The plaintiff was employed as a police chief for the City of Montgomery, acting under the direct authority of the mayor. In April, 2011, a fellow police officer filed a lawsuit against the city and the mayor alleging human rights violations, including racial discrimination. Thereafter, the mayor directed the plaintiff to place a GPS on the officer’s cruiser to monitor his whereabouts. The plaintiff refused. The mayor also directed the plaintiff to perform other, unspecified acts that were alleged to be contrary to law for the purpose of retaliating against the officer. Again, however, the plaintiff refused. In November, 2011, the plaintiff was discharged without any cause being given. The plaintiff then brought a lawsuit of his own against the city and the mayor alleging retaliatory discharge. The trial court dismissed the retaliatory discharge claim, finding that placing a GPS on the cruiser would not have been illegal and, furthermore, that the city and the mayor were protected by qualified immunity.
May an employee sue for retaliatory discharge where he refuses to obey an employer’s order to retaliate against a fellow employee in violation of the Human Rights Act, W.Va. Code 5- 11-1 et seq?
West Virginia is an “at-will” jurisdiction, meaning that an employer can generally discharge an employee for good cause, for bad cause, or for no cause at all. However, the rule of at-will discharge is subject to an important public policy exception. Over 35 years ago, the West Virginia Supreme Court recognized that an employee may recover tort damages when the motivation for a discharge violates a “substantial public policy.” Harless v. First National Bank, 162 W.Va. 116, 246 SE2d 270 (1978). In determining whether a substantial public policy exists that will trigger the Harless exception, courts will “look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions.” Where these sources are sufficient to provide “specific guidance to a reasonable person,” a substantial public policy will be recognized. Birthisel v. Tri-Cities Health Services, 188 W.Va. 371, 424 SE2d 606 (1992).
Citing multiple parts of West Virginia’s human rights law, the court stated that “[t]here can be no dispute that providing equal opportunity for employment regardless of race constitutes a substantial public policy of this state.” In fact, W.Va. Code 5-11-2 says specifically that “it is the public policy of the State of West Virginia to provide all of its citizen equal opportunity for employment . . . without regard to race.” The court also cited W.Va. Code 5-11- 9(7), which provides that it is unlawful to “engage in any form of reprisal or otherwise discriminate against” anyone for filing a human rights complaint. See also, Holstein v. Norandex, Inc., 194 W.Va. 727, 461 SE2d 473 (1995)(recognizing a Harless-type claim against a fellow employee who aids or abets an employer engaging in discrimination); Hanlon v. Chambers, 195 W.Va. 99, 464 SE2d 741 (1995).
From these code sections and cases, the court concluded that it is, indeed, “a substantial public policy of this State that employees are treated equally regardless of race.” It then announced a new syllabus:
It is a violation of a substantial public policy of this State for an employer to discriminate against an employee for refusing to retaliate against another employee who has filed a racial discrimination claim against the employer.
As a fall back, the city and the mayor argued that they were entitled to qualified immunity. Generally, public officials are immune from liability for their official acts unless the conduct in question “violate[d] clearly established laws of which a reasonable official would have known.” State vs. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). Because placing a GPS on a cruiser was not illegal, the city and the mayor argued that they were entitled to immunmity. The court, however, found that the proper focus was the mayor’s retaliation and not the method by which he chose to retaliate. The law regarding racial discrimination was well-settled. Therefore, the mayor’s retaliatory conduct fell outside of the protection of qualified immunity.
The outcome in this case is hardly surprising. The state’s human rights law contains specific provisions prohibiting racial discrimination, including any acts of retaliation. The case law amply supports this. Certainly, an employer cannot conscript others to do what he himself is forbidden to do. This case fits neatly into the Harless line of cases, giving protection to employees who might otherwise feel obliged to follow orders that clearly violate the human rights law.