Page v. Columbia Natural Resources, Inc.

• Decision Date: 06 December 1996
• Docket Number: No. 23469,23469
• Citation: 480 S.E.2d 817,198 W.Va. 378
• Court: West Virginia Supreme Court
• Parties: , 134 Lab.Cas. P 58,280, 13 IER Cases 944 Jacqueline PAGE, Plaintiff Below, Appellee, v. COLUMBIA NATURAL RESOURCES, INC., and R. Neal Pierce, Defendant Below, Appellants.

Page 817

480 S.E.2d 817

198 W.Va. 378, 134 Lab.Cas. P 58,280,

13 IER Cases 944

Jacqueline PAGE, Plaintiff Below, Appellee, v. COLUMBIA NATURAL RESOURCES, INC., and R. Neal Pierce Defendant Below, Appellants.

No. 23469.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1996.

Decided Dec. 6, 1996.

[198 W.Va. 382] Syllabus by the Court

1. "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." Syllabus point 1, Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984).

2. "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).

3. "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 principle, then the employer may be liable to the employee for damages occasioned by this discharge." Syllabus, Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).

4. It is against substantial public policy of West Virginia to discharge an at-will employee because such employee has given or may be called to give truthful testimony in a legal action.

5. " 'No party may assign as error the giving or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly, as to any given instruction, the matter to which he objects and the grounds of his objection; but the court or any appellate court, may, in the interest of justice, notice plain error in the giving or refusal to give an instruction, whether or not it has been made subject of an objection.' Rule 51, in part, W.Va. RCP." Syllabus point 1, Shia v. Chvasta, 180 W.Va. 510, 377 S.E.2d 644 (1988).

6. "A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal." Syllabus point 1, Maples v. West Virginia Department of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996).

7. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

8. Once the plaintiff in an action for wrongful discharge based upon the contravention of a substantial public policy has established the existence of such policy and established by a preponderance of the evidence that an employment discharge was motivated by an unlawful factor contravening that policy, liability will then be imposed on a defendant unless the defendant proves by a preponderance of the evidence that the same result would have occurred even in the absence of the unlawful motive.

Allan N. Karlin, Allan N. Karlin & Associates, Morgantown, and Benita Whitman, Elkview, for Appellee.

James S. Arnold, Farmer, Cline & Arnold, Charleston, for Appellants.

Robert M. Bastress, Morgantown, for amici.

ALBRIGHT, Justice:

Appellants, Columbia Natural Resources, Inc. ("CNR"), and R. Neal Pierce, CNR General Counsel, appeal ¹ a judgment in favor of Jacqueline Page, a former CNR employee, entered by the Circuit Court of Kanawha County in a Harless wrongful discharge action, wherein Ms. Page alleged that she was discharged in retaliation for deposition testimony she gave with regard to a wrongful discharge action brought by another former CNR employee. Appellants contend that the circuit court erred in finding that there is a substantial public policy against terminating employees because they testify or may testify

[198 W.Va. 383] in a legal proceeding. Appellants further contend, along with various other assignments of error, that the court erred by instructing the jury regarding "mixed-motive" and "pretext" theories of employment discrimination. We find no error. Consequently, the October 25, 1995 order of the Circuit Court of Kanawha County is affirmed.

FACTS

Jacqueline Page was employed as a legal secretary by the Law Department of CNR from May, 1987, through September 5, 1990. During Mrs. Page's employment at CNR, she provided secretarial and clerical services primarily to Bethany Boyd, who was a staff lawyer in the Law Department. Personnel problems involving Mrs. Page, Ms. Boyd and others ultimately developed within the Law Department. Appellant submits that Mrs. Page's performance evaluation during the two years preceding her discharge "showed deficient performance and revealed her problems collaborating with other staff members." Appellee submits that she consistently received good evaluations prior to and after her employment with the CNR Law Department, even for subsequent employment as a legal secretary. Appellee contends that her poor evaluations while employed by the CNR Law Department were the result of being caught in the middle of a conflict between Ms. Boyd and Mr. Neal Pierce, CNR General Counsel. She further contends that her poor evaluations resulted from Mr. Pierce's misperception that she was Ms. Boyd's ally.

Between September 29, 1988, and January 12, 1989, Mrs. Page was twice disciplined for improper conduct and received a "final warning" to comply with CNR and Law Department policy. On January 26, 1989, Mrs. Page received a performance evaluation, which reported poor job performance, and an "Employee Development Plan," which advised that failure to improve her job performance would result in termination. Also on January 26, 1989, Mr. Pierce, who as General Counsel is responsible for the CNR Law Department, scheduled a meeting with Mrs. Page and Ms. Boyd to review certain personnel matters. While the two women waited for Mr. Pierce in his office, they discovered a handwritten note that apparently related to legal employment issues. Mr. Pierce received the note after consulting with another lawyer regarding the handling of employment problems involving Ms. Boyd. Ms. Boyd hand-copied the note, because the women suspected that it pertained to one of them. However, Mrs. Page slipped the note under her legal pad and removed it from Mr. Pierce's office at the conclusion of the meeting.

In a subsequent memo responding to a poor performance evaluation, Ms. Boyd disclosed that she had seen the document and asked what it meant. Ms. Boyd also informed Mr. Pierce that the document had been placed inside a newspaper and left in his office. Appellants allege that because the newspaper had been thrown away, Mr. Pierce took no further action regarding the document.

Ms. Boyd was placed on evaluation status in January, 1989, and was terminated in September, 1989. Around March of 1990, Ms. Boyd filed a lawsuit against CNR, Mr. Pierce, and another CNR employee, arising from her termination. When Ms. Boyd was deposed in June, 1990, in relation to her suit, she revealed that Mrs. Page had taken the note from Mr. Pierce's office and had made Ms. Boyd a copy of it. Subsequently, CNR, Mr. Pierce, and the other Boyd defendant subpoenaed Mrs. Page to give a deposition in the Boyd action. Mrs. Page was deposed on July 25, 1990. During the deposition, Mrs. Page asserted her Fifth Amendment Right with regard to all questions pertaining to the note. In the case sub judice, Mrs. Page testified that Mr. Pierce attended her deposition in the Boyd case and stared at her with an upset and angry look. She also testified that Mr. Pierce was distant toward her on the day following the deposition. Mrs. Page explained that Mr. Pierce looked at her and then turned away, he did not respond when she spoke to him, and he did not acknowledge her when they passed.

According to appellants, after Mrs. Page's refusal to discuss the document during her deposition, Mr. Pierce consulted with various individuals, including John Henning, the Ultimately, Mr. Henning made the decision to discharge Mrs. Page, and Mr. Casto concurred with the decision. Appellants assert that while Mr. Henning and Mr. Casto were apprised that Mrs. Page refused to discuss the missing document, neither of them had knowledge of the contents of Mrs. Page's deposition testimony. However, according to appellee, Mr. Pierce recommended Mrs. Page's termination, and he admitted at trial that his recommendations carried substantial influence. Appellee further contends that neither Mr. Henning nor Mr. Casto appeared to have much knowledge about the missing document and appeared to base their decision to discharge Mrs. Page upon Mr. Pierce's recommendation.

[198 W.Va. 384] president of CNR, and Edison Casto, CNR Human Resources Director, regarding Mrs. Page's activity. Thereafter, by letter dated August 1, 1990, Mr. Pierce suspended Mrs. Page and requested that she reconsider disclosing the facts regarding the disappearance of the document. Mrs. Page responded by filing suit against CNR, seeking to enjoin the termination of her employment on the grounds that she could not be terminated for refusing to discuss the document and for invoking her privilege against self-incrimination. The circuit court refused Mrs. Page's prayer for relief and dismissed the action.

Mr. Pierce informed Mrs. Page of her termination by letter dated September 5, 1990. Mrs. Page subsequently applied for unemployment compensation benefits. She was initially awarded benefits. However, on appeal, the Circuit Court of Kanawha County reversed. The court concluded that Mrs. Page was terminated because she was guilty of gross misconduct.

On September 2, 1992, Mrs. Page filed this suit under the retaliation section of the West Virginia Human Rights Act and under a Harless public policy theory. The lower court ruled against Mrs. Page on...