                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


C. D.,
Plaintiff Below, Petitioner                                                          FILED
                                                                                 October 20, 2017
vs) No. 16-1035 (Grant County 15-C-25)                                             RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Grant County Board of Education,
Defendant Below, Respondent


                               MEMORANDUM DECISION

        Petitioner C.D.1, by counsel Jared T. Moore, appeals the order of the Circuit Court of
Grant County that granted summary judgment in favor of the Grant County Board of Education
(“the Board”). The Board, by counsel Ancil G. Ramey, filed a response to which petitioner filed
a reply brief.

        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.

        At all times relevant herein, petitioner was a senior at Petersburg High School. She
suffers from diabetes, and her illness requires her to wear an insulin pump in order to check her
blood sugar levels frequently. Because of her condition, the Board agreed to excuse any absences
related to her illness, pursuant to a 504 plan.2 According to petitioner’s 504 plan, petitioner
would not be penalized for absences required for medical appointments/illness. During the 2014­
2015 school year, petitioner’s 504 team met to discuss her condition at the beginning of the
school year, but did not meet again.

        In the fall semester of 2014, petitioner missed several days of school. In December of

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773
S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
       2
          Section 504 of the Rehabilitation Act of 1973 is codified in 29 U.S.C. 794, and states, in
relevant part, that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason
of his disability, be excluded from the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal financial assistance.”
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2014, Assistant Principal Paula Weese, called petitioner’s father to tell him that petitioner had
accumulated more than five absences. A notice was also sent to petitioner, who was not living
with her parents, but with a boyfriend, that informed her of the accumulation of five unexcused
absences, and that a truancy complaint would be filed if she continued to be absent without an
excuse. Petitioner also met with Ms. Weese regarding her absences3 in December of 2014.

        According to petitioner, during that meeting she provided written excuses for all of her
absences, and was informed that the Board knew about her condition, and that she did not have
to worry about a truancy complaint. Petitioner also asserts that Ms. Weese told her during the
meeting that “due to Ms. D. being on a 504 plan, the [Board] would contact Ms. D. or her father
before truancy was considered.” The Board denies that petitioner provided an excuse for all of
her absences, and asserts that the excuses were not provided until January of 2015. The Board
also asserts that some of the excuses were due to a “job interview,” “transportation problems,”
and “back pain.”

        In the spring semester of 2015, petitioner accumulated fourteen additional unexcused
absences. A truancy complaint was filed on April 9, 2015. The Board did not send petitioner an
additional notice, or make additional attempts to contact petitioner or her father prior to filing the
complaint. Petitioner was arraigned on the truancy complaint on April 15, 2015. On May 12,
2015, petitioner’s father sent a letter to the Board identifying the dates that petitioner was absent
due to her diabetes. Subsequently, the truancy complaint was dismissed.

       Petitioner filed suit against the Board on July 17, 2015, asserting claims for failure to
accommodate pursuant to the West Virginia Human Rights Act; malicious prosecution; and
reckless infliction of emotional distress. The Board filed an answer and a motion for summary
judgment. Petitioner also filed a motion for summary judgment. At a hearing held September 19,
2016, the circuit court granted the Board’s motion for summary judgment as to all three claims in
the complaint, stating as follows:

       The problem that this whole thing led to was the process was explained, and your
       clients didn’t follow it. The only thing that’s undisputed and unrebutted is she
       didn’t bring in the notes when she needed to, as she was told and instructed to do.

       There was probable cause to file this. I’ve been a prosecutor for twenty years.
       I’ve dealt with truancy out the ying-yang [sic]. There was probable cause to file
       this. There was no malice. There may have been negligence by not sending the
       letter; but the intentional infliction or intentional malice, I don’t believe that.

       I wanted to dismiss this months ago, but we let it play itself out. But this case, the
       only thing that was outrageous to me is we’ve been here dealing with this.

       The circuit court entered its order granting summary judgment to the Board on October 6,
2016. In its order, the circuit court found that the Board complied with the West Virginia
Legislative rules concerning attendance and the West Virginia Code. Regarding petitioner’s

       3
           Petitioner asserts that her father was present for the meeting.
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malicious prosecution claim, the circuit court found that petitioner presented no evidence to
prove the essential elements of malice or lack of probable cause. Regarding petitioner’s
accommodation claim, the circuit court found that petitioner was not exempt from the policies of
the school handbook, which required her to submit a written note for each absence, and that the
failure to provide the notes, and her absences led to the filing of the truancy complaint. The
circuit court likewise found that petitioner could not prevail on the reckless infliction of
emotional distress claim, finding that the “initiation of a truancy proceeding was not extreme and
outrageous conduct.” Petitioner now appeals the October 6, 2016, order, and asks this Court to
reverse the circuit court’s decision.

       On appeal petitioner argues that the circuit court erred in failing to recuse himself due to
bias, and in granting summary judgment on petitioner’s failure to accommodate, malicious
prosecution, and reckless infliction of emotional distress claims.

        This Court reviews a circuit court’s entry of summary judgment de novo. See Syl. Pt. 1,
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). “‘A motion for summary judgment
should be granted only when it is clear that there is no genuine issue of fact to be tried and
inquiry concerning the facts is not desirable to clarify the application of the law.’ Syllabus point
3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133
S.E.2d 770 (1963).” Syl. Pt. 1, Carr v. Michael Motors, Inc., 210 W. Va. 240, 557 S.E.2d 294
(2001). We note that “[t]he circuit court’s function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter, but is to determine whether there is a
genuine issue for trial.” Syl. Pt. 3, Painter. Mindful of these principles, we address the issues
raised by petitioner appeal.

        Petitioner first complains that the circuit court judge should have recused himself because
of bias. Petitioner asserts that the circuit court’s statements regarding his tenure as a prosecutor,
that he “never bought” petitioner’s claim for reckless infliction of emotional distress, and that he
wanted to dismiss petitioner’s case “months ago,” are direct evidence that the circuit court
improperly relied upon personal experience to form an opinion in this case. In response, the
Board notes that petitioner did not file a Motion for Disqualification, nor did he raise the issue of
bias prior to the instant appeal. As a result, the Board argues, petitioner waived the right to raise
this argument. In her reply, petitioner asserts that she noticed the argument in her Notice of
Appeal to this Court, and argues that even if she failed to make the appropriate motion below,
that the circuit court committed plain error in failing to recuse itself.

        We disagree with petitioner and find that petitioner failed to preserve this issue for
appeal. We have repeatedly held that “[e]rrors assigned for the first time on appeal will not be
regarded in any matter of which the trial court had jurisdiction or which might have been
remedied in the trial court, had objection been raised there.” Syl. Pt. 1, State v. Berry, 227 W.
Va. 221, 707 S.E.2d 831 (2011). Petitioner fails to provide a citation to the record where, either
in writing or in oral presentation, she raised the issue of disqualification with the circuit court.
Therefore, she has waived her right to raise this argument for the first time on appeal.

        Further, we hold that the circuit court’s failure to disqualify itself from this matter does
not constitute plain error. “To trigger application of the ‘plain error’ doctrine, there must be (1)
an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,
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integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W. Va.
3, 459 S.E.2d 114 (1995). The comments of the circuit court merely illustrate the circuit court’s
opinion of the merits of petitioner’s case, and, while the circuit court commented that it desired
to dismiss the matter “months ago,” there is no evidence that it did not carefully consider the
evidence and motions before him in making this decision, or that it was so biased that the
decision of the court “affects substantial rights, and the fairness, integrity and public reputation
of the proceeding.” Petitioner fails to establish that bias existed such that it affected her
substantial rights. To the contrary, despite the circuit court’s opinion that the matter was likely
frivolous, the circuit court permitted discovery, allowed the parties to present summary judgment
motions, afforded the parties a hearing on their motions, and, only after a hearing on the merits
of those motions, dismissed petitioner’s complaint. Accordingly, we find no merit to petitioner’s
assignment of error.

       Petitioner next complains that the circuit court erred in granting the Board’s motions for
summary judgment and dismissing her claims of failure to accommodate, reckless infliction of
emotional distress, and malicious prosecution. Petitioner argues, as a basis for all three claims,
that pursuant to her 504 plan, the Board was to meet quarterly to review her absences and
determine if the absences were to be excused. Petitioner asserts that the Board’s failure to
conduct quarterly meetings resulted in the filing of the truancy complaint.

       Regarding reasonable accommodation, we have held, that

       “[t]o state a claim for breach of the duty of reasonable accommodation under the
       West Virginia Human Rights Act, W. Va. Code, 5–11–9 (1992), a plaintiff must
       alleged the following elements: (1) The plaintiff is a qualified person with a
       disability; (2) the employer was aware of the plaintiff’s disability; (3) the plaintiff
       required an accommodation in order to perform the essential functions of a job;
       (4) a reasonable accommodation existed that met the plaintiff’s needs; (5) the
       employer knew or should have known of the plaintiff’s need and of the
       accommodation; and (6) the employer failed to provide the accommodation.” Syl.
       Pt. 2, Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 479 S.E.2d 561 (1996).

Syl. Pt. 4, Baisden v. W. Va. Secondary Sch. Activities Comm’n, 211 W. Va. 725, 568 S.E.2d 32
(2002).

        Here, although the Board concedes it did not meet quarterly to review her absences,
petitioner fails to demonstrate how the Board failed to provide an accommodation for her illness.
The undisputed testimony in the record is that petitioner was permitted to have any absences due
to her illness excused, as long as she submitted a note indicating that she was ill. The Board did
not require that the note come from petitioner’s physician; rather, a handwritten note from
petitioner or her father was sufficient to satisfy the Board. In fact, petitioner was exempt from the
Board’s attendance policy if her absences were due to her illness. This is a reasonable
accommodation that was afforded to petitioner solely due to her medical condition.

        Notably, in January of 2015, the Board reasonably accommodated petitioner, excusing
several absences from the fall semester upon receiving written notes regarding the absences. The
petitioner’s failure to submit the required documentation in the spring semester were not a failure

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of the Board. To the contrary, petitioner failed to take advantage of the reasonable
accommodation when she did not provide the required documentation to the school. As a result,
we find that no genuine issue of material fact exists as to whether the Board provided a
reasonable accommodation to petitioner, and decline to reverse the circuit court decision on that
ground.

         Similarly, we find that petitioner cannot establish claims of intentional or reckless
infliction of emotional distress and malicious prosecution. In order to prove intentional or
reckless infliction of emotional distress,

       [i]t must be shown: (1) that the defendant’s conduct was atrocious, intolerable,
       and so extreme and outrageous as to exceed the bounds of decency; (2) that the
       defendant acted with the intent to inflict emotional distress, or acted recklessly
       when it was certain or substantially certain emotional distress would result from
       his conduct; (3) that the actions of the defendant caused the plaintiff to suffer
       emotional distress; and, (4) that the emotional distress suffered by the plaintiff
       was so severe that no reasonable person could be expected to endure it.

Syl. Pt. 3, in part, Travis v. Alcon Labs., Inc., 202 W. Va. 369, 504 S.E.2d 419 (1998). Further,

       [i]n evaluating a defendant’s conduct in an intentional or reckless infliction of
       emotional distress claim, the role of the trial court is to first determine whether the
       defendant’s conduct may reasonably be regarded as so extreme and outrageous as
       to constitute the intentional or reckless infliction of emotional distress. Whether
       conduct may reasonably be considered outrageous is a legal question, and whether
       conduct is in fact outrageous is a question for jury determination.

Syl. Pt. 4, id. Having found that the Board reasonably accommodated petitioner, we cannot find
that the Board’s conduct was “so extreme and outrageous” that it constituted reckless infliction
of emotional distress. In fact, the Board, reasonably, allowed petitioner to submit hand-written
notes to justify her absences. Petitioner failed to do so.

        Regarding malicious prosecution, petitioner must show, “(1) that the prosecution was
malicious, (2) that it was without reasonable or probable cause, and (3) that it terminated
favorably to plaintiff.” Syl. Pt. 1, in part, Norfolk S. Ry. Co. v. Higginbotham, 228 W. Va. 522,
721 S.E.2d 541 (2011) (citations omitted). The circuit court found, and we agree, that petitioner
presented no evidence to prove that the filing of the truancy complaint was malicious. Further,
probable cause existed for the filing of the petition, as petitioner had accrued fourteen additional
unexcused absences at the time the complaint was filed. Accordingly, we decline to reverse the
circuit court’s decision to grant summary judgment on these claims.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: October 20, 2017


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CONCURRED IN BY:

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




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