Submitted: February 28, 1995
Filed: March 24, 1995
Brent E. Beveridge
Fairmont, West Virginia
Attorney for Appellant
C. David Morrison
John R. Merinar, Jr.
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for Appellee
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
1. "'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)." Syllabus Point 1, Andrick v. Town of
Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
2. Summary judgment is appropriate if, from the
totality of the evidence presented, the record could not lead a
rational trier of fact to find for the nonmoving party, such as
where the nonmoving party has failed to make a sufficient showing
on an essential element of the case that it has the burden to
3. If the moving party makes a properly supported
motion for summary judgment and can show by affirmative evidence
that there is no genuine issue of a material fact, the burden of
production shifts to the nonmoving party who must either (1)
rehabilitate the evidence attacked by the moving party, (2) produce
additional evidence showing the existence of a genuine issue for
trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules
of Civil Procedure.
4. "A promise of job security contained in an employee
handbook distributed by an employer to its employees constitutes an
offer for a unilateral contract; and an employee's continuing to
work, while under no obligation to do so, constitutes an acceptance
and sufficient consideration to make the employer's promise binding
and enforceable." Syllabus Point 5, Cook v. Heck's Inc., 176
W. Va. 368, 342 S.E.2d 453 (1986).
5. "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).
6. For a disclaimer to be valid, it must be
sufficiently clear, conspicuous, and understandable so that
employees will know that the handbook provides them with no
protection and it only is intended to benefit one side of the
employment relationship, i.e., the employer.
The plaintiff below and appellant herein, Mark Williams,
sued the defendant below and appellee herein, Precision Coil, Inc.,
for, inter alia,See footnote 1 breach of an employment contract. The January 27, 1994, order of the Circuit Court of Harrison County granted summary judgment in favor of the defendant pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure. On appeal, the plaintiff asserts that the defendant altered his at-will employment status and, thereby, transformed him into a contractual employee. The plaintiff contends the defendant breached his employment contract by discharging him. Upon review, we affirm the order granting summary judgment in favor of the defendant.
The plaintiff completed a job application form on August 4, 1990, and began working for the defendant on August 22, 1990. Although the parties dispute whether or not the defendant complied with the provisions in the employee handbook with regard to terminating an employee for "excessive absenteeism," it is clear the defendant gave the plaintiff two warnings for absenteeism in November, 1990, and another warning for absenteeism on April 10, 1991. The April, 1991, warning stated, in part, that it was a "third and final written warning whereas any future absences may be considered just cause for [the plaintiff's] termination." Shortly thereafter, the plaintiff again missed work, and by letter dated April 25, 1991, the plaintiff was informed he was terminated effective April 24, 1991, the date of his absence. The letter generally provided the plaintiff was terminated as the result of absenteeism. According to the letter, during an eight-month period, the plaintiff missed twenty-seven days of work prior to his most recent absence for which he was being terminated.
After his termination, the plaintiff filed a two-count
complaint in the circuit court. The plaintiff alleged in count one
that the defendant discriminated against him on the basis of
handicap in violation of the West Virginia Human Rights Act, W. Va.
Code, 5-11-1, et seq. The plaintiff alleged in count two that, by
terminating him, the defendant breached an implied covenant of good
faith and fair dealing. Upon motion of the defendant, the circuit
court struck the plaintiff's second count for not stating a viable
cause of action.See footnote 2 The defendant then filed a motion for summary
judgment as to the plaintiff's first count claiming discrimination
of the basis of handicap.
In response, the plaintiff filed a motion to amend his
complaint to include an allegation that the defendant breached the
terms of an employment contract.See footnote 3 The plaintiff claimed the
defendant created an employment contract with him by virtue of the
job application form he completed and the provisions in the
employee handbook the defendant adopted. The defendant filed a
response in opposition to the plaintiff's motion to amend and, in
the alternative, filed a motion for summary judgment on the amended
On September 2 and October 27, 1993, the circuit court
heard arguments on all the pending motions. By order dated January
27, 1994, the circuit court found the plaintiff failed to show a
prima facie case of handicap discrimination and awarded summary
judgment for the defendant on this count.See footnote 4 The circuit court also
permitted the plaintiff to amend his complaint to include an action
for breach of an express contract of employment; however, the
circuit court awarded summary judgment for the defendant on this
In granting summary judgment, the circuit court concluded
as a matter of law that the defendant made no express contracts of
employment in either its job application form or in its employee
handbook.See footnote 5 In addition, the circuit court stated neither the job
application form nor the employee handbook contained "'very
definite' promises of employment . . . sufficient to support a
cause of action under the 'implied-in-fact' contract theory," and,
even if they did contain such a promise, the disclaimer in the
foreword of the employee handbook prevents any statements from
becoming binding upon the defendant. Thus, the circuit court
determined the disclaimer "precludes the plaintiff from
establishing contractual rights based upon any statements therein."
The sole issue in this appeal is whether summary judgment was appropriate. A circuit court's entry of summary judgment is reviewed de novo, see Syl. pt. 1, Painter v. Peavy, ___ W. Va. ___, 451 S.E.2d 755 (1994); Drewitt v. Pratt, 999 F.2d 774, 778 (4th Cir. 1993); and, therefore, we apply the same standard as a circuit court. Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir. 1988).See footnote 6
We begin, as we did in Painter, with the premise that our
pronouncements regarding the standard for granting summary
judgments are not an innovation in our jurisprudence but are an
application of settled principles long recognized in this State.
We have undertaken a long and extensive reexamination of the
Painter decision and reaffirm the principles it announced. Painter
was but an explication of the basic principles undergirding Rule 56
of the West Virginia Rules of Civil Procedure. Due to the
importance of Rule 56 to civil litigation practice and the
misunderstanding that may have been generated by the Painter
decision, our holding here will be spelled out with some
Briefly stated, our holding is: "Rule 56 of the West
Virginia Rules of Civil Procedure plays an important role in
litigation in this State. It is 'designed to effect a prompt disposition of controversies on their merits without resort to a
lengthy trial,'" if there essentially "is no real dispute as to
salient facts" or if it only involves a question of law. Painter,
___ W. Va. at ___ n.5, 451 S.E.2d at 758 n.5, quoting Oakes v.
Monongahela Power Co., 158 W. Va. 18, 22, 207 S.E.2d 191, 194
(1974). Indeed, it is one of the few safeguards in existence that
prevent frivolous lawsuits from being tried which have survived a
motion to dismiss. Its principal purpose is to isolate and dispose
of meritless litigation. To the extent that our prior cases
implicitly have communicated a message that Rule 56 is not to be
used, that message, hereby, is modified.
When a motion for summary judgment is mature for
consideration and properly is documented with such clarity as to
leave no room for controversy, the nonmoving party must take the
initiative and by affirmative evidence demonstrate that a genuine
issue of fact exists. Otherwise, Rule 56(e) empowers a circuit
court to grant the pretrial motion. To be clear, there is no need
for a circuit court to wait until after evidence has been received
at trial when the standard we articulated in Painter has been met
and summary judgment is warranted.See footnote 7 On the other hand, and as suggested by Rule 56(c), this Court will reverse summary judgment
if we find, after reviewing the entire record, a genuine issue of
material fact exists or if the moving party is not entitled to
judgment as a matter of law. In cases of substantial doubt, the
safer course of action is to deny the motion and to proceed to
Under Rule 56(c) of the West Virginia Rules of Civil
Procedure, summary judgment is proper only where the moving party
shows by "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, . . .
that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."See footnote 8 In
Syllabus Point 1 of Andrick v. Town of Buckhannon, 187 W. Va. 706,
421 S.E.2d 247 (1992), we reiterated the standard for granting
"'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)."
See also Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct.
1598, 26 L.Ed.2d 142 (1970). The circuit court's function at the
summary judgment stage is not "to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986).
Consequently, we must draw any permissible inference from the
underlying facts in the most favorable light to the party opposing
the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538,
553 (1986); Masinter v. WEBCO Co., 164 W. Va. 241, 262 S.E.2d 433
(1980); Andrick, 187 W. Va. at 708, 421 S.E.2d at 249. In
assessing the factual record, we must grant the nonmoving party the
benefit of inferences, as "[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge[.]"
Anderson, 477 U.S. at 255, 106 S. Ct. at 2513, 91 L.Ed.2d at 216.
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." 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). Similarly, when a party can show that
demeanor evidence legally could affect the result, summary judgment
should be denied.
Summary judgment is appropriate if, from the totality of
the evidence presented, the record could not lead a rational trier
of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an
essential element of the case that it has the burden to prove. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d
265 (1986).See footnote 9 While the underlying facts and all inferences are
viewed in the light most favorable to the nonmoving party, the
nonmoving party must nonetheless offer some "concrete evidence from
which a reasonable . . . [finder of fact] could return a verdict in
. . . [its] favor" or other "'significant probative evidence
tending to support the complaint.'" Anderson, 477 U.S. at 256, 106
S. Ct. at 2514, 91 L.Ed.2d at 217, quoting First Nat'l Bank of
Arizona v. Cities Serv. Co., 391 U.S. 253, 290, 88 S. Ct. 1575,
1593, 20 L.Ed.2d 569, 593 (1968). See also Matsushita Elec. Indus.
Co., 475 U.S. at 587, 106 S. Ct. at 1356, 89 L.Ed.2d at 552.See footnote 10
In other words, as suggested in Crain v. Lightner, 178
W. Va. 765, 769 n.2, 364 S.E.2d 778, 782 n.2 (1987), the initial
burden of production and persuasion is upon the party moving for a
summary judgment. If the moving party makes a properly supported
motion for summary judgment and can show by affirmative evidence
that there is no genuine issue of material fact, the burden of
production shifts to the nonmoving party "who must either (1)
rehabilitate the evidence attacked by the movant, (2) produce
additional evidence showing the existence of a genuine issue for
trial or (3) submit an affidavit explaining why further discovery
is necessary as provided in Rule 56(f)."See footnote 11 178 W. Va. at 769 n.2,
364 S.E.2d at 782 n.2.
To be specific, the party opposing summary judgment must
satisfy the burden of proof by offering more than a mere "scintilla
of evidence" and must produce evidence sufficient for a reasonable
jury to find in a nonmoving party's favor. Anderson, 477 U.S. at
252, 106 S. Ct. at 2512, 91 L.Ed.2d at 214. The evidence illustrating the factual controversy cannot be conjectural or
problematic. It must have substance in the sense that it limns
differing versions of the truth which a factfinder must resolve.
The evidence must contradict the showing of the moving party by
pointing to specific facts demonstrating that, indeed, there is a
"trialworthy" issue.See footnote 12 A "trialworthy" issue requires not only a
"genuine" issue but also an issue that involves a "material" fact.
See Anderson, 477 U.S. at 248, 106 S. Ct. at 2510, 91 L.Ed.2d at
211.See footnote 13
A nonmoving party need not come forward with evidence in
a form that would be admissible at trial in order to avoid summary
judgment. Celotex Corp., 477 U.S. at 324, 106 S. Ct. at 2553, 91
L.Ed.2d at 274. However, to withstand the motion, the nonmoving
party must show there will be enough competent evidence available at trial to enable a finding favorable to the nonmoving party.
Hoskins v. C & P Tel. Co. of W. Va., 169 W.Va. 397, 400, 287
S.E.2d 513, 515 (1982) (allegations in an affidavit that would be
inadmissible at trial cannot be used to respond to a motion for
summary judgment). For example, "[u]nsupported speculation is not
sufficient to defeat a summary judgment motion." Felty v. Graves-
Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). If the
evidence favoring the nonmoving party is "merely colorable . . . or
is not significantly probative, . . . summary judgment may be
granted." Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511, 91
L.Ed.2d at 212. (Citations omitted). "[I]f the factual context
renders [the nonmoving party's] claim implausible--if the claim
. . . simply makes no economic sense--[the nonmoving party] must
come forward with more persuasive evidence to support [the]
claim[.]" Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct.
at 1356, 89 L.Ed.2d at 552.See footnote 14
Courts take special care when considering summary
judgment in employment and discrimination cases because state of
mind, intent, and motives may be crucial elements. It does not
mean that summary judgment is never appropriate. See generally,
Sias v. W-P Coal Co., 185 W. Va. 569, 408 S.E.2d 321 (1991);
Ballinger v. North Carolina Agric. Ext. Serv., 815 F.2d 1001, 1004-
05 (4th Cir.), cert. denied, 484 U.S. 897, 108 S. Ct. 232, 98
L.Ed.2d 191 (1987). To the contrary, "the mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510, 91 L.Ed.2d at
211. (Emphasis in original). The essence of the inquiry the court
must make is "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Anderson, 477 U.S. at 251-52, 106 S. Ct. at 2512, 91 L.Ed.2d at
Moreover, both this Court and the United States Supreme
Court apply the general principle that summary judgment is
appropriate only after the opposing party has had "adequate time
for discovery." Celotex Corp., 477 U.S. at 322, 106 S. Ct. at
2552, 91 L.Ed.2d at 273. See also W.Va.R.Civ.P. 56(f); Anderson,
477 U.S. at 250 n.5, 106 S. Ct. at 2511 n.5, 91 L.Ed.2d at 213 n.5.
In fact, we have said that a decision for summary judgment before
the completion of discovery is "precipitous." Board of Educ. of
the County of Ohio v. Van Buren and Firestone, Arch., Inc., 165
W. Va. 140, 144, 267 S.E.2d 440, 445 (1980). Rule 56(f) provides
the appropriate relief when a party needs additional information or
time to respond to a motion for summary judgment.See footnote 15 Syl. pt. 3,
Crain, supra. Subject to the conditions of Rule 56(g),See footnote 16 we believe a continuance of a summary judgment motion is mandatory upon a good
faith showing by an affidavit that the continuance is needed to
obtain facts essential to justify opposition to the motion. When
a party does not avail himself of Rule 56(f), it is generally not
an abuse of discretion for a circuit court to rule on a motion for
summary judgment. See Nguyen v. CNA Corp., 44 F.3d 234, 241-42
(4th Cir. 1995), quoting Paddington Partners v. Bouchard, 34 F.3d
1132, 1137 (2nd Cir. 1994) ("'failure to file an affidavit under
Rule 56(f) is itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate'").
Finally, in making a ruling, "the judge must view the
evidence presented through the prism of the substantive evidentiary
burden." Anderson, 477 U.S. at 254, 106 S. Ct. at 2513, 91 L.Ed.2d
at 215. The Court in Anderson stated: "[W]e are convinced that the
inquiry involved in a ruling on a motion for summary judgment or
for a directed verdict necessarily implicates the substantive
evidentiary standard of proof that would apply at trial on the merits." 477 U.S. at 252, 106 S. Ct. at 2512, 91 L.Ed.2d at 214.
See also Crain, 178 W. Va. at 769 n.1, 364 S.E.2d at 782 n.1.See footnote 17
It is through the lens of these principles that we
examine the circuit court's grant of summary judgment.
The essence of the plaintiff's assignments of error is that his discharge breached a contract of employment created by the combination of a completed job application form and an employee handbook. The plaintiff argues that the employment terms purportedly set forth in those documents are ambiguous and present an appropriate jury question.See footnote 18 The circuit court found there was nothing in the handbook or the application which reasonably could be read as altering the plaintiff's at-will status. Accordingly, the plaintiff asserts the circuit court erred by granting the defendant's motion for summary judgment.
As a general rule, West Virginia law provides that the
doctrine of employment-at-will allows an employer to discharge an
employee for good reason, no reason, or bad reason without
incurring liability unless the firing is otherwise illegal under state or federal law. In Cook v. Heck's Inc., 176 W. Va. 368, 342
S.E.2d 453 (1986),See footnote 19 we considered for the first time the issue of
whether guarantees of job security, discharge for cause provisions,
or express guidelines for terminations contained in an employee
handbook or similar document may abrogate an at-will employment
relationship. In Syllabus Points 5 and 6 of Cook, we stated:
"5. A promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee's continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer's promise binding and enforceable.
"6. 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
In making our decision, we cited several jurisdictions which had
found employment contracts by virtue of personnel manuals and
concluded that "[a] common thread running through those cases . . .
is the existence of a definite promise by the employer not to
discharge the employee except for cause." 176 W. Va. at 374, 342
S.E.2d at 459, citing Shah v. American Synthetic Rubber Corp., 655
S.W.2d 489 (Ky. 1983); Toussaint v. Blue Cross & Blue Shield, 408
Mich. 579, 292 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983); Weiner v. McGraw-Hill, Inc.,
57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982).
To assess plaintiff's contentions that the defendant's
application form and handbook created such a contract, we begin
with the relevant language contained on the job application form,
"Should I be employed by the company, I agree that:
"1. My employment shall be in accordance with
the terms of: (a) this application, (b)
company rules and regulations and any
amendments thereto and, (c) any applicable
labor agreement. The company shall have the
right to amend, modify, or revoke its rules
and regulations at any time. I will
familiarize myself promptly with such rules
and regulations and will abide and be bound by
the rules and regulations now or hereafter in
"2. My employment may be terminated by the
company at any time without advance notice.
Its only obligation being to pay wages or
salary earned by me to date of termination
without limitation. Failure to abide by
company rules and regulations, failure to pass
any company physical examination, and the
falsification of information given by me in
this application will entitle the company to
terminate my employment."
According to the plaintiff, the above language created a
contract: Upon his signature on the application and the
defendant's decision to hire him, he and the defendant became bound
to follow the terms of the application form and the "company rules and regulations[.]" (The parties agree there was no "applicable
labor agreement.") The plaintiff then insists it is for a jury to
decide what is the meaning of the contract's terms. The
application form, however, contains no terms that reasonably can be
construed to promise job security or can be construed as altering
an employee's at-will status. If nothing in the challenged
document tends to alter the at-will status, then summary judgment
properly is granted.
Even if we concede to the plaintiff that the application
created a "contract," all that it could do is incorporate by
reference "rules and regulations" of the defendant. Assuming
further, for the sake of argument, that a jury reasonably could
conclude the reference of this application form to the "rules and
regulations" embraces the defendant's handbook, the plaintiff still
cannot prevail unless he shows that the handbook, standing alone,
renders his discharge unlawful. Thus, this application form adds
nothing to whatever contractual rights, if any, are created by the
Accordingly, we turn to the language in the employee
handbook. At the outset, the defendant insists that the following
paragraph in the handbook's "FORWARD," sic, precludes reading the
document as a contract:
"The policy statements contained in this manual are not intended in any way to create a contract of employment with any employee. It remains management's right and responsibility to make new policies and change existing policies within the boundaries of current law as it sees fit. Management must retain this right to assure that we remain a viable, growing organization."
The plaintiff counters by arguing that if this language is given
the effect of a valid disclaimer, it renders meaningless statements
made in the employee handbook with regard to the defendant's
obligations to its employees.See footnote 20
Our cases establish that an employer may include in a
handbook a disclaimer that prevents it from contractually limiting
the employer's discretion to discharge employees. To make such a
disclaimer effective, however, the employer must do so in language
that is clear, conspicuous, and likely to be understood by the
subject employees. Dent v. Fruth, ___ W. Va. ___, 453 S.E.2d 340
(1994); Suter v. Harsco Corp., 184 W. Va. 734, 403 S.E.2d 751
(1991). We recognize that unduly restrictive interpretations of
attempted disclaimers could discourage employers from providing handbooks at all and, thus, would deprive workers of helpful
guidance as to what is expected of them in the workplace. On the
other hand, if an employer retains the right to go outside a
published handbook to discharge employees for any reason or no
reason, then the handbook is at best meaningless in guiding
employees as to what is expected of them and at worst misleading.
Moreover, we look with disfavor upon an employer who
induces or requires its employees to adjust their conduct in
significant ways,See footnote 21 who expressly or impliedly promises job
security, or who attracts or retains good workers with that
promise, but who then attempts to avoid all mutuality of
obligations by inserting an obscure or obtuse disclaimer into a
handbook.See footnote 22 Thus, we require that for a disclaimer to be valid, it
must be sufficiently clear, conspicuous, and understandable so that employees will know that the handbook provides them with no
protection and it only is intended to benefit one side of the
employment relationship, i.e., the employer.
In this case, the handbook passage quoted above fails to
provide the clear, conspicuous, and understandable language to
qualify as a valid disclaimer. First, the plaintiff could argue,
although he has not, that the language, "The policy statements
contained in this manual are not intended in any way to create a
contract of employment," does not negate the entirety of the
handbook from creating mutual obligations and employee job
security, but only prevents the handbook's "policy statements" from
creating a contract. Given the ambiguity of the term "policy
statements," its interpretation would have to be left to a jury.See footnote 23
Second, the plaintiff could argue, although he has not, that the
sentences following the reference to policy statements define what
precisely is being disclaimed. The ensuing sentences say only that
the employer reserved its right to change its policies and rules at
any time, which is, of course, management's prerogative. Hogue v. Cecil I. Walker Machinery Co., 189 W. Va. 348, 431 S.E.2d 687
Retaining the right to make changes, however, does not
necessarily mean promises explicitly or implicitly made by an
employer through its handbook are not enforceable, at least until
such time as they are in fact changed. It is, for example, a basic
notion of due process of law that a governmental agency must abide
by its own stated procedures even though it is under no
constitutional obligation to provide the procedures in the first
place and even though it can change the procedures at any time; so
long as the procedures are in place, the agency must follow them.
E.g., United States v. Nixon, 418 U.S. 683, 695-97, 94 S. Ct. 3090,
3101-02, 41 L.Ed.2d 1039, 1057-58 (1974); Service v. Dulles, 354
U.S. 363, 388, 77 S. Ct. 1152, 1165, 1 L.Ed.2d 1403, 1418 (1957);
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.
Ct. 499, 98 L.Ed. 681 (1954); State ex rel. Wilson v. Truby, 167
W. Va. 179, 281 S.E.2d 231 (1981); Trimboli v. Board of Educ., 163
W. Va. 1, 254 S.E.2d 561 (1979). There is no reason why this basic
principle of fairness should not also imbue our interpretation of
employment contracts. Finally, we note our decision in Dent,
supra, held that language substantially similar to the alleged disclaimer in this case was ineffective in relinquishing the
employer from contractual liability.See footnote 24
Although we think that a jury question could exist with
regard to the contractual implications of the defendant's handbook,
we, nevertheless, affirm the circuit court's decision granting
summary judgment to the defendant for another reason. As
recognized in Cook, supra, and its progeny, e.g., Dent; Suter;
Collins v. Elkay Mining Co., 179 W. Va. 549, 371 S.E.2d 46 (1988),
a plaintiff's cause of action is one based on contract. Typically,
in such contract cases, an employer has issued a handbook or
similar manual that sets forth the requirements for a job and, in
effect, informs the employees that if they abide by the rules they
can expect job security. The employees, acting in reliance on such
promises, either accepted employment or continued in the same
employment and conformed their conduct to the rules. This exchange and reliance is all a plaintiff need show in a case relying on a
Cook cause of action.See footnote 25
We recognize, however, that unless we are to make the
contractual basis of Cook a complete fiction, a plaintiff will at
least have to prove that he knew about the existence of the
handbook. After all, it is difficult to accept that a plaintiff
relied upon a document the existence and the contents of which he
was unaware. In this case, the plaintiff failed to offer such
evidence in response to the defendant's motion to dismiss. The
record, therefore, shows that the plaintiff failed to put into
dispute an essential element of his cause of action, i.e., that he
knew of the handbook and accepted its terms by continuing in the
defendant's employ.See footnote 26
In sum, we find the plaintiff failed to show that he and the defendant had entered into a contract that limited the defendant's ability to discharge the plaintiff at will. Even assuming the plaintiff's employment status was contractual, we further conclude the plaintiff received the benefit of the disciplinary provisions and, therefore, we find the defendant breached no employment contract in terminating the plaintiff. For the foregoing reasons, we affirm the order of the Circuit Court of Harrison County granting summary judgment in favor of the defendant.
Footnote: 1 While other claims unsuccessfully were asserted against the defendant, the only one challenged on appeal is the claim for breach of an employment contract.
Footnote: 2 According to the circuit court's order, the plaintiff agreed to have it struck.
Footnote: 3 The circuit court's order that struck the plaintiff's second count was entered on June 15, 1993, nunc pro tunc February 11, 1993. This order directed the plaintiff to file an amended complaint on or before February 25, 1993. Apparently, an amended complaint was not filed prior to February 25. After certain discovery was conducted, the plaintiff made a motion for leave to amend his complaint and served the motion along with the amended complaint upon the defendant on or about September 2, 1993.
Footnote: 4 The plaintiff does not dispute this ruling on appeal.
Footnote: 5 The circuit court also awarded costs to the defendant pursuant to Rule 54(d) of the West Virginia Rules of Civil Procedure. This rule provides, in part: "Except when express provision therefor is made either in a statute of this State or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs[.]"
Footnote: 6 The West Virginia Rules of Civil Procedure practically are
identical to the Federal Rules. Therefore, we give substantial weight to federal cases, especially those of the United States Supreme Court, in determining the meaning and scope of our rules. See generally Burns v. Cities Serv. Co., 158 W. Va. 1059, 217 S.E.2d 56 (1975); Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). As a result of today's decision, there should be no doubt that our interpretation of Rule 56 is consistent with that of the United States Supreme Court.
Footnote: 7 We are aware of language in our prior cases suggesting "[e]ven if the trial judge is of the opinion to direct a verdict, he should nevertheless ordinarily hear evidence and, upon a trial, direct a verdict rather than try the case in advance on a motion for summary judgment." Syl. pt. 1, Masinter v. WEBCO Co.,
164 W. Va. 241, 262 S.E.2d 433 (1980). We believe this recommendation is proper in cases where there is doubt as to the existence of a genuine issue of material fact, but we do not
believe it was ever meant to be override the explicit mandate of Rule 56(e) which states, in part:
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." (Emphasis added).
Unquestionably, the drafters of Rule 56 contemplated that summary judgment would be readily available as a procedural device when used in conjunction with the broad discovery afforded by the West Virginia Rules of Civil Procedure. If the nonmoving party does not controvert the proof offered in support of the motion, and the moving party's affidavits show facts that support a judgment as a matter of law, Rule 56(e) mandates summary judgment be granted. The notion of a "genuine issue of material fact" can refer only to an issue that properly can be submitted to a jury, i.e., a trialworthy issue. If the nonmoving party cannot demonstrate any reasonable chance of avoiding a directed verdict at trial, then there is simply no justification for a trial and the motion for summary judgment should be granted.
Footnote: 8 As we have stated, an order granting summary judgment engenders plenary review. This Court may consider all the facts
contained in a summary judgment record. Haga v. King Coal Chevrolet Co., 151 W. Va. 125, 150 S.E.2d 599 (1966). See also Hines v. Massachusetts Mut. Life Ins. Co., 43 F.3d 207, 209 (5th Cir. 1995). We may affirm a circuit court's decision on any adequate ground even if it is other than the one on which the circuit court actually relied. Parks v. City of Warner Robins, Ga., 43 F.3d 609 (11th Cir. 1995); Bolden v. PRC Inc., 43 F.3d 545 (10th Cir. 1994).
Footnote: 9 In fact, Rule 56(e) mandates the entry of a summary judgment where the party opposing the motion fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.
Footnote: 10 However, as explained by the Fourth Circuit in Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir.), cert. denied, 358 U.S. 908, 79 S. Ct. 234, 3 L.Ed.2d 229 (1958), only "reasonable inferences" from the evidence need be considered by a court:
"[I]t is the province of the jury to resolve
conflicting inferences from circumstantial
evidence. Permissible inferences must still
be within the range of reasonable
probability, however, and it is the duty of
the court to withdraw the case from the jury
when the necessary inference is so tenuous
that it rests merely upon speculation and
We need not credit purely conclusory allegations, indulge in
speculation, or draw improbable inferences. Whether an inference
is reasonable cannot be decided in a vacuum; it must be
considered "in light of the competing inferences" to the
contrary. See Matsushita Elec. Indus. Co., 475 U.S. at 588, 106 S. Ct. at 1356-57, 89 L.Ed.2d at 553. (Citation omitted).
Footnote: 11 We find it significant that this Court in Crain suggested that even if the nonmoving party responded in one or more of these ways, if "the court determines that the movant has shouldered his or her ultimate burden of persuading the court that there is no genuine issue of material fact," the granting of summary judgment is appropriate. (Emphasis added). 178 W. Va. at 769 n.2, 364 S.E.2d at 782 n.2.
Footnote: 12 A conflict in the evidence does not create a "genuine issue of fact" if it unilaterally is induced. For example, when a party has given clear answers to unambiguous questions during a deposition or in answers to interrogatories, he does not create, thereby, a trialworthy issue and defeat summary judgment with an affidavit that clearly is contradictory, but the party does not give a satisfactory explanation of why the testimony has changed. 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2726 at 30-31 (2d ed. Supp. 1994).
Footnote: 13 In this context, the term "material" means a fact that has the capacity to sway the outcome of the litigation under the applicable law. If the facts on which the nonmoving party relies are not material or if the evidence "is not significantly probative," Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511, 91 L.Ed.2d 212 (citations omitted), brevis disposition becomes appropriate.
Footnote: 14 The nonmoving party is entitled to the most favorable inferences that may reasonably be drawn from the forecast evidence. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). However, it "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). (Citation omitted). While a verified complaint can be considered as summary judgment evidence, King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994), self-serving assertions without factual support in the record will not defeat a motion for summary judgment. McCullough Oil, Inc. v. Rezek, 176 W. Va. 638, 346 S.E.2d 788 (1986). Thus, a nonmoving party cannot avoid summary judgment merely by asserting that the moving party is lying. Rather, Rule 56 requires a nonmoving party to produce specific facts that cast doubt on a moving party's claims or
raise significant issues of credibility. The nonmoving party is required to make this showing because he is the only one entitled to the benefit of all reasonable or justifiable inferences when confronted with a motion for summary judgment. Inferences and opinions must be grounded on more than flights of fancy, speculations, hunches, intuition, or rumors.
Footnote: 15 Rule 56(f) of the Rules of Civil Procedure provides:
"When affidavits are unavailable. -- Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."
Footnote: 16 Rule 56(g) of the Rules of Civil Procedure states:
"Affidavits made in bad faith. --
Should it appear to the satisfaction of the
court at any time that any of the affidavits
presented pursuant to this rule are presented
in bad faith or solely for the purpose of
delay, the court shall forthwith order the
party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt."
Footnote: 17 It is necessary for a circuit court to give appropriate consideration to the allocation of burden of proof at trial. As suggested earlier, a summary judgment motion involves a forecast of the evidence that is to be offered at trial. We normally operate under the assumption that a plaintiff will have the burden of proof at the trial on the merits. Obviously, in these cases a plaintiff only is entitled to summary judgment where his evidence is so strong that he would be entitled to a directed verdict at trial. This burden is very heavy and summary judgment rarely is granted in favor of the party having the burden of proof. The situation for a defendant usually is different. Except as to affirmative defenses, a defendant does not bear the burden of proof. Therefore, a defendant may be entitled to summary judgment if he can negate an issue as to which a plaintiff as the nonmoving party has the burden of proof or, if he can show that the plaintiff will be unable to prove a critical fact at trial.
Footnote: 18 As an initial matter, the plaintiff contends the issue of
whether a contract exists is a question of fact and, thus, should have been determined by a jury rather than the circuit court. While the determination of what constitutes a contract under our relevant cases is a question of law, the determination of whether particular circumstances fit within the legal definition of a contract under our cases is a question of fact. Subject to one exception, the determination of factual issues is solely within the province of the jury. Of course, that exception is Rule 56 dealing with summary judgments. Hatten v. Mason Realty Co., 148 W. Va. 380, 135 S.E.2d 236 (1964). Furthermore, we agree with the Ninth Circuit Court of Appeals that "'[i]n interpreting a contract, a court determines the existence of an ambiguity as a matter of law.'" United States v. Johnson, 43 F.3d 1308, 1310 (9th Cir. 1995), quoting Bauhinia Corp. v. China Nat'l Mach. & Equip. Import & Export Corp., 819 F.2d 247, 249 (9th Cir. 1987).
Although some jurisdictions have held that whether or not a particular employment relationship has rebutted the at-will employment presumption is almost exclusively a jury issue, we have made no such shift in West Virginia law. See Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 399, 643 A.2d 546, 553-54 (1994) (implied contract claims tend to present questions of material fact precluding summary judgment).
Footnote: 19 Modified in Suter v. Harsco Corp., 184 W. Va. 734, 403 S.E.2d 751 (1991).
Footnote: 20 Specifically, the plaintiff points to "SECTION 1" of the handbook which provides, in part: "We [the defendant] have a responsibility to you, and to all of our employees, to treat you fairly and to make sure that all policies, rules, and code of conduct are enforced consistently." (Emphasis in original). In addition, the plaintiff cites the defendant's "Union Position Statement," which generally states the defendant provide its employees with "good working conditions, good wages, good benefits, fair treatment, and . . . personal respect" and, therefore, a union is unnecessary.
Footnote: 21 Although most employer-generated rules limiting employee behavior are based on common sense and relate to the safe and efficient operation of the business, such rules sometimes extend into employees' off-work activities (e.g., regulating employee participation in risky recreational sports, use of tobacco products, and homosexual relationships) designed to promote ancillary goals rather than preserve business efficiency or safety. See, e.g., Janice L. Miller, David B. Balkin, & Robert E. Allen, Employer Restrictions on Employees' Legal Off-Duty Conduct, 44 Lab. L.J. 208-19 (April 1993).
Footnote: 22 There is a certain unseemliness in an employer in effect saying to its employees: "Here are the rules; if you abide by them, I will continue to employ you," while simultaneously saying: "If you break your promise and fail to abide by the rules, you are fired; but, if I break my promise and fire you for reasons or by procedures contrary to the rules, you cannot do anything about it."
Footnote: 23 A contract is ambiguous when it is reasonably susceptible to more than one meaning in light of the surrounding circumstances and after applying the established rules of construction. Whether a contract is ambiguous is a legal question reviewable by this Court de novo. See Thrift v. Hubbard, 44 F.3d 348, 357-58 (5th Cir. 1995).
Footnote: 24 Our adherence to the presumption of at-will employment reflects reliance upon an underlying theory that stresses the freedom of contract. Due to the fact that an employee is at liberty to leave his or her employment for any reason or for no reason, notions of fundamental fairness underlie the concept of mutuality which extends a corresponding freedom to the employer. The concept of mutuality is not a one-way street. Thus, where the employer creates conditions of employment, the principle of mutuality normally would require that each party have the right to hold the other to a positive agreement.
Footnote: 25 In other words, a plaintiff need not adduce evidence of any reliance beyond the fact that he or she remained in the defendant's employ and, thereby, agreed to the terms of the handbook/contract.
Footnote: 26 Alternatively, we have reviewed the disciplinary policy of the defendant and we conclude, even assuming arguendo that the plaintiff's at-will status was altered, he received the procedure to which he was entitled. Thus, we are persuaded that the defendant complied in substance with the disciplinary procedure. Accordingly, the plaintiff received all the disciplinary procedure to which he was entitled, the plaintiff, therefore, cannot complain. "`If a court properly determines that the contract is unambiguous on the dispositive issue, it may then
properly interpret the contract as a matter of law and grant summary judgment because no interpretive facts are in genuine issue.'" Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126 (4th Cir. 1993), quoting World-Wide Rights Ltd. v. Combe Inc., 955 F.2d 242, 245 (4th Cir. 1992).