Judge gives Asbury time to amend Sandy complaint

PARKERSBURG – A motion to dismiss a lawsuit against former Wood County Sheriff Jeff Sandy was denied Tuesday in Wood County Circuit Court.

In December, James Asbury, a former deputy, filed suit against Sandy, alleging he was fired in exchange for votes.

Neither Sandy nor Asbury attended Tuesday’s hearing.

James Scott, one of the attorneys representing Sandy, said the complaint is not specific enough for an answer because no factual material was given to support claims Sandy traded political favors and what constitutes retaliation to make Asbury leave the department. He said that was why they filed the motion to dismiss in lieu of an answer.

“Mr. Asbury has no private causes of action under West Virginia Code provisions cited,” Scott said. “It is very clear the reason they were cited not to allege a private cause of action but rather to show somehow a substantial public policy of West Virginia was violated when as Sheriff Jeff Sandy allegedly released James Asbury from employment.”

Scott said all that was alleged was a pattern of retaliation. West Virginia law makes it clear in order to prove a claim for constructive discharge there has to be an allegation and there has to be proof there was some intolerable condition at work forcing him to resign, Scott said.

“There is nothing there, it is devoid of any factual matter whatsoever,” he said. “We don’t know how Sandy may have created a hostile work environment; we don’t know how or what was done.

“It is difficult from a pleading standpoint to answer an allegation of having retaliation pattern because we have no idea of what that pattern was.”

Scott said the defense argues the sheriff is immune from such claims, because the sheriff was acting in his official capacity.

“It is a complaint with very scant allegations; this is not a situation where discovery is going to allow the plaintiff to find more regarding the claims,” Scott said. “There is not a single factual allegation in the complaint.”

Scott said even under West Virginia’s liberal standards there is no set of facts that can be proven.

Asbury’s attorney, Richelle Garlow, said Asbury was told he could resign or be fired.

“I can’t think of a situation of more intolerable working conditions where you are told if you stay here and stay in your job I will fire you,” she said. “A police officer is especially harmed by a firing since it makes it hard for them to find employment with a letter in their file saying they had been fired.”

Garlow said Asbury’s firing was motivated by political patronage; the sheriff allegedly promised a family if they supported him through the election he would fire Asbury, she said.

“That is, in fact, what happened,” she said. “If the court would like, we move to amend the complaint to add the allegation more specifically what the pattern of retaliation was.”

Garlow said there is verbal and written communications to support their claims.

“He (Asbury ) did not discover this until recently,” she said. “He did not know at the time he left about comments the sheriff made to this family. He did not learn of it until October 2012. At the time he was fired there was an incident in 2010 with a wrecked cruiser, that was when he was told he would be fired and he felt he had no choice.”

Judge Robert Waters said at this point a motion to dismiss was rarely granted.

“Under 29-12A-18 of the West Virginia Code the tort and insurance reform act is not applicable to civil action by an employee of a public political subdivision,” he said.

Waters said he would grant Garlow’s oral motion to amend the complaint within 20 days to give greater detail of the claims of a pattern of retaliation. He said then the defense could file an answer or renew its motion to dismiss.