As West Virginia employers are undoubtedly aware, there is a cause of action in the state commonly known as a “Harless claim” for wrongful discharge when an employee can show that his or her discharge contravenes some substantial public policy of the State of West Virginia.  In Brown v. City of Montgomery, et al., the West Virginia Supreme Court of Appeals recently issued a decision holding that it is a violation of a substantial public policy for an employer to fire an employee for refusing to retaliate against another employee who has filed a discrimination claim against the employer. 

The plaintiff in Brown was employed by the City of Montgomery from 2007 until 2011, first as a police officer and then the Chief of Police.  During Brown’s tenure with the police department, another officer, Lieutenant Ivy, filed a lawsuit against the City for racial discrimination.  In November 2011, Brown’s employment with the City was terminated.  He sued, claiming that he was discharged from his employment after he refused to place a GPS device in Ivy’s cruiser to track Ivy’s whereabouts as a measure of retaliation against Lieutenant Ivy for filing his own race discrimination lawsuit. 

The lower court granted a motion to dismiss filed by the City and Mayor.  On appeal, the WV Supreme Court reversed, finding that Brown had sufficiently pled a claim for discharge in contravention of public policy.  In reaching its decision, the Court relied on the WV Human Rights Act (WVHRA), W.Va. Code § 5-11-9(7)(C), which the Court has previously interpreted as prohibiting an employer from retaliating against an employee for expressing opposition to a practice that he or she reasonably and in good faith believes violates the provisions of the WVHRA.  Ultimately, the Court agreed with Brown that it is a violation of the substantial public policy of the State of WV for an employer to fire an employee for refusing to retaliate against another employee who has filed a racial discrimination claim against the employer. 

While the result was probably no surprise, the case serves as a good reminder of the WV Supreme Court’s holding in Harless – that an employer’s right to discharge an at-will employee must be tempered when the employer’s motivation for the discharge is to contravene some substantial public policy principle.  All employers in West Virginia need to be mindful of this concept, and should consider it seriously before making a discharge decision in cases where the theory may possibly be used against them.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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