IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2003 Term
May 7, 2003
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
NICK WOUNARIS, JR.,
Plaintiff Below, Appellant
WEST VIRGINIA STATE COLLEGE,
Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County
Honorable James C. Stuckey, Judge
Civil Action No. 00-C-2627
REVERSED AND REMANDED
Submitted: April 15, 2003
Filed: May 7, 2003
Lonnie C. Simmons, Esq.
Rudolph L. DiTrapano, Esq.
DiTrapano, Barrett & DiPiero
Charleston, West Virginia
Attorneys for Appellant
Charles R. Bailey, Esq.
John T. Molleur, Esq.
Bailey & Wyant
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE STARCHER and JUSTICE DAVIS dissent
and reserve the right to file dissenting opinions.
JUSTICE ALBRIGHT concurs and reserves the right to file
a concurring opinion.
SYLLABUS BY THE COURT
“Although the ruling of a trial court in granting or denying a motion for a new trial
is entitled to great respect and weight, the trialcourt’s ruling will be reversed on appeal when it is clear that
the trial court has acted under some misapprehension of the law or the evidence.” Syl. pt. 4, Sanders
v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976).
“As a general rule, the refusal to give a requested jury instruction is reviewed for
an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question
of law, and the review is de novo.” Syl. pt. 1, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257
“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 princip[le], 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).
“Indisparate treatment discrimination cases under the West Virginia Human Rights
Act, W. Va. Code, 5-11-9 (1992), a plaintiff proves a claim for unlawful discrimination if he or she proves
by a preponderance of the evidence that a forbidden intent was a motivating factor in an adverse
employment action. Liability will then be imposed on a defendant unless it proves by a preponderance of
the evidence that the same result would have occurred even in the absence of the unlawful motive.” Syl.
pt. 6, Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 479 S.E.2d 561 (1996).
“Once the plaintiff in an action for wrongful discharge based upon the contravention
of a substantial public policy has established the existence of such policy and established by a
preponderance of the evidence that an employment discharge was motivated by an unlawful factor
contravening that policy, liability will then be imposed on a defendant unless the defendant proves by a
preponderance of the evidence that the same result would have occurred even in the absence of the
unlawful motive.” Syl. pt. 8, Page v. Columbia Natural Res., Inc., 198 W. Va. 378, 480 S.E.2d 817
“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.” Syl. pt. 8, Feliciano v. 7-Eleven, Inc., 210 W. Va. 740, 559 S.E.2d
“To identify the sources of public policy for purposes of determining whether a
retaliatory discharge has occurred, we look to established precepts in our constitution, legislative
enactments, legislatively approved regulations, and judicial opinions.” Syl. pt 2, Birthisel v. Tri-Cities
Health Services Corp., 188 W. Va. 371, 424 S.E.2d 606 (1992).
“The legislative intent expressed in W. Va. Code, 18-29-1 (1985), is to provide
a simple, expeditious and fair process for resolving problems.” Syl. pt 3, Spahr v. Preston County
Board of Education, 182 W. Va. 726, 391 S.E.2d 739 (1990).
“W. Va. Code § 18-29-3(a) (1992) (Repl. Vol. 1994) makes mandatory the time
periods within which grievances by educational employees must be filed, heard, and decided. If a
grievance evaluator does not comply with the hearing and decision time periods, and his/her inaction does
not come within one of the enumerated statutory exceptions,