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DHHR says employees' lawsuit should be dismissed

CHARLESTON, W.Va. -- Private attorneys representing the state Department of Health and Human Resources filed a motion in Kanawha Circuit Court Tuesday to dismiss a whistleblower lawsuit filed by two DHHR attorneys who have been on administrative leave since July.

In the motion to dismiss, attorneys Dawn George and Charles Bailey contend that Susan Perry and Jennifer Taylor do not have grounds to sue the DHHR, in part because they have not been suspended without pay or fired.

In complaints filed in October, DHHR attorneys Perry and Taylor argued they have been subjected to illegal reprisals, public humiliation, and have suffered damage to their professional reputations for attempting the honest performance of their duties as DHHR lawyers.

The motion to dismiss argues that there are no grounds to pursue the whistleblower suit, in part, because neither Perry, Taylor  nor communications director John Law, who was also placed on administrative leave, have been fired or suspended because of their actions.

"Ms. Perry, Ms. Taylor, and Mr. Law were not terminated from their employment with DHHR, indeed, each continues to collect their full salary and benefits as if they were reporting to work each day," the motion states

"Ms. Perry, Ms. Taylor, and Mr. Law are on administrative reassignment despite the fact that DHHR has the right to dismiss them in accordance with their at will status, yet DHHR continues to compensate them fully pending the outcome of the related criminal investigation," the motion continues.

The lawsuits by Perry and Taylor contend that they, along with Law -- who has not joined the legal action -- were reprimanded for raising concerns about inconsistencies in evaluation and scoring of bid packages for the DHHR advertising and marketing contract, a contract estimated to be worth as much as $6 million a year.

They contend their concerns were heightened by a pattern of DHHR mishandling of previous bid evaluations, including a contract for a multimillion-dollar Medicaid Management Information System, where the request for bids have been recalled and resubmitted three times, prompting an investigation by the state legislative auditor.

The motion to dismiss argues that neither Perry nor Taylor have legal authority to conduct a review of the bid process, and that acting DHHR Secretary Rocco Fucillo was under no legal obligation to follow the advice, so it couldn't constitute whistle-blowing.

Perry, Taylor and Law last week received a fourth 30-day extension of their administrative leaves.

Reach Phil Kabler at philk@wvgazette.com or 304-348-1220.


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