IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term FILED April 16, 2021 released at 3:00 p.m. No. 20-0311 EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
ASAD DAVARI, Plaintiff Below, Petitioner
v.
THE WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS, Defendant Below, Respondent
Appeal from the Circuit Court of Kanawha County The Honorable Tera L. Salango, Judge Civil Action Nos. 14-C-263 and 14-C-838
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
Submitted: March 16, 2021 Filed: April 16, 2021
Robert H. Miller, II, Esq. Joseph U. Leonoro, Esq. The Sutter Law Firm PLLC Mark C. Dean, Esq. Charleston, West Virginia Steptoe & Johnson PLLC Counsel for Petitioner Charleston, West Virginia Monté L. Williams, Esq. Steptoe & Johnson PLLC Morgantown, West Virginia Counsel for Respondent JUSTICE WALKER delivered the Opinion of the Court. SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.”
Syllabus Point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. “A motion for summary judgment should be granted only 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.” Syllabus Point 3, Aetna Casualty & Surety
Co. v. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963).
3. “The circuit court’s function at the summary judgment stage is not to
weigh the evidence and determine the truth of the matter, but is to determine whether there
is a genuine issue for trial.” Syllabus Point 3, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d
755 (1994).
4. “The Board of Governors of West Virginia University is a State
agency, and, as such, is an arm of the State and, under Article VI, Section 35 of the
Constitution of West Virginia, is immune from suit to enforce payment of a claim against
such board.” Syllabus Point 1, City of Morgantown v. Ducker, 153 W. Va. 121, 168 S.E.2d
298 (1969).
5. “Suits which seek no recovery from state funds, but rather allege that
recovery is sought under and up to the limits of the State’s liability insurance coverage, fall
i outside the traditional constitutional bar to suits against the State.” Syllabus Point 2,
Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983).
6. “‘Language in an insurance policy should be given its plain, ordinary
meaning.’ Syl. pt. 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d
33 (1986), overruled on other grounds by National Mut. Ins. Co. v. McMahon & Sons, 177
W. Va. 734, 356 S.E.2d 488 (1987).” Syllabus Point 5, Bland v. State, 230 W. Va. 263,
737 S.E.2d 291 (2012).
7. “‘Where the provisions of an insurance policy contract are clear and
unambiguous they are not subject to judicial construction or interpretation, but full effect
will be given to the plain meaning intended.’ Syl., Keffer v. Prudential Ins. Co., 153 W.
Va. 813, 172 S.E.2d 714 (1970).” Syllabus Point 6, Bland v. State, 230 W. Va. 263, 737
S.E.2d 291 (2012).
8. “The determination as to whether ‘wages,’ as defined in West Virginia
Code § 21-5-1(c) (2013 Repl.Vol.), are payable pursuant to the requirements of West
Virginia Code § 21-5-1 et seq. (2013 Repl.Vol.) is governed by the terms of the
employment agreement, whether written or in the form of a consistently applied unwritten
policy.” Syllabus Point 5, Adkins v. Am. Mine Rsch., Inc., 234 W. Va. 328, 765 S.E.2d 217
(2014).
ii 9. “Article VI, § 35, of the Constitution of West Virginia, concerning
this State’s sovereign immunity, does not bar the claim of a State employee for unpaid
wages asserted under the West Virginia Wage Payment and Collection Act, W. Va. Code,
21-5-1 (1987), et seq., whether the claim is initiated through the administrative remedies
provided under the Wage Payment and Collection Act or initiated by filing a complaint for
the unpaid wages directly in circuit court.” Syllabus Point 5, Beichler v. W. Va. Univ. at
Parkersburg, 226 W. Va. 321, 700 S.E.2d 532 (2010).
10. “Generally, the existence of a contract is a question of fact for the
jury.” Syllabus Point 4, Cook v. Heck’s Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986).
iii WALKER, Justice:
Petitioner Asad Davari, Ph.D., a professor of electrical engineering at West
Virginia University Institute of Technology (WVUIT), alleges that WVUIT breached its
agreement to pay him a supplementary salary for serving as director of a research center.
He filed a common law claim for breach of contract, alternative equitable claims of
quantum meruit and unjust enrichment, and a statutory cause of action under the West
Virginia Wage Payment Collection Act (WPCA) 1 against Respondent The West Virginia
University Board of Governors (WVU BOG), which manages the educational operations
of WVUIT. 2 Because WVU BOG is a State agency, it invoked the doctrine of sovereign
immunity and moved for summary judgment. The Circuit Court of Kanawha County, West
Virginia, granted summary judgment in favor of WVU BOG on all of Dr. Davari’s claims.
He now appeals.
While sovereign immunity is facially absolute, 3 two narrow exceptions are
implicated here. First, sovereign immunity does not bar a plaintiff from seeking to recover
under the State’s liability insurance coverage—as Dr. Davari attempted to do through his
contractual and quasi-contractual claims—but the policy must still cover those claims for
1 See W. Va. Code §§ 21-5-1 through 18 (2019). 2 W. Va. Code §§ 18B-2A-1(b) and 4(a) (2016).
See W. Va. Const. art. VI, § 35 (“The State of West Virginia shall never be made 3
defendant in any court of law or equity[.]”). 1 him to succeed. 4 We agree with the circuit court that WVU BOG’s policy does not cover
Dr. Davari’s breach of contract claim or equitable claims of quantum meruit and unjust
enrichment. So, we affirm that portion of the summary judgment order. Second, sovereign
immunity does not bar the claim of a State employee, like Dr. Davari, who seeks unpaid
wages under the WPCA. 5 And contrary to the circuit court’s order, we find that genuine
issues of disputed fact exist as to whether WVU BOG violated the WPCA. So, we reverse
that portion of the summary judgment order and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
Dr. Davari is a professor at WVUIT’s College of Engineering. 6 In January
2004, he was appointed Director of the Center for Research on Advanced Control of
Autonomous Systems and Manufacturing (the Center) by Muthukrishnan Sathyamoorthy,
Ph.D., Dean of the College. The Center’s business plan states that it “will be a research
unit within the College of Engineering and it will be mostly self-supporting with its own
annual budget derived from contracts, private funds, foundation funds, external grants,
research grants and contracts from federal and state agencies research grants and contracts
4 Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983). 5 Beichler v. W. Va. Univ. at Parkersburg, 226 W. Va. 321, 700 S.E.2d 532 (2010).
Dr. Davari joined the faculty of West Virginia Institute of Technology in 1985. 6
West Virginia University (WVU) assumed stewardship of the school in 1996, and it became a fully integrated division of WVU in 2007. 2 from industries[.]” In the January 5, 2004 appointment letter to Dr. Davari, Dr.
Sathyamoorthy stated, in part:
It gives me great pleasure to appoint you as the Founding Director of the [Center]. For your information, I have attached a copy of the Center proposal and the associated business plan approved by the WVU Tech’s Cabinet on December 2, 2003.
As the Director, you will be paid a supplemental salary based on research effort fully derived from external sources by the Center. The supplemental salary will be in addition to the summer salary and others received from external funding sources. The supplemental salary will be paid over the nine month academic year period.
The Center’s proposal and business plan referenced in the appointment letter
has an “Administration and Oversight” section with a chart titled “Annual Budget for the
Center.” This chart has a line item listing a $24,000 salary for the Center’s Director. There
are handwritten notations on each page of the Center’s proposal and business plan stating
it was “OK” and “approved 12/2/03[.]” This date is significant because WVUIT’s Cabinet
met on December 2, 2003. The meeting minutes reflect that Dr. Sathyamoorthy gave a
brief report on the Center, distributed handouts related to the Center, and the Cabinet
discussed how the Center’s grants were to be processed. 7
7 WVUIT’s Cabinet had previously discussed the Center at its November 2003 meeting. While it voted to approve the creation of the Center, it explicitly did not approve the “Administration and Oversight” section that contained the proposed salaries at this earlier meeting. 3 Dr. Davari accepted the appointment as Director of the Center and served in
that capacity for more than a decade. He performed this work at the Center while
conducting his regular teaching and other duties as a professor at WVUIT’s College of
Engineering. Under his leadership, the Center generated nearly $5.5 million for WVUIT
in external grant funding. But Dr. Davari contends that he was never paid the supplemental
salary for this work.
Between 2006 and 2012, Dr. Davari received annual notices appointing him
to the faculty at WVUIT and listing his total base salary as professor; he endorsed these
notices. While the parties agree that Dr. Davari’s base salary was paid, in part, by external
grants, his annual faculty appointment notices do not mention any supplemental salary.
Dr. Davari first inquired about the payment of his supplemental salary for
serving as Director of the Center to Drs. Sathyamoorthy and Janeksela by e-mail on
November 2, 2004. On May 19, 2006, Dr. Davari e-mailed Dr. Sathyamoorthy again
asking about the supplemental salary. Dr. Sathyamoorthy replied, by e-mail on May 31,
2006, and confirmed that the additional salary should come from external research grants
and contracts. He also stated that “[a]s a result of numerous unfortunate delays and
mismanagement, the Center has not had the resources needed to pursue its activities as
planned.” On June 5, 2006, Dr. Davari wrote to Dr. Sathyamoorthy again to confirm that
he would be entitled to a supplemental salary for this work.
4 Dr. Davari raised the issue of his supplemental salary more earnestly in 2012
to Carolyn Long, Campus President of WVUIT, after he was not selected to serve as Dean
following Dr. Sathyamoorthy’s departure. In an e-mail to Ms. Long on October 29, 2012,
Dr. Davari stated that “I have not received any of the approved supplemental salary so far.
Now that you are addressing the distribution of overhead funding, I am requesting that you
address the too long overdue supplemental salary as well.” In 2013, Dr. Davari sent several
additional e-mails to Dr. Long requesting his supplemental salary.
After investigating the matter for more than a year, Ms. Long advised Dr.
Davari by letter dated December 17, 2013, that he would not be paid any additional salary
for serving as Director of the Center. First, she explained that Dr. Davari had already been
compensated as he was one of the highest paid professors at WVUIT. Second, Ms. Long
stated that there was no enforceable contract that entitled him to receive a $24,000 salary
for this work. And third, she said she believed that Dr. Davari waived his right to object
to his salary because he had signed and approved annual notices of appointment throughout
the years that listed his total salary.
After receiving Ms. Long’s letter, Dr. Davari e-mailed Dr. Sathyamoorthy,
who was no longer employed at WVUIT, and asked him to confirm the arrangement of his
supplemental salary for his work as Director of the Center. In his reply e-mail, Dr.
Sathyamoorthy confirmed that Dr. Davari was to be paid a supplemental salary of $24,000
from grant funds generated by the Center. 5 In February 2014, Dr. Davari filed a complaint against WVU BOG alleging
claims of breach of contract, quantum meruit, and unjust enrichment. Dr. Davari filed an
amended complaint in October 2014, adding a WPCA claim. He alleged that the WVU
BOG wrongfully failed to pay him a $24,000 supplementary salary every year from 2004
through the present. 8
In September 2019, WVU BOG filed a motion for summary judgment
contending that Dr. Davari’s claims for breach of contract, unjust enrichment, and quantum
meruit were barred by the doctrine of sovereign immunity. WVU BOG also argued that
even if Dr. Davari could state claims of unjust enrichment and quantum meruit despite the
State’s sovereign immunity, the doctrine of laches would bar those claims as a matter of
law. It further asserted that Dr. Davari had no claim under the WPCA because he could
not show that any terms of his employment agreement entitled him to $24,000 in annual
supplemental compensation over and above his regular salary.
Dr. Davari countered that sovereign immunity does not bar his claims
because 1) the applicable insurance policy is ambiguous and the matter should proceed to
8 Dr. Davari filed a second complaint against WVU BOG alleging that WVUIT did not appoint him Dean because of his national origin and in retaliation for a complaint he filed against the former West Virginia Institute of Technology, in violation of the West Virginia Human Rights Act. See W. Va. Code §§ 5-11-1 to -20 (2016) (WVHRA). In April 2015, the circuit court consolidated that case, Civil Action No. 14-C-838, with this case. But, Dr. Davari voluntarily withdrew his WVHRA claim and that matter was dismissed. So, this appeal involves only the claims Dr. Davari asserted in Civil Action No. 14-C-263. 6 trial if the State’s liability insurance policy potentially provides coverage, and 2) sovereign
immunity is not implicated in the context of a WPCA claim where a State employee seeks
to recover unpaid wages. And Dr. Davari argued that the doctrine of laches was not
applicable because he asserted his rights by making numerous inquiries about the
supplemental salary. Finally, Dr. Davari stated that WVU BOG was not entitled to
summary judgment because genuine issues of material fact exist that only a jury can decide.
The circuit court held a hearing on WVU BOG’s motion for summary
judgment in October 2019 and addressed the motion again at a pre-trial conference in
February 2020. In its March 2, 2020 order, the circuit court granted summary judgment in
favor of WVU BOG and dismissed the complaint. The circuit court found that WVU BOG
was entitled to sovereign immunity as to Dr. Davari’s claims for breach of contract,
quantum meruit, and unjust enrichment; it held that those claims were excluded from
insurance coverage under the State’s policy which provides that “[t]his insurance does not
apply to: . . . any claim(s) made against the “insured” for damages attributable to wages,
salaries and benefits.” The court noted that the policy also excluded coverage for “any
claim(s) based upon or attributable to any allegations or claims that the “insured” breached
the terms of any type or any form of contract, either express or implied, written or oral.”
The court observed that even if sovereign immunity did not bar Dr. Davari’s equitable
claims of quantum meruit and unjust enrichment, those claims would be barred by the
doctrine of laches. It reasoned that Dr. Davari offered no explanation for why he did not
7 inquire about this alleged supplemental salary between 2006 and 2012, so it granted
summary judgment on that alternative ground.
With regard to Dr. Davari’s WPCA claim, the circuit court found that WVU
BOG was entitled to summary judgment “because no genuine issue of material fact exists
regarding whether [Dr. Davari] has a valid, enforceable contract with WVU BOG
guaranteeing him a supplemental salary of $24,000 per year, [and] there is likewise no
genuine issue of material fact regarding whether WVU BOG violated the WPCA by not
paying [Dr. Davari] the $24,000 per year he seeks.”
Dr. Davari appeals the circuit court’s order granting summary judgment to
WVU BOG and dismissing his complaint with prejudice.
II. STANDARD OF REVIEW
As we held in syllabus point one of Painter v. Peavy, 9 “[a] circuit court’s
entry of summary judgment is reviewed de novo.”
Under Rule 56 of the West Virginia Rules of Civil Procedure, summary
judgment is “designed to effect a prompt disposition of controversies on their merits
without resort to a lengthy trial, if in essence there is no real dispute as to salient facts or if
9 192 W. Va. 189, 451 S.E.2d 755 (1994). 8 only a question of law is involved.” 10 We are mindful that “[a] motion for summary
judgment should be granted only 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.” 11 This Court and the court below “must draw any permissible inference from the
underlying facts in the light most favorable to the party opposing the motion [for summary
judgment].” 12 With these guiding principles, we consider the parties’ arguments.
III. ANALYSIS
Dr. Davari raises eight assignments of error in his challenge to the circuit
court’s summary judgment ruling in favor of WVU BOG. In three of his assignments of
error, Dr. Davari argues that a jury could find that an employment agreement required him
to be paid a supplemental salary of $24,000 for serving as Director of the Center, he did
not receive this compensation, and he did not waive this right. In two other assignments
of error Dr. Davari contends that the circuit court erred by granting the motion for summary
judgment on a theory of sovereign immunity because he is entitled to bring an action for
relief under the WPCA, and inconsistent provisions in the State’s insurance policy create
the potential for coverage. Dr. Davari also complains in two assignments of error that if
Hanks v. Beckley Newspapers Corp., 153 W. Va. 834, 836-37, 172 S.E.2d 816- 10
17 (1970). 11 Syl. Pt. 3, Aetna Casualty & Surety Co. v. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963). 12 Painter, 192 at 192, 451 S.E.2d at 758. 9 sovereign immunity does not apply, the doctrine of laches does not bar his alternative
claims based on quantum meruit and unjust enrichment, and even if it could, that is a factual
question for a jury. And in his final assignment of error, Dr. Davari contends that the
circuit court made several erroneous findings of fact and conclusions of law, and
improperly resolved disputed facts. We consolidate his assignments of error into three
categories for purposes of our discussion.
A. Sovereign Immunity Bars the Breach of Contract Claim and Equitable Claims
Several principles of law guide our resolution of sovereign immunity, the
first issue in this appeal. “[T]he policy which underlies sovereign immunity is to prevent
the diversion of State monies from legislatively appropriated purposes.” 13 So, where
monetary relief is sought against the State treasury for which a proper legislative
appropriation has not been made, sovereign immunity raises a bar to suit. 14 In syllabus
point one of City of Morgantown v. Ducker, 15 this Court recognized that: “The Board of
Governors of West Virginia University is a State agency, and, as such, is an arm of the
State and, under Article VI, Section 35 of the Constitution of West Virginia, is immune
from suit to enforce payment of a claim against such board.”
13 Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 296, 359 S.E.2d 124, 129 (1987) (citations and footnote omitted). 14 Id. 15 153 W. Va. 121, 168 S.E.2d 298 (1969). 10 While the State and its agencies are entitled to the benefit of sovereign
immunity, this Court carved a narrow exception in Pittsburgh Elevator Co. v. West Virginia
Board of Regents, 16 where a plaintiff merely seeks to recover under the State’s liability
insurance coverage. In syllabus point two of Pittsburgh Elevator, we held that “[s]uits
which seek no recovery from state funds, but rather allege that recovery is sought under
and up to the limits of the State’s liability insurance coverage, fall outside the traditional
constitutional bar to suits against the State.” 17
Dr. Davari argues that the circuit court erred in granting summary judgment
to WVU BOG on the basis of sovereign immunity because he is seeking a recovery only
from the State’s insurance policy. He maintains that the insurance policy is ambiguous and
may provide coverage for his breach of contract and equitable claims of quantum meruit
and unjust enrichment. WVU BOG disagrees and states that Dr. Davari’s claims are
specifically excluded under the plain terms of the insurance policy.
This Court has held that “[l]anguage in an insurance policy should be given
its plain, ordinary meaning.” 18 And “[w]here the provisions of an insurance policy contract
16 172 W. Va. 743, 310 S.E.2d 675 (1983). 17 Id. 18 Syl. Pt. 5, Bland v. State, 230 W. Va. 263, 737 S.E.2d 291 (2012) (quoting Syl. pt. 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), (continued . . .) 11 are clear and unambiguous they are not subject to judicial construction or interpretation,
but full effect will be given to the plain meaning intended.” 19
Dr. Davari’s claim for breach of contract and his equitable claims of quantum
meruit and unjust enrichment are all based on WVU BOG’s alleged failure to pay him a
supplemental salary for serving as Director of the Center. But claims to recover wages
owed under an employment contract are explicitly excluded by two separate provisions in
the State’s insurance policy. The policy provides that:
This insurance does not apply to: ....
H. To any claim(s) made against the “insured” for damages attributable to wages, salaries and benefits.
I. To any claim(s) based upon or attributable to any allegations or claims that the “insured” breached the terms of any type or any form of contract, either express or implied, written or oral.
Because Dr. Davari’s breach of contract and related equitable claims are explicitly
excluded by the insurance policy, he does not meet Pittsburgh Elevator’s narrow
exception.
overruled on other grounds by National Mut. Ins. Co. v. McMahon & Sons, 177 W. Va. 734, 356 S.E.2d 488 (1987)). 19 Id. at Syl. Pt. 6 (quoting Syl. Pt., Keffer v. Prudential Ins. Co., 153 W. Va. 813, 172 S.E.2d 714 (1970)). 12 We reject Dr. Davari’s argument that his claim for supplemental wages under
his employment contract could potentially be covered by the Comprehensive General
Liability Coverage (CGL) section of the State’s liability insurance coverage dealing with
“Incidental Contracts.” We examined this policy provision in Arnold Agency v. West
Virginia Lottery Commission, 20 and found “the CGL section extends only to claims of
bodily injury and property damage.” 21 And like the plaintiff in Arnold Agency, Dr. Davari
has never alleged such damages. So, under the clear language of the CGL section of the
State’s liability insurance policy, there is no coverage for Dr. Davari’s breach of contract
claim or alternative equitable theories of quantum meruit or unjust enrichment, and he does
not meet Pittsburgh Elevator’s exception to sovereign immunity.
For these reasons, WVU BOG is entitled to the benefit of sovereign
immunity on Dr. Davari’s claim for breach of contract, and his equitable claims of quantum
meruit and unjust enrichment. The circuit court did not err in granting WVU BOG’s
motion for summary judgment on these claims. 22
20 206 W. Va. 583, 526 S.E.2d 814 (1999). 21 Id. at 594, 526 S.E.2d at 826. 22 Because of the way that we resolve this issue, it is unnecessary to address Dr. Davari’s argument that the court misapplied the doctrine of laches to bar his alternative theories of unjust enrichment and quantum meruit.
13 B. Sovereign Immunity Does Not Bar the WPCA Claim
We next address Dr. Davari’s claim under the WPCA. West Virginia Code
§ 21-5-3(a) provides that:
Every person, firm or corporation doing business in this state, except railroad companies as provided in section one of this article, shall settle with its employees at least twice every month and with no more than 19 days between settlements, unless otherwise provided by special agreement, and pay them the wages due, less authorized deductions and authorized wage assignments, for their work or services.
This Court has held that “[t]he West Virginia Wage Payment and Collection Act is
remedial legislation designed to protect [all] working people and assist them in the
collection of compensation wrongly withheld.” 23 When determining an employee’s right
to wages, courts examine the terms of the applicable employment contract:
The determination as to whether “wages,” as defined in West Virginia Code § 21-5-1(c) (2013 Repl.Vol.), are payable pursuant to the requirements of West Virginia Code § 21-5-1 et seq. (2013 Repl.Vol.) is governed by the terms of the employment agreement, whether written or in the form of a consistently applied unwritten policy. 24
23 Mullins v. Venable, 171 W. Va. 92, 94, 297 S.E.2d 866, 869 (1982) (citation omitted). 24 Syl. Pt. 5, Adkins v. Am. Mine Rsch., Inc., 234 W. Va. 328, 765 S.E.2d 217 (2014).
14 Under circumstances almost identical in relevant respects to Dr. Davari’s
claim, this Court held in Beichler v. West Virginia University at Parkersburg, 25 that the
State’s sovereign immunity does not bar the claim of a State employee for unpaid wages
under the WPCA. In Beichler, the plaintiff taught physics for WVU; he entered into a
discretionary contract, which entitled him to extra compensation for work he performed
beyond his regular teaching duties. Dr. Beichler filed suit asserting claims under the
WPCA, but the circuit court dismissed his complaint, in part, based on sovereign immunity.
On appeal, this Court reversed and stated that “‘the sovereign immunity doctrine is not
implicated in the context of employee relations where the State, acting through its agents,
as an employer, has unlawfully withheld all or a part of an employee’s salary[.]’” 26 We
held in syllabus point five of Beichler that:
Article VI, § 35, of the Constitution of West Virginia, concerning this State’s sovereign immunity, does not bar the claim of a State employee for unpaid wages asserted under the West Virginia Wage Payment and Collection Act, W. Va. Code, 21-5-1 (1987), et seq., whether the claim is initiated through the administrative remedies provided under the Wage Payment and Collection Act or initiated by filing a complaint for the unpaid wages directly in circuit court. 27
25 226 W. Va. 321, 700 S.E.2d 532 (2010). 26 Beichler, 226 W. Va. at 325, 700 S.E.2d at 536 (quoting Gribben v. Kirk, 195 W. Va. 488, 495, 466 S.E.2d 147, 154 (1995)). 27 Id. at 322, 700 S.E.2d at 533, syl. pt. 5.
15 Dr. Davari argues that like the plaintiff in Beichler, he entered into a contract
to perform work over and above his regular duties as a professor (as reflected in his
appointment letter with attachment). Because Dr. Davari contends that he was not paid for
those services, he claims that he is entitled to seek damages under the WPCA. 28 WVU
BOG responds that Dr. Davari cannot use the WPCA to create a “back door” into a clearly
barred contractual claim. It contends that Dr. Davari’s WPCA claim “rises and falls” with
his breach of contract claim so closely that Dr. Davari cannot evade sovereign immunity
by “bootstrapping” his substantive claims to the WPCA. WVU BOG relies on Grim v.
Eastern Electric, LLC, 29 where this Court observed, “the WPCA does not create a right to
compensation; rather it merely provides a statutory vehicle for employees to recover
agreed-upon, earned wages from an employer.” 30 From there, WVU BOG attempts to
describe Dr. Davari’s WPCA claim as a “derivative claim.” But this characterization is
inaccurate. Derivative claims derive by operation of law from the main claim. For
example, where one spouse is injured the other spouse may have a claim for loss of
28 See W. Va. Code § 21-5-6, in part (“If any person, firm or corporation shall refuse for the period of five days to settle with and pay any of its employees at the intervals of time as provided in section three [§ 21-5-3] of this article, . . . and suit be brought for the amount overdue and unpaid, judgment for the amount of such claim proven to be due and unpaid, with legal interest thereon until paid, shall be rendered in favor of the plaintiff in such action[.]”). 29 234 W. Va. 557, 767 S.E.2d 267 (2014). 30 Id., at 572, 767 S.E.2d at 282.
16 consortium flowing from that injury. The loss of consortium claim is a derivative claim 31
that cannot be maintained independent of the underlying personal injury claim. 32 In
contrast, Dr. Davari’s WPCA claim is his independent statutory cause of action wholly
distinct from his common law breach of contract claim.
This Court rejects the suggestion that an employee is foreclosed from relying
on the WPCA simply because an employer disputes the terms or existence of an
employment contract giving rise to the claim for wages due. That position is untenable
considering the policy and purpose of the WPCA. Indeed, employers commonly raise this
type of defense in a WPCA action. 33 For instance, in Britner v. Medical Security Card,
Inc., 34 three employees were hired by the employer in 1990 under a contract that entitled
them to an annual fifteen percent raise. But the employer never paid the employees their
31 See State ex rel. Small v. Clawges, 231 W. Va. 301, 310, 745 S.E.2d 192, 201 (2013) (“It is generally recognized that in a procedural context, the derivative claim for loss of consortium is a mere incident to a cause of action and not the subject of an action itself.”) (citations omitted). 32 Southern Env’t, Inc. v. Bell, __ W. Va. __, 854 S.E.2d 285, 293 (2020). 33 See e.g., Adkins v. Am. Mine Rsch., Inc., 234 W. Va. 328, 765 S.E.2d 217 (2014) (plaintiff brought WPCA suit seeking unpaid commissions, and former employer denied that he was owed any additional commission upon his resignation; recognizing the parties disagreed as to how commissions were calculated, this Court held that the circuit court improperly determined there was no genuine issue of fact when it granted summary judgment for employer). 34 200 W. Va. 352, 489 S.E.2d 734 (1997).
17 raises. 35 In 1995, they voluntarily ended their employment and sued the employer to
recover their unpaid annual raises. The employer argued that it did not owe them the wages
because the employment contracts had been modified by the employees’ agreement to
defer the raises until the busines was profitable. So, the employer also argued that the
employees’ WPCA suit was barred by the doctrine of estoppel. 36 The circuit court rejected
these argument and granted summary judgment to the employees. On appeal, this Court
affirmed the ruling based upon the clear language of West Virginia Code § 21-5-10. 37
After concluding that the unpaid raises were “wages,” we reasoned that
estoppel is not a defense which can be successfully asserted to bar an action pursuant to W. Va. Code § 21-5-10 (1996).
....
The legislature has attempted to prevent employers from abusing their positions by compromising the wages of employees. The language in W. Va. Code § 21-5-10 is mandatory. An employer must pay earned wages to its employees. Any other reading would seriously compromise and undermine the legislative intent of W. Va. Code § 21-5-10. Therefore, we affirm the circuit court’s summary judgment ruling. 38
35 Id. at 353, 489 S.E.2d at 735. 36 Id. at 354, 489 S.E.2d at 736. 37 See W. Va. Code § 21-5-10 (“Except as provided in section thirteen, no provision of this article may in any way be contravened or set aside by private agreement, and the acceptance by an employee of a partial payment of wages shall not constitute a release as to the balance of his claim and any release required as a condition of such payment shall be null and void.”). 38 Britner, 200 W. Va. at 354-55, 489 S.E.2d at 736-37. 18 By finding that the doctrine of estoppel could not be utilized to bar the plaintiffs’ action
under the WPCA, this Court necessarily found that a WPCA claim can be brought even if
the employer disputed the terms of the applicable employment contract.
In Citynet, LLC v. Toney, 39 the employer denied that its “Employee Incentive
Plan” constituted a contract that entitled the employees to payment of their vested balance
in the plan when leaving the company, sufficient to support a WPCA claim. Mr. Toney
quit his employment and requested to redeem his vested balance in the plan of about
$87,000. Citynet refused and Mr. Toney brought a WPCA claim, among other claims. 40
The circuit court granted partial summary judgment to Mr. Toney and concluded that
Citynet’s failure to timely pay Mr. Toney his vested balance violated the WPCA. 41 This
Court affirmed, reasoning that the plan was a unilateral contract entitling the employee to
redeem his balance in the plan. 42 We stated that “Citynet employees who remain employed
with the company long enough to participate in the Plan and become vested in the benefits
39 235 W. Va. 79, 772 S.E.2d 36 (2015). 40 Id. at 84, 772 S.E.2d at 40. 41 Id. 42 Id.
19 offered, when they are under no obligation to do so, have provided sufficient consideration
for the formation of a unilateral contract.” 43
For all of these reasons, we find that sovereign immunity does not bar Dr.
Davari’s WPCA claim. Next, we take up whether a reasonable fact-finder viewing the
summary judgment record in the light most favorable to Dr. Davari could find that WVU
BOG violated the provisions of the WPCA.
C. Disputed Issues of Fact Exist Concerning WPCA Claim
Finally, we address whether Dr. Davari has presented sufficient evidence to
show that questions of material fact exist on his WPCA claim, namely: 1) whether an
employment agreement was created when he accepted the appointment of Director of the
Center that entitled him to receive a supplementary salary of $24,000 beginning in 2004,
and 2) whether he is owed these wages. To begin, we note that “[g]enerally, the existence
of a contract is a question of fact for the jury.” 44
Dr. Davari argues that WVU BOG is not entitled to summary judgment
because disputed evidence exists that could lead a jury to find in his favor on the creation
of a contract. He relies on the January 5, 2004, appointment letter from Dr. Sathyamoorthy
43 Id. at 86, 772 S.E.2d at 43. 44 Syl. Pt. 4, Cook v. Heck’s Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986). 20 that referenced the Center’s proposal and business plan that was “approved by the WVU
Tech’s Cabinet on December 2, 2003.” This attachment has a chart listing the salary for
the Center’s Director at $24,000. WVU BOG responds that summary judgment was
appropriate because there was never a meeting of the minds as to any specific compensation
for the Director’s position. WVU BOG contends that WVUIT’s Cabinet specifically
rejected the Center’s salary proposals at its November 2003 Cabinet meeting and that the
December 2003 meeting minutes do not reflect that those salaries were approved. But, Dr.
Davari replies that Dr. Sathyamoorthy confirmed the agreement that he was to be paid
$24,000 a year for serving as the Center’s Director in his 2013 e-mail. As this debate
demonstrates, factual issues clearly exist which preclude summary judgment.
Dr. Davari also contends that he presented evidence that he was never paid
this supplemental salary and that he made several inquiries and complaints about this over
the years. WVU BOG responds that Dr. Davari was one of the highest paid faculty
members at WVUIT and part of his salary was paid from external grant funds. WVU BOG
also states that Dr. Davari continued to endorse his annual notices appointing him to faculty
at WVUIT between 2006 and 2012, and those notices stated his total salary. WVU BOG
argues that even if Dr. Davari was entitled to receive a supplemental salary for his work as
Director of the Center, he waived that right by endorsing his annual notices of appointment.
But that is not a valid defense to a WPCA claim. West Virginia Code § 21-5-10 provides,
in part, that “acceptance by an employee of a partial payment of wages shall not constitute
a release as to the balance of his claim[.]” In any event, Dr. Davari replies that these notices 21 provide his total base salary as professor and they do not mention the supplemental salary
owed for serving as Director of the Center. Again, we conclude that factual issues exist
here.
In light of the standard for evaluating motions for summary judgment, where
a weighing of the evidence is not permitted, we conclude that Dr. Davari has pointed to
sufficient evidence that would allow a reasonable fact-finder to find in his favor that an
employment agreement existed under which he was entitled receive a supplementary salary
of $24,000 to serve as Director of the Center.
IV. CONCLUSION
WVU BOG is entitled to summary judgment on Dr. Davari’s claims for
breach of contract, quantum meruit, and unjust enrichment because those claims are barred
by the doctrine of sovereign immunity. We affirm that portion of the circuit court’s March
2, 2020 summary judgment order. But the circuit court erred in granting summary
judgment on Dr. Davari’s WPCA claim. So, that portion of the March 2, 2020 summary
judgment order is reversed, and the case is remanded for further proceedings.
Affirmed in part, reversed in part, and remanded.