Whether a cause of action exists under Felicino v. 7-Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001) where the attacker is not armed with a weapon but the employee is, nevertheless, in bona fide fear of “lethal imminent danger”?
Petitioner, Timothy Newton, worked as a dispatcher for Respondent, Morgantown Machine & Hydraulics. On March 15, 2016, an altercation occurred between Petitioner and one of Respondent’s truck drivers. According to the complaint, the driver was the aggressor and Petitioner “applied only necessary force to defend himself, and did not apply any force beyond what was necessary to protect himself.” More specifically, the driver became aggressive, violent and approached Petitioner in a threatening manner, pushing him over a table. After Petitioner righted himself, the driver punched Petitioner in the head and face, rendering him unconscious. The driver continued beating Petitioner even after he had collapsed and lay unconscious on the floor. Eventually, the truck driver was charged with battery. Despite these facts, Respondent chose to terminate Petitioner’s employment because of his involvement in the altercation.
Petitioner sued Respondent for wrongful discharge citing Felicino v. 7-Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001): “When an at-will employee has been discharged from his/her employment based upon his/her exercise of self-defense in response to lethal imminent danger, such right of self-defense constitutes a substantial public policy exception to the at-will employment doctrine and will sustain a cause of action for wrongful discharge.” The trial court, however, concluded the Felicino did not apply because Petitioner was “engaged in an altercation with a coworker that did not involve weapons, dangerous circumstances, or a threat of lethal imminent danger.” Accordingly, the trial court dismissed Petitioner’s complaint under Rule 12(b)(6). Petitioner now appeals.
Petitioner argues “[t]his is an important case for the safety and welfare of West Virginia employees.” Felicino involved an employee who thwarted an armed robbery by grabbing, disarming, and restraining a would-be robber. Petitioner argues that the key to liability under Felicino is not whether, or not, the attacker is armed, but whether the employee has a bona fide fear of “lethal imminent danger.” Petitioner insists that the trial court was wrong in concluding that “Felicino is triggered only where a deadly weapon external to the human body is present.” Fists may constitute deadly weapons. Accordingly, it was error for the trial court to dismiss Petitioner’s claim for wrongful discharge at the pleading stage.
Respondent argues in support of the trial court’s ruling, suggesting that Petitioner’s contrary arguments would effectively “nullify zero tolerance policies against workplace violence across West Virginia.” Respondent insists that Felicino is “limited in scope” and that it “require[s] an objective presence of lethal imminent force for a legally valid claim.” The argument that fists can, in some cases, be a deadly weapon “is precisely the argument militating against [Petitioner] because it advocates for an unmanageable standard.”
This is the second case of the term that will be addressing the viability of a wrongful discharge claim. Obviously, we see two important principles on a collision course: the employers’ right to prevent workplace violence and the employee’s right to defend himself. Where, exactly, will the Supreme Court draw the line? From a case management standpoint, it is tempting to embrace an “objective” test like the one Respondent is advocating. But working people in West Virginia need the protection of the law--especially where, as here, an employer’s “zero tolerance” policy punishes the victim more than the aggressor.