State ex rel. Devono v. Wilmoth

248 W.Va. 654

889 S.E.2d 736

STATE of West Virginia EX REL. Gabriel DEVONO and the Board of Education of Randolph County, Petitioners, v. The Honorable David H. WILMOTH, Judge of the Circuit Court of Randolph County, Sherman Arbogast, and Marlene Arbogast, Respondents.

No. 22-0480

Supreme Court of Appeals of West Virginia.

Submitted: April 19, 2023

Filed: June 15, 2023

Susan L. Deniker, Esq., Jeffrey M. Cropp, Esq., Steptoe & Johnson PLLC, Bridgeport, West Virginia, Attorneys for Petitioners

James R. Fox, Esq., Fox Law Office, PLLC, Hurricane, West Virginia, Attorney for Respondents Sherman, Arbogast and Marlene Arbogast

HUTCHISON, Justice:

Petitioners Gabriel Devono and the Board of Education of Randolph County invoke this Court's original jurisdiction and seek a writ of prohibition to prevent the Honorable David H. Wilmoth, Judge of the Circuit Court of Randolph County, from enforcing a May 5, 2022, order denying their motion to dismiss certain claims set forth in an amended complaint alleging wrongful termination of employment filed by the respondents, Marlene and Sherman Arbogast. The petitioners contend that certain claims should have been dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the West Virginia Rules of Civil Procedure because Mrs. Arbogast failed to exhaust her administrative remedies through the West Virginia Public Employees Grievance Procedure, West Virginia Code §§ 6C-2-1 to - 8. The petitioners further assert that other claims were subject to dismissal pursuant to Rule 12(b)(6) for failure to set forth a claim upon which relief can be granted. ¹ For the reasons set forth below, we find that some of the claims asserted by the respondents should have been dismissed, but that others are not barred by the exhaustion rule and have been sufficiently pled to go forward. Accordingly, the requested writ is granted, in part, and denied, in part.

I. Facts and Procedural Background

The underlying civil action arose as a result of the termination of Mrs. Arbogast's employment as cafeteria manager and "head cook" at the Beverly Elementary School in Randolph County. The amended complaint filed on August 18, 2021, ² indicates that Mrs. Arbogast learned during her employment that students in the pre-K program at the school, which included her son, had been confined to a closet and mistreated by the pre-K teacher. According to Mrs. Arbogast, the pre-K teacher "engaged in multiple acts of physical, emotional, and mental abuse towards her students." Mrs. Arbogast alleges that when she reported this information to Mr. Devono, who was then serving as superintendent of the Board of Education of Randolph County, ³ he refused to investigate the matter and, instead, attempted to "cover-up" the abuse. Mrs. Arbogast claims that Mr. Devono then took adverse actions against her and ultimately caused her employment to be terminated.

In her amended complaint, Mrs. Arbogast alleges eight claims. Counts one and two allege retaliatory discharge and constructive retaliatory discharge, respectively, in violation of the West Virginia Human Rights Act ("Human Rights Act"), West Virginia Code §§ 5-11-1 to - 20. Count three alleges wrongful discharge in violation of the Whistle-blower Law, West Virginia Code §§ 6C-1-1 to - 8. Counts four and five allege that Mrs. Arbogast's constitutional rights were violated by the petitioners. Count six alleges tortious interference with Mrs. Arbogast's part-time employment with U-Haul and specifically, asserts that Mr. Devono "maliciously, willfully and in bad faith caused [Mrs.] Arbogast's termination of her employment with U-Haul." Count seven alleges tortious interference with Mrs. Arbogast's medical care and asserts that Mr. Devono sought disclosure of her confidential medical information with the intent of obtaining embarrassing information that he could use for harassment and as a basis for terminating her employment. Finally, count eight is a claim for punitive damages. The complaint also sets forth derivative claims for loss of consortium on behalf of Mr. Arbogast.

On September 1, 2021, the petitioners filed a motion to dismiss, seeking dismissal of counts one through five and count seven pursuant to Rule 12(b)(1). The petitioners argued that the circuit court lacked subject matter jurisdiction because Mrs. Arbogast did not exhaust her administrative remedies. ⁴ The petitioners also argued that the claims asserting violations of the Human Rights Act and the claim alleging tortious interference with Mrs. Arbogast's medical care were subject to dismissal pursuant to Rule 12(b)(6) for failure to set forth claims upon which relief could be granted. A hearing was held on the motion on December 9, 2021, and by order entered May 5, 2022, the circuit court denied the motion. The circuit court found that Mrs. Arbogast did not have to file a grievance as a jurisdictional prerequisite; that she had asserted viable claims under the Human Rights Act; and that she had set forth sufficient factual allegations to support her claims. Following entry of that order, the petitioners filed their petition for a writ of prohibition with this Court.

II. Standard for Issuance of Writ

This Court has recognized that when a motion to dismiss has been denied by a circuit court, a party may seek relief through a petition for a writ of prohibition. See State ex rel. Skyline Corp. v. Sweeney , 233 W. Va. 37, 40, 754 S.E.2d 723, 726 (2014) ("When the request for extraordinary relief concerns a circuit court's denial of a motion to dismiss, we consider the matter as a petition for a writ of prohibition."). However, "[p]rohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari." Syl. Pt. 1, Crawford v. Taylor , 138 W. Va. 207, 75 S.E.2d 370 (1953). We have made clear that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977). We have further explained that

[i]n determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ had no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996). With these standards in mind, we consider the parties’ arguments.

III. Discussion

The petitioners first contend that they are entitled to a writ of prohibition because the circuit court lacks subject matter jurisdiction over several of the counts set forth in the amended complaint as a result of Mrs. Arbogast's failure to exhaust her administrative remedies. See W. Va. R. Civ. P. 12(b)(1). They rely upon " " ‘[t]he general rule ... that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act." Syl. pt. 1, Daurelle v. Traders Federal Savings & Loan Association , 143 W.Va. 674, 104 S.E.2d 320 (1958).’ Syl. Pt. 1, Cowie v. Roberts , 173 W.Va. 64, 312 S.E.2d 35 (1984)." Syl. Pt. 10, in part, State ex rel. Miller v. Reed , 203 W. Va. 673, 510 S.E.2d 507 (1998). As a public school employee, ⁵ Mrs. Arbogast had access to the West Virginia Public Employees Grievance Procedure. The grievance procedure provides for an administrative "resolution of employment grievances raised by the public employees of the State of West Virginia[.]" W. Va. Code § 6C-2-1(a) (2023). ⁶ Under West Virginia Code § 6C-2-2(i)(1), a "grievance" means

a claim by an employee alleging a violation, a misapplication or a misinterpretation of the statutes, policies, rules or written agreements applicable to the employee including:

(i) Any violation, misapplication or misinterpretation regarding compensation, hours, terms and conditions of employment, employment status or discrimination;

(ii) Any discriminatory or otherwise aggrieved application of unwritten policies or practices of his or her employer;

(iii) Any specifically identified incident of harassment;

(iv) Any specifically identified incident of favoritism; or

(v) Any action, policy, or practice constituting a substantial detriment to or interference with the effective job performance of the employee or the health and safety of the employee.

The petitioners contend that Mrs. Arbogast's claims fall within the definition of "grievance" set forth in West Virginia Code § 6C-2-2(i)(1) and because she failed to challenge the termination of her employment by filing a grievance, she may not seek relief from the circuit court. Alternatively, the petitioners argue that some of the...