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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Mercer County Board of Education,

Defendant Below, Petitioner

vs.) No. 18-0711 (Mercer County 18-C-36)

Holly Ruskauff,

Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioner Mercer County Board of Education (“BOE”), by counsel Chip E. Williams, 

Ashley Justice Tucker, and Jared C. Underwood, appeals the Circuit Court of Mercer County’s 

July 10, 2018, order granting, in part, and denying, in part, its motion to dismiss respondent’s 

complaint. Respondent Holly Ruskauff, by counsel Scott H. Kaminski, filed a response. The 

BOE filed a reply.

The Court has considered the parties’ briefs and record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. This case satisfies the “limited circumstances” requirement of Rule 21(d) of 

the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this 

case is remanded to the circuit court for entry of an order dismissing respondent’s remaining 

claim.

On February 14, 2018, respondent filed a complaint against the BOE asserting causes of 

action for negligence and a deprivation of procedural due process. Respondent, a speech teacher, 

detailed that she was a BOE employee from 2011 through 2015, and that during a February 10, 

2015, board meeting, the BOE suspended her employment. Respondent alleged that the 

suspension and reason for it were posted to the internet in the BOE’s meeting minutes.1

 

1 The relevant portion of the meeting minutes provided as follows:

Employee Disciplinary Action

Board Memo #149

On motion of Mr. Hodges, seconded by Mr. Hurt, and by a 4-0 vote, the Board 

confirmed the suspension of [respondent]. [Respondent] was suspended for ten 

days, from February 5-18, 2015, without pay, due to her failure to report to work 

(continued . . . )

 FILED

November 4, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Respondent further alleged that, subsequent to her suspension, she attempted to find substitute 

employment. During this search, she was informed by Emily Karnes, another BOE employee, 

that a representative of the Somerset County, Maryland, Board of Education had contacted her 

and referenced the employment action detailed in the meeting minutes, as those minutes were 

available for viewing online. The Somerset County Board of Education did not hire respondent.

In support of her negligence count, respondent asserted that the BOE breached its duty to 

maintain the confidentiality of her personal employment information by posting the reason for its 

employment decision on its website. This breach allegedly caused respondent to lose 

employment opportunities and suffer lost wages, benefits, and other damages.2

Respondent’s due process claim was predicated on the BOE’s alleged failure to provide 

her with a predetermination conference and other related deprivations, such as the failure to 

provide certain written notices. 

The BOE moved to dismiss respondent’s complaint for failure to state a claim upon 

which relief could be granted. The BOE asserted that both of respondent’s claims against it were 

 

as assigned, providing false information to her supervisor when questioned 

regarding work attendance, and falsifying student service records in an attempt to 

mislead her supervisor. In a letter, dated January 29, 2015, [respondent] waived 

her right to a hearing in this matter and accepted the suspension.

Respondent does not deny the conduct set forth here.

2 Respondent’s negligence count, in relevant part, reads as follows:

COUNT ONE – NEGLIGENCE

11. As an education institution and employer, West Virginia and United States 

law imposes a duty on [the BOE] to maintain the confidentiality of [respondent’s]

personal employment information including but not limited to any reasons for any 

personnel decisions.. [sic]

12. [The BOE] breached that duty by displaying the reason for the personnel

decision on its website such that the public including other potential employers 

have access to said information. 

13. The aforesaid breach by [the BOE] proximately caused [respondent] to 

lose employment opportunities and suffer lost wages and benefits, great emotional 

distress, anxiety, humiliation, embarrassment and other such damages as shall 

come to light through discovery. 

14. Accordingly, [respondent] is entitled to recovery from [the BOE] in an 

amount of money sufficient to compensate her for her damages.
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barred by the doctrine of qualified immunity and the applicable one-year statute of limitations. In 

her response to this motion, respondent argued that despite a duty of confidentiality with respect 

to employee discipline, her disciplinary action remained available on the BOE’s website in its 

meeting minutes. Respondent appended to her response the BOE’s February 10, 2015, meeting 

minutes, quoted above.

Respondent also attached a February 17, 2016, e-mail from Ms. Karnes, informing her 

that the Somerset County representative had seen the meeting minutes. Respondent had

previously e-mailed Ms. Karnes to inquire into the negative reference provided to the Somerset 

County representative and to request that future references be based on the first three years of her 

four-year employment with the BOE, which she characterized as positive. In her e-mail response, 

Ms. Karnes informed respondent that she did not provide a negative reference and, instead, only 

provided the representative with respondent’s employment date range. Ms. Karnes also noted 

that the Somerset County representative “reference[d] the [BOE] memo disciplinary action that 

had your name on it. (Board memo’s [sic] are public knowledge)[.] However, I told her I could 

not discuss the issue.”

The parties appeared for a hearing on the BOE’s motion to dismiss on June 1, 2018. On 

July 10, 2018, the circuit court entered its order granting the BOE’s motion with respect to 

respondent’s procedural due process claim. But the court found that 

[t]here is a dispute as to whether the [BOE] is required to include the reasoning 

for employment decisions or disciplinary actions in meeting minutes, or in the 

alternate whether the [BOE] must include only the final decision without the 

reasoning for said decision. Further, it is unclear what the [BOE] representative 

told the representative from Somerset County with regard to [respondent’s] prior 

employment. 

Accordingly, the court denied the BOE’s motion as to the negligence claim. This appeal 

followed.

We review a circuit court’s denial of a motion to dismiss de novo. See Syl. Pt. 4, in part, 

Ewing v. Bd. of Educ., 202 W. Va. 228, 503 S.E.2d 541 (1998). “For purposes of the motion to 

dismiss, the complaint is construed in the light most favorable to plaintiff [], and its allegations 

are to be taken as true.” W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654, 660, 783 S.E.2d 75, 81 

(2015) (citation omitted). “[D]ismissal for failure to state a claim is only proper where it is clear 

that no relief could be granted under any set of facts that could be proved consistent with the 

allegations in the complaint.” Id. (citation omitted). But a plaintiff’s complaint must “at a 

minimum . . . set forth sufficient information to outline the elements of his [or her] claim,” and 

“in civil actions where immunities are implicated, the trial court must insist on heightened 

pleading by the plaintiff.” Id. (citations omitted).

The BOE asserts that the circuit court erred in denying its motion to dismiss respondent’s 

negligence claim for several reasons. First, the BOE argues that it is entitled to qualified 

immunity and that qualified immunity bars negligence claims against governmental officials. 

The BOE also argues that the court erred in denying its motion on the basis that a dispute exists 
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as to whether the BOE must include in its meeting minutes only its employment decision and not 

the reasoning for that decision. According to the BOE, any such dispute amounts to a question of 

law for the court’s resolution, not a question of fact for a jury. Additionally, the BOE claims 

error in the court’s conclusion that it is unclear what the BOE representative told the 

representative with Somerset County regarding respondent’s prior employment. Finally, the BOE 

contends that the circuit court failed to address its argument that respondent’s claim is barred by 

the applicable one-year statute of limitations.

In determining whether the BOE is entitled to qualified immunity,

a reviewing court must first identify the nature of the governmental acts or 

omissions which give rise to the suit for purposes of determining whether such 

acts or omissions constitute legislative, judicial, executive or administrative 

policy-making acts or involve otherwise discretionary governmental functions. To

the extent that the cause of action arises from judicial, legislative, executive or 

administrative policy-making acts or omissions, both the State and the official 

involved are absolutely immune pursuant to Syl. Pt. 7 of Parkulo v. W. Va. Bd. of 

Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996). 

Syl. Pt. 10, in part, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 

751 (2014). Then,

[t]o the extent that governmental acts or omissions which give rise to a 

cause of action fall within the category of discretionary functions, a reviewing 

court must determine whether the plaintiff has demonstrated that such acts or 

omissions are in violation of clearly established statutory or constitutional rights 

or laws of which a reasonable person would have known or are otherwise 

fraudulent, malicious, or oppressive in accordance with State v. Chase Securities, 

Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a showing, both 

the State and its officials or employees charged with such acts or omissions are 

immune from liability.

A.B. at 497, 766 S.E.2d at 756, syl. pt. 11. Respondent does not dispute that, under appropriate 

circumstances, the BOE could be entitled to qualified immunity and that its actions here involve 

discretionary functions.

3 Rather, she contends that the BOE’s actions in displaying the basis for 

its employment decision in its public meeting minutes violated her “interest in privacy” and 

“breached its duty of confidentiality,” thereby violating a “clearly established statutory or 

constitutional right[] or law[] of which a reasonable person would have known[.]” Id.

 

3 Likewise, there is no dispute that respondent’s claim is not within the purview of the 

West Virginia Governmental Tort Claims and Insurance Reform Act. See W. Va. Code § 29-

12A-18(b) (stating that the Act does not apply to “[c]ivil actions by 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”).
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In support of her position, respondent cites Roach v. Harper, 143 W. Va. 869, 105 S.E.2d 

564 (1958), and Cordle v. General Hugh Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984). 

In Roach, Ms. Roach’s landlord installed a listening device in her rental apartment without her 

knowledge, allowing him to overhear her confidential and private conversations. Id. at 870, 105 

S.E.2d at 565. She filed a trespass action and asserted that the landlord invaded her right to 

privacy. Id. The landlord asserted that no right of action existed in the state for recovering 

damages occasioned by an invasion of privacy. Id. Recognizing that there was no authority 

directly relating to the issue, this Court considered that the majority of jurisdictions permitted 

such a cause of action and held that “[t]he right of privacy, including the right of an individual to 

be let alone and to keep secret his private communications, conversations and affairs, is a right 

the unwarranted invasion or violation of which gives rise to a common law right of action for

damages.” Id. at 869-70, 105 S.E.2d at 564, syl. pt. 1.

Building on our holding in Roach, we held in Cordle

that it is contrary to the public policy of West Virginia for an employer to require 

or request that an employee submit to a polygraph test or similar test as a 

condition of employment, and although the rights of employees under that public 

policy are not absolute, in that under certain circumstances, such as those 

contemplated by W.Va. Code, 21-5-5b [1983], such a polygraph test or similar test 

may be permitted, the public policy against such testing is grounded upon the 

recognition in this State of an individual’s interest in privacy.

174 W. Va. at 327, 325 S.E.2d at 117.

To bolster her claim that this right prohibited the BOE’s actions, respondent contends that 

the right of privacy has been extended to the employment context, as done in Cordle, and notes 

that the Freedom of Information Act exempts from disclosure “[i]nformation of a personal nature 

such as that kept in a personal, medical, or similar file, if the public disclosure of the information 

would constitute an unreasonable invasion of privacy.” W. Va. Code § 29B-1-4(a)(2), in part. 

Respondent also states that employers “routinely refuse to disclose personnel records on the 

basis of confidentiality.” See Rollins ex rel. Rollins v. Barlow, 188 F.Supp.2d 660, 663 (S.D. W. 

Va. 2002) (noting that “State Police personnel records are confidential just as personnel records 

of any employer should be confidential to protect the privacy concerns of employees”). 

We have stated that “a right is ‘clearly established’ when its contours are ‘sufficiently 

clear that a reasonable official would understand that what he is doing violates that right.’” A.B., 

234 W. Va. at 517, 766 S.E.2d at 776. Further, 

[t]o prove that a clearly established right has been infringed upon, a plaintiff must 

do more than allege than an abstract right has been violated. Instead, the plaintiff 

must make a “particularized showing” that a “reasonable official would 

understand that what he is doing violated that right” or that “in light of preexisting 

law the unlawfulness” of the action was “apparent.” Anderson v. Creighton, 483 

U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). 
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W. Va. Dep’t of Health and Human Res. v. V.P., 241 W. Va. 478, __, 825 S.E.2d 806, 813 (2019) 

(citing Hutchison v. City of Huntington, 198 W. Va. 139, 149 n.11, 479 S.E.2d 649, 659 n.11 

(1996)). The authority cited by respondent does not speak to the conduct here—namely, the 

BOE’s recordation of the basis for its suspension of respondent’s employment—or render it 

sufficiently clear that the basis for the BOE’s employment decision may not be included in its

public meeting minutes. Similarly, an employer’s “refusal to disclose” personnel files, which 

may include medical information, Social Security numbers, or other sensitive information, does 

not equate to a “clearly established” privacy right in the basis for the BOE’s employment 

decision. Simply put, respondent’s arguments and cited cases fail to render it “sufficiently clear” 

that inclusion of the BOE’s employment decision in its meeting minutes violated any right, and 

she has yet to identify a clearly-established statutory or constitutional right or law that the BOE 

violated by recording the basis for its suspension of her employment in its public meeting 

minutes. Because respondent failed to plead or otherwise identify a clearly established law, 

statute, or regulation that the BOE violated, she has failed to state a claim. See W. Va. Bd. of 

Educ. v. Croaff, No. 16-0532, 2017 WL 2172009, *7 (W. Va. May 17, 2017)(memorandum 

decision) (detailing cases where the failure to identify a specific law, statute, or regulation that 

was violated amounted to a “fatal flaw” in the complaint). Accordingly, the BOE is entitled to 

qualified immunity; and, as such, we need not address the BOE’s other assignments of error. 

For the foregoing reasons, we reverse the circuit court’s order denying the BOE’s motion 

to dismiss petitioner’s negligence claim and remand the case for entry of a dismissal order.

Reversed and remanded.

ISSUED: November 4, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison