                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Robert Eagle,
Plaintiff Below, Petitioner                                                      FILED
                                                                              March 24, 2017
vs) No. 16-0093 (Hardy County 15-C-37)                                         RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Eastern West Virginia
Community and Technical
College and Charles Terrell,
Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioner Robert Eagle, by counsel Harley O. Staggers Jr., appeals the Circuit Court of
Hardy County’s January 4, 2016, orders granting respondents’ motions to dismiss. Respondents
Eastern West Virginia Community and Technical College (“Eastern”) and Dr. Charles Terrell, by
counsel Matthew R. Whitler and Benjamin P. Warder, filed a response and a supplemental
appendix. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in
granting respondents’ motions to dismiss upon its doubt that petitioner would prevail in the
action and by applying an incorrect standard of review.

        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.

        In 2015, petitioner filed a complaint against his employer and respondent herein, Eastern.
Petitioner also named Dr. Terrell, president of the college and respondent herein, as a defendant,
both in his individual capacity and in his capacity as president of the college. In June of 2015,
petitioner filed an amended complaint. According to the amended complaint, petitioner alleged
that respondents threatened to terminate him and another employee, Tim Riggleman, sometime
in 2012. Later, petitioner testified at a trial upon Mr. Riggleman’s claims against Eastern based
upon the West Virginia Human Rights Act (“WVHRA”). According to petitioner, three months
after Mr. Riggleman’s trial, Eastern disciplined him for hiring an individual who was never
actually hired. Accordingly, petitioner filed a complaint against respondents for violation of the
WVHRA. Petitioner alleged that because of these issues, the resulting hostile work environment
altered the conditions of his employment.

      In July of 2015, both respondents filed individual answers to petitioner’s amended
complaint, in addition to motions to dismiss the same. Following additional briefing on the

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motions to dismiss, the circuit court held a hearing on the motions in December of 2015.
Thereafter, in January of 2016, the circuit court entered orders granting both of respondents’
motions to dismiss. In the orders, the circuit court specifically found that petitioner’s claims
regarding events that occurred in 2012 were barred by the applicable statute of limitations. As to
the timely causes of action, the circuit court found that petitioner’s allegations against
respondents “amount to nothing more than generalized workplace grievances pertaining to
routine personnel issues” and did not rise to the level of actionable conduct committed by
respondents. It is from these orders that petitioner appeals.

       We have previously held that “‘[a]ppellate review of a circuit court’s order granting a
motion to dismiss a complaint is de novo.’ Syllabus Point 2, State ex rel. McGraw v. Scott
Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syl. Pt. 2, Hill v. Stowers,
224 W.Va. 51, 680 S.E.2d 66 (2009). Additionally, we have held as follows:

               “The trial court, in appraising the sufficiency of a complaint on a Rule
       12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt
       that the plaintiff can prove no set of facts in support of his claim which would
       entitle him to relief.” Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W.Va. 530,
       236 S.E.2d 207 (1977).

Syl. Pt. 2, Roth v. DeFeliceCare, Inc., 226 W.Va. 214, 700 S.E.2d 183 (2010). Further, in
addressing employment discrimination, we have set forth the following standard:

               “In order to make a prima facie case of employment discrimination . . . the
       plaintiff must offer proof of the following: (1) That the plaintiff is a member of a
       protected class. (2) That the employer made an adverse decision concerning the
       plaintiff. (3) But for the plaintiff’s protected status, the adverse decision would
       not have been made.” Syllabus Point 3, Conaway v. Eastern Associated Coal
       Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).

Syl. Pt. 2, Johnson v. Killmer, 219 W.Va. 320, 633 S.E.2d 265 (2006). Upon our review, the
Court finds no error in the circuit court’s orders granting respondents’ motions to dismiss.

        In granting respondents’ motions to dismiss, the circuit court specifically found that the
allegedly discriminatory acts of which petitioner complained “amount[ed] to nothing more than
generalized workplace grievances pertaining to routine personnel issues” and, therefore, did not
rise to the level of actionable conduct by respondents. According to petitioner, this finding
evidences the circuit court’s failure to apply the appropriate standard of review in granting
respondents’ motions to dismiss, as the circuit court improperly granted those motions because it
did not believe he could prevail on her claims. To the contrary, the record on appeal is clear that
the circuit court applied the appropriate standard of review and made its ruling upon the fact that,
beyond doubt, petitioner could establish no set of facts that would entitle him to relief. This
Court finds that the evidence supports the circuit court’s findings.

       On appeal, petitioner argues that respondents discriminated against him, in part, because
of his December of 2014 testimony in Mr. Riggleman’s trial against Eastern. However, the

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record on appeal is clear that several of the alleged instances of discrimination of which
petitioner complains occurred prior to his testimony in that separate proceeding. As such, it is
unclear how respondents were alleged to have retaliated for an act that had not yet occurred.
Further, of the alleged retaliatory acts that occurred following petitioner’s testimony, the circuit
court was correct in determining that these acts did not rise to the level of actionable
discrimination. One of the alleged retaliatory acts involved an electronic correspondence from
Dr. Terrell regarding the Riggleman trial that did not relate to petitioner, and other alleged acts
related to disciplinary acts taken against petitioner with which he did not agree. At no point does
petitioner indicate how any of these alleged acts of retaliation constitute an adverse decision
against him or set forth any evidence that respondents would not have engaged in these acts but
for his protected class. Moreover, it is unclear to which protected class petitioner alleges he
belongs. Simply put, petitioner has failed to establish a prima facie case of employment
discrimination, and the circuit court correctly granted respondents’ motions for summary
judgment.

        Lastly, petitioner takes issue with the circuit court’s finding that Dr. Terrell was immune
from liability below. The Court, however, finds that this issue is irrelevant to the resolution of
this appeal, given that the circuit court specifically found that, despite Dr. Terrell’s immunity,
none of the alleged acts that he committed constituted valid claims of discrimination. As such, it
is unnecessary to address the appropriateness of the circuit court’s ruling with regard to Dr.
Terrell’s immunity.

       For the foregoing reasons, the circuit court’s January 4, 2016, orders granting
respondents’ motions to dismiss are hereby affirmed.


                                                                                         Affirmed.

ISSUED: March 24, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Menis E. Ketchum

DISSENTING:

Justice Margaret L. Workman


DISSENTING AND WRITING SEPARATELY:

Justice Elizabeth D. Walker



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WALKER, J., dissenting:


        The majority’s cursory review of the circuit court’s ruling granting Respondents’
respective motions to dismiss overlooks significant legal issues and this Court’s own precedent.
Thus, I respectfully dissent. Occasionally there are circumstances when a motion to dismiss
pursuant to Rule 12(b)(6) is appropriate in a case brought pursuant to the West Virginia Human
Rights Act, West Virginia Code §§ 21-5-1 through -20 (the “Act”). In my view, this is not one
of those cases.

        Specifically, I do not believe that my colleagues in the majority gave appropriate
attention to our long-held rule regarding motions to dismiss:

              The trial court, in appraising the sufficiency of a complaint on a
              Rule 12(b)(6) motion, should not dismiss the complaint unless it
              appears beyond doubt that the plaintiff can prove no set of facts in
              support of his claim which would entitle him to relief.

Syl. pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977) (citation
omitted). This Court has explained that the principles governing the sufficiency of a complaint
in this State have been stated as follows:

              The Supreme Court stated in Dimon v. Mansy [198 W.Va. 40, 479
              S.E.2d 339 (1996)] that “‘the singular purpose of a Rule 12(b)(6)
              motion is to seek a determination whether the plaintiff is entitled to
              offer evidence to support the claims made in the complaint.’” All
              that is required to state a cause of action is a short and plain
              statement of a claim that will give the defendant fair notice of what
              plaintiff’s claim is and the grounds upon which it rests. The
              Supreme Court has recognized that a motion under Rule 12(b)(6)
              should be viewed with disfavor and rarely granted. If the complaint
              states a claim upon which relief can be granted under any legal
              theory, a motion under Rule 12(b)(6) must be denied. Further, the
              mere failure of a complaint to identify the correct statutory section
              for a cause of action is not fatal, so long as the complaint pleads
              facts that state a cause of action under the correct section of a
              statute. However, “if a plaintiff does not plead all of the essential
              elements of his or her legal claim, a [trial] court is required to
              dismiss the complaint pursuant to Rule 12(b)(6).” [sic]

              A trial court should not dismiss a complaint merely because it
              doubts that the plaintiff will prevail in the action, because this is
              neither the purpose nor function of Rule 12(b)(6). If the complaint
              alleges sufficient facts, it must survive a Rule 12(b)(6) motion to
              dismiss even if it appears that recovery is very remote and
              unlikely. . . On a motion to dismiss, the complaint is construed in
              the light most favorable to the plaintiff. However, a trial court is

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               free to ignore legal conclusions, unsupported conclusions,
               unwarranted references and sweeping legal conclusions cast in the
               form of factual allegations.

               Although a plaintiff’s burden in resisting a motion to dismiss is a
               relatively light one, the plaintiff is still required at a minimum to
               set forth sufficient information to outline the elements of his/her
               claim. If plaintiff fails to do so, dismissal is proper . . . .

               Whether a complaint states a claim upon which relief may be
               granted is to be determined solely from the provisions of such
               complaint. Only matters contained in the pleading can be
               considered on a motion to dismiss under Rule 12(b)(6) . . . .

Brown v. City of Montgomery, 233 W.Va. 119, 126-127, 755 S.E.2d 653, 660-661 (2014) (citing
Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West
Virginia Rules of Civil Procedure, § 12(b)(6)[2], at 384–88 (4th ed. 2012) (footnotes omitted)).

         Petitioner was employed by Eastern West Virginia Community and Technical College
(the “College”). Petitioner brought the underlying action against the College and its President,
Dr. Charles Terrell. Petitioner’s amended complaint alleges, among other things, that he was
retaliated against in violation of the Act shortly after testifying as a witness in a jury trial against
the College and Dr. Terrell. The amended complaint cites § 5-11-9 of the Act, which, among
other things, makes it an unlawful discriminatory practice for “any person, employer,
employment agency, labor organization, owner, real estate broker, real estate salesman or
financial institution” to:

               Engage in any form of reprisal or otherwise discriminate against
               any person because he or she has opposed any practices or acts
               forbidden under this article or because he or she has filed a
               complaint, testified or assisted in any proceeding under this article.

W.Va. Code § 5-11-9(7)(C).

        Petitioner states in his amended complaint that he opposed unlawful discriminatory
practices. Petitioner alleges that he was unfairly disciplined and that “[Respondents] engaged in
a pattern of abusive behavior and unwarranted threats after his truthful testimony.” He further
alleges that Respondents “were motivated in their escalated harassment and unfair discipline
because of his testimony and opposition to the unlawful discriminatory practices.” According to
the amended complaint, “[t]he hostile working environment created by [Respondents] was so
intolerable that [Petitioner] was forced to leave his employment.” With regard to Dr. Terrell,
Petitioner alleges in his amended complaint that “the individual conduct of [Respondent] Charles
Terrell was willful, deliberate, intentional, and was taken with the total disregard for the rights
and sensibilities of [Petitioner] and similarly situated individuals.”

       Respondents contend that Petitioner’s factual allegations are nothing more than bald,
vague statements. Respondents insist that Petitioner’s claims amount to nothing more than
generalized workplace grievances pertaining to routine personnel issues. In addition, Dr. Terrell
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argues that he is entitled to sovereign immunity in spite of Petitioner’s allegations to the
contrary. The circuit court agreed and granted Respondents’ respective motions to dismiss
pursuant to Rule 12(b)(6).

        The circuit court clearly imposed on Petitioner a higher standard than this Court has
established for the sufficiency of pleadings in the context of a Rule 12(b)(6) motion. The orders
discuss facts outside the pleadings and analyze Petitioner’s likelihood of success as opposed to
determining whether it is “beyond doubt that the [Petitioner] can provide no set of facts in
support of his claim which would entitle him to relief.” The majority’s affirmation of this
approach is contrary to our precedent and overlooks applicable law.

       I would have reversed the circuit court’s order and remanded the case to allow for further
proceedings. Accordingly, I dissent.




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