Tricia Roth v. Defelicecare Inc.

Decision Date08 June 2010
Docket NumberNo. 34805.,34805.
Citation700 S.E.2d 183,226 W.Va. 214
PartiesTricia ROTH and Brian Roth, Plaintiffs Below, Appellants, v. DeFELICECARE, INC., and Leslie DeFelice, Defendants Below, Appellees.
CourtWest Virginia Supreme Court
Dissenting Opinion of Justice Benjamin July 26, 2010.

OPINION TEXT STARTS HERE

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Syllabus by the Court

1. “Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

2. “The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977).

3. “An employee may state a claim for hostile environment sexual harassment if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment.” Syl. Pt. 7, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995).

4. “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 Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).

5. “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).

6. “Even though a discharged at-will employee has no statutory claim for retaliatory discharge under W. Va.Code, 5-11-9(7)(C) [1992] of the West Virginia Human Rights Act because his or her former employer was not employing twelve or more persons within the state at the time the acts giving rise to the alleged unlawful discriminatory practice were committed, as required by W. Va.Code, 5-11-3(d) [1994], the discharged employee may nevertheless maintain a common law claim for retaliatory discharge against the employer based on alleged sex discrimination or sexual harassment because sex discrimination and sexual harassment in employment contravene the public policy of this State articulated in the West Virginia Human Rights Act, W. Va.Code, 5-11-1, et seq.” Syl. Pt. 8, Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997).

7. “It is against substantial public policy of West Virginia to discharge an at-will employee because such employee has given or may be called to give truthful testimony in a legal action.” Syl. Pt. 4, Page v. Columbia Natural Res., 198 W.Va. 378, 480 S.E.2d 817 (1996).

8. “In order to make a prima facie case of [disparate treatment] employment discrimination under the West Virginia Human Rights Act, W. Va.Code § 5-11-1 et seq...., the plaintiff must offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the plaintiff.

(3) But for the plaintiff's protected status, the adverse decision would not have been made.”

Syl. Pt. 3, Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).

9. “In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W. Va.Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant's employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation), (4) that complainant's discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation.” Syl. pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986).’ Syl. pt. 1, Brammer v. Human Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990).” Syl. Pt. 5, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995).

10. ‘Protected activity’ under the West Virginia Human Rights Act includes opposition to a practice that the plaintiff reasonably and in good faith believes violates the provisions of the Act. This standard has both an objective and a subjective element. The employee's opposition must be reasonable in the sense that it must be based on a set of facts and a legal theory that are plausible. Further, the view must be honestly held and be more than a cover for troublemaking. Thus, even if there was no actionable sexual harassment, the plaintiff could still have been engaged in a protected activity if she complained about being sexually harassed.” Syl. Pt. 7, Conrad v. ARA Szabo, 198 W.Va. 362, 480 S.E.2d 801 (1996).

11. “The prevailing rule in distinguishing a wrongful discharge claim from an outrage claim is this: when the employee's distress results from the fact of his discharge-e.g., the embarrassment and financial loss stemming from the plaintiff's firing-rather than from any improper conduct on the part of the employer in effecting the discharge, then no claim for intentional infliction of emotional distress can attach. When, however, the employee's distress results from the outrageous manner by which the employer effected the discharge, the employee may recover under the tort of outrage. In other words, the wrongful discharge action depends solely on the validity of the employer's motivation or reason for the discharge. Therefore, any other conduct that surrounds the dismissal must be weighed to determine whether the employer's manner of effecting the discharge was outrageous.” Syl. Pt. 2, Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994), modified on other grounds as stated in Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997).

Ronald W. Zavolta, Esq., Wheeling, WV, for Appellants.

Bradley K. Shafer, Esq., Ancil G. Ramey, Esq., Steptoe & Johnson, Wheeling, WV, for Appellees.

PER CURIAM:

This case is before the Court upon the appeal of the Order of the Circuit Court of Ohio County, West Virginia, entered on October 16, 2008, dismissing the Complaint filed by the Appellants and Plaintiffs below, Tricia Roth and Brian Roth, against the Appellees and Defendants below, DeFeliceCare, Inc., and Leslie DeFelice, pursuant to West Virginia Rule of Civil Procedure 12(b)(6). The circuit court determined that the Appellants failed to allege any cause of action upon which relief could be granted. The Appellants sole complaint on appeal is that the circuit court erred in granting the Motion to Dismiss filed by the Appellees. Based upon a review of the record, the parties' respective briefs and arguments, as well as all other matters submitted before the Court, we reverse the decision of the circuit court and remand the case for further proceedings.

I. Procedural and Factual Background

This case arises from a Complaint filed by the Appellants on June 6, 2008, against the Appellees in the Circuit Court of Ohio County. In their Complaint, the Appellants alleged that in June of 2006, Plaintiff [Tricia] Roth was directed by Defendant DeFelice to report to work on the weekend prior to Plaintiff Roth commencing her one week vacation.” Other than requesting Mrs. Roth to come into work over the weekend, there was no specific time that she was told to report. The Appellants averred that Mrs. Roth went to DeFeliceCare as directed by Mr. DeFelice. When she entered DeFeliceCare, she “observed Defendant DeFelice and/or Michelle Kelly partially clothed and in a compromised position.” Mrs. Roth “was then directed to a conference room by Defendant DeFelice while Defendant DeFelice and/or Michelle Kelly fully clothed themselves.” According to the allegations, the Defendant DeFelice proceeded to order Plaintiff Roth to forget about what she observed and threatened Plaintiff Roth with the loss of her respiratory therapy license and loss of her employment with Defendant DeFelice Care.” Mrs. Roth told Mr. DeFelice that she would remain silent about her observations.

Mrs. Roth proceeded to go on her vacation and, upon her return, met with the Mr. DeFelice. During this meeting, Mrs. Roth alleges that Mr. DeFelice fired her from her employment with DeFeliceCare. Despite Mrs. Roth informing Mr. DeFelice that she had not told anyone about what she had observed, Mr. DeFelice told her that he was terminating her employment with DeFeliceCare because he did not like how she dressed and he did not like the style[/]color of her hair.” Mrs. Roth was an at-will employee at the time of her termination.

The Appellants filed a Complaint alleging counts of hostile workplace, wrongful termination, employment discrimination, retaliatory discharge, common law reprisal and intentional and/or reckless infliction of emotional distress stemming from her termination from employment with the Appellees as a respiratory therapist. The Appellees responded to the Complaint by filing a Motion to Dismiss pursuant to West Virginia Rule of Civil Procedure 12(b)(6). After a hearing on the motion, the circuit court ruled in favor of the Appellees, dismissing all eight counts in the Appellants' Complaint.

II. Standard of Review

The standard of review applicable to dismissal orders entered pursuant to West Virginia Rule of Civil Procedure 12(b)(6) is that the [a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de...

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