IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term

No. 20-0311

ASAD DAVARI,

Plaintiff Below, Petitioner

v.

THE WEST VIRGINIA UNIVERSITY

BOARD OF GOVERNORS,

Defendant Below, Respondent

Appeal from the Circuit Court of Kanawha County

The Honorable Tera L. Salango, Judge

Civil Action Nos. 14-C-263 and 14-C-838

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED

Submitted: March 16, 2021

Filed: April 16, 2021

Robert H. Miller, II, Esq. Joseph U. Leonoro, Esq. 

The Sutter Law Firm PLLC Mark C. Dean, Esq.

Charleston, West Virginia Steptoe & Johnson PLLC

Counsel for Petitioner Charleston, West Virginia

Monté L. Williams, Esq.

Steptoe & Johnson PLLC

Morgantown, West Virginia

Counsel for Respondent

FILED

April 16, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE WALKER delivered the Opinion of the Court.
i

SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is reviewed de novo.” 

Syllabus Point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

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. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963). 

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 

755 (1994).

4. “The Board of Governors of West Virginia University is a State 

agency, and, as such, is an arm of the State and, under Article VI, Section 35 of the 

Constitution of West Virginia, is immune from suit to enforce payment of a claim against 

such board.” Syllabus Point 1, City of Morgantown v. Ducker, 153 W. Va. 121, 168 S.E.2d 

298 (1969).

5. “Suits which seek no recovery from state funds, but rather allege that 

recovery is sought under and up to the limits of the State’s liability insurance coverage, fall 
ii

outside the traditional constitutional bar to suits against the State.” Syllabus Point 2, 

Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983).

6. “‘Language in an insurance policy should be given its plain, ordinary 

meaning.’ Syl. pt. 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 

33 (1986), overruled on other grounds by National Mut. Ins. Co. v. McMahon & Sons, 177 

W. Va. 734, 356 S.E.2d 488 (1987).” Syllabus Point 5, Bland v. State, 230 W. Va. 263, 

737 S.E.2d 291 (2012).

7. “‘Where the provisions of an insurance policy contract are clear and 

unambiguous they are not subject to judicial construction or interpretation, but full effect 

will be given to the plain meaning intended.’ Syl., Keffer v. Prudential Ins. Co., 153 W.

Va. 813, 172 S.E.2d 714 (1970).” Syllabus Point 6, Bland v. State, 230 W. Va. 263, 737 

S.E.2d 291 (2012).

8. “The determination as to whether ‘wages,’ as defined in West Virginia 

Code § 21-5-1(c) (2013 Repl.Vol.), are payable pursuant to the requirements of West 

Virginia Code § 21-5-1 et seq. (2013 Repl.Vol.) is governed by the terms of the 

employment agreement, whether written or in the form of a consistently applied unwritten 

policy.” Syllabus Point 5, Adkins v. Am. Mine Rsch., Inc., 234 W. Va. 328, 765 S.E.2d 217 

(2014).
iii

9. “Article VI, § 35, of the Constitution of West Virginia, concerning 

this State’s sovereign immunity, does not bar the claim of a State employee for unpaid 

wages asserted under the West Virginia Wage Payment and Collection Act, W. Va. Code, 

21-5-1 (1987), et seq., whether the claim is initiated through the administrative remedies 

provided under the Wage Payment and Collection Act or initiated by filing a complaint for 

the unpaid wages directly in circuit court.” Syllabus Point 5, Beichler v. W. Va. Univ. at 

Parkersburg, 226 W. Va. 321, 700 S.E.2d 532 (2010).

10. “Generally, the existence of a contract is a question of fact for the 

jury.” Syllabus Point 4, Cook v. Heck’s Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986).
1

WALKER, Justice:

Petitioner Asad Davari, Ph.D., a professor of electrical engineering at West 

Virginia University Institute of Technology (WVUIT), alleges that WVUIT breached its 

agreement to pay him a supplementary salary for serving as director of a research center. 

He filed a common law claim for breach of contract, alternative equitable claims of 

quantum meruit and unjust enrichment, and a statutory cause of action under the West 

Virginia Wage Payment Collection Act (WPCA)1 against Respondent The West Virginia 

University Board of Governors (WVU BOG), which manages the educational operations 

of WVUIT.2

 Because WVU BOG is a State agency, it invoked the doctrine of sovereign 

immunity and moved for summary judgment. The Circuit Court of Kanawha County, West 

Virginia, granted summary judgment in favor of WVU BOG on all of Dr. Davari’s claims. 

He now appeals.

While sovereign immunity is facially absolute,

3 two narrow exceptions are 

implicated here. First, sovereign immunity does not bar a plaintiff from seeking to recover 

under the State’s liability insurance coverage—as Dr. Davari attempted to do through his 

contractual and quasi-contractual claims—but the policy must still cover those claims for 

1 See W. Va. Code §§ 21-5-1 through 18 (2019).

2 W. Va. Code §§ 18B-2A-1(b) and 4(a) (2016).

 

3 See W. Va. Const. art. VI, § 35 (“The State of West Virginia shall never be made 

defendant in any court of law or equity[.]”).
2

him to succeed.4

 We agree with the circuit court that WVU BOG’s policy does not cover 

Dr. Davari’s breach of contract claim or equitable claims of quantum meruit and unjust 

enrichment. So, we affirm that portion of the summary judgment order. Second, sovereign 

immunity does not bar the claim of a State employee, like Dr. Davari, who seeks unpaid 

wages under the WPCA.

5

 And contrary to the circuit court’s order, we find that genuine 

issues of disputed fact exist as to whether WVU BOG violated the WPCA. So, we reverse 

that portion of the summary judgment order and remand for further proceedings. 

I. FACTS AND PROCEDURAL HISTORY

Dr. Davari is a professor at WVUIT’s College of Engineering.6 In January 

2004, he was appointed Director of the Center for Research on Advanced Control of 

Autonomous Systems and Manufacturing (the Center) by Muthukrishnan Sathyamoorthy,

Ph.D., Dean of the College. The Center’s business plan states that it “will be a research 

unit within the College of Engineering and it will be mostly self-supporting with its own 

annual budget derived from contracts, private funds, foundation funds, external grants, 

research grants and contracts from federal and state agencies research grants and contracts 

4 Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 743, 310 S.E.2d 675 

(1983). 

5 Beichler v. W. Va. Univ. at Parkersburg, 226 W. Va. 321, 700 S.E.2d 532 (2010).

6 Dr. Davari joined the faculty of West Virginia Institute of Technology in 1985. 

West Virginia University (WVU) assumed stewardship of the school in 1996, and it 

became a fully integrated division of WVU in 2007. 
3

from industries[.]” In the January 5, 2004 appointment letter to Dr. Duvari, Dr. 

Sathyamoorthy stated, in part:

It gives me great pleasure to appoint you as the Founding 

Director of the [Center]. For your information, I have attached 

a copy of the Center proposal and the associated business plan 

approved by the WVU Tech’s Cabinet on December 2, 2003.

As the Director, you will be paid a supplemental salary based 

on research effort fully derived from external sources by the 

Center. The supplemental salary will be in addition to the 

summer salary and others received from external funding 

sources. The supplemental salary will be paid over the nine 

month academic year period.

The Center’s proposal and business plan referenced in the appointment letter 

has an “Administration and Oversight” section with a chart titled “Annual Budget for the 

Center.” This chart has a line item listing a $24,000 salary for the Center’s Director. There 

are handwritten notations on each page of the Center’s proposal and business plan stating 

it was “OK” and “approved 12/2/03[.]” This date is significant because WVUIT’s Cabinet 

met on December 2, 2003. The meeting minutes reflect that Dr. Sathyamoorthy gave a 

brief report on the Center, distributed handouts related to the Center, and the Cabinet 

discussed how the Center’s grants were to be processed.

7

 

7 WVUIT’s Cabinet had previously discussed the Center at its November 2003 

meeting. While it voted to approve the creation of the Center, it explicitly did not approve 

the “Administration and Oversight” section that contained the proposed salaries at this 

earlier meeting. 
4

Dr. Davari accepted the appointment as Director of the Center and served in 

that capacity for more than a decade. He performed this work at the Center while 

conducting his regular teaching and other duties as a professor at WVUIT’s College of 

Engineering. Under his leadership, the Center generated nearly $5.5 million for WVUIT 

in external grant funding. But Dr. Davari contends that he was never paid the supplemental 

salary for this work. 

Between 2006 and 2012, Dr. Davari received annual notices appointing him 

to the faculty at WVUIT and listing his total base salary as professor; he endorsed these 

notices. While the parties agree that Dr. Davari’s base salary was paid, in part, by external 

grants, his annual faculty appointment notices do not mention any supplemental salary. 

Dr. Davari first inquired about the payment of his supplemental salary for 

serving as Director of the Center to Drs. Sathyamoorthy and Janeksela by e-mail on 

November 2, 2004. On May 19, 2006, Dr. Davari e-mailed Dr. Sathyamoorthy again 

asking about the supplemental salary. Dr. Sathyamoorthy replied, by e-mail on May 31, 

2006, and confirmed that the additional salary should come from external research grants 

and contracts. He also stated that “[a]s a result of numerous unfortunate delays and 

mismanagement, the Center has not had the resources needed to pursue its activities as 

planned.” On June 5, 2006, Dr. Davari wrote to Dr. Sathyamoorthy again to confirm that 

he would be entitled to a supplemental salary for this work. 
5

Dr. Davari raised the issue of his supplemental salary more earnestly in 2012 

to Carolyn Long, Campus President of WVUIT, after he was not selected to serve as Dean 

following Dr. Sathyamoorthy’s departure. In an e-mail to Ms. Long on October 29, 2012, 

Dr. Davari stated that “I have not received any of the approved supplemental salary so far. 

Now that you are addressing the distribution of overhead funding, I am requesting that you 

address the too long overdue supplemental salary as well.” In 2013, Dr. Davari sent several 

additional e-mails to Dr. Long requesting his supplemental salary. 

After investigating the matter for more than a year, Ms. Long advised Dr. 

Davari by letter dated December 17, 2013, that he would not be paid any additional salary 

for serving as Director of the Center. First, she explained that Dr. Davari had already been 

compensated as he was one of the highest paid professors at WVUIT. Second, Ms. Long 

stated that there was no enforceable contract that entitled him to receive a $24,000 salary 

for this work. And third, she said she believed that Dr. Davari waived his right to object 

to his salary because he had signed and approved annual notices of appointment throughout 

the years that listed his total salary. 

After receiving Ms. Long’s letter, Dr. Davari e-mailed Dr. Sathyamoorthy, 

who was no longer employed at WVUIT, and asked him to confirm the arrangement of his 

supplemental salary for his work as Director of the Center. In his reply e-mail, Dr. 

Sathyamoorthy confirmed that Dr. Davari was to be paid a supplemental salary of $24,000 

from grant funds generated by the Center. 
6

In February 2014, Dr. Davari filed a complaint against WVU BOG alleging 

claims of breach of contract, quantum meruit, and unjust enrichment. Dr. Davari filed an 

amended complaint in October 2014, adding a WPCA claim. He alleged that the WVU

BOG wrongfully failed to pay him a $24,000 supplementary salary every year from 2004 

through the present.8 

In September 2019, WVU BOG filed a motion for summary judgment

contending that Dr. Davari’s claims for breach of contract, unjust enrichment, and quantum 

meruit were barred by the doctrine of sovereign immunity. WVU BOG also argued that 

even if Dr. Davari could state claims of unjust enrichment and quantum meruit despite the 

State’s sovereign immunity, the doctrine of laches would bar those claims as a matter of 

law. It further asserted that Dr. Davari had no claim under the WPCA because he could 

not show that any terms of his employment agreement entitled him to $24,000 in annual 

supplemental compensation over and above his regular salary. 

Dr. Davari countered that sovereign immunity does not bar his claims 

because 1) the applicable insurance policy is ambiguous and the matter should proceed to 

8 Dr. Davari filed a second complaint against WVU BOG alleging that WVUIT did 

not appoint him Dean because of his national origin and in retaliation for a complaint he 

filed against the former West Virginia Institute of Technology, in violation of the West 

Virginia Human Rights Act. See W. Va. Code §§ 5-11-1 to -20 (2016) (WVHRA). In 

April 2015, the circuit court consolidated that case, Civil Action No. 14-C-838, with this 

case. But, Dr. Davari voluntarily withdrew his WVHRA claim and that matter was 

dismissed. So, this appeal involves only the claims Dr. Davari asserted in Civil Action No. 

14-C-263. 
7

trial if the State’s liability insurance policy potentially provides coverage, and 2) sovereign 

immunity is not implicated in the context of a WPCA claim where a State employee seeks

to recover unpaid wages. And Dr. Davari argued that the doctrine of laches was not 

applicable because he asserted his rights by making numerous inquiries about the 

supplemental salary. Finally, Dr. Davari stated that WVU BOG was not entitled to 

summary judgment because genuine issues of material fact exist that only a jury can decide.

The circuit court held a hearing on WVU BOG’s motion for summary 

judgment in October 2019 and addressed the motion again at a pre-trial conference in 

February 2020. In its March 2, 2020 order, the circuit court granted summary judgment in 

favor of WVU BOG and dismissed the complaint. The circuit court found that WVU BOG 

was entitled to sovereign immunity as to Dr. Davari’s claims for breach of contract, 

quantum meruit, and unjust enrichment; it held that those claims were excluded from 

insurance coverage under the State’s policy which provides that “[t]his insurance does not 

apply to: . . . any claim(s) made against the “insured” for damages attributable to wages, 

salaries and benefits.” The court noted that the policy also excluded coverage for “any 

claim(s) based upon or attributable to any allegations or claims that the “insured” breached 

the terms of any type or any form of contract, either express or implied, written or oral.” 

The court observed that even if sovereign immunity did not bar Dr. Davari’s equitable 

claims of quantum meruit and unjust enrichment, those claims would be barred by the 

doctrine of laches. It reasoned that Dr. Davari offered no explanation for why he did not 
8

inquire about this alleged supplemental salary between 2006 and 2012, so it granted 

summary judgment on that alternative ground. 

With regard to Dr. Davari’s WPCA claim, the circuit court found that WVU

BOG was entitled to summary judgment “because no genuine issue of material fact exists

regarding whether [Dr. Davari] has a valid, enforceable contract with WVU BOG 

guaranteeing him a supplemental salary of $24,000 per year, [and] there is likewise no 

genuine issue of material fact regarding whether WVU BOG violated the WPCA by not 

paying [Dr. Davari] the $24,000 per year he seeks.” 

Dr. Davari appeals the circuit court’s order granting summary judgment to 

WVU BOG and dismissing his complaint with prejudice. 

II. STANDARD OF REVIEW

As we held in syllabus point one of Painter v. Peavy,

9 “[a] circuit court’s 

entry of summary judgment is reviewed de novo.” 

Under Rule 56 of the West Virginia Rules of Civil Procedure, summary 

judgment is “designed to effect a prompt disposition of controversies on their merits 

without resort to a lengthy trial, if in essence there is no real dispute as to salient facts or if 

9 192 W. Va. 189, 451 S.E.2d 755 (1994).
9

only a question of law is involved.”10 We are mindful that “[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.”11 This Court and the court below “must draw any permissible inference from the 

underlying facts in the light most favorable to the party opposing the motion [for summary 

judgment].”12 With these guiding principles, we consider the parties’ arguments.

III. ANALYSIS

Dr. Davari raises eight assignments of error in his challenge to the circuit 

court’s summary judgment ruling in favor of WVU BOG. In three of his assignments of 

error, Dr. Davari argues that a jury could find that an employment agreement required him 

to be paid a supplemental salary of $24,000 for serving as Director of the Center, he did 

not receive this compensation, and he did not waive this right. In two other assignments

of error Dr. Davari contends that the circuit court erred by granting the motion for summary 

judgment on a theory of sovereign immunity because he is entitled to bring an action for 

relief under the WPCA, and inconsistent provisions in the State’s insurance policy create 

the potential for coverage. Dr. Davari also complains in two assignments of error that if 

10 Hanks v. Beckley Newspapers Corp., 153 W. Va. 834, 836-37, 172 S.E.2d 816-

17 (1970). 

11 Syl. Pt. 3, Aetna Casualty & Surety Co. v. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 

133 S.E.2d 770 (1963). 

12 Painter, 192 at 192, 451 S.E.2d at 758.
10

sovereign immunity does not apply, the doctrine of laches does not bar his alternative 

claims based on quantum meruit and unjust enrichment, and even if it could, that is a factual 

question for a jury. And in his final assignment of error, Dr. Davari contends that the 

circuit court made several erroneous findings of fact and conclusions of law, and 

improperly resolved disputed facts. We consolidate his assignments of error into three 

categories for purposes of our discussion. 

A. Sovereign Immunity Bars the Breach of Contract Claim and Equitable Claims 

Several principles of law guide our resolution of sovereign immunity, the 

first issue in this appeal. “[T]he policy which underlies sovereign immunity is to prevent 

the diversion of State monies from legislatively appropriated purposes.” 13 So, where 

monetary relief is sought against the State treasury for which a proper legislative 

appropriation has not been made, sovereign immunity raises a bar to suit.14 In syllabus 

point one of City of Morgantown v. Ducker,

15 this Court recognized that: “The Board of 

Governors of West Virginia University is a State agency, and, as such, is an arm of the 

State and, under Article VI, Section 35 of the Constitution of West Virginia, is immune 

from suit to enforce payment of a claim against such board.” 

13 Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 296, 359 S.E.2d 124, 129 (1987)

(citations and footnote omitted). 

14 Id. 

15 153 W. Va. 121, 168 S.E.2d 298 (1969).
11

While the State and its agencies are entitled to the benefit of sovereign 

immunity, this Court carved a narrow exception in Pittsburgh Elevator Co. v. West Virginia 

Board of Regents,

16 where a plaintiff merely seeks to recover under the State’s liability 

insurance coverage. In syllabus point two of Pittsburgh Elevator, we held that “[s]uits 

which seek no recovery from state funds, but rather allege that recovery is sought under 

and up to the limits of the State’s liability insurance coverage, fall outside the traditional 

constitutional bar to suits against the State.”17

Dr. Davari argues that the circuit court erred in granting summary judgment 

to WVU BOG on the basis of sovereign immunity because he is seeking a recovery only 

from the State’s insurance policy. He maintains that the insurance policy is ambiguous and 

may provide coverage for his breach of contract and equitable claims of quantum meruit 

and unjust enrichment. WVU BOG disagrees and states that Dr. Davari’s claims are 

specifically excluded under the plain terms of the insurance policy. 

This Court has held that “[l]anguage in an insurance policy should be given 

its plain, ordinary meaning.”18 And “[w]here the provisions of an insurance policy contract 

16 172 W. Va. 743, 310 S.E.2d 675 (1983).

17 Id.

18 Syl. Pt. 5, Bland v. State, 230 W. Va. 263, 737 S.E.2d 291 (2012) (quoting Syl. 

pt. 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), 

(continued . . .)
12

are clear and unambiguous they are not subject to judicial construction or interpretation, 

but full effect will be given to the plain meaning intended.”19

Dr. Davari’s claim for breach of contract and his equitable claims of quantum 

meruit and unjust enrichment are all based on WVU BOG’s alleged failure to pay him a 

supplemental salary for serving as Director of the Center. But claims to recover wages 

owed under an employment contract are explicitly excluded by two separate provisions in 

the State’s insurance policy. The policy provides that:

This insurance does not apply to:

. . . . 

H. To any claim(s) made against the “insured” for damages 

attributable to wages, salaries and benefits.

I. To any claim(s) based upon or attributable to any allegations 

or claims that the “insured” breached the terms of any type or 

any form of contract, either express or implied, written or oral.

Because Dr. Davari’s breach of contract and related equitable claims are explicitly 

excluded by the insurance policy, he does not meet Pittsburgh Elevator’s narrow 

exception. 

overruled on other grounds by National Mut. Ins. Co. v. McMahon & Sons, 177 W. Va. 

734, 356 S.E.2d 488 (1987)).

19 Id. at Syl. Pt. 6 (quoting Syl. Pt., Keffer v. Prudential Ins. Co., 153 W. Va. 813, 

172 S.E.2d 714 (1970)).
13

We reject Dr. Davari’s argument that his claim for supplemental wages under 

his employment contract could potentially be covered by the Comprehensive General 

Liability Coverage (CGL) section of the State’s liability insurance coverage dealing with 

“Incidental Contracts.” We examined this policy provision in Arnold Agency v. West 

Virginia Lottery Commission,

20 and found “the CGL section extends only to claims of 

bodily injury and property damage.”21 And like the plaintiff in Arnold Agency, Dr. Davari 

has never alleged such damages. So, under the clear language of the CGL section of the 

State’s liability insurance policy, there is no coverage for Dr. Davari’s breach of contract 

claim or alternative equitable theories of quantum meruit or unjust enrichment, and he does 

not meet Pittsburgh Elevator’s exception to sovereign immunity. 

For these reasons, WVU BOG is entitled to the benefit of sovereign 

immunity on Dr. Davari’s claim for breach of contract, and his equitable claims of quantum 

meruit and unjust enrichment. The circuit court did not err in granting WVU BOG’s 

motion for summary judgment on these claims.22

20 206 W. Va. 583, 526 S.E.2d 814 (1999).

21 Id. at 594, 526 S.E.2d at 826. 

22 Because of the way that we resolve this issue, it is unnecessary to address Dr. 

Davari’s argument that the court misapplied the doctrine of laches to bar his alternative 

theories of unjust enrichment and quantum meruit.
14

B. Sovereign Immunity Does Not Bar the WPCA Claim

We next address Dr. Davari’s claim under the WPCA. West Virginia Code 

§ 21-5-3(a) provides that:

Every person, firm or corporation doing business in this state, 

except railroad companies as provided in section one of this 

article, shall settle with its employees at least twice every 

month and with no more than 19 days between settlements, 

unless otherwise provided by special agreement, and pay them 

the wages due, less authorized deductions and authorized wage 

assignments, for their work or services.

This Court has held that “[t]he West Virginia Wage Payment and Collection Act is 

remedial legislation designed to protect [all] working people and assist them in the 

collection of compensation wrongly withheld.”23 When determining an employee’s right 

to wages, courts examine the terms of the applicable employment contract: 

The determination as to whether “wages,” as defined in 

West Virginia Code § 21-5-1(c) (2013 Repl.Vol.), are payable 

pursuant to the requirements of West Virginia Code § 21-5-1 

et seq. (2013 Repl.Vol.) is governed by the terms of the 

employment agreement, whether written or in the form of a 

consistently applied unwritten policy.24

23 Mullins v. Venable, 171 W. Va. 92, 94, 297 S.E.2d 866, 869 (1982) (citation 

omitted). 

24 Syl. Pt. 5, Adkins v. Am. Mine Rsch., Inc., 234 W. Va. 328, 765 S.E.2d 217 (2014).
15

Under circumstances almost identical in relevant respects to Dr. Davari’s 

claim, this Court held in Beichler v. West Virginia University at Parkersburg,

25 that the 

State’s sovereign immunity does not bar the claim of a State employee for unpaid wages 

under the WPCA. In Beichler, the plaintiff taught physics for WVU; he entered into a 

discretionary contract, which entitled him to extra compensation for work he performed 

beyond his regular teaching duties. Dr. Beichler filed suit asserting claims under the 

WPCA, but the circuit court dismissed his complaint, in part, based on sovereign immunity. 

On appeal, this Court reversed and stated that “‘the sovereign immunity doctrine is not 

implicated in the context of employee relations where the State, acting through its agents, 

as an employer, has unlawfully withheld all or a part of an employee’s salary[.]’”26 We 

held in syllabus point five of Beichler that:

Article VI, § 35, of the Constitution of West Virginia, 

concerning this State’s sovereign immunity, does not bar the 

claim of a State employee for unpaid wages asserted under the 

West Virginia Wage Payment and Collection Act, W. Va.

Code, 21-5-1 (1987), et seq., whether the claim is initiated 

through the administrative remedies provided under the Wage 

Payment and Collection Act or initiated by filing a complaint 

for the unpaid wages directly in circuit court.27

25 226 W. Va. 321, 700 S.E.2d 532 (2010).

26 Beichler, 226 W. Va. at 325, 700 S.E.2d at 536 (quoting Gribben v. Kirk, 195 W.

Va. 488, 495, 466 S.E.2d 147, 154 (1995)). 

27 Id. at 322, 700 S.E.2d at 533, syl. pt. 5. 
16

Dr. Davari argues that like the plaintiff in Beichler, he entered into a contract 

to perform work over and above his regular duties as a professor (as reflected in his 

appointment letter with attachment). Because Dr. Davari contends that he was not paid for 

those services, he claims that he is entitled to seek damages under the WPCA.28 WVU 

BOG responds that Dr. Davari cannot use the WPCA to create a “back door” into a clearly 

barred contractual claim. It contends that Dr. Davari’s WPCA claim “rises and falls” with 

his breach of contract claim so closely that Dr. Davari cannot evade sovereign immunity 

by “bootstrapping” his substantive claims to the WPCA. WVU BOG relies on Grim v. 

Eastern Electric, LLC,

29 where this Court observed, “the WPCA does not create a right to 

compensation; rather it merely provides a statutory vehicle for employees to recover 

agreed-upon, earned wages from an employer.”30 From there, WVU BOG attempts to 

describe Dr. Davari’s WPCA claim as a “derivative claim.” But this characterization is 

inaccurate. Derivative claims derive by operation of law from the main claim. For 

example, where one spouse is injured the other spouse may have a claim for loss of 

28 See W. Va. Code § 21-5-6, in part (“If any person, firm or corporation shall refuse 

for the period of five days to settle with and pay any of its employees at the intervals of 

time as provided in section three [§ 21-5-3] of this article, . . . and suit be brought for the 

amount overdue and unpaid, judgment for the amount of such claim proven to be due and 

unpaid, with legal interest thereon until paid, shall be rendered in favor of the plaintiff in 

such action[.]”). 

29 234 W. Va. 557, 767 S.E.2d 267 (2014). 

30 Id., at 572, 767 S.E.2d at 282. 
17

consortium flowing from that injury. The loss of consortium claim is a derivative claim31

that cannot be maintained independent of the underlying personal injury claim. 32 In 

contrast, Dr. Davari’s WPCA claim is his independent statutory cause of action wholly 

distinct from his common law breach of contract claim. 

This Court rejects the suggestion that an employee is foreclosed from relying 

on the WPCA simply because an employer disputes the terms or existence of an 

employment contract giving rise to the claim for wages due. That position is untenable 

considering the policy and purpose of the WPCA. Indeed, employers commonly raise this 

type of defense in a WPCA action.33 For instance, in Britner v. Medical Security Card, 

Inc.,

34 three employees were hired by the employer in 1990 under a contract that entitled 

them to an annual fifteen percent raise. But the employer never paid the employees their 

31 See State ex rel. Small v. Clawges, 231 W. Va. 301, 310, 745 S.E.2d 192, 201 

(2013) (“It is generally recognized that in a procedural context, the derivative claim for 

loss of consortium is a mere incident to a cause of action and not the subject of an action 

itself.”) (citations omitted). 

32 Southern Env’t, Inc. v. Bell, __ W. Va. __, 854 S.E.2d 285, 293 (2020).

33 See e.g., Adkins v. Am. Mine Rsch., Inc., 234 W. Va. 328, 765 S.E.2d 217 (2014)

(plaintiff brought WPCA suit seeking unpaid commissions, and former employer denied 

that he was owed any additional commission upon his resignation; recognizing the parties 

disagreed as to how commissions were calculated, this Court held that the circuit court 

improperly determined there was no genuine issue of fact when it granted summary 

judgment for employer).

34 200 W. Va. 352, 489 S.E.2d 734 (1997).
18

raises. 35 In 1995, they voluntarily ended their employment and sued the employer to 

recover their unpaid annual raises. The employer argued that it did not owe them the wages 

because the employment contracts had been modified by the employees’ agreement to 

defer the raises until the busines was profitable. So, the employer also argued that the 

employees’ WPCA suit was barred by the doctrine of estoppel.36 The circuit court rejected 

these argument and granted summary judgment to the employees. On appeal, this Court 

affirmed the ruling based upon the clear language of West Virginia Code § 21-5-10.37

After concluding that the unpaid raises were “wages,” we reasoned that

estoppel is not a defense which can be successfully asserted to 

bar an action pursuant to W. Va. Code § 21-5-10 (1996).

. . . .

The legislature has attempted to prevent employers from 

abusing their positions by compromising the wages of 

employees. The language in W. Va. Code § 21-5-10 is 

mandatory. An employer must pay earned wages to its 

employees. Any other reading would seriously compromise 

and undermine the legislative intent of W. Va. Code § 21-5-10. 

Therefore, we affirm the circuit court’s summary judgment 

ruling.38

35 Id. at 353, 489 S.E.2d at 735. 

36 Id. at 354, 489 S.E.2d at 736.

37 See W. Va. Code § 21-5-10 (“Except as provided in section thirteen, no provision 

of this article may in any way be contravened or set aside by private agreement, and the 

acceptance by an employee of a partial payment of wages shall not constitute a release as 

to the balance of his claim and any release required as a condition of such payment shall 

be null and void.”).

38 Britner, 200 W. Va. at 354-55, 489 S.E.2d at 736-37.
19

By finding that the doctrine of estoppel could not be utilized to bar the plaintiffs’ action 

under the WPCA, this Court necessarily found that a WPCA claim can be brought even if 

the employer disputed the terms of the applicable employment contract.

In Citynet, LLC v. Toney,

39 the employer denied that its “Employee Incentive 

Plan” constituted a contract that entitled the employees to payment of their vested balance 

in the plan when leaving the company, sufficient to support a WPCA claim. Mr. Toney 

quit his employment and requested to redeem his vested balance in the plan of about 

$87,000. Citynet refused and Mr. Toney brought a WPCA claim, among other claims.40 

The circuit court granted partial summary judgment to Mr. Toney and concluded that 

Citynet’s failure to timely pay Mr. Toney his vested balance violated the WPCA.41 This 

Court affirmed, reasoning that the plan was a unilateral contract entitling the employee to 

redeem his balance in the plan.42 We stated that “Citynet employees who remain employed 

with the company long enough to participate in the Plan and become vested in the benefits 

39 235 W. Va. 79, 772 S.E.2d 36 (2015).

40 Id. at 84, 772 S.E.2d at 40.

41 Id. 

42 Id. 

 
20

offered, when they are under no obligation to do so, have provided sufficient consideration 

for the formation of a unilateral contract.”43 

For all of these reasons, we find that sovereign immunity does not bar Dr. 

Davari’s WPCA claim. Next, we take up whether a reasonable fact-finder viewing the 

summary judgment record in the light most favorable to Dr. Davari could find that WVU 

BOG violated the provisions of the WPCA. 

C. Disputed Issues of Fact Exist Concerning WPCA Claim

Finally, we address whether Dr. Davari has presented sufficient evidence to 

show that questions of material fact exist on his WPCA claim, namely: 1) whether an 

employment agreement was created when he accepted the appointment of Director of the 

Center that entitled him to receive a supplementary salary of $24,000 beginning in 2004, 

and 2) whether he is owed these wages. To begin, we note that “[g]enerally, the existence 

of a contract is a question of fact for the jury.”44

Dr. Davari argues that WVU BOG is not entitled to summary judgment 

because disputed evidence exists that could lead a jury to find in his favor on the creation 

of a contract. He relies on the January 5, 2004, appointment letter from Dr. Sathyamoorthy 

43 Id. at 86, 772 S.E.2d at 43.

44 Syl. Pt. 4, Cook v. Heck’s Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986).
21

that referenced the Center’s proposal and business plan that was “approved by the WVU 

Tech’s Cabinet on December 2, 2003.” This attachment has a chart listing the salary for 

the Center’s Director at $24,000. WVU BOG responds that summary judgment was 

appropriate because there was never a meeting of the minds as to any specific compensation 

for the Director’s position. WVU BOG contends that WVUIT’s Cabinet specifically 

rejected the Center’s salary proposals at its November 2003 Cabinet meeting and that the 

December 2003 meeting minutes do not reflect that those salaries were approved. But, Dr. 

Davari replies that Dr. Sathyamoorthy confirmed the agreement that he was to be paid 

$24,000 a year for serving as the Center’s Director in his 2013 e-mail. As this debate 

demonstrates, factual issues clearly exist which preclude summary judgment. 

Dr. Davari also contends that he presented evidence that he was never paid 

this supplemental salary and that he made several inquiries and complaints about this over 

the years. WVU BOG responds that Dr. Davari was one of the highest paid faculty 

members at WVUIT and part of his salary was paid from external grant funds. WVU BOG 

also states that Dr. Davari continued to endorse his annual notices appointing him to faculty 

at WVUIT between 2006 and 2012, and those notices stated his total salary. WVU BOG 

argues that even if Dr. Davari was entitled to receive a supplemental salary for his work as 

Director of the Center, he waived that right by endorsing his annual notices of appointment. 

But that is not a valid defense to a WPCA claim. West Virginia Code § 21-5-10 provides, 

in part, that “acceptance by an employee of a partial payment of wages shall not constitute 

a release as to the balance of his claim[.]” In any event, Dr. Davari replies that these notices 
22

provide his total base salary as professor and they do not mention the supplemental salary 

owed for serving as Director of the Center. Again, we conclude that factual issues exist

here.

In light of the standard for evaluating motions for summary judgment, where 

a weighing of the evidence is not permitted, we conclude that Dr. Davari has pointed to 

sufficient evidence that would allow a reasonable fact-finder to find in his favor that an 

employment agreement existed under which he was entitled receive a supplementary salary 

of $24,000 to serve as Director of the Center. 

IV. CONCLUSION

WVU BOG is entitled to summary judgment on Dr. Davari’s claims for 

breach of contract, quantum meruit, and unjust enrichment because those claims are barred 

by the doctrine of sovereign immunity. We affirm that portion of the circuit court’s March 

2, 2020 summary judgment order. But the circuit court erred in granting summary 

judgment on Dr. Davari’s WPCA claim. So, that portion of the March 2, 2020 summary 

judgment order is reversed, and the case is remanded for further proceedings. 

Affirmed in part, reversed in part, and remanded.