Taylor v. W.Va. Dep't of Health & Human Res.
| Decision Date | 14 April 2016 |
| Docket Number | No. 14–0679.,14–0679. |
| Citation | 237 W.Va. 549,788 S.E.2d 295 |
| Parties | Jennifer N. TAYLOR and Susan S. Perry, Petitioners/Plaintiffs Below v. The WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Rocco Fucillo, and Warren Keefer, Respondents/Defendants Below. |
| Court | West Virginia Supreme Court |
Barbara H. Allen, Esq., Pittsburgh, PA, Michele Rusen, Esq., Walt Auvil, Esq., Rusen and Auvil, PLLC, Parkersburg, WV, Attorneys for Petitioners.
Charles R. Bailey, Esq., Betsy L. Stewart, Esq., Bailey & Wyant, PLLC, Charleston, WV, Attorneys for Respondents.
WORKMAN
, Justice:
This is an appeal from the Circuit Court of Kanawha County's May 16, 2014, and June 13, 2014, orders granting summary judgment in favor of respondents West Virginia Department of Health and Human Resources (hereinafter “DHHR”), Rocco Fucillo, and Warren Keefer (hereinafter collectively “respondents”) on each of petitioners Jennifer N. Taylor and Susan S. Perry's claims surrounding their discharge from employment with DHHR. The circuit court ostensibly found, in sum, that petitioners failed to create a genuine issue of material fact surrounding their claims and respondents were likewise entitled to qualified immunity on all such claims.1
Based upon our review of the briefs, legal authorities, appendix record, and upon consideration of arguments of counsel, we affirm the circuit court's grant of summary judgment as to petitioners' retaliatory discharge, gender discrimination claims pursuant to the Human Rights Act, and false light invasion of privacy claims. However, the Court finds that the circuit court erred in granting summary judgment on petitioners' whistle-blower claims and we therefore reverse and remand to the circuit court for further proceedings as to those claims.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background
Petitioners Susan S. Perry and Jennifer N. Taylor are the former Deputy Secretary for Legal Services and General Counsel of DHHR, respectively. This case centers around their involvement, in the course of their employment, with a Request for Proposal (hereinafter “RFP”) soliciting bids for a contract to provide advertising services to DHHR. Petitioners allege, in addition to claims of gender discrimination and invasion of privacy, that they were discharged from their employment for discovering and alerting others to what they purportedly believed to be errors or irregularities with the procurement process.
In 2011, the subject RFP was issued by the Purchasing Division of the West Virginia Department of Administration (hereinafter “Purchasing”). The statutory RFP process for State contracts provides for a system of competitive bidding whereby bidders submit both a “technical” and “cost” proposal: the technical proposal describes the services proposed and the cost proposal contains the cost of the services proposed.2 The technical proposals are first evaluated by a scoring committee, which provides scores for each submission to the Purchasing Division; upon approval by Purchasing, the cost proposals are then opened and scored by the committee, yielding a total score upon which the recommendation for award of the contract is based. Once technical scores are approved by Purchasing and cost bids are opened, the technical scores cannot be changed. Critically, West Virginia Code § 5A–3–28
through – 31
criminalizes certain conduct with respect to purchasing or supplying of services pursuant to the procurement statutes.
On or about May 1, 2012, John Law, Assistant Secretary, Office of Communications and Legislative Affairs for DHHR, advised petitioner Perry that he had concerns about the technical scoring of the RFP.3 Petitioner Perry then requested petitioner Taylor to perform a “legal review” of the technical scoring.4 Petitioner Taylor reported to petitioner Perry that her review revealed that the scoring was “the very definition of arbitrary and capricious.”5 However, at the time petitioner Taylor's undertook her review, the technical scores had been approved by Purchasing and the cost bids opened. Neither petitioner inquired as to the status of the RFP bid openings before undertaking the review and there appears to be considerable debate about whether and when petitioners knew or should have known that the cost bids had been opened, precluding revision of the technical scores.
Upon learning of the legal review, respondent Warren Keefer, Deputy Secretary for Administration of DHHR, took the position and advised petitioner Perry that the legal review was inappropriate and “could readily be perceived as bid fixing or some other attempt to alter [the] outcome” of the RFP. Bryan Rosen, Director of Purchasing of DHHR, agreed, stating that he was “concerned about the implication of having people outside the committee potentially swaying the procurement process.” The parties appear to agree that on May 16, 2012, after a “contentious” meeting among petitioners, respondent Keefer, and Mr. Rosen, petitioners ostensibly agreed to “stand down” on their concerns. However, on or about June 1, 2012, upon request by the Governor's office for an audit of all outstanding legal issues for purposes of the transition from retiring DHHR Secretary Dr. Michael Lewis to incoming Acting DHHR Secretary respondent Rocco Fucillo, petitioner Perry identified a potential legal challenge to the RFP as an outstanding issue. Respondent Keefer had likewise contemporaneously advised respondent Fucillo of petitioners' activities relative to the RFP. After advising petitioner Perry that, the legal review notwithstanding, the contract would be awarded to the successful bidder,6 respondent Fucillo sought legal advice regarding petitioners' activities from DHHR Inspector General David Bishop. Upon being alerted to these issues, Inspector Bishop launched an investigation into the RFP and the activities of petitioners and Mr. Law on or about July 15, 2012, based upon his concern that criminal activity may have occurred.
Upon commencement of the investigation, on July 16, 2012, petitioners were placed on administrative leave. Thereafter, they were placed on administrative reassignment and relocated to different offices performing what they have characterized as menial tasks not befitting their status and experience. At the close of Inspector Bishop's investigation on October 12, 2012, he recommended the matter be turned over to the Kanawha County Prosecuting Attorney's Office, which ultimately declined to prosecute. However, before the Prosecutor declined prosecution, a search warrant was executed by the West Virginia State Police seeking documents and communications of Mr. Law and petitioners regarding the RFP, which search warrant was subsequently released to and publicized in the media. The search warrant was drafted by Inspector Bishop and appears to be largely comprised of excerpts from and summaries of the content of the DHHR investigative report. The search warrant stated that it was being sought on the basis that Mr. Law and petitioners had violated West Virginia Code § 5A–3–31
(1990), which made it a felony to “combine, collude or conspire ... with respect to the purchasing or supplying of commodities or printing to the state” for the purpose of “caus [ing] one prospective vendor or vendors to be preferred over one or more other prospective vendor or vendors.”7
During the course of the DHHR investigation it was discovered that petitioner Taylor had e-mailed confidential attorney-client information to her husband, Steve Haid.8 Although not made a part of the investigative report, the report's author advised Inspector Bishop of this discovery. In her deposition, petitioner Taylor admitted sending the email and that doing so was a breach of attorney-client privilege.
Shortly after the investigation and declination of prosecution, on February 20, 2013, petitioner Taylor was terminated. On June 26, 2013, petitioner Perry was thereafter offered another position, which she declined.9 On June 28, 2013, she was sent a letter on DHHR letterhead executed by Harold Clifton, Human Resources Director for DHHR, advising that her employment was being terminated. Governor Tomblin's Chief of Staff, Charles Lorensen, testified that petitioner Perry's “termination” was his decision; however, he disagreed with the characterization that petitioner Perry was “fired,” rather, indicating that the incoming Secretary of DHHR, Karen Bowling, should be permitted to set up her own leadership team.
B. Procedural History
During the pendency of their administrative reassignment, but before they were terminated, petitioners filed the instant action against respondents, subsequently amending their complaints upon termination. Petitioners' amended complaints allege the following causes of action: violation of the Whistle-blower Law, retaliatory discharge in contravention of the Ethics Act and their obligation to provide “honest legal advice,”10 gender discrimination, and false light invasion of privacy.
After extensive discovery, respondents filed various dispositive motions. On April 15, 2014, the circuit court entered an order granting summary judgment as to petitioner Taylor's “discharge” claims against Mr. Keefer, finding that Mr. Keefer did not discharge her, nor participate in her discharge.11 On May 16, 2014, the circuit court entered an order granting summary judgment as to petitioner Perry's “discharge” claims against all defendants, finding that petitioner Perry was not discharged by DHHR, but rather was discharged by the Governor's Office. Despite having awarded summary judgment to respondents on ostensibly the entirety of both petitioners' discharge claims, see n.11, supra, leaving only the gender discrimination and invasion of privacy claims, the circuit court entertained a “combined” motion for summary judgment on all claims pled by both petitioners and awarded summary judgment to respondents as reflected in its June 13, 2014, omnibus order dismissing the entirety...
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