pt. 4, Frank’s Shoe Store v. W. Va. Hum. Rts. Comm’n, 179 W. Va. 53,

365 S.E.2d 251 (1986).

3. “Although the plaintiff has the ultimate burden of proving elements

of the claim of discrimination by a preponderance of the evidence, the showing the plaintiff

must make as to the elements of the prima facie case in order to defeat a motion for

summary judgment is de minimis. In determining whether the plaintiff has met the de

minimis initial burden of showing circumstances giving rise to an inference of

discrimination, the function of the circuit court on a summary judgment motion is to

determine whether the proffered admissible evidence shows circumstances that would be

sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the

i

province of the circuit court itself to decide what inferences should be drawn.” Syl. Pt. 4,

Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995).

4. “In an action to redress unlawful discriminatory practices in

employment . . . the burden is upon the complainant to prove by a preponderance of the

evidence a prima facie case of discrimination[.] . . . If the complainant is successful in

creating this rebuttable presumption of discrimination, the burden then shifts to the

respondent to offer some legitimate and nondiscriminatory reason for the rejection. Should

the respondent succeed in rebutting the presumption of discrimination, then the

complainant has the opportunity to prove by a preponderance of the evidence that the

reasons offered by the respondent were merely a pretext for the unlawful discrimination.”

Syl. Pt. 3, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va. Hum. Rts.

Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983).

ii

WOOTON, Justice:

Petitioners/plaintiffs below, Jay Longerbeam (“Longerbeam”) and Donald

Buracker (“Buracker”) (collectively “petitioners”), appeal the Circuit Court of Jefferson

County’s grant of summary judgment to respondent Shepherd University (“Shepherd”) in

their respective employment cases. Petitioners were campus police officers at Shepherd

who were purportedly terminated due to “misconduct” and “unprofessionalism” during two

incidents in 2018 and 2019. Petitioners asserted a variety of claims for age and disability

discrimination under the West Virginia Human Rights Act (“HRA”),1 retaliation under the

HRA, violation of the West Virginia Whistle-blower Law,2 and common law “Harless”3

wrongful discharge. The circuit court, finding no genuine issue of material fact as to the

requisite elements of each claim, granted summary judgment against both petitioners on

all claims asserted. We consolidated petitioners’ appeals for consideration.

1

See W. Va. Code §§ 5-11-1 to -20. We note that effective February 8, 2024, the

HRA was recodified and is now found at West Virginia Code §§ 16B-17-1 to -20.

However, all citations herein refer to the HRA's original codification, which was in effect

at the time of the underlying proceedings.

2

See W. Va. Code §§ 6C-1-1 to -8.

3

See Syl., Harless v. First Nat’l Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978)

(“The rule that an employer has an absolute right to discharge an at will employee must be

tempered by the principle that where the employer’s motivation for the discharge is to

contravene some substantial public policy principle, then the employer may be liable to the

employee for damages occasioned by this discharge.”).

1

After careful review of the briefs of the parties, their oral arguments, the

appendix record, and the applicable law, we find that, as to petitioner Buracker’s disability

discrimination claim, the circuit court committed no error and therefore affirm its ruling as

to that cause of action. However, as to petitioners’ whistle-blower and Harless claims and

Buracker’s HRA retaliation claim, we find that the circuit court erred in finding no genuine

issues of material fact and therefore reverse those aspects of the court’s respective June 21,

2022, orders and remand each case for further proceedings.4

I. FACTS AND PROCEDURAL HISTORY

Petitioners, both of whom are over forty years old, were employed as full-

time campus police officers at Shepherd at the time of their termination in May 2019. Prior

to termination petitioner Buracker had worked at Shepherd for almost twenty-nine years as

a part-time campus police officer and had been placed into a full-time position in June

2018; petitioner Longerbeam had worked at Shepherd for just over two years prior to

termination. Both were terminated simultaneously in May 2019, purportedly as a result of

the two incidents described below. Neither had previously been disciplined or received a

negative performance review.

4

Neither petitioner appealed the circuit court’s ruling as to their HRA age

discrimination claims and Longerbeam did not appeal the court’s ruling as to his HRA

retaliation claim. We therefore do not address or disturb those aspects of the orders on

appeal.

2

A. ALLEGED ACTS OF “MISCONDUCT” AND “UNPROFESSIONALISM”

The first incident occurred on October 7, 2018, when petitioners made a

warrantless, nonconsensual entry into a student’s dorm room in a campus residence hall.

After having received prior calls about a loud party in the dorm, they returned to find

obviously intoxicated, underage students loitering in a stairway landing; petitioners also

observed alcoholic beverage containers in the hallway outside the dorm room. When

petitioners attempted to enter a student tried to block their entry; Longerbeam told him to

allow them to enter or he would strike him with his flashlight. Upon entry they discovered

additional underage students—many of whom were student-athletes—drinking; they

conducted breath tests and issued citations for underage drinking. In petitioners’ official

written narrative of the incident Buracker wrote that the officers administered preliminary

breath tests (“PBTs”) and “then” entered the dorm room. However, it appears undisputed

that the PBTs were administered after entry; Buracker maintains this was an inadvertent

drafting error. This inconsistency, along with review of footage from petitioners’ body

cameras, ultimately led Shepherd to contend that petitioners offered “misleading

information” as to the event and engaged in “misconduct,” i.e., the “warrantless,

nonconsensual entry[.]”

The second incident occurred on January 6, 2019 and involved some of the

same student-athletes. The students were pulled over for a broken headlight and, upon

smelling marijuana, petitioners searched the vehicle and cited the driver for DUI (drugs)

3

and an occupant for permitting DUI. Although Shepherd officials conceded the stop and

arrest were both lawful, petitioners were accused of “targeting” the student-athletes and

engaging in “unprofessionalism” for making them stand outside in the cold during the stop

and being less lenient than in other similar traffic stops.5

Vice President of Student Affairs Holly Frye—Shepherd’s organizational

head of the campus police department—testified that after the October incident she was

informed that three sets of parents had contacted attorneys who sent her “information” in

support of their position that the October dorm entry was “improper.” Ms. Frye further

testified that after the January traffic stop Shepherd began receiving additional “pressure”

from the parents of the involved students, prompting Shepherd to undertake a closer

investigation of petitioners’ conduct as to both incidents. On April 11, 2019, Chief

McAvoy and Ms. Frye met with petitioners for a so-called “Garrity hearing”6 regarding

the two incidents; on April 23, 2019, they followed up with a letter to petitioners outlining

allegations of “[m]isconduct” and “[u]nprofessionalism” stemming from the incidents.7

5

During his testimony, former Shepherd Campus Police Chief John McAvoy

contrasted a New Year’s Eve traffic stop where the car was not impounded, no arrest made,

no sobriety test administered, but the individual readily conceded to smoking marijuana.

6

A Garrity hearing, named for Garrity v. New Jersey, 385 U.S. 493 (1967), allows

the interviewee to answer questions with immunity from the answers being used against

him in criminal proceedings.

7

In addition to the specific October and January incidents, the letter cites

“[u]nprofessionalism in [petitioners’] general conduct and interactions” with other officers,

employees, and students and an “inability” to conform their “conduct and demeanor” to

the “Community Policing philosophy and expectations.” See note 9 infra.

4

Petitioners were afforded a pretermination hearing presided over by Shepherd’s Human

Resources Director Dr. Marie DeWalt, who found no “substantial evidence or cause” to

contradict the investigatory findings. On May 2, 2019, Shepherd President Dr. Mary

Hendrix terminated petitioners by letter citing the reasons outlined in the April 23, 2019,

letter and discussed during the Garrity hearing.

During discovery, Chief McAvoy, Ms. Frye, and Dr. Hendrix were

questioned about the basis for petitioners’ termination. Chief McAvoy testified that he

believed the October dorm entry to be “unlawful” because the report was “falsified”

relative to the timing of the PBTs; he conceded however that the report did not state that

probable cause for entry was based solely on the PBTs.8 He further testified that petitioners

escalated the situation beyond what was necessary, and that Buracker “threatened” and

“harassed” the student-athletes, specifying that he was “generally abusive” and threatened

to call the student-athletes’ coaches. Ms. Frye, however, testified more definitively that

petitioners were terminated because they lacked probable cause for the dorm entry, but

conceded that she did not have law enforcement expertise to inform her use of the term

“probable cause.” Dr. Hendrix testified that petitioners were terminated because their entry

into the dorm room was nonconsensual, irrespective of whether they technically had

probable cause for entry. Regarding this incident, Dr. Hendrix testified that “[what] we

8

Chief McAvoy further testified that he believed that petitioners “coached”

witnesses regarding their description of physical contact between Longerbeam and one of

the students. He was also critical of petitioners’ conduct relative to certain of the students

jumping from the dorm room window.

5

would’ve like to have seen happen . . . you have to use patience, these are teenagers . . .

knocking on the door, announcing yourselves and then proceeding . . . would’ve been better

than barging in.”9

B. PETITIONERS’ CAUSES OF ACTION AND EVIDENCE AT SUMMARY JUDGMENT

After termination, petitioners filed the underlying actions alleging that the

reasons cited by Shepherd for their discharges were pretextual and that their discharge and

other conduct by Shepherd was motivated by discrimination and retaliation based on a

variety of protected statuses and activity, as more fully discussed below. In their

complaints, petitioners asserted causes of action for age discrimination and retaliation in

violation of the HRA, violation of the West Virginia Whistle-blower Law, and discharge

in contravention of public policy pursuant to Harless. Buracker also asserted a claim of

disability discrimination under the HRA based on his diabetes.

In addition to their wrongful termination, petitioners also allege that they

suffered ongoing retaliation throughout their tenure in the form of disparate treatment.

Specifically, petitioners allege they were continually assigned less favorable duties and

held to enhanced responsibilities and standards not required of other officers. Petitioners

9

Shepherd officials explained that the university is committed to a “community

policing” philosophy which is premised upon establishing relationships with the students

as opposed to “municipal” policing. The philosophy was described as entailing an

“instructional” and “kinder, gentler” approach of obtaining an outcome rather than

“treating students like criminals up front[.]” The interim Chief described it as “forging a

relationship” with the students such that the police department is more “approachable.”

6

claim that, unlike other officers, they were required to inspect and maintain police vehicles,

use a body camera and issue a report on every contact, arrive for work on time, and

participate in certain job duties. 10 More generally, petitioners claim that other officers

engaged in misconduct and were not disciplined—much less terminated. 11 Petitioners

alleged that their termination and these acts of reprisal were actionable under the following

theories.

10

Buracker offered other anecdotal evidence of what he claims was retaliatory

disparate treatment, to which Shepherd provided rebuttal evidence. He claims that other

officers were given more overtime than he was; Shepherd introduced an unrebutted

affidavit demonstrating that he had been paid for more overtime than any other officer. He

further claims that other officers were not required to be sworn and certified as law

enforcement officers. Shepherd introduced evidence that upon Buracker notifying his

superiors that certain officers had not been sworn, it was corrected. Buracker further claims

that other officers were not required to sign an employment letter prior to beginning their

employment. Shepherd notes that Buracker identifies no other officers who were hired as

the result of a successful grievance, which precipitated his employment letter.

Finally, Buracker also claims he was “denied his seniority” because his unit number

did not reflect his seniority and he was entitled to statutory longevity pay. Shepherd

explains that longevity pay is governed by statute and that his prior part-time service was

not at a level which would entitle him to the pay. Notably, the circuit court ruled that

petitioner’s affidavit regarding his entitlement to longevity pay “does create a dispute of

material fact as [sic] his entitlement to the benefit.”

11

Two particular incidents cited by Buracker allegedly involved an officer’s use of

a taser against a mentally challenged individual and an officer’s threat to shoot a dog—

neither of which resulted in termination.

7

C. AGE-RELATED DISCRIMINATION AND RETALIATION UNDER THE HRA

Buracker alleges that his termination and disparate treatment were, in part,

acts of age-related discrimination12 and retaliation for a claim of age discrimination13 he

made during a successful 2016 non-selection grievance. In 2016, while Buracker was

working in a part-time campus officer position, Shepherd posted a full-time position for

which Buracker applied. That posting included an educational requirement that Buracker

did not meet; however, Shepherd’s hiring policy permitted decisionmakers to consider

experience in lieu of the educational requirement. Buracker had been working part-time

in the same job category as the posted full-time position for approximately twenty-nine

years, yet the position was offered to a non-employee applicant who had the required

degree but only one year of experience. Upon grieving Shepherd’s refusal to offer him the

position, the West Virginia Public Employee’s Grievance Board determined that

Shepherd’s refusal to apply Buracker’s years of experience in the same position in lieu of

12

West Virginia Code § 5-11-9(1) (2016) makes it unlawful “[f]or any employer to

discriminate against an individual with respect to compensation, hire, tenure, terms,

conditions or privileges of employment[.]” West Virginia Code § 5-11-3(h) (1998) defines

“discriminate” as 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[.]”

13

“W. Va. Code 5-11-9(7)(C) (1992), prohibits an employer or other person from

retaliating against any individual for expressing opposition to a practice that he or she

reasonably and in good faith believes violates the provisions of the West Virginia Human

Rights Act.” Syl. Pt. 11, Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995).

8

the educational requirement was arbitrary and capricious. The Grievance Board ordered

that Buracker be awarded backpay and offered a full-time position.

During the course of that grievance Buracker asserted that he was not hired

due to his age. During discovery below, Buracker produced a newspaper article in which

Chief McAvoy praised the selected applicant and his familiarity with “technology and

social media” as an “asset when dealing with college students[.]” The article states that

“[b]ecause of his age and experiences at Shepherd” Chief McAvoy remarked that the

selected applicant would be able to “‘put himself in their shoes.’” 14 Buracker further

testified to an alleged remark by Chief McAvoy, in reference to an older officer, to the

effect of “those are the guys we need to replace.” Buracker testified that after assuming

the full-time position as ordered by the Grievance Board, Chief McAvoy remarked that he

was “one of [Buracker’s] adversaries.”15

14

Although the Grievance Board made note of this allegation, the decision indicated

that age discrimination had not been considered in its determination because Buracker

“abandoned” this argument by failing to address it in his post-hearing submissions.

Shepherd makes much of the fact that the Grievance Board’s decision was not based on

any discrimination by Shepherd and Buracker’s “abandon[ment]” of the claim in that

proceeding. However, irrespective of whether Buracker fully pursued or was successful

with his claim of discrimination in his grievance, there is no dispute that Buracker did in

fact make such an allegation and that Shepherd was aware of it. See Syl. Pt. 6, Conrad v.

ARA Szabo, 198 W. Va. 362, 480 S.E.2d 801 (1996).

15

In addition to the foregoing evidence, at summary judgment Buracker also offered

unsworn statements in support of his claim that there was a general plot to “get Buracker”

including statements from two officers from the Shepherdstown Police Department. One

(continued . . .)

9

D. DISABILITY DISCRIMINATION UNDER THE HRA

In addition to age discrimination and retaliation for his claim of age

discrimination under the HRA, Buracker alleges his disparate treatment and termination

were acts of discrimination based on his disability, i.e., diabetes. Buracker claims that his

diabetes requires him to urinate frequently, causing occasional brief work disruptions to

emergently attend to this need; however, he denied that this affects his ability to perform

the essential functions of his job. On one occasion Buracker apparently left his body

camera on while urinating and testified that he was “chastised” by his superiors for doing

so. He contends this was raised during his Garrity hearing regarding the dorm room entry

and traffic stop but identifies no particular disciplinary action attributed to this event.

officer’s statement indicates that Chief McAvoy told the officer to keep his colleague away

from Buracker so he wouldn’t be “caught up in something” and that “the Buracker situation

would resolve itself in the near future.” Another officer indicated that Shepherdstown

Mayor Jim Auxer, who is a Shepherd athletic booster, twice told him to “keep an eye on

Buracker” and “report any indiscretions.” Although this statement is likewise unsworn, in

his deposition Mayor Auxer conceded he may have “said something in the context to

that[.]” Buracker also produced texts with his immediate supervisor less than a month after

he was hired stating “[t]hey are looking for ammo and I refuse to give them any!”

We agree with Shepherd that the unsworn statements are not competent evidence

with which petitioners may defeat summary judgment and do not consider the unsworn

statements in our de novo review.

10

E. WHISTLE-BLOWER RETALIATION

Petitioners further claim that their termination and the alleged intervening

instances of disparate treatment and reprisal are related to their protected whistle-blowing

activities in violation of the West Virginia Whistle-blower Law.16 Petitioners primarily

focus their arguments on two occurrences: 1) their expression of concern about a “deal”

between Shepherd and a magistrate establishing an “extra-judicial procedure” wherein

Shepherd students were given alternative dispositions for criminal matters purportedly

without a panoply of legal protections afforded criminal defendants (the “magistrate court

arrangement”); and 2) an October 2018 complaint filed by Buracker with the West Virginia

Ethics Commission against a fellow officer for personal use of a police vehicle.17

As to the magistrate court arrangement, petitioners contend that Shepherd

had a “deal” with a Jefferson County magistrate wherein students brought before the

16

West Virginia Code § 6C-1-3 (2020) provides that “[n]o employer may discharge,

threaten, or otherwise discriminate or retaliate against an employee . . . because 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.”

17

Longerbeam also references a list of complaints, as documented in a memo, which

he offered during a “morale” or “climate” meeting with human resources on February 6,

2019, as further evidence of his own whistle-blowing. The memo contains common

workplace complaints about communication, accountability, and organizational issues.

Shepherd indicates that this meeting was precipitated by numerous complaints about

Buracker’s conduct.

Buracker further identifies the age discrimination claims he advanced in his 2016

grievance as an additional act of whistle-blowing; the circuit court did not address this in

its summary judgment order, nor does Shepherd on appeal.

11

magistrate, upon being identified as Shepherd students and before any sort of process or

plea, would automatically be given community service and advised that upon completion,

the complaint would be dismissed. Longerbeam claims that he first learned of this “deal”

in December 2017 when he issued a citation to a student-athlete. He testified that at that

time he expressed his discomfort with the process to an assistant prosecuting attorney,

noting specifically that this arrangement prevented the victim from being heard and the

defendant students “weren’t given really their due process” and “their rights were being

violated.” He testified that he also expressed concern regarding ex parte communications

between the magistrate and the student-athlete’s parent, as well as with Ms. Frye. He

testified that he later discussed the “deal” in April 2018 with Chief McAvoy and Ms. Frye,

suggesting that this process may prevent students from receiving the necessary

intervention. Longerbeam testified that, contemporaneous with this discussion, Chief

McAvoy suggested that he write “campus citations” in lieu of “state” citations and Ms.

Frye emphasized the availability of informal campus processes in lieu of citations.

Buracker testified that he also complained of the magistrate court

arrangement via email to his immediate supervisor David Kelvington, with a copy to Chief

McAvoy, in December 2018. In the email, Buracker stated that Shepherd

directly involves itself and interferes directly and indirectly

with Criminal Prosecution of its students, including

encouraging its officers not to make arrests at all or

enforcement [sic] certain laws. These students don’t have their

individual Due Process Rights afforded when they go to

Magistrate Court . . . [because] they are given community

service automatically without a right to trial, right to call

12

witnesses, right to plead not guilty, [r]ight to pled [sic]

guilty and pay fines and costs, right to have an attorney

present, and without any consideration of prior criminal

offenses. They get a promise as a student of Shepherd [] that

a non student that committed the exact crime at the same

location just simply does not get. . . .

This is all done . . . with [Shepherd’s] direct involvement[] and

without a prosecutor[‘]s involvement. This improper action

has been admitted to by both past and present prosecutors. . . .

We took an [sic] sworn oath of office to enforce all laws, not

just some or the ones that we feel better serve our purpose.

Buracker testified that students raised questions about this process, complaining that some

students were permitted to simply plead guilty and pay a small fine, while others were

required to do community service, and still others suffered no consequences at all.

As to the ethics complaint, it appears undisputed that in October 2018,

Buracker filed a complaint with the West Virginia Ethics Commission against fellow

officer John Brown for personal use of a police vehicle to pick up his child, allegedly with

the permission of his supervisor. That ethics complaint apparently resulted in a

requirement of restitution by Officer Brown.18

18

Longerbeam initially maintained that being listed as a witness to this complaint

served to render him a whistle-blower as to this incident as well. While it is unclear

whether Longerbeam gave testimony in the ethics matter, it appears he is no longer

claiming this as a basis of his own whistle-blower claim.

13

F. HARLESS WRONGFUL DISCHARGE

Finally, petitioners state an additional cause of action for discharge in

contravention of a substantial public policy, i.e., a Harless claim. Petitioners primarily

identify their HRA and whistle-blower allegations as the “substantial public policy” upon

which their Harless claim is based. Petitioners also assert an additional basis for their

Harless claim, alleging that Shepherd discharged them for refusing “to allow [students] to

break the law with impunity.”19 Petitioners contend that it is a substantial public policy of

this State that its laws be enforced by law enforcement and that their discharge was in

contravention of this policy.

G. THE CIRCUIT COURT’S ORDERS AND ISSUES ON APPEAL

Shortly after the complaint was filed Shepherd moved to dismiss on a variety

of grounds. The circuit court granted the motion but set the dismissal aside upon

petitioners’ motion pursuant to West Virginia Rule of Civil Procedure 59(e) and 60(b)(6),

in which they argued that the dismissal was premised upon matters outside of the pleadings.

The circuit court agreed and granted ninety days of discovery before it would convert the

19

Longerbeam testified to a conversation with Chief McAvoy wherein Chief

McAvoy stated that “we know that students are gonna drink, sometimes you gotta look the

other way.” Petitioners also described being instructed not to tow vehicles from fire lanes

or write citations on roadways surrounding and leading into campus, despite having

jurisdiction to do so. Buracker testified that he believes Mayor Auxer “regularly

intercede[s]” with the prosecutions of students, citing an incident where the Mayor asked

him to “go easy on” one of the students involved in the October incident, which interaction

Buracker recorded with his body camera.

14

motions to Rule 56 motions; however, approximately one year elapsed before Shepherd

simply refiled their motions pursuant to Rule 56, following what appears to be substantial

discovery.

The circuit court ultimately granted summary judgment to Shepherd as to all

of petitioners’ claims; the specific findings and bases for the circuit court’s award of

summary judgment are set forth in greater detail below. Generally, however, the circuit

court concluded that neither petitioner had established a prima facie case to support his

various causes of action. In addition to this finding, the circuit court further concluded that

“Shepherd terminated [petitioners’] employment for a legitimate business reason” and that

these reasons were not pretextual. In regard to petitioners’ allegations of pretext, the circuit

court concluded that “[t]he legality of [petitioners’] actions is not evidence of pretext[]”

and that “[t]his case is not about whether the conduct of the two offers [sic] could withstand

a legal challenge in criminal court”—in regard to the dorm room entry and traffic stop.

During the course of the underlying proceedings and/or this appeal,

petitioners appear to have expressly or implicitly abandoned their HRA age discrimination

claims and Longerbeam has abandoned his retaliation claim under the HRA; their

assignments of error concern only the residual claims. See note 4 supra. Therefore, we

address only the circuit court’s grant of summary judgment as to the remaining claims:

Buracker’s HRA retaliation claim, Buracker’s HRA disability discrimination claim,

petitioners’ whistle-blower claims, and their Harless claims.

15

II. STANDARD OF REVIEW

As is well-established, “[a] circuit court’s entry of summary judgment is

reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

More specifically, as pertains to summary judgment the Court “‘must view the evidence

presented through the prism of the substantive evidentiary burden.’” Williams v. Precision

Coil, Inc., 194 W. Va. 52, 62, 459 S.E.2d 329, 339 (1995) (quoting Anderson v. Liberty

Lobby, Inc., 477 U. S. 242, 254 (1986)). That evidentiary burden in retaliation-based

employment claims requires a prima facie showing as follows:

[T]he burden is upon the complainant to prove by a

preponderance of the evidence (1) that the complainant

engaged in protected activity, (2) that complainant’s employer

was aware of the protected activities, (3) that complainant was

subsequently discharged and (absent other evidence tending to

establish a retaliatory motivation) (4) that complainant’s

discharge followed his or her protected activities within such

period of time that the court can infer retaliatory motivation.

Syl. Pt. 4, in part, Frank’s Shoe Store v. W. Va. Human Rights Comm’n, 179 W. Va. 53,

365 S.E.2d 251 (1986). “[T]he showing the plaintiff must make as to the elements of the

prima facie case [of retaliation or discrimination] in order to defeat a motion for summary

judgment is de minimis.” Syl. Pt. 4, in part, Hanlon v. Chambers, 195 W. Va. 99, 464

S.E.2d 741 (1995).

Upon establishing a prima facie case, we have adopted a burden-shifting

paradigm summarized as follows:

If the complainant is successful in creating this rebuttable

presumption of discrimination, the burden then shifts to the

16

respondent to offer some legitimate and nondiscriminatory

reason for the rejection. Should the respondent succeed in

rebutting the presumption of discrimination, then the

complainant has the opportunity to prove by a preponderance

of the evidence that the reasons offered by the respondent were

merely a pretext for the unlawful discrimination.

Syl. Pt. 3, in part, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va. Hum.

Rts. Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983); see Taylor v. W. Va. Dept. of Health

& Hum. Res., 237 W. Va. 549, 561, 788 S.E.2d 295, 307 (2016) (“[E]mployment claims—

whether under the Human Rights Act, Whistle-Blower Law, or Harless—all employ

effectively the same burden-shifting mechanism[.]”); W. Va. Code § 6C-1-4(b) and (c)

(1988) (requiring employee to show by a preponderance of the evidence that he or she

qualifies as a statutory “whistle-blower,” upon which the burden shifts to the defendant to

prove that the complained of action “occurred for separate and legitimate reasons, which

are not merely pretexts”). Generally, “once a plaintiff’s allegations and evidence create a

prima facie case . . . the conflict between the plaintiff’s evidence establishing a prima facie

case and the employer’s evidence of a nondiscriminatory reason reflects a question of fact

to be resolved by the factfinder at trial.” Hanlon, 195 W. Va. at 105-06, 464 S.E.2d at 747-

48.

As with any review of summary judgment, “we must draw any permissible

inference from the underlying facts in the most favorable light to the party opposing the

motion.” Williams, 194 W. Va. at 59, 459 S.E.2d at 336. “[I]f there is any evidence in the

record from any source from which a reasonable inference can be drawn in favor of the

17

nonmoving party, summary judgment is improper.” Hanlon, 195 W. Va. at 105, 464

S.E.2d at 747 (emphasis added). With these standards in mind, we proceed to the parties’

arguments.20

III. DISCUSSION

As indicated above, the circuit court’s orders grant summary judgment to

Shepherd by declaring that petitioners failed to establish a prima facie case as to each of

their claims and there exists no genuine issue of material fact sufficient to evade summary

judgment. Petitioners assign error to these conclusions and note that intermingled within

these conclusions are discrete points of alleged error—some of which recur throughout the

various causes of action—including the circuit court’s consideration of temporal proximity

and its handling of the burden-shifting paradigm relative to Shepherd’s proffered reasons

for termination and pretext. Shepherd’s arguments in large part simply mirror the circuit

court’s orders and broadly characterize petitioners’ evidence in resistance to summary

judgment as “self-serving” and “unsupported.”21

20

By order entered August 12, 2022, this Court granted petitioners’ motion to

consolidate the instant appeals, over Shepherd’s objection, and ordered the matter

consolidated “for purposes of briefing, consideration, and decision.” (Emphasis added).

Nonetheless, Shepherd filed separate briefs in each matter in contravention of the Court’s

order. Counsel is cautioned not to disregard this Court’s directives. A properly filed

motion to exceed the page limitation would have been the appropriate recourse.

21

We note that the orders on appeal were prepared by Shepherd’s counsel, but

“modified” to some unknown degree by the circuit court. Nevertheless, the orders borrow

(continued . . .)

18

A. TEMPORAL PROXIMITY

We begin with the circuit court’s purportedly dispositive conclusion that

petitioners’ protected activity22 and subsequent discharge lacked the requisite “temporal

proximity.” The circuit court found absence of temporal proximity dispositive as to

Buracker’s HRA retaliation claim, and, in part, as to petitioners’ respective whistle-blower

claims. More specifically, the circuit court found that because he was terminated nearly a

year after he won his grievance, Buracker’s allegation of age discrimination in that

proceeding was too remote to support an inference of retaliation. As to petitioners’ whistle-

blower claims, the circuit court similarly found that their May 2019 termination was “too

removed in time” to be related to concerns expressed by Longerbeam about the magistrate

court arrangement in April 2018 or the ethics complaint filed by Buracker in October 2018.

Petitioners argue that the circuit court erroneously failed to consider the intervening acts

heavily from Shepherd’s summary judgment motions, rendering them “heavily partisan”

and “over-reaching[.]” Taylor, 237 W. Va. at 558, 788 S.E.2d at 304. Like the order in

Taylor, by so closely mimicking Shepherd’s motions, the orders necessarily “consist[]

entirely of [Shepherd’s] version of the disputed facts and advocated inferences[.]” Id. As

a result, we find it difficult—and unnecessary—to “parse out each flawed factual

conclusion” in the orders on appeal where the rulings below “either failed to note the

obvious factual dispute regarding the undercurrent of motivation central to this litigation

or completely misapprehended the view of the disputed evidence it must take in

determining summary judgment.” Id. at 562, 788 S.E.2d at 308. Instead—as with the bulk

of the respective orders on appeal—we find it sufficient to note the existence of genuine

issues of material fact presented in the predominant theories of petitioners’ case as gleaned

from the parties’ briefs.

22

“‘Protected activity’ under the West Virginia Human Rights Act includes

opposition to a practice that the plaintiff reasonably and in good faith believes violates the

provisions of the Act.” Conrad, 198 W. Va. at 367, 480 S.E.2d at 806, syl. pt. 7, in part.

“Whistle-blowing” is likewise a “protected activity.”

19

of reprisal which were more temporally proximate to their protected activity than their

discharge.

We find that the circuit court mishandled the “temporal proximity” issue in

two ways. First, we agree with petitioners that the court’s orders appear to presume that

petitioners’ termination is the only retaliatory conduct at issue. However, petitioners do

not challenge only their termination; rather, they allege “ongoing and continuous” acts of

reprisal through disparate treatment regarding their job duties and responsibilities from the

time of the triggering protected activity—whether complaints of age discrimination or

whistle-blowing—until their discharge.

Secondly, and more importantly, the circuit court misconstrued the necessity

of temporal proximity and the federal caselaw upon which it relied. Shepherd likewise

mistakenly characterizes temporal proximity as “one of the four required elements”

necessary to establish a prima facie case of retaliation, relying on federal caselaw

discussing shorter periods of time between protected activity and termination.

However, the federal caselaw cited in the orders does not stand for the

proposition that there must be close proximity between protected activity and termination

to satisfy a prima facie level of causation in all instances. Rather, both that caselaw—and

our own—make clear that where there is no other evidence connecting protected activity

to an adverse employment action other than their temporal proximity, causation may be

20

inferred if that proximity is sufficiently close. See Roberts v. Glenn Indus. Grp., Inc., 998

F.3d 111, 127 (4th Cir. 2021) (“[S]horter lapses of time similar to the three-month period

at issue in the case before us are insufficient to infer a causal relationship without other

evidence of a causal link.” (Emphasis added)); Woodruff v. Peters, 482 F.3d 521, 529 (D.C.

Cir. 2007) (“Lacking a smoking gun from the FAA that would establish causation,

Woodruff asks us to infer a causal link from the temporal proximity between the protected

events and the adverse actions.” (Emphasis added)); Pascual v. Lowe’s Home Ctrs, Inc.,

193 F. App’x 229, 233 (4th Cir. 2006) (“Generally speaking, however, the passage of time

alone cannot provide proof of causation unless the ‘temporal proximity between an

employer’s knowledge of protected activity and an adverse employment action’ was ‘very

close.’” (Emphasis added)); Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998) (“A

thirteen month interval between the charge and termination is too long to establish

causation absent other evidence of retaliation.” (Emphasis added)).

In fact, our caselaw is even clearer on this point. As referenced above, our

caselaw holds that for purposes of establishing a prima facie case of retaliation, temporal

proximity is required only “[]absent other evidence tending to establish a retaliatory

motivation[]”:

In an action to redress an unlawful retaliatory discharge

under the West Virginia Human Rights Act, W. Va. Code, 5-

11-1, et seq., as amended, the burden is upon the complainant

to prove by a preponderance of the evidence (1) that the

complainant engaged in protected activity, (2) that

complainant’s employer was aware of the protected activities,

(3) that complainant was subsequently discharged and (absent

21

other evidence tending to establish a retaliatory motivation)

(4) that complainant’s discharge followed his or her protected

activities within such period of time that the court can infer

retaliatory motivation.

Frank’s Shoe Store, 179 W. Va. at 54, 365 S.E.2d at 252, syl. pt. 4 (emphasis added); see

also Hanlon, 195 W. Va. at 103, 464 S.E.2d at 745, syl. pt. 10; accord Bailey v. Mayflower

Vehicles Sys., Inc., 218 W. Va. 273, 276, 624 S.E.2d 710, 713 (2005) (noting that

“‘[b]ecause of the usual lack of direct evidence[] . . . . [p]roximity in time of the claim and

the firing is relevant[.]’” (quoting Powell v. Wyo. Cablevision, Inc., 184 W. Va. 700, 704,

403 S.E.2d 717, 721 (1991)”) (emphasis added)).

As discussed more fully below, construing the evidence in the light most

favorable to petitioners, we find that they offered more than sufficient evidence upon which

a rational trier of fact could find retaliatory motivation and therefore need not rely solely

on temporal proximity to establish causation. Further, the acts of reprisal of which

petitioners complain were allegedly continuous and span a period of time which includes

Longerbeam’s first expression of concern in December 2017 and again in April 2018 about

the magistrate court arrangement, Buracker’s grievance-related hire in June 2018, his

October 2018 ethics complaint, and his own complaint about the magistrate court

arrangement in December 2018. Therefore, the intermittent protected activity and the

alleged ongoing, actionable conduct culminating in petitioners’ termination is more than

sufficient to permit a reasonable jury to find an inference of retaliation. Cf. Conrad, 198

W. Va. at 375, 480 S.E.2d at 814 (“If plaintiff’s evidence is believed and construed most

22

favorably to her, then her complaints were ongoing and continued up to her discharge.

Thus, an inference arises that the discharge resulted from the employer’s desire to relieve

itself of a complainer (about sexual harassment) and, perhaps, to solve the harassment

problem by removing the victim.”).

Therefore, we find that the circuit court erred to the extent it relied on a

purported absence of temporal proximity in granting summary judgment against

petitioners.

B. WHISTLE-BLOWER ALLEGATIONS

Next, we turn to the circuit court’s handling of the technical requirements of

petitioners’ whistle-blower claims. The circuit court concluded that petitioners’ evidence

was “legally insufficient” to establish a prima facie case of whistle-blowing. While

petitioners challenge nearly every aspect of the circuit court’s orders in this regard—

including its mishandling of the burden-shifting paradigm as addressed more fully below—

we focus our present discussion on the statutory whistle-blower elements.

The Whistle-blower Law provides that “[n]o employer may discharge,

threaten, or otherwise discriminate or retaliate against an employee . . . because the

employee . . . makes a good faith report . . . verbally or in writing, to the employer or

appropriate authority, an instance of wrongdoing or waste.” W. Va. Code § 6C-1-3. As

with other discrimination and retaliation employment claims, the employer may defend

23

against a whistle-blower claim by proving “that the action complained of occurred for

separate and legitimate reasons, which are not merely pretexts.” Id. § 6C-1-4(c).

We find that despite its exhaustive citation to the statutory definitions

pertinent to petitioners’ whistle-blower claims, the circuit court’s order is replete with

unsupported conclusions about these requirements. For instance, as to Buracker’s whistle-

blower claim, the order concludes that Buracker’s ethics complaint about his coworker’s

personal use of a department vehicle—a fairly classic instance of whistle-blowing—did

not constitute a “disclosure” under the Whistle-blower Law because a supervisor was

already aware of and authorized the vehicle use. However, the Whistle-blower Law defines

“good faith report” as “a report of conduct defined in this article as wrongdoing or waste

which is made without malice or consideration of personal benefit and which the person

making the report has reasonable cause to believe is true.” Id. § 6C-1-2(d) (1988). Nothing

in the statutory scheme suggests that a “good faith report” of “wrongdoing” may not

include wrongdoing of which a supervisor is already aware or sanctioned.

Turning to the analysis of petitioners’ whistle-blowing about the magistrate

court arrangement, we struggle to encapsulate the reasoning outlined in the orders on

appeal, which finds that petitioners presented no genuine issue for trial. Suffice it to say,

we find that the analysis fails to construe petitioners’ evidence in the light most favorable

to them and in accordance with the statutory requirements. We will nevertheless attempt

to address the orders’ primary points of emphasis.

24

First, the orders incorrectly state that petitioners “cite[] no statute or

regulation that was violated” by the magistrate court arrangement. We note that while

violation of statute or regulation is included as a type of “wrongdoing” under the Whistle-

blower Law, the definition reads more broadly: “‘Wrongdoing’ means a violation which

is not of a merely technical or minimal nature of a federal or state statute or regulation, of

a political subdivision ordinance or regulation or of a code of conduct or ethics designed

to protect the interest of the public or the employer.” Id. § 6C-1-2(h). More to the point

however, petitioners’ stated concerns regarding the magistrate court arrangement clearly

invoke the due process and equal protection provisions of the Constitution, and their filings

below more specifically reference West Virginia Code § 50-4-3 regarding right to counsel,

and Rule 7 of the West Virginia Rules of Criminal Procedure for Magistrate Court

regarding the right to enter a plea.

The orders’ declaration of the absence of a “statute or regulation” which the

magistrate court arrangement violates notwithstanding, they then ostensibly proceed to

demonstrate that the magistrate court arrangement technically violated no legal principles.

The analysis engages in a speculative one-sided debate—apparently unsupported by any

record evidence—about whether certain hypothetical students may have actually elected

to proceed without counsel, the particulars of the “informal resolution process,” and the

decision-making of the magistrate in implementing the “process.” Finally, rather than

assessing petitioners’ evidence in conjunction with the applicable statutory definitions, the

order notes that the complained-of conduct is that of an elected official—as though such

25

officials are immune from a whistle-blower’s accusations. This discussion not only fails

to construe the evidence in the light most favorable to petitioners; it fails to apply the

statutory criteria and misapprehends the underlying purpose of our whistle-blower law.

We have counseled that “nothing in our Whistle-blower Law requires an

employee to have been ultimately correct in his or her assessment of the wrongdoing or

waste. Quite the contrary, West Virginia Code § 6C-1-2(d) requires only that an employee

have ‘reasonable cause to believe’ the report of such conduct is true.” Taylor, 237 W. Va.

549, 562 n.21, 788 S.E.2d 295, 308 n.21 (2016); see also Conrad, 198 W. Va. at 367, 480

S.E.2d at 806, syl. pt. 7, in part (holding that for purposes of HRA retaliation claims the

employee’s opposition to the prohibited practice “must be reasonable in the sense that it

must be based on a set of facts and a legal theory that are plausible.”). As the Court

observed in the parallel context of HRA retaliation, the purpose of protecting those who in

good faith oppose prohibited practices

would be wholly defeated if [the] protection applied only to

those individuals who confidently know the technical area of .

. . law and who correctly predict how its doctrine will

ultimately be applied in a court of law. Given those

unpredictable variables, few rational employees would take

much solace in the protection from retaliation offered by such

a narrow construction of [anti-retaliation provisions].

Hanlon, 195 W. Va. at 112, 464 S.E.2d at 754.

Further, this Court long ago rejected the “decidedly minority view” in

asserting a claim for retaliation for opposing prohibited practices, that the prohibited

26

practice must have actually occurred. Id.; see also Conrad, 198 W. Va. at 367, 480 S.E.2d

at 806, syl. pt. 7, in part (“Thus, even if there was no actionable sexual harassment, the

plaintiff could still have been engaged in a protected activity if she complained about being

sexually harassed.”). We find nothing in our statutory scheme requiring a whistle-blower

to articulate with unassailable precision an exhaustive legal basis for their report of

wrongdoing or waste. Therefore, this extensive preoccupation with the technical

correctness of petitioners’ complaints is beside the point. It is Shepherd’s alleged

retaliation for these complaints from which petitioners are protected—whether

wrongdoing actually occurred—insofar as their complaints constitute a “good faith report”

of “wrongdoing” under the statutory definitions.

Moreover, while the orders state that “[e]ven if there was a legal basis for

[petitioners’ complaints], the conduct at issue was that of an elected magistrate[,]” they do

not explain the significance of this statement. Nothing in our Whistle-blower Law requires

the “wrongdoer” to be an individual inside the employment relationship, much less

exempts elected officials—frequently the target of whistle-blower complaints—from its

scope. This is well-demonstrated by the Whistle-blower Law permitting a “good faith

report” to be made not only to an employer or supervisor, but an “appropriate authority”

See W. Va. Code § 6C-1-2(a) (defining “[a]ppropriate authority” as including a “county . .

. government body, agency or organization having jurisdiction over criminal law

enforcement . . . or a member, officer, agent, representative or supervisory employee of the

body, agency or organization.”); see also Jarrell v. Frontier W. Va., Inc., 249 W. Va. 335,

27

895 S.E.2d 190, 201 (2023) (Hutchison, J., dissenting) (discussing “internal” and

“external” whistleblowing). Here, petitioners complained to their supervisors—who are

both definitional “employers” and “appropriate authorit[ies]” under the Whistle-blower

Law—as well as to an assistant prosecutor, who also qualifies as an “appropriate authority”

under the statutory definition.

In the latter regard, Shepherd argues that even if Longerbeam did complain

to an assistant prosecutor, he would have “no authority to take corrective action” against

the magistrate. Again, the Whistle-blower Law contains no requirement that a whistle-

blower must direct his or her good faith report to the most appropriate oversight or

prosecutorial entity to constitute protected activity under the Law. The Whistle-blower

Law requires only that a good faith report be made to an “appropriate authority” as defined

therein. Much as we observed in Hanlon, whistle-blowers would scarcely be comfortable

in coming forward knowing that the fate of their protection rests precariously on their

ability to both articulate the precise authority for the wrongdoing or waste and report it to

the “most” authoritative entity. We therefore find that the circuit court erred in failing to

construe petitioners’ whistle-blower evidence in their favor and in accordance with the

statutory criteria.23

23

We decline to address whether Longerbeam’s memo of complaints presented

during the “morale meeting” constitutes whistle-blowing in the first instance, as the order

on appeal fails to evaluate this evidence in accordance with the statutory scheme. Instead,

(continued . . .)

28

C. THE BURDEN-SHIFTING PARADIGM

We turn now to the more generalized findings that petitioners’ claims present

no genuine issue of fact for trial, thereby warranting summary judgment. Peppered

throughout the circuit court’s orders are references to the burden-shifting paradigm

described above, concluding that summary judgment was proper because petitioners failed

to demonstrate a prima facie case for their various causes of action. Despite the purported

absence of a prima facie showing—which ends the analysis—the orders on appeal

nonetheless wade into the remainder of the paradigm, summarily concluding that

“Shepherd terminated [petitioners’] employment for a legitimate business reason” which

was “not merely pretext.” Petitioners argue that the circuit court improperly managed the

burden-shifting and engaged in improper fact-finding in its handling of petitioners’

evidence. We agree.

We begin by restating the burden-shifting framework. In Shepherdstown

VFD we adopted the United States Supreme Court’s approach, first established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to govern our courts’

consideration of the sufficiency of evidence of discrimination or retaliation:

“First, the plaintiff has the burden of proving by the

preponderance of the evidence a prima facie case of

discrimination. Second, if the plaintiff succeeds in proving the

prima facie case, the burden shifts to the defendant ‘to

the order focuses on Shepherd’s contention that any such complaints were not revealed to

the decisionmakers involved in Longerbeam’s discharge, therefore, they could not provide

retaliatory animus for Longerbeam’s discharge.

29

articulate some legitimate, nondiscriminatory reason for the

employee’s rejection.’ (citation omitted). Third, should the

defendant carry this burden, the plaintiff must then have an

opportunity to prove by a preponderance of the evidence that

the legitimate reasons offered by the defendant were not its true

reasons, but were a pretext for discrimination. (citation

omitted).”

172 W. Va. at 637, 309 S.E.2d at 352 (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.

S. 248, 252-53 (1981)). The orders on appeal summarily conclude that petitioners

established no prima facie case, buttress this conclusion by accepting Shepherd’s proffered

reason for termination, and “find” the absence of pretext.24

As per our caselaw, petitioners are required to establish prima facie evidence

that they engaged in protected activity of which their employer was aware and were

subsequently discharged, along with evidence from which retaliatory motivation can be

24

As evidence of the orders’ conflation of these concepts—in a section curiously

entitled “[t]he burden does not shift to Shepherd to rebut pretext”—the orders state that

Shepherd need not “prove that the reasons offered for the termination of [petitioners’]

employment were not pretextual.” (Emphasis added). Nowhere in our burden-shifting

paradigm must an employer prove absence of pretext; assuming the existence of a prima

facie case, the burden then shifts to the employer to first proffer a legitimate, non-

prohibited reason for the employment action. The burden then shifts back to the employee

to adduce evidence of the presence of pretext. We believe this case presents a not-

uncommon problem described by Justice Cleckley in Skaggs v. Elk Run Coal Company:

The confusion on this point, we think, points to a larger

problem in this area of the law and that is the extent to which

courts (including this one) and litigants often have been so

preoccupied by the trees of prima facie case, pretext, shifting

burdens, and other labels, that they have not seen the forest of

discrimination.

198 W. Va. 51, 74, 479 S.E.2d 561, 584 (1996).

30

inferred. See Frank’s Shoe Store, 179 W. Va. at 54, 365 S.E.2d at 252, syl. pt. 4. To that

end, Buracker adduced evidence that Shepherd was forced to hire him to a position it

previously denied him and for which non-selection Buracker claimed age discrimination;

that the Chief thereafter called Buracker his “adversary”; that during his tenure he made

two very serious and vocal complaints which he maintained violated ethical, constitutional

and criminal procedural tenets; and that from the outset of his full-time tenure until his

termination less than a year later he was held to a different standard of responsibilities and

accountability than other officers. Similarly, Longerbeam adduced evidence that he

repeatedly expressed concern about the magistrate court arrangement to an assistant

prosecutor, the chief of campus police and the Shepherd official overseeing campus

policing and was similarly held to a different standard of accountability, culminating in his

discharge. See, e.g., Conaway v. E. Assoc. Coal Corp., 178 W. Va. 164, 171, 358 S.E.2d

423, 430 (1986) (establishing that retaliatory or discriminatory animus may be proven by,

inter alia, “a case of unequal or disparate treatment between members of the protected class

and others” (footnotes omitted)).

Rather than crediting petitioners’ evidence in this regard—which is more

than sufficient to establish a prima facie case—the orders on appeal summarily accept

Shepherd’s proffered reason for termination, dispositively concluding that “Shepherd had

a legitimate reason for the termination of the [petitioners’] employment that was not merely

pretext. Shepherd conducted an investigation and concluded that the [petitioners] engaged

in misconduct and acted unprofessionally.” Even in its discussion of pretext, the analysis

31

conclusively accepts Shepherd’s position that petitioners “failed to conform with

Shepherd’s model of campus policing” and “[t]his was the basis for the termination of

[petitioners’] employment.” Shepherd’s proffer of a legitimate, non-discriminatory reason

for petitioners’ charge simply implicates the issue of pretext, thereby creating disputed

issues of motive which must be resolved by the finder of fact. See, e.g., Hanlon, 195 W.

Va. at 113, 464 S.E.2d at 755 (“The defendant’s response that her discharge was the result

of the recommendation of an expert management consultant simply put the matter of

motive at issue.”).

And while the circuit court’s orders dedicate a brief discussion to pretext,

rather than examining petitioners’ evidence and construing it in the light most favorable to

them, the orders strain to render the evidence immaterial. Petitioners’ primary evidence of

pretext is their contention that their conduct during the two incidents for which they were

allegedly terminated was in all respects legally proper. The orders attempt to redirect from

this evidence by stating that “[w]hether [petitioners] had probable cause to enter the

student’s housing unit on October 7, 2018 or to conduct the traffic stop on January 6, 2019

is not the issue.” To the contrary—as to pretext—it is precisely the issue. Ms. Frye testified

that petitioners were terminated because they lacked probable cause for their dorm room

entry; other decisionmakers equivocated on this point. Obviously, if a jury believes that

petitioners did have probable cause for entry, it may likewise find that Shepherd’s stated

basis for discharge was pretextual. See, e.g., Conaway, 178 W. Va. at 171, 358 S.E.2d at

32

430 (establishing that retaliatory or discriminatory animus may be proven “by the

elimination of the apparent legitimate reasons for the decision[]”).

Further, the decisionmakers responsible for petitioners’ termination have

articulated the basis for their termination in a variety of manners, running the gamut from

their entry into the dorm room being merely “nonconsensual” in violation of “community

policing” ideals to “lacking probable cause”—a professional misstep with serious legal

consequences. As to the traffic shop, Chief McAvoy admitted that both the stop and

citations issued were lawful but constituted “targeting” and demonstrated inconsistent

enforcement. Therefore, if petitioners establish that their conduct was in fact entirely

lawful and appropriate under law enforcement standards—or even Shepherd’s “community

policing” standards—a jury could certainly conclude then that Shepherd’s stated reason for

their firing was pretextual. See Skaggs, 198 W. Va. at 74, 479 S.E.2d at 584 (noting that

proof “that the employer acted incorrectly . . . would clearly be relevant in proving pretext”

(emphasis added)). A demonstration of pretext permits a jury to infer discriminatory

motive on the part of the employer. See Skaggs, 198 W. Va. at 59, 479 S.E.2d at 569, syl.

pt. 5, in part (holding that if “the fact-finder disbelieves the defendant’s explanation for the

adverse action taken against the plaintiff, the factfinder justifiably may conclude that the

logical explanation for the action was the unlawful discrimination”); Syl. Pt. 5, in part,

Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152 (1995), holding

modified on other grounds by Dodrill v. Nationwide Mut. Ins. Co., 201 W. Va. 1, 491

S.E.2d 1 (1996) (“A finding of pretextuality allows a juror to reject a defendant’s proffered

33

reasons for a challenged employment action and, thus, permits the ultimate inference of

discrimination.”); Moore v. Consolidation Coal Co., 211 W. Va. 651, 657, 567 S.E.2d 661,

667 (2002) (“‘When pretext is at issue in a discrimination case, it is a plaintiff’s duty to

produce specific facts which, reasonably viewed, tend logically to undercut the defendant’s

position.’” (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 796 (1st Cir.1992))).

The circuit court’s orders stray from our fundamental principle in

considering an award of summary judgment:

[T]he function of the circuit court on a summary judgment

motion is to determine whether the proffered admissible

evidence shows circumstances that would be sufficient to

permit a rational finder of fact to infer a discriminatory motive.

It is not the province of the circuit court itself to decide what

inferences should be drawn.

Hanlon, 195 W. Va. at 99, 464 S.E.2d at 741, syl. pt. 4, in part. “Courts take special care

when considering summary judgment in employment and discrimination cases because

state of mind, intent, and motives may be crucial elements.” Williams, 194 W. Va. at 61,

459 S.E.2d at 338.

We therefore conclude that the circuit court erred in finding that petitioners

failed to establish a prima facie case of retaliation—as to both their HRA retaliation and

whistle-blower claims—and that there were no genuine issues of material fact sufficient

for trial. Accordingly, we reverse the circuit court’s grant of summary judgment to

Shepherd as to these claims and remand for further proceedings.

34

D. DISABILITY DISCRIMINATION

In contrast to petitioners’ retaliation claims, however, we find that the circuit

court properly granted Shepherd summary judgment as to Buracker’s disability

discrimination claim. The circuit court concluded that Buracker’s diabetes did not

constitute a “disability” under the HRA and that he failed to adduce evidence that would

establish causation. We agree that Buracker’s evidence is insufficient to create an

inference of disability discrimination such as to survive summary judgment.

As the Court has succinctly explained,

to establish a prima facie case of disability discrimination, the

plaintiff must show that he is a disabled person within the

meaning of the law, that he is qualified to perform the essential

functions of the job (either with or without reasonable

accommodation), and that he has suffered an adverse

employment action under circumstances from which an

inference of unlawful discrimination arises.”

Skaggs, 198 W. Va. at 71 n.22, 479 S.E.2d at 581 n.22 (emphasis added). Assuming, but

not deciding, for purposes of this claim that Buracker is a qualified person with a disability

as defined in the HRA, his evidence fails to support an inference of discrimination on the

basis of his disability. 25 Buracker provides no evidence that Shepherd identified his

25

We do not, however, agree with Shepherd’s contention, as adopted by the circuit

court, that Buracker’s responses to requests for admissions (the content or significance of

which are not identified) are not competent “evidence” for consideration at summary

judgment. The circuit court’s order repeats this contention with respect to answers to

interrogatories pertinent to Longerbeam’s whistle-blower claim. Rule 56 plainly provides

that summary judgment may be based on “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

(continued . . .)

35

diabetes-related urination as problematic, as opposed to the fact that his body camera

remained on for the duration. Further, other than his superiors asking him why he was

urinating with his body camera on (once during the course of the larger investigation into

the dorm room entry and traffic stop), Buracker fails to identify how his diabetes or related

physical effects were in any way invoked or implicated during his tenure. Because

Buracker fails to identify any evidence that would allow a reasonable trier of fact to find

an inference of discrimination resulting from his alleged disability, we affirm the circuit

court’s grant of summary judgment as to this claim.

E. HARLESS WRONGFUL DISCHARGE

Finally, we turn to petitioners’ Harless claims for wrongful discharge. As to

these claims, the circuit court granted Shepherd summary judgment based on 1) the

“substantive reasons” identified as to petitioners’ HRA and whistleblower claims; and 2)

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Both of petitioners’ discovery responses were properly verified under

oath.

Similarly, we reject Shepherd’s contention that merely because much of petitioners’

evidence is drawn from their own testimony, it is the type of “self-serving” evidence

insufficient to resist summary judgment. Petitioners’ testimony is replete with specific

facts and occurrences properly subject to cross-examination and rebuttal evidence rather

than subjective, conclusory allegations of retaliation.

36

its determination that common law Harless discharge claims are duplicative of petitioners’

statutory claims, relying on federal caselaw to that effect. 26

As to the circuit court’s commensurate finding—that petitioners’ statutory

claims and Harless claims are duplicative and must be disposed of at summary judgment

stage—we find that this Court has previously permitted these claims to coexist. See Burke

v. Wetzel Cnty. Comm’n, 240 W. Va. 709, 815 S.E.2d 520 (2018) (reversing 12(b)(6)

dismissal of companion HRA, whistleblower, FMLA, and Harless claims and finding the

alleged statutory claims to be “[t]he sources of the public policy at issue” for Harless

purposes);27 Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 223, 700 S.E.2d 183, 192 (2010)

26

In addition to the HRA and Whistle-blower Law, petitioners briefly mention that

“enforcement of the law” constitutes an additional substantial public policy upon which

their Harless claims may proceed. The circuit court failed to address this issue in its award

of summary judgment, presumably because of its determination that the Harless claims

were duplicative of petitioners’ statutory claims.

Before this Court however, petitioners’ argument consists of nothing more than their

statement that “it should go without saying that the legislature’s creation of a criminal law

implies that it [sic] the state, as a matter of policy, has an interest in preventing the

prohibited activity[.]” Because petitioners provide no authority or argument in support of

this issue, we decline to address it. See State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d

613, 621 (1996) (“Although we liberally construe briefs in determining issues presented

for review, issues which are not raised, and those mentioned only in passing but are not

supported with pertinent authority, are not considered on appeal.”).

27

The federal precedent relied upon by Shepherd predates our decision in Burke. In

fact, more than twenty years before Burke, a federal district court observed that “[t]here is

a developing line of authority from the Supreme Court of Appeals . . . which one might

argue signals the erosion of” the federal precedent finding that HRA and common law

discharge claims cannot coexist. Burgess v. Gateway Commc’ns, Inc.- WOWK TV, 984 F.

Supp. 980, 983 n.5 (S.D.W. Va. 1997).

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(reversing 12(b)(6) dismissal of Harless claim where plaintiff pleaded violation of HRA as

basis of Harless claim and asserted other HRA claims). In an employment case context,

the Court has noted that

[b]ecause procedural law allows alternative contentions,

parties to a civil action involving an array of factual and legal

motives or theories should be allowed to defer their choice at

least until late stages of the proceedings in the trial court. For

example, both plaintiffs and defendants in a civil case may be

allowed to maintain alternative contentions at least until the

evidence is closed, when the circuit court should require a

choice to be made as to the form of verdict to be used in

submitting the case to the jury and instructions to the jury.

Barefoot, 193 W. Va. at 491 n.26, 457 S.E.2d at 168 n.26; cf. Concrete Spaces, Inc. v.

Sender, 2 S.W.3d 901, 909 (Tenn. 1999) (“[S]ubmitting incompatible and alternative

theories of recovery to a jury creates no conflict or duplicative award because until the jury

makes its findings of liability, no double recovery can exist.”).

However, we are careful to distinguish our caselaw permitting the

coexistence of these claims during the pendency of the case with an employee’s ability to

recover on alternative claims at trial for a singular injury. In fact, petitioners concede that

they may not “proceed simultaneously at trial on both a [HRA] and a Harless claim[.]”

(emphasis added). And while they make no such concession as to their whistle-blower

claim, they offer no authority from this Court suggesting a plaintiff may recover on a

common law Harless action as well as a statutory whistle-blower action for the same

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injury.28 As the sequel to Harless itself instructs, “[a] plaintiff may not recover damages

twice for the same injury simply because he has two legal theories.” Syl. Pt. 7, in part,

Harless v. First Nat. Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982) (“Harless

II”); see also Sewell v. Gregory, 179 W. Va. 585, 588 n.4, 371 S.E.2d 82, 85 n.4 (1988)

(“The Appellants, of course, would not be entitled to recover twice for the same damages,

but may assert available alternate theories of liability”); Wiggins v. E. Assoc. Coal Corp.,

178 W.Va. 63, 66, 357 S.E.2d 745, 748 (1987) (“The appellant could not have been granted

any additional relief under the parallel West Virginia statute because ‘[d]ouble recovery of

damages is not permitted; the law does not permit a double satisfaction for a single injury.’”

(citing Syl. Pt. 7, in part, Harless II, 169 W. Va. at 674, 289 S.E.2d at 694)); see generally

Manor Care, Inc. v. Douglas, 234 W. Va. 57, 99, 763 S.E.2d 73, 115 (2014), superseded

by statute on other grounds as stated in State ex rel. W. Va. Univ. Hosps., Inc. v. Scott, 246

W. Va. 184, 866 S.E.2d 350 (2021) (Workman, J., concurring) (discussing “the distinction

between permitting concurrent or cumulative causes of action and improperly permitting

duplicative damages”).

28

In fact, we note that petitioners ostensibly argue the viability of their Harless

claim largely as a contingency to the dismissal of their statutory claims. However, in that

regard petitioners’ reliance on this Court’s holding in Williamson v. Greene, 200 W. Va.

421, 490 S.E.2d 23 (1997) is misplaced; that case is clearly distinguishable. In Williamson,

the Court permitted an employee to pursue a Harless claim where she was not covered by

the HRA because her employer did not meet the minimum employee requirements. Id. at

423, 490 S.E.2d at 25, syl. pt. 8. Petitioners do not contend that they or Shepherd do not

fall within the construct of their statutory claims.

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Having found that disputed issues of material fact preclude summary

judgment as to petitioners’ statutory claims, we find that those same factual disputes

permeate their Harless claims. We therefore reverse the circuit court’s grant of summary

judgment to Shepherd on those claims and remand for further proceedings.

IV. CONCLUSION

For the foregoing reasons, as to No. 22-609 we reverse that portion of the

June 21, 2022, order of the Circuit Court of Jefferson County, West Virginia, granting

summary judgment as to Longerbeam’s whistle-blower and Harless claims and remand for

further proceedings. As to No. 22-610, we affirm, in part, the June 21, 2022, order of the

Circuit Court of Jefferson County, West Virginia, granting summary judgment as to

Buracker’s HRA disability discrimination claim and reverse, in part, as to Buracker’s HRA

retaliation, whistle-blower, and Harless claims, and remand for further proceedings.

No. 22-609 Reversed and remanded.

No. 22-610 Affirmed, in part; reversed, in part,

and remanded.

40