                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



Julie Broschart,                                                                 FILED
Plaintiff Below, Petitioner                                                      May 24, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 11-1569 (Randolph County 11-C-38)                                     OF WEST VIRGINIA


West Virginia Dept. of Health & Human Resources,
Defendant Below, Respondent


                                 MEMORANDUM DECISION

       Petitioner Julie Broschart’s appeal, by counsel Erika Klie Kolenich, arises from the Circuit
Court of Randolph County’s order, entered October 19, 2011, granting respondent’s motion to
dismiss. The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Molly Underwood Poe, filed a response in support of the circuit court’s order.

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

        On August 25, 2010, petitioner was terminated from her position as a child services
worker with respondent, where she had worked since April 1, 2010, because petitioner permitted
a minor under her care to use petitioner’s cellular telephone to contact an adult in another state
with photographs and conversation of a sexual nature. On March 28, 2011, petitioner filed her
complaint in the instant action, alleging damages for the tort of outrage, constructive discharge,
violations of the employee handbook or manual, and a whistleblower claim. Petitioner alleged
that she was terminated as punishment for previously informing her superiors of other employees
not following internal procedures. Each of the causes of action relate to her termination based on
her alleged reports of wrongdoing within the organization.

        On May 31, 2011, respondent moved to dismiss the case as being barred by West Virginia
Code § 6C-1-4(a), which requires a whistleblower action be brought within 180 days of the
underlying claim, and that the latest petitioner could have brought the suit was March 24, 2011.
Petitioner responded to respondent’s motion to dismiss that the existence of material facts to be
proven necessitates a jury making findings of fact. Respondent replied that each of the actions
was based on the same factual and legal basis, namely that petitioner was being punished for
whistleblowing activities, and that therefore the action was a whistleblowing action subject to the
180-day statute of limitations found in West Virginia Code § 6C-1-4(a).

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        On appeal, petitioner argues that a whistleblower law is not an exclusive remedy, but is
intended to give an additional remedy under law for whistleblowers. Respondent argues that
petitioner reads the circuit court’s holding too broadly, and that West Virginia Code § 6C-1-1, et
seq., provides an exclusive remedy only when employees are wrongfully discharged for engaging
in whistleblowing activities, not for all wrongful discharges. Petitioner further argues that the
circuit court erred in its application of the discovery rule because a question of fact exists as to
when petitioner’s constructive discharge occurred, as well as applying the 180 day statute of
limitation to the tort of outrage, constructive discharge, and violations of employee manuals
claims. Respondent argues that the 180 day statute of limitation applies due to the underlying
factual basis and that petitioner is being disingenuous in arguing that her constructive discharge
could have occurred any time after her last day of employment. Petitioner further argues that the
court erred in relying on any documents other than her complaint when considering the motion to
dismiss. Respondent argues that the circuit court can consider “documents referred to in the
complaint and relied upon by plaintiffs in bringing their action.” Finally, respondent argues a
cross-assignment of error that the circuit court had no jurisdiction because petitioner had not
submitted grievances pursuant to West Virginia Code § 6C-2-1, et seq., which, respondent argues,
requires exhausting an administrative remedy when the administrative authority is given
regulatory authority. Petitioner replies that exhaustion is not a jurisdictional doctrine but a matter
of comity at the discretion of the trial court, that this Court, in Collins v. Elkay Mining Co., 179
W. Va. 549, 371 S.E.2d 46 (1988), permitted a common law claim even when the plaintiff had not
exhausted administrative remedies, and that the remedies under the grievance procedures are
inadequate to remedy the damages alleged.

        The Court has carefully considered the merits of each of petitioner’s arguments as set
forth in his petition for appeal. This Court has previously held that we consider a circuit court’s
order granting a motion to dismiss under a de novo standard of review. Syl. Pt. 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Petitioner
has not shown that the factual findings here were anything other than a whistleblower action,
therefore the 180-day statute of limitations applies. Finding no error in the circuit court order
dismissing petitioner’s claims, we affirm.

                                                                                           Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

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



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