Employment Law Center Eric E. Kinder
Parkersburg, West Virginia Spilman Thomas & Battle, PLLC
Attorney for the Appellant Charleston, West Virginia
Attorneys for the Appellees
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MAYNARD concurs in part and dissents in part and reserves the right to file a separate opinion.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
1. Summary judgment is appropriate where the record taken as a whole 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. Syl. Pt. 4, Painter v. Peavy, 192 W.Va.189, 451 S.E.2d 755 (1994).
2. A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment. Syl. Pt. 6, Aetna Cas. & Sur. Co. v. Fed. Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. 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. Syl. Pt. 8, Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1983).
Danny L. Benson appeals from the July 23, 2002, order of the Circuit Court
of Wood County granting summary judgment to the Appellees, AJR, Inc. (AJR) and John
M. Rhodes, in connection with the breach of employment contract and invasion of privacy
claims Appellant asserted against Appellees. Upon our full review of this matter, we
determine that there is a genuine issue of material fact concerning the basis for Mr. Rhodes'
decision to terminate Mr. Benson's employment with AJR. Accordingly, the grant of
summary judgment was improper and the decision of the lower court must be reversed to
permit this factual issue to be resolved by a jury. With regard to the lower court's decision
to grant summary judgment on Appellant's false light invasion of privacy claim, we find no
error and accordingly, affirm.
During the summer of 1997, the three AJR shareholders decided to sell the company to an employee, Appellee John M. Rhodes. (See footnote 1) As part of the sales transaction, Mr. Rhodes agreed to enter into an employment agreement with Appellant whereby Mr. Benson would be guaranteed employment for a period of eight years beginning on August 29, 1997. (See footnote 2) While AJR had the right to terminate Appellant with only one day's written notice under this agreement, it was required to continue paying Mr. Benson his salary for the balance of the eight-year term of employment in the absence of three specified conditions. Those conditions were: (a) dishonesty; (b) conviction of a felony; and (c) voluntary termination of the agreement by Appellant. (See footnote 3)
Within less than a month after the execution of the employment agreement, Appellant acknowledged in writing his receipt of an employee manual which specified certain acts that were grounds for termination. Those grounds included the sale, possession, or use of controlled substances while on the job, during working hours, or while on company business. At the end of September 1997, concurrent with his receipt of the employee manual, Appellant signed a consent form permitting his employer to conduct random controlled substance tests.
On March 2, 1998, a drug test was administered to the employees of AJR. The results of the drug testing revealed that Appellant had more than three times the limit utilized by the United States Department of Transportation (DOT) (See footnote 4) to establish drug use and impairment. Between the time when the drug test was administered and the results were made available, Mr. Rhodes conducted meetings with various AJR personnel during which he inquired of those in attendance whether anyone was aware of an employee who was using illegal drugs or who was arriving at work with illegal drugs or alcohol in their system. Appellant attended one of those meetings and admits that he did not respond to this question despite personal knowledge (See footnote 5) that his drug test would come back positive. (See footnote 6)
Along with eleven other employees who also tested positive for drug use, Appellant was terminated from the employ of AJR on March 6, 1998. AJR prepared two different termination forms in connection with Appellant's dismissal from the company. The first of the two forms indicated that Mr. Benson had resigned from his employment. (See footnote 7) The second of the two termination forms lists a different reason for termination _ controlled substance testing and tested positive for cocaine. (See footnote 8)
On March 4, 1999, Appellant filed a complaint in the circuit court in which
he alleged two causes of action: breach of contract and false light invasion of privacy. After
hearing argument on cross motions for summary judgment, the lower court ruled in favor
of Appellees by order entered on July 23, 2002. It is from this order awarding summary
judgment to AJR and Mr. Rhodes that Appellant seeks relief.
In marked contrast to the trial court's willingness to define the term dishonesty within the meaning of the employment contract at issue, we recognize the futility of attempting to fashion a one size fits all definition for such term. Dishonesty, like any term that has significance in a given contract, must be defined based on the subject matter of the contract and the intent of the document's drafters. See Oresta v. Romano Bros., 137 W.Va. 633, 644, 73 S.E.2d 622, 628 (1952) (recognizing general rule that words in a contract will be given their usual and primary meaning at the time of the execution of the contract) (citing 12 Am. Jur., Contracts § 236). We note, however, that it has been observed that [d]ishonesty, unlike embezzlement or larceny, is not a term of art. Gitelson v. Du Pont, 215 N.E.2d 336, 338-39 (N.Y. App. 1966). More often than not, the issue of whether conduct qualifies as dishonest is determined to be a question best resolved by a jury. See Wilson v. Neuhoff Bros. Packers, 442 S.W.2d 470, 474 (Tex. Civ. App. 1969) (discussing Fidelity & Dep. Co. v. Bates, 76 F.2d 160, 167 (8th Cir. 1935); accord Jacobs & Co. v. Fidelity & Dep. Co., 202 F.2d 794, 798 (7th Cir. 1953).
In this case, the record evidences Mr. Benson's admission that he was dishonest in connection with his failure to truthfully answer the question posed by Mr. Rhodes with regard to his awareness of drug use by any AJR employees. Given Appellant's clear admission of dishonesty, we proceed to determine what impact, if any, this admission of dishonesty has on the case at hand.
The lower court appears to have assumed that upon finding conduct that qualified as dishonest, this case could be resolved solely on legal grounds without requiring the assistance of a jury. The trial court reasoned that [n]o reasonable jury could find that Plaintiff's failing of the drug test, under all the circumstances present herein, was not dishonest behavior. Critically, however, a factual issue that must be determined for purposes of ascertaining whether AJR was required under the terms of the contract to pay Appellant his salary for the remainder of the eight-year contractual period is the reason upon which AJR relied in terminating Mr. Benson's employment. Under the employment contract at issue, the determining factor that controls the issue of continued salary payment is whether the basis for the termination was dishonesty or conviction of a felony, or, alternatively, whether there was a voluntary termination of . . . [the] agreement.
The record in this case is unclear as to whether AJR dismissed Mr. Benson
from its employ for drug use or for dishonesty. As Appellant emphasizes in his argument,
nowhere on either of the two termination forms that were introduced below is there any
indication that he was dismissed for dishonesty. We are unwilling to make the leap that the
trial court did to broadly encompass testing positive for drug use within the meaning of the
term dishonesty. Consequently, we conclude that Appellant is entitled to have a jury
determine the basis for AJR's decision to terminate Mr. Benson from its employ. If the jury
determines that drug use, rather than dishonesty, was the basis for the dismissal, then the
provisions of the employment contract with regard to continued payment of Appellant's
salary for the duration of the contractual term are applicable.
(See footnote 11)
If, however, the jury
determines that Mr. Benson was in fact terminated for being dishonest, then AJR is not
required to pay his salary under the terms of the employment contract.
In Crump v. Beckley Newspapers, Inc., 173
W.Va. 699, 320 S.E.2d 70 (1983), we discussed the tort of invasion of privacy.
In syllabus point eight of Crump, we held that [a]n '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. Id. at 703, 320 S.E.2d
at 74. The lower court relied upon both Crump
and the adoption of the Restatement of Torts definition of an invasion of privacy claim by
the federal district court in Davis v. Monsanto Co., 627 F.Supp. 418 (S.D. W.Va. 1986), in
delineating the following as the elements of a false light invasion of privacy claim:
(1) that there was a public disclosure by the Defendant of facts regarding the Plaintiff; (2) that the facts disclosed were private facts; (3) that the disclosure of such facts is highly offensive and objectionable to a reasonable person of reasonable sensibilities; and (4) that the public has no legitimate interest in the facts disclosed.
Id. at 421 (quoting Restatement (Second) of Torts § 652D (1977)).
In ruling that Appellant had failed to prove a claim for false light invasion of
privacy, the trial court held:
It is not an invasion of privacy to communicate the private fact to a single person or a small group of persons. The tort of invasion of privacy requires widespread publicity. See Davis, 627 F.Supp. at 421; see also Crump, 173 W.Va. at 716, [320 S.E.2d at 88] (holding false light privacy action requires wide spread publicity).
Applying this holding to the facts in the case at bar, the circuit court held that the minimal communication to three individuals, all of whom are AJR employees, officers, or creditors does not amount to widespread publicity. We agree. Accordingly, we uphold the grant of summary judgment to Appellees on Appellant's claim of false light invasion of privacy.
Having found no error with regard to the grant of summary judgment to
Appellees on the false light invasion of privacy claim, we affirm the July 23, 2002, order of
the Circuit Court of Wood County on this issue. Given our separate determination that a
genuine issue of material fact requires jury resolution on the breach of employment claim,
we hereby reverse and remand this matter to permit proceedings consistent with the rulings
Affirmed in part,
Reversed in part,