                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Pamela Schade,
                                                                                  FILED
Plaintiff Below, Petitioner
                                                                               June 7, 2019
vs) No. 18-0512 (Monongalia County 11-C-346)                                 EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
West Virginia University and
West Virginia University Board of Governors,
Defendants Below, Respondents

                              MEMORANDUM DECISION
       Petitioner Pamela Schade, by counsel Edmund J. Rollo, appeals the Circuit Court of
Monongalia County’s November 15, 2015, order granting respondents’ motion for summary
judgment as to her whistle-blower claim and May 3, 2018, order granting respondents’ motion
for summary judgment as to petitioner’s remaining claims. Respondents West Virginia
University (“WVU”) and West Virginia University Board of Governors, by counsel Monte L.
Williams and Julie A. Moore, submitted a response.

       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 order of the circuit court is appropriate
under Rule 21 of the Rules of Appellate Procedure.

        Petitioner Pamela Schade worked as an at-will, nonclassified, nontenure track, faculty
equivalent/academic professional serving as a program coordinator within the National
Environmental Services Center (“NESC”), a program of the National Research Center for Coal
and Energy (“NRCCE”). That program is administered by WVU’s Office of the Vice President
for Research and Economic Development. Petitioner annually received an appointment and
contract. Pursuant to that appointment, her position was fully funded by grants and contracts. On
July 30, 2010, petitioner was notified by Dr. Richard Bajura, Director of NRCCE, and Dr.
Gerald Iwan, petitioner’s supervisor, that funding to sustain petitioner’s employment beyond
October 31, 2010, had not been identified, so her position was being eliminated effective as of
that date. October 31, 2010, was petitioner’s last day of employment at NESC.

      Petitioner filed a grievance with the West Virginia Public Employees Grievance Board
(“WVPEGB”) on October 22, 2010, alleging that the decision not to renew her contract in 2010
was in retaliation for her prior whistle-blower activities in 2005.1 She also alleged that she

       1
          According to petitioner, in 2005 she made a report to WVU’s Office of Social Justice
that a former employee was being inappropriately paid from NESC funds. She reported that a
(continued…)
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suffered emotional distress. However, she did not set forth any alleged violations of the West
Virginia Human Rights Act in that grievance. Her grievance was denied at level one on February
14, 2011. She appealed to level two, and an unsuccessful mediation was held on May 13, 2011.
She appealed her grievance to level three, but that grievance was denied in a December 21, 2011,
decision, following an evidentiary hearing before an administrative law judge (“ALJ”). Petitioner
had the right to appeal the ALJ’s decision to the Circuit Court of Kanawha County within thirty
days of receiving that decision, but she did not do so.

         On May 31, 2011, petitioner filed suit against respondents, alleging the violation of the
West Virginia Whistle-blower Law, retaliatory discharge in violation of a substantial public
policy, and intentional infliction of emotional distress.2 Following discovery, respondents filed
their motion for summary judgment as to all claims on July 27, 2015. In that motion, they argued
that petitioner’s Whistle-blower Law claim was barred by the applicable statute of limitations;
petitioner’s claims were barred by the doctrines of res judicata and collateral estoppel; and
petitioner lacked sufficient evidence to prove her claims for retaliatory discharge and intentional
infliction of emotional distress. On September 10 and October 14, 2015, the circuit court held
hearings on that motion, and on November 15, 2015, it entered its order granting respondents’
motion for summary judgment as to the Whistle-blower Law claim. The court further found that
petitioner had sufficiently demonstrated genuine issues of material fact as to her claims for
retaliatory discharge and intentional infliction of emotional distress. Therefore, it denied those
portions of respondents’ motion for summary judgment. However, it deferred ruling on
respondents’ assertion that petitioner’s claims were barred by the doctrine of res judicata and
held respondents’ motion in abeyance pending that ruling.

        On February 18, 2016, respondents filed a notice of new legal authority supporting
dismissal or entry of summary judgment in favor of respondents, citing this Court’s decision in
Subramani v. West Virginia University Board of Governors, Case No. 14-0924, 2015 WL
7628720 (W. Va. Nov. 20, 2015) (memorandum decision). Respondents then filed a second such
notice, submitting a December 16, 2016, order from Judge Gaujot in Stewart v. West Virginia
University Board of Governors, Monongalia County Civil Action No. 16-C-132. On May 15,
2017, the circuit court held a status conference, during which petitioner’s counsel requested
additional time to address the new points of law raised by respondents. The circuit court entered
a briefing schedule for the parties, and set a hearing date of July 6, 2017. Petitioner failed to
submit any additional briefing, but respondents filed a supplemental brief in support of summary
judgment on July 17, 2017.

       Following that hearing, the circuit court entered its May 3, 2018, order granting


doctor employed at WVU was improperly receiving NESC funds under a contract that did not
exist. However, a supervisor represented that that contract existed and justified the provision of
NESC funds to that employee. Petitioner states that after the investigation was concluded, the
supervisor’s contract with WVU was not renewed and the employee was no longer at WVU.
       2
         On October 22, 2010, petitioner, by counsel, sent a pre-suit notice to WVU and the
Attorney General pursuant to West Virginia Code § 55-17-3.


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respondents’ motion for summary judgment. In that order, the circuit court found that
respondents are entitled to summary judgment as to petitioner’s claims for retaliatory discharge
and intentional infliction of emotional distress because she failed to exhaust her administrative
remedies as required by West Virginia Code § 6C-2-1. Petitioner appeals from both orders
granting summary judgment to respondents.

       “We review a circuit court’s summary judgment order de novo. Syllabus Point 1, Painter
v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Chesapeake Appalachia, L.L.C. v. Hickman,
236 W. Va. 421, 434, 781 S.E.2d 198, 211 (2015). Further,

                [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.

Syl. Pt. 4, Painter.

        On appeal, petitioner sets forth two assignments of error. First, she contends that the
circuit court erred and abused its discretion in granting respondents summary judgment as to her
whistle-blower claim because it was not time-barred by the statute of limitations. As set forth in
West Virginia Code § 6C-1-4(a), “[a] person who alleges that he is a victim of a violation of this
article may bring a civil action in a court of competent jurisdiction for appropriate injunctive
relief or damages, or both, within one hundred eighty days after the occurrence of the alleged
violation.” Petitioner does not challenge the applicability of this statute; however, she asserts that
the statute of limitations did not begin to run until the last day of her employment. She points to
the fact that she was previously notified that her contract was set to expire on specified dates, but
those dates were later extended. Based on those notifications and extensions, she argues that her
employment was not ordinary and, without citing to the record, contends that even the circuit
court recognized that her contract could be extended on the eve of its expiration. In addition,
without citing any precedent from this Court, she argues that because she was required to avail
herself of the grievance procedure, the statute of limitations should be tolled until the grievance
is exhausted.

         Petitioner’s arguments ignore several prior holdings from this Court. In addressing
employment discrimination cases, we have held that the statute of limitations
“‘begins to run from the date a plaintiff first learns of the adverse employment decision.’
Syllabus Point 2, Metz v. E. Associated Coal, LLC, 239 W.Va. 157, 799 S.E.2d 707 (2017).” Syl.
Pt. 1, in part, State ex rel. Raven Crest Contracting, LLC v. Thompson, 240 W. Va. 8, 807 S.E.2d
256 (2017). We find petitioner’s arguments unpersuasive as to the date the statute of limitations
began to run. While the earlier notices were titled notices of appointment extension, those notices
advised her that her appointment was being extended but that further extensions would be based
on the availability of funding. However, the July 30, 2010, notice of nonrenewal provides that it
“constitutes formal notification to you that your current assignment . . . will not be extended past
October 31, 2010, due to the lack of funding.” That clearly meets the standard of petitioner
learning “of the adverse employment decision,” which triggered the running of the statute of
limitations.

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     In addition, in Independent Fire Company No. 1 v. West Virginia Human Rights
Commission, this Court noted that

       [t]he [Delaware State College v.] Ricks[, 449 U.S. 250 (1980),] Court also
       reaffirmed its earlier ruling in International Union of Electrical Workers v.
       Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), which
       established that the pendency of a grievance or some other method of challenging
       the discharge decision does not toll the running of the limitation period.

180 W. Va. 406, 410-11, 376 S.E.2d 612, 616-17 (1988). Therefore, we find petitioner’s
argument on that point unavailing.

        In her second assignment of error, petitioner argues that the circuit court erred by finding
that her retaliatory discharge and intentional infliction of emotional distress claims should be
dismissed for failure to exhaust administrative remedies. While she acknowledges that this Court
has authored several recent memorandum decisions holding that a claimant must appeal an
adverse level three grievance to the Circuit Court of Kanawha County in order to exhaust all
administrative remedies in order to pursue a civil action outside of the grievance proceedings,
she asks that this Court revisit and reverse those findings. Petitioner fails to cite a majority
opinion or memorandum decision from this Court that supports her argument. Further, she does
not cite to decisions from any other jurisdiction to support this argument.

        West Virginia Code § 6C-2-1(b) makes clear the Legislature’s intention to resolve
grievances through the statutorily provided procedure so that redress may be had in a “fair,
efficient, cost-effective and consistent manner.” In addition, this Court has set forth that “[t]he
general rule is 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 court will act.” Syl. Pt. 2, in part, State ex
rel. Smith v. Thornsbury, 214 W. Va. 228, 558 S.E.2d 217 (2003) (citations omitted). Here, it is
undisputed that petitioner abandoned her grievance proceedings, rather than appealing to the
circuit court. Therefore, we find that the circuit court did not err in finding that petitioner was
required to exhaust her administrative remedies in this employment matter but failed to do so.


                                                                                         Affirmed.
ISSUED: June 7, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins




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DISSENTING AND WRITING SEPARATELY:

Justice John A. Hutchison

Hutchison, J., dissenting:

        I dissent to the majority’s resolution of this case. I would set the matter for oral argument
to more thoroughly address the petitioner’s assignment of error regarding the failure to exhaust
her administrative remedies. Indeed, in the context of Human Rights Act claims, our Court has
concluded that the exhaustion of administrative remedies before the Grievance Board is not a
precondition to the filing of an action in circuit court. See, Weimer v. Sanders, 232 W.Va. 367,
752 S.E.2d 398 (2013); Vest v. Bd. of Ed., 193 W.Va. 222, 455 S.E.2d 781 (1995). The
petitioner’s claims concern the torts of retaliatory discharge and intentional infliction of
emotional distress, not Human Rights Act violations. Nonetheless, some of the concerns raised in
Weimer and Vest may equally apply to these tort claims, such as the availability of fewer
remedies from the Grievance Board. Because this issue warrants further review, I respectfully
dissent.




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