STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Charles Lee Burkhamer, Jr., FILED 

Plaintiff Below, Petitioner May 30, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 13-0930 (Fayette County 12-C-289) OF WEST VIRGINIA 

City of Montgomery, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Charles Lee Burkhamer, Jr., by counsel Michael T. Clifford and Richelle K. 

Garlow, appeals the July 18, 2013, order of the Circuit Court of Fayette County granting 

summary judgment in favor of Respondent City of Montgomery regarding petitioner’s claim that 

respondent failed to hire him in contravention of public policy. Respondent, by counsel John L. 

MacCorkle, filed a response. 

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

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

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

The facts as alleged by petitioner in his complaint are as follows: At all times relevant, 

petitioner was employed as a police officer for the City of Smithers, West Virginia. He filed a 

complaint in the Circuit Court of Fayette County against respondent alleging that in February of 

2012, he filed an application for employment as a police officer with respondent. He further 

alleged that he discussed his application with John Knauff, respondent’s police chief, who told 

petitioner that he could not be hired as a police officer because he had once arrested respondent’s 

Street Commissioner, Billy Huddleston, for driving under the influence (“DUI”),1 and that “to 

hire [petitioner] would be like waiving [sic] the same in the Street Commissioner’s face.” 

Petitioner alleged that, thereafter, Police Chief Knauff approached him on the street and 

advised him that he understood that [petitioner] was preparing to file a law suit 

against the defendant City, but that petitioner didn’t need to file such a suit, as 

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According to petitioner, Huddleston ultimately pled guilty to second offense DUI. 

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Kauff would hire him just as soon as Lt. James Ivy was removed from the 

payroll.2 

Petitioner alleged that he testified favorably for Lt. Ivy as a subpoenaed witness at Ivy’s 

administrative hearing on July 28, 2012; that, thereafter, petitioner believed that Lt. Ivy was no 

longer employed by respondent; and that, when petitioner eventually reapplied for employment 

with respondent, he did not receive a response to his application. 

Petitioner argues that respondent refused to hire him because he arrested respondent’s 

Street Commissioner for DUI and provided testimony favorable to Lt. Ivy during his 

administrative hearing. In his complaint, Petitioner alleged a heretofore unrecognized claim of 

“failure to hire in contravention of public policy,” relying on Harless v. First National Bank of 

Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978) and Toth v. Board of Parks and Recreation 

Commissioners, 215 W.Va. 51, 593 S.E.2d 576 (2003). Respondent filed an answer, in which it 

denied the vast majority of the allegations set forth in the complaint.3 On or about April 3, 2013, 

respondent filed a motion for summary judgment, to which petitioner replied. By order entered 

July 18, 2013, the circuit court granted respondent’s motion for summary judgment, concluding 

that, “as a matter of law, a ‘failure to hire’ cause of action has not been recognized by statute or 

by a decision of the Supreme Court of Appeals. Thus, permitting this matter to proceed would 

not be in the interests of judicial economy or efficiency.” This appeal followed. 

On appeal, we review a summary judgment order under a de novo standard of review. 

Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Summary judgment should 

be granted 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. Id. at syl. pt. 2; Syl. Pt. 

3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). 

Petitioner’s sole assignment of error is that the circuit court erred in granting 

respondent’s motion for summary judgment and in failing to recognize his claim for failure to 

hire in contravention of substantial public policy. Petitioner acknowledges that such a claim has 

never before been recognized in West Virginia. However, he argues that this Court recognized 

the possibility of such a claim in Toth, in which we were asked to recognize “a cause of action 

against a potential employer for failure to hire allegedly based upon the applicant’s history of 

suing a former employer for wrongful discharge.” 215 W.Va. at 52, 593 S.E.2d at 577. In Toth, 

plaintiff argued that “the circuit court erred in granting summary judgment as to her 

constitutional tort claim alleging that [defendant] failed to hire her because she had engaged in 

conduct that is protected by Article III, §§ 16 [right to apply for redress of grievances] and 17 

2

According to petitioner, Ivy was employed by respondent and placed on administrative 

leave pending a hearing before the Police Oversight Commission. 

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In its answer, respondent, paragraph by paragraph, addressed each allegation of the 

complaint. Among other things, respondent denied the factual allegations relating to petitioner’s 

conversations with Police Chief Kauff, petitioner’s applications for employment, and the denial 

of same. Petitioner’s repeated assertions in his brief to this Court that the facts of this case are 

undisputed are inaccurate. 

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[right to access the courts] of the West Virginia Constitution.” 215 W.Va. at 55, 593 S.E.2d at 

580. This Court indicated that there is authority for recognizing a cause of action for a “failure to 

hire that was based on an applicant’s exercise of First Amendment rights . . . involv[ing] free 

speech and associational rights.” Id. (citing Rutan v. Republican Party of Ill., 497 U.S. 62 

(1990)). However, ultimately, in Toth, we noted that there was no legal authority “extending this 

cause of action to encompass a failure to hire claim arising from state or federal guarantees of 

free access to the courts and the right to petition the government for redress of grievances.” 215 

W.Va. at 56, 593 S.E.2d at 581. The Court determined that it “need not decide whether to forge 

this new ground” because plaintiff’s proof was simply insufficient to overcome summary 

judgment. Id. 

In the present appeal, petitioner argues that respondent refused to hire him because he 

arrested respondent’s Street Commissioner for DUI and provided testimony favorable to Lt. Ivy 

during his administrative hearing. Petitioner argues that he should have been able to perform his 

job of keeping impaired drivers off the road and to testify truthfully about a fellow officer’s 

performance without fear of being denied employment for doing so.4 In a very cursory manner, 

and without articulating a clear legal analysis, petitioner asserts that his “refusal to hire” claim 

involves the same “rationale and public policy concerns” as those set forth in Harless, in which 

this Court first recognized that an employee has a claim for retaliatory discharge where an 

employer’s motivation for discharging employee contravenes some substantial public policy 

principle. 162 W.Va. at 124, 246 S.E.2d at 275. Petitioner’s brief includes neither a discussion 

nor analysis of Harless, and fails to include any other legal authority tending to support his 

argument that West Virginia should recognize a failure to hire claim and that the circuit court 

committed error in granting respondent’s motion for summary judgment. Accordingly, we find 

no error in the circuit court’s order.5 

For the foregoing reasons, we affirm. 

Affirmed. 

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Petitioner also mentions that respondent’s failure to hire him impinged on his First 

Amendment right to free speech, as recognized in Rutan. Given that petitioner raises this 

argument for the first time on appeal—and does so half-heartedly at best—it will not be 

considered herein. See State v. Lilly, 194 W.Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) 

(stating that “casual mention of an issue in a brief is cursory treatment insufficient to preserve the 

issue on appeal”). 

5

See State, Dept. of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 

833 (1995) (stating that “[a] skeletal ‘argument,’ really nothing more than an assertion, does not 

preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.”) (Internal 

citations omitted)). 

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ISSUED: May 30, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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