IN THE SUPREME COURT OF AP PEALS OF WEST VIRGINIA January 2019 Term

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No. 18-0026

_____________ WEST VIRGINIA DIVISION OF NATURAL RESOURCES, JERRY JENKINS, BRADFORD DEBO RD, AND STEPHEN ANTOLINI, Defendants Below, Petitioners
V. STEVEN DAWSON AND ANGELA DAWSON, Plaintiffs Below, Respondents

________________ __________________ ______________

Appeal from the Circuit Court of Hampshire County The Honorable C. Carter Williams, Judge Civil Action No. 15-C-80 AFFIRMED, IN PART; REVE RSED, IN PART; AND REMANDED

________________ __________________ ______________ Submitted: March 13, 2019 Filed: June 3, 2019

Keith C. Gamble Nathan A. Carroll Pullin, Fowler, Flanagan, Brown & Poe, PLLC Morgantown, West Virginia Attorneys for the Petitioners Jerry D. Moore Jared T. Moore The Moore Law Firm, PLLC Franklin, West Virginia Attorneys for the Respondents

JUSTICE JENKINS delivered the Opinion of the Court. 

### FILED June 3, 2019

released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIAi SYLLABUS BY THE COURT
1. “‘A circuit court’s denial of summa ry judgment that is predicated on qualified immunity is an interl ocutory ruling which is subjec t to immediate appeal under the “collateral order” doctrine.’ Syl. Pt. 2, Robinson v. Pack , 223 W. Va. 828, 679 S.E.2d 660 (2009).” Syllabus point 1, City of Saint Albans v. Botkins , 228 W. Va. 393, 719 S.E.2d 863 (2011).

2. “‘This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly revi ewable by this Court.’ Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins. Co. , 213 W. Va. 80, 576 S.E.2d 807 (2002).” Syllabus point 2, West Virginia State Police v. Hughes , 238 W. Va. 406, 796 S.E.2d 193 (2017).

3. “The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law fo r the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or histor ical facts that underlie the immunity determination, the ultimate questions of statutory or qualif ied immunity are ripe for summary disposition. ” Syllabus point 1, Hutchison v. City of Huntington , 198 W. Va. 139, 479 S.E.2d 649 (1996).ii 4. “‘In the absence of an insurance contract waiving the defense, the doctrine of qualified or official immunity bars a claim of me re negligence against a State agency not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1 et seq. , and against an officer of that department acting within the scope of his or her employment, with respect to the discretionary judgments, decisions, and ac tions of the officer.’ Syl. Pt. 6, Clark v. Dunn , 195 W. Va. 272, 465 S.E.2d 374 (1995).” Syllabus point 7, West Virginia Regional Jail & Correctional Facility Authority v. A.B. , 234 W. Va. 492, 766 S.E.2d 751 (2014).

5. “To the extent that governmental acts or omissions which give rise to a cause of action fall within the category of di scretionary functions, a reviewing court must determine whether the plaintiff has demonstrat ed that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have k nown or are otherwise fraudulen t, malicious, or oppressive in accordance with State v. Chase Securities, Inc. , 188 W. Va. 356, 4 24 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.” Sy llabus point 11, West Virginia Regional Jail & Correctional Facility Authority v. A.B. , 234 W. Va. 492, 766 S.E.2d 751 (2014).

6. “If the plaintiff identifies a clearly established right or law which has been violated by the acts or omissions of the St ate, its agencies, officials, or employees, oriii can otherwise identify fraudulent, malicious, or oppressive acts committed by such official or employee, the court must determine whethe r such acts or omissions were within the scope of the public official or employee’s du ties, authority, and/or employment. To the extent that such official or employee is determined to have been acting outside of the scope of his duties, authority, and/or employment, th e State and/or its agencies are immune from vicarious liability, but the public employee or official is not entitled to immunity in accordance with State v. Chase Securities, Inc. , 188 W. Va. 356, 424 S.E.2d 591 (1992) and its progeny. If the public official or empl oyee was acting within the scope of his duties, authority, and/or employment, the State and/or its agencies may be he ld liable for such acts or omissions under the doctrine of respondeat superior along with the public official or employee.” Syllabus point 12, West Virginia Regional Jail & Correctional Facility Authority v. A.B. , 234 W. Va. 492, 766 S.E.2d 751 (2014).

7. “A government employer implicates its employee’s liber ty interest in his/her good name when the following elements are alleged: (1) a stigmatizing statement; (2) which was false; (3) was pu blished, or made accessible to the public; (4) in connection with a serious adverse employment action. When these elements are met, the employee must be afforded procedural safeguards under Article III, Section 10 of the West Virginia Constitution.” Syllabus point 6, West Virginia Department of Education v. McGraw , 239 W. Va. 192, 800 S.E.2d 230 (2017).1 Jenkins, Justice: The Petitioners, the West Virginia Di vision of Natural Resources (“the DNR”); and Jerry Jenkins (“Col. Jenkins”), 1 Bradford DeBord (“Maj. DeBord”), 2 and Stephen Antolini (“ Sgt. Antolini”) 3 (collectively “the DNR employees”), appeal a December 8, 2017 order of the Circuit Court of Hampshire County that denied their motion for summary judgment on the gr ound of qualified immunity. In the underlying civil action filed by Respondent, Steven Dawson (“Mr. Dawson”) 4 , Mr. Dawson alleged that his former employer, the DNR, and its employees, Col. Jenkins, Maj. DeBord, and Sgt. Antolini, “committed alleged acts of defamation, false light, infringement of a liberty interest without due process, and reckless infliction of emotional distress, along with claims of loss of consortium and punitive damages.” On the DNR’s and the DNR employees’ motion for summary judgment asserting qualified immunity , the circuit court fo und that there is a genuine issue of material fact as to whether Mr. Dawson’s liberty interest was implicated, and, if so, whether he was a fforded due process; whether the DNR and the DNR employees were in violation of Mr. Dawson’s clearly es tablished rights of which a reasonable person

1 Col. Jenkins was sued in the underl ying matter individually and in his capacity as Colonel and Chief of the La w Enforcement Section of the DNR.

2 Maj. DeBord was sued in the underl ying matter individually and in his capacity as Major and Coordinator of th e Law Enforcement Section of the DNR.

3 Sgt. Antolini was sued in the unde rlying matter individually and in his capacity as Sergeant of the Law Enforcement Section of the DNR.

4 In the underlying matter, Mr. Daws on’s wife, Angela Dawson, was also a named plaintiff. Mr. and Mrs. Da wson are also both named partie s in this appeal; therefore, Mr. and Mrs. Dawson will be referred to collectively as “the Dawsons.”2 would have known; whether th e DNR and the DNR employees acted maliciously in their investigation of Mr. Dawson; and whether the actions of the DNR employees were within the scope of their employment.

On appeal, the DNR and the DNR employees raise th e following issues: (1) the circuit court erred by faili ng to find qualified immunity be cause (a) there is no evidence of a violation of any clearly established stat utory or constitutional right or law of which a reasonable person would have know n, and (b) there is no evidence of conduct on behalf of the DNR and the DNR employees that could be characterized as fraudulent, malicious, or oppressive; (2) no genuine issues of material fact existed, and no reasonable juror could find the DNR employees acted outside their offi cial capacity as DNR officers; and (3) the circuit court improperly found that the DNR and the DNR employees’ motion for summary judgment, filed after the close of discovery , was inconsistent with the provisions of Maston v. Wagner , 236 W. Va. 488, 781 S.E.2d 936 (2015 ), which encourages a ruling on qualified immunity early in the proceedings.

Having considered the briefs submitte d on appeal, the appendix record, the parties’ oral arguments, and the applicable lega l authority, we find no error in the circuit court’s decision that there are genuine issues of material fact as to whether the DNR and the DNR employees’ acts or omissions were fraudulent, malicious, or oppressive and whether the individual DNR employees acted out side of their scope of employment. We further find no error in the circuit court’s fi ndings regarding the timing of the motion for3 summary judgment. Therefore, we affirm as to those three issues. However, we find that the Dawsons cannot demonstrate a violation of a clearly estab lished statutory or constitutional right or law of wh ich a reasonable pers on would have know n. Accordingly, we reverse the circuit court’s decision as to th at issue and direct the circuit court to enter summary judgment in favor of the DNR and th e DNR employees as to that issue only and remand for further proceedings cons istent with this opinion.

I. FACTUAL AND PROC EDURAL HISTORY In summer 2014, the DNR was investig ating the offenses of illegal bear hunting and prohibited driving of motor vehicles within th e Nathanial Mountain Wildlife Management Area (“WMA”) in Hampshire Co unty, West Virginia. Mr. Dawson was employed by the DNR as a natural resources police officer. Although Mr. Dawson was assigned to Hardy County, West Virginia, he assisted the Hampshire County investigation at the request of DNR Officer Terry Srout (“Officer Srout”). On September 7, 2014, Officer Srout and Mr. Dawson placed two game-trail cameras in the WMA. 5 The cameras were set along trails where they believed th ere was illegal driving activity. Officer Srout and Mr. Dawson retrieved the cameras on Sept ember 21, 2014. One camera, a Moultriebrand camera (the “Moultrie Camera”), containe d eleven photos that showed two vehicles:

5 There was a third camera also set up that same day; however, it is not significant for the purposes of this appeal.4 (1) a gray/silver Dodge truck, that the inves tigating officers determined belonged to Ralph Buckley, and (2) a white Sport Utility Vehicle. Upon inspection of the second camera, a Bushnell-brand camera (the “Bushnell Camera” ), it was discovered that the memory card was missing. However, upon further inspection, Officer Srout discovered that the Bushnell Camera did contain twelve photos that were saved to the intern al drive. The photos were timestamped, but the dates and times did not co rrespond with the time the Bushnell Camera had been deployed by Officer Srout and Mr. Dawson. According to the circuit court, “[t]hese photos reveal a person very close to the lens of th e camera, with the individual’s clothing visible. It also appears that a hand is covering or shieldi ng the camera lens.”

Mr. Dawson contends that he and othe r investigating officers believed that the driver of the Dodge truck was Ralph Buck ley and he stole the memory card from the Bushnell Camera. They obtained a search warrant based upon that belief from the Hampshire County Magistrate Court. 6 Mr. Dawson had been the one to complete the search warrant affidavit. On ce Mr. Dawson obtained the search warrant, he and the other investigating officers attempted to execute it at the Buckley residence; however, Ralph Buckley was not home. Mr. Dawson then ca lled Jeremy Buckley, Ralph Buckley’s son, and informed him that he had a search warrant for Ralph Buckley’s property. Ralph Buckley returned home and sp oke to Mr. Dawson. At some point, Mr. Dawson had an

6 However, the circuit court noted that “[Mr.] Dawson has admitted herein that, from the Bushnell photos, he cannot see the Buckley truck, Ralph or Jeremy Buckley (Ralph’s son), an SD card, and/or anyone actu ally removing the card from the camera.”5 opportunity to observe the bed of Ralph Buckley’s truck and di scovered that the striations of the truck bed were dissimilar to those captu red by the Bushnell Camera. Because of this observation, Mr. Dawson chose not to execute th e search warrant and, instead, wrote Ralph Buckley a ticket for driving in the WMA and conspiracy to drive within the WMA based on the photographs retrieved from the Moultr ie Camera. Mr. Dawson did not issue a citation to Jeremy Buckley ou t of concern that it might affect his job as a federal correctional officer.

On or about December 28, 2014, Ra lph Buckley and his son, Jeremy Buckley, filed a Professional Standards Un it (“PSU”) complaint against Mr. Dawson, Officer Srout, and another officer involved in the acquisition of the search warrant. The PSU complaint alleged that the officers failed to obey the laws governing DNR officers and that Mr. Dawson used false information to obtain the sear ch warrant. Sgt. Antolini, a PSU investigator, was officially assigned to th e investigation on January 8, 2015, by Maj. DeBord.

The DNR and the DNR employees cont end that Sgt. Antolini conducted a thorough investigation from Janua ry 8, 2015 to February 7, 2015, including interviewing Mr. Dawson twice; presenting Mr. Dawson with a copy of the PSU complaint; interviewing the other officers named in the complaint, the complainants, and other witnesses; and visiting the location where the ca meras were installed. Sgt. Antolini concluded that there was no evidence to support Mr. Da wson’s search warrant affidav it. Col. Jenkins then asked6 Sgt. Antolini to conduct a suppl emental investigation, and Sg t. Antolini interviewed Mr. Dawson a third time. During that interview, ev idence was again shown to Mr. Dawson, questions were asked by Sgt. Antolini, and Mr. Dawson ag reed to undergo a polygraph examination. Sgt. James A. Hunt (“Sgt. H unt”) of the Charleston Police Department was engaged to conduct the polygraph examination of Mr. Dawson. The purpose of the exam was to ascertain if Mr. Dawson intended to be deceptive when he applied for the subject search warrant.

Sgt. Antolini’s supplemental report i ndicated that “Sgt. Hunt advised that a polygraph examination to determine whethe r Officer Dawson had lied would not be advisable due to the fact that an investigation had already been completed and sustained the information on the search wa rrant as false.” The suppleme ntal report also stated that Sgt. Hunt had “further explained that a pol ygraph examination regarding Officer Dawson’s intent at the time the search warrant was filed could be conducted even though that type of test was not routinely done.” 7 Sgt. Antoloni info rmed Sgt. Hunt that he would like to move

7 Sgt. Hunt stated in his report that he had informed Sgt. Antolini that “a polygraph could not be given on the issue of whether Steven Dawson had lied when he filed the search warrant due to an investigation proving he had.” Sgt. Hunt also stated in his report that he informed Sg t. Antolini that a polygraph “coul d be conducted to determine if [Mr.] Dawson intended to lie[.]” Ho wever, “[a] polygraph regarding a person’s intentions are not typically given, because a deception test of one ’s intent is not a valid test through the American Polygrap h Association (APA.).” Furt hermore Sgt. Hunt’s report stated that “[t]his examination should not be used for any legal standing since a polygraph on one’s intent is not a valid issue.”7 forward with the polygraph examination. Sg t. Hunt performed the polygraph “[d]ue to requests from both the accused, and a party of interest[.]” Sgt. Hunt concluded that Mr. Dawson’s responses regarding his intent yielded “consistent and significant responses indicative of deceptive responses.” Mr. Da wson resigned his employment immediately following the administration of the polygraph test.

After completing the supplemental investigation, the DNR and the DNR employees concluded that Mr. Dawson kno wingly provided false or misleading information in an affidavit for a search warrant. On April 20, 2015, Maj. DeBord wrote to Jeremy Buckley concerning the results of the complaint and info rmed him that the complaint was sustained and that appropriate action had been taken. According to the Dawsons, once Jeremy Buckley received the le tter, news of Mr. Dawson’s falsification of evidence in a search warrant affidavit spread quickly thro ughout the law enforcement community and community at large.

On May 18, 2015, Mr. Dawson filed a grievance with the West Virginia Public Employee’s Grievance Board pursuant to West Virginia Code § 6C-2-1 (LexisNexis 2015). Mr. Dawson sought exoneration of the ch arge that he had falsified a search warrant

(. . . continued) Nevertheless, later in the underlying litigation, Sgt. Hunt stated in an affidavit that, based on his training, experi ence, and education, Mr . Dawson’s “polygraph produced valid, accurate, and reliable results.”8 affidavit and removal of the finding from hi s personnel file. Specifically, Mr. Dawson argued that he was constructiv ely discharged and sought a re scission of his resignation. The grievance was denied at Level One, and a Level Two mediation session was unsuccessful. Mr. Dawson appealed to Level Three, and a hearing was held on September 29, 2016. The final decision of the Grievan ce Board Administrative Law Judge was issued on December 14, 2016. The Grievance Board determined that numer ous provisions of General Order No. 5 8 had been violated; directed Mr. Dawson to be reinstated to his previous position with back pay and interest, seniority, and benefits; 9 and ordered the DNR to expunge all negative, unprofessional, or detrimental information contained in Mr. Dawson’s personnel file arising from the PSU complaint. No appeal of this decision was ever taken by the DNR. 10

During the course of the grievance proceedings, on August 5, 2015, the Dawsons filed their initia l complaint against the DNR and the DNR employees 11 alleging defamation, false light, infringement of liberty interest without due process, reckless

8 General Order No. 5 is a written, intern al investigation policy of the DNR.

9 Mr. Dawson gave his two weeks’ notic e of his intent to resign from his employment on the day he returned to employment with the DNR.

10 West Virginia Code § 6C-2-5 (Lex isNexis 2015) provides for the ability to appeal the decision of th e administrative law judge to the Circuit Court of Kanawha County.

11 The complaint was also filed agai nst Jeremy Buckley; however, Mr. Buckley is not a party to this appeal.9 infliction of emotional distress, and loss of consortium, and seeking both compensatory and punitive damages. On June 2, 2016, the circuit court entered an order staying the circuit court action to allow th e resolution of the grievance proceedings. Following the decision of the Grievance Board, the Dawsons moved to amend their complaint to add an additional count of misrepresentation against Sgt. Antolini, and the circuit court granted the motion to amend. Ther eafter, the DNR and the DNR em ployees filed a motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted. 12 The circuit court granted, in part, the motion to dismiss the amended complaint by dismissing the Dawsons’ claim for puniti ve damages against the DNR and the DNR employees, but denied the motion to dismiss as to all other claims.

Once discovery was closed, the DNR and the DNR employees filed a motion for summary judgment on the ba sis of, among others, qualifie d immunity; and, after a hearing on September 7, 2017, the circuit c ourt asked the parties to submit supplemental briefing on the issue of qualified immunity. On December 8, 2017, the circuit court denied the motion for summary judgment. The circuit court observed that, despite the DNR and the DNR employees’ assertion that Sgt. Antolini conducted a proper and thorough investigation, the DNR chose not to appeal the Grievance Board decision, which found that the investigation violated numer ous provisions of General Order No. 5. The circuit court also noted that the Grievance Board decision found that Sgt. An tolini mischaracterized the

12 This motion to dismiss was not based upon qualified immunity principles.10 validity of the polygraph examination. Additi onally, the circuit court found that a clear reading of Sgt. Antolini’s report suggests that the DNR determined that Mr. Dawson committed the crime of false swearing, alth ough the DNR never pur sued any criminal charges against Mr. Dawson for the alleged offense.

The circuit court took notice of the fi ndings of the Grievance Board decision, where the Board found th at “[t]here can be little question under the circumstances of this case that [Mr. Dawson’s] resignation was involu ntary” and ruled that “[a] finding that a law enforcement officer made false statements in an affidavit is a potential career ending event. But for the failure of the [DNR] to reach the correct deci sion in the internal investigation, [Mr. Dawson] would no t have tendered his resignation.”

The circuit court further found that Mr. Dawson was entitled to due process under General Order No. 5; the DNR an d the DNR employees violated numerous provisions of that order; and there was a genui ne issue of material fa ct regarding the exact number of violations of Gene ral Order No. 5. Heavily re lying upon the Grievance Board decision, the circuit court found the following potential violations of General Order No. 5: (1) the DNR does not have a st andard of proof to utilize to determine if a complaint should be sustained; (2) the investigator failed to notify Mr. Dawson regarding the nature of the complaint; (3) Sgt. An tolini failed to collect critical evidence, including the Bushnell Camera; (4) Maj. DeBord did not make a re commendation concerning the investigation; (5) interviews of potential witnesses were not recorded as required; and (6) an invalid11 polygraph examination was administered, in spite of the fact that the test could not be used for legal purposes. The circuit court also fo und that Col. Jenkins sustained the complaint on the invalid polygraph, as Col. Jenkins adm itted that he believed M r. Dawson before the polygraph was administered. As a result of thes e findings, the circuit court concluded that there are genuine issues of material fact as to whether Mr. Dawson was afforded due process and as to whether th e DNR and the DNR employees’ acts or omissions were in violation of Mr. Dawson’s clearly establishe d constitutional rights, of which a reasonable person would have known.

The circuit court also found that, due to the number of potential violations of General Order No. 5 and Mr. Dawson’s test imony that the environment at the DNR was hostile to him as a former law enforcement o fficer with the West Virginia State Police, there was a genuine issue of material fa ct regarding whether the DNR and the DNR employees’ actions were malicious or oppressive. The circuit court further found that there is a genuine issue of material fact as to whether the DNR em ployees were acting within the scope of their employment because of the po tential numerous violati ons of General Order No. 5. Ultimately, the circuit court concluded that “the record in this matter is laden with genuine issues and questions of material fact underlying the immun ity determination” and denied the DNR and the DNR employees’ mo tion for summary judg ment. The DNR and the DNR employees now appeal the decision of the circuit court arguing that they are entitled to qualified immunity from the Dawsons’ claims.12 II. STANDARD OF REVIEW Ordinarily, an order denying a motion fo r summary judgment is interlocutory and not appealable; however, this Court has explicitly recognized “‘[a] circuit court’s denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to imme diate appeal under the “collateral order” doctrine.’ Syl. Pt. 2, Robinson v. Pack , 223 W. Va. 828, 679 S.E.2d 660 (2009).” Syl. pt. 1, City of Saint Albans v. Botkins , 228 W. Va. 393, 719 S.E.2d 863 (20 11). Furthermore, “‘[t]his Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court.’ Syllabus Point 1, Findley v. State Farm Mut. Auto. Ins.
Co. , 213 W. Va. 80, 576 S.E.2d 807 (2002).” Syl. pt. 2, W. Virginia State Police v. Hughes , 238 W. Va. 406, 796 S.E.2d 193 (2017). This review, however, is guided by the following principle regarding qualified immunity: [t]he ultimate determinati on of whether qualified or statutory immunity bars a civil ac tion is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historic al facts that underlie the immunity determination, the ultim ate questions of statutory or qualified immunity are ripe for summary disposition. Syl. pt. 1, Hutchison v. City of Huntington , 198 W. Va. 139, 479 S.E.2d 649 (1996). “In this connection, it is the jury , not the judge, who must deci de the disputed ‘foundational’ or ‘historical’ facts that underlie the immunity determination, but it is solely the prerogative of the court to make the ultimate legal conclusion.” Id. at 149, 479 S.E.2d at 659. “Accordingly, a circuit court ma y not summarily dispose of a claim on grounds of qualified13 or statutory immunity where there is a genui ne issue of material fact underlying the immunity determination.” Maston v. Wagner , 236 W. Va. 488, 498, 781 S.E.2d 936, 946 (2015). Additionally, we “must draw any pe rmissible inference from the underlying facts in the light most favorable to the party opposing the motion.” Painter v. Peavy , 192 W. Va. 189, 192, 451 S.E.2d 755, 75 8 (1994) (citations omitted). Fu rthermore, when considering evidence at the summary judgment stage, courts must apply the following guidelines: The circuit court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Consequently, we must draw any permissible inference from the underlying facts in the most favorable light to the party opposing the motion. In assessi ng the factual record, we must grant the nonmoving party the benefit of inferences, as credibility determinations, the weighing of the evidence, and the drawing of legitimate infere nces from the facts are jury functions, not those of a judge. Summary judgment should be denied even where there is no disp ute as to the evidentiary facts in the case but only as to th e conclusions to be drawn therefrom. Similarly, when a party can show that demeanor evidence legally could affect the result, summary judgment should be denied. Williams v. Precision Coil, Inc. , 194 W. Va. 52, 59, 459 S.E.2d 329, 336 (1995) (citations and quotations omitted). With these standard s in mind, we proceed to the parties’ arguments.14 III. DISCUSSION While the DNR and the DNR employees raise four assignments of error, all involve the basic legal structure of qualified immunity. Accordingly, we will begin by reviewing this Court’s established qualified i mmunity principles. We have held that, “[i]n the absence of an in surance contract waiving the defense, the doctrine of qualified or official immunity bars a claim of mere negligence against a State agency not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va. Code § 29-12A-1 et seq. , and against an officer of that depart ment acting within the scope of his or her employment, with respect to the discretionary judgments, decisions, and actions of the officer.” Syl. Pt. 6, Clark v. Dunn , 195 W. Va. 272, 465 S.E.2d 374 (1995). Syl. pt. 7, W. Virginia Reg’l Jail & Co rr. Facility Auth. v. A.B. , 234 W. Va. 492, 766 S.E.2d 751 (2014). Furthermore, this Court has held that, [t]o the extent that governmental acts or omissions which give rise to a cause of ac tion 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 cl early established statutory or constitutional rights or laws of which a reasonable person would have known or are othe rwise 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 omissi ons are immune from liability. Syl. pt. 11, A.B. , 234 W. Va. 492, 766 S.E.2d 751.

In the case sub judice , it is undisputed that the DNR is a state agency and that Col. Jenkins, Maj. DeBord, and Sgt. Antolini were DNR em ployees during the relevant15 time period. It is further undisputed that th e acts or omissions of the DNR and the DNR employees at issue in this matter were discretionary. 13 Therefore, the Dawsons may overcome the DNR and the DNR employees qualified immunity protections by demonstrating that these acts or omissions were in violation of a clearly established right of which a reasonable person would have known or were otherwise fraudulent, malicious, or oppressive. Additionally, even if these acts or omissions were in violation of a clearly established right of which a reasonable pe rson would have known or were otherwise fraudulent, malicious, or oppressive, to dete rmine whether the DNR, itself, retains its immunity protections, it must be established whether the individual DNR employees were acting outside the scope of their employment.

A. Clearly Established Right of which a Reasonable Person Would Have Known There being no question that the acts or omissions of the DNR and the DNR employees were discretionary, we first turn to the question of whether these alleged acts or omissions could be in violatio n of a clearly established right of which a reasonable person would have known. See Syl. pt. 11, A.B. , 234 W. Va. 492, 766 S.E.2d 751. The sole clearly established right asserted by the Dawsons and addressed by the circuit court below is the

13 See Taylor v. W. Virginia De p’t of Health & Human Res. , 237 W. Va. 549, 558-59, 788 S.E.2d 295, 304-05 (2016) (“For purposes of qualified immunity, this Court has noted that ‘the broad cate gories of training, supervision, and employee retention . . . easily fall within the cate gory of “discretionary” g overnmental functions.’ W. [Virginia] Reg’l Jail & Corr. Facility Auth. v. A.B. , 234 W. Va. 492, 514 , 766 S.E.2d 751, 773 (2014).”).16 infringement of a liberty intere st without appropriate procedur al due process protections. The DNR and the DNR employees contend that no liberty interest was implicated, and, even if it was, they did not vi olate the interest during the inve stigation of the PSU complaint and/or the alleged violated right was not cl early established. On the other hand, the Dawsons argue that there was an implicated lib erty interest, that inadequate due process procedural protections were in place, and that this right was clearly established at the time of the DNR and the DNR employees’ actions.

The Dawsons assert that Mr. Dawson ’s status as a state civil service employee entitled him to a constitutio nally protected liberty intere st in his good name. We apply a two-step inquiry to determine whet her an employer infringed on its employee’s liberty or property interest. First, we must determine if “the empl oyee [has] a liberty or property interest at stake[.]” W. Virginia Bd. of Educ. v. Marple , 236 W. Va. 654, 664, 783 S.E.2d 75, 85 (2015). If so, we must determine “how much process is he/she entitled [to receive] under our Due Process Clause.” Id. Accordingly, we have to first determine whether Mr. Dawson had a liberty interest at stake. We ha ve previously recognized a liberty interest in one’s good name. See Syl. pt. 2, Waite v. Civil Serv. Comm’n , 161 W. Va. 154, 241 S.E.2d 164 (1977), overruled on other grounds by W. Virginia Dep’t of Educ. v. McGraw , 239 W. Va. 192, 800 S. E.2d 230 (2017) (“The ‘lib erty interest’ includes an individual’s right to freely move about, liv e and work at his chosen vocation, without the burden of an un justified label of infamy. A liberty in terest is implicated when the State makes a charge against an individual that might seriously dama ge his standing and17 associations in his community or places a stigma or other disability on him that forecloses future employment opportunitie s.”). This Court has rece ntly further held that [a] government employer implicates its employee’s liberty interest in his/her go od name when the following elements are alleged: (1) a s tigmatizing statement; (2) which was false; (3) was published, or made accessible to the public; (4) in connection with a serious adverse employment action. When these elements are met, the employee must be afforded procedural safeguards under Artic le III, Section 10 of the West Virginia Constitution. Syl. pt. 6, W. Virginia Dept. of Educ. v. McGraw , 239 W. Va. 192, 800 S.E.2d 230 (2017). Therefore, if all four of these elements are sa tisfied, then an employee’ s liberty interest in his/her good name is implicated, and pr ocedural safeguards must be provided. 14

The DNR and the DNR empl oyees argue that at least three of the four elements are not satisfied: stigmatizing statement, publica tion, and adverse employment action. Because we agree that there was no publication, we do not need to examine the other three elements. The Dawsons allege that a publication occurred for two separate reasons: (1) Mr. Dawson would have to ab ide by mandatory disclosures regarding the

14 To the extent our cases can be constr ued to give civil service employees a liberty interest in conti nued government employment, see W. Virginia Dept. of Educ. v. McGraw , 239 W. Va. 192, 199 n.23, 800 S.E. 2d 237 n.23 (2017), those procedural protections have also been affo rded to Mr. Dawson in this case. Specifically, Mr. Dawson received numerous opportunities to present ev idence and explain himself during the three interviews given prior to his resignation an d during the Grievance Board hearing posttermination. Moreover, it does not appear that he requested any further hearing prior to his resignation that he was not provided, and the Grievance Board ultimately expunged this sustainment from his employment records, clea red his name, and reinstated him to his previous position.18 sustainment of allegations that he falsified a search warrant a ffidavit if he participated in any court proceedings in the context of his employment and (2) a disposition letter regarding the complaints was se nt to Jeremy Buckley following the sustainment. We are not persuaded that either of th ese particular situations under this set of fact s rises to the level of what constitutes a publica tion of a stigmatizing statement 15 as a matter of law in the context of implicating a liberty interest in one’s good name.

As an initial matter, in determini ng whether a stigmati zing statement was made public, it is important to examine the hi story of this Court’s case law on publication in the context of violation of a liber ty interest. In Syllabus point 2 of Waite , 161 W. Va. 154, 241 S.E.2d 164, we held that [t]he “liberty interest” in cludes an individual’s right to freely move about, live and work at his chosen vocation, without th e burden of an un justified label of infamy. A liberty in terest is implicated when the State makes a charge against an individual that might seriously damage his standing and associations in his community or places a stigma or other disability on him that forecloses future em ployment opportunities.
In Freeman v. Poling , 175 W. Va. 814, 822, 338 S.E.2d 415, 423 (1985), we stated that “[w]ithout a public disclosure of accusations against [the employee], he cannot claim that

15 On appeal, the Dawsons assert that the stigmatizing statement was the underlying charge and labeling of Mr. Dawson “as dishonest by finding that he intentionally inserted false info rmation in an affidavit for [a ] search warrant.” However, we do not need to re ach a decision on whet her this was a stigmatizing statement because we find there to be no publicatio n in this case.19 his ‘standing and associations in his community ’ have been damaged.” (citations omitted). Finally, in McGraw , 239 W. Va. at 195, 800 S.E.2d at 230, we explained that publication was one of four elements necessary to actu ally implicate a government employee’s liberty interest. Moreover, in McGraw , this Court explained that its rationale for the publication element is that if the statement is not made public, “it cannot properly form the basis for a claim that th e [employee’s] interest in his ‘good name, reputation, honor, or integrity,’ was . . . impaired.” A statement about a government employee which is kept private is not sufficiently likely to affect the employee’s good name outside his/her work-world and thus form a proper basis for a liberty interest violation.
McGraw , 239 W. Va. at 201, 800 S.E.2d at 239 (a lteration in original) (footnote omitted). Accordingly, as demonstrated by the above, the heart of the infri ngement of a liberty interest in one’s good name is whether ther e was dissemination of a stigmatizing statement that adversely affects an indivi dual’s prospective employment.

We now need to examin e the Dawsons’ two assertions of publication using the above as a guidepost. The Dawsons first a ssert that “a finding th at a law enforcement officer falsified an affidav it unmistakably falls within the mandatory disclosure requirements of Brady v. Maryland , 373 U.S. [83, 83 S. Ct. 11 94, 10 L. Ed. 2d 215] (1963), Giglio v. United States , 405 U.S. 150[, 92 S. Ct. 763, 31 L. Ed. 2d 104] (1972), and their progeny whenever Dawson testif ied in later criminal cases.” The Dawsons further contend that Mr. Dawson was “actually required to make such disclosures to cr iminal defendants[,]20 and as such, his sustainment was publicized.” 16 This assertion rests solely on Mr. Dawson’s own compelled self-publication of his sustainment of the charges.

The Dawsons cite to no legal auth ority for their proposition that Mr. Dawson’s own statements constitute publicati on. While our Court has not addressed the issue of compelled self-publication, federa l courts in West Virginia have. In Rice v. Community Health Association , 40 F. Supp. 2d 783, 786 (S.D.W. Va. 1998), the plaintiff raised a claim of compelled self-publication. Id. The Rice court noted that “West Virginia courts have not addressed or recognized this issue of compelled self-publication” but that the Fourth Circuit Court of App eals had examined this issue. Id. After analyzing the Fourth Circuit’s opinion, the Rice court rejected the “theory of defamation through compelled self-publication.” Id. Accord Rice v. Rose & Atkinson , 176 F. Supp. 2d 585, 594 (S.D.W. Va. 2001), aff’d , 36 F. App’x 97 (4th Cir. 2 002) (“This Court previously rejected Plaintiff’s theory of defamation through compelled self-publication as a matter of law.” (citation omitted)). See also Prater v. Henry Schein, Inc. , 621 F. Supp . 2d 363, 371 (S.D.W. Va. 2008) (“If a West Virginia court were to address compelled self-publication, this Court is far from convinced th at it would adopt the doctrine.”).

16 We note that the deposition testim ony that Mr. Dawson cites to only indicates that Mr. Dawson told two attorneys th at were working on criminal cases that he had this sustainment. There is no indication that he actually testified in court regarding his sustainment. Moreover, since that time the Grievance Board reinstated Mr. Dawson and expunged his entire record relatin g to these events.21 Furthermore, other jurisdictions have t horoughly considered this notion. The majority of the cases that have discussed th e doctrine of compelled self-publication do so in the common law defamation context. See, e.g. , Lewis v. Equitable Life Assurance Soc’y , 389 N.W.2d 876, 88 6-88 (Minn. 1986). 17 That is not the case be fore us now, and even if it were, the vast majority of courts have d eclined to utilize or adopt this doctrine. See, e.g. , Rice v. Nova Biomedical Corp. , 38 F.3d 909, 912 (7th Cir. 1994) (“Since [compelled selfdefamation] is a minority view, and a very questionable one—it makes it impossible for an employer to communicate his grounds for disc harging an employee to the employee even confidentially without incurri ng a grave risk of being sued for defamation[.]”). 18

Additionally, even in the minority of jurisdictions that have adopted the doctrine of compelled self-publication, courts have distinguished utilizing it in the liberty interest context. For example, in Phillips v. State , 725 N.W.2d 778, 7 85 (Minn. Ct. App. 2007), the court noted that “M innesota has recognized the doctrine of compelled selfpublication, but only as it relates to defama tion actions.” (citation omitted). However, the Phillips court held that, “in Minnesota, the doctr ine of compelled self-publication as it relates to separation from employment is li mited to defamation actions and does not

17 However, after Lewis was decided, the Minnesota legislature limited the Lewis court’s holding. See Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 580 n.1 (Tex. 2017) citing Minn. Stat. Ann. § 181.933(2).

18 Additionally, “[n]umerous federal c ourts applying state law have also rejected a cause of action for compelled self-defamation.” Emery v. Ne. Illinois Reg’l Commuter R.R. Corp. , 880 N.E.2d 1002, 1011 (Ill. App. 2007) (citing cases).22 support a claim alleging violatio n of a liberty interest.” Id. (citation omitted). The Phillips court was persuaded by the federal courts re asoning “that [the] doctrine of compelled selfpublication ‘is inconsistent with the fundame ntal principle of m itigation of damages’ because likelihood of self-publi cation is speculative and applyi ng [the] doctrine in [a] due process context would encourage plaintiffs to unnecessarily pu blish to increase damages[.]” Id. (quoting Olivieri v. Rodriguez , 122 F.3d 406, 408-09 (7th Cir. 1997)). 19 Accordingly, as a matter of law, we are not persuaded that Mr. Dawson’s alleged compelled self-publication constitutes a publication that woul d infringe upon his liberty interest in his own good name.

Second, the Dawsons assert that th e DNR and its employees “sent Jeremy Buckley, a member of the public, a dispositio n letter advising that his complaints against [Mr.] Dawson had been sustained.” 20 The Dawsons further assert that the DNR and its

19 The Seventh Circuit also noted th at the doctrine of compelled selfpublication is “largely discredited” and that “[ m]ost states . . . reject self-defamation as a basis for a tort claim, and it would be odd for fe deral constitutional law to embrace this questionable doctrine.” Olivieri v. Rodriguez , 122 F.3d 406, 40 8-09 (7th Cir. 1997).

20 The entirety of the letter read as follows: Dear Mr. Buckley: I have received the results of the Internal Affairs Unit Investigation in the matter of the conduct of NRPO Steven Dawson. This investigation wa s initiated as a result of the complaint filed by you, which was received on January 5, 2015.23 employees “did not request for the disposition to remain confidentia l.” Once again, the Dawsons cite to absolutely no legal authority for th e proposition that this particular conduct constitutes a publication regarding a violation of one’ s liberty interest in his good name.

While this Court has not yet defined particular conduct that demonstrates exactly what constitutes a publication in the cont ext of an infringement of a liberty interest in one’s good name, a review of other jurisdic tions and how they have examined the issue of publication is instructive. Other courts have noted that “[t]he distinction between mere defamation and an infringement of liberty of oc cupation is merely one of degree, especially when the defamation relates to a person’s fitness for a particular type of employment, but it is a distinction to which the courts are committed.” Olivieri , 122 F.3d at 408. See also Aitken v. Reed , 949 P.2d 441, 447-48 (Wash. App. 1998) (“The constitutional liberty interest in one’s good name is different from a general de famation claim—the publication

(. . . continued) A thorough review of the facts surrounding the incident has supported your allegation. The complaint has been closed as sustained, and the appropria te action has been taken. If you have any questions, you may contact me at (XXX) XXX-XXX. BY DIRECTION OF THE CHIEF COLONEL JERRY B. JENKINS Major B.C. DeBord, Coordinator LES Internal Investig ations and Inquiries24 must prevent one from obtaining future employm ent, not merely damage one’s reputation. Ratliff v. City of Milwaukee , 795 F.2d 612, 627 (7th Cir.1986); Waddell v. Forney , 108 F.3d 889, 896 (8th Ci r.1997).”). In other words, while the issues of defamation and infringement of employment liberty interest s are similar in nature, each has its own distinctions that must be ke pt in mind and that what might constitute a publication is different for defamation than for a violation of a liberty interest. Essentially, publication in the liberty interest contex t is a higher burden than in the defamation context. See Potter v. Bd. of Regents of the Univ. of Nebraska , 844 N.W.2d 741, 751 (Neb. 2014) (footnote omitted) (“[M]ore is required to allege the necessary level of defamation and dissemination in a stigma-plus due pr ocess claim than the ki nd of damage to reputation sufficient for a simple tort defamation claim.”). See also Ratliff , 795 F.2d at 627 (“In a common law defamation action, any publicati on of false and defamatory ma terial might be sufficient, but in the context of the liberty interest protected by the Fourteenth Amendment, [the plaintiff] was required to show broader publication.”).

Notably, other courts have found it difficult to pinpoint what exactly constitutes a publication in the context of a violation of a liberty interest: The purpose of the requirement is to limit a constitutional claim to those instances where the stigmatizing charges made in the course of discharge have been or are likely to be disseminated widely enough to damage the discharged employee’s standing in the comm unity or foreclose future job opportunities. In determining the degree of dissemination that satisfies the “public disclosure” requirement, we must look to the potential effect of dissemination on the employee’s standing in the community and the foreclosure of job25 opportunities. As a result, what is sufficient to constitute “public disclosure” will vary w ith the circumstances of each case. Brandt v. Bd. of Co-op. Educ. Servs., Third Supervisory Dist., Suffolk Cty., N.Y. , 820 F.2d 41, 44 (2d Cir. 1987).

Here, the record before us demonstr ates no evidence that the act of giving this vague, one-page letter to the person who made the initial complaint foreclosed any employment opportunities that may have otherwise been available to Mr. Dawson. 21 The substance of the letter in and of itself is only f our sentences that essentially state that some undescribed allegation has been sustained and that some un described appropriate action has been taken. The disposition letter does not contain any direct statement that the allegation sustained concerned falsifying a search warrant affidavit, and there were no other documents attached, let alone documents th at would show what allegation had been sustained. 22 Moreover, there are no allegations or evidence in the reco rd that documents were placed in Mr. Dawson’s personnel file that were detrimental to him. 23 There also are

21 In fact, during his deposition, Mr. Da wson admitted that it is important for an agency that has completed an investigation “to let the pe rson who complained know the resolution of the complain t[.]” Furthermore, General Order No. 5 § 2.4 provid es that “[t]he chief, or his/her designee, shall notify all conc erned parties, as dete rmined by the chief, upon completion of the internal investigation.”

22 Additionally, Jeremey Buckley’s co mplaint alleged several allegations, not just that Mr. Dawson falsified a search warrant affidavit. This letter is not clear as to which allegation has even been sustained.

23 See Sciolino v. City of Newport News, Va. , 480 F.3d 642, 650 (4th Cir. 2007) (“A plaintiff need not allege that his file has actually been disseminated to particular26 no allegations or evidence in the record that demonstrate that the underlying investigative documents, reports, or polygraph results were ever disseminated to anyone; 24 that the DNR or the DNR employees gave this letter to any prospective employers or that any prospective employers even knew abou t the letter’s existence; 25 that any prospective employers spoke to the DNR or the DNR employees regard ing any employment opp ortunities or the

prospective employers. But, he must allege more than that his file ‘may be available’ to them. We thus hold that an employee must allege (and ultim ately prove) a likelihood that prospective employers (i.e., employers to whom he will apply) or the public at large will inspect the file.”). See also Brandt v. Bd. of Co-op. Educ. Servs., Third Supervisory Dist., Suffolk Cty., N.Y. , 820 F.2d 41, 45 (2d Cir. 1987) (“Courts of appeals for other circuits have similarly concluded that the public disclosure requirement has been satisfied where the stigmatizing charges are placed in the discha rged employee’s personnel file and are likely to be disclosed to prospective employers.” (citations omitted)).

24 See Buhr v. Buffalo P ub. Sch. Dist. No. 38 , 509 F.2d 1196, 1199 (8th Cir. 1974) (“[W]here reasons for nonr enewal are announced publicly or are incorporated into a record made available to prospective empl oyers, such reasons may indeed affect the dischargee’s chances of securing another job.”).

25 Mr. Dawson testified that he has not applied for any other employment since he resigned from the DNR after the polygr aph examination on April 1, 2015. He further testified that he has been offe red several employmen t positions since the sustainment, including chief deputy in Ha rdy County, assistant chief of police in Moorefield, a plainclothes investigator, and a private investigator. Mr. Dawson testified that he voluntarily told th ese individuals offering employment about the PSU sustainment and that there were some that still offered him the employment. However, he told each employer that he could not accep t the offers because of the Giglio disclosures. He further stated that he does not apply for any employ ment because he would have to disclose his sustainment. Moreover, Mr. Dawson testified th at he has not tried to contact anyone for a position since the Grievance Board ruling cl earing his name of all allegations and expunging all negative statements and documents retained by the DNR regarding this PSU sustainment.27 sustainment; 26 or that the letter was sent to a news media outlet or public forum. 27 Thus, we find under the particular facts and na rrow circumstances of this case that the dissemination of the disposition letter to Jeremey Buckley, th e initial complainant, does not constitute publication. Because one essentia l element, publication, is not satisfied, Mr. Dawson cannot show that his lib erty interest was implicated. 28 In turn, he was not entitled to procedural safeguards under the Du e Process Clause in this regard. 29 Accordingly, we reverse the circuit court’s denial of summary judgment as to whether there was a violation of a clearly established right, and find the DNR and the DNR employees are entitled to

26 See Fontana v. Comm’r of Metro. Dist. Comm’n , 606 N.E.2d 1343, 1346 (Mass. App. Ct. 1993) (“A liber ty interest arises where, as here, a public employee is discharged because of stigmatiz ing charges alleged by the em ployee to be false and which are disseminated to the public or are likely to be communicated to prospective employers.” (citations omitted)).

27 See Ventetuolo v. Burke , 596 F.2d 476, 484 (1st Cir. 1979) (“Moreover, as the district court noted, thes e cases that found a liberty interest infringement due to disclosure usually involved public meetings or the news media. See, e. g. , Owen v. City of Independence , 560 F.2d 925, 936-37 (8th Cir. 1977), vacated and remanded on other grounds , 438 U.S. 902, 98 S. Ct. 3 118, 57 L.Ed.2 d 1145 (1978); Staton v. Mayes , 552 F.2d 908, 911 n.6 (10th Cir.), cert. denied , 434 U.S. 907, 98 S. Ct . 309, 54 L.Ed.2d 195 (1977) (public meeting with represen tatives of press present); Huntley v. Community School Board of Brooklyn , 543 F.2d 979, 983 (2d Cir. 1976), Cert. denied , 430 U.S. 929, 97 S. Ct. 1547, 51 L.Ed.2d 773 (1977) (public meeting); David Gonzalez v. Calero , 440 F.Supp. 989, 996 (D.C.P.R.1977) (new spaper publicity); Galaway v. Lawson , supra, 438 F.Supp. at 974 (newspaper publicity).”).

28 Because all four elements must be sa tisfied, when one element is not met we need not further discuss whether the other three elements were met . See Syl. pt. 6, McGraw , 239 W. Va. 192, 800 S.E.2d 230.

29 We also note that this finding is lim ited to the context of infringement of a liberty interest, and this Court makes no de cision on whether a publication occurred for any other cause of action.28 partial summary judgment and have established their entitlement to qu alified immunity as to this first method.

B. Fraudulent, Malicious, or Oppressive Conduct Because the two methods for establishi ng that a discretionary governmental act is subject to qualified immunity are stated in the alternative, our determination that the first element is satisfied necessitates that we examine whether the Da wsons’ claims might overcome immunity as to the second element. 30 Accordingly, we must examine whether there are genuine issues of material fact conc erning whether these acts or omissions of the DNR and the DNR employees were otherwise fra udulent, malicious, or oppressive. In the instant matter, the DNR and th e DNR employees assert that the circuit court incorrectly found that there is a genuine issue regarding a material fact as to whether the conduct of

30 The DNR and the DNR employees further state that “[t]he only constitutional right identified by the [circuit court] was the liberty intere st associated with [the Dawsons’] infringement of a liberty intere st without due process of law claim.” They attempt to argue that the claims of defamation, false light, r eckless infliction of emotional distress, and misrepresentation must be dismissed because they, themselves, do not implicate any violation of a c onstitutional or statutory right. However, this argument is misplaced because each of thes e claims are also based upon the contention that the DNR and the DNR employees substantiated a fals e complaint by conducting a fundamentally flawed investigation borne out of hostility and reprisal. As such , this could also satisfy the alternative requirement test of fraudulent, ma licious, or oppressive conduct and does not necessitate a dismissal. See Taylor v. W. Virginia Dep’t of Health & Human Res ., 237 W. Va. 549, 559, 788 S.E.2d 2 95, 305 (2016) (“Moreover, petitioners’ false light invasion of privacy claims are based upon their conten tion that respondents’ investigation and the ensuing search warrant were unsubstantiated ac cusations of criminal activity borne out of reprisal—plainly satisfying the requirement of ‘fraudulent, malicious, or oppressive’ activity.”).29 the DNR and the DNR employees was malicious and/or oppressive. On the contrary, the Dawsons allege that “[i]n consideration of th e record evidence and permissible inferences to be drawn therefrom, the circ uit court correctly concluded that genuine issues of material fact exist regarding whether the Petitioners’ ac tions were malicious or oppressive.” We agree with the Dawsons.

Throughout the history of our qualif ied immunity case law, this Court has continually and consistently he ld that one way to defeat qua lified immunity is by alleging that the acts or omissions of a public official or employee were fraudulent, malicious, or oppressive. See, e.g. , Syl., in part, State v. Chase Sec., Inc. , 188 W. Va. 356, 424 S.E.2d 591 (1992) (“There is no immunity for an ex ecutive official whose acts are fraudulent, malicious, or otherwise oppressive. To the extent that State ex rel. Boone National Bank of Madison v. Manns , 126 W. Va. 643, 29 S.E. 2d 621 (1944), is contra ry, it is overruled.”). Accord Syl. pt. 8, Parkulo v. W. Virginia Bd. of Prob. & Parole , 199 W. Va. 161, 483 S.E.2d 507 (1996) (same); Hutchison , 198 W. Va. at 149, 479 S.E.2d at 659 (same); Syl. pt. 3, Clark , 195 W. Va. 272, 465 S.E.2d 374 (same). See also Syl. pt. 12, in part, A.B. , 234 W. Va. 492, 76 6 S.E.2d 751 (“If the plaintiff . . . can otherwise id entify fraudulent, malicious, or oppressive acts committed by [the State, its agencies, of ficials, or employees] , the court must then determine wh ether such acts or omissions were within the scope of the public official or employee’s duties, authorit y, and/or employment.” (emphasis added)). Moreover, in Hutchison , this Court essentially equated “m alicious” conduct to conduct that30 is “wilful [sic] or intentional wrongdoing.” 198 W. Va. at 149, 479 S.E.2d at 659. 31 Accordingly, it is clear that our case law has continuously recognized that a state actor’s malicious conduct will overcome qualif ied immunity protections.

We now turn to the facts of the case sub judice . Because we address this issue in the context of summa ry judgment, we express no view on the merits of the Dawsons’ underlying claims. Th is Court’s sole purpose is to determine whether there are genuine issues of material fact that would preclude summary judgment. Furthermore, we have previously found that, “[p]articularly in complex cases . . . where issues involving motive and intent are present, summary judgment should no t be utilized as a method of resolution.” Kelley , 221 W. Va. at 510, 6 55 S.E.2d at 532 (cita tions and quotations omitted). Additionally, this C ourt has noted that the determ ination of whether a state actor’s conduct was malicious is a “question[] for the fact-finder.” Maston , 236 W. Va. at 508 n.15, 781 S.E.2d at 956 n.15. See also Taylor v. W. Virgin ia Dep’t of Health & Human

31 Furthermore, other jurisdictions have construed the term “malice” similarly. For example, in Shoemaker v. Smith , 353 Md. 143, 146, 725 A.2d 549, 551 (1999), the Maryland Court of Appeals de fined what constituted “malice” under the qualified immunity doctrine holding that an “actual malice” sta ndard would apply—in other words, was the conduct of the state actor “motivated by ill will, by an improper motive, or by an affirmative in tent to [cause injury].” Id. at 164, 725 A.2d at 560. This “motive or animus may exis t even when the conduct is objectively reasonable.” Id. Additionally, Georgia courts also employ a similar standard. See, e.g. , Russell v. Barrett , 296 Ga. App. 114, 118, 673 S.E.2d 623, 627 (2009) (“However, the 1991 amendment specifies the actions that remove the prot ection of immunity—those done with actual malice or with actual intent to cause injury . Our Supreme Court has construed the term ‘“actual malice” [as requiring] a deliberate in tention to do wrong.’” (emphasis added) (citation omitted)).31 Res. , 237 W. Va. 549, 559, 788 S. E.2d 295, 305 (2016) (“[T]his case contains a pervasive factual dispute about each of the parties’ motivations, precluding entry of summary judgment on qualified immunity grounds.”).

In the present matter, the circuit court posed the following question: Based upon the numerous, undisputed and clear violations of General Order No. 5 throughout the internal investigation process in light of the magnitude and serious nature of the charge against [Mr.] Dawson, were the acts or omissions of the [DNR and th e DNR employees] merely an oversight or negligence? Or, do conflicting or permissible inferences from the reco rd exist to permit a trier of fact to determine such conduct by the [DNR and the DNR employees] as malicious or oppressive? The circuit court then found that it would be required to weigh the evidence and make credibility determinations to de cide whether the conduct was malicious or oppressive and that it would be improper for the circuit court to do so at the summary judgment stage. We
agree.

Here, the DNR and the DNR employees “argue that no evidence of malice or oppressive conduct exists in the record evidence.” However, as the circuit court correctly noted, there is evidence in the record that could lead a jury to infer a malicious or oppressive motive. This evidence includes, bu t is not limited to: (1) the failure to review the actual search warrant that was at issue in the underlying investigation; (2) the potential numerous violations of General Order No . 5 over the course of the underlying32 investigation; 32 (3) the failure to secure the Bushnell camera at issue and its subsequent destruction; (4) the failure to interview the owner of the S UV that was also photographed in the WMA; (5) Sgt. Antolin i’s characterization of several critical facts about the polygraph examination; (6) Maj. DeBord’s failure to make a separate recommendation concerning the investigation as he was required to do pursuant to General Order No. 5; (7) the sustainment of the compla int against only Mr. Dawson a nd not the other officers; and (8) the general allegations of hostility toward s Mr. Dawson when he enlisted with the DNR following his retirement from the West Virginia State Po lice. Although these facts themselves may be undisputed, differing c onclusions and inferences may be drawn therefrom. See Williams , 194 W. Va. at 59, 459 S.E.2d at 336 (c itation omitted) (finding that summary judgment should “be denied ‘even where ther e is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom’”).

32 The DNR and the DNR employees, relying on Crouch v. Gillispie , 240 W. Va. 229, 809 S.E.2d 699 (2018), argue that evidence of internal policy violations are not material to a qualified immunity analysis and, therefore, cannot be relied upon to examine whether a state actor has acted maliciously . This argument is misplaced. The Crouch Court did not examine whether a state actor’s conduct was malicious in any capacity. Rather the focus of Crouch was whether internal policy viola tions rose to the level of being violations of a clearly established right. Ultimately, the Crouch Court held: [w]e are wary of allowing a party to overcome qualified immunity by cherry-picking a violation of any internal guideline irrespective of whether the alleged violation bears any causal relation to the ultim ate injury. Ther efore, in the absence of allegations tying th e alleged violations to [the] death, we are unable to view this case as more than an abstract assertion that DHHR could have i nvestigated more thoroughly. Crouch , 240 W. Va. at 237, 809 S.E.2d at 707 (footnote omitted).33 Therefore, the circuit court corre ctly found that there are genui ne issues of material fact regarding whether the actions of the DNR and the DNR employees were malicious and oppressive, and that these are questions for the fact-finder. 33

C. Scope of Employment Because we have found that the Da wsons’ claims might overcome the DNR and the DNR employees’ assertion of qualified imm unity as to the second method, i.e. that the acts and omissions of the DNR and the DN R employees were fraudulent, malicious, or oppressive, we must next examine whether a reasonable juror could find that the DNR employees’ acts or omissions were outside of th eir official capacity as DNR officers. As we have previously held, [i]f the plaintiff identifies a clearly established right or law which has been violated by the acts or omissions of the State, its agencies, officials, or employees, or can otherwise identify fraudulent, malicious, or oppressive acts committed by such official or employee, th e court must determine whether such acts or omissions were w ithin the scope of the public official or employee’s duties, authority, and/or employment.

33 The extent to which these facts may be subjective is of no moment, and we are unpersuaded by the DNR and the DNR empl oyees’ argument that courts must always and only apply an objective anal ysis in the context of qua lified immunity. The DNR and the DNR employees rely on Robinson v. Pack , 223 W. Va. 828, 679 S.E.2d 660 (2009), for its assertion. This reliance is misplaced. A complete reading of Robinson provides that “[t]he subjective motivations of a police offi cer are not relevant to a determination of whether qualified immunity exists in connection with allegations of an unreasonable search and seizure, an unlawful detention, or th e use of excessive force.” Syl. pt. 4, Robinson v. Pack , 223 W. Va. 828, 679 S.E.2d 660. The Robinson Court made it very clear that it was deciding only whether a subjective analysis was appropriate in the context of evaluating an officer’s conduct regarding three causes of acti on: (1) unreasonable search and seizure, (2) unlawful detention, and (3) excessive force. Id. This is not the case before us now.34 Syl. pt. 12, in part, A.B. , 234 W. Va. 492, 766 S.E. 2d 751. This Court has further held that, “[t]o the extent that such offi cial or employee is de termined to have been acting outside of the scope of his duties, authority, and/or em ployment, the State and/or its agencies are immune from vicarious liability, but the pub lic employee or official is not entitled to immunity[.]” Id. However, “[i]f the public official or employee was acting within the scope of his duties, authority, and/or employment , the State and/or its agencies may be held liable for such acts or omissi ons under the doctrine of respondeat superior along with the public official or employee.” Id.

In the present matter, the DNR employees essentially assert that the actions of Col. Jenkins, Maj. DeBord, and Sgt. Antolin i were all specifically or impliedly directed by the employer, and, therefore, within their respective scopes of employment. However, the Dawsons argue that the circuit court correc tly determined that th ere are genuine issues of material fact as to wh ether the DNR employees were acting within their respective scopes of employment and that this issu e must be decided by the fact-finder.

Whether an employee was acting within the scope of his employment “may or may not turn on disputed issues of material fact.” A.B. , 234 W. Va. at 508, 766 S.E.2d at 767. Furthermore, in A.B. this Court applied general principles of agency in the qualified immunity context. Id. at 508, 766 S.E.2d at 767. Spec ifically, as this Court held in Syllabus Point four of Griffith v. George Transfer and Rigging, Inc. , 157 W. Va. 316, 201 S. E.2d 281 (1973), whether35 an agent is “acting within the scope of his employment and about his employer’s business . . . , is generally a question of fact for the jury and a jury determination on that point will not be set aside unless clearly wrong .” (emphasis added). See also Syl. Pt. 1, in part, Laslo v. Griffith , 143 W. Va. 469, 102 S.E.2d 894 (1958) (“When the facts relied upon to establish the existence of an agency ar e undisputed, and conflicting inferences can not be drawn fro m such facts, the question of the existence of the agency is one of law for the court[.]”); Cremeans v. Maynard , 162 W. Va. 74, 86, 246 S.E.2d 253, 259 (1978) (stating where evidence “conclusively shows lack of authority and where conflicting inferences cannot be drawn” the court may decide issues of agency).
A.B. , 234 W. Va. at 509, 766 S.E.2d at 768. We have further noted that “‘[s]cope of employment’ is a relative term and requires a consideration of surrounding circumstances including the character of the employment, th e nature of the wrongf ul deed, the time and place of its commission and th e purpose of the act.” Griffith , 157 W. Va. at 326, 201 S.E.2d
at 288.

Here, the particular function being carried out by the DNR employees, i.e. investigation of Mr. Dawson’ s conduct, was certainly within the scope of their employment. However, we find the manner in which they carried out this function, including violating multiple internal rules; Col. Jenkins’ approval of the violations of General Order No. 5; discussions with Mr. Da wson on personal time; failure to exonerate Mr. Dawson; Maj. DeBord’s failure to ma ke his own recommendations; dissemination of the disposition letter which conceivably inaccura tely implied that all complaint allegations were sustained against Mr. Dawson; insist ence on an improper polygraph examination; failure to secure certain evidence, review certain evidence, and interview certain witnesses;36 sustainment of the complaint against only Mr. Dawson and not the other officers; and Sgt. Antolini’s alleged hostility to wards Mr. Dawson after Mr. Dawson became employed by the DNR following his employment with the West Virginia State Police raise conflicting inferences and questions of fact as to wh ether such conduct was within the scope of employment such that a jury s hould determine this issue. Accordingly, the circuit court correctly found that there are genuine issues of material fact regarding whether the actions of the DNR employees were acting within their respective scopes of employment.

D. Timing of Motion fo r Summary Judgment Lastly, the DNR and the DNR employees contend that the circuit court erred to the extent it based its denial of their motion for summary judgment, which was filed after the close of discovery, upon its finding that the motion was untimely and inconsistent with Matson v. Wagner , 236 W. Va. 488, 78 1 S.E.2d 936 (2015), which encourages a ruling on qualified immunity early in the proceedings. While the circuit court did include a very general finding in its order that the DNR an d the DNR employees did not file this motion until two years after the filing of the complaint (which is a corre ct statement), it clearly did not rely solely on the timing of the motion in making its ruling. The circuit court’s fortyfour page order includes a detailed analysis re garding the other three issues discussed above and found that the genuine is sues of material fact preclude summary judgment. Specifically, the circuit court ruled: In light of the foregoing, and being cognizant that this Court’s function at the summary judgment [stage] is not to weigh the evidence and/or determin e the truth of the matter but37 to determine whether there are genuine issues for trial, the Court FINDS and CONCLUDES that the record in this matter is laden with genuine issues a nd questions of material fact underlying the immunity determin ation – those that have the capacity to sway the outcome of the litigation under applicable law – which prohibit this Cour t from summarily disposing of the [DNR and the DNR em ployees’] claims. Accordingly, we decline to reverse the circui t court’s order based up on this issue.

IV. CONCLUSION For the reasons previously stated, we affi rm, in part; and reve rse, in part the circuit court’s order denying summary judgmen t on the ground of qualified immunity. We further direct the circuit court to enter an order granting partial su mmary judgment to the DNR and the DNR employees as directed by the foregoing discussion, and remand this matter to the circuit court for further pro ceedings consistent with this opinion. Affirmed, in part; Reversed, in part; and Remanded.