Opinion
No. 20-0040
11-13-2023
Todd JARRELL, Plaintiff Below, Petitioner, v. FRONTIER WEST VIRGINIA, INC.; Daniel Jordan; and Michael Linkous, Defendants Below, Respondents.
Walt Auvil, Esq., Kirk Auvil, Esq., The Employment Law Center, PLLC, Parkersburg, West Virginia, Attorneys for Petitioner Richard M. Wallace, Esq., Kameron T. Miller, Esq., Littler Mendelson, Charleston, West Virginia, Attorneys for Respondents
Syllabus by the Court
1. "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 princip[le], then the employer may be liable to the employee for damages occasioned by this discharge." Syllabus, Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).
2. "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 Services Carp., 188 W. Va. 371, 424 S.E.2d 606 (1992).
3. "Ordinarily the courts will not decide on public policy grounds issues which are fairly debatable, but will instead leave them for legislative decision." Syllabus point 3, Yoho v. Triangle PWC, Inc., 175 W. Va. 556, 336 S.E.2d 204 (1985).
4. West Virginia Code § 61-3-49b (eff. 2012) does not establish a substantial public policy exception to the at-will employment doctrine pursuant to Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).
Appeal from the Circuit Court of Jackson County, The Honorable Lora A. Dyer, Judge, Civil Action No. 19-C-31
Walt Auvil, Esq., Kirk Auvil, Esq., The Employment Law Center, PLLC, Parkersburg, West Virginia, Attorneys for Petitioner
Richard M. Wallace, Esq., Kameron T. Miller, Esq., Littler Mendelson, Charleston, West Virginia, Attorneys for Respondents
BUNN, Justice:
Petitioner Todd Jarrell appeals from an order entered December 23, 2019, by the Circuit Court of Jackson County that dismissed his wrongful discharge claim against Respondents Frontier West Virginia, Inc.; Daniel Jordan; and Michael Linkous (collectively "Frontier"). Mr. Jarrell alleged in his complaint that Frontier and its supervisory employees, Mr. Jordan and Mr. Linkous, wrongfully discharged him after he reported conduct by other Frontier employees that he alleged violated West Virginia Code § 61-3- 49b (eff. 2012). Mr. Jarrell contends that because § 61-3-49b criminalizes disruption of communications or public utility services, the statute establishes a substantial public policy to support his wrongful discharge claim. Frontier argues that Mr. Jarrell has failed to state a valid claim for relief in his complaint because § 61-3-49b is not a source of substantial public policy that would constitute an exception to the at-will employment doctrine. For the reasons set forth below, we conclude that West Virginia Code § 61-3-49b does not set forth a substantial public policy to support an employee’s claim of wrongful discharge following his termination from at-will employment. The Legislature, through its enactment of § 61-3-49b, has recognized a crime against property, and harm to the public is not required to prove this offense occurred. Therefore, we affirm the circuit court’s December 23, 2019 order dismissing Mr. Jarrell’s complaint for failure to state a cognizable claim.
Mr. Jarrell bases his wrongful discharge claim on our holding in the Syllabus of Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978), quoted in Section 1, infra.
See Harless v. First Nat. Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).
The text of West Virginia Code § 61-3-49b (eff. 2012) is quoted in Section I, infra.
See W. Va. Code § 61-3-30 (criminalizing the taking, carrying away, destruction, injury or defacing of any real or personal property or monument).
I.
FACTUAL AND PROCEDURAL HISTORY
[1] Mr. Jarrell was a longtime cable technician for various telecommunications companies and had worked for Frontier for approximately eight years when Frontier terminated his employment. On April 24, 2019, he filed a complaint alleging that Fron- tier wrongfully discharged him. Mr. Jarrell alleged that, during his employment, he became aware that several coworkers committed acts that amounted to sabotage of Frontier’s equipment and disrupted service for Frontier’s customers. Such conduct, if proven, would be a misdemeanor (for the first offense) or a felony (for the second and subsequent offenses) under West Virginia Code § 61-3-49b, which provides:
Because this case is an appeal from the circuit court’s order dismissing Mr. Jarrell’s complaint upon Frontier’s Rule 12(b)(6) motion to dismiss, we construe "the complaint … in the light most favorable to [the] plaintiff, and its allegations are to be taken as true." John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978). Accord Murphy v. Smallridge, 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996) (directing that, on Rule 12(b)(6) motion to dismiss, court "constru[es] the factual allegations in the light most favorable to the plaintiff[ ]" (citation omitted)).
"Frontier is a leading communications and technology provider offering gigabit speeds that empower and connect 2.8 million broadband subscribers in 25 states as of December 31, 2022." Frontier Communications Parent, Inc., Form 10-K (Feb. 24, 2023).
During the proceedings below and on appeal to this Court, Mr. Jarrell repeatedly references West Virginia Code § 61-3-49(b), which imposes various requirements on scrap metal purchasers, rather than West Virginia Code § 61-3-49b, which criminalizes the disruption of communications and public utility services and upon which he relies to support his substantial public policy argument. The circuit court characterized the references to § 63-3-49(b) as a clerical error, and we agree with that assessment because the statutory language Mr. Jarrell quotes in conjunction with these errant cites clarifies the statute to which he is referring.
— W. Va. at —, — S.E.2d at — (Slip. Op. at —).
(a) Any person who causes a disruption of communications services or public utility services by the theft or by intentionally damaging communications or public utility equipment and by such conduct causes:
(1) a disruption of communication services or public utility services to ten or more households or subscribers; or
(2) a loss in the value of the property in an amount of one thousand dollars or more, shall be guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be sentenced to not more than two thousand hours of court-approved community service or fined not more than $10,000, or both. For a second offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years or fined not more than $10,000, or both. For third and subsequent offenses, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than one nor more than ten years, or fined not more than $10,000, or both.
(b) As used in this section, communications and public utility equipment includes but is not limited to public safety communications towers and equipment, telephone lines, communications towers and tower equipment, radio towers and tower equipment, railroad and other industrial safety communication devices or systems, electric towers and equipment and electric transmission and distribution lines.
Id.
Mr. Jarrell alleged that his coworkers intentionally tampered with Frontier’s equipment so that Frontier’s communication service to customers would be disrupted. Mr. Jarrell claims the coworkers took these actions to earn overtime pay when they were called out to repair the damage they caused. Mr. Jarrell stated that his coworkers’ actions in tampering with Frontier’s equipment resulted in at least two Frontier customers’ inability to reach emergency medical services during a service outage, and that one of the customers ultimately died after medical complications. When Mr. Jarrell first reported this alleged misconduct to his supervisor, Mr. Jordan, Frontier did not take any action against the coworkers; then, Frontier scheduled Mr. Jarrell for reassignment to a different service area, but Mr. Linkous canceled the transfer. Thereafter, several of the coworkers Mr. Jarrell identified as having caused or contributed to service outages were transferred to other service areas. It appears Mr. Jarrell made his final reports of this alleged misconduct in the fall of 2017.
The appendix record identifies Mr. Jordan as a Local Manager for Frontier.
— W. Va. at —, — S.E.2d at — (Slip. Op. at —).
At the time of Mr. Jarrell’s discharge, Mr. Linkous was Frontier’s Assistant Vice President of Human Resources.
Frontier Communications Parent, Inc., Form 10-Q at 1 (Sept. 30, 2023).
The following spring, Frontier suspended Mr. Jarrell, who had had no prior disciplin- ary record, from work for five days for calling in to work late. Mr. Jarrell’s union filed a grievance on his behalf, which was ultimately denied. A short time later, Frontier asked Mr. Jarrell to submit to a random drug test because Frontier suspected he had been using illicit substances several months earlier. Mr. Jarrell’s union also filed a grievance on his behalf to challenge the drug test because no other employees in Mr. Jarrell’s position had been drug tested; this grievance was noted as closed with an "unsatisfactory" disposition.
The circumstances giving rise to Frontier’s suspicion that Mr. Jarrell was under the influence of unspecified substances are not apparent from the record. Mr. Jarrell contends that the testing was based upon his suspected prior use of substances because the test administered could detect substances used within the preceding four months.
West Virginia Code § 6C-1-3(a) provides, in full:
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 or her 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.
Finally, in September 2018, Mr. Jarrell used a Frontier bucket truck to remove bats from his home. When he removed the truck from Frontier’s premises, he parked his personal vehicle in the truck’s parking place, which he claims was a customary practice when Frontier employees used the company’s vehicles; nevertheless, Frontier reported the truck as stolen to local law enforcement authorities. Although Mr. Jarrell claims that other Frontier employees had been permitted to use the company’s trucks for non-company purposes, it appears that those uses had all been preapproved by Frontier. Mr. Jarrell claims that he did not seek permission to use the bucket truck to remediate his bat infestation because he did not think he would receive permission to use it. Ultimately, Frontier terminated Mr. Jarrell’s employment on October 22, 2018, after his unauthorized use of Frontier’s bucket truck. Mr. Jarrell filed a third grievance to protest his termination; Frontier denied this grievance based upon its assertion of "just cause" to support Mr. Jarrell’s discharge from employment.
[2] Mr. Jarrell then filed the underlying suit against Frontier for retaliatory discharge claiming that he had been wrongfully terminated for reporting the alleged misconduct of his coworkers and that the reasons cited by Frontier—suspension for calling in to work late, failed drug test, and unauthorized use of company bucket truck—were mere pretextual reasons for his firing. Mr. Jarrell bases his claim for wrongful discharge on the Syllabus of Harless v. First National Bank in Fairmont, 162 W. Va. 116, 240 S.E.2d 270 (1978), which holds
[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 princip[le], then the employer may be liable to the employee for damages occasioned by this discharge.
We have explained the at will employment doctrine as follows: "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." Blanda v. Martin & Seibert, L.C., 242 W. Va. 552, 556, 836 S.E.2d 519, 523 (2019) (footnote omitted).
Id. Frontier responded by moving to dismiss Mr. Jarrell’s complaint for failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. In an order dated December 23, 2019, the circuit court granted Frontier’s motion to dismiss. The circuit court ruled that Mr. Jarrell "failed to allege a substantial public policy supporting a wrongful discharge exception to a non-public employer terminating an employee." The court also found that Mr. Jarrell’s "Complaint acknowledges Frontier had other bases on which to terminate [Mr. Jarrell], including the unauthorized use of … Frontier’s bucket truck." Finally, the circuit court determined that it must follow this Court’s prior precedents recognizing that
Rule 12(b)(6) is discussed in Section III, infra.
criminal statutes alone do not constitute substantial public policy under Harless 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." Blanda [v. Marlin & Seibert, L.C., 242 W. Va. 552, 562, 836 S.E.2d 519, 529 (2019)]. Since
[Mr. Jarrell’s] entire theory is based on [his] alleged reporting of alleged unlawful activity, [Mr. Jarrell] asserts no facts supporting a viable cause of action for a Harless claim of wrongful discharge.
Mr. Jarrell then appealed to this Court, but his appeal was stayed during the pendency of Frontier’s bankruptcy case. The bankruptcy stay has now been lifted following the conclusion of those proceedings.
See generally 11 U.S.C. § 362 (automatically staying judicial proceedings against debtor upon debtor’s filing of bankruptcy proceeding); W. Va. R. App. P. 28(d) (recognizing automatic stay of pending action upon filing of bankruptcy proceeding); Syl. pt. 3, Rebuild Am., Inc. v. Davis, 235 W. Va. 245, 773 S.E.2d 11 (2015) ("Acts taken in violation of the automatic stay provisions of 11 U.S.C. § 362 (2010) are void ab initio.").
II.
STANDARD OF REVIEW
[3, 4] In the order on appeal, the circuit court granted Frontier’s motion to dismiss Mr. Jarrell’s complaint for failure to state a claim upon which relief could be granted. We apply a plenary standard of review to such a ruling: "Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo." Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 401 S.E.2d 510 (1005). Mr. Jarrell also argues that a statute supports his wrongful discharge claim because it provides a source of substantial public policy. This issue requires us to consider the relevant statutory language and to determine whether the Legislature intended that language to embody substantial public policy. The resolution of both inquiries is also subject to our plenary review. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). See also Syl. pt. 1, Cordle v. Gen. Hugh Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984) ("A determination of the existence of public policy in West Virginia is a question of law, rather than a question of fact for a jury.").
III.
DISCUSSION
[5, 6] Mr. Jarrell asserts a single assignment of error on appeal; the circuit court erred by finding that West Virginia Code § 61-3-49b does not establish a substantial public policy to support his Harless wrongful discharge claim. Pursuant to our holding in Harless, an employee may assert a wrongful discharge claim against his employer, despite the customary at-will employment doctrine, if the employee proves that "the employer’s motivation for the discharge is to contravene some substantial public policy princip[le]." Syl., in part, id., 162 W. Va. 116, 246 S.E.2d 270. Mr. Jarrell contends that § 61-3-49b establishes substantial public policy by prohibiting the disruption of communications or public utility services by theft or intentional damage. He further avers that Frontier violated this substantial public policy when it terminated him after he reported to his supervisors his belief that other Frontier employees had intentionally damaged Frontier’s communications equipment to obtain overtime work and pay for repairs required to fix such damage. Both Frontier and the circuit court rejected Mr. Jarrell’s contentions. We agree that West Virginia Code § 61-3-49b does not constitute a substantial public policy to support a Harless claim for wrongful discharge.
[7] In his appeal, Mr. Jarrell asserts that, in enacting West Virginia Code § 61-3- 49b, the Legislature intended to establish a substantial public policy that would support a claim for wrongful discharge under Harless.
"[P]ublic policy" is that principle of law which holds that "no person can lawfully do that which has a tendency to be injurious to the public or against public good …" even though "no actual injury" may have resulted therefrom in a particular case "to the public." It is a question of law which the court must decide in light of the particular circumstances of each case.
Tiernan v. Charleston Area Med, Ctr., Inc., 203 W. Va. 135, 141, 506 S.E.2d 578, 584 (1998) (quoting Cordle, 174 W. Va. at 325, 325
S.E.2d at 114 (additional quotations and citation omitted)). With respect to a Harless public policy analysis, the issue is whether the employer has "contravene[d] some substantial public policy princip[le]." Syl., in part, id., 162 W. Va. 116, 246 S.E.2d 270 (emphasis added).
[8, 9] Our use of the phrase "substantial public policy" in Harless "was designed to exclude claims that are based on insubstantial considerations" and further "implies that the policy principle will be clearly recognized simply because it is substantial." Birthisel v. Tri-Cities Health Servs. Corp., 188 W. Va. 371, 377, 424 S.E.2d 606, 612 (1992). Therefore, "[a]n 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." Id "Inherent in the term ‘substantial public policy’ is the concept that the policy will provide specific guidance to a reasonable person." Syl. pt. 3, id.
[10, 11] We have further held that, "[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." Syl. pt. 2, id. Yet, in doing so, we necessarily exercise judicial restraint.
"The right of a court to declare what is or is not in accord with public policy does not extend to specific economic or social problems which are controversial in nature and capable of solution only as the result of a study of various factors and conditions. It 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."
Tiernan, 203 W. Va. at 141, 506 S.E.2d at 584 (quoting Mamlin v. Genoe, 340 Pa. 320, 17 A.2d 407, 409 (1941)). Thus, "[o]rdinarily the courts will not decide on public policy grounds issues which are fairly debatable, but will instead leave them for legislative decision." Syl. pt. 3, Yoho v. Triangle PWC, Inc., 175 W. Va. 556, 336 S.E.2d 204 (1985). We have additionally admonished that "courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject." Tiernan, 203 W. Va. at 141, 506 S.E.2d at 584 (quotation and citation omitted).
In accordance with these authorities, we have recognized the existence of substantial public policy when a terminated employee asserts a Harless claim for wrongful discharge. However, in those cases, we have found the existence of substantial public policy in "established precepts in our constitution, legislative enactments, … and judicial opinions." Syl. pt. 2, in part, Birthisel, 188 W. Va. 371, 424 S.E.2d 606. In cases involving statutes criminalizing individual behavior like the one at issue in this case, though, we have not found a substantial public policy under Harless where the aggrieved employee reports alleged criminal activity by a coworker and the alleged misconduct does not impact the public at large.
For substantial public policy recognized by our constitution, we have held that
[a]n at-will or otherwise employed private sector employee may sustain, on proper proof, a cause of action for wrongful discharge based upon a violation of public policy emanating from a specific provision of the state constitution. Determining whether a state constitutional provision may be applied to a private sector employer must be done on a case-by-case basis, i.e., through selective incorporation and application.
Syl. pt, 3, Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 506 S.E.2d 578 (1998). Despite this recognition, in Tiernan, we rejected the employee’s Free Speech based constitutional argument and found that, under the circumstances of that case, no provision of our constitution provided substantial public policy to support her wrongful termination claim. See Syl. pt. 4, id. ("The Free Speech Clause of the state constitution is not applicable to a private sector employer. In the absence of a statute expressly imposing public policy emanating from the state constitutional Free Speech Clause upon private sector employers, an employee does not have a cause of action against a private sector employer who terminates the employee because of the exercise of the employee’s state constitutional right of free speech.").
With respect to legislative-based substantial public policy, in Frohnapfel v. ArcelorMittal USA LLC, 235 W. Va. 165, 772 S.E.2d 350 (2015), we found the existence of substantial public policy to support a deviation from the at-will employment doctrine because the governing statute included an express legislative declaration of substantial public policy in the West Virginia Water Pollution Control Act. See W. Va. Code § 22-11-2(a) ("declar[ing] … the public policy of the State of West Virginia"). Accord W. Va. Code § 22-11-2(b) (also recognizing "the public policy of the State of West Virginia"). See also Syl. pt. 5, Frohnapfel, 235 W. Va. 165, 772 S.E.2d 350 ("An employee who alleges he or she was discharged for reporting violations of a permit issued under authority of the West Virginia Water Pollution Control Act, W. Va. Code §§ 22-11-1 to -30 (2014), and making complaints to his/her employer about those permit violations, has established the predicate substantial public policy required to prima facie prove that the employer’s motivation for the discharge was the contravention of public policy. See Harless v. First Nat’l Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978).").
We have found substantial public policy provided by our prior judicial opinions where an individual’s right to self-defense was mentioned in our constitution but reference to our common law was necessary to clarify the parameters of this right. See Syl. pt. 8, Feliciano v. 7-Eleven, Inc., 210 W. Va. 740, 559 S.E.2d 713 (2001) ("When 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.").
We also have held that the judicially recognized right to privacy constitutes a substantial public policy to permit employees to challenge their termination based on their refusal to submit to polygraph testing. See also Syl. pt. 3, Cordle v. Gen. Hugh Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984) ("It is contrary to the public policy of West Virginia for an employer to require or request that an employee submit to a polygraph test or similar test as a condition of employment, and although the rights of employees under that public policy are not absolute, in that under certain circumstances, such as those contemplated by W. Va. Code, 21-5-5b [1983], such a polygraph test or similar test may be permitted, the public policy against such testing is grounded upon the recognition in this State of an individual’s interest in privacy.").
Cf. Harless, 162 W. Va. at 125, 246 S.E.2d at 275-76 (finding existence of substantial public policy where terminated employee bank manager alleged bank employer had overcharged bank customers on prepayments of their installment loans in violation of the West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-1-101 et seq., because "the Act … represents a comprehensive attempt on the part of the Legislature to extend protection to the consumers and persons who obtain credit in this State and who obviously constitute the vast majority of our adult citizens" (footnote omitted)).
For example, in Swears v. R.M. Roach & Sons, Inc., 225 W. Va. 699, 696 S.E.2d 1 (2010) (per curiam), we declined to find that an employer had violated substantial public policy by terminating an employee, who had been the employer’s controller and responsible for reviewing the employer’s finances, after he reported suspicions of financial wrongdoing by one of the employer’s owners. Id. We explained that, with respect to the criminal statutes the employee relied upon to support his wrongful discharge claim, "neither [the larceny, W. Va. Code § 61-3-13, nor the embezzlement, W. Va. Code § 61-3-20,] 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." Id. at 705, 696 S.E.2d at 7 (footnote omitted).
Similarly, Blanda v. Martin & Seibert, L.C., 242 W. Va. 552, 836 S.E.2d 519 (2019), involved a discharged accounts receivable clerk who voiced concerns over perceived billing irregularities. Id. The employer terminated her after she consulted a former Assistant United States Attorney for advice and emailed billable hour data to herself to preserve evidence of the employer’s alleged wrongdoing. Id. at 555, 836 S.E.2d at 522. In her wrongful discharge claim, the employee argued that the employer’s practices violated West Virginia Code § 61-3-24, which prohibits obtaining money by false pretenses, and that her firing after reporting such concerns violated the substantial public policy recognized by this criminal statute. Id. We disagreed, holding that
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.
Syl. pt. 5, Blanda, 242 W. Va. 552, 836 S.E.2d 519. We explained this holding by observing that
[t]he substantial public policy exception holds potential for abuse by disgruntled employees, and the potential for a legitimately terminated employee to come up with some reason for her termination based on the substantial [public] policy exception has long been recognized. This kind of deception is to be expected with an exception that is so broadly defined. Balancing the countervailing policy interests at issue here, we decline to further expand our common law substantial public policy exception in this instance.
Id. at 562, 836 S.E.2d at 529 (footnotes and quotations omitted).
Here, Mr. Jarrell seeks a declaration by this Court that West Virginia Code § 61-3-49b constitutes a legislative recognition of substantial public policy sufficient to support his wrongful discharge claim. For the reasons we declined to find the existence of substantial public policy based on the criminal statutes at issue in Swears and Blanda, we likewise find that § 61-3-49b does not set forth a substantial public policy under Harless. We have never held that a statute recognizing a property crime establishes a substantial public policy to support a Harless wrongful discharge claim, and we decline to depart from our well-settled precedent in this case.
First and foremost, the Legislature has not included an express statement of public policy in any of these statutes, which all concern crimes against property, and ostensibly the specific owners of such property, not the public at large. In this regard, we have specifically counseled in our wrongful discharge cases that "legislation [that] is designed to protect a narrow class of citizens … rather than a broad societal interest …. is not imbued with … substantial public policy[.]" Shell v. Metro. Life. Ins. Co., 181 W. Va. 16, 24, 380 S.E.2d 183, 191 (1989). See generally Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) ("The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.").
Moreover, while West Virginia Code § 61- 3-49b criminalizes the disruption of communications or public utility services through an individual’s conduct that causes "a disruption of communication services or public utility services to ten or more households or subscribers," a violation of this statute may also be committed through other conduct. See W. Va. Code § 61-3-49b(a)(1). The elements of this crime are set forth in the alternative, meaning a criminal disruption of communications or public utility services can be established by proving either the ten or more household service disruption described above or by proving that the criminal conduct causes "a loss in the value of the property in an amount of one thousand dollars or more[.]" See W. Va. Code § 61-3-49b(a)(2). See also State v. Taylor, 176 W. Va. 671, 675, 346 S.E.2d 822, 825-26 (1986) ("We have customarily stated that where the disjunctive ‘or’ is used, it ordinarily connotes an alternative between the two clauses it connects." (quotations and citations omitted)); Carper v. Kanawha Banking & Tr. Co., 157 W. Va. 477, 517, 207 S.E.2d 897, 921 (1974) ("Recognizing the obvious, the normal use of the disjunctive ‘or’ in a statute connotes an alternative or option to select."). Thus, by its express language, § 61-3-49b is a property crime, and the statute may be violated without impacting anyone other than the owner of the property. See generally Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) ("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.").
Finally, given the alternative methods of proving an individual has committed the crime of disrupting communications or public utility services, the statute is not sufficiently clear to place an employer on notice that § 61-3-49b embodies a substantial public policy that would defeat the operation of the at- will employment doctrine. See Feliciano v. 7- Eleven, Inc., 210 W. Va. 740, 745, 559 S.E.2d 713, 718 (2001) ("[T]o be substantial, a public policy must not just be recognizable as such but must be so widely regarded as to be evident to employers and employees alike."); Birthisel, 188 W. Va. at 377, 424 S.E.2d at 612 ("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.") We have cautioned that, when identifying a substantial public policy for Harless purposes, "‘[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.’" Tiernan, 203 W. Va. at 141, 506 S.E.2d at 584 (quoting Mamlin, 17 A.2d at 409). Therefore, absent a definitive recognition of substantial public policy by the Legislature, we do not find that § 61-3-49b is sufficiently clear to constitute an expression of substantial public policy. Accordingly, we hold that West Virginia Code § 61-3-49b (eff. 2012) does not establish a substantial public policy exception to the at-will employment doctrine pursuant to Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).
[12] Applying this holding to the facts before us, we find that the circuit court did not err by granting Frontier’s motion to dismiss Mr. Jarrell’s complaint asserting a single cause of action for wrongful discharge based upon Frontier’s purported violation of substantial public policy. Mr. Jarrell based his entire claim for relief against Frontier on his assertion that West Virginia Code § 61-3-49b establishes a substantial public policy and that, when he reported his belief that other Frontier employees were intentionally sabotaging Frontier’s communications equipment in violation of this statute, Frontier terminated his employment. A motion to dismiss tests the sufficiency of the complaint and determines whether the complaint states a claim upon which relief may be granted. See W. Va. R. Civ. P. 12(b)(6) (recognizing that defense of "failure to state a claim upon which relief can be granted" may be raised by motion); Cantley v. Lincoln Cnty. Comm’n, 221 W. Va. 468, 470, 665 S.E.2d 490, 492 (2007) (per curiam) ("The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint."). Based on our determination that § 61-3-49b does not recognize a substantial public policy sufficient to support a Harless wrongful discharge claim, as well as Mr. Jarrell’s failure to plead any alternative grounds for relief, we find no error in the circuit court’s determination that Mr. Jarrell’s complaint failed to state a cognizable claim for relief. See Murphy v. Smallridge, 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996) ("Dismissal for failure to state a claim is proper where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." (quotations and citations omitted)). Therefore, we affirm the circuit court’s order granting Frontier’s motion to dismiss Mr. Jarrell’s complaint.
IV.
CONCLUSION
Based upon the allegations in Mr. Jarrell’s complaint, we conclude that the circuit court did not err by ruling that he had failed to state a claim for wrongful discharge upon which relief could be granted. Therefore, we affirm the circuit court’s December 23, 2019 order granting Frontier’s motion to dismiss Mr. Jarrell’s complaint.
Affirmed.
JUSTICE HUTCHISON AND JUSTICE WOOTON dissent and reserve the right to file separate opinions.
Justice Hutchison, dissenting, joined by Justice Wooton:
(Filed November 13, 2023)
I dissent from the majority opinion’s stunning conclusion that West Virginia Code § 61-3-49b does not embody a public policy sufficient to support a Harless-type wrongful-discharge claim.1a The statute criminalizes disrupting communication services by "intentionally damaging communications equipment" in a way that either (1) disrupts service "to ten or more households or subscribers," or (2) results in the loss of $1,000 or more in property. W. Va. Code § 61-3- 49b(a)(1) and (2) (2012). Plaintiff Todd Jarrell’s allegations bear all the hallmarks of an internal whistleblower claim and should have been allowed to proceed to the discovery phase for development.
The plaintiff was a "cable splicing technician" working for defendant Frontier West Virginia, maintaining communication lines and equipment. The plaintiff’s complaint alleges he discovered three coworkers were removing equipment, cutting communication lines, and otherwise "were sabotaging cable equipment to cause service outages." These artificial outages, often in rural areas of West Virginia where there is no cellphone service, would sometimes last up to two weeks. The coworkers "would then take the service calls to repair the sabotaged equipment, thereby receiving additional pay beyond their normal hours."
The plaintiff did not allege his coworkers violated a nebulous statute, say, one involving generic destruction of property.2a No, he alleged his coworkers violated a statute focused on "communication services" and defendant Frontier is in the business of providing communication services.3a In this context, the statute is not vague: the plaintiff alleged his coworkers intentionally damaged communication equipment, and that the coworkers disrupted service to ten or more households and/or damaged in excess of $1,000 in property. He alleged the violation of a specific statute, and that the actions of these coworkers engendered consequences obviously embodied in the enactment. The plaintiff says hills and hollows were deprived of services for weeks, and that he learned one person died of a heart attack because neighbors had no way to communicate with 911.
Both the trial court and this Court would, without a pause, impose thousands of dollars in fines, thousands of hours of community service, and/or up to five years in prison on the plaintiff’s coworkers for their actions. Yet, despite the obvious conclusion that the Frontier workers violated the statute in the course of their employment, somehow, the majority opinion concludes that "the statute is not sufficiently clear to place an employer on notice that § 61-3-49b embodies a substantial public policy[.]"4a The majority opinion just cannot say the statute is "sufficiently clear" because the Legislature did not tack on a paragraph declaring "a definitive recognition of a substantial public policy by the Legislature[.]"5a
In other words, the majority opinion says the statute is clear enough that individuals may be put in jail or under other criminal jeopardy for violating the statute. On the other hand, defendant Frontier, a company with $20.5 billion in assets6a and who knows how many lawyers in its employ, has no way to discern if the statute states some sort of worthwhile public policy, and it’s all the Legislature’s fault for not properly explicating the words it put into law. Or maybe the Legislature must say "this law is public policy" or – even better – "this law is a substantial public policy" before someone can be protected from retaliation by their employer when they make a good faith effort to uphold the statute. Frankly, I cannot understand how the majority opinion can find that a statute that plainly says it is a crime to intentionally interrupt communication service to ten or more households, when that criminal act is alleged to have resulted in at least one death, is nothing more than a "crime against property" that has no bearing on "public health, safety, morals or welfare[.]" Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 141, 506 S.E.2d 578, 584 (1998). The majority opinion defies the Legis- lature’s statements and the allegations in the plaintiff’s complaint.
Furthermore, most courts in America have recognized some sort of action, based either in common-law or in statute, when an employee is terminated in retaliation for what is called "whistleblowing." See generally Stephen P. Pepe, Scott H. Dunham, Avoiding and Defending Wrongful Discharge Claims, § 1:7, "Public policy exception to at-will rule—Discharge for ‘whistleblowing’" (2023); 2 Mark A. Rothstein, et al., Employment Law, § 9:12, "Public policy exception—Report of illegal activity" (6th ed. 2023). As one treatise notes, "In many jurisdictions, an employee’s internal opposition to the employer’s or a co-worker’s violation of law is protected by public policy." Richard E. Kaye, 24 Causes of Action 2d 227, § 30 (2004). "Opposition to illegal conduct usually takes the form of a complaint to a superior, and evidence that the plaintiff made such a complaint should be sufficient to establish that the plaintiff was protected by public policy." Id.
Courts nationwide also recognize that an employee is protected from both "internal" and "external" whistleblowing. An external whistleblower is one who makes an accusation to an authority outside the company, such as law enforcement or a regulatory agency. An internal whistleblower is an employee who reports the alleged wrongdoing within the bounds of his or her employer, usually to a supervisor. One court explained why internal whistleblowing should be protected from retaliatory discharge, and why employees should encouraged to report wrongdoing to their employer:
First, one of the primary goals of protecting whistle-blowers from retaliatory discharge is to reduce wrongdoing in a speedy, efficacious manner. In that respect, it makes sense to recognize claims of whistle-blowers who report wrongdoing within the employing organization to a person in a position to investigate and remedy the wrongdoing. Second, internal disclosures are much less disruptive to the company than external disclosures. "[L]oyal employees, who do not go outside their organizations, should not have less protection than employees who could be considered more disruptive by complaining outside their organizations." Daniel P. Westman, Whistleblowing: The Law of Retaliatory Discharge, at 114 (1991). Oklahoma law protects both internal and external reporting of whistle-blowers who establish a sufficient public policy violation from retaliatory discharge.
Barker v. State Ins. Fund, 40 P.3d 463, 468 (Okla. 2001).
Plaintiff Jarrell insists he reported the criminal activity of his coworkers to his supervisor in mid-2016. Jarrell’s supervisor responded that the coworkers were "untouchable" because they "had friends in high places" and that there was nothing the supervisor could do. In late 2017, when the plaintiff reiterated his complaint to the supervisor that his three coworkers were sabotaging communications equipment, the plaintiff was reassigned to another county. The plaintiff then went over his direct supervisor’s head, reporting the misconduct to a manager in the security division. That latter report resulted in the plaintiff being allowed to meet with several upper-level supervisors. The plaintiff’s actions, as a loyal employee who did not go outside of his organization, warrants protection from retaliatory conduct under our law.
West Virginia has a whistleblower statute for public employees, West Virginia Code § 6C-1-3(a), which provides that "[n]o employer may discharge, threaten, or otherwise discriminate or retaliate against an employee … because the employee … makes a good faith report … verbally … to the employer … an instance of wrongdoing[.]"7a "Wrongdoing" is defined by the statute as "a viola- tion which is not of a merely technical or minimal nature of a … state statute … designed to protect the interest of the public or the employer." We have said that this statute is designed to protect public employees and, as such, does not apply to a private employer. Swears v. R.M. Roach & Sons, Inc., 225 W. Va. 699, 704 n.7, 696 S.E.2d 1, 6 n.7 (2010). Moreover, in Blanda v. Martin & Seibert, L.C., 242 W. Va. 552, 561, 836 S.E.2d 519, 528 (2019), this Court decided that whistleblower protections, like that outlined in the whistleblower statute, should not be extended to private employees. Despite this Court being the caretaker of the common law, the opinion abdicated that role to the Legislature, declaring that "[i]f whistleblower protections are to be extended [to non-public employees], that expression of public policy should be made by the legislature—not the Court." Id. at 562, 836 S.E.2d at 529.
I believe that Blanda is inherently faulty, and this case proves why it should be overruled. Within months of plaintiff’s Jarrell’s meeting with upper management, for the first time in his twenty-year career, plaintiff claims he was wrongfully suspended for five days and told this was his "last chance" for calling in to work a few hours late. Two weeks after that, he was subjected to a "random" drug test because of suspicion "he was on something" 129 days earlier. The plaintiffs union representative filed a grievance with Frontier, demanding the company "immediately cease harassing, humiliating and trying to intimidate employees for speaking out on working conditions." And then came plaintiffs firing for taking a bucket truck home for two-and-a-half hours. The plaintiff’s complaint lists numerous instances where bucket trucks had been used for personal reasons: one supervisor had plaintiff put up a sign saying, "Will you marry me?"; another supervisor had Frontier employees clean out the gutters of his church; and a company vice-president had a worker do the same thing plaintiff was fired for, use a bucket truck to clean out bats from the top of his cabin.
This case was decided entirely at the Rule 12(b)(6), motion-to-dismiss-the-complaint stage. The plaintiff was deprived of discovery, and the majority opinion effectively tries plaintiff’s case on the merits of the allegations in his complaint. This Court has said, to sustain a Harless action, "an employee must identify a substantial public policy which is specifically implicated by the conduct which gave rise to the discharge and that his or her discharge was motivated by a desire to thwart such policy." Taylor v. W. Va. Dep’t of Health & Hum. Res., 237 W. Va. 549, 566, 788 S.E.2d 295, 312 (2016). Plaintiff Jarrell identified a substantial policy created by West Virginia Code § 61-3-49b: that individuals cannot destroy cables and equipment and deprive citizens of life-saving communication. The plaintiff became a whistleblower and told his supervisors of the illegal acts, and he sufficiently articulated that Frontier’s management retaliated against him in response.
In sum, I would have held that the plaintiff stated a cognizable claim for wrongful discharge in violation of the public policy contained in West Virginia Code § 6I-3-49b. Moreover, I would have revised or overruled Blanda, and found that an employer may not discharge, threaten, or otherwise discriminate or retaliate against an employee because the employee made a good faith report to the employer of an instance of wrongdoing (like the clear violation of a criminal statute designed to protect the public or the employer).
Accordingly, I respectfully dissent to the majority’s opinion. I am authorized to state that Justice Wooton joins in this dissent.