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Motion to dismiss filed in state employee wage suit

CHARLESTON — Attorneys representing the executive, legislative and judicial branches of the West Virginia government in a federal lawsuit over the alleged shortage of wages of state employees called for the case to be dismissed.

In a motion filed Monday in the U.S. District Court for the Northern District of West Virginia in Wheeling, attorneys for the state filed a motion to dismiss a lawsuit brought by six state employees alleging that a switch to a bi-weekly pay schedule in 2017, started by former State Auditor Glen Gainer in 2016, caused them to lose some of their pay.

Attorney Ann Ballard with the law firm of Pullin, Fowler, Flanagan, Brown and Poe filed the motion to dismiss on behalf of Gov. Jim Justice, current State Auditor J.B. McCuskey, State Treasurer John Perdue, Secretary of State Mac Warner, Attorney General Patrick Morrisey, the West Virginia Supreme Court of Appeals, and the West Virginia Legislature’s Commission on Special Investigations.

Wheeling attorney Teresa Toriseva filed the federal lawsuit on Dec. 13 on behalf of Heather Morris, Pamela Stumpf, Stacey Facemire, Lula V. Dickerson, Lisa Wilkinson and Kathryn A. Bradley. They 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 for these changes.

Ballard, in the motion to dismiss, claimed federal court was the wrong jurisdiction for the lawsuit. The state employees lost a similar lawsuit in Kanawha County Circuit Court on Dec. 4, shortly before filing the federal lawsuit. Circuit Judge Thomas Evans issued a summary judgement in favor of the state.

“In the case at bar, the plaintiffs did not obtain the desired result in the state court action and now seek a second opportunity by bringing the federal action,” Ballard wrote. “The factual claims presented to the court are identical to the claims raised, but not denied in the Kanawha County Circuit Court. Plaintiffs did not appeal the decision of the state court. Rather, plaintiffs see redress from this court. Any review from this court would effectively be an appellate review of the Kanawha County ruling.”

Ballard said the state employees are trying to re-litigate an issue that was already decided by the circuit court, whether the state violated state code by not paying the full salary within a calendar year. The circuit court ruled there is nothing in state code or the Wage Payment and Collection Act that guarantees state employees their full salary within a calendar year.

“In this case, every factual issue presented in the complaint was litigated at the state court level, and the Circuit Court of Kanawha County made express findings of fact related to those issues,” Ballard wrote. “Accordingly, not only has the court found that plaintiffs have been paid ‘every dollar they earned,’ the court found that the sole legal precedent…supports the exact opposite legal principle claimed by the plaintiffs.”

Circuit Judge Evans issued his final ruling on the state lawsuit on Feb. 10, a decision that was not appealed to the state Supreme Court.

Toriseva was unavailable for comment.

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