C. D. v. Grant Cnty. Bd. of Educ.

• Decision Date: 20 October 2017
• Docket Number: No. 16-1035,16-1035
• Court: West Virginia Supreme Court
• Parties: C. D., Plaintiff Below, Petitioner v. Grant County Board of Education, Defendant Below, Respondent

C. D., Plaintiff Below, Petitioner v. Grant County Board of Education, Defendant Below, Respondent

No. 16-1035

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

October 20, 2017

(Grant County 15-C-25)

MEMORANDUM DECISION

Petitioner C.D.¹, by counsel Jared T. Moore, appeals the order of the Circuit Court of Grant County that granted summary judgment in favor of the Grant County Board of Education ("the Board"). The Board, by counsel Ancil G. Ramey, filed a response to which petitioner filed a reply brief.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

At all times relevant herein, petitioner was a senior at Petersburg High School. She suffers from diabetes, and her illness requires her to wear an insulin pump in order to check her blood sugar levels frequently. Because of her condition, the Board agreed to excuse any absences related to her illness, pursuant to a 504 plan.² According to petitioner's 504 plan, petitioner would not be penalized for absences required for medical appointments/illness. During the 2014-2015 school year, petitioner's 504 team met to discuss her condition at the beginning of the school year, but did not meet again.

In the fall semester of 2014, petitioner missed several days of school. In December of2014, Assistant Principal Paula Weese, called petitioner's father to tell him that petitioner had accumulated more than five absences. A notice was also sent to petitioner, who was not living with her parents, but with a boyfriend, that informed her of the accumulation of five unexcused absences, and that a truancy complaint would be filed if she continued to be absent without an excuse. Petitioner also met with Ms. Weese regarding her absences³ in December of 2014.

According to petitioner, during that meeting she provided written excuses for all of her absences, and was informed that the Board knew about her condition, and that she did not have to worry about a truancy complaint. Petitioner also asserts that Ms. Weese told her during the meeting that "due to Ms. D. being on a 504 plan, the [Board] would contact Ms. D. or her father before truancy was considered." The Board denies that petitioner provided an excuse for all of her absences, and asserts that the excuses were not provided until January of 2015. The Board also asserts that some of the excuses were due to a "job interview," "transportation problems," and "back pain."

In the spring semester of 2015, petitioner accumulated fourteen additional unexcused absences. A truancy complaint was filed on April 9, 2015. The Board did not send petitioner an additional notice, or make additional attempts to contact petitioner or her father prior to filing the complaint. Petitioner was arraigned on the truancy complaint on April 15, 2015. On May 12, 2015, petitioner's father sent a letter to the Board identifying the dates that petitioner was absent due to her diabetes. Subsequently, the truancy complaint was dismissed.

Petitioner filed suit against the Board on July 17, 2015, asserting claims for failure to accommodate pursuant to the West Virginia Human Rights Act; malicious prosecution; and reckless infliction of emotional distress. The Board filed an answer and a motion for summary judgment. Petitioner also filed a motion for summary judgment. At a hearing held September 19, 2016, the circuit court granted the Board's motion for summary judgment as to all three claims in the complaint, stating as follows:

The problem that this whole thing led to was the process was explained, and your clients didn't follow it. The only thing that's undisputed and unrebutted is she didn't bring in the notes when she needed to, as she was told and instructed to do.

There was probable cause to file this. I've been a prosecutor for twenty years. I've dealt with truancy out the ying-yang [sic]. There was probable cause to file this. There was no malice. There may have been negligence by not sending the letter; but the intentional infliction or intentional malice, I don't believe that.

I wanted to dismiss this months ago, but we let it play itself out. But this case, the only thing that was outrageous to me is we've been here dealing with this.

The circuit court entered its order granting summary judgment to the Board on October 6, 2016. In its order, the circuit court found that the Board complied with the West Virginia Legislative rules concerning attendance and the West Virginia Code. Regarding petitioner'smalicious prosecution claim, the circuit court found that petitioner presented no evidence to prove the essential elements of malice or lack of probable cause. Regarding petitioner's accommodation claim, the circuit court found that petitioner was not exempt from the policies of the school handbook, which required her to submit a written note for each absence, and that the failure to provide the notes, and her absences led to the filing of the truancy complaint. The circuit court likewise found that petitioner could not prevail on the reckless infliction of emotional distress claim, finding that the "initiation of a truancy proceeding was not extreme and outrageous conduct." Petitioner now appeals the October 6, 2016, order, and asks this Court to reverse the circuit court's decision.

On appeal petitioner argues that the circuit court erred in failing to recuse himself due to bias, and in granting summary judgment on petitioner's failure to accommodate, malicious prosecution, and reckless infliction of emotional distress claims.

This Court reviews a circuit court's entry of summary judgment de novo. See Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). "'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)." Syl. Pt. 1, Carr v. Michael Motors, Inc., 210 W. Va. 240, 557 S.E.2d 294 (2001). We note that "[t]he circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syl. Pt. 3, Painter. Mindful of these principles, we address the issues raised by petitioner appeal.

Petitioner first complains that the circuit court judge should have recused himself because of bias. Petitioner asserts that the circuit court's statements regarding his tenure as a prosecutor, that he "never bought" petitioner's claim for reckless infliction of emotional distress, and that he wanted to dismiss petitioner's case "months ago," are direct evidence that the circuit court improperly relied upon personal experience to form an opinion in this case. In response, the Board notes that petitioner did not file a Motion for Disqualification, nor did he raise the issue of bias prior to the instant appeal. As a result, the Board argues, petitioner waived the right to raise this argument. In her reply, petitioner asserts that she noticed the argument in her Notice of Appeal to this Court, and argues that even if she failed to make the appropriate motion below, that the circuit court committed plain error in failing to recuse itself.

We disagree with petitioner and find that petitioner failed to preserve this issue for appeal. We have repeatedly held that "[e]rrors assigned for the first time on appeal will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court, had objection been raised there." Syl. Pt. 1, State v. Berry, 227 W. Va. 221, 707 S.E.2d 831 (2011). Petitioner fails to provide a citation to the record where, either in writing or in oral presentation, she raised the issue of disqualification with the circuit court. Therefore, she has waived her right to raise this argument for the first time on appeal.

Further, we hold that the circuit court's failure to disqualify itself from this matter does not constitute plain error. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,integrity, or public reputation of the judicial proceedings." Syl. Pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). The comments of the circuit court merely illustrate the circuit court's opinion of the merits of petitioner's case, and, while the circuit court commented that it desired to dismiss the matter "months ago," there is no evidence that it did not carefully consider the evidence and motions before him in making this decision, or that it was so biased that the decision of the court "affects substantial rights, and the fairness, integrity and public reputation of the proceeding." Petitioner fails to establish that bias existed such that it affected her substantial rights. To the contrary, despite the circuit court's opinion that the matter was likely frivolous, the circuit...