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CHARLESTON -- A federal lawsuit brought by several state employees against all three branches of West Virginia government, alleging their wages were shorted, was tossed Friday.
U.S. District Judge John Bailey ruled Friday that the lawsuit brought by Heather Morris, Pamela Stumpf, Lula V. Dickerson, Lisa Wilkinson and Kathryn A. Bradley be dismissed without prejudice, meaning the case can be filed again. Bailey also dismissed the case brought by Stacey Facemire with prejudice, meaning it can't be re-filed.
The state employees, represented by Wheeling attorney Teresa Toriseva, allege that when the state went from a bi-monthly 24-week pay cycle to a bi-weekly 26-week pay cycle. While they allege that they lost as much as 1.75 percent from their checks, state elected officials were exempt from these changes.
Toriseva filed suit against Gov. Jim Justice, current State Auditor J.B. McCuskey, State Treasurer John Perdue, Secretary of State Mac Warner, Attorney General Patrick Morrisey, and the West Virginia Legislature's Commission on Special Investigations. The suit filed Dec. 21, 2019, in the U.S. District Court for the Northern District of West Virginia in Wheeling, came after Kanawha County Circuit Judge Thomas Evans issued a summary judgment in favor of the state on Dec. 4, 2019. Facemire was not part of the original state lawsuit.
Attorney Ann Ballard with the law firm of Pullin, Fowler, Flanagan, Brown and Poe, filed the motion to dismiss on behalf of the state agencies on April 6. In his order, Bailey noted that the state employees did not appeal the decision of Evans to the West Virginia Supreme Court of Appeals, instead choosing to go directly to federal court.
In their response to the state's motion to dismiss, the state employees argue they are not asking the federal court to overrule Evans' decision. Bailey disputed their logic.
"This Court finds that the plaintiffs' disavowals ring hollow," Bailey wrote. "An examination of the arguments made and positions taken demonstrate that the plaintiffs are certainly seeking to reverse or modify the state decision."
Bailey points to the court filings of the state employees openly criticizing Evans' ruling, demanding full discovery after Evans had determined the facts to be used in the case, accusing Evans of misinterpreting their complaint, calling Evans' order factually incorrect, and accused Toriseva of making untrue statements in her responses.
"The foregoing clearly demonstrates that the plaintiffs are attempting to reverse or modify Judge Evans' Order," Bailey wrote. "While the plaintiffs contend that they are merely now seeking a ruling on whether the salary plan violates the United States Constitution, that time has come and passed."
Bailey cites the Rooker-Feldman doctrine, which prohibits lower federal courts from appellate jurisdiction over final state court judgments. The doctrine is meant to prevent losers in state court cases from immediately trying to file suit in federal court.
Bailey also pointed to facts that came to light during the Kanawha County Circuit Court case. According to Evans, the state employees were not shorted any pay, were paid every dollar they earned, and pay under the new bi-weekly pay system lagged only 14 days while the previous bi-monthly system had a 15- to 16-day lag.
"These findings establish that the plaintiffs suffered no injury as a result of the implementation of the new bi-weekly payroll," Bailey wrote. "Without an injury, the plaintiffs lack standing to assert their constitutional claims. Without an injury, the plaintiffs cannot satisfy the substantial impairment of contract required to advance a contract clause claim."