This case involves the following certified question: “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 (1978), and its progeny?”
Petitioner, Christine Blanda, worked as an accounts receivable clerk for the law firm of Martin & Seibert, LC, one of seven Respondents herein. The remaining Respondents were all shareholders in the firm. According to Petitioner’s complaint, she observed irregularities in the firm’s billing practices that she believed were illegal in nature. Eventually, she brought those irregularities to the attention of the firm’s shareholders. Respondents did not overtly retaliate against Petitioner for raising these concerns, but they did takes steps to marginalize Petitioner, filed a false job performance, and eventually posted her job for hiring. At that point, Petitioner, through her attorney, contacted the FBI. Eventually, she was terminated after gathering incriminating data from the firm’s timekeeping files. Petitioner turned those files over to the FBI, who then obtained and executed a search warrant covering the firm’s files, records, etc. The firm then abruptly disbanded.
Petitioner filed a complaint against Respondents asserting claims under the whistleblower provisions of the Dodd-Frank Act and under Harless v. First Nat’l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978). Federal case law later eliminated the whistleblower claim, leaving the Harless claim as the only viable legal claim. The following question of law was then certified for decision by the Supreme 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 (1978), and its progeny?”
Under West Virginia law, an employer’s discharge of an employee is actionable if it contravenes a substantial public policy of the state as expressed in our constitution, statute, or common law. Fundamentally, Petitioner argues here that the prohibition against “stealing…by stealth, armed force, or trick,” is a part of the Judeo-Christian tradition and is expressly adopted as West Virginia public policy in W.Va. Code 61-3-24. Not only does this code provision criminalize theft, it also “explicitly…assure[s] that there is a private civil cause of action” for the victim of the crime. Consequently, there is a well-established public policy that will support a claim for wrongful discharge under Harless.
Respondents cite Swears v. R. M. Roach & Sons, Inc., 225 W.Va. 699, 696 S.E.2d 1 (2010). Swears was a West Virginia case involving an alleged theft in the workplace. The plaintiff in Swears reported the theft to a supervisor, but the Supreme Court concluded these facts were not enough to implicate a public policy. According to Respondents, Swears is controlling and, therefore, Petitioner cannot make out a valid claim under Harless. Swears, however, left open the question of whether a Harless claim would be proper where—as here—the plaintiff reported the alleged theft to law enforcement.
This is listed as an appeal under Rule 20. It seems likely, therefore, that the Court will answer the question that was left unanswered in Swears. This case is not likely to have widespread impact. That said, we may, nevertheless, see from the tone of the opinion how willing the Court will be to expand the reach of Harless in future cases.