Opinion, Case No.23940 Linda Sue Tolliver & Dana L. Tolliver v. The Kroger Company


IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 1997 Term

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No. 23940
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LINDA SUE TOLLIVER and DANA L. TOLLIVER
Plaintiffs Below, Appellants,

V.

THE KROGER COMPANY, a corporation conducting
business in West Virginia, TERRY LUCAS, an individual,
PHILIP HELMS, an individual and FRED FENTON,
an individual, Defendants Below, Appellees.

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Appeal from the Circuit Court of Cabell County
Honorable Dan O'Hanlon, Judge
Civil Action No. 92-C-463

AFFIRMED ____________________________________________________________________

Submitted: September 17, 1997
Filed: November 21, 1997

Jerry Blair                            Edward M. Kowal, Jr.
Huntington, West Virginia                Campbell, Woods, Bagley,
Attorney for Appellants                    Emerson, McNeer & Herndon
                                Huntington, West Virginia
                                Attorneys for Appellees

JUSTICE DAVIS delivered the Opinion of the Court.


SYLLABUS BY THE COURT

        1.    "'"A motion for summary judgment should be granted only when it is clear that no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992)." Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

        2.    "Roughly stated, a genuine issue for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed "material" facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law." Syl. Pt. 5, Jividen v. Law, 194 W. Va. 705, 461 S.E.2d 451 (1995).

        3.     "An application of state law is pre-empted by 301 of the Labor Management Relations Act of 1947, 29 U.S.C. 185 (1947) (1994 ed.), only if such application requires the interpretation of a collective-bargaining agreement." Syl. Pt. 1, Greenfield v. Schmidt Baking Company, Inc., 199 W.Va. 447, 485 S.E.2d 391 (1997).

        4.     Failure on the part of a party to properly raise preemption under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. 185 (1947), either before the circuit court or on appeal, constitutes a waiver of consideration and application of Section 301 preemption by this Court. On the other hand, should a party fail to raise Section 301 preemption at the circuit court level, but properly raises and briefs the issue on appeal, the waiver rule will not bar consideration of the issue on the merits.

        5.     When an employment matter does not come within the scope of a collective bargaining agreement, an employee may abandon an employment grievance procedure once started, and seek relief in a circuit court.

        6.     Assault and battery conduct is not a part of, nor a condition of employment. As a matter of public policy in this state, we hold that generally a collective bargaining agreement may not bind employees to resolve assault or battery conduct by employers or their agents through grievance procedures.


        7.     Pursuant to W.Va. Code 23-4-2(c)(2)(i) (1994) employer immunity from a tortious action for an injury to an employee, may be overcome when an injured employee shows that the employer caused injury with deliberate intention, as that phrase is therein defined.

        8.    The legislature has plainly indicated the type of allegations which do not sustain a cause of action under W.Va. Code 23-4-2(c)(2)(i) (1994), which specifically provides that a cause of action under its provision may not be satisfied by an allegation of (A) conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct. The language of this provision demands overcoming a high threshold to establish a cause of action under W.Va. Code 23-4-2(c)(2)(i).

        9.    To properly plead a prima facie case under W.Va. Code 23-4-2(c)(2)(i) (1994), the statute requires an employee set out deliberate intention allegations. Under the statute, deliberate intention allegations may only be satisfied where it is alleged an employer acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury.

Davis, Justice:

        This is an appeal by Linda Sue Tolliver and Dana L. Tolliver, appellants/plaintiffs, from an order of the Circuit Court of Cabell County granting partial summary judgment to The Kroger Company, Terry Lucas, Philip Helms and Fred Fenton, appellees/defendants in an action alleging intentional infliction of emotional distress and assault and battery. The Tollivers contend that the circuit court erred in ruling that their causes of action required resolution through the grievance process established by a collective bargaining agreement and, therefore, were barred from being litigated in circuit court. The Tollivers further contend that the circuit court erred in ruling, as an alternative, that their causes of action were barred because they failed to properly plead a deliberate intention cause of action against the defendants under W. Va. Code 23-4-2(c)(2)(i) (1994). We find that the Tollivers' claim for intentional infliction of emotional distress had to be resolved through the grievance process established by the collective bargaining agreement. We further find that the Tollivers' failed to properly plead a deliberate intention cause of action against the defendants pursuant to W. Va. Code 23-4-2(c)(2)(i). Therefore, we affirm the circuit court's order granting partial summary judgment on those two issues.

I.
FACTUAL AND PROCEDURAL HISTORY

        Linda Sue Tolliver (Mrs. Tolliver) has been employed by The Kroger Company (Kroger) since 1972. Mrs. Tolliver is a member of the United Food and Commercial Workers Union Local # 347 (Union). The Union and Kroger had a collective bargaining agreement (CBA) which governed all employer and employee disputes.See footnote 1 1

        In 1994, Mrs. Tolliver and her spouse, Dana L. Tolliver,See footnote 2 2 filed the instant action against Kroger and three of its store managers, Terry Lucas, Philip Helms and Fred Fenton.See footnote 3 3 The complaint alleged Mrs. Tolliver was the victim of age and gender discrimination caused by Kroger and the three other defendants.See footnote 4 4 The complaint also alleged that Terry Lucas committed assault and battery against Mrs. Tolliver. Additionally, the complaint asserted that the defendants intentionally inflicted emotional

distress upon Mrs. Tolliver.See footnote 5 5

        The assault and battery allegation grew out of a dispute between Mrs. Tolliver and Terry Lucas. In December of 1992, Mrs. Tolliver was employed as a head deli clerk at a Kroger store in which Mr. Lucas was a manager. It appears that Mr. Lucas became upset upon learning Mrs. Tolliver "failed to make the necessary preparations to fulfill Christmas orders in the deli." Mr. Lucas confronted Mrs. Tolliver over the matter and "a yelling incident occurred." Mrs. Tolliver alleged "that Mr. Lucas followed her to the employee locker room and 'got a hold of my arm' and 'jerked me' through a door." This one incident formed the basis for the assault and battery claim.

        Mrs. Tolliver was suspended for three days as a result of the confrontation with Mr. Lucas. Mrs. Tolliver filed a grievance over her suspension. The suspension was resolved through the CBA grievance procedure. The record is unclear as to whether Mrs. Tolliver also filed a separate grievance involving the alleged assault and battery by Mr. Lucas.

        At some point in 1993, Mrs. Tolliver transferred to another Kroger store that was managed by both Mr. Fred Fenton and Mr. Philip Helms. While at this new store Mrs. Tolliver was "demoted" to working at a check-out register. Mrs. Tolliver asserted that Mr. Fenton yelled at her in an abusive and humiliating way on a regular basis and without justification. Mrs. Tolliver also alleges that Mr. Helms ordered Mr. Fenton to watch her while she performed inventories. The job demotion and conduct of Messrs. Fenton and Helms formed the basis of Mrs. Tolliver's claim for intentional infliction of emotional distress. To what extent this conduct was processed through the CBA grievance procedure is unclear from the record.

        What is clear from the record is that all employees covered by the CBA had to exhaust the grievance procedure before seeking any other form of redress. Article 5 of the CBA sets forth with specificity the dispute resolution procedure between Kroger and the Union. Article 5 states:
    Article 5.    Dispute Procedure.    
    ....
    Section 5.11        It is understood and agreed that all employees within the bargaining unit covered by this Agreement must exercise all their rights, privileges, or necessary procedures under this Agreement, International and Local Union Constitution, in the settlement of any and all complaints or grievances filed by such employees before taking any action outside of the scope of this Agreement for the settlement of such grievances.


        At the conclusion of discovery, all four defendants moved for summary judgment. The circuit court denied summary judgment on the age and gender discrimination claim. The circuit court ruled, as a matter of law, that the intentional infliction of emotional distress and assault and battery claims were subject to resolution under the collective bargaining agreement. As an alternative basis for granting partial summary judgment, the circuit court ruled that, even if the collective bargaining agreement did not bar the Tollivers' claims, the claims were barred by Mrs. Tolliver's failure to plead exemption from immunity provided to the defendants for their intentional infliction of emotional distress pursuant to the West Virginia Workers' Compensation Act. The Tollivers thereafter brought this appeal from the partial summary judgment order.

II.
STANDARD OF REVIEW

        We are asked to review the circuit court's award of partial summary judgment in favor of the defendants. We exercise plenary review over a circuit court's decision to grant partial summary judgment. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo.").

        We have repeatedly held that under Rule 56(c) of the West Virginia Rules

of Civil Procedure, "'"[a] motion for summary judgment should be granted only when it is clear that no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992)." Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). Moreover, we have explained in syllabus point 5 of Jividen v. Law, 194 W. Va. 705, 461 S.E.2d 451 (1995) that:
            Roughly stated, a genuine issue for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there