Dzinglski v. Weirton Steel Corp.

• Citation: 191 W.Va. 278,445 S.E.2d 219
• Decision Date: 26 May 1994
• Docket Number: No. 21888,21888
• Court: West Virginia Supreme Court
• Parties: , 10 IER Cases 472 Andrew P. DZINGLSKI, Appellee, v. WEIRTON STEEL CORPORATION, Appellant.

Page 219

445 S.E.2d 219

191 W.Va. 278, 10 IER Cases 472

Andrew P. DZINGLSKI, Appellee, v. WEIRTON STEEL CORPORATION, Appellant.

No. 21888.

Supreme Court of Appeals of

West Virginia.

Submitted May 3, 1994.

Decided May 26, 1994.

Syllabus by the Court

1. "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." Syllabus pt. 6, Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).

2. 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.

3. Conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable when he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.

4. Qualified privileges are based upon the public policy that true information be given whenever it is reasonably necessary for the protection of one's own interests, the interests of third persons or certain interests of the public. A qualified privilege exists when a person publishes a statement in good faith about a subject in which he has an interest or duty and limits the publication of the statement to those persons who have a legitimate interest in the subject matter; however, a bad motive will defeat a qualified privilege defense.

5. A defendant's conduct is subject to a qualified privilege when he acts to protect or advance his own legitimate interests, the legitimate interests of others or the legitimate interests of the public.

6. " 'The purpose of the words 'leave [to amend] shall be freely given when justice so requires' in Rule 15(a) ... is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue.' Syllabus point 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973)." Syllabus Bennett v. Owens, 180 W.Va. 641, 378 S.E.2d 850 (1989).

7. Pursuant to Rule 15, W.Va.R.C.P., amendments relate back when the cause of action sought to be added grows out of the specified conduct of the defendant that gave rise to the original cause of action. If, however, the supplemental pleading creates an entirely new cause of action based on facts different from those in the original complaint, the amended pleading will not relate back for statute of limitations purposes.

8. In permitting recovery for emotional distress without proof of physical trauma when the distress arises out of the extreme and outrageous conduct intentionally caused by the defendant, damages awarded for the tort of outrageous conduct are essentially punitive damages. Therefore, in many cases emotional distress damages serve the policy of deterrence that also underlies punitive damages.

Franklin D. Cleckley, Morgantown, Michael W. McGuane, Thomas C. Schultz, Wheeling, for appellee.

Carl N. Frankovitch, Mark A. Colantonio, Frankovitch & Anetakis, Weirton, for appellant.

NEELY, Justice.

This is an appeal from a jury verdict and judgment in the Circuit Court of Brooke County against Weirton Steel Corporation ["Weirton Steel"] in the amount of $500,000 for the tort of outrage and intentional infliction of emotional distress. The judgment was based upon the circumstances surrounding an investigation by Weirton Steel into alleged improprieties on the part of the plaintiff below, Andrew P. Dzinglski, while he worked as a management employee at Weirton Steel in 1984.

Mr. Dzinglski had worked at National Steel Corporation for 25 years when National Steel became Weirton Steel through an Employee Stock Ownership Plan ["ESOP"] in January 1984. Under the ESOP, all ownership of Weirton Steel was vested in its employees, who took substantial reductions in pay and benefits in exchange for company stock.

In the course of the negotiations surrounding the creation of the ESOP, the Independent Steelworkers Union, which represented company employees, related to management several cost-saving measures the Union would seek to implement should the ESOP be concluded successfully. These measures comprehended the removal of both management employees deemed detrimental to the new ESOP company as well as the elimination of various outside contractors whose services, in the Union's opinion, could be performed less expensively by Weirton Steel employees.

Accordingly, upon completion of the ESOP in January 1984, Valley Systems, Inc., an industrial cleaning company that had performed various cleaning jobs at Weirton Steel's facilities, was discontinued as an outside contractor, Weirton Steel opting to use its own employees for the same tasks. At about the same time, Richard McKittrick, Weirton Steel's General Supervisor of Plant Security, received a series of anonymous telephone calls implicating the plaintiff below, Mr. Dzinglski, in taking kickbacks from Valley Systems. Mr. Dzinglski, as general foreman of the Strip Steel labor gang, had had daily dealings with Valley Systems, approving invoices for work performed and purchases made by Valley Systems.

Eventually, the anonymous caller identified himself as Tim Lawson, a salaried foreman who had worked under Mr. Dzinglski in the Strip Steel Department. According to Mr. Lawson, while Weirton Steel's contract with Valley Systems required Weirton Steel to pay an hourly charge for laborers, Mr. Dzinglski frequently approved payment for salaried supervisory employees who performed no actual work at Weirton Steel. Mr. Lawson also accused Mr. Dzinglski of accepting gratuities in the form of food, fixtures, meals and travel from Valley Systems and of allowing Valley Systems to use Weirton Steel's own supplies and equipment to perform work. To corroborate these charges, Mr. Lawson named two former Valley Systems employees, Charles Fraizer and William Baxter.

Mr. McKittrick thereupon met with Mr. Lawson and William Doepken, Weirton Steel's Vice President for Legal and Public Affairs. Having been apprised of Mr. Lawson's accusations, Mr. Doepken deemed the charges against Mr. Dzinglski sufficiently serious to warrant an investigation. Mr. Doepken was appointed to head the investigation.

When, in late May 1984, Mr. Doepken and Mr. McKittrick confronted Mr. Dzinglski with the substance of Mr. Lawson's allegations, Mr. Dzinglski denied any wrongdoing. Mr. Doepken then informed Mr. Dzinglski that Weirton Steel had decided to suspend Mr. Dzinglski with pay while the charges were investigated. Mr. Dzinglski's suspension was consistent with the Weirton Steel policy that whenever allegations were raised about management employees, the employee would be suspended with pay during the investigation.

As part of the investigation, Weirton Steel's internal audit department combed through Weirton Steel's own records in order to probe the charges of overbilling and phantom employees. Weirton Steel staunchly maintains that no one, other than those persons directly involved in the investigation, was informed by Weirton Steel of Mr. Lawson's accusations.

Mr. McKittrick interviewed Mr. Baxter and Mr. Frazier, the Valley Systems employees identified by Mr. Lawson as corroborative witnesses, taking notes of his interviews for the preparation of internal memoranda. According to Mr. McKittrick, these memoranda were routed to only four people: Mr. Doepken, Robert Loughhead, president of Weirton Steel and Mr. McKittrick's immediate supervisors, William Wetzel and Alan Moran.

With regard to gratuities allegedly taken by Mr. Dzinglski from Valley Systems, Mr. Baxter, general superintendent and office manager at Valley Systems, testified that on instructions from the CEO and owner of Valley Systems, Eugene R. Valentine, Mr. Baxter: (1) picked up an order of 50 pounds of bacon and took it to Mr. Dzinglski; (2) picked up a bathroom vanity and delivered it to Mrs. Dzinglski; (3) picked up bolt cutters and delivered them to Mr. Dzinglski for the purpose of cleaning out lockers of former Weirton employees; (4) purchased a camera for Mr. Dzinglski and delivered it to Mr. Dzinglski; (5) doctored invoices to cover the cost of repairs for a Valley System Kubota machine damaged at the Weirton Steel mill by Weirton Steel; (6) periodically took different Weirton employees to lunch on Valley System's tab; and (7) on one occasion provided Mr. Dzinglski access to a motel room at a local Holiday Inn paid for by Valley Systems. Mr. Baxter also testified that Mr. Dzinglski allowed Valley Systems to use supplies from Weirton Steel's storeroom in the performance of their jobs.

Mr. Fraizer, who worked as a supervisor and performed various administrative duties at Valley Systems, stated that on...