Mounts v. Corbin, Ltd.

• Decision Date: 16 August 1991
• Docket Number: Civ. A. No. 3:90-0838.
• Citation: 771 F. Supp. 145
• Parties: Deborah L. MOUNTS, Plaintiff, v. CORBIN, LTD., Defendant.
• Court: U.S. District Court — Southern District of West Virginia

771 F. Supp. 145

Deborah L. MOUNTS, Plaintiff, v. CORBIN, LTD., Defendant.

Civ. A. No. 3:90-0838.

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

August 16, 1991.

James Allen Colburn, Huntington, W.Va., for plaintiff.

Ricklin Brown, Bowles, McDavid, Graff, Love & Wise, Charleston, W.Va., for defendant.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending before the Court is the motion of Defendant Corbin, Ltd. (Corbin) to dismiss this action pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, or in the alternative for summary judgment pursuant to Rule 56. A responsive memorandum of law has been submitted by Plaintiff, Deborah L. Mounts (Mounts), to which Corbin has replied. Accordingly, this matter is ripe for the Court's attention.

Corbin employed Mounts from August 29, 1988, until January 11, 1990. Mounts first worked as a "corner girl" and then as a supervisor. Corbin asserts that Mounts began to miss work with increasing frequency and that her absenteeism eventually became excessive. Corbin also contends that Mounts was given at least three warnings about her absenteeism before she was terminated. for excessive absenteeism. In affidavits submitted with her memorandum in response to Corbin's motion, Mounts denies she was warned about excessive absenteeism or that her discharge was due to absenteeism.

In her complaint, Mounts asserts that her termination was wrongful in the following respects:

"(a) It was a retaliatory discharge under W.Va.Code, § 23-5A-1 in that she was terminated because of her being off work due to illness.¹

(b) It was violative of federal and state due process, as well as the internal rules and regulations governing employees at Corbin, Ltd.

(c) It was a wrongful discharge under West Virginia law."

With its motion to dismiss Corbin has submitted an affidavit and other exhibits and attachments. As Mounts correctly notes, if on a Rule 12(b)(6) motion, matters outside the pleadings are presented to the Court "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Accordingly, the Court will consider Corbin's motion as a motion for summary judgment pursuant to Rule 56.

Rule 56(c) authorizes a summary judgment if

"The pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ..."

Mounts simplifies the disposition of this motion by listing those issues of fact which she believes are material and in dispute. Of the eight factual issues stated by Mounts, the Court concludes the following issues to be material:

"(1) Whether Mounts was an employee at-will or whether she had an implied contract of employment with Corbin due to the terms of Corbin's Administrative Employee Handbook.

(2) Whether Corbin warned Mounts about her excessive absenteeism.

(3) Whether all of Mounts' absences on account of illness were excusable under the Administrative Employee Handbook.

(4) Whether Corbin terminated Mounts because of absenteeism or whether Mounts was discharged in violation of W.Va.Code, § 23-5A-1."

I.

West Virginia is an "at-will" jurisdiction. Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955). Generally when private employment is "at will" an employee may quit for any reason and an employer, likewise, may discharge an employee for any reason or no reason, so long as the firing does not violate some substantial public policy. Murray v. Kaiser Aluminum & Chemical Corp., 591 F.Supp. 1550 (S.D.W.Va.1984). The status of at-will employment, however, may be contractually modified. Bell v. South Penn Natural Gas Co., 135 W.Va. 25, 62 S.E.2d 285 (1950). Generally, the existence of a contract is a question of fact for the jury. Hallauer v. Fire Association, 83 W.Va. 401, 98 S.E. 441 (1919). A court may be justified, however, in removing the issue from the jury's consideration where a prima facie case is lacking. Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964); Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979).

In Cook v. Heck's, Inc., ___ W.Va. ___, 342 S.E.2d 453 (1986), the Supreme Court of Appeals held that:

"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 ... thus 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 specific reasons ... The inclusion in the handbook of specified discipline for violations of particulars rules accompanied by a statement that the disciplinary rules constitute a complete list is prima facie evidence of an offer for a unilateral contract of employment modifying the right of the employer to discharge without cause." (Emphasis supplied).

Cook v. Heck's, Inc., supra, 342 S.E.2d at 459. The decision cautioned that "no unilateral contract arises merely by the fact that the employer has alerted its employees that certain conduct may form the basis of a discharge." Id. citing with approval Ruch v. Strawbridge and Clothier, Inc., 567 F.Supp. 1078 (E.D.Pa.1983) (applying Pennsylvania law).

The employment application which Mounts completed when she applied for her job with Corbin contained a clause immediately preceding her signature which stated as follows:

"If employed, I will follow the policies of Corbin, Ltd. and understand that my employment and compensation can be terminated with or without cause, or with or without notice at any time at my option or the option of the company."

Also, page 16 of the Handbook states that: "Activities such as, but not limited to, the following must be avoided as they are grounds for disciplinary action including discharge without progressive discipline." The Handbook then goes on to list thirty specific activities which constitute grounds for disciplinary action. Clearly, the words "such as, but not limited to, the following" show that the list of prohibited activities is not all inclusive. Also, on page 18 of the manual under the heading "Disciplinary Procedures" it states:

"In many cases, an employee will receive progressive discipline intended to correct the problem before termination becomes necessary. These procedures are generally taken in instances of poor attendance, poor quality, excessive errors or poor performance, although not limited to these situations. The company reserves the right to discharge any employee without prior notice should an offense be a serious one."

The Court concludes that this manual, at the most, merely alerts its employees of certain conduct which may form the basis of discharge along with certain disciplinary actions which may or may not be taken as a result of such conduct. Whatever predictions, if any, this manual makes to Corbin's employees, it falls far short of making a definite promise not to discharge the employee except for cause.

Very recently the Supreme Court of Appeals of West Virginia revisited the Cook v. Heck's rulings and held:

"An employer may protect itself from being bound by statements made in an employee handbook by having each prospective employee acknowledge in his employment application that the employment is for no definite period and by providing in the employment handbook that the handbook's provisions are not exclusive."

Syl. pt. 4, Suter v. Harsco Corp., ___ W.Va. ___, 403 S.E.2d 751 (1991). This holding applies strongly in support of Corbin's position considering the wording of the disclaimer on the employment application and the highlighted language of the handbook.

Mounts also has failed to submit any other evidence which would indicate...