Feliciano v. 7-Eleven, Inc.

Decision Date30 November 2001
Docket NumberNo. 29564.,29564.
PartiesAntonio FELICIANO, Plaintiff, v. 7-ELEVEN, INC., a Corporation, Defendant.
CourtWest Virginia Supreme Court
Dissenting Opinion of Justice Maynard December 11, 2001.

Paul G. Taylor, Martinsburg, for the Plaintiff.

Charles F. Printz, Jr., Brian M. Peterson, Bowles Rice McDavid Graff & Love, PLLC, Martinsburg, for the Defendant. DAVIS, Justice:

The United States District Court for the Northern District of West Virginia presents, for resolution by this Court, the following certified question: "Whether the right of self-defense is a `substantial public policy' exception to the at-will employment doctrine, which provides the basis for a wrongful discharge action?" Following a review of the parties' arguments, the record presented for our consideration, and the pertinent authorities, we answer the certified question in the affirmative. In this regard, we find that the State of West Virginia recognizes a substantial public policy exception to the at will employment doctrine whereby an employee may defend him/herself against lethal imminent danger. However, an employer may rebut the presumption of a wrongful discharge based upon an employee's exercise of his/her right to self-defense by demonstrating that it based the termination upon a plausible and legitimate business reason.


The plaintiff, Antonio Feliciano [hereinafter referred to as "Feliciano"], was employed as a retail sales clerk by the defendant, 7-Eleven, Inc. [hereinafter referred to as "7-Eleven"], at its Baker Heights store, located in Berkeley County, West Virginia. At approximately 4:00 a.m. on July 14, 2000, a woman, wearing a mask and pointing a firearm, demanded that store employees, including Feliciano, give her the store's money. During this incident, certain employees emptied the cash register and, while the woman was focused upon another employee, Feliciano grabbed and disarmed her. Feliciano continued to restrain the would-be robber until local law enforcement authorities arrived on the scene and apprehended her.1

Following this incident, 7-Eleven terminated Feliciano, who was an at will employee, for failure to comply with its company policy which prohibits employees from subduing or otherwise interfering with a store robbery. Feliciano then filed a civil action against 7-Eleven in the Circuit Court of Berkeley County alleging that he had been wrongfully discharged, in contravention of West Virginia public policy, for exercising his right to selfdefense. The defendant removed the suit to the United States District Court for the Northern District of West Virginia, Martinsburg Division, based upon diversity of citizenship2 and moved to dismiss Feliciano's claim, contending that he had failed to state a claim upon which relief could be granted.3 In considering this motion, the district court encountered a legal conundrum which it has certified to this Court.4 Applying West Virginia substantive law, the court ruled, by order entered February 28, 2001, that, "unless the West Virginia Supreme Court of Appeals holds otherwise, the Court concludes that self-defense is not a substantial public policy in West Virginia," which ruling, if upheld, would result in the dismissal of Feliciano's complaint for failure to state a meritorious claim for wrongful discharge. Pursuant to this decision, the district court certifies its question of law to this Court.


When considering a certified question, we generally accord the original court's determination thereof plenary review. "`A de novo standard is applied by this [C]ourt in addressing the legal issues presented by a certified question from a federal district or appellate court.' Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998)." Syl. pt. 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000). Accord Syl. pt. 1, Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999) ("This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court."). In the case presently before us, the specific question at issue for our determination has been established to be a question of law: "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." Syl. pt. 1, Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984). During our consideration of questions of law, be they presented by certification or otherwise, we employ a de novo standard of review. "To the extent that we are asked to interpret a statute or address a question of law, our review is de novo." State v. Paynter, 206 W.Va. 521, 526, 526 S.E.2d 43, 48 (1999). Accord Syl. pt. 2, Coordinating Council for Indep. Living, Inc. v. Palmer, 209 W.Va. 274, 546 S.E.2d 454 (2001) (" `Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)."). Having established the appropriate standard of review for the case sub judice, we proceed to consider the parties' arguments.


The single issue presented for resolution by this Court is the certified question posed by the United States District Court for the Northern District of West Virginia: "Whether the right of self-defense is a `substantial public policy' exception to the at-will employment doctrine, which provides the basis for a wrongful discharge action?" In rendering its decision, the district court opined that the right of self-defense did not constitute a "substantial public policy" exception to the at will employment doctrine, and thus Feliciano had failed to state a valid claim for wrongful discharge. On certification to this Court, Feliciano maintains that such a substantial public policy does exist, while 7-Eleven agrees with the district court's ruling effectively precluding the assertion of Feliciano's claim for wrongful discharge.

Before definitively deciding the question certified for our determination, it is helpful to briefly review basic concepts of employment law applicable to the case sub judice. In the State of West Virginia, employers and employees alike are generally governed by the at will employment doctrine.5 Pursuant to this body of law, "[w]hen 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). The practical effect of this doctrine, then, is that "an at-will employee serves at the will and pleasure of his or her employer and can be discharged at any time, with or without cause." Kanagy v. Fiesta Salons, Inc., 208 W.Va. 526, 529, 541 S.E.2d 616, 619 (2000) (citation omitted). Nevertheless, "`the employer is not so absolute a sovereign of the job that there are not limits to his prerogative.'" Id.,208 W.Va. at 533,541 S.E.2d at 623 (quoting Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 178, 164 Cal.Rptr. 839, 845, 610 P.2d 1330, 1336 (1980)).

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 princip[le], then the employer may be liable to the employee for damages occasioned by this discharge.

Syl., Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978). This exception to the at will employment doctrine recognizes that, in spite of the right of employers to terminate their employees, " `[o]ne of the fundamental rights of an employee is the right not to be the victim of a "retaliatory discharge," that is, a discharge from employment where the employer's motivation for the discharge is in contravention of a substantial public policy[.]'" Kanagy, 208 W.Va. at 530, 541 S.E.2d at 620 (quoting McClung v. Marion County Comm'n, 178 W.Va. 444, 450, 360 S.E.2d 221, 227 (1987) (quotation and citation omitted)).

Accordingly, a cause of action for wrongful discharge exists when an aggrieved employee can demonstrate that his/her employer acted contrary to substantial public policy in effectuating the termination.

"`"[P]ublic policy" is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against public good even though no actual injury may have resulted therefrom in a particular case to the public.'" Cordle v. General Hugh Mercer Corp., 174 W.Va. at 325, 325 S.E.2d at 114 (quoting Allen v. Commercial Cas. Ins. Co., 131 N.J.L. 475, 477-78, 37 A.2d 37, 39 (1944) (internal quotations and citations omitted)). Whether a particular factor motivating a discharge from employment is a matter of public policy is dictated by reference to various authorities: "[t]o identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions." Syl. pt. 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992). E.g., Syl. pt. 3, Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 506 S.E.2d 578 (1998) (discussing procedure for basing substantial public policy on constitutional provision). However, in order to sustain a cause of action for wrongful discharge, the public policy relied upon must not just exist; it must be substantial. "Inherent in the term `substantial public policy' is the concept that the policy will provide specific guidance to a reasonable person." Syl. pt. 3, Birthisel, 188 W.Va. 371, 424 S.E.2d 606. Moreover,

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