                              STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Douglas A. Day,
Plaintiff Below, Petitioner                                                       FILED
                                                                                May 14, 2018
vs) No. 17-0281 (Kanawha County 14-C-1756)                                    EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
West Virginia Department of
Military Affairs and Public Safety,
and West Virginia Division of
Protective Services,
Defendants Below, Respondents


                              MEMORANDUM DECISION
         Petitioner Douglas A. Day, by counsel Mark A. Atkinson, John-Mark Atkinson, and
Robert B. Warner, appeals the Circuit Court of Kanawha County’s February 24, 2017, order that
granted summary judgment in favor of Respondents West Virginia Department of Military
Affairs and Public Safety and West Virginia Division of Protective Services on petitioner’s
wrongful termination claim. Respondents, by counsel Gary E. Pullin and Christopher C. Ross,
filed a response in support of the circuit court’s order. Petitioner submitted a reply.

        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.

        Respondents hired petitioner as a police officer in August of 2011. It is undisputed that
petitioner was a classified-exempt,1 at-will employee. On January 30, 2014, while petitioner was
working his normal shift at the West Virginia State Capitol Complex, a public rally was
conducted on the Capitol grounds. The rally related to a chemical spill that had recently
contaminated the public’s water supply.

      The day after the rally, petitioner posted the following comments on his personal
Facebook account:


       1
          See W.Va. Code § 29-6-2(g) (defining “‘[c]lassified-exempt service’” as “an employee
whose position satisfies the definitions for ‘class’ and ‘classify’ but who is not covered under the
civil service system or employed by the higher education governing boards[.]”)

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       If there was anytime (sic.) I despised wearing a Police uniform, it was yesterday
       @ the Capitol during the water rally. There was an incident involving a fellow
       concerned citizen, all of my friends out there know which incident I refer (sic.). I
       was embarrassed to be in the uniform during that episode. A girl I know who
       frequents the Capitol for environmental concerns looked @ me and wanted me to
       participate with her in the event. I told her I have to remain unbiased while on
       duty @ these events, she responded by saying, “You’re a person are’nt (sic.)
       you?” That comment went straight through my heart!

        According to petitioner, the incident to which his post referred involved a citizen’s
“forcible removal” from the rally for bringing a jug of the contaminated water collected from his
dying father’s home. Petitioner explains that the citizen intended to show the jug to the
legislators who were present in the building, but that he was escorted out of the Capitol building
by Capitol police (but not by petitioner) because the contents of the jug had not first been tested
or identified as water.

        On February 6, 2014, petitioner was terminated from his employment by letter delivered
by West Virginia Division of Protective Services Deputy Director Kevin Foreman. The letter did
not state a reason for petitioner’s termination but indicated that, as an at-will employee,
petitioner may be terminated without cause. Petitioner’s termination was effective immediately.

      Petitioner thereafter filed a Level Three grievance under the West Virginia Public
Employees Grievance Procedure. See W.Va. Code § 6C-2-4(a)(4). The grievance was denied.

      On September 25, 2014, petitioner filed a complaint in the Circuit Court of Kanawha
County against respondents alleging that his termination

       constituted unlawful retaliatory discharge motivated by issues in violation of the
       substantial public policy of the State of West Virginia as articulated in . . . Harless
       v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978), in
       that [petitioner] was retaliated against, discriminated against, and/or terminated in
       part, for making comments related to an issue of public concern in violation of the
       Constitution of West Virginia.

       On December 5, 2014, respondents filed a motion to dismiss under West Virginia Rules
of Civil Procedure 12(b)(1) and (6) alleging lack of subject matter jurisdiction and res judicata
on the ground that petitioner filed a direct action rather than an appeal from the Level Three
grievance decision. A hearing on the motion was conducted and, on February 3, 2016, the circuit
court denied the motion.

       Discovery ensued and, on October 28, 2016, respondents filed a motion for summary
judgment in which respondents again challenged the court’s jurisdiction over the subject matter.
During a December 12, 2016, hearing, the circuit court denied respondents’ motion to dismiss.
Instead, by order entered February 24, 2017, the court granted their motion for summary
judgment. This appeal followed.



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        We begin with a review of the circuit court’s February 24, 2017, summary judgment
order that concluded, as a matter of law, that petitioner’s posted comments were not entitled to
free speech protections under the First Amendment and that his at-will employment was properly
terminated. We review petitioner’s appeal of this order de novo. See Syl. Pt. 1, Painter v. Peavy,
192 W. Va. 189, 451 S.E.2d 755 (1994). (holding that “[a] circuit court’s entry of summary
judgment is reviewed de novo.”). Under Rule 56(c) of the West Virginia Rules of Civil
Procedure, summary judgment should be granted “where the moving party shows by ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, . . . that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’” Williams v. Precision Coil, Inc., 194 W. Va.
52, 59, 459 S.E.2d 329, 336 (1995) (footnote omitted). Guided by this principle, we consider the
parties’ arguments.

       On appeal, petitioner argues that the circuit court misapplied the law concerning a public
employee’s right to constitutional free speech protections and, as a result, erred in granting
respondents’ motion for summary judgment. In syllabus point four of Alderman v. Pocahontas
County Board of Education, 223 W. Va. 431, 675 S.E.2d 907 (2009), we held:

       “Under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d
       811 (1968), public employees are entitled to be protected from firings, demotions
       and other adverse employment consequences resulting from the exercise of their
       free speech rights, as well as other First Amendment rights. However, Pickering
       recognized that the State, as an employer, also has an interest in the efficient and
       orderly operation of its affairs that must be balanced with the public employees’
       right to free speech, which is not absolute.” Syllabus point 3, Orr v. Crowder, 173
       W.Va. 335, 315 S.E.2d 593 (1983).

       The Court went on to explain some general limitations on a public employee’s free
speech rights as follows:

       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. If the employee did speak as a citizen on
       a matter of public concern, the possibility of a First Amendment claim arises and
       a second and a third factor are invoked. The second factor that is invoked
       considers statements that are made with the knowledge that they were false or
       with reckless disregard of whether they were false, and such statements are not
       protected. The third factor that is invoked considers statements made about
       persons with whom there are close personal contacts that would disrupt discipline
       or harmony among coworkers or destroy personal loyalty and confidence, and
       such statements may not be protected.

223 W. Va. at 434, 675 S.E.2d at 910, at syl. pt. 5.

       Here, the circuit court determined that petitioner’s comments were not made as a citizen
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on a matter of public concern. The court concluded that petitioner’s

       Facebook post was a personal grievance and involved a matter which was
       personal to [him] and did not address a matter of public concern.

               [Petitioner’s] Facebook post was clearly made regarding his role as a
       [p]olice officer rather than that of a private citizen speaking about matters of
       public concern. The content of [petitioner’s] speech was directed toward
       complaining about his job and complaining about his fellow officers. As such, this
       speech does not rise to the level of constitutionally protected speech.

        Petitioner argues that “[w]hether an employee’s speech addresses a matter of public
concern must be determined by the content, form, and context of a given statement, as revealed
by the whole record.”2 Alderman, 223 W. Va. at 442, 675 S.E.2d at 918. Petitioner contends that
he made the comments as a private citizen, as evidenced by the fact that they were posted from
his home, on his own time, on his personal Facebook account, under his nickname “Retro Cat,”
and using his own device. He further argues that his comments were made about a matter of
public concern because they expressed his view that his fellow officers mistreated a concerned
citizen at a public rally and that their conduct reflected badly on the Capitol police force as a
whole.

        We find no error. In consideration of the content, form, and context of petitioner’s
comments, it is clear that they did not address a matter of public concern. While the
contamination of the area’s water supply may certainly be characterized as a “public concern,”
petitioner’s comments, at best, tangentially touched on that event. Rather, his comments were
concerned with criticizing his fellow officers’ conduct at the rally and professing his
embarrassment “to be in the uniform” that day. Given these facts, we find no error in the circuit
court’s conclusion that petitioner’s posted comments were not spoken as a citizen on a matter of
public concern and, as such, were not protected under the First Amendment. Accordingly,
petitioner’s termination did not violate his constitutional right to free speech and respondents’
motion for summary judgment was properly granted.3

       For the foregoing reasons, we affirm.


                                                                                       Affirmed.

ISSUED: May 14, 2018



       2
         This is a question of law. See Hall v. Marion School Dist. No. 2, 31 F.3d 183,192 (4th
Cir. 1992) (citing Connick v. Myers, 461 U.S. 138, 147-48 (1983).).
       3
         Given our conclusion that summary judgment was properly granted in respondents’
favor, we need not address respondents’ cross-assignment of error that the circuit court erred in
denying their motion to dismiss under West Virginia Rule of Civil Procedure 12(b)(1).
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CONCURRED IN BY:

Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis

DISQUALFIED:

Chief Justice Margaret L. Workman




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