Fred F. Holroyd
Brian D. Yost
Holyrod & Yost
Charleston, West Virginia
Attorneys for the Appellant
John A. Kessler
James A. McKowen
Hunt & Wilson
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE BROTHERTON delivered the Opinion of the Court.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. "When a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract." Syllabus point 2, Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955).
2. "Contractual provisions relating to discharge or job
security may alter the at will status of a particular employee."
Syllabus point 3, Cook v. Heck's, Inc., 176 W.Va. 368, 342 S.E.2d
3. "An employee handbook may form the basis of a
unilateral contract if there is a definite promise therein by the
employer not to discharge covered employees except for specified
reasons." Syllabus point 6, Cook v. Heck's, Inc., 176 W.Va. 368,
342 S.E.2d 453 (1986).
4. "An employer may protect itself from being bound by
any and all statements in an employee handbook by placing a clear
and prominent disclaimer to that effect in the handbook itself."
Syllabus point 5, Suter v. Harsco Corp., 184 W.Va. 734, 403 S.E.2d
5. "An employer may protect itself from being bound by
statements made in an employee handbook by having each prospective
employee acknowledge in his employment application that the
employment is for no definite period and by providing in the
employment handbook that the handbook's provisions are not
exclusive." Syllabus point 4, Suter v. Harsco Corp., 184 W.Va.
734, 403 S.E.2d 751 (1991).
6. "Generally, the existence of a contract is a question
of fact for the jury." Syllabus point 4, Cook v. Heck's, Inc., 176
W.Va. 368, 342 S.E.2d 453 (1986).
7. "When the plaintiff's evidence, considered in the
light most favorable to him, fails to establish a prima facie right
of recovery, the trial court should direct a verdict in favor of
the defendant." Syllabus point 3, Roberts v. Gale, 149 W.Va. 166,
139 S.E.2d 272 (1964).
8. An employee handbook which contains a clear and
conspicuous disclaimer of job security will preserve the at-will
status of the employment relationship.
9. "In a retaliatory discharge action, where the
plaintiff claims that he or she was discharged for exercising his
or her constitutional right(s), the burden is initially upon the
plaintiff to show that the exercise of his or her constitutional
right(s) was a substantial or a motivating factor for the
discharge. The plaintiff need not show that the exercise of the
constitutional right(s) was the only precipitating factor for the
discharge. The employer may defeat the claim by showing that the
employee would have been discharged even in the absence of the
protected conduct." Syllabus point 3, McClung v. Marion County
Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987).
10. "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 National Bank in
Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).
11. "In determining whether there is sufficient evidence
to support a jury verdict the court should: (1) consider the
evidence most favorable to the prevailing party; (2) assume that
all conflicts in the evidence were resolved by the jury in favor of
the prevailing party; (3) assume as proved all facts which the
prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved." Syllabus point 5,
Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied,
469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).
12. "The tort of retaliatory discharge carries with it
a sufficient indicia of intent, thus, damages for emotional
distress may be recovered as a part of the compensatory damages."
Syllabus point 3, Harless v. First Nat'l Bank in Fairmont, 169
W.Va. 673, 289 S.E.2d 692 (1982).
13. "'Punitive or exemplary damages are such as, in a
proper case, a jury may allow against the defendant by way of
punishment for wilfulness, wantonness, malice, or other like
aggravation of his wrong to the plaintiff, over and above full
compensation for all injuries directly or indirectly resulting from
such wrong.' Syllabus Point 1, O'Brien v. Snodgrass, 123 W.Va.
483, 16 S.E.2d 621 (1941)." Syllabus point 4, Harless v. First
Nat'l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).
14. "Because there is a certain openendedness in the
limits of recovery for emotional distress in a retaliatory
discharge claim, we decline to automatically allow a claim for
punitive damages to be added to the damage picture. We do
recognize that where the employer's conduct is wanton, willful or
malicious, punitive damages may be appropriate." Syllabus point 5,
Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d
The appellee, Robert L. Mace, filed a lawsuit against the
appellant, Charleston Area Medical Center Foundation, Inc. (CAMC),
alleging breach of an employment contract and retaliatory
discharge. The case was tried before a six person jury which found
for Mace on both counts and awarded him $55,700.29 in damages for
lost wages, $50,000.00 for emotional distress, and $125,000.00 in
punitive damages. CAMC now appeals from the judgment order which
was entered by the Circuit Court of Kanawha County on January 19,
Mace began working as a pharmacy technician at CAMC in
January, 1981. He did not receive any specialized training for
this job; instead, "they trained you as you went." Mace's duties
as a pharmacy technician included filling drug carts each day
according to patient profiles, filling employee prescriptions,
preparing intravenous medications, and copying doctors' written
orders for individual patients.See footnote 1
In July, 1985, Mace informed his employers that he had
joined the National Guard and would report for active duty on
August 1, 1985. At that time, CAMC's personnel director, Kris
Lyon, told Mace that his job would be posted if he was gone for
more than thirty days. According to Mace, his wife spoke with
management-level employees at CAMC twice during his thirteen-week
basic training period and told them that Mace's position was
protected by federal law while he was serving in the Guard.
Nevertheless, while he was away, Mace's position as a pharmacy
technician was eliminated.
Following thirteen weeks of active duty, Mace applied for
reemployment at CAMC on November 8, 1985. He was informed that he
could be placed in another position of like status, seniority, and
pay until he could be returned to the position of pharmacy
technician. Mace refused to accept a position as nursing attendant
at CAMC's General Division and insisted upon having his former job
back. The United States Department of Labor interceded on Mace's
behalf, and he was reinstated to his original position on December
9, 1985, after another employee was transferred out of a pharmacy
technician post. However, Mace's efforts to collect back pay
continued for nearly a year and a half.See footnote 2
In July, 1986, Mace injured his back while off on his
annual active duty training with the National Guard. He did not
return to work until September 8, 1986. During his time off, he
began taking several medications prescribed by his family
physician, Jerry Edens, M.D., for back pain. At the hospital on
September 12, 1986, Mace refused to obey an order that he take a
drug cart up to the next floor. He later went to Employee Health
and complained of back pain, and he was sent home early that day.
Mace returned to work on September 16, 1986, and received
a written warning regarding his insubordination. At trial, Mace
admitted that he refused to move the drug cart and that he
occasionally used profanity. Several coworkers also testified that
Mace had seemed different since his return to work. For example,
Terri Steele Spencer, who was Mace's supervisor at the time, stated
that he "seemed to be . . . disturbed about something" and "he
would often be muttering obscenities to himself."
On September 23, 1986, Mace took his medication on an
empty stomach after he arrived to work at the hospital. He became
sleepy, dizzy, and unable to concentrate, so he went to Employee
Health, where he was examined by Dr. Willard Pushkin. Mace hoped
that he would be sent home. According to Pushkin, Mace's speech
was slurred, he appeared off-balance, and his eyelids were droopy.
Pushkin stated, "I couldn't tell if it was an overdose. I felt
that it was an excess."
Instead of sending Mace home, Dr. Pushkin instructed him
to report to Kris Lyon in the Personnel Department for a drug
screen. When he was asked at trial what he would have done with
the drug screen results, Pushkin stated that ". . . if the drug
screen was significant in terms of concentration, or if it
suggested the possibility that he was on medication over a chronic
period, they [CAMC] would have arranged for a rehabilitative
participation for him."
When Mace met with the personnel director, Kris Lyon, he
gave her a list which contained the names of nine drugs he was then
taking. Mace refused to take a urine screen and told Lyon that he
would do so only if it was required of everyone in the pharmacy
department. Mace was told that he would be fired if he refused to
be tested, but that he could go home and think about whether he
would submit to the drug screen the next day. Lyon told him she
would phone him later in the day. She called at approximately 4:00
P.M. and told Mace that she wanted to have a meeting with him at
8:00 A.M. the next morning in her office.
Mace met with Lyon the next morning, September 24, 1986,
and he gave her the names of five additional drugs he was taking.
Mace states that he asked Lyon to check with Dr. Edens and verify
the drugs and their known side effects, but she refused. Mace was
again advised that he was required to submit to a drug screen and
that his failure to do so would result in the termination of his
employment. Once again, Mace refused. At trial, Mace explained
that although he was tempted to go ahead and submit to the screen
because he had a family to support, he felt he was being singled
out and punished by CAMC for asserting his rights under the
Veterans' Reemployment Rights Act and pursuing his ongoing claim
for back pay.
Instead of being fired, Mace asked Lyon if he could
submit a letter of resignation, and she agreed. Mace testified
that his only options were to be fired or resign, and because "it
would have been real hard to find a job as a pharmacy technician"
after being fired for refusing to take a drug test, Mace preferred
to resign. Within a matter of days, however, Mace contested his
Pursuant to CAMC policy, Mace appealed his dismissal to a hospital grievance committee. Testimony was taken from all parties involved in the decision to terminate Mace, and the grievance committee made the following recommendations: (1) that Mace be reinstated after a two-week suspension; (2) that he be referred to Employee Assistance; (3) that a thorough investigation of Mace's allegations against the pharmacy be made; and (4) that CAMC make a clear written statement of their drug testing policy.
CAMC management chose not to follow the grievance committee's
recommendation that Mace be reinstated.See footnote 3
CAMC maintains that because of Mace's appearance and
actions on September 23, 1986, as well as his own admission that
his physical condition that day resulted from drugs he had taken,
it was important for them to immediately determine the exact nature
of Mace's problems and ascertain whether he was a candidate for the
Employee Assistance Program, whether he had a drug problem, and
whether he was possibly taking illegal drugs or drugs obtained from
the hospital pharmacy. In light of these facts, CAMC argues that
it acted reasonably and properly in requiring Mace to submit to a
It is Mace's contention that asking him to submit to a
drug screen constituted a breach of contract by CAMC because this
requirement was not set forth in the Employee Handbook. However,
CAMC maintains that the Employee Handbook was not a contract, and
argues that a drug testing policy existed and was in effect, even
though it was not written out in specific detail in the handbook.
According to CAMC, the handbook also made it clear that addiction,
possession, or unauthorized use or disposal of drugs were grounds
warranting immediate discharge.
Further, CAMC points out that an employee's willful
disobedience, insubordination, or intentional failure to carry out
any reasonable order is also grounds for an immediate discharge and
was, in fact, a valid, nondiscriminatory reason for Mace's
discharge in this case. However, Mace states that in finding for
him on the charge of retaliatory discharge, the jury concluded that
the real reason he was fired was in retaliation for his persistence
in asserting his rights under the Veterans Reemployment Rights Act.
On appeal, the appellant, CAMC, alleges numerous
assignments of error related to both the breach of contract and
retaliatory discharge claims, as well as the award of damages.
First, we examine the breach of contract issue.
CAMC now argues that the Employee Handbook did not
constitute a contract because it contained a contract disclaimer
and a statement of at-will employment. Specifically, page three of
the handbook contained the following statements under the heading
. . . Because of court decisions in some states, it has become necessary for us to make it clear that this handbook is not part of a contract, and no employee of the Medical Center has any contractual right to the matters set forth in this handbook. In addition, your employment is subject to termination at any time either by you or by the Medical Center.
This handbook is not designed to be a total
departmental manual; therefore, not all rules
and regulations are listed herein.
In addition, under a section titled "TERMINATION OF YOUR
EMPLOYMENT," on page 56, the handbook provides that, "Since
employment at CAMC is based on mutual consent, either the employee
or the employer is privileged to terminate employment." Also, a
section titled "DISCIPLINARY GUIDELINES" contains the following
explanation at pages 57-58:
It is the responsibility of management to make and enforce reasonable rules to increase or maintain efficiency. The Medical Center could never list all acts, omissions and behaviors that a good employee is expected to avoid. There are far too many variations, special applications and situations. We have, however, listed some basic things here that are viewed as unacceptable behavior. This list in no way attempts to cover all possible situations, but includes examples of improper conduct. It should not in any way be considered a restriction on the right of CAMC to establish future policy or to apply disciplinary measures to cases other than those listed. (Emphasis added.)
In West Virginia, the law presumes that employment is
terminable at will, permitting an employer to discharge an employee
for cause, for no cause, or even for wrong cause.See footnote 4 "When a
contract of employment is of indefinite duration it may be
terminated at any time by either party to the contract." Syl. pt.
2, Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 90
S.E.2d 459 (1955). However, "[c]ontractual provisions relating to
discharge or job security may alter the at will status of a
particular employee." Syl. pt. 3, Cook v. Heck's, Inc., 176 W.Va.
368, 342 S.E.2d 453 (1986). Thus, employees sometimes argue that
they have a unilateral employment contract because of what they
perceive as promises of job security contained in an employee
In syllabus point 6 of Cook, we recognized that "[a]n
employee handbook may form the basis of a unilateral contract if
there is a definite promise therein by the employer not to
discharge covered employees except for specified reasons." We
further delineated our position on this point in Suter v. Harsco
Corp., 184 W.Va. 734, 403 S.E.2d 751 (1991), in which we stated
that "[a]n employer may protect itself from being bound by any and
all statements in an employee handbook by placing a clear and
prominent disclaimer to that effect in the handbook itself." Id.
at syl. pt. 5. We also added that "[a]n employer may protect
itself . . . by providing in the employment handbook that the
handbook's provisions are not exclusive." Id. at syl. pt. 4.
Thus, a disclaimer clearly displayed in the handbook can preserve
the at will status of the employment.
"Generally, the existence of a contract is a question of
fact for the jury." Syl. pt. 4, Cook v. Heck's, Inc., 176 W.Va.
368, 342 S.E.2d 453 (1986). However, a trial court may remove an
issue from jury consideration if a prima facie case is lacking.
"When the plaintiff's evidence, considered in the light most
favorable to him, fails to establish a prima facie right of
recovery, the trial court should direct a verdict in favor of the
defendant." Syl. pt. 3, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d
CAMC maintains that they were entitled to a directed
verdict or judgment notwithstanding the verdict on the breach of
contract issue, and we agree. In order to form the basis of a
unilateral contract, a handbook must contain a "definite promise"
not to fire a covered employee except for specified reasons. Cook,
342 S.E.2d at 459. An employee handbook which contains a clear and
conspicuous disclaimer of job security will preserve the at-will
status of the employment relationship.
In this case, the CAMC Employee Handbook did not contain
any definite promises that employees would be discharged only for
specified reasons. In fact, CAMC made it quite clear that the
opposite was true, and Mace signed an acknowledgement on
February 28, 1986, indicating that he accepted the employee
handbook, which contained both the disclaimer and the employment at
will language. Because we conclude that the Employee Handbook did
not constitute a contract of employment between CAMC and Mace, we
reverse the lower court's judgment on the breach of contract claim.
A second theory of liability advanced at trial involved
Mace's allegation that CAMC actually discharged him because he
exercised his rights under the Veteran's Reemployment Rights Act,
and thus his firing contravened substantial public policy. As we
noted above, Mace was not reinstated to his pharmacy technician
position for approximately one month after he completed his initial
basic training stint with the National Guard. According to the
appellee, "even that required prodding by the United States
Department of Labor."
After he returned to work, Mace attempted to collect back
wages for the period between his return from basic training and his
return to his old job. However, Mace states that he did not
receive the back wages for approximately one and one-half years,
and only then after collection efforts were initiated by both the
Department of Labor and the Department of Justice. Mace also
explains that his back injury slowed him down a bit at work and,
although he attempted to explain this to his superiors, they were
unsympathetic. In addition, he received a job evaluation which he
considered unfairly critical of him in certain respects, and he
thought the aforementioned written warning for insubordination was
unfair in light of his back pain.
CAMC defends its discharge of Mace and maintains that he
was discharged for valid nondiscriminatory reasons unrelated to his
actions in seeking redress under the Veterans Reemployment Rights
Act. First and foremost, CAMC maintains that the evidence is
undisputed that they had probable cause and a reasonable good faith
objective suspicion that Mace was using drugs. Further, CAMC
points out that the original decision and recommendation that Mace
submit to a drug screen was made by Dr. Pushkin, a physician at
CAMC, and not by CAMC's Personnel Department.
To support their argument, CAMC cites McClung v. Marion
County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987), in which
this Court stated, at syllabus point 3, that:
In a retaliatory discharge action, where the plaintiff claims that he or she was discharged for exercising his or her constitutional right(s), the burden is initially upon the plaintiff to show that the exercise of his or her constitutional right(s) was a substantial or a motivating factor for the discharge. The plaintiff need not show that the exercise of the constitutional right(s) was the only precipitating factor for the discharge. The employer may defeat the claim by showing that the employee would have been discharged even in the absence of the protected conduct.
CAMC argues that Mace did not meet his initial burden under McClung by showing that his persistence in getting his old job back or his pursuit of back pay was a substantial or motivating factor in his dismissal. However, even if a jury could find that Mace met this burden, CAMC argues that they defeated his claim by showing that he would have been discharged even in the absence of his exercise of his rights under the Veterans Reemployment Rights Act. CAMC maintains that Mace was treated no differently than other employees who were required to submit to drug testing in the past and that their own written policy gave CAMC the right to discharge Mace for refusing to submit to the drug screen.
CAMC's written drug policy, or lack thereof, is not the
issue now before this Court. Our concern lies solely with Mace's
allegations of retaliatory discharge, and CAMC's request that we
set aside the jury verdict in Mace's favor on this issue.
"One of the fundamental rights of an employee is the
right not to be the victim of a 'retaliatory discharge,' that is,
a discharge from employment where the employer's motivation for the
discharge is in contravention of a substantial public policy."
McClung, 360 S.E.2d at 227. In the syllabus of Harless v. First
National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978), we
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.
CAMC's motivation in this case was clearly a question of fact to be
resolved by the jury, and thus, we agree with the trial court's
decision to permit the issue of whether there was a retaliatory
discharge in this case to go to the jury.
Whether CAMC had an ulterior motive in requiring that
Mace either submit to a drug screen or be fired was the subject of
much conflicting evidence which was presented at trial. The jury
heard lengthy testimony from Mace detailing his efforts, first to
get his job back, and then to get the back pay he felt he was
entitled to receive. In addition, Mace testified about the
strained working atmosphere he encountered at CAMC, especially
after he joined the National Guard.
In syllabus point 5 of Orr v. Crowder, 173 W.Va. 335, 315
S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83
L.Ed.2d 319 (1984), we summarized the tests for determining whether
evidence is sufficient to support a jury's verdict:
In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
CAMC argues that it was entitled to judgment
notwithstanding the verdict in this case. However, such a motion
"may be granted only when, without weighing the credibility of the
evidence, there can be but one reasonable conclusion as to the
proper judgment. Where there is sufficient conflicting evidence,
or insufficient evidence to conclusively establish the movant's
case, judgment notwithstanding the verdict should not be granted."
McClung, 360 S.E.2d 230-31.
The facts now before us were clearly not amenable to
simple resolution. However, we find that there was sufficient
evidence to support the jury's verdict against CAMC on the issue of
retaliatory discharge. Perhaps most damaging to CAMC's case was
their refusal to follow their own grievance committee's
recommendation that Mace be reinstated following a two-week
suspension, even though there was no evidence that Mace had ever
used illegal drugs. In addition, the fact that the jury awarded
$125,000.00 in punitive damages for the express purpose of
"punishing" CAMC for its discharge of Mace is a strong indication
that the jury believed Mace's firing was unjust.
Although evidence presented at trial might conceivably
have led the jury to conclude that CAMC was within its rights in
firing Mace for refusing to take the drug screen, the trial court
"was not entitled to substitute its opinion for the opinion of the
jury on evidence giving rise to inferences about which reasonable
minds could differ" by granting CAMC's motion for judgment
notwithstanding the verdict. Id. at 231. Therefore, we must
affirm the jury's conclusion that CAMC was guilty of retaliatory
The final area of controversy on appeal involves the jury's award of damages. As we indicated above, Mace received judgment in the amount of $55,770.29 for lost wages, $50,000.00 for emotional distress, and $125,000.00 in punitive damages. CAMC argues that this award is excessive and not supported by the law or the evidence submitted at trial.
Lost wages were recoverable by Mace on either of his
theories of liability, breach of contract or retaliatory discharge.
CAMC contends that even if Mace was entitled to lost wages, the
award should have only been approximately $35,250.80, which is
$20,000.00 less than the actual award. However, CAMC's computation
of lost wages fails to take into account any compensation for lost
benefits over the time period in question. Counsel for Mace
clearly instructed the jury to consider these lost benefits when
making its calculation.See footnote 5
CAMC also suggests that the award for lost wages should
have been reduced by $10,600.00, which Mace's wife testified was
the amount he earned from various jobs he held after his discharge
from CAMC. CAMC argues that the $10,600.00 constitutes mitigation
and must be deducted from the award, consistent with our decision
in Mason County Board of Education v. State Superintendent of
Schools, 170 W.Va. 632, 295 S.E.2d 719, 723 (1982), in which we
held that courts must consider mitigation of damages in cases of
wrongful discharge. "[A]ctual wages received, regardless of their
source, are always an offset to damages unless they were earned in
a job entirely compatible with continued employment under the
contract." Id. at 725. However, we also emphasized that "in those
cases where an employee has been wrongfully discharged out of
malice, by which we mean that the discharging agency or official
willfully and deliberately violated the employee's rights under
circumstances where the agency or individual knew or with
reasonable diligence should have known of the employee's rights,
then the employee is entitled to a flat back pay award." Id.
In this case, CAMC did not put forth a strong argument on
the issue of mitigation, which is an affirmative defense. In fact,
mitigation was not even mentioned in closing arguments. However,
there was some testimony presented concerning income Mace earned
after the CAMC termination which the jury might have considered as
mitigation, had it chosen to do so. Obviously, it did not, perhaps
because of its desire to "punish" CAMC for its treatment of Mace,
which was certainly apparent in its awards for emotional distress
as well as punitive damages. The jury was not bound to consider
mitigating income, particularly if it perceived that CAMC had
engaged in willful and wanton behavior in discharging Mace.
Therefore, we will not disturb the jury's award of $55,770.29 for
Next, we examine the jury's decision to award Mace
$50,000.00 to compensate him for the emotional distress that
resulted from his termination by CAMC. In syllabus point 3 of
Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d
692 (1982) (hereinafter referred to as "Harless II"), we recognized
that "[t]he tort of retaliatory discharge carries with it a
sufficient indicia of intent, thus, damages for emotional distress
may be recovered as a part of the compensatory damages." "The
essence of the cause of action is the wrongful and deliberate
discharge of the employee who chooses to exercise some substantial
public policy right." Id. at 702.
CAMC argues that "there was absolutely no evidence
presented by the plaintiff to support an award for emotional
distress." Specifically, CAMC refers to our discussion of the type
of emotional distress suffered by the plaintiff in Harless II:
Plaintiff testified that as a result of the firing he suffered emotional distress by way of humiliation and lost self-confidence and trust. He was unable to properly eat and sleep and had to take medication for his nervous condition and depression. His wife corroborated this condition and indicated that after the firing he isolated himself from his family and friends and was extremely depressed and listless.
289 S.E.2d at 699-700. CAMC contends that, in this case, the Maces
offered no such testimony, and thus, "there was no basis whatsoever
for the jury to award damages for emotional distress."
Counsel for Mace admits that "[t]here was no direct
evidence of emotional distress in this case . . .", but suggests
that "there was ample evidence from which the jury could, and
apparently did, infer such suffering."
In reviewing this particular component of the damage
award, our primary concern is one we also expressed in Harless II,
which is "that a claim for emotional distress without any physical
trauma may permit a jury to have a rather open-hand in the
assessment of damages." Id. at 702. "Additionally, a jury may
weigh the defendant's conduct in assessing the amount of damages
and to this extent emotional distress damages may assume the cloak
of punitive damages." Id. (Emphasis added.) A variation on this
theme may have occurred in this case, with punitive damages
assuming the cloak of emotional distress damages. Perhaps this
occurred because although there was no actual physical evidence of
emotional injury, the jury nevertheless felt compelled to both
compensate Mace and punish CAMC.
However, as we noted above, the jury also awarded Mace
$125,000.00 in punitive damages. Significantly, the damages issue
was bifurcated so that if the jury found in favor of Mace on the
claim of retaliatory discharge, punitive damages would be argued
separately. This was done because Mace could not recover punitive
damages if the jury found in his favor only on the breach of
Interestingly enough, counsel for Mace did not favor
bifurcation, while CAMC's counsel believed it would be less
confusing to the jury. We believe that Mace undoubtedly benefitted
from the bifurcation simply because of the narrow focus which was
given to this punitive aspect of the case. The propriety of
bifurcation in a case such as this is not an issue now before us,
nor is it appropriate for this Court to make it an issue, given the
fact that the trial judge suggested it in order to simplify matters
for the jury. Moreover, neither party is now lodging any specific
complaints directed at the bifurcation. However, we believe that
in this case, the bifurcation on the damages issue increased the
likelihood that the jury would award punitive damages.
In spite of the admitted paucity of evidence of emotional distress, Mace received $50,000.00 in damages. We realize that perhaps it is inevitable that a jury which finds that an employer has willfully and unreasonably discharged an employee will sometimes award damages, regardless of the evidence, simply because the award is perceived as a method by which to provide both compensation for the plaintiff and punishment for the defendant. In fact, we basically conceded this point in Harless II when we recognized the latitude that a jury is given when assessing emotional distress awards.
We will not disturb the jury's award of $50,000.00 for
emotional distress. However, given the circumstances present in
this case, we do not believe that the additional award of
$125,000.00 in punitive damages is warranted. When the jurors were
instructed to award the plaintiff herein damages for emotional
distress, they were most likely unaware that they would
subsequently be permitted to make an award for the express purpose
of punishing the defendant, should they choose to do so. However,
"[t]he mere existence of a retaliatory discharge will not
automatically give rise to the right to punitive damages." Id. at
The right to punitive damages is incumbent upon proof of
further evidence of egregious conduct by the employer. Id.
"'Punitive or exemplary damages are such as, in a proper case, a
jury may allow against the defendant by way of punishment for
wilfulness, wantonness, malice, or other like aggravation of his
wrong to the plaintiff, over and above full compensation for all
injuries directly or indirectly resulting from such wrong.'
Syllabus Point 1, O'Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d
621 (1941)." Syl. pt. 4, Harless v. First Nat'l Bank in Fairmont,
169 W.Va. 673, 289 S.E.2d 692 (1982). In syllabus point 5 of
Harless II, we stated that:
Because there is a certain openendedness in the limits of recovery for emotional distress in a retaliatory discharge claim, we decline to automatically allow a claim for punitive damages to be added to the damage picture. We do recognize that where the employer's conduct is wanton, willful or malicious, punitive damages may be appropriate.
As examples of the requisite types of willful or malicious conduct,
we explained that "[s]uch a situation may arise where the employer
circulates false or malicious rumors about the employee before or
after the discharge or engages in a concerted action of harassment
to induce the employee to quit or actively interferes with the
employee's ability to find other employment." Id. at 703, n.19.
No such evidence was presented in this case.
For the foregoing reasons, we overturn the appellee's
punitive damage award, but affirm the jury's determinations
regarding awards for lost wages and emotional distress. This case
is remanded to the Circuit Court of Kanawha County for entry of an
order consistent with this opinion.
Footnote: 1Mace states that he did not deal with the scheduled drugs, or controlled substances, which were kept under lock and accessible only to pharmacists and the charge nurse on each floor.
Footnote: 2Mace explains in his brief that he demanded to be paid in full for the time between November 8 and December 9, 1985, when he was available for work but CAMC refused to re-employ him. On March 27, 1987, after the United States Attorney's Office became involved in collection efforts on Mace's behalf, CAMC offered to compromise Mace's $1,083.85 claim for $657.60. Mace refused, and CAMC subsequently paid Mace the full amount of his claim on May 18, 1987.
Footnote: 3Mace chose not to take the next step in the grievance procedure, which was to submit the issue to arbitration. This point was not raised in the briefs submitted to this Court and was mentioned at the trial below only during CAMC's argument to the jury on the punitive damages issue. When asked during oral argument before this Court about the fact that Mace did not continue to follow the normal grievance procedure and had instead elected to file this lawsuit, counsel for Mace suggested that Mace had "had all the CAMC justice he could take."
Footnote: 4See generally, Personnel Policy Manuals as Legally Enforceable Contracts: The Implied-in-Fact Contract -- A Limitation on the Employer's Right to Terminate at Will, 29 Washburn L.J. 368, 390 (1990).
Footnote: 5Mace's attorney told the jury that, "[h]e is also entitled to an additional 30 percent or -- 33 and a third percent of that figure [lost wages] of the value of his benefits. You can add those to the wages he missed in compensation."