Armstrong v. W. Va. Div. of Culture & History

• Citation: 729 S.E.2d 860,229 W.Va. 538
• Decision Date: 18 June 2012
• Docket Number: No. 11–0698.,11–0698.
• Parties: Fredrick ARMSTRONG, Petitioner Below, Petitioner v. WEST VIRGINIA DIVISION OF CULTURE AND HISTORY, Respondent Below, Respondent.
• Court: West Virginia Supreme Court

229 W.Va. 538

729 S.E.2d 860

Fredrick ARMSTRONG, Petitioner Below, Petitioner

v.WEST VIRGINIA DIVISION OF CULTURE AND HISTORY, Respondent Below, Respondent.

No. 11–0698.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 7, 2012.

Decided June 18, 2012.

Syllabus by the Court

1. “When reviewing the appeal of a public employees grievance, this Court reviews decisions of the circuit court under the same standard as that by which the circuit court reviews the decision of the administrative law judge.” Syl. pt. 1, Martin v. Barbour Cnty. Bd. of Educ., 228 W.Va. 238, 719 S.E.2d 406 (2011).

2. “Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.” Syl. pt. 1, Cahill v. Mercer Cnty. Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).

3. “A final order of the hearing examiner for the West Virginia [Public] Employees Grievance Board, made pursuant to W. Va.Code, [6C–2–1], et seq. [ ], and based upon findings of fact, should not be reversed unless clearly wrong.” Syl. pt. 1, Randolph Cnty. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).

4. “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 dischargeis to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.” Syl., Harless v. First Nat'l Bank of Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).

5. “To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. pt. 2, Birthisel v. Tri–Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).

James B. Lees, Jr., Esq., Hunt & Lees, L.C., Charleston, WV, for Petitioner.

Billie Jo Streyle, Esq., Bailey and Wyant, PLLC, Charleston, WV, for Respondent.

PER CURIAM:

The petitioner, Fredrick Armstrong, appeals from the December 23, 2010, order of the Circuit Court of Kanawha County, West Virginia, affirming the February 15, 2008, order of the West Virginia Public Employees Grievance Board (“the Board”) dismissing the grievance filed by the petitioner. We find no error in the circuit court's order and affirm the same.

I.FACTUAL AND PROCEDURAL HISTORY

The petitioner, Fredrick Armstrong, held the position of director of Archives and History for the West Virginia Division of Culture and History (“the Division”) since 1985.¹ It is uncontested that his position was that of an at will employee, as opposed to an employee in the classified service of the state. On November 16, 2007,² the petitioner was terminated from his employment by Randall Reid–Smith, the Commissioner of the Division (“the Commissioner.”). No reason was given to the petitioner for his termination at the time of his being fired.³ The Commissioner reports directly to the Cabinet Secretary of the West Virginia Department of Education and the Arts, Kay Goodwin. The firing took place at the beginning of the workday, and the petitioner was escorted from his office at the Culture Center by a security officer.

On the same day as his firing, the petitioner filed a grievance before the Public Employees Grievance Board prepared by him against the Division, alleging that his dismissal was improper under West Virginia law. The petitioner requested reinstatement to his position, an apology and acknowledgment for his past work. The grievance filed by the petitioner stated as follows:

My job performance in carrying out the requirements of my professional position as archivist and historian as stated in WV Code, 29–1–6 and answerable to the WV Archives and History Commissioner 29–1–5, have been contradicted by the Secretary of Education and the Arts and her Staff and the Commissioner of Culture and History. Her, and their actions and orders have placed my performance and compliance under the code to be outside its mandate. These actions and orders, when questioned or legal advice south on my part to insure that I remained true under code have then been held against me, leading to unfair and untruthful accusations and finally in termination.

On January 7, 2009, the Division filed a motion to dismiss, arguing that the grievance failed to state a claim under which relief could be granted. In response to that motion,the petitioner, now represented by counsel, filed an amended grievance on January 22, 2008, alleging that the termination was in violation of public policy. The four-page amended grievance alleged that the petitioner was terminated for his failure to comply with the directives of Secretary Goodwin to transfer materials for the West Virginia History Journal from Archives and History to the West Virginia University Press in a timely manner. The petitioner alleged that he believed the transfer of the responsibilities for publishing the yearly history to the West Virginia University Press was in violation of statute.⁴ The petitioner alleged that he was reprimanded on April 10, 2006, for insubordination, but that his so-called insubordination was trying to comply with the law. He alleged that his dispute with his superiors, as well as the written reprimand, played a direct role in his termination.

The amended grievance further alleged that the petitioner was terminated because of his objection to merging the State Library with Archives and History to create room for a restaurant in the Culture Center ⁵ and also because he voiced concerns over the placement of three historical markers in Wayne County.⁶ The petitioner alleged that his “attempt to adhere to the published rules and regulations of the placement of historical markers along West Virginia highways” played a direct role in his termination.

On February 15, 2008, Chief Administrative Law Judge Janis I. Reynolds (“ALJ Reynolds”) denied the motion to dismiss filed by the Division, stating the amended grievance was sufficient to raise the possibility of a substantial policy issue. Her order stated, inter alia, that “[t]he issues asserted in Grievant's amended grievance ... meet[ ] the requirements identified in Wilhelm [ v. West Virginia Lottery, 198 W.Va. 92, 479 S.E.2d 602 (1996) ].” This order effectively denied the Division's motion to dismiss and authorized the filing of an amended grievance.

A hearing on the grievance was originally set for February 25, 2008, but was continued so that the depositions of the petitioner and of certain witnesses could be taken. The parties engaged in discovery, including the taking of the depositions on March 21, 2008, of Secretary Goodwin and the Commissioner. The hearing was rescheduled for April 16, 2008. In the meantime, ALJ Reynolds retired, and the case was assigned to Administrative Law Judge Denise Spatafore (“ALJ Spatafore”) on March 16, 2008. The hearing was rescheduled for June 12, 2008, for administrative reasons by ALJ Spatafore.

On April 29, 2008, the Division filed a renewed motion to dismiss the amended grievance because the amended grievance failed to state a claim upon which relief could be granted. The motion pled an alternative grounds for dismissal, along the lines of a motion for summary judgment, by alleging that the petitioner, being an at will employee, had failed to plead any substantial public policy that was violated as a result of his termination. The Division quoted extensively from the petitioner's testimony at deposition, which was evidence that was not available to ALJ Reynolds at the time that she denied the Division's first motion to dismiss.

The Division's motion to dismiss was based upon 156 C.S.R. 1 § 6.11 (2007), which states as follows: “6.11. Failure to State a Claim—A grievance may be dismissed, in the discretionof the administrative law judge, if no claim on which relief can be granted is stated or a remedy wholly unavailable to the grievant is requested.” Alternatively, the Division argued that it was entitled to summary judgment because the testimony of the petitioner in depositions demonstrated that there was no claim upon which relief could be granted, or, in the alternative, that there was no issue of material fact because the petitioner was an at will employee who failed to plead any substantial public policy was violated as a result of his termination.

On June 17, 2008, ALJ Spatafore issued a twelve-page order, dismissing the amended grievance filed by the petitioner. She addressed the issue of whether the decision by former ALJ Reynolds was res judicata on the issue of dismissal. The order concluded that because there had been no adjudication of the merits of the petitioner's claim in the earlier order entered by ALJ Reynolds the doctrine of res judicata was inapplicable. ALJ Reynolds' order merely stated that the petitioner had raised the “possibility” of a substantial public policy issue, not a final ruling that the petitioner had in fact alleged a substantial public policy issue that would, if proved, prevent him from being terminated. As such, ALJ Spatafore concluded that she was not barred from ruling on the issue.

ALJ Spatafore's order found that the petitioner was terminated from his position as director of the state Archives and History, an at will position appointed by the Commissioner, with the advice and consent to the West Virginia Archives and History Commission. No reason was given for this termination.

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