William and Mary Lou Frohnapfel v. Arcelormittal USA LLC , 235 W. Va. 165 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2015 Term
April 10, 2015
__________
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 14-0671 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
__________
WILLIAM FROHNAPFEL AND MARY LOU FROHNAPFEL,
Plaintiffs Below, Petitioners
v.
ARCELORMITTAL USA LLC AND ARCELORMITTAL WEIRTON LLC,
Defendants Below, Respondents
______________________________________________________
Certified Question from the United States District Court
for the Northern District of West Virginia
CERTIFIED QUESTION ANSWERED
_________________________________________________________
Submitted: February 25, 2015
Filed: April 10, 2015
Robert J. D’Anniballe, Jr., Esq. Bradley K. Shafer, Esq.
Pietragallo Gordon Alfano Swartz Campbell, LLC
Bosick & Raspanti, LLP Wheeling, West Virginia
Weirton, West Virginia
Counsel for Petitioners Raymond C. Baldwin, Pro Hac Vice
Seyfarth Shaw LLP
Washington, DC
Counsel for Respondents
JUSTICE LOUGHRY delivered the Opinion of the Court.
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.” Syl. Pt.
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, 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.” Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d
606 (1992).
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4. “Inherent in the term ‘substantial public policy’ is the concept that the
policy will provide specific guidance to a reasonable person.” Syl. Pt. 3, Birthisel v. Tri-
Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).
5. 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).
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LOUGHRY, Justice:
This case is before us on certified question from the United States District
Court for the Northern District of West Virginia and presents the singular question of
whether the West Virginia Water Pollution Control Act (the “Act”) 1 establishes a substantial
public policy for purposes of undergirding a policy-based retaliatory discharge claim2 where
an employee is allegedly discharged for reporting violations of a permit issued under that
Act and making complaints to his employer about those permit violations. Having
considered this issue in conjunction with a review of both statutory and case law, we answer
the certified question in the affirmative.
I. Factual and Procedural Background
Prior to his termination,3 William Frohnapfel was employed by the respondent
ArcelorMittal Weirton (“AM Weirton”), a tin plate manufacturer.4 The petitioner worked
1
See W.Va. Code §§ 22-11-1 to -30 (2014).
2
See Syllabus, Harless v. First Nat’l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).
3
Mr. Frohnapfel was employed by the respondents and their predecessors from April
4, 1972, until his termination on April 18, 2013.
4
At the time of his termination, Mr. Frohnapfel’s employment was governed by a
collective bargaining agreement between his union, the United Steel, Paper and Forestry,
Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union,
and the respondent parent company of AM Weirton–ArcelorMittal USA. The petitioner
filed a grievance in connection with his termination; the termination was upheld.
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as a Technician II Operator in AM Weirton’s Environmental Control/Utilities Department.
This department was charged with oversight of B-Outfall–a portion of the AM Weirton plant
that discharges hazardous byproducts from its manufacturing process directly into the Ohio
River.
The B-Outfall is located near water intake lines that provide drinking water
to local residents of Weirton, West Virginia, and Steubenville, Ohio. The discharge from
the B-Outfall is governed by a permit and order issued under the Act’s authority.5 Pursuant
to the Act, AM Weirton is required to monitor and make reports regarding this discharge to
the West Virginia Department of Environmental Protection (“DEP”). As part of his job, Mr.
Frohnapfel was charged with helping to ensure that AM Weirton operated in compliance
with both this permit and other applicable environmental laws, rules, and regulations.
According to the allegations of the petitioners’ complaint, the respondents
“viewed him as a watch dog for environmental compliance and a potentially dangerous
whistleblower in regard to environmental violations.”6 Included in the complaint is a litany
5
According to the petitioners’ complaint, the Permit number is WV003336 and the
Order number is 6436. Those governing documents, issued under authority of the Act, are
part of a National Pollutant Discharge Elimination System created by Section 402 of the
Federal Water Pollution Control Act (known as the Clean Water Act).
6
Mr. Frohnapfel avers that the potentially hazardous chemicals being released into the
Ohio River from the B-Outfall include chrome, arsenic, cyanide, oil, and tin.
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of six incidents separate from the events that immediately preceded his termination in April
2013. The district court capsulated these allegations as follows:
• In February 2009, plaintiff complained to management after
being instructed to “scrape labels off barrels and replace them
with new labels due to expiration issues”;
• In March 2009, plaintiff informed management that a probe was
being placed in a buffer in order to conceal certain PH issues;
• In June 2010, plaintiff truthfully responded to an inquiry from
the WVDEP concerning the dumping of hazardous waste and
was thereafter “summoned to the Office of the Defendants’
highest ranking management official located in Weirton”;
• In November 2010, plaintiff complained regarding the
inadequacy of hazardous material incident training, and was
thereafter “chastised,” “disciplined,” and disqualified from
receiving a promotion;
• In January 2011, plaintiff expressed concern regarding the lack
of a containment area for “Prussian Blue,” a hazardous waste;
and
• In June 2012, plaintiff questioned a third-party vendor’s
practices associated with the removal of hazardous waste and
was thereafter harshly disciplined and temporarily suspended
from work.
The events that transpired just before Mr. Frohnapfel’s termination in April
2013 had their genesis in a broken piece of machinery used at B-Outfall. As the district
court related, a group of AM Weirton employees asked Mr. Frohnapfel to present their plan
for solving the hazardous waste accumulation resulting at B-Outfall to management. When
the petitioner advised management of the employees’ proposed solution, he was told that a
plan to repair the disabled equipment was already in place. While informing his coworkers
regarding this meeting, Mr. Frohnapfel “remarked, apparently in reference to management,
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that ‘opinions are like assholes, everybody has one, some people have two.’” Due to an
open microphone, the petitioner’s comments were broadcast throughout the Environmental
Control/Utilities Department. As a result of the broadcast incident, the petitioner was
immediately suspended and then terminated several days later.
In addition to filing a grievance to protest his termination,7 the petitioners
instituted a cause of action against the respondents in the Circuit Court of Hancock County
seeking damages for retaliatory discharge and loss of consortium. The respondents removed
the case to federal court on grounds of diversity.8 By order entered on July 11, 2014, the
district court certified the following question to this Court:
Whether the West Virginia Water Pollution Control Act, W.Va.
Code §§ 22-11-1 et seq., establishes a substantial public policy
of West Virginia such that it may undergird a Harless claim for
retaliatory discharge where an employee is allegedly discharged
for reporting violations of a permit issued under the Act and
complaining to his employer about such violations?
Expressing its opinion on the issue, the district court recognized the existence of “a strong
argument that the WPCA [Act] articulates a public policy sufficient to support a Harless
retaliatory discharge claim.”
7
See supra note 4.
8
See 28 U.S.C. § 1332 (2012).
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II. Standard of Review
As we stated in syllabus point one of Light v. Allstate Insurance Co., 203
W.Va. 27, 506 S.E.2d 64 (1998), “[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.” Accordingly, we proceed to consider the certified question presented by
the district court.
III. Discussion
Seeking to temper the otherwise harsh results that would obtain where a
discharge from employment was impelled by the employer’s desire to contravene public
policy, an exception to the common law doctrine of at-will employment was established.9
See Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459,
9
We do not opine on whether Mr. Frohnapfel qualified as an at-will employee in view
of the collective bargaining agreement that controlled the terms of his employment. While
remarking “[t]here appears to be no dispute as to whether plaintiff is an at will employee,”
the district court identified contrary authority. See Lamb v. Briggs Mfg., 700 F.2d 1092,
1093-94 (7th Cir. 1983) (applying Illinois law to decide that where employment is governed
by collective bargaining agreement that provides “proper cause” termination guarantee and
arbitral remedies, employee is not at-will employee and is prohibited from maintaining
retaliatory-discharge claim); but see Egan v. Wells Fargo Alarm Servs., 23 F.3d 1444, 1447
n.3 (1994) (commenting that “Illinois law now appears to permit employees covered under
a collective bargaining agreement to bring state law retaliatory discharge claims against
employers under certain circumstances” but ruling that under Missouri law, union employees
cannot bring policy-based wrongful discharge claims); see also Norris v. Hawaiian Airlines,
Inc., 842 P.2d 634 (1992) (holding that Hawaii Whistleblower’s Protection Act protects both
unionized contract employees and at-will employees from being discharged in violation of
public policy).
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468 (1955) (recognizing that at-will employees serve at will and pleasure of their employers
and may be discharged at any time, with or without cause). That exception, created in
Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), provides:
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.
Id. at 116, 246 S.E.2d at 271, syllabus.
As the district court correctly recognized, “a Harless retaliatory discharge
claim cannot lie absent a substantial West Virginia public policy allegedly violated in
terminating the employee.” See Shell v. Metropolitan Life Ins. Co., 183 W.Va. 407, 413,
396 S.E.2d 174, 180 (1990) (recognizing that “[o]ur retaliatory discharge cases are generally
based on a public policy articulated by the legislature”). And, while the “question of what
constitutes a ‘substantial public policy principle’ . . . is not subject to a precise answer,” we
addressed both the sources of public policy and what is necessary to constitute substantial
public policy in Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d
606 (1992). Id. at 375, 424 S.E.2d at 610.
In attempting to identify the areas from which public policy may be gleaned
in Birthisel, we relied upon the following oft-cited explanation:
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“‘The sources determinative of public policy are, among others,
our federal and state constitutions, our public statutes, our
judicial decisions, the applicable principles of the common law,
the acknowledged prevailing concepts of the federal and state
governments relating to and affecting the safety, health, morals
and general welfare of the people for whom government–with
us–is factually established.’”
Id. at 376, 424 S.E.2d at 611 (quoting Allen v. Commercial Cas. & Ins. Co., 37 A.2d 37, 39
(N.J. 1944) (internal citations omitted)). Further guidance regarding the elusive nature of
public policy was drawn from this observation in Parnar v. Americana Hotels, Inc., 652
P.2d 625 (1982): “In determining whether a clear mandate of public policy is violated,
courts should inquire whether the employer’s conduct contravenes the letter or purpose of
a constitutional, statutory, or regulatory provision or scheme.” Id., syl. pt. 3, in part.
Borrowing from these authorities, we distilled the following standard in syllabus point two
of Birthisel: “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.” Syl. Pt.
2, Birthisel, 188 W.Va. at 372, 424 S.E.2d at 607.
After identifying the sources of public policy in Birthisel, we considered what
is required to constitute “substantial public policy.” As an initial matter, we clarified that
our use of “substantial” to modify “public policy” in Harless was expressly “designed to
exclude claims based on insubstantial considerations.” Birthisel, 188 W.Va. at 377, 424
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S.E.2d at 612. Expounding further, 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.
Id. Commenting additionally on this matter in Feliciano v.7-Eleven, Inc., 210 W.Va. 740,
559 S.E.2d 713 (2001), 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.” Id. at 745, 559 S.E.2d at 718. Mindful of this concern, we recognized 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.” 188 W.Va. at 372,
424 S.E.2d at 607.
Addressing whether the nursing regulations and general language contained
in the social workers licensing statute that the plaintiff relied upon in Birthisel met the
threshold definition of substantial public policy, we opined:
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.
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188 W.Va. at 377-78, 424 S.E.2d at 612-13 (emphasis supplied). Of import to this Court
was the fact that neither the regulations nor the applicable licencing statutes contained any
specific provisions that addressed the allegedly improper conduct requested of the plaintiff
by her employer.10 Not only did the plaintiff fail to establish substantial public policy in
Birthisel, but she also failed to show that the actions requested of her by her employer were
contrary to statutory or regulatory law. As we recounted:
Here the plaintiff was not asked to falsify the patient
files, but was asked to check each file to determine if
information was missing from the Master Treatment plan. If
missing information could be obtained from the patient file,
then it was to be added to the Master Treatment plan. This
activity violated no statute or regulation.
Id. at 379, 424 S.E.2d at 614 (emphasis supplied).
As we observed in Birthisel, “[m]ost of our retaliatory discharge cases involve
violations of statutes that we deem to articulate a substantial public policy.” 188 W.Va. at
376, 424 S.E.2d at 611 (citing cases involving violations of the W.Va. Mine Safety Act, the
Wage and Hour Act, the Workers’ Compensation Act, and the Consumer Credit and
Protection Act). As this Court made clear in Swears v. R.M. Roach & Sons, Inc., 225 W.Va.
10The plaintiff viewed her employer’s request to undertake chart reviewing efforts in
preparation for an upcoming accreditation visit as unethical in that it required a falsification
of records. The employer explained its request as seeking to comport the Master Treatment
plan–essentially a summary of treatment–with information already recorded in the daily
progress notes. See Birthisel, 188 W.Va. at 375, 424 S.E.2d at 610.
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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.” Id. at 705,
696 S.E.2d at 7. In Swears, the former employee sought to rely on this state’s criminal laws
as the source of public policy that was violated by his termination. Rejecting the former
employee’s attempt to elevate his internally-raised concern for possible criminal conduct to
the level of public policy, this Court explained that the allegations constituted an alleged
violation of the financial interests of a private corporation. Critically, however, they did not
involve a claimed violation of public policy or anything that might be injurious to the public
good. Id.Turning to the case before us, the petitioners assert that the respondents
wrongfully terminated Mr. Frohnapfel for reporting violations of its permit issued under
authority of the Act and then raising concerns with AM Weirton about those permit
violations.11 In marked contrast to Swears, which involved fiduciary duties owed to a
private company, the crux of the petitioners’ claims is rooted in allegations of both public
policy violations and potential harm to a water source for some of this state’s citizenry. See
11
The record does not indicate whether Mr. Frohnapfel reported the alleged permit
violations to an external environmental regulator. Because of the manner in which this case
presents, we have limited information about the factual predicates underlying the complaint.
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225 W.Va. at 702, 696 S.E.2d at 4. For proof of the requisite public policy, the petitioners
cite to 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.
While the petitioners cited only to the Act’s express declaration of policy, the
district court took judicial notice of three additional provisions of the Act as the source of
public policy applicable to this case. The first of those provisions makes it unlawful to
increase the volume or concentration of sewage or industrial wastes in excess of the
discharges or disposition specified by permit. See W.Va. Code § 22-11-8(b)(4). The second
makes the violation of a permit issued under the Act subject to a civil penalty not to exceed
$25,000 per day. See W.Va. Code § 22-11-22(a). The final provision identified by the
district court establishes a misdemeanor offense for the failure or refusal to comply with the
terms or conditions of a permit issued under the Act. See W.Va. Code § 22-11-24(a).
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Viewing all of these legislative provisions together, the district court reasoned
that the Act “sets forth a specific public policy: maintaining ‘reasonable standards of purity
and quality’ of West Virginia water.” See W.Va. Code § 22-11-2. Flowing from this
overarching policy objective, the district court viewed the Act as sufficiently clear in stating
its public policy-based concerns:
the Act regulates manufacturers’ ability to discharge hazardous
material into West Virginia waterways by issuing permits, and
noncompliance with a permit subjects a violator to heavy civil
fines and potential criminal penalties. Moreover, while the
statement of public policy is itself broad, the requirements
imposed upon employers who hold permits issued pursuant to
the WPCA [Act] provide specific guidance as to permitted and
prohibited conduct. Finally, the purpose of the Act could be
frustrated if employees who reported violations of the Act to
environmental authorities and were terminated for doing so
were left without a remedy. (internal citations omitted)
Rejecting the district court’s reasoning, the respondents contend that the Act’s
statement of public policy contains only broad pronouncements that are “too general to
provide any specific guidance” and “so vague that it is subject to different interpretations.”
Birthisel, 188 W.Va. at 377, 424 S.E.2d at 612. Characterizing the Act as nebulous in terms
of expressing public policy, the respondents insist the subject legislation lacks sufficient
substance for purposes of establishing the predicate public policy the petitioners need to
pursue their retaliatory discharge action. In the same manner the standard of “good care”
was deemed too broad to serve as the source of public policy in Birthisel, the respondents
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maintain that the Act’s objective of maintaining reasonable standards of water purity and
quality is equally vague and imprecise. Because the necessary degree of guidance regarding
the particulars of prohibited conduct is lacking, the respondents assert they necessarily
lacked knowledge regarding the specific acts that violate the public policy created by the
Act.
We find these arguments to be without merit. 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 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.12 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. Moreover, it stands
to reason that a regulatory area which involves compliance with federal clean water
standards13 is necessarily so complex that the exactitudes of the governing regulations will
not typically be delineated in the governing legislation. See State ex rel. Ball v. Cummings,
208 W.Va. 393, 397, 540 S.E.2d 917, 921 (1999) (discussing framework of National
Pollutant Discharge Elimination System under which permits issue pursuant to this state’s
12
The respondents relate that “the permit and order at issue during the time period
relevant to the Complaint is 85 pages” in length.
13
See supra note 5.
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Water Pollution Control Act and recognizing that those permits require compliance with
specified terms and conditions). Consequently, we have no difficulty in concluding that the
Act’s referential reliance on federal regulations and guidelines for purposes of identifying
permissible levels of discharge does not render the subject legislation too vague for
interpretation or compliance purposes.
To be clear, the respondents ground their position in the transmutable nature
of the permits rather than contending they were uninformed as to the particulars of the
permit requirements. Because permits issued under the Act are subject to modification,
suspension or revocation,14 the respondents argue that this potential for change necessarily
renders them incapable of “provid[ing] clear and consistent standards.” Given that there was
no indication that the permit at issue was in fact modified during time periods relevant to this
litigation, we find this argument to be specious at best. The mere possibility that the
quantitative levels of a particular effluent may be altered or the list of hazardous chemicals
subject to monitoring may be expanded does not ipso facto prevent the Act from presenting
standards that are sufficiently precise for purposes of demarcating public policy.
In their attempt to persuade us that a Harless-based retaliatory discharge claim
14
According to the respondents, permits issued pursuant to the National Pollutant
Discharge Elimination System are subject to alteration with a minimum of twenty days
notice.
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cannot be based on the violation of a permit, the respondents stress that employers will be
subjected to vagaries in terms of identifying conduct prohibited under the Act. To illustrate
their point, the respondents refer to an employee’s complaint regarding an unspecified “lime
discharge.”15 This discharge, the respondents submit, may actually be in compliance with
all laws, permits, and regulations. Similarly, the respondents note that an employee’s report
of the accumulation of hazardous material may, depending on the circumstances, actually
be an allowable amount of such materials. Neither of these examples fits the parameters of
the question posed by the district court. We have not been asked to decide whether an
employer can take action against an employee who seeks on his own, separate from
government-specified standards, to be an environmental watchdog. The precise question
before us focuses solely on an employer who discharges an employee for his reporting of
violations of a permit issued under authority of the Act and for his complaints to the
employer about those same permit violations.
In contrast to the position advocated by the respondents, we find no lack of
guidance with regard to what conduct is prohibited by the Act. The Act makes it unlawful
for an entity issued a permit under its authority to violate the provisions of that permit. See
W.Va. Code § 22-11-22(a). Given the inclusion of both civil and criminal penalties for
15
According to the allegations of the complaint, Mr. Frohnapfel raised a concern on
April 14, 2013, that AM Weirton committed an improper lime discharge.
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violating permits issued pursuant to the Act, there can be little doubt as to the seriousness
with which the Legislature views the need to protect this state’s water sources. 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. See W.Va. Code § 22-11-2. That laudable policy objective
was imbued with the necessary teeth of enforcement by the inclusion of both civil and
criminal penalties for violations of the Act. Consequently, we are compelled to reject the
respondents’ argument that the Act cannot serve as a source of substantial public policy
based upon its lack of “specific guidance to a reasonable person.” Birthisel, 188 W.Va. at
372, 424 S.E.2d at 607, syl. pt. 3, in part.
The employers of this state, including AM Weirton, have long been on notice
that they cannot terminate an employee for his or her efforts to uphold this state’s laws.16
See Harless, 162 W.Va. at 116, 246 S.E.2d at 271, syllabus; see also Kanagy v. Fiesta
Salons, Inc., 208 W.Va. 526, 533, 541 S.E.2d 616, 623 (2000) (“There is a substantial public
16
The respondents urge us to find significance in the fact that the Federal Water
Pollution Control Act contains an anti-retaliatory provision while our Act does not. See 33
U.S.C. § 1367 (2012) (providing that “[n]o person shall fire, or in any other way
discriminate against, or cause to be fired or discriminated against, any employee . . . by
reason of the fact that such employee . . . has filed, instituted . . or has testified or is about
to testify in any proceeding resulting from the administration or enforcement of the
provisions of this chapter”). In this Court’s opinion, the non-inclusion of an anti-retaliatory
provision does not foreclose a determination that the Act expresses substantial public policy
for purposes of undergirding a Harless-based retaliatory discharge action.
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interest in discouraging illegal behavior.”). For more than twenty years, the provisions of
the Act have governed the acts of enterprises such as AM Weirton who utilize this state’s
waterways to discard the chemical residue of their manufacturing processes. Given the
clarity of the Act’s provisions that make it unlawful to violate a permit issued under the Act,
it cannot be doubted that AM Weirton was fully apprised of its permit-related
responsibilities under the Act as well as the penalties for non-compliance. Furthermore, it
simply cannot be disputed that those compliance requirements are rooted in substantial
public policy objectives whose aim is directed at providing for and promoting the public’s
health and well-being. Accordingly, we hold that 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 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, 162 W.Va. 116, 246 S.E.2d 270 (1978).17
17
As we noted in Feliciano, “[a]n aggrieved employer may then rebut the presumption
of a wrongful discharge by demonstrating that it had a plausible and legitimate business
reason for terminating its employee.” 210 W.Va. at 751, 559 S.E.2d at 724; see Syl. Pt. 2,
Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991).
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IV. Conclusion
For the foregoing reasons, we answer the certified question in the affirmative.
Certified question answered.
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