        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                             September 2015 Term                       FILED
                               _______________                    November 10, 2015
                                                                      released at 3:00 p.m.
                                                                      RORY L. PERRY II, CLERK
                                 No. 14-1264                        SUPREME COURT OF APPEALS
                               _______________                          OF WEST VIRGINIA



                 WEST VIRGINIA BOARD OF EDUCATION,

                       and L. WADE LINGER, JR.,

                               Petitioners


                                         v.

                          JOREA M. MARPLE,
                               Respondent
      ____________________________________________________________

               Appeal from the Circuit Court of Kanawha County

                    The Honorable James C. Stucky, Judge

                          Civil Action No. 14-C-731


                               REVERSED

      ____________________________________________________________

                          Submitted: October 6, 2015
                           Filed: November 10, 2015

J. Victor Flanagan, Esq.                      Timothy N. Barber, Esq.
Julie Meeks Greco, Esq.                       Charleston, West Virginia
Katie L. Hicklin, Esq.                        Counsel for the Respondent
Pullin, Fowler, Flanagan, Brown & Poe,
PLLC                                          Thomas Patrick Maroney, Esq.
Charleston, West Virginia                     Charleston, West Virginia
Counsel for the Petitioners                   Counsel for the Respondent

                                              A. Andrew MacQueen, III, Esq.
                                              Mt. Pleasant, South Carolina
                                              Counsel for the Respondent

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

JUDGE CHRISTOPHER C. WILKES 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.

              2.     The state insurance policy exception to sovereign immunity, created

by West Virginia Code § 29-12-5(a)(4) [2006] and recognized in Syllabus Point 2 of

Pittsburgh Elevator Co. v. W.Va. Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983),

applies only to immunity under the West Virginia Constitution and does not extend to

qualified immunity. To waive the qualified immunity of a state agency or its official, the

insurance policy must do so expressly, in accordance with Syllabus Point 5 of Parkulo v.

W.Va. Bd. of Probation & Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

              3.     “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).




                                             i
Justice Ketchum:

             Petitioners, the West Virginia Board of Education (“the Board”) and its

former president, Mr. L. Wade Linger, appeal a November 3, 2014, order of the Circuit

Court of Kanawha County. In its order, the circuit court denied the Board’s and Mr.

Linger’s motion to dismiss a lawsuit filed by the Respondent, Dr. Jorea Marple,

challenging her termination from employment as the Board’s Superintendent of Schools.

             The Board and Mr. Linger contend that they had the discretion to terminate

Dr. Marple because the West Virginia Constitution, statutory law, and Dr. Marple’s

employment contract declared her to be an at-will employee. They also claim that the

doctrine of qualified immunity protects a government actor’s prudent exercise of

discretion, including whether to hire or retain an employee. Therefore, they assert the

doctrine of qualified immunity bars Dr. Marple’s suit. By contrast, Dr. Marple argues

that she had a constitutionally protected interest in her continued employment. She

asserts the Board and Mr. Linger could not terminate her without first affording her due

process protections.

             Upon review, we find that Dr. Marple’s complaint fails to allege a cause of

action sufficient to overcome the Board’s and Mr. Linger’s discretion to terminate her.

Therefore, qualified immunity bars each of her claims. Accordingly, we reverse the

circuit court’s November 3, 2014, order and dismiss Dr. Marple’s complaint.




                                           1

                                  I.

                 FACTUAL AND PROCEDURAL BACKGROUND


             This appeal arises from Dr. Marple’s termination as Superintendent of

Schools for the State of West Virginia in November 2012. Dr. Marple had served as

superintendent for almost two years under an at-will employment contract, during which

time she received an exemplary performance evaluation and a pay raise. The Board also

issued a press release describing Dr. Marple as an “outstanding visionary and leader”

who has “brought national recognition to our state.” She claims that she had no reason to

feel that her at-will employment as superintendent might be terminated.

             The Board voted to terminate Dr. Marple’s employment in a regularly-

scheduled meeting held on November 14 and 15, 2012. Two weeks later, on November

29, 2012, the Board held another meeting to reconsider its decision. The Board, at Mr.

Linger’s recommendation, publicly voted to affirm Dr. Marple’s termination. Mr. Linger

then offered the following statement, which was adopted by the Board:

                    Everyone is familiar with the situation we find
             ourselves in regarding the litany of statistics related to student
             achievement and our rankings.

                   -West Virginia students rank below the national
             average in 21 of 24 categories measured by the National
             Assessment of Education Progress (NAEP).

                  -As a matter of fact, over the last decade, many of our
             NAEP scores have slipped instead of improving.

                   -Education Week’s most recent Quality Counts Report
             gave West Virginia an F in K-12 achievement.

                    -The Statewide graduation rate is only 78 percent.


                                             2
                     -1 in 4 of our high school students in West Virginia do
              not graduate on time.

                      ....

                    We are not saying that Superintendent Marple is any
              more responsible than governors, legislators, educators or
              board members for these shortcomings.

                      We are not here to affix blame today. . . .

                     Some of the issues that caused board members to
              perceive a change was needed are the following:

                     1. Many members found no sense of urgency in the
              department to address some of the issues that have been
              outlined.

                    2. When discussing concerns, we often were met with
              excuses and not actions.

                     3. Too often we were told how things can’t change
              instead of being offered solutions.

                    4. When current practices were challenged, we often
              found people being defensive.

                     Considering everything just outlined in this statement,
              I believe we needed a change in direction and in order to do
              that, we needed a change in leadership.

              The Board’s statement did not say that negative education statistics in West

Virginia were Dr. Marple’s fault, nor did it deny that these problems predated her

employment. Instead, the Board stated that satisfactory progress had not occurred in

public education and that a new superintendent might achieve different results. It is

undisputed that Dr. Marple had no opportunity to object to or rebut the Board’s statement

or her termination.


                                              3

              Dr. Marple sued the Board and Mr. Linger in the circuit court alleging that

her due process rights under the West Virginia Constitution were violated.1 Specifically,

she contended that (1) the Board’s statement infringed upon her liberty interest in her

good name and potential for future government employment, and (2) she had a property

interest in continued employment as superintendent. In addition, Dr. Marple asserted

claims for breach of contract, defamation, and false light.

              The Board and Mr. Linger did not file an answer to the lawsuit. Instead,

they filed a motion to dismiss asserting that their immunity barred each of Dr. Marple’s

claims. The Board argued that it was protected by sovereign immunity under Article VI,

Section 35 of the West Virginia Constitution,2 and Mr. Linger contended he was entitled

to qualified immunity (the common-law principle protecting discretionary government

action). Additionally, the Board claimed qualified immunity at oral argument on the

motion and in its proposed order to dismiss.

              The circuit court denied the Board’s and Mr. Linger’s motion to dismiss

and held that they were not entitled to assert sovereign immunity under the West Virginia




              1
                Article III, Section 10 of the West Virginia Constitution provides: “No
person shall be deprived of life, liberty, or property, without due process of law, and the
judgment of his peers.” Dr. Marple makes no argument arising under Federal law.
              2
                 Article VI, Section 35 of the West Virginia Constitution provides, in
pertinent part: “The State of West Virginia shall never be made defendant in any court of
law or equity[.]”



                                               4

Constitution because they were insured under a state liability insurance policy.3 The

circuit court’s order failed to discuss whether the Board or Mr. Linger should be

dismissed because they have qualified immunity for their discretionary acts.

              The Board and Mr. Linger now appeal the circuit court’s order denying

their motion to dismiss.

                                       II.

                               STANDARD OF REVIEW


              The Board and Mr. Linger request that we review the circuit court’s denial

of its motion to dismiss under West Virginia Rule of Civil Procedure 12(b)(6).4

Ordinarily, we do not review the denial of a Rule 12(b)(6) motion because it is not a final

order. However, we recognize an exception to this general rule “when the defense is in

the nature of an immunity.” Hutchison v. City of Huntington, 198 W.Va. 139, 147, 479


              3
                In denying the Board’s and Mr. Linger’s motion to dismiss, the circuit
court considered documents that were outside Dr. Marple’s complaint, such as the
minutes from the Board’s meetings and the Board’s coverage under a state liability
insurance policy. Of these documents, only the minutes for the Board’s November 29
meeting were attached to the complaint. “However, a court may consider [on a motion to
dismiss], in addition to the pleadings, documents annexed to it, and other materials fairly
incorporated within it. This sometimes includes documents referred to in the complaint
but not annexed to it.” FRANKLIN D. CLECKLEY, ROBIN JEAN DAVIS & LOUIS J. PALMER,
JR., LITIGATION HANDBOOK ON WEST VIRGINIA RULES OF CIVIL PROCEDURE §12(b)(6)
at 387 (4th ed. 2012). Because these matters are incorporated by reference in Dr.
Marple’s complaint, neither the trial court nor this Court are precluded from considering
them in evaluating the Board’s and Mr. Linger’s motion to dismiss. See e.g., Forshey v.
Jackson, 222 W.Va. 743, 748-49, 671 S.E.2d 748 (2008).
              4
                 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.”



                                             5

S.E.2d 649, 657 (1996). Indeed, the State’s entitlement to immunity “is an immunity

from suit rather than a mere defense to liability,” which is “effectively lost if the case is

erroneously permitted to go to trial.” Id., 198 W.Va. at 147, 479 S.E.2d at 657 (quoting

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

              We have held: “A circuit court’s denial of summary judgment that is

predicated on qualified immunity is an interlocutory ruling which is subject to immediate

appeal under the ‘collateral order’ doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W.Va.

828, 679 S.E.2d 660 (2009). Although this appeal involves the denial of a motion to

dismiss, we find that our rationale in Robinson is applicable to this case because “[any]

ruling denying the availability of immunity fully resolves the issue of a litigant’s

obligation to participate in litigation.” Id., 223 W.Va. at 832, 769 S.E.2d at 664.

              Therefore, we hold that 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.5 Accordingly, the fact that the circuit court’s

order was not a final order does not preclude us from reviewing this appeal.

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

the circuit court’s order denying the motion to dismiss de novo. Syl. Pt. 4, Ewing v. Bd.


              5
                Although not specifically discussed in the appealed order, qualified
immunity was an issue before the circuit court. Therefore, we can fairly say the circuit
court’s order was a denial of qualified immunity. However, to the extent the circuit
court’s order was based on sovereign immunity, it is well-established that “the denial of a
substantial claim of absolute immunity is an order appealable before final judgment[.]”
Mitchell, 472 U.S. at 525.



                                             6

of Educ. of Cnty. of Summers, 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

[Dr. Marple], and its 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 (1978).               Likewise,

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. Syl. Pt. 3, Chapman v. Kane Transfer Co. Inc., 160 W.Va. 530, 236 S.E.2d

207 (1977).

              However, to survive a motion to dismiss, a plaintiff’s complaint must “at a

minimum . . . set forth sufficient information to outline the elements of his claim.” Price

v. Halstead, 177 W.Va. 592, 594, 355 S.E.2d 380, 383 (1987). Furthermore, “in civil

actions where immunities are implicated, the trial court must insist on heightened

pleading by the plaintiff.” Hutchison, 198 W.Va. at 149, 479 S.E.2d at 659.

                                           III.

                                        ANALYSIS


              In this appeal, the Board and Mr. Linger argue that the circuit court erred

by refusing to dismiss Dr. Marple’s complaint. They contend that her suit is barred, as a

matter of law, by 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.

              As we discuss below, we find that the circuit court was in error and should

have dismissed the complaint. The complaint establishes that the actions complained of


                                              7

by Dr. Marple were discretionary judgments within the authority of the Board and Mr.

Linger. The Constitution, statutory law, and Dr. Marple’s contract with the Board all

specify that her employment was at the “will and pleasure” of the Board. Because Dr.

Marple has not identified a clearly established right that was violated by the discretionary

actions of the Board or Mr. Linger, her suit is precluded by qualified immunity.

                       A. State Insurance and Qualified Immunity

              The circuit court refused to afford the Board or Mr. Linger qualified

immunity because they are insured under a state-purchased liability insurance policy. In

doing so, the circuit court relied on a legislatively-created state insurance policy

exception to sovereign immunity. This exception, created by West Virginia Code § 29­

12-5(a)(4) [2006], provides, in pertinent part, that: “Any policy of insurance purchased or

contracted for by the board shall provide that the insurer shall be barred and estopped

from relying upon the constitutional immunity of the State of West Virginia against

claims or suits.” (Emphasis added).

              In accordance with this legislatively-created exception, we have held that

“[s]uits which seek no recovery from state funds, but rather allege that recovery is sought

under and up to the limits of the State’s liability insurance coverage, fall outside the

traditional constitutional bar to suits against the State.” Syl. Pt. 2, Pittsburgh Elevator Co.

v. W.Va. Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983) (emphasis added).

              The Board and Mr. Linger concede that the state insurance policy exception

under West Virginia Code § 29-12-5 precludes them from asserting sovereign immunity,

which originates in the West Virginia Constitution. However, they argue that sovereign

                                              8

immunity is distinct from qualified immunity, which originates in the common law.

Therefore, the fact that they are insured under a state insurance policy does not preclude

them from claiming qualified immunity.

              We agree that the Board and Mr. Linger may assert qualified immunity

even if they are precluded from claiming sovereign immunity “‘[b]ecause the doctrines of

sovereign and [qualified] immunity spring from distinct, if related, concerns, [and thus,]

each has evolved independently.’” W.Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234

W.Va. 492, 503, 766 S.E.2d 751, 762 (2014) (quoting George A. Bermann, Integrating

Governmental and Officer Tort Liability, 77 Colum. L. Rev. 1175, 1213 (1977)).

              Sovereign immunity is concerned with protecting the public fisc.

Pittsburgh Elevator Co., 172 W.Va. at 756, 310 S.E.2d at 689. Accordingly, “where

recovery is sought against the State’s liability insurance coverage, the doctrine of

constitutional immunity, designed to protect the public purse, is simply inapplicable[.]”

Id.

              By contrast, the purpose of qualified immunity is to allow officials to do

their jobs and to exercise judgment, wisdom, and sense without worry of being sued. As

we have said: “[t]he public interest [behind qualified immunity] is that the official

conduct of the officer not be impaired by constant concern about personal liability.”

Parkulo v. W.Va. Bd. of Probation & Parole, 199 W.Va. 161, 177, 483 S.E.2d 507, 523

(1996). Indeed, “fear of being sued will ‘dampen the ardor of all but the most resolute, or

the most irresponsible [public officials], in the unflinching discharge of their duties.’”

Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982) (quoting Gregoire v. Biddle, 177 F.2d

                                            9

579, 581 (2d Cir. 1949)). The fact that the public fisc is kept safe by a state insurance

policy does not mean that a public officer is able to do his or her job unhampered by

frivolous litigation.

               Accordingly, we have determined that the state insurance policy exception

applies only to sovereign immunity.6 Without question, West Virginia Code § 29-12-5

speaks only of the “constitutional immunity of the State[.]” (Emphasis added). It does

not speak to other more limited statutory or common-law immunities. Therefore, even if

the State purchases a policy of insurance, a state agency and its official may claim

immunities under the common law, such as qualified immunity. See, e.g., Parkulo, 199

W.Va. at 175-77, 483 S.E.2d at 521-24. See also Clark v. Dunn, 195 W.Va. 272, 277,

465 S.E.2d 374, 379 (1995) (“We assume that the appellants expected to utilize [the state

insurance policy] exception to the constitutional immunity of the State . . . in this action.




               6
                 We recognize that in our limited holding in Jackson v. Belcher, 232
W.Va. 513, 753 S.E.2d 11 (2013), we applied the state insurance policy exception to find
that a state agency’s statutory immunity for emergency service work under West Virginia
Code § 15-5-11(a) (2006) was defeated. We limited our holding in that case to the
immunity under a statute which contained language expressly preserving an individual’s
right to sue the state when allowed by “any other law.” We held: “W. Va. Code § 15-5­
11(a) (2006) (Repl.Vol.2009) expressly preserves an individual’s right ‘to receive
benefits or compensation to which he or she would otherwise be entitled under . . . any
other law’ and operates to permit an individual to maintain a cause of action against the
State . . . where . . . the recovery sought is confined to the limits of the State’s liability
insurance coverage.” Syl. Pt. 8, in part, Id., 232 W.Va. at 520-21, 753 S.E.2d at 18-19.
“Without question, the majority has crafted its new syllabus point [8] limiting its analysis
to the particular statute at issue.” Id., 232 W.Va. at 521, 753 S.E.2d at 19 (Loughry, J.
dissenting.).


                                             10

However, the issue of qualified or official immunity now before the Court is not resolved

solely by the application of that exception.”).

              The fact that a plaintiff seeks recovery against a state agency and/or its

official “under and up to the limits” of its liability insurance policy does not waive

qualified immunity. Rather, qualified immunity is waived by an insurance policy only if

the policy’s terms expressly say so. We have held:

                     If the terms of the applicable insurance coverage and
              contractual exceptions thereto acquired under W.Va. Code §
              29-12-5 expressly grant the State greater or lesser immunities
              or defenses than those found in the case law, the insurance
              contract should be applied according to its terms and the
              parties to any suit should have the benefit of the terms of the
              insurance contract.

Syl. Pt. 5, Parkulo, 199 W.Va. at 176, 483 S.E.2d at 522 (emphasis added). Likewise, in

Hess v. W.Va. Div. of Corrections, 227 W.Va. 15, 20, 705 S.E.2d 125, 130 (2010), it was

dispositive that: “In the instant case, the insurance policy at issue . . . does not waive the

Appellant’s qualified immunity. Rather, the Certificate of Liability Insurance to the

policy expressly provides that ‘the additional insured . . . does not waive any statutory or

common law immunities conferred upon it.’”

              Therefore, we hold that the state insurance policy exception to sovereign

immunity, created by West Virginia Code § 29-12-5(a)(4) [2006] and recognized in

Syllabus Point 2 of Pittsburgh Elevator Co. v. W.Va. Bd. of Regents, 172 W.Va. 743, 310

S.E.2d 675 (1983), applies only to immunity under the West Virginia Constitution and

does not extend to qualified immunity. To waive the qualified immunity of a state

agency or its official, the insurance policy must do so expressly, in accordance with

                                             11

Syllabus Point 5 of Parkulo v. W.Va. Bd. of Probation & Parole, 199 W.Va. 161, 483

S.E.2d 507 (1996).

              Dr. Marple invites this Court to extend the state insurance policy exception

under West Virginia Code § 29-12-5 to qualified immunity even though the Legislature

declined to do so. However, we have held: “It is not for this Court arbitrarily to read into

[a statute] that which it does not say. Just as courts are not to eliminate through judicial

interpretation words that were purposely included, we are obliged not to add to statutes

something the Legislature purposely omitted.” Phillips v. Larry’s Drive-In Pharmacy,

Inc., 220 W.Va. 484, 491, 647 S.E.2d 920, 927 (2007).

              Under the facts of this case, the Board and Mr. Linger are not precluded

from claiming qualified immunity because the insurance policy’s terms do not expressly

waive the defense. In fact, the Certificate of Liability Insurance contained in the record

expressly states: “It is a condition precedent of coverage under the policies that the

additional insured does not waive any statutory or common law immunity conferred upon

it.” (Emphasis added and Caps-lock omitted).7

                          B. Standard for Qualified Immunity

              In determining whether a state agency and its official(s) are 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
              7




                                            12

              constitute legislative, judicial, executive or administrative
              policy-making acts or involve otherwise discretionary
              governmental functions.

Syl. Pt. 10, A.B., 234 W.Va. at 507, 766 S.E.2d at 766.

              According to Dr. Marple’s complaint, this case arises out of the “summary

dismissal from her position.” It is undisputed that “the broad categories of training,

supervision, and employee retention, as characterized by respondent, easily fall within the

category of ‘discretionary’ governmental functions.” Id., 234 W.Va. at 514, 766 S.E.2d

at 773 (emphasis added).

              Furthermore, the Board and Mr. Linger have broad authority over the

position of Superintendent of Schools for the State of West Virginia. The West Virginia

Constitution creates the position and provides that “The West Virginia board of education

shall . . . select the state superintendent of free schools who shall serve at its will and

pleasure.” W.VA. CONST. ART. XII, § 2 (emphasis added). The Legislature has also

provided that: “There shall be appointed by the state board a State Superintendent of

Schools who serves at the will and pleasure of the state board.” W.VA. CODE § 18-3-1

[2006] (emphasis added). Given the Board’s wide discretion in determining whether to

retain Dr. Marple as superintendent, we see no reason to deviate from our holding in A.B.

that employee retention is a discretionary function.8



              8
              We caution that: “a broadly-characterized governmental action or function
may fall under the umbrella of a ‘discretionary’ function; but within this discretionary
function there are nonetheless particular laws, rights, statutes, or regulations which
impose ministerial duties on the official charged with these functions.” A.B., 234 W.Va.
                                                                           (continued . . .)
                                            13

              In regards to qualified immunity for discretionary functions, such as

employee hiring and retention, we have held:

                     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, A.B., 234 W.Va. at 507, 766 S.E.2d at 767.

              Because there are no allegations in Dr. Marple’s complaint that the Board

or Mr. Linger acted fraudulently, maliciously, or oppressively, we apply a two-part test to

determine whether qualified immunity applies: “(1) does the alleged conduct set out a

constitutional or statutory violation; and (2) were the constitutional standards clearly

established at the time[?]” Hutchison, 198 W.Va. at 149, 479 S.E.2d at 659 (1996).9




at 514, 766 S.E.2d at 773. It is well-established that government agencies and their
officials have no immunity for ministerial acts. Restatement (Second) of Torts § 895D
cmt. h (1979). Dr. Marple’s complaint asserts claims for constitutional violations, as well
as claims based in tort and contract, and she argues that these claims are sufficient to
defeat the Board’s and Mr. Linger’s immunity for discretionary functions. Whether the
Board and Mr. Linger were involved in a ministerial act is not an issue before this Court.
              9
                “Our [qualified] immunity test is designed to parallel the Supreme Court’s
standard of qualified immunity for public officials in Section 1983 actions[.]” Chase
Securities, 188 W.Va. at 365, 424 S.E.2d at 600.



                                            14

              The first step is straight-forward: “If the complaint fails to allege a

cognizable violation of constitutional or statutory rights it also has failed to state a claim

upon which relief can be granted.” Hutchison, 198 W.Va. at 149 n.12, 479 S.E.2d at 659

n.12. Therefore, our inquiry ends if the answer to the first question is “no.” As to the

second step, we stated: “To prove that a clearly established right has been infringed upon,

a plaintiff must. . . . make a ‘particularized showing’ that a ‘reasonable official would

understand that what he is doing violated that right’ or that ‘in the light of preexisting law

the unlawfulness of the action was ‘apparent.’” Id., 198 W.Va. at 149 n.11, 479 S.E.2d at

659 n.11. See also Malley v. Briggs, 475 U.S. 335, 341 (1986) (“[Q]ualified immunity . .

. provides ample protection to all but the plainly incompetent or those who knowingly

violate the law.”).

              Dr. Marple’s complaint does not contain any allegation that the Board or

Mr. Linger acted fraudulently, maliciously, or oppressively. It also does not seek relief

for a statutory violation.10 Rather, her complaint broadly alleges that her due process



              10
                  Dr. Marple argues that the Board and Mr. Linger violated the West
Virginia Open Meetings Act. See W.VA. CODE § 6-9A-1, et. seq. However, she failed to
assert any claim for damages, or any other type of relief, under the Act in her complaint.
Even if Dr. Marple would have asserted a claim based on the Open Meetings Act, she
could not have been afforded relief for two reasons. First, the Board cured any potential
violation in the November 14 and 15 meeting by conducting its November 29 meeting.
See, e.g., McComas v. Bd. of Educ. of Fayette Cnty, 197 W.Va. 188, 201, 475 S.E.2d 280,
293 (1996). Second, she was time-barred from asserting a claim under the Act when she
filed her complaint. West Virginia Code § 6-9A-6 [1999] provides: “The circuit court . . .
has jurisdiction to enforce this article upon civil action commenced by any citizen of this
state within one hundred twenty days after the action complained of was taken or the
decision complained of was made.” (Emphasis added). Dr. Marple filed her complaint in
                                                                              (continued . . .)
                                             15

rights under the West Virginia Constitution were violated. As we discuss below, the

actions of the Board and Mr. Linger identified in Dr. Marple’s complaint are not

constitutional violations.11

                          C. Dr. Marple’s Constitutional Claims

              Dr. Marple alleges in her complaint that the Board and Mr. Linger infringed

on her liberty and property interests by summarily terminating her, thus violating her

right to due process under the West Virginia Constitution. We have held: “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. Civil Serv. Comm’n, 161 W.Va. 154, 241 S.E.2d 164 (1977).

              We use a two-step inquiry to determine whether a state employer infringed

on its employee’s liberty or property interest: (1) did the employee have a liberty or

property interest at stake; and (2) if so, how much process is he/she entitled under our

Due Process Clause. Waite, 161 W.Va. at 159, 241 S.E.2d at 167. “[I]f the answer [to

the first question] is no, the second step becomes unnecessary because [the employee] has

April 2014, seventeen months after her November 2012 termination and well beyond the
120-day deadline.
              11
                  Ordinarily, the immunity of a state agency and its officer are addressed
separately. See A.B., 234 W.Va. at 502, 766 S.E.2d at 761 (Complaining that this Court,
when considering immunity, often “treated individual defendants and their employers
collectively, without separate analysis of whether the State or State agency is necessarily
entitled to like treatment and why.”). However, in this case, Dr. Marple alleges the same
claims against the Board and Mr. Linger, and she seeks the same relief from them. Also,
the Board and Mr. Linger assert the same defenses in their appeal to this Court.
Likewise, our reasons for finding that qualified immunity protects the Board and Mr.
Linger are the same, so we discuss them together.


                                            16

no claim warranting constitutional protection.” Id. As we have stated: “The threshold

question in any claim of due process deprivation is isolation of the property interest or

liberty interest that the plaintiff alleges was at stake.” Orteza v. Monongalia Cnty. Gen.

Hosp., 173 W.Va. 461, 466-67, 318 S.E.2d 40, 45 (1984).

               The Board and Mr. Linger contend that Dr. Marple failed to show she had a

liberty or property interest in her at-will employment. Therefore, in terminating Dr.

Marple from her at-will position, they contend they were not required to afford her any

due process protections. Waite, 161 W.Va. at 159, 241 S.E.2d at 167.

               We agree that Dr. Marple did not allege sufficient facts to show that either a

liberty or property interest was implicated by the acts of the Board or Mr. Linger.

                                     1. Liberty Interest

               Dr. Marple argues that a constitutionally protected liberty interest was

implicated by the Board’s statement that: (1) it was dissatisfied with West Virginia’s

negative education statistics; (2) sufficient progress had not occurred in public education;

and (3) a new superintendent of schools might achieve different results.

               The Board and Mr. Linger argue that this statement did not impugn Dr.

Marple’s good name or character. Therefore, it was not stigmatizing enough to implicate

her liberty interest.

               We define “liberty interest” as follows:

                      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 individual that might seriously damage his standing and

                                             17
              associations in his community or places a stigma or other
              disability on him that forecloses future employment
              opportunities.

Syl. Pt. 2, Waite, 161 W.Va. at 154, 241 S.E.2d at 164 (emphasis added). Accordingly, a

liberty interest encompasses two of a state employee’s most basic interests: (1) his/her

good name; and (2) his/her prospects for future employment. Major v. DeFrench, 169

W.Va. 241, 256, 286 S.E.2d 688, 697 (1982).

              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. On the one hand, a charge regarding an employee’s character flaw

implicates a liberty interest (i.e. charges of dishonesty, immorality, or criminality). See

Waite, 161 W.Va. at 160, 241 S.E.2d at 168; Roth, 408 U.S. at 573. On the other hand, it

is well-established that not all public employees have a protected liberty interest in

continued government employment, even when his/her termination makes him/her less

attractive to potential employers. Freeman v. Poling, 175 W.Va. 814, 822, 338 S.E.2d

415, 422 (1985). Further, “an unexplained termination or discharge from employment

does not create a sufficient stigma to invoke a liberty interest protection[.]” Id., 175

W.Va. at 822, 338 S.E.2d at 423.

              Dr. Marple does not allege that the Board’s statement reflected upon her

character.   Likewise, we find the Board’s statement does not impugn Dr. Marple’s

honesty, morality, or integrity.

              Instead, Dr. Marple argues that the Board’s statement casts doubt on her

established record of competence. However, she fails to cite any legal support for her

                                            18

position that casting doubt on an employee’s competence implicates a liberty interest. To

the contrary, this Court has found that a statement explaining termination as the “loss of

confidence in your ability to affectively discharge the duties and responsibilities of your

position[,]” was not sufficient to “reach the level of stigmatization which would foreclose

future employment opportunities or seriously damage . . . [the individual’s] standing and

associations in the community.” Wilhelm v. W.Va. Lottery, 198 W.Va. 92, 93, 479 S.E.2d

602, 603 (1996) (citations omitted).12

              Even if an employee’s liberty interest was implicated by a clear charge of

incompetence, that is not what happened in this case. Rather, the Board’s statement was

that education statistics in West Virginia are poor compared to the rest of the nation – a

fact that long predates Dr. Marple and, unfortunately, appears to outlive her employment

as superintendent. The Board’s statement made clear that it did not affix blame upon Dr.

Marple and that she was not more responsible for this problem than “governors,

legislators, educators, or board members.”




              12
                 Other jurisdictions have held that a mere charge of incompetence does
not implicate an employee’s liberty interest. See Robertson v. Rogers, 679 F.2d 1090,
1092 (4th Cir. 1982) (Statement regarding employee’s “incompetence and outside
activities,” is not “the type of communication which gives rise to a protected liberty
interest.”); Adams v. Walker, 492 F.2d 1003 (7th Cir. 1974) (charges of incompetence,
neglect of duty, and malfeasance in office are not stigmatizing); Stretten v. Wadsworth
Veterans Hosp., 537 F.2d 361 (9th Cir. 1976) (charge of incompetence against pathology
resident did not implicate liberty interest); Jones v. Univ. of Iowa, 836 N.W.2d 127 (Iowa
2013) (“[Employer’s] comments could undoubtedly be interpreted as accusations of
professional incompetence, such accusations fall substantially short of the level of stigma
required to establish a constitutionally protected liberty interest.”).


                                             19

              The Board is charged with promoting education in West Virginia.              In

fulfilling that duty, it is not bound to the leadership of a particular superintendent when it

discerns that change is in the best interest of West Virginia’s students. To find otherwise

would eviscerate the Board’s discretion as created by the West Virginia Constitution.

              While the Board’s statement may have come as a shock to Dr. Marple,

especially in light of her previous accolades, our role is not to determine whether the

Board’s statement was fair or correct, but rather, whether it violated the Constitution.

Under the specific facts of this case, we cannot say the Board’s statement was

stigmatizing enough to implicate Dr. Marple’s liberty interest.

                                    2. Property Interest

              Dr. Marple acknowledges that the West Virginia Constitution, statutory

law, and her employment contract all declare her position as superintendent to be at-will.

Still, she claims that she had a property interest in her continued employment for the

Board.   By contrast, the Board and Mr. Linger argue that Dr. Marple, an at-will

employee, had nothing more than a unilateral expectation of continued employment,

which does not create a property interest.

              We have defined “property interest” as follows: “A ‘property interest’

includes not only the traditional notions of real and personal property, but also extends to

those benefits to which an individual may be deemed to have a legitimate claim of

entitlement under existing rules or understandings.” Syl. Pt. 3, Waite, 161 W.Va. at 154,

241 S.E.2d at 164 (emphasis added).



                                             20

              Dr. Marple asserts that certain Board actions, such as her positive

performance review, her pay-raise, and the Board’s gleaming press release about her,

evidenced a mutual understanding that she could remain superintendent so long as she

did a good job. Thus, Dr. Marple felt she had an entitlement to continued employment as

superintendent based on her good relationship with the Board.

              However, we have held: “‘A “property interest” protected by due process

must derive from private contract or state law, and must be more than the unilateral

expectation of continued employment.’ Major v. DeFrench, 169 W.Va. 241, 286 S.E.2d

688, 695 (1982).” Syl. Pt. 3, Orteza, 173 W.Va. at 467, 318 S.E.2d at 46. Therefore, the

fact that Dr. Marple’s termination came as a surprise to her is insufficient to implicate a

property interest. Dr. Marple has a property interest in her employment as superintendent

only if her purported claim of entitlement is fairly derived from (1) her employment

contract, or (2) applicable state law.

              Dr. Marple’s employment contract clearly and unambiguously provided

that she was an at-will employee and contained no guarantee of future employment or

procedure for termination.13 We therefore must consider whether state law gave Dr.

Marple an entitlement to continued employment as superintendent. The West Virginia

Constitution declares her position to be at-will. It says: “The West Virginia board of

education shall . . . select the state superintendent of free schools who shall serve at its
              13
                “Where the terms of a contract are clear and unambiguous, they must be
applied and not construed.” Syl. Pt. 2, Bethlehem Mines Corp v. Haden, 153 W.Va. 721,
172 S.E. 126 (1969).



                                            21

will and pleasure.” W.VA. CONST. Art XII, §2 (1957) (emphasis added). Her position is

also designated to be at-will by a statute, which provides: “There shall be appointed by

the state board a State Superintendent of Schools who serves at the will and pleasure of

the state board.” W.VA. CODE § 18-3-1 [2006] (emphasis added).

              Interpreting a similar statute, we have held: “W.Va.Code, 5-3-3 (1961), by

providing that assistant attorneys general shall serve at the pleasure of the attorney

general, defines an at-will employment allowing termination at any time with or without

cause.” Syl. Pt. 3, Williams v. Brown, 190 W.Va. 202, 437 S.E.2d 775 (1993) (emphasis

added).   Likewise, the clear and unambiguous language of the statute in Williams

indicated the Legislature’s intent “to give the Attorney General unfettered control over

the hiring and firing of assistant attorneys general.” Id., 190 W.Va. at 205, 437 S.E.2d at

778. See also Wilhelm, 198 W.Va. at 94, 479 S.E.2d at 604 (1996) (“The use of the

phrase ‘at the will and pleasure of the director’ indicates the intent of the legislature to

give [the state employer] control over the hiring and firing of deputy directors[.]”).

              The clear and unambiguous language of West Virginia Constitution Article

XII, § 2 and West Virginia Code § 18-3-1 [2006] designate the position of

Superintendent of Schools for the State of West Virginia to be at-will. Accordingly, the

drafters of the Constitution and the Legislature intended to give the State Board of




                                             22

Education control over the hiring and retention of the Superintendent of Schools for the

State of West Virginia.14

              Therefore, Dr. Marple’s claim that she was entitled to continued

employment for the Board directly contradicts applicable state law. As we have held:

“Although a government employee may have a reasonable basis for understanding terms

of his employment, those understandings cannot override state law that defines the terms

of employment.” Syl. Pt. 2, Freeman, 175 W.Va. at 817, 338 S.E.2d at 419.

              Still, Dr. Marple argues that she may introduce evidence regarding the

Board’s usage and custom to show an implied agreement of continued employment. She

also asserts that the Board and Mr. Linger were subject to the implied covenant of good

faith and fair dealing. Her contentions fail for two reasons. First, custom and usage may

not be used to contradict the written terms of a contract but only to supplement the terms

of an otherwise ambiguous contract. Adkins v. Inco Alloys Int’l, Inc., 187 W.Va. 219,

226, 417 S.E.2d 910, 917 (1992). Dr. Marple’s alleged entitlement to her position

directly contradicts her at-will employment contract. Second, “we do not recognize the

implied covenant of good faith and fair dealing in the context of an at-will employment



              14
                  However, we caution that: “[P]ublic employees are entitled to be
protected from . . . adverse employment consequences resulting from the exercise of their
. . . First Amendment rights. However, . . . the State, as an employer, also has an interest
in the efficient and orderly operation of its affairs that must be balanced with the public
employees’ right to free speech, which is not absolute.” Syl. Pt. 3, in part, Orr v.
Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983). Dr. Marple does not allege that she
was terminated from her position because of her exercise of First Amendment rights.



                                            23

contract.” Miller v. Massachusetts Mut. Life Ins. Co., 193 W.Va. 240, 244, 455 S.E.2d

799, 803 (1995).

              Accordingly, Dr. Marple’s claims under the West Virginia Constitution fail

as a matter of law.

                           D. Dr. Marple’s remaining claims

              Based on the same facts as her constitutional claims, Dr. Marple asserts

causes of action for defamation, false light, and breach of contract. Qualified immunity

bars these remaining claims. See Clark, 195 W.Va. at 278-79, 465 S.E.2d at 380-81

(Qualified immunity is not limited to claims for constitutional violations.). Dr. Marple’s

complaint fails to show how the Board and Mr. Linger violated a clearly established

statutory or constitutional right.   Furthermore, her complaint does not contain any

allegation that the Board or Mr. Linger acted fraudulently, maliciously, or oppressively.

See Syl. Pt. 11, A.B., 234 W.Va. at 507, 766 S.E.2d at 767.

              As a final matter, Dr. Marple contends that we should refuse to consider the

Board’s qualified immunity because the Board did not raise that issue in its written

motion to dismiss. However, after the motion was filed, the parties repeatedly argued

about qualified immunity, as to both the Board and Mr. Linger. There were arguments

made on qualified immunity during the hearing before the circuit court and in the Board’s

proposed order relating to the motion to dismiss. In fact, Dr. Marple apparently regarded

the circuit court as having addressed the Board’s qualified immunity by stating in her

brief to this Court that: “The [circuit court’s] extension of the unavailability of absolute

immunity in the present context to qualified immunity is a clearly legitimate act.”

                                            24

              Qualified immunity is an affirmative defense to liability, which under the

Rules of Civil Procedure must be pled. However, qualified immunity can be pled at

various stages in a case. As one court noted, “qualified immunity is a question of law

that may be generally asserted (1) on a pretrial motion to dismiss under Rule 12(b)(6) for

failure to state a claim; (2) as an affirmative defense in the request for judgment on the

pleadings pursuant to Rule 12(c); (3) on a summary judgment motion pursuant to Rule

56(e); or (4) at trial.” Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002).15 See

also, State v. Chase Sec., Inc., 188 W.Va. 356, 362 n. 19, 424 S.E.2d 591, 597 n. 19

(1992) (“Qualified or ‘good faith’ immunity is an affirmative defense that must be

pleaded by a defendant official.”) (Citation omitted).

              However, it is well-established that:

                     [S]ince a motion to dismiss is not a pleading, Rule 8(c)
              [requiring that affirmative defenses be pled] does not become
              applicable until such time as the motion [to dismiss] is denied
              and a responsive pleading is filed. Consequently, a defendant
              is not precluded from raising an affirmative defense during
              the proceeding on its motion to dismiss, even though the
              defense was not raised in the motion to dismiss.




              15
                  “Because the West Virginia Rules of Civil Procedure are patterned after
the Federal Rules of Civil Procedure, we often refer to interpretations of the Federal
Rules when discussing our own rules.” Hardwood Group v. Larocco, 219 W.Va. 56, 61
n.6, 631 S.E.2d 614, 619 n.6 (2006). See also State v. Sutphin, 195 W.Va. 551, 563, 466
S.E.2d 402, 415 (1995) (“[W]e have repeatedly recognized that when codified procedural
rules . . . of West Virginia are patterned after the corresponding federal rules, federal
decisions interpreting those rules are persuasive guides in the interpretation of our
rules.”) (citations omitted).



                                            25

              FRANKLIN D. CLECKLEY, ROBIN JEAN DAVIS & LOUIS J. PALMER, JR.,


LITIGATION HANDBOOK ON WEST VIRGINIA RULES OF CIVIL PROCEDURE §8(c) at 208

(4th ed. 2012) (citing Ruckdeschel v. Falcon Drilling Co., L.L.C., 225 W.Va. 450, 456

n.4, 693 S.E.2d 815, 821 n.4 (2010) (emphasis added).

              Furthermore, failure to raise an affirmative defense in a motion to dismiss

does not result in waiver when “there is no unfair surprise or prejudice to the opposing

party.” 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 8.08[3], at 8-79

(3d. ed. 2015), “Where an affirmative defense such as qualified immunity “is raised in

the trial court in a manner that does not result in unfair surprise . . . technical failure to

comply precisely . . . [with the Rules of Civil Procedure] is not fatal.” Holland v. Cardiff

Coal Co., 991 F.Supp. 508, 515 (S.D.W.Va. 1997) (quoting Allied Chem. Corp. v.

Mackay, 659 F.2d 854, 855-56 (5th Cir. 1983)). The defense of qualified immunity “is

not waived if the defendant ‘raised the issue at a pragmatically sufficient time, and [the

plaintiff] was not prejudiced in its ability to respond.’ . . . Rather, we look at the overall

context of the litigation and have found no waiver where no evidence of prejudice exists

and sufficient time to respond to the defense remains before trial.” Pasco ex rel. Pasco v.

Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009) (defense of qualified immunity not waived

by failure to plead in answer). See also, Camarillo v. McCarthy, 998 F.2d 638, 639 (9th

Cir. 1993) (same).

              Under the procedural facts of this case, we cannot say that the timing of the

Board’s assertion of qualified immunity waived the defense or subjected Dr. Marple to

unfair surprise or prejudice. Therefore, we reject Dr. Marple’s argument that we are

                                             26

precluded from considering the Board’s qualified immunity. See, e.g., Ridpath v. Bd. of

Governors of Marshall Univ., 447 F.3d 292, 305-06 (4th Cir. 2006) (Defendant’s belated

assertion of qualified immunity did not preclude appellate review where defendants

originally pleaded sovereign immunity, plaintiff suffered no prejudice or unfair surprise,

and the circuit court addressed the issue in its order denying the motion to dismiss).

                                         IV.

                                     CONCLUSION


              We do not pass judgment on the wisdom, correctness, or fairness of Dr.

Marple’s termination.      The West Virginia Constitution, statutory law, and her

employment contract all gave the Board and Mr. Linger discretion to terminate her

position at their will and pleasure. As a matter of law, Dr. Marple had no constitutionally

protected interest in continued employment as superintendent. Therefore, Dr. Marple’s

complaint does not allege a cause of action sufficient to overcome the Board’s and Mr.

Linger’s discretion to terminate her, and qualified immunity bars each of her claims.

Accordingly, we reverse the circuit court’s November 3, 2014, order and dismiss Dr.

Marple’s complaint.

                                                                                  Reversed.




                                             27

