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 appealed.
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”?
In a 3-2 decision, the Supreme Court concluded that Petitioner failed to state a viable claim under Feliciano.
Justice Jenkins wrote for the majority. According to Justice Jenkins, Petitioner failed to set forth “facts” establishing that he was faced with lethal imminent danger and, instead, cited only “vague phrases and conclusory statements” regarding the attack. Feliciano was a “narrow holding” that “dealt with masked and armed robbers” at a convenience store. Feliciano also struck “a careful balance between the rights of employees and the rights of employers.” Because Petitioner failed to plead sufficient facts to establish a claim under Feliciano, dismissal of Petitioner’s complaint was appropriate.
Justice Hutchinson dissented in an opinion joined by Justice Workman. The dissenters took the majority to task for prejudging Petitioner’s claim instead of simply testing the sufficiency of Petitioner’s complaint. Petitioner set forth the facts surrounding the attack in twelve numbered paragraphs, which were clearly sufficient to meet the liberal pleading standards adopted by Rule 8. Nothing more was required to survive a motion to dismiss under Rule 12(b)(6). Because Petitioner’s allegations were sufficient under Feliciano, he “should have been permitted to pursue his claim for relief.”
This case is troubling in two respects. First, the Court seemed to be demanding more from Petitioner than our pleading rules require. West Virginia has always been committed to notice pleading. But the Court here criticized Petitioner for failing to plead “facts” that would warrant relief. The dissenters correctly cited West Virginia law and expressed “dismay” that the Court would demand more.
There is also a second concern--i.e., an erosion of the protections provided to West Virginia’s at-will employees. In another case decided in the September term, Blanda v. Martin & Seibert, LC, the Court denied protection to a whistleblower who reported a workplace theft offense. These two cases, taken together, suggest that the Court is not as willing to protect employees against retaliatory conduct by employers and, in many cases, will leave employees without a remedy.