WHEELING JESUIT UNIVERSITY, INC. v. KATHRYN A. VOORHEES, JASON FULLER, JESSICA WROBLESKI, PETER EHNI, ANDREW STARON, AMY CRINITI PHILLIPS, NANCY BRESSLER, and JOHN W. WHITEHEAD III
No. 23-ICA-324, No. 23-ICA-383
Intermediate Court of Appeals of West Virginia
October 15, 2024
LORENSEN, JUDGE
Fall 2024 Term. Appeal from the Circuit Court of Ohio County, Case No. CC-35-2019-C-218, Honorable Ronald E. Wilson, Judge. AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED.
Jeffrey M. Cropp, Esq.
Steptoe & Johnson, PLLC
Bridgeport, WV
Counsel for Petitioner
Walt Auvil, Esq.
Kirk Auvil, Esq.
The Employment Law Center, PLLC
Parkersburg, WV
Counsel for Respondents
Submitted: September 4, 2024
Filed: October 15, 2024
Petitioner Wheeling Jesuit University, Inc. (“WJU“) appeals the January 20, 2023, and June 26, 2023, orders of the Circuit Court of Ohio County granting Respondents Kathryn Voorhees, Jason Fuller, Jessica Wrobleski, Peter Ehni, Andrew Staron, Amy Criniti Phillips, Nancy Bressler, and John W. Whitehead III‘s (collectively “Respondents“) second motion for summary judgment and itemized statement of damages. On August 15, 2023, the circuit court entered its Final Judgment Order memorializing its findings from the two previous orders.
Respondents were either tenured or tenure-track faculty members at WJU. On March 28, 2019, Respondents were notified that their employment would not be renewed for the 2019-2020 academic year due to a declaration of financial exigency made by the WJU board of trustees. In its order granting summary judgment, the circuit court held that WJU breached Respondents’ employment contracts and violated the West Virginia Wage Payment and Collection Act (“WPCA“). The circuit court awarded damages for unpaid wages plus liquidated damages pursuant to the WPCA.
Upon review, we find that the circuit court erred when it granted summary judgment as to the tenure-track Respondents’ breach of contract claim, but affirm the circuit court‘s grant of summary judgment as to the tenured Respondents. We further find that the WPCA does not apply to Respondents and reverse and remand for entry of an order recalculating damages to consider mitigation as to three of the four tenured Respondents,
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondents are all former faculty members of WJU. In or around February of 2018, Respondents were issued Notices of Reappointment for the 2018-2019 academic year. Pursuant to these notices, four of the Respondents, Fuller, Staron, Phillips, and Bressler (the “tenure-track Respondents“) were reappointed to tenure-track positions in their probationary period. The remaining four Respondents, Voorhees, Wrobleski, Ehni, and Whitehead (the “tenured Respondents“) were appointed to tenured positions.
Approximately a year later, on March 28, 2019, each of the eight Respondents received a notice of non-reappointment stating their employment was being terminated at the end of the 2018-2019 academic year due to WJU‘s financial exigency. WJU determined that it needed to make significant changes to its academic programs to remain open to students. WJU completely eliminated certain academic programs, including the English major, the Chemistry major, and the Theology major. Other programs, including the Physics major, were reduced. Respondents’ positions were affected by the cuts made to the WJU academic programs. WJU continued to pay Respondents their
Respondents’ terms and conditions of employment were set forth in the Wheeling Jesuit University Faculty Handbook (2/23/18) (“Faculty Handbook“).1 Pursuant to the Faculty Handbook, tenured or tenure-track faculty members who are terminated during the term of an appointment “not for cause” are entitled to receive a “terminal appointment” for the following academic year. A terminal appointment entitles faculty members to an extra academic year of employment. Whether the faculty member is asked to teach during the terminal appointment is at the discretion of the President of WJU, but if the faculty member chooses to decline such a request, the employment relationship is severed.
Respondents filed the underlying action against WJU, arguing that WJU breached their employment contracts by refusing to provide them with terminal appointments for the 2019-2020 academic year. Respondents also argued that WJU violated the WPCA because WJU‘s refusal to grant them terminal appointments resulted in unpaid wages for the 2019-2020 academic year. The parties filed cross motions for summary judgment. In granting Respondents’ motion, the circuit court held that
II. STANDARD OF REVIEW
The West Virginia Supreme Court of Appeals has long 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.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). We review a circuit
III. DISCUSSION
WJU asserts four assignments of error on appeal. First, WJU argues that the circuit court erred in granting summary judgment on Respondents’ breach of contract claim regarding Respondents’ eligibility for terminal appointments as WJU‘s state of financial exigency was a “for cause” reason for termination. Second, WJU argues that the circuit court erred when it granted summary judgment on Respondents’ WPCA claim because a terminal appointment does not satisfy the definition of wages or accrued fringe benefits under the WPCA.
WJU makes two alternative arguments in the event we determine that the circuit court did not err in granting summary judgment. First, WJU argues that the circuit court erred by failing to reduce Respondents’ damages by their interim earnings as required by
WJU argues that the circuit court erred when it applied Section 7.5 instead of Section 7.4 of the Faculty Handbook to the tenure-track Respondents and found that WJU had breached Respondents’ employment contracts.3 WJU argues that neither the tenured nor tenure-track faculty members were eligible for terminal appointments because WJU had declared that it was in a state of financial exigency. We will address tenure-track and tenured faculty separately below.
“A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.” Syl. Pt. 3, Miller v. WesBanco Bank, Inc., 245 W. Va. 363, 859 S.E.2d 306 (2021) (quoting Syl. Pt. 1, Sally-Mike Properties v. Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985)). “If language in a contract is found to be plain and unambiguous, such language should be applied according to such meaning.” Fraternal Ord. of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97, 101, 468 S.E.2d 712, 716 (1996).
WJU argues that this Court should apply Section 7.4, not Section 7.5 of the Faculty Handbook, to tenure-track faculty. Section 7.4 specifically relates to the non-renewal of a tenure-track appointment in probation at the end of a term. In full, Section 7.4 states:
7.4 Non-Renewal of a Multi-Year Appointment, a Non-Tenure-Track Appointment, or a Tenure-Track Appointment in Probation at End of Term
Tenure-track faculty appointments in probation and non-tenure track faculty appointments may not be renewed at expiration of the appointment period based upon financial exigency (legal term); change in University mission or needs; program termination, reduction, or redirection; a faculty member‘s inability to perform or lack of performance of the essential functions or fundamental job duties of his position; mental or physical disability; failure to comply with University policies; conviction of a felony; or moral turpitude, as determined by the Administration. (emphasis added)
In contrast, Section 7.5 relates to termination during the term for tenured or non-tenure-track faculty members. In full, Section 7.5 states:
7.5 Termination of a Tenured Appointment or of a Non-Tenure-Track Appointment During the Term
A tenure appointment or non-tenure track appointment during term may be terminated because of financial exigency (legal term); change in University mission or needs; program termination, reduction, or redirection; a faculty member‘s inability to perform or lack of performance of the essential functions or fundamental job duties of his position;
mental or physical disability; failure to comply with University policies; conviction of a felony; or moral turpitude. Revocation of an appointment during the term because of professional incompetence (for cause) is termed dismissal. In the case of the termination of a faculty member for any of these circumstances, the President, CAO and appropriate Chair must meet to review, discuss, and recommend termination to the Board of Trustees which will make the final decision. A faculty member who has been terminated has the right to appeal through the Due Process Procedures in Section 13. Tenured or tenure-track faculty members whose appointments are terminated (not for cause), are given a terminal appointment for the next academic year. At the discretion of the President, a faculty member may or may not be asked to teach during the terminal appointment. If the faculty member is offered the opportunity to teach, and chooses not to do so, the employment relationship is severed. (emphasis added)
The parties dispute whether the second paragraph of Section 7.5 applies to tenure-track faculty members whose appointments were not renewed for the next academic year. WJU argues that Section 7.5 contemplates an appointment‘s termination during the term and does not apply here because Respondents remained employed for the entire current appointment (the 2018-2019 academic year). On the other hand, Respondents argue that the plain language of Section 7.5 requires that all tenured or tenure-track faculty are entitled to terminal appointments upon termination.
Here, the tenure-track faculty members were given notice on March 28, 2019, that their appointments were not to be renewed for a new term (the 2019-2020 academic year), but they were permitted to complete the remainder of their current
2. Tenured faculty
In contrast to the tenure-track Respondents above, the tenured Respondents were entitled under the Faculty Handbook to continuous appointments (as opposed to year-by-year appointments in the case of tenure-track faculty) in their respective departments. “Tenure” is defined in Section 6.4.4 of the Faculty Handbook as:
6.4.4 Tenure
Tenure means the right to continuous appointments as a ranked member of a particular department or program within a particular department until the faculty member dies, retires, resigns or is dismissed for adequate cause or lack of institutional need as indicated in Sections 7.5, 7.6, 7.7, or 7.8 of this Handbook. The Tenure appointment is normally for full-time service but, by mutual agreement, it may specify a reduced load. (emphasis added)
Section 6.4.4 specifically permits WJU to dismiss tenured faculty based on financial exigency, as indicated in Section 7.5. “Financial exigency” is defined as:
7.6 Financial Exigency
“Financial Exigency” (a legal term) is defined as the critical, pressing, or urgent need on the part of the University to reorder its monetary expenditures in such a way as to remedy and relieve the state of urgency within the University created by its inability to meet its annual monetary expenditures with sufficient revenue to prevent a sustained loss of funds and/or abandonment of its stated institutional mission.
Financial Exigency must be declared by the Board of Trustees. Reasons for declaring financial exigency must be given in writing to those Faculty Council members who agree to sign an NDA. The Faculty Council may tell the Faculty that they (as members of Council) agree or disagree with the necessary measures.
Unlike with the tenure-track Respondents, WJU does not dispute that it terminated the tenured Respondents’ appointments pursuant to Section 7.5. Instead, WJU contends that financial exigency is a for-cause reason for termination of tenured faculty and thus, the tenured faculty here are not entitled to terminal appointments. We disagree. Section 13.3 of the Faculty Handbook states, in part:
13.3 Dismissal and Suspension
Individual faculty members who have tenure or whose term of appointment has not expired may be dismissed for cause. “For cause,” includes poor teaching performance, negligence in the performance of duty, repeated failure to meet the express written policies of the institution, moral turpitude, professional, financial or ethical dishonesty, conviction of a felony, or loss of licensure/certification. [sic] (emphasis added)
Here, WJU was permitted to terminate tenured faculty due to financial exigency per Section 7.5, but financial exigency is not a “for cause” reason for dismissal that would preclude the tenured Respondents from receiving terminal appointments. Thus, WJU breached the tenured Respondents’ employment contracts by failing to provide them terminal appointments for the 2019-2020 academic year.
B. West Virginia Wage Payment and Collection Act
In our discussion above, we concluded that the tenured Respondents are entitled to terminal appointments per their employment agreement. Whether the tenured Respondents are entitled to the civil penalty provisions of the WPCA due to WJU‘s failure to honor the terminal contracts depends on whether terminal appointments constitute “wages” or “fringe benefits” per the WPCA. The WPCA states: “[i]f a person, firm, or corporation fails to pay an employee wages as required under this section, the person, firm, or corporation, in addition to the amount which was unpaid when due, is liable to the employee for two times that unpaid amount as liquidated damages.” (emphasis added).
The term “wages” means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission, or other basis of calculation. As used in § 21-5-4, § 21-5-5, § 21-5-8a, § 21-5-10, and § 21-5-12 of this code, the term “wages” shall also include then accrued fringe benefits capable of calculation and payable directly to an employee.
Respondents argue that this case is analogous to Miller v. St. Joseph Recovery Cntr. LLC, 246 W. Va. 543, 874 S.E.2d 345 (2022). In Miller, our Supreme Court of Appeals interpreted the definition of fringe benefits to include a severance package owed pursuant to an employment contract. Id. The court reasoned that “[t]he severance package was an inducement to procure an employee‘s services and represented a form of deferred compensation for work performed during the employment.” Id. at 553, 874 S.E.2d at 355. Moreover, the court emphasized the importance of the terms of the employment contract when deciding when a fringe benefit vests. On this issue, the court held that “[t]he concept of vesting is concerned with expressly enumerated conditions or requirements all of which must be fulfilled or satisfied before a benefit becomes a presently enforceable right.” Id. Thus, unless the employment contract expressly contains language to the contrary, a severance package is considered a fringe benefit and subject to the WPCA. Id.
We find that Miller is distinguishable from the facts before us. Section 7.5 of the Faculty Handbook states that “[a]t the discretion of the President, a faculty member
C. Mitigation of damages
Next, we move to WJU‘s two remaining assignments of error that were raised in the alternative. First, WJU argues that the circuit court erred when it found that the tenured Respondents had no duty to mitigate their damages and awarded them the full
1. Tenured Faculty Who Mitigated
Pursuant to
In any employment law cause of action against a current or former employer, regardless of whether the cause of action arises from a statutory right created by the Legislature or a cause of action arising under the common law of West Virginia, the plaintiff has an affirmative duty to mitigate past and future lost wages . . . Any award of back pay or front pay by a commission, court or jury shall be reduced by the amount of interim earnings or the amount earnable with reasonable diligence by the plaintiff. It is the defendant‘s burden to prove the lack of reasonable diligence. (emphasis added)
Here, Respondents Wrobleski, Ehni, and Whitehead are all former employees of WJU that have common law contract claims against WJU. Under those claims, Respondents Wrobleski, Ehni, and Whitehead have sought, and were awarded by the circuit court, back pay for the terminal appointments that WJU failed to award them. Based on our foregoing holding that terminal appointments are not a fringe benefit like the severance package in Miller,
The circuit court relied on Miller in holding “mitigation has no relevance to wages already earned while [Respondents] were employed by [WJU].” Having found that Miller and the WPCA are inapplicable to the facts before us, we hereby find
Second, WJU argues that the circuit court erred when it failed to reduce Respondent Voorhees’ damages because she did not engage in reasonable diligence to find subsequent employment.
An employee, demanding damages for alleged breach of his contract of employment, may rest his case upon proof of a valid contract and its breach, the measure of his damages being the contract price of his services. Mitigation of damages is an affirmative defense, and its burden is entirely on the contract breaker. This burden is not sustained by showing that the injured party was offered employment, though similar to that contracted, unless at a place reasonably convenient to him.
Syl., in part, Martin v. Bd. of Ed. of Lincoln Cnty., 120 W. Va. 621, 199 S.E. 887 (1938). In the related context of employment discrimination claims, the Supreme Court has explained that “[t]he defendant may satisfy his burden [on mitigation] only if he establishes that: (1) there were substantially equivalent positions which were available; and (2) the claimant failed to use reasonable care and diligence in seeking such positions.” Rodriguez v. Consolidation Coal Co., 206 W. Va. 317, 327, 524 S.E.2d 672, 682 (1999) (citation omitted). We find that Rodriguez provides relevant criteria for evaluating diligence in a breach of employment contract case like the case at hand.
IV. CONCLUSION
For the foregoing reasons, we affirm, in part, reverse, in part, and remand for further proceedings consistent with this opinion.
Affirmed, in Part, Reversed, in Part, and Remanded.
LORENSEN, JUDGE