Blanda v. Martin & Seibert, L.C.

• Decision Date: 22 November 2019
• Docket Number: No. 19-0317,19-0317
• Citation: 242 W.Va. 552,836 S.E.2d 519
• Court: West Virginia Supreme Court
• Parties: Christine BLANDA, Petitioner v. MARTIN & SEIBERT, L.C., Walter M. Jones III, Geoffrey A. Haddad, Michael M. Stevens, E. Kay Fuller, Susan R. Snowden, and Nikki Moore Gress, Respondents

242 W.Va. 552

836 S.E.2d 519

Christine BLANDA, Petitioner

v.MARTIN & SEIBERT, L.C., Walter M. Jones III, Geoffrey A. Haddad, Michael M. Stevens, E. Kay Fuller, Susan R. Snowden, and Nikki Moore Gress, Respondents

No. 19-0317

Supreme Court of Appeals of West Virginia.

Submitted: October 16, 2019

Filed: November 22, 2019

Richard Neely, Esq., NEELY & CALLAGHAN, Charleston, West Virginia, Counsel for the Petitioner

Richard M. Wallace, Esq., Daniel J. Burns, Esq., Charleston, West Virginia, Counsel for the Respondents

WALKER, Chief Justice:

Christina Blanda was an accounts receivable clerk employed by the law firm of Martin & Seibert, L.C. She claims that she was fired in retaliation for voicing her concerns about illegal billing practices by the firm. She first filed a whistleblower claim under the Dodd-Frank Act¹ in the United States District Court for the Southern District of West Virginia, but her claim was rendered not viable by a recent decision of the Supreme Court of the United States.² Now, she contends that her only recourse is a common law unlawful discharge claim under Harless v. First National Bank in Fairmont .³ She alleges that West Virginia Code § 61-3-24 is a substantial public policy sufficient to support her Harless claim and Respondents disagree. So, this case is before us on the following certified question from the District 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?

We reformulate the certified question and answer it in the negative.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because the parties did not accompany the certified question with a statement of facts,⁴ the District Court provided a brief statement of the case from pending motions for summary judgment that contain "[t]he facts relevant to the question, showing fully the nature of the controversy out of which the question arose."⁵ For purposes of considering the single question of law before us, we rely on the facts as relayed by the District Court, which we summarize here.

Ms. Blanda was an accounts receivable clerk employed by Martin & Seibert, L.C. and was tasked with billing clients for the hours worked by the firm’s employees and attorneys. Ms. Blanda alleges that she began noticing irregularities such as billing clients for paralegal and secretary services at the attorney’s hourly rate. She decided in 2013 that the firm was engaging in illegal billing practices. Ms. Blanda began persistently voicing her concerns to others at the law firm, including the individual Respondents.⁶

The law firm never took formal disciplinary action against Ms. Blanda for her complaints, and she did not threaten to report its activities to an outside law enforcement agency or elsewhere. But, Ms. Blanda believed that actions taken by the law firm showed an intent to discharge her in retaliation for voicing her concerns.

For example, in early 2014, Ms. Blanda was instructed to begin cross-training with another employee. But Ms. Blanda claims that it amounted to her training the other employee with no reciprocal training. Ms. Blanda also alleges that, later that year, the firm’s policy encouraging employees to discuss concerns with their supervisor was taken away from her when one of the Respondents told her that she could no longer express her concerns about the law firm’s billing practices. On December 4, 2014, after meeting with some of the Respondents, Ms. Blanda was issued a formal warning notice pertaining to her job performance. Ms. Blanda asserts that the claims in the notice were false.

And, on January 23, 2015, Ms. Blanda noticed that the law firm had posted her job for hiring. Ms. Blanda immediately contacted one of the law firm’s attorneys, Lisa Green, who had become aware of the billing irregularities. According to the facts presented by the District Court, Ms. Green suspected that the law firm may be setting up Ms. Blanda to take the blame for them. Ms. Green confirmed her suspicions and immediately contacted attorney Michael Callaghan, former Assistant United States Attorney and chief of the Criminal Division in the Southern District of West Virginia, for advice on reporting Respondents’ conduct to the West Virginia State Bar and the Federal Bureau of Investigations (FBI). According to Ms. Green, Mr. Callaghan contacted the FBI that day; in turn, Ms. Green advised Ms. Blanda to contact Mr. Callaghan for advice.

After speaking with Mr. Callaghan, Ms. Blanda believed that she should gather evidence to protect herself. On January 26, 2015, Ms. Blanda e-mailed 227 attachments to herself that consisted of raw billable hour data from the law firm’s timekeeping files. The law firm’s monitoring system detected the e-mails and Ms. Blanda was immediately fired for violating the firm’s employee handbook policy prohibiting the disclosure of confidential information, including compensation data, and subjecting violators to termination. After she was fired, Ms. Blanda also took paper files from the law firm. Ultimately, the FBI "raided" the law firm based, in part, on information Ms. Blanda provided to them after her discharge. It has since disbanded as a result. Ms. Blanda later applied for unemployment benefits stating that she was discharged for emailing timesheets to herself in violation of firm policy. She reiterated the same during her deposition.

Ms. Blanda then filed a whistleblower claim against Respondents under the Dodd-Frank Act.⁷ But, because Ms. Blanda did not report the alleged violation to the Securities and Exchange Commission, her claim became no longer viable following the decision of the Supreme Court of the United States in Digital Realty Trust, Inc. v. Somers .⁸ So, Ms. Blanda contends that her only recourse is a common law retaliatory discharge claim under Harless v. First National Bank in Fairmont ,⁹ under which she alleges that she was discharged in violation of the substantial public policy embodied in West Virginia Code § 61-3-24 (obtaining money by false pretenses).¹⁰ Respondents counter that our decision in Swears v. R.M. Roach & Sons, Inc. ,¹¹ has already considered this issue and forecloses Ms. Blanda’s theory. The District Court found that a certified question was appropriate in this circumstance, as it believes that an authoritative determination regarding this question will aid employers, discharged employees, and courts in identifying situations where Harless provides an alternative means of recourse when the Dodd-Frank Act’s whistleblower protections are unavailable.

II. STANDARD OF REVIEW

We undertake plenary review of the legal question presented in this case. As this Court has previously stated, "[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."¹²

III. DISCUSSION

Under long-standing West Virginia law, employees are considered to be employed at will, meaning that absent a contract or statute to the contrary, they serve at the will and pleasure of their employer and can be discharged at any time, with or without cause.¹³ The exception to this doctrine of employment at-will that we take up in answering the certified question before us is referred to as the public policy exception, which this Court first recognized in Harless v. First National Bank . In that case, the Court held

[t]he 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.^{[14 ]}

So, "a cause of action for wrongful discharge exists when an aggrieved employee can demonstrate that his/her employer acted contrary to a substantial public policy in effectuating the termination."¹⁵ As we have explained, " ‘public policy’ is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against public good ... even though no actual injury may have resulted therefrom in a particular case to the public."¹⁶

Determining what constitutes a substantial public policy for purposes of a Harless claim is another matter. As we held in Birthisel v. Tri-Cities Health Servs. Corp .,¹⁷ "[t]o 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." In that case, we clarified that our use of "substantial" to modify "public policy" in Harless was expressly "designed to exclude claims based on insubstantial considerations."¹⁸ Elaborating on this concept, 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 .^{[19 ]}

We also held 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 ."²⁰ Later, in Feliciano v. 7–Eleven, Inc. , 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."²¹

In Birthisel , we considered whether nursing regulations and general language contained in the social workers licensing statute met the threshold definition of substantial public policy.²² In concluding that the plaintiff had failed to establish the existence of a...