Monday, June 13, 2005

Feliciano v. 7-Eleven, Inc. - still getting attention

A post here at the SW Virginia Law Blog led me to this post at the Volokh Conspiracy and this one at the Professor Bainbridge blog discussing Feliciano v. 7-Eleven, Inc. This is a case in which I appeared as counsel for the defendant, 7-Eleven, so I will warn you, my opinions on this case are not unbiased (are they ever?).

The West Virginia Supreme Court of Appeals held in Feliciano that "[w]hen 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."

Feliciano interfered with an armed robbery while he was working as a cashier at a 7-Eleven store. He grabbed the gun while it was pointed at another cashier, wrestled the woman robber to the ground, beat her up pretty good, and held her until the police came to arrest her. Because 7-Eleven had (and still has) a policy prohibiting interference with armed robberies, they investigated the incident and fired Feliciano. Feliciano sued, alleging 7-Eleven violated his common law right to self-defense by firing him.

The U.S. District Judge who was hearing the case certified the question to the West Virginia Supreme Court of Appeals of whether Feliciano had a cause of action. The State Supreme Court, of course, found that he did, and created yet another exception to West Virginia's employment at will doctrine. The case was later tried to a jury, which found in favor of 7-Eleven. The case was never appealed.

The Feliciano case is a bad decision for many reasons. Perhaps the biggest problem with the case is that it forces employers to apply a very difficult set of factors to determine if an employee was indeed exercising his right to self-defense. Depending on how broadly Feliciano is interpreted, one might even argue (as Justice Maynard did in his dissent) that zero tolerance fighting policies are no longer enforceable in this state. (What employee who gets into a fight at work will not claim he acted in self-defense?) Forcing courts to grapple with the intricate factual nuances inherent in self-defense cases in order to decide whether the right even exists in a given case imposes an great burden upon the employers and the courts. Private employers should maintain the right to prohibit and punish intentionally violent and risky behavior in their workplaces, even under the circumstances allegedly present in Feliciano.

Also, the Court's contention (see footnote 10) that other cases in the U.S. support the holding in Feliciano is highly questionable. I am not the only one who thinks so. See "Bad Facts, Bad Law: Feliciano v. 7-Eleven, Inc. and Self-Defense as a Substantial Public Policy," 106 W. Va. L. Rev. 781 (2004) for a review of the cases the court contends "support" its holding. West Virginia is the cheese standing alone in finding the right of self-defense to be a "substantial public policy" exception to the employment at will doctrine. I also agree with Professor Bainbridge's assessment that the public policy exception is steadily swallowing the "rule" of employment at will in places like West Virginia. It is especially exasperating for employers where the new law created by the courts is as muddled as the doctrine of self-defense. Employers need bright line rules.

I'm not sure how interest in this case was reignited, but I couldn't resist weighing in on the discussion. I just Shepardized the case and found that no court outside of West Virginia has cited it in a published opinion since it was decided three years ago. One can only hope that it will be limited to its facts. Feliciano was a case that should never have gone to a jury. But luckily, the jury appreciated that 7-Eleven's policy was designed to save lives, and people like Feliciano were the ones putting lives in jeopardy. The real public policy interests lie in keeping workplaces safe from violence, not in supporting some renegade employees' right to make himself into a hero.


Don Buck said...

I guess it would be OK with 7-Eleven, if Feliciano and the other person in the store were shot and killed by the person commiting a crime armed with a gun???

It might not be OK for the families of the people that were shot as long as 7-Eleven had no involvement.

Feliciano is a here by saving three lives of which one happened to be the robber an also causing that person to be arrested and put somewhere where they can do this again for a while.

TS said...

Nice Blog!!!   I thought I'd tell you about a site that will let give you places where
you can make extra cash! I made over $800 last month. Not bad for not doing much. Just put in your
zip code and up will pop up a list of places that are available. I live in a small area and found quite

TS said...

Nice Blog!!!   I thought I'd tell you about a site that will let give you places where
you can make extra cash! I made over $800 last month. Not bad for not doing much. Just put in your
zip code and up will pop up a list of places that are available. I live in a small area and found quite

Bob hairstyles said...

black mold exposureblack mold symptoms of exposurewrought iron garden gatesiron garden gates find them herefine thin hair hairstylessearch hair styles for fine thin hairnight vision binocularsbuy night vision binocularslipitor reactionslipitor allergic reactionsluxury beach resort in the philippines

afordable beach resorts in the philippineshomeopathy for big with great mineral makeup bargainsmineral makeup wholesalersprodam iphone Apple prodam iphone prahacect iphone manualmanual for P 168 iphonefero 52 binocularsnight vision Fero 52 binocularsThe best night vision binoculars here

night vision binoculars bargainsfree photo albums computer programsfree software to make photo albumsfree tax formsprintable tax forms for free craftmatic air bedcraftmatic air bed adjustable info hereboyd air bedboyd night air bed lowest pricefind air beds in wisconsinbest air beds in wisconsincloud air beds

best cloud inflatable air bedssealy air beds portableportables air bedsrv luggage racksaluminum made rv luggage racksair bed raisedbest form raised air bedsbed air informercialsbest informercials bed airmattress sized air beds

bestair bed mattress antique doorknobsantique doorknob identification tipsdvd player troubleshootingtroubleshooting with the dvd playerflat panel television lcd vs plasmaflat panel lcd television versus plasma pic the bestadjustable bed air foam The best bed air foam

hoof prints antique equestrian printsantique hoof prints equestrian printsBuy air bedadjustablebuy the best adjustable air bedsair beds canadian storesCanadian stores for air beds

migraine causemigraine treatments floridaflorida headache clinicdrying dessicantair drying dessicantdessicant air dryerpediatric asthmaasthma specialistasthma children specialistcarpet cleaning dallas txcarpet cleaners dallascarpet cleaning dallas

vero beach vacationvero beach vacationsbeach vacation homes veroms beach vacationsms beach vacationms beach condosmaui beach vacationmaui beach vacationsmaui beach clubbeach vacationsyour beach vacationscheap beach vacations

bob hairstylebob haircutsbob layeredpob hairstylebobbedclassic bobCare for Curly HairTips for Curly Haircurly hair12r 22.5 best pricetires truck bustires 12r 22.5

washington new housenew house houstonnew house san antonionew house venturanew houston house houston house txstains removal dyestains removal clothesstains removalteeth whiteningteeth whiteningbright teeth

jennifer grey nosejennifer nose jobscalebrities nose jobsWomen with Big NosesWomen hairstylesBig Nose Women, hairstyles