Judy v. E. W. Va. Cmty. & Technical Coll.

CourtSupreme Court of West Virginia
Citation874 S.E.2d 285
Docket Number21-0004
Parties Diane Sigismondi JUDY, Plaintiff Below, Petitioner, v. EASTERN WEST VIRGINIA COMMUNITY AND TECHNICAL COLLEGE, Defendant Below, Respondent
Decision Date25 April 2022
Concurring and Dissenting Opinion of Justice Armstead April 26, 2022

Lonnie C. Simmons, DiPiero Simmons McGinley & Bastress, PLLC, Charleston, West Virginia, Counsel for Petitioner.

Evan S. Olds, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Martinsburg, West Virginia, Counsel for Respondent.

Harley O. Staggers Jr, Esq., Keyser, West Virginia, Counsel for Petitioner.

WOOTON, Justice:

From April 2018 to May 2019, Petitioner Diane Sigismondi Judy ("Petitioner") was a commercial driver's license ("CDL") instructor for Respondent Eastern West Virginia Community and Technical College ("Respondent" or "Eastern"). In August 2020, Petitioner filed a complaint against Respondent alleging violations of the West Virginia Human Rights Act ("WVHRA" or "the Act"), West Virginia Code §§ 5-11-1 to - 20 (2018), specifically that Respondent's decision to terminate her employment1 was predicated upon illegal age and sex discrimination. Immediately thereafter, Respondent moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the West Virginia Rules of Civil Procedure, contending that: (1) Petitioner lacked the ability to bring a claim under WVHRA because she was not an "employee" under the Act; (2) Respondent was entitled to qualified immunity as a state agency; and (3) Petitioner failed to allege that but for her protected status she would not have lost her job. Petitioner amended her complaint but made no substantive changes to her claims. After a hearing on the motion to dismiss, the Circuit Court of Hardy County, West Virginia, granted Respondent's 12(b)(6) motion, finding that Respondent was entitled to qualified immunity and that Petitioner had failed to satisfy the heightened pleading standard invoked when immunities are implicated in civil actions. Petitioner appealed that order to this Court.

Because we find that Respondent was not entitled to qualified immunity under the WVHRA, and because we find that Petitioner's complaint sufficiently stated her claims, we reverse and remand for further proceedings.


Respondent retained Petitioner as a CDL instructor on April 20, 2018. In December 2018, Petitioner expressed concerns to Eastern about the lack of bathroom facilities at the training site where she taught her classes, requesting placement of a portable toilet either at the site or on the trailer of the truck she used to train students. Respondent declined to accommodate her request, instead advising Petitioner to return to the main campus of the college for bathroom breaks and to discourage students from relieving themselves elsewhere.

On March 13, 2019, Petitioner stated she received a text message from Respondent, indicating that it was moving the truck she used for training from Hardy County to Tucker County. At this time, Petitioner informed Respondent she still wished to retain her position, even if it meant travelling to Tucker County for work. Though no specific timeframe is alleged, Petitioner averred that male students had made comments that it could be a deterrent for Eastern to have a female CDL instructor teaching male students.

On March 23, 2019, Eastern informed Petitioner that she would no longer be teaching the CDL course and that it intended to sever her contract at the close of the current semester. Eastern also informed Petitioner that it had hired a replacement, an allegedly younger male instructor with less driving experience than Petitioner. Petitioner contended that Eastern never posted a job opening for the position on its website, nor was she given an opportunity to reapply for the position. She also asserts that she was not given a reason for her replacement. Ultimately, on April 17, 2019, Petitioner asked Eastern to reconsider its decision to replace her, but to no avail.

Thereafter, on August 18, 2020, Petitioner filed a complaint against Eastern alleging two violations of the WVHRA. In her first count, she asserted that Respondent "was motivated, in part, to discriminate against her in violation of West Virginia Code § 5-11-9 because she was a female." In support, she alleged that Eastern hired a nonmember of her protected class — a male — to replace her, and that "[a]s a direct result of [Respondent's] unlawful conduct, [she] has suffered and will continue to suffer economic harm, lost wages, loss of employment opportunities, emotional distress, embarrassment and humiliation which entitle [her] to damages[.]" Her second count also alleged a violation of § 5-11-9, but was predicated on age discrimination as she contended that her replacement was significantly younger.

Respondent filed a motion to dismiss the complaint, with prejudice, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. In support of this motion, Respondent contended that Petitioner could not bring a claim under the WVHRA because Petitioner's work with respondent "was governed by a series of Agreements for Professional Services,"2 thus rendering her an independent contractor rather than an employee of Respondent. Further, Respondent contended that it was not unlawful to sever contractional relations with Petitioner, so its decision in that regard was not an "adverse decision" under the Act.

Respondent next argued that it was entitled to qualified immunity because it is a state agency. In support of this argument, Respondent contended that Petitioner had failed to demonstrate that Respondent's decision to stop contracting with her was a discretionary function or that such decision was in violation of clearly established statutory or constitutional rights or laws or was otherwise fraudulent, malicious, or oppressive. Finally, Respondent argued that, even if Petitioner established the foregoing, her complaint still did not amount to an actionable claim under the WVHRA because she did not plead facts that showed, but for her protected status, the decision to replace her would not have been made.

After Respondent filed its motion to dismiss, Petitioner moved to amend her complaint and the circuit court granted that motion. Petitioner's amended complaint did not make any substantive changes other than to add that the recovery she sought was "limited to the applicable insurance coverage and the scope of the coverage and its exceptions." At the same time, Petitioner also opposed the motion to dismiss, alleging that she had established a prima facie case of age and sex discrimination under the WVHRA.

The circuit court, by order dated December 7, 2020, granted Respondent's motion to dismiss. In so doing, the circuit court concluded that Respondent was entitled to qualified immunity. In reaching this conclusion, the court determined that Respondent's decision not to contract with Petitioner was a discretionary function. The court further determined that although the WVHRA was a clearly established statutory law, Petitioner failed to demonstrate that Respondent had violated that law insofar as Petitioner failed to show an inference of discrimination. Finally, the circuit court found that Petitioner failed to establish that Respondent's actions were fraudulent, malicious, or oppressive. Petitioner now appeals that order to this Court.


This Court has held that "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo. " Syl. Pt. 1, Boone v. Activate Healthcare, LLC , 245 W. Va. 476, 859 S.E.2d 419 (2021) (citing Syl. Pt. 1, Barber v. Camden Clark Mem'l Hosp. Corp. , 240 W. Va. 663, 815 S.E.2d 474 (2018) ). We have further held that "[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 [her] claim which would entitled [her] to relief." Boone , 245 W. Va. at ––––, 859 S.E.2d at 420, syl. pt. 2 (citing Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc. , 160 W. Va. 530, 236 S.E.2d 207 (1977) ). In this regard, we have stated that courts must construe "the factual allegations in the light most favorable to the plaintiff[ ]." Murphy v. Smallridge , 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996). With these standards in mind, we proceed to address the parties’ arguments.


Petitioner raises two assignments of error on appeal, asking: (1) whether losing a job constitutes an "adverse employment decision"; and (2) whether Petitioner's allegations that Respondent was motivated by her protected status to deny her the opportunity to reapply for her position sufficiently alleged a violation of the WVHRA. We find that resolution of this matter more appropriately hinges upon a simpler question: did Petitioner's complaint plead sufficient facts to survive a Rule 12(b)(6) motion to dismiss? To answer that question, we must determine whether the alleged immunities in this matter warrant the application of the heightened pleading standard this Court discussed in Hutchison v. City of Huntington , 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996), and whether Petitioner established a prima facie case of employment discrimination under the WVHRA.

Before delving into the specifics of Petitioner's complaint, we find it beneficial to set out a brief overview of this Court's Rule 12(b)(6) jurisprudence. First, Rule 8 of the West Virginia Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Generally, we have explained that, to survive a motion to dismiss, "a pleading need only outline the alleged occurrence which (if later proven to be a recognized legal or equitable claim), would justify some form of relief." Mountaineer...

To continue reading

Request your trial
2 cases
  • W.Va. Div. of Corr. & Rehab. v. Robbins
    • United States
    • West Virginia Supreme Court
    • 9 Junio 2023
    ... ... Civ. P. 9(b) ... [ 11 ] Id ... at 8(f) ... [ 12 ] Judy v. E. W.Va. Cmty. & ... Tech. Coll. , 246 W.Va. 483, 487, 874 S.E.2d ... ...
  • Trivett v. Summers Cnty. Comm'n
    • United States
    • West Virginia Supreme Court
    • 8 Noviembre 2023
    ...240 W.Va. 663, 815 S.E.2d 474 (2018).' Syl. Pt. 1, Boone v. Activate Healthcare, LLC, 245 W.Va. 476, 859 S.E.2d 419 (2021)." 246 W.Va. at 484, 874 S.E.2d at 286, Syl. Pt. 1. With standards in mind, we turn to the parties' arguments. III. Discussion The petitioner has consistently alleged th......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT