Tolliver v. Kroger Co

In Tolliver v. Kroger Co., 201 W.Va. 509, 498 S.E.2d 702 (1997), the plaintiff employee filed an action for intentional infliction of emotional distress and assault and battery against her employer based on allegations that her supervisors "watched her perform inventories" and "yelled at her." Tolliver, 201 W.Va. at 514, 498 S.E.2d at 707. The Court concluded that 301, if properly raised, preempted the intentional infliction of emotional distress claim because "Mrs. Tolliver's claim centered on her job duties and the performance of those duties. The purpose of a CBA "collective bargaining agreement" is to resolve disputes between the employer and the employee relating to the rates of pay, hours of work, and conditions of employment." Id. The Court further explained that "there can be no dispute. The very essence of Mrs. Tolliver's claim resulted from her job performance and her work relationship with her immediate supervisor. As such, resolution of Mrs. Tolliver's intentional infliction of emotional distress claim necessarily requires interpretation and application of the CBA." 201 W.Va. at 515, 498 S.E.2d at 708. The Court concluded, however, that Kroger waived 301 preemption by failing to raise it. In Tolliver v. Kroger Co., the Court addressed the specific requirement that a plaintiff clearly articulate a deliberate intention cause of action against the employer within the pleading. In syllabus point eight, the Tolliver Court recognized as follows: "The legislature has plainly indicated the type of allegations which do not sustain a cause of action under W.Va. Code 23-4-2(c)(2)(i) (1994), which specifically provides that a cause of action under its provision may not be satisfied by an allegation of (A) conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct. The language of this provision demands overcoming a high threshold to establish a cause of action under W.Va. Code 23-4-2(c)(2)(i)." In Tolliver, the complaint alleged the following: "'The plaintiff, Linda Sue Tolliver, was physically assaulted and battered by her supervisor, Terry Lucas, while she was an employee at the Barboursville store.'" 201 W.Va. at 523, 498 S.E.2d at 716. Mrs. Tolliver asked this Court to allow the language of her complaint to satisfy the specific deliberate intention pleading requirements of W.Va. Code 23-4-2(c)(2)(i). The circuit court had found, as a matter of law, that the language failed to satisfy the deliberate intention pleading requirement. The Court agreed, holding as follows in syllabus point nine: "To properly plead a prima facie case under W.Va. Code 23-4-2(c)(2)(i) (1994), the statute requires an employee set out deliberate intention allegations. Under the statute, deliberate intention allegations may only be satisfied where it is alleged an employer acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury."