Elliott v. Shore Stop, Inc.

• Decision Date: 22 September 1989
• Docket Number: No. 871248,871248
• Citation: 238 Va. 237,384 S.E.2d 752
• Parties: , 116 Lab.Cas. P 56,324, 4 IER Cases 1349 Wanda Brown ELLIOTT v. SHORE STOP, INC., et al. Record
• Court: Virginia Supreme Court

Page 752

384 S.E.2d 752

238 Va. 237, 116 Lab.Cas. P 56,324, 4 IER Cases 1349

Wanda Brown ELLIOTT v. SHORE STOP, INC., et al.

Record No. 871248.

Supreme Court of Virginia.

Sept. 22, 1989.

William Vinton Hoyle, Jr. (Mark A. Allen, Robert Moody, IV, Hoyle & Allen, P.C., Newport News, on brief), for appellant.

Sharon Padgett Hughes, Joseph T. McFadden, Jr. (William E. Rachels, Jr., Laura J. Holland, Paul D. Fraim, Willcox & Savage, P.C., Heilig, McKenry, Fraim & Lollar, Norfolk, on briefs), for appellees.

COMPTON, Justice.

In this employment dispute, an employee, when ordered by her employer to submit to a polygraph examination, sent an impostor to take the test. Subsequently, the employee was discharged by the employer because she failed the examination. In this action brought by the employee and decided below on demurrer, we must examine the employee's allegations and determine whether she has stated a cause of action in damages against the employer and the company administering the lie detector test.

In November 1986, the employee, Wanda Brown Elliott, filed this action for compensatory and punitive damages. The 41-paragraph motion for judgment contained numerous counts asserting various theories of recovery. Named as defendants were the plaintiff's former employer, Shore Stop, Inc., trading as Little Sue Food Stores, Inc., and its agents, Ray Kishlar and John Myers. Also named as defendants were Franklin Security Systems, Inc. and its agent, Don Pope. According to the plaintiff's instructions, process was not issued to Myers and he made no appearance in the action.

Shore Stop, Inc. and Kishlar (collectively, Shore Stop) filed a demurrer. Franklin Security Systems and Pope (collectively, Franklin Security) filed a separate demurrer. After oral argument of the demurrers, the plaintiff nonsuited several counts as to some or all defendants. Subsequently, after counsel had filed written memoranda of law, the trial court sustained both demurrers. We awarded the plaintiff this appeal to the August 1987 order, which dismissed the motion for judgment without leave to amend.

A demurrer, of course, tests the legal sufficiency of the motion for judgment. Thus, the trial court, and this Court upon review, are confined to the facts alleged when analyzing the pleading; no consideration properly can be given to additional facts that may be asserted on brief or during oral argument.

A demurrer admits the truth of all material facts that are properly pleaded. According to this rule, the facts admitted are those expressly alleged, those which are impliedly alleged, and those which may be fairly and justly inferred from the facts alleged. Bowman v. State Bank of Keysville, 229 Va. 534, 536, 331 S.E.2d 797, 798 (1985).

Conscious of the foregoing principles, we will summarize the allegations of the motion for judgment, relating the facts at this stage of the proceeding as if they are true. In April 1984, the plaintiff was hired by Shore Stop to be manager of a Little Sue convenience store at Gloucester Point. During the period of her employment until 1986, the plaintiff performed her duties competently, received consistent raises, and achieved the highest recommendation by her supervisor. In May 1986, Myers became her supervisor. Defendant Kishlar was the regional sales manager for Shore Stop's chain of stores.

On July 25, 1986, Myers informed plaintiff that she would be required to take a polygraph test because of a "bad inventory" result in her store. Believing the inventory had been performed by other persons incorrectly, she refused to take the examination. She had been forced to undergo another such test during the previous month, and had taken and passed five polygraph examinations during the period of her employment.

On July 27, a Sunday, Myers called plaintiff at her home and she informed him again that she refused to take the polygraph test. On July 28, Myers came to plaintiff's store and informed her that she must take the test or "leave her job," and that this directive was approved by Kishlar. Again, plaintiff refused to take the examination and handed Myers a letter of resignation. Myers accepted the letter but stated that he would "hold the paperwork" for seven days in case the plaintiff changed her decision. Myers said that if she decided to take the polygraph she could return to work.

During that afternoon, the plaintiff advised Myers that she would agree to take the test in order to retain her job. Myers arranged for the test to be administered on July 30 at 1:00 p.m. in Norfolk by defendant Pope of Franklin Security.

During the morning of July 30, the plaintiff received a telephone call from an unidentified female caller who stated: "I overheard John Myers say that you would not pass the polygraph. You've been set up. Good luck." Plaintiff believes this caller was a receptionist at Shore Stop's corporate office.

At that point, plaintiff called a friend, Kathy Cagle, who agreed to take the polygraph examination in plaintiff's stead. Cagle was a former employee and sales clerk in the plaintiff's store.

Upon arrival at the office of Franklin Security, Cagle identified herself as "Wanda Brown." Cagle never was asked for proof of her identity by anyone at Franklin Security. Approximately an hour later, Cagle was taken to Pope's office and, before being connected to the polygraph equipment, correctly answered questions concerning plaintiff's birth date, birth place, and social security number. Cagle then was questioned about various aspects of her employment at the Little Sue store, including questions about "floating checks," improper use of her time card, taking money from the cash register, and use of a charge sheet for employee purchases. Pope then handed Cagle a sheet of paper with four statements concerning matters they had discussed, which Cagle dated and signed "Wanda Brown."

Cagle then was connected to the polygraph equipment and answered a series of questions concerning her identity and her employment at the Gloucester Point Little Sue store. According to the test results, the plaintiff tested positive for deception when she answered "no" to questions whether, since her last polygraph test, she had stolen money or merchandise from the Little Sue store or intentionally had failed to pay for beer that she carried home from the store.

On July 31, 1986, Myers, acting for Shore Stop, discharged the plaintiff from her employment, stating that she could not return to work because she had "failed the polygraph." At the time of discharge, defendants were unaware that a substitute examinee had been tested.

In a breach of contract count, plaintiff asserted that Shore Stop, expressly and impliedly, represented that her employment was permanent and could be terminated only if she gave the employer "good cause" to discharge her. She alleged that her employment was "exemplary" until defendants "arranged" for her to fail the examination. She charged that the employer unilaterally breached the contract causing her harm.

In a count labelled "Wrongful Discharge," plaintiff alleged her termination was against public policy because it was fraudulent. She asserted that Myers told others that "Wanda Brown is nothing but trouble" and that Myers "had to get rid of" the plaintiff. He said that plaintiff "did not know what she was doing" and that Shore Stop "had to get her out of the company one way or the other."

Additionally, plaintiff alleged that Myers arranged for her to fail the polygraph examination even before she was due to arrive at Franklin Security's office to take the test. She points out that she did not even take the test on which her termination was based and asserts that other Shore Stop employees who failed polygraph examinations were not discharged and were, in some instances, promoted.

In a count designated "Fraud," plaintiff asserted that Myers represented to her that she could remain in her employment if she consented to administration of the test, even though Myers knew at the time this assurance was given that it was false. She asserts that Myers intended to provide the employer with false and "pretextual" grounds for discharging plaintiff. This was to prevent her from obtaining unemployment benefits through the Virginia Employment Commission "which Defendant Shore Stop would be obligated to pay if Plaintiff were ... fired without cause." Plaintiff asserted that Cagle passed relevant portions of the test about "her" identity but failed questions about "her" purported honesty. This fact, plaintiff alleged, provides ample evidence that Myers' representations were known to him to be false when made.

In a count labelled "Intentional Infliction of Emotional Distress," plaintiff claimed Shore Stop's conduct offended "standards of decency" and was malicious.

In a negligence count, plaintiff alleged that reasonable care was not exercised in the administration of the polygraph examination. She further asserted that defendants were negligent in the evaluation of her job performance.

In a count labelled "Tortious Interference With Contractual Relations," plaintiff charged that Shore Stop and Franklin Security, through its agents and servants, unlawfully conspired and interfered with her employment relations with her employer. She asserted these fraudulent and conspiratorial actions were the proximate cause of her termination.

The trial judge stated his reasons for sustaining the demurrers in a letter opinion. In striking the count for breach of contract, the court said that plaintiff's admissions of deceiving the employer by sending an impersonator to take the test established dishonesty amounting to unsatisfactory job performance. Thus, the judge said, sufficient grounds existed as a matter of law for termination under the contract. The court applied the same reasoning to the count for wrongful discharge.

Regarding the remaining counts, the court ruled that "by her admitted deceit, p...