*1 allowing juries awarding puni- a free hand in damages guise “compensatory”

tive injuries” “emotional mental

damages for damages addition to assessed

defendant on his conduct. It is an based awarding

open for the of double invitation Further, I do believe that

recoveries. majority opinion

Syllabus 15 of the Point mitigate danger.

does much to this openended-

majority opinion reintroduces that Dzinglski

ness into area of the law this designed correct. conclusion, above, for the stated reasons

I I part. dissent in reiterate that I would jury

reverse the entire verdict case. J.,

MeCuskey, separate filed concurring opinion. Starcher, JJ., sepa-

Workman and filed opinions dissenting rate in part and concur- ring in part.

506 S.E.2d 578

Betty TIERNAN, A. Plaintiff

Below, Appellant, AREA

CHARLESTON MEDICAL CEN

TER, INC., Virginia Corpora a West

tion, Below, Appellee. Defendant

No. 24434.

Supreme Appeals Court of Virginia.

West

Submitted Feb. 1998. May

Decided 1998. Opinion

Dissenting Concurring

Justice Starcher 1998. June

Concurring Opinion Justice

McCuskey June 1998. Opinion

Dissenting Concurring July Workman

Justice *2 County granting summary

Court of Kanawha judgment to Charleston Area Medical Cen- ter, (hereinafter appellee/defendant, “CAMC”). asserted numerous liability regarding theories of the termination *3 employment by of her CAMC. The circuit following court made the rulings on those theories: that as a matter of law Ms. Tier- liability nan’s constitutional theories of did apply private employer; to a that Ms. statutory placed genuine Tiernan’s claims no issue of dispute; material fact in theories of breach of re- contract/detrimental liance, tortious interference with a business relationship, statutory and violation of regulatory public policies supported were not by genuine evidence sufficient to raise issues assigns material fact. Ms. Tiernan error to each of the circuit rulings court’s on her recovery. claims for We find that the circuit correctly granted court summary judgment on Ms. Tiernan’s constitutional claims. We further correctly find that the circuit court granted summary judgment on Ms. Tiernan’s claim for tortious interference with a busi- relationship; ness and that the circuit court’s present adequate findings orders failed to review this remaining Court on all claims. Consequently, part we affirm in and reverse part summary judgment the circuit court’s orders.

I. AND FACTUAL PROCEDURAL

BACKGROUND This case arose as a result of Ms. Tiernan’s discharge employment by from Ms. CAMC. Auvil, Auvil, Pyles Parkersburg, Walt & employed Tiernan was as a nurse CAMC Appellant. May May of 1985 to 1994. Prior to good Tiernan relationship Ms. had Weber, Mohler, Stephen Kay, A. Dina M. CAMC. She had an excellent work with Casto, Wise, Charleston, Chaney, Love & history part manage- and was of CAMC’s Appellee.

ment staff. DAVIS, Chief Justice: February On Ms. Tiernan wrote Tiernan, appeal Betty This is an A. a letter to the editor of The Ga- Charleston (hereinafter appellant/plaintiff, published “Ms. Tier- zette. The letter was edited and nan”) from two orders entered newspaper February Circuit 1994.1 The ap- 1. The edited version of Ms. Tieman's letter Editor the Gazette:. peared newspaper in the appreciation as follows: This is a letter of to Charleston slowly surely Readers’ forum Area Medical Center for but low- Compassion ering place will survive in the morale work to an unbeliev- managers to only specific upper cut- and middle budgetary criticized CAMC’s letter spoke meeting. Ms. Tier- invitation not include The did CAMC officials backs. her to of media. letter cautioned members nan about the future, before consult with CAMC Shortly meeting began, Ms. Tier- after the ad- press. CAMC airing her views meeting where was nan entered the room that, part of the man- Tiernan vised Ms. by a re- being accompanied newspaper held team, duty portray agement had she employee standing A at the porter.3 CAMC that man- and other staff members Tiernan; but, recognize Ms. door did was in- agement was Ms. Tiernan united. in- recognized reporter. repercussions be taken formed that no would could not enter the reporter formed she letter.2 A few weeks against her for the meeting. reporter stated that she newspaper, appeared after the letter by Ms. Ms. Tiernan and the invited Tiernan. *4 Ms. given an evaluation. Ms. Tiernan was Ms. reporter meeting. entered the Both “meets” or was CAMC as Tiernan rated newspaper reporter had Tiernan and the catego- “exceeds” on each of evaluation meeting. tape and recorded the recorders Ms. The also noted that ries. evaluation terminated Ms. several CAMC Tiernan supportive more of Tiernan needed to be meeting. after basis for hours CAMC’s given a raise management. Ms. Tiernan was termination was that Ms. Tiernan’s conduct after the evaluation. bringing newspaper reporter to a of 2, 1994, May a non- On CAMC scheduled meeting wrong was and warranted closed planned merger a public meeting to discuss ap- Tiernan invoked CAMC’s dismissal. Ms. affiliation St. Francis Health Care with appeal peal procedures. Her was unsuccess- meeting Systems, Inc. to be tele- ful. internal, tele- vised on closed-circuit CAMC’s termination, specifical- After Ms. Tiernan secured vision station. The broadcast was employment nursing supervi- a ly viewing per to at screens diem limited television Center, Inc., Hodges B. Further- sor with Arthur located workstations. “ABHC”) (hereinafter geriatric more, pa- patient from a was blocked broadcast nursing home with planned to hold affiliated CAMC.4 When tient television. CAMC immediately after the meet- CAMC learned of Ms. Tiernan’s news conference ABHC, pro- and ing general inform with CAMC contacted ABHC to also agreement. invited informed that Ms. Tiernan was posed affiliation CAMC ABHC level; But, CAMC, your corpo- cutting raise able the nurses' merit bear mind and for heart, things ceiling percent percent not with from of 8 to 4 rate I will share these scale decreasing matching you. annually; funds for R.N., Ave., Tiernan, accounts; Betty Virginia City reducing A. our for retirement for and monies educational assistance conference appears CAMC It that Ms. Tiernan informed pursue higher employees level who wish newspaper print of that the did not the real issue learning professionalism. and expressed she in her letter. concern unedited you losing sight Thank the fact that policy for CAMC; That issue involved the on-call work your employees a life have outside of policy nurses. CAMC revised its on-call subse- homes, friends; we have families and quent informing Ms. her Tiernan CAMC of deserving recuperative we need and are policy. with the on-call dissatisfaction away you, time too, this institution. Thank cynicism creating I in me a level of initially newspaper re- possible. 3. Ms. took the never dreamed Tiernan However, CAMC, broadcasting porter sta- thing you to one the television can- there is one However, apparent sound destroy tions. because compassion not do. that is And problems news- Ms. Tiernan decided to take the caring my patients and have for and their I paper reporter meeting. the actual highest I families. will continue deliver the possibly will contin- standard of care I can. I respect support my ue to and fellow nurses relationship exact of CAMC’s with 4. The nature joy of a appears their endeavors. I will still feel the It ABHC is clear from record. patient's lose; grieve actually healing ones we for the of ABHC was Administrator and4 However, ap- my patients employed families I will it does not with CAMC. touch, hiring pear termi- share a confidence than that CAMCcontrolled and more ABHC. few tears. nation decisions of working organizer.5 pro- clarify as a union ABHC facts is not desirable to application upon Syl. vided no further work for Ms. Tiernan of the law.” Pt. Casualty Aetna & Surety N.Y., learning of her union activities. Co. v. Federal Ins. Co. 160, 133 (1963). course, W.Va. S.E.2d 770 Of against Ms. Tiernan filed suit CAMC on particular mere fact that a “[t]he cause of February complaint 1995. Ms. Tiernan’s action contains typically elements which raise (1) asserted that her termination violated jury a factual issue for determination does embodied state constitu- automatically immunize the case from association; tional to free summary judgment. must still (2) her, terminating CAMC breached discharge his or her burden under West Vir their oral contract not to retaliate 56(c) ginia Rule of Civil Procedure demon publishing February letter strating legitimate jury question, that a i.e. a detrimentally and that she relied genuine fact, present.” issue material (3) agreement; tortiously that CAMC inter- Law, Syl. Pt. Jividen v. relationship fered with her business S.E.2d 451 This Court indicated in ABHC; and that Ms. Tiernan’s termi- syllabus point 5 of Jividen that: by/from resulting nation CAMC from inade- stated, Roughly a “genuine issue” for quate patient to nurse ratio6 was a matter of purposes of Virginia West Rule of Civil substantial concern and therefore violative of *5 56(c) simply Procedure is one half of a public policy. issue, trialworthy genuine and a issue does parties discovery, After conducted not arise unless there is sufficient evidence summary judgment. CAMC moved for The favoring non-moving party for a rea- initially granted summary circuit court judg- jury sonable to return a verdict for that ment to CAMC on Ms. Tiernan’s constitu- party. opposing trialworthy half of a theory tional theories and the of tortious present issue non-moving par- is where the relationship. interference with a business ty point disputed can to one or more “ma- circuit ruling court reserved on the other terial” facts. A material fact is one that Ultimately, grant- theories. the circuit court capacity sway has the the outcome of summary judgment ed CAMC on the remain- litigation applicable under the law. ing It theories.7 is from the circuit court’s summary judgment two orders that Tier- Ms. III. appeals. nan now DISCUSSION

II. A. STANDARD OF REVIEW Speech State Constitutional Free Claim in syllabus point This Court stated 189, Peavy, v. Painter 192 W.Va. Ms. Tiernan contended before the (1994), S.E.2d 755 that “[a] circuit court’s lower court that she was terminated because entry summary judgment publication is criticizing reviewed de of her letter budgetary novo.” We have held that “[a] motion for cuts CAMC. The circuit court summary judgment granted only should be found as a matter of law that the Free genuine Speech when it is clear that there nois issue Clause of the state constitution does inquiry concerning of fact to tried apply private employers.8 be Ms. Tier- employed organiz- 5. September Ms. Tiernan was as a union Both orders were entered on losing job er for a few months after CAMC. argue 8.Ms. Tiernan did not before the circuit court, does contend nor she before this Court 6. Ms. Tiernan was allowed to amend her com- 13, 1996, that the federal constitutional First Amendment right plaint by August court order on to add speech public policy. to free was a basis of the claim that her termination resulted from her NLRB, 507, 513, Hudgens See v. 424 U.S. protests inadequate patient-to-nurse about ratios. (1976) (holding S.Ct. 47 L.Ed.2d 196 feder- separate provision guaranteeing 7. The circuit court issued two orders al constitutional free granting conduct). summary judgment. private the defendant does not extend to Our tempered firing employee an at will must be basis for her argues9 that nan policy principle employer’s where the motiva- public embedded a substantial violated discharge free is some constitutional tion for the to contravene in the state then public policy principle], Const. Art. contained W.Va. substantial speech10 ease, employee Tiernan was an at- employer may In this Ms. be liable to the Sec. 7.11 employer. Syl., sector private damages discharge.” will occasioned this generally Bank, held that will “[a]t has This Court First 162 W.Va. Harless v. National employees, well other have employees, as syllabus point In involving in circumstances protections certain 2 of Health Services Birthisel Tri-Cities Hugh Mer- public policy.” v. General Cordle Corp., S.E.2d Corp., cer 174W.Va. S.E.2d identify the sources we held that “[t]o (1984). “A of the exis- determination purposes determining public policy Virginia policy in is a West tence occurred, retaliatory discharge has whether a law, question than a of fact question of rather precepts look in our consti- we to established Syl. pt. CAMC ar- jury.” for a Cordle. tution, enactments, legislative legislatively gued any public policy contained judicial opinions.” approved regulations, and Speech constitutional Free Clause state jurisdictions, Numerous courts other employers. sector inapplicable making a determination of whether impression one of first for this This issue is violated, policy has unani- standard been Court. mously position take the Policy preexisting germinate has to Twenty years Public General. constitutional, statutory regulatory provi- rule ago “[t]he held that judicial discharge It prior has an sions decisions.12 absolute therefore, (1990); analysis, confined to Free St.3d 551 N.E.2d 981 Ohio Cha Speech N.M. Corp., Clause of the state constitution. Manville Prod. vez (1989); P.2d *6 Luedtke Alaska 371 v. Nabors Drill petition appeal Ms. Tiernan submitted (Alaska 1989); ing, 768 P.2d 1123 Griess v. Con response in this CAMCfiled a as her brief case. (Wyo. P.2d 752 Corp., 776 Freightways solidated appeal petition as well as an brief. Ms. 1989); Sterling Drug, Oxford, 294 Ark. Inc. v. reply filed a brief. Tiernan 239, (1989); Daily S.W.2d 380 743 Peru Tribune (Ind.Ct.App.1989); Shuler, 544 N.E.2d 560 v. argu- does not address 10. Ms. Tiernan’s brief (Okla.1989); 24 Corp., 770 P.2d Burk v. K-Mart complaint regarding allegations in her that ment 291, Nev. 774 Baby Corp., 105 Grand Wiltsie v. her constitutional to association was violat- Ltd., (1989); P.2d Berube v. Fashion Ctr. 771 432 argument ed. Nor does the brief set forth (Utah 1989); P.2d 1033 v. Cronk Intermountain regarding alleged due denial of constitutional Ass’n, (Colo.Ct.App. 765 P.2d 619 Rural Elec. failing pre-termination process in hold a hear- 893, 1988); Brown, 242 Kan. 752 P.2d v. Palmer ing. appeal merely or men- Issues raised on (1988); 685 402 Shop, Mass. Stop v. Mello & passing Syl. tioned in are deemed waived. See 555, (1988); Kreiser’s, 524 N.E.2d 105 v. Johnson 306, 6, 284 Bryant, Pt. Addair v. (S.D.1988); Phipps Inc., 225 433 N.W.2d v. Clark (1981) ("Assignments 374 of error that S.E.2d (Minn. Corp., 408 N.W.2d 569 Refining &Oil argued appeal may be are not the brief on 1987); Home, Nursing v. Marian Manor Krein waived.”). deemed this Court to be (N.D.1987); 415 N.W.2d 793 v. Corn Ambroz 899, Ltd., 226 416 Neb. N.W.2d Square husker 3, provides 7 11. W.Va. Const. Art. Sec. in rele- (1987); Wandry Union, 510 Eye v. Credit Bull's abridging part, "[n]o that law vant freedom 37, (1986); Payne 129 Wis.2d 384 N.W.2d 325 v. passed[.)” ... shall 488, (1986); Rozendaal, 147 Vt. 520 A.2d 586 Evans, (Ky.1985); Grzyb Boyle 700 S.W.2d 399 12. See Harrison Apparel v. Brothers Edison v. 1991); (4th Stores, (Mo.Ct.App. Cir. 700 S.W.2d 859 Eyewear, 924 F.2d 530 v. v. White Vista 534, (10th 1985); Airlines, Bank, 229 Va. 915 F.2d 1414 Cir. 331 v. State American Bowman 1990); (1985); Wagenseller S.E.2d 797 Gary Community Travis v. Mental Health v. Scottsdale Me 370, (7th 1990); Eldridge Center, F.2d 147 710 P.2d 1025 Hospital, 921 108 Cir. Ariz. v. morial (9th Cir.1990); (1985); Carolina, Serv., Inc., 920 F.2d 1434 v. This Felec Short Ludwick Minute of 76, 219, (1985); 16, 287 136 N.H. 612 S.C. 337 S.E.2d 213 Jones v. Admin. Unit No. v. School (1992); (Tex.App. Sys., S.W.2d 221 Hennessey Eagle Hosp. 611 A.2d 364 v. Coastal Memorial 1984); Co., Co., N.J.Super. 247 677 589 A.2d 170 S.W.2d v. Point Oil Clanton Cain-Sloan (Tenn.1984); (1991); Inc., Smithway Xpress, v. Fine Smith Motor MacDonald v. Eastern Pa (Iowa 1991); (Me.1984); Inc., 485 A.2d Hardy, per, Parnar 464 N.W.2d Bennett v. Inc., (1990); Greeley Hotels, 652 P.2d Wash.2d P.2d 1258 65 Haw. Americana (1982); Inc., Contractors, Valley Corp., Adler v. American Standard v. Miami Maintenance Hotels, power against to declare an action in Parnar v. Americana aptly stated 370, 380, Inc., power 652 P.2d public policy Haw. is a broad and one (1982),that: difficult to define. “No fixed rule can be determining public a clear mandate given policy,

In whether to determine what is violated, (citations omitted). should policy is courts public It is sometimes de- employer’s conduct inquire whether principle fined as that of law under which purpose or of a con- contravenes the letter private dealings freedom of contract or are stitutional, statutory, regulatory provi- good restricted law for the of the com- judicial Prior decisions sion or scheme. munity public good.” Higgins v. —the public poli- may the relevant also establish McFarland, 889, 894, 196 Va. However, proceed cau- cy. courts should (1955). Nevertheless, despite public poli- tiously if called to declare power broad vested the courts to deter- legislative judicial cy prior absent some policy, mine we must exercise re- subject. expression we it[:] straint when use Cordle, 325 S.E.2d at W.Va. a court to what is or declare quoted approvingly the obser- this Court public policy is not accord with does vation made Allen Commercial Casual- specific prob extend to economic or social Co., 475, 477-78, 37 A.2d ty Ins. 131 N.J.L. are controversial in nature and lems which 38-39 that: capable only the result of a solution by text writers Much has been written study of various factors and conditions. It meaning the courts as obviously only given policy is when a is so phrase “public policy.” agreed All are that health, safety, for or it meaning is as “variable” as is its a virtual morals or welfare there is “vague,” and that there is no absolute rule it, unanimity opinion regard that a may ... by which courts determine what court constitute itself the voice of the of the state. contravene^] community declaring. so Mamlin v. Ge stated, law, generally is The rule of most noe, 17 A.2d 340 Pa. policy” principle of law “public person lawfully can which holds “no injuri- tendency to be do that which has public policy, an In contrast to the issue of against public good public or ous to the fairly debatable or controver- issue which though injury” may ...” even “no actual legislative by nature better left for sial is *7 particular have resulted therefrom determination. public.” question It is a of case “to the light Discharge. law which the court must decide Policy Wrongful Public And of each particular circumstances case. discharge reviewing public policy wrongful In Court, by we have found the vast PWC, Inc., cases this Triangle in Yoho v. 175 We noted 204, (1985), 556, 561, majority of our cases involved 209 336 S.E.2d W.Va. clearly by was articulated statutes13

that: Inc., 378, sources, 31, (1981); 817 198 W.Va. 480 S.E.2d A.2d 464 Davis v. Loui 291 Md. 432 (La.Ct. Adkins, 215, Corp., (1996); Computing 394 So.2d 678 siana Roberts v. 191 W.Va. 444 App.1981); Harvester Sears, Co., Palmateer v. International (1994); Reed v. Roebuck & S.E.2d 725 13, Co., 124, 421 N.E.2d 876 85 Ill.2d 52 Ill.Dec. 747, (1992); Inc., 188 W.Va. 426 S.E.2d 539 Shield, (1981); v. Blue Cross & Blue Toussaint 538, Co., Lilly Overnight Transp. W.Va. 188 579, (1980); Mich. 292 N.W.2d 880 Sheets v. 408 (1992); County 214 Slack v. Kanawha 425 S.E.2d 471, Foods, Inc., Teddy's 179 427 Frosted Conn. Redevelopment Authority, Housing 188 W.Va. (1980); Gay Law Students Ass'n v. A.2d 385 144, (1992); S.E.2d Mace v. Charleston 423 547 458, 14, Co., Cal.Rptr. 24 156 T&T Cal.3d Pacific Inc., Foundation, 188 W.Va. Area Medical Center (1979); Irriga P.2d 592 Jackson v. Minidoka 595 57, (1992); Energy 624 Davis v. Kitt 422 S.E.2d Dist., 330, (1977); Idaho 563 P.2d 54 tion 98 37, (1987); Wig- Corp., W.Va. 365 S.E.2d 82 179 Hocks, 210, (1975); 272 Or. 536 P.2d 512 Nees v. Corp., gins 178 W.Va. v. Eastern Associated Coal 171, Corp., Geary Steel 456 Pa. v. United States 63, (1987); v. Monon- 357 S.E.2d 745 Shanholtz 174(1974). 319 A.2d Co., 305, gahela W.Va. 270 S.E.2d 178 Power Greene, 421, 200 W.Va. 13. See Williamson v. (1980). (1997); Page Re- v. Columbia Natural S.E.2d 17, wrongful discharge fact, basis for a by formed the In in a recent decision law. common employee terminated for action an at-will Court, Area Medi v. Charleston Tudor by fil- rights 111, exercising the aforementioned Center, Inc., 506 S.E.2d 203 W.Va. cal wages. This an action for overtime ing (1997), policy ema recognized public we by holding: question responded to regulation hospital nating from state providing the basis for patient care as rights an the fundamental One of In we discharge claim. Cordle constructive victim right not to be the emanating public policy claim recognized a is, “retaliatory discharge,” that a dis- of a privacy law as from the common charge employment where the em- from involving an wrongful discharge basis for a discharge is ployer’s motivation for the employer an employee who refused to take public poli- of a substantial contravention Twigg also v. Hercules polygraph test. See cy.... Certainly it in contravention of Corp., 406 S.E.2d 185 W.Va. public policies for an substantial (where contrary public it was we held employee in retaliation for discharge an emanating the common law policy exercising employee’s his or state require an employer to privacy for an petition for rights constitutional redress drug testing). employee to submit to (W.Va. Ill, grievances Art. Sec. Const. 16) of this and to seek access to the courts County McClung In v. Marion Commis- 17) (W.Va. Ill, Art. Sec. State Const. (1987), sion, 360 S.E.2d 178 W.Va. wages. filing ... for overtime an action question public addressed the this Court McClung, 360 S.E.2d at constitution policy emanating from the state Ultimately, the trial court we reversed wrongful discharge action a basis for a jury McClung reinstated the verdict. In government employee. at-will doing'so, general as a matter we observed McClung employed plaintiff was public employee, officer “[a] county dog warden for commission as pleasure at the will and even one who serves County. During his Marion appointing authority, not be dis telephone plaintiff respond to three failed of a charged in retribution for the exercise a result of the involving calls animals. As constitutionally right, protected unless sub conduct, plaintiff suspended for five governmental outweighs the stantial interest day days pay. the last of his without On public employee’s officer’s or interest an action suspension plaintiff filed Citing, exercising right.” Id. Con such county its failure against the commission for 138, 142, Myers, 103 S.Ct. nick U.S. a few pay wages. him Within overtime (1983); 75 L.Ed.2d 716-17 days plaintiff brought his action for after the Trustees, Syl. pt. v. Board Woodruff county wages, commission ter- overtime (1984); Syl. pt. 319 S.E.2d 372 W.Va. plaintiffs employment. The minated the Crowder, Orr v. W.Va. subsequently complaint his amended denied, cert. 469 U.S. retaliatory discharge. A to add a claim for 384, 83 L.Ed.2d 319 S.Ct. jury A verdict was returned trial was held. *8 In v. Board Trustees Cabell plaintiff. in favor of The trial court set of of Woodruff 604, Huntington Hosp., 319 granted judgment jury aside the verdict and (1984), employees county 372 fourteen former notwithstanding verdict S.E.2d Huntington Hospital were termi- opin- of trial court was of the Cabell commission. The distributing leaflets critical of employee at will nated after plaintiff ion that the was an hospital, as well as other support his cutbacks and that the evidence did employees sought a writ of man- retaliatory discharge appeal issues. The claim. On The em- public compelling reinstatement. to determine whether damus Court was asked were ployees argued that their terminations policies emanating from the state constitu- and federal constitu- right griev- of violative of their state petition tional for redress Ill, speech, as well as other rights tional to free under Art. Sec. 16 ances W.Va. Const. initially ob- guarantees. right to the courts of constitutional We and the to seek access Ill, States “[t]he United Const. Art. Sec. served this state under W.Va. Woodruff

143 officials, long public held that and its as result of her criticism Supreme has Court remodeling plans college’s of for the facili- may compelled to relin employees not ‘be plaintiff firing ties. The contended that her they rights the First Amendment quish right violated her to free under the enjoy as citizens to comment would otherwise A First Amendment. trial was held. The in connection public matters of interest jury plaintiffs returned a verdict. The de- operation public [institutions] of the ” appealed. appeal, fendants On defendants 609, they work.’ Id. 173 W.Va. at which argued plaintiff prove criti- failed 377, quoting, Pickering v. at 319 S.E.2d cism of defendants was a or mo- substantial Education, 563, 568, 391 88 Board U.S. tivating being given in her a terminal factor (1968). 1731, 811, 1734, L.Ed.2d 817 S.Ct. 20 contract. “that We observed Orr under 138, Citing, Myers, v. 461 103 Connick U.S. Education, Pickering v. Board 391 U.S. 1684, (1983); v. 75 L.Ed.2d 708 Branti S.Ct. 563, 1731, (1968), 88 S.Ct. 20 L.Ed.2d 811 Finkel, 507, 1287, 100 63 U.S. S.Ct. protected employees are entitled to be Sindermann, (1980); Perry v. L.Ed.2d firings, and other demotions adverse 593, 2694, 33 L.Ed.2d 570 408 U.S. S.Ct. employment consequences resulting from the (1972); Keyishian Regents, v. Board speech rights, free as exercise of their well 589, 675, 17 L.Ed.2d 629 U.S. 87 S.Ct. Orr, rights.” as other First Amendment making grant the relief In the decision to 343, W.Va. at 315 S.E.2d at 601. Orr noted sought by employees this stated: Pickering right that even under free Unquestionably, leaf- the distribution of Orr, speech is not absolute. In listed the we activity protected lets is an under constitu- imposed limitations on the of free speech guarantees. free In Lovell v. tional speech: 444, 452, City Griffin, 303 58 S.Ct. U.S. First, speech, protected, to be must be 666, 669, 949, L.Ed. Chief regard made with to matters of Hughes, writing Justice for a unanimous Second, that are concern. statements Court, observed, liberty press “The of the “ knowledge they] ... made ‘with the [that newspapers periodi- is not confined to disregard were false or with reckless necessarily pamphlets cals. It embraces ” not,’ [they ... were] whether false or are and leaflets. These indeed have been his- Third, protected. made statements liberty, weapons toric in the defense of persons with there are close about whom pamphlets of Thomas Paine and others personal disrupt contacts which would Lovell, history in our own attest.” Since harmony “discipline among ... or cowork- Supreme con- the United States Court has destroy “personal loyalty and confi- ers” or protection right of tinued its staunch protected. not be dence” other citizens to distribute leaflets and Orr, 343, at 601-60 173 W.Va. at 315 S.E.2d printed matter. 2(internal omitted). ulti citations This Court 609, Woodruff, 173 W.Va. at jury mately affirmed the verdict the case. 377-78, Grace, citing, States v. United doing formulated an allocation of In so we U.S. 103 S.Ct. 75 L.Ed.2d 736 speech claim in proof the burden of on a free (1983); Organization a Better Austin v. syllabus point 4: Keefe, 402 91 S.Ct. U.S. under 42 Sec. a suit U.S.C. (1971); City L.Ed.2d 1 Martin v. Struth plaintiff claims that he was dis- where ers, 87 L.Ed. 1313 319 U.S. 63 S.Ct. exercising Amend- charged for his First Texas, (1943); Jamison U.S. speech, free the burden is ment (1943); 87 L.Ed. 869 Schneider S.Ct. initially upon to show: State, 146, 152, 308 U.S. 60 S.Ct. constitutionally protected; *9 his conduct (1939). 155,166 L.Ed. (2) a substantial that his conduct was Crowder, 335, motivating discharge. v. 173 W.Va. 315 His Orr factor for his by showing plaintiff may filed a com- claim employer S.E.2d 593 defeat the things, plaint alleging, among other that she that the same decision would have been by protect- in given year a one contract reached even the absence of was terminal defendants, community college ed conduct. public a 144 motivating factor for the or a Appeals substantial West v. Board also Gooden

See plaintiff need not show discharge. The Safety, 160 W.Va. Public Dept. Virginia (state of the constitutional that the exercise trooper’s 318, 893 234 S.E.2d factor only precipitating right(s) was criticizing police violated state discharge for may discharge. de- The speech). right of free First Amendment by showing that the the claim feat ap prior decisions of this Court’s None discharged even have been ee would emanating from the state policy plied public protected of the conduct. absence in discharge case wrongful ato constitution Tier- employee. Ms. volving private a sector analysis. agree Ms. Tiernan’s We in Mace14 our decision that nan contends action for suggests that a cause of Mace emanating from suggests that em wrongful discharge private a sector may form the basis constitution the state policy ema may upon public ployee be based private a discharge action wrongful a make We nating from the state constitution. re Mace employee. The decision sector that, today or otherwise em an at-will clear emanating from a policy upon public lied sustain, may private ployed sector syllabus cite in did however statute. We wrong action for proper proof, a cause of McClung: syllabus point 3 of Mace point 9 of upon violation of discharge ful based a action, specific provision a policy emanating from retaliatory discharge where In a Determining whether constitution. or she was the state plaintiff that he claims may ap provision a state constitutional exercising his or her consti- discharged for employer must be initially plied private sector to a right(s), the burden is tutional basis, i.e., through case-by-case done on a that the exercise to show By application.15 incorporation and right(s) was a selective constitutional of his or her (1969). incorporation selective agues decision in L.Ed.2d 707 The that our 14. Ms. Tiernan also Center,Inc., interprets as 189 the Due Process Clause Area Medical doctrine Bowev. Charleston curiam), 145, (1993) (per rights encompassing only 773 deemed funda- W.Va. those appropriate case suggests liberty” would an this Court under an "ordered standard. mental emanating policy the state allow liberty standard includes substantive The ordered wrongful dis- the basis of a constitution to form charge by private procedural rights and is not limited as well as employee. Per curiam sector a usage time rights historical at the established authority. See opinions cited as are not to be adoption. or- of the federal constitution’s 4, 197, Hadley, 201 n. 423 Lieving v. encompass rights liberty standard dered 600, n. 4 S.E.2d 604 Rights beyond specific Bill of that extend rights guarantees, well as found within those determining approach that we take 15. incorporation guarantees. doctrine The selective guarantees ap- of the state constitutional which ply guarantee rather than on focuses on the total employers, analogous is sector particular aspect presented an individual case. approach States Su- taken the United the preme guaran- nature of the It assesses the fundamental applica- in its determination principle any rather than one tee as a whole Rights to' specific the Bill of tion of clauses in incorporation guarantee. Selective based on incorporation states. The doctrine of selective produces judges guarantee as a whole Supreme developed by the United States scope ruling encompasses the full 1960’s, absorbing one- as a tool for Court in the incorporation, guarantee. when Under selective guarantees Bill of by-one of the federal individual fundamental, guarantee due is found to be Rights the Four- Due Process Clause of into the "incorporates” guarantee ex- process Amendment, appli- hold them in order to teenth apply to the states the same standards tends Lund, Nelson Federalism cable to the states. guarantee. government under that to the federal 1045, Liberties, 1070 45 U.Kan.L.Rev. Civil (1997). Thus, incorporation ruling under selective 643, Ohio, Mapp 361 U.S. 81 also v. See guarantee lib- particular is within the ordered 1684, (1961); 1081 Ker v. Cali- S.Ct. 6 L.Ed.2d concept erty over the states the "entire carries 1623, 23, fornia, 83 S.Ct. 10 L.Ed.2d 374 U.S. guar- interpreting accompanying 1, doctrine” (1963); Malloy Hogan, v. 378 U.S. 84 incorporation di- doctrine antee. The selective 1489, (1964); v. L.Ed.2d 653 Pointer S.Ct. of a 1065, the fundamental nature rects a court to test Texas, 13 L.Ed.2d U.S. 85 S.Ct. law the context of that common within (1965); California, v. 380 U.S. Griffin hy- justice, (1965); system rather than some Klopfer S.Ct. 14 L.Ed.2d foreign system growing system Carolina, pothesized or a U.S. 87 S.Ct. North question Louisiana, to be (1967); different traditions. The out of asked, U.S. Duncan v. L.Ed.2d necessary (1968); whether a Ben- 20 L.Ed.2d 491 88 S.Ct. liberty. regime Con- Anglo-American of ordered Maryland, S.Ct. 395 U.S. ton

145 Connick, (1983). The howev 708 Court this case must now review holding, we so er, repudi constitutional also observed the can sustain a Tiernan whether Ms. determine dogma: least 15 discharge “[f]or ation of this wrongful based of action cause that a state years, it has been settled policy of public because upon a violation of employment on a public cannot condition specific speech. free of the exercise infringes employee’s consti public or not basis is whether inquiry in this case of tutionally protected interest freedom Speech emanating the Free from policy 1687, 1684, Id. at 103 S.Ct. applies expression.” constitution of the state Clause 507, Finkel, citing v. 445 U.S. 515- criti- Branti employees who speech by private sector turns to federal cize or Third Circuit actions taken ing from the free decision ers. Co., former sector nia’s constitution tiff whether or not Western District discharge The United stated charge was his refusal the free employer’s plicable to a stitution and the First on the ing infringement cause of Court In Novosel the alleged that the sole reason employer’s 721 F.2d 894 To employers. opposition disagree with in Novosel v. Appeals action. The issue action support lobbying private employer. States District Court held that sector motion cases. Ms. clause in federal court speech clause of canvassed (3rd Cir.1983), was of effort policies or other Nationwide Insurance Pennsylvania, private employer. applicable to dismiss public policy emanat- Amendment claim, Ms. Tiernan employer’s Pennsylvania’s con- brought wrongful First Amendment participate and his Tiernan cites the principles emanating from sector Initially, the wherein for his dis- appeal against his Pennsylva- finding no privately position. granted for the private involv- lawful plain- was ap- Novosel, Regents, there is Board 593, 597, 516, L.Ed.2d 811 cation, 675, 684-685, matters of petty, fess constellation, NAACP hierarchy doubt Brown, always (1943). Thus, U.S. After 2293, L.Ed.2d 263 politics, L.Ed.2d 1215 (1980); Perry v. 100 S.Ct. (1972); Pickering can canvassing prior law 721 F.2d of rested on any fixed star in our constitutional word 385 U.S. Education 92 S.Ct. ^[913] prescribe opinion of First nationalism, religion, or other S.Ct. speech Claiborne U.S. (1968); Keyishian v. Board U.S. it 17 L.Ed.2d 1287, 1293-1294, or act their there can no 102 S.Ct. at 899. 1178, 1187, L.Ed. 1628 455, 467, 100 (1982), quoting Carey v. that no 2694, or force citizens to con 589, 605-606, what shall Sindermann, on Amendment values.” (1980). highest Hardware 88 S.Ct. v. Barnette, public issues “has 2697, Board official, faith therein.” longer involving rung be orthodox ^[3425] (1967). 33 L.Ed.2d 63 L.Ed.2d S.Ct. 1731, 319 U.S. 408 87 S.Ct. of Co., 458 high or Edu U.S. any “If of exercising employees for discharge public speech and stated: right of free rights, Novosel conclud- their constitutional developed has An case law extensive ed: of constitutional concerning protection govern- not a Although plaintiff] is [the First Amendment rights, particularly employee cases employee, ment employees. As the government rights, of to the narrow commented, confine themselves do not “[f]or Supreme Court has Rather, these question state action. unchallenged dog- century, the most of important public pol- suggest an public employee had no cases that a ma was pow- implicated wherever icy in fact placed upon object to conditions right to which restricted the terms tional ^[143] rights.” Connick v. S.Ct. the exercise — Myers, 461 U.S. including of constitu- 75 L.Ed.2d those terms of er to hire action arises dealing employee political and fire is directly employees, the cause utilized to dictate activities. Constitution right in a opinion to the need for such approach, United States Su- with this sistent Israel, system. H. Selective Jerold weight common law preme gives considerable Revisited, 290- Incorporation: 71 Geo.L.J. Rights very presence within the Bill of of a important body presence reflects because that *11 precedent, develop- law without the constitution of Penn- rather than from common important politi- protection The sylvania public policy applicable ments. providing freedoms, however, goes beyond well cal private employer. the deci- to a sector Since question the threat comes whether Supreme in Court of Penn- sion Novosel private inquiry The from state or bodies. sylvania disapproved inter- has of Novosel’s concern for the is whether the before us pretation Paul of its constitution. See v. expression and rights political associa- Hospital, 524 Pa. A.2d 346 Lankenau public employee tion which animated the (1990).16 Moreover, the Third Circuit has public policy is to state a cases sufficient explicitly interpre- retreated from Novosel’s Pennsylvania law. there are under While Pennsylvania’s tation of constitution. See Pennsylvania squarely on this no cases Inc., Shop, Borse v. Piece 963 F.2d Goods point, that the clear direction of we believe (3rd Cir.1992) (stopping of overrul- short promulgated by opinions the state’s Novosel, Pennsylvania ing making but clear suggests question an- courts that this Supreme apply Court would not constitution- affirmative. swered public policy private employer). al to a Addi- Novosel, 721 at 900. F.2d tionally, as the “Novosel has been described Appeals remanded the case The Court far-reaching public pol- most extension of the court with instructions that it district icy doctrine and as a dramatic break with following utilize the test to determine the precedent prior because cases had unani- sufficiency plaintiffs claim: mously required government action be Whether, speech, 1. because present in a order for constitutional violation employer prevented efficiently from Bingham, “Employee to exist.” Lisa Free carrying responsibilities; out its Speech Workplace: Using the First impairs speech 2. the em- Whether Policy Wrongful Amendment as Public ployee’s ability carry out own to his ” Actions, Discharge 55 Ohio St. L.J. responsibilities; n. 39 speech 3. interferes with es- Whether working relationships; sential and close prevailing among majority view The manner, place Whether the time addressing courts the issue is that state or speech which the occurs interferes cannot, speech federal free constitutional operations. with business action, a absence of state be the basis of Novosel, 721 F.2d at 901. public policy exception wrongful discharge Yams, Inc., Mayo claims.17 See Johnson Ms. Tiernan concedes that Novosel is dubi- (1997); today. authority interpreted, N.C.App. ous 484 S.E.2d 840 Novosel Media, Inc., surely right discharge Capital 16. In Martin v. Cities has the an usher if he 223-225, Pa.Super. (1986), A.2d 842-843 is the one who shouted "fire.” plaintiff alleged wrongful discharge employer right discharge An also has the by private employer policy based speech employee pro- an for certain which is speech Pennsylvania’s found in free clause of tected the Constitution. Even when the rejecting plaintiff's attempt constitution. impose speak freely, Constitution allows one to it does policy private constitutional employer exercising not forbid an his employer, the Court held: judgment discharge employee an whose case, pri- In the instant speech way in some offends him. entity, government agency. vate business not a The involved was the freedom of brief, 17. Ms. Tiernan cited in her without discus- speech[.] legitimate commercial The business sion, Hosp. the decision in Jones v. Memorial discharge reason for the employer’s right is to be found in the Sys., (Tex.App.1984). 677 S.W.2d 221 Ms. Tier- discharge employee he suggests permits private employ- nan that Jones perceives disloyal. to be bring wrongful discharge ee to action holding instantly Our does not diminish the employer premised upon speech the free right speech. of freedom of freedom of But public policy found in the constitution of Texas. subject to numerous constraints that proposition. Jones does not stand for such a The practice. render it a less-than absolute employee in Jones was a nurse who was termi- rights of others sometimes clash with and employer, writing nated her after an article speech. restrict one's Just as one freedom of disapproved by employer. which was does not have the in a to shout "fire” theater, too, argued crowded so the theater owner that her termination was an Inc., destroyed his his Newspapers, 891 anced usefulness and value Cheyenne Drake *12 (Citation omitted.) discharge to him.” Albertson’s, and so Inc. v. Or (Wyo.1995); P.2d 80 tiz, (Tex.App.1993); 856 836 Shovelin S.W.2d decision, Other the Novosel than Ms. Inc., Coop. N.M. v. N.M. Elec. 115 Central persuasive authority Tiernan has cited no (1993); 293, Prysak v. R.L. Polk 850 996 P.2d supporting argument public that policy her (1992); Co., 1, Mich.App. 483 N.W.2d 629 193 emanating speech from constitutional free Serv., McDonnell-Douglas v. Truck Booth applicable private employers. to Further re (1991); any 585 A.2d Korb search has to state Pa.Super. faded uncover court applied that has so state constitutional free Raytheon Corp., 410 Mass. v. speech private principles employers. (1991); N.E.2d Barr v. Kelso-Burnett Likewise, we have discovered no federal Co., 88 Ill.Dec. 478 N.E.2d Ill.2d which applies court the First Amendment (1985); Corp., 412 v. Metal Service Gil Speech private employers. Free Clause Cir.1982); v. (La.App. Chin So.2d 706 However, that the research did reveal State AT&T, 1070, 410 96 Misc.2d N.Y.S.2d appropriately of Connecticut has addressed NLRB, Hudgens v. 424 U.S. See also inquiry. The was answered in the issue 47 L.Ed.2d 196 96 S.Ct. code of In state Conn.Gen.Stat. Connecticut. (constitutional provision guaranteeing free §Ann. it states: 31-51q conduct). private speech not extend to does Any including the employer, state and persuasively Truly It was said Madison any instrumentality political or subdivision (5th Hospital, 673 F.2d General thereof, subjects any employee who to dis- Cir.1982), always “one does not insure that cipline discharge or on account of the exer- employment by wrap his own retention by employee rights guaranteed cise such ping first oneself amendment by the first amendment United launching employer attacks on one’s from 3, 4 or States or section 14 of Constitution point, within At some while the its folds. state, article the Constitution of the first of employ employer right no to control the has provided activity such does substantial- right speech, he does have the to con ee’s ly materially employ- with the or interfere employee’s his job performance clude that exercise ee’s bona fide of. working relationship clearly between privileges constitutional has over-bal- guaran- infringement free-speech rights infringement right ty’s upon her state constitutional granted summary speech. by the to free The trial court teed state constitution.” finding judgment employer state for the that the reply Additionally, in her Ms. Tiernan cited apply right speech to free did not constitutional Hospital, brief the case of Carl v. Children's recog- per appeals employment se. The court curiam) (en banc). (per (D.C.App.1997) A.2d 159 upon nized of action based the state a cause proposition urged by for the Carl does not stand speech. appeals to free The constitutional employee was a Ms. The in Carl nurse Tiernan. Supreme court United States Court relied hospital. by who was the defendant One of fired involving government precedent employers. The employee the claims was that she asserted appeals specifically reversed court and remanded discharged wrongfully because of her testi- was proceedings for further to determine case mony of the District of Colum- before the Council hospital was a whether the purely bia, conflicting employer. with her on matters hospital. Implicit private in the reversal grounds on the trial dismissed the case The court that if it a determination on remand Jones was only public policy exception that one existed proven hospital private hospi- was a was tal, that employees. cover of at-will termination speech employee have a did not free Appeals found that the trial court com- fact, appeals cause action. In court of finding only poli- error one mitted subsequently explicitly stated Jones did wrongful discharge cy case could be in a invoked public policy emanating extend from majority per employee. curiam at-will speech private free em- state constitutional opinion the case to determine whether remanded Albertson’s,Inc., Ortiz, ployers. 856 S.W.2d In emanating specific pro- code (Tex.App.1993), appeals the court of Columbia was violated visions the District of "authority propo- held that Jones was not for the employee, because of I, the termination of provides sition section 8 a cause of that article testimony of the District her before the Council against private entity, damages when action for did not address the First of Columbia. Carl question We was never before the court. and the defen- recognize compensatory Amendment to free likewise decline to hospital wholly private institution. redress a enh- dant was cause of action to B. employer, shall be liable to such ee and the damages caused such dis- Tortious Interference With including punitive discharge, cipline or Relationship Business attorney’s damages, and for reasonable any part such action fees as of the costs argues Ms. Tiernan next damages. If the court determines that rela CAMC interfered brought damages by causing with- tionship such action for with ABHC her termin order, justification, summary judgment the court ation.20 its out substantial *13 attorney’s the circuit court listed alternative reasons for fees award costs and reasonable summary judgment granting CAMC’s on this employer.18 1) theory. that The circuit court found: only legisla- statute is the The Connecticut authority had to control CAMC ABHC full tive effort in the nation to extend the therefore CAMC could not be said to inter principles private gamut of constitutional 2) itself; with that fere CAMC furnished employers. that it is This Court believes 3) ABHC; truthful information to that necessary legislature this for the state ABHC, stranger even if CAMC was a determine, and so state given by information to ABHC CAMC re emanating from the state constitutional Free garding Ms. Tiernan truthful and there private Speech applicable em- Clause fore an absolute defense. For these reasons Therefore, hold, ployers. we that the Free granted summary the circuit court CAMC Speech of the state constitution is not Clause judgment theory on Ms. Tiernan’s of tortious employer. applicable private to a sector In relationship. with a interference business expressly imposing the absence of a statute syllabus point Wheeling In of Torbett v. public policy emanating from state con- Co., Dollar & Trust Sav. W.Va. Speech upon private stitutional Free Clause S.E.2d 166 we the neces- discussed employee employers, sector an does not have sary prove requirements prima a facie against a cause of action a sector case of tortious interference in an employer employee who terminates the be- relationship along ment with the factors employee’s cause of of the state the exercise may proper: show the interference was speech.19 constitutional of free Insofar prima proof To establish facie of tortious granted summary judg- as the circuit court interference, must show: ment to CAMC on Ms. Tiernan’s Free (1) action, Speech Clause cause of basis for existence aof contractual or business summary judgment relationship expectancy; is affirmed. or interpreting rights 18. For the statute see under our decisions whistle-blower laws were violat- McGoldrick, D’Angelov. 239 Conn. 685 A.2d ed. (1996); Hospital, Urashka v. Griffin also, (D.Conn.1994). F.Supp. 468 See Cotto v. employment ap- 20.Ms. Tiernan’s with ABHC Technologies Corporation, Sikorksy United Air- pears employee. to have been that of an at-will Division, Conn.App. 711 A.2d 1180 craft employment The existence of an at-will relation- (1998) ("An employee’s right par- aas citizen to ship liability does not insulate a defendant from ticipate concerning in discussions matters of Toney Casey's for tortious interferences. See public importance on or off the work site of Stores, Inc., (Iowa General 460 N.W.2d employer right guar- cannot be converted into a 1990); Europlast, Systems, Ltd. Oak Switch anteed the federal or state constitution to Inc., (7th Cir.1993). 10 F.3d The tort express grievance working about the conditions relationship interference with a business does employment”). require relationship be evidenced an enforceable contract. See Tamiami Trail Tours, Cotton, (Fla.1985); holding impact 19. This does not invalidate nor Inc. v. 463 So.2d 1126 Plumbing Heating, the state's whistle-blower laws. See W.Va. Northern & Inc. v. Henderson 6C-1-1, Bros., Inc., seq. § Mich.App. Code et The whistle-blower laws 268 N.W.2d 296 (1978). present independent statutory actually an basis for liabili- Until an terminat- ed, ty an should retaliate an em- the at-will remains valid and waste, ployee reporting wrongdoing subsisting, persons may improperly as and third case, (Second) those are terms defined statute. interfere it. See Restatement statutory g. § Ms. Tiernan does not contend that her Torts 766 cmt. relationship between CAMC and (2) act of interference intentional ABHC, claim failed. relationship or ex- Ms. Tiernan’s party outside that pectancy; the issue has never addressed This Court (3) caused the the interference proof that truth, itself, a claim in and of bars of whether (cid:127) sustained; and harm rela- interference with business for tortious (4) damages. “honest, truthful re- tionship. Torbett Under case, a prima facie plaintiff makes If a quested advice” shield a defendant privi- justification or may prove defendant liability interference on a claim for tortious are Defendants affirmative defenses. lege, However, relationship. with a business negligent that is for interference not liable (Second) § of Torts Restatement intentional, they or if show than rather following regarding giving states the competition between legitimate defenses advice: themselves, in- financial their plaintiff and Proper Improper Advice business, party’s in the induced terest Interference welfare, another’s responsibility for *14 influence another’s busi- intentionally intention to third their causes a One who they have an inter- in which policies ness perform a contract or not person not to honest, est, truthful re- giving of rela- prospective contractual enter into advice, that show or other factors quested im- with another does not interfere tion proper. interference was rela- properly with the other’s contractual tion, by giving person the third court’s difficulty with the circuit claim, is summary judgment on this granting (a) information, or truthful dispute fact were material issues of (b) scope within the honest advice initial reason for to the court’s respect with request for the advice. disput- summary judgment. Those granting added.) majority A (Emphasis actually resolved fact were ed issues of interpreted adopted have courts which example, as to the circuit court. For have held that § 722 of the Restatement ABHC, there is control of issue of CAMC’s tor- bar to a claim for truth is an absolute explaining the rela- clearly disputed evidence with a business relation- tious interference and ABHC. There tionship CAMC between rejected the courts have ship.23 Other suggesting in the record is evidence Pratt v. § of the Restatement. See 722 There is also controlled ABHC.21 CAMC 1994) (Utah Prodata, Inc., 790 885 P.2d at ABHC CAMC officials evidenced (“we adopt call to truth- reject defendant’s authority hiring and termi- decide had no to the tort of defense fulness as absolute The circuit matters for ABHC.22 nation prospective intentional interference disputed issues and disregarded these court relations”); Honey- v. Collincini economic syn- and ABHC were concluded that CAMC well, Inc., Pa.Super. 601 A.2d 411 alter- circuit court reasoned onymous. The (1991) as a (rejecting unrequested truth 295 provided natively that the information action). Therefore, bar to regardless truthful. CAMC was had, always yes. A. We contends that: 21. The brief of CAMC always hiring you deci- Q. make And did management agree- operated under a ABHC is, way, with consider- sions in that same Clearly, CAMC is not a with CAMC. ment stranger Hodges? good Arthur B. what was ation of relationship between ABHC CAMC,yes, Independent we did. A. and Tiernan. Primates, McGreal, 26 Inc. 23.See Worldwide ABHC, Joyce nursing L. Dur- 22. A director of Cir.1994); (11th Conti In re American 1089 F.3d ham, regarding hiring deposition as testified at a Loan, F.Supp. 1388 & 884 Sav. nental/Lincoln follows: Inc., Bradstreet, (D.Ariz.1995); Dun & Francis v. (1992); Cal.Rptr.2d then, Cal.App.4th you Mr. Q. it So if I understand Kaehne, (Wyo.1989); Gouhin, P.2d 586 making you were Byrd as Prazma and Ms. N.J.Super. Corp., decision, yourselves C.R. Bard v. Wordtronics you as Ar- hiring viewed Co. v. Wabash R. A.2d 694 separate entity Hodges not con- B. as a thur Young, 162 Ind. N.E. CAMC. in that sense with nected § adopting posi- adopt Restatement’s we now 722 of the Restatement in its Courts Therefore, entirety. clearly articulate the the circuit court’s alter- tion have failed to basis Likewise, grounds granting summary judg- native doing. this Court’s decision for so ment on the tortious interference claim was explanation real provides Torbett no as correct.26 entirety, § why adopt, we failed to its of the Restatement and instead limited C. defense, “honest, “truth” truthful for- requested advice.” We believe Torbett’s The Remainder of Ms. Tiernan’s mulation is correct within confines of that Assignments of Error only case. The Torbett decision focused on Ms. Tiernan contends that 772(a). 722(b). § § Torbett did address by granting circuit court committed error proceeding summary judgment there no the instant CAMC claims for contract, reliance, showing oral evidence that the communication breach of detrimental purpose for the and violation of CAMC with ABHC was embodied giving regulations regarding political “advice” about Ms. Tiernan.24 The statutes and activity adequate patient “truthful information” re communication was care.27 The garding summary granting judgment what CAMC knew about Ms. Tier- orders on these Therefore, applicable provision remaining nan.25 causes of action do not state the the Restatement the instant case is basis for the circuit court’s decision on each 772(b). 772(a), § § syllabus point The comment of them. This held in 772(a) § Fayette County Lilly, states that truthful information anis Nat. Bank v. *15 349, absolute bar to a claim of tortious interfer W.Va. 484 S.E.2d 232 that “[a]l- ence though summary “whether or not information is re our standard of review for novo, quested.” dispute judgment Ms. Tiernan does not remains de a circuit court’s given granting summary judgment the information was truthful. order Consis must set Torbett, reasoning findings in permit tent with this Court’s out factual sufficient King, wrongful 24. The affidavit of Michael A. Senior Vice asserted claim for her termination CAMC, upon activity. by President for Health Services at states in based union Discrimination an part: upon person’s activity relevant based union § actionable under 29 U.S.C. 158. See Perfor- Corporation mance Friction v. National Labor 16. Sometime later I was informed that Ms. Board, (4th Cir.1997). Relations 117 F.3d 763 working orga- Tiernan was for a union as an also, 21-1A-1, seq.; § See W.Va.Code et United nizer. Around that time I also learned that Co., Mfg. Maintenance & Inc. v. United Steelwork- per had Ms. Tiernan been hired as a diem America, ers 157 W.Va. supervisor Hodges nurse at Arthur B. Center. (1974) ("When dispute subject 17. I asked the Administrator at Arthur B. jurisdiction, preempted NLRB a state is Hodges whether she knew that Ms. Tiernan acting public rights”). to enforce organizer. was a union I did not direct or record does not indicate if a cause of action was suggest anyone Hodges any at Arthur B. against ever ABHC filed for its role in terminat- action be taken Ms. Tier- However, ing quite Ms. Tiernan. it seems clear nan. prima from the facts of this case that facie Vaughan, action existed for 25. The affidavit of Sandra Dee violation of above laws Admin- ABHC, prohibiting resulting part: discrimination istrator for in relevant from union states activity. August brought my 3. it was appeal alleges 27.In Ms. Tiernan simultaneously that Ms. Tiernan attention was policy emanating § from W.Va.Code 21-1A-3 working organizer nursing aas union and as a (1996), protected her from termination. CAMC supervisor. contends that this statute was not raised below disturbing. Joyce I found this situation fact, by Ms. Tiernan. In the record Durham, demonstrates Nursing the Director of at ABHC statutory that Ms. failed Tiernan to raise this stated she would not schedule Ms. Tiernan to Therefore, argument. we decline to address that anymore. work assignment pass of error. "This Court will not seemingly nonjurisdictional question 26. The Court understands the harsh on a which has not adopting totality § by result of in Restate- been decided the trial court in the first in- However, Co., Syl. Security ment. Ms. Tiernan had other alterna- stance." Pt. Sands v. Trust tive causes of action which she could have 143 W.Va. 102 S.E.2d 733 Lilly findings part for that of the circuit Findings of review. meaningful appellate summary granting CAMC court’s orders fact, facts which necessity, include those Tiernan’s claims for breach relevant, judgment on Ms. determinative circuit court finds reliance, contract, detrimental and viola- undisputed.” The circuit and of the issues regulatory public poli- statutory and tion of remaining do not on the issues court’s orders Lilly. cies. articulated meet standard

Therefore, re- and remand the we reverse Part; Part; Affirmed Reversed enter circuit court to maining issues for the Remanded. comports with issues that an order on those Lilly.28 the mandate of STARCHER, Justice, dissenting, part concurring, part:

IV. (Filed 1998) June CONCLUSION I. foregoing discussion and In view of the Introduction (1) part affirms that

analysis this Court Tiernan, exemplary employee, granting Ms. circuit court’s orders CAMC allegedly fired and then “blacklisted” her summary Tiernan’s consti- judgment on Ms. claims29; (2) employer-all Ms. Tiernan wrote part affirms that of the because tutional criticizing employ- newspaper to a granting sum- letter circuit court’s orders CAMC er, openly because Ms. Tiernan mary judgment on Ms. Tiernan’s claim for and/or newspaper reporter to an brought a with a business relation- tortious interference entry meeting.1 ee and remands for ship; and reverse (1981) ("Assign- disposed 284 S.E.2d 374 of Ms. Tiernan's 28. The order which contract, argued are not in the briefs detrimental reliance ments of error that claim for breach of statutory regulatory appeal may read be deemed this Court to waived.”). as follows: ORDER JUDGMENT summary, following day 1. The factual somewhat heard this 26th This matter came on to be summary given appearance than the August, more detailed of Plaintiff, *16 TIERNAN, by through majority opinion, Ms. Tiernan's is taken from BETTY A. and Defendant, AUVIL, Obviously, Appeal. Ms. Tiernan’s attorney, WALT her and the Petition CENTER, allegations summary presents the evidence and CHARLESTON AREA MEDICAL INC., through light by DINA and STE- to Ms. Tiernan's and MOHLER in the record in a favorable WEBER, attorneys. reviewing the court's PHEN its We are circuit A claims. granting WHEREUPON, proceeded summary judgment the Court to hear motions for of Tiernan; motions, arguments addressing the Defendant's of counsel such Ms. Summary Judgment proffered of the Plaintiff's Motion for evidence also must look at the a court time, Complaint; at which light First Amended favorable to Ms. Tiernan. most to did take the matter under advisement by appellant all accounts one of the was The ruling upon of its said Motion. consider further leading lights Care Unit of the Medical Intensive ruling by having pronounced its And the Court ("CAMC"). Medical Center at Charleston Area ap- with ELIZABETH A. PYLES teleconference pearing consistently performance were evaluations Her AUVIL, coun- for and on behalf of WALT literally supervisor about superior. raved Her MOHLER, counsel for for Plaintiff and DINA sel Defendant, nurse, did, registered job just but she as August, day it is on the 30th of (in- problem and a leader. Patients as a solver accordingly hereby that the Defen- ORDERED personnel cluding physicians) file stuffed her Summary Judgment granted dant’s Motion for thanking saving and her for their lives with notes Complaint and as to all counts in the Plaintiff's giving care. loved ones excellent Complaint. First Amended supervisor man- appellant’s and her The direct rulings, counsel for the To all of which adverse per- ager and the defendant's administration and excepts. objects Plaintiff and appellant’s departments noted on the sonnel poli- hospital "follows evaluation that she only the issue 29. Ms. Tiernan raised and briefed procedures. she is a resource and That cies speech. to free of her stale constitutional by person She is characterized to new staff.” ruling on Ms. Tiernan’s other The circuit court's "knowl- issues, the 1990 evaluation as (due process and constitutional association), flexible, adaptable, edgeable, [Advanced ACLS solely by opinion affirmed certified, dependable, Support] Cardiac Life grounds that Ms. Tiernan waived those issues person by and resources seen as a leader by failing [and] brief to raise and before this Court Bryant, Syl. Addair v. staff.” those matters. See Pt. majority opinion scholarship, majority The reflects and III.B. of the Parts III.A. Importantly, intelligence, diligence. and grant circuit court’s opinion uphold the Tiernan, opinion principle reaffirms the that constitu- against Ms. and summary judgment valid source of apply provisions tional are a legal new rules that promulgate two employer-employee policy in law of rela- retaliatory discharge and tortious our claims of relationship. tions. a business interference with people meeting direct to a which hundreds of attended Appellant’s evaluation her 1991-1992 depart- personnel a closed circuit TV supervisor, approved ment, and which was broadcast on you put great perceive system. appel- forth "staff CAMC The notes: station over whole had, admits, consistency prior of as- fairness and effort to assure lant the defendant no disci- special signments. meet needs during work hard to plinary any many You actions of kind her crisis, always in a which are calm years employment as well. You at CAMC. generat- gift keeps You have a others calm. meeting, appellant purpose The which support your ing approach & staff’. a 'team reporter attended with a Gazette, from the Charleston adapt changes mid-shift in stride and You take employees know in was to let CAMC appropriately.” appellant noted to The was going on between St. advance of the discussions care, patient ... knowl- “meet ... standards Hospital regarding Francis and CAMC some kind sections, skills, plus edge professional ethics relationship. joint venture or other business consistently anticipate your you staff’s needs. press thing The same was at a confer- announced lighten cheerfully patients to You will take day. ence later that provide heavy assistance to others. load and still get job appellant’s The efforts to her back (emphasis strength yours!” This is a real system appealing were fruit- within the CAMC original); "consistently [one-to-one] teaches with every avenue available to less. She exhausted high non-threatening approach;” “Possess joba that she loved and at which her to retain the unit for the care delivered in standards exceptionally good. she was "calm, organized your lead- base, own” and a well as difficulty, appellant After considerable ob- er,” knowledge having "great critical care fairly steady per diem with tained effectively,” ability "excellent clini- it share ("ABH”), Hodges long- B. the Arthur Center cian,” possessing "ability gain acceptance facility term care located across street from "strong anything from staff” a back- needed Upon becoming CAMCGeneral Division. CAMC up supported them feel for staff—makes ABH, appellant’s employment aware of appellant noted to more confident." The appellant advised that the was a CAMC ABH functioning. "good improve unit have ideas Thereafter, organizer.” longer "union ABH no caring Greets others with a smile. Role model employed her. Caring supporting for PTS/Families. that, therefore, appellant contends her ef- staff." employment of a similar nature to forts to obtain appraisal, During performance 1992-1993 proved enjoyed that which she at CAMC fruitless. supervisor appellant was noted her direct appellant claims that on several occasions needs,” patient and staff and to "meet both expressed, there would be initial interest fol- acceptance "readily [gain] staff for needed potential employer by a lowed statement that the acknowledged changes.” Appellant was further personnel, have to with CAMC after would check and to be "will- to be a "role model ing leader" nothing appellant which would be heard. The change things for the bet- to be involved to effectively compara- claims she was frozen out of specifically appellant was noted in this ter.” The *17 being by after terminated ble "a + on the cohesive- evaluation to be influence CAMC. "very night ness of shift." She was said to be manager After a stint as a at a home health expends caring pts. en- with whatever families— Charleston, agency appellant resolved to in ergy necessary to see that their needs are met.” hospital nursing. somehow return to critical care Appellant’s com- 1993-1994 evaluation was eventually March, She obtained a contract to do "travel- pleted by supervisor direct 1994. her in ing company supplies nurse” work for a appellant to meet exceed all

The was said hospitals nurses on contract basis to around standards which she was measured in this country. guaranteed nothing be- She was supervisor Her direct that she evaluation. said yond temporary, term positively short contracts she morale” and "contributes unit/shift required away Appellant was offered. She was to live "strong in acted as a leader the unit.” family long periods. "utilizing her home and was exceed the criteria of nurs- said to given appellant ing delivery contends that the real reason for in the of care for a skills nothing patient population.” appellant, in this re- termination from CAMChad to do bringing reporter meeting, gard, in with to a but rather "[act] was said to as unit resource role, by against appellant charge as well as resource outside of the was retaliation CAMC editor,” writing It that the a "letter to the which was unit on 3 East.” should be noted Gazette, appellant published which was awarded a "miracle of MICU” in the Charleston actions, voicing employee recognition and for award defendant. critical of certain CAMC and the concerns of other nurses The defendant’s stated basis for termination is her concerns staffing. reporter attempts appellant brought newspaper about CAMC's to eliminate safe that the However, language Syllabus retaliatory discharge policy, Point on the issues, broadly majority majority opinion sweeps to in- tortious interference private employee speech'— clude all sector following equa- two opinion down to the boils including speech about matters are none tions: employer’s legitimate of the concern. = speech totally unpro- + employee 1. deeply I am concerned that the broad tected. scope Syllabus pri- permit Point would = totally protect- employer speech -I- employers penalize an vate sector and chill ed. individual’s exercise of fundamental demo- results, disagree I with these and with the rights. cratic reasoning them. I leads to therefore Syllabus example, For Point 4 would allow parts III.A. III.B. respectfully dissent to a restaurant to fire an excellent chef who has majority opinion. of the work, problems writing no a letter to newspaper campaign in favor of finance II. Or, wages reform —or of better for chefs! company taxi could fire a driver with a 20- Speech Freedom of record, year spotless because she or he called beginning majority’s At the of the discus- support to a radio talk show to a woman’s retaliatory discharge sion of Ms. Tiernan’s freedom of choice—or to call for stricter claim, majority correctly that: states abortion laws. specific inquiry in case is wheth- this [t]he hypothetical In these like cases or others public policy emanating

er or not from the them, applying our established law under Speech Free clause of the state constitu- Harless v. First National Bank in Fair applies speech private tion sector mont, (1978) 162 W.Va. 246 S.E.2d 270 employees disagree who criticize or progeny recognize a cause of its —which policies or other actions taken employee for an who a retalia action suffers lawful private employers. sector tory discharge public policy' in violation of —I might prepared well to hold that a consti CAMC, Tiernan v. tutionally-derived policy protecting added). (emphasis S.E.2d unfairly freedom of that does not However, crisp formulation of the impinge employer’s legitimate on an business free-speeeh issue raised this case seems essential to and inherent concerns is indeed forgotten opinion have been the time the system liberty. in a of ordered Syllabus enunciates Point which states: Therefore, apparent weight spite Speech The Free Clause of the state authority contrary jurisdic- other applicable private to a constitution is not tions, majority opinion, I am as cited employer. In the absence of a sector stat- jurisdiction we unpersuaded that our expressly imposing public policy ema- ute totally exclude our constitutional free should nating from the state constitutional Free speech guarantee as a source upon private Speech Clause sector does) (as majority opinion in our evolu- ers, not have a cause of does employer-employee rela- tion of the law of action sector *18 tions. employee of who terminates the because cases, certainly imagine I like the ex- can employee’s consti- the exercise of the state above, might amples given where I conclude right speech. tutional of free on our state’s con- that —based CAMC, 4, Syllabus v. 203 Point Tiernan right free guarantee of the of stitutional (1998). 137, at W.Va. at 506 S.E.2d being employee an from protect —will exercising Thus, discharged in for “specific inquiry” in the retaliation while the Moreover, employee right. I am confident private-sector ease involves instant employees’ protection disagrees recognition of such for speech that criticizes or with an free-speech rights is the may unprotected by public of their employer that be exercise law, long-term may take to arrive at a long however this trend common trend of our majority position.2 debate, open relating law from then becomes a far 'thoughtful of the free and review A iffyprospect. free-speech protection private for more sector issue of reasons, Supreme Hospital, very For employees is found in Carl Children’s these 159, curiam) although (D.C.App.1997) (per recognized has the First Amend- 702 A.2d (en involving banc). majority opinion plays ment no direct role in cases The in the instant action, case, "statutory governmental by focusing solely per on the common brief curiam 146, protection portion opinion, extend see 203 W.Va. at law in some situations the Carl 589, 17, provide against corpora- n. n. 17 does not redress abridge person concurring opinion au- tion or expression who seeks to the free justice do The to Carl. NLRB], Carl, Hudgens Judge [v. in with of others.” Associate Schwelb thored 513, [1029], [507], agreement, 424 U.S. 96 S.Ct. 1033 [47 substantial states in which I am in part: added). Indeed, (emphasis L.Ed.2d 196] assumption contends, substance, on the First Amendment "rests in dis- Ms. Carl possible that the widest dissemination of infor- charging testifying the Council her for before antagonistic mation diverse and sources expert from appearing as an witness for and for public." cases, is essential Asso- malpractice plaintiffs Chil- in medical welfare of 1, States, 20, ciated 326 U.S. Press v. United Hospital retaliated has her dren's exercising 1416, 1424-25, (1945) S.Ct. (emphasis L.Ed. 2013 speech. her to free Such re- added). public taliation, Carl, The interest is thus according contrary to Ms. "repression expres- [freedom disserved public it interest because chills the exercise (footnote by private sion] ted). interests.” Id. omit- rights. of fundamental principles profoundly These are relevant to [Judge Carl] Schwelb continues jurisprudence. at-will doctrine employees. become a nation of We We have dependent upon others means of are for our freely express livelihood, Ms. herself is not Carl’s people and most of our have be- only interest to be considered this case. dependent completely upon wages. If come they resource, also embrace calculus must Children’s jobs they every lose lose their Hospital’s employee perspective. If an con- supplied by except for the relief the various significantly ducts impairs which herself in a manner security. dependence social Such forms of interests, employer’s then her people of the all of the others for mass claim of its force. loses much something of their income is new in generation, world. For our the substance of [person Hospital s] If Children's can demonstrate that is in another hands. life F. TANNENBAUM, analogous Raytheon [v. LA- this Corp., to Korb A PHILOSOPHY OF case is (1951) (1991)], original). (emphasis Because 410 Mass. 574 N.E.2d BOR 9 dependence part type and that of exercise of First Amend- of this economic on the this effectively rights by probationary non-manage- employees, at-will ment doctrine employee significantly rely employee ment non-union on the could harm the “forces the interest, Hospital’s employer preservation [the] financial then will con- whim of his [Employment Blades at Will v. stitute formidable defense.... his livelihood.” remand, any proceedings Limiting In on Individual Freedom: On the Abusive relation to Power, Employer jury required 67 Colum.L.Rev. court and should Exercise 1404], [(1967)]. employee, dependence This balance the interests employer, public. Employees docile "tends to make him a of his and the have follower wish,” id., they every knowing employer’s may inhibit an charged will not interest be dis- legal exercising rights. speaking freely his mind if what he him from say Employers knowing they an interest in would like to differs that which have they hear. can as fit would like to run their businesses see as long pub- commitment First their conduct is consistent with The "central policy. public lic an ... is that debate issues has interest Amendment uninhibited, open.” stability discouraging robust wide and in should be Floyd, employees. U.S. lawsuits dissatisfied Bond v. 87 S.Ct. frivolous (citation omitted). Corp., Pierce L.Ed.2d 235 v. Ortho Pharmaceutical 84 N.J. purpose We "It of the First Amendment to A.2d add the is the preserve market-place has an interest uninhibited of ideas obvious: the also expression political ultimately prevail....” in which truth will free of ideas on and other FCC, Broadcasting Red Co. 395 U.S. issues. Lion Co., Ins. [v. 89 S.Ct. 23 L.Ed.2d 371 Novosel Nationwide 721 F.2d (3d Cir.1983)], (1969).... Appeals the Court of re- If an like Ms. Carl places jeopardy by speaking manded the district court her livelihood in the case to *19 concern, four-part inquiry: public on an issue of then the directions to conduct a out "market-place Whether, speech, 1. of the the em- of ideas" is not uninhibited in because ployer efficiently carrying any victory prevented from realistic sense. The ultimate of the is truth, supposed emerge responsibilities; out its forces of which is to majority opinion’s ly legitimate interests, broad new rule in employer related to recognize very we Syllabus inexplicably prejudges such should that a Point different cases, presented. case is In cases, public such doing precludes and in so this Court policy promoting speech vigorous free and engaging customary case-by-case our discourse on matters of concern development common law of retaliato- is embedded in guaran- constitutional ry discharge. 3 may protect employee tees an from retalia- broad, majority’s approach If the is too tory employer, conduct. how should we review the circuit court’s Whatever narrower might adopt, rule we grant summary judgment against Ms. definitely we possibil- should not rule out the speech retaliatory Tiernan on her free dis- ity, does, majority opinion as the that em- charge claim? ployees speech who are terminated for that is should formulate a We rule that is more substantially related to employer’s their narrowly inquiry tailored to the actual legitimate sys- concerns use the court presents. Ms. Tiernan’s case Such narrow protect tem and vindicate their —- tailoring recognize would first con- indeed, duty their civic participate fully —to alleges duct Ms. Tiernan led to her democracy by exercising our essentially public termination was criticism of speech. free employer was not “whistle blow- —but Although might yield a narrower rule ing,” majority acknowledges pro- which the is Tiernan, better result for Ms. ap- such an tected. proach employers would be fairer to and employees circumstances, and, in other narrowly A appropri- tailored rule that is therefore, approach would be a better for ately legitimate sensitive to the interests of this take. Court to employers employees might hold that discipline or speech termination for that is I grant would reverse the circuit court’s injurious summary judgment against employer, workplace Ms. Tiernan or work claim, speech retaliatory discharge her free responsibilities, blowing and is not whistle and remand the claim for reconsideration (hu- specifically protected otherwise law the circuit court under a narrower standard. etc.), rights, ordinarily man an unactiona- employer prerogative, exceptional ble absent III. circumstances. Blacklisting

However, fires, private employer if a disci- plines employee or discriminates an Syllabus majority adopts Point speech clearly that is not gives employers substantial- new rule that carte blanche speech impairs adoption Whether the made doctrine.... Even if the ability carry responsibili- ee's ties; out [her] own exception propose I were to result in the reten- tion, time, legally from time to of a dismissable speech 3. Whether the interferes es- employee, the world not end ac- will on that working relationships; sential close Indeed, might, long count. this result manner, place 4. Whether the time and run, promote the achievement of the free mar- speech which the occurs interferes with busi- ketplace of ideas which our de- differentiates operations. ness mocracy enlightened gover- from less forms of (citation omitted). 721 F.2d at 901 I would nance. categories add to the first of these "or from principle It should not be an inexorable pursuing its business interests.”... pays piper our law that he who must al- employer In those cases in which an has ways relatively call the de- tune. modest persuasive justification discharg- business parture suggested at-will from the doctrine ing employee, unlikely it is that he will be opinion employer will not render the de- damages held liable for under the standard will, however, help It free the law fenseless. course, suggest. possible, that I It that in judicially imposed from a albatross which has case, hand, stay a close will his well. not served us keep spoken and will out, on an who has 702 A.2d at 182-186. even under circumstances in which the might discharge court sustain if the contro- however, That, 3. The facts of the instant case show how

versy go freedom were to to trial. is not steep price press may pay alleviating freedom of the too be inter especially judge- harshness of an restrictive connected. *20 to maliciously to truthful statements can never be found be use “the truth” to the improper: the when injure former a —even none employee’s situation In the context of tortious interference would majority’s new rule er’s concern. who in- relationship, a one business malicious same sort of apply also tentionally a person causes third by against another one business conduct a into a perform contract or not to enter adoption strongly I dissent to the business. prospective business relation with another a rule. of such improperly with the oth- does interfere relation, by giving the third er’s business alleges that she was Tiernan after Ms. (a) (b) information, hon- person truthful or fired, (truthfully) told her employer her first scope request advice a (and est within for potential possibly other next (Second) of Torts the advice. Restatement pro-union Tiernan was a employers) that Ms. (1979). § activist, job lose her causing Ms. Tiernan to difficulty finding other work. experience and CAMC, Syllabus Point Tiernan v. ' at for this sort of conduct— W.Va. A common name “blacklisting.” employers by unions —is or Torbett, this With modification of injuries recovery sought for her Ms. Tiernan stating any rule adopted has a blacklisting alleged as- from this conduct interference in relations —no matter business employer for serting claim her first a unwarranted, odious, intermeddling, offi- how relations. interference with business tortious cious, harmful, vicious, devastating or offen- governing immunized, tortious longstanding rule simply Our sive—must all cases Wheeling literally interference is found Torbett because the interferer uses “truthful Co., & Dollar Sav. Trust W.Va. weapon information” his or her of choice as (1983),Syllabus Point 2: carrying S.E.2d out the interference. Such rule broad, following examples far too proof prima establish facie of tortious To interference, demonstrate. plaintiff must show: (1) existence of a contractual or business maliciously person if a What anti-union or relationship expectancy; or compiled entity and circulated clandestine (2) an intentional act of interference pro-union of known workers to “blacklist” relationship expec- party outside that or hope employers, with the and intent inter- tancy; injuring fering with workers and these (3) caused proof that the interference If the relationships? their list sustained; the harm only “truthful was accurate contained information,” compiler circulator damages. (under protection Syllabus the list case, prima If a makes a facie opinion) majority 5 of would Point have justification privi- may prove defendant interference, liability no tortious even if for are lege, affirmative defenses. Defendants accomplished the circulation of the list negligent that is not liable interference causing grievous harm circulator’s intent of intentional, they rather than if show to the workers and their families. competition legitimate between defenses themselves, in- plaintiff and their financial Additionally, immunity “truthful in- business, party’s terest the induced formation” malicious interference that is cre- welfare, responsibility their for another’s applies majority’s new rule also ated their intention to influence another’s busi- if conduct. a restau- inter-business What they policies in have an inter- ness which competitor rant’s business were to malicious- est, honest, re- giving truthful ly pickets parade hire side- advice, quested or other factors that show restaurant, (truthfully) walk outside the proper. the interference was proclaim potential patrons restau- Syllabus spouse Point 5 rant owner’s works in a controversial majority opinion’s Torbett, by actually holding that clinic? Or that the restaurant’s modifies women’s literally owner has been treated a mental illness? interference which takes form of

157 Torbett, cases, jury In such under could this Court Torbett adopt declined to improper. decide if the interference was But Restatement language.) tortious interference language Syllabus under the broad Point case, majority opinion the instant 5, absolutely such conduct would be immune purported does not discuss the merits of the unjustified liability no matter how majority Restatement 772 formulation. The grievous or how the harm conduct caused apparently following the lead of the other simply because the infor- interference — majority courts that opinion acknowl- interfering purpose mation used for an 772, edges adopted have failing while “to literally truthful. clearly articulate doing.” the basis for so Syllabus The rule broad Point 5 is not 150, at W.Va. 506 S.E.2d at 593. fact, necessary majority or fair. And in The comments to the Restatement ac- opinion suggest does that fairness or knowledge that the law of tortious interfer- necessity supports adoption of the rule. ence is unsettled. The comments also reflect majority’s holding The sole rationale for the fact that a substantial number of courts “truthfulness is absolute defense to tor- jurists position have taken the that truth position tious interference” is that always is not (Second) an absolute defense in suggested by tortious the Restatement interference cases. Torts Sec. 772.4 good enough This is not a reason for example, position For that the commu changing our established rule. The Restate- nication of truthful information in some ment is not “the law.” It is a collection of improper circumstances be held to be inter suggestions group offered to courts Utah, only ference is taken courts not legal scholars. Prodata, Inc., (Utah Pratt v. 885 P.2d 786 1994) Pennsylvania, adopted Honey This Court has some of the Re v. Collincini well, formulations, 166, Pa.Super. Inc. 411 statement either in whole 601 A.2d denied, modification, 651, always (Pa.Super.1991) appeal with some almost after 530 Pa. denied, making 869, a reasoned determination that 608 A.2d 27 cert. 506 U.S. 199, hopefully Restatement formulation 113 S.Ct. 121 L.Ed.2d will 141 — as cited majority existing opinion fairer and more useful than formula also Rhode Is — but See, land, Pennwalt, e.g., City Corp. tions of the law. v. C.N.C. Chemical v. Foster 1, (1997) (D.R.I.1988); Ohio, F.Supp. Keyser, 202 v. W.Va. 501 S.E.2d 165 Carman Restatement, Entner, 28633, 13978, 2, (adopting the formulation of res WL No. Feb. (Ohio Dist.) Stalnaker, App. ipsa loquitur); (unpublished); Hendricks v. (1989) Illinois, Services, Marketing (following W.Va. 380 S.E.2d 198 Stonestreet Inc. Inc., approach cases); Chicago Engraving, Restatement in nuisance Custom 1994WL 93-C-1785, April No. Harless v. First National Bank in Fair mont, (1978) (U.S.D.C.N.D.Ill.) (unpublished). 162 W.Va. 246 S.E.2d 270 (adopting Restatement formulation of inten C.N.C., supra, The court in said “the distress). tional infliction of emotional general communicating rule that truthful in- instances, In other have we considered but ‘improper’ formation in- does not constitute adopted the Restatement formulation. terference should not be viewed as absolute.” See, e.g., Syllabus Morningstar Point F.Supp. at 143. Co., Mfg. Black and Decker Stonestreet, supra, court stated that: (declining adopt product liability Restatement formulation in ... truthful nature of the communica- cases). 4, supra (noting simply quali- See also note tions to a entitles Defendants majority suggests acting lining improper "[c]onsis- that it is elements of and defenses to in- reasoning but, course, tent with our in Torbett.” 203 W.Va. catego- terference are not tied to its However, 506 S.E.2d at 593. in Torbett Torbett, W.Va. at ries and definitions." acknowledged this Court ment’s and recited the Restate- Moreover, added). (emphasis 314 S.E.2d at 172 formulation, general tortious interference as a defense interference truthfulness to tortious it, adopt stating: but chose not to have ''[w]e was not an issue in Torbett. guidance relied the Restatement for in out- (citations a de- *7 privilege which is 1994 WL 28633 at footnote or conditional

fied omitted). jury Defendants unless the concludes fense privilege or took action moti- abused Pratt, supra The court in stated: than the interest desires other vated *22 reject adopt call to truth- defendants’ [W]e ‘ privilege. protected the fulness as an absolute to the tort defense prospective of intentional interference with *8, note 2. 162824at 1994WL economic relations. supra, the court said: In Carman P.2d at any produces case-law exists that No Ohio Additionally, dissenting opinion the in whether the bright-line test to determine Inc., Gold, Inc., Const., Nines v. 71 Four liability for tortious Entners should avoid (Wyo.1991),by Urbig- P.2d 236 Chief Justice a contract where interference with kit, part: in states liability producing is statement same privilege truth] “The is conditional and [of of under as slander [sic] not actionable give if the were used not to bona occasion However, think, we do not title. advice, injure plaintiff but to public policy, matter of that individuals fide reason, any ulterior the defendant should escape oth- may liability on that basis in privilege lose his and therefore fail his unprivileged clear threats are erwise and defense.” are liter- constructed from statements that ally recognized It in Penn- true. has been although that truth an absolute sylvania is to kind Truthfulness when said be some of actions, in is not defense defamation “truth excuse for harmful action cannot be ex- to with a defense intentional interference justification. propriety tracted contractual relations.” Collincini (citations omitted). Id. at 249-250 Pa.Super.

Honeywell, [411 166] Inc. provide denied, foregoing language cases and 292, 296, appeal Pa. [530 601 A.2d authority reasoning sup- denied, persuasive [506 608 A.2d certiorari 651] that port position “truthful informa- 141]. L.Ed.2d 869] [121 U.S. 113 S.Ct. tion” should not be an absolute defense to Additionally, tortious the fol- interference. B.J.F., lowing privilege language find from Florida We that the existence of Star 2603, 2608-09, essen- 491 U.S. 109 S.Ct. depends to interfere a contract with pertinent tially interfering party has 105 L.Ed.2d 454-55 on whether the approving to to the issue of the wisdom of a need interfere with contract. to truthfulness rule is there is no need as an absolute defense. The where genu- Supreme to Court said in protect interfere with a contract Florida Star: statements, right, legal ine even truthful accept appellant’s Nor need we invita- contract, calculated to with the interfere broadly publica- tion to hold truthful exception are actionable. The is where may punished tion with never be consistent interfering party fide belief has bona the First Amendment. cases Our have destroy impair that the his contract will carefully reaching eschewed this ultimate genuine legal rights. question, may mindful the future bring prudence scenarios which counsels exception, rule and Under above resolving anticipatorily. our not privilege is a connection between truth and question prov- added). fact. And burden (emphasis Id.

ing the interfere privilege defense of a Syllabus -rule What would be better than clearly rests with the defendant. opinion? majority simple, A Point 5 of the reasonable,

Proving middle-ground approach all express the truth of state- and fair made hold that an inter- parties ments to the contract would the truthfulness of always fering legitimate that the “factor” un- be sufficient show statement is Syllabus consid- privileged defendant was interfere der Point of Torbett to be along the contract. ered with all other circumstances any evaluating propriety of interference. claim for interference with a business rela- states, Syllabus part: tionship. Point 2 of Torbett I concur in majority’s reversal summary judgment appellant’s oth- Defendants are not liable for interference er causes action. intentional, negligent rather than they legitimate compe- if defenses of show McCUSKEY, Justice, concurring: themselves, tition between (Filed 1998) June par- their financial interest the induced business, ty’s responsibility Court, their for an- In its zeal to have this rather than welfare, their intention influence other’s Legislature, draft adopt two new policies they another’s business in which litigants causes of action for Virginia, West interest, honest, giving have an Virginia *23 the dissent stands the West Consti- advice, requested truthful or other fully tution on its ear. I concur with the factors proper. that show the was result reached the Chief Justice’s well- interference opinion. reasoned I separately write to aid added.) (Emphasis the public’s understanding of complex, these approach This would allow a tribunal vital, issues, but highlight and also to give consideration to the concerns that un- public danger that would have arisen had the derlie the Restatement 772 formulation —and minority position prevailed. grant would avoid the Restatement’s of blan- important It is clearly to reiterate what immunity party’s ket in all cases where a is, not, this case plaintiff, and is about: The maliciously interfering literally statement Tiernan, salaried, Betty management was a true. employee of CAMC when she was terminat- rule, jury Under such a could consider 2, 1994, May violating ed on employ- her truthfulness Ms. Tiernan’s former em- by bringing newspaper er’s rules reporter statements, ployer’s interfering along all with private meeting into a manage- of CAMC of the other circumstances of the interfer- Although ment and staff. she claimed other- ence, determining whether the former em- wise, the judge circuit court found no evi- ployer’s improper conduct was or was not plaintiff dence that the was terminated for interference with Ms. Tiernan’s business re- any spoken speech, any words or or for lations.5 This would be fair. activity related to union organizing. Plainly reasons, stated, foregoing strongly refusing For the I she dis- was fired for to follow majority’s Syllabus security sent to the new Point the work rules related to the of her employer. and to the affirmance of the circuit court’s grant summary judgment against Ms. termination, After her Ms. Tiernan worked Tiernan her tortious interference claim. I organizer for several months a as union would and remand reverse for Ms. Tiernan’s part-time job nursing super- then took a as a Torbett, claim to be considered under an private nursing visor with a home. CAMC appropriately narrow rule that allows truth- informed this of the fact that the fulness to be considered as one of the rele- plaintiff recently employed had been as a in deciding

vant factors whether her organizer, nursing union after which the er’s interference with Ms. Tiernan’s business employing home ceased her. After the sec- relationships improper. termination, plaintiff ond sued CAMC for terminations, (1) alleging

both that CAMC rights IV. violated her Constitutional of free speech by terminating wrongfully her and Conclusion nursing caused the home to terminate her I grant relating would reverse the circuit court’s to it the truthful about information summary judgments appellant’s on the organizer. claim her work as a union speech retaliatory discharge attorney for free and her her chose not to cast her law- Laboratories, respective judges 5. We discussed the roles of Alcon note juries, evaluating allegedly improper conduct note 7 relations, employer employee in Travis v. — the com- remedy, against interpret fallen this Court suit, CAMC or seek a adopt the prac- mon law and decide whether to of the unfair labor possible violations choosing Rela- of the Restatement. In the National Labor standards provision of tices (such blacklisting) adopt provision of the Re- relevant Act as tions statement, majority opinion brings com- wrongful nursing termination.1 home for uniformity mon sense and Thus, facing were this Court the issues by concluding person that a can not be law of Kanawha Coun- whether Circuit successfully giving infor- sued for “truthful dismissing Tiernan’s ty Ms. was correct prospective about em- mation” a former also Speech claim and Free Constitutional analogous quite This the time ployee. damages against dismissing claim for her provi- corollary to Constitutional honored relating truthful results of CAMC regarding in which sions libel slander subsequent employer. information to claim, “truth” is absolute defense to arguments on the second The dissent’s regardless of the motive or intent of the flawed, and, seriously there- point are most speaker. writer or fore, area of the first. I law address depriving wronged plaintiff Rather than liability arising years, tort potential recent remedy, of a the dissent have the would information and providing employment *24 believe, majority merely opinion the prospective employer recommendations to to a new action in refuses create cause of atten- subject of has been the considerable decision, Virginia. By this our Court West growing mobile and tion debate. With a previously ambiguous has clarified area of longer rely no on population, employers can and, employment importantly, most we law “community reputation” of the traditional protect, stifle, to have acted of must, decisions, person making hiring for but allowing person give speech by free to instead, by rely on necessity, increasingly employment truthful information without job employment recommenda- references legal reprisal. risk of has reliance tions. Concomitant with this increasing trip actions A down been an of civil dissent the ladder number ivory employees give those who tower to the realities of the world ground might eye opening be an ment at level information.2 experience why courts in states other actions, usually styled law These common rejected minority’s reasoning. have If claims, as tortious contract interference previous employers, and who have those legisla- have caused to enact several states knowledge job applicants, muzzled about are suits; defining parameters such tion of lawsuits, by the fear of the result and threat adopted in have the Re- courts other states will, as Chief John once Justice Marshall (Second) Torts, statement of section “eome(s) said, every in its in home effects Virginia not en- Although West has man’s fireside.” intro- legislation, acted such two bills were that, Virginia expectation in House of Dele- It is a realistic under the duced the West Thus, minority position, every gates in facet of our lives the 1997 Session.3 properly endangered: lives legislation, absence of the task has would be workers whose majority opinion Employment 1.The that the 2. See 50 ALR Fed Adverse dissent’s claim Ref- rights bring of these Rights limits a citizen’s types either erences as under Title VII Civil Unlawful of simply of "Blacklist actions is not true. supporting Act a review of cases for ing” clearly under federal an unlawful act employee's proposition that an dissemination of Management labor law. See Labor Relations adverse references is unlawful where a discrimi- also, Act, 158(a)(1); Phelps Dodge § see USCA natory intent is shown. N.L.R.B., Corp. v. U.S. 61 S.Ct. (1941), Blacklisting progeny. L.Ed. 1271 and its February Bill introduced 3. House tacitly recognized been as a law tort has common employer immunity related disclo- Virginia. Retaliatory discharge in West has also regarding law en- sure information former long been law in West actionable common officers; Bill forcement introduced House Virginia. See v. First Bank Harless National immunity all em- March related Fairmont, S.E.2d ployers information. propositions. for both safety depend workplaces speech. Quite on the level of free obviously, the above placed by newly would be at risk hired co- quoted provision, Constitutional and its fed- background safety workers whose record counterpart, eral protect were intended to checked; longer day could no be children governmental, private, citizens from in- care, sick, aged and infirm would not fringement rights speech. on their of free If protected from be caretakers who have a government intercede, were to like a history molesting preying upon these referee, verbal speech in the free debate owners, groups; defenseless small business citizens, would, between reality, it invested, whose entire livelihood some- infringing rights on the speech of free generations, times for financially could be party I, one, one over the other. do not ruined, employees jobless, by and their left like thought likely or the my results. If the actions of one whose back- neighbor me, I insults believe I should retain ground effectively questioned could not be or my right him my to tell to leave property Indeed, every verified. depends citizen who reprisal by without fear of lawsuit. officers, upon police firefighters, emergen- Perhaps Harry President Truman demon- cy personnel pursuit has a stake in the strated the clearest understanding of the hiring employment process. truth practical nature of American life when he earlier, As indicated the issue of Constitu- responded charge prone that he was Speech tional Free did not have to be ad- verbal abuse of replied, his enemies. He “I majority, speech dressed since deliberately given have never anybody hell. truly was not involved. I would just I they tell the truth and think it’s hell.” disposed have simply of that issue affirm- The cherished Speech of Free ing the circuit plain- court’s dismissal of the protected America is best if expand- it is not grounds tiffs free claim on the *25 beyond right freely ed speak our to without right speech question. of free was not in governmental interference. Ironically, it right was CAMC’s of free issue; speech actually was at it was sued stating plaintiff. the truth about the WORKMAN, Justice, dissenting, part, concurring, part: and

Nonetheless, reasoning majority the of the opinion right firmly grounded in State (Filed 21, 1998) July jurisprudence. and Federal Constitutional I principles While concur with some of the III, Virginia’s Rights, West Bill of Article majority opinion, set forth the I vehement- part Section has been of our State Consti- ly majority’s dissent holding from the Virgi- tution since its introduction at West Speech the Free Clause of the state constitu- nia’s first Constitutional Convention applicable private tion is not to sector em- Wheeling. “Right Speech Entitled of ployers. all-encompassing holding This Guaranteed,” today Press it reads the same wrong legal perspective wrong from a years ago. Clearly as it did 137 and unam- policy perspective. from a I do not believe it biguously, Constitution, of framers our is the law of the United I States and will borrowing from the United States Constitu- being Virgi- to it subscribe the law of West tion, protect gov- acted to our citizens from nia. speech ernmental with their free interference by saying: abridging No law the freedom Furthermore, disagree majori- I with the speech, press, passed. of or of the shall be ty’s conclusion that truthful communications through

There is no mention always the three are a defense to tortious interference transcripts volumes of verbatim constituting with a relationship, business even if such Proceedings the Debates and the First communications are malicious and intended of Virginia, Constitutional Convention West to do harm. Both of these issues should of 1861-1863, intended, governed by that our framers have been a much more cautious plaintiff urges, provide analysis to a cause of action of the in the context of this law private parties which points can sue each other action and the two new of law should narrowly for the results of mutual their exercise of have been far more drawn. majority, Cheyenne Newspapers, Drake FREE I. SPEECH Inc., (Wyo.1995), af P.2d 80 the court this Court which specific The issue before retal employees’ the dismissal of two firmed speech question free was gave rise discharge manage iatory claim where the emanating policy from the “public whether refusing fired employees were ment-level constitution Speech the state Free Clause a “no” on union urging to wear buttons vote by private employees sector applies speech to ruling The recognition. court’s that “termi disagree policies who criticize or exercising his nating an at-will private their other actions taken lawful speech refusing right free to follow however, majority, employers.” sector legal employer employ directive of an question limited concrete and abandons this working premises during er’s hours does not sharp with a to cut across the constitution public policy” expressly predicat violate moving analysis and wide swath. generally-applicable maxim that ed on the very all-encompassing from concrete to speech free does not extend framework, they elevate statutes over our Lloyd private property. (citing at 82 Id. constitution, they misinterpret law state 567-70, Tanner, Corp., Ltd. v. 407 U.S. jurisdictions, give no deference from other 2219, 33 L.Ed.2d S.Ct. and, precedent, as the authorities cited below emphasis supplied). indicate, lengthy body they depart Virgi- jurisprudential holding law that West instances, In certain respects many is in even nia’s constitution employers employees’ to draw limits on their rights protective our than more citizens’ speech may beyond freedom of even extend Constitution. the United States premises place physical of the example, Raytheon ment. For in Korb v. First, case an examination of the law Corp., N.E.2d 410 Mass. majority gross reflects a which the relies that no court determined majority misapprehension part on the discharged occurred em- violation where say: cases as to what theses ployee corporate spokesperson. was the Be- majority expressly cited cases employee spoke out cause connect absence a cause of action for interests of his defense contractor speech free employee’s exercise of press nonprofit of a or- during a conference legitimate “employment- that has member, ganization which he was board *26 Evans, Grzyb 700 related S.W.2d nexus.” legitimately employer the determined Yarns, (Ky.1985). Mayo In Johnson v. employee “had his effectiveness as lost 292, N.C.App. a S.E.2d Id., spokesperson.” its at 372. The court majority sup case which cites as expressly in present contrasted the situation holding, portive of its the court determined employer clearly “had a Korb where obey employee’s private that an to his refusal advocating posi- in financial stake not th[e] to employer’s directive remove a Confederate by the to employee tion” one in which stated flag workplace his toolbox not decal from employee speaking “an is for out on fired constitutionally protected speech expres or interest, has employer issues in which his no therefore, public policy and no sion violation Id.; Prysak see financial or otherwise.” also permit occurred would an which actionable Co., Mich.App. v. R.L. Polk Id., wrongful discharge claim. 484 S.E.2d at (finding free N.W.2d no Accepting employer’s contention speech computer operator violation where expression speech of free and “the writing fired for a letter which threatened workplace does not extend to the where a employer’s noting one of his customers and private employer flexibility must have speech that mat- distinction between involves adopting enforcing employment poli its purely private ters of concern versus practices[,]” cies and the court Johnson speech). plaintiffs ruled that “the conduct carried out words, private employment constitutionally In while there is law across is not other protected activity.” (emphasis supplied). private employers, States that Id. United actors, Similarly, required protect being in another cited are not to decision state rights employees, tempered by First Amendment must be the principle that they even be allowed to restrict employer’s where the motivation for the rights if such there is nexus between the discharge is to contravene some substan- speech and valid business-related interest public policy principle, tial then the em- employer, support of the the law does not ployer may employee be liable to the that the conclusion First Amendment has no damages discharge. occasioned application private employers. whatsoever to also, See Tudor v. Charleston Area Medical Center, Each of the above-discussed cases was cit- Inc., 203 W.Va. 506 S.E.2d 554 majority support sweeping ed its (1997); syl. pt. McClung v. County Marion pronouncement Speech Comm., that the Free clause W.Va. S.E.2d 221 . applicable of the state (1987) constitution is private employers, supports but none of them regard, In that this Court has made clear majority abrogates the extent to which the Virginia the Constitution of West is a rights. holding individual constitutional This public policy source of employ- area of narrowly pertain should have been drawn to law. As sylla- this Court observed in ment only speech to that which can be determined point bus two Birthisel v. Tri-Cities legitimate “employment-related to have a Corp., Health Services through nexus” either the location at which (1992): identify S.E.2d 606 “To the sources made, speech place is i.e. the purposes determining ment, through ability speech of the retaliatory discharge occurred, whether a has have a determinable effect on the precepts we look to established our consti- employee’s job responsibilities. or on the tution, enactments, legislative legislatively limitation, clearly Absent this we are autho- approved regulations, judicial opinions.” rizing abrogation of the freedom of also, Greene, syl. pt. See Williamson v. speech rights private all employees. sector W.Va. 490 S.E.2d 23 I predict majority’s both fear and that the Thus, suggestion syllabus point four holding may protect be used as a shield to majority opinion that a statute would employers wrongful sector dis- required impose recognize charge'suits prompted that are when an em- policy emanating from the Constitution of ployer discharges employee an when it dis- Virginia regard speech West to free agrees employee’s with an exercise of his slightly Certainly, absurd. the Constitution speech though freedom of even such Virginia already of West the law of the nothing has whatsoever to do with the enjoys priority land in this State over employment. fact, statutory recog- law. as this Court majority holding, example, Under the syllabus point Pauley nized in two of v. Kel- an could be writing fired for (1979): ly, 162 W.Va. 255 S.E.2d 859 editor, letter to joining organization, provisions “The of the Constitution of the wearing badge, speaking or even out on a *27 Virginia may, State of West in certain in- issue, though even such activities are stances, require higher protec- standards of nothing done on his own time and have to do tion than afforded Federal Constitu- employment. with his I am unable find to also, Bonham, Syl. pt. tion.” See State any body juris- of in law modern American 317 W.Va. S.E.2d 501 In prudence permits that such an Orwellian re- Hugh Corp., Cordle v. General Mercer Virginia, sult. historically West which has (1984), W.Va. S.E.2d as the immensely protective been of individual majority acknowledges, this Court indicated rights, in all-encompass- stands alone such an question is a of a law which ing holding. light particular court must decide in of the syllabus point In the of Harless v. First each circumstances of case. 174 W.Va. at Fairmont, National Bank in 162 W.Va. principle at 114. While the S.E.2d S.E.2d this Court held: expressed may provide thus in Cordle certain The rule than an parameters considering speech has an abso- in free sector, discharge lute to an at public policy, will as diseernable Thus, approach practical a was devel- Virginia, need not more of West the Constitution Virgi- Wheeling selectively incorporated oped Torbett v. into West be Co., Savings & Trust 173 W.Va. Dollar nia law statute. (1983), syllabus two point of 314 S.E.2d 166 CAMC, Furthermore, held Tudor v. we part: states in which a 506 S.E.2d 203 W.Va. plaintiff prima case [of If a makes facie discharge may ground claim be constructive interference], a may tortious defendant emanating from a mere upon public policy ed justification prove privilege, or affirmative Tudor, of regulation. the evidence state liable defenses. Defendants are not for discharge plaintiff indicated rather than negligent interference that is about,' brought part, employment was from intentional, they if show defenses of or about the she had voiced concerns because plaintiff legitimate competition between Thus, nurse-patient as ratio. inasmuch themselves, interest in and their financial upheld by in Tudor was this Court claim business, respon- party’s the induced their policy emanating upon of basis welfare, sibility for their inten- another’s say to regulation, it seems ludicrous from policies tion to influence another’s business public policy cannot emanate from interest, they giving in which have an Virginia. Constitution West honest, advice, requested truthful Lastly, disappointed I in the concur- am other factors that show the interference bombast, I see ring opinion. It full of but is proper. authority body. its not one citation of within phrase To borrow a this Court’s deci- horribles, claiming that parades It Dzinglski Corp., v. Weirton sion Steel would reasoning of dissent Justice Starcher’s (1994), however, W.Va. mayhem, including in all result manner qualified privilege “a bad motive will defeat no pestilence. of fire But I see threats and also, 41 at p. defense.” See Harv.L.Rev. 728 cited, any meaningful law nor discourse (1928), stating privilege 749-50 that “[t]he “stand legal presented. I’d rather issues conditional if the were used occasion ear,” concurring the constitution on its advice, injure give bona but to does, opinion claims Starcher than Justice fide reason, plaintiff any ulterior the defen- throw it out window. privilege should dant lose his therefore Virginia employees. a state of Un West language fail in his defense.” above very majority opinion, many der the could Torbett, only a indicating that truth is factor your well be called freedom decide— in a to be considered tortious interference job! your Tiernan v. After claim, allows for unforeseen circumstances CAMC, slogan are our state “Mountaineers part a bad on the the defen- where motive always certainly free” needs modification. also, dispositive. See dant Voorhees Guyan Machinery Company, (1994),citing Torbett S.E.2d 672 II. INTERFERENCE TORTIOUS affirming judgment Similarly, tor- regard the issue of interference, where the former em- tortious relation- tious interference with business plaintiffs new ployer, who notified em- ship, opinion syllabus I am of the that the ployer plaintiffs covenant not com- narrowly point should more drawn have been “legitimate pete, competition” failed to show analysis case-by-case that a is warrant- plaintiffs employer. it and the new between *28 adoption Pursuant Restate- ed. of the five, Thus, syllabus point holding majority only be an ment truth would law, departs existing bar absolute to a claim tortious interfer- but under Dealing in relationship. ence with a malicious con- business some circumstances license absolutes, however, game, tortiously dangerous is a duct. When one interferes with especially employment, hu- even if the truth the world of business and another’s endeavor, employed man relations that the Re- in such such conduct has evolved since statement was under limited circumstances be drafted. should some if intent to actionable there is malicious do economic harm.

substantial

Glenn M. and Sandra WILT Plaintiffs, Wilt,

B. MUTUAL

STATE AUTOMOBILE COMPANY,

INSURANCE

Defendant.

No. 24579.

Supreme Appeals Court of Virginia.

West

Submitted March 1998.

Decided June Hood, Cooper, Cooper

John W. Lori & Preston, Parsons, Plaintiffs. Fowler, Stebbins, John R. Huddle- James ston, Bolen, Beatty, Copen, Porter &' Charleston, for Defendant.

WORKMAN, Justice: question This here on certified case is from the District for the United States Virginia West Northern District of and raises *29 statute sole issue of which of limitations