Grafton, West Virginia
Franklin D. Cleckley
Morgantown, West Virginia
Co-Counsel for Appellees
Anita R. Casey
Robert P. Martin
Meyer, Darragh, Buckler,
Bebenek & Eck
Charleston, West Virginia
Counsel for Appellants
JUSTICE WORKMAN delivered the Opinion of the Court.
1. An oral promise which has as its effect the alteration of
an "at will" employment relationship must contain terms that are
both ascertainable and definitive in nature to be enforceable.
2. "Where an employee seeks to establish a permanent
employment contract or other substantial employment right, either
through an express promise by the employer or by implication from
the employer's personnel manual, policies, or custom and practice,
such claim must be established by clear and convincing evidence."
Syl. Pt. 3, Adkins v. Inco Alloys Int'l., Inc., 187 W. Va. 219, 417
S.E.2d 910 (1992).
3. "A plaintiff seeking to avoid the condemnation of his
parol evidence through the 'capable of performance' exception to
the statute of frauds, W. Va. Code, 55-1-1(f) , must show
clear and convincing evidence that the contract actually exists
before a court may submit the plaintiff's claim to a jury." Syl.
Pt. 2, Thompson v. Stuckey, 171 W. Va. 483, 300 S.E.2d 295 (1983).
The Appellants, Jerome Bauman, Robert Baum, William Randles,
and Cablentertainment, appeal from a judgment order entered on
April 24, 1991, upholding a jury's verdict that they breached an
oral contract of employment with Appellees, Beulah Sayres, Timothy
Sayres, Jackie Rollyson, Cynthia Sayres, G. Michael Sayres, Donna
Sayres, Gerald Lee Sayres, and Jean Riffle. Finding insufficient
evidence to establish the existence of any contract of employment,
we reverse the decision of the circuit court.
In August of 1981, Cablentertainment purchased Midwest CATV
Corp. ("Midwest"). Midwest had been the owner and operator of
certain cable entertainment systems located in West Virginia,
including the systems which had employed the Appellees prior to
August 1981. Following the purchase, each of the Appellees was
hired by Cablentertainment. The Appellees continued to be employed
by Cablentertainment until November 1982 when all of the Appellees
were discharged because of a newly-adopted nepotism policy.See footnote 1
As a result of their discharge, the Appellees initiated a civil action in the Circuit Court of Harrison County, alleging that they had been guaranteed continued employment with Cablentertainment for an indefinite and unspecified period of time.
The Appellees differed in their testimony concerning the length of
time for which their respective employment had allegedly been
guaranteed. Some of the Appellees were of the opinion that they
could terminate their employment with Cablentertainment at any
time, but conversely believed that Cablentertainment was
irrevocably bound by the alleged oral contract of employment. The
Appellees failed to identify the exact terms of their alleged
employment contracts, as well as when or where the alleged
representations or assurances were made by Cablentertainment.
Neither during their employment with Midwest nor their subsequent
employment with Cablentertainment did any of the Appellees have a
written contract of employment with either cable system.
Additionally, the parties are in agreement that there are no
contemporaneous memoranda of the alleged oral contracts nor any
employee handbooks which might impact upon these issues.
On March 11 and 12, 1991, the Appellees proceeded to trial
solely on the issue of liabilitySee footnote 2 arising from their breach of
contract theory. At the conclusion of the Appellees' evidence,
Cablentertainment moved for a directed verdict. The trial court
granted the motion only as to Charles Chesser. Following the
conclusion of Cablentertainment's case, it renewed its motion for
a directed verdict and the motion was granted as to Mary Wamsley,
but denied as to the remaining Appellees. At the conclusion of all
the evidence, instructions of the court, and argument of counsel,
the jury was presented with two special interrogatories. The jury
responded affirmatively to each of the following interrogatories:
1. Do you the jury find from clear and
convincing evidence that the plaintiffs and
Cablentertainment entered into an oral
contract whereby Cablentertainment agreed to
employ each and every one of the plaintiffs?
2. Do you the jury find from clear and
convincing evidence that the contract was
breached by the defendants on or about
November 1, 1982?
Cablentertainment moved for a new trial on June 6, 1991, on the grounds that the jury verdict was contrary to the evidence and the law. In an order entered on June 17, 1991, the circuit court denied the motion for a new trial but stayed further proceedings necessary to resolve the issue of damages pending the outcome of this appeal. Accordingly, the Appellants seek the reversal of the jury verdict finding the existence of an oral contract of employment between themselves and the Appellees.
The law on "at will" employment is both clear and well-defined
in West Virginia. Individuals employed pursuant to an oral
agreement in which the expected duration of employment was never
specified are considered "at will" employees. See Harless v. First
Nat'l Bank in Fairmont, 162 W. Va. 116, 119-20, 246 S.E.2d 270, 273
(1978) (citing Wright v. Standard Ultramarine & Color Co., 141 W.
Va. 368, 382, 90 S.E.2d 459, 468 (1955) and Adair v. United States,
208 U.S. 161 (1908)). This Court has recognized that an employer
may modify the "at will" status of its employees by distributing an
employee handbook which contains a definite promise by the employer
that he will not discharge his employees except for certain
specified causes. See Cook v. Heck's, Inc., 176 W. Va. 368, 373-74, 342 S.E.2d 453, 459 (1986).
In reviewing West Virginia cases on employment law, the
Northern District of West Virginia in White v. National Steel
Corp., 742 F. Supp. 312 (N.D. W. Va. 1989), judgment aff'd in part,
rev'd in part, 938 F.2d 474 (1991), cert. denied, 112 S. Ct. 454
(1991), noted that:
Heck's does not support the view that an
employment contract can be implied solely from
past practices, in the absence of affirmative
acts, promises, or written representations.
Indeed, Heck's emphasized that, at least in
the handbook area, 'the offer must be definite
in form and must be communicated to the
offeree.' 342 S.E.2d at 459. . . .
. . . .
. . . .
The above-discussed West Virginia cases
represent the existing law of that state with
regard to implied employment contracts in
derogation of an employee's "at will" status.
Those cases go no further than to state that
representations contained in an employee
handbook which are clear and definite and are
intended by the employer to be used by
employees, can meet the normal requirements
for formation of an implied contract. While
language in these cases may refer to
'policies' and 'practices' generally, there is
no indication that the principles of Heck's
are intended to apply in any situation other
than in one involving a handbook or comparable
writing. Seemingly, therefore, West Virginia
law requires some solid evidence that a
promise consisting of ascertainable terms has
been expressly made.
742 F. Supp. at 329-30 (discussing Cook, Conaway v. Eastern Ass'd Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986), and Collins v. Elkay Mining Co., 179 W. Va. 549, 371 S.E.2d 46 (1988) (emphasis added)).
Although an employee handbook is not relied upon in this case
to prove the existence of the alleged employment contracts, those
prior decisions of this Court which address what is required before
any statements in such a handbook can actually affect the "at will"
relationship are useful in analyzing the case at bar. This Court's
most recent discussion of employee handbooks is found in Suter v.
Harsco Corp., 184 W. Va. 734, 403 S.E.2d 751 (1991):
In West Virginia, the law presumes
employment to be terminable at will. In Syl.
Pt. 2, Wright v. Standard Ultramarine & Color
Co., 141 W. Va. 368, 90 S.E.2d 459 (1955), we
said: 'When a contract of employment is of
indefinite duration it may be terminated at
any time by either party to the contract.'
The burden is on the party contending that the
relationship was other than terminable at will
to rebut the presumption of employment
terminable at will. . . .
If the presumption in West Virginia were
against employment terminable at will, an
employer seeking to create an employment at
will relationship would have to disclaim
guarantees of job security in a very bold and
definite way, perhaps with language such as
'Employees serve at the will and pleasure of
the employer and can be fired at any time and
without any notice, for any reason or no
reason at all.' However, because we operate
on the opposite presumption--that is, that
every employment relation is terminable at
will, any promises alleged to alter that
presumptive relationship must be very definite
to be enforceable.
184 W. Va. at 737, 403 S.E.2d at 754 (emphasis in original).
The above synopsis of West Virginia cases concerning employee
handbooks illustrates that an oral promise which has as its effect
the alteration of an "at will" employment relationship must contain
terms that are both ascertainable and definitive in nature to be
enforceable. In this same vein, we recognized earlier this year in
Williamson v. Sharvest Management Co., 187 W. Va. 30, 415 S.E.2d
271 (1992), "that lifetime employment contracts are extraordinary
and that an offer for lifetime employment must be expressed in
clear and unequivocal terms before a court will conclude that an
employer intended to enter into such a weighty obligation." 187 W.
Va. at ___, 415 S.E.2d at 274.
The parties are in agreement that the Appellees had the burden
of demonstrating that their "at will" employment status was
altered. See Suter, 184 W. Va. at 737, 403 S.E.2d at 754. Given
this Court's holding in Adkins v. Inco Alloys International, Inc.,
187 W. Va. 219, 417 S.E.2d 910 (1992) that: "[w]here an employee
seeks to establish a permanent employment contract or other
substantial employment right, either through an express promise by
the employer or by implication from the employer's personnel
manual, policies, or custom and practice, such claim must be
established by clear and convincing evidence[,]" the Appellees'
contract claims should have been subjected to the clear and
convincing evidentiary standard. 187 W. Va. at ___, 417 S. E. 2d
at 911, syl. pt. 3.
An examination of the Appellees' trial testimony demonstrates
that they failed to meet their burden of proving by clear and
convincing evidence that a promise containing definitive and
ascertainable terms was made to each of them. When Carroll
Rollyson was asked "what promises were made that you would continue
in your employment as long as there was no wrongdoing," she
responded "I never had any, ah, like that." Similarly, the
following excerpt from Leonora Riffle's trial testimony
demonstrates that she could not affirm that she had been promised
continued employment for a specified period of time:
Q. Now can you tell the court and jury
whether or not at that meeting you felt that
the promises that were made to you were that
you were going to have a job for more than one
year from the date of that meeting?
A. I hoped that I would but I wasn't
tied to that. I could've quit if I'd - - -
had found a better job by some --- I wasn't
seeking, but if I'd found something I could
have quit that job and taken another job.
Q. But it's your allegations as
plaintiff in this case that you were promised
a job at the time of that meeting for longer
than one (1) year?
A. He did not say one (1) year.
Q. What is your allegation?
A. I hoped that I would have a job until
I retired, but at any time I could've quit or
he could've fired me for just cause.
Q. As a plaintiff in this action are you contending that you should have been employed for more than one (1) year past that meeting, that the contract that you entered into between yourself and Cablentertainment was for a duration longer than one (1) year from the date of that meeting?
Is that your contention?
A. Yes, I think the contract could have
extended, but I could've quit too or he
could've fired me. He'd made that so clear
that for just cause that we could be fired.
. . . .
. . . .
Q. So it's your - - - It's your answer
to that question that yes, on the day of that
meeting you thought that you - - - you thought
that what your contract was was a contract of
employment for more than one (1) year?
A. It could be, but I can't stipulate
exactly what he was thinking or what - - - And
I can't say that he said a period of time. I
just took it as indefinitely. (emphasis
Not one of the Appellees testified that he or she was promised
job security for any specific period of time or continuing
employment pursuant to certain specified conditions. Mary Wamsley
Bonecutter's testimony appears to best explain the absence of any
definitive terms concerning the alleged oral contract:
Q. What is your testimony that is to the
duration of your employment?
A. Just that I had faith, that I trusted
just like. It's just my word from what I took
from what they said that my job was secure . .
. . . .
[Q.] Can you tell the court and jury how long your employment was for under what you contend to be your contract?
A. They didn't say how long. They just
said we would not worry about losing our job.
Nothing's guaranteed for how long, is it?
They said you won't lose your job because a
new company is buying us out. . . . (emphasis
The only promise that may have been made is the one to which
Mrs. Bonecutter testified--"They said you won't lose your job
because a new company is buying us out." That statement alone,
however, does not convey any promise of continued employment
sufficient to convert the status of the Appellees' employment from
"at will" to a contract of lifetime employment. The Appellees
clearly failed to meet their burden of proof on this issue. See
Suter, 184 W. Va. at 737, 403 S.E.2d at 754.
The Appellants alternatively assert that the Appellees' claims
were barred by the statute of frauds requirement that any contract
which is not to be performed within one year must be reduced to
writing to be enforceable. See W. Va. Code § 55-1-1 (1992). The
Appellees argue that the alleged oral promise is outside the
statute of frauds because the contract of employment was capable of
being performed within one year. To support this contention, the
Appellees maintain that some or all of them could have been
terminated for cause following an act of embezzlement which would
have thereby ended their employment with Cablentertainment before
one year had elapsed.
This Court addressed both the reason for the statute of frauds
and the "capable of performance" exception in Thompson v. Stucky,
171 W. Va. 483, 300 S.E.2d 295 (1983). We explained that the
objective of the statute of frauds "'was and is to make difficult
the establishment of perjured and fraudulent claims
. . . .'" Id. at 486, 300 S.E.2d at 298 (quoting P. R. Conway, Outline of the Law of Contract 390 (3rd ed. 1968)). Following the discussion of the "capable of performance" exception, an exception which ignores the fact that a contract was not fully performed following one year and instead looks only to whether the contract could arguably be performed within one year, this Court chose not to veer from the historical path of the "capable of performance" exception. See id. We did, however, in the name of avoiding injustice, rule that:
henceforth, looking to the policy of the
ancient statute of frauds, [we will]
require more than an entirely mechanical
application of the 'capable of
performance' exception. Where a
plaintiff seeks to avoid the condemnation
of W. Va. Code, 55-1-1(f) , if the
disputed contract was not in fact
performed within one year by the
plaintiff, there should be clear and
convincing evidence that the contract in
fact exists before the court submits the
claim to a jury.
171 W. Va. at 486-87, 300 S.E.2d at 299 and at syl. pt. 2. Accordingly, because each of the Appellees was in fact still employed by Cablentertainment one year following the buyout, this Court's ruling in Thompson required the trial court to first determine the existence of an employment contract pursuant to the clear and convincing evidentiary standard before submitting the case to the jury. Given our analysis in Section I of this decision, this case should never have gone to the jury because the Appellees failed to prove by clear and convincing evidence the existence of any contract of employment. See id.
Based on the foregoing opinion, the decision of the Circuit
Court of Harrison County is hereby reversed.
Footnote: 1Apparently, all of the Appellees are related in some fashion. The Appellees allege that Cablentertainment was fully aware of this fact when it purchased Midwest.
Footnote: 2The trial court ruled that the Appellees' cause of action would be bifurcated as to liability and damages by order entered on January 16, 1991. The issue of damages has not yet been tried.