Roberts v. Adkins

• Decision Date: 23 May 1994
• Docket Number: No. 21805,21805
• Citation: 191 W.Va. 215,444 S.E.2d 725
• Court: West Virginia Supreme Court
• Parties: , 128 Lab.Cas. P 57,730, 9 IER Cases 1219 Gary ROBERTS and Jean Ann Roberts, Plaintiffs Below, Appellants, v. Leland ADKINS and Leland Adkins, D/B/A L. Adkins Oil, Defendants Below, Appellees.

Page 725

444 S.E.2d 725

191 W.Va. 215, 128 Lab.Cas. P 57,730,

9 IER Cases 1219

Gary ROBERTS and Jean Ann Roberts, Plaintiffs Below, Appellants, v. Leland ADKINS and Leland Adkins, D/B/A L. Adkins Oil Defendants Below, Appellees.

No. 21805.

Supreme Court of Appeals of West Virginia.

Submitted March 8, 1994.

Decided May 23, 1994.

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." Syllabus, Harless v. First Nat'l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).

2. "To 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).

3. "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 v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).

4. A cause of action for wrongful discharge may exist under West Virginia Code § 21-5-5 (1989), for the retaliatory discharge of an employee because of the employee's purchase of goods from a competitor of a separate and distinct business owned by the employer, where the employee did not work for the employer's separate and distinct business and, where the purchased goods were in no way related to or within the scope of the employment.

William Talbott, Webster Springs, for appellants.

Ernest V. Morton, Jr., Webster Springs, for appellees.

WORKMAN, Justice:

This case is before the Court upon the appeal of Gary Roberts and Jean Ann Roberts from the November 6, 1992, final order of the Circuit Court of Nicholas County, which denied the Appellants' motion to reconsider the circuit court's previous order granting a motion to dismiss brought by the Appellees, Leland Adkins and Leland Adkins, d/b/a L. Adkins Oil. The Appellants' sole assignment of error is that the trial court erred in ruling that an employer who fires his employee because the employee purchased in open commerce a product from his employer's competitor is not, as a matter of law, a retaliatory discharge, since such a firing neither violates public policy nor contravenes any legal right of the employee. Based on a review of the parties' briefs, arguments, and all other matters submitted before this Court, we find that a cause of action for wrongful discharge may exist pursuant to West Virginia Code § 21-5-5 (1989) based on the facts as alleged. ¹ Therefore, the Appellees' motion to dismiss was improperly granted by the lower court and accordingly, we reverse and remand for further proceedings.

I.

The Appellants were employees of Adkins Oil Company. The Appellee, Leland "Pete" Adkins, was the major stockholder of Adkins Oil and also the owner of Adkins Chevrolet. In late January 1989, the Appellants went to Adkins Chevrolet to purchase a used car for their son. The Appellants allege that they were told by Stanley Adkins, a sales representative of the dealership, that they could purchase a used Pontiac Sunbird from Adkins Chevrolet for $4,500. Later, Doug Adkins, also a sales representative of the dealership, informed Appellant Gary Roberts that the purchase price of the car was $5,600. ²

Approximately one week later, in early February 1989, the Appellants purchased a Chevrolet Corsica from Hewitt Motors, a competitor of Adkins Chevrolet. ³ Approximately four days later, the Appellants allege that Appellee Pete Adkins dismissed both Appellants from their employment. According to the Appellants, Mr. Adkins indicated to them that they had been disloyal in purchasing a vehicle from a competitor. Even the Appellee admitted in answering the Appellants' interrogatories that "[t]he defendant Leland 'Pete' Adkins did comment to plaintiff Gary Roberts that plaintiffs did not give Adkins Chevrolet an opportunity to quote a price on a Corsica and that he, defendant, did not like plaintiffs making the Adkins dealership look bad." While the Appellants contend that they were fired, the Appellees contend that they voluntarily quit their employment. ⁴

The Appellants instituted a wrongful discharge action, maintaining that their discharge was retaliatory, outrageous, and a violation of their rights to freely engage in competitive commercial transactions. The Appellees subsequently filed a motion to dismiss pursuant to West Virginia Rule of Civil Procedure 12(b)(6), alleging that the Appellants' complaint failed to state a cause of action. The circuit court granted the Appellees' motion at a March 30, 1992, hearing stating that,

The long and the short of it is this: Although I don't admire the action--and I have to assume that the plaintiffs were discharged as a result of the fact that they had bought a car from Hewitt Motors instead of Adkins Chevrolet. I don't admire that.

I have searched the records up one side and down the other, and the case law up one side and down the other, and I find no statutory or constitutional safeguard against this.

....

... I had to make a legal determination whether this action by the defendant is truth (sic) and constituted a true violation of the plaintiffs' rights, I came to the conclusion rather reluctantly that it did not.

It is this ruling which forms the basis of the present appeal.

II.

The issue is whether a cause of action for wrongful discharge exists where an employer fires his employee because the employee purchased a product from the employer's competitor. The resolution of this issue necessarily depends upon whether such a firing constitutes a violation of a substantial public policy. See Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978). The Appellants argue that the following substantial public policies were violated by their termination of employment: 1) a liberty interest was infringed upon when their employer restrained their right to deal with someone other than the employer for purchases; 2) the provisions of West Virginia Code § 21-5-5, as well as West Virginia Code § 47-18-4 (1992) ⁵ were contravened through an employer requiring his employees to purchase merchandise sold by the employer from the employer and not a competitor of the employer; and 3) the employees' right to privacy was violated when their employer undertook such a firing, since they were effectively prohibited from purchasing goods in open commerce from their choice of businesses. ⁶ In contrast, the Appellees argue that no law exists in the public policy of this state to uphold a cause of action for retaliatory discharge under the facts alleged by the Appellants.

The seminal case in West Virginia concerning whether an employer can properly terminate an at will employee in Harless. See 162 W.Va. at 116, 246 S.E.2d at 270. In Harless, the plaintiff alleged that he was discharged from his employment at a bank because he brought to the attention of his superiors that the bank " 'had intentionally and illegally overcharged customers on prepayment of their installment loans and unintentionally did not make proper rebates.' " Id. at 118, 246 S.E.2d at 272. This Court held that

[t]he 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.

Id. at 116, 246 S.E.2d at 271, syllabus. We concluded in Harless that a substantial public policy would be frustrated if an employee was terminated because of his efforts to ensure that his employer complied with the West Virginia Consumer Credit and Protection Act and was denied a cause of action for his discharge. See id. at 125-26, 246 S.E.2d at 275-76.

Under the principles enunciated in Harless, this Court has subsequently recognized numerous causes of action for the wrongful termination of at will employees due to a violation of a substantial public policy. See Lilly v. Overnight Transp. Co., 188 W.Va. 538, 425 S.E.2d 214 (1992) (recognizing that statutes regulating brakes, making it a misdemeanor to drive an unsafe vehicle, and providing for promulgation of safety rules and regulations applicable to motor vehicles may establish cause of action for wrongful termination, where employee is discharged from employment for refusing to operate motor vehicle with unsafe brakes); Mace v. Charleston Area Medical Ctr. Found., Inc, 188 W.Va. 57, 422 S.E.2d 624 (1992) (upholding jury finding that employee was terminated in retaliation for exercising rights under Veterans Reemployment Rights Act, rather than for employee's refusal to submit to drug screening test); Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991) (upholding jury finding that employee was terminated in retaliation for filing workers' compensation claim); Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990) (holding contrary to public policy for employer to require employee drug testing unless based upon reasonable suspicion of employee's drug usage or when employee's job responsibility involves public safety or safety to others); Collins v. Elkay Mining Co., 179 W.Va. 549, 371 S.E.2d 46 (1988) (recognizing cause of action for retaliatory discharge where employee was terminated for refusing to falsify safety reports concerning safety inspection at employee's plant in violation of West Virginia Mine Safety Act); McClung v. Marion County Comm'n, 178 W.Va. 444, 360 S.E.2d 221 (1987) (recognizing that...