Younker v. Eastern Associated Coal Corp.

• Decision Date: 03 December 2003
• Docket Number: No. 31343.,31343.
• Citation: 591 S.E.2d 254,214 W.Va. 696
• Parties: Forrest A. YOUNKER, Plaintiff Below, Appellee, v. EASTERN ASSOCIATED COAL CORP., Defendant Below, Appellant.
• Court: West Virginia Supreme Court

591 S.E.2d 254

214 W.Va. 696

Forrest A. YOUNKER, Plaintiff Below, Appellee, v. EASTERN ASSOCIATED COAL CORP., Defendant Below, Appellant.

No. 31343.

Supreme Court of Appeals of West Virginia.

Submitted November 5, 2003.

Decided December 3, 2003.

Concurring Opinion of Justice Davis December 5, 2003.

C. David Morrison, Rodney L. Bean, Steptoe & Johnson, PLLC, Herbert G. Underwood, Clarksburg, for Appellant.

James M. Cagle, Charleston, for Appellee.

PER CURIAM.

Eastern Associated Coal Corporation, appellant/defendant below (hereinafter "Eastern"), appeals entry of a final order of the Circuit Court of Boone County, West Virginia, awarding Forrest A. Younker, appellee/plaintiff below (hereinafter "Mr. Younker") $378,549.00 in a breach of contract claim, after having granted Mr. Younker's partial summary judgment on liability, after having tried the damages aspect of the case and after having denied Eastern's motion for summary judgment. Having reviewed the briefs, the pertinent authorities, and hearing oral argument, we reverse the circuit court's award of partial summary judgment to Mr. Younker. We also find that Eastern is entitled to summary judgment on the breach of contract claim and thus reverse the circuit court's failure to award summary judgment to Eastern.

I. FACTUAL AND PROCEDURAL HISTORY¹

Mr. Younker is a mining engineer who began working for Peabody Holding Company (hereinafter "Peabody") in 1971. In 1987, Peabody purchased Eastern, making it a wholly owned subsidiary. In 1988, Mr. Younker transferred from Kentucky to West Virginia as Eastern's Vice-President of Operations.

On November 16, 1992, Mr. Younker was visited at his home by a federal Internal Revenue Service agent and a West Virginia State Police Trooper, working for the federal government. These agents interviewed him concerning any knowledge he had of coalfield corruption, the subject of a federal probe. During this interview, Mr. Younker admitted to having had a sexual encounter with Donna Adkins (hereinafter "Ms. Adkins"). Mr. Younker denied that he knew that Ms. Adkins had been paid to have sex with him by Abbs Valley, a vendor doing business with Eastern.

On the morning of November 19, 1992, Mr. Younker spoke with Eastern's in-house counsel, Thomas Gallagher (hereinafter "Mr. Gallagher"), about the November 16 interview. Mr. Younker told Mr. Gallagher, "You know, Tom, I'm not much of a churchgoer. And we all do things in our lives which sometimes we're ashamed of and regret doing." Mr. Younker then asked if what he told Mr. Gallagher would be confidential. Mr. Gallagher told him no as Mr. Gallagher represented Eastern. Mr. Gallagher then directed Mr. Younker to Eastern President Peter B. Lilly (hereinafter "Mr. Lilly"). During the November 19 morning meeting with Mr. Lilly, Mr. Younker told Mr. Lilly of the November 16 interview. Mr. Younker also said that he had a problem because he liked to "`chase skirt'" and that he may have had a "small skeleton" in his closet. Mr. Younker then admitted to a sexual encounter with Ms. Adkins² as well as admitting he saw her several times thereafter, albeit in a platonic way.³ Mr. Younker also informed Mr. Lilly that the agents had alleged that Abbs Valley had paid Ms. Adkins to have sex with Mr. Younker. Mr. Younker then returned to his duties.

That afternoon, Mr. Younker was summoned to Mr. Gallagher's office where Mr. Lilly gave Mr. Younker a resignation memorandum and told him that "... I want you to resign." When asked why, Mr. Lilly responded, "`No comment.'" Mr. Younker then asked, "`If I don't sign this, then are you going to fire me, discharge me?'" Mr. Lilly replied, "`No comment,'" which Mr. Younker took to be an affirmative response. Mr. Younker then signed the document.

In 1994, Mr. Younker sued alleging that he was forced to resign either because of his age or because he cooperated with federal authorities on November 16, 1992. In 1996, over three and one half years after being terminated and over two years after filing his original complaint, Mr. Younker requested and received permission from the circuit court to amend his complaint to add a claim that his discharge constituted a breach of contract under Eastern's Code of Business Conduct (hereinafter "the CBC").⁴

On December 6, 1996, Mr. Younker moved for a partial summary judgment on the breach of contract claim which Eastern opposed. On March 7, 1997, Eastern filed its own motion for summary judgment on all of Mr. Younker's claims then before the circuit court.

On March 21, 1997, Mr. Younker filed a motion to hold his age discrimination and retaliatory discharge claims in abeyance pending a trial on the damages relating to his breach of contract claim.⁵ In this motion, Mr. Younker agreed to dismiss the remaining two counts of his amended complaint if this Court affirmed any ruling in his favor. Eastern objected.

On July 31, 1997, the circuit court entered partial summary judgment on behalf of Mr. Younker under the breach of contract claim. On that same day, Eastern withdrew its objection to staying the remaining counts pursuant to Mr. Younker's motion.⁶ The circuit court then held a bench trial on damages.

After a number of procedural orders, the circuit court entered an order on November 19, 1999. The circuit court awarded Mr. Younker $378,649.00. The order also granted Mr. Younker's motion to conform the pleading to the evidence under W. Va. R. Civ. P. 15(b) by entering judgment against Eastern on the basis that the evidence at the damages trial showed that Mr. Younker's forced resignation violated W. Va.Code § 22A-1-22 (1994) (Repl.Vol.2002) which prohibits discrimination against a miner who, among other things, reveals to enumerated persons any alleged violation or danger.

On August 21, 2002, the circuit court entered a final order resolving the last of the outstanding motions and providing "this matter is concluded" and striking it from the docket. From these rulings, Eastern filed this current appeal.

II. STANDARD OF REVIEW

As is customary, we begin by examining the standard of review applicable to the issue before the Court. "Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is required when the record shows that there is `no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Consolidation Coal Co. v. Boston Old Colony Ins. Co., 203 W.Va. 385, 390, 508 S.E.2d 102, 107 (1998). Here, the instant appeal is before this Court as a result of the circuit court's grant of [partial] summary judgment to [Mr. Younker as well as its award of damages] and its denial of summary relief to [Eastern Associated]. Typically, we apply a plenary review to a circuit court's entry of summary judgment. "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). Similarly, when review of a circuit court's denial of summary judgment is properly before this Court, we examine anew the circuit court's ruling. "This Court reviews de novo the denial of a motion for summary judgment, where such a ruling is properly reviewable by this Court." Syl. pt. 1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).

Tackett v. American Motorists Ins. Co., 213 W.Va. 524, 527, 584 S.E.2d 158, 161 (2003) (footnote omitted). In other words, "[i]n considering the propriety of summary judgment in this case, we apply the same standard that is applied at the circuit court level[.]" Watson v. Inco Alloys Intern., Inc., 209 W.Va. 234, 238, 545 S.E.2d 294, 298 (2001). "[I]n making a ruling, `the judge must view the evidence presented through the prism of the substantive evidentiary burden.'" Williams v. Precision Coil, Inc., 194 W.Va. 52, 62, 459 S.E.2d 329, 339 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 215 (1986)). "In cases of substantial doubt, the safer course of action is to deny the motion and to proceed to trial." Id. at 59, 459 S.E.2d at 336.

III. DISCUSSION

The core issue in this appeal is whether Eastern's CBC constituted a contract between Eastern and Mr. Younker.⁷ Mr. Younker relies on article XII, entitled "Reporting of Violations," which provides:

[Eastern's] business and reputation depends, in large measure, on strict adherence to the provisions of this Code. All employees are encouraged and obligated to report any known or suspected Code violations to the employee's supervisor and the appropriate Counsel. No disciplinary or other retaliatory action will be taken against an employee making such a report and all information provided will be maintained in the strictest confidence.

Based on this provision, Mr. Younker argues that he reported wrongdoing on November 19, 2002. As a consequence of his reporting he was fired. He thus contends that his termination violated the contract the CBC created. Eastern counters, inter alia, that the CBC is not a contract as it lacks sufficiently definite terms to be read as a contract pointing out that article XIV is entitled "Nonexclusivity" and provides:

This Code does not constitute a comprehensive, full or complete explanation of the laws which are applicable to the Company and its employees nor does it contain all applicable policies and basis for discipline or discharge. Each employee has a continuing obligation to be familiar with applicable law and all [Eastern] policies and procedures.

Eastern also points out that other courts have found that language similar to article XII does not constitute a contract. We agree with Eastern.

"This Court has traditionally recognized that an employment which is of an indefinite duration is rebuttably presumed to be a hiring at will, which is terminable at any time at the pleasure of either the employer or the employee." Williamson v. Sharvest Mgt. Co., 187 W.Va. 30, 32-33, 415 S.E.2d 271, 273-74 ...