Shanholtz v. Monongahela Power Co., CC914

• Citation: 165 W.Va. 305,270 S.E.2d 178
• Decision Date: 10 July 1980
• Docket Number: No. CC914,CC914
• Parties: , 115 L.R.R.M. (BNA) 4387 Monty SHANHOLTZ v. MONONGAHELA POWER COMPANY.
• Court: West Virginia Supreme Court

Page 178

270 S.E.2d 178

165 W.Va. 305, 115 L.R.R.M. (BNA) 4387

Monty SHANHOLTZ v. MONONGAHELA POWER COMPANY.

No. CC914.

Supreme Court of Appeals of West Virginia.

July 10, 1980.

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

2. It is a contravention of public policy and actionable to discharge an employee because he has filed a workmen's compensation claim against his employer.

3. A statute is presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by its terms or is necessarily implied from the language of the statute.

John F. McCuskey, McCuskey, Martin & Lavender, Bridgeport, for plaintiff.

Herbert G. Underwood, Steptoe & Johnson, Clarksburg, for defendant.

CAPLAN, Justice:

This case is before the Court on certification from the Circuit Court of Harrison County. There, the court granted Monongahela Power Company's motion to dismiss and, upon the motion of the plaintiff, certified its ruling to this Court for decision. Although no issue was made of the fact that the procedure employed below does not conform to the appropriate certification statute, it may be well to point out for further proceedings that certified questions ". . . may, in the discretion of the circuit court . . . and shall, on the joint application of the parties to the suit . . ." be certified to this Court for its decision. W.Va.Code, 1931, 58-5-2, as amended.

The defendant, Monongahela Power Company, moved to dismiss on the ground that the complaint failed to state a cause of action upon which relief could be granted. The court granted the motion and certified the following three questions:

1. Does an employee, under an at-will employment contract, have a cause of action for breach of contract if the employer discharges him in retaliation for filing a workman's compensation claim, as stated in Count I of the plaintiff's complaint, thereby bringing him within the five-year rather than the two-year statute of limitations?

2. Is the cause of action stated in Counts II and III of plaintiff's complaint barred by the two-year statute of limitations?

3. Must West Virginia Code, Chapter 23, Article 5A, Section 1, be given retrospective or prospective application?

The effect of the court's final order was to answer the first question in the negative; the second question in the affirmative; and, the third that the code section would be given prospective application.

On January 27, 1975, the plaintiff was hired by Monongahela Power as a maintenance man at its facility in Harrison County. There was no written contract of employment. During such employment the plaintiff, in January, 1976, was injured when a cart in which he was riding as a passenger, was driven into a door. By reason of this injury, he was awarded temporary benefits under the workmen's compensation law. Later that year, in June, Mr. Shanholtz began to suffer "severe nosebleeds" and, because of the worsening of that condition, was given an eight-week medical leave.

Alleging that his condition was related to his work, the plaintiff, in September, 1976, filed a claim for occupational disease benefits. Subsequent to protest hearings and an appeal to the Workmen's Compensation Appeal Board in 1979, his claim was held to be work related, compensable and chargeable to the power company.

Approximately three weeks after the plaintiff filed his claim for occupational disease benefits, the power company, on October 13, 1976, terminated his employment, effective October 15, 1976. The letter of termination stated that he was "unable to satisfactorily fulfill (his) job requirements."

Mr. Shanholtz, alleging that his discharge was in retaliation for his efforts to obtain workmen's compensation benefits, on August 14, 1979, filed on action against Monongahela Power Company in the Circuit Court of Harrison County. In Count I of his complaint the plaintiff charged that the defendant breached an oral contract of employment by discharging him in retaliation for his attempt to pursue his remedies under the workmen's compensation law. Count II charged that his reputation had been damaged and that he had been greatly humiliated and embarrassed as a direct and proximate result of the power company's negligent, tortious and unlawful termination of his employment. Finally, in Count III the plaintiff charged that the defendant power company breached a statutory duty owed to the plaintiff. That duty is reflected in W.Va. Code, 1931, 23-5A-1, as amended, passed by the 1978 legislature and made effective July 1, 1978. It provides:

No employer shall discriminate in any manner against any of his present or former employees because of such present or former employee's receipt of or attempt to receive benefits under this chapter.

In its answer Monongahela Power, reciting that the plaintiff's complaint was not filed within one or two years following the accrual of his alleged cause of action, pleaded that such action was barred by the applicable statute of limitations. In addition, its answer denied the pertinent allegations of the plaintiff.

Upon consideration of the above pleadings and memoranda submitted by the parties, the court dismissed the plaintiff's complaint. The court held that an oral contract of employment is terminable at will, "although such dismissal may result in a cause of action in tort for retaliatory discharge." The court then held that the complaint must be dismissed because the action was not filed within two years following the accrual of the alleged cause of action. It said: "the tort action for retaliatory discharge is barred by the two-year statute of limitations." Furthermore, the court held the above quoted statute to be perspective in its application.

In order to answer the first certified question, a determination must be made as to whether Count I of the complaint sounds in contract or in tort. An action on an oral contract must be filed within five years next after the right to bring the same shall have accrued. A tort action must be brought within one or two years after the cause of action shall have accrued. See W.Va. Code, 1931, 55-2-6 and 55-2-12, as amended, respectively.

It appears from the record that the plaintiff was discharged from his employment in October, 1976. His action was instituted in August, 1979. Applying the above statutory limitations, if the action was in tort it is barred (55-2-12); if in contract, it may be brought anytime prior to October, 1981.

It is readily conceded that the contract of employment in this case was not in writing and that it was at-will employment. Employment at-will is of indefinite duration and, until Harless v. First National Bank in Fairmont, W.Va., 246 S.E.2d 270 (1978), could be terminated at any time by either party to the contract. Wright v. Standard Ultramarine and Color Company, 141 W.Va. 368, 90 S.E.2d 459 (1955).

In an earlier case the Court said "(u)nder the law governing the relation of master and servant, an employment, unaffected by contractual or statutory provisions to the contrary, may be terminated, with or without cause, at the will of either party." Bell v. South Penn Natural Gas Company, 135 W.Va. 25, 62 S.E.2d 285 (1950). See also 56 C.J.S. Master and Servant, § 31.

Lending a more realistic approach to this issue, the Court, in Harless, supra, tempered the above quoted rule in the following language:

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

In that case Harless was an at-will employee when he was discharged. He thereafter brought an action against the bank complaining that his discharge was in retaliation for his efforts to bring to the attention of and require the bank to operate in compliance with state and federal consumer credit and protection laws. He alleged that the bank's conduct leading to his discharge was intentional, malicious and outrageous causing him severe emotional distress. There, the court granted a motion to dismiss and certified its ruling here.

This Court, in footnote 5 of Harless, said: "Since this case is before us on a certified question solely on the issue of whether a cause of action exists, we do not reach the issue of the element of damages except to say the cause of action is one in tort and it therefore follows that rules relating to tort damages would be applicable." Although this statement appears to be dictum, it nevertheless shows the inclination of the Court to hold that such action sounds in tort. We now confer upon that inclination the status of a holding, thereby declaring that any cause of action this plaintiff had was in tort and that the statute of limitations embodied in W.Va. Code, 1931, 55-2-12, as amended, is applicable.

In so holding we are not unaware of Cochran v. Appalachian Power Company, W.Va., 246 S.E.2d 624 (1978), wherein the Court said:

A complaint that could be...