Tiernan v. Charleston Area Medical Center, Inc.
AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
Betty A. TIERNAN, Plaintiff Below, Appellant,
v.
CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia Corporation, Defendant Below, Appellee.
Supreme Court of Appeals of West Virginia.
*580 Walt Auvil, Pyles & Auvil, Parkersburg, for Appellant.
Stephen A. Weber, Dina M. Mohler, Kay, Casto, Chaney, Love & Wise, Charleston, for Appellee.
DAVIS, Chief Justice:
This is an appeal by Betty A. Tiernan, appellant/plaintiff, (hereinafter "Ms. Tiernan") from two orders entered by the Circuit Court of Kanawha County granting summary judgment to Charleston Area Medical Center, appellee/defendant, (hereinafter "CAMC"). The plaintiff asserted numerous theories of liability regarding the termination of her employment by CAMC. The circuit court made the following rulings on those theories: that as a matter of law Ms. Tiernan's constitutional theories of liability did not apply to a private employer; that Ms. Tiernan's statutory claims placed no genuine issue of material fact in dispute; and that the theories of breach of contract/detrimental reliance, tortious interference with a business relationship, and violation of statutory and regulatory public policies were not supported by evidence sufficient to raise genuine issues of material fact. Ms. Tiernan assigns error to each of the circuit court's rulings on her claims for recovery. We find that the circuit court correctly granted summary judgment on Ms. Tiernan's constitutional claims. We further find that the circuit court correctly granted summary judgment on Ms. Tiernan's claim for tortious interference with a business relationship; and that the circuit court's orders failed to present adequate findings for review by this Court on all remaining claims. Consequently, we affirm in part and reverse in part the circuit court's summary judgment orders.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This case arose as a result of Ms. Tiernan's discharge from employment by CAMC. Ms. Tiernan was employed as a nurse by CAMC from May of 1985 to May 2, 1994. Prior to 1994, Ms. Tiernan had a good relationship with CAMC. She had an excellent work history and was part of CAMC's management staff.
On February 19, 1994, Ms. Tiernan wrote a letter to the editor of The Charleston Gazette. The letter was edited and published in the newspaper on February 23, 1994.[1] The *581 letter criticized CAMC's budgetary cutbacks. CAMC officials spoke with Ms. Tiernan about the letter and cautioned her to consult with CAMC in the future, before airing her views in the press. CAMC advised Ms. Tiernan that, as part of the management team, she had a duty to portray to the public and other staff members that management was united. Ms. Tiernan was informed that no repercussions would be taken against her for the letter.[2] A few weeks after the letter appeared in the newspaper, Ms. Tiernan was given an evaluation. Ms. Tiernan was rated by CAMC as "meets" or "exceeds" on each of the evaluation categories. The evaluation also noted that Ms. Tiernan needed to be more supportive of management. Ms. Tiernan was given a raise after the evaluation.
On May 2, 1994, CAMC scheduled a nonpublic meeting to discuss a planned merger or affiliation with St. Francis Health Care Systems, Inc. The meeting was to be televised on CAMC's internal, closed-circuit television station. The broadcast was specifically limited to viewing at television screens located at employee workstations. Furthermore, the broadcast was blocked from patient television. CAMC planned to hold a news conference immediately after the meeting to inform the general public of the proposed affiliation agreement. CAMC invited only specific upper and middle managers to the meeting. The invitation did not include members of the media.
Shortly after the meeting began, Ms. Tiernan entered the room where the meeting was being held accompanied by a newspaper reporter.[3] A CAMC employee standing at the door did not recognize Ms. Tiernan; but, recognized the reporter. The employee informed the reporter she could not enter the meeting. The reporter stated that she was invited by Ms. Tiernan. Ms. Tiernan and the reporter entered the meeting. Both Ms. Tiernan and the newspaper reporter had tape recorders and recorded the meeting.
CAMC terminated Ms. Tiernan several hours after the meeting. CAMC's basis for termination was that Ms. Tiernan's conduct of bringing the newspaper reporter to a closed meeting was wrong and warranted dismissal. Ms. Tiernan invoked CAMC's appeal procedures. Her appeal was unsuccessful.
After termination, Ms. Tiernan secured per diem employment as a nursing supervisor with Arthur B. Hodges Center, Inc., (hereinafter "ABHC") a geriatric patient nursing home affiliated with CAMC.[4] When CAMC learned of Ms. Tiernan's employment with ABHC, CAMC contacted ABHC and informed ABHC that Ms. Tiernan was also *582 working as a union organizer.[5] ABHC provided no further work for Ms. Tiernan upon learning of her union activities.
Ms. Tiernan filed suit against CAMC on February 2, 1995. Ms. Tiernan's complaint asserted (1) that her termination violated public policy embodied in the state constitutional right to free speech and association; (2) that in terminating her, CAMC breached their oral contract not to retaliate against her for publishing the February 19, 1994, letter and that she detrimentally relied upon the agreement; (3) that CAMC tortiously interfered with her business relationship with ABHC; and (4) that Ms. Tiernan's termination by/from CAMC resulting from inadequate patient to nurse ratio[6] was a matter of substantial concern and therefore violative of public policy.
After the parties conducted discovery, CAMC moved for summary judgment. The circuit court initially granted summary judgment to CAMC on Ms. Tiernan's constitutional theories and the theory of tortious interference with a business relationship. The circuit court reserved ruling on the other theories. Ultimately, the circuit court granted CAMC summary judgment on the remaining theories.[7] It is from the circuit court's two summary judgment orders that Ms. Tiernan now appeals.
II.
STANDARD OF REVIEW
This Court stated in syllabus point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), that "[a] circuit court's entry of summary judgment is reviewed de novo." We have held that "[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." Syl. Pt. 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963). Of course, "[t]he mere fact that a particular cause of action contains elements which typically raise a factual issue for jury determination does not automatically immunize the case from summary judgment. The plaintiff must still discharge his or her burden under West Virginia Rule of Civil Procedure 56(c) by demonstrating that a legitimate jury question, i.e. a genuine issue of material fact, is present." Syl. Pt. 1, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). This Court indicated in syllabus point 5 of Jividen 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.
III.
DISCUSSION
A.
State Constitutional Free Speech Claim
Ms. Tiernan contended before the lower court that she was terminated because of the publication of her letter criticizing budgetary cuts by CAMC. The circuit court found as a matter of law that the Free Speech Clause of the state constitution does not apply to private employers.[8] Ms. Tiernan *583 argues[9] that the basis for her firing violated a substantial public policy embedded in the state constitutional right to free speech[10] contained in W.Va. Const. Art. 3, Sec. 7.[11] In this case, Ms. Tiernan was an atwill employee of a private sector employer. This Court has generally held that "[a]t will employees, as well as other employees, have certain protections in circumstances involving public policy." Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325, 325 S.E.2d 111, 114 (1984). "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. CAMC argued that any public policy contained in the state constitutional Free Speech Clause is inapplicable to private sector employers. This issue is one of first impression for this Court.
Public Policy In General. Twenty years ago this Court held that "[t]he 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 princip[le], then the employer may be liable to the employee for damages occasioned by this discharge." Syl., Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978). In syllabus point 2 of Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992), we held that "[t]o 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." Numerous courts in other jurisdictions, in making a determination of whether a public policy standard has been violated, unanimously take the position that public policy has to be preexisting and germinate from constitutional, statutory or regulatory provisions or prior judicial decisions.[12] It was *584 aptly stated in Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625, 631 (1982), that:
In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Prior judicial decisions may also establish the relevant public policy. However, courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.
In Cordle, 174 W.Va. at 325, 325 S.E.2d at 114, this Court quoted approvingly the observation made in Allen v. Commercial Casualty Ins. Co., 131 N.J.L. 475, 477-78, 37 A.2d 37, 38-39 (1944), that:
Much has been written by text writers and by the courts as to the meaning of the phrase "public policy." All are agreed that its meaning is as "variable" as it is "vague," and that there is no absolute rule by which courts may determine what ... contravene[s] the public policy of the state. The rule of law, most generally stated, is that "public policy" is that principle of law which holds that "no person can lawfully do that which has a tendency to be injurious to the public or against public good..." even though "no actual injury" may have resulted therefrom in a particular case "to the public." It is a question of law which the court must decide in light of the particular circumstances of each case.
We noted in Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 561, 336 S.E.2d 204, 209 (1985), that:
The power to declare an action against public policy is a broad power and one difficult to define. "No fixed rule can be given to determine what is public policy. (citations omitted). It is sometimes defined as that principle of law under which freedom of contract or private dealings are restricted by law for the good of the communitythe public good." Higgins v. McFarland, 196 Va. 889, 894, 86 S.E.2d 168, 172 (1955). Nevertheless, despite the broad power vested in the courts to determine public policy, we must exercise restraint when we use it[:]
The right of a court to declare what is or is not in accord with public policy does not extend to specific economic or social problems which are controversial in nature and capable of solution only as the result of a study of various factors and conditions. It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community so declaring. Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941).
In contrast to the issue of public policy, an issue which is fairly debatable or controversial is by nature better left for legislative determination.
Public Policy And Wrongful Discharge. In reviewing public policy wrongful discharge cases by this Court, we have found the vast majority of our cases involved public policy that was clearly articulated by statutes[13] or *585 common law. In fact, in a recent decision by this Court, Tudor v. Charleston Area Medical Center, Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997), we recognized public policy emanating from a state regulation on hospital patient care as providing the basis for a constructive discharge claim. In Cordle we recognized a public policy claim emanating from the common law right of privacy as a basis for a wrongful discharge involving an employee who refused to take an employer polygraph test. See also Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990) (where we held it was contrary to public policy emanating from the common law right of privacy for an employer to require an employee to submit to drug testing).
In McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987), this Court addressed the question of public policy emanating from the state constitution as a basis for a wrongful discharge action by an at-will government employee. In McClung the plaintiff was employed by the county commission as the dog warden for Marion County. During his employment the plaintiff failed to respond to three telephone calls involving animals. As a result of the conduct, the plaintiff was suspended for five days without pay. On the last day of his suspension the plaintiff filed an action against the county commission for its failure to pay him overtime wages. Within a few days after the plaintiff brought his action for overtime wages, the county commission terminated the plaintiff's employment. The plaintiff subsequently amended his complaint to add a claim for retaliatory discharge. A jury trial was held. A verdict was returned in favor of the plaintiff. The trial court set aside the jury verdict and granted judgment notwithstanding the verdict to the county commission. The trial court was of the opinion that the plaintiff was an employee at will and that the evidence did not support his retaliatory discharge claim. On appeal this Court was asked to determine whether public policies emanating from the state constitutional right to petition for redress of grievances under W.Va. Const. Art. III, Sec. 16 and the right to seek access to the courts of this state under W.Va. Const. Art. III, Sec. 17, formed the basis for a wrongful discharge action by an at-will employee terminated for exercising the aforementioned rights by filing an action for overtime wages. This Court responded to the question by holding:
One of the fundamental rights of an employee is the right not to be the victim of a "retaliatory discharge," that is, a discharge from employment where the employer's motivation for the discharge is in contravention of a substantial public policy.... Certainly it is in contravention of substantial public policies for an employer to discharge an employee in retaliation for the employee's exercising his or her state constitutional rights to petition for redress of grievances (W.Va. Const. Art. III, Sec. 16) and to seek access to the courts of this State (W.Va. Const. Art. III, Sec. 17) by filing an action ... for overtime wages.
McClung, 178 W.Va. at 450, 360 S.E.2d at 227. Ultimately, we reversed the trial court in McClung and reinstated the jury verdict. In doing so, we observed as a general matter that "[a] public officer or public employee, even one who serves at the will and pleasure of the appointing authority, may not be discharged in retribution for the exercise of a constitutionally protected right, unless a substantial governmental interest outweighs the public officer's or public employee's interest in exercising such right." Id. Citing, Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708, 716-17 (1983); Syl. pt. 2, Woodruff v. Board of Trustees, 173 W.Va. 604, 319 S.E.2d 372 (1984); Syl. pt. 3, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).
In Woodruff v. Board of Trustees of Cabell Huntington Hosp., 173 W.Va. 604, 319 S.E.2d 372 (1984), fourteen former employees of Cabell Huntington Hospital were terminated after distributing leaflets critical of cutbacks by the hospital, as well as other issues. The employees sought a writ of mandamus compelling reinstatement. The employees argued that their terminations were violative of their state and federal constitutional rights to free speech, as well as other constitutional guarantees. We initially observed in Woodruff that "[t]he United States *586 Supreme Court has long held that public employees may not `be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public [institutions] in which they work.'" Id. 173 W.Va. at 609, 319 S.E.2d at 377, quoting, Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968). Citing, Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). In making the decision to grant the relief sought by the employees this Court stated:
Unquestionably, the distribution of leaflets is an activity protected under constitutional free speech guarantees. In Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, 954 (1938), Chief Justice Hughes, writing for a unanimous Court, observed, "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history attest." Since Lovell, the United States Supreme Court has continued its staunch protection of the right of citizens to distribute leaflets and other printed matter.
Woodruff, 173 W.Va. at 609, 319 S.E.2d at 377-78, citing, United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155, 166 (1939).
In Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), the plaintiff filed a complaint alleging, among other things, that she was given a terminal one year contract by the defendants, a public community college and its officials, as a result of her criticism of remodeling plans for the college's facilities. The plaintiff contended that her firing violated her right to free speech under the First Amendment. A trial was held. The jury returned a plaintiff's verdict. The defendants appealed. On appeal, defendants argued that plaintiff failed to prove her criticism of defendants was a substantial or motivating factor in her being given a terminal contract. We observed in Orr "that under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), public employees are entitled to be protected from firings, demotions and other adverse employment consequences resulting from the exercise of their free speech rights, as well as other First Amendment rights." Orr, 173 W.Va. at 343, 315 S.E.2d at 601. Orr noted that even under Pickering the right to free speech is not absolute. In Orr, we listed the limitations imposed on the right of free speech:
First, speech, to be protected, must be made with regard to matters of public concern. Second, statements that are made "`with the knowledge [that they] ... were false or with reckless disregard of whether [they were] ... false or not,'" are not protected. Third, statements made about persons with whom there are close personal contacts which would disrupt "discipline ... or harmony among coworkers" or destroy "personal loyalty and confidence" may not be protected.
Orr, 173 W.Va. at 343, 315 S.E.2d at 601-602 (internal citations omitted). This Court ultimately affirmed the jury verdict in the case. In doing so we formulated an allocation of the burden of proof on a free speech claim in syllabus point 4:
In a suit under 42 U.S.C. Sec. 1983, where the plaintiff claims that he was discharged for exercising his First Amendment right of free speech, the burden is initially upon the plaintiff to show: (1) that his conduct was constitutionally protected; and (2) that his conduct was a substantial or motivating factor for his discharge. His employer may defeat the claim by showing that the same decision would have been reached even in the absence of the protected conduct.
*587 See also Gooden v. Board of Appeals of West Virginia Dept. of Public Safety, 160 W.Va. 318, 234 S.E.2d 893 (1977) (state trooper's discharge for criticizing state police violated First Amendment right of free speech).
None of this Court's prior decisions applied public policy emanating from the state constitution to a wrongful discharge case involving a private sector employee. Ms. Tiernan contends that our decision in Mace[14] suggests that public policy emanating from the state constitution may form the basis for a wrongful discharge action by a private sector employee. The decision in Mace relied upon public policy emanating from a statute. We did however cite in syllabus point 9 of Mace syllabus point 3 of McClung:
In a retaliatory discharge action, where the plaintiff claims that he or she was discharged for exercising his or her constitutional right(s), the burden is initially upon the plaintiff to show that the exercise of his or her constitutional right(s) was a substantial or a motivating factor for the discharge. The plaintiff need not show that the exercise of the constitutional right(s) was the only precipitating factor for the discharge. The employer may defeat the claim by showing that the employee would have been discharged even in the absence of the protected conduct.
We agree with Ms. Tiernan's analysis. Mace suggests that a cause of action for wrongful discharge by a private sector employee may be based upon public policy emanating from the state constitution. We make clear today that, an at-will or otherwise employed private sector employee may sustain, on proper proof, a cause of action for wrongful discharge based upon a violation of public policy emanating from a specific provision of the state constitution. Determining whether a state constitutional provision may be applied to a private sector employer must be done on a case-by-case basis, i.e., through selective incorporation and application.[15] By *588 so holding, we must now review this case to determine whether Ms. Tiernan can sustain a cause of action for wrongful discharge based upon a violation of public policy because of the exercise of free speech. The specific inquiry in this case is whether or not public policy emanating from the Free Speech Clause of the state constitution applies to speech by private sector employees who criticize or disagree with policies or other lawful actions taken by their private sector employers. To support her claim, Ms. Tiernan turns to federal cases. Ms. Tiernan cites the decision in Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3rd Cir.1983), wherein the Third Circuit held that public policy emanating from the free speech clause of Pennsylvania's constitution was applicable to private sector employers.
In Novosel the plaintiff brought a wrongful discharge action in federal court against his former private sector employer. The plaintiff alleged that the sole reason for his discharge was his refusal to participate in the employer's lobbying effort and his privately stated opposition to the employer's position. The United States District Court for the Western District of Pennsylvania, granted the employer's motion to dismiss finding no cause of action. The issue on appeal was whether or not public policy emanating from the free speech clause of Pennsylvania's constitution and the First Amendment was applicable to a private employer. Initially, the Court of Appeals canvassed principles involving infringement on the First Amendment right of free speech and stated:
An extensive case law has developed concerning the protection of constitutional rights, particularly First Amendment rights, of government employees. As the Supreme Court has commented, "[f]or most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employmentincluding those which restricted the exercise of constitutional rights." Connick v. Myers, 461 U.S. 138, [143] 103 S.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983). The Court in Connick, however, also observed the constitutional repudiation of this dogma: "[f]or at least 15 years, it has been settled that a state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Id. at 1687, 103 S.Ct. 1684, citing Branti v. Finkel, 445 U.S. 507, 515-516,