Burke v. Wetzel Cnty. Comm'n

Decision Date06 June 2018
Docket NumberNo. 17-0485,17-0485
Citation815 S.E.2d 520
CourtWest Virginia Supreme Court
Parties Eric BURKE, Plaintiff Below, Petitioner v. WETZEL COUNTY COMMISSION and Scott Lemley, Individually and as Wetzel County Assessor, Defendants Below, Respondent

Jeffrey A. Holmstrand, Esq., Jeffrey A. Grove, Esq., Grove, Holmstrand & Delk, PLLC, Wheeling, West Virginia, Counsel for the Petitioner

Karen T. McElhinny, Esq., Roberta F. Green, Esq., Caleb B. David, Esq., Shuman, McCuskey & Slicer, PLLC, Charleston, West Virginia, Counsel for the Respondents

WALKER, Justice:

In 2016, Eric Burke was terminated from his employment as a Field Appraisal Supervisor in the office of the Wetzel County Assessor. He then filed a lawsuit against the Wetzel County Commission and Scott Lemley, the Wetzel County Assessor, claiming wrongful discharge in violation of public policy and violation of the West Virginia Human Rights Act, Family Medical Leave Act and West Virginia Whistle-blower Law, among other things. Finding that Mr. Lemley was entitled to qualified immunity and that all of Mr. Burke’s claims lacked merit based entirely on the amended complaint, the circuit court dismissed the case pursuant to Rule 12(b)(6). Construing the amended complaint in the light most favorable to Mr. Burke, we reverse and remand to the circuit court to allow for discovery and further proceedings.


Mr. Burke began his employment in the Wetzel County Assessor’s office in February 2013 and subsequently took the position of Field Appraisal Supervisor in January 2014.1 Mr. Burke alleges that during the course of his employment he suffered from a back condition of which Mr. Lemley was aware, and that at times it was disabling because it substantially limited his daily life activities, and required various types of treatment, including rest and pain medication. In March of 2015, Mr. Burke applied for leave from work under the Family Medical Leave Act (FMLA)2 for back surgery in April of 2015. Mr. Burke asserts that on March 31, 2015, Mr. Lemley raised an issue with the medication Mr. Burke was taking and stated that he needed a release from a physician to return to work either before or after his FMLA leave. The amended complaint states that Mr. Burke "attempted to return to work prior to taking his FMLA as he was off work sick due to bronchitis and was required to provide a full medical release to Mr. Lemley to allow unfettered access to his medical records to which [he] objected." Mr. Burke further alleges that "Mr. Lemley confiscated [Mr. Burke’s] keys to [the] courthouse, electronic key fob, and his state ID and demanded that [Mr. Burke] leave the premises."

Mr. Burke alleges that on August 12, 2015, following his surgery and leave, he provided Mr. Lemley with a medical authorization clearing him to return to full unrestricted work duties, but Mr. Lemley refused to accept the medical authorization and instead demanded a release from another physician and a list of all of his medications. Mr. Burke further alleges that Mr. Lemley (1) demanded that Mr. Burke undergo drug testing, although he admitted he had no reason to believe that Mr. Burke was using illegal drugs; (2) had co-employees hand deliver correspondence to Mr. Burke’s home concerning the assessor’s compliance with the Federal Drug Free Workplace Act; (3) failed to return Mr. Burke to his pre-leave duties; (4) made various demeaning comments regarding Mr. Burke in the presence of other employees; (5) restricted Mr. Burke’s use of a county vehicle though Mr. Burke was under no medical driving restriction; and (6) imposed an unfounded suspension on September 11, 2015 for failing to sign a discipline statement, for which Mr. Burke was not compensated.

Mr. Burke asserts that he reported the alleged harassment to the Commission "per policy of the Assessor’s Office" in September of 2015, and that he filed to run against Mr. Lemley for county assessor in November of 2015. Mr. Burke alleges that he was subjected to increased harassment and discrimination by Mr. Lemley following his filing. Mr. Lemley was re-elected in May of 2016. Mr. Lemley informed Mr. Burke on July 11, 2016, that his employment was terminated for a poor performance evaluation conducted a month prior.3

On September 29, 2016, Mr. Burke filed a complaint against the Commission and Mr. Lemley, in his capacity as county assessor, asserting that, following Mr. Burke’s extended medical leave and decision to challenge Mr. Lemley for the office of county assessor, Respondents: (1) created a hostile work environment and discharged him in a retaliatory fashion; (2) violated his state and federal constitutional rights to run for public office; (3) unlawfully discharged him in violation of the FMLA and West Virginia Human Rights Act (Human Rights Act)4 ; and (4) violated the West Virginia Whistle-blower Law.5 On October 31, 2016, Mr. Lemley and the Commission filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Respondents argued that that the Commission was not Mr. Burke’s employer; that the facts set forth in Mr. Burke’s complaint showed that Mr. Lemley made reasonable accommodation for Mr. Burke’s medical needs; and that with respect to Mr. Burke’s constitutional claims, neither Mr. Lemley nor the Commission were state actors. Mr. Lemley also asserted that he is entitled to qualified immunity. On November 28, 2016, Mr. Burke filed an amended complaint that added an additional claim against Mr. Lemley in his individual capacity.

Following a hearing, the circuit court granted the motion to dismiss by order entered on May 1, 2017. Although there had been no discovery in the case, it found that (1) according to West Virginia Code § 29-12A-3(3), the "State" does not include political subdivisions and its employees are thus not afforded due process of law, and Respondents thus were incapable of violating Mr. Burke’s constitutional right to run for office; (2) the Commission could not be liable under the theory of respondeat superior because it has no control over Mr. Lemley, who answers to his electorate constituency, and who is granted the power by West Virginia Code § 7-7-7(b) to discharge his assistants; (3) Mr. Burke set forth no facts in his complaint stating a claim for violation of the Human Rights Act because he acknowledged that his employer granted him the accommodation he requested; and (4) Mr. Burke did not assert that he made a report of public interest, but only that he reported his own personal harassment, and he is thus not a whistleblower. The circuit court also concluded that Mr. Lemley is entitled to qualified immunity because he acted in his official capacity and did not violate any clearly established law of which a reasonable official would have known.

It is from that order that Mr. Burke now appeals.


This Court has long held that our "[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo."6 "The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint. A trial court considering a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do substantial justice."7 "Since the preference is to decide cases on their merits, courts presented with a motion to dismiss for failure to state a claim construe the complaint in the light most favorable to the plaintiff, taking all allegations as true."8 Therefore, "[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."9

Furthermore, with respect to the issue of qualified immunity presented in this case,

[t]he ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.[10 ]

With these standards in mind, we review the circuit court’s decision to dismiss Mr. Burke’s amended complaint.

A. Joint Employment Relationship

Mr. Burke first argues that he alleged sufficient facts to demonstrate that Mr. Lemley and the Commission were his joint employers and that these allegations were sufficient to overcome dismissal of the Commission as a party. He argues that two West Virginia statutesWest Virginia Code § 7-7-7(a)11 and § 11-1C-8(a)12 —potentially apply to individuals employed in county assessor offices and that this Court has determined that county employees hired under the former are joint employees of the elected official and the county commission.13 Mr. Burke contends that he was hired pursuant to West Virginia Code § 7-7-7(a) and at a minimum, the question of which statute Mr. Burke was hired under is a factual question that could not be resolved at the pleading stage.14 He also alleges that the Commission was listed as the "employer" on his federal W-2 form, and that Respondents do not deny this allegation.

This Court has previously held that employees hired pursuant to West Virginia Code § 7-7-7(a) are joint employees of the county commission and elected county officials.15 Applying this statute in Fury v. County Court of Wood County,16 the United States District Court for the Southern District of West Virginia expressed that:

The resolution of Defendantsmotions to dismiss turns upon the issue of whether the County Commission is the Plaintiff’s employer or whether Plaintiffs are employed by the elected county officials in whose offices they work. The statute controlling this issue, W. Va. Code , § 7-7-7, makes it clear that as a

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