             IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                       January 2014 Term
                                       _______________
                                                                             FILED
                                         No. 12-1534                     February 20, 2014
                                                                          released at 3:00 p.m.
                                       _______________                  RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA
                                  JACKIE L. BROWN, II,
                                 Plaintiff Below, Petitioner

                                              v.

           THE CITY OF MONTGOMERY, A MUNICIPAL CORPORATION;

        AND JAMES F. HIGGINS, JR., INDIVIDUALLY AND IN HIS OFFICIAL

             CAPACITY AS MAYOR OF THE CITY OF MONTGOMERY,

                          Defendants Below, Respondents

         ____________________________________________________________

                      Appeal from the Circuit Court of Fayette County

                         The Honorable Paul M. Blake, Jr., Judge

                                Civil Action No. 12-C-211


            AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

          ____________________________________________________________

                                Submitted: January 15, 2014
                                 Filed: February 20, 2014

   Michael T. Clifford, Esq.                       Vaughn T. Sizemore, Esq.
   Richelle K. Garlow, Esq.                        Bailey & Wyant, PLLC
   Law Office of Michael T. Clifford               Charleston, West Virginia
   Charleston, West Virginia                       Counsel for the Respondents
   Counsel for the Petitioner


   JUSTICE BENJAMIN delivered the Opinion of the Court.




16
	
                             SYLLABUS BY THE COURT



              1.     “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, 194 W. Va. 770, 461 S.E.2d 516 (1995).



              2.     “The rule that an employer has an absolute right to discharge an at

will employee must be tempered by the principle that where the employer’s motivation

for the discharge is to contravene some substantial public policy principle, then the

employer may be liable to the employee for damages occasioned by this discharge.” Syl.,

Harless v. First National Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978).



              3.     “To identify the sources of public policy for purposes of determining

whether a retaliatory discharge has occurred, we look to established precepts in our

constitution, legislative enactments, legislatively approved regulations, and judicial

opinions.” Syl. pt. 2, Birthisel v. Tri-Cities Health Services, 188 W. Va. 371, 424 S.E.2d

606 (1992).



              4.     “Inherent in the term ‘substantial public policy’ is the concept that

the policy will provide specific guidance to a reasonable person.” Syl. pt. 3, Birthisel v.

Tri-Cities Health Services, 188 W. Va. 371, 424 S.E.2d 606 (1992).




                                             i
              5. “[A] discharged employee may . . . maintain a common law claim for

retaliatory discharge against the employer based on alleged sex discrimination or sexual

harassment because sex discrimination and sexual harassment in employment contravene

the public policy of this State articulated in the West Virginia Human Rights Act, W. Va.

Code, 5-11-1, et seq.” Syl. pt. 8, Williamson v. Greene, 200 W. Va. 421, 490 S.E.2d 23

(1997).

              6.     “A cause of action may be maintained by a plaintiff employee as

against another employee under the West Virginia Human Rights Act. Further, the cause

of action may properly be based upon an allegation that the defendant employee aided or

abetted an employer engaging in unlawful discriminatory practices.” Syl. pt. 4, Holstein

v. Norandex, Inc., 194 W. Va. 727, 461 S.E.2d 473 (1995).



              7.     “W. Va. Code 5-11-9(7)(C) (1992), prohibits an employer or other

person from retaliating against any individual for expressing opposition to a practice that

he or she reasonably and in good faith believes violates the provisions of the West

Virginia Human Rights Act.” Syl. pt. 11, Hanlon v. Chambers, 195 W. Va. 99, 464

S.E.2d 741 (1995).



              8.     It is a violation of a substantial public policy of this State for an

employer to discriminate against an employee for refusing to retaliate against another

employee who has filed a racial discrimination claim against the employer.



                                            ii
              9.     “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. Conley v. Gibson, 355 U.S. 41, 45 – 46 (1957).” Syl. pt. 3, Chapman v. Kane

Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977).



              10.    “A public executive official who is acting within the scope of his

authority and is not covered by the provisions of W. Va. Code, 29-12A-1, et seq., is

entitled to qualified immunity from personal liability for official acts if the involved

conduct did not violate clearly established laws of which a reasonable official would have

known. There is no immunity for an executive official whose acts are fraudulent,

malicious, or otherwise oppressive.” Syl., in part, State v. Chase Securities, Inc., 188 W.

Va. 356, 424 S.E.2d 591 (1992).



              11.    “The term ‘person’ as defined and utilized within the context of the

West Virginia Human Rights Act, includes both employees and employers. Any contrary

interpretation, which might have the effect of barring suits by employees against their

supervisors, would be counter to the plain meaning of the statutory language and contrary

to the very spirit and purpose of this particular legislation.” Syl. pt. 3, Holstein v.

Norandex, 194 W. Va. 727, 461 S.E.2d 473 (1995).




                                            iii
Benjamin, Justice:

              Petitioner Jackie L. Brown, II appeals the November 16, 2012, order of the

Circuit Court of Fayette County that granted the motion to dismiss of Respondents City

of Montgomery and Mayor James F. Higgins, Jr., in the petitioner’s wrongful discharge

action.1 Because we find that the petitioner stated a claim for discharge in contravention

of a substantial public policy, we reverse the circuit court’s order on that issue and

remand for further proceedings.



                                          I. FACTS



              Petitioner Jackie L. Brown, II was a police officer employed by Respondent

City of Montgomery (hereinafter “the City”) from 2007 until 2011. In approximately

2009, the petitioner accepted the position of Chief of Police of the Montgomery Police

Department under the authority of Respondent James F. Higgins, Jr., the Mayor of the

City of Montgomery.



              During the petitioner’s tenure with the police department, another officer,

Lieutenant James Ivy, instituted a legal action against the City for racial discrimination

and violations of his constitutional rights. The suit ultimately settled.




       1
       The circuit court’s order also denied the petitioner’s motion to file an amended
complaint, but the petitioner does not assign this ruling as error.
                                               1

              In November 2011, the petitioner’s employment with the City was

terminated. In June 2012, the petitioner filed a complaint in the Circuit Court of Fayette

County against both the City and Mayor Higgins. In his complaint, the petitioner alleged,

in relevant part, the following:

                      4. On or about April 7, 2011, one James Ivy, fellow
              Montgomery City police officer, instituted a civil action
              against the City of Montgomery and Mayor Higgins alleging
              racial discrimination and constitutional violations with regard
              to his employment with the city. The case was ultimately
              settled.
                      5. During the periods of his employment, the
              defendants directed the plaintiff to retaliate against the said
              James Ivy for Ivy’s filing of the law suit against the City.
              They specifically asked plaintiff to place a GPS device in
              Ivy’s cruiser to track his whereabouts[.] Plaintiff refused to
              obey the Orders of the Police Department in regard to James
              Ivy.
                      6. Defendant Higgins often ordered the Plaintiff to do
              things that were not consistent with the laws of the State of
              West Virginia. When Plaintiff refused and pointed out the
              illegality of such orders, Defendant would become enraged
              and verbally abusive.
                      7. On November 29, 2011, the defendant James F.
              Higgins, Jr., presented to the plaintiff a discharge letter
              terminating his employment with the City of Montgomery
              and which letter failed to state the reasons for said
              termination and failed to provide a pre-termination hearing as
              required by the statutes of the State of West Virginia,
              specifically West Virginia Code § 8-14A-1 et seq.

The petitioner asserted two causes of action in his complaint. First, he averred that he was

discharged without a pre-termination hearing in violation of W. Va. Code § 8-14A-1 et

seq. Second, the petitioner claimed that he was discharged in contravention of public

policy. Specifically, the petitioner stated:



                                               2

                      14. The defendants’ actions constitute an unlawful
              discharge in contravention of public policy of the State of
              West Virginia, as outlined in Harless v. First National Bank
              of Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978). The
              plaintiff’s termination was motivated in whole or in part by
              retaliation and in contravention of a substantial public policy,
              including but not limited to the public policy against
              retaliation or intimidation of police officers for refusing to
              retaliate against or otherwise harass and intimidate
              individuals for purposes unrelated to the prevention of crime,
              all contrary to West Virginia Code § 61-5-27, as amended,
              among other statutes.2




       (Footnote added.) The respondents subsequently filed a motion to dismiss

pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. In their motion,

the respondents first asserted that the petitioner was not entitled to a pre-termination

hearing. In support of this assertion, the respondents posited that because the City of

Montgomery is a Class III city with a police department that is not governed by civil

service statutes, the petitioner was not entitled to a pre-termination hearing. In addition,

the respondents argued that as chief of police the petitioner served at the will and

pleasure of the mayor. Finally, the respondents contended that the statute relied on by the

petitioner in his complaint provides that only an officer accused of wrongdoing is entitled

to a pre-termination hearing and that the petitioner was not an accused officer under that

statute.

       2
        W. Va. Code § 61-5-27 (1999) makes it a crime to obstruct legal proceedings by
intimidating or retaliating against public officers, employees, jurors, and witnesses. We
do not deem this code section particularly applicable to the petitioner’s cause of action.
However, as we indicate later in this opinion, this is not fatal to the petitioner’s
complaint.
                                             3

              Second, the respondents argued in their motion to dismiss that they are

entitled to qualified immunity. According to the respondents, the only specific request

made of the petitioner by the mayor was to place a GPS device in Officer Ivy’s police

car. The respondents further averred that placing a GPS device in a city-owned police car

is not illegal. Finally, the respondents contended that the petitioner’s complaint does not

include an allegation of a violation of a specific law that Mayor Higgins would have

known he was violating when he requested the petitioner to place the GPS device in

Officer Ivy’s police car.



              By order dated November 16, 2012, the circuit court granted the

respondents’ motion to dismiss. First, the circuit court agreed with the respondents that

because the petitioner held the at-will position of police chief, he was not entitled to a

pre-termination hearing. The circuit court also found that because the petitioner was not

terminated for alleged wrongdoing, he was not “an accused officer” for purposes of the

pre-termination hearing statute. Further, the circuit court found that the respondents are

entitled to qualified immunity. In support of its finding, the circuit court reasoned that the

petitioner staked his entire retaliation claim on the single allegation of being fired for

refusing to place a GPS tracking device in Officer Ivy’s police car. The circuit court

found, however, that placing a GPS device in a city-owned police car is not unlawful.

Therefore, the circuit court concluded that because the respondent’s alleged conduct did

not violate clearly established laws of which a reasonable official would have known and



                                              4

was not fraudulent, malicious, or otherwise oppressive, the respondents are entitled to

qualified immunity.



                                 II. STANDARD OF REVIEW

                In this appeal, the petitioner challenges the circuit court’s granting of the

respondents’ motion to dismiss. We previously have indicated that “[a]ppellate 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, 194 W. Va. 770, 461 S.E.2d 516

(1995).


                                      III. DISCUSSION

                                  A. Pre-termination Hearing

                In his first assignment of error, the petitioner alleges that he was wrongly

denied a pre-termination hearing pursuant to W. Va. Code § 8-14A-3 (1997). The

petitioner explains that even though the position of chief of police is an at-will position,

he was a police officer for the City prior to his appointment as chief of police, and he

never ceased to be a police officer when he became police chief. According to the

petitioner, his termination letter from Mayor Higgins specified that the petitioner was not

only relieved of his position of police chief but also terminated from employment with

the City as a police officer.3




3
    The petitioner’s termination letter is not included in the appendix.
                                                5

              The respondents counter that pursuant to W. Va. Code § 8-1-3(3) (1969),

the City of Montgomery is a Class III city, and its police department is a non-civil service

department.4 As a result, the petitioner was not subject to civil service protections but

rather served as an at-will employee.5 In addition, the City argues that the pre-termination

hearing required by W. Va. Code § 8-14A-3 applies only to officers accused of

wrongdoing. The City concludes that because the petitioner was not accused of

wrongdoing, he was properly terminated at the will and pleasure of the mayor.



              This Court finds no error in the fact that the petitioner was terminated

absent a pre-termination hearing. While the pre-termination hearing provision of W. Va.

Code § 8-14A-3, appears to apply to both civil service and non-civil service police

departments, see W. Va. Code § 8-14A-1(4)(b) (1997) (explaining operation of a hearing

board for “noncivil service police departments”), the statute provides that only “an

accused officer” is entitled to a pre-termination hearing. Specifically, W. Va. Code § 8­

14A-3(a) states that “[b]efore taking any punitive action against an accused officer, the

police . . . department shall give notice to the accused officer that he or she is entitled to a

hearing on the issues by a hearing board or the applicable civil service commission.” The

term “accused officer” is defined in W. Va. Code § 8-14A-1(1) as “any police officer . . .

       4
         According to W. Va. Code § 8-1-3(3), “[e]very municipal corporation with a
population in excess of two thousand but not in excess of ten thousand shall be a Class III
city[.]”
       5
          See e.g., W. Va. Code § 8-14-7(a) (2013) (providing that “[i]n every Class I and
Class II city having a paid police department, there shall be a ‘Policemen’s Civil Service
Commission.’”)
                                               6

who is the subject of an investigation or interrogation which results in a recommendation

of punitive action against him or her.” As the circuit court found, the petitioner did not

allege in his complaint that he was “an accused officer” under the statutory definition.

Consequently, the petitioner was not entitled to a pre-termination hearing pursuant to W.

Va. Code § 8-14A-3.



              The petitioner opines, however, that the circuit court’s construction of the

statute cannot be correct. The petitioner explains that under the circuit court’s rationale, a

police officer could be deprived of his or her right to a hearing simply by being

terminated for no reason instead of being terminated for alleged wrongdoing. We reject

the petitioner’s argument.



              It is undisputed that the police department of the City of Montgomery is a

non-civil service police department. Significantly, while a member of a civil service

police department can be terminated only for just cause, see W. Va. Code § 8-14-20(a)

(1996) (stating that “[n]o member of any paid police department subject to the civil

service provisions of this article may be removed, discharged, suspended or reduced in

rank or pay except for just cause”), the same is not true of a member of a non-civil

service police department. If this Court were to agree with the petitioner that a member of

a non-civil service police department can be terminated only after a finding of

wrongdoing in a pre-termination hearing, we would be granting members of non-civil

service police departments the same protections as members of civil service police

                                              7

departments, a position which is inconsistent with statutory law. This we decline to do.

Therefore, we find no error in the circuit court’s finding that it was not improper to

terminate the petitioner’s position as a police officer absent a pre-termination hearing,

and we affirm the circuit court’s ruling on this issue.



                     B. Discharge in Contravention of Public Policy

                        1. Viability of Petitioner’s Cause of Action

              In his second assignment of error, the petitioner contends that the circuit

court erred in granting the respondents’ motion to dismiss his claim for discharge in

contravention of public policy. According to the petitioner, his complaint pleaded

sufficient facts to support his claim that he was terminated for his refusal to retaliate

against Officer Ivy for Officer Ivy’s filing of a racial discrimination claim against the

City.



              First, this Court agrees with the petitioner that refusing to retaliate against

Officer Ivy for his filing of a racial discrimination claim against the City constitutes a

substantial public policy of this State. In the Syllabus of Harless v. First National Bank,

162 W. Va. 116, 246 S.E.2d 270 (1978), this Court held:

                     The rule that an employer has an absolute right to
              discharge an at will employee must be tempered by the
              principle that where the employer’s motivation for the
              discharge is to contravene some substantial public policy
              principle, then the employer may be liable to the employee
              for damages occasioned by this discharge.


                                              8

“To identify the sources of public policy for purposes of determining whether a

retaliatory discharge has occurred, we look to established precepts in our constitution,

legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. pt.

2, Birthisel v. Tri-Cities Health Services, 188 W. Va. 371, 424 S.E.2d 606 (1992). Also,

“[i]nherent in the term ‘substantial public policy’ is the concept that the policy will

provide specific guidance to a reasonable person.” Syl. pt. 3, Id. The sources of the public

policy at issue in this case are found in the State’s Human Rights Act, W. Va. Code §§ 5­

11-1 et seq., and the holdings of this Court.



              There can be no dispute that providing equal opportunity for employment

regardless of race constitutes a substantial public policy of this State. According to W.

Va. Code § 5-11-2 (1998),

                     [i]t is the public policy of the state of West Virginia to
              provide all of its citizens equal opportunity for employment[.]
              Equal opportunity in the area[] of employment . . . is hereby
              declared to be a human right or civil right of all persons
              without regard to race, religion, color, national origin,
              ancestry, sex, age, blindness or disability. . . .
                     The denial of these rights to properly qualified persons
              by reason of race, religion, color, national origin, ancestry,
              sex, age, blindness, disability or familial status is contrary to
              the principles of freedom and equality of opportunity and is
              destructive to a free and democratic society.

In accord with W. Va. Code § 5-11-2, this Court held in Syllabus Point 8 of Williamson

v. Greene, 200 W. Va. 421, 490 S.E.2d 23 (1997), in part:

              [A] discharged employee may . . . maintain a common law
              claim for retaliatory discharge against the employer based on
              alleged sex discrimination or sexual harassment because sex

                                                9
              discrimination and sexual harassment in employment
              contravene the public policy of this State articulated in the
              West Virginia Human Rights Act, W. Va. Code, 5-11-1, et
              seq.

Also, this Court has indicated that “[t]he West Virginia Human Rights Act . . . reflect[s]

the public policy of the State of West Virginia in the field of human relations[] [and] is

designed to prohibit discrimination in employment . . . by reason of race, religion, color,

national origin, ancestry, sex or age.” W. Va. Human Rights Comm. v. TenPin Lounge,

158 W. Va. 349, 350–51, 211 S.E.2d 349, 351 (1975).



              Of particular significance to this case is W. Va. Code § 5-11-9(7) (1998),

which provides that it shall be an unlawful discriminatory practice

              [f]or any person[] [or] employer . . . to:
              (A) Engage in any form of threats or reprisal, or to engage in,
              or hire, or conspire with others to commit acts or activities of
              any nature, the purpose of which is to harass, degrade,
              embarrass or cause physical harm or economic loss or to aid,
              abet, incite, compel or coerce any person to engage in any of
              the unlawful discriminatory practices defined in this section;
              (B) Willfully obstruct or prevent any person from complying
              with the provisions of this article, or to resist, prevent, impede
              or interfere with the commission or any of its members or
              representatives in the performance of a duty under this article;
              or
              (C) 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.

Based on this code section, this Court has held:

                    A cause of action may be maintained by a plaintiff
              employee as against another employee under the West

                                             10
              Virginia Human Rights Act. Further, the cause of action may
              properly be based upon an allegation that the defendant
              employee aided or abetted an employer engaging in unlawful
              discriminatory practices.

Syl. pt. 4, Holstein v. Norandex, Inc., 194 W. Va. 727, 461 S.E.2d 473 (1995). We have

further held based on this code section that “W. Va. Code 5-11-9(7)(C) (1992), prohibits

an employer or other person from retaliating against any individual for expressing

opposition to a practice that he or she reasonably and in good faith believes violates the

provisions of the West Virginia Human Rights Act.” Syl. pt. 11, Hanlon v. Chambers,

195 W. Va. 99, 464 S.E.2d 741 (1995).



              Our law is clear that it is a substantial public policy of this State that

employees are treated equally regardless of race. Toward that end, our law prohibits an

employer from retaliating against an employee for filing a racial discrimination claim

against the employer. Our law also prohibits an employer from discriminating against an

employee for opposing any practices forbidden by the Human Rights Act. These laws are

clear and they provide specific guidance to a reasonable person. Therefore, this Court

now holds that it is a violation of the substantial public policy of this State for an

employer to discriminate against an employee for refusing to retaliate against another

employee who has filed a racial discrimination claim against the employer. Having so

held, we next address the issue whether the petitioner has stated in his complaint

sufficient facts to support such a claim.




                                            11

                          2. Sufficiency of Petitioner’s Complaint

              The principles governing the sufficiency of a complaint in this State have

been stated as follows:

                     The Supreme Court stated in Dimon v. Mansy 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).

                     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 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. . . .


                                               12

                     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). . . .

                      It has been held that a plaintiff who initially pleads a
              legal theory that is unsustainable on the facts contained in the
              complaint may later survive dismissal by suggesting, in
              response to a motion under Rule 12(b)(6), a theory that would
              give rise to relief on facts not inconsistent with those in the
              complaint. Additionally, it has been said that a plaintiff may
              even be able to revive a claim dismissed under Rule 12(b)(6),
              by asserting on appeal new facts and theories that are
              consistent with the original complaint.

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). Finally, this Court has held:

                      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. Conley v. Gibson, 355 U.S. 41, 45 – 46
              (1957).

Syl. pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977).




              In his complaint, the petitioner alleges that Officer Ivy instituted a civil

action against the City and Mayor Higgins alleging racial discrimination with regard to

Officer Ivy’s employment as a city police officer. The petitioner further alleges that

Mayor Higgins directed the petitioner to place a GPS device in Officer Ivy’s police car to

track his whereabouts in retaliation against Officer Ivy for filing his racial discrimination


                                             13

lawsuit against the City. In addition, the petitioner alleges that he refused to follow

Mayor Higgins’ directive regarding placing the GPS device in Officer Ivy’s police car

and, as a result, Mayor Higgins terminated his employment as a police officer with the

City. Finally, the petitioner contends in his complaint that his termination was in

contravention of Harless because the motive for his termination was to retaliate against

him “for refusing to retaliate against or otherwise harass and intimidate individuals for

purposes unrelated to the prevention of crime.”6



               In construing the petitioner’s complaint in the light most favorable to the

petitioner, we find that the complaint has stated a cause of action for wrongful discharge

for refusing to retaliate against Officer Ivy because Officer Ivy filed a race-based

discrimination claim against the respondents. We believe that the petitioner’s complaint

gives the respondents fair notice of the petitioner’s claim and the grounds upon which it

rests. Finally, we conclude that if the petitioner can prove the facts alleged in his

complaint, he is entitled to relief.



                           3. Applicability of Qualified Immunity

               In his final assignment of error, the petitioner opines that the circuit court

erred in finding that the respondents are entitled to qualified immunity. According to the


       6
        The fact that the petitioner did not cite the correct code section in support of his
claim is not fatal. As was stated in the Litigation Handbook on West Virginia Rules of
Civil Procedure, infra, 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.
                                             14

petitioner, qualified immunity does not shield public officials who engage in illegal

activity. The petitioner explains that he alleges in his complaint that he was terminated

for refusing to retaliate against a police officer who had sued the City for racial

discrimination. The petitioner concludes that such discrimination is illegal and is not

covered by qualified immunity.



              According to the respondents, the circuit court properly found that qualified

immunity protects them from the petitioner’s suit. The respondents explain that the only

illegal order alleged in the petitioner’s complaint is the order to place a GPS device on

Officer Ivy’s police car to track his whereabouts. The respondents assert that there is no

law against a city placing a GPS device on a city-owned police car. Therefore, the

petitioner fails to allege that the respondents breached a specific law or acted maliciously

or in bad faith. As a result, the respondents argue that they are entitled to qualified

immunity.



              This Court finds that the circuit court erred in ruling that the respondents

are protected from the petitioner’s suit by qualified immunity. Under our law,

                     [a] public executive official who is acting within the
              scope of his authority and is not covered by the provisions of
              W. Va. Code, 29-12A-1, et seq., is entitled to qualified
              immunity from personal liability for official acts if the
              involved conduct did not violate clearly established laws of
              which a reasonable official would have known. There is no
              immunity for an executive official whose acts are fraudulent,
              malicious, or otherwise oppressive.


                                            15

Syl., in part, State v. Chase Securities, Inc., 188 W. Va. 356, 424 S.E.2d 591 (1992).



               In applying our holding in Chase to the instant facts, we first must

determine whether the respondents are covered by the provisions of The Governmental

Tort Claims and Insurance Reform Act (hereinafter “Tort Claims Act”), W. Va. Code §

29-12A-1 et seq. Regarding whether the City of Montgomery is covered under the Act,

W. Va. Code § 29-12A-18 (1986) provides that

                      [t]his article does not apply to, and shall not be
               construed to apply to, the following . . . (b) Civil actions by
               an employee . . . against his or her political subdivision
               relative to any matter that arises out of the employment
               relationship between the employee and the political
               subdivision[.]

The petitioner’s civil action against the City of Montgomery, which is a political

subdivision under the Tort Claims Act,7 alleges wrongful discharge of the petitioner as an

employee of the City and thus arises out of the employment relationship between the

petitioner and the City. Therefore, the City is not covered by the Tort Claims Act under

the facts of this case.



               With regard to whether Mayor Higgins is covered by the provisions of the

Tort Claims Act, W. Va. Code § 29-12A-5(b) (1986) states that “[a]n employee of a

political subdivision is immune from liability unless one of the following applies . . . (3)

Liability is expressly imposed upon the employee by a provision of this code.” As set

       7
       W. Va. Code § 29-12A-3(c) (1986) defines “political subdivision” as “any . . .
municipality.”
                                             16

forth above, W. Va. Code § 5-11-9(7)(C) provides that it is an unlawful discriminatory

practice “[f]or any person” to discriminate against an employee for opposing conduct that

is forbidden by the Human Rights Act. In regard to this code section, this Court held in

syllabus point 3 of Holstein v. Norandex, 194 W. Va. 727, 461 S.E.2d 473 (1995), that

                      [t]he term “person,” as defined and utilized within the
              context of the West Virginia Human Rights Act, includes
              both employees and employers. Any contrary interpretation,
              which might have the effect of barring suits by employees
              against their supervisors, would be counter to the plain
              meaning of the statutory language and contrary to the very
              spirit and purpose of this particular legislation.

The petitioner alleges in his complaint that Mayor Higgins discharged him for refusing to

retaliate against Officer Ivy for filing a racial discrimination lawsuit against the City,

conduct for which liability is expressly imposed upon an employee by W. Va. Code § 5­

11-9(7)(C). Therefore, because liability is expressly imposed on Mayor Higgins by W.

Va. Code § 5-11-9(7), he is not immune from liability under the Tort Claims Act.



              Having found that the respondents are not covered by the provisions of the

Tort Claims Act, we next must determine whether the conduct alleged by the petitioner

violated clearly established laws of which a reasonable official would have known. The

petitioner alleges in his complaint that Mayor Higgins discharged him for refusing to

retaliate against Officer Ivy for filing a racial discrimination lawsuit against the City.8 As



8
  In its analysis below, the circuit court erred in focusing on whether placing a GPS
device in a city-owned police car violated a clearly established law of which a reasonable
official would have known. The petitioner’s primary allegation involves the Mayor’s
                                             17

set forth above, the Human Rights Act at W. Va. Code § 5-11-9(7)(C), prohibits such

conduct. In addition, we find that this provision is clearly established in that it has been

part of the Human Rights Act since 1973. See Chapter 25 of the Acts of the Legislature,

First Extraordinary Session, 1973. Further, we previously have recognized that “[t]he

employer is bound, at a minimum, to know the fundamental public policies of the state

and nation as expressed in their . . . statutes[.]” Birthisel, 188 W. Va. at 377, 424 S.E.2d

at 612 (citation omitted). Therefore, we conclude that a reasonable official of a West

Virginia city, such as Mayor Higgins, would know the provisions of the Human Rights

Act.



              Finally, under our law, there is no qualified immunity for an executive

official whose acts are fraudulent, malicious, or otherwise oppressive. In his complaint,

the petitioner alleges that Mayor Higgins’ acts were “willful, reckless, malicious, and/or

taken with reckless disregard for” the petitioner’s rights. By alleging that Mayor Higgins

discharged him for refusing to retaliate against Officer Ivy for filing a racial

discrimination lawsuit against the City, the petitioner has alleged facts sufficient to

support his allegation that Mayor Higgins’ conduct was malicious. Therefore, we find

that the respondents are not entitled to qualified immunity from the facts alleged by the

petitioner in his complaint.




allegedly wrongful motivation for placing the device in Officer Ivy’s police car, not the
conduct itself.
                                            18
                                   IV. CONCLUSION

              For the reasons set forth above, this Court concludes that the circuit court

properly ruled that the petitioner was not entitled to a pre-termination hearing, and we

affirm the circuit court on that issue. In addition, we find that the petitioner’s complaint

alleges sufficient facts to support a claim for wrongful discharge in violation of a

substantial public policy pursuant to Harless v. First National Bank, and that the

respondents are not entitled to qualified immunity from the petitioner’s cause of action

for wrongful discharge. Therefore, we reverse the circuit court’s ruling on that issue.

Accordingly, the November 16, 2012, order of the Circuit Court of Fayette County that

dismissed the petitioner’s complaint under Rule of 12(b)(6) of the West Virginia Rules of

Civil Procedure is affirmed in part, reversed in part, and remanded for proceedings

consistent with this opinion.

                                        Affirmed in part, reversed in part, and remanded.




                                            19

