McClung v. Marion County Com'n, No. 16604

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH; On rehearing en banc, the en banc panel of the Court of Appeals for the Fourth Circuit reversed the opinion of the original panel. The per curiam opinion of the en banc panel was based upon the reasoning of the opinion of Ervin
• Citation: 360 S.E.2d 221,178 W.Va. 444
• Parties: Robert Dennis McCLUNG v. MARION COUNTY COMMISSION.
• Decision Date: 17 July 1987
• Docket Number: No. 16604

Page 221

360 S.E.2d 221 178 W.Va. 444 Robert Dennis McCLUNG
v.
MARION COUNTY COMMISSION. No. 16604. Supreme Court of Appeals of
West Virginia. July 17, 1987.

Page 223

[178 W.Va. 446] 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 princip[le], then the employer may be liable to the employee for damages occasioned by this discharge." Syl., Harless v. First National Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978).

2. It is in contravention of substantial public policies for an employer to discharge an employee in retaliation for the employee's exercising his or her state constitutional rights to petition for redress of grievances ( W.Va. Const. Art. III, § 16) and to seek access to the courts of this State ( W.Va. Const. Art. III, § 17) by filing an action, pursuant to W.Va.Code, 21-5C-8 [1975], for overtime wages.

3. In a retaliatory discharge action, where the plaintiff claims that he or she was discharged for exercising his or her constitutional right(s), the burden is initially upon the plaintiff to show that the exercise of his or her constitutional right(s) was a substantial or a motivating factor for the discharge. The plaintiff need not show that the exercise of the constitutional right(s) was the only precipitating factor for the discharge. The employer may defeat the claim by showing that the employee would have been discharged even in the absence of the protected conduct.

4. Whether the defendant in a retaliatory discharge case acted wantonly, willfully or maliciously is a function peculiarly within the province of the fact finder.

5. "There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as 'costs,' without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Syl. pt. 3, Sally-Mike Properties v. Yokum, 179 W.VA. 48, 365 S.E.2d 246.

6. "In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved." Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

7. In a case where the evidence is such that the jury could have properly found for either party upon the factual issues, a motion for judgment notwithstanding the verdict should not be granted.

8. "Where a jury returns a general verdict in a case involving two or more liability issues and its verdict is supported by the evidence on at least one issue, the verdict will not be reversed, unless the defendant has requested and been refused the right to have the jury make special findings as to his liability on each of the issues." Syl. pt. 6, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).

Page 224

[178 W.Va. 447] 9. Where the trial court granted the motion for judgment notwithstanding the verdict, but failed to rule on the motion for a new trial, and the appellate court reverses the entry of the judgment notwithstanding the verdict, the appellate court has three dispositional alternatives. The appellate court may (1) reinstate the jury's verdict and enter judgment thereon; or (2) order a new trial; or (3) remand the case to the trial court for consideration of the motion for a new trial.

James H. Hearst, Fairmont, Franklin Cleckley, Morgantown, for appellant.

J. Montgomery Brown, Pros. Atty's Office, Fairmont, for appellee.

McHUGH, Justice:

This action is before this Court upon appeal by Robert Dennis McClung, the plaintiff/appellant, from a final order of the Circuit Court of Marion County, West Virginia, setting aside the jury's verdict for the appellant and entering a judgment for the Marion County Commission, the defendant/appellee. After reviewing the petition for appeal, the briefs of the parties and the record, we reverse and reinstate the jury's verdict.

I

A. The Facts

The appellant was employed by the appellee as the dog warden for Marion County, West Virginia, from August 9, 1978 to March 17, 1981. By statute a county commission is authorized to appoint and employ a county dog warden for an indefinite term to enforce the statutory provisions respecting the control and registration of dogs and the impounding, care or destruction of unlicensed dogs. ¹ The appellant's employment contract was oral. At the time he was hired he was furnished a written job description. According to the job description, he was to answer emergency calls consisting only of bite cases and injured animals. The evidence at trial indicated, however, that the appellant's duties also included responding to calls after his regular hours in cases involving the capture of unlicensed dogs running loose without having bitten anyone or being injured. The job description also set forth that the appellant was to maintain contact with the animal shelter at least every two hours. The appellee provided the appellant with a "beeper" so that he could receive messages at any time. A telephone answering service would "page" him over his "beeper."

The appellant's regular hours of employment were 8:00 a.m. to 4:00 p.m., Monday through Friday. He contended at trial, though, that he was on call seven days a week, twenty-four hours per day and testified that he responded to at least thirty-two calls after his regular hours during the two and one-half years he was employed as the county dog warden. ² During most of his

Page 225

employment as the county dog warden, he lived adjacent to the animal shelter in a [178 W.Va. 448] residence furnished rent-free by the humane society in exchange for the appellant's cleaning the dog pens and being available to answer the humane society's telephone after regular business hours. ³ While living next to the animal shelter, he was furnished a county vehicle to perform his duties. After being forced by the humane society to change residences, the appellant was expected to use his own vehicle to perform his duties. It was suggested to him that he pay someone to "cover for him" when he could not respond to calls because of transportation problems or other reasons. After inquiring about his entitlement to overtime wages, the appellant was the only employee at the animal shelter who was required to punch a time clock.

The appellant was compensated at the rate of $5.29 per hour when hired and at the rate of $6.11 per hour when discharged. A county personnel policy memorandum indicated that the appellant was entitled to compensatory time off, if overtime hours were worked.

There was evidence that the appellant had failed to keep in contact with the animal shelter at least every two hours as required. There was conflicting evidence about whether the appellant failed to respond to three particular calls. The telephone answering service had no record of those calls. He was suspended for five days without pay for missing those three calls. He was warned that any further complaints against him would result in an automatic termination.

On the last day of his suspension the appellant brought an action in the Circuit Court of Marion County for overtime wages, pursuant to the provisions of W.Va.Code, 21-5C-8 [1975]. ⁴

Within a few days after the appellant brought his action for overtime wages, the appellee terminated the appellant's employment for his "failure to comply with the working procedures" of the appellee. The appellant was given no prior notice and opportunity to be heard. On three previous occasions he had been given the opportunity to respond to charges about his job performance.

After receiving notice of termination of his employment, the appellant, at the suggestion of one of the members of the appellee, filed a written request for a "grievance" hearing as provided by the appellee's personnel policy memorandum. Thereafter, however, the appellee's administrative assistant, demonstrating a remarkable grasp of sophistry, notified the appellant by letter that the appellant was not entitled to a grievance hearing because a grievance hearing could be requested only by an employee, and the appellant was no longer an employee at the time that he had requested a grievance hearing.

The appellant subsequently amended his complaint in the action for overtime wages by adding claims based upon denial of procedural due process and retaliatory discharge.

Page 226

B. Trial Proceedings

At trial the appellant proceeded on the three theories of recovery: (1) violation of [178 W.Va. 449] the state overtime wage statute, (2) denial of procedural due process based upon a lack of opportunity to be heard about his job performance and (3) retaliatory discharge. The retaliatory discharge claim was two-pronged. First, the appellant claimed that the appellee discharged him in retaliation for his having filed the action for overtime wages. Second, the appellant claimed that the appellee discharged him in retaliation for his having complained about discriminatory treatment of citizens and falsification of records. ⁵

At the close of the appellant's case the trial court "reserved on the record" the appellee's motion for directed verdict. At the close of all of the evidence the appellee failed to orally request a directed verdict but did timely file a written motion for directed verdicts on the procedural due process and retaliatory discharge claims. The trial court submitted the case to...