Cook v. Heck's Inc., 16538

• Citation: 176 W.Va. 368,342 S.E.2d 453
• Decision Date: 04 April 1986
• Docket Number: No. 16538,16538
• Court: Supreme Court of West Virginia
• Parties: , 1 IER Cases 776 Faith W. COOK v. HECK'S INC., etc., M & W Dist., etc., et al.

Page 453

342 S.E.2d 453

176 W.Va. 368, 1 IER Cases 776

Faith W. COOK v. HECK'S INC., etc., M & W Dist., etc., et al.

No. 16538.

Supreme Court of Appeals of West Virginia.

April 4, 1986.

Syllabus by the Court

1. " 'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.' Syl., Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932)." Syl. pt. 1, Totten v. Adongay, 175 W.Va. 634, 337 S.E.2d 2 (1985).

2. "When a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract." Syl. pt. 2, Wright v. Standard Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955).

3. Contractual provisions relating to discharge or job security may alter the at will status of a particular employee.

4. Generally, the existence of a contract is a question of fact for the jury.

5. 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.

6. 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.

7. "In order for civil conspiracy to be actionable it must be proved that the defendants have committed some wrongful act or have committed a lawful act in an unlawful manner to the injury of the plaintiff; ..." Syl. pt. 1, in part, Dixon v. American Industrial Leasing Co., 162 W.Va. 832, 253 S.E.2d 150 (1979).

8. "One who by extreme and 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 such bodily harm." Syl. pt. 6, Harless v. First National Bank, 169 W.Va. 673, 289 S.E.2d 692 (1982).

9. " 'In actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive or vindictive damages; ...' Syllabus Point 4, in part, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895)." Syl. pt. 1, Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 (1982).

James M. Cagle, Charles R. Garten, Charleston, for appellant.

Goodwin & Goodwin, Stephen P. Goodwin and Thomas R. Goodwin, Charleston, for appellees.

Fred Holroyd, Holroyd & Yost, Charleston, for amicus curiae.

McHUGH, Justice:

The appellant, Faith W. Cook, was terminated from her employment in June of 1983. She instituted a civil action in the Circuit Court of Putnam County against her former employer, M & W Distributing Co. (M & W), the parent company of M & W, Heck's, Inc. (Heck's), and various officers of Heck's and M & W. Her complaint alleged breach of contract, violation of W.Va.Code, 21-5-4, et seq. [1975], conspiracy, and intentional, reckless and malicious infliction of emotional distress. A jury trial commenced on May 25, 1984. Following presentation of the appellant's evidence, the trial court granted the appellees' motion for a directed verdict on all counts, except the statutory violation, and this appeal followed. The Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

I

We review the evidence and the trial court's ruling in accordance with the well-established rule stated in syllabus point 1 of Totten v. Adongay, 175 W.Va. 634, 337 S.E.2d 2 (1985):

"Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syl., Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932).

Accord, syl. pt. 2, Arcuri v. Great American Insurance Co., 176 W.Va. 211, 342 S.E.2d 177 (W.Va.1986).

Facts

The appellant, Faith W. Cook, began working for Heck's as a cashier in 1960. She worked in various positions until 1977 when she went to work for M & W Distributors, a warehouse company that was a wholly-owned subsidiary of Heck's. From 1977 until her termination, Ms. Cook worked as a salesperson. In this position she was responsible for monitoring the inventory in several Heck's stores and handling the sales of goods from M & W's warehouse to Heck's. It was undisputed that Ms. Cook's performance record was excellent.

There was testimony that M & W distributed an employee handbook to its employees. A copy of this handbook, entitled "M & W And You," was introduced into evidence. It contained information concerning attendance policies, pay periods, retirement, insurance and other benefits, employee grievances, rules and disciplinary procedures. The section entitled "RULES AND DISCIPLINE PROCEDURES" contained a list of 41 separate offenses, together with the possible penalties for first, second or third infractions. The penalties ranged from written or verbal warning to suspension to discharge. Another section of the handbook, devoted to theft offenses, contained the following cross-reference to the list of rules and penalties: "IF YOU DO NOT FULLY UNDERSTAND ANY ONE OR MORE OF THESE RULES, DISCUSS THEM WITH YOUR MANAGER; DISREGARD FOR ANY RULE CAN BE CAUSE OF APPROPRIATE DISCIPLINARY ACTION. FOR A COMPLETE LIST OF RULES AND DISCIPLINARY PROCEDURES, REFER TO THE LAST SECTION FO [sic] THIS BOOKLET." (emphasis added)

Ms. Cook's husband, Douglas, was the president of M & W. He was discharged from his employment in June of 1983.

Shortly thereafter, Robert Harrick, vice-president of M & W, whose duties included that of personnel manager, called Ms. Cook to inform her that she, too, was being terminated. Ms. Cook, who had been away on vacation, returned home to find a message on her answering machine to call Harrick. She telephoned Harrick who told her, without disclosing any reason, that she was fired. Later Ms. Cook appeared at Harrick's office to demand a termination letter. Harrick dictated the following letter, which was typed and then given to Ms. Cook: "TO WHOM IT MAY CONCERN: This letter is to be used as a notice of termination for Faith Cook. She was terminated in the best interests of the company. Should any further information be necessary, please contact me at M & W Distributors. Respectfully, /s/ Bob Harrick, VP Sales."

As revealed through the trial testimony of Russell Isaacs, chairman of the board and chief executive officer of Heck's, Ms. Cook was fired because of her and her husband's association with Isaacs' predecessor, Fred Haddad, one of the founders of Heck's. Isaacs believed that Douglas Cook was involved with Haddad in an effort to purchase a chain of discount stores that Heck's was also trying to buy and that was then in competition with Heck's.

Ray Darnall, the president of Heck's, testified that he and Harrick had a conversation in which they decided that Faith Cook should, for the best interests of the company, be terminated. This decision was made after Ms. Cook's husband was fired. Isaacs testified that he agreed with the termination decision because he viewed the Cooks as competitors.

In response to a question about the significance of the rules and disciplinary procedures contained in the handbook, Fred Haddad testified: "These are things that we put in the procedures for any discharge of any employee, either one or more of these things have to happen before they are discharged." Douglas Cook, who had helped prepare "M & W And You" characterized the handbook as a "guide" for employees.

Haddad also testified that during his long association with Heck's no employee was fired without cause and that it was the policy of Heck's and its subsidiaries to discharge employees only for cause. According to Ms. Cook's testimony, employees were fired only for stealing. The trial judge expressly disbelieved the testimony that Heck's had only fired workers for theft offenses. ¹

There was conflicting evidence on the factual issue of whether the handbook applied to Ms. Cook. The appellant testified that she was given a copy of "M & W And You" shortly after she started to work for M & W. Haddad and Douglas Cook both testified that the handbook applied to all M & W employees. On the other hand, Harrick and Isaacs testified that the handbook covered only warehouse employees. The appellant testified that she was not a warehouse employee and was not subject to the supervision of the warehouse manager, who is described in the employee handbook as "the boss" of all warehouse employees.

II

The appellant contends that the trial court erred in directing a verdict because her evidence established a prima facie case on each and every count of the complaint. We address each cause of action in turn to determine whether there was sufficient evidence to preclude a directed verdict.

Breach of Contract

The appellant's principal contention is that the employee handbook, which was distributed to M & W employees, modified her contract of employment to make the contract not terminable at the will of the employer. We have not previously considered the question of whether job security guarantees, promises not to discharge except for cause, or express termination procedures contained in an employee handbook may be contractual provisions that abrogate the at will nature of the employment.

In the realm of the employer-employee relationship, West...