Cynthia S. Gustke, Esq.
The Law Offices of Cynthia S. Gustke, PLLC
Elkins, West Virginia
Attorney for Appellant
Frank P. Bush, Jr., Esq.
Bush & Bush
Elkins, West Virginia
Attorney for Appellee
Edward Bograd (Pro Hac Vice)
Frederick M. Thurman, Jr. (Pro Hac Vice)
Shumaker, Loop & Kendrick, LLP
Charlotte, North Carolina
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUDGE GARY L. JOHNSON, sitting by temporary assignment.
JUSTICE SCOTT did not participate.
Although our standard of review for summary judgment remains de novo,
a circuit court's order granting summary judgment must set out factual findings sufficient
to permit meaningful appellate review. Findings of fact, by necessity, include those facts
which the circuit court finds relevant, determinative of the issues and undisputed.
Syllabus Point 3, Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232
The appellant, Dale Nestor, appeals a summary judgment order of the Circuit
Court of Tucker County dismissing his complaint for workers' compensation
discrimination against his former employer, Bruce Hardwood Floors, a division of
B.H.F.G. Corporation.See footnote 1
On appeal, the appellant maintains that: (1) the circuit court erred
in granting summary judgment based solely on evidence that the appellee had not
previously engaged in workers' compensation discrimination; (2) the circuit court erred
in granting summary judgment where the employer's termination policy is discriminatory
on its face; (3) the circuit court erred in granting summary judgment on the issue of
punitive damages despite evidence that the appellee acted maliciously in terminating the
appellant; and (4) the circuit court erred in failing to grant the appellant's motion to amend
his complaint to join the appellee's parent company as a defendant. Because we find that
the summary judgment order fails to set out sufficient findings of fact under this Court's
recent holding in Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232
(1997), we reverse and remand for the circuit court to enter a final order which conforms
to the standard set forth in Lilly.
Industry is currently experiencing far too many accidents. Investigations of industrial accidents show that the majority are caused by an employee performing an unsafe act. These violations cannot be tolerated.
An employee may be discharged immediately without prior warning for a serious violation of safety rules or instructions. The following is a partial list to help you understand the type of safety rules for which violations could be ruled serious and result in immediate discharge: . . .
4. Reaching into a machine while it is running or before moving parts have stopped - for any reason. . . .
In administering these policies, it is management's responsibility and duty to apply formal discipline in a fair and equal manner to all offenders after considering the appropriate mitigating or aggravating circumstances and the potential for injury and its severity. If it is deemed necessary, immediate discharge will take place. If less serious, steps in the progressive disciplinary program will be taken.
In deposition testimony, the appellant admitted reading this policy and being aware that the policy provided for discharge for violation of a safety rule. The appellant also explained the circumstances surrounding the accident:
We had a hang up in the machine. I stopped the machine, shut the top and bottom head off. I pushed the reverse button and tried to back the hang up out of the machine. Some of the hang up come [sic] out, and there was a short piece that didn't. It was in between the feed rolls. I raised the feed rolls, and I grabbed the piece of wood that was between them, and when I grabbed it, the back roll got ahold [sic] of the piece of wood, too, and it pulled my hand through the back roll.
The appellee's immediate supervisor, Kimberly Barrick, testified that the appellant told her that [h]e stuck his hand in the machine to get that piece of wood while the feed roll was still moving.See footnote 8 8 Further Zendall Mark Lanham, another 502 operator at the appellee's plant, testified that the appellant told him that he placed his hand inside the machine while the rolls were still barely moving.
On December 23, 1998, the appellant filed a motion to amend his complaint to include Armstrong World Industries, the appellee's parent company. On February 16, 1999, the appellee moved for summary judgment and, in the alternative, partial summary judgment on the issue of punitive damages. By order of March 29, 1999, the circuit court granted the appellee's motion for summary judgment. The issue of amending the complaint was not addressed in the circuit court's order.
The appellee asserts that remand for entry of findings of fact would be
superfluous because . . . Plaintiff has failed . . . to adduce any disputed material facts
sufficient to overcome Bruce's properly supported motion for summary judgment. We
disagree that remand for entry of findings of fact is superfluous here. Again, our task as
an appellate court is to determine whether the circuit court's reasons for its order are
supported by the record. This task is impossible without sufficient factual and legal
findings. Contained in the record is the transcript of the March 22, 1999 hearing on the
defendant's motion for summary judgment in which the circuit court set forth its rationale
for granting the defendant's motion.See footnote 9
However, the circuit court is vague concerning the
evidence upon which it relied in reaching its decision. Because of the circuit court's
failure to adequately state the factual and legal reasons for its decision, this Court is unable
to address the remaining assignments of error raised by the appellant.
I think very compelling is [appellee's personnel/safety
director] Mr. Hardin's affidavit where he's saying that
thirty to forty percent of the 500 employees at this
facility have filed workers comp claims which would be
approximately 150 employees. Most of them would be
more expensive and be off time with more serious
injuries than Mr. Nestor, and I think it was Mr. Webley
and Mr. Zickafoose, are still there who, who were
deposed and still have serious injuries. And I think the,
the argument that, that Bruce has made that it would be
difficult for a rational trier of fact to find, since they
have had 150 other employees that have filed workers
comp claims and they haven't fired them why would
they all of a sudden start with Mr. Nestor when he has
such a small claim.
The Circuit Court further stated:
I don't think any of the facts . . . that you cite are really
that material to . . . show that the reason he was fired
was because he filed a workers comp claim. I think .
. . the evidence shows that he was fired cause [sic] he
violated a safety policy and had they fired other
employees or harassed other employees who filed
workers comp claim, he would have a shot, but the
evidence is to the contrary. And . . . what doesn't
make any sense is that they would pick on Mr. Nestor
who had a very small workers comp claim, a very
slight injury when they have all these other folks with
more serious injuries. They were trying to have a
chilling effect on people for a workers comp claim they
. . . would have made more sense to go after some of
these other 150 people that have filed workers comp