Collins v. Elkay Min. Co.

• Decision Date: 17 March 1988
• Docket Number: No. 17624,17624
• Citation: 371 S.E.2d 46,179 W.Va. 549
• Court: West Virginia Supreme Court
• Parties: , 3 IER Cases 801, 1988 O.S.H.D. (CCH) P 28,253 Clinton COLLINS v. ELKAY MINING CO., a corporation, and the Pittston Co., a corporation.

Page 46

371 S.E.2d 46

179 W.Va. 549, 3 IER Cases 801, 1988

O.S.H.D. (CCH) P 28,253

Clinton COLLINS v. ELKAY MINING CO., a corporation, and the Pittston Co., a corporation.

No. 17624.

Supreme Court of Appeals of West Virginia.

March 17, 1988.

Syllabus by the Court

1. "The 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." Syllabus, Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).

2. "W.Va.Code, 22A-1A-20, prohibits retaliatory conduct by employers against mine employees because of their reporting of violations of the Mine Safety Act." Syllabus Point 2, Davis v. Kitt Energy Corp., 179 W.Va. 37, 365 S.E.2d 82 (1987).

3. "A mine safety committeeman who communicates a safety violation under the Mine Safety Act and enforces a procedural right given under the collective bargaining wage agreement, and who thereafter is subject to discrimination by his employer as a result thereof, is entitled to assert the protections afforded by W.Va.Code, 22A-1A-20." Syllabus Point 3, Davis v. Kitt Energy Corp., 179 W.Va. 37, 365 S.E.2d 82 (1987).

4. "A miner against whom an arbitration decision has been rendered under a collective bargaining agreement involving a safety claim is not foreclosed from pursuing a discrimination remedy under W.Va.Code, 22A-1A-20." Syllabus Point 4, Davis v. Kitt Energy Corp., 179 W.Va. 37, 365 S.E.2d 82 (1987).

5. A coal miner may institute a common law retaliatory discharge action under Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978), for acts that were designed to enforce the mandates of the coal mine health and safety statutes directly in circuit court without first resorting to an administrative remedy.

6. "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).

7. "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).

Lawrence B. Lowry, Barrett, Chafin, Lowry & Hampton, Huntington, for Clinton Collins.

Charles Surber, Jackson, Kelly, Holt, & O'F, Charleston, for Elkay Min. Co.

MILLER, Justice:

This is a wrongful discharge action instituted by Clinton Collins, a former tipple foreman, in which the trial court granted summary judgment for the defendant, Elkay Mining Company (Company). The trial court concluded that the plaintiff's retaliatory discharge claim under Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978), was barred by the plaintiff's failure to pursue State and federal administrative remedies, and that the plaintiff's independent cause of action based upon a breach of an implied contract of employment was not cognizable under West Virginia law. We reverse and remand for further proceedings.

I. RETALIATORY DISCHARGE

The plaintiff alleged in his November, 1984 complaint that he had been laid off and subsequently discharged by the Company in retaliation for his refusal to "falsify certain safety reports" pertaining to a safety inspection at the Company's preparation plant where he was employed, and for his refusal to otherwise violate federal or State mine safety laws. He alleged that his discharge violated the established public policy of the State and, thereby, gave rise to a cause of action under the single Syllabus of Harless:

"The 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."

The trial court in addition to finding the plaintiff's action was barred for failure to exhaust his administrative remedies also concluded in its memorandum opinion that the plaintiff's administrative remedies were exclusive. The court based its conclusion upon the general rule that where a right not existing at common law is created by statute, the statutory remedy is exclusive. Since both the federal and State mine safety laws ¹ contain antidiscrimination provisions which had been enacted prior to the Harless decision, the trial court found those administrative remedies to be exclusive.

In Harless, this Court adopted a limited exception to the common law rule that, in the absence of a written contract containing a fixed term of employment, an employee could be discharged for good reason, bad reason, or no reason at all. Wright v. Standard Ultramarine & Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459, 468 (1955). Our decision in Harless followed a number of jurisdictions which had concluded that an employee could not be fired in retaliation for exercising some substantial public policy right. See Annot., 9 A.L.R.4th 329 (1981).

We indicated in note 5 of Harless, 162 W.Va. at 124-25, 246 S.E.2d at 275, and in subsequent decisions that the cause of action was based on tort principles analogous to the common law concepts of fraud and deceit. Harless v. First Nat'l Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982) (Harless II); Stanley v. Sewell Coal Co., 169 W.Va. 72, 285 S.E.2d 679 (1981); Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980).

The trial court did not have the benefit of our decision in Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63 , 357 S.E.2d 745 (1987), when it rendered its decision. There the plaintiff, after allegedly being discharged by a coal company for safety-related activities, invoked the administrative remedy available to him under federal law and was ordered reinstated and awarded back pay and attorney's fees. He also brought a civil action in state court seeking compensatory and punitive damages for the retaliatory discharge. His spouse joined in the action, seeking damages for the intentional infliction of emotional distress.

In Wiggins, we rejected the theory relied upon by the trial court here, and concluded for a number of reasons that the administrative remedy was not exclusive. In Syllabus Point 2 of Wiggins, we held: "Where the available administrative remedy is inadequate, this Court recognizes an exception to the general rule that where a new right is created by statute, the remedy can be only that which the statute prescribes." See also Price v. Boone County Ambulance Auth., 175 W.Va. 676, 337 S.E.2d 913 (1985).

We found in Wiggins that the remedies available in federal and state administrative proceedings were not adequate to protect the substantial public policy interests embodied in our Mine Safety Act. We noted that damages recoverable in a tort action are broader than those available administratively and also observed that the primary purpose of the administrative remedy was different than the interests protected in a retaliatory discharge action. Both these considerations are reflected in the language of Syllabus Points 3 and 4 of Wiggins:

"3. The common law wrongful discharge action recognized in Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978) follows the applicable rules relating to tort damages, and permits a claim for damages caused by the intentional infliction of severe emotional distress, or, in the appropriate case, for the assessment of punitive damages.

"4. The primary purpose of the penalties imposed under the antidiscrimination provisions of the mine safety acts is to ensure the reporting of safety violations, rather than vindication of private interests, and victims of discrimination must look to the courts to receive full compensation for the violation of their legal rights."

In Wiggins, we also relied in part on "the silence of the [federal and State] statutes themselves on the exclusivity issue, and the fact that these safety statutes are to be construed liberally in favor of their intended beneficiaries, State ex rel. Perry v. Miller, 171 W.Va. 509, 300 S.E.2d 622 (1983)." 178 W.Va. at 66, 357 S.E.2d at 748.

We found it unnecessary to decide in Wiggins whether a coal miner should be barred from pursuing his common law right of action for failure to pursue his administrative remedies, since the miner in that case had successfully pursued his administrative remedy available under federal law.

More recently in Davis v. Kitt Energy Corp.,179 W.Va. 37, 365 S.E.2d 82 (1987), we considered an analogous issue involving whether the arbitration of a safety-related grievance under a collective bargaining agreement foreclosed an administrative claim for the same incident under our Mine Safety Act. We decided that it did not, holding in Syllabus Points 2, 3, and 4:

"2. W.Va.Code, 22A-1A-20, prohibits retaliatory conduct by employers against mine employees because of their reporting of violations of the Mine Safety Act.

"3. A mine safety committeeman who communicates a safety violation under the Mine Safety Act and enforces a procedural right given under the collective bargaining wage agreement, and who thereafter is subject to discrimination by his employer as a result thereof, is entitled to assert the protections afforded by W.Va.Code, 22A-1A-20.

"4. A miner against whom an arbitration decision has been rendered under a collective bargaining agreement involving a safety claim is not foreclosed from...