Jarrell v. Frontier W.Va., Inc.

• Docket Number: 20-0040
• Decision Date: 09 November 2023
• Parties: TODD JARRELL, Plaintiff Below, Petitioner, v. FRONTIER WEST VIRGINIA, INC.; DANIEL JORDAN; AND MICHAEL LINKOUS, Defendants Below, Respondents.
• Court: West Virginia Supreme Court

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TODD JARRELL, Plaintiff Below, Petitioner,
v.
FRONTIER WEST VIRGINIA, INC.; DANIEL JORDAN; AND MICHAEL LINKOUS, Defendants Below, Respondents.

No. 20-0040

Supreme Court of Appeals of West Virginia

November 9, 2023

Submitted: October 10, 2023

Appeal from the Circuit Court of Jackson County The Honorable Lora A. Dyer, Judge Civil Action No. 19-C-31

Walt Auvil, Esq. Kirk Auvil, Esq. The Employment Law Center, PLLC Parkersburg, West Virginia Attorneys for Petitioner

Richard M. Wallace, Esq. Kameron T. Miller, Esq. Littler Mendelson Charleston, West Virginia Attorneys for Respondents

JUSTICE HUTCHISON AND JUSTICE WOOTON dissent and reserve the right to file separate opinions.

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SYLLABUS BY THE COURT

1. "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 princip[le], then the employer may be liable to the employee for damages occasioned by this discharge." Syllabus, Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).

2. "Inherent in the term 'substantial public policy' is the concept that the policy will provide specific guidance to a reasonable person." Syllabus point 3, Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992).

3. "Ordinarily the courts will not decide on public policy grounds issues which are fairly debatable, but will instead leave them for legislative decision." Syllabus point 3, Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985).

4. West Virginia Code § 61-3-49b (eff. 2012) does not establish a substantial public policy exception to the at-will employment doctrine pursuant to Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978).

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OPINION

BUNN, JUSTICE:

Petitioner Todd Jarrell appeals from an order entered December 23, 2019, by the Circuit Court of Jackson County that dismissed his wrongful discharge claim^[1] against Respondents Frontier West Virginia, Inc.; Daniel Jordan; and Michael Linkous (collectively "Frontier"). Mr. Jarrell alleged in his complaint that Frontier and its supervisory employees, Mr. Jordan and Mr. Linkous, wrongfully discharged him after he reported conduct by other Frontier employees that he alleged violated West Virginia Code § 61-3-49b (eff. 2012).^[2] Mr. Jarrell contends that because § 61-3-49b criminalizes disruption of communications or public utility services, the statute establishes a substantial public policy to support his wrongful discharge claim. Frontier argues that Mr. Jarrell has failed to state a valid claim for relief in his complaint because § 61-3-49b is not a source of substantial public policy that would constitute an exception to the at-will employment doctrine. For the reasons set forth below, we conclude that West Virginia Code § 61-3-49b does not set forth a substantial public policy to support an employee's claim of wrongful discharge following his termination from at-will employment. The Legislature, through its enactment of § 61-3-49b, has recognized a crime against property, and harm to the public is not required to prove this offense occurred. Therefore, we affirm the circuit court's

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December 23, 2019 order dismissing Mr. Jarrell's complaint for failure to state a cognizable claim.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Jarrell was a longtime cable technician for various telecommunications companies and had worked for Frontier for approximately eight years when Frontier terminated his employment. On April 24, 2019, he filed a complaint alleging that Frontier wrongfully discharged him.^[3] Mr. Jarrell alleged that, during his employment, he became aware that several coworkers committed acts that amounted to sabotage of Frontier's equipment and disrupted service for Frontier's customers. Such conduct, if proven, would be a misdemeanor (for the first offense) or a felony (for the second and subsequent offenses) under West Virginia Code § 61-3-49b,^[4] which provides:

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(a) Any person who causes a disruption of communications services or public utility services by the theft or by intentionally damaging communications or public utility equipment and by such conduct causes:

(1) a disruption of communication services or public utility services to ten or more households or subscribers; or

(2) a loss in the value of the property in an amount of one thousand dollars or more, shall be guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be sentenced to not more than two thousand hours of court-approved community service or fined not more than $10,000, or both. For a second offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years or fined not more than $10,000, or both. For third and subsequent offenses, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than one nor more than ten years, or fined not more than $10,000, or both.

(b) As used in this section, communications and public utility equipment includes but is not limited to public safety communications towers and equipment, telephone lines, communications towers and tower equipment, radio towers and tower equipment, railroad and other industrial safety communication devices or systems, electric towers and equipment and electric transmission and distribution lines.

Id.

Mr. Jarrell alleged that his coworkers intentionally tampered with Frontier's equipment so that Frontier's communication service to customers would be disrupted. Mr. Jarrell claims the coworkers took these actions to earn overtime pay when they were called out to repair the damage they caused. Mr. Jarrell stated that his coworkers' actions in tampering with Frontier's equipment resulted in at least two Frontier customers' inability

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to reach emergency medical services during a service outage, and that one of the customers ultimately died after medical complications. When Mr. Jarrell first reported this alleged misconduct to his supervisor, Mr. Jordan,^[5] Frontier did not take any action against the coworkers; then, Frontier scheduled Mr. Jarrell for reassignment to a different service area, but Mr. Linkous^[6] canceled the transfer. Thereafter, several of the coworkers Mr. Jarrell identified as having caused or contributed to service outages were transferred to other service areas. It appears Mr. Jarrell made his final reports of this alleged misconduct in the fall of 2017.

The following spring, Frontier suspended Mr. Jarrell, who had had no prior disciplinary record, from work for five days for calling in to work late. Mr. Jarrell's union filed a grievance on his behalf, which was ultimately denied. A short time later, Frontier asked Mr. Jarrell to submit to a random drug test because Frontier suspected he had been using illicit substances several months earlier.^[7] Mr. Jarrell's union also filed a grievance on his behalf to challenge the drug test because no other employees in Mr. Jarrell's position

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had been drug tested; this grievance was noted as closed with an "unsatisfactory" disposition.

Finally, in September 2018, Mr. Jarrell used a Frontier bucket truck to remove bats from his home. When he removed the truck from Frontier's premises, he parked his personal vehicle in the truck's parking place, which he claims was a customary practice when Frontier employees used the company's vehicles; nevertheless, Frontier reported the truck as stolen to local law enforcement authorities. Although Mr. Jarrell claims that other Frontier employees had been permitted to use the company's trucks for non-company purposes, it appears that those uses had all been preapproved by Frontier. Mr. Jarrell claims that he did not seek permission to use the bucket truck to remediate his bat infestation because he did not think he would receive permission to use it. Ultimately, Frontier terminated Mr. Jarrell's employment on October 22, 2018, after his unauthorized use of Frontier's bucket truck. Mr. Jarrell filed a third grievance to protest his termination; Frontier denied this grievance based upon its assertion of "just cause" to support Mr. Jarrell's discharge from employment.

Mr. Jarrell then filed the underlying suit against Frontier for retaliatory discharge claiming that he had been wrongfully terminated for reporting the alleged misconduct of his coworkers and that the reasons cited by Frontier-suspension for calling in to work late, failed drug test, and unauthorized use of company bucket truck-were mere pretextual reasons for his firing. Mr. Jarrell bases his claim for wrongful discharge on the

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Syllabus of Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978), which holds

[t]he rule that an employer has an absolute right to discharge an at will^[8] employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy princip[le], then the employer may be liable to the employee for damages occasioned by this discharge.

Id. Frontier responded by moving to dismiss Mr. Jarrell's complaint for failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.^[9] In an order dated December 23, 2019, the circuit court granted Frontier's motion to dismiss. The circuit court ruled that Mr. Jarrell "failed to allege a substantial public policy supporting a wrongful discharge exception to a non-public employer terminating an employee." The court also found that Mr. Jarrell's "Complaint acknowledges Frontier had other bases on which to terminate [Mr. Jarrell], including...