Opinion
No. 22-0094
06-13-2023
Loyd Franklin RANSOM, Jr., Petitioner, v. GUARDIAN REHABILITATION SERVICES, INC., and Guardian Elder Care at Fairmont, LLC, Respondents.
Drew M. Capuder, Esq., Capuder Fantasia PLLC, Fairmont, West Virginia, Counsel for Petitioner Kenneth N. Schott, III, Esq., Mary-Jo Rebelo, Esq., Burns White LLC, Pittsburgh, Pennsylvania, Pro Hac Vice Phillip T. Glyptis, Esq., Burns White LLC, Wheeling, West Virginia, Counsel for Respondents
Drew M. Capuder, Esq., Capuder Fantasia PLLC, Fairmont, West Virginia, Counsel for Petitioner
Kenneth N. Schott, III, Esq., Mary-Jo Rebelo, Esq., Burns White LLC, Pittsburgh, Pennsylvania, Pro Hac Vice
Phillip T. Glyptis, Esq., Burns White LLC, Wheeling, West Virginia, Counsel for Respondents
WALKER, Chief Justice: After he was fired for having his legally-owned firearm locked inside his car on company property, which violated a workplace policy, Loyd Franklin Ransom, Jr., sued his employer for unlawful discharge under the West Virginia Business Liability Protection Act and for wrongful discharge under Harless . Because questions of material fact remain regarding whether the employer conditioned Mr. Ransom's initial hire, or continued employment following the incident in question, on an agreement to comply with a firearm policy inconsistent with the Act, we reverse the circuit court's order granting summary judgment in the employer's favor and remand this case for further proceedings.
W. Va. Code § 61-7-14 (2018).
See Syl., Harless v. First Nat'l Bank in Fairmont , 162 W. Va. 116, 246 S.E.2d 270 (1978) ("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.").
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2018, Mr. Ransom began working as a licensed occupational therapist assistant for Guardian Rehabilitation Services, Inc., at its Fairmont Healthcare and Rehabilitation Center. He was fired just a few weeks later after a coworker reported to management that Mr. Ransom had a firearm in his car.
Mr. Ransom drove to work early on October 22, 2018. He parked in Guardian's parking lot beside the employee smoking area. When he was locking his car, Mr. Ransom realized that he had forgotten to remove his firearm, an AR-15 rifle, from his vehicle the night before. He leaned the firearm against the seat of his car with the butt of the firearm on the car's floorboard and partially covered it with a jacket and laptop case before entering the workplace. Around lunch time, Guardian's Director of Rehabilitation, Kirstein Smith, told Mr. Ransom that another employee reported seeing a firearm in his car; she asked him to take the firearm home and return to work. Mr. Ransom complied with her request and worked the rest of the day.
At the end of the workday on October 22, Ms. Smith and Guardian's Administrator, Beth Harris, called Mr. Ransom into the management office. Betsy Myers, Guardian's Area Manager, joined this meeting by phone. They told Mr. Ransom that he was fired for violating a company policy that prohibited the possession of firearms on company premises. Guardian's employee handbook provided that employees "may not bring any of the following onto the business property: Firearms or weapons of any kind[.]"
In May 2019, Mr. Ransom sued Guardian and Guardian Elder Care at Fairmont, LLC, in the Circuit Court of Marion County. He claimed Guardian violated § 61-7-14(d)(3) of the Act, which provides that an employer may not "condition employment" on "[a]n agreement with an employee" prohibiting him "from keeping a legal firearm locked inside or locked to a motor vehicle in a parking lot when the firearm is kept for lawful purposes." Mr. Ransom stated that he was the lawful owner of the firearm who kept it in his locked car at work in the employer's parking lot, and that he kept it for lawful purposes. He also brought a Harless claim, alleging that his termination of employment violated a substantial public policy recognized in the Act, "that employees are entitled to possess their firearms for a lawful purpose in their locked vehicles parked at their place of work, and that employers may not retaliate against and fire employees for such protected conduct."
Guardian Elder Care at Fairmont, LLC, held the license to operate Fairmont Healthcare and Rehabilitation Center in Marion County. For the sake of brevity, we refer to these Respondents collectively as Guardian.
In its answer to the complaint, Guardian admitted that Mr. Ransom "was terminated for violation of a workplace policy prohibiting firearms on the property." As an affirmative defense, Guardian stated that Mr. Ransom was terminated lawfully because he "had a firearm in open view in his vehicle parked in a parking lot on the premises at Fairmont Healthcare and Rehabilitation Center." Guardian stated that the Act "only protects an employee regarding his/her possession of a legally owned firearm in a motor vehicle in an employer's parking lot when the firearm is, inter alia , out of view[,]" citing a different provision of the Act— § 61-7-14(d)(1), which provides that no owner of real property may prohibit an employee "from possessing any legally owned firearm, when the firearm is[:] (A) Lawfully possessed; (B) Out of view; (C) Locked inside or locked to a motor vehicle in a parking lot; and (D) When the ... employee ... is lawfully allowed to be present in that area." Guardian did not offer any affirmative defenses specifically directed toward Mr. Ransom's allegation that it violated the Act's employment anti-discrimination provision set forth in § 61-7-14(d)(3), as alleged in his complaint.
Id.
In August 2021, Guardian moved for summary judgment, arguing that it did not violate the Act because Mr. Ransom's firearm was not "out of view," again citing § 61-7-14(d)(1). Guardian also argued that Mr. Ransom's Harless claim likewise failed because it was premised on a violation of the Act, which did not occur. Mr. Ransom filed a motion for partial summary judgment on liability, arguing that the provision of the Act relied on by Guardian was less specific and, therefore, not applicable to his situation. Mr. Ransom argued that the more specific provision dealing with employment, § 61-7-14(d)(3), says nothing about the firearm having to be out of view. Because his legally-owned firearm was locked in his car, Mr. Ransom claimed that the Act prohibited Guardian from terminating his employment. Mr. Ransom also argued that since Guardian was in violation of the Act, he was entitled to summary judgment on his Harless claim as well.
Guardian relied on Mr. Ransom's deposition testimony as well as its answers to Mr. Ransom's first set of interrogatories, which were not signed or verified.
The circuit court concluded that Guardian did not violate the Act because Mr. Ransom's firearm was in plain view in his car. In a footnote, the circuit court stated that the subsection relied on by each party was "in conflict" with the other. It concluded that while the subsection relied on by Mr. Ransom did not specify that the firearm be out of view, it reasoned that to find otherwise would "obviate" that subsection on which Guardian relied and "lead to an absurd result." Finding no violation of the Act, the circuit court concluded that Mr. Ransom's Harless claim lacked any basis. So, it granted Guardian's motion for summary judgment on October 8, 2021.
Mr. Ransom then attempted an appeal of the order to this Court in November 2021. In the order granting summary judgment, Mr. Ransom's name was reflected as "Franklin L. Ransom," his commonly used name, and the name initially designated on his summons and complaint. But his full legal name is Loyd Franklin Ransom, Jr. After this Court refused to docket Mr. Ransom's appeal because of the name discrepancy, he filed a motion with the circuit court under Rule 60(a) of the West Virginia Rules of Civil Procedure to correct his name, arguing clerical mistake. Guardian opposed this motion. The circuit court granted Mr. Ransom's motion and entered an amended order granting Guardian's motion for summary judgment on January 10, 2022. Mr. Ransom filed a new appeal of this order. II. STANDARD OF REVIEW
Mr. Ransom explains that he overlooked the fact that his lawsuit was filed in the name of Franklin L. Ransom. He says that his correct name was provided to Guardian during his July 16, 2021, deposition, and that he used his correct name in the style of his Amended Opposition to Defendants’ Motion for Summary Judgment in September 2021.
The delay in obtaining a corrected order caused procedural irregularities in this appeal. Guardian asserts that Mr. Ransom's pursuit of relief under Rule 60(a) with the circuit court did not toll his deadline to perfect his appeal, and that the deadline to perfect his appeal remained February 8, 2022. But Mr. Ransom did not perfect his appeal until May 11, 2022. As a cross-assignment of error, Guardian argues that this Court should dismiss Mr. Ransom's appeal for failure to timely perfect.
In response to the cross-assignment of error, Mr. Ransom moved for an extension of time under Rule 5 of the West Virginia Rules of Appellate Procedure. He argued that good cause exists for several reasons: (1) he is the same person identified in the circuit court's first summary judgment order, (2) he did what was suggested by the Clerk of this Court to resolve the name discrepancy, (3) the circuit court's order granting him relief constituted a final appealable decision, (4) he timely filed a notice of appeal from the first summary judgment order, (5) this Court's order stating that his appeal would not be docketed did not say that his appeal was dismissed, (6) he timely filed his second notice of appeal, and (7) he perfected this appeal in accordance with this Court's scheduling order. Guardian opposed Mr. Ransom's motion, arguing that even if we granted an extension of time to perfect his appeal (which would be limited to two months under Rule 5 ), it would be futile as it would only allow him until April 8, 2022, to perfect, and he would still be untimely.
Our clerk's office, and ultimately this Court, contributed to the procedural problems Guardian identifies. Instead of refusing to docket Mr. Ransom's appeal in November 2021, the better practice would have been to accept the appeal and allow Mr. Ransom to file a Rule 60(a) motion with the circuit court to correct his name while the appeal was pending, which is clearly allowed by Rule 60(a). We also contributed to this confusion by issuing a scheduling order that stated Mr. Ransom had until May 11, 2022, to file his brief, which caused him to not perfect the appeal timely. So, in the interest of justice, we invoke Rule 2 of the West Virginia Rules of Appellate Procedure, suspend the requirements for perfecting an appeal under Rule 5 for good cause shown, and address the merits of this appeal.
Whether the circuit court properly granted summary judgment is a question of law that we review for correctness, granting no deference to its legal conclusions. This Court has held that "[a] circuit court's entry of summary judgment is reviewed de novo. " We "draw any permissible inference from the underlying facts in the light most favorable to" Mr. Ransom, as he is the party opposing Guardian's motion for summary judgment.
Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
Id. at 192, 451 S.E.2d at 758.
III. ANALYSIS
The West Virginia Constitution provides that "[a] person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use." The Second Amendment to the United States Constitution also protects "the right of the people to keep and bear Arms[.]" In District of Columbia v. Heller , the United States Supreme Court held that the "central component" of this right is individual self-defense, a conclusion it reached after examining the text and history of the Second Amendment. Following Heller , many states enacted laws protecting gun owners’ rights on the private property of others. West Virginia became one of those states in 2018, when the Legislature enacted the Act. The Act was in effect at the time Guardian hired Mr. Ransom.
W. Va. Const. art. III, sec. 22.
554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
Id. at 599, 128 S.Ct. 2783.
See Malerie Leigh Bulot, "Bring Your Gun to Work" and You're Fired: Terminated Employees’ Potential Rights for Violations of Parking Lot Laws , 78 La. L. Rev. 989, 995 (2018) (discussing the general provisions of several states’ "Parking Lot" statutes purporting to protect gun owners’ rights on the private property of others).
Under the Act, an "owner, lessee, or other person charged with the care, custody, and control of real property" may not "prohibit any customer, employee, or invitee from possessing any legally owned firearm," when four conditions are met. The firearm must be: "(A) Lawfully possessed; (B) Out of view; (C) Locked inside or locked to a motor vehicle in a parking lot; and (D) When the customer, employee, or invitee is lawfully allowed to be present in that area." As long as customers, employees, or invitees comply with those requirements, the Act affords them "privacy rights" that the owner, lessee, or person charged with the care, custody, and control of the real property cannot violate by either inquiring about "the presence or absence of a firearm locked inside or locked to a motor vehicle in a parking lot; or ... [b]y conducting an actual search of a motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle[.]"
Id. at § 61-7-14(d)(1).
Id. at § 61-7-14(d)(2). This section of the Act also provides "[t]hat a search of a motor vehicle in a parking lot to ascertain the presence of a firearm within that motor vehicle may only be conducted by on-duty, law enforcement personnel, in accordance with statutory and constitutional protections." Id.
The West Virginia Attorney General is authorized to enforce the Act by seeking injunctive relief and civil penalties of up to $5,000 for each alleged violation, as well as attorney fees and costs. The Act also authorizes employees, customers, and invitees to file suit for an alleged violation and seek the same remedies available to the Attorney General.
Id. at § 61-7-14(f).
Id.
The Act also contains broad employment anti-discrimination provisions. In this case, Mr. Ransom sued Guardian for violating the anti-discrimination provision set forth in the Act, West Virginia Code § 61-7-14(d)(3), which provides, in relevant part, that: "No employer may condition employment upon ... (B) An agreement with an employee or a prospective employee prohibiting that natural person from keeping a legal firearm locked inside or locked to a motor vehicle in a parking lot when the firearm is kept for lawful purposes." Guardian's defense pertains to the general provision making it unlawful to prohibit employees from possessing firearms in locked vehicles which are "out of view," § 61-7-14(d)(1), referenced above. As a result, the parties devote much of their briefing debating whether Mr. Ransom's firearm was "out of view" within the meaning of § 61-7-14(d)(1), and whether that section conflicts with § 61-7-14(d)(3), dealing with conditions of employment. As we explain below, these subsections of the Act do not conflict but are directed at different protections of lawful gun owners’ rights; one deals with firearm possession on private property and the other deals with conditions of employment irrespective of actual possession.
Because his car had dark tinted windows and a black interior and the firearm was partially covered, Mr. Ransom submits that someone would have had to press his face against the car's window to see it. Guardian responds that Mr. Ransom's firearm was obviously not out of view because his coworker saw it and reported it to members of management, and they saw it too.
The parties agree on one point: the issue of whether a violation of the Act constitutes a violation of substantial public policy sufficient to support a Harless claim is not before this Court because the circuit court did not address it.
Mr. Ransom argues that if West Virginia Code § 61-7-14(d)(1) conflicts with § 61-7-14(d)(3), then subsection (d)(3) controls as it is the more specific provision dealing with employment. As a result of Guardian's admission that it fired him for violation of the workplace policy, Mr. Ransom argues that it unequivocally violated (d)(3). As to the operation of (d)(1) in this context, he contends that after someone reported seeing a firearm in his car, Guardian had the right to ask him to move the firearm out of view or take it to his home to become compliant with the statute. Because his actions brought him in compliance with (d)(1), Mr. Ransom contends that (d)(3) then prevented Guardian from firing him.
See Tillis v. Wright , 217 W. Va. 722, 728, 619 S.E.2d 235, 241 (2005) ("The general rule of statutory construction requires that a specific statute be given preference over a general statute relating to the same subject matter where the two cannot be reconciled.") (quoting Syl. Pt. 1, UMWA ex rel. Trumka v. Kingdon , 174 W. Va. 330, 325 S.E.2d 120 (1984) ).
Guardian responds that West Virginia Code § 61-7-14(d)(1) stands for the proposition that an employee's firearm must be out of view in the car before he can enter his employer's parking lot and maintain possession of the firearm on company property. When the firearm is in plain view or otherwise in violation of (d)(1), Guardian posits that an employer has the right to take disciplinary action, including terminating employment irrespective of the language of (d)(3). Guardian maintains that Mr. Ransom misinterprets § 61-7-14(d)(3), as it speaks to an "agreement" with an employee, and no such "agreement" has been alleged or exists because he was an at-will employee. Guardian now argues, for the first time—irrespective of its admission that he was fired for failure to comply with the workplace policy—that it did not condition Mr. Ransom's employment on any agreement that he would refrain from keeping his firearm locked inside or locked to his car while on its parking lot.
In support of its argument that Mr. Ransom was fired because the firearm was not out of view, Guardian relies on his deposition testimony where Mr. Ransom said, "I was told by the administrator if I would have parked anywhere else, it would have not been any problem. But because I had parked in that smoking area, people commonly would, you know, maybe lean against your car or things like that ... [and] they may have seen it." Mr. Ransom counters that no one from Guardian said anything about the firearm being in open view, and that Guardian relies on inadmissible hearsay. See Aluise v. Nationwide Mut. Fire Ins. Co. , 218 W. Va. 498, 504, 625 S.E.2d 260, 266 (2005) (stating hearsay evidence is not admissible for summary judgment purposes, unless it falls within one of the exceptions specified in the West Virginia Rules of Evidence).
Because a civil action for a violation of the rights protected under the Act is created entirely by statute, our analysis is guided by the rules of statutory construction. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." And when the language of a statute is clear, courts must apply the relevant law according to its "unvarnished meaning, without any judicial embroidery." In other words, the plain meaning of the statute is to be applied without interpretation by the Court: "Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation."
Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r , 159 W. Va. 108, 219 S.E.2d 361 (1975).
Syl. Pt. 3, in part, West Virginia Health Care Cost Review Auth. v. Boone Mem'l Hosp. , 196 W. Va. 326, 472 S.E.2d 411 (1996).
Syl. Pt. 2, Crockett v. Andrews , 153 W. Va. 714, 172 S.E.2d 384 (1970).
The language of the statute at issue here is plain, so we apply it as written and hold that under The Business Liability Protection Act, West Virginia Code § 61-7-14(d)(3) (2018), no employer may condition employment on an agreement with an employee or a prospective employee prohibiting him from keeping a legal firearm locked inside or locked to a motor vehicle in a parking lot when the firearm is kept for lawful purposes.
There can be no genuine debate that Guardian's firearm policy—which prohibits employees from lawfully possessing a firearm on company property even when they comply with the conditions of § 61-7-14(d)(1) —is inconsistent with the possessory rights afforded to lawful gun owners under the Act. But the facts developed so far leave questions of material fact regarding whether Guardian violated the provision of the Act that Mr. Ransom relies on, § 61-7-14(d)(3) —in other words, whether Mr. Ransom's initial hire with Guardian, or continued employment there following the incident in question, was conditioned on him agreeing to comply with its firearm policy—or whether Guardian was attempting to vindicate what it believed was its right to administer employment-related penalties for Mr. Ransom's alleged violation of (d)(1).
As explained above, the Legislature enacted the Act with a general purpose and intent to protect gun owners’ possessory rights on the private property of others as well as their conditions of employment. Each part of the Act should be considered in connection with every other part and applied in a sense which harmonizes with the general purpose of the legislation. For this reason, the circuit court erred in concluding that West Virginia Code §§ 61-7-14(d)(1) and 61-7-14(d)(3) conflict with one another when (d)(1) deals with actual firearm possession on private property and (d)(3) deals with conditions of employment irrespective of actual possession. As explained above, an employer violates § 61-7-14(d)(3) by simply conditioning an employee's or prospective employee's employment on an agreement prohibiting him "from keeping a legal firearm locked inside or locked to a motor vehicle in a parking lot when the firearm is kept for lawful purposes." Because material questions of fact remain on this issue, we reverse the order granting summary judgment in Guardian's favor and remand this case for further proceedings.
See e.g. , State ex rel. Holbert v. Robinson , 134 W. Va. 524, 531, 59 S.E.2d 884, 889 (1950) ("A statute is enacted as a whole with a general purpose and intent, and each part should be considered in connection with every other part to produce a harmonious whole and words and clauses must be read in a sense which harmonizes with the subject matter and the general purpose of the statute.").
Id.
IV. CONCLUSION
For the reasons set out above, we reverse the January 10, 2022, order of the Circuit Court of Marion County and remand this case for further proceedings.
Reversed and Remanded.
JUSTICE WOOTON dissents and may write separately.
Wooton, Justice, dissenting:
I respectfully dissent from the majority's opinion, which gives the petitioner, Loyd Franklin Ransom, Jr., an opportunity to completely reboot his lawsuit on remand by litigating a different cause of action from the one that was articulated in his complaint, made a basis for his motion for partial summary judgment, or supported by even a scintilla of evidence in the proceedings below.
As the majority notes, the only cause of action upon which the circuit court ruled, and thus the only cause of action before this Court, was the petitioner's claim that in terminating his employment, the respondents violated the prohibition set forth in West Virginia Code § 61-7-14(d)(3)(B) (2020), which provides that "[n]o employer may condition employment upon ... (B) [a]n agreement with an employee or a prospective employee prohibiting that natural person from keeping a legal firearm locked inside or locked to a motor vehicle in a parking lot when the firearm is kept for lawful purposes."
I begin by noting that in its haste to save the day for the petitioner, the majority relegated to a footnote its discussion of the cross-assignment of error made by the respondents, Guardian Rehabilitation Services, Inc. and Guardian Eder Care at Fairmont, LLC, that the petitioner's appeal was not timely perfected. In my view, this cross-assignment of error presented a substantial question of law that merited far more attention than it was given, inasmuch as the indisputable fact is that the appeal was not timely perfected; the judgment order from which the petitioner appealed was entered on October 8, 2021, and the appeal was not perfected until May 9, 2022, seven months later – thirty days past the farthest possible time limit permitted by statute and under this Court's rules. West Virginia Rule of Appellate Procedure 5(f) provides:
An appeal must be perfected within four months of the date the judgment being appealed was entered in the office of the circuit clerk; provided, however, that the circuit court ... or the Supreme Court may, for good cause shown, by order entered of record, extend such period, not to exceed a total extension of two months , if a complete notice of appeal was timely and properly filed by the party seeking the appeal.
(Emphasis added); accord W. Va. Code § 58-5-4 (2020) ("No petition shall be presented for an appeal from any judgment rendered more than four months before such petition is filed with the clerk of the court where the judgment being appealed was entered: Provided, That the judge of the circuit court may, prior to the expiration of such period of four months, by order entered of record extend and reextend such period for such additional period or periods, not to exceed a total extension of two months, for good cause shown, if the request for preparation of the transcript was made by the party seeking such appellate review within thirty days of the entry of such judgment, decree or order."). And although the petitioner points to the fact that he filed a new notice of appeal after the circuit court's grant of a Rule 60(a) motion on January 10, 2022, it seems clear that the filing of this motion did not toll the running of the appeal time inasmuch as it is well established that the filing of a Rule 60(b) motion does not toll those time limits. See Rose v. Thomas Mem'l Hosp. Found., Inc. , 208 W. Va. 406, 411, 541 S.E.2d 1, 6 (2000).
West Virginia Rule of Civil Procedure 60(a) provides a mechanism by which a clerical mistake in an order may be corrected by the circuit court. A clerical error is one "which is of no import to the matters to be dealt with on review." FTC v. Minneapolis-Honeywell Regulator Co. , 344 U.S. 206, 213, 73 S.Ct. 245, 97 L.Ed. 245 (1952).
West Virginia Rule of Civil Procedure 60(b) provides a mechanism by which a party may be relieved from a final order for reasons of mistake, inadvertence, excusable neglect, unavoidable cause, newly discovered evidence, fraud, or "any other reason justifying relief from the operation of the judgment."
Critically, we have held that a petitioner's failure to timely perfect his appeal "deprives the Court of jurisdiction to hear an appeal." State v. Gamble , No. 18-0654, 2020 WL 5798229, at *2 (W. Va. Sept. 29, 2020) (memorandum decision) (citing In re E.P. , No. 13-0782, 2014 WL 1302458, at *3 (W. Va. Mar. 31, 2014) (memorandum decision) and Boardwine v. Kanawha Charleston Humane Ass'n , No. 13-0067, 2013 WL 5989159, at *2, n.2 (W. Va. Nov. 12, 2013) (memorandum decision)). Therefore, the majority's decision to hear and decide this case on the merits, despite the petitioner's failure to timely perfect his appeal, must be read in one of two ways: that a party's failure to timely perfect his or her appeal is not jurisdictional, thus sub silentio overruling Gamble ; or that Rule 2 of the West Virginia Rules of Appellate Procedure can cure even a jurisdictional defect.
Rule 2 provides that
[i]n the interest of expediting decision, or for other good cause shown, the Supreme Court may suspend the requirements or provisions of any of these Rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction. These Rules shall be construed to allow the Supreme Court to do substantial justice.
I strongly believe that wherever possible, litigants should have the right to full appellate review of their cases, and that the "substantial justice" provision of Rule 2 should be liberally applied to achieve that end. However, questions of jurisdiction are so fundamental – going to the very heart of our ability to hear a case – that they should not be buried in footnotes. If we are going to overrule our precedents or expand the ambit of our jurisdiction to cases where we arguably have none, then we should do so by giving the issue in-depth consideration and then crafting a syllabus point for the guidance of the Bar.
In its consideration of the merits of the appeal, the majority begins to reinvent history in this case by making two critical findings of fact. The first is that "[the respondents’ representatives] told Mr. Ransom that he was fired for violating a company policy that prohibited the possession of firearms on company premises." But the respondents specifically denied this, stating that "[petitioner] was told he was fired for having a visible firearm in his car." (Emphasis added). This is a distinction with a difference, see text infra , and the majority's factfinding – it accepts the petitioner's account of the facts while ignoring the respondents’ differing account – is in clear violation of an essential principle of appellate review: "An appellate court may not ... weigh evidence as that is the exclusive function and task of the trier of fact." State v. Guthrie , 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (citation omitted). The eminent scholar Justice Franklin D. Cleckley explained in Brown v. Gobble , 196 W. Va. 559, 474 S.E.2d 489 (1996), that
[w]ere we given the task, we would not hesitate to find that the record before this Court demonstrates overwhelmingly that adverse possession has been proven by clear and convincing evidence. However, our decisions have made plain that an appellate court is not the appropriate forum for a resolution of the persuasive quality of evidence.
Id. at 565, 474 S.E.2d at 495 (emphasis added).
The majority's second finding of fact, which comes immediately after the first and purports to explain the alleged company "policy," is that "Guardian's employee handbook provided that employees ‘may not bring any of the following onto the business property: Firearms or weapons of any kind.’ " However, neither the handbook nor even the page or pages containing the language quoted by the majority was ever made a part of the evidentiary record in this case. Rather, the language quoted by the majority appears only in the petitioner's memorandum of law in support of his motion for summary judgment; the handbook purporting to contain the language was not appended as an exhibit. The only other mention of a handbook in the record of this case was contained in the petitioner's affidavit, in which he says that "I was fired solely because I had a firearm in my locked car, and the [respondents’] handbook completely prohibited the possession of the firearm on company property[,]" and that "[t]he Guardian companies gave me an Employee Handbook entitled ‘Personnel Policies Handbook 2017’, dated April 1, 2017, issued by Guardian Rehabilitation (the parent company of Gurdian [sic] Elder Care." Again, the handbook was not appended to the affidavit, and the petitioner gave no indication as to when he received it – at the time he was hired, at the time he was terminated, at some point in between, or at some other time – let alone as to whether his employment was conditioned upon his agreement to refrain from keeping a legal firearm locked inside or locked to a motor vehicle in a parking lot when the firearm is kept for lawful purposes. Id. § 61-7-14(d)(3)(B). In short, all that was established by the petitioner's evidence was that the respondents had a handbook, and that at the time of his termination their representatives told him that it completely prohibited the possession of a firearm on company property. None of this has any relevance to the key issue as framed by the majority: whether the petitioner's employment was conditioned on his agreement to the alleged prohibition contained in the handbook. Cf. Williams v. Precision Coil, Inc. , 194 W. Va. 52, 66, 459 S.E.2d 329, 343 (1995) ("the plaintiff failed to put into dispute an essential element of his cause of action, i.e., that he knew of the handbook and accepted its terms by continuing in the defendant's employ.").
That the statements of counsel are not evidence needs no citation of authority. Every jury in every case in this State is so instructed.
The respondents make a strong argument – again, one which is simply ignored by the majority – that this was a "sham" affidavit that failed to meet the test set forth in Kiser v. Caudill , 215 W. Va. 403, 599 S.E.2d 826 (2004) :
(1) Whether the deposition afforded the opportunity for direct and cross-examination of the witness; (2) whether the witness had access to pertinent evidence or information prior to or at the time of his or her deposition, or whether the affidavit was based upon newly discovered evidence not known or available at the time of the deposition; and (3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain.
215 W. Va. at 405, 599 S.E.2d at 828, Syl. Pt. 4, in part; see also Tolley v. Carboline Co. , 217 W. Va. 158, 617 S.E.2d 508 (2005) (to similar effect). I agree with the respondents that the petitioner's last-second affidavit fails to meet this test, although I share the view of the concurring justice in Tolley that characterizing an affidavit as "sham" is a factual credibility determination that cannot properly be made by an appellate court. See Tolley , 217 W. Va. at 167, 617 S.E.2d at 517 (Starcher, J., concurring) ("Any time a judge decides that a piece of evidence is a ‘sham,’ the judge is making a factual credibility determination.").
Having thus set the stage for the petitioner's reboot of his case by making these findings of fact, the majority barely acknowledges the basis of the circuit court's judgment: that this case is controlled by West Virginia Code § 61-7-14(d)(1)(b), which provides that
(d) Prohibited acts. – Notwithstanding the provisions of subsections (b) and (c) of this section:
(1) No owner, lessee, or other person charged with the care, custody, and control of real property may prohibit any customer, employee , or invitee from possessing any legally owned firearm, when the firearm is:
(A) Lawfully possessed;
(B) Out of view;
(C) Locked inside or locked to a motor vehicle in a parking lot; and
(D) When the customer, employee , or invitee is lawfully allowed to be present in that area.
(Emphasis added). In this regard, the respondents’ defense, reduced to its essence, was that the petitioner's firearm, which he brought to the workplace in his vehicle and attempted to cover with a jacket and a "soft-type laptop cover," was nonetheless visible to others, see id. § 61-7-14(d)(1)(B); therefore, the respondents claim, they were entitled to impose whatever discipline they deemed appropriate, up to and including termination. The petitioner's argument, as articulated by his counsel, was that the "controlling issue is [that section 61-7-14(d)(3)(B) ] in the Business Liability Protection act says that we don't have to have the weapon out of view if it's an employment relationship and the issue is whether the employer can fire the employee." The circuit court held "[f]or an employee who has a firearm in his vehicle in an employer provided parking lot to receive the protection of the [Business Liability Protection Act], the firearm in question must be ‘out of view[,]’ " as provided in West Virginia Code section 61-7-14(d)(1)(B).
In opposition to the respondents’ defense, and its motion for summary judgment, the petitioner's primary argument was that whether or not a firearm is "out of view" depends on how far away the viewer is from it. In support of this argument, the petitioner stated in his deposition testimony that "[an observer] should not have been able to see [my rifle] unless they had their face up against the window and were looking in[,]" which the circuit court characterized, and rejected, as an "argument that there's a continuum what would be claimed something that's concealed when something's in view[.]" I agree with the circuit court, as nothing in the language of the statute indicates that the Legislature intended the words "out of view" to have anything other than their everyday, accepted meaning: if something is "out of view," it cannot be seen with the naked eye from any distance or vantage point. In this regard, it is well established in our law that
" ‘[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.’ Thus, where the language is plain, we do not interpret the statute, but rather apply the statute as written. ‘A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.’ "
Napier v. Bd. of Educ. of Cnty. of Mingo , 214 W. Va. 548, 552-53, 591 S.E.2d 106, 110-11 (2003) (citations omitted); see also Randy Waugh/Waugh's Mobile Home Park v. Morgan Cnty. Emergency Med. Servs. Bd., Inc. , 236 W. Va. 468, 474, 781 S.E.2d 379, 385 (2015) ("[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.") (citation omitted).
In its opinion the majority does not explain why this conclusion is wrong – or indeed, if it is – simply bypassing the issue with the sweeping pronouncement that "these subsections of the Act [ §§ 61-7-14(d)(1) and 61-7-(d)(3)(B)] do not conflict but are directed at different protections of lawful gun owners’ rights." The majority then goes on to find that the language of the latter provision, being clear, will be applied as written, without explaining why the language of the former, being equally clear, will be ignored. Although the majority's analysis is somewhat discursive – perhaps intentionally – the real holding of this case seems to be that although an employee may be prohibited from having a visible firearm in his or her vehicle pursuant to section 61-7-14(d)(1)(B), the employer is powerless per operation of section 61-7-14(d)(3)(B) to do anything when the employee flouts the prohibition.
The majority's attempt to obfuscate this holding, by finding that there are questions of material fact as to whether the petitioner's "initial hire with Guardian, or continued employment there following the incident in question, was conditioned on him agreeing to comply with its firearm policy[,]" is wholly unconvincing for two reasons. First, although the petitioner has consistently relied on § 61-7-14(d)(3)(B), he has never contended that his employment was conditioned on his agreement to comply with any company policy concerning firearms. Rather, both in his complaint and in his motion for partial summary judgment, his argument has been simply that the statute "protects an employee from discharge, where an employee has locked in his vehicle at work his lawfully owned firearms, regardless of whether the firearm is concealed inside the vehicle. " (Emphasis in original). Second, there is not one scintilla of evidence in the record as to exactly what the company's policy was (on that point we have nothing more than the representation of counsel and a fleeting reference by the petitioner in his affidavit, see text supra ); whether any such policy was made known to the petitioner at the time of his hiring or at any time during the course of his employment; or whether the petitioner's employment was conditioned on his agreement to abide by the policy. In short, the petitioner failed to raise any issue of disputed material fact on this issue and should not now be given the opportunity to go back to the circuit court in order to discover (or create) some evidence to support a whole new theory of his case.
I do not intend to suggest that the petitioner would fabricate evidence. Rather, should this case come before us again I anticipate another iteration of the "sham affidavit" argument that the majority studiously ignores in this appeal. See supra note 6.
To the extent that the majority is relying on what it continually refers to as the respondents’ "admission" in its Answer to the Complaint, that "[the petitioner] was terminated for violation of a workplace policy prohibiting firearms on the property," I reject any contention that this was sufficient, standing alone, to create a disputed issue of material fact as to whether the petitioner's employment was conditioned on his agreement to that policy. Since the petitioner made no argument and put on no evidence as to this point, the respondents didn't either; the so-called "admission" referred to above is the sum total of the evidence. In this regard, this Court has held that
" ‘[u]nsupported speculation is not sufficient to defeat a summary judgment motion.’ Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). If the evidence favoring the nonmoving party is ‘merely colorable ... or is not significantly probative, ... summary judgment may be granted. ’ Anderson [v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)], 477 U.S. at 249–50, 106 S.Ct. at 2511, 91 L.Ed.2d at 212. (Citations omitted)."
Williams, 194 W. Va. at 61, 459 S.E.2d at 338 (emphasis added). Here, it is a stretch to call the respondents’ admission even "colorable," and it is certainly not "significantly probative" on the question of whether or not the petitioner even knew of the company's policy, let alone whether his employment was conditioned on his agreement to it.
In the Business Liability Protection Act, W. Va. Code § 61-7-14, the Legislature attempted to establish a workable balance between the rights of lawful gun owners, on the one hand, and business owners, lessees and employers, on the other. Somewhat lost in the shuffle was the right of customers, employees and invitees to shop, work, and visit in a safe environment, one that is free from the threat of deadly violence that may erupt when firearms are readily accessible on the premises. Completely lost in the shuffle was the right of private business owners to determine how best to maintain that safe environment, no matter what steps might be dictated by history or circumstance.
It can certainly be debated whether or not the statutory requirement that an employee's firearm be not only locked in his or her vehicle but also out of view, see id. § 61-7-14(d)(1)(B), has any meaningful relationship to safety interests. What cannot be debated is that the majority's opinion in this case makes the question moot in the context of employer-employee relationships; an employer can establish a rule consistent with the statute, but the employee doesn't have to follow it, which is absurd. See Napier , 214 W. Va. at 553, 591 S.E.2d at 111 (" ‘[i]t is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.’ Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925)."). I do not believe this is what the Legislature intended, and it is my hope that in a future session that body will examine and resolve the clear tension – a tension which is apparent regardless of the majority's refusal to see it – between the two statutory provisions at issue here, West Virginia Code sections 61-7-14(d)(1)(B) and 61-7-14(d)(3)(B).
Let there be no mistake: I am a firm supporter of "the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use." W. Va. Const. art. III, § 22 ; see also U. S. Const. amend II. But I am also a firm supporter of the right of business owners to make responsible decisions as to how best to ensure a safe environment for their customers, employees, and invitees, without unwarranted governmental interference and/or oversight. In its opinion the majority has put a heavy thumb on the delicate statutory scale established by the Legislature; and further, the majority has disregarded the permissible scope of appellate review by allowing the petitioner to "save" his case by arguing and proving (if he can) a brand-new cause of action on remand. Other disappointed litigants may only hope for such unwarranted grace from this Court.
For the reasons set forth herein, I respectfully, and regretfully, dissent.