ADVERSE EMPLOYMENT ACTIONS AND PUBLIC SCHOOL ...

policymaker. The court further granted summary judgment and granted qualified immunity to the
individuals named in the suit. This appeal followed.
Issues: (1) Was Vargas-Harrison’s speech protected, or was she a policymaker bound to
show a certain amount of allegiance to her superiors and the institution?
Holding: The court held with all determinations of the trial court in so much that Vargas-
Harrison was a policymaker, and her speech on May 25, 1999, was not protected by the first
amendment making her demotion a retaliatory employment action.
Reasoning: First, the court had to determine whether Vargas-Harrison’s speech was
correctly identified under the policymaker tag, and if her speech should then be weighed using
the Pickering v. Board of Education (1968) balancing test or the policymaker corollary to
determine whether it was protected or not. In light of the statutory provisions afforded Vargas-
Harrison to maintain, operate, select, and evaluate employees for a public school coupled with
her “policymaking” in the P-5 proposal, the court quickly determined that she was a
policymaker. Consequently, the policymaker corollary was more aptly applied. In so doing, the
board found that Vargas-Harrison’s public speech was not protected under the First Amendment,
as it ran counter to all the points that her employer was trying to espouse. This determination
rendered all other claims moot.
2002
Disposition: The court affirmed the granting of summary judgment on all parts.
Citation: Graham v. Putnam County Board of Education, 212 W. Va. 524; 575 S.E.2d
134, (2002 W. Va.).
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