This case raises issues of both statutory and qualified immunity in the context of the discharge of a county employee.
The facts are highly disputed. Respondent, Joseph Whitt, was employed by Petitioner, Cabell County Commission, as an IT director, responsible for overseeing the computer systems of most of the county’s offices. Respondent’s direct supervisor was Petitioner, Beth Thompson. Respondent was not under contract but, instead, was an at-will employee of the county.
Respondent’s discharge occurred after a computer crash on August 31, 2016. Petitioner alleges that before the crash, Respondent had only been performing data backups on tapes that were taken off site and stored. Respondent confirmed that the backups had been performed, but did not confirm that the tapes had actually been capturing data during the backup process. As a result, the county lost a substantial amount of data, including financial data that was necessary for the day to day operations of the county offices.
Respondent alleges that a year before the crash he notified Petitioners of “serious deficiencies” in the county’s data backup system. Respondent presented a proposal for remediating these deficiencies, but Petitioners rejected it in light of budget constraints. In addition, Respondent refused to support the county’s claim that one of its own officers, i.e., the county clerk, was responsible for the crash. In the aftermath of the crash, Respondent publicly, immediately and truthfully reported that the cause of the crash was Petitioners’ failure to address the deficiencies in the data backup system. Within three weeks after the crash, Petitioners took steps to discharge Respondent, including having Respondent escorted from the building by a uniformed law enforcement officer.
Respondent sued Petitioners for wrongful discharge, violation of the state’s whistleblower law, false imprisonment, and intentional infliction of emotional distress. Petitioners moved for summary judgment citing immunity and other legal grounds. The trial court denied the motion and Petitioners filed this appeal.
Petitioners raise three assignments of error. Two of them relate to immunity--i.e., statutory immunity under W.Va. Code 29-12A-1 et seq. and qualified immunity. With regard to statutory immunity, Petitioners allege that Beth Thompson was acting within the scope of employment when she discharged Respondent and that she was not acting “with malicious purpose, in bad faith, or in a wanton or reckless manner” under W.Va. Code 29-12A-5(b)(2). Accordingly, statutory immunity applies. With regard to qualified immunity, Petitioners argue that Respondent’s claim did not involve a violation of a clearly established constitutional or statutory right and that Thompson was engaged in lawful, discretionary acts. Thus, Thompson is also protected by qualified immunity. Petitioners also allege that Respondent failed to satisfy the elements of liability under the whistleblower law, false imprisonment, and intentional infliction of emotional distress.
Respondent argues that the only issue properly before the Supreme Court is the issue of immunity. The assignments of error relating to the sufficiency of Respondent’s legal claims amount to a “procedurally improper attempt to appeal interlocutory rulings which are not subject to immediate appeal.” With regard to the immunity claims, Respondent argues that the trial court correctly concluded the question of whether Thompson acted maliciously, recklessly or in bad faith is a question of fact for the jury. Therefore, the denial of Petitioners’ motion for summary judgment was correct.
The Supreme Court has placed this argument on its Rule 20 docket, suggesting that a new syllabus point will be forthcoming. It seems unlikely that the Court will address anything other than the immunity issues, which are clearly appealable. Hopefully, the Court will provide the bench and bar with clarity regarding the scope of statutory immunity and the so-called “malice” exception codified in W.Va. Code 29-12A-5(b)(2).