Christine Blanda v. Martin & Seibert, LC ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term
_______________ FILED
November 22, 2019
No. 19-0317 released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
CHRISTINE BLANDA,
Petitioner
v.
MARTIN & SEIBERT, L.C.,
WALTER M. JONES III, GEOFFREY A. HADDAD, MICHAEL M. STEVENS,
E. KAY FULLER, SUSAN R. SNOWDEN, AND NIKKI MOORE GRESS,
Respondents
____________________________________________________________
Certified Question from the United States District Court
for the Southern District of West Virginia, Charleston Division
The Honorable John T. Copenhaver, Judge
Civil Action No. 2:16-cv-957
CERTIFIED QUESTION ANSWERED
____________________________________________________________
Submitted: October 16, 2019
Filed: November 22, 2019
Richard Neely, Esq. Richard M. Wallace, Esq.
NEELY & CALLAGHAN Daniel J. Burns, Esq.
Charleston, West Virginia Charleston, West Virginia
Counsel for the Petitioner Counsel for the Respondents
CHIEF JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision
of this case.
JUDGE WHARTON, sitting by temporary assignment.
JUSTICE HUTCHISON, deeming himself disqualified, did not participate in the decision
of this case.
JUDGE EWING, sitting by temporary assignment.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
ii
SYLLABUS BY THE COURT
1. “A de novo standard is applied by this Court in addressing the legal
issues presented by a certified question from a federal district or appellate court.” Syllabus
Point 1, Light v. Allstate Ins. Co., 203 W. Va. 27, 506 S.E.2d 64 (1998).
2. “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.” Syllabus,
Harless v. First Nat’l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).
3. “To identify the sources of public policy for purposes of determining
whether a retaliatory discharge has occurred, we look to established precepts in our
constitution, legislative enactments, legislatively approved regulations, and judicial
opinions.” Syllabus Point 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371,
424 S.E.2d 606 (1992).
4. “Inherent in the term ‘substantial public policy’ is the concept that the
policy will provide specific guidance to a reasonable person.” Syllabus Point 3, Birthisel
v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).
i
5. West Virginia Code § 61-3-24 (2014) does not constitute a substantial
public policy under Harless v. First National Bank, 162 W. Va. 116, 246 S.E.2d 270(1978), and its progeny, to protect an employee of a non-public employer who reported
suspected criminal conduct to the appropriate authority and claims to have been retaliated
against as a result.
ii
WALKER, Chief Justice:
Christina Blanda was an accounts receivable clerk employed by the law firm
of Martin & Seibert, L.C. She claims that she was fired in retaliation for voicing her
concerns about illegal billing practices by the firm. She first filed a whistleblower claim
under the Dodd-Frank Act1 in the United States District Court for the Southern District of
West Virginia, but her claim was rendered not viable by a recent decision of the Supreme
Court of the United States.2 Now, she contends that her only recourse is a common law
unlawful discharge claim under Harless v. First National Bank in Fairmont.3 She alleges
that West Virginia Code § 61-3-24 is a substantial public policy sufficient to support her
Harless claim and Respondents disagree. So, this case is before us on the following
certified question from the District Court:
Does West Virginia Code § 61-3-24 constitute a substantial
public policy of the State of West Virginia that would support
a cause of action for wrongful discharge in violation of public
policy pursuant to Harless v. First National Bank, 162 W.Va.
116 [246 S.E.2d 270] (1978), and its progeny?
We reformulate the certified question and answer it in the negative.
1
15 U.S.C. § 78u-6 (2012).
2
Digital Realty Trust, Inc. v. Somers, 138 S.Ct. 767, ___ U.S. ___ (2018).
3
162 W. Va. 116, 246 S.E.2d 270 (1978).
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Because the parties did not accompany the certified question with a statement
of facts,4 the District Court provided a brief statement of the case from pending motions
for summary judgment that contain “[t]he facts relevant to the question, showing fully the
nature of the controversy out of which the question arose.” 5 For purposes of considering
the single question of law before us, we rely on the facts as relayed by the District Court,
which we summarize here.
Ms. Blanda was an accounts receivable clerk employed by Martin & Seibert,
L.C. and was tasked with billing clients for the hours worked by the firm’s employees and
attorneys. Ms. Blanda alleges that she began noticing irregularities such as billing clients
for paralegal and secretary services at the attorney’s hourly rate. She decided in 2013 that
the firm was engaging in illegal billing practices. Ms. Blanda began persistently voicing
her concerns to others at the law firm, including the individual Respondents.6 The law firm
never took formal disciplinary action against Ms. Blanda for her complaints, and she did
not threaten to report its activities to an outside law enforcement agency or elsewhere. But,
4
Under West Virginia Code § 51-1A-6(b) (Repl. Vol. 2016), “[i]f the parties cannot
agree upon a statement of facts, then the certifying court shall determine the relevant facts
and shall state them as a part of its certification order.”
5
W. Va. Code § 51-1A-6(a)(2) (Repl. Vol. 2016).
6
For purposes of this opinion, we need only refer to Respondents Martin & Seibert,
L.C., Walter M. Jones, III, Geoffrey A. Haddad, Michael M. Stevens, E. Kay Fuller, Susan
R. Snowden, and Nikki Moore Gress collectively, rather than individually.
2
Ms. Blanda believed that actions taken by the law firm showed an intent to discharge her
in retaliation for voicing her concerns.
For example, in early 2014, Ms. Blanda was instructed to begin cross-
training with another employee. But Ms. Blanda claims that it amounted to her training
the other employee with no reciprocal training. Ms. Blanda also alleges that, later that
year, the firm’s policy encouraging employees to discuss concerns with their supervisor
was taken away from her when one of the Respondents told her that she could no longer
express her concerns about the law firm’s billing practices. On December 4, 2014, after
meeting with some of the Respondents, Ms. Blanda was issued a formal warning notice
pertaining to her job performance. Ms. Blanda asserts that the claims in the notice were
false.
And, on January 23, 2015, Ms. Blanda noticed that the law firm had posted
her job for hiring. Ms. Blanda immediately contacted one of the law firm’s attorneys, Lisa
Green, who had become aware of the billing irregularities. According to the facts presented
by the District Court, Ms. Green suspected that the law firm may be setting up Ms. Blanda
to take the blame for them. Ms. Green confirmed her suspicions and immediately contacted
attorney Michael Callaghan, former Assistant United States Attorney and chief of the
Criminal Division in the Southern District of West Virginia, for advice on reporting
Respondents’ conduct to the West Virginia State Bar and the Federal Bureau of
3
Investigations (FBI). According to Ms. Green, Mr. Callaghan contacted the FBI that day;
in turn, Ms. Green advised Ms. Blanda to contact Mr. Callaghan for advice.
After speaking with Mr. Callaghan, Ms. Blanda believed that she should
gather evidence to protect herself. On January 26, 2015, Ms. Blanda e-mailed 227
attachments to herself that consisted of raw billable hour data from the law firm’s
timekeeping files. The law firm’s monitoring system detected the e-mails and Ms. Blanda
was immediately fired for violating the firm’s employee handbook policy prohibiting the
disclosure of confidential information, including compensation data, and subjecting
violators to termination. After she was fired, Ms. Blanda also took paper files from the law
firm. Ultimately, the FBI “raided” the law firm based, in part, on information Ms. Blanda
provided to them after her discharge. It has since disbanded as a result. Ms. Blanda later
applied for unemployment benefits stating that she was discharged for emailing timesheets
to herself in violation of firm policy. She reiterated the same during her deposition.
Ms. Blanda then filed a whistleblower claim against Respondents under the
Dodd-Frank Act.7 But, because Ms. Blanda did not report the alleged violation to the
Securities and Exchange Commission, her claim became no longer viable following the
7
15 U.S.C. § 78u-6.
4
decision of the Supreme Court of the United States in Digital Realty Trust, Inc. v. Somers.8
So, Ms. Blanda contends that her only recourse is a common law retaliatory discharge
claim under Harless v. First National Bank in Fairmont,9 under which she alleges that she
was discharged in violation of the substantial public policy embodied in West Virginia
Code § 61-3-24 (obtaining money by false pretenses).10 Respondents counter that our
8
138 S.Ct. 767, __ U.S. __ (holding that for a person to qualify as a whistleblower
under Dodd-Frank, the person must have reported the violation to the Securities and
Exchange Commission).
9
162 W. Va. 116, 246 S.E.2d 270 (1978).
10
West Virginia Code § 61-3-24 (Repl. Vol. 2014) provides, in relevant part, as
follows:
(a) (1) If a person obtains from another by any false
pretense, token or representation, with intent to defraud, any
money, goods or other property which may be the subject of
larceny; or (2) If a person obtains on credit from another any
money, goods or other property which may be the subject of
larceny, by representing that there is money due him or her or
to become due him or her, and assigns the claim for such
money, in writing, to the person from whom he or she obtains
such money, goods or other property, and afterwards collects
the money due or to become due, without the consent of the
assignee, and with the intent to defraud; (3) Such person is
guilty of larceny. If the value of the money, goods or other
property is one thousand dollars or more, such person is guilty
of a felony, and, upon conviction thereof, shall be imprisoned
in the penitentiary not less than one year nor more than ten
years, or, in the discretion of the court, be confined in jail not
more than one year and be fined not more than two thousand
five hundred dollars. If the value of the money, goods or other
property is less than one thousand dollars, such person is guilty
of a misdemeanor, and, upon conviction thereof, shall be
confined in jail not more than one year or fined not more than
two thousand five hundred dollars, or both.
....
5
decision in Swears v. R.M. Roach & Sons, Inc.,11 has already considered this issue and
forecloses Ms. Blanda’s theory. The District Court found that a certified question was
appropriate in this circumstance, as it believes that an authoritative determination regarding
this question will aid employers, discharged employees, and courts in identifying situations
where Harless provides an alternative means of recourse when the Dodd-Frank Act’s
whistleblower protections are unavailable.
II. STANDARD OF REVIEW
We undertake plenary review of the legal question presented in this case. As
this Court has previously stated, “[a] de novo standard is applied by this Court in
addressing the legal issues presented by a certified question from a federal district or
appellate court.”12
(f) Prosecution for an offense under this section does not bar
or otherwise affect adversely any right or liability to damages,
forfeiture or other civil remedy arising from any or all
elements of the criminal offense.
(Emphasis added).
11
225 W. Va. 699, 696 S.E.2d 1 (2010).
12
Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W. Va. 27, 506 S.E.2d 64 (1998).
6
III. DISCUSSION
Under long-standing West Virginia law, employees are considered to be
employed at will, meaning that absent a contract or statute to the contrary, they serve at the
will and pleasure of their employer and can be discharged at any time, with or without
cause.13 The exception to this doctrine of employment at-will that we take up in answering
the certified question before us is referred to as the public policy exception, which this
Court first recognized in Harless v. First National Bank. In that case, the Court held
[t]he 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.[14]
So, “a cause of action for wrongful discharge exists when an aggrieved employee can
demonstrate that his/her employer acted contrary to a substantial public policy in
effectuating the termination.”15 As we have explained, “‘public policy’ is that principle of
law which holds that no person can lawfully do that which has a tendency to be injurious
13
Kanagy v. Fiesta Salons, Inc., 208 W. Va. 526, 529, 541 S.E.2d 616, 619 (2000);
Wright v. Standard Ultramarine & Color Co., 141 W. Va. 368, 382, 90 S.E.2d 459, 468
(1955).
14
Syl., Harless, 162 W. Va. 116, 246 S.E.2d 270.
15
Feliciano, 210 W.Va. at 745, 559 S.E.2d at 718.
7
to the public or against public good . . . even though no actual injury may have resulted
therefrom in a particular case to the public.”16
Determining what constitutes a substantial public policy for purposes of a
Harless claim is another matter. As we held in Birthisel v. Tri-Cities Health Servs. Corp.,17
“[t]o identify the sources of public policy for purposes of determining whether a retaliatory
discharge has occurred, we look to established precepts in our constitution, legislative
enactments, legislatively approved regulations, and judicial opinions.” In that case, we
clarified that our use of “substantial” to modify “public policy” in Harless was expressly
“designed to exclude claims based on insubstantial considerations.”18 Elaborating on this
concept, we stated:
The term “substantial public policy” implies that the policy
principle will be clearly recognized simply because it is
substantial. An employer should not be exposed to liability
where a public policy standard is too general to provide any
specific guidance or is so vague that it is subject to different
interpretations.[19]
16
Cordle v. General Hugh Mercer Corp., 174 W.Va. 321, 325, 325 S.E.2d 111, 114
(1984) (internal quotations and citations omitted).
17
Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d
606 (1992).
18
Id. at 377, 424 S.E.2d at 612.
19
Id. (Emphasis added).
8
We also held in syllabus point three of Birthisel that “[i]nherent in the term ‘substantial
public policy’ is the concept that the policy will provide specific guidance to a reasonable
person.”20 Later, in Feliciano v. 7–Eleven, Inc., we observed that “to be substantial, a
public policy must not just be recognizable as such but be so widely regarded as to be
evident to employers and employees alike.”21
In Birthisel, we considered whether nursing regulations and general language
contained in the social workers licensing statute met the threshold definition of substantial
public policy.22 In concluding that the plaintiff had failed to establish the existence of a
substantial public policy, we emphasized the need for specific guidance:
Neither of these provisions contain any specific guidance.
Their general admonitions as to the requirement of good care
for patients by social workers do not constitute the type of
substantial and clear public policy on which a retaliatory
discharge claim can be based. If such a general standard could
constitute a substantial public policy, it would enable a social
worker to make a challenge to any type of procedure that the
worker felt violated his or her sense of good service.[23]
In rejecting plaintiff’s contentions, we recognized that “[m]ost of our retaliatory discharge
cases involve violations of statutes that we deem to articulate a substantial public policy.”24
20
Id. at Syl. Pt. 3 (Emphasis added).
21
210 W.Va. 740, 745, 559 S.E.2d 713, 718 (2001).
22
Birthisel at 377–78, 424 S.E.2d at 612–13 (emphasis supplied).
23
Id.24
Id. at 376, 424 S.E.2d at 611 (citations omitted).
9
As we have warned, courts are to “proceed cautiously if called upon to
declare public policy absent some prior legislative or judicial expression on the subject.”25
In addition, “despite the broad power vested in the courts to determine public policy,”
courts are to “exercise restraint” when using such power.26 So, “[i]t is only when a given
policy is so obviously for or against the public health, safety, morals or welfare that there
is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice
of the community so declaring.”27
Ms. Blanda argues that “it should be obvious that stealing money by stealth,
armed force, or trick contravenes a substantial West Virginia public policy to the extent
that West Virginia continues to be a Judeo-Christian polity.” She also argues that West
Virginia Code § 61-3-24(f) provides that prosecution under that statute “does not bar or
otherwise affect adversely any right or liability to damages, forfeiture, or other civil remedy
arising from any or all elements of the criminal offense.” This provision, Ms. Blanda
contends, is a specific legislative mandate showing that the Legislature intended that there
25
Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 141, 506 S.E.2d 578,
584 (1998) (internal citations omitted).
26
Id., 203 W.Va. at 141, 506 S.E.2d at 584. See also Shell v. Metropolitan Life Ins.
Co., 183 W.Va. 407, 413, 396 S.E.2d 174, 180 (1990) (“We have exercised the power to
declare an employer’s conduct as contrary to public policy with restraint . . . and have
deferred to the West Virginia legislature because it ‘has the primary responsibility for
translating public policy into law.’” (citations omitted)).
27
Tiernan, 203 W.Va. at 141, 506 S.E.2d at 584 (internal citations omitted).
10
be a private right of action arising from the criminal statute. Ms. Blanda acknowledges
that this Court has not yet determined whether stealing contravenes a substantial public
policy, but urges us to find that the statute is persuasive evidence that stealing violates the
public policy of this State.
Respondents counter that Ms. Blanda’s theory is foreclosed by our prior
precedent in Swears v. R.M Roach & Sons, Inc.,28 in which this Court held that the West
Virginia statutes criminalizing embezzlement and larceny—West Virginia Code § 61-3-20
and § 61-3-13—do not “form the basis for a possible violation of a substantial public
policy.”29 Respondents contend that the statute here, West Virginia Code § 61-3-24, which
criminalizes obtaining money by false pretenses, is in the very same chapter of the criminal
code as the statutes at issue in Swears and deals with virtually identical conduct.
In Swears, a former Controller of R.M. Roach believed that his direct
supervisor, Steven Roach, had committed serious fiscal misconduct and reported his
findings to the other two main principals of the company.30 Mr. Swears alleged that,
following his report to the other company principals, Mr. Roach retaliated against him to
28
225 W. Va. 699, 696 S.E.2d l.
29
Id. at 705, 696 S.E.2d at 6–7.
30
Id. at 701–02, 696 S.E.2d at 3–4.
11
try to force him to resign.31 After he was ultimately terminated, Mr. Swears filed an action
alleging wrongful discharge in violation of public policy. Specifically, he claimed that he
was terminated in retaliation for his report that Steven Roach was engaging in alleged
“improper conduct detrimental to the company” and conduct “in breach of Mr. Roach’s
fiduciary duties owed to the company and that amounted to misappropriation of company
funds” in violation of state statutory and common law.32 He also claimed that his
termination “violated substantial public policy principles governing fiduciary
relationships, misappropriation of funds and corporate requirements and standards.”33
The issue in Swears was whether an employee’s reporting of alleged criminal
conduct committed by a principal of a private company amounted to a substantial public
policy, providing a basis for a Harless claim.34 Mr. Swears alleged that communication of
possible criminal conduct to a company principal constituted a substantial public policy.
In determining that Mr. Swears had failed to identify any source of public policy that his
employer had contravened, this Court stated:
While Mr. Swears cites to two criminal statutes to support his
assertions, this Court takes note that the statutes, W. Va. Code
§ 61–3–20 (2004) (Repl. Vol. 2005) and W. Va. Code § 61–3–
13 (1994) (Repl. Vol. 2005), deal with embezzlement and
31
Id.32
Id.33
Id.34
Id. at 703, 696 S.E.2d at 5.
12
larceny, respectively. Mr. Swears explains that the “West
Virginia Legislature has articulated a clear public policy
against such misconduct by criminalizing embezzlement and
larceny.” However, neither criminal statute expresses a public
policy component such that the statutes may form the basis for
a possible violation of a substantial public policy to support a
claim for wrongful discharge. The mere citation of a statutory
provision is not sufficient to state a cause of action for
retaliatory discharge without a showing that the discharge
violated the public policy that the cited provision clearly
mandates.[35]
Rejecting Mr. Swears’s attempt to elevate his complaint to the company principals to the
level of a violation of substantial public policy, this Court explained that the allegations
constituted an alleged violation of the financial interests of a private corporation.
Critically, they did not involve a “claimed violation of public policy or anything that might
be injurious to the public good.”36 Thus, we affirmed the circuit court’s grant of summary
judgment to the employer in that case.37
In footnote 8 of Swears, we also hypothesized in dicta, with no legal analysis,
that reporting alleged criminal conduct to law enforcement officials could call for more
analysis, stating:
if a case arises in which such a report is made to the proper
authorities, such a factual scenario could present a question as
to whether there is a substantial public policy to protect an
35
Swears, 225 W. Va. at 705, 696 S.E.2d at 7 (footnotes omitted).
36
Id.37
Id.13
employee, of a private employer, who reports suspected
criminal conduct to the appropriate governmental authorities
and is retaliated against as a result of such reporting. See supra,
note 7.[38]
Ms. Blanda argues that this case is not like Swears, but is more akin to Lilly
v. Overnight Transp. Co.,39 in which this Court held that a worker who was terminated for
refusing to drive a truck with defective brakes had a cause of action under Harless. Ms.
Blanda contends that, much like the driver in Lilly, she did not want to be part of an illegal
scheme to defraud the law firm’s clients.
Ms. Blanda’s argument ignores an important distinction. Citing Lilly,40 this
Court observed in footnote 9 of Swears that our wrongful discharge cases that have
reviewed assertions of criminal conduct have found a substantial public policy violation to
exist only when the claimant was terminated for refusing to engage in illegal activity.41 But
Ms. Blanda does not allege retaliation because she refused to engage in an illegal activity,
but rather, because she engaged in whistleblower activity by internally voicing her
38
Id. at n.8 (Emphasis added) (citation omitted).
39
188 W.Va. 538, 425 S.E.2d 214 (1992).
40
Id.41
Swears, 225 W. Va. at 705 n.9, 696 S.E.2d at 7 n.9 (emphasis added).
14
concerns about the billing irregularities and alleged criminal activity to another firm
employee. Thus, Lilly is not applicable to this case.42
In light of this, and in light of footnote 8 in Swears and the specific set of
facts presented by the District Court here, we find the question certified by the District
Court is too broad. So, we reformulate the certified question under our power to do so43 as
follows: Does West Virginia Code § 61-3-24 (Repl. Vol. 2014) constitute a substantial
public policy under Harless v. First National Bank, 162 W. Va. 116, 246 S.E.2d 270(1978), and its progeny, to protect an employee of a non-public employer who reported
suspected criminal conduct to the appropriate authority and claims to have been retaliated
against as a result? We are firmly convinced that it does not. As this Court has stated
42
And, the employee’s refusal to engage in illegal activity was not the only point
on which Lilly turned. In Lilly, this Court concluded that a wrongful discharge cause of
action existed specifically because our statutory and common law articulated a clear and
unequivocal public policy of this State that pertained to the employer. See Lilly at 541, 425
S.E.2d at 217 (discussing the legislature’s established public policy in West Virginia Code
§ 24A-1-1, (setting forth specific safety directive concerning motor carriers) West Virginia
Code § 17C-15-1(a) (misdemeanor statute for driving vehicle in unsafe condition as to
endanger any person), and § 17C-15-31 (detailing specifically required braking equipment)
that the general public should be protected against substantial danger created by operation
of vehicle in unsafe condition).
43
“When a certified question is not framed so that this Court is able to fully address
the law which is involved in the question, then this Court retains the power to reformulate
questions certified to it under . . . the Uniform Certification of Questions of Law Act found
in W. Va. Code, 51-1A-1, et seq[.]” Syl. Pt. 3, in part, Kincaid v. Mangum, 189 W. Va.
404, 432 S.E.2d 74 (1993).
15
many times before, “[o]ur retaliatory discharge cases are generally based on a public policy
articulated by the legislature.”44 And, as we stated in Birthisel,
The term “substantial public policy” implies that the policy
principle will be clearly recognized simply because it is
substantial. An employer should not be exposed to liability
where a public policy standard is too general to provide any
specific guidance or is so vague that it is subject to different
interpretations.[45]
44
See Shell v. Metropolitan Life Ins. Co., 183 W.Va. at 413, 396 S.E.2d at 180(reiterating that where a statute is designed to protect one specific group and not a broad
societal interest, there was no substantial public policy interest in insurance agent’s
allegations that he was terminated for objecting to his employer’s illegal use of client funds
to finance new insurance policies) (internal citations omitted). See also Birthisel, 188
W.Va. 371, 424 S.E.2d 606 (holding that lack of legislative enactment precluded social
worker’s claim that she was discharged from her employment for refusal to alter certain
patient notes in contravention of regulations established by the West Virginia Social Work
Board, even assuming that her assertions were true); Collins v. Elkay Mining Co., 179
W.Va. 549, 371 S.E.2d 46 (1988) (finding right of action for retaliatory discharge based
on a refusal to violate the West Virginia Mine Safety Act, West Virginia Code § 22A-1A-
20); McClung v. Marion County Comm’n, 178 W.Va. 444, 360 S.E.2d 221 (1987) (finding
right of action for retaliatory discharge based on a right to file for overtime wages pursuant
to West Virginia Code § 21-5C-8); Cordle v. General Hugh Mercer Corp., 174 W.Va. 321,
325 S.E.2d 111 (1984) (finding right of action for retaliatory discharge based, in part, on
West Virginia Code § 21-5-5b, which restricts an employer’s use of polygraph testing);
Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980) (finding
right of action for retaliatory discharge based on a right to file a claim under the West
Virginia Workers’ Compensation Act, West Virginia Code § 23-5-1); Travis v. Alcon
Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (finding no general public policy
against all forms of harassment in the workplace under West Virginia Human Rights Act
for purposes of wrongful discharge law).
45
188 W. Va. at 377, 424 S.E.2d at 612 (emphasis added).
16
Recently, in Frohnapfel v. ArcelorMittal USA LLC,46 this Court considered
a certified question from the Northern District of West Virginia and held that an employee
who alleges that he was discharged for reporting violations of a permit issued under
authority of the West Virginia Water Pollution Control Act47 and for making complaints to
his employer about those permit violations has established the predicate substantial public
policy required for a Harless claim.48 In analyzing the legal issue before us in that case,
we reiterated that “[m]ost of our retaliatory discharge cases involve violations of statutes
that we deem to articulate a substantial public policy.”49 While we recognized that a
substantial public policy interest in discouraging illegal behavior generally exists,50 we also
cautioned:
As this Court made clear in Swears v. R.M. Roach & Sons, Inc.,
225 W.Va. 699, 696 S.E.2d 1 (2010), a Harless-based action
requires more than simply raising the spectrum of a potentially
governing law. “The mere citation of a statutory provision is
not sufficient to state a cause of action for retaliatory discharge
without a showing that the discharge violated the public policy
that the cited provision clearly mandates.”[51]
46
235 W.Va. 165, 772 S.E.2d 350 (2015).
47
See West Virginia Code §§ 22-11-1 to -30 (2014).
48
Frohnapfel, 235 W. Va. at 173, 772 S.E.2d at 358.
49
Id. at 170, 772 S.E.2d at 355 (citing Birthisel, 188 W.Va. at 376, 424 S.E.2d at
611 (internal citations omitted)).
50
Id. at 173, 772 S.E.2d at 358 (citing Harless, 162 W. Va. at 116, 246 S.E.2d at
271, and Kanagy, 208 W. Va. at 533, 541 S.E.2d at 623 (“there is a substantial public policy
interest in discouraging illegal behavior.”)).
51
Id. at 170–71, 772 S.E.2d at 355–56 (citing Swears at 705, 696 S.E.2d at 7).
17
Finding a marked contrast to Swears, we noted that the “crux of the petitioners’ claims
[was] rooted in allegations of both public policy violations and potential harm to a water
source for some of this state’s citizenry.”52 Looking specifically at the policy directives
contained within our statutes,53 we stated that “with sufficient clarity, the Legislature
pronounced a specific statement of public policy, the objective of which is to maintain
reasonable standards of water purity and quality for the public’s health and enjoyment.”54
We also observed that:
If employers were truly without advance notice of what actions
constitute violations of the Act and/or permits issued in
conjunction with the Act, that would undeniably create
52
Id.53
One of the statutes that both this Court and the District Court analyzed, West
Virginia Code § 22-11-2, contained the following declaration included in the Act:
(a) It is declared to be the public policy of the State of
West Virginia to maintain reasonable standards of purity and
quality of the water of the State consistent with (1) public
health and public enjoyment thereof; (2) the propagation and
protection of animal, bird, fish, aquatic and plant life; and (3)
the expansion of employment opportunities, maintenance and
expansion of agriculture and the provision of a permanent
foundation for healthy industrial development.
(b) It is also the public policy of the State of West
Virginia that the water resources of this State with respect to
the quantity thereof be available for reasonable use by all of
the citizens of this State.
W. Va. Code § 22-11-2 (Repl. Vol. 2014).
54
Frohnapfel at 173, 772 S.E.2d at 358 (citation omitted).
18
grounds for challenging enforcement of its provisions. But the
case before us does not involve an employer being forced to
operate oblivious to the compliance requirements of its permit.
As the district court recognized, permits issued under the Act’s
authority contain the necessary specificity regarding the
permissible levels of various chemical waste effluents.[55]
As the District Court’s order in this case acknowledges, the whistleblower
protections allegedly afforded to Ms. Blanda under the Dodd-Frank Act, 15 U.S.C. § 78u-
6, are unavailable. So, as an alternate means of recourse, Ms. Blanda essentially seeks to
avail herself of the same whistleblower protections statutorily afforded to public employees
who report wrongdoing to the appropriate authority under West Virginia Whistle-Blower
Law.56 In light of the statute’s clear language limiting whistleblower protections to the
55
Id. at 172, 772 S.E.2d at 357.
56
See West Virginia Code §§ 6C-1-1 through -8 (Repl. Vol. 2019). Chapter 6C of
the West Virginia Code pertains specifically to “public employees,” and under West
Virginia Code § 6C-1-2(c) (Repl. Vol. 2019), the term “employer” means “a person
supervising one or more employees, including the employee in question, a superior of that
supervisor, or an agent of a public body.” West Virginia Code § 6C-1-3 (Repl. Vol. 2019)
provides:
(a) No employer may discharge, threaten or otherwise
discriminate or retaliate against an employee by changing the
employee’s compensation, terms, conditions, location or
privileges of employment because the employee, acting on his
own volition, or a person acting on behalf of or under the
direction of the employee, makes a good faith report or is about
to report, verbally or in writing, to the employer or appropriate
authority an instance of wrongdoing or waste.
(b) No employer may discharge, threaten or otherwise
discriminate or retaliate against an employee by changing the
employee’s compensation, terms, conditions, location or
privileges of employment because the employee is requested
19
public sector, and the other specific statutory expressions of public policy extending
whistleblower protections to non-public employees outlined in footnote 56, we will not
or subpoenaed by an appropriate authority to participate in an
investigation, hearing or inquiry held by an appropriate
authority or in a court action.
As we acknowledged in Swears, there are other state and federal statutes that
expressly contain whistleblower laws, such that retaliatory termination is prohibited by a
private employer against a private employee:
These include the retaliatory discharge provisions of the
Worker’s Compensation Act, [W. Va. Code §§ 23-5A-1 to -3,]
Mine Safety Act, [W. Va. Code § 22A-1-22,] Mine Safety and
Health Act, [30 U.S.C. § 801, et seq.,] Equal Pay for Equal
Work Act, [W. Va. Code § 21-5B-3 (2002),] Occupational
Safety and Health Act, [29 U.S.C. § 660(c)(1) (2000); W. Va.
Code § 21-3A-13(a) (2002),] Labor Management Relations
Act, [29 U.S.C. § 141 (2000),] Employee Retirement Income
Security Act, [29 U.S.C. §§ 1140–1141,] Energy
Reorganization Act, [42 U.S.C. § 5851 (2000),] Clean Air Act,
[42 U.S.C. § 7622,] Bankruptcy Act, [11 U.S.C. § 525(b)
(2000),] Consumer Credit Protection Act, [15 U.S.C. § 1674(2000); W. Va. Code § 46A-2-131 (1999),] Judiciary and
Judicial Procedure Act, [28 U.S.C. § 1875 (2000); W. Va.
Code § 61-5-25(a) (2000),] Toxic Substances Control Act, [15
U.S.C. § 2622 (2000),] Comprehensive Environmental
Response, Compensation, and Liability Act, [42 U.S.C. § 9610(2000),] Safe Drinking Water Act, [42 U.S.C. § 300j-9(i),]
Water Pollution Control Act, [33 U.S.C. § 1367 (2000),] Solid
Waste Disposal Act, [42 U.S.C. § 6971 (2000),] Energy
Reorganization Act, [42 U.S.C. § 5851 (2000),] and the
Surface Mining Control and Reclamation Act. [30 U.S.C. §
1293 (2000).]
Swears, 225 W. Va. at 705 n.7, 696 S.E.2d at 7 n.7 (citing Parween S. Mascari, What
Constitutes a “Substantial Public Policy” in West Virginia for Purposes of Retaliatory
Discharge: Making a Mountain Out of a Molehill?, 105 W. Va. L. Rev. 827, 835–36 (2003)
(original footnote numbers omitted) (original footnote information placed in brackets)).
20
extend these same protections to a non-public employee under West Virginia Code § 61-
3-24. If whistleblower protections are to be extended outside the contexts outlined above,
that expression of public policy should be made by the legislature—not the Court.
Again, as we advised in Tiernan,57 courts are to “proceed cautiously if called
upon to declare public policy absent some prior legislative or judicial expression on the
subject.” In addition, “despite the broad power vested in the courts to determine public
policy,” courts are to “exercise restraint”58 when using such power. “We have exercised
the power to declare an employer’s conduct as contrary to public policy with restraint . . .
and have deferred to the West Virginia legislature because it ‘has the primary responsibility
for translating public policy into law.’”59 “The power to declare an employer’s conduct as
contrary to public policy is to be exercised with restraint, and with due deference to the
West Virginia legislature as the primary organ of public policy in the state.”60
57
203 W.Va. at 141, 506 S.E.2d at 584 (internal citations omitted).
58
Id.
59
Shell, 183 W.Va. at 413, 396 S.E.2d at 180 ((citations omitted)).
60
See Washington v. Union Carbide Corp., 870 F.2d 957, 962–63 (4th Cir. 1989)
(finding no retaliatory discharge by private employee under West Virginia’s Occupation
Safety and Health Act, which applied only to public employees, because no statutory
recognition of an action for retaliatory discharge for reporting safety violations had been
generally conferred in West Virginia); See also Brown v. Hammond, 810 F.Supp. 644(W.D. Pa. 1993) (finding plaintiff’s termination for gratuitously alerting others about
defendants’ improper billing practice did not violate type of significant, clearly mandated
public policy required to satisfy the very narrow exception to Pennsylvania’s at-will
employment doctrine.). But cf. Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23(1997) (even though discharged at-will employee of employer with less than requisite
21
To recognize West Virginia Code § 61-3-24 as a source of substantial public
policy in these whistleblower actions, when our Legislature has expressly limited these
claims to very specific employees, would, as Respondents contend, make employers
deputized enforcers of our criminal statutes in order to avoid Harless-type liability and
“throw open the floodgates of litigation by allowing an employee to confer protected status
on himself or herself by merely making an allegation of illegal conduct by a co-worker to
a supervisor, no matter how serious, spurious, or unsupported it may be.”
The substantial public policy exception holds potential for abuse by
disgruntled employees,61 and “the potential for a legitimately terminated employee to come
up with some reason for her termination based on the substantial policy exception has long
been recognized. This kind of deception is to be expected with an exception that is so
broadly defined.”62 Balancing the countervailing policy interests at issue here, we decline
twelve employees has no statutory claim for retaliatory discharge under West Virginia
Human Rights Act, discharged employee might nevertheless maintain a common law claim
for retaliatory discharge against the employer.); Kanagy, 208 W.Va. 526, 541 S.E.2d 616(finding substantial public policy in regulations governing Board of Barbers and
Cosmetologists that require all licensees to report violations of regulations to the Board);
Tudor v. Charleston Area Medical Center, Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997)
(finding substantial public policy existed in regulations covering licensure of hospitals).
61
Mascari, What Constitutes a “Substantial Public Policy,” supra n. 56 at 867.
62
Id. (citing Stanley v. Sewell Coal Co., 169 W. Va. 72, 78, 285 S.E.2d 679, 684
(W. Va. 1981) (J., Neely, dissenting) (“[t]he plaintiff here has used Harless as the basis for
22
to further expand our common law substantial public policy exception in this instance.
Therefore, we hold that West Virginia Code § 61-3-24 does not constitute a substantial
public policy under Harless v. First National Bank, 162 W. Va. 116, 246 S.E.2d 270(1978), and its progeny, to protect an employee of a non-public employer who reported
suspected criminal conduct to the appropriate authority and claims to have been retaliated
against as a result.
IV. CONCLUSION
For these reasons, we answer the reformulated certified question in the
negative.
Certified question answered.
a cause of action which on its face seems groundless . . . I submit that this is a nuisance
lawsuit made possible only by the improvident holding in Harless.”).
23