Judge refuses to dismiss DHHR whistleblower lawsuit
CHARLESTON, W.Va. -- Kanawha Circuit Judge James Stucky has rejected a motion by the state Department of Health and Human Resources to dismiss a whistleblower lawsuit filed by two department attorneys, noting that both had provided sufficient evidence to support their claims.
"Given due credence to the allegations in the complaints, most of which are not in dispute, the plaintiffs have stated sufficient fact, accepted as true, to state claims for relief," Stucky stated Wednesday in denying the motion to dismiss.
Susan Perry and Jennifer Taylor filed the suits in October, contending they had been subject to illegal reprisals, public humiliation, and damage to their professional reputations for attempting to perform their duties by raising concerns over the awarding of a multi-million dollar advertising contract.
Perry and Taylor, along with DHHR communications director John Law, were placed on administrative reassignment July 16, 2012, shortly after raising issues with possible improprieties in the bidding process for the ad contract, and were initially required to work from home. Law and Taylor were subsequently fired, and Perry remains reassigned to duties reviewing Medicaid claims forms.
In his order, Stucky said that whether the actions of DHHR acting secretary Rocco Fucillo and others "were undertaken in bad faith, with malice, and with intent to retaliate and engage in reprisal against Perry and Taylor for their actions as whistle-blowers are questions of fact for a jury."
Stucky also went on to state, "Likewise, whether a reasonable person would suffer damages, including lost wages, embarrassment and humiliation as a result of the job termination and/or reassignment to their homes and later small cubicles, bereft of even a telephone, is also a question of fact for the jury."
Walt Auvil, the attorney representing Perry and Taylor, said Thursday that Stucky's ruling merely clarifies that his clients have a valid case.
"On its face, it states we have a case or claim that can proceed," Auvil said.
However, Auvil said he finds it interesting that since the suit was filed, Taylor has been fired, along with Law, who is not a party to the suit.
One of the DHHR's grounds for dismissing the whistleblower suit was that there was no evidence of retaliation against the employees, since at that time, all three had retained their jobs, with no reductions in job titles or salaries.
"They did have a somewhat plausible legal defense in the case...which they managed to take away from themselves by firing Ms. Taylor," Auvil said.
Reach Phil Kabler at email@example.com or 304-348-1220.