CHARLESTON – Reggie Lee Philyaw's job wrecked his mental health but his employer didn't wreck his mental health, the West Virginia Supreme Court of Appeals has decided.

Philyaw blamed Eastern Associated Coal for his nervous breakdown, but three of five Justices cleared the employer of wrongdoing.

Chief Justice Robin Davis and Justices Brent Benjamin and Spike Maynard affirmed Raleigh County Circuit Judge Robert Burnside Jr., who last year granted summary judgment in favor of Eastern Associated Coal.

According to Philyaw, his general manager required him to manipulate dust samples unlawfully to keep his job as safety supervisor at the Harris No. 1 mine.

Philyaw did not claim that the general manager specifically ordered him to do it. He said the general manager implied the requirement by telling him he would lose his job if he let the mine go out of compliance with safety laws.

The majority supported Burnside's finding that Philyaw did not point to any overt conduct by his employer.

Burnside wrote, "The admonition of which Plaintiff complains is precisely that: if you do not accomplish the assigned goal you will be fired. That command is strict, demanding and perhaps unreasonable, but it is a legitimate demand of an employer."

Dust samples had caused stress at the mine for many years.

In 1990 federal safety inspectors subpoenaed Philyaw to testify before a grand jury in an investigation of Eastern Associated Coal's dust sampling practices.

A company attorney sent Philyaw a letter stating that a conflict of interest would exist if he had violated laws or company rules.

In that event, the letter stated, he would have to retain separate legal counsel.

Philyaw would testify in 2005 that he interpreted this to mean that Eastern Associated Coal would cut off all support unless he made false statements to the grand jury.

The investigation ended after Eastern Association Coal pleaded guilty to a misdemeanor violation of safety laws.

In 1998, according to Philyaw, the general manager told him he would lose his job if dust samples showed safety violations.

Philyaw thought this communication constituted an instruction to manipulate the testing environment, according to his testimony in a deposition in 2005.

In the deposition he said he could manipulate results by slowing production in sampling periods or by sampling at locations that were not typical of the mine.

Philyaw suffered a nervous breakdown in 2002 and left his job. The Social Security Administration granted him permanent total disability benefits.

In 2004 he sued Eastern Associated Coal. His attorney, former Justice Richard Neely of Charleston, alleged intentional or reckless infliction of emotional distress.

Eastern Associated Coal moved for summary judgment.

At a hearing Neely told Burnside that Philyaw "was told explicitly, implicitly, in all kinds of different ways, to make sure the mine did not go out of compliance."

Burnside said, "But he took that also to be – to mean – make sure it does not go out of compliance by legal or illegal means."

Neely said, "No, the evidence will show that he always knew it meant by illegal means."

Burnside said, "He took it to mean a command to act illegally?"

Neely said, "It is not any different from, 'March the prisoners to the rear and be back in five minutes.'"

Burnside said, "It did not mean, 'Make sure things work well so that we don't have a mine out of compliance?"

Neely said, "No, never."

Burnside granted summary judgment March 25, 2005.

On appeal Neely represented Philyaw. Ancil Ramey and Jeffrey Phillips of Charleston represented Eastern Associated Coal.

The majority wrote, "Philyaw's subjective belief that he had to manipulate the dust samples was not based upon any communication or direction from Eastern."

They wrote that a plaintiff claiming infliction of distress must first prove that the defendant's conduct was atrocious, intolerable and so extreme and outrageous as to exceed the bounds of decency.

They wrote that Eastern Associated Coal's demand was legitimate and keeping samples within safety limits was within the employer's permissible expectations.

In a footnote the majority wrote that they would not settle the question of whether Philyaw in fact manipulated dust samples.

Chief Justice Davis reserved the right to file a concurring opinion.

Justices Joseph Albright and Larry Starcher dissented and reserved the right file dissenting opinions.

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