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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2001 Term __________

FILED
April 26, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

RELEASED
No. 28405 __________ ANGELA S. LOVE, Plaintiff Below, Appellant, v. GEORGIA-PACIFIC CORPORATION, Defendant Below, Appellee
April 27, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

__________________________________________________ Appeal from the Circuit Court of Fayette County Honorable Charles M. Vickers, Judge Civil Action No. 97-C-287 AFFIRMED __________________________________________________ Submitted April 3, 2001 Filed: April 26, 2001 Ralph C. Young Hamilton, Burgess, Young & Pollard Fayetteville, West Virginia Attorney for the Appellant Mark W. Browning Shuman, McCuskey & Slicer Charleston, West Virginia. A. Neal Barkus Hunton & Williams Washington, D.C. Attorneys for the Appellee

The Opinion of the Court was delivered Per Curiam. Chief Justice McGraw dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1. "`The West Virginia Rules of Evidence . . . allocate significant discretion to the trial court in making evidentiary . . . rulings. Thus, rulings on the admission of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary . . . rulings of the circuit court under an abuse of discretion standard.' Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995)." Syl. Pt. 9, Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997).

2. "`The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a directed verdict when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed.' Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996)." Syl. Pt. 6, McCloud v. Salt Rock Water Pub. Serv. Dist., 207 W.Va. 453, 533 S.E.2d 679 (2000).

3. " A constructive discharge cause of action arises when the employee claims that because of age, race, sexual, or other unlawful discrimination, the employer has created a hostile working climate

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which was so intolerable that the employee was forced to leave his or her employment." Syl. Pt. 4, Slack v. Kanawha County Hous. and Redevelopment Auth., 188 W.Va. 144, 423 S.E.2d 547 (1992).

4. "Where a constructive discharge is claimed by an employee in a retaliatory discharge case, the employee must prove sufficient facts to establish the retaliatory discharge. In addition, the employee must prove that the intolerable conditions that caused the employee to quit were created by the employer and were related to those facts that gave rise to the retaliatory discharge." Syl. Pt. 5, Slack v. Kanawha County Hous. and Redevelopment Auth., 188 W.Va. 144, 423 S.E.2d 547 (1992).

5. "In order to prove a constructive discharge, a plaintiff must establish that working conditions created by or known to the employer were so intolerable that a reasonable person would be compelled to quit. It is not necessary, however, that a plaintiff prove that the employer's actions were taken with a specific intent to cause the plaintiff to quit." Syl. Pt. 6, Slack v. Kanawha County Hous. and Redevelopment Auth., 188 W.Va. 144, 423 S.E.2d 547 (1992).

6. "In order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress, four elements must be established. It must be shown: (1) that the defendant's conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct; (3) that the actions of the defendant caused the plaintiff to suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff
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was so severe that no reasonable person could be expected to endure it." Syl. Pt. 3, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).

7. "In evaluating a defendant's conduct in an intentional or reckless infliction of emotional distress claim, the role of the trial court is to first determine whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination." Syl. Pt. 4, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).

Per Curiam:

Angela S. Love appeals from the September 3, 1999, order of the Circuit Court of Fayette County denying her motion for a new trial following the entry of an adverse judgment order on April 23, 1999, in a constructive retaliatory discharge action that Appellant brought against her former employer, Appellee Georgia-Pacific Corporation. Appellant also appeals from the trial court's entry of judgment as

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a matter of law1 on her claim of intentional infliction of emotional distress. Upon a thorough review of the entire record submitted to this Court, we find no error and accordingly, affirm.

I. Standard of Review The standard under which we review the trial court's refusal to grant a new trial is stated in Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 459 S.E.2d 374 (1995): "We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard." Id. at 104, 459 S.E.2d at 381. Each of the assigned errors associated with the denial of the new trial motion are evidentiary rulings, which are similarly governed by an abuse of discretion standard of review. "The West Virginia Rules of Evidence . . . allocate significant discretion to the trial court in making evidentiary . . . rulings. Thus, rulings on the admission of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary . . . rulings of the circuit court under an abuse of discretion standard." Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995). Syl. Pt. 9, Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997).

We review the lower court's granting of judgment as a matter of law to Appellee on the emotional distress claim under the same standard applied to directed verdicts:2
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See W. Va. R. Civ. P. 50(a).

We explained in McCloud v. Salt Rock Water Public Service, 207 W.Va. 453, 533 S.E.2d 679 (2000), that (continued...)
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"The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a directed verdict when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed." Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996). Syl. Pt. 6, McCloud v. Salt Rock Water Public Service, 207 W.Va. 453, 533 S.E.2d 679 (2000).

II. Factual and Procedural Background Ms. Love began her employment with Georgia-Pacific in July 1994 when she was hired as a clerical assistant to work at its Mt. Hope plant. Within several months she was promoted to the position of Human Resources Assistant/Payroll Coordinator and in March 1996, Appellant was promoted to principal secretary to the Human Resources Manager, Denise Hughes. Sometime during March 1996,

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(...continued) Rule 50 of the West Virginia Rules of Civil Procedure was amended in 1998, and the term "directed verdict" was replaced with the phrase "judgment as a matter of law." "The amendment did not, however, affect either the standard by which a trial court reviews motions under the rule or the standard by which an appellate court reviews a trial court's ruling."

207 W.Va. at 457, n. 1, 533 S.E.2d at 683 n. 1 (quoting Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 482 n. 7, 457 S.E.2d 152, 159 n. 7 (1995)).
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Georgia-Pacific terminated Appellant's husband, David Love, from its employ along with several other employees including the plant manager, Laurel Allen.3

On July 3, 1996, Appellant and her husband initiated a civil action in the Circuit Court of Wyoming County through which they asserted on behalf of themselves and all West Virginia employees of Georgia-Pacific that Appellee was violating the payment provisions of the West Virginia Wage and Payment Collection Act.4 When Georgia-Pacific learned of Appellant's filing of the wage suit, a decision was made to move her out of the human resources department where she had access to the payroll records of all the non-exempt5 plant employees as well as other confidential personnel file information.6

Initially, Ms. Love was moved to an undefined position7 in the accounting department and had very few, if any, duties for the first week after the transfer. Over time, however, she was given the

The issue of Mr. Love's termination is mentioned due to the fact that Appellant, when deposed, stated that her husband's firing was one of three possible reasons why Georgia-Pacific took the alleged retaliatory actions against her. Additionally, in responding to Appellant's intentional infliction of emotional distress claim at trial, Georgia-Pacific offered testimony to demonstrate that Ms. Love's emotional state was affected by her husband's termination.
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See W.Va. Code

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