A jury should get to decide whether two former Department of Health and Human Resources officials were retaliated against for raising issues about an advertising contract, the West Virginia Supreme Court ruled Thursday.
Kanawha Circuit Judge James Stucky erred in June 2014 when he granted a motion for summary judgment filed by attorneys for the DHHR and dismissed all of the claims in a lawsuit filed by Susan Perry and Jennifer Taylor, the 43-page Supreme Court opinion states.
Stucky should have let the women's whistleblower claims move forward, according to the Supreme Court. However, justices said Stucky was right to throw out the parts of Perry and Taylor's lawsuit alleging retaliatory discharge, gender discrimination and false light invasion of privacy claims.
Perry, a former deputy secretary for the DHHR, and Taylor, a former administrator, claim they were fired for raising concerns about inconsistencies in the evaluation and scoring of the bid packages for an advertising contract.
In his order granting summary judgment, Stucky ruled Taylor and Perry were never asked to review the bid and were acting on orders from former DHHR communications director John Law, who admitted he wanted the Arnold Agency to land an advertising contract.
Stucky found that the women and Law were wrong to interfere with the contract.
Stucky's order, Justice Margaret Workman wrote for the majority, "appears to conclude that petitioners cannot prevail on their whistle-blower claims because they cannot establish that they made a 'good faith report' of an 'instance of wrongdoing or waste,' as those terms are defined by the statute."
However the allegations in their lawsuit are a "nearly perfect depiction" of wrongdoing or waste, the opinion states. Whether their activities were improper is something only a jury can decide, justices ruled.
Workman also cautioned Stucky about signing his name to orders he didn't prepare. The order he signed granting summary judgment, which was prepared by attorneys for the DHHR, was full of claims that are up for debate, she said.
The order Stucky signed in the case granting summary judgment contained "nothing more than a thicket of argumentative rhetoric. Respondents' tendered order consists entirely of their version of the disputed facts and advocated inferences upon which what little legal analysis it contains teeters precariously. Sections entitled 'conclusions of law' are little more than one-sided rhetorical diatribes," Workman wrote.
Justice Brent Benjamin, in a separate opinion, wrote that he believes Stucky was right in dismissing all of Perry and Taylor's claims.
"While the bulk of the majority opinion on the petitioners' whistle-blower claims is taken up exposing the flaws in the circuit court's summary judgment order, the majority opinion ignores the chief flaw: the petitioners completely failed to offer evidence below to support their whistle-blower claims," Benjamin wrote.
Justice Allen Loughry agreed with Workman's majority opinion. Chief Justice Menis Ketchum concurred with that opinion, but he wrote in a separate opinion that Perry and Taylor should be allowed to amend their pleadings to focus solely on the whistle-blower and retaliation claims.
Justice Robin Davis disqualified herself from the case.
Reach Kate White at
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