Diane Sigismondi Judy v. Eastern West Virginia Community and Technical College ( 2022 )

FILED
April 25, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 21-0004 – Diane Sigismondi Judy v. Eastern West Virginia Community and Technical
College
Chief Justice Hutchison, concurring:
I concur with the majority’s opinion and its assessment that qualified
immunity does not bar the plaintiff’s action in this case. Also, contrary to the separate
opinion of my partially dissenting colleague, I find no fault in the majority opinion’s
determination that the plaintiff’s pleading meets any “heightened pleading” standards that
exist. The “heightened pleading” standard simply ensures that the government agency or
agent is fully apprised of the allegations raised by the plaintiff. The standard is not a total
bar to suit, but rather an admonition that circuit courts should use their supervisory powers
to coax a plaintiff to file some paper or pleading that shows the plaintiff intends to offer
proof that can overcome a qualified immunity defense, if the government or agent has
chosen to assert that affirmative defense. The plaintiff met that burden and offered the
required proof.
I write separately because I believe that the plaintiff’s attorneys should have
made a much simpler argument to the circuit court: any qualified immunity defense was
waived by the State when it adopted the Human Rights Act (W. Va. Code §§ 5-11-1 to -
20). The plaintiff’s attorneys missed the mark entirely by buying in to, and trying to rebut,
the state college’s assertion of qualified immunity. Through passage of the Human Rights
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Act, the Legislature has waived any argument that the State and its subdivisions have any
immunity, qualified or otherwise, for violations of the Act.
I see the instant case as being analogous to the panoply of cases this Court
has issued holding that the State and its subdivisions have waived any immunity when a
government employee asserts a claim for unpaid wages under the Wage Payment and
Collection Act (W. Va. Code §§ 21-5-1 to -18). Pretty much every case we have issued
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since the mid-1980s has said no immunity applies to wage claims. See, e.g., McCarty v.
Harless, 181 W. Va. 719, 384 S.E.2d 164 (1989) (overtime pay for deputy sheriffs);
Gribben v. Kirk, 195 W. Va. 488, 466 S.E.2d 147 (1995) (unpaid overtime pay for State
Troopers); Ingram v. City of Princeton, 208 W. Va. 352, 540 S.E.2d 569 (2000) (unpaid
sick leave for a city police officer); Beichler v. W. Va. Univ. at Parkersburg, 226 W. Va.
321, 700 S.E.2d 532 (2010) (wages for a state university professor); Davari v. W. Va. Univ.
This Court has found the State and its subdivisions are not immune in
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numerous contexts. For instance, the State is not immune in actions seeking writs of
mandamus, prohibition, habeas corpus, declaratory judgments, or injunctive relief.
Gribben v. Kirk, 195 W. Va. 488, 493, 466 S.E.2d 147, 152 (1995). The State is not
immune from actions challenging the constitutionality of a statute. Coal & Coke Ry. Co.
v. Conley, 67 W. Va. 129, 67 S.E. 613 (1910). Cities, counties, and school boards are
“liable in damages in a civil action for injury, death, or loss to persons or property allegedly
caused by an act or omission of the political subdivision or of any of its employees” because
of the Legislature’s passage of the Governmental Tort Claims and Insurance Reform Act,
§ 29-12A-1. This Court has found that governmental corporations are not immune.
Tompkins v. Kanawha Bd., 19 W. Va. 257 (1881). And the State and its subdivisions are
not immune for damage to property or inverse condemnation. See, e.g., Hope Nat. Gas
Co. v. W. Va. Tpk. Comm’n, 143 W. Va. 913, 105 S.E.2d 630 (1958); W. Va. Lottery v. A-
1 Amusement, Inc., 240 W. Va. 89, 807 S.E.2d 760 (2017).
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Bd. of Governors, 245 W. Va. 95, 857 S.E.2d 435 (2021) (supplemental wages for
professor serving as a university research center director).
Our current qualified immunity jurisprudence says that “[a] public officer is
entitled to qualified immunity for discretionary acts, even if committed negligently.”
Maston v. Wagner, 236 W. Va. 488, 500, 781 S.E.2d 936, 948 (2015). However,
government employers cannot “exercise discretion” and withhold the wages of government
employees. Through passage of the Wage Payment and Collection Act, the Legislature
has said the State and its subdivisions must timely pay wages to employees and, hence,
cannot assert qualified immunity as a defense to the nonpayment of wages.
Moreover, “[i]t is always presumed that the legislature will not enact a
meaningless or useless statute.” Syl. pt. 4, State ex rel. Hardesty v. Aracoma - Chief Logan
No. 4523, Veterans of Foreign Wars of U.S., Inc., 147 W. Va. 645, 129 S.E.2d 921 (1963).
In the Human Rights Act, the Legislature declared that employers subject to the dictates of
the Act include “the state, or any political subdivision thereof[.]” W. Va. Code § 5-11-3(d)
(1998). It makes no sense to say that the Legislature passed a statute declaring the State
and its subdivisions can be liable for discretionary, discriminatory employment decisions,
but then allow the State to simultaneously claim it was entitled to qualified immunity for
exercising that discretion. Applying qualified immunity to discriminatory actions by
public officers would render the Human Rights Act meaningless and useless. Accordingly,
it is clear that the Legislature tacitly waived any claim to qualified immunity.
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In sum, qualified immunity has no place in an action where a government
employer is sued for discrimination under the Human Rights Act.
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