Slack v. Kanawha County Housing and Redevelopment Authority

Decision Date09 July 1992
Docket NumberNo. 20725,20725
CourtWest Virginia Supreme Court
Parties, 127 Lab.Cas. P 57,611, 8 IER Cases 74 Sara W. SLACK, Plaintiff Below, Appellant, v. KANAWHA COUNTY HOUSING AND REDEVELOPMENT AUTHORITY, a Corporation; Frank Vinson; Carl Smith; James Schwartz, Defendants Below, Kanawha County Housing and Redevelopment Authority, a Corporation; Frank Vinson; Carl Smith, Appellees.

1. Invasion of privacy is a personal action that does not survive the death of the individual at common law or under W.Va.Code, 55-7-8a(a) (1959). Consequently, a claim for invasion of privacy is governed by the one-year statute of limitations provided by W.Va.Code, 55-2-12(c) (1959).

2. The discovery rule is applicable to a plaintiff's claim for the tort of invasion of privacy.

3. In actions where the discovery rule applies, the statute of limitations does not begin to run until the plaintiff knows, or by the exercise of reasonable diligence should know, that he has been injured and the identity of the person or persons responsible.

4. A constructive discharge cause of action arises when the employee claims that because of age, race, sexual, or other unlawful discrimination, the employer has created a hostile working climate which was so intolerable that the employee was forced to leave his or her employment.

5. Where a constructive discharge is claimed by an employee in a retaliatory discharge case, the employee must prove sufficient facts to establish the retaliatory discharge. In addition, the employee must prove that the intolerable conditions that caused the employee to quit were created by the employer and were related to those facts that gave rise to the retaliatory discharge.

6. In order to prove a constructive discharge, a plaintiff must establish that working conditions created by or known to the employer were so intolerable that a reasonable person would be compelled to quit. It is not necessary, however, that a plaintiff prove that the employer's actions were taken with a specific intent to cause the plaintiff to quit.

P. Rodney Jackson, Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for appellant.

Daniel R. Schuda, Steptoe & Johnson, Charleston, for appellee Kanawha County Housing and Redevelopment Authority.

David P. Cleek, Cleek, Pullin & Bibb, Charleston, for appellee Frank Vinson.

MILLER, Justice:

This is an appeal 1 from a final judgment of the Circuit Court of Kanawha County in a civil action brought by the plaintiff below, Sara W. Slack, involving claims of invasion of privacy, retaliatory discharge, and civil conspiracy. The plaintiff asserts that the trial court erred in setting aside the $60,000 jury verdict in her favor and in entering judgment notwithstanding the verdict in favor of defendant Frank Vinson on the invasion of privacy claim. She also contends that the trial court erred in not granting her a new trial on the retaliatory discharge and conspiracy claims. For the reasons hereinafter set forth, we reinstate the $60,000 verdict on the invasion of privacy claim and award the plaintiff a new trial on the retaliatory discharge and civil conspiracy claims.

I.

Plaintiff began working for the Kanawha County Housing and Redevelopment Authority (the Authority) in August of 1983. The Authority is a public corporation set up as a conduit for federal funds to be used to provide safe, clean housing to persons who qualify under guidelines of the federal Department of Housing and Urban Development (HUD). In April of 1984, the plaintiff was made the manager of a program, known as the Section 8 Program, designed to provide for the rehabilitation of existing housing for rental by low-income persons. During this period, defendant Frank Vinson was the Executive Director of the Authority.

In the summer of 1985, the plaintiff became aware that Mr. Vinson owned an interest in a private company which managed certain properties which were subsidized by Authority funds. When the plaintiff confronted Mr. Vinson with this information and expressed concern about a possible conflict of interest, she was told to mind her own business. The plaintiff also expressed her concerns to several members of the Authority's board of directors. As a result of information supplied by the plaintiff, the Authority fired Mr. Vinson on November 4, 1985. The plaintiff was named Interim Executive Director of the Authority. The plaintiff subsequently approached the United States Attorney's office, and, as a result, Mr. Vinson was indicted on criminal charges in federal district court.

Shortly before Mr. Vinson was fired, the plaintiff became suspicious that other persons were overhearing conversations which took place in her office behind closed doors. Over the next several months, the plaintiff confided to several of the Authority's board members that she felt "the walls had ears" and asked to have her office "swept" for electronic listening devices. The plaintiff In September of 1986, the plaintiff returned to her duties as Section 8 Program Manager. In August of 1987, she took a month of sick leave. While the plaintiff was on leave, Mike Edds was appointed Executive Director of the Authority. Just before the plaintiff was to return to work, she was advised by Mr. Edds that she was being transferred to the position of Public Housing Manager. The plaintiff returned to work on September 1 or 2, 1987. Sometime thereafter, the plaintiff advised Mr. Edds of her displeasure with the transfer and asked to be allowed to express her concerns to the board of directors. Mr. Edds refused to allow the plaintiff to appear before the board, but advised them of her concerns at a board meeting on September 17, 1987. After the board meeting, Mr. Edds advised the plaintiff that the board of directors had approved the transfer. On September 18, 1987, the plaintiff tendered her letter of resignation.

[188 W.Va. 147] was told that she was being "paranoid," and her request was refused.

In 1989, federal investigators discovered a listening device, still operational, concealed in the ceiling of the plaintiff's office. At his trial in federal court, Mr. Vinson subsequently testified that he had placed the device there in late October of 1985. Mr. Vinson further testified that he had recruited one of the janitors in the building to bring him the trash from the plaintiff's office every evening.

On September 15, 1989, the plaintiff instituted a civil suit against the Authority, Mr. Vinson, and others for invasion of privacy, civil conspiracy, and retaliatory discharge based on her claim that her transfer was a result of her "whistleblower" activities. 2 Trial commenced before a jury in the Circuit Court of Kanawha County on January 29, 1991. On February 11, 1991, the jury returned a verdict in favor of the plaintiff and against Mr. Vinson on the invasion of privacy claim and awarded the plaintiff damages in the amount of $60,000. The jury found for the defendants on the retaliatory discharge and civil conspiracy claims.

By order dated April 25, 1991, the trial court denied the plaintiff's motion for a new trial. The court subsequently, in an order dated June 26, 1991, set aside the verdict on the invasion of privacy claim on the ground that the statute of limitations had lapsed. The court also entered judgment notwithstanding the verdict in favor of Mr. Vinson with respect to half of the damage award on the ground of insufficient evidence. It is from these rulings that the plaintiff now appeals.

II.

INVASION OF PRIVACY

A.

The plaintiff's first assignment of error concerns the trial court's ruling on the statute of limitations in the invasion of privacy claim. 3 At trial, the court submitted to the jury, over the plaintiff's objection, a special interrogatory asking them to determine when the plaintiff knew or reasonably should have known that a listening device was present in her office. 4 The jury answered The applicable statute of limitations is determined by reference to W.Va.Code, 55-2-12 (1959), which provides, in pertinent part:

                [188 W.Va. 148]  "Early Nov. 1985."   In reliance on this response, the circuit court ruled that the plaintiff's claim for invasion of privacy was barred by the statute of limitations and set aside the verdict
                

"Every personal action for which no limitation is otherwise prescribed shall be brought: ... (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative."

In Snodgrass v. Sisson's Mobile Homes Sales, Inc., 161 W.Va. 588, 244 S.E.2d 321 (1978), we recognized that this provision must be read in pari materia with W.Va.Code, 55-7-8a(a) (1959), which specifies that "[i]n addition to the causes of action which survive at common law, causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud, also shall survive" the death of the injured party. Accord Rodgers v. Corporation of Harpers Ferry, 179 W.Va. 637, 371 S.E.2d 358 (1988); Cavendish v. Moffitt, 163 W.Va. 38, 253 S.E.2d 558 (1979). In Snodgrass, we stated:

"By isolating causes of action for fraud and deceit and combining them with personal actions which will survive under W.Va.Code, 55-7-8a(a), it is apparent that the Legislature intended to exclude from statutory survivability under subsection (a) other personal tort actions such as defamation, false arrest and imprisonment, and malicious prosecution. These latter personal actions, lacking statutory survivability and possessing no common law survivability, take a one-year statute of limitations under W.Va.Code, 55-2-12(c...

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