Keener v. Clay County Development Corporation
| Decision Date | 03 November 2022 |
| Docket Number | 21-0267 |
| Citation | 880 S.E.2d 63 |
| Parties | Wanda KEENER and Katherine Asbury, Plaintiffs Below, Petitioners, v. CLAY COUNTY DEVELOPMENT CORPORATION, Defendant Below, Respondent. |
| Court | West Virginia Supreme Court |
Walt Auvil, Esq., Kirk Auvil, Esq., The Employment Law Center, PLLC, Parkersburg, West Virginia, Counsel for Petitioners
M. Andrew Brison, Esq., The Law Office of M. Andrew Brison, PLLC, Charleston, West Virginia, Counsel for Respondent
The petitioners, Wanda Keener ("petitioner Keener") and Katherine Asbury ("petitioner Asbury"), appeal the order entered by the Circuit Court of Clay County, West Virginia, on March 5, 2021, granting summary judgment to respondent Clay County Development Corporation ("CCDC") in regard to petitioners’ claims of discrimination in violation of the West Virginia Human Rights Act ("the Act"), West Virginia Code §§ 5-11-2 and - 9 (2022), and breach of an implied employment contract. The petitioners argue that the circuit court erred: 1) in its findings that ancestral discrimination is duplicative of the Act's protections against national origin and ethnic discrimination and that ancestral discrimination does not include discrimination based on familial status; 2) in its findings that the "Clay County Development Corporation Employment Guide" ("the Employment Guide") did not form an implied contract between the petitioners and the CCDC, and that the CCDC was within its rights to terminate petitioners pursuant to other terms of the handbook even if it had formed a contract; and 3) in its finding that the petitioners were at-will employees who could be terminated for any nondiscriminatory reason. Upon our careful review of the briefs, the parties’ arguments, the appendix record, the applicable law, and all other matters before the Court, we affirm the circuit court's decision.
The CCDC is a nonprofit organization that provides services to senior citizens in Clay County, including in-home and community-based services, through federal and state monies, Medicaid, and various grants. Petitioner Keener worked for the CCDC for thirty years in several positions but spent the last twenty years as a filing clerk. Petitioner Asbury, petitioner Keener's sister, worked for the CCDC for forty years and had the title "3B Project Director." The petitioners were also the sisters of Pamela Taylor, the CCDC's former Executive Director. Ms. Taylor was initially suspended and ultimately terminated from her employment with the CCDC after she made the following post on Facebook in November of 2016, which gained national attention:
According to Ms. McGlothlin, during the course of the investigation and audit a significant debt of approximately $250,000.00 was discovered in the CCDC's budget. This debt was comprised of unpaid payroll taxes with associated penalties and interest, Medicaid reimbursements due to overpayment to the CCDC, and various outstanding bank loans. Further, it was discovered that during 2016, the CCDC received several "Notice of Intent to Seize (‘levy’) Property or Rights Property" from the Internal Revenue Service ("IRS") related to the CCDC's failure to pay payroll taxes. In addition to this debt, the CCDC had an ongoing semi-monthly payroll obligation of approximately $60,000 to $75,000. At the end of 2016, there was only $33,221.96 in the organization's checking account.2
Ms. McGlothlin further averred that during the Bureau's and AAA's involvement with the CCDC, "there was emphasis on aggressively reducing the CCDC's debt and addressing the various outstanding IRS payments, penalties, and interest, as well as repaying the State of West Virginia for previous Medicaid overpayments made to the CCDC." Further, based on information from West Virginia Bureau of Senior Services Commissioner Roswall, she stated that the CCDC's contracts were in jeopardy - which cast doubt on the continuing viability of the organization. Finally, Ms. McGlothlin averred that in 2016, the petitioners
On December 21, 2016, the CCDC Board of Directors ("Board") met and voted to execute a contract with AAA to manage the organization for a six-month period. Further, the Board voted to approve the "involuntary separation of both" of the petitioners, the two highest paid employees, from employment with the CCDC. The petitioners were terminated on December 22, 2016. Ms. McGlothlin stated that on the date of discharge, most of petitioner Asbury's "job responsibilities were being performed by other employees." Indeed, both of the petitioners’ respective job duties were absorbed by the remaining employees and their positions were never filled.
Critically, the information provided by Ms. McGlothlin in her affidavit was confirmed by the CCDC's corporate representative (and then-current Executive Director, Stephanie Duffield) in a 30(b)(6) deposition taken by the petitioners. See W. Va. R. Civ. P. 30(b)(6).
With specific regard to the petitioners’ termination, the CCDC had a policy and procedure manual, the Employment Guide, in effect at the time of the events which gave rise to the subject of this litigation.3 There is an introduction on the third page of the Employment Guide directed "To the Employee: " which conveys that this document "is designed to provide information and direction on personnel matters and to assure fair and equal treatment to all CCDC employees." At the bottom of this page – a page that contains seventy-six words in total – is the following language: "Note-Receipt of this Employment Manual does not constitute an employment contract with this agency ." Also, in the section of the Employment Guide entitled "USE OF THE MANUAL," the following language is found: "[T]he manual should be used as a guide in dealing with agency personnel matters." Significantly, there is no term of employment set out in the manual.
The Employment Guide also provides for two classifications of involuntary termination. The first is "Positive Dismissal," which is defined as a termination "based on circumstances beyond the employee's control." The second is "Negative Dismissal," which is based upon behavior that is controlled by the employee. The applicable causes for an involuntary termination which are relevant to this case are also set forth in the Employment Guide as follows:
The CCDC contends that the petitioners were involuntarily terminated under the "Positive Termination" category because their termination arose out of circumstances beyond their control, i.e., the CCDC's financial situation. Thus, the petitioners were terminated pursuant to the "Insufficient Funding and Reorganization and Discontinuance of a Particular Position or Area of Service" sections of the "Positive Dismissal" section in the Employment Guide. The petitioners’ positions were dissolved, their work duties were easily absorbed by others, and the dissolution of these positions resulted in a savings to the non-profit organization in excess of $115,000.00 per year.
Following their termination, the petitioners filed a lawsuit against the CCDC, alleging violations of the Act, West Virginia Code §§ 5-11-2 and - 9, and breach of an implied employment contract. After a period of discovery, the CCDC moved for summary judgment.4 The CCDC argued that the petitioners were not discriminated against based on their ancestry or national origin or any membership in a protected class. In this regard, both the petitioners testified in their respective depositions that their ancestors were from America and pe...
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