Robert M. Bastress
Jeffery D. Taylor
Morgantown, West Virginia Jeffery W. Lilly
Attorney for the Appellant Rose Padden & Petty, L.C.
Fairmont, West Virginia
Attorneys for the Appellees
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
2. '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).'
Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
Syllabus point 2, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
3. The circuit court's function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter, but is to determine whether there
is a genuine issue for trial. Syllabus point 3, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d
4. While our standard of review for summary judgment remains de novo,
a circuit court's order granting partial summary judgment must set out factual findings
sufficient to permit meaningful appellate review. Findings of fact, by necessity, include
those facts which the circuit court finds relevant, determinative of the issues and undisputed.
5. Summary 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. Syllabus point 4, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
In this appeal from an order granting partial summary judgment, Ms. Geraldine
Toth asks this Court to recognize a cause of action against a potential employer for failure
to hire allegedly based upon the applicant's history of suing a former employer for wrongful
discharge. After clarifying that partial summary judgment orders, like summary judgment
orders, must contain adequate findings and conclusions to permit meaningful review, we
conclude that we need not reach the issue of whether to recognize the cause of action
suggested by Ms. Toth. We need not reach the issue because, assuming arguendo we were
to recognize such a cause of action, Ms. Toth did not present sufficient evidence to resist
summary judgment in favor of the defendant on this claim.
In 1998, during the course of her litigation with Senior Monongalians, Ms.
Toth applied for the RSVP director position from which she had been fired, which was then
being administered by BOPARC. Ms. Toth, who was fifty-eight years old at the time, was
not hired for the position. Instead BOPARC hired Ms. Anne D'Allessandri, a twenty-five
year old woman whose credentials included a Certificate in Gerontology that was based upon
eighteen hours of college credit. In a subsequent letter, BOPARC defended its decision to
hire Ms. D'Allessandri over Ms. Toth based upon Ms. D'Allessandri's gerontology
certificate and her computer skills. In their scoring of Ms. Toth's interview, BOPARC
officials gave her a zero for fiscal experience and a two for computer experience. According
to Ms. Toth's resume, in 1998 when the hiring decision was made she possessed the
computer skills to use Dbase, WordPerfect, Quicken, the internet, and e-mail. She also had
twelve years experience owning and managing her family's business, The Neighborhood
After she was rejected for the RSVP director position, Ms. Toth filed the
lawsuit underlying this appeal against BOPARC alleging age discrimination and retaliation
for her lawsuit against Senior Monongalians. Ms. Toth argued that allowing employers to
refuse to hire job applicants because they had brought legal action against a previous
employer for wrongful discharge would have a chilling effect on those seeking to enforce
their legal rights.
Meanwhile, Ms. D'Allessandri quit after less than a year of employment.
(See footnote 2)
According to BOPARC, the vacancy created by Ms. D'Allessandri's departure was filled
with two women who had worked closely with her and were, thus, familiar with the RSVP
program. Mary DeMoss was promoted to RSVP Director and Karen Owens was named
RSVP Coordinator. Ms. Toth then filed a motion to amend her complaint to include a second
claim of failure to hire. Her motion was granted. In her amended complaint, Ms. Toth
alleged that BOPARC's failure to hire her for the RSVP director position arose from age
discrimination and as retaliation against her for exercising her constitutional rights as set
forth in Article III, §§ 16 and 17 of the West Virginia Constitution.
BOPARC filed a motion for summary judgment. Without explaining its
rationale, the circuit court denied the motion as to Ms. Toth's claim of age discrimination,
but granted summary judgment as to Ms. Toth's constitutional claims. A jury trial followed
on Ms. Toth's age discrimination claim, which resulted in a verdict in favor of BOPARC.
The circuit court's final judgment order was entered on September 24, 2002. Ms. Toth now
appeals the circuit court's award of partial summary judgment.
'[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). Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter. Finally, we note that, [t]he circuit court's function at the summary
judgment stage is not to weigh the evidence and determine the truth of the matter, but is to
determine whether there is a genuine issue for trial. Syl. pt. 3, Painter.
an order granting summary judgment cannot merely recite and rest exclusively upon a conclusion that, [n]o genuine issue of material fact is in dispute and therefore summary judgment is granted. For meaningful appellate review, more must be included in an order granting summary judgment. This Court's function as a reviewing court is to determine whether the stated reasons for the granting of summary judgment by the lower court are supported by the record. . . . In other words, the circuit court's order must provide clear notice to all parties and the reviewing court as to the rationale applied in granting or denying summary judgment.
Lilly, 199 W. Va. at 353-54, 484 S.E.2d at 236-37 (internal citations and footnote omitted).
The Lilly decision involved an order granting full summary judgment. Here, we are presented with an order granting only partial summary judgment. Nevertheless, the reasons justifying our holding in Lilly counsel the same result with respect to partial summary judgment orders. When this Court is asked to review a partial summary judgment order, either under Rule 54(b) of the West Virginia Rules of Civil Procedure, (See footnote 3) or on appeal at the conclusion of the entire case below, (See footnote 4) it is our function to determine whether the stated reasons for the granting of summary judgment by the lower court are supported by the record. Lilly 199 W. Va. at 353, 484 S.E.2d at 236. Thus, to facilitate a meaningful review by this Court, the circuit court must provide its rationale and findings of the material facts upon which it based its decision. An example of our need for such findings in connection with a partial summary judgment order may be found in our opinion in Adkins v. Meador, 201 W. Va. 148, 494 S.E.2d 915 (1997). After discussing the law relevant to the particular issue presented in that case, the Adkins Court explained that
[t]he circuit court's sole finding [in its partial summary judgment order] was entirely conclusory: the Court finds that Gary Adkins is an insured within the meaning of the insurance policy issued by Liberty Mutual Insurance Company to Champagne-Webber, Inc., the employer of Gary Adkins. We are unable to assess what facts the circuit court relied upon in reaching this conclusion, and what legal analysis was pursued to grant summary judgment to Mr. Adkins.
In their oral argument before the Court, the attorneys for both sides presented seemingly different interpretations of Mr. Adkins' situation.
201 W. Va. at 157, 494 S.E.2d at 924. Although the Adkins case was remanded for further development pursuant to our holding in Lilly, we have never expressly held that the Lilly ruling applies to partial summary judgment orders. For the reasons set out above, we now follow our rationale in Adkins and clarify our ruling in Lilly by expressly holding that, while our standard of review for summary judgment remains de novo, a circuit court's order granting partial summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.
In the case sub judice, the circuit courts order provides no findings of fact or rationale for its granting of summary judgment. The order simply stated:
The Defendants' Motion For Summary Judgment with respect to the plaintiff's public policy claim based upon the defendants' alleged failure to hire due to consideration of the plaintiff's previous litigation against her previous employer should be granted.
Accordingly, for the specific reasons stated on the record
at the conclusion of the hearing on this matter, the Court is of
the opinion to, and does, hereby ORDER the following:
. . . .
(2) the Defendants' Motion For Summary Judgment with respect to the plaintiff's public policy claim based upon the defendants' alleged failure to hire the plaintiff due to consideration of the plaintiff's previous litigation against her previous employer shall be, and is, hereby, GRANTED;
No transcript of the hearing on BOPARC's motion for summary judgment was included in the record submitted on appeal. This order does not comport with our holding today. Nevertheless, we are able to resolve the issue raised in this particular instance without a detailed order from the circuit court; therefore, we decline to remand this case so that the circuit court may provide meaningful findings of fact and conclusions of law. Lilly, 199 W. Va. at 354, 484 S.E.2d at 237. See, e.g., Ward v. Cliver, 212 W. Va. 653, 656, 575 S.E.2d 263, 266 (2002) (The order of the circuit court in the instant case does not meet [the Lilly] standard--there is simply a boilerplate reference to the statutory language. However, we conclude that no purpose would be served by a remand under the facts of the instant case.).
This Court has not recognized a cause of action for failure to hire based upon an applicant's history of filing a law suit against a former employer. As Ms. Toth correctly notes, however, this Court has ruled that government employees are protected from being fired in retaliation for filing a law suit to collect overtime wages. In Syllabus point 2 of McClung v. Marion County Comm'n, we held that
It is in contravention of substantial public policies for an employer to discharge an employee in retaliation for the employee's exercising his or her state constitutional rights to petition for redress of grievances (W. Va. Const. Art. III, § 16) and to seek access to the courts of this State (W. Va. Const. Art. III, § 17) by filing an action, pursuant to W. Va. Code, 21-5C-8 , for overtime wages.
178 W. Va. 444, 360 S.E.2d 221 (1987) (emphasis added). (See footnote 8)
In the context of retaliation taking the form of a failure to hire, the United
States Supreme Court has recognized a cause of action for failure to hire that was based on
an applicant's exercise of First Amendment rights, but that case involved free speech and
associational rights. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111
L. Ed. 2d 52 (1990). In Rutan, the Governor of Illinois instituted a hiring procedure that
based employment decisions on political patronage. One of the five plaintiffs in Rutan
claimed that he ha[d] been repeatedly denied state employment as a prison guard because
he did not have the support of Republican Party officials. Rutan at 67, 110 S. Ct. at 2733,
111 L. Ed. 2d 52. The Rutan Court concluded that conditioning hiring decisions on political
belief and association plainly constitutes an unconstitutional condition, unless the
government has a vital interest in doing so. Id at 78, 110 S. Ct. at 2739, 111 L. Ed. 2d 52.
While there is authority for recognizing a cause of action for a failure to hire
on constitutional grounds arising from First Amendment associational rights, Ms. Toth has
cited no authority extending this cause of action to encompass a failure to hire claim arising
from state or federal guarantees of free access to the courts and the right to petition the
government for redress of grievances. We have found no such authority in our own
independent research. However, we need not decide whether to forge this new ground in
order to resolve the present appeal, since even if we did recognize the cause of action
proposed by Ms. Toth, her proof would be insufficient to overcome summary judgment. See,
e.g., State v. Simmons, 172 W. Va. 590, 309 S.E.2d 89 (1983).
Assuming that a claim of failure to hire as proposed by Ms. Toth existed, such a claim would necessarily require a showing that the exercise of [the applicant's] constitutional right(s) was a substantial or a motivating factor for the adverse hiring decision. Syl. pt. 3, McClung v. Marion County Comm'n, 178 W. Va. 444, 360 S.E.2d 221. In order to show that Ms. Toth's lawsuit against Senior Monongalians was a substantial or motivating factor for BOPARC's decision not to hire her, Ms. Toth would be required to provide some evidence that BOPARC had knowledge of the lawsuit. Here, the only evidence presented by Ms. Toth in her effort to show that BOPARC had knowledge of her lawsuit against Senior Monongalians was the fact that the lawsuit had been the subject of media attention. We have previously explained that the party opposing summary judgment must satisfy the burden of proof by offering more than a mere 'scintilla of evidence,' and must produce evidence sufficient for a reasonable jury to find in a nonmoving party's favor. Painter, 192 W. Va. at 192-93, 451 S.E.2d at 758-59 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986). Moreover,
[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.
Evidence merely showing that Ms. Toth's lawsuit had received media attention
is simply not adequate to satisfy her burden of offering more than a mere 'scintilla of
evidence' that BOPARC had knowledge of the suit. Painter, 192 W. Va. at 192, 451 S.E.2d
755, 758 (citation omitted). Thus, we find that the circuit court did not err in granting partial
summary judgement to BOPARC.