                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Carl Campion,
Plaintiff Below, Petitioner,                                                       FILED
                                                                                June 3, 2016
vs) No. 15-0689 (Kanawha County 14-C-1002)                                     RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
West Virginia Department

of Education,

Defendant Below, Respondent.



                               MEMORANDUM DECISION
       Petitioner Carl Campion, by counsel James A. Varner, Sr., and Ronald G. Kramer, II,
appeals the June 23, 2015, order of the Circuit Court of Kanawha County granting summary
judgment to Respondent the West Virginia Department of Education. Respondent, by counsel
Kelly C. Morgan and Kristen V. Hammond, filed its response, to which petitioner submitted a
reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner Carl Campion learned that a collision repair instructor position was about to be
available at the Huttonsville Correctional Center (“HCC”), so he inquired about the salary for the
position. According to petitioner, the principal at HCC, Ernest Gooding Jr., told him that it
would pay “in the low 40’s . . . somewhere around $42,000” per year. In the spring of 2013, the
job was posted with a starting base salary of $38,010 for an instructor with zero years teaching
experience and a bachelor of arts degree. On or about April 8, 2013, petitioner applied for the
position. Only one other person applied for the job, and both were interviewed on May 31, 2013,
by Mr. Gooding and HCC instructor Richard Kisner Jr.1 Mr. Gooding advised petitioner that if
he received the job, his starting salary would be $38,010 because he did not have any prior
teaching experience. Following the interview, both Mr. Gooding and Mr. Kisner scored
petitioner as the most qualified candidate.

       On June 3, 2013, Mr. Gooding left petitioner a voicemail stating that he would like to

       1
        At the time they interviewed for the position, petitioner was fifty-one years old and the
other applicant was under the age of forty.


                                                1

offer petitioner the job and asked him to return the call to discuss the terms.2 Later that day, Mr.
Green, the Special Assistant to the Associate Superintendent at the West Virginia Department of
Education’s Office of Institutional Education Programs, returned a call from petitioner made on
May 29, 2013, and discussed petitioner’s belief that the salary should be $48,789. Petitioner
stated at that time that he had discussed the starting salary for Career and Technical Education
(“CTE”) instructors with a Randolph County Board of Education (“RCBE”) technical center
principal, Donald Johnson, who had informed him that petitioner would be credited with ten
years teaching experience based upon his industry work experience. After speaking with Mr.
Johnson, petitioner contacted Delegate Denise Campbell to complain that respondent was not
offering him the salary that the RCBE was paying. Ms. Campbell followed up on petitioner’s
complaint by contacting Mr. Green to discuss the matter.

        Mr. Green informed petitioner that because it was his understanding that the RCBE did
not give credit to CTE instructors for industry experience, Mr. Green would need to investigate
the matter. The RCBE Superintendent Terry George told Mr. Gooding and Mr. Green that the
RCBE did not have a written policy on work experience credit and offered it as a recruitment
tool on an ad hoc basis, depending on the depth of the applicant pool.

        On June 13, 2013, Mr. Gooding left petitioner a voicemail message advising him the
RCBE would not put its salary practice for new CTE teachers in writing, so the collision repair
instructor job offer remained at the base salary. He asked that petitioner return the call if he was
interested in the position. Petitioner returned the call that evening but stated that he wanted to
wait to see if the RCBE would develop a written policy of awarding work experience credit
before making a decision. On June 17, 2013, Mr. Green directed Mr. Gooding to advise
petitioner that he had until noon on June 18, 2013, to convey his decision. On June 18, 2013, Mr.
Gooding attempted to reach petitioner by phone at least twice, but he did not reach petitioner and
petitioner’s voicemail did not pick up. That evening, the other candidate was offered the job, and
neither Mr. Green nor Mr. Gooding heard from petitioner again about the job.
        Petitioner filed his original complaint against respondent on or about January 16, 2014, in
the Circuit Court of Randolph County.3 His amended complaint before the Circuit Court of

       2
         While the timing is unclear from the record and petitioner’s argument, petitioner asserts
that he tried to respond to Mr. Gooding’s call several times but that Mr. Gooding was
unavailable. Nonetheless, after receiving the job offer, petitioner informed his then-employer, the
West Virginia Department of Highways (“WVDOH”), that he had accepted a position with
respondent so he was resigning from the WVDOH. According to petitioner, and an affidavit
from Michael Moran at the WVDOH, the WVDOH offered petitioner a 10% raise if he stayed
with the WVDOH. However, petitioner declined the raise because he said it would still be less
money than he would earn in the teaching position at issue. This is contrary to respondent’s
assertion that, while petitioner earned less per year with the WVDOH, with overtime petitioner
made more than $38,010 in 2012. Respondent’s assertion is supported by the WVDOH payroll
record included in the appendix.
       3
         Petitioner voluntarily dismissed the Randolph County action on January 23, 2014, and
refiled in the Circuit Court of Kanawha County on March 6, 2014.


                                                 2

Kanawha County, filed on or about August 25, 2014, asserted claims for age discrimination,
wrongful termination, and claims under the Whistleblower Law. Following discovery,
respondent submitted its motion for summary judgment to the circuit court. The circuit court
heard oral argument on respondent’s motion on February 3, 2015, during the final pretrial
conference. The circuit court held a status conference on February 23, 2015, and ordered the
parties to conduct another mediation session. On June 23, 2015, the circuit court entered its order
granting summary judgment to respondent, which includes the following findings: (1) any
attempt to bind respondent would have been an ultra vires act; (2) West Virginia Code § 6C-1­
4(a) requires that a whistleblower action be brought within 180 days after the occurrence of the
alleged violation, but petitioner filed his action more than thirty days beyond that deadline; (3)
petitioner was offered the job but was never an employee as defined by West Virginia Code §
6C-1-2(b) since he never accepted the position and was not approved for hire by the State
Superintendent and Governor’s office; (4) petitioner was never an employee because he never
performed a service for a wage for respondent; (5) although petitioner was determined by
respondent to be the most qualified applicant, when he was offered the job he did not accept the
position at the offered salary of $38,010 per year; (6) petitioner’s age was not the reason
respondent offered the job to the second most qualified applicant; (7) petitioner never accepted
the job because he mistakenly believed that he was entitled to more money; (8) only after
petitioner refused to respond to respondent’s final offer on June 17, 2014, was the job offered to
the second most qualified applicant; and (9) the State salary statutes were not violated as a matter
of law.4 The circuit court also dismissed all of petitioner’s claims against respondent in the
underlying action with prejudice. Petitioner appeals from that order.

       “We review a circuit court’s summary judgment order de novo. Syllabus Point 1, Painter
v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Chesapeake Appalachia, L.L.C. v. Hickman,
236 W.Va. 421, __, 781 S.E.2d 198, 211 (2015). Further,

               [s]ummary judgment is appropriate where the record taken as a whole
       could not lead a rational trier of fact to find for the nonmoving party, such as
       where the nonmoving party has failed to make a sufficient showing on an
       essential element of the case that it has the burden to prove.

Syl. Pt. 4, Painter v. Peavy, 192 W.Va. at 190, 451 S.E.2d at 756.

       “‘A motion for summary judgment should be granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the
application of the law.’ Syllabus point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl. Pt. 1, Carr v. Michael Motors, Inc.,
210 W.Va. 240, 557 S.E.2d 294 (2001). As we have also explained,

              [r]oughly stated, a “genuine issue” for purposes of West Virginia Rule of
       Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine

       4
         Counsel for respondent prepared the summary judgment order that was entered by the
circuit court.


                                                 3

       issue does not arise unless there is sufficient evidence favoring the non-moving
       party for a reasonable jury to return a verdict for that party. The opposing half of a
       trialworthy issue is present where the non-moving party can point to one or more
       disputed “material” facts. A material fact is one that has the capacity to sway the
       outcome of the litigation under the applicable law.

Syl. Pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995).

       Stated another way, “[i]f the evidence favoring the nonmoving party is ‘merely
       colorable . . . or is not significantly probative’” a genuine issue does not arise, and
       summary judgment is appropriate. Williams [v. Precision Coil, Inc.], 194 W.Va.
       [52,] at 60-61, 459 S.E.2d [329,] at 337-38 (quoting Anderson [v. Liberty Lobby,
       Inc.], 477 U.S. [242,] at 249-50, 106 S.Ct. [2505,] at 2511 (citations omitted in
       original)).

Jividen, 194 W.Va. at 713-14, 461 S.E.2d at 459-60.

        On appeal, petitioner asserts four assignments of error. First, he contends that the circuit
court’s decision to award summary judgment as to his age discrimination claim constitutes
reversible error because genuine factual disputes exist as to whether his age was a motivational
bias behind respondent’s decision to hire a younger, unqualified applicant. Petitioner argues that
he presented sufficient facts to establish a prima facie case of age discrimination because he was
qualified for the position and was over the age of forty while the younger applicant did not meet
the minimum qualifications but was hired over petitioner. 5 He asserts that the evidence and his
testimony showed that he accepted the job but respondent refused to give him a start date
because the younger applicant was deemed to be a more “long-term fit.”6 Petitioner points to
affidavits from employees at the West Virginia Division of Highways (“WVDOH”), which both
       5
      In syllabus point three of Knotts v. Grafton City Hospital, __ W.Va. __, __ S.E.2d __,
2016 WL 1564289 (April 14, 2016), we stated the following:

              In an age discrimination employment case brought under the West
       Virginia Human Rights Act, W.Va. Code § 5-11-1, et seq. [1967], this Court
       adopts the “substantially younger” rule contained in O’Connor v. Consolidated
       Coin Caterers Corp., 517 U .S. 308, 116 S.Ct. 1307 (1996). In view of this
       holding, the “over 40/under 40” rule applied by this Court in Young v. Bellofram
       Corp., 227 W.Va. 53, 705 S.E.2d 560 (2010) (per curiam), is overruled.

While we recognize that the parties argued the motion for summary judgment below based on
the “over 40/under 40” rule, that issue is not dispositive of petitioner’s appeal.
       6
         In an e-mail during the hiring process, Mr. Gooding wrote that it was his belief that
petitioner would not accept the position, referencing salary issues. He then said that the other
candidate had real potential and was “a long term fit.” In his deposition, Mr. Gooding explained
that statement in the e-mail by testifying that petitioner expressed the strong possibility that he
would remain in the job for four or five years before retiring.


                                                 4

show that petitioner informed them that he was leaving his position there to work at HCC. One
of those affidavits shows that petitioner turned down a 10% pay increase if he remained at the
WVDOH.

               “In order to make a prima facie case of employment discrimination under
       the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq. (1979), the
       plaintiff must offer proof of the following: (1) That the plaintiff is a member of a
       protected class. (2) That the employer made an adverse decision concerning the
       plaintiff. (3) But for the plaintiff’s protected status, the adverse decision would
       not have been made.” Syllabus Point 3, Conaway v. Eastern Associated Coal
       Corp., 178 W.Va. 164, 358 S.E .2d 423 (1986).

Syl. Pt. 1, Knotts v. Grafton City Hospital, __ W.Va. __, __ S.E.2d __, 2016 WL 1564289 (April
14, 2016).

       Our cases addressing employment age discrimination provide for recovery
       “premised upon theories of disparate treatment and disparate impact.” Moore v.
       Consolidated Coal Co., 211 W.Va. 651, 660, 567 S.E.2d 661, 670 (2002) (Davis,
       J., concurring). “Disparate treatment is applicable to claims of intentional
       discrimination, as opposed to claims that a facially neutral practice is having
       disparate impact upon a protected class.” West Virginia Univ./West Virginia Bd.
       of Regents v. Decker, 191 W.Va. 567, 570–71, 447 S.E.2d 259, 262–63 (1994).

Knotts at *8. Petitioner’s complaint is predicated solely upon a claim of disparate treatment - he
alleges that respondent discriminated against him on the basis of his age.

        The record in this case reveals that despite petitioner’s comment to the effect that he
would only remain in the position for four to five years before retiring, respondent extended the
job offer to petitioner. As we have previously recognized, “self-serving assertions without factual
support in the record will not defeat a motion for summary judgment. McCullough Oil, Inc. v.
Rezek, 176 W.Va. 638, 346 S.E.2d 788 (1986).” Williams v. Precision Coil, 194 W.Va. 52, 61
n.14, 459 S.E.2d 329, 338 n.14. Petitioner’s only evidence that he accepted the offer was his own
uncorroborated, self-serving testimony. He failed to point to any correspondence or recorded
telephone call during which he accepted the position, and no other witness testified that
petitioner accepted the offer. While he presented affidavits from co-workers that he had given
notice to the DOH and turned down a raise, those affidavits in no way prove that petitioner
actually accepted the position with respondent. Therefore, we find that the circuit court did not
err in awarding summary judgment to respondent on this claim.

       Petitioner’s second assignment of error is that the circuit court’s decision to award
summary judgment as to petitioner’s wrongful termination claim constitutes reversible error
because petitioner submitted evidence that clearly creates disputes as to issues of material fact
regarding whether respondent took adverse employment action against petitioner in
contravention of West Virginia public policy. As part of this argument, petitioner points to
respondent’s personnel selection process, which refers to successful applicants as “new
employees” and Mr. Green’s testimony as a Rule 30(b)(7) designee that he approved Mr.

                                                5

Gooding’s recommendation to hire petitioner and that petitioner was a “successful applicant.”
Petitioner contends that the question of his acceptance of the job offer was a question of fact that
should have been determined by a jury and that if a jury concluded that petitioner had accepted
the job offer, petitioner would be entitled to protection against wrongful discharge. In addition,
petitioner asserts that he was a whistleblower entitled to protection from termination for
reporting respondent’s wrongful pay practice.

       We have stated that

               [w]hen an employee makes a prima facie case of discrimination, the
       burden then shifts to the employer to prove a legitimate, nonpretextual, and
       nonretaliatory reason for the discharge. In rebuttal, the employee can then offer
       evidence that the employer’s proffered reason for the discharge is merely a pretext
       for the discriminatory act.

Syl. Pt. 2, Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991). In
addition, in Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978),
this Court recognized that

               [t]he rule that an employer has an absolute right to discharge an at will
       employee must be tempered by the principle that where the employer’s
       motivation for the discharge is to contravene some substantial public policy
       principle, then the employer may be liable to the employee for damages
       occasioned by this discharge.

Syl., id. Further, West Virginia Code § 6C-1-2 defines an “employee” as “a person who performs
a full or part-time service for wages, salary, or other remuneration under a contract of hire . . . for
a public body.” As set forth above, petitioner failed to provide any evidence, beyond his self-
serving statements, that he was an employee of respondent. He fails to point to this Court any
evidence that he received payment or other remuneration from respondent. Therefore, he cannot,
under our law, establish that he was an employee who was wrongfully discharged by respondent.
For these reasons, we cannot find that the circuit court erred in granting summary judgment to
respondent on this claim.

        Petitioner’s third assignment of error is that the circuit court’s finding that his attempt to
bind respondent would have been an ultra vires act was error because the record establishes that
the job offered to petitioner was made by officials with the actual authority to do so. Petitioner
contends that respondent was bound by Mr. Gooding’s and Mr. Green’s offers of employment to
petitioner. In its order, the circuit court found that any attempt to bind respondent would have
been an ultra vires act, dismissing petitioner’s amended complaint because he was never an
employee of respondent.7 Respondent does not dispute that Mr. Gooding and Mr. Green made
conditional job offers to petitioner or that these men had the authority to make such offers.
       7
         “Ultra vires means that the action taken was beyond the power or authority given to the
actor. Black’s Law Dictionary 1522 (6th ed. 1990).” State v. Chase Securities, Inc., 188 W.Va.
356, 358 n.3, 424 S.E.2d 591, 593 n.3 (1992).


                                                  6

Again, the issue is not whether offers of employment were made by Mr. Gooding and/or Mr.
Green; that is undisputed. However, as set forth by the circuit court in its order and this Court
hereinabove, petitioner failed to provide sufficient evidence to create a dispute of fact as to
whether he accepted the offers of employment. In addition, pursuant to the statutory definition of
“employee” set forth in the Whistleblower law, West Virginia Code § 6C-1-2, it is apparent that
petitioner could not show that he was an employee of respondent. Thus, we find no error in the
circuit court’s dismissal of petitioner’s claim on this issue.

        Finally, petitioner contends that the circuit court erred in awarding summary judgment to
respondent because there were genuine issues of material fact as to the timeliness of his
whistleblower claim. Petitioner asserts that the discovery rule is applicable to his whistleblower
claim because he was not aware that respondent had hired the other applicant until October of
2013. Therefore, he claims that his January 16, 2014, filing of his complaint in Randolph County
was timely. West Virginia Code § 6C-1-4(a) provides that “[a] person who alleges that he is a
victim of a violation of this article may bring a civil action in a court of competent jurisdiction
for appropriate injunctive relief or damages, or both, within one hundred eighty days after the
occurrence of the alleged violation.” It is undisputed that respondent offered the job to the other
applicant on June 18, 2013, the date the circuit court concluded was the last day petitioner could
reasonably argue an adverse action was taken against him. Respondent points out that petitioner
never argued the applicability of the discovery rule before the circuit court, and in its reply
before this Court, petitioner fails to point to the record to show that he asserted such argument
below. This Court has consistently held that “silence may operate as a waiver of objections to
error and irregularities . . . .” State v. Grimmer, 162 W.Va. 588, 595, 251 S.E.2d 780, 785 (1979),
overruled on other grounds by State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980)). The raise
or waive rule is designed “to prevent a party from obtaining an unfair advantage by failing to
give the trial court an opportunity to rule on the objection and thereby correct potential error.”
Wimer v. Hinkle, 180 W.Va. 660, 663, 379 S.E.2d 383, 386 (1989). The circuit court did not find
that the discovery rule was inapplicable. Instead, it applied the statute as drafted, including that
the action be filed within 180 days “after the occurrence of the alleged violation.” Due to
petitioner’s failure to argue the application of the discovery rule below and the circuit court’s
proper application of the statute, we find no error under the specific facts of this case.

       For these reasons, we find no error in the circuit court’s finding that no genuine issues of
material fact existed sufficient to deny respondent’s motion for summary judgment.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: June 3, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin

                                                 7

Justice Margaret L. Workman

Justice Allen H. Loughry II





                               8
