Submitted: October 29, 2019
from the Circuit Court of Monongalia County The Honorable
Russell M. Clawges, Jr., Judge Civil Action No. 18-C-117
M. Capuder Capuder Fantasia PLLC Fairmont, West Virginia
Attorney for Petitioner
L. Bean Shelby A. Hicks-Merinar STEPTOE & JOHNSON PLLC
Morgantown, West Virginia Attorneys for Respondents
BY THE COURT
"Appellate review of a circuit court's order
granting a motion to dismiss a complaint is de
novo." Syllabus point 2, State ex rel. McGraw
v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770');">194 W.Va. 770, 461
S.E.2d 516 (1995).
"'"Whether a complaint states a claim upon
which relief may be granted is to be determined solely from
the provisions of such complaint[.]" Syl. pt. 3, in
part, Barker v. Traders Bank, 152 W.Va. 774');">152 W.Va. 774, 166
S.E.2d 331 (1969).' Syl. Pt. 2, Par Mar v. City of
Parkersburg, 183 W.Va. 706');">183 W.Va. 706, 398 S.E.2d 532 (1990)."
Syllabus point 11, Vanderpool v. Hunt, 241 W.Va.
254, 823 S.E.2d 526 (2019).
"The rule that an employer has an absolute right to
discharge an at will employee must be tempered by the
principle that where the employer's motivation for the
discharge is to contravene some substantial public policy
principle, then the employer may be liable to the employee
for damages occasioned by this discharge." Syllabus,
Harless v. First National Bank in Fairmont, 162
W.Va. 116, 246 S.E.2d 270 (1978).
"When an at will employee has been discharged from
his/her employment based upon his/her exercise of
self-defense in response to lethal imminent danger, such
right of self-defense constitutes a substantial public policy
exception to the at will employment doctrine and will sustain
a cause of action for wrongful discharge." Syllabus
point 8, Feliciano v. 7-Eleven, Inc., 210 W.Va. 740,
559 S.E.2d 713 (2001).
Timothy Newton ("Mr. Newton") herein appeals from
the June 19, 2018 order of the Circuit Court of Monongalia
County dismissing his complaint filed against Respondents
Morgantown Machine & Hydraulics of West Virginia, Inc.,
and Swanson Industries, Inc. ("Respondents"). The
circuit court determined that Mr. Newton's complaint,
alleging wrongful discharge in contravention of substantial
public policy, failed to state a claim upon which relief
could be granted pursuant to Rule 12(b)(6) of the West
Virginia Rules of Civil Procedure. On appeal, Mr. Newton
contends that his complaint was sufficient to save his case
from dismissal. Having considered the briefs submitted on
appeal, the appendix record, the parties' oral arguments,
and the applicable legal authority, we find that the circuit
court did not err in granting the motion to dismiss.
Accordingly, we affirm the circuit court's final order.
FACTUAL AND PROCEDURAL HISTORY
April of 2011, Mr. Newton was hired by Respondents as a truck
dispatcher. He was employed as an at will employee. On March
15, 2016, Mr. Newton engaged in a physical altercation with a
co-worker in the workplace. The next day, Mr. Newton and the
co-worker were both terminated from their positions. Two
years later, on March 14, 2018, Mr. Newton filed a complaint
against Respondents in the Circuit Court of Monongalia County
alleging that he was wrongfully discharged from his at will
employment under Harless v. First National Bank in
Fairmont, 162 W.Va. 115, 246 S.E.2d 270 (1978). More
specifically, Mr. Newton asserted that he was fired after
using "only absolutely necessary force to defend
himself." The facts as pled in the complaint are as
15. On March 15, 2016, Mr. Newton was working in his position
as Truck Dispatcher when another employee, a truck driver,
physically assaulted Mr. Newton.
16. Mr. Newton applied only necessary force to defend
himself, and did not apply any force beyond what was
necessary to protect himself.
17. Later that day, Mr. Newton's direct boss, Eric
Farnham, told Mr. Newton that Mr. Farnham had consulted with
the human resources department management of Swanson
Industries, Inc., and that Swanson Industries, Inc.[, ] made
the decision to suspend Mr. Newton through March 17, even
though they understood Mr. Newton's actions constituted
self-defense when being attacked by the truck driver.
18. On March 16, 2016, Mr. Farnham informed Mr. Newton that
Swanson Industries, Inc.[, ] had reconsidered the decision,
and decided to fire Mr. Newton instead of suspend Mr. Newton.
19. Mr. Newton was therefore fired on March 16, 2016[, ] by
Morgantown Machine, despite the fact that both corporate
Defendants understood that Mr. Newton's actions
filed a motion to dismiss the complaint for failure to state
a claim under Rule 12(b)(6) of the West Virginia Rules of
Civil Procedure. In their motion, Respondents argued that Mr.
Newton failed to state a claim for wrongful discharge because
the physical conduct at issue was not in response to lethal
imminent danger, but rather in response to a workplace
argument. Mr. Newton filed a response to the motion to
dismiss, in which he set out additional, more detailed facts
concerning the physical attack.
a hearing on the motion, by order entered on June 19, 2018,
the circuit court granted Respondents' motion to dismiss.
The circuit court determined that despite Mr. Newton's
claim that the self-defense exception to the at will
employment doctrine applied in this case, Mr. Newton
"was engaged in an altercation with a coworker that did
not involve weapons, dangerous circumstances, or a threat of
lethal imminent danger. The facts in this case [did] not
describe the substantial ...