Kenneth A. WIGGINS v. EASTERN ASSOCIATED COAL CORP.
No. 17145.
Supreme Court of Appeals of West Virginia.
May 15, 1987.
Dissenting Opinion July 14, 1987.
357 S.E.2d 745
MCGRAW, Chief Justice
Charles Q. Gage, Larry W. Blalock, Jackson, Kelly, Holt & O‘Farrell, Charleston, for appellee.
MCGRAW, Chief Justice:
This is аn appeal from an order by the Circuit Court of McDowell County dismissing the appellant‘s action seeking damages for his wrongful discharge. The circuit court ruled that the appellant‘s exclusive remedy was through the administrativе complaint procedures detailed in the anti-discrimination provisions of the federal and state mine safety laws.
According to his complaint,1 the appellant was a foreman at the appellee‘s Keystone No. 1 mine in McDowell County. On March 26, 1982, the appellant ordered a roof bolting machine shut down to correсt a ventilation problem. He was reprimanded for this action and transferred to the nonproduction third shift. Within a few days, the appellant was verbally reprimanded for refusing to operate an improperly wired roof bolting machine until the wiring was corrected. The appellant was fired on April 9, 1982.
The appellant filed a discrimination complaint with the Federal Mine Safety and Health Administration, which eventually resulted in an award of backpay, attorneys fees, and incidental costs. The action filed in circuit court was a tort action for certain compensatory and punitive damages which the appellant contends were not available to him under either the state or federal mine safety statutes.
The appellee argues that the remedies made available under the federal and state mine safety statutes2 are adequate to protect public policy interests in employee safety and that, therefore, these remedies should be the exclusive ones available to a wrongfully discharged employee. Under each of the statutes, the administrаtive body charged with hearing the complaint may “take such affirmative action to abate the violation as . . . [it] deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay.”
In its brief, the appellee recognizes that only equitable relief is available through the administrative proceedings in question, and contends that this is the only relief which the state and federal legislative bоdies intended to make available to discriminatees. The appellee does not point to any language in either of the statutes which makes the available equitable remedies exclusive. Rather, the appellee relies on a common law rule of exclusivity expressed by this Court in 1883 that
[w]hen a statute creates a new offence and denounces the penalty, or gives a new right and declares the remedy, the punishment or the remedy can be only that which the statute prescribes. Syl. Pt. 2, Lynch v. Merchants National Bank, 22 W.Va. 554 (1883).
Thus, the appellee contends that the only recourse open to a miner discriminated against because of safety issues is the administrative proсess and the remedies available under the safety statutes. What the appellee fails to acknowledge, however, is that this Court has recognized an exception to the exclusivity rule where the available аdministrative remedy is inadequate. Price v. Boone County Ambulance Authority, 175 W.Va. 676, 678-679, 337 S.E.2d 913, 915-16 (1985); see Atchison, Topeka and Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987).
The appellant in this case filed an action based on our decision in Harless. The common law wrongful discharge action recognized in Harless follows the applicable rules relating to tort damages, Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 309-10, 270 S.E.2d 178, 182 (1980), 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 Harless conclusion that the right to discharge an at will employee must yield when that discharge violates some substantial public policy was made in light of оur examination of the trend in similar contemporary decisions by our sister jurisdictions. The appellee points out that Oregon, one of the states which recognizes a wrongful discharge action, has refused to extend this right to those discharged in retaliation for
We are unpersuaded by the Oregon court‘s conclusion in Walsh that the available statutory remedies are adequate in the case of a retaliatory discharge for safety related actions. As that court itself observed in allowing a wrоngful discharge action for employees fired after resisting sexual demands or harassment,
[r]einstatement, back pay, and injunctions vindicate the rights of the victimized group without compensating the plaintiff for such personаl injuries as anguish, physical symptoms of stress, a sense of degradation, and the cost of psychiatric care. Legal as well as equitable remedies are needed to make the plaintiff whole. Holien v. Sears, Roebuck and Co., 298 Or. 76, 689 P.2d 1292 (1984).5
The primary purpоse 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, see Marshall v. Intermountain Electric Company, 614 F.2d 260 (10th Cir.1980), and victims of discrimination must look to the courts to receive full compensation for the violation of their legal rights. “[V]ictims of unlawful discrimination have access to our courts when the main object of their complaint is to recover damаges.” State Human Rights Commission v. Pearlman Realty Agency, 161 W.Va. 1, 6, 239 S.E.2d 145, 148 (1977).
While it is true that the provision of a comprehensive remedial scheme is a strong indication of a legislative intent of exclusivity, Mahoney v. Crocker National Bank, 571 F.Supp. 287, 293 (N.D.Cal.1983), the statutory remedies in the antidiscrimination provisions are limited rather than comprehensive. That, in combination with the silence of the 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 171 W.Va. 509, 300 S.E.2d 622 (1983), convinces us that thеre was no legislative intent to make the remedies detailed in the antidiscrimination portions of the safety statutes exclusive.6
II.
The remaining issue is whether the appellant should be barred from pursuing his common law remedies bеcause he did not exhaust his administrative remedies under
For all of these reasons, the judgment of the Circuit Court of McDowell County is reversed, and the case is remanded for trial.
Reversed and Remanded.
BROTHERTON, Justice, dissenting:
I respectfully dissent from the Court‘s opinion permitting Wiggins to pursue a tort cause of action following his award of damages under the administrative procedures of the mine safety statutes.
I would hold that the remedy provided the appellant under the federal and state mine safety statutes1 was his exсlusive remedy, barring an additional tort action in state circuit court.
The majority cites the opinion of this Court in Price v. Boone County Ambulance Auth., 175 W.Va. 676, 337 S.E.2d 913 (1985), for the proposition that an exception to the exclusivity principle exists where the available administrative remedy is inadequate.2 The majоrity distorts the exclusivity exception we recognized in Price.
The question in Price was whether a plaintiff may sue in circuit court to enforce the substantive provisions of the West Virginia Human Rights Act without complying with the Act‘s administrative process. We “recognized that the administrative process established by our Human Rights Act was not achieving its intended purpose. . . .” 175 W.Va. at 678, 337 S.E.2d at 916. We noted the exclusivity principle which provides that where a statute gives a new right and declares the remedy, the remedy may be only that provided in the statute. See syl. pt. 2, Lynch v. Merchants Nat‘l Bank, 22 W.Va. 554 (1883). We noted, however, that “[c]ourts have recognized an exception to this rule . . . where there is no adequate administrative remedy.” 175 W.Va. at 678, 337 S.E.2d at 916. Concluding that the administrative proсess under the Human Rights Act was not achieving its intended purpose, we held that persons aggrieved by human rights violations had “the option to proceed in circuit court, as an alternative to initiating administrative action.” Id. We made clear, however, that those two avenues were mutually exclusive. Id. More importantly to the present case, we stated that damages awarded in an action in circuit court were limited to the statutory remedies set out in the Human Rights Act.3 Id.
Thus, while Price established an exception to exclusivity of statutory process, Price did not provide an exception to the exclusivity of statutory remedy. As the United States District Court for the Southern District of West Virginia cоrrectly stated:
[E]ven though the Price decision allows a party to initiate an action without exhausting administrative remedies, it does not sanction a suit wholly separate and apart from the statute.4
Yet the majority reads Price as allowing, not an alternative remеdy, but an additional remedy for retaliatory discharge.
While Price might possibly be read to allow Wiggins a choice whether to bring his action pursuant to administrative process or in the circuit court, contrary to the majority‘s opinion, this Court in Price did not create a mechanism to allow Wiggins double recovery in his employment discrimination action. I, therefore, dissent.
I am authorized to state that Justice NEELY joins me in this dissent.