Hartman v. White Hall Pharmacy, LLC, 1:15-cv-00026

Background

Hartman, a pharmacist-in-charge at White Hall Pharmacy, alleged he was terminated on October 31, 2014 after asserting wage-related rights (meal/rest breaks, holiday pay, overtime) under the West Virginia Wage Payment and Collection Act (WPCA) and after settling related FLSA and WPCA suits.
He filed this action asserting: (Count I) FLSA retaliation; (Count II) common-law retaliatory discharge grounded in a substantial public policy embodied by W. Va. Code § 21-5-3 (WPCA); and (Count III) WPCA § 21-5-4 pay-on-termination duty.
Defendants moved to dismiss Count II for failure to plead a Harless-based public-policy predicate (arguing WPCA § 21-5-3 is not a Harless predicate) and for FLSA preemption.
Hartman moved to certify to the West Virginia Supreme Court of Appeals the question whether § 21-5-3 embodies a substantial public policy supporting a wrongful-discharge claim.
The district court found Count II not preempted by the FLSA, concluded the question was unsettled in West Virginia law, and granted Hartman’s certification request under the state certification statute, staying the motion to dismiss.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Count II (Harless retaliatory discharge) is preempted by the FLSA	Hartman: Count II alleges retaliation for asserting WPCA rights (meal/holiday pay), not for initiating FLSA overtime litigation; thus not preempted	Defs: State-law retaliatory claim overlaps with federal FLSA claims and is preempted	Court: Not preempted — state claim distinguishes wage types (e.g., holiday/vacation) and survives preemption challenge
Whether W. Va. Code § 21-5-3 (WPCA) is a "substantial public policy" under Harless to support wrongful discharge	Hartman: WPCA reflects a strong public policy favoring prompt payment of wages and can serve as Harless predicate; existing state cases support this view	Defs: West Virginia courts have been cautious; lower federal courts declined to recognize WPCA as Harless predicate (citing Baisden, Wiley); Roberts limited WPCA § 21-5-5 to narrow facts and counsels against expansion	Court: Question unsettled in state law; strong argument that § 21-5-3 could be a Harless predicate; declines to expand Harless itself and certifies the question to the West Virginia Supreme Court of Appeals
Whether federal court should certify the unsettled state-law question to WV Supreme Court of Appeals	Hartman: Certification appropriate under UCQLA because question is determinative and unsettled	Defs: Certification risky — would invite repeated certification requests from plaintiffs	Court: Certification warranted — UCQLA satisfied, precedent favors certification for novel state-law questions; defendants’ objections unpersuasive
Whether district court should expand Harless without state court guidance	Hartman: Argues state precedent supports expansion to § 21-5-3	Defs: Argue federal courts must defer and not create new Harless predicates	Court: Declines to expand Harless itself; uses certification route instead

Key Cases Cited

Harless v. First Nat’l Bank in Fairmont, 246 S.E.2d 270 (W. Va. 1978) (establishes wrongful discharge in contravention of substantial public policy framework)
Swears v. R.M. Roach & Sons, Inc., 696 S.E.2d 1 (W. Va. 2010) (articulates Harless proof elements: clarity, jeopardy, causation, overriding justification)
Roberts v. Adkins, 444 S.E.2d 725 (W. Va. 1994) (recognized § 21-5-5 of WPCA as a Harless predicate in narrowly cabined facts)
Mullins v. Venable, 297 S.E.2d 866 (W. Va. 1982) (legislature and courts recognize WPCA duties as furthering an important public policy to ensure wages are paid)
Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir. 1989) (federal courts should exercise restraint expanding Harless and defer to state legislature/precedent)
Lilly v. Overnight Transp. Co., 425 S.E.2d 214 (W. Va. 1992) (West Virginia Supreme Court answered certified question on whether certain statutes supported Harless claim)
Lehman Bros. v. Schein, 416 U.S. 386 (U.S. 1974) (federal courts may certify unsettled state-law questions to state courts)
Arizonans for Official English v. Arizona, 520 U.S. 43 (U.S. 1997) (U.S. Supreme Court endorses use of state certification for novel unsettled state-law questions)