McClintock v. Marshall County Commission

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
VICTORIA McCLINTOCK,
Plaintiff,
v. 	CIVIL ACTION NO. 5:25-CV-181
Judge Bailey
MARSHALL COUNTY COMMISSION,
Defendant.
ORDER
Pending before this Court is Defendant Marshall County Commission’s Motion for
Summary Judgment [Doc. 19], filed June 15, 2026. Plaintiff filed a Memorandum in
Opposition [DoG. 20] on June 24, 2026. Defendant filed a Reply [DoG. 21] on July 1,2026.
For the reasons that follow, this Court will grant in part and deny in part defendant’s Motion.
BACKGROUND
This case arises out of the termination of plaintiff from her role in an accounts
payable position for the Marshall County Clerk’s Office. On September 13, 2010,
defendant, by and through its agent, Jan Pest, defendant’s County Clerk, hired plaintiff as
a deputy clerk. [Doc. 1-1 at ¶ 5; Doc. 19-2 at 9:4—12:7]. As a deputy clerk, plaintiff was
responsible, inter alia, for paying bills and vendor invoices, issuing W-9s, and managing
the Purchasing Card (“P-Card~’)fortheoffice. See, e.g., [Doc. 19-2 at34:13—15; 44:17—24;
72:6—15].
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In November 2022, Connie Howard, plaintiff’s coworker, was elected County Clerk
over Melanie Madden, another coworker. [Doc. 1-1 at ¶ 12]. The office was divided
between employees who had supported Ms. Howard and those who had supported
Ms. Madden. [Id. atijil; Doc. 19-3at41:6--42:5; Doc. 19-8at19—22]. Plaintiff supported
Ms. Madden and when Ms. Howard defeated Ms. Madden, plaintiff feared retaliation from
Ms. Howard. [Doc. 1-1 at ¶~J 11—12].
Over the course of the next eighteen (18) months, plaintiff raised several reports
about Ms. Howard’s conduct toward her and other employees in the office. [Id. at ¶ 13].
One of Ms. Howard’s first acts was to appoint her sister, Glena Powell, as Chief Deputy
Clerk. [Id. at ¶ 14; Doc. 19-3 at 95:8—1 3].
Plaintiff anonymously reported Ms. Powell’s appointment as a potential Ethics Act
violation to the West Virginia Ethics Commission on February 17, 2023. [Doc. 19-2 at
97:8—18; Doc. 19-8 at 2—3]. On December 10, 2024, John Roush, Interim General
Counsel forthe West Virginia Ethics Commission, emailed Ms. Howard and stated that the
matter involving employment of Ms. Howard’s sister as Chief Deputy Clerk violated West
Virginia Code R. § 158-6-3, the nepotism regulation, specifically the provisions prohibiting
a public official from directly supervising a relative (~ 3.6.2) and from participating in
employment decisions affecting a relative without an independent third party (~ 3.6.1).
See [Doc. 19-4]. The Ethics Commission closed the investigation for a few reasons, one
specifically being Ms. Powell had passed away. [Id. at 2].
Plaintiff acknowledges that Ms. Howard was not directly told who filed the Ethics
Complaint. [Doc. 19-2 at 98:6—22]. Ms. Howard believed the Ethics Complaint was filed
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by Jan Pest, the former clerk, Denise Doyle, a retired employee, or Ms. Madden, whom
Ms. Howard beat in the election. [Doc. 19-3 at 96:20—97:25].
On the one hand, plaintiff made numerous, additional reports—formally and
informally—of conduct she believed constituted wrongdoing or waste within the meaning
of the West Virginia Whistleblower Act:
• Plaintiff made multiple reports to County Administrator Betsy Frohnapfel and
to Commissioner Scott Varner about Eric Buzzard’s repeated failure to follow
P-Card guidelines. [Doc. 19-8 at 7];
• Plaintiff reported concerns about payroll errors, IRS payments being late,
and retirement contributions not being made on time. [Id. at 12];
• Plaintiff reported concerns regarding the improper budget revision submitted
by Ms. Howard seeking to reimburse a new hire (Toni Chieffalo) for COBRA
payments from a prior employer, when the County Commission had actually
tabled, not approved, that line item. [Id. at 11];
• Plaintiff reported concerns about minors (some as young as ten (10) years
old) being used as paid poll workers in potentially unsafe conditions on
election night. [Id. at 21].
On the other hand, defendant states through Ms. Howard’s tenure as Clerk, plaintiff
engaged in disruptive and toxic behavior in the workplace, including, but not limited to,
calling employees on vacation to undermine Ms. Howard’s moving Sondra Elson to office
manager, retrieving Ms. Powell’s divorce pleadings and sharing them with the office, and
playing a police recording relating to Ms. Howard’s bipolar granddaughter for the office.
[Doc. 19-3 at 90:2—92:2].
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On July 3, 2024, plaintiff received a memo to write a check payable to the
magistrate court for $12,473.39. [Doc. 19-5]. Plaintiff instead wrote a check for
$291,595.65, the balance due figure that appeared on the same underlying document.
[Id. at 2]. At her deposition, plaintiff acknowledged the error and explained how it occurred
by reference to the way the underlying document was formatted. [Doc. 19-2 at
81:21—83:16]. The check was ultimately caught by Amy Carmichael, the Chief Tax Deputy,
and was voided and rewritten. [Doc. 19-2 at 83:17—84:14; Doc. 19-5].
On August 1, 2024, Ms. Howard was informed by Ms. Carmichael about the
erroneous $291,595.65 check issue. [Doc. 19-3 at 78:5—18]. Ms. Howard also reviewed
plaintiff’s time sheet and states plaintiff claimed she worked on a day where she was not
present. [Id. at 102:6—20; Doc. 	1 9~6].1 In her deposition, Ms. Howard states plaintiff had
already been warned about numerous errors on her time sheets. [Doc. 19-3 at
100:21—102:20]. Ms. Howard further states she was “very upset over the dishonesty on
the time sheets” and plaintiff “was the only one in the office that [Ms. Howard] had to pull
in periodically, go over the time sheets and make [plaintiff] change them.” [Id. at 89:9—1 2].
Also on August 1, 2024, Ms. Howard decided to terminate plaintiff. See [Doc. 19-7].
Plaintiff filed her Complaint in the Circuit Court of Marshall County on July 17, 2025.
[Doc. 1-1]. Defendant removed to this Court on August 15, 2025. [Doc. 1]. In the
Complaint, plaintiff alleges two (2) counts: (1) Violation of West Virginia Whistle-Blower
Law; and (2) Violation of 42 U.S.C. § 1983 (First Amendment Rights). See [Doc. 1-1 at
4—6].
1Ms Howard confirmed with staff and video evidence that plaintiff was not present
on that day. [Doc. 19-3 at 102:17—20].
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STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” The party seeking
summary judgment bears the initial burden of showing the absence of any genuine issues
of material fact. See Celotex Corp. v. Catrett, 477 u.s. 317, 322—23 (1986). If the
moving party meets this burden, the nonmoving party “may not rest upon the mere
allegations or denials of its pleading, but must set forth specific facts showing there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. “The inquiry performed is the threshold inquiry of
determining whether there is the need for a trial—whether, in other words, there are any
genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.” Id. at 250..
In reviewing the supported underlying facts, all inferences must be viewed in the
light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.s. 574, 587 (1986). Additionally, the party opposing
summary judgment “must do more than simply showthatthere is some metaphysical doubt
as to the material facts.” Id. at 586. That is, once the movant has met its burden to show
absence of material fact, the party opposing summary judgment must then come forward
with affidavits or other evidence demonstrating there is indeed a genuine issue for trial.
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Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323—25; Anderson, 477 u.s. at 248. “If
the evidence is merely colorable, or is not significantly probative, summary judgment may
be granted.” Anderson, 477 U.S. at 249 (citations omitted). Although all justifiable
inferences are to be drawn in favor of the non-movant, the non-moving party “cannot create
a genuine issue of material fact through mere speculation of the building of one inference
upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Further, “the plain
language of Rule 56(c) mandates the entry of summary judgment. . . against a party who
fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.,
477 U.S. at 322.
DISCUSSION
I. Violation of West Virginia Whistle-Blower Law
In the Complaint, plaintiff alleges that defendant violated the West Virginia
Whistle-Blower Law because it “knew or reasonably should have known that she had made
multiple, good faith reports of wrongdoing or waste in its office, including, and not limited
to, an employee bullying or otherwise creating a hostile workplace for other employees,
and the county clerk’s abusing her authority and her intent to allow an employee to sign
checks in Ms. Howard’s absence.” [Doc. 1-1 at ¶ 22]. Plaintiff further alleges that
defendant terminated her employment on the same day she made her final report of
wrongdoing or waste. [Id. at ¶ 23]. According to plaintiff, her termination was in retaliation
for her good faith reports concerning defendant’s alleged wrongdoing or waste. [Id. at
¶24].
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In the Motion, defendant argues that plaintiff cannot establish a claim under the
West Virginia Whistle-Blower Act because she has failed to produce evidence satisfying
the elements of a prima facie case. See [Doc. 19-1 at 14—20]. Specifically, defendant
contends that plaintiff’s alleged whistleblowing activities consisted of complaints regarding
Ms. Howard’s promotion of her sister to Deputy Clerk, as well as various workplace
grievances, including staffing issues, payroll errors, employee conduct, and other office
matters. According to defendant, these complaints do not constitute reports of
“wrongdoing” or “waste” as defined by the statute.
West Virginia Code § 6C-1 -3(a) states:
No employer may discharge, threaten, or otherwise discriminate or retaliate
against an employee by changing the employee’s compensation, terms,
conditions, location, or privileges of employment because the employee,
acting on his or her own volition, or a person acting on behalf of or under the
direction of the employee, makes a good faith report, or is about to report,
verbally or in writing, to the employer or appropriate authority, an instance of
wrongdoing or waste.
“Wrongdoing” means “a violation which is not of a merely technical or minimal nature of a
federal or state statute or regulation, of a political subdivision ordinance or regulation or of
a code of conduct or ethics designed to protect the interest of the public or the employer.”
W.Va. Code § 6C-1-2(h). “Waste” means “an employer or employee’s conduct or
omissions which result in substantial abuse, misuse, destruction or loss of funds or
resources belonging to or derived from federal, state or political subdivision sources.” Id. at
§ 6C-1-2(f).
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The West Virginia Whistle-Blower claim is subject to the McDonnell Douglas
burden-shifting framework first adopted by the United States Supreme Court in a Title VII
context. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802—03 (1983). See Taylor
v. W. Va. Dep’t of Health & Hum. Res., 237 W.Va. 549, 561, 788 S.E.2d 297, 307 (2016)
(applying the McDonnell Douglas framework to a West Virginia Whistle-Blower Law claim)
(citing Shepherdstown VFD v. W. Va. Human Rights Comm’n, 172 W.Va. 627,638,309
S.E.2d 342, 353 (1983)). This framework is best capsulized in Texas Department of
CommunityAffairs v. Burdine, 450 U.S. 248 (1981), where the United States Supreme
Court stated:
First, the plaintiff has the burden of proving by the preponderance of the
evidence a prima facie case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the burden shifts to the defendant
“to articulate some legitimate, nondiscriminatory reason for the employee’s
rejection.” (citation omitted). Third, should the defendant carry this burden,
the plaintiff must then have an opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for discrimination. (citation omitted).
450 U.S. at 252—53 (citing McDonnell Douglas Corp., supra).
The Whistle-Blower Law provides: “it shall be a defense. . . if the defendant proves
by a preponderance of the evidence that the action complained of occurred for separate
and legitimate reasons, which are not merely pretexts.” W.Va. Code § 6C—1—4(c).
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To reach the jury, “the employee must offer sufficient evidence that the employer’s
explanation was pretextual to create an issue of fact.” Skaggs v. Elk Run Coal Co., Inc.,
198 W.Va. 51, 73, 479 S.E.2d 561, 583 (1996). The plaintiff must point to some direct or
circumstantial evidence to show defendant’s reasons are pretextual. Id. at 77, 479 S.E.2d
at 587. “Pretext” means “the explanation offered by the defendant was not the reason that
actually motivated the action taken against the plaintiff.” Id. at 74, 479 S.E.2d at 584.
There are many ways for an employee to show an employer’s provided reasoning
was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 u.s. 133, 147—49
(2000). This Court, as well as others, has found that factors relevant to demonstrating
pretext may include temporal proximity between the report and termination, inconsistencies
in a defendant’s reasoning, and similarity in decisionmakers at the time of the report and
termination. See Massaro v. Fairfax Cnty., 95 F.4th 895, 902 (4th Cir. 2024); Roe v.
Marshall Univ. Bd. of Governors, 145 F.4th 561, 570(4th Cir. 2025); E.E.O.C. v. Sears
Roebuck and Co., 243 F.3d 846, 852—53 (4th Cir. 2001); Adkins v. CSX Transp., Inc.,
70 F.4th 785, 793—94 (4th Cir. 2023).
Defendant argues, with respect to plaintiff’s anonymous complaint to the Ethics
Commission regarding Ms. Howard’s promotion of her sister, that such a report may
constitute protected activity. [Doc. 19-1 at 15]. However, defendant argues that plaintiff
cannot establish the remaining elements of her claim because she admitted she has no
evidence that Ms. Howard or anyone else involved in the termination decision knew that
she filed the complaint. [Id. at 15—16]. Defendant further notes that plaintiff was
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terminated approximately eighteen (18) months afterfiling the complaint and contends that
there is no evidence from which retaliatory motive may be inferred. [Id. at 16].
Here, plaintiff making a report to the Ethics Commission2 is almost always protected
activity, so plaintiff has established that part of the prima facie case.
While plaintiff testif ied she had no direct proof Ms. Howard learned her identity, she
also testified she did not believe her identity had been leaked, not that Ms. Howard had no
inkling that an ethics complaint had been filed. [Doc. 19-2 at 98:14—16 (“I don’t know when
Connie was informed of a complaint. 	I don’t know what conclusions she drew. So 	I have
nothing.”). The record in this case includes, among other evidence, that (1) the Ethics
Commission complaint was filed anonymously; (2) Ms. Howard testified that she believed
the complaint came from a small pool of employees; and (3) Ms. Howard expressed
concern that she did not know “who [plaintiff] might talk to next.” [Doc. 19-8 at 16].
A reasonable jury could conclude from these facts that Ms. Howard suspected plaintiff was
the source of the complaint and viewed her as a continuing risk of further exposure,
thereby creating a genuine dispute of material fact regarding employer awareness.
Viewed in the light most favorable to plaintiff, there is a genuine issue of material
fact concerning employer awareness which militates strongly against the entry of summary
judgment with respect to plaintiff’s whistle blower claim regarding her ethics complaint.
Defendant likewise argues that plaintiff’s communications with Betsy Frohnapfel do
not support a whistleblower claim. [Doc. 19-1 at 16—18]. According to defendant,
2The Ethics Commission is an “appropriate authority” within the meaning of West
Virginia Code § 6C-1-2 because it is a “state . . . agency. . . having jurisdiction over. .
regulatory violations, professional conduct or ethics, or waste. . . .“ 	W.Va. Code
§ 6C-1-2(a).
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Ms. Frohnapfel was not an “appropriate authority” under the Whistle-Blower Act because
the County Commission lacked authority over the County Clerk’s Office. Defendant further
asserts that plaintiff admiffed she knew Ms. Frohnapfel could not take action regarding the
matters about which she complained. [Id. at 17 (citing [Doc. 19-2 at 108:15—23])].
Defendant also contends that plaintiff failed to identify any reports to Ms. Frohnapfel that
qualify as reports of statutory “wrongdoing” or “waste” and has produced no evidence
connecting any such reports to her termination. [Id. at 17—18].
Plaintiff disputes defendant’s characterization of her communications with
Ms. Frohnapfel as merely “Mean Girls-style text messages,” arguing that the messages
instead reported multiple instances of alleged governmental misconduct, including P-Card
misuse, late IRS and retirement payments, improper budget revisions, and concerns about
minors serving as election workers. [Doc. 20 at 13]. Plaintiff further contends that
Ms. Frohnapfel qualified as an “appropriate authority” under the Act because many of
these issues involved county-wide financial oversight rather than solely the County Clerk’s
Office. [Id.]. At a minimum, plaintiff argues that whether Ms. Frohnapfel constituted an
“appropriate authority” presents a factual dispute that precludes summary judgment.
“Appropriate authority” is defined, in full, as
a federal, state, county or municipal government body, agency or
organization having jurisdiction over criminal law enforcement, regulatory
violations, professional conduct or ethics, or waste; or a member, officer,
agent, representative or supervisory employee of the body, agency or
organization. The term includes, but is not limited to, the office of the
attorney general, the office of the state auditor, the commission on special
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investigations, the Legislature and committees of the Legislature having the
power and duty to investigate criminal law enforcement, regulatory violations,
professional conduct or ethics, or waste.
W.Va. Code § 6C-1-2.
The Court concludes that summary judgment is not appropriate on the issue of
whether plaintiff reported her concerns to an “appropriate authority” within the meaning of
West Virginia Code § 6C-1-2 as it relates to her conversations with Betsy Frohnapfel.
Although the interpretation of the statute presents a question of law, the record reflects
genuine disputes of material fact regarding the nature and scope of County Administrator
Frohnapfel’s authority. Specifically, the parties dispute the extent of Frohnapfel’s
supervisory responsibilities, whether she exercised oversight overcountyfinancial matters,
whether she possessed any authority with respect to the County Clerk’s Office, and
whether the matters reported by plaintiff fell within her jurisdiction or oversight. Resolution
of these disputed factual issues is necessary before the Court can determine whether
Ms. Frohnapfel qualifies as an “appropriate authority” under the statute. Viewing the
evidence in the light most favorable to plaintiff, as the nonmoving party, the Court cannot
conclude as a matter of law that plaintiff failed to report her concerns to an appropriate
authority. Accordingly, defendant is not entitled to summary judgment on this basis.
Finally, defendant argues that even if plaintiff could establish a prima facie
whistleblower claim, she cannot demonstrate that defendant’s stated reasons for her
termination were pretextual. [Doc. 19-1 at 18—20]. Defendant maintains that plaintiff was
terminated because she issued a check exceeding $200,000 to pay a bill of approximately
$12,000, inaccurately reported her attendance, and was generally a negative influence
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within the office. [Id. at 18]. Defendant notes that plaintiff admitted making the
check-writing error, acknowledged that such a mistake could justify termination, and agreed
that falsifying time records would constitute a terminable offense. [Id. at 18—19].
Accordingly, defendant contends that plaintiff has failed to produce evidence
demonstrating that defendant’s proffered reasons for termination were false or a pretext
for retaliation and that summary judgment should therefore be granted in defendant’s favor.
In Response, plaintiff argues that defendant’s proffered reasons for her termination
are pretextual. [Doc. 20 at 14—15]. Specifically, plaintiff notes that the termination letter
provided no reason for her discharge,3 the check error was immediately corrected without
financial loss, and the timekeeping issues had previously been addressed informally and
were reasonably explained. [Id. at 14]. Plaintiff also points to evidence that she submitted
a witness statement criticizing Ms. Howard’s selective enforcement of the office’s bullying
policy shortly before her termination. [Id.]. Finally, plaintiff relies on statements allegedly
made by CountyAdministrator Frohnapfel expressing surprise atthe termination, criticizing
Ms. Howard’s management of the office, and suggesting concern about the legitimacy of
Howard’s decision. [Id. at 14—15]. According to plaintiff, this evidence would permit a
3The discharge letter, signed by Ms. Howard, reads in full:
After much reflection, 	I am sorry to inform you that 	I have decided to
terminate your employment in my office effective immediately. If your [sic]
have any items that belong to the Marshall County Clerk’s office at home
please return no later than 4p.m. August 2, 2024.
Your final paycheck, including remaining PTO days will be issued at that
time.
I wish you luck in your future endeavors[.].
[Doc. 19-7].
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reasonable jury to conclude that defendant’s stated reasons for the termination were a
pretext for unlawful retaliation.
The Court likewise concludes that genuine issues of material fact preclude summary
judgment on the issue of pretext. Although defendant has articulated legitimate,
non-retaliatory reasons for plaintiff’s termination, plaintiff has presented sufficient evidence
from which a reasonable jury could conclude that those reasons are not the true reasons
for the adverse employment action. Among other things, the termination letter identifies
no reason for plaintiff’s discharge; the record reflects that the check error cited by
defendant was promptly corrected without financial loss; and plaintiff has presented
evidence that the timekeeping issues had previously been addressed informally and that
she provided an explanation for her practices. Plaintiff also relies on evidence that she
submitted a witness statement critical of Ms. Howard’s enforcement of the office’s bullying
policy shortly before her termination, as well as testimony concerning statements allegedly
made by County Administrator Frohnapfel expressing surprise at the termination and
criticizing Ms. Howard’s management of the office. Viewed in the light most favorable to
plaintiff, this evidence is sufficient to permit a reasonable jury to find that defendant’s
proffered reasons for plaintiff’s termination were pretextual and that the actual motivation
for the termination was unlawful retaliation. Accordingly, summary judgment is
inappropriate on this issue.
In sum, summary judgment is not warranted on plaintiff’s West Virginia
Whistle-Blower claim.
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II. Violation of 42 U.S.C. § 1983 (First Amendment Rights)
Although the Court concludes genuine disputes of material fact preclude summary
judgment on plaintiff’s whistleblower claim, that conclusion does not resolve plaintiff’s
§ 1983 claim. Unlike the Whistle-Blower Law, § 1983 does not impose liability simply
because an employer allegedly retaliated against an employee. Because plaintiff seeks
to hold defendant liable for an alleged constitutional violation, she must also satisfy the
municipal liability requirements established in Monell v. Dep’t of Soc. Services of City
of New York, 436 U.S. 658 (1978). Plaintiff has failed to do so.
Plaintiff asserts a claim under42 U.S.C. § 1983, alleging that defendantviolated her
rights under the First Amendment by terminating her employment because of her political
association. See [DoG. 1-1 at ¶1[ 26—33]. Defendant moves for summary judgment,
arguing that plaintiff has failed to produce sufficient evidence to establish municipal liability
against the Marshall County Commission or to demonstrate that her alleged protected
activity was a substantial or motivating factor in her termination. The Court agrees.
Rather than identifying evidence that defendant exercised its authority, plaintiff
argues that members of the County Commission and the CountyAdministratorwere aware
of hercomplaints regarding Ms. Howard’s conduct and failed to intervene, thereby ratifying
retaliatory conduct or demonstrating deliberate indifference. [Id. at 8—9]. Even assuming
the record supports plaintiff’s assertions that she made complaints to County officials, such
evidence is insufficient to establish municipal liability under § 1983.
MoneII provides that “[l]ocal governing bodies.. . can be sued directly under § 1983
for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be
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unconstitutional implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers.” MoneIl, 436 U.S. at
690. Critically, however, MoneII also clarifies that “a municipality cannot be held liable
solely because it employs a tortfeasor—or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Id. at 691.
Put differently, “a local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983.” Id. at 694.
“A policy or custom for which a municipality may be held liable can arise in four
ways:”
(1) through an express policy, such as a written ordinance or regulation;
(2) through the decisions of a person with final policymaking authority;
(3) through an omission, such as a failure to properly train officers, that
“manifest [s] deliberate indifference to the rights of citizens”; or (4) through
a practice that is so “persistent and widespread” as to constitute a “custom
or usage with the force of law.” Id. at 217 (internal citations omitted).
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citations omitted).
Lastly, in order to succeed upon a Monell claim, a plaintiff must “adequately plead
and prove the existence of an official policy or custom that is fairly attributable to the
municipality and that proximately caused the deprivation of their rights.” Jordan by
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Jordan v. Jackson, 15 F.3d 333,338(4th Cir. 1994). In otherwords, the policy or custom
must be the “moving force” behind the alleged constitutional violation, or it must be
established that there is an “affirmative link” between the city’s policy or custom and the
“particular constitutional violation alleged.” See Monell, 436 u.s. at 694; City of
Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).
As an initial matter, plaintiff has failed to produce evidence from which a reasonable
jury could conclude that defendant exercised any authority over her termination.
The undisputed record reflects that plaintiff was terminated by County Clerk
Connie Howard. Plaintiff has not identified evidence that defendant participated in,
directed, approved, or otherwise exercised its authority with respect to the decision to
terminate her employment. Indeed, plaintiff does not meaningfully dispute that defendant
itself played no role in the termination decision.
Rather than identifying evidence that defendant exercised its authority, plaintiff
argues that members of the County Commission and the County Administrator were aware
of her complaints regarding Ms. Howard’s conduct and failed to intervene, thereby ratifying
retaliatory conduct or demonstrating deliberate indifference. [Doc. 20 at 8—9].
Even assuming the record supports plaintiff’s assertions that she made complaints to
County officials, such evidence is insufficient to establish municipal liability under § 1983.
Plaintiff has not identified any official policy, longstanding custom, or decision by a
final policymaker that caused the alleged constitutional deprivation. Nor has plaintiff
produced evidence from which a reasonable jury could conclude that defendant itself
exercised authority over the termination decision. Plaintiff’s assertions regarding
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“ratification” and “deliberate indifference” are unsupported by evidence demonstrating the
existence of an official municipal policy or custom. Plaintiff further claims that
Ms. Frohnapfel advised her in 2022 to sue Ms. Howard if she was fired, and that somehow
that advice “indicates that the Commission understood its co-employer role extended to
protecting employees from politically motivated terminations.” [Id. at 9j•4 Plaintiff fails to
create a genuine dispute of material fact.
Plaintiff likewise fails to identify any official policy, widespread custom, or practice
of retaliating against employees because of their protected political association. Earle v.
City of Huntington, 2017 WL 3189897, at *2 (S.D. W.Va. July 27, 2027) (Chambers,
C.J.) (“At the summary judgment stage, the Court requires concrete evidence to support
Plaintiff’s claim to justify a jury trial on the issue.”).
Evidence surrounding a single employment decision, without more, is insufficient
to establish municipal liability under § 1983. At the summary judgment stage, plaintiff must
produce “concrete evidence” to support her claim and justify submitting the issue to a jury.
Plaintiff has failed to do so here. Accordingly, the Court finds that plaintiff cannot maintain
a municipal liability claim against defendant under 42 U.S.C. § 1983.
Having concluded that plaintiff cannot establish municipal liability against defendant,
the Court need not reach defendant’s remaining arguments regarding the merits of
plaintiff’s First Amendment retaliation claim.
4This theory of the case is not plead anywhere in the Complaint.
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III. Monetary Damages for State Law Claims
Because the Court grants summary judgment in favor of defendant on Count II of
plaintiff’s Complaint, it need not address defendant’s remaining argument concerning
monetary damages.
CONCLUSION
For the foregoing reasons, Defendant Marshall County Commission’s Motion for
Summary Judgment [Doc. 19] is GRANTED IN PART and DENIED IN PART. Summary
judgment is GRANTED in favor of defendant on Count II of plaintiff’s Complaint and is
DENIED with respect to plaintiff’s Whistle-Blower claim.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: July ____, 2026.
IN PRESTON BAILEY
D STATES DISTRICT
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