October and November were months of growth and success here at Bailey & Wyant, PLLC. From attending conferences to obtaining summary judgments, our attorneys have kept busy this fall. Read all about it below!
Members Granted Summary Judgment
Managing Member, Charles R. Bailey, and Member, John P. Fuller, obtained Summary  Judgment on behalf of a West Virginia Sheriff's Department and a Deputy Sheriff before the United States District Court for the Southern District of West Virginia. 

The Plaintiff had alleged that while receiving treatment at a hospital in Huntington, WV, he was subjected to excessive force by the Deputy. The Defendant Deputy had transported a detainee from outside of Cabell County to the hospital in Cabell County. 

While waiting with his detainee, the Deputy was alerted to a disturbance in a room across the hall. Upon looking into the hallway, a nurse asked the Deputy for help. Upon entering the ER room, the Deputy observed the Plaintiff being physically combative with medical staff.

The Deputy first attempted to aid medical staff in gaining control of the Plaintiff by physically restraining the Plaintiff with the help of medical staff. When it became clear that the Plaintiff was not going to comply, the Deputy used his taser in the drive-stun mode and gained the Plaintiff's compliance. The Court held that the force was not excessive and granted Summary Judgment in favor of the Deputy and the Sheriff's Department.
Equal Pay Act to the Forefront

Managing Member, Charles R. Bailey, attended the 2019 Annual Meeting of the Defense Research Institute in  New Orleans, LA. One of the focuses of the seminar was the Equal Pay Act. Claims under the Equal Pay Act have been skyrocketing over the years as women now assert their right to be paid the same as their male counterparts for the same type of work performed.

One of the reasons for unequal pay between men and women is salary history. Because women have traditionally been paid less than men, they have historically been offered lower salaries than if a man were applying for the same position. Upon interviewing a new female employee, some employers will ask her the amount of her previous salary and will base her new salary on that number rather than her experience or qualifications. In many states, it is now unlawful to ask for a job applicant's salary history. Therefore, it is imperative for you to know the state law regarding this issue. 

The federal courts are divided on whether the past salary history may be used to set wages under the Equal Pay Act. The EPA codified under 29 USC §206(d)(1) provides in part "[n]o employer having employees subject to any provision of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex to establish a prima facie case under the EPA, a plaintiff must establish that (1) the employer has paid different wages to employees of the opposite sex; (2) for performing work that requires substantially equal skill, effort and responsibility; and (20) that such jobs are performed under similar working conditions. Strag v. Board of Trustees, 55 F.3d 943, 948 (Fourth Cir. 1995). 

The federal courts interpreting the Equal Pay Act are also divided as to whether or not past salary history can be considered for determining pay under the EPA. Presently, a business under the EPA cannot pay employees of one gender less than it pays the other for equal work. However, an exception applies to wages determined by merit or seniority system, the quantity or other factors other than gender. Those who watch Supreme Court decisions carefully that employers will be allowed to consider prior salary under certain circumstances. As stated above, in some states this is clearly prohibited. Employers and employees alike should be sensitive to matters raised under the EPA.
West Virginia Division of Corrections, Scott Patterson & Jason Walton v. P.R. 

Managing Member, Charles R. Bailey, and Members, David Mincer and Michael Taylor, won on appeal on behalf of the West Virginia Division of Corrections, Warden Patterson and Associate Warden Walton before the West Virginia Supreme Court of Appeals, which found their clients were entitled to qualified immunity on a negligence claim brought by an inmate who claimed they failed to protect her from other inmates who allegedly sexually assaulted her.  While there were serious questions about whether the sexual assault occurred at all, the Supreme Court agreed that our clients, who operated the correctional center, could not be liable for the alleged attack, because liability cannot be based on a general failure to protect an inmate and Plaintiff could not point to any specific law, rule, regulation or legal standard that was violated by Defendants.
Bailey & Wyant, PLLC Secures Summary Judgment on Behalf of Former Richwood Police Chief

On October 10, 2019, Bailey & Wyant, PLLC Member, Jennifer Tully, and Associate, Adam Strider, secured summary judgment on behalf of former Richwood Police Chief Lloyd Allen Cogar against claims of retaliatory discharge by Plaintiff and former Richwood police officer Timothy Withrow.

Mr. Withrow claimed that his discharge was in retaliation for alleged whistleblower activity, and pled claims under the West Virginia Whistleblower Act, wrongful termination in violation of West Virginia public policy pursuant to Harless, and for wrongful termination in violation of police civil service laws.  Ms. Tully and Mr. Strider successfully argued that the record of the case indicated that Mr. Withrow was terminated without cause for financial reasons.  The Court agreed, granting summary judgment.

The matter is of record under Timothy Withrow v. City of Richwood, Nicholas County Civil Action 18-C-90.
Patton v. County of Berkeley, et. al.
Managing Member, Charles R. Bailey, and Members, Jim Marshall and Michael Taylor, successfully obtained an affirmation in the West Virginia Supreme Court of Appeals of an Order from the Circuit Court of Berkeley County dismissing a case for failing to comply with the applicable statute of limitations. The Plaintiff below filed his Complaint against Berkeley County, Berkeley County Sheriff's Department and one of its Deputy Sheriffs after sending notice to the Attorney General and the County Commission of his intent to file suit. The Defendants moved to dismiss the Complaint for failure to file within the two year applicable statute of limitations.  

The Plaintiff argued in response that the County Sheriff and his law enforcement officials are members of the executive branch of the state government and thus the notice of intent to file suit tolled the statute of limitations by 30 days pursuant West Virginia Code § 55-17-1. The Berkeley County Circuit Court granted the Motion to Dismiss and denied the Plaintiff's Motion to Alter or Amend pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. On appeal, the Supreme Court of Appeals affirmed the Circuit Court's Orders in an opinion issuing the following new syllabus point:
3. County sheriff's departments and the law enforcement officials they employ are not within the executive branch of state government for purposes of the tolling provisions of West Virginia Code § 55-17-3(a)(2) (2016).

The Court concluded the Plaintiff was not entitled to rely on the tolling provision because the Sheriff's Department was not part of the Executive Branch of state government.  The Court found a Sheriff's Department is part of the countyand subject to the statue of limitations in West Virginia Code § 29-12A-6 which "does not contain a requirement to provide a political subdivision with a notice of intent to file suit, nor does it contain a tolling exception to the statute of limitations when the plaintiff provides notice of intent to file suit against a political subdivision. 

To read more about the case, click here.
Bailey & Wyant, PLLC Obtains Summary Judgment 

Managing Member, Charles R. Bailey, Member, Jordan Herrick and Of Counsel, Brent Benjamin, recently received summary judgment on behalf of their client in the Circuit Court of Marion County, West Virginia. The plaintiff sued her late husband's former employer for deliberate intent under West Virginia Code 23-4-2. The Circuit Court found that the plaintiff could not create a genuine dispute of material fact as to whether or not the employer had actual knowledge of the alleged unsafe working condition that plaintiff claims resulted in the death of her husband. This matter is currently being appealed by the plaintiff to the Supreme Court of Appeals of West Virginia.
Marc J. Slotnick

Marc Slotnick is a partner of Bailey & Slotnick, PLLC, a member of Bailey & Wyant, PLLC. His practice focuses on residential and commercial real estate matters throughout the state of West Virginia, wills, trusts, estate planning, corporate entities and contracts.

Marc is a member of the American Bar Association, West Virginia State Bar, West Virginia Bar Association, The Florida Bar, American Land Title Association, ALTA State Legislative/Regulatory Action Committee, West Virginia Bar Association Probate Committee, West Virginia State Bar Association and affiliate member of Kanawha Valley Board of Realtors. He is an agent for First American Title Insurance Company, Chicago Title Insurance Company, Old Republic National Title Insurance Company and WFG National Title Insurance Company. He was also former president of the Kanawha Valley Board of Realtors Foundation Board of Trustees and former chairperson of the West Virginia Bar Association, Real Estate Division.

For more information, please visit his attorney profile  on our web page. We also encourage you to visit the Bailey & Slotnick, PLLC website at 
Our philosophy is simple. We provide aggressive and effective legal representation, while being ever mindful of each client's individual needs, goals, and economic interests. No matter how complex or novel, our focus in a case is always to reach the right resolution for our client.

To discuss your case, e-mail us ( or give us a call at 304.345.4222 (Charleston) or 304.233.3100 (Wheeling) or 304.901.2000 (Martinsburg). 


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