P. Rodney Jackson
Lonnie C. Simmons
DiTrapano & Jackson
Charleston, West Virginia
Attorneys for Appellant
Daniel R. Schuda David P. Cleek
Steptoe & Johnson Cleek, Pullin & Bibb
Charleston, West Virginia Charleston, West Virginia
Attorney for Appellee Attorney for Appellee Frank
Kanawha County Housing and Vinson
JUSTICE MILLER delivered the Opinion of the Court.
CHIEF JUSTICE McHUGH and JUSTICE WORKMAN, deeming themselves
disqualified, did not participate in the consideration or decision
of this case.
JUSTICE CAPLAN AND JUDGE SUMMERFIELD were appointed as substitute
1. Invasion of privacy is a personal action that does
not survive the death of the individual at common law or under
W. Va. Code, 55-7-8a(a) (1959). Consequently, a claim for invasion
of privacy is governed by the one-year statute of limitations
provided by W. Va. Code, 55-2-12(c) (1959).
2. The discovery rule is applicable to a plaintiff's
claim for the tort of invasion of privacy.
3. In actions where the discovery rule applies, the
statute of limitations does not begin to run until the plaintiff
knows, or by the exercise of reasonable diligence should know, that
he has been injured and the identity of the person or persons
4. A constructive discharge cause of action arises when
the employee claims that because of age, race, sexual, or other
unlawful discrimination, the employer has created a hostile working
climate which was so intolerable that the employee was forced to
leave his or her employment.
5. Where a constructive discharge is claimed by an employee in a retaliatory discharge case, the employee must prove sufficient facts to establish the retaliatory discharge. In addition, the employee must prove that the intolerable conditions that caused the employee to quit were created by the employer and
were related to those facts that gave rise to the retaliatory
6. In order to prove a constructive discharge, a
plaintiff must establish that working conditions created by or
known to the employer were so intolerable that a reasonable person
would be compelled to quit. It is not necessary, however, that a
plaintiff prove that the employer's actions were taken with a
specific intent to cause the plaintiff to quit.
This is an appealSee footnote 1 from a final judgment of the Circuit
Court of Kanawha County in a civil action brought by the plaintiff
below, Sara W. Slack, involving claims of invasion of privacy,
retaliatory discharge, and civil conspiracy. The plaintiff asserts
that the trial court erred in setting aside the $60,000 jury
verdict in her favor and in entering judgment notwithstanding the
verdict in favor of defendant Frank Vinson on the invasion of
privacy claim. She also contends that the trial court erred in not
granting her a new trial on the retaliatory discharge and
conspiracy claims. For the reasons hereinafter set forth, we
reinstate the $60,000 verdict on the invasion of privacy claim and
award the plaintiff a new trial on the retaliatory discharge and
civil conspiracy claims.
Plaintiff began working for the Kanawha County Housing and Redevelopment Authority (the Authority) in August of 1983. The Authority is a public corporation set up as a conduit for federal funds to be used to provide safe, clean housing to persons who qualify under guidelines of the federal Department of Housing and Urban Development (HUD). In April of 1984, the plaintiff was made
the manager of a program, known as the Section 8 Program, designed
to provide for the rehabilitation of existing housing for rental by
low-income persons. During this period, defendant Frank Vinson was
the Executive Director of the Authority.
In the summer of 1985, the plaintiff became aware that
Mr. Vinson owned an interest in a private company which managed
certain properties which were subsidized by Authority funds. When
the plaintiff confronted Mr. Vinson with this information and
expressed concern about a possible conflict of interest, she was
told to mind her own business. The plaintiff also expressed her
concerns to several members of the Authority's board of directors.
As a result of information supplied by the plaintiff, the Authority
fired Mr. Vinson on November 4, 1985. The plaintiff was named
Interim Executive Director of the Authority. The plaintiff
subsequently approached the United States Attorney's office, and,
as a result, Mr. Vinson was indicted on criminal charges in federal
Shortly before Mr. Vinson was fired, the plaintiff became suspicious that other persons were overhearing conversations which took place in her office behind closed doors. Over the next several months, the plaintiff confided to several of the Authority's board members that she felt "the walls had ears" and asked to have her office "swept" for electronic listening devices.
The plaintiff was told that she was being "paranoid," and her
request was refused.
In September of 1986, the plaintiff returned to her
duties as Section 8 Program Manager. In August of 1987, she took
a month of sick leave. While the plaintiff was on leave, Mike Edds
was appointed Executive Director of the Authority. Just before the
plaintiff was to return to work, she was advised by Mr. Edds that
she was being transferred to the position of Public Housing
Manager. The plaintiff returned to work on September 1 or 2, 1987.
Sometime thereafter, the plaintiff advised Mr. Edds of her
displeasure with the transfer and asked to be allowed to express
her concerns to the board of directors. Mr. Edds refused to allow
the plaintiff to appear before the board, but advised them of her
concerns at a board meeting on September 17, 1987. After the board
meeting, Mr. Edds advised the plaintiff that the board of directors
had approved the transfer. On September 18, 1987, the plaintiff
tendered her letter of resignation.
In 1989, federal investigators discovered a listening
device, still operational, concealed in the ceiling of the
plaintiff's office. At his trial in federal court, Mr. Vinson
subsequently testified that he had placed the device there in late
October of 1985. Mr. Vinson further testified that he had
recruited one of the janitors in the building to bring him the
trash from the plaintiff's office every evening.
On September 15, 1989, the plaintiff instituted a civil suit against the Authority, Mr. Vinson, and others for invasion of privacy, civil conspiracy, and retaliatory discharge based on her claim that her transfer was a result of her "whistleblower" activities.See footnote 2 Trial commenced before a jury in the Circuit Court of Kanawha County on January 29, 1991. On February 11, 1991, the jury returned a verdict in favor of the plaintiff and against Mr. Vinson on the invasion of privacy claim and awarded the plaintiff damages in the amount of $60,000. The jury found for the defendants on the retaliatory discharge and civil conspiracy claims.
By order dated April 25, 1991, the trial court denied the
plaintiff's motion for a new trial. The court subsequently, in an
order dated June 26, 1991, set aside the verdict on the invasion of
privacy claim on the ground that the statute of limitations had
lapsed. The court also entered judgment notwithstanding the
verdict in favor of Mr. Vinson with respect to half of the damage
award on the ground of insufficient evidence. It is from these
rulings that the plaintiff now appeals.
The plaintiff's first assignment of error concerns the trial court's ruling on the statute of limitations in the invasion of privacy claim.See footnote 3 At trial, the court submitted to the jury, over the plaintiff's objection, a special interrogatory asking them to determine when the plaintiff knew or reasonably should have known that a listening device was present in her office.See footnote 4 The jury answered "Early Nov. 1985." In reliance on this response, the circuit court ruled that the plaintiff's claim for invasion of privacy was barred by the statute of limitations and set aside the verdict.
The applicable statute of limitations is determined by
reference to W. Va. Code, 55-2-12 (1959), which provides, in
"Every personal action for which no limitation is otherwise prescribed shall be brought: . . . (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative."
In Snodgrass v. Sisson's Mobile Homes Sales, Inc., 161 W. Va. 588,
244 S.E.2d 321 (1978), we recognized that this provision must be
read in pari materia with W. Va. Code, 55-7-8a(a) (1959), which
specifies that "[i]n addition to the causes of action which survive
at common law, causes of action for injuries to property, real or
personal, or injuries to the person and not resulting in death, or
for deceit or fraud, also shall survive" the death of the injured
party. Accord Rodgers v. Corporation of Harpers Ferry, 179 W. Va.
637, 371 S.E.2d 358 (1988); Cavendish v. Moffitt, 163 W. Va. 38,
253 S.E.2d 558 (1979). In Snodgrass, we stated:
"By isolating causes of action for fraud and deceit and combining them with personal actions which will survive under W. Va. Code, 55-7-8a(a), it is apparent that the Legislature intended to exclude from statutory survivability under subsection (a) other personal tort actions such as defamation, false arrest and imprisonment, and malicious prosecution. These latter personal actions, lacking statutory survivability and possessing no common law survivability, take a one-year statute of limitations under W. Va.
Code, 55-2-12(c)." 161 W. Va. at 594, 244
S.E.2d at 325.
It is generally recognized that in the absence of a
statute to the contrary, invasion of privacy is a personal action
which dies with the individual. See, e.g., Maritote v. Desilu
Prods., Inc., 345 F.2d 418 (7th Cir.), cert. denied, 382 U.S. 883,
86 S. Ct. 176, 15 L. Ed. 2d 124 (1965); Gruschus v. Curtis
Publishing Co., 342 F.2d 775 (10th Cir. 1965); New Era Publications
Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988),
aff'd, 873 F.2d 576 (2d Cir. 1989), cert. denied, 493 U.S. 1094,
110 S. Ct. 1168, 107 L. Ed. 2d 1071 (1990); Loft v. Fuller, 408 So.
2d 619 (Fla. App. 1981), review denied, 419 So. 2d 1198 (Fla.
1982); Fry v. Ionia Sentinel-Standard, 101 Mich. App. 725, 300
N.W.2d 687 (1980); Fasching v. Kallinger, 211 N.J. Super. 26, 510
A.2d 694 (1986); Bartholomew v. Workman, 197 Okla. 267, 169 P.2d
1012 (1946); Moore v. Charles B. Pierce Film Enters., 589 S.W.2d
489 (Tex. Civ. App. 1979). See generally Restatement (Second) of
Torts § 652I, comments a and b (1977). Thus, invasion of privacy
is a personal action that does not survive the death of the
individual at common law or under W. Va. Code, 55-7-8a(a).
Consequently, a claim for invasion of privacy is governed by the
one-year statute of limitations provided by W. Va. Code, 55-2-12(c). See Christman v. American Cyanamid Co., 578 F. Supp. 63
(N.D. W. Va. 1983).
The question, then, is whether the plaintiff's lawsuit was filed within one year of the date upon which her cause of action accrued. The general rule in tort actions was stated in Syllabus Point 1 of Jones v. Trustees of Bethany College, 177 W. Va. 168, 351 S.E.2d 183 (1986):
"The statute of limitations ordinarily begins to run when the right to bring an action for personal injuries accrues which is when the injury is inflicted."
Accord Sattler v. Bailey, 184 W. Va. 212, 400 S.E.2d 220 (1990);
Hundley v. Martinez, 151 W. Va. 977, 158 S.E.2d 159 (1967). We
have, however, also recognized exceptions to this rule. In Basham
v. General Shale, 180 W. Va. 526, 531, 377 S.E.2d 830, 835 (1988),
we stated: "The discovery rule is an exception to the statute of
limitations which delays the running of the statute until such time
as the plaintiff knew, or reasonably should have known, of the
injury and its cause." Accord Shirkey v. Mackey, 184 W. Va. 157,
159, 399 S.E.2d 868, 870 (1990). We have applied the discovery
rule in a variety of tort cases. E.g., Hickman v. Grover, 178 W.
Va. 249, 358 S.E.2d 810 (1987) (products liability); Harrison v.
Seltzer, 165 W. Va. 366, 268 S.E.2d 312 (1980) (medical
malpractice); Family Sav. & Loan, Inc. v. Ciccarello, 157 W. Va.
983, 207 S.E.2d 157 (1974), overruled on other grounds Hall v.
Nichols, 184 W. Va. 466, 400 S.E.2d 901 (1990) (legal malpractice);
Morgan v. Grace Hosp., Inc., 149 W. Va. 783, 144 S.E.2d 156 (1965)
It is generally recognized that the discovery rule is applicable to a plaintiff's claim for the tort of invasion of privacy. See Diliberti v. United States, 817 F.2d 1259 (7th Cir. 1987); Montalti v. Catanzariti, 191 Cal. App. 3d 96, 236 Cal. Rptr. 231 (1987); Cain v. State Farm Mut. Auto. Ins. Co., 62 Cal. App. 3d 310, 132 Cal. Rptr. 860 (1976); Arent v. Hatch, 133 Mich. App. 700, 349 N.W.2d 536 (1984). See generally 62A Am. Jur. 2d Privacy § 177 (1990); Annot., 57 A.L.R.4th 244 (1987). This rule is consistent with our tort law, and we adopt it.
The plaintiff's action for invasion of privacy was filed
in September of 1989. The plaintiff asserts that she did not have
sufficient information to bring such an action until earlier that
year when she learned of Mr. Vinson's public admissions that he was
responsible for placing a listening device in her office.
Consequently, the plaintiff argues that her action was filed within
the proper statutory period. The defendants, on the other hand,
assert that the issue was properly submitted to the jury, which
determined that the plaintiff discovered or should have discovered
the invasion of her privacy almost four years before suit was
filed. Accordingly, the defendants urge us to affirm the circuit
In Hickman v. Grover, supra, we noted that the purpose of the discovery rule is to remedy the unjust and unreasonable effects of strict application of the statute of limitations in cases where
the plaintiff is unaware of his injury until the statutory period
has expired: "Justice is not done when an injured person loses his
right to sue before he discovers if he was injured or who to sue."
178 W. Va. at 252, 358 S.E.2d at 813. (Emphasis added). We then
set out in Syllabus Point 1 what knowledge the plaintiff must have
to have "discovered" his cause of action in products liability
"In products liability cases, the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product had a causal relation to his injury." (Emphasis added).
We recognized that "[t]his rule . . . will allow the plaintiffs a
fair chance to sue, while upholding the purposes behind the statute
of limitations."See footnote 5 178 W. Va. at 252, 358 S.E.2d at 813.
Although Hickman was a products liability case, the principle that the statute of limitations does not begin to run until the plaintiff knew or reasonably should have known of the identity of the person who inflicted the injury has been applied in other circumstances as well. In Spitler v. Dean, 148 Wis. 2d 630, 436 N.W.2d 308 (1989), for example, the plaintiff's suit for an
intentional tort was held not to be barred by the two-year statute
of limitations on such claims where the plaintiff did not discover
the identity of the person who struck him until almost two years
after the alleged assault. In Spitler, the Wisconsin court stated:
"The public policy justifying the accrual of a cause of action upon the discovery of the injury and its cause applies equally to the discovery of the identity of the defendant in this case. We have consistently recognized the injustice of commencing the statute of limitations before a claimant is aware of all the elements of an enforceable claim. . . . A statute of limitations barring relief to victims before the defendant is, or could be, discovered violates this guarantee of fairness. We therefore conclude that Spitler's cause of action did not accrue until Spitler knew the identity of the defendant, or in the exercise of reasonable diligence, should have discovered the identity of the defendant.
"This conclusion is in keeping with
the equitable principle underlying the statute
of limitations, which is to allow plaintiffs
their day in court, but also to protect
defendants from having to deal with claims
which defense against may be seriously
impaired by stale or lost evidence. The issue
presents a question of balancing the
plaintiff's right to seek redress against the
duration of the defendant's exposure to
liability and the possible prejudices due to
delay. Both are concerns of justice. Here,
the balance remains in the plaintiff's favor."
148 Wis. 2d at ___, 436 N.W.2d at 310-11.
In Scutieri v. Estate of Revitz, 683 F. Supp. 795 (S.D. Fla. 1988), this principle was applied in an action for civil rights violations under 42 U.S.C. § 1983 which was premised on an illegal wiretap of the plaintiffs' residence. See also Royal Indem. Co. v. Petrozzino, 598 F.2d 816 (3d Cir. 1979) (applying New Jersey law);
Lavellee v. Listi, 611 F.2d 1129 (5th Cir. 1980); Mullinax v.
McElhenney, 817 F.2d 711 (11th Cir. 1987); McClendon v. State, 357
So. 2d 1218 (La. App. 1978); Meyers v. Larreategui, 31 Ohio App. 3d
161, 31 O.B.R. 326, 509 N.E.2d 971 (1986); Adams v. Oregon State
Police, 289 Or. 233, 611 P.2d 1153 (1980).
This aspect of the discovery rule carries with it the
requirement that the plaintiff must use due diligence to discover
the identity of the person responsible for his or her injury. As
the Wisconsin court stated in Spitler v. Dean, 148 Wis. 2d at ___,
436 N.W.2d at 311: "Plaintiffs may not close their eyes to means
of information reasonably accessible to them and must in good faith
apply their attention to those particulars which may be inferred to
be within their reach." (Citations omitted). We conclude,
therefore, that in actions where the discovery rule applies, the
statute of limitations does not begin to run until the plaintiff
knows, or by the exercise of reasonable diligence should know, that
he has been injured and the identity of the person or persons
Clearly, the special interrogatory submitted by the trial
court in this case did not require the jury to determine when the
plaintiff knew or should have known who was responsible for the
invasion of her privacy. Accordingly, the circuit court clearly
erred in setting aside the verdict on the invasion of privacy claim
in reliance on the jury's response to the special interrogatory.
Looking at the record in this case, we note that there is no evidence that the plaintiff knew, or by the exercise of reasonable diligence should have known, who placed the listening device in her office until Mr. Vinson admitted responsibility in 1989. The evidence does show that the plaintiff knew Mr. Vinson was aware of private conversations conducted in her office. It also appears, however, that other people exhibited knowledge of her private conversations. Moreover, the plaintiff's uncontradicted testimony shows that she had reason to believe her conversations were being overheard long after Mr. Vinson had been fired.
The evidence also shows that the listening device was
concealed in the plaintiff's office and could not have been
discovered by a reasonable visual inspection. The plaintiff
reported her suspicions to her superiors and requested that her
office be searched for listening devices, but she was not believed,
and her request for a search, an action which might have led to
discovery of the person responsible for placing the device in her
office, was denied. We fail to see what other reasonable steps the
plaintiff could have taken to discover the identity of the person
who was invading her privacy.
In these circumstances, we conclude as a matter of law that the statute of limitations did not begin to run until the plaintiff learned that Mr. Vinson had admitted concealing the listening device in her office. Because the plaintiff's action was
filed within one year of that date, we conclude that the circuit
court erred in setting aside the jury's verdict on the invasion of
privacy claim on the ground that the statute of limitations had
The plaintiff also contends that the circuit court erred in granting Mr. Vinson judgment notwithstanding the verdict as to half of the $60,000 verdict on the invasion of privacy claim. The court eliminated the jury's award to the plaintiff of $12,000 for emotional distress and $18,000 for mental anxietySee footnote 6 on the ground that the evidence of such damages consisted solely of the plaintiff's testimony, uncorroborated by any medical or expert testimony.
The circuit court relied on Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 102 S. Ct. 1719, 72 L. Ed. 2d 139 (1982), in which three former municipal employees brought suit for federal civil rights violations, alleging that they were fired from their jobs for political reasons. The court in Nekolny recognized that damages for mental and emotional distress could be recovered in such actions, but noted that limited
evidence of injury had been presented in the case. One plaintiff
stated that he was "very depressed" on learning he had been fired.
The second plaintiff testified that at one point after being fired
she was "a little despondent and [lacking] motivation." The third
plaintiff explained that he did not look for other work because "I
didn't work for six weeks, I was completely humiliated, and I
stayed close to home."
In discussing the sufficiency of this evidence, the Court
of Appeals noted the standard for proof of damages of mental
anguish or emotional distress set out in note 20 of Carey v.
Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052, 55 L. Ed. 2d 252,
"'Although essentially subjective, genuine injury in this respect may be evidenced by one's conduct and observed by others. Juries must be guided by appropriate instructions, and an award of damages must be supported by competent evidence concerning the injury." 653 F.2d at 1172.
The Court of Appeals went on to state in Nekolny:
"A single statement by a party that
he was 'depressed,' 'a little despondent,' or
even 'completely humiliated' (the latter in
the context of explaining why other employment
was not sought), is not enough to establish
injury even when the statement is considered
along with the facts of this case." 653 F.2d
The import of Nekolny is that isolated and conclusory statements by the plaintiff as to his or her emotional state are not sufficient to prove emotional and mental distress damages.
Nowhere in that opinion does the court state that recovery for such
injuries can never be predicated on the uncorroborated testimony of
the plaintiff. Indeed, in Rakovich v. Wade, 819 F.2d 1393 (7th
Cir. 1987), vacated on other grounds, 850 F.2d 1180 (7th Cir.),
cert. denied, 488 U.S. 968, 109 S. Ct. 497, 102 L. Ed. 2d 534
(1988), the court expressly stated that Nekolny was not to be read
for the proposition
"that an injured person's testimony, standing alone, will never be sufficient to establish damages. See Crawford v. Garnier, 719 F.2d 1317, 1324 (7th Cir. 1983). Rather, under Nekolny, where the injured party provides the sole evidence, he must reasonably and sufficiently explain the circumstances of his injury and not resort to mere conclusory statements." 819 F.2d at 1399 n.6.
See Biggs v. Village of Dupo, 892 F.2d 1298 (7th Cir. 1990).
Moreover, a number of cases since Nekolny have allowed recovery for
emotional or mental distress based solely on the plaintiff's
uncorroborated testimony. E.g., Crawford v. Garnier, 719 F.2d 1317
(7th Cir. 1983); Chalmers v. City of Los Angeles, 762 F.2d 753 (9th
Cir. 1985); Mutafis v. Erie Ins. Exch., 561 F. Supp. 192 (N.D. W.
Va. 1983), aff'd, 775 F.2d 593 (4th Cir. 1985); Jacobs v. Meister,
108 N.M. 488, 775 P.2d 254 (App.), cert. denied, 108 N.M. 582, 775
P.2d 1299 (1989); Chomicki v. Wittekind, 128 Wis. 2d 188, 381
N.W.2d 561 (1985).
We have not required plaintiffs who have suffered emotional distress damages to buttress such claims by corroborative evidence at the peril of having their claims dismissed as a matter
of law. We, therefore, conclude that the circuit court erred in
entering judgment notwithstanding the verdict in favor of Mr.
Vinson on the plaintiff's invasion of privacy claim.See footnote 7 On remand,
the verdict will be reinstated.
The plaintiff next contends that the trial court erred in instructing the jury on her constructive discharge claim, which was ancillary to her cause of action for a retaliatory discharge against the Authority. The retaliatory discharge cause of action was based on the plaintiff's assertions that her role in bringing to the attention of the federal prosecutors improprieties in the operation of the Authority promoted a substantial public policy and, thus, protected her against any retaliation by her employer under Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).See footnote 8
The plaintiff's constructive discharge theory rested on her claim that her employer, the Authority, in retaliation for her cooperation with the federal prosecutors, changed her job position making it more onerous and forcing her to quit. The error asserted on the constructive discharge theory is an erroneous jury instruction. Over the objection of the plaintiff, the judge instructed the jury that to recover, the plaintiff had to show that the Authority's actions were taken with the intent of forcing her to resign.See footnote 9 The plaintiff asserts that there is no requirement
that she make such a subjective showing to prove constructive
The elements for proving a constructive discharge have
been discussed in a number of federal cases relating to age
discrimination under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621, et seq., and in employment discrimination
cases under Title VII of the Civil Rights Act of 1964 (Title VII),
42 U.S.C. § 2000, et seq.See footnote 10 Typically, in these federal cases, the
constructive discharge cause of action arises when the employee
claims that because of age, race, sexual, or other unlawful
discrimination, the employer has created a hostile working climate
which was so intolerable that the employee was forced to leave his
or her employment.
There appears to be no disagreement that one of the essential elements of any constructive discharge claim is that the
adverse working conditions must be so intolerable that any
reasonable employee would resign rather than endure such
conditions. See, e.g., Calhoun v. Acme Cleveland Corp., 798 F.2d
559 (1st Cir. 1986); Pena v. Brattleboro Retreat, 702 F.2d 322 (2d
Cir. 1983); Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d 140
(5th Cir. 1975); Wheeler v. Southland Corp., 875 F.2d 1246 (6th
Cir. 1989); Thompson v. McDonnell Douglas Corp., 552 F.2d 220 (8th
Cir. 1977); Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984);
Cockrell v. Boise Cascade Corp., 781 F.2d 173 (10th Cir. 1986);
Buckley v. Hospital Corp. of Am., Inc., 758 F.2d 1525 (11th Cir.
1985). See generally Annot., 93 A.L.R.Fed. 10 (1989) (constructive
discharge in ADEA cases); Annot., 55 A.L.R.Fed. 418 (1981)
(constructive discharge in Title VII cases); 45A Am. Jur. 2d Job
Discrimination § 898 (1986); I. M. Saxe, Constructive Discharge
Under the ADEA: An Argument for the Intent Standard, 55 Fordham L.
Rev. 963 (1987).
A typical recital of this principle is found in Calhoun v. Acme Cleveland Corp., 798 F.2d at 561, where the court quoted from its earlier decision in Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977): "'[T]he trier of fact must be satisfied that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Proof of this element may be determinative of the case: If the working conditions are not found to be intolerable, then there is no need for the court to
consider the constructive discharge claim any further. See, e.g.,
Shealy v. Winston, 929 F.2d 1009 (4th Cir. 1991); Bourque v. Powell
Elec. Mfg. Co., 617 F.2d 61 (5th Cir. 1980).
Where intolerable working conditions are shown, there is
some disagreement as to whether the employee must show that the
employer created or allowed the intolerable conditions with the
specific intent to force the employee to leave. The Court of
Appeals for the Fourth Circuit appears to have adopted the view
that such a showing is required. In Bristow v. Daily Press, Inc.,
770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082,
106 S. Ct. 1461, 89 L. Ed. 2d 718 (1986), the court stated: "Our
decisions require proof of the employer's specific intent to force
an employee to leave. J.P. Stevens & Co., Inc. v. NLRB, 461 F.2d
490, 495 (4th Cir. 1972)." See also Johnson v. Bunny Bread Co.,
646 F.2d 1250 (8th Cir. 1981).
This is not, however, the view of the majority of the federal Courts of Appeals and of state courts that have addressed the specific intent requirement in constructive discharge cases. See, e.g., Calhoun v. Acme Cleveland Corp., supra; Pena v. Battleboro Retreat, supra; Bourque v. Powell Elec. Mfg. Co., supra; Wheeler v. Southland Corp., supra; Held v. Gulf Oil Corp., 684 F.2d 427 (6th Cir. 1982); Satterwhite v. Smith, supra; Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir. 1986); Civil Rights Div. of Ariz. Dept. of Law v. Vernick Plumbing & Heating Co., 132 Ariz. 84, 643
P.2d 1054 (App. 1982); Gantt v. Sentry Ins., 234 Cal. App. 3d 612,
265 Cal. Rptr. 814 (1990), aff'd, 1 Cal. 4th 1083, 4 Cal. Rptr. 2d
874, 824 P.2d 680 (1992); Brady v. Elixir Indus., 196 Cal. App. 3d
1299, 242 Cal. Rptr. 324 (1988); Boulder Valley Sch. Dist. R-2 v.
Price, 805 P.2d 1085 (Colo. 1991); Atlantic Richfield Co. v.
District of Columbia Comm'n on Human Rights, 515 A.2d 1095 (D.C.
App. 1986); Brewington v. Department of Corrections, 161 Ill. App.
3d 54, 112 Ill. Dec. 447, 513 N.E.2d 1056 (1987), appeal denied,
118 Ill. 2d 541, 117 Ill. Dec. 222, 520 N.E.2d 383 (1988); Beye v.
Bureau of Nat'l Affairs, 59 Md. App. 642, 477 A.2d 1197, cert.
denied, 301 Md. 639, 484 A.2d 274 (1984); Hammond v. Katy Indep.
Sch. Dist., 821 S.W.2d 174 (Tex. App. 1991); Bulaich v. AT&T Info.
Sys., 113 Wash. 2d 254, 778 P.2d 1031 (1989).
In Goss v. Exxon Office Systems Co., 747 F.2d 885, 888
(3d Cir. 1984), the Court of Appeals for the Third Circuit
expressed the majority view in this fashion:
"[N]o finding of a specific intent on the part of the employer to bring about a discharge is required for the application of the constructive discharge doctrine. The court need merely find that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign."
Reflective of the majority of state courts on this point is Beye v.
Bureau of National Affairs, 59 Md. App. at ___, 477 A.2d at 1202,
where the court, after recognizing the minority position, stated:
"In most of the decisions, however, and
particularly in the cases arising under the
civil rights laws, such express intent has not
been regarded as necessary. It suffices if
the employer's actions were deliberate or, in
cases of harassment by supervisors or fellow
employees, if the employer was aware of the
situation and permitted it to continue. . . .
Indeed, in some instances the employer may not
wish a separation at all. See, for example,
Young v. Southwestern Savings and Loan
Association, [509 F.2d 140 (5th Cir. 1975)]."
We have not had occasion to address this aspect of constructive discharge. In Paxton v. Crabtree, 184 W. Va. 237, 400 S.E.2d 245 (1990), we addressed generally the liability of an employer under our Human Rights Act for discriminatory acts of its employees and limited liability to those instances where the employer knew or should have known of the employee misconduct.See footnote 11 We have also recognized that an employee may "voluntarily" leave employment under certain circumstances and still be eligible for
unemployment benefits under W. Va. Code, 21A-6-1, et seq.See footnote 12 See
Wolford v. Gatson, 182 W. Va. 674, 391 S.E.2d 364 (1990); Hunt v.
Rutledge, 177 W. Va. 523, 354 S.E.2d 619 (1987); Brewster v.
Rutledge, 176 W. Va. 265, 342 S.E.2d 232 (1986); Ross v. Rutledge,
175 W. Va. 701, 338 S.E.2d 178 (1985); Murray v. Rutledge, 174 W.
Va. 423, 327 S.E.2d 403 (1985). However, the statutory standard
applicable in unemployment compensation claims is more liberal in
accordance with the beneficial purposes underlying unemployment
security law and is not applicable in a constructive discharge
case.See footnote 13
This case does not involve a claim of age or civil rights
discrimination, but, rather, a claim for retaliatory discharge,
i.e,. that the plaintiff was forced to resign because she had
disclosed and cooperated with federal prosecutors in regard to
alleged wrongdoing by Mr. Vinson and members of the Authority.
Other jurisdictions have concluded that in similar types of
employment claims, the doctrine of constructive discharge is
applicable. See, e.g., Gantt v. Sentry Ins., supra; Finstad v.
Montana Power Co., 241 Mont. 10, 785 P.2d 1372 (1990); Large v.
Acme Eng'g & Mfg. Corp., 790 P.2d 1086 (Okla. 1990).
Where a constructive discharge is claimed by an employee
in a retaliatory discharge case, the employee must prove sufficient
facts to establish the retaliatory discharge. In addition, the
employee must prove that the intolerable conditions that caused the
employee to quit were created by the employer and were related to
those facts that gave rise to the retaliatory discharge.
With regard to the constructive discharge aspect of this
case, we adopt the majority view that in order to prove a
constructive discharge, a plaintiff must establish that working
conditions created by or known to the employer were so intolerable
that a reasonable person would be compelled to quit. It is not
necessary, however, that a plaintiff prove that the employer's
actions were taken with a specific intent to cause the plaintiff to
The defendants' jury instruction on constructive discharge erroneously required the plaintiff to establish that the Authority's actionsSee footnote 14 were taken with a specific intent to cause her to quit. We recently spoke to the question of instructional error in Syllabus Point 8 of Kodym v. Frazier, 186 W. Va. 221, 412 S.E.2d 219 (1991):
"'"An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction." Point 2, syllabus, Hollen v. Linger, 151 W. Va. 255 [151 S.E.2d 330 (1966)].' Syllabus Point 5, Yates v. Mancari, 153 W. Va. 350, 168 S.E.2d 746 (1969)."
Here, we cannot say that the plaintiff was not prejudiced by this
instructional error. The instruction injected a substantially
higher degree of proof to show a constructive discharge than our
law requires. Consequently, we conclude that the jury verdict in
favor of the defendant Authority on the retaliatory discharge issue
must be reversed.
There are a number of other issues raised by the plaintiff which we address only briefly.
First, the plaintiff assigns several errors in regard to her civil conspiracy claim. We note, however, that the only damages the plaintiff proved in this case were damages for emotional distress and mental anguish. This was true as to all of the causes of action asserted. The evidence presented by the plaintiff did not differentiate in time or degree between the emotional distress and mental anguish resulting from the civil conspiracy and that resulting from the plaintiff's other causes of action. Consequently, we are controlled by Syllabus Point 7 of Harless v. First National Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982):
"It is generally recognized that there can be only one recovery of damages for one wrong or injury. Double recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury. A plaintiff may not recover damages twice for the same injury simply because he has two legal theories."
As earlier noted, we are ordering reinstatement of the verdict for the plaintiff's emotional injuries due to the invasion of privacy. In view of the identicality of the damage claim asserted under the civil conspiracy theory, we decline to address whether, from a substantive standpoint, there was sufficient evidence to prove such a theory. On remand, the plaintiff is free to develop the claim for civil conspiracy, but unless the damages are separate and distinct from those already obtained on the invasion of privacy verdict, there can be no recovery under
Harless. Consequently, we decline to address the plaintiff's
assignments of error with regard to the conspiracy claim.
The plaintiff also contends that the trial court erred in refusing her punitive damages instructions on the ground that she had adduced no evidence as to the wealth of the defendants. We have recognized that the wealth of a defendant is a relevant consideration for the jury in making a punitive damage award. TXO Prod. Corp. v. Alliances Resources Corp., ___ W. Va. ___, ___ S.E.2d ___ (No. 20281 5/14/92); Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991); Wells v. Smith, 171 W. Va. 97, 297 S.E.2d 872 (1982).See footnote 15 See generally 22 Am. Jur. 2d Damages § 807 (1988); Annot., 87 A.L.R.4th 141 (1991). We have never, however, mandated that a plaintiff must introduce evidence of the wealth of the defendant in order to recover punitive damages. In some cases, the defendant may wish to demonstrate its meager financial status as a way of holding down a punitive damage award. The failure of the plaintiff to introduce such evidence, however,
does not preclude a punitive damage award. Consequently, the trial
court erred in refusing the plaintiff's punitive damages
instruction on the ground that financial worth of the defendant
must be shown to recover punitive damages.
The plaintiff next contends that the trial court erred in not allowing the jury to decide whether she was entitled to recover damages under W. Va. Code, 62-1D-12, which provides a statutory right of action for compensatory and punitive damages against one who intercepts an oral, wire, or electronic communication.See footnote 16 This statute did not take effect until June of 1987. See 1987 W. Va.
Acts ch. 149. There was no evidence at trial that the listening
device was in use on or after the effective date of the statute.
Thus, the plaintiff has no cause of action based on the statute.
See White v. Gosiene, ___ W. Va. ___, ___ S.E.2d ___ (No. 20656
The plaintiff also contends that the trial court erred in not allowing her to introduce evidence as to the quantity and quality of her involvement with the federal investigation of Mr. Vinson and others. The question arose after employees of the Authority testified that the plaintiff was not the only employee who cooperated with the federal authorities and suggested that in certain instances the plaintiff may, in fact, have hampered the investigation. The testimony, elicited by the defense, called into question whether the plaintiff's participation in the investigation was of such a nature as to warrant retaliation by her employer. In such circumstances, evidence of the value of the plaintiff's efforts in assisting the federal authorities was clearly relevant and admissible. See W.Va.R.Evid. 401, 402, 403.See footnote 17
For the reasons stated above, we reverse the judgment of the Circuit Court of Kanawha County and remand the case to the trial court with directions to reinstate the verdict in favor of the plaintiff on the invasion of privacy claim and for a new trial on the constructive discharge and conspiracy claims, subject to the restrictions discussed in Section IV(A) of this opinion.
Reversed and remanded
Footnote: 1Chief Justice McHugh and Justice Workman deemed themselves disqualified from participating in this case. The Honorable Fred H. Caplan and the Honorable J. Zane Summerfield were appointed as substitute justices to hear and decide this appeal.
Footnote: 2The complaint also charged that local HUD officials Carl Smith and James Schwartz were parties to the civil conspiracy. Mr. Schwartz died prior to trial and was dismissed from the action by the agreement of the plaintiff. The trial court subsequently directed a verdict in favor of Mr. Smith on the ground that as a federal official he was entitled to qualified immunity for his discretionary acts.
Footnote: 3We first acknowledged an action for invasion of privacy in Roach v. Harper, 143 W. Va. 869, 105 S.E.2d 564 (1958). In Syllabus Point 8 of Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1983), we recognized four types of invasion of privacy claims:
"An 'invasion of privacy' includes
(1) an unreasonable intrusion upon the
seclusion of another; (2) an appropriation of
another's name or likeness; (3) unreasonable
publicity given to another's private life;
and (4) publicity that unreasonably places
another in a false light before the public."
This case, like Roach, involves eavesdropping, which falls within the first category.
Footnote: 4Attached to the verdict form was the following special interrogatory: "Please state the date, month, day and year upon which you find by a preponderance of evidence that plaintiff, Sara Slack, knew or reasonably should have known that her workplace had a listening device present which may have given rise to a claim of invasion of privacy."
Footnote: 5In Morgan v. Grace Hospital, Inc., 149 W. Va. at 791, 144 S.E.2d at 161, we stated these purposes: "The basic purpose of statutes of limitations is to encourage promptness in instituting actions; to suppress stale demands or fraudulent claims; and to avoid inconvenience which may result from delay in asserting rights or claims when it is practicable to assert them." (Citations omitted).
Footnote: 6The verdict form was submitted by the defendants and listed a number of categories of damages. We find this form to be improper because it required the jury to set a dollar amount on a variety of separate items, all relating to the plaintiff's claim of emotional distress, some of which appear to be redundant. However, because the defendants urged the trial court to use this form, we decline to discuss the redundancy question.
Footnote: 7In view of our holding, we need not discuss the plaintiff's claim that the court erroneously excluded the testimony of several corroborative witnesses because their statements were too general and conclusory.
Footnote: 8We have used the term "retaliatory discharge" as a shorthand term for an employee discharge that contravenes some substantial public policy principle, as stated in the Syllabus of Harless:
"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."
See also Collins v. Elkay Mining Co., 179 W. Va. 549, 371 S.E.2d 46 (1988); Davis v. Kitt Energy Corp., 179 W. Va. 37, 365 S.E.2d 82 (1987); Wiggins v. Eastern Assoc. Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (1987).
Footnote: 9Defendants' Instruction No. 22 stated, in pertinent part:
"In West Virginia, a constructive
discharge is defined as an action by the
employer that subjects the employee to
intolerable working conditions, which forces
the employee to quit his or her employment.
The intolerability of working conditions is
assessed by the standard of whether a
reasonable person would have felt compelled
to resign. A further requirement of showing
such a claim is that plaintiff must show the
employer's action[s] were intended by the
employer to force the employee to quit.
There is no requirement that an employer act
in a fair dealing fashion with an employee.
"If you believe that plaintiff has failed to demonstrate that her working conditions were intolerable based upon a
reasonable person standard and that the
employer, Kanawha County Housing and
Redevelopment Authority, committed acts that
were an effort to force her to quit her job,
then you may find that plaintiff quit her job
voluntarily and find against her and award no
damages on such claim." (Emphasis added).
Footnote: 10It should be noted that the constructive discharge rule utilized by the federal courts had its genesis in labor law, as stated in Goss v. Exxon Office Systems Co., 747 F.2d 885, 887 (3d Cir. 1984): "The constructive discharge doctrine was first developed under the National Labor Relations Act, and is in that branch of labor law well established." (Citations omitted).
Footnote: 11In Syllabus Points 7 and 8 of Paxton, we stated:
"7. If a discriminatory act has
been committed by an officer or a supervisory
employee, an employer may be held liable
without showing that the employer knew or
reasonably should have known of the
misconduct, except where the supervisory
employee was acting outside the scope of his
"8. An employer will not be liable
for discriminatory acts of its employee
unless he knew or reasonably should have
known of the discriminatory acts and did
nothing to correct them, or expressly or
impliedly authorized or ratified them."
Footnote: 12In Syllabus Points 1 and 2 of Murray v. Rutledge, 174 W. Va. 423, 327 S.E.2d 403 (1985), we stated:
"1. 'Customary working conditions
not involving deceit or other wrongful
conduct on the part of the employer are not a
sufficient reason for an employee to leave
his most recent work voluntarily. . . .'
Syl., Amherst Coal Co. v. Hix, 128 W. Va.
119, 35 S.E.2d 733 (1945).
"2. Misrepresentations concerning
the terms of employment or substantial
unilateral changes in the terms of employment
furnish 'good cause involving fault on the
part of the employer' which justify employee
termination of employment and preclude
disqualification from the receipt of
unemployment compensation benefits."
Footnote: 13As a consequence, we find no merit in the plaintiff's claim that the trial court erred in not directing a verdict in her favor based on the fact that she prevailed in her unemployment compensation claim. Where the issues litigated are not the same, collateral estoppel has no applicability. See Syllabus Point 2, Conley v. Spillers, 171 W. Va. 584, 301 S.E.2d 216 (1983).
Footnote: 14Because Mr. Vinson ceased to be the plaintiff's superior almost two years before she left her employment, the constructive discharge claim cannot be pursued against him on remand.
Footnote: 15In Syllabus Point 2 of Wells v. Smith, supra, we stated:
"In assessing punitive damages, the
trier of fact should take into consideration
all of the circumstances surrounding the
particular occurrence including the nature of
the wrongdoing, the extent of harm inflicted,
the intent of the party committing the act,
the wealth of the perpetrator, as well as any
Footnote: 16W. Va. Code, 62-1D-12, provides:
"(a) Any person whose wire, oral or
electronic communication is intercepted,
disclosed, used or whose identity is
disclosed in violation of this article shall
have a civil cause of action against any
person who so intercepts, discloses, or uses,
or procures any other person to intercept,
disclose, or use the communications, and
shall be entitled to recover from any such
person or persons:
"(1) Actual damages, but not less than one hundred dollars for each day of violation;
"(2) Punitive damages, if found to be proper; and
"(3) Reasonable attorney fees and reasonable costs of litigation incurred.
"(b) A good faith reliance by a
provider of electronic or wire communication
services on a court order or legislative
authorization constitutes a complete defense
to any civil or criminal action brought under
this article or any other law."
Footnote: 17We decline to address the remainder of the plaintiff's assignments of error either on the grounds that they are plainly without merit or that discussion thereof is unnecessary in view of our disposition of this case.