W. Va. Bd. of Educ. v. Marple, 14–1264.

• Decision Date: 10 November 2015
• Docket Number: No. 14–1264.,14–1264.
• Citation: 236 W.Va. 654,783 S.E.2d 75
• Parties: WEST VIRGINIA BOARD OF EDUCATION, and L. Wade Linger, Jr., Petitioners v. Jorea M. MARPLE, Respondent.
• Court: West Virginia Supreme Court

236 W.Va. 654

783 S.E.2d 75

WEST VIRGINIA BOARD OF EDUCATION, and L. Wade Linger, Jr., Petitioners

v.Jorea M. MARPLE, Respondent.

No. 14–1264.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 6, 2015.

Decided Nov. 10, 2015.

Nov. 10, 2015.

J. Victor Flanagan, Esq., Julie Meeks Greco, Esq., Katie L. Hicklin, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, WV, Counsel for the Petitioners.

Timothy N. Barber, Esq., Thomas Patrick Maroney, Esq., Charleston, WV, A. Andrew MacQueen, III, Esq., Mt. Pleasant, SC, Counsel for the Respondent.

KETCHUM, Justice:

Petitioners, the West Virginia Board of Education ("the Board") and its former president, Mr. L. Wade Linger, appeal a November 3, 2014, order of the Circuit Court of Kanawha County. In its order, the circuit court denied the Board's and Mr. Linger's motion to dismiss a lawsuit filed by the Respondent, Dr. Jorea Marple, challenging her termination from employment as the Board's Superintendent of Schools.

The Board and Mr. Linger contend that they had the discretion to terminate Dr. Marple because the West Virginia Constitution, statutory law, and Dr. Marple's employment contract declared her to be an at-will employee. They also claim that the doctrine of qualified immunity protects a government actor's prudent exercise of discretion, including whether to hire or retain an employee. Therefore, they assert the doctrine of qualified immunity bars Dr. Marple's suit. By contrast, Dr. Marple argues that she had a constitutionally protected interest in her continued employment. She asserts the Board and Mr. Linger could not terminate her without first affording her due process protections.

Upon review, we find that Dr. Marple's complaint fails to allege a cause of action sufficient to overcome the Board's and Mr. Linger's discretion to terminate her. Therefore, qualified immunity bars each of her claims. Accordingly, we reverse the circuit court's November 3, 2014, order and dismiss Dr. Marple's complaint.

I.FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises from Dr. Marple's termination as Superintendent of Schools for the State of West Virginia in November 2012. Dr. Marple had served as superintendent for almost two years under an at-will employment contract, during which time she received an exemplary performance evaluation and a pay raise. The Board also issued a press release describing Dr. Marple as an "outstanding visionary and leader" who has "brought national recognition to our state." She claims that she had no reason to feel that her at-will employment as superintendent might be terminated.

The Board voted to terminate Dr. Marple's employment in a regularly-scheduled meeting held on November 14 and 15, 2012. Two weeks later, on November 29, 2012, the Board held another meeting to reconsider its decision. The Board, at Mr. Linger's recommendation, publicly voted to affirm Dr. Marple's termination. Mr. Linger then offered the following statement, which was adopted by the Board:

-West Virginia students rank below the national average in 21 of 24 categories measured by the National Assessment of Education Progress (NAEP).

-As a matter of fact, over the last decade, many of our NAEP scores have slipped instead of improving.

-Education Week's most recent Quality Counts Report gave West Virginia an F in K–12 achievement.

-The Statewide graduation rate is only 78 percent.

-1 in 4 of our high school students in West Virginia do not graduate on time.

....

We are not saying that Superintendent Marple is any more responsible than governors, legislators, educators or board members for these shortcomings.

We are not here to affix blame today....

Some of the issues that caused board members to perceive a change was needed are the following:

1. Many members found no sense of urgency in the department to address some of the issues that have been outlined.

2. When discussing concerns, we often were met with excuses and not actions.

3. Too often we were told how things can't change instead of being offered solutions.

4. When current practices were challenged, we often found people being defensive.

Considering everything just outlined in this statement, I believe we needed a change in direction and in order to do that, we needed a change in leadership.

The Board's statement did not say that negative education statistics in West Virginia were Dr. Marple's fault, nor did it deny that these problems predated her employment. Instead, the Board stated that satisfactory progress had not occurred in public education and that a new superintendent might achieve different results. It is undisputed that Dr. Marple had no opportunity to object to or rebut the Board's statement or her termination.

Dr. Marple sued the Board and Mr. Linger in the circuit court alleging that her due process rights under the West Virginia Constitution were violated.¹ Specifically, she contended that (1) the Board's statement infringed upon her liberty interest in her good name and potential for future government employment, and (2) she had a property interest in continued employment as superintendent. In addition, Dr. Marple asserted claims for breach of contract, defamation, and false light.

The Board and Mr. Linger did not file an answer to the lawsuit. Instead, they filed a motion to dismiss asserting that their immunity barred each of Dr. Marple's claims. The Board argued that it was protected by sovereign immunity under Article VI, Section 35 of the West Virginia Constitution ,² and Mr. Linger contended he was entitled to qualified immunity (the common-law principle protecting discretionary government action). Additionally, the Board claimed qualified immunity at oral argument on the motion and in its proposed order to dismiss.

The circuit court denied the Board's and Mr. Linger's motion to dismiss and held that they were not entitled to assert sovereign immunity under the West Virginia Constitution because they were insured under a state liability insurance policy.³ The circuit court's order failed to discuss whether the Board or Mr. Linger should be dismissed because they have qualified immunity for their discretionary acts.

The Board and Mr. Linger now appeal the circuit court's order denying their motion to dismiss.

II.STANDARD OF REVIEW

The Board and Mr. Linger request that we review the circuit court's denial of its motion to dismiss under West Virginia Rule of Civil Procedure 12(b)(6).⁴ Ordinarily, we do not review the denial of a Rule 12(b)(6) motion because it is not a final order. However, we recognize an exception to this general rule "when the defense is in the nature of an immunity." Hutchison v. City of Huntington, 198 W.Va. 139, 147, 479 S.E.2d 649, 657 (1996). Indeed, the State's entitlement to immunity " is an immunity from suit rather than a mere defense to liability," which is "effectively lost if the case is erroneously permitted to go to trial." Id., 198 W.Va. at 147, 479 S.E.2d at 657 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ).

We have held: "A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the ‘collateral order’ doctrine." Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009). Although this appeal involves the denial of a motion to dismiss, we find that our rationale in Robinson is applicable to this case because "[any] ruling denying the availability of immunity fully resolves the issue of a litigant's obligation to participate in litigation." Id., 223 W.Va. at 832, 679 S.E.2d at 664.

Therefore, we hold that a circuit court's denial of a motion to dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the "collateral order" doctrine.⁵ Accordingly, the fact that the circuit court's order was not a final order does not preclude us from reviewing this appeal.

Having established that this appeal is properly before this Court, we review the circuit court's order denying the motion to dismiss de novo. Syl. Pt. 4, Ewing v. Bd. of Educ. of Cnty. of Summers, 202 W.Va. 228, 503 S.E.2d 541 (1998). "For purposes of the motion to dismiss, the complaint is construed in the light most favorable to plaintiff [Dr. Marple], and its allegations are to be taken as true." John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978). Likewise, dismissal for failure to state a claim is only proper where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations in the complaint. Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).

However, to survive a motion to dismiss, a plaintiff's complaint must "at a minimum ... set forth sufficient information to outline the elements of his claim." Price v. Halstead, 177 W.Va. 592, 594, 355 S.E.2d 380, 383 (1987). Furthermore, "in civil actions where immunities are implicated, the trial court must insist on heightened pleading by the plaintiff." Hutchison, 198 W.Va. at 149, 479 S.E.2d at 659.

III.ANALYSIS

In this appeal, the Board and Mr. Linger argue that the circuit court erred by refusing to dismiss Dr. Marple's complaint. They contend that her suit is barred, as a matter of law, by qualified immunity. Qualified immunity preserves the freedom of the State, its agencies, and its employees to deliberate, act, and carry out their legal responsibilities within the limits of the law and constitution.

As we discuss below, we find that the circuit court was in error and should have dismissed the complaint. The complaint establishes that the actions complained of by Dr. Marple were discretionary judgments within the authority of the Board and Mr. Linger. The Constitution, statutory law, and Dr. Marple's contract with the Board all specify that her employment was at the "will and pleasure" of the Board. Because Dr. Marple has...