Tolliver v. Kroger Co.

Decision Date21 November 1997
Docket NumberNo. 23940.,23940.
Citation498 S.E.2d 702,201 W.Va. 509
PartiesLinda Sue TOLLIVER and Dana L. Tolliver, Plaintiffs Below, Appellants, v. THE KROGER COMPANY, a corporation conducting business in West Virginia, Terry Lucas, an individual, Philip Helms, an individual and Fred Fenton, an individual, Defendants Below, Appellees.
CourtWest Virginia Supreme Court

Jerry Blair, Huntington, for Appellants.

Edward M. Kowal, Jr., Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for Appellees. DAVIS, Justice:

This is an appeal by Linda Sue Tolliver and Dana L. Tolliver, appellants/plaintiffs, from an order of the Circuit Court of Cabell County granting partial summary judgment to The Kroger Company, Terry Lucas, Philip Helms and Fred Fenton, appellees/defendants in an action alleging intentional infliction of emotional distress and assault and battery. The Tollivers contend that the circuit court erred in ruling that their causes of action required resolution through the grievance process established by a collective bargaining agreement and, therefore, were barred from being litigated in circuit court. The Tollivers further contend that the circuit court erred in ruling, as an alternative, that their causes of action were barred because they failed to properly plead a deliberate intention cause of action against the defendants under W.Va.Code § 23-4-2(c)(2)(i) (1994). We find that the Tollivers' claim for intentional infliction of emotional distress had to be resolved through the grievance process established by the collective bargaining agreement. We further find that the Tollivers' failed to properly plead a deliberate intention cause of action against the defendants pursuant to W.Va.Code § 23-4-2(c)(2)(i). Therefore, we affirm the circuit court's order granting partial summary judgment on those two issues.


Linda Sue Tolliver (Mrs. Tolliver) has been employed by The Kroger Company (Kroger) since 1972. Mrs. Tolliver is a member of the United Food and Commercial Workers Union Local #347 (Union). The Union and Kroger had a collective bargaining agreement (CBA) which governed all employer and employee disputes.1

In 1994, Mrs. Tolliver and her spouse, Dana L. Tolliver,2 filed the instant action against Kroger and three of its store managers, Terry Lucas, Philip Helms and Fred Fenton.3 The complaint alleged Mrs. Tolliver was the victim of age and gender discrimination caused by Kroger and the three other defendants.4 The complaint also alleged that Terry Lucas committed assault and battery against Mrs. Tolliver. Additionally, the complaint asserted that the defendants intentionally inflicted emotional distress upon Mrs. Tolliver.5

The assault and battery allegation grew out of a dispute between Mrs. Tolliver and Terry Lucas. In December of 1992, Mrs. Tolliver was employed as a head deli clerk at a Kroger store in which Mr. Lucas was a manager. It appears that Mr. Lucas became upset upon learning Mrs. Tolliver "failed to make the necessary preparations to fulfill Christmas orders in the deli." Mr. Lucas confronted Mrs. Tolliver over the matter and "a yelling incident occurred." Mrs. Tolliver alleged "that Mr. Lucas followed her to the employee locker room and `got a hold of my arm' and `jerked me' through a door." This one incident formed the basis for the assault and battery claim.

Mrs. Tolliver was suspended for three days as a result of the confrontation with Mr. Lucas. Mrs. Tolliver filed a grievance over her suspension. The suspension was resolved through the CBA grievance procedure. The record is unclear as to whether Mrs. Tolliver also filed a separate grievance involving the alleged assault and battery by Mr. Lucas.

At some point in 1993, Mrs. Tolliver transferred to another Kroger store that was managed by both Mr. Fred Fenton and Mr. Philip Helms. While at this new store Mrs. Tolliver was "demoted" to working at a check-out register. Mrs. Tolliver asserted that Mr. Fenton yelled at her in an abusive and humiliating way on a regular basis and without justification. Mrs. Tolliver also alleges that Mr. Helms ordered Mr. Fenton to watch her while she performed inventories. The job demotion and conduct of Messrs. Fenton and Helms formed the basis of Mrs. Tolliver's claim for intentional infliction of emotional distress. To what extent this conduct was processed through the CBA grievance procedure is unclear from the record.

What is clear from the record is that all employees covered by the CBA had to exhaust the grievance procedure before seeking any other form of redress. Article 5 of the CBA sets forth with specificity the dispute resolution procedure between Kroger and the Union. Article 5 states:

Article 5. Dispute Procedure.


Section 5.11 It is understood and agreed that all employees within the bargaining unit covered by this Agreement must exercise all their rights, privileges, or necessary procedures under this Agreement, International and Local Union Constitution, in the settlement of any and all complaints or grievances filed by such employees before taking any action outside of the scope of this Agreement for the settlement of such grievances.

At the conclusion of discovery, all four defendants moved for summary judgment. The circuit court denied summary judgment on the age and gender discrimination claim. The circuit court ruled, as a matter of law, that the intentional infliction of emotional distress and assault and battery claims were subject to resolution under the collective bargaining agreement. As an alternative basis for granting partial summary judgment, the circuit court ruled that, even if the collective bargaining agreement did not bar the Tollivers' claims, the claims were barred by Mrs. Tolliver's failure to plead exemption from immunity provided to the defendants for their intentional infliction of emotional distress pursuant to the West Virginia Workers' Compensation Act. The Tollivers thereafter brought this appeal from the partial summary judgment order.


We are asked to review the circuit court's award of partial summary judgment in favor of the defendants. We exercise plenary review over a circuit court's decision to grant partial summary judgment. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo.").

We have repeatedly held that under Rule 56(c) of the West Virginia Rules of Civil Procedure, "`"[a] motion for summary judgment should be granted only when it is clear that 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. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). Moreover, we have explained in syllabus point 5 of Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995) that:

Roughly stated, a genuine issue for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed "material" facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.

We are obligated to resolve all reasonable doubts in favor of the non-moving party. For summary judgment to be proper, the movant must show that there is an absence of evidence to support the non-movant's case and a determination that the evidence is so one-sided that the movant must prevail as a matter of law. "These principles apply whether summary judgment is granted on the merits of a claim or on an affirmative defense." Conrad v. ARA Szabo, 198 W.Va. 362, 370, 480 S.E.2d 801, 809 (1996). "Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Payne v. Weston, 195 W.Va. 502, 506, 466 S.E.2d 161, 165 (1995). The basis of summary judgment in this case involves two legal issues: (1) the application of a collective bargaining agreement to intentional tort allegations, and (2) the sufficiency of pleading an intentional tort against an employer. We address both matters below.

A. Section 301 of the Labor Management Relations Act:

Its Application to an Intentional Tort Claim

The parties did not brief or argue the application of Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (1947), to the intentional tort claims.6 This issue, however, is quasi-jurisdictional in nature. We therefore must address the jurisdictional question.7See Syl. Pt. 2, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995) ("Where neither party to an appeal raises, briefs, or argues a jurisdictional question presented, this Court has the inherent power and duty to determine unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking."). This Court stated in Satterfield v. Claypole, 190 W.Va. 384, 387, 438 S.E.2d 564, 567 (1993) that "[c]ollective-bargaining agreements are the principal form of contract between an employer and a labor organization. Individual union members, who are often the beneficiaries of provisions of collective bargaining agreements, may bring suits on these contracts [in federal court] under Sec. 301." See Syl. Pt. 1, Chapple v. Fairmont General Hosp., Inc., 181 W.Va. 755, 384 S.E.2d 366 (1989) ("Although state and federal courts have concurrent...

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