WAY, 12. 2017711; 14M CIRCUIT CLERK" NO 879—P, IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA KIMBERLY B. O°TOOLE, Ph.D, Plaintiff, % CIVIL ACTION NO. 12-C- MOUNTAIN STATE UNIVERSITY, INC., a West Virginia corporation; and CHARLES H. POLK, Defendants, COMPLAINT For her Complaint against the Defendants, Kimberly O'Toole, PAD. alleges as fellows: Parties 1. Kimberly H. O'Toole, Ph.D. isa xesident of Gainesville, Prince William County, ‘Virginia. 2 Defendant Mountain Stsie University, Inc. (bereinafter “MSU"), is a West ‘Virginia corporation which provides private, higher education opportunities to individuals throughout the State of West Virginia, including Kanawhe County, in exchange for payment. Defendant MSU is also vicariously and strictly liable for the conduct ofits officers, directors, employees, agents, servants and trustees, 3. Defendant Charles H. Polk was the President of MSU and is @ resident of Beckley, Raleigh County, West Virginia, Facts fe From August 2006 through January 20, 2011, Kimberly H. O’Toole, Ph.D. was employed as a Professor of Sociology by Defendant MSU. At all material times herein, Dr. O'Toole was employed in accordance with an Employment Agreement effective September 1, 05/12/2017 11:28AM (GMT-Ol4: 00)WAY. 12.2017 11:14AM CIRCUIT CLERK No, 877—P, 2010 through August 31, 2011. In addition to teaching, research, administrative work, and Public service, the Employment Agreement required Dr. O* Toole to participate in collateral Activites such as providing “dixeetion to students.” 5. In October 2010, Dr, O'Toole and other faculty members were summoned to a ‘meeting with Exeeutive Vice President and Chiof Academic Officer, Roslyn Clatk-Artis. During the course of this meeting, Ms, Artis advised Dr. O° Toole and other faculty that accreditation for ‘Mountain Stato University’s School of Nursing was in jeopardy. Dr. O'Toole and other faculty ‘were further instructed not to discuss the accreditation problems with studenis of Mountain State University. 6. In October and early November 2020, Dr. O°Toole was approached by numerous students and asked about potential problems with the accreditation at Mountain State University. Dr. O'Toole refused to lie to the students and advised them that the accreditation was in Jeopardy. Hee On November 12, 2010, the West ‘Virginia Board of Examiners for Registered Professional Nurses (hereinafter “Board”) sent a leter to MSU Dean and Professor, Nancey France, The leter indicated that MSU School of Nursing failed to meet national accreditation standards and the Board now required the school to obtain full accreditation by a national accrediting agency approved by both the U.S. Department of Education and the Board. As ¢ resnlt ofthese deficiencies, and MSU's refusal to cure the deficiencies, the Board required that MSU cease and desist all admissions to nursing programs/pathways from Novemiber 12, 2010, fora minimum of fifteen (15) months, until MSU School of Nursing has met the requirements of the Board and restored its confidence in the School of Nursing’s ability to consistently comply with the West Virginia Code without constant monitoring and requests for correction and 05/12/2017 11:28AM (GMT-Ol4: 00)MAY. 12.2017 11:15AM CIRCUIT CLERK | SHO, 8798, clarification from the Board. The letter concluded thet the failure of MSU to comply with any Portion of the law, or any other of the Boards laws, rules, standards, guidelines, and/or requests shall result in immediate and complete withdrawal of accreditation by the Board, 8. OnNovember 18, 2010, an article titled “Mountain State University’s School of ‘Nursing has been sanctioned” appeared in the Register-Herald newspaper in Beckley, West Virginia, 9. Following the publication of the article in the Register-Herald, additional students approached Dr. O”Toole regarding MSU"s accreditation problems. Again, Dr. O° Toole refused to lie to the students and advised them that the accreditation was in. jeopardy, 10. Onor about December 10, 2010, MSU President Charles Polk directed a letter to. ‘the students in the Nursing Program. He discounted the students” fears regarding accreditation and indicated that MSU remained accredited by the National League of Nursing and the Board. President Polk also indicated that many of the concems expressed by the NINAC end WVBON hhad already been addressed and that the Nursing Program would achieve phenomenal success, 1. Onorabout December 14, 2010, Defendant Polk addressed the faculty at the Faculty Senate Meeting. During the course of the meeting, Defendant Polk advised faculty that any teacher who discussed the accreditation, with students or attempted to help students transfer to another school would be “fired for treason.” He advised the faculty that he would make sure ‘that all “traitors” were terminated, 12, On January 20, 2011, and in retaliation for Dr, O”Toole informing students that “MSU School of Nursing failed to meet the national accreditation standards, Dr. O'Toole was terminated by the Defendants. Dr. O’Toole was terminated without warning or reprimand. She ‘was advised that “The relationship between MSU and you is no longer working out.” Human 05/12/2017 11:28AM (GMT-04: 00)ae WAY. 12.2017 11:15AM CIRCUIT CLERK NO877P, resources employee, Kay de la Rosa, demanded Dr. 0’ Toole’s keys and identification. Di. O'Toole was escorted to her office and forced to remove her belongings from the office immediately. FIRST CAUSE OF ACTION: Breach of Contract 13. Plaintiff repeats andl incorporates by reference the allegations contained hereinabove in each and every paragraph as if set forth herein verbatim, 14, Dr. O°Toole performed all conditions, covenants, and promises required on her Part to be performed in accordance with the terms end conditions of the pertinent Employment Agreement. 15. Defeadants' direction for Dr. O”Toole and other faculty to refuse to discuss accreditation with students was a violation of the Employment Agreement which required Dr O'Toole to participate in collateral activities such as providing “direotion of students.” 16. Defendant MSU breached the agreement by terminating Dr. O'Toole without any cause or justification of any kind, 17. As a direct and proximate result of Defendant MSU's actions, Dr. 0’ Toole has suffered and will continue to suffer economic and non-economic loss SECOND CAUSE OF ACTION: ‘Wrongful and Retaliatory Discharge 18. Plaintiff repeats and incorporates by reference the allegations contained hereinabove in each and every paragraph as if set forth herein verbatim. 19, Tike actions of Defendants constituted unlawful retaliatory discharge motivated by issues in violation of substantial public policy of the State of West Virginia as articulated in the 05/12/2017 11:28AM (GMT-Ol4: 00)WAY. 12.2017 11:15AM CIRCUIT CLERK NO.879—P, & decision of the West Virginia Supreme Court of Appeals in Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 $.B.24 270 (1978). 20. Defendants, in retaliation for Dr. O° Toole informing students that the MSU “School of Nursing failed to meet the national accreditation standards, terminated Dr. O’Toole’s employment on January 20, 2011. 21. Asadirect and proximate result of Defendants’ actions, Dr. O° Toole has suffered and will continue to suffer lost wages and benefits. 22. Asadirect and proximate result of Defendants’ actions, Dr. O° Toole is entitled to damages for embarrassment, humiliation and emotional distress in an amount to be determined ‘by the jury. 23. _Asadirect and proximate result of Defendants’ willful, wanton and reckless misconduct, Dr. O°Toole is entitled to an award of punitive damages to punish Defendants and eter similar misconduct in the future, WHEREFORE, Plaintiff demands judgment against the Defendants for lost wages and benefits, back pay, dont pay, damages for embarrassment, humiliation and emotional distress, punitive damages, interest, attomey fees, and costs, PLAINTIFF DEMANDS A TRIAL BY JURY. KIMBERLY F. O’TOOLE, Ph.D. By counsel, ‘CBenjamin Salangé (WVSB #7790) Patrick Joseph Salango (WVSB # 11873) ‘PRESTON & SALANGO, PLLC. Post Office Box 3084 Charleston, West Virginia 25331 Phone; (304) 342-0512 Counsel for Plaintiff 05/12/2017 11:28AM (GMT-Ol4: 00)