Julie Conrad v. Council of Senior Citizens of Gilmer County

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JULIE CONRAD, FILED
Plaintiff Below, Petitioner
November 16, 2016
vs) No. 14-1262 (Gilmer County 14-C-2) released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
THE COUNCIL OF SENIOR CITIZENS OF OF WEST VIRGINIA
GILMER COUNTY, INC,
Defendant Below, Respondent
MEMORANDUM DECISION
Petitioner, Julie Conrad, by counsel, Karl Kolenich, appealed an October 28, 2014, order
of the Circuit Court of Gilmer County, West Virginia, which dismissed her amended complaint
for failure to state a claim for which relief can be granted. Respondent, The Council of Senior
Citizens of Gilmer County, Inc., by counsel, Jan L. Fox and Ancil G. Ramey, filed a response in
support of the circuit court’s order.
This Court has considered the parties’ briefs, oral arguments, and the appendix record on
appeal. We find no substantial question of law and therefore a memorandum decision affirming
the judgment is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. As
explained below, we find that Petitioner failed to set forth sufficient facts to establish a
constructive retaliatory discharge claim against Respondent.
I. Factual and Procedural History
Respondent hired Petitioner, an at-will employee, in February 2002 as a homemaker. In
that position, Petitioner provided in-home services to clients assigned to her by Respondent.
Petitioner remained in that position for eleven years until she resigned in January 2013.
Petitioner alleged that she told her supervisor that she did not feel safe in her homemaking
placement and could no longer work there because the client’s family member1 was flattening
her tires, vandalizing her vehicle, and blocking the client’s driveway so that she could not come
and go from the worksite. Petitioner alleges that (1) she told her supervisor several times that she
could no longer physically or emotionally handle caring for her client, and (2) her supervisor told
her to “stick it out.”
A year later, in January 2014, Petitioner filed this civil action against Respondent. In her
amended complaint, Petitioner alleged (1) a constructive retaliatory discharge claim in violation
1
The client’s family member was initially alleged to be the client’s brother-in-law, and
later alleged to be the client’s son-in-law.
1
of public policy, and (2) a claim for the tort of outrage. With regard to the first allegation,
Petitioner claimed that Respondent violated the public policy articulated in West Virginia Code §
21-3-1, which provides, in part:
Every employer shall furnish employment which shall be reasonably safe
for the employees therein engaged and shall furnish and use safety devices and
safeguards, and shall adopt and use methods and processes reasonably adequate to
render employment and the place of employment safe, and shall do every other
thing reasonably necessary to protect the life, health, safety, and welfare of such
employees: Provided, That as used in this section, the terms “safe” or “safety” as
applied to any employment, place of employment, place of public assembly or
public building, shall include, without being restricted hereby, conditions and
methods of sanitation and hygiene reasonably necessary for the protection of the
life, health, safety, or welfare of employees or the public.
Petitioner claimed the following in her amended complaint:
On or about January 31, 2013, [Petitioner] reported to her employer []
after previously making numerous previous complaints that [Petitioner] could no
longer work for her assigned client, in that the client’s relative would consistently
block the driveway off so [Petitioner] could not go to the home, flatten her tires,
and vandalize her vehicle. [Petitioner] felt in danger and physically threatened.
She stated to her supervisor that she could no longer care for the client at the
home; she could no longer physically or emotionally handle it. She was directed
by her employer to “stick it out.”
[Petitioner] felt as if she had no other choice but to quit or put herself and
her property in danger and therefore with no choice, resigned.
....
[Petitioner] felt she had no option other than to end her employment as the
working conditions had become so intolerable that no person could be expected to
endure them.
[Respondent] was made fully aware of the working conditions and failed
in any way to remedy them and/or to remove [Petitioner] from said conditions.
Based upon information and belief, other placements would have been available
in which [Respondent] could have placed [Petitioner].
Thereafter, Respondent filed a motion to dismiss the complaint pursuant to West Virginia
Rule of Civil Procedure 12(b)(6). The circuit court held a hearing on the matter and granted
Respondent’s motion.2 With regard to Petitioner’s claim that West Virginia Code § 21-3-1
2
In its order dismissing Petitioner’s complaint, the circuit court found that “[b]oth parties
have failed to address the overreaching issue at the crux of this case, as well as the core of any
2
creates a “substantial public policy” that imposes a duty upon an employer to protect an
employee from a third party, the circuit court found that the statute failed to establish such a
duty; it held that Respondent had no duty to protect Petitioner from acts that were not under
Respondent’s control, such as the acts committed by the client’s family member in this case. The
circuit court found this was particularly true where the client’s family member’s wrongful acts
did not take place inside the workplace – the client’s home. Finally, the circuit court found that
Petitioner’s amended complaint was so “sparsely populated with facts” that she failed to set forth
enough information to outline the elements of a claim or to permit inferences to be drawn if
those elements exist.3
II. Governing Standard
Inasmuch as this case was decided on Respondent’s motion to dismiss, West Virginia
Rule of Civil Procedure 12(b)(6), we review this matter de novo and follow our long-established
rule that “[f]or purposes of the motion to dismiss, the complaint is construed in the light most
favorable to plaintiff, and its allegations are to be taken as true.” Cantley v. Lincoln Cty.
Comm’n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007) (citing John W. Lodge Distrib. Co. v.
Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978)).
“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.” Cantley, 221 W.Va. at 470, 655 S.E.2d at
492. This Court has held that
[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6)
motion, should not dismiss the complaint unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
negligence action: duty.” However, Petitioner did not file a negligence action. We therefore
agree with Petitioner that the circuit court erred by misapplying the negligence standard to her
claim involving a constructive retaliatory discharge. Nevertheless, “[i]n determining whether a
motion to dismiss . . . is appropriate, we apply the same test that the circuit court should have
applied initially. We are not wed, therefore, to the lower court’s rationale, but may rule on any
alternate ground manifest in the record.” Conrad v. ARA Szabo, 198 W.Va. 362, 369, 480 S.E.2d
801, 808 (1996) (citations omitted).
3
With regard to Petitioner’s tort of outrage claim, the circuit court findings were limited
to only one statement, that “for the reasons cited above, it failed as a matter of law.” Petitioner’s
assignments of error before this Court relate to her constructive retaliatory discharge claim;
however, she addresses her tort of outrage claim in her reply brief. Rule 3(c) of the Rules of
Appellate Procedure provides that a petition for appeal sets forth the “assignments of error relied
upon on appeal[.]” We have made clear that this Court ordinarily will not address an argument
not raised as an assignment of error. See e.g., Canterbury v. Laird, 221 W.Va. 453, 458, 655
S.E.2d 199, 204 (2007) (refusing to consider argument in appellant’s brief not assigned as error
in petition for appeal). Consequently, we decline to consider the dismissal of Petitioner’s tort of
outrage claim.
3
Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977). With these
principles in mind, we proceed to the merits of this case.
III. Discussion
As this Court held in the syllabus of Harless v. First National Bank, 162 W.Va. 116, 246
S.E.2d 270 (1978):
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.4
(Footnote added). “To identify the sources of public policy for purposes of determining whether
a retaliatory discharge5 has occurred, we look to established precepts in our constitution,
legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2,
4
Petitioner concedes that she quit her job. Accordingly, she had to establish “constructive
discharge” as described in Slack v. Kanawha County Housing and Redevelopment Authority, 188
W.Va. 144, 423 S.E.2d 547 (1992). In Slack, this Court held that a plaintiff who quits and claims
constructive discharge as part of a wrongful termination must demonstrate that the working
climate was “so intolerable” that the plaintiff “was forced to leave his or her employment.” Id. at
145, 423 S.E.2d at 548, Syl. Pt. 4, in part.
We note that Petitioner did not plead constructive discharge as an independent count in
her complaint as “constructive discharge is not a cause of action in its own right.” Dickens v.
Dep’t of Consumer & Regulatory Affairs, 298 F. App’x 2, 3 (D.C. Cir. 2008); see also Jacobson
v. Parda Fed. Credit Union, 577 N.W.2d 881, 882 n.9 (Mich. 1998) (holding constructive
discharge is not, itself, a cause of action, but rather a defense to a claim that employee
voluntarily left employment). Rather, “[c]onstructive discharge doctrines simply extend liability
to employers who indirectly effect a discharge that would have been forbidden by statute if done
directly.” Simpson v. Fed. Mine Safety & Health Review Comm’n, 842 F.2d 453, 461 (D.C. Cir.
1988); see also Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1030 (Cal. Ct. App. 1994)
(“Even after establishing constructive discharge, an employee must independently prove a breach
of contract or tort in connection with employment termination in order to obtain damages for
wrongful discharge.”); Gormley v. Coca-Cola Enter., 109 P.3d 280, 282 (N.M. 2005) (“An
employee who resigns from employment must prove constructive discharge as part of
establishing a wrongful termination.”).
5
The term “retaliatory discharge” is used in this case as a shorthand term for an employee
discharge that contravenes some substantial public policy principle. See Slack, 188 W.Va. at 152
n.8, 423 S.E.2d at 555 n.8.
4
Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992) (footnote
added).6
On appeal, Petitioner maintains her amended complaint is sufficient to survive a Rule
12(b)(6) motion because she alleged facts that show Respondent knew it was sending her to
work in an unsafe environment. Although Respondent did not create the alleged unsafe working
condition, Petitioner alleged that Respondent required her to work in a known, unsafe working
condition. She urges this Court to hold that she may proceed with her lawsuit alleging
Respondent’s actions violated the substantial public policy found in West Virginia Code § 21-3­
1. Respondent counters that the circuit court correctly found that Petitioner failed to plead
sufficient facts to support a viable cause of action. Respondent argues that Petitioner failed to
identify a substantial public policy to support her claim under Harless.
We turn now to the statute at issue. In syllabus point two of Henderson v. Meredith
Lumber Co., 190 W.Va. 292, 438 S.E.2d 324 (1993), we explained:
The goal of W.Va. Code 21-3-1 [1937] et seq. is to assure workers a
reasonably safe workplace. The legislature placed such a responsibility on the
employer and the owner. The employer’s duty is directly related to the
employment activity that is controlled by the employer and the owner’s duty is
limited to providing a reasonably safe workplace, unless the owner continues to
exercise control of the place of employment.
(Emphasis added).
After careful review of appendix record before this Court, we find that Petitioner’s
amended complaint, construed in the light most favorable to her, failed to support a plausible
constructive retaliatory discharge cause of action against Respondent. Thus, we hold that the
amended complaint must be dismissed for failure to state a claim upon which relief can be
6
In a series of cases arising out of a variety of factual settings in which a discharge clearly
violated an express statutory objective or undermined a firmly established principle of public
policy, this Court has recognized that an employer’s traditional broad authority to discharge an
at-will employee may be limited by considerations of substantial public policy. See, e.g., Syl. Pt.
5, Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (2015) (holding
employee who alleged he was discharged for reporting violations of permit issued under
authority of West Virginia Water Pollution Control Act, West Virginia Code §§ 22-11-1 to -30
(2014), and making complaints to his employer about those permit violations, has established
predicate substantial public policy); Syl. Pt. 5, Tudor v. Charleston Area Med. Ctr., Inc., 203
W.Va. 111, 506 S.E.2d 554 (1997) (holding West Virginia Code of State Regulations § 64-12­
14.2.4 (1987) sets forth specific statement of substantial public policy which contemplates that
hospital will be properly staffed to ensure patients are protected from inadequate staffing
practices); Syl. Pt. 2, Lilly v. Overnight Transp. Co., 188 W.Va. 538, 425 S.E.2d 214 (1992)
(holding substantial public policy is predicated upon West Virginia Code § 17C-15-1(a) (1991),
§ 17C-15-31 (1991) and § 24A-5-5(j) (1992), relating to operation of motor vehicle with brakes
in unsafe working condition).
5
granted. What proves fatal to Petitioner’s claim is the absence of alleged facts that demonstrate
Respondent acted contrary to West Virginia Code § 21-3-1 and those actions led to her
discharge. Specifically, Petitioner pled no facts to show that her workplace – the client’s home –
was unsafe. As the circuit court correctly found, “the only scenario remotely outlined in the
Complaint is that a third-party allegedly vandalized [Petitioner’s] vehicle in an unspecified area
extraneous to the client’s home, the sole confines of [Petitioner’s] workplace.”
Accordingly, this Court declines to address at this time the issue of whether a cause of
action for retaliatory discharge in contravention of public policy may exist under West Virginia
Code § 21-3-1, where an employee is discharged from employment in retaliation for making
complaints to his/her employer about unsafe workplace conditions within the employer’s control;
under the facts presented herein, that issue is not presently before the Court.
In Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581 (1986), this Court was presented
with the issue of whether the owner of a place of employment leased to an employer was liable
to the tenant’s injured employee for injuries arising out of a safety violation. In Pack, the
plaintiff filed a personal injury action alleging the leased premises did not have handrails and
safe treads on steps as required by West Virginia Code § 21-3-6 (1923). We concluded in Pack
that this type of responsibility was reasonably shared by the employer and the owner of the place
of employment. However, we acknowledged that “some of the provisions in W.Va. Code, 21-3-1
through -18, involve safety requirements that are clearly the responsibility of an employer
because they involve machines or other instrumentalities directly related to the employment
activity over which the owner of the place of employment exercises no control.” 177 W.Va. at
490, 354 S.E.2d at 586 (emphasis added).
Applying Henderson and Pack to Petitioner’s claim, the critical detail that Petitioner
failed to assert was that Respondent failed in its statutory duty to control her employment
activity. On that issue, Petitioner made no allegation that the client’s home was unsafe or that she
had legitimate safety concerns in her role as homemaker.
Other courts have recognized that employers should not be vulnerable to lawsuits when
employees complain generally about threats from customers or the public. For instance, in
Muller v. Automobile Club of Southern California, 71 Cal. Rptr. 2d 573 (Cal. Ct. App. 1998),
disapproved on other grounds by Colmenares v. Braemar Country Club, Inc., 63 P.3d 220 (Cal.
Ct. App. 2003), the plaintiff employee, a claims adjustor, had been threatened in her workplace
by the son of an insured.7 She contended in her lawsuit that when she expressed to the defendant
7
When Ms. Muller informed an insured that he would have to make two deductible
payments on a claim for damage to his vehicle caused by more than one accident, the insured’s
son (Mr. Williams)
became incensed by Muller’s interpretation of his father’s policy
and made a series of angry and threatening calls to Muller in which
he repeatedly berated and shouted obscenities at her. At some point
during this series of calls, coworkers informed Muller that
Williams was on his car telephone in the parking lot waiting for
6
employer her concerns about her safety in the workplace, she was terminated in violation of
public policy. Id. at 577. The employer successfully moved for summary judgment. In affirming
the judgment, the court of appeals in Muller concluded that the trial court “properly adjudicated”
the plaintiff’s cause of action for tortious discharge in violation of public policy in favor of the
defendant. Id. at 590. The court explained that there “is no evidence in the record that [plaintiff]
was subjected to unsafe working conditions in the . . . office where she worked.” Id. According
to the court, the plaintiff’s “anxiety disorder did not overnight render her office an unsafe
workplace. There is a certain risk of crime in any workplace to which the general public has
access. However, unless crime in the workplace is highly foreseeable, employers cannot
reasonably be expected to insure against it.” Id. The court stated that the “voicing of a fear about
one’s safety in the workplace does not necessarily constitute a complaint about unsafe working
conditions” under the labor code. Id. The plaintiff’s “declaration shows only that she became
frightened for her safety as a result of her unfortunate experience with [the insured’s son] and
expressed her fear” to the employer; “it is not evidence that the . . . office where she worked was
actually unsafe within the meaning of” the labor code. Id.Petitioner cites no authority from this Court, or other jurisdictions, to support the
proposition that an employer’s statutory obligation to provide a safe workplace extends outside
the workplace to encompass third-party activity beyond the employer’s control such that a
plaintiff could maintain a cause of action. The public policy exception to the general rule
allowing unfettered termination of an at-will employment relationship is a narrow one that does
not extend this far. In the instant case, the alleged actions of the third-party were not related to
“employment activity that [was] controlled by the employer[.]” W.Va Code § 21-3-1.
Accordingly, Petitioner fails to meet her burden of pleading a sufficient constructive retaliatory
discharge cause of action against Respondent.
IV. Conclusion
For the reasons set forth above, this Court affirms the October 28, 2014, order of the
Circuit Court of Gilmer County.
Affirmed.
ISSUED: November 16, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
her to leave work. Consequently, a police officer escorted Muller
to her car at the end of the workday.
Muller, 71 Cal. Rptr. 2d at 575-76.
7
CONCURRING AND WRITING SEPARATELY:
Justice Allen H. Loughry II
LOUGHRY, J., concurring, joined by KETCHUM, C.J.:
I concur in the majority’s affirmance of the circuit court’s order granting the
respondent’s motion to dismiss, but write separately because the majority opinion creates the
false impression that West Virginia Code § 21-3-1 (2013) may, under differing facts, constitute a
substantial public policy, actionable under Harless v. First National Bank in Fairmont, 162
W.Va. 116, 116, 246 S.E.2d 270, 271 (1978). The majority states that it does not reach this issue
because the petitioner’s allegations were insufficient regarding the applicability of the statute.
However, it is abundantly clear that West Virginia Code § 21-3-1 and other similarly general
statutory pronouncements are wholly insufficient to establish a substantial public policy upon
which a retaliatory discharge may be based. While requiring employers to provide a reasonably
safe workplace for its employees is an important and well-recognized public policy, it fails our
long-established test for creating an actionable “substantial public policy” which may support a
Harless action for retaliatory discharge.
The petitioner has attempted to assert a constructive retaliatory discharge claim
based on her employer’s alleged failure to provide her with a reasonably safe place to work, as
required generally by West Virginia Code § 21-3-1. This statute provides, in pertinent part, that
“[e]very employer shall furnish employment which shall be reasonably safe for the employees
therein engaged . . . and shall do every other thing reasonably necessary to protect the life,
health, safety, and welfare of such employees[.]” W.Va. Code § 21-3-1. The petitioner,
believing her workplace to be rendered unsafe by alleged vandalism and obstructionist behavior
by her client’s son-in-law, and being dissatisfied with her employer’s response to these alleged
actions, resigned from her employment and sued for damages. In asking this Court to recognize
this statute as a substantial public policy that provides a basis for her constructive retaliatory
discharge claim, the petitioner effectively asks this Court to create a new cause of action that
would allow an employee to quit his or her job and then sue his or her employer for damages,
alleging a working condition made the workplace “unsafe.” Importantly, however, the broad and
generally goal-oriented nature of West Virginia Code § 21-3-1simply cannot support such a
claim, as illustrated below.
Harless forbids an employer from discharging an employee for any reason that
contravenes a substantial public policy; to do so constitutes a “retaliatory discharge.” In
Syllabus Point 2 of Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d 606(1992), we held that sources of substantial public policy sufficient to support a Harless claim
may be found among “established precepts in our constitution, legislative enactments,
legislatively approved regulations, and judicial opinions.” Critically, the holding in Birthisel
makes clear that for purposes of determining what manner of “substantial public policy” may
form the basis of such a claim, such policy must “provide specific guidance to a reasonable
person.” 188 W.Va. at 372, 424 S.E.2d at 607, syl. pt. 3, in part. In explaining the preeminence
8
of this requirement, this Court stated in Birthisel that “[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.” 188 W.Va. at 377, 424 S.E.2d at 612.
Just last year, this Court stated that “a Harless-based action requires more than
simply raising the [spectre] of a potentially governing law.” Frohnapfel v. ArcelorMittal USA
LLC, 235 W.Va. 165, 170, 772 S.E.2d 350, 355 (2015). The United States District Court for the
Northern District of West Virginia, commenting upon our decision in Birthisel, aptly described
such insufficient statutory bases of public policy as “general admonitions which are aspirational
in nature[.]” Weirton Health Partners, LLC v. Yates, 2010 WL 785647, at *4 (N.D. W.Va. Mar.
4, 2010). In rejecting precisely these types of aspirational policies, this Court explained in
Birthisel that
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.
Id. at 378, 424 S.E.2d at 613. The statute urged here epitomizes a generally governing law that
is woefully insufficient in its proscriptions and requirements so as to represent an actionable
substantial public policy.
It is imperative to remember that our retaliatory discharge cause of action is an
exception to the at-will employment doctrine.1 As we held in Harless, a retaliatory discharge
action merely “tempers” “[t]he rule that an employer has an absolute right to discharge an at will
employee[.]” See 162 W.Va. at 116, 246 S.E.2d at 271, syllabus. Therefore, our requirement
that a “substantial public policy” underlying a Harless action be specific is necessary to maintain
the narrowly-drawn exception to at-will employment and to provide notice to employers as to the
type of activity that is actionable thereunder. As the Supreme Court of Iowa observed: “Any
effort to evaluate the public policy exception with generalized concepts of fairness and justice
will result in an elimination of the at-will doctrine itself.” Fitzgerald v. Salsbury Chem., Inc.,
613 N.W.2d 275, 283 (Iowa 2000). Moreover, “it could unwittingly transform the public policy
exception into a ‘good faith and fair dealing’ exception[.]” Id. at 283; see also Turner v. Mem’l
Med. Ctr., 911 N.E.2d 369, 375 (Ill. 2009) (“A broad, general statement of policy is inadequate
to justify finding an exception to the general rule of at-will employment.”).
1
See Wright v. Standard Ultramarine & Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459,
469 (1955) (“Under the law governing the relation of master and servant, an employment
unaffected by contractual or statutory provisions to the contrary, may be terminated, with
or without cause, at the will of either party to the contract of employment.).
9
Unquestionably, the tort of retaliatory discharge is an attempt to strike “a proper
balance . . . among the employer’s interest in operating a business efficiently and profitably, the
employee’s interest in earning a livelihood, and society’s interest in seeing its public policies
carried out.” Palmateer v. Int’l Harvester Co., 421 N.E.2d 876, 878 (Ill. 1981). However, the
Supreme Court of Connecticut wisely cautioned courts to be “mindful . . . not [to] lightly
intervene to impair the exercise of managerial discretion or to foment unwarranted litigation.’”
Sheets v. Teddy’s Frosted Foods, Inc., 427 A.2d 385, 387-88 (Conn. 1980). Likewise, this Court
must not blithely declare actionable “public policy” in an effort to protect employees from
retaliatory discharge lest it “instead offer[] them a sword with which to coerce employers[.]” Id.
at 389 (Cotter, J., dissenting). Our refusal to find general statutory pronouncements sufficient to
support a cause of action finds company in many other jurisdictions. See Corbin v. Sinclair
Mktg., Inc., 684 P.2d 265 (Colo. App. 1984); McCluskey v. Clark Oil & Ref. Corp., 498 N.E.2d
559 (Ill. App. Ct. 1986); Adler v. Am. Standard Corp., 432 A.2d 464 (Md. 1981); Pierce v. Ortho
Pharm. Corp., 417 A.2d 505 (N.J. 1980); Geary v. United States Steel Corp., 319 A.2d 174 (Pa.
1974).
In sum, the majority, having missed an opportunity to reiterate the specificity
requirements for an actionable “substantial public policy,” has unfortunately left the false
impression that a broad-based, aspirational statute, such as West Virginia Code § 21-3-1, might
support a Harless claim under the proper facts. With that said, and for the reasons set forth
herein, I respectfully concur.
10