Mark W. Browning
Hamilton, Burgess, Young & Pollard Shuman, McCuskey & Slicer
Fayetteville, West Virginia Charleston, West Virginia
Attorney for the Appellant
A. Neal Barkus
Hunton & Williams
Attorneys for the Appellee
The Opinion of the Court was delivered Per Curiam.
Chief Justice McGraw dissents and reserves the right to file a dissenting opinion.
1. 'The West Virginia
Rules of Evidence . . . allocate significant discretion to the trial court in
making evidentiary . . . rulings. Thus, rulings on the admission of evidence
. . . are committed to the discretion of the trial court. Absent a few exceptions,
this Court will review evidentiary . . . rulings of the circuit court under
an abuse of discretion standard.' Syl. Pt. 1, in part, McDougal v. McCammon,
193 W.Va. 229, 455 S.E.2d 788 (1995). Syl. Pt. 9, Tudor v. Charleston
Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997).
2. 'The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a directed verdict when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed.' Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996). Syl. Pt. 6, McCloud v. Salt Rock Water Pub. Serv. Dist., 207 W.Va. 453, 533 S.E.2d 679 (2000).
3. 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.
Syl. Pt. 4, Slack v. Kanawha County Hous. and Redevelopment Auth., 188
W.Va. 144, 423 S.E.2d 547 (1992).
4. 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. Syl. Pt. 5, Slack v. Kanawha County
Hous. and Redevelopment Auth., 188 W.Va. 144, 423 S.E.2d 547 (1992).
5. 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. Syl. Pt. 6, Slack v. Kanawha County Hous. and Redevelopment
Auth., 188 W.Va. 144, 423 S.E.2d 547 (1992).
6. In order for a plaintiff
to prevail on a claim for intentional or reckless infliction of emotional distress,
four elements must be established. It must be shown: (1) that the defendant's
conduct was atrocious, intolerable, and so extreme and outrageous as to exceed
the bounds of decency; (2) that the defendant acted with the intent to inflict
emotional distress, or acted recklessly when it was certain or substantially certain
emotional distress would result from his conduct; (3) that the actions of the
defendant caused the plaintiff to suffer emotional distress; and, (4) that the
emotional distress suffered by the plaintiff was so severe that no reasonable
person could be expected to endure it. Syl. Pt. 3, Travis v. Alcon Laboratories,
Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).
7. In evaluating a defendant's
conduct in an intentional or reckless infliction of emotional distress claim,
the role of the trial court is to first determine whether the defendant's conduct
may reasonably be regarded as so extreme and outrageous as to constitute the
intentional or reckless infliction of emotional distress. Whether conduct may
reasonably be considered outrageous is a legal question, and whether conduct
is in fact outrageous is a question for jury determination. Syl. Pt. 4,
Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).
Angela S. Love appeals from
the September 3, 1999, order of the Circuit Court of Fayette County denying
her motion for a new trial following the entry of an adverse judgment order
on April 23, 1999, in a constructive retaliatory discharge action that Appellant
brought against her former employer, Appellee Georgia-Pacific Corporation. Appellant
also appeals from the trial court's entry of judgment as a matter of lawSee
footnote 1 1 on her claim of intentional infliction of emotional
distress. Upon a thorough review of the entire record submitted to this Court,
we find no error and accordingly, affirm.
West Virginia Rules of Evidence . . . allocate significant discretion to the trial
court in making evidentiary . . . rulings. Thus, rulings on the admission of evidence
. . . are committed to the discretion of the trial court. Absent a few exceptions,
this Court will review evidentiary . . . rulings of the circuit court under an
abuse of discretion standard. Syl. Pt. 1, in part, McDougal v. McCammon,
193 W.Va. 229, 455 S.E.2d 788 (1995).
Syl. Pt. 9, Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997).
We review the lower court's
granting of judgment as a matter of law to Appellee on the emotional distress
claim under the same standard applied to directed verdicts:See
footnote 2 2
The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a directed verdict when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed. Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996).
Syl. Pt. 6, McCloud v. Salt Rock Water Public Service, 207 W.Va. 453, 533 S.E.2d 679 (2000).
On July 3, 1996, Appellant
and her husband initiated a civil action in the Circuit Court of Wyoming County
through which they asserted on behalf of themselves and all West Virginia employees of Georgia-Pacific that Appellee was violating
the payment provisions of the West Virginia Wage and Payment Collection Act.See
footnote 4 4 When Georgia-Pacific learned of Appellant's filing
of the wage suit, a decision was made to move her out of the human resources
department where she had access to the payroll records of all the non- exemptSee
footnote 5 5 plant employees as well as other confidential personnel
file information.See footnote 6 6
Initially, Ms. Love was moved
to an undefined positionSee footnote 7
7 in the accounting department and had very few, if any, duties
for the first week after the transfer. Over time, however, she was given the
responsibility for preparation of certain down time reports and
entering data into a new database known as the preventive maintenance database.
Ms. Love performed these duties under the supervision of Don Bundy, the Maintenance
Superintendent, and in January 1997 she was given the newly-created position
of preventive maintenance clerk. In mid-April 1997, Ms. Love was physically
relocated to an office that was in the maintenance area of the plant. Due to
the physical location of her new office space, Ms. Love had to wear protective safety gear such as a hard-hat and
hard-toed shoes or boots while she was walking in the production area of the
plant on her way to the office.See footnote
8 8 On May 9, 1997, Appellant, with no notice, voluntarily relinquished
Appellant filed the underlying
lawsuit on August 22, 1997, in the Circuit Court of Fayette County, in which
she alleged three causes of action against Georgia-Pacific: (1) retaliatory
constructive discharge; (2) racial discrimination; and (3) intentional infliction
of emotional distress. Ms. Love voluntarily dismissed her racial discrimination
claim before the trial court ruled on Appellee's motion for summary judgment
in January 1999. The case proceeded to trial and was heard by a jury from March
24 through March 26, 1999. At the close of Appellant's evidence, the trial court
granted Appellee's motion for judgment as a matter of law on Appellant's claim
of intentional infliction of emotional distress. After concluding their deliberations,
the jury returned its verdict, finding in favor of Georgia- Pacific on the only
remaining claim--retaliatory constructive discharge.
Appellant filed a motion for
a new trial, which was heard by the trial court on July 22, 1999, and denied,
by order entered on September 3, 1999. As grounds for her new trial motion,
Appellant argued that the trial court's evidentiary rulings limited her development of the factual basis for the wage suit; prevented her from demonstrating
the prejudices of Mr. Wayne Bales, a super plant manager, with regard
to whistle-blowers; and wrongfully injected the Appellant's race into the trial.See
footnote 9 9 Through this appeal, Ms. Love seeks a reversal
of the trial court's decision to deny her motion for a new trial and a reversal
of the lower court's grant of judgment as a matter of law on the intentional
infliction of emotional distress claim.
It is axiomatic that the introduction
of evidence at trial is governed by the relevancy of that evidence to the issues
before the court. See W. Va. R. Evid. 401. Since Georgia-Pacific stipulated
that the filing of a wage suit is a protected actSee
footnote 12 12 which may not be the basis for retaliatory action,
Appellant was not required to prove the existence of a protected act. Cf.
Tudor, 203 W.Va. at 122-25, 506 S.E.2d at 565-68 (1997) (permitting introduction
of evidence regarding hospital staffing practices for purpose of proving existence
of protected act). Instead, the only issues to be decided at trial with regard
to the retaliatory constructive discharge claim were: (1) whether the actions
taken by Georgia- Pacific in moving Appellant from one position to another were
performed in retaliation for the filing of the wage suit; and (2) whether those
employment actions created a hostile working environment that was so intolerable
that a reasonable person would feel compelled to resign.
Upon our review of the record,
we find no error in the lower court's ruling denying admission of the employment
handbook; the wage poster; or the May 9, 1997, memorandum. The introduction
of this physical evidence was clearly outside the scope of the issues before
the trial court.
While a plaintiff in a retaliatory
constructive discharge case, like any other type of employment discrimination,
is permitted to show that the reasons offered for an employer's actions were
a pretext for the alleged discriminatory conduct, to be admissible
the evidence offered to prove pretext must nonetheless be relevant. See Powell
v. Wyoming Cablevision, Inc., 184 W.Va. 700, 705, 403 S.E.2d 717, 722 (1991);
W. Va. R. Evid. 402. In refusing to admit the employee handbook, the wage poster,
and the May 9, 1997, memorandum, the trial court determined that this evidence was not relevant
to the issue of whether Georgia-Pacific had retaliated against Ms. Love for
her filing of the wage suit.
Appellant's contention that
she was denied the opportunity to prove her theory that the reasons offered
by Georgia-Pacific for its action were pretextual is not borne out by the record.
In fact, just the opposite is true. Through the testimony of Ms. Love and employees
of Georgia-Pacific,See footnote 17 17
Appellant advanced her theory that the confidentiality explanation was
pretextual. The following excerpt from Appellant's cross-examination of Mr.
Wolfe proves this point:
Q: So the issue of that lawsuit was challenging the Plan A or the Plan B, because each employee got paid either one way or the other. It was up to them; right?
A. Yes, sir.
Q. And that wasn't a secret, was it?
A. No, sir.
Q. Then there is no confidentiality issue, is there? That's really a pretext or a pretend reason for moving her.
A. No. I disagree with that.
and the record supports this contention, that Appellant vigorously argued
to the jury that Georgia-Pacific's pay practices were not a secret. Through
both evidence and argument, Appellant did in fact put forth her theory that the confidentiality concern given by Georgia-Pacific for its actions in moving
Ms. Love out of the Human Resources department was not a credible explanation.
For whatever reason, the jury simply chose not to accept Appellant's theory
of the case. Our examination of the record compels the conclusion that Appellant
was not denied the opportunity to develop her theory of pretext and that the
wage payment evidence which was excluded was simply not relevant to the issue
of constructive retaliatory discharge.
We find it unnecessary to
further analyze whether Mr. Bales' participation in recommending that Ms. Love
be transferred out of the human relations position placed him within the ambit
of decision maker as the alleged conversation between Mr. Bales and Ms. Buice
had no relevance with regard to whether the acts Appellant complained of were
tied to her filing of the wage suit. Accordingly, we find no basis for concluding
that the trial court abused its discretion in ruling that the vouched testimony
of Ms. Buice was not relevant to the issue before the court.
Before questioning Ms. Love
about what conduct of hers led to Georgia- Pacific's decision to transfer her
from her human resources position, counsel for Georgia- Pacific sought a ruling
from the trial court regarding whether it would be permitted to impeach Ms.
Love's testimony with her deposition testimony if she testified that the only
basis for the move was her filing of the wage suit. After hearing argument on
this issue, the court ruled:
[W]hat [Georgia-Pacific's] counsel wants to do is ask this witness if her reason for the manner in which . . . [it] acted was because of the suit and only the suit. . . .
If she says there's other reasons, then I think you're entitled to ask her what they are. We're not getting into her racial background. We're not going to get into this and that. But I think you're entitled to ask the questions that you have posed to the Court because, as I understand it, if she says the suit was it, you've got a prior inconsistent statement that came up at a deposition that shows that there were other reasons and these reasons are this, this and this, and then it stops.
Counsel for Georgia-Pacific carefully complied with the trial court's directive by limiting its impeachment of Appellant's inconsistent trial testimony to a mere recitation of one question posed to her during her deposition and her answer.See footnote 23 23 No further use was made of the prior inconsistent statement and the only other reference to race was made in Appellee's closing argument when counsel argued to the jury that Appellant was not even certain what the reasons were for Georgia-Pacific's actions and then stated: Could have been her husband's termination. Could have been the lawsuit. Could have been race. These statements were clearly permitted given the proper impeachment of Appellant at trial with her deposition testimony.
When asked to limit the use
of Appellant's deposition testimony as impeachment based on the wrongful injection
of racial heritage, the trial court clarified that the issue of Appellant's
racial background was not before the jury.
There's no evidence before this jury about a mixed race. I don't think it's been brought up. The Court didn't make its ruling based upon the statement you made to the Court because there hadn't been anything about mixed race.
the ruling based upon that there had been prior inconsistent statement that counsel
indicated to me there's reasons other than this lawsuit for why the woman was
treated like she was, or possibly could be, and that's the statement that can
Our review of the record reveals that the trial court properly limited the manner in which the prior inconsistent statement was used and that Appellant's mixed heritage was not gratuitously injected into the trial by Georgia-Pacific.
a defendant's conduct in an intentional or reckless infliction of emotional distress
claim, the role of the trial court is to first determine whether the defendant's
conduct may reasonably be regarded as so extreme and outrageous as to constitute
the intentional or reckless infliction of emotional distress. Whether conduct
may reasonably be considered outrageous is a legal question, and whether conduct
is in fact outrageous is a question for jury determination.
Id. at 371, 504 S.E.2d at 421, syl. pt. 4.
The evidence offered by Appellant
regarding the emotional stress that she suffered as a result of the retaliatory
conduct of her former employer was minimal. Her treating physician, Dr. Thomas,
testified that the symptoms with which Appellant presented to him were
not the symptoms of severe emotional distress and that he prescribed for
her the lowest dose . . . [he] could use of an antidepressant. When
questioned as to the dosage amount of the antidepressant, e.g. one tablet per
day, Appellant was unable to recall the amount of medication she had taken.
Ms. Buice, the co-workerSee footnote
24 24 and friend of Ms. Love, testified that Appellant never
told her that she thought the company was mistreating her because of the lawsuit
and further that Ms. Love had never complained to her that her job duties were
oppressive or outrageous.
In determining whether the conduct
of Georgia-Pacific could be regarded as so extreme and outrageous as to constitute
intentional infliction of emotional distress as a matter of law, the trial court
reviewed the evidence presented on direct. That evidence included an on site inspection
of the various office areas in which Appellant worked before and after the filing
of her wage suit; Appellant's testimony regarding her job duties after she was
moved from the human relations department; Appellant's testimony that she was
not advised in advance of a pizza lunch and embarrassed when she brought a bag
lunch; Appellant's testimony that other office workers would not associate with
her; and Appellant's testimony regarding the safety equipment she had to wear
at her final location in the plant. In weighing this testimony, the trial court
also had before it evidence of the following facts: that Appellant continued to
receive salary increases in her new positions as well as good performance reviews;
that Appellant was eligible and did receive a bonus through the production bonus
gainsharing program; that Appellant received praise for her community service
work performed on behalf of the plant; that Appellant was very emotional at work
after her husband was fired by Georgia-Pacific; and that Appellant sought employment
from the Fayette County Board of Education after the firing of her husband but
before the filing of the wage suit.
After weighing the evidence
offered relative to this claim, the trial court concluded, as a matter of law,
that Appellant had failed to meet her burden of demonstrating that Georgia-Pacific's conduct was so extreme and outrageous as to constitute
intentional infliction of emotional distress. While we do not doubt that Appellant
may have endured a certain amount of emotional discomfort due to her job transfer,
the evidence presented at trial was not sufficient to be presented to the jury
under the standards set forth in Travis. See Syl. Pt. 4, 202 W.Va.
at 371, 504 S.E.2d at 421. In discussing the reaches of an intentional infliction
of emotional distress claim, this Court observed in Tanner v. Rite Aid,
194 W.Va. 643, 461 S.E.2d 149 (1995), that this claim does not extend
to mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities and that [t]here is no occasion for the law to intervene
in every case where some one's feelings are hurt. Id. at 651, 461
S.E.2d at 157 (quoting Restatement (Second) of Torts § 46(1)).
Based on the foregoing, the
decision of the Circuit Court of Fayette County in denying Appellant's motion
for a new trial is affirmed and the decision to grant judgment as a matter of
law on Appellant's intentional infliction of emotional distress claim is also
Rule 50 of the West Virginia
Rules of Civil Procedure was amended in 1998, and the term directed verdict
was replaced with the phrase judgment as a matter of law. The
amendment did not, however, affect either the standard by which a trial court
reviews motions under the rule or the standard by which an appellate court reviews
a trial court's ruling.
207 W.Va. at 457, n. 1, 533 S.E.2d at 683 n. 1 (quoting Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 482 n. 7, 457 S.E.2d 152, 159 n. 7 (1995)).
Q. All right, Mrs. Love, we
were discussing your deposition, and I was prepared to read you a statement
-- a question that was asked you . . . and your answer that followed it.
Question: Do you attribute any of these differences that you have described in your working conditions, the coffee room and Nancy locking her office, to retaliation against you?
Answer: Yes. But I don't know if it was due to the lawsuit, due to my husband's being fired, or due to my race. Do you recall that testimony?
A. Yes, I do.