Walt Auvil, Esq.
Rita Massie Biser, Esq.
Auvil & Davitian Stephen A. Weber, Esq.
Parkersburg, West Virginia Kay, Casto & Chaney
Attorney for Appellant Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
JUSTICE MAYNARD concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
2. The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge. Syllabus, Harless v. First Nat'l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).
3. West Virginia Code of State Regulations § 64-12-14.2.4 (1987) sets forth a specific statement of a substantial public policy which contemplates that a hospital unit will be properly staffed to accommodate the regulation's directive; to ensure that patients are protected from inadequate staffing practices; and to assure that medical care is provided to hospital patients, especially children and young adolescents, who must depend upon others to protect their medical interests and needs. Syllabus Point 5, Tudor v. Charleston Area Medical Center, Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997).
4. 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. Syllabus Point 3, Adkins v. Inco Alloys Intern., Inc., 187 W.Va. 219, 417 S.E.2d 910 (1992).
In the instant case we reverse a ruling of the circuit court that granted summary judgment against a nurse who was fired and claimed that her firing was in retaliation for her criticism of nurse staffing and employment policies. Finding that there are material issues of fact, we remand the case for trial.
West Virginia Code of State Regulations § 64-12-14.2.4 (1987)
sets forth a specific statement of a substantial public policy
which contemplates that a hospital unit will be properly staffed
to accommodate the regulation's directive; to ensure that
patients are protected from inadequate staffing practices; and to
assure that medical care is provided to hospital patients,
especially children and young adolescents, who must depend
upon others to protect their medical interests and needs.
We stated in Tudor that whether Ms. Tudor was (constructively) discharged for bringing attention to a [nurse] staffing practice [that created a substantial danger to the safety of the public] is . . . a factual determination. . . . Tudor, 506 S.E.2d at 567, n.30, 203 W.Va. at 124, n.30; and we upheld a jury verdict in Ms. Tudor's favor on her wrongful discharge claim.
In the instant case, the circuit court agreed with CAMC's argument; the court concluded that in response to CAMC's motion for summary judgment, Ms. Tiernan did not point to any evidence that would permit a fact-finder to conclude that her criticism and campaign raised patient safety issues.
A motion for summary judgment should be granted only when it is clear that there is 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).
Courts considering motions for summary judgment must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion. Painter v. Peavy, 192 W.Va. ___, 192, 451 S.E.2d ___, 758. Summary judgment should be denied 'even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom.' Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995), quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951).
As Justice Cleckley stated in the similar context of an employment discrimination case, Conrad v. ARA Szabo, 198 W.Va. 362, ___, 480 S.E.2d 801, 809 (1996):
In Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995), we cautioned circuit courts to be particularly careful in granting summary judgment in employment discrimination cases. Although we refuse to hold that simply because motive is involved that summary judgment is unavailable, the issue of discriminatory animus is generally a question of fact for the trier of fact, especially where a prima facie case exists. The issue does not become a question of law unless only one conclusion could be drawn from the record in the case. In an employment discrimination context, the employer must persuade the court that even if all of the inferences that could reasonably be drawn from the evidentiary materials of the record were viewed in the light most favorable to the employee, no reasonable jury could find for the plaintiff.
Thus, the narrow issue that was before the circuit court and is before this Court is whether Ms. Tiernan, in responding to CAMC's motion for summary judgment, pointed to evidence that _ viewed in the light most favorable to Ms. Tiernan, and without engaging in a weighing process _ would permit a fact-finder to conclude that Ms. Tiernan's criticisms and campaign raised issues of patient safety.
On this issue, we turn to this Court's opinion in Tudor, where we discussed at some length the circuit court's admitting into evidence an evidentiary deposition by Ms. Tiernan _ on behalf of Ms. Tudor in her case. In that deposition, Ms. Tiernan testified about her criticisms of CAMC nurse staffing policies. We stated in Tudor that Ms. Tudor had offered the Tiernan deposition to show:
1. That similar to Jana Tudor, Betty Tiernan was formerly employed as a nurse by CAMC.
2. That similar to Jana Tudor, Betty Tiernan voiced complaints to CAMC about unsafe staffing practices on her unit.
3. That similar to Jana Tudor, Betty Tiernan's complaints related to the practice of assigning only one nurse on a unit.
4. That similar to Jana Tudor, Betty Tiernan was forced to leave her employment within a few months after making these staffing complaints.
5. That similar to Jana Tudor, Betty Tiernan subsequently encountered difficulties in finding other nursing employment in the Kanawha Valley area.
Tudor, supra, 203 W.Va. at 128-129, 506 S.E.2d at 571-572. (Emphasis added.)
In Tudor, CAMC argued that the Tiernan deposition should not have been admitted into evidence. We concluded, however, that the trial court had properly admitted Ms. Tiernan's deposition into evidence as Rule 404(b) other acts evidence of motive _ because the deposition was offered to show Ms. Tiernan's complaints to CAMC about unsafe staffing practices on her unit and an adverse employment action by CAMC following those complaints. Id.
Our ruling in Tudor approving the court's admission of Ms. Tiernan's deposition into evidence, as relevant evidence tending to show CAMC's motive in Ms. Tudor's case, was necessarily based on the conclusion that CAMC's actions toward Ms. Tiernan could be seen by the jury as also being violative of the public policy protecting unsafe staffing practices criticisms _ the improper motive that was being asserted by Ms. Tudor. If Ms. Tiernan's deposition could not be seen as showing at least inferentially this motive by CAMC, the deposition would not have been admissible in Tudor. Moreover, the Tiernan deposition itself provides direct testimonial evidence to the effect that Ms. Tiernan raised complaints of unsafe staffing practices by CAMC.
In the instant case, Ms. Tiernan's deposition testimony from Tudor was before the circuit court when it was considering CAMC's motion for summary judgment. Therefore, consistent with our prior ruling in Tudor, Ms. Tiernan's deposition testimony from Tudor must be viewed at a minimum as permitting a finding that Ms. Tiernan's criticisms of CAMC nurse staffing and employment policies and practices raised concerns about patient safety. (See footnote 5)
In light of our holding in Tudor that Ms. Tiernan's deposition was admissible in Ms. Tudor's case to show that in another instance CAMC had acted adversely to an employee who had raised unsafe staffing concerns; in light of the other evidence that raising patient safety concerns was part of Ms. Tiernan's criticisms and campaign; and in light of the principle that all permissible inferences must be given to the non-movant in a summary judgment determination, we conclude that the circuit court's determination that there was no evidence showing that Ms. Tiernan raised patient safety concerns must be viewed as erroneous.
This is not to say that a jury could not conclude that Ms. Tiernan's criticisms and the campaign that she spearheaded had nothing to do with her firing, and that the sole reason and motivation for her termination was her action in bringing a reporter to view the televised announcement. But under the record that was presented to the circuit court in the context of CAMC's motion for summary judgment, these are clearly disputed factual issues for a jury to resolve, and summary judgment on Ms. Tiernan's public policy wrongful discharge theory and claim was therefore improper.