                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

Mercer County Board of Education,
Defendant Below, Petitioner                                                       FILED
                                                                              November 4, 2019
vs.) No. 18-0711 (Mercer County 18-C-36)                                      EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Holly Ruskauff,
Plaintiff Below, Respondent


                               MEMORANDUM DECISION


       Petitioner Mercer County Board of Education (“BOE”), by counsel Chip E. Williams,
Ashley Justice Tucker, and Jared C. Underwood, appeals the Circuit Court of Mercer County’s
July 10, 2018, order granting, in part, and denying, in part, its motion to dismiss respondent’s
complaint. Respondent Holly Ruskauff, by counsel Scott H. Kaminski, filed a response. The
BOE filed a reply.

        The Court has considered the parties’ briefs and record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. This case satisfies the “limited circumstances” requirement of Rule 21(d) of
the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this
case is remanded to the circuit court for entry of an order dismissing respondent’s remaining
claim.

        On February 14, 2018, respondent filed a complaint against the BOE asserting causes of
action for negligence and a deprivation of procedural due process. Respondent, a speech teacher,
detailed that she was a BOE employee from 2011 through 2015, and that during a February 10,
2015, board meeting, the BOE suspended her employment. Respondent alleged that the
suspension and reason for it were posted to the internet in the BOE’s meeting minutes.1

       1
           The relevant portion of the meeting minutes provided as follows:

       Employee Disciplinary Action
       Board Memo #149

       On motion of Mr. Hodges, seconded by Mr. Hurt, and by a 4-0 vote, the Board
       confirmed the suspension of [respondent]. [Respondent] was suspended for ten
       days, from February 5-18, 2015, without pay, due to her failure to report to work

                                                                                   (continued . . . )
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Respondent further alleged that, subsequent to her suspension, she attempted to find substitute
employment. During this search, she was informed by Emily Karnes, another BOE employee,
that a representative of the Somerset County, Maryland, Board of Education had contacted her
and referenced the employment action detailed in the meeting minutes, as those minutes were
available for viewing online. The Somerset County Board of Education did not hire respondent.

       In support of her negligence count, respondent asserted that the BOE breached its duty to
maintain the confidentiality of her personal employment information by posting the reason for its
employment decision on its website. This breach allegedly caused respondent to lose
employment opportunities and suffer lost wages, benefits, and other damages.2

       Respondent’s due process claim was predicated on the BOE’s alleged failure to provide
her with a predetermination conference and other related deprivations, such as the failure to
provide certain written notices.

       The BOE moved to dismiss respondent’s complaint for failure to state a claim upon
which relief could be granted. The BOE asserted that both of respondent’s claims against it were

       as assigned, providing false information to her supervisor when questioned
       regarding work attendance, and falsifying student service records in an attempt to
       mislead her supervisor. In a letter, dated January 29, 2015, [respondent] waived
       her right to a hearing in this matter and accepted the suspension.

Respondent does not deny the conduct set forth here.
       2
           Respondent’s negligence count, in relevant part, reads as follows:

                                  COUNT ONE – NEGLIGENCE

       11.    As an education institution and employer, West Virginia and United States
       law imposes a duty on [the BOE] to maintain the confidentiality of [respondent’s]
       personal employment information including but not limited to any reasons for any
       personnel decisions.. [sic]

       12.    [The BOE] breached that duty by displaying the reason for the personnel
       decision on its website such that the public including other potential employers
       have access to said information.

       13.     The aforesaid breach by [the BOE] proximately caused [respondent] to
       lose employment opportunities and suffer lost wages and benefits, great emotional
       distress, anxiety, humiliation, embarrassment and other such damages as shall
       come to light through discovery.

       14.   Accordingly, [respondent] is entitled to recovery from [the BOE] in an
       amount of money sufficient to compensate her for her damages.



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barred by the doctrine of qualified immunity and the applicable one-year statute of limitations. In
her response to this motion, respondent argued that despite a duty of confidentiality with respect
to employee discipline, her disciplinary action remained available on the BOE’s website in its
meeting minutes. Respondent appended to her response the BOE’s February 10, 2015, meeting
minutes, quoted above.

        Respondent also attached a February 17, 2016, e-mail from Ms. Karnes, informing her
that the Somerset County representative had seen the meeting minutes. Respondent had
previously e-mailed Ms. Karnes to inquire into the negative reference provided to the Somerset
County representative and to request that future references be based on the first three years of her
four-year employment with the BOE, which she characterized as positive. In her e-mail response,
Ms. Karnes informed respondent that she did not provide a negative reference and, instead, only
provided the representative with respondent’s employment date range. Ms. Karnes also noted
that the Somerset County representative “reference[d] the [BOE] memo disciplinary action that
had your name on it. (Board memo’s [sic] are public knowledge)[.] However, I told her I could
not discuss the issue.”

       The parties appeared for a hearing on the BOE’s motion to dismiss on June 1, 2018. On
July 10, 2018, the circuit court entered its order granting the BOE’s motion with respect to
respondent’s procedural due process claim. But the court found that

       [t]here is a dispute as to whether the [BOE] is required to include the reasoning
       for employment decisions or disciplinary actions in meeting minutes, or in the
       alternate whether the [BOE] must include only the final decision without the
       reasoning for said decision. Further, it is unclear what the [BOE] representative
       told the representative from Somerset County with regard to [respondent’s] prior
       employment.

Accordingly, the court denied the BOE’s motion as to the negligence claim. This appeal
followed.

        We review a circuit court’s denial of a motion to dismiss de novo. See Syl. Pt. 4, in part,
Ewing v. Bd. of Educ., 202 W. Va. 228, 503 S.E.2d 541 (1998). “For 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.” W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654, 660, 783 S.E.2d 75, 81
(2015) (citation omitted). “[D]ismissal for failure to state a claim is only proper where it is clear
that no relief could be granted under any set of facts that could be proved consistent with the
allegations in the complaint.” Id. (citation omitted). But a plaintiff’s complaint must “at a
minimum . . . set forth sufficient information to outline the elements of his [or her] claim,” and
“in civil actions where immunities are implicated, the trial court must insist on heightened
pleading by the plaintiff.” Id. (citations omitted).

       The BOE asserts that the circuit court erred in denying its motion to dismiss respondent’s
negligence claim for several reasons. First, the BOE argues that it is entitled to qualified
immunity and that qualified immunity bars negligence claims against governmental officials.
The BOE also argues that the court erred in denying its motion on the basis that a dispute exists

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as to whether the BOE must include in its meeting minutes only its employment decision and not
the reasoning for that decision. According to the BOE, any such dispute amounts to a question of
law for the court’s resolution, not a question of fact for a jury. Additionally, the BOE claims
error in the court’s conclusion that it is unclear what the BOE representative told the
representative with Somerset County regarding respondent’s prior employment. Finally, the BOE
contends that the circuit court failed to address its argument that respondent’s claim is barred by
the applicable one-year statute of limitations.

       In determining whether the BOE is entitled to qualified immunity,

       a reviewing court must first identify the nature of the governmental acts or
       omissions which give rise to the suit for purposes of determining whether such
       acts or omissions constitute legislative, judicial, executive or administrative
       policy-making acts or involve otherwise discretionary governmental functions. To
       the extent that the cause of action arises from judicial, legislative, executive or
       administrative policy-making acts or omissions, both the State and the official
       involved are absolutely immune pursuant to Syl. Pt. 7 of Parkulo v. W. Va. Bd. of
       Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

Syl. Pt. 10, in part, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d
751 (2014). Then,

               [t]o the extent that governmental acts or omissions which give rise to a
       cause of action fall within the category of discretionary functions, a reviewing
       court must determine whether the plaintiff has demonstrated that such acts or
       omissions are in violation of clearly established statutory or constitutional rights
       or laws of which a reasonable person would have known or are otherwise
       fraudulent, malicious, or oppressive in accordance with State v. Chase Securities,
       Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a showing, both
       the State and its officials or employees charged with such acts or omissions are
       immune from liability.

A.B. at 497, 766 S.E.2d at 756, syl. pt. 11. Respondent does not dispute that, under appropriate
circumstances, the BOE could be entitled to qualified immunity and that its actions here involve
discretionary functions.3 Rather, she contends that the BOE’s actions in displaying the basis for
its employment decision in its public meeting minutes violated her “interest in privacy” and
“breached its duty of confidentiality,” thereby violating a “clearly established statutory or
constitutional right[] or law[] of which a reasonable person would have known[.]” Id.


       3
         Likewise, there is no dispute that respondent’s claim is not within the purview of the
West Virginia Governmental Tort Claims and Insurance Reform Act. See W. Va. Code § 29-
12A-18(b) (stating that the Act does not apply to “[c]ivil 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”).



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        In support of her position, respondent cites Roach v. Harper, 143 W. Va. 869, 105 S.E.2d
564 (1958), and Cordle v. General Hugh Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984).
In Roach, Ms. Roach’s landlord installed a listening device in her rental apartment without her
knowledge, allowing him to overhear her confidential and private conversations. Id. at 870, 105
S.E.2d at 565. She filed a trespass action and asserted that the landlord invaded her right to
privacy. Id. The landlord asserted that no right of action existed in the state for recovering
damages occasioned by an invasion of privacy. Id. Recognizing that there was no authority
directly relating to the issue, this Court considered that the majority of jurisdictions permitted
such a cause of action and held that “[t]he right of privacy, including the right of an individual to
be let alone and to keep secret his private communications, conversations and affairs, is a right
the unwarranted invasion or violation of which gives rise to a common law right of action for
damages.” Id. at 869-70, 105 S.E.2d at 564, syl. pt. 1.

       Building on our holding in Roach, we held in Cordle

       that it is contrary to the public policy of West Virginia for an employer to require
       or request that an employee submit to a polygraph test or similar test as a
       condition of employment, and although the rights of employees under that public
       policy are not absolute, in that under certain circumstances, such as those
       contemplated by W.Va. Code, 21-5-5b [1983], such a polygraph test or similar test
       may be permitted, the public policy against such testing is grounded upon the
       recognition in this State of an individual’s interest in privacy.

174 W. Va. at 327, 325 S.E.2d at 117.

        To bolster her claim that this right prohibited the BOE’s actions, respondent contends that
the right of privacy has been extended to the employment context, as done in Cordle, and notes
that the Freedom of Information Act exempts from disclosure “[i]nformation of a personal nature
such as that kept in a personal, medical, or similar file, if the public disclosure of the information
would constitute an unreasonable invasion of privacy.” W. Va. Code § 29B-1-4(a)(2), in part.
Respondent also states that employers “routinely refuse to disclose personnel records on the
basis of confidentiality.” See Rollins ex rel. Rollins v. Barlow, 188 F.Supp.2d 660, 663 (S.D. W.
Va. 2002) (noting that “State Police personnel records are confidential just as personnel records
of any employer should be confidential to protect the privacy concerns of employees”).

        We have stated that “a right is ‘clearly established’ when its contours are ‘sufficiently
clear that a reasonable official would understand that what he is doing violates that right.’” A.B.,
234 W. Va. at 517, 766 S.E.2d at 776. Further,

       [t]o prove that a clearly established right has been infringed upon, a plaintiff must
       do more than allege than an abstract right has been violated. Instead, the plaintiff
       must make a “particularized showing” that a “reasonable official would
       understand that what he is doing violated that right” or that “in light of preexisting
       law the unlawfulness” of the action was “apparent.” Anderson v. Creighton, 483
       U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).



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W. Va. Dep’t of Health and Human Res. v. V.P., 241 W. Va. 478, __, 825 S.E.2d 806, 813 (2019)
(citing Hutchison v. City of Huntington, 198 W. Va. 139, 149 n.11, 479 S.E.2d 649, 659 n.11
(1996)). The authority cited by respondent does not speak to the conduct here—namely, the
BOE’s recordation of the basis for its suspension of respondent’s employment—or render it
sufficiently clear that the basis for the BOE’s employment decision may not be included in its
public meeting minutes. Similarly, an employer’s “refusal to disclose” personnel files, which
may include medical information, Social Security numbers, or other sensitive information, does
not equate to a “clearly established” privacy right in the basis for the BOE’s employment
decision. Simply put, respondent’s arguments and cited cases fail to render it “sufficiently clear”
that inclusion of the BOE’s employment decision in its meeting minutes violated any right, and
she has yet to identify a clearly-established statutory or constitutional right or law that the BOE
violated by recording the basis for its suspension of her employment in its public meeting
minutes. Because respondent failed to plead or otherwise identify a clearly established law,
statute, or regulation that the BOE violated, she has failed to state a claim. See W. Va. Bd. of
Educ. v. Croaff, No. 16-0532, 2017 WL 2172009, *7 (W. Va. May 17, 2017)(memorandum
decision) (detailing cases where the failure to identify a specific law, statute, or regulation that
was violated amounted to a “fatal flaw” in the complaint). Accordingly, the BOE is entitled to
qualified immunity; and, as such, we need not address the BOE’s other assignments of error.

       For the foregoing reasons, we reverse the circuit court’s order denying the BOE’s motion
to dismiss petitioner’s negligence claim and remand the case for entry of a dismissal order.

                                                                          Reversed and remanded.



ISSUED: November 4, 2019

CONCURRED IN BY:

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




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