                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Kathy Snyder,                                                                    FILED
Plaintiff Below, Petitioner                                                    April 7, 2017
                                                                               RORY L. PERRY II, CLERK
vs) No. 16-0488 (Kanawha County 15-C-963)                                    SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

John D. Rutherford, Executive Director, Metro
Emergency Operations Center of Kanawha County,
and Governing Body, Metro Emergency Operations
Center of Kanawha County,
Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioner Kathy Snyder, by counsel Michael T. Clifford, appeals the order of the Circuit
Court of Kanawha County, entered on April 13, 2016, granting respondents’ motion to dismiss
petitioner’s complaint. Respondents John D. Rutherford and Metro Emergency Operations
Center appear by counsel, Johnnie E. Brown.

       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.

       Respondent Metro Emergency Operations Center (“Metro”) employed petitioner for
more than twenty years beginning in 1993. Petitioner resigned her employment in May of 2014
and, approximately one year later, on May 18, 2015, filed a complaint in the Circuit Court of
Kanawha County asserting that she was constructively discharged because Respondent
Rutherford, while acting as executive director of Respondent Metro1, demoted her to
telecommunicator/dispatcher, thus relieving her of supervisory duties and reducing her hourly
rate of pay by 72 cents. Respondent Rutherford advised petitioner of the personnel action
approximately one week before she resigned, and advised that petitioner should file a grievance
if she disagreed with the decision. Petitioner claimed in her complaint that Respondent
Rutherford’s actions constituted a hostile work environment. She also claimed that Respondent
Rutherford exceeded his authority in acting as Respondent Metro’s executive director because
West Virginia Code § 7-7-4(8) prohibits him, as sheriff, from engaging in “other employment.”


       1
        It is undisputed that Respondent Rutherford previously received no additional
compensation for acting in this supervising capacity.
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        Respondents filed a motion to dismiss petitioner’s complaint or, alternatively, for
summary judgment on July 9, 2015. Respondents argued that petitioner failed to state a claim
because (1) she did not assert that her hostile work environment was created on the basis of her
membership in a protected class; (2) a previous circuit court decision barred consideration of
petitioner’s claims that Respondent Rutherford improperly served as executive director of
Respondent Metro; and 3) petitioner failed to exhaust her administrative remedies. The circuit
court agreed that petitioner had not asserted membership in a protected class and that petitioner
was collaterally estopped from claiming that Respondent Rutherford acted as executive director
in violation of statute. The court did not address the argument that petitioner failed to exhaust
administrative remedies. The court granted the motion to dismiss, and petitioner appeals the
order granting the dismissal.

        On appeal, petitioner asserts four assignments of error. She argues that the circuit court
erred in: (1) granting the motion to dismiss because she can show facts supporting her claims; (2)
granting the motion to dismiss on the ground that she failed to exhaust administrative remedies,
because she was not required to do so; (3) granting the motion to dismiss because Respondent
Rutherford exceeded the scope of his duties; and (4) applying the doctrine of “res judicata.”
“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.”
Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 461 S.E.2d
516 (1995). We review petitioner’s four assignments of error according to this standard.

        We begin with petitioner’s first and second assignments of error, wherein she argues that
the circuit court erred in granting respondents’ motion to dismiss. Inasmuch as the circuit court
did not intimate that petitioner failed to exhaust administrative remedies, or discuss such a failure
to any degree, we find no merit in petitioner’s second assignment of error. As to petitioner’s
arguments, in the whole, that the circuit court erred in dismissing the complaint, we center on the
following precepts:

               Generally, a motion to dismiss should be granted only where “‘it is clear
       that no relief could be granted under any set of facts that could be proved
       consistent with the allegations.’” Murphy v. Smallridge, 196 W.Va. 35, 36, 468
       S.E.2d 167, 168 (1996) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104
       S.Ct. 2229, 2232, 81 L.Ed.2d 59, 65 (1984)) (additional citation omitted). For this
       reason, motions to dismiss are viewed with disfavor, and we counsel lower courts
       to rarely grant such motions. John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161
       W.Va. 603, 605–06, 245 S.E.2d 157, 159 (1978). Ewing v. Board of Educ. of
       County of Summers, 202 W.Va. 228, 235, 503 S.E.2d 541, 548 (1998).
       Furthermore, “[f]or purposes of the motion to dismiss, the complaint is construed
       in the light most favorable to plaintiff, and its allegations are to be taken as true.”
       Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158
       (1978).

                      The circuit court, viewing all the facts in a light most
               favorable to the nonmoving party, may grant the motion only if “it
               appears beyond doubt that the plaintiff can prove no set of facts in
               support of his[, her, or its] claim which would entitle him[, her, or

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               it] to relief.” Syl. pt. 3, in part, Chapman v. Kane Transfer Co.,
               Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977), citing Conley [v.
               Gibson], 355 U.S. [41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84
               (1957)].

       State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 776,
       461 S.E.2d 516, 522 (1995) (footnote omitted).

Forshey v. Jackson, 222 W.Va. 743, 749-50, 671 S.E.2d 748, 754-55 (2008).

        Following the guidance of these principles, we agree with the circuit court that petitioner
failed to assert any unlawful, discriminatory basis for her separation from the employment that
she left. We have held that a constructive discharge cause of action arises when the employee
claims that because of age, race, sexual or other unlawful discrimination, the employer has
created a hostile working climate which was so intolerable that the employee was forced to leave
his or her employment. Syl. Pt. 4, Slack v. Kanawha Co. Housing & Redevelopment Auth., 188
W.Va. 144, 423 S.E.2d 547 (1992). Petitioner’s complaint does not allege that she was
constructively discharged based upon any of these enumerated factors. Accordingly, the
complaint does not, on its face, state a claim for which relief can be granted, and we find no
merit in petitioner’s remaining assignments of error.2

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.


ISSUED: April 7, 2017




       2
          In her third and fourth assignments of error petitioner argues that Respondent
Rutherford exceeded his authority in acting as Metro’s executive director because West Virginia
Code § 7-7-4(8) requires that “[a]ny sheriff . . . [of certain classes of counties] shall devote full
time to his or her public duties to the exclusion of any other employment. . .” and further argues
that the circuit court incorrectly found consideration of the appropriateness of Respondent
Rutherford’s duties barred by the doctrine of res judicata. However, petitioner’s complaint
specifies her assertion that she was harmed by constructive discharge resulting from a hostile
work environment, and asserts no independent cause of action related to Respondent
Rutherford’s having acted as the executive director for Metro. Our consideration of these
remaining assignments of error would not be appropriate inasmuch as it would not affect the
outcome of her appeal. “‘Courts are not constituted for the purpose of making advisory decrees
or resolving academic disputes. The pleadings and evidence must present a claim of legal right
asserted by one party and denied by the other before jurisdiction of a suit may be taken.’
Mainella v. Board of Trustees of Policemen’s Pension or Relief Fund of City of Fairmont, 126
W.Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943).” Syl. Pt. 2, Harshbarger v. Gainer, 184 W.
Va. 656, 656, 403 S.E.2d 399, 399 (1991).
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CONCURRED IN BY:

Chief Justice Allen H. Loughry
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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