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(1) That the plaintiff is a member of a protected class.
(2) That the employer made an adverse decision concerning the plaintiff.
(3) But for the plaintiff's protected status, the adverse decision would not have been made.”
Syl. Pt. 3, Conaway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S. E.2d 423
(1986).
9. “'“In an action to redress an unlawful retaliatory discharge under the
West Virginia Human Rights Act, W. Va .Code, 5-11-1, et seq., as amended, the burden is
upon the complainant to prove by a preponderance of the evidence (1) that the complainant
engaged in protected activity, (2) that complainant's employer was aware of the protected
activities, (3) that complainant was subsequently discharged and (absent other evidence
tending to establish a retaliatory motivation), (4) that complainant's discharge followed his
or her protected activities within such period of time that the court can infer retaliatory
motivation.” Syl. pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179
W.Va. 53, 365 S.E.2d 251 (1986).' Syl. pt. 1, Brammer v. Human Rights Commission, 183
W.Va. 108, 394 S.E.2d 340 (1990).” Syl. Pt. 5, Hanlon v. Chambers, 195 W. Va. 99, 464
S.E.2d 741 (1995).
10. “'Protected activity' under the West Virginia Human Rights Act
includes opposition to a practice that the plaintiff reasonably and in good faith believes
violates the provisions of the Act. This standard has both an objective and a subjective
element. The employee's opposition must be reasonable in the sense that it must be based on
a set of facts and a legal theory that are plausible. Further, the view must be honestly held
and be more than a cover for troublemaking. Thus, even if there was no actionable sexual
harassment, the plaintiff could still have been engaged in a protected activity if she
complained about being sexually harassed.” Syl. Pt. 7, Conrad v. Ara Szabo, 198 W. Va.
362, 480 S.E.2d 801 (1996).
11. “The prevailing rule in distinguishing a wrongful discharge claim from
an outrage claim is this: when the employee's distress results from the fact of his
discharge-e.g., the embarrassment and financial loss stemming from the plaintiff's
firing-rather than from any improper conduct on the part of the employer in effecting the
discharge, then no claim for intentional infliction of emotional distress can attach. When,
however, the employee's distress results from the outrageous manner by which the employer
effected the discharge, the employee may recover under the tort of outrage. In other words,
the wrongful discharge action depends solely on the validity of the employer's motivation or
reason for the discharge. Therefore, any other conduct that surrounds the dismissal must be
weighed to determine whether the employer's manner of effecting the discharge was
outrageous.” Syl. Pt. 2, Dzinglski v. Weirton Steel Corp., 191 W. Va. 278, 445 S.E.3d 219
(1994), modified on other grounds as stated in Tudor v. Charleston Area Med. Ctr., Inc.,
203 W. Va. 111, 506 S.E.2d 554 (1997).
Per Curiam:
This case is before the Court upon the appeal of the Order of the Circuit Court
of Ohio County, West Virginia, entered on October 16, 2008, dismissing the Complaint filed
by the Appellants and Plaintiffs below, Tricia Roth and Brian Roth, against the Appellees
and Defendants below, DeFeliceCare, Inc., and Leslie DeFelice, pursuant to West Virginia
Rule of Civil Procedure 12(b)(6). The circuit court determined that the Appellants failed to
allege any cause of action upon which relief could be granted. The Appellants sole
complaint on appeal is that the circuit court erred in granting the Motion to Dismiss filed by
the Appellees. Based upon a review of the record, the parties' respective briefs and
arguments, as well as all other matters submitted before the Court, we reverse the decision
of the circuit court and remand the case for further proceedings.
[a]n employee may state a claim for hostile environment sexual harassment if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment.
Syl. Pt. 7, Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995). (See footnote 2)
The circuit court, relying upon the law enunciated in Hanlon, found that the
allegations contained in the Complaint consisting of
subjecting . . .[Mrs. Roth] to such sexually explicit conduct, threats of loss of license, loss of employment and termination for unwanted sexually explicit conduct she observed[,]” . . . refers to the alleged incident where Tricia Roth walked in on Kelly and DeFelice. . . . There is nothing here that took place because Tricia Roth is a female. Therefore, there is not hostile work environment claim.”
See id.
We disagree with the circuit court's conclusion that, based upon a review of
the allegations in the Complaint, what transpired with the Appellant was not due to her
gender. (See footnote 3) Rather, we find the Appellants sufficiently pled their cause of action for hostile
workplace to survive a motion to dismiss made pursuant to West Virginia Rule of Civil
Procedure 12(b)(6). This Court has previously found that motions to dismiss are generally
viewed with disfavor because the complaint is to be construed in the light most favorable to
the plaintiff and its allegations are to be taken as true. Sticklen v. Kittle, 168 W. Va. 147,
163-64, 287 S.E.2d 148, 157 (1981). Undeniably, the Appellants must still develop sufficient
facts in order ultimately prevail on this claim, but it does not appear beyond doubt to the
Court that the Appellants can prove no set of facts in support of Mrs. Roth's claim which
would entitle her to relief. Syl. Pt. 3, Chapman , 160 W. Va. at 530, 236 S.E.2d at 207. As,
however, Justice Cleckley, writing for the majority in Scott Runyan Pontiac-Buick, Inc.,
stated:
The primary purpose of these provisions [referring to the provisions of West Virginia Rule of Civil Procedure 8] is rooted in fair notice. Under Rule 8, a complaint must be intelligibly sufficient for a circuit court or an opposing party to understand whether a valid claim is alleged and, if so, what it is. Although entitlement to relief must be shown, a plaintiff is not required to set out facts upon which the claim is based.
194 W. Va. at 776, 461 S.E.2d at 522. (See footnote 4)
[t]he 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.
Accord Syl. Pt. 2, Stanley v. Sewell Coal Co., 169 W.Va.72, 285 S.E.2d 679 (1981); Syl. Pt.
1, Shanholtz v. Monongahela Power Co., 165 W. Va 305, 270 S.E.2d 178 (1980); see Cordle
v. General Hugh Mercer Corp., 175 W. Va. 321, 325, 325 S.E.2d 111, 115 (1984). The
burden is on the plaintiff to establish the existence of a substantial public policy. Syl. Pt. 8, Page v. Columbia Natural Res., 198 W. Va. 378, 480 S.E.2d 817 (1996). “A determination
of the existence of public policy in West Virginia is a question of law, rather than a question
of fact for a jury.” Cordle, 175 W. Va. at 322, 325 S.E.2d at 112, Syl. Pt. 1. To identify a
substantial public policy, the Court looks “to established precepts in [the State's]
constitution, legislative enactments, legislatively approved regulations, and judicial
opinions.” Birthisel v. Tri-Cities Health Servs. Corp., 188 W. Va. 371, 377, 424 S.E.2d 606,
612 (1992).
Based upon its review of the Complaint, the circuit court found that the
Appellants failed to carry their burden of establishing a substantial public policy.
Specifically, the lower court focused solely on the criminal statutes relied upon by the
Appellants (See footnote 6) and concluded that “ a public policy disfavoring public nudity is not at issue in
this case and upholding Plaintiff's discharge would not compromise this policy.” The circuit
court, however, failed to address the Appellants' argument that a substantial public policy
was present because of her allegations of sex discrimination and sexual harassment in
employment and that such discrimination or harassment contravenes the public policy
articulated in the West Virginia Human Rights Act.
Further, the circuit court did not address the Appellants argument that Mrs.
Roth was terminated due to what she witnessed, because her observations of sexual relations
between Mr. DeFelice and the other female employee, Ms. Kelly, made Mrs. Roth a potential
discoverable witness in a case involving similar conduct against Mr. DeFelice. The
Appellants assert that the allegations in the other lawsuit styled Champion v. DeFelice Care
Inc., et al., Civil Action No. 05-C-519, involved the Appellee Leslie DeFelice's “legendary
propensities for womanizing and inappropriate sexual acts and behaviors in the workplace.”
Significantly, before the circuit court, the Appellants argued that “Mrs. Roth's observations
in June of 2006 would have not only supported the allegations of the plaintiff [in the Champion case]. . . but would have undermined the future under oath testimony of Mr.
DeFelice and Ms. Kelly.” There apparently was testimony in the Champion case that
indicated that Mr. DeFelice and Ms. Kelly were not involved in a relationship.
Regarding the burden that the Appellants bear in establishing the existence of
a substantial public policy, prefaced against the well-established case law that the
determination of whether a substantial public policy exists is a question of law, the Court
finds that the circuit court's dismissal of this cause of action without considering all the bases
relied upon by the Appellants regarding the existence of a substantial public policy was
erroneous.
While the Court does not disagree with the circuit court's determination that
a substantial public policy did not arise in this case from the provisions of West Virginia
Code § 61-8-9, (See footnote 7) the circuit court simply failed to consider all the bases for the substantial
public policy set forth by the Appellants in their opposition to the Motion to Dismiss prior
to dismissing this count. For instance, the Appellants pleaded that the Appellees' conduct
in terminating her violated the public policies of this State. Further, as previously mentioned,
in their opposition to the Motion to Dismiss, the Appellants argued that a substantial public
policy was violated when she was terminated because of her allegations of sex discrimination
and sexual harassment in employment, because such discrimination or harassment
contravenes the public policy articulated in the West Virginia Human Rights Act. Further,
the Appellants argued in opposition to the Motion to Dismiss that a substantial public policy
was violated because Mrs. Roth was a potential witness based in other litigation due to her
observations of Mr. DeFelice and Ms. Kelly.
Just as the circuit court considered the reliance by the Appellants on the
criminal statute regarding indecent exposure in determining that a substantial public policy
did not exist, the circuit court should have considered the other viable grounds the Appellants
relied upon to show a violation of a substantial public policy.
Unlike the Appellants' reliance upon the criminal statute, there is support for
the Appellants' assertions that a substantial public policy was violated if the Appellants
ultimately prove that Mrs. Roth was terminated either because of allegations of sexual
harassment or that she was going to be a witness in the other litigation. Regarding the former
basis, this Court has held in syllabus point eight of Williamson v. Greene, 200 W. Va. 421,
490 S.E.2d 23 (1997), that
[e]ven though a discharged at-will employee has no statutory claim for retaliatory discharge under W. Va. Code, 5-11-9(7)(C) [1992] of the West Virginia Human Rights Act because his or her former employer was not employing twelve or more persons within the state at the time the acts giving rise to the alleged unlawful discriminatory practice were committed, as required by W. Va. Code, 5-11-3(d) [1994], the discharged employee may nevertheless maintain a common law claim for retaliatory discharge against the employer based on alleged sex discrimination or sexual harassment because sex discrimination and sexual harassment in employment contravene the public policy of this State articulated in the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq.
200 W. Va. at 423, 490 S.E.2d at 25, Syl. Pt. 8 (emphasis added); accord Syl. Pt. 1, Kalany
v. Campbell, 220 W. Va. 50, 640 S.E.2d 113 (2006).
Moreover, regarding the allegation that Mrs. Roth was terminated because she
was going to be a potential witness in other litigation, this Court has held that “[i]t is against
substantial public policy of West Virginia to discharge an at-will employee because such
employee has given or may be called to give truthful testimony in a legal action.” Page, 198
W. Va. at 382, 480 S.E.2d at 821, Syl. Pt. 4.
Consequently, the circuit court erred in its determination that the Appellants
failed to sufficiently plead a violation of a substantial public policy.
In order to make a prima facie case of [disparate treatment] employment discrimination under the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq. (1979), the plaintiff must offer proof of the following:
(1) That the plaintiff is a member of a protected class.
(2) That the employer made an adverse decision concerning the plaintiff.
(3) But for the plaintiff's protected status, the adverse decision would not have been made.
Id.
The circuit court determined that the firing had nothing to do with her gender
and dismissed the claim. Rather, the circuit court found that the reason that Mrs. Roth was
terminated was because she walked in on her employer in a compromising position with Ms.
Kelly.
As previously discussed in connection with the Appellants' hostile work
environment claim, taking Mrs. Roth's allegations as true, the Court disagrees with the
circuit court's conclusion that, based upon a review of the allegations in the Complaint, what
transpired with the Appellant was not due to her gender. Rather, we find the Appellants
sufficiently pleaded their cause of action for employment discrimination to survive a motion
to dismiss made pursuant to West Virginia Rule of Civil Procedure 12(b)(6).
(38) Plaintiff Roth was actively engaged in work within the scope of her employment when she was subjected to sexual discrimination and/or harassment, an activity protected under West Virginia Code § 5-11-1 et seq.
(39) Defendant DeFeliceCare and/or Defendant DeFelice, through Defendant DeFelice was aware that Plaintiff Roth was continuously subjected [to] sexual discrimination and/or harassment.
(40) Plaintiff Roth's wrongful discharge/termination followed her unwanted sexually explicit observations of defendant DeFelice and Michelle Kelly and such sexual discrimination and/or harassment was within a time period that retaliatory discharge can be inferred.
(41) Plaintiff Roth did not commit any dischargeable offense.
(42) As a direct and proximate result of the employment discrimination of Plaintiff Roth, which was known by Defendant DeFeliceCare to be unlawful, in violation of the public policies of the State of West Virginia, and in violation of Defendant DeFeliceCares' own policies and procedures.
In reviewing the foregoing allegations, the Appellants alleged that being
“actively engaged in work within the scope of employment” is a protected activity.
Additionally, in the Appellants' response to the Appellees' Motion to Dismiss, the Appellants
argued that “not being subjected to nudity or sexual acts in public is a protected activity.”
Finally, the Appellants argued that “reporting or expressing her displeasure for actions she
believes is a violation of the West Virginia Human Rights Act,” is a protected activity.
The circuit court, in dismissing this count, determined that
there is nothing in the Complaint identifying Tricia Roth as being engaged in any protected activity and no argument was made during briefing that she was. If she was not engaged in a protected activity, she cannot be the victim of retaliatory discharge and therefore, this claim must be dismissed.
In order to establish a retaliatory discharge claim, this Court has held the following:
“ 'In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W. Va .Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant's employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation), (4) that complainant's discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation.' Syl. pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986).” Syl. pt. 1, Brammer v. Human Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990).
Hanlon, 195 W. Va. at 103, 464 S.E.2d at 745, Syl. Pt. 5.
Additionally, regarding what type of conduct constitutes a “protected activity” the Court has held that
“Protected activity” under the West Virginia Human Rights Act includes opposition to a practice that the plaintiff reasonably and in good faith believes violates the provisions of the Act. This standard has both an objective and a subjective element. The employee's opposition must be reasonable in the sense that it must be based on a set of facts and a legal theory that are plausible. Further, the view must be honestly held and be more than a cover for troublemaking. Thus, even if there was no actionable sexual harassment, the plaintiff could still have been engaged in a protected activity if she complained about being sexually harassed.
Syl. Pt. 7, Conrad v. Ara Szabo, 198 W. Va. 362, 480 S.E.2d 801 (1996). This Court has
recognized that the being terminated because of the filing of a sexual discrimination
complaint against an employer involved the employee being engaged in a protected activity. Franks Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 61, 365 S.E.2d 251, 259
(1986). (See footnote 8)
From the Court's review of the allegations contained in the Appellants'
Complaint, as well as those facts contained in the Appellants' response to the Motion to
Dismiss, and accepting those allegations as true, there simply are no allegations that satisfies
the necessary element of the retaliatory discharge cause of action that Mrs. Roth was
terminated because she was engaged in a protected activity. We reach this conclusion by
reviewing the Appellants' allegation in the light most favorable to the Appellants' juxtaposed
against the Court's holdings regarding the type of activity that constitutes “protected
activity.” There simply are no averments that Mrs. Roth was terminated because she either
had complained or filed a complaint sounding in sexual harassment or discrimination.
Neither are than any allegations that Mrs. Roth was terminated from her employment because
she opposed an employment practice that she reasonably and in good faith believed violated
the provisions of the West Virginia Human Rights Act. Conrad, 198 W. Va. at 367, 480
S.E.2d at 806, Syl. Pt. 7.
Consequently, the Court affirms the circuit court's dismissal of the Appellants'
cause of action for retaliatory discharge.
We first defined the tort of outrage or intentional infliction of emotional distress in Syllabus pt. 1, Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982):
One who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for bodily harm.
This definition is patterned after Section 46 of the Restatement (Second) of Torts which requires that the conduct be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. at 704-05, 289 S.E.2d 692.
Dzinglski, 191 W. Va. at 283, 445 S.E.2d at 225. This Court also has held that in analyzing
a tort of outrage claim in the employment context,
The prevailing rule in distinguishing a wrongful discharge claim from an outrage claim is this: when the employee's distress results from the fact of his discharge-e.g., the embarrassment and financial loss stemming from the plaintiff's firing-rather than from any improper conduct on the part of the employer in effecting the discharge, then no claim for intentional infliction of emotional distress can attach. When, however, the employee's distress results from the outrageous manner by which the employer effected the discharge, the employee may recover under the tort of outrage. In other words, the wrongful discharge action depends solely on the validity of the employer's motivation or reason for the discharge. Therefore, any other conduct that surrounds the dismissal must be weighed to determine whether the employer's manner of effecting the discharge was outrageous.
Id. at Syl. Pt. 2.
The circuit court determined that because there were no allegations regarding the
manner in which the discharge was carried out, there is no claim. Again, taking the
allegations contained in the Complaint as true, the Court concludes that there were sufficient
allegations supporting the Appellants' intentional infliction of emotional distress claim. Mr.
DeFelice called Mrs. Roth and asked her to come to the office. In complying with that
request of her employer, Mrs. Roth was placed by her employer into unwantedly observing
Mr. DeFelice and Ms. Kelly in a sexually compromising position. Because of that
observation, Mr. DeFelice threatened Mrs. Roth not only with termination from her
employment, but with possibly losing her respiratory therapist license, which was her means
of making a living. Mrs. Roth was then terminated within the same week, ostensibly because
Mr. DeFelice did not like how she dressed or the style and color of her hair. Given the
proximity between Mrs. Roth's observation and her termination, there are sufficient
allegations to support her claim that her emotional distress resulted from the outrageous
manner by which the employer effected the discharge . Id.