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Julie Conrad v. The Council of Senior Citizens of Gilmer County, Inc.

Julie Conrad v. The Council of Senior Citizens of Gilmer County, Inc.

Case No. 
Type of Proceeding: 
Appeal from the Circuit Court of Gilmer County (Judge Alsop)

In this wrongful discharge case, did the Circuit Court err in finding that the Plaintiff had failed to state a claim for which relief can be granted and dismissing the Plaintiff’s complaint on those grounds?


Petitioner and Plaintiff below, Julie Conrad (“Conrad”), was employed by Respondent and Defendant below, The Council of Senior Citizens of Gilmer County, Inc. (“the Council”), for approximately ten years. Conrad worked as a “homemaker,” where she was assigned to provide various in-home services to a client. In January of 2013, Conrad informed her supervisor at the Council that she could no longer work for this client because the client’s relative would block the driveway, flatten Conrad’s tires, and vandalize Conrad’s vehicle. Conrad claimed that the Council instructed her to “stick it out.” Conrad felt that she had no choice other than to leave her employment with the Council.

On January 8, 2014, Conrad filed a Complaint in the Circuit Court of Gilmer County, bringing claims for the tort of outrage, violations of employee handbook and/or manual, and constructive wrongful discharge in violation of public policy. The Council responded by filing a Motion to Dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, arguing that Conrad had failed to state a claim for which relief may be granted. The Circuit Court held a hearing on the Motion to Dismiss on April 14, 2014, during which the Court ruled that the Complaint was insufficient. The Court provided Conrad with 20 days to file an amended complaint which contained specific facts and allegations to support her claims. Conrad filed her Amended Complaint on May 5, 2014, dropping her claim for violation of employee handbook and/or manual, and adding some factual assertions regarding fears for her herself and her property which she claimed gave her no choice but to leave her employment with the Council. The Council responded to the Amended Complaint by renewing its Motion to Dismiss, and another hearing was held on August 11, 2014.

On November 5, 2014, the Circuit Court of Gilmer County entered an Opinion and Order on Defendant’s Motion to Dismiss, granting the Motion and dismissing Conrad’s Amended Complaint. In support of dismissal, the Court found that Conrad had failed to plead her claim for constructive discharge within the framework required by West Virginia law. Specifically, Conrad had not established that the Council, as her employer, owed her any duty to protect her from the alleged criminal actions of a third party, the client’s relative. As a general rule of law, a person owes no duty to protect others from the deliberate criminal conduct of third parties. There are certain exceptions, one of which requires a special relationship between the parties which would give rise to such a duty.  However, the employer-employee relationship does not constitute such a relationship and is therefore not an exception. Characterizing this case as the “distinct situation” of an employee bringing suit against an employer to recover for the criminal conduct of a third party, the Court explained that, in general, the West Virginia Workers’ Compensation Act grants employers with immunity from suit by employees for injuries sustained while on the job. Immunity can be lost, however, where the employee can show five factors of “deliberate intent” on the part of the employer to cause injury to the employee. The employee must establish each of the five factors, and if even one cannot be supported, the employer retains immunity from suit. Looking at the first of the five factors, Conrad would have to show that a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death. The Court found that, under the facts and circumstances of this case, and even in viewing the Amended Complaint in the light most favorable to Conrad, this factor could not be met. As such, Conrad would not be able to establish the five factors of deliberate intent, and could not proceed with her constructive discharge claim under this theory either. Inasmuch as Conrad’s claim for the tort of outrage was derivative of her claim for constructive discharge, the Court found that the Amended Complaint failed to state a claim for which relief could be granted.

Finally, the Court briefly addressed the issue of the “substantial public policy” cited by Conrad in support of her constructive discharge claim. Conrad cited to W. Va. Code § 21-3-1, arguing that the Council violated this general workplace safety statute by requiring her to continue employment at the client’s home, despite the conduct of the client’s relative, and that doing so violated substantial West Virginia public policy favoring safety in the workplace. The Court found that, while the statute does impose a duty upon employers to furnish a safe workplace, the statute does not impose a duty for employers to protect from criminal actions of third parties, and imposes liability for unsafe working conditions only upon owners of the place of employment. Since the Council neither owned, leased, nor otherwise had a right to possession or control of the client’s property, this statute did not impose a duty upon the Council to protect Conrad. As a final statement, the Court noted that the Amended Complaint was “so sparsely populated with facts” that the Court could not find support for Conrad’s claims, even though the Court had previously provided Conrad with additional time to set forth specific facts to bolster her claims.

Positions of the Parties: 


Petitioner Julie Conrad argues that the Circuit Court of Gilmer County erred in dismissing her Complaint for three reasons. First, Conrad argues that the Court should not have granted the Motion to Dismiss because Conrad’s constructive discharge from employment with the Council was in violation of substantial West Virginia public policy favoring safe workplaces and encouraging employees to report unsafe working conditions. Conrad also argued that she sufficiently pled that the working conditions created by the Council were so intolerable that a reasonable person would be compelled to quit, and she therefore had a viable claim for constructive discharge. Though she admitted that the Council did not, in fact, create the unsafe working condition at the client’s home, Conrad argued that the Council required her to continue to work in the unsafe conditions, thereby violating West Virginia public policy, and the Court erred to hold otherwise.

Closely related to the first assignment of error, Conrad went on to argue that the Circuit Court erred by failing to recognize the public policy requiring the Council to maintain a safe working environment. Citing W. Va. Code § 21-3-1, Conrad asserts that the Court failed “to hold that the State of West Virginia has a public policy of promoting safe working environments and not permitting employers to direct employees to work in conditions that are known to be unsafe.”

Finally, Conrad argued that the Circuit Court applied the incorrect legal standard in its analysis granting dismissal by analyzing the elements of wrongful discharge under a negligence framework. Conrad asserts that the Court should have found that the Council had a duty to Conrad pursuant to W. Va. Code § 21-3-1, which she argues creates a duty for employers.


Respondent, the Council of Senior Citizens of Gilmer County, Inc., argues that the Circuit Court committed no error in granting its Motion to Dismiss Conrad’s Amended Complaint for failure to state a claim for which relief may be granted. Pointing to the brevity of Conrad’s appeal brief, and characterizing both the brief and the Amended Complaint at issue as “characteristically vague and confusing,” the Council argues that the record clearly shows that Conrad failed to allege with the requisite specificity her claim for constructive retaliatory discharge, and was therefore properly dismissed.

In support of the Circuit Court’s findings, the Council asserts that Conrad’s Amended Complaint simply made conclusory statements, and did not provide specific facts regarding the alleged events which led to her leaving her employment, nor did it assert any violation of a specific, recognized public policy. Conrad was an at will employee, and could therefore be terminated for any reason, provided that reason was not in violation of applicable laws or substantial public policy. The burden for an at will employee to show such a violation is high, and “dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.” Fisher v. AT&T Mobility, LLC, No. 2:07-0764, 2008 WL 4870996 at *6 (S.D. W. Va. Nov. 10, 2008). Conrad did not plead conditions which would rise to this level of intolerability, nor did she cite to any specific public policy. The Court, therefore, did not err in finding that she failed to meet her burden to set forth the specific facts and allegations required to proceed with her claim for constructive retaliatory discharge.

In response to Conrad’s argument that she properly cited W. Va. Code § 21-3-1 as the public policy violated, the Council reiterated that, under West Virginia law, an employer will not be subject to liability for suit by an employee in situations where a statute or regulation does not specifically set forth the policy at issue. An employer cannot be liable simply because an employee interprets a general policy in a particular manner. Rather, the regulation must provide guidance and be specific enough that it will not be subject to various interpretations. The Council argues that W. Va. Code § 21-3-1 is merely a general statute, and is therefore not specific enough to support Conrad’s claims, and that courts have made this specific finding in previous cases. Furthermore, for Conrad to claim any benefit of W. Va. Code § 21-3-1, she would have to have been injured at work, which she was not, and would have to establish the five factors for deliberate intent, which the Circuit Court properly found she could not do. Because Conrad failed to cite to any legally recognized, substantial public policy in the state of West Virginia in support of her claims for constructive discharge, the Circuit Court did not err in dismissing her claims.

Finally, the Council argues that the Circuit Court applied the appropriate legal analysis in granting the Council’s Motion to Dismiss, citing to all of the previous arguments in support. The Council also notes that the standard of review for an order granting a motion to dismiss is de novo, and the Supreme Court of Appeals may uphold the Circuit Court’s judgment on any ground supported by the record, whether or not that ground is the same as that used as the basis for the Circuit Court’s judgment. Inasmuch as the Council believes that the record clearly supports dismissal of Conrad’s claims, for a number of reasons, the Council argues that dismissal was proper and should be affirmed.

Probable Impact: 

This case gives the Supreme Court an opportunity to clarify and expound upon whether W. Va. Code § 21-3-1 may serve as a requisite “substantial public policy” to support claims for constructive discharge. This case also permits the Court to address the issue of what duties, if any, an employer has to its employees in situations where the employee does some or all of his or her work at an off-site location, such as a client’s home, and whether an employer has any legal responsibility to take actions to prevent an employee from criminal conduct of a third party in such a scenario.

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