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No. 20-0600 – State ex rel. Grant County Commission v. Judge Nelson, et al.

WOOTON, J., concurring:

I concur in the majority’s conclusion that neither the statutory whistleblower, 

Human Rights Act, nor Patient Care Act claims lie against the Grant County Commission 

(“Commission”) because it is plainly neither her “employer” nor a “health care entity” as 

those terms are defined within the respective statutory schemes. I further concur in its 

conclusion that Ms. Linville has failed to allege a viable vicarious liability claim and that 

her intentional infliction of emotional distress claim is barred by the statutory immunity

provided under West Virginia Code § 29-12A-4(b)(1) (the “Tort Claims Act”). 

I write separately, however, to respectfully address the concurrence/dissent’s 

insistence that the majority has improvidently failed to construe the complaint in the light 

most favorable to Ms. Linville and in so doing disposes of otherwise valid claims. To the 

contrary, the majority has addressed Ms. Linville’s claims as she has framed and advocated 

for them, concluding only that the claims she asserted provide her no relief as against one 

specific defendant. The Court remains mindful that it “takes the pleadings and record as it 

finds them and the adversarial process makes it incumbent on the parties to . . . maintain 

viability of their case. Courts cannot concoct or resurrect arguments neither made nor 

advanced by the parties.” Syl. Pt. 13, W. Virginia Reg’l Jail & Corr. Facility Auth. v. A.

B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

FILED

March 23, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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The concurrence/dissent appears to take issue with 1) the lack of factual 

development at the Rule 12(b)(6) stage; 2) the majority’s refusal to sua sponte raise and 

advocate for a theory not advanced by Ms. Linville regarding the Commission as “person” 

under the Human Rights Act1

; and 3) its refusal to sua sponte raise and advocate for a 

theory not even mentioned by Ms. Linville regarding the Commission as “person” under 

the Patient Safety Act, West Virginia Code § 16-38-1 through -7. 2 What the 

concurrence/dissent fails to address, however, is why the Commission would not ultimately 

be immune from liability pursuant to the Tort Claims Act regardless.

1 The concurrence/dissent’s view that “person” necessarily means anyone who does 

not otherwise qualify as one of the other designations under the Human Rights Act was 

expressly rejected by this Court in Kalany v. Campbell, 220 W. Va. 50, 57 n.13, 640 S.E.2d

113, 120 n.13 (2006): 

Appellant suggests that if the statutory definition of ‘person’ 

was intended to broadly encompass all individuals, then the 

Act's separate reference to acts of discrimination committed by 

‘any person, employer, . . .’ would have no meaning and 

thereby nullify all significance to the numerous terms that 

follow the word “person” in West Virginia Code § 5–11–9(7). 

We agree.

2 “Person” is not defined in the Patient Safety Act. “A term which is widely used 

and which is readily comprehensible to the average person without further definition or 

refinement need not have a defining instruction.” Syl. Pt. 2, State v. Bartlett, 177 W.Va. 

663, 355 S.E.2d 913 (1987). As such, in absence of a specific statutory definition, “person” 

is well-understood to be a human being, not a statutory entity like the Commission. See

Black’s Law Dictionary (11th ed. 2019) (Person: A human being. — Also termed natural 

person.”). More importantly, however, Ms. Linville simply did not allege or raise this 

argument at any time.
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It is well-understood that the immunity bestowed by the Tort Claims Act is 

inapplicable to employment claims. See W. Va. Code § 29-12A-18(b) (“Civil actions by 

an employee, or the collective bargaining representative of an employee, against his or her 

political subdivision relative to any matter that arises out of the employment relationship 

between the employee and the political subdivision[.]”). Notably, the definition of 

“employer” under the Human Rights Act specifically includes “political subdivision,” 

aligning the liability under the Act for political subdivision employers with the exemption 

from immunity under the Tort Claims Act. See W. Va. Code § 5-11-3(d).

However, having established that Ms. Linville has no employment 

relationship with the Commission, its immunity from liability for intentional acts is now 

triggered.3

 The Commission understandably did not raise the immunity bar in the motion 

below or on appeal because the position expressly taken by Ms. Linville was that the 

Commission was her “employer”—a well-known exemption from a political subdivision’s 

statutory immunity. The first time a theory of liability under the Human Rights Act has 

been advanced on Ms. Linville’s behalf which would give rise to an immunity defense is 

in the concurrence/dissent. Therefore, the Commission would have no reason to have 

asserted it previously.

3 Notably, the term “political subdivision” is not included in the definition of a 

“person” subject to liability under the Human Rights Act. See W. Va. Code § 5-11-3(a).
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Regardless, the concurrence/dissent specifically concurs in the majority’s 

conclusion that the Commission is statutorily immune from liability for claims of 

intentional acts. Without question, Ms. Linville’s claims of retaliation under the 

whistleblower law, Human Rights Act and Patient Safety Act are expressly pled as 

intentional, malicious acts. Ms. Linville’s complaint expressly alleges that the 

Commission’s actions under her whistleblower and Patient Safety Act claims were 

“discriminatory and/or retaliatory” and with respect to her Human Rights Act claim that its 

actions were “retaliatory” and were “carried out with actual malice toward [Ms. Linville].” 

Thus, even assuming the majority graciously attempted to temporarily salvage Ms. 

Linville’s claims against the Commission, the concurrence/dissent fails to explain why that 

would not ultimately be an exercise in futility due to the Commission’s immunity.

For these reasons, I respectfully concur in the majority opinion.