Nicholas Graley v. City of South Charleston, West Virignia
Date Filed2023-12-27
Docket22-ica-267
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
NICHOLAS GRALEY, December 27, 2023
Respondent Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-267 (Cir. Ct. Kanawha Cnty. Case No. 22-AA-30)
CITY OF SOUTH CHARLESTON,
WEST VIRGINIA,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Nicholas Graley appeals the Circuit Court of Kanawha Countyâs October
27, 2022, order. In that order, the circuit court reversed the order of the South Charleston
Fire Civil Service Commission (âCommissionâ) and concluded that the termination of Mr.
Graley should be affirmed. Respondent City of South Charleston, West Virginia, (âCityâ)
filed a response in support of the circuit courtâs order. 1 Mr. Graley filed a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the partiesâ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit courtâs order is appropriate
under Rule 21 of the Rules of Appellate Procedure.
Mr. Graley was a firefighter for the City of South Charleston Fire Department (âFire
Departmentâ) from July 20, 2012, until his termination sometime in late May of 2020.
During his employment, he rose to the rank of lieutenant and served as acting captain from
time to time.
On May 30, 2019, Mr. Graley was involved in a situation that was described by the
investigating police officer as a wanton endangerment incident. According to the officerâs
narrative, Mr. Graley was drinking at an Applebeeâs restaurant in South Charleston with
friends. The boyfriend of one of Mr. Graleyâs friends arrived and an argument ensued. The
incident culminated in Mr. Graley following the friend and boyfriend on their way to the
boyfriendâs home, despite being asked by his friend to stop following them, and Mr. Graley
1
Mr. Graley is represented by Mark McMillian, Esq. The City of South Charleston
is represented by W. Michael Moore, Esq., and Karen E. Klein, Esq.
1
discharging his firearm multiple times while driving. The police contacted Mr. Graley, who
denied discharging his firearm. However, on June 6, 2019, Mr. Graley and his attorney met
with police again. At that time, Mr. Graley admitted to discharging his firearm during the
May 30, 2019, incident. On June 1, 2019, South Charleston Fire Chief Virgil White
(âChief Whiteâ) received a call from Mr. Graley in which Mr. Graley stated that he needed
to come by Chief Whiteâs office to discuss something. A meeting was held that day wherein
Mr. Graley explained the incident as a simple verbal altercation after which the involved
parties went their separate ways. He did not mention that he discharged his firearm in
public.
On January 30, 2020, Mr. Graley was arrested for domestic assault against Caitlan
Wilson, the mother of his child. According to the investigating officerâs narrative, the
South Charleston Police Department responded to a call from Ms. Wilson wherein she
stated that a male had a gun and was telling her to hang up or he would shoot her. Ms.
Wilsonâs mother, who was also at the home when police arrived, told police that when she
attempted to call 911, Mr. Graley told her to hang up or he would give the police a reason
to show up, all while holding his AR rifle. At the hearing before the Commission, one of
the officers who responded on scene testified that upon arriving, he detected the odor of
alcohol emanating from Mr. Graleyâs person and Mr. Graley had red, glassy eyes and
slurred speech. The officer testified that Ms. Wilson and the two children who were present
were crying and hysterical. In Ms. Wilsonâs written statement to police, she stated:
Nick Graley showed up to talk after calling and said if I didnât answer he was
kicking in [the] door and if I called [the] cops he would leave in [a] body bag
or cuffs. I let him in but called mom before he showed up scared. He took
my phone from me physically and when my mom called he wouldnât let me
talk to her. She Jennifer Wilson showed up [and] he got in her face cussing
and yelling at her. He calmed down but went back and forth getting angry.
After my mom told him enough was enough he needed to leave he got angry
again throwing a picture frame into the wall. We were both terrified[,] she
told him that was it she was calling [the] cops he got back in her face telling
her to call them he would give them a reason to be here. He then went
downstairs to his safe and got a gun. We all went back into a bedroom with
the kids and shut [the] door. He came in with a gun telling my mom to hang
up. He left the room went downstairs put the gun back I assume. He came
back in the room and told my mom and I âFxxx youâ and went to leave but
a cop pulled up before he could get away. I honestly donât know what he will
do to me. I was terrified he would shoot me or himself in front of the kids.
Or even [what] he would do to cops. He told me he would shoot everyone
that showed up. I donât know what he will do but I fear for myself and my
kids.
2
Mr. Graley was arrested and released on a personal recognizance bond with the
condition that he have no contact with Ms. Wilson. Mr. Graley met with Chief White to
discuss this incident on February 5, 2020. At the meeting, Mr. Graley indicated that the
situation was being blown out of proportion by Ms. Wilsonâs family members and he
denied that he had a gun during the incident. Chief White communicated that Mr. Graleyâs
behavior seemed to indicate a pattern that would not be tolerated. The Fire Department set
up anger management counseling for Mr. Graley, who attended only a few sessions before
stopping.
On May 9, 2020, Mr. Graley was again arrested for domestic assault against Ms.
Wilson. According to the officer narrative, Mr. Graley came to Ms. Wilsonâs residence to
return his childâs iPad. Upon his arrival, Ms. Wilson could tell that Mr. Graley had been
drinking. She made a comment about Mr. Graley tracking mud into her home with his
boots. This caused Mr. Graley to become agitated. He stomped his boots, smashed a glass
picture frame, and then raised his fist as if he was going to hit Ms. Wilson. Ms. Wilson
called her mother who then called Ms. Wilsonâs brother-in-law, John Morrison, to go and
check on Ms. Wilson. When Mr. Morrison arrived, he found Ms. Wilson and Mr. Graley
arguing in the living room in front of two children. Mr. Morrison told Mr. Graley that he
needed to leave. Mr. Graley then grabbed two steak knives from the kitchen and held them
up to Mr. Morrison and told him that he was going to stab him. Mr. Morrison acted like he
was going to leave which caused Mr. Graley to put the knives down. Mr. Morrison then
tackled Mr. Graley and the two began to fight until the police arrived. According to the
testimony of Mr. Morrison, during the incident, Mr. Graley punched a hole in the drywall
of the home. Mr. Graley was arrested and taken to the hospital to receive stitches before
being transported to jail. While in jail, Mr. Graley contacted his father to get his father to
arrange a shift change for him at the Fire Department. On May 11, 2020, Mr. Graley met
with Chief White to discuss the incident. Mr. Graley did not admit any wrongdoing and
described wielding the knives as self-defense.
On May 11, 2020, an official investigation was opened by the Fire Department into
Mr. Graley. On May 14, 2020, Chief White issued a report that summarized the findings
of the investigation. The report found that Mr. Graley violated the following:
City Code Article 167.19 (e) Willful abuse or deliberate damage to City
property or property of another employee or the
property of a City resident;
(n) Disrespectful behavior directed toward fellow
employees, supervisors or the residents at large;
(t) Refusal to obey instructions, or
insubordination;
3
Fire Department General
Rules and Regulations
Section IV (m) Promptly notify their immediate supervisor of
all matters coming to their attention affecting the
interest and welfare of the department.
Chief White concluded his report by stating:
This has a negative impact and can create a public perception of distrust with
the core values of the City of South Charleston and the South Charleston Fire
Department. There has been a pattern of erratic and dangerous behavior (3
incidents), conducted in a short span of time resulting in law enforcement
intervention. Two (2) of these incidents have resulted in an arrest.
It is concluded that this type of behavior will not be condoned. Whether a
firefighter is on duty or off duty their actions are held accountable.
Chief White then attempted to meet with Mr. Graley to discuss the results of the
investigation. It appears from the testimony before the Commission that Chief White
initially determined that Mr. Graley would be reprimanded but had not decided if Mr.
Graley would be terminated. A time was set for the meeting, but Mr. Graley did not show.
When contacted by Chief White, Mr. Graley indicated that he was waiting to hear back
from his lawyer before he attended the hearing. Mr. Graley was also concerned he would
be arrested at a meeting because he was wanted by law enforcement for violating the
conditions of his bond. Mr. Graley also communicated to Chief White that he planned to
turn himself in but not until the following Monday because he did not want to ruin his
weekend. Mr. Graley eventually turned himself in on May 16, 2020.
In an undated letter, Chief White informed Mr. Graley that his employment was
terminated. In addition to the violations listed in the report, the termination letter also
included a violation of the City Code concerning city employees who are arrested, indicted,
or convicted of crimes outside of the workplace. The letter stated that because exigent
circumstances existed, the termination would be effective immediately.
Mr. Graley filed a writ of mandamus in circuit court challenging the immediate
termination due to exigent circumstances. By order dated November 20, 2020, the circuit
court denied the petition and concluded that Mr. Graley was properly terminated
immediately due to exigent circumstances. The circuit court noted that it was reasonable
to believe that an individual with obvious anger management issues could have difficulty
performing his job as a firefighter in a dutiful manner if an on-the-job circumstance were
to trigger his anger.
4
On December 29, 2020, a hearing was held before an internal Fire Department
hearing board. By order entered February 8, 2021, the hearing board affirmed Mr. Graleyâs
termination. Mr. Graley then appealed to the Commission.
On December 8, 2021, the Commission held a de novo hearing. At the hearing, two
police officers involved in the incidents testified, as did Mr. Morrison, Chief White, and
Ms. Wilson. Mr. Graley did not testify. Ms. Wilson testified that at the time of the hearing
before the Commission, her relationship with Mr. Graley was the best it had ever been. 2
Ms. Wilson went on to essentially walk back everything she had told to police following
the January and May 2020 incidents. She testified, among other things, that Mr. Graley had
never raised his hand at her or threatened to shoot anyone; that no one was ever in danger
of serious injury; and regarding the May 2020 incident, that she never invited Mr. Morrison
into her home or asked him to remove Mr. Graley and therefore Mr. Morrison was
essentially acting as a vigilante. On cross-examination, Ms. Wilson refused to read her
prior statement to police on the record but answered questions from the Cityâs attorney
about the contents of her prior statement. When one of the commissioners questioned the
conflict between her statements to police and her testimony before the Commission, Ms.
Wilson and Mr. Graleyâs attorney attempted to reconcile her statements by saying that she
was not recanting her prior statements but was simply trying to say that, in hindsight, Mr.
Graley was not objectively a danger. Ms. Wilson eventually stated that she was âabsolutely
notâ recanting her statements to police.
On January 24, 2022, the Commission issued its initial order which contemplated
another order to follow âwith facts to be used in any appeal process by eitherâ party. On
March 24, 2022, the Commission issued its three-page final order. In that order, the
Commission found that the City did not prove that Mr. Graley damaged the property of
another City resident because the picture frame that he broke was jointly owned by him
and Ms. Wilson. The Commission further found that the City did not prove that Mr. Graley
was disrespectful toward a City resident because Ms. Wilsonâs testimony rebutted the
police report and the interaction between Mr. Graley and Mr. Morrison was confrontational
but not disrespectful. The Commission found that the City did prove that Mr. Graley
refused to obey instructions because Chief White ordered Mr. Graley to come to his office
and Mr. Graley disregarded such order. The Commission further found that the City proved
that Mr. Graley was arrested outside the workplace. The Commissionâs order does not
specifically decide whether the violation concerning promptly notifying his immediate
supervisor of his arrests was proven though it does state that â[d]uring the call to your
father to arrange a shift trade, it should have also been a priority to notify your immediate
2
By relationship, it appears that Ms. Wilson meant their relationship as parents.
Later in her testimony Ms. Wilson stated that she was getting married to someone other
than Mr. Graley.
5
supervisor or the fire chief of the fact that you were under arrest and in jail.â The order also
stated that since Chief White testified that he was initially planning to reprimand Mr.
Graley, exigent circumstances did not exist. The City appealed to circuit court.
After briefing by the parties, the circuit court entered its final order on October 27,
2022. In that order, the circuit court found that the Commissionâs order was factually
deficient. It stated, â[w]ithout explicit findings of fact by the factfinder, i.e., the
Commission, this Court must adopt its own findings of fact consistent with the evidence
presented before the Commission.â The circuit court went on to note that the Commission
failed to consider any of the uncontroverted evidence of the May 30, 2019, incident and
the Commissionâs decision was counter to the evidence presented regarding the two other
incidents. The circuit court overturned the order of the Commission and concluded that the
termination of Mr. Graley was just and proper. It is from this order that Mr. Graley now
appeals.
We apply the following standard of review in appeals from a Civil Service
Commission: âA final order of the Civil Service Commission based upon a finding of fact
will not be reversed by this Court upon appeal unless it is clearly wrong.â Syl. Billings v.
Civil Service Commission, 154 W.Va. 688,178 S.E.2d 801
(1971).
An adjudicative decision of the . . . Civil Service Commission should not be
overturned by an appellate court unless it was clearly erroneous, arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the
law. Review under this standard is narrow and the reviewing court looks to
the . . . Commissionâs action to determine whether the record reveals that a
substantial and rational basis exists for its decision.
An appellate court may reverse a decision of the . . . Civil Service
Commission as clearly wrong or arbitrary or capricious only if the
Commission used a misapplication of the law, entirely failed to consider an
important aspect of the problem, offered an explanation that ran counter to
the evidence before the Commission, or offered one that was so implausible
that it could not be ascribed to a difference in view or the product of
Commission expertise.
Syl. Pts. 1 & 2, In re Queen, 196 W. Va. 442, 444,473 S.E.2d 483, 485
(1996). In Queen, the Supreme Court of Appeals of West Virginia stated that an appellate courtâs âreview of the circuit courtâs decision made in view of the Commissionâs action is generally de novo. Thus, we review the Commissionâs adjudicative decision from the same position as the circuit court.âId. at 446
,473 S.E.2d at 487
.
On appeal, Mr. Graley asserts that the circuit court erred by essentially undertaking
a de novo review of the case. While the wording used by the circuit court appears to suggest
6
that the circuit court improperly usurped the role of fact finder due to the lack of fulsome
findings of fact in the Commissionâs final order, because we review the Commissionâs
decision from the same position as the circuit court, this alleged error by the circuit court
is not dispositive. Rather, the issue before this Court is whether the record reveals a
substantial and rational basis for the Commissionâs decision. After review of the record,
we find that the decision of the Commission is not supported by a substantial and rational
basis. Further, the final order of the Commission is reversed because the Commission
entirely failed to consider important aspects of the case and offered explanations that ran
counter to the evidence.
For instance, the Commission failed to consider any of the facts related to the May
30, 2019, incident wherein Mr. Graley was involved in an altercation while drinking in
public then followed members of that altercation home after being asked not to, discharged
his firearm from his vehicle, and initially lied to law enforcement about his actions. The
Commission also failed to consider that Mr. Graley lied about, or minimized, his actions
concerning this incident to Chief White.
As it relates to Mr. Graleyâs two arrests for domestic assault, the Commissionâs
finding that the incidents were âheated conversations of a domestic natureâ between âco-
antagonistsâ runs counter to the evidence before the Commission. Although Ms. Wilsonâs
testimony before the Commission attempted to minimize her statements to police, she
specifically testified that she was âabsolutely notâ recanting her prior statements. As
outlined above, those statements include troubling threats by Mr. Graley, disrespectful
behavior by Mr. Graley toward Ms. Wilson and her mother, Mr. Graley wielding a firearm
during the first incident, and Ms. Wilson expressing a fear for her safety, the safety of her
children, and the safety of law enforcement. Likewise, the Commissionâs finding that Mr.
Graley was not disrespectful to Mr. Morrison runs counter to the evidence before the
Commission. Both Mr. Morrison and Ms. Wilson testified that Mr. Graley told Mr.
Morrison that he was going to kill him while wielding steak knives. Mr. Morrison also
testified that Mr. Graley got in his face and âchest bumpedâ him. Such actions are clearly
disrespectful of Mr. Morrison, if not worse.
West Virginia Code § 8-15-25 (1996) provides in pertinent part that â[n]o member
of any paid fire department subject to the civil service provisions of this article may be
removed, discharged, suspended or reduced in rank or pay except for just cause[.]â Just
cause has been defined by the Supreme Court of Appeals of West Virginia as a substantial
cause:
which specially relates to and affects the administration of the office, and
must be restricted to something of a substantial nature directly affecting the
rights and interest of the public. An officer should not be removed from office
for matters which are trivial, inconsequential, or hypothetical, or for mere
technical violations of statute or official duty without wrongful intention.
7
Giannini v. Firemen's Civ. Serv. Comm'n of City of Huntington, 220 W. Va. 59, 63,640 S.E.2d 122, 126
(2006) (citation omitted).
âA firefighter's job is characterized by his or her responsibility to the public, and
the . . . mental acuity of public safety personnel [is] of utmost significance.â Id. at 64â65,
640 S.E.2d at 127â28. Here, as discussed above, Mr. Graley had been drinking and
followed people home with whom he had been in an altercation, after being asked not to,
discharged his firearm while driving, lied to law enforcement, lied to or misled his
supervisor, threatened others with deadly weapons on multiple occasions, was arrested
multiple times, and repeatedly disrespected others. Such actions demonstrate poor
judgment, recklessness, and an inability of Mr. Graley to manage his anger; all of which
call into question his mental acuity, ability to reason and to make decisions as a firefighter
that affect public safety. Such actions by Mr. Graley constitute misconduct of a substantial
nature specially related to and affecting Mr. Graleyâs ability to perform tasks inherent in
being a firefighter. Accordingly, there was just cause for Mr. Graleyâs immediate
termination.
Therefore, we affirm the circuit courtâs October 27, 2022, order insomuch as it
reversed the Commissionâs March 24, 2022, final order.
Affirmed.
ISSUED: December 27, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
8