436 F2d 423 Kirker v. A Moore

436 F.2d 423

76 L.R.R.M. (BNA) 2378, 65 Lab.Cas. P 11,811

Lyle KIRKER et al., Appellants,
Arch A. MOORE, Jr., et al., Appellees.

No. 14713.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 7, 1971.
Decided Jan. 28, 1971.

Jules Bernstein (Robert J. Connerton, Arthur M. Schiller and James B. McIntyre, on the brief), for appellants.

F. Paul Chambers, Sp. Asst. Atty. Gen. of West Virginia (Chauncey H. Browning, Jr., Atty. Gen. of West Virginia, John R. Lukens, Louis S. Southworth, II, Charleston, W.Va., and Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., and Richard E. Tyson, Huntington, W.Va., on the brief, for appellees.

Before HAYNSWORTH, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.


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The plaintiffs, formerly employees of the West Virginia State Road Commission, contest their discharge by the defendants on March 11, 1969 after they had concertedly refused to work in the face of severe weather conditions persisting over much of the state. They appeal from the district court's order granting summary judgment for the defendants.


For the reasons stated by the district court,1 we are persuaded that the defendants were entitled to discharge the plaintiffs for any reason other than for their exercise of constitutionally protected rights, and that there was no requirement that any administrative hearing be held. In the face of the record demonstrating without contradiction that the plaintiffs had refused to perform their duties under conditions of extreme peril to users of the state's highways, we agree that the district court correctly held that their exhibits and other supporting papers failed to show the existence of any triable issue of fact relating to the reason for their discharge. The grant of summary judgment was proper.




Kirker v. Moore, S.D.W.Va., 308 F.Supp. 615