        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2017 Term                            FILED
                                _______________
                                                                          May 17, 2017
                                                                          released at 3:00 p.m.
                                   No. 16-0679                          RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
                                 _______________                           OF WEST VIRGINIA


              WEST VIRGINIA DEPARTMENT OF EDUCATION,
                              Petitioner

                                        v.

                              TAMMY MCGRAW,
                                 Respondent

      ____________________________________________________________

                Appeal from the Circuit Court of Kanawha County

                    The Honorable Carrie L. Webster, Judge

                           Civil Action No. 15-C-1893


                                   REVERSED


      ____________________________________________________________

                             Submitted: April 25, 2017
                               Filed: May 17, 2017

Jan L. Fox, Esq.                             John D. Wooton, Esq.
Mark C. Dean, Esq.                           Wooton, Davis, Hussell & Ellis
Steptoe & Johnson PLLC                       Beckley, West Virginia
Charleston, West Virginia                    Counsel for the Respondent
Counsel for the Petitioner
                                             Matthew S. Criswell, Esq.
                                             Mark L. French, Esq.
                                             Criswell French, PLLC
                                             Charleston, West Virginia
                                             Counsel for the Respondent



JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE WORKMAN, deeming herself disqualified, did not participate in the
decision of the Court.

JUDGE JOSEPH K. REEDER sitting by temporary appointment.
                             SYLLABUS BY THE COURT


              1.     “A circuit court’s denial of a motion to dismiss that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under

the ‘collateral order’ doctrine.” Syl. Pt. 1, W.Va. Bd. of Educ. v. Marple, 236 W.Va. 654,

783 S.E.2d 75 (2015).

              2.     “To 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.” Syl. Pt. 11, W.Va. Reg’l

Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014).

              3.     “The Due Process Clause, Article III, Section 10 of the West

Virginia Constitution, requires procedural safeguards against state action which affects a

liberty or property interest.” Syl. Pt. 1, Waite v. Civ. Serv. Comm’n, 161 W.Va. 154, 241

S.E.2d 164 (1977).

              4.     “The ‘liberty interest’ includes an individual’s right to freely move

about, live and work at his chosen vocation, without the burden of an unjustified label of

infamy. A liberty interest is implicated when the State makes a charge against an


                                             i
individual that might seriously damage his standing and associations in his community or

places a stigma or other disability on him that forecloses future employment

opportunities.” Syl. Pt. 2, Waite v. Civ. Serv. Comm’n, 161 W.Va. 154, 241 S.E.2d 164

(1977).

                5.   To state a claim for a violation of a government employee’s liberty

interest in his/her good name, the employee must allege that the stigmatizing statement

made against him/her was false. To the extent that our opinion in Waite v. Civil Service

Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977), is inconsistent with this holding, it

is overruled.

                6.   A government employer implicates its employee’s liberty interest in

his/her good name when the following elements are alleged: (1) a stigmatizing statement;

(2) which was false; (3) was published, or made accessible to the public; (4) in

connection with a serious adverse employment action. When these elements are met, the

employee must be afforded procedural safeguards under Article III, Section 10 of the

West Virginia Constitution.




                                           ii
Justice Ketchum:


              The West Virginia Department of Education (“the DOE”) appeals an order

by the Circuit Court of Kanawha County. In its order, the circuit court denied the DOE’s

motion to dismiss based on qualified immunity.

              The underlying lawsuit was filed by Tammy McGraw after the DOE

terminated her at-will employment. The lawsuit contained the following two claims

against the DOE: (1) a constitutional tort claim, and (2) a claim for wrongful termination.

As to her constitutional tort claim, Ms. McGraw alleged that the DOE leaked a letter it

received from her previous government employer revealing that she was under

investigation for misallocating public funds for personal use. Although she does not

dispute that she was, in fact, under investigation on those charges, she alleges the DOE’s

leak of this letter violated her constitutionally-protected liberty interest.

              Upon review, we find that Ms. McGraw failed to outline a liberty interest

violation sufficient to overcome the DOE’s qualified immunity because the truth of the

allegedly leaked letter, i.e., that she was under investigation for misallocating public

funds, was not disputed. Therefore, the DOE’s qualified immunity bars Ms. McGraw’s

constitutional tort and wrongful termination claims. We reverse the circuit court’s order

and dismiss Ms. McGraw’s claims against the DOE.




                                               1

                                   I.

                  FACTUAL AND PROCEDURAL BACKGROUND



              This appeal arises from the DOE terminating Ms. McGraw’s at-will

employment as its Executive Director of the Office of Instructional Technology. This

termination was, at least in part, due to the DOE’s receipt of a letter from Ms. McGraw’s

previous employer, the Virginia Department of Education.1 The letter stated as follows:

                      Tammy McGraw has been the focus of an ongoing
              investigation by [The Office of the Virginia State Inspector
              General] and the [Virginia] department of education for
              illegal activities and misuse of state funds. . . . . These charges
              involve such things as diverting programmatic funds to cover
              personal travel expenses, purchasing equipment for personal
              use, falsely submitting travel invoices, and making payments
              to contractors without contracts and for work not performed. .
              ..

                     While the investigation is still continuing and a
              decision on the indictment has not been made, McGraw has
              been relieved of her position at the Virginia Department of
              Education for the above violations of law.

(Emphasis added). In short, the letter revealed that Ms. McGraw was under investigation

in Virginia for misallocating public funds for personal use but that a decision on the

investigation had not yet been made. The DOE claims that Ms. McGraw failed to

disclose this ongoing investigation during her employment interview.



              1
                 Ms. McGraw attached the letter to her complaint. We have held: “A
circuit court ruling on a motion to dismiss . . . may properly consider exhibits attached to
the complaint[.]” Syl. Pt. 1, in part, Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748
(2008).


                                              2

              Ms. McGraw does not dispute that she was under investigation in Virginia

for misallocating public funds for personal use. Instead, she complains that the letter was

leaked to local news media in response to media inquiries as to why the DOE terminated

her at-will employment. Ms. McGraw’s complaint states the letter “was provided to the

Charleston Gazette by a member of the West Virginia Department of Education[,]” and

“[m]ultiple news articles were published based on the false information contained in the

letter.”

              Ms. McGraw filed a lawsuit against the DOE asserting claims for a

constitutional tort and wrongful termination.2 The DOE filed a motion to dismiss her

lawsuit under West Virginia Rule of Civil Procedure 12(b)(6),3 asserting that qualified

immunity barred Ms. McGraw’s claims.4 The circuit court failed to order Ms. McGraw


              2
                 Ms. McGraw joined the Virginia Department of Education and one of its
employees as defendants in her constitutional tort claim, and she asserted various other
claims against them as well. The Virginia Department of Education and its employee are
not parties to this appeal, and the claims against them are not pertinent to our resolution
of this dispute.
              3
                 West Virginia Rule of Civil Procedure 12(b)(6) [1998] allows a defendant
in a civil action to file a motion to dismiss a claim against him/her for “failure to state a
claim upon which relief can be granted[.]”
              4
                When the DOE filed its motion to dismiss, Ms. McGraw had filed an
amended complaint. The DOE’s motion to dismiss specified that it sought dismissal of
Ms. McGraw’s amended complaint because that was the then-operative pleading. While
the motion to dismiss was pending, Ms. McGraw filed a second amended complaint in
which her constitutional tort and wrongful termination claims remained substantively the
same. Because Ms. McGraw’s second amended complaint was identical to the amended
complaint in regard to her constitutional tort and wrongful termination claims, our ruling
herein extends to both the amended complaint and the second amended complaint.


                                             3

to file a reply to the DOE’s motion to dismiss pleading qualified immunity; instead, it

scheduled a hearing on the DOE’s motion.5

              On June 16, 2016, the circuit court entered an order denying the DOE’s

motion to dismiss, finding that Ms. McGraw pleaded sufficient facts to outline a liberty

interest violation and that qualified immunity does not bar her claims for a constitutional

tort or wrongful termination. It is from that order that the DOE brings this appeal.

                                        II.

                                STANDARD OF REVIEW



              In this appeal, we assess a circuit court order denying a motion to dismiss

based on qualified immunity. We have held: “A circuit court’s denial of a motion to

dismiss that is predicated on qualified immunity is an interlocutory ruling which is

subject to immediate appeal under the ‘collateral order’ doctrine.”6


              5
                In Hutchison v. City of Huntington, 196 W.Va. 139, 149-50, 479 S.E.2d
649, 659-60 (1996), we stated that when a defendant’s answer pleads the defense of
governmental immunity, the circuit court should order the plaintiff to file a reply tailored
to the defendant’s immunity defense. We provided: “Under the West Virginia Rules of
Civil Procedure, the plaintiff is required to file a reply to a defendant’s answer only if the
circuit court exercises its authority under Rule 7(a) to order one. . . . The court’s
discretion not to order such a reply ought to be narrow; where the defendant demonstrates
that greater detail might assist an early resolution of the dispute, the order to reply should
be made.” Id. Ms. McGraw’s original complaint provided scant detail of the basis of her
constitutional tort claim against the DOE, and consequently, she filed two amended
complaints in the course of the proceedings before the circuit court. Had the circuit court
required Ms. McGraw to file a reply to the DOE’s motion to dismiss pleading qualified
immunity, it might have assisted an early resolution to this dispute.
              6
                  Syl. Pt. 1, W.Va. Bd. of Educ. v. Marple, 236 W.Va. 654, 783 S.E.2d 75
(2015).


                                              4

              Having established that this appeal is properly before this Court, we review

the circuit court’s order de novo.7 “In conducting a de novo review, we apply the same

standard applied in the circuit court.”8 That is, generally, “dismissal 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.”9 “If the complaint

alleges sufficient facts, it must survive a . . . motion to dismiss even if it appears that

recovery is very remote and unlikely.”10 Under this general pleading standard, “the

complaint is construed in the light most favorable to plaintiff [Ms. McGraw], and its

allegations are to be taken as true.” 11 However, to the extent Ms. McGraw’s complaint is

based on allegations of fraud, a heightened pleading standard applies, and the

circumstances constituting fraud must be stated with particularity.12



              7
                Syl. Pt. 4, in part, Ewing v. Bd. of Educ. of Cty. of Summers, 202 W.Va.
228, 503 S.E.2d 541 (1998) (“When a party . . . assigns as error a . . . denial of a motion
to dismiss, the circuit court’s disposition of the motion to dismiss will be reviewed de
novo.”).
              8
                Forshey, 222 W.Va. at 749, 671 S.E.2d at 754 (regarding circuit court
order granting defendant’s motion to dismiss).
              9
                  Marple, 236 W.Va. at 660, 783 S.E.2d at 81.
              10
                Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer, Jr.,
Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6) at 385-86 (4th
ed. 2012).
              11
                John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605,
245 S.E.2d 157, 158 (1978).
              12
                   West Virginia Rule of Civil Procedure 9(b) [1998].


                                              5

                                            III.

                                         ANALYSIS


               The DOE argues the circuit court erred by failing to dismiss Ms. McGraw’s

claims based on qualified immunity. “Qualified immunity preserves the freedom of the

State, its agencies, and its employees to deliberate, act, and carry out their legal

responsibilities within the limits of the law and constitution.”13 As we explain below,

qualified immunity bars recovery for Ms. McGraw’s constitutional tort and wrongful

termination claims. We discuss the standard for qualified immunity and its application to

Ms. McGraw’s claims in turn.

                              A. Qualified Immunity in General

               The first step in determining whether a state agency is entitled to qualified

immunity is:

                      [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.14

The facts giving rise to Ms. McGraw’s suit were the DOE’s termination of her at-will

employment and its alleged leak of a letter explaining its non-retention of Ms. McGraw




               13
                    Marple, 236 W.Va. at 660, 783 S.E.2d at 81.
               14
               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) (emphasis added).


                                               6

as an employee. We have stated, “employee retention . . . fall[s] within the category of

‘discretionary ’ governmental functions.”15

              As to discretionary functions,

                     To 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.16

Thus, the second step in our analysis is to determine whether the DOE violated a clearly

established statutory or constitutional right or law (or otherwise acted fraudulently,

maliciously, or oppressively) in its alleged acts or omissions giving rise to Ms. McGraw’s

suit. We now evaluate Ms. McGraw’s claims against this qualified immunity standard.

                               B. Constitutional Tort Claim

              First, we examine Ms. McGraw’s claim that the DOE violated her

constitutionally-protected liberty interest in her good name.       The DOE argues that

qualified immunity bars this claim for two reasons: (1) the facts alleged in the complaint

do not outline a liberty interest violation (or any other clearly-established constitutional

or statutory violation); and (2) she makes no clear allegations of fraud, malice, or

              15
                   A.B., 234 W.Va. at 514, 766 S.E.2d at 773.

              16
                   Syl. Pt. 11, A.B., 234 W.Va. 492, 766 S.E.2d 751 (emphasis added).



                                               7

oppression. For the reasons explained below, we agree with the DOE on both these

arguments.

                        i. There Was No Liberty Interest Violation

              In her complaint, Ms. McGraw alleged that the DOE leaked a letter written

by the Virginia Department of Education to the Charleston Gazette.17 The letter revealed

that she was the subject of an investigation in Virginia for misallocating public funds for

personal use. It also stated that the investigation had not been completed. Ms. McGraw

does not dispute the truth of the letter, that is, that she was under investigation in Virginia

for misallocating funds for personal use. Nevertheless, she claims that the DOE’s leak of

the letter violated her constitutionally-protected liberty interest in her good name. By

contrast, the DOE asserts these facts are not sufficient to outline a liberty interest

violation.

              We use the following standard to determine whether an individual’s

constitutionally-protected liberty interest in his/her good name has been implicated: “A

liberty interest is implicated when the state makes a charge against the individual that

might seriously damage his standing and associations in the community or places a


              17
                 The DOE argues that Ms. McGraw presented insufficient evidence that it
leaked the letter to local news media. Ms. McGraw’s complaint alleges the letter “was
provided to the Charleston Gazette by a member of the West Virginia Department of
Education.” (Emphasis added). In assessing the DOE’s motion to dismiss, “the
complaint[’s] allegations are to be taken as true.” John W. Lodge Distrib. Co., Inc. v.
Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1998). As required by our well-
established law, for the limited purpose of this appeal based on the DOE’s motion to
dismiss, we take as true Ms. McGraw’s factual allegation that the DOE leaked the letter.


                                              8

stigma or other disability on him that forecloses future employment opportunities.”18

When an individual’s liberty interest is implicated, he/she must be afforded procedural

safeguards under Article III, Section 10 of the West Virginia Constitution (the Due

Process Clause).19

              Under certain circumstances, this liberty interest concept applies in the

realm of government employment. The Supreme Court of the United States provided in

Bd. of Regents v. Roth that:

                     There might be cases in which a State refused to re­
              employ a person under such circumstances that interest in
              liberty would be implicated. . . . For ‘where a person’s good
              name, reputation, honor, or integrity is at stake because of
              what the government is doing to him, notice and an
              opportunity to be heard are essential.’20

Relying on Roth, this Court found in Waite v. Civil Service Commission:

                     A liberty interest is implicated when the state “makes a
              charge against him that might seriously damage his standing
              and associations in the community.” Bd. of Regents v. Roth,
              408 U.S. 564, 573 (1972). The Roth Court stated that a
              charge of dishonesty or immorality would implicate an
              individual’s liberty interests. We follow these principles and
              find that an accusation or label given the individual [state
              employee] by his employer which belittles his worth and
              dignity as an individual and, as a consequence, is likely to

              18
               Syl. Pt. 2, in part, Waite v. Civ. Serv. Comm’n, 161 W.Va. 154, 241
S.E.2d 164 (1977).
              19
                Syl. Pt. 1, Waite, 161 W.Va. 154, 241 S.E.2d 164 (“The Due Process
Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural
safeguards against state action which affects a liberty or property interest.”).
              20
                   Roth, 408 U.S. 564, 573 (1972).


                                              9

              have severe repercussions outside his work world, infringes
              one’s liberty interest.21

Again, in Major v. DeFrench, we provided:

                     [T]he government cannot dismiss an employee on
              charges that call into question her good name, or that impose
              a stigma upon an employee which could foreclose her
              freedom to pursue other employment opportunities, without
              providing the employee notice of the charges against her and
              a hearing in which the factual basis of the charges can be
              contested.22

Therefore, under certain circumstances, a government employer may implicate its

employee’s constitutionally-protected liberty interest in his/her good name through a

statement which might seriously damage the employee’s standing and associations in the

community or imposes a stigma which forecloses future employment opportunities.23


              21
                   Waite, 161 W.Va. 154, 159-60, 241 S.E.2d 164, 167-68 (1977).
              22
                   Major, 169 W.Va. 241, 256, 286 S.E.2d 688, 697 (1982) (emphasis
added).
              23
                 However, to be clear, “not all public employees have a protected liberty
interest in continued government employment, even when his/her termination makes
him/her less attractive to future employers.” Marple, 236 W.Va. at 665, 783 S.E.2d at
86. There are limited exceptions to this general rule which are not at issue in this case:
tenured employees and classified civil service employees. See Bd. of Educ. of Cnty. of
Mercer v. Wirt, 192 W.Va. 568, 574, 453 S.E.2d 402, 408 (1994) (“There can be little
doubt that tenured employees have . . . liberty interests in their employment.”); Buskirk v.
Civ. Serv. Comm’n, 175 W.Va. 279, 283 S.E.2d 579, 583 (1985) (“[A] classified civil
service employee has a sufficient interest in his continued [un]interrupted employment to
warrant against the arbitrary discharge of such employee under [The Due Process Clause]
of our Constitution.”).

            Citing cases pertaining to tenured employees and classified civil service
employees, we held in Syllabus Point 12, in part, of Queen v. W.Va. Univ. Hosp., 179
W.Va. 95, 365 S.E.2d 375 (1987), that: “A person employed by a state actor cannot be
                                                                      (continued . . .)
                                             10

              Although this Court has long recognized the liberty interest concept in the

area of government employment, we have not defined the elements required to state a

liberty interest tort claim by a government employee. Most courts require the following

four elements to find that a government employer implicated its employee’s liberty

interest in his/her good name: (1) a stigmatizing statement; (2) which was false; (3) was

published, or made accessible to the public; (4) in connection with a serious adverse

employment action.24 Once these elements are alleged, the employee must be afforded

due process protections.



summarily discharged without any procedural protections, because the fundamental
promise of due process is freedom from arbitrary treatment.” Despite Queen’s broad
language, we recently explained, “not all public employees have a protected liberty
interest in continued government employment[.]” Marple, 236 W.Va. at 665, 783 S.E.2d
at 86. Therefore, we question the applicability of Syllabus Point 12 of Queen outside the
limited context of tenured employees and classified civil service employees.
              24
                 See, e.g., Wojcik v. Mass. St. Lottery Comm’n, 300 F.3d 92, 103 (1st Cir.
2002) (requiring following elements to implicate government employee’s liberty interest:
stigmatizing statement; employee must dispute charges as false; employer intentionally
publicized statement; and statement was made in conjunction with an alteration of the
employee’s status); Segal v. Cty. of N.Y., 459 F.3d 207, 212 (2d Cir. 2006); (establishing
following elements for deprivation of employee’s liberty interest: stigmatizing statement;
statement was made public by employer; statement was made in close temporal
relationship to plaintiff’s dismissal from employment; and in footnote 5, providing that
plaintiff must allege falsity); Sciolino v. Cty. of Newport News, 480 F.3d 642, 646 (4th
Cir. 2007) (“To state this type of liberty interest claim under the Due Process Clause, a
plaintiff must allege that the charges against him: (1) placed a stigma on his reputation;
(2) were made public by the employer; (3) were made in conjunction with his termination
or demotion; and (4) were false.”); White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981)
(“[A] constitutionally protected liberty interest is implicated only if an employee is
discharged in a manner that creates a false and defamatory impression about him and thus
stigmatizes him[.]”); Chilingirian v. Boris, 882 F.2d 200, 205 (6th Cir. 1989) (“[W]hen a
‘nontenured employee shows he has been stigmatized by the voluntary, public
dissemination of false information in the course of a decision to terminate his
                                                                           (continued . . .)
                                            11

              As to the first requisite element to state a claim for a liberty interest

violation, a stigmatizing statement, we have said: “West Virginia does not have a bright-

line rule regarding when a charge sufficiently stigmatizes an employee’s good name or

forecloses his/her prospects for future employment.”25 On the one hand, unexplained

terminations and mere charges of incompetence are not stigmatizing enough to implicate

a liberty interest.26 On the other hand, statements which strike at the employee’s worth as

an individual, such as charges of dishonesty or immorality, implicate a liberty interest.27



employment, the employer is required to afford him an opportunity to clear his name.’”);
Parker v. Town of Chelsea, 275 Fed. Appx. 769, 773 (10th Cir. 2008) (“[T]o support a
claim for a violation of his liberty interests, [the plaintiff] must show that the defendants
made statements that: (1) impugned his ‘good name, reputation, honor, and integrity;’ (2)
were false; (3) occurred in the course of termination; and (4) were published.”); Francis
C. Amendola, et al., What Constitutes Deprivation of Liberty Interests of School
Employees, 16D C.J.S. Constitutional Law § 2206 (2017) (“In order for an educator to
demonstrate a deprivation of a liberty interest by defamatory statements, the educator
must demonstrate all four of the following elements: (1) the statements impugned the
educator’s good name, reputation, honor, or integrity; (2) the statements were false; (3)
the statements must have occurred in the course of terminating the educator or must have
foreclosed other employment opportunities; and (4) the statements must have been
published.”).
              25
                   Marple, 236 W.Va. at 665, 783 S.E.2d at 86.
              26
               Syl. Pt. 5, Freeman v. Poling, 175 W.Va. 814, 338 S.E.2d 415 (“Courts
are rather uniform in holding that an unexplained termination or discharge from
employment does not create a sufficient stigma to invoke a liberty interest protection.”);
Marple, 236 W.Va. at 665, 783 S.E.2d at 86 (finding no liberty interest violation in the
Board of Education’s possible charge of incompetence against its superintendent).
              27
                Marple, 236 W.Va. at 665, 783 S.E.2d at 86 (“[A] charge regarding an
employee’s character flaw implicate a liberty interest (i.e., charges of dishonesty,
immorality, or criminality).”); Waite, 161 W.Va. at 159-60, 241 S.E.2d at 167-68 (“[A]
charge of dishonesty or immorality would implicate an individual’s liberty interest.”)


                                             12

“Allegations of substance abuse, mental illness, criminal conduct, dishonesty, and

immorality clearly rise to the level of stigmatization required to state a claim for a

deprivation of a liberty interest.”28 In short, the statement must impugn the employee’s

good name, reputation, honor, or integrity.

              Second, the plaintiff must allege that the statement forming the basis of

his/her liberty interest violation was false.        The United States Supreme Court has

explained the rationale behind this rule as follows:

                     [T]he hearing required where a nontenured employee
              has been stigmatized in the course of a decision to terminate
              his employment is solely “to provide the person an
              opportunity to clear his name.” If he does not challenge the
              substantial truth of the material in question, no hearing would
              afford a promise of achieving that result for him.29

The majority of jurisdictions agree that it serves no useful purpose to require a name-

clearing hearing for an employee who does not dispute the charges against him/her.30

Our research has not revealed a single jurisdiction outside West Virginia in which a

government employer implicates its employee’s liberty interest through an uncontested

statement.

              Nevertheless, in Waite v. Civil Service Commission, we stated in a footnote

that: “the truth or falsity of the charge does not enhance or diminish the impairment of the

              28
                Jenny S. Brannon, The Publication Debate in Deprivation of Occupation
Liberty Claims, 47 U. Kan. L. Rev. 171, 183 (1998).
              29
                   Codd v. Velger, 429 U.S. 624, 627-28 (1977).
              30
                   See sources cited supra note 24, at 11.


                                               13

liberty interest.”31 We are persuaded that the United States Supreme Court was correct;

there is no useful purpose behind requiring a government employer to afford its employee

a hearing to clear his/her name of charges the employee does not dispute.

               Therefore, we hold that to state a claim for a violation of a government

employee’s liberty interest in his/her good name, the employee must allege that the

stigmatizing statement made against him/her was false. To the extent that our opinion in

Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977), is

inconsistent with this holding, it is overruled.

               Third, the stigmatizing and false statement must have been made accessible

to the public for there to be a violation of the employee’s liberty interest in his/her good

name.32 The rationale behind this rule is that if the statement is not made public, “it

cannot properly form the basis for a claim that the [employee’s] interest in his ‘good

name, reputation, honor, or integrity,’ was . . . impaired.”33        A statement about a

government employee which is kept private is not sufficiently likely to affect the

employee’s good name outside his/her work-world and thus form a proper basis for a

liberty interest violation.


               31
                    Waite, 161 W.Va. at 161 n.5, 241 S.E.2d at 168 n.5.
               32
                Bishop v. Wood, 426 U.S. 341, 348 (1976); Freeman, 175 W.Va. at 822,
338 S.E.2d at 423 (“Without a public disclosure of accusations against [the employee], he
cannot claim that his ‘standing and associations in his community’ have been
damaged.”).
               33
                    Bishop, 426 U.S. at 348.


                                               14

              Fourth, and finally, the statement forming the basis of the liberty interest

claim must have been made in connection with a serious adverse employment action.

This requirement is derived from Paul v. Davis, in which the Court clearly provided that

there is “no constitutional doctrine converting every defamation by a public official into a

deprivation of liberty within the meaning of the Due Process Clause[.]”34 To hold

otherwise “would make of the [Due Process Clause] a font of tort law.”35              Thus,

reputation alone, “apart from some more tangible interest, such as employment, . . . . is

[insufficient] to invoke the procedural protection of the Due Process Clause[.]”36

              Therefore, we hold that a government employer implicates its employee’s

liberty interest in his/her good name when the following elements are alleged: (1) a

stigmatizing statement; (2) which was false; (3) was published, or made accessible to the

public; (4) in connection with a serious adverse employment action.            When these

elements are met, the employee must be afforded procedural safeguards under Article III,

Section 10 of the West Virginia Constitution.

              Applying these principles to the present case, the facts alleged in Ms.

McGraw’s complaint do not state a claim for a liberty interest violation. Her complaint

does not dispute the truth of the letter, i.e., that she was under investigation in Virginia




              34
                   Paul, 424 U.S. 693, 702 (1976).

              35
                   Paul, 424 U.S. at 701.

              36
                   Paul, 424 U.S. at 702.



                                              15

for misallocating public funds for personal use. Indeed, her complaint confirms that she

was accused on those charges in Virginia.

              In a similar case, Melton v. City of Okla. City,37 the court found that a

police department did not violate a terminated police officer’s liberty interest by

informing news media that the FBI was investigating the officer for perjury, even though

the charge was ultimately found to be baseless. The court explained its finding as

follows: “all the statements made by Lt. McBride were true. Mr. Melton was accused by

the FBI of having committed perjury[.] . . . . Fairly read in context, there is nothing

contained in either publication which suggests Lt. McBride . . . accepted the accusation as

true or accepted it as its own.”38

              Likewise, Ms. McGraw was under investigation in Virginia for

misallocating public funds for personal use, and the DOE had no part in leveling the

underlying charges against her or causing the investigation to be brought about.

Therefore, even if the DOE leaked the letter to the Charleston Gazette, as Ms. McGraw

has alleged, the letter’s statements were true. We find no distinguishing factor in this

case which sets Ms. McGraw apart from the plaintiff in Melton.

              Thus, we find that under the facts of this case, Ms. McGraw’s liberty

interest was not implicated. She was not entitled to procedural safeguards under the Due



              37
                   928 F.2d 920 (10th Cir. 1991).

              38
                   Melton, 928 F.2d at 928 (emphasis in original).



                                              16

Process Clause. There was no liberty interest violation in this case, and we do not find

any other constitutional or statutory right infringed upon by the DOE.

          ii. No Factual Allegations Revealing Fraud, Malice, or Oppression

              The DOE further argues that Ms. McGraw failed to allege facts revealing

fraud, malice, or oppression sufficient to overcome its qualified immunity. While Ms.

McGraw’s complaint is silent on this issue, she argues before this Court that the DOE

acted fraudulently, maliciously, and oppressively in failing to investigate the truth of the

letter before leaking it to local news media. Nevertheless, she was, as stated in the letter,

under investigation in Virginia for misallocating public funds for personal use.

              To the extent Ms. McGraw relies on fraud, West Virginia Rule of Civil

Procedure 9(b) [1998] provides: “In all averments of fraud . . . , the circumstances

constituting fraud must be shall be stated with particularity.” Ms. McGraw failed to

allege any circumstances revealing fraud. Likewise, her complaint fails to indicate the

DOE acted either maliciously or oppressively.

              It is undisputed that Ms. McGraw was, as stated in the letter, under

investigation in Virginia for misallocating public funds for personal use in her previous

employment and that she failed to disclose this investigation to the DOE. She alleged her

termination was based on the DOE learning of this investigation through its receipt of the

letter, and the DOE seems to concur by arguing that it terminated her for her lack of

candor in failing to disclose the investigation during her employment interview.

              Therefore, even if the DOE leaked the letter to local news media in

response to media inquiries on why it terminated Ms. McGraw, it would have been an

                                             17

honest response to the media’s questions. Thus, we find no fraud, malice, or oppression

in the alleged acts giving rise to Ms. McGraw’s constitutional tort claim.

                               C. Wrongful Termination.

              Next, we examine Ms. McGraw’s wrongful termination claim. Unlike her

constitutional tort claim, which was based on an alleged leak of a letter, Ms. McGraw’s

claim for wrongful termination is based solely on the DOE’s decision to terminate her at-

will employment.

              Ms. McGraw stated in her complaint that her employment was governed by

the DOE Employment Handbook.           The Employment Handbook provides that: “The

employment relationship of each employee is ‘at will.’ ‘At-will’ means that it is for no

definite period and is terminable at any time at the will of the State Superintendent, with

or without notice, cause or compensation.” Moreover, a letter39 sent by the DOE to Ms.

McGraw outlining some of her employment terms states: “All [DOE] employees are non-

contractual, at-will employees.”

              As to at-will employment, we have held: “the doctrine of employment-at­

will allows an employer to discharge an employee for good reason, no reason, or bad

reason without incurring liability unless the firing is otherwise illegal under state or




              39
                This letter was attached to Ms. McGraw’s complaint, and is thus properly
considered in the DOE’s motion to dismiss.


                                            18

federal law.”40 On this record, we find no constitutional provision, statute, policy, or

other rule which prohibited the termination of Ms. McGraw’s at-will employment.

              Therefore, unless the DOE acted fraudulently, maliciously, or oppressively

in terminating her at-will employment, qualified immunity bars recovery under Ms.

McGraw’s claim for wrongful termination. Upon review of Ms. McGraw’s complaint,

we find no factual allegations revealing fraud, malice, or oppression in the termination of

her at-will employment. She merely claims that the DOE did not fully explain the reason

why it terminated her at-will employment, which is not fraudulent, malicious, or

oppressive, as required to overcome qualified immunity. Accordingly, the circuit court

erred by failing to dismiss Ms. McGraw’s claim for wrongful termination.41




              40
                   Williams v. Precision Coil, Inc., 194 W.Va. 52, 63, 459 S.E.2d 329, 340
(1995).
              41
                 Ms. McGraw’s complaint also contained a separate claim for punitive
damages. Ms. McGraw voluntarily dismissed this claim, but she still asserts the DOE is
liable to pay her punitive damages. By contrast, the DOE cites West Virginia Code § 55­
17-4(3) [2002], which provides: “No government agency may be ordered to pay punitive
damages in any action.” Because we found that qualified immunity precludes recovery
by Ms. McGraw on her constitutional tort and wrongful termination claims, resolution of
the parties’ punitive damages argument is not necessary. Therefore, we decline to
address this issue.


                                             19

                                       IV.

                                   CONCLUSION



             Ms. McGraw failed to outline a liberty interest violation sufficient to

overcome the DOE’s qualified immunity because the truth of the allegedly leaked letter,

i.e., that she was under investigation in Virginia for misallocating funds, was not

disputed. Therefore, the DOE’s qualified immunity bars Ms. McGraw’s constitutional

tort and wrongful termination claims. We reverse the circuit court’s order and dismiss

Ms. McGraw’s claims against the DOE.

                                                                             Reversed.




                                          20

