Messenger v. Volkswagen of America, Inc.

• Decision Date: 18 May 1984
• Docket Number: Civ. A. No. 82-2601.
• Citation: 585 F. Supp. 565
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Alvin R. MESSENGER, Plaintiff, v. VOLKSWAGEN OF AMERICA, INC., a corporation, Defendant.

585 F. Supp. 565

Alvin R. MESSENGER, Plaintiff, v. VOLKSWAGEN OF AMERICA, INC., a corporation, Defendant.

Civ. A. No. 82-2601.

United States District Court, S.D. West Virginia, Charleston Division.

May 18, 1984.

Daniel F. Hedges, Charleston, W.Va., for plaintiff.

Ricklin Brown and Thomas E. Scarr, Charleston, W.Va., for defendant.

MEMORANDUM ORDER

COPENHAVER, District Judge.

This matter is before the court on the motion of defendant for summary judgment.

In this civil action, plaintiff alleges that his employment with defendant was wrongfully terminated on account of his pursuit of West Virginia Workers' Compensation benefits. Plaintiff alleges that the termination of his employment is in violation of W.Va.Code § 23-5A-1¹ and the public policy of West Virginia. Plaintiff seeks reinstatement, back pay, and compensatory and punitive damages.

Plaintiff began working at defendant's South Charleston plant on September 19, 1978. On July 7, 1979, plaintiff was injured on the job and he eventually was granted an 8% permanent partial disability award on February 10, 1982. Defendant's Exhibit B.

Following plaintiff's injury on July 7, 1979, defendant contends that plaintiff failed to attend work on several occasions without first notifying defendant that he would be absent and without making any subsequent justification for his absence.² On February 18, 1981, plaintiff was initially discharged for absenteeism, to which plaintiff filed a grievance. The matter was settled prior to any arbitration proceedings, with plaintiff receiving a thirty-day suspension and being returned to work on probationary status. Deposition of plaintiff, pp. 35-36. Finally, on May 12, 1981, plaintiff was discharged due to another absence from work on the previous day. Id., p. 36.³ On the day of his discharge, the union filed a grievance on behalf of plaintiff, which was eventually withdrawn without prejudice by the union on July 17, 1981. See Id., pp. 38-39 and Exhibits 10 and 11 thereto.⁴

Defendant argues that plaintiff's claim against it is a § 301 action, 29 U.S.C. § 185,⁵ even though the complaint is not framed in the context of federal labor law. As a § 301 action, defendant argues that this suit is time-barred by the six-month statute of limitations established in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).⁶

Plaintiff insists that his cause of action does not involve a breach of the collective bargaining agreement and is thus not a § 301 suit; rather, plaintiff contends his claim is strictly a state law cause of action governed by the applicable two-year statute of limitations for personal torts. Shanholtz v. Monongahela Power Co., 270 S.E.2d 178 (W.Va.1980).

In the present case, a collective bargaining agreement between the defendant and the plaintiff's union, including both the International Union of the United Auto Workers and its Local 1933, existed at the time of plaintiff's discharge. The agreement provided for a grievance and arbitration procedure whereby disputes arising under the contract could be resolved.⁷

In his complaint, plaintiff alleges that the termination of his employment was in violation of W.Va.Code § 23-5A-1⁸ and the public policy of the State of West Virginia inasmuch as he was discharged due to the pursuit of Workers' Compensation benefits. Plaintiff contends that W.Va.Code § 23-5A-1 makes it clear that terminating an employee for filing a workers' compensation claim contravenes a substantial West Virginia public policy. In support of this contention, plaintiff cites Shanholtz v. Monongahela Power Co., 270 S.E.2d 178 (W.Va.1980).

In Shanholtz, involving an "at will" employee, the West Virginia Supreme Court reiterated the principle of retaliatory discharge as developed in Harless v. First National Bank, 246 S.E.2d 270 (W.Va. 1978). In Harless, the court stated:

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principal sic 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.

Harless, syllabus by the court. In Shanholtz, the court acknowledged that it is both a contravention of public policy and actionable to discharge an employee because he has filed a workers' compensation claim.

Defendant argues that the present action can only be regarded as a § 301 suit and that the plaintiff may not avoid the six-month time limitations of a § 301 suit by framing his action under a state Code section. Intrinsic to this argument is the notion that federal law preempts a claim for wrongful discharge based on a violation of state public policy.

Both the Ninth and Tenth Circuit Courts of Appeals have held that a suit alleging wrongful termination in violation of state public policy is not preempted by federal labor law, nor are such suits precluded by binding arbitration clauses of the collective bargaining agreements. Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984); Peabody Galion v. Dollar, 666 F.2d 1309 (10th Cir.1981).

In both Garibaldi and Peabody, the plaintiff-employees brought state based wrongful discharge actions after unsuccessfully pursuing the grievance and arbitration procedures of their respective collective bargaining agreements.⁹ By allowing plaintiffs to maintain an independent wrongful discharge action, these courts found that the respective state causes of action did not seek to regulate the employment relationship nor were they in conflict with the National Labor Relations Act (NLRA). Garibaldi, 726 F.2d at 1374-75; Peabody, 666 F.2d at 1316-19. Rather, it was the underlying state statute or public policy that was being enforced. Id.

In short, "state law may protect interests separate from those protected by the NLRA provided the interests do not interfere with the collective bargaining process." Garibaldi, Id. at 1375-76. In Peabody, the Tenth Circuit acknowledged that the legitimate state concern of preventing retaliatory discharges of employees seeking workers' compensation benefits was indeed substantial in that such discharges, if allowed, "would seriously hamper the operation of the Workers' Compensation System." Peabody, Id. at 1319. Similarly, in West Virginia, the wrong to which a wrongful discharge action is aimed is not the act of discharging the employee, but the act of contravening public policy in carrying out the discharge. Shanholtz, 270 S.E.2d at 182.¹⁰

The distinctly separate nature of a claim arising under a collective bargaining contract and that of a tort claim arising from the violation of state public policy led the Ninth and Tenth Circuits to hold that the arbitration procedures of the collective bargaining agreement did not bar a subsequent lawsuit, despite the fact that the plaintiffs initially attempted to seek redress through that same process. Garibaldi, 726 F.2d at 1375-76; Peabody, 666 F.2d at 1320-23.

It is also to be observed that the relief afforded an employee under the collective bargaining agreement is not the same as that available under a wrongful discharge tort action in which the plaintiff may recover not only lost wages but also other compensatory damages and, in cases where the employer's conduct is wanton, willful or malicious, punitive damages may be appropriate as well. Harless v. First Nat'l Bank in Fairmont, 289 S.E.2d 692, 702-03 (W.Va.1982). On the other hand, under the collective bargaining contract, the plaintiff, if he prevailed, would have been entitled to reinstatement and back pay.¹¹

A case ostensibly at odds with the rationale of Garibaldi and Peabody is Lamb v. Briggs Manufacturing, a division of The Celotex Corp., 700 F.2d 1092 (7th Cir.1983), in which the Seventh Circuit held that an employee who alleges that his discharge was in retaliation for the exercise of an Illinois statutory right (i.e., pursuit of workers' compensation benefits) may not maintain a tort action for wrongful discharge if such employee is covered by a collective bargaining agreement which provides, as here, that all discharges must be for just cause. In reaching this conclusion, however, the court based its decision upon controlling state law to the effect that the state tort action applied only to "at will" employees and not to employees covered by a collective bargaining agreement.

Inasmuch as W.Va.Code § 23-5A-1 is not expressly limited to "at will" employees, nor is such a limitation made explicit in either Harless or Shanholtz, the rationale of the Lamb court is inapposite.¹² Moreover, the collective bargaining agreement in this case specifically provided that the arbitrator had no power to rule on matters governed by local, state or federal law,¹³ leading to the conclusion that the parties to the collective bargaining contract did not intend to limit to arbitration alone, disputes arising out of the violation of state law.

In keeping with the rationale of Garibaldi and Peabody, the court concludes that plaintiff can maintain a tort action based upon wrongful discharge in violation of West Virginia's public policy, and that such a claim is not preempted by federal labor law nor barred by the binding arbitration provisions of the collective bargaining agreement. Moreover, because a tort action of wrongful discharge in West Virginia carries a two-year statute of limitations, Shanholtz, supra, the present suit is not time barred inasmuch as it was filed on November 3, 1982, less than two years after the time when the action accrued on July 17, 1981.

Accordingly, it is ORDERED that defendant's motion for summary judgment be, and the same hereby is, denied.

1 W.Va.Code § 23-5A-1 provides:

Discriminatory practices prohibited.

No employer shall discriminate in any manner against any of his present or former employees because of such present or former employee's...