Swears v. R.M. Roach & Sons Inc

Citation225 W.Va. 699,696 S.E.2d 1
Decision Date05 May 2010
Docket NumberNo. 35309.,35309.
CourtSupreme Court of West Virginia
PartiesBarry SWEARS, Plaintiff Below, Appellant,v.R.M. ROACH & SONS, INC., Defendant Below, Appellee.

Syllabus by the Court

1. “A circuit court's entry of summary judgment is reviewed de novo. Syllabus point 1 Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3 Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1 Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syllabus point 2 Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. “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).

4. “When a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract.” Syllabus point 2, Wright v. Standard Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955).

5. “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).

6. “Inherent in the term ‘substantial public policy’ is the concept that the policy will provide specific guidance to a reasonable person.” Syllabus point 3, Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).

7. “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.” Syllabus point 2, Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).

Gregory A. Bailey, Arnold Cesare & Bailey, PLLC, Shepherdstown, WV, for Appellant.

Rochelle L. Brightwell, Pietragallo Gordon Alfano, Bosick & Raspanti, LLP, Weirton, WV, for Appellee.

PER CURIAM:

The plaintiff below and appellant herein, Barry Swears (hereinafter Mr. Swears), appeals from an order entered August 7, 2009, by the Circuit Court of Berkeley County. By that order, the circuit court determined that there is no substantial public policy exception to the at-will employment doctrine for the reporting of perceived criminal misconduct. Accordingly, the lower court granted the summary judgment motion of the defendant below and appellee herein, R.M. Roach & Sons, Inc. (hereinafter R.M. Roach or “company”). On appeal, Mr. Swears urges this Court to adopt an exception to the at-will employment doctrine and, further, to find that he was wrongfully terminated in retaliation for reporting alleged criminal misconduct of a principal of R.M. Roach. Based on the parties' arguments,1 the record designated for our consideration, and the pertinent authorities, we affirm the rulings made by the circuit court.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Swears began employment with R.M. Roach in June 2002. On June 7, 2002, Mr. Swears signed a document acknowledging that “my employment with Roach Oil is for no definite period and may ... be terminated at any time, with or without cause, and with or without notice.... I understand and agree that the nature of the relationship between Roach Oil and myself is ‘at will[.] As Controller of R.M. Roach, Mr. Swears' job duties included oversight of the company's daily finances.

The company is a heating fuel provider, which is principally owned by three brothers: Stanley, Steven, and D. Scott Roach.2 Steven Roach (hereinafter “Mr. Roach”) was Mr. Swears' direct supervisor. In addition to his position as a one-third owner in R.M. Roach, Mr. Roach also created and operates a separate business, Sunfire Patio & Spa (hereinafter “Sunfire”). As the Controller for R.M. Roach, Mr. Swears believed that Mr. Roach's separate side business created a conflict of interest with R.M. Roach. Further, he perceived that Sunfire was improperly using R.M. Roach's employees while they were being paid by R.M. Roach. Mr. Swears alleged that Sunfire had approximately $15,000 worth of R.M. Roach's inventory in its possession, and that Sunfire was responsible for a $150,000 decline in R.M. Roach's revenue. Mr. Swears also contended that Mr. Roach improperly altered R.M. Roach's financial records to remove a $1,500 finance charge owed by Sunfire to R.M. Roach.3

Based upon his belief that Mr. Roach had committed serious fiscal misconduct, Mr. Swears reported his findings to the other two main principals of R.M. Roach.4 Mr. Swears alleges that Mr. Roach then engaged in a course of retaliatory treatment against him in an effort to force him to resign. Mr. Swears' employment was terminated with R.M. Roach on January 31, 2006.5

The instant action was filed by Mr. Swears in the lower court on June 15, 2007, alleging wrongful discharge in violation of public policy arising out of his termination, and, further, asserting a claim for punitive damages. 6 R.M. Roach filed its motion for summary judgment on January 13, 2009, which was granted by order entered August 7, 2009. The circuit court concluded that Mr. Swears was an at-will employee and that no substantial public policy existed in his case that would warrant an exception to the at-will employment relationship. In reaching its determination, the lower court's order explained as follows:

The only allegations regarding any alleged public policy that [Mr. Swears] has set forth in support of his claim for wrongful termination do not involve any substantial public policy. As set forth above, [Mr. Swears] claims he was terminated in retaliation for his report that Steve Roach was engaging in alleged “improper conduct detrimental to the company” and conduct “in breach of Mr. Roach's fiduciary duties owed to the company and that amounted to misappropriation of company funds” in alleged violation of state statutory and common law. He further claims that his termination “violated substantial public policy principles governing fiduciary relationships, misappropriation of funds and corporate requirements and standards.”

As evidenced by the allegations of the Complaint itself, [Mr. Swears'] action against [R.M. Roach] does not involve a claimed violation of any public policy or anything that may be injurious to the public good, but merely an alleged violation of the financial interests of a private corporation.

Accordingly, the lower court found no public policy exception to the at-will employment doctrine and granted R.M. Roach's summary judgment request. Mr. Swears now appeals to this Court.

II.STANDARD OF REVIEW

This case arises as a result of the circuit court's order granting summary judgment in favor of R.M. Roach. In this regard, we have stated that [a] circuit court's entry of summary judgment is reviewed de novo. Syl. pt. 1 Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Thus, in undertaking our de novo review, we apply the same standard for granting summary judgment that is applied by the circuit court:

‘A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

Syl. pt. 2, Painter, 192 W.Va. 189, 451 S.E.2d 755. Moreover,

[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

Syl. pt. 4, Painter, id. We are also mindful that [t]he circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. pt. 3, Painter, id. Of particular import to this case, [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.” Syl. pt. 1, Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325 S.E.2d 111 (1984). Mindful of these applicable standards, we now consider the substantive issue raised by Mr. Swears.

III.DISCUSSION

On appeal to this Court, the issue is whether an employee's reporting of alleged criminal conduct committed by a principal of a private company amounts to a substantial public policy exception to the at-will employment doctrine, providing a basis for a wrongful discharge action. In response, R.M. Roach contends that Mr. Swears was an at-will employee and failed to show that his termination violated any substantial public policy.

In resolving the current case, this Court must determine whether reporting potentially criminal conduct to a private employer is a substantial public policy exception to the at-will employment doctrine. 7 In West Virginia, it has been a long-established rule that [w]hen a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract.” Syl. pt. 2 Wright v. Standard Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955). Thus, “an at-will employee serves at the will...

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