Travis v. Alcon Laboratories, Inc., 24207.

CourtSupreme Court of West Virginia
Citation504 S.E.2d 419,202 W.Va. 369
Docket NumberNo. 24207.,24207.
PartiesCharles TRAVIS, Plaintiff below, v. ALCON LABORATORIES, INC., Defendant below.
Decision Date21 May 1998

Joseph M. Farrell, Jr., Farrell, Farrell, and Farrell, Huntington, for Plaintiff.

Charles M. Surber, Jr., Erin Magee Condaras, Jackson and Kelly, Charleston, for Defendant. STARCHER, Justice:

This case is before this Court upon four certified questions1 from the United States District Court for the Southern District of West Virginia at Huntington. The plaintiff in the federal court lawsuit, Charles Travis, alleges that he was constructively discharged2 from his job with the defendant, Alcon Laboratories, Inc. ("Alcon"). The plaintiff claims that the termination was caused by the intentional or reckless infliction of emotional distress by outrageous conduct by the plaintiff's supervisor. The plaintiff also claims that defendant Alcon knew of the supervisor's conduct, but failed to remedy the situation.

The questions from the District Court concern the elements of a cause of action for intentional or reckless infliction of emotional distress by outrageous conduct, and whether an employer may be held liable for a supervisor's outrageous conduct towards a subordinate employee. We are also asked to determine when the statute of limitation begins to run for an action against an employer for the intentional or reckless infliction of emotional distress. Lastly, we are asked whether the West Virginia Human Rights Act, W.Va.Code, 5-11-1 to -19, forms the basis for establishing a public policy protecting all persons from harassing conduct, for purposes of West Virginia wrongful discharge law.

I. Factual Background

The plaintiff was employed by defendant Alcon (and its predecessor) from 1981 until 1994. The plaintiff was hired in 1981 by Cilco, a corporate predecessor of defendant Alcon, as a machine repairman. Between 1981 and 1986, the plaintiff's work was overseen by Jim Richards ("Richards"), the facility maintenance supervisor.3

In 1986, Richards was laid off by Cilco and the plaintiff was appointed as the acting facility maintenance supervisor. He was promoted to that position permanently in 1987. As the facility maintenance supervisor, the plaintiff was responsible for keeping the plant clean and functioning, and for supervising a staff of six mechanics and six custodians.

In 1990 defendant Alcon purchased the Cilco facility. At that time Richards was rehired by Alcon, and Richards again became the plaintiff's supervisor. The plaintiff, however, retained his position as facility maintenance supervisor.

The plaintiff alleges that at some point in 1990, Richards told the plaintiff that he blamed the plaintiff for being at least partly responsible for Richards' termination in 1986. Richards allegedly told the plaintiff that he would "get even" for his 1986 layoff. The plaintiff claims that he tried unsuccessfully to convince Richards that he had nothing to do with Richards being laid off.

The plaintiff contends that after Richards' 1990 rehiring, Richards would often countermand the job assignments that the plaintiff gave to his staff. Richards allegedly would also often criticize and belittle the plaintiff in an angry tone of voice in front of other employees using abusive and profane language. The plaintiff (and other employees) complained to upper management that Richards treated them in a demeaning manner.

The plaintiff alleges that he spoke with Sandra Sexton (the human resources director for defendant Alcon) and Ralph Stearman (the supervisor of both the plaintiff and Richards) several times in an effort to get them to put a stop to what the plaintiff considered to be Richards' harassment. In his conversations with Ms. Sexton, the plaintiff would become emotionally upset and cry. Ms. Sexton testified in a deposition that she considered Richards to be "uncooperative, defensive and argumentative," and that Richards' demeaning treatment of subordinates was his typical style of management.

The record suggests that Ms. Sexton also spoke with Mr. Stearman three or four times regarding Richards' conduct; Mr. Stearman's response was to tell Richards to approach people differently, by getting them isolated and behind closed doors before reprimanding them, rather than doing so in public and in front of other employees. A memo in the plaintiff's file written by Richards records one such conversation with Mr. Stearman, and states, "I was told by Ralph [Stearman] to very gently get [plaintiff] Travis behind closed doors and chew his ass good." The plaintiff alleges Richards frequently "chewed him out" because of Richards' purported dissatisfaction with the plaintiff's job performance. No disciplinary or corrective action was ever taken by defendant Alcon against Richards.

In 1993, Richards assumed direct supervision of the mechanics at the plant, including the mechanics under the plaintiff's control. The plaintiff told Stearman that he could not tolerate Richards' conduct any longer, and asked to be put under someone else's supervision. The plaintiff was placed under the supervision of Joseph Bragg in January 1994, and it was the plaintiff's opinion that things improved dramatically.

When the plaintiff returned from a vacation in April 1994, he learned that he had once again been placed under Richards' supervision. In addition, Richards had assumed direct control of the custodial staff, leaving the plaintiff with no employees under his supervision. The plaintiff asked Ms. Sexton if there was any way that he could get away from Richards. The plaintiff even offered to take a demotion to any other job in order to get away. Ms. Sexton advised the plaintiff to take another week of vacation to allow her to investigate the possibility of making a change in the situation. However, she was unable to persuade defendant Alcon's managers to make any change. The plaintiff claims that he then asked the general manager for Alcon, Mr. Camp, to intercede—but he refused. The plaintiff then quit his job.

In this action against defendant Alcon, the plaintiff takes the position that Richards intentionally and/or recklessly inflicted emotional distress upon him, in retaliation for the plaintiff's perceived role in Richards' 1986 lay-off. The plaintiff further takes the position that Alcon's upper management did not intervene in the conflict because they, too, wanted to get rid of the plaintiff. The plaintiff contends that Alcon assisted Richards in his abusive techniques, encouraging Richards to abuse the plaintiff behind closed doors rather than in public.4 Conversely, defendant Alcon takes the position that the plaintiff could not competently handle his job, and that he quit because he did not want to do things the way Richards told him. The defendant, in oral argument before this Court, characterized the plaintiff's evidence as merely proof of a personality conflict between Richards and the plaintiff. Richards, in his deposition testimony, denied that he mistreated the plaintiff in any way in an effort to force him to quit his job.

II. Questions Certified by the District Court

The questions certified to this Court by the District Court are as follows:

1. Does a supervisor's repeated behavior toward a particular employee over a four-year period, which is motivated by that supervisor's personal animosity against that employee and which the employee considers creates an intolerable work environment, constitute outrageous conduct if the supervisor's actions consist of (a) criticizing that employee in harsh, abusive, and sometimes profane, language, often while in the presence of other employees; (b) interfering with that employee's supervision of others by countermanding his instructions; (c) threatening to get that employee fired?
2. Would that employee have a cause of action against his employer for the tort of intentional infliction of emotional distress based upon the employer's failure to put a stop to the supervisor's conduct, despite repeated requests by the employee?
3. If the employer may be held so liable, when does the employee's cause of action accrue?
4. Does the supervisor's conduct violate a substantial public policy of the State of West Virginia, particularly as expressed in the Human Rights Act, W.Va.Code § 5-11-2, so as to give rise to a cause of action by the employee against his employer for constructive discharge or retaliatory discharge, even though the employee is not a member of any of the protected groups enumerated in § 5-11-2?
III. Discussion

This Court is empowered to answer any question certified to it from the federal courts or other state appellate courts if the answer may be determinative of an issue in a pending cause in the certifying court, and if there is no controlling appellate decision, constitutional provision or statute of this State. See W.Va.Code, 51-1A-3 [1996]. However, when a certified question is framed so that this Court is not able to fully address the law which is involved in the question, then this Court retains the power to reformulate the questions certified to it under the Uniform Certification of Questions of Law Act, W.Va.Code, 51-1A-1 to -13 [1996]. Syllabus Point 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993).

A. Intentional or Reckless Infliction of Emotional Distress

At the outset we note that the first question certified by the District Court is set forth in a fact-laden manner. Accordingly, to ensure the consistent application of our case law, we believe a simpler question should be answered: What are the elements of a cause of action for the intentional or reckless infliction of emotional distress?

Intentional or reckless infliction of emotional distress, also called the "tort of outrage," is recognized in West Virginia as a separate cause of action. We discussed this cause of action in Syllabus Point 6 of Harless v. First Nat. Bank...

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