                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Soraya McClung,
Plaintiff Below, Petitioner                                                      FILED
                                                                            November 22, 2017
vs) No. 16-1157 (Kanawha County 15-C-22)                                       EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
West Virginia State Police Department,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Soraya McClung, by counsel Mark A. Atkinson and Paul L. Frampton, appeals
the Circuit Court of Kanawha County’s November 14, 2016, order granting respondent’s motion
for summary judgment and dismissing her retaliatory discharge claim. Respondent West Virginia
State Police (“WVSP”), by counsel Lou Ann S. Cyrus and Kimberly M. Bandy, filed a response.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in granting
respondent’s motion for summary judgment because it erred in finding that she spoke as an
employee, not as a private citizen, on a matter of public concern.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner was employed by the WVSP forensic crime laboratory beginning in 1990. In
October of 2007, she was appointed as the Director of the WVSP forensic crime laboratory.
Sometime during the 2014 legislative session, petitioner began discussions with a West Virginia
legislative senator and his staff regarding the possibility of removing the forensic crime
laboratory from the organizational structure of the WVSP. Without the WVSP’s knowledge, (1)
petitioner gathered information regarding the forensic crime laboratory’s removal and pay
increases for employees, (2) provided the information to the West Virginia Legislature
(“legislature”), and (3) testified before legislative committees. As a result of the efforts, a
legislative bill was drafted that called for the forensic crime laboratory’s removal from the
organizational structure of the WVSP. In March of 2014, the WVSP administration met with
petitioner wherein petitioner initially denied her involvement with the legislative bill, but
ultimately disclosed that she provided information to the Legislature. After meeting with the
WVSP administrators, petitioner was reassigned from the Laboratory Director to an Analyst IV
position, a demotion. The WVSP stated that petitioner was demoted because she lobbied the
Legislature for the forensic crime laboratory’s removal from the organizational structure of the
WVSP and for a pay increase for laboratory employees.

                                                    1

        In January of 2015, petitioner filed a complaint in the Circuit Court of Kanawha County
claiming that her reassignment from the Laboratory Director to Analyst IV constituted
“unlawful, retaliatory demotion and constructive discharge.” Petitioner claimed that the WVSP
violated her right to free speech in terminating her employment for engaging with the legislature
on a matter of public concern. In July of 2016, respondent filed a motion for summary judgment.
In August of 2016, the circuit court held a hearing on respondent’s motion. Following the
hearing, on November 14, 2016, the circuit court granted respondent’s motion for summary
judgment on the basis that petitioner “was speaking as an employee of the WVSP and not as a
private citizen.” It is from this order that petitioner appeals.

       “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Our review is guided by the principle that

                “‘[a] motion for summary judgment should be granted only when it is
       clear that there is no genuine issue of fact to be tried and inquiry concerning the
       facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna
       Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160,
       133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187
       W.Va. 706, 421 S.E.2d 247 (1992).

Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. Furthermore,

               “[s]ummary judgment is appropriate where the record taken as a whole
       could not lead a rational trier of fact to find for the nonmoving party, such as
       where the nonmoving party has failed to make a sufficient showing on an
       essential element of the case that it has the burden to prove.” Syllabus point 4,
       Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

Syl. Pt. 5, Toth v. Bd. of Parks & Recreation Comm’rs, 215 W.Va. 51, 593 S.E.2d 576 (2003).

               The circuit court’s function at the summary judgment stage is not to weigh
       the evidence and determine the truth of the matter but to determine whether there
       is a genuine issue for trial. We, therefore, must draw any permissible inference
       from the underlying facts in the light most favorable to the party opposing the
       motion.

Painter, 192 W.Va. at 192, 451 S.E.2d at 758. Upon our review, we find no error below.

        On appeal, petitioner argues that her reassignment from Laboratory Director to an
Analyst IV position constituted an unlawful, retaliatory demotion, and constructive discharge, in
violation of Article III, Section 7 of the West Virginia Constitution. Petitioner claims that her
free speech rights were violated because she was demoted for “expressing her opinions regarding
governmental policies and engaging in lawful political activities.”

       Article III, Section 7 of the West Virginia Constitution provides that,

                                                     2

        [n]o law abridging the freedom of speech, or of the press, shall be passed; but the
        Legislature may, by suitable penalties, restrain the publication or sale of obscene
        books, papers, or pictures, and provide for the punishment of libel, and
        defamation of character, and for the recovery, in civil actions, by the aggrieved
        party, of suitable damages for such libel, or defamation.

        We have previously explained that [t]he First Amendment to the United States
Constitution and Article III, Section 7 of the West Virginia Constitution are virtually identical . .
. [b]oth constitutional provisions prohibit the making of any law abridging the freedom of speech
or of the press.” State ex rel. McGraw v. Imperial Marketing, 196 W.Va. 346, 359 n.43, 472
S.E.2d 792, 805 n.43 (1996). We have therefore held that we “use the First Amendment to the
United States Constitution and Article III, Section 7 of the West Virginia Constitution
interchangeably.” Id.

        The Supreme Court of the United States has held that “the First Amendment protects a
public employee’s right, in certain circumstances, to speak as a citizen addressing matters of
public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). In Garcetti, the Supreme Court
identified two inquiries to guide interpretation of the constitutional protections afforded to a
public employee’s speech. The first inquiry requires that the trial court determine “whether the
employee spoke as a citizen on a matter of public concern.” Id.at 418. “If the answer is no, the
employee has no First Amendment cause of action based on his or her employer’s reaction to the
speech.” Id. If the answer to the first inquiry is yes, there is the “possibility of a First
Amendment claim.” Id.

                The question becomes whether the relevant government entity had an
        adequate justification for treating the employee differently from any other
        member of the general public. This consideration reflects the importance of the
        relationship between the speaker’s expressions and employment. A government
        entity has broader discretion to restrict speech when it acts in its role as employer,
        but the restrictions it imposes must be directed at speech that has some potential
        to affect the entity’s operations.

Id. at 418. (internal citations omitted). The Supreme Court has further explained that “when
public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Id. at 421.

        This Court has acknowledged the framework for analysis set forth in Garcetti, by stating
that:

        There are some general restrictions on a public employee’s right to free speech.
        First, an employee’s speech, to be protected, must be spoken as a citizen on a
        matter of public concern. If the employee did not speak as a citizen on a matter of
        public concern, then the employee has no First Amendment cause of action based
        on the employer’s reaction to the speech.

                                                      3

Syl. Pt. 5, in part, Alderman v. Pocahontas Cnty. Bd. Of Educ., 223 W.Va. 431, 675 S.E.2d 907
(2009). The critical question is whether “the speech at issue is itself ordinarily within the scope
of an employee’s duties.” Lane v. Franks, 134 S.Ct. 2369, 2379 (2014).

        In this case, petitioner, in opposing the WVSP’s motion for summary judgment, argued
that when she presented information to the legislature, she was speaking as a citizen on a matter
of public concern. However, the record below supports the circuit court’s finding that petitioner
presented information to the legislature, “not as a citizen but as the Director of the State Police
Forensic Laboratory.” Indeed, petitioner acknowledged below that she presented information to
the legislature in her capacity as the Laboratory Director. It is undisputed that petitioner was
approached by a senator to provide information for a WVSP forensic crime laboratory financial
study, knowing that petitioner was the director. The information was then presented by petitioner
to a legislative committee in her capacity as the director of the WVSP forensic crime laboratory.
According to the record, petitioner used her position as the director to convene a meeting with
the forensic crime laboratory department supervisors and solicited information from them for the
legislative committee. Petitioner admitted that the laboratory employees “probably” provided her
with the information she requested because she was the director and not because she was a
private citizen, as she suggests in her brief before this Court. Therefore, viewing the underlying
facts in the light most favorable to petitioner, the circuit court correctly concluded that because
she did not engage in constitutionally protected speech, and had no First Amendment cause of
action based on the WVSP’s reaction to the speech, summary judgment was proper.

       For the foregoing reasons, the circuit court’s November 14, 2016, order granting
respondent’s motion for summary judgment is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 22, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman

DISSENTING:

Justice Menis E. Ketchum
Justice Elizabeth D. Walker




                                                    4

