Lead
This is a wrongful discharge action instituted by Clinton Collins, a former tipple foreman, in which the trial court granted summary judgment for the defendant, Elkay Mining Company (Company). The trial court concluded that the plaintiffs retaliatory discharge claim under Harless v. First Nat’l Bank in Fairmont,
I.
RETALIATORY DISCHARGE
The plaintiff alleged in his November, 1984 complaint that he had been laid off and subsequently discharged by the Company in retaliation for his refusal to “falsify certain safety reports” pertaining to a safety inspection at the Company’s preparation plant where he was employed, and for his refusal to otherwise violate federal or State mine safety laws. He alleged that his discharge violated the established public policy of the State and, thereby, gave rise to a cause of action under the single Syllabus of Harless:
“The 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 principle, then the employer may be liable to the employee for damages occasioned by this discharge.”
The trial court in addition to finding the plaintiff’s action was barred for failure to exhaust his administrative remedies also concluded in its memorandum opinion that the plaintiff’s administrative remedies were exclusive. The court based its conclusion upon the general rule that where a right not existing at common law is created by statute, the statutory remedy is exclusive. Since both the federal and State mine safety laws
In Harless, this Court adopted a limited exception to the common law rule that, in the absence of a written contract containing a fixed term of employment, an employee could be discharged for good reason, bad reason, or no reason at all. Wright v. Standard Ultramarine & Color Co.,
We indicated in note 5 of Harless,
The trial court did not have the benefit of our decision in Wiggins v. Eastern Associated Coal Corp.,
In Wiggins, we rejected the theory relied upon by the trial court here, and concluded for a number of reasons that the administrative remedy was not exclusive. In Syllabus Point 2 of Wiggins, we held: “Where the available administrative remedy is inadequate, this Court recognizes an exception to the general rule that where a new right is created by statute, the remedy can be only that which the statute prescribes.” See also Price v. Boone County Ambulance Auth.,
We found in Wiggins that the remedies available in federal and state administrative proceedings were not adequate to protect the substantial public policy interests embodied in our Mine Safety Act. We noted that damages recoverable in a tort action are broader than those available administratively and also observed that the primary purpose of the administrative remedy was different than the interests protected in a retaliatory discharge action. Both these considerations are reflected in the language of Syllabus Points 3 and 4 of Wiggins:
“3. The common law wrongful discharge action recognized in Harless v. First Nat’l Bank in Fairmont,162 W.Va. 116 ,246 S.E.2d 270 (1978) follows the applicable rules relating to tort damages, and permits a claim for damages caused by the intentional infliction of severe emotional distress, or, in the appropriate case, for the assessment of punitive damages.
“4. The primary purpose of the penalties imposed under the antidiscrimination provisions of the mine safety acts is to ensure the reporting of safety violations, rather than vindication of private interests, and victims of discrimination must look to the courts to receive full compensation for the violation of their legal rights.”
In Wiggins, we also relied in part on “the silence of the [federal and State] statutes themselves on the exclusivity issue, and the fact that these safety statutes are to be construed liberally in favor of their intended beneficiaries, State ex rel. Perry v. Miller,
More recently in Davis v. Kitt Energy Corp.,
“2. W.Va.Code, 22A-1A-20, prohibits retaliatory conduct by employers against mine employees because of their reporting of violations of the Mine Safety Act.
“3. A mine safety committeeman who communicates a safety violation under the Mine Safety Act and enforces a procedural right given under the collective bargaining wage agreement, and who thereafter is subject to discrimination by his employer as a result thereof, is entitled to assert the protections afforded by W.Va.Code, 22A-1A-20.
“4. A miner against whom an arbitration decision has been rendered under a eollective bargaining agreement involving a safety claim is not foreclosed from pursuing a discrimination remedy under W.Va.Code, 22A-1A-20.”2
In this case, the Company argues based on legislative intent and policy grounds that exhaustion should be a prerequisite to a Harless-type action. We are not persuaded. Contrary to the Company’s contention, the legislature in enacting the anti-discrimination provisions of W.Va.Code, 22A-1A-20 (1985), did not clearly express an intention that retaliation claims be resolved first administratively by the board of appeals. We find no language in W.Va. Code, 22A-1A-20 (1985), set forth, in part, in note 1, supra, reflecting any such legislative purpose.
The Company’s argument that aggrieved employees will unquestionably circumvent the administrative remedy and pursue a tort action is speculative at best.
Nor are we convinced that permitting a Harless-type action without requiring the exhaustion of administrative remedies will render the administrative remedy meaningless. The existence of both an administrative and judicial remedy will further the legislative purpose of protecting employees from discrimination for their safety-related activities. Not requiring exhaustion will effectuate the legislative purpose, not frustrate it.
The New Jersey Supreme Court in Lally v. Copygraphics,
“A common law action for wrongful discharge in this context will effectuate statutory objectives and complement the legislative and administrative policies which undergird the workers’ compensation laws. The determination of the Appellate Division that the statutory treatment of this kind of retaliatory firing is not preemptive of a civil right of redress is sound. 173 N.J.Super. at 170-172, 179,413 A.2d 960 .”
The New Jersey court stressed the importance of the interests protected by the legislation and concluded at
“The jurisdiction to redress an unlawful retaliatory discharge is concurrent. The election is that of the plaintiff. She may choose, at her complete discretion, an administrative route, which though arguably not as complete as a civil action in a court of law, may be less involved, time consuming, and expensive. Moreover, as pointed out by the Appellate Division, id. at 177,413 A.2d 960 , the Legislature itself recognized the expertise, experience and sensitivity of the Commissioner in these matters. An aggrieved discharged employee might well believe these considerations to be. important in assessing which remedial path to follow.”
See also Hentzel v. Singer Co.,
The Minnesota Supreme Court also recently permitted a retaliatory discharge action to proceed without requiring the exhaustion of administrative remedies in Brevik v. Kite Painting, Inc.,
“We note that the preference for exhaustion of administrative remedies is one ‘of convenience, not an indispensable pre-condition.’ Swede v. City of Clifton, 22 N.J. 303, 315, 125 A. 2d 865 (1956). Thus, except in those cases where the legislature vests exclusive primary jurisdiction in an agency, a plaintiff may seek relief in our trial courts. Borough of Matawan v. Monmouth County Board of Taxation, 51 N.J. 291, 296, 240 A 2d 8 (1968) (administrative exhaustion not an absolute jurisdictional requirement). In any case amenable to administrative review, however, upon a defendant’s timely petition, the trial court should consider whether exhaustion of remedies will serve the interests of justice.”6
We made much this same point in Syllabus Point 6 of Wiggins, where we said: “This Court will not require the exhaustion of administrative remedies where such remedies are duplicative or the effort to obtain them futile.” See also State ex rel. Arnold v. Egnor,
We do not believe the interests of justice would be served by requiring coal miners to pursue their administrative remedies, as a prerequisite to bringing an action in court alleging a retaliatory discharge for safety-related activities. Unlike the situation in Abbott, which involved complex constitutional questions of a specialized nature concerning that state’s system of funding its educational system, retaliatory discharge claims should be comparatively simple and will involve issues similar to those which courts frequently encounter in other areas of the law.
We, therefore, conclude that a coal miner may institute a common law Harless -type retaliatory discharge action for acts that were designed to enforce the mandates of the coal mine health and safety statutes directly in circuit court without first resorting to an administrative remedy.
The trial court’s order granting summary judgment on the wrongful discharge claim must, therefore, be reversed.
II.
EMPLOYMENT CONTRACT
The pleadings reveal that the plaintiff was hired by the Company in February, 1970, and was thereafter promoted to a salaried supervisory position in October, 1974. The plaintiff alleged that by virtue of an express or implied employment contract, he was entitled to hold that position until his retirement; provided, that he performed his job duties competently and satisfactorily. He further alleged that he had satisfactorily and competently performed every duty assigned to him and that his
The plaintiff argued below, as he does here, that he was induced by the Company to transfer to his supervisory position from the bargaining unit by representations assuring him continued employment until reaching retirement age. The plaintiff also stated in his deposition testimony that he had been induced by various publications of the Company, which promised him and his family financial security until retirement.
The trial court concluded that the plaintiffs implied contract claim was not cognizable under West Virginia law. Just a few days after the trial court granted summary judgment in favor of the Company, this Court, joining a growing trend in other jurisdictions, rendered its decision in Cook v. Heck’s Inc.,
“5. A promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee’s continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer’s promise binding and enforceable.
“6. An employee handbook may form the basis of a unilateral contract if there is a definite promise therein by the employer not to discharge covered employees except for specified reasons.”
Consequently, the case must be remanded to permit the plaintiff to proceed on the contract claim in whatever manner he may believe proper and to allow reevaluation of the facts by the trial court in view of the principles underlying our decision in Cook.
In resolving these procedural issues, we express no views as to the merits of the underlying claims. For the foregoing reasons, the judgment of the Circuit Court of Logan County is reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
Notes
. In certain circumstances, federal and State laws protect coal miners who report alleged violations of mine safety laws from adverse personnel action. The Federal Coal Mine Safety and Health Act, 30 U.S.C. § 820(b)(1) (1969), provided as follows:
"No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger, (B) has filed, instituted, or caused to be filed or instituted any proceeding under this Act, or (C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this Act."
The current version of this statute, as amended, is found in Section 105(c)(1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(1); Annot., 67 A.L.R.Fed. 554 (1984).
Our State’s Mine Safety Act, W.Va.Code, 22A-1A-20(a) (1985), states as follows:
"No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that he believes or knows that such miner or representative (1) has notified the commissioner, his authorized representative, or an operator, directly or indirectly, of any alleged violation or danger, (2) has filed, instituted or caused to be filed or instituted any proceeding under this law, (3) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this law. No miner or representative shall be discharged or in any other way discriminated against or caused to be discriminated against because a miner or representative has done (1), (2), or (3) above.”
A similar version of this provision was formerly contained in W.Va.Code, 21-l-21(a) (1971).
. Our decision in Davis was predicated on several United States Supreme Court cases to the effect that provisions in a wage agreement cannot supplant statutory rights. E.g., McDonald v. City of West Branch,
. Certainly, where both avenues are pursued, it is clear from Wiggins a duplicate recovery cannot be obtained "because '[d]ouble recovery of damages is not permitted; the law does not permit a double satisfaction for a single injury.’ Syl.Pt. 7, Harless II,
. W.Va.Code, 22A-lA-20(b) (1985), affords any miner or representative of miners who has been discharged or otherwise discriminated against the right to:
”[A]pply to the appeals board for a review of such alleged discharge, discrimination, or failure to compensate.... Upon receipt of such application, the appeals board shall cause such investigation to be made as it deems appropriate.... Upon receiving the report of such investigation, the board shall make findings of fact. If it finds that such violation did occur, it shall issue a decision within forty-five days, incorporating an order therein, requiring the person committing such violation to take such affirmative action to abate the violation as the board deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner or representative of miners to his former position with back pay.... If the proceedings under this section relative to discharge are not completed within forty-five days of the date of discharge due to delay caused by the operator, the miner shall be automatically reinstated until the final determination. If such proceedings are not completed within forty-five days of the date of discharge due to delay caused by the board, then the board may, at its option, reinstate the miner until the final determination.”
. W.Va.Code, 22A-lA-20(c) (1985) reads:
"Whenever an order is issued under this section, at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses including the attorney's fees as determined by the board to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person committing such violation.”
. The New Jersey court went on to state, quoting from Garrow v. Elizabeth Gen. Hosp. and Dispensary,
" ‘[t]he exhaustion doctrine is not an absolute. Exceptions exist when only a question of law need be resolved ...; when the administrative remedies would be futile ...; when irreparable harm would result ...; when jurisdiction of the agency is doubtful ...; or when an overriding public interest calls for a prompt judicial decision_ The assertion of a constitutional right may be one factor to be considered in determining whether judicial intervention is justified — but it is only one of many relevant considerations_" (Citations omitted).
. Furthermore, there may be cases where the facts which state a cause of action under Harless would not come within the antidiscrimination provisions of either federal or State law. Indeed, here, the plaintiff argues that his conduct is not protected by federal and State law. We need not need resolve that precise issue here. See United Mine Workers of America v. Miller,
Dissenting Opinion
dissenting:
I object strongly to both the Court’s holding that utilization of statutory remedies is not a necessary prerequisite to a suit for wrongful discharge, and its holding that the plaintiff’s implied contract claim is cognizable under West Virginia law.
I.
Allowing disgruntled employees to sue in state court without first pursuing their administrative remedies guts the remedies provided by federal and state legislatures in the mine safety statutes, and burdens the courts of this State with cases that could be more fairly and more efficiently resolved in the administrative systems established expressly for this purpose. It ordinarily is presumed that when a legislature provides a remedial scheme along with its enactment of statutory proscriptions of unjust dismissal, the administrative procedures provided in the statute are sufficient to protect the public policy in issue. See, e.g., Wolk v. Saks Fifth Avenue, Inc.,
The Supreme Court of Oregon has decided a case virtually identical to this one. In Walsh v. Consolidated Freightways, Inc.,
Although the situation in this case is similar [to the case establishing the public policy exception to the at-will doctrine], there is one decisive difference. It is true, of course, that the community has a strong interest in maintaining safe working conditions. That interest has been expressed in both state and federal statutes (citations omitted). Correspondingly, we would agree that employers should not be allowed to discharge employees solely for complaining about safety problems. However, unlike the situation in [the other case], an employee who is discharged because he complained of a safety violation is provided remedy under existing law for his wrongful discharge.
The United States District Court for the Southern District of West Virginia has read Harless in a similarly restrictive manner. In Guevara v. K-Mart Corporation,
Further, I believe the majority overstates the holding in Wiggins v. Eastern Assoc. Coal Corp.,
A holding that the administrative remedies are exclusive would best promote the orderly resolution of retaliatory discharge claims. At a minimum, this Court should require exhaustion of either state or federal remedies prior to institution of suit in state court.
It appears that access to our courts as a parallel forum for enforcing statutory rights can be restricted only by the Legislature, and I urge the Legislature to add such provisions to existing acts, and to include them in future legislation, if it intends an effective administrative forum for resolution of claims.
II.
Finally, the Court's consent to allow Mr. Collins to pursue a claim for breach of an implied contract is nothing short of frightening. If a contract for perpetual employment can be found based on the fact that an employer described the company’s pension benefits to a salaried employee, the doctrine of at-will employment is truly dead. The majority’s reliance on Cook v. Heck’s, Inc.,
Moreover, even if West Virginia recognized implied-in-fact employment contracts, Mr. Collins has only testified that the company would keep him on as long as his performance was satisfactory and competent. Even in states that recognize implied employment contracts, an agreement for “satisfactory performance” is not enforceable because it is a purely subjective term measured by the employer. See, e.g., Gordon v. Matthew Bender & Co.,
For the reasons set out herein, I respectfully dissent.
I am authorized to state that Justice NEELY joins in this dissent.
. Although cited by the majority as support for its holding, Price v. Boone County Ambulance Auth.,