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Cabell County Commission v. Whitt

Cabell County Commission v. Whitt

Case No. 
Opinion Date: 
Opinion Author: 
Justice Workman
Reverse in Part

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.  Petitioners allege 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.


This case raised multiple employment-related issues; however, the Supreme Court only addressed the  issues involving statutory and qualified immunity.


Justice Workman wrote for a unanimous Supreme Court.  Of the five issues raised by petitioners through their appeal, the Court only addressed two.

First, the Court considered whether the supervisor, Beth Thompson, was entitled to immunity under the Governmental Tort Claims and Insurance Reform Act, W.Va. Code 29-12A-1 et seq.  The Court noted that it was undisputed Thompson was, in fact, acting within the scope of her employment when she terminated Respondent and directed a deputy to escort Respondent from the building.  The only question remaining was whether Thompson was acting “with malicious purpose, in bad faith, or in a wanton or reckless manner.”  W.Va. Code 29-12a-5(b)(2).  If so, Thompson would lose the benefit of statutory immunity.  If not, statutory immunity applied.

Reviewing case law from other jurisdictions, the Supreme Court found that escorting a terminated employee from the premises does not provide a basis for liability for intentional infliction of emotional distress.  Accordingly, the Court could find no “principled basis on which to conclude that an act which would be insufficient to support either negligent or intentional infliction emotional distress, is nonetheless sufficient to support a finding of malice under W.Va. Code 29-12a-5(b)(2).”  For this reason, the Court concluded that Thompson was entitled to statutory immunity.

Petitioners also had sought review of the claims under the state’s whistleblower law, W.Va. Code 6c-1-1 et seq.  Conceding that the trial court’s order regarding the whistleblower issue was not final, Petitioners urged review of that part of the order under the collateral order doctrine.  Petitioners argued that the whistleblower issues were predicated, in part, on qualified immunity, and were therefore reviewable.  The Supreme Court rejected this argument, noting that Petitioner’s rights could be fully protected in a direct appeal of the whistleblower claim in due course.  Because the trial court’s ruling regarding the whistleblower claim was interlocutory in nature, and not final, it was not appealable.

All remaining issues were rendered moot.



This case will not have broad impact.  It is, however, noteworthy because it shows that while the Court remains willing to treat immunity issues as immediately appealable, it is not likely to give the same deference to other issues--even those packaged to resemble immunity issues.  Here, Petitioners argued that the whistleblower issues were somehow intertwined with the immunity issues and, therefore, the Court should hear both.  The Court refused and limited its review to the assignment of error that genuinely implicated Thompson’s claim of statutory immunity.  Whitt can be cited to prevent overzealous attorneys from riding the coattails of a trial court’s immunity ruling by attempting to appeal issues that are clearly nonfinal and nonappealable.

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