*1 S.E.2d 616 Kanagy, and Tim Donna KANAGY Below
Plaintiffs SALONS, INC., Myrna
FIESTA
Disbennett, in her individual
capacity, Defendants Below.
No. 27775. Appeals
Supreme Court 4, 2000.
Submitted Oct. Nov. 2000.
Decided
Dissenting Opinion of Chief Justice
Maynard Dec.
turе, Regulations, the Code of State the West Virginia Board of Barbers and Cosmetolo- (hereinafter gists “Board”), and this Court on in controversy, issues we answer the question in certified the affirmative.
I. Facts (hereinafter Kanagy Mrs. Donna “Plain- tiff’ Kanagy”) or “Mrs. employed by was (hereinafter Salons, Inc., Defendant Fiesta “Fiesta”) 19, 1997, May from through Janu- 21, 1998, ary manager of the Fiesta Hair Hill, Tanning Salon in Virgi- Oak West nia. Kanagy’s supervisor, Mrs. direct Defen- Disbennett, Myma dant Mrs. héadquar- was Columbus, tered in Fiesta’s home office Ohio, and practice was licensed to cosme- tology Virginia. in Wеst In January an investigator for the approached Board Kanagy ques- Mrs. concerning tioned her Mrs. Disbennett’s practice cosmetology in West Kanagy Mrs. confirmed that Mrs. Disbennett occasionally did styling do work on custom- during ers her visits to the Oak Hill salon. Jerry Associates, Wright, A. Keenan & Kanagy Mrs. alleges that Mrs. Disbennett Fayetteville, Plaintiffs. learned the conversation with the investi- Roles, Heenan, Roles, Forrest H. Althan & gator Kanagy Mrs. confronted in an Charleston, (Pro Clark, D. Lewis Jr. Hac manner, angry berating providing her for Vice), Squire, Dempsey, Sanders & Colum- investigator. information to the Mrs. Kana- bus, OH, for Defendants. gy alleges also that Mrs. Disbennett stated cosmetologists protect should and vouch SCOTT, Justice. for one Kanagy another and directed Mrs. This matter is before the Court on a certi- providing refrain from information concern- question fied from the United States District ing Mrs. Disbennett’s activities. Court for the Southern District of West Vir- subsequently Mrs. Disbennett received a ginia, Beckley ques- Division. The certified strongly worded from letter the Board advis- posed tion has been ing her that her unlicensed of cos- Is there a substantial metolоgy Virginia violation of Virginia, State West embodied West state law. The Board directed Mrs. Disben- 30-l-5(b) § Code 30-27-1 performing nett cease the work and seq. et established up threatened her with a fine to $1000.00 thereunder, express implied, which per day. would a claim for dis- charge an employee allegedly dis- According Kanagy, to Mrs. she received a charged providing truthful information telephone call from Mrs. Disbennett on Janu- Investigator to an Board of Bar- 17, 1998, ary ostensibly to commend her on Cosmetologists, thereby bers and indicat- Hill the Oak salon’s financial success. Mrs. ing that the violated the Board’s Kanagy contends Mrs. Disbennett di- rules? rected her to remove from the salon’s $30.00 Having reviewed the facts of this petty pizza case and cash fund to order herself and pronouncements the relevant legisla- Kanagy subsequently the salon staff. Mrs. pur- Complaint the contention that was sufficient to based determined $20.00 was not claim pizza amount the Plaintiffs’ and removed that chase the as matter of law. The Plaintiffs viable petty As from the cash drawer. dismiss, arguing motion to opposed the Kanagy with- policy, nоted the company Mrs. *3 policy regula- in the exists log. Kanagy Mrs. al- on a financial drawal Board, by governing the authorized tions placed was in a locked leges that the $20.00 Virginia §§ to -16 Code 30-27-1 West planned explains that she desk drawer and (1998),3 specifically Virginia West Code of pizza the for the staff at a later purchase 3-5-3-1, Regulations provides: § which State date.1 Rules, Reporting Duty Carry Out and January Mrs. en- Disbennett On Complaints. It shall of the be the and Hill dismissed Mrs. tered the Oak salon beauty shops, proprietors of all barber or Kanagy employment, alleging from that Mrs. schools, beauty and all barber or licensed Kanagy had from the cash stolen $20.00 students, barbers, cosmetologists, and oth- Although Kanagy drawer. Mrs. showed provisions carrying the ers to assist out the in the locked Mrs. Disbennett $20.00 by any reporting violation to rule drawer, Mrs. to main- Disbennett continued any duly of Board or its authorized the by the had been Mrs. tain that stolen $20.00 agents. Kanagy. Kanagy Mrs. and her June maintain the cited The Plaintiffs rules wrongful dis- Kanagy Tim filed a husband provide finding for a the dis- the basis Fayette charge Court action in the Circuit of employee providing of for missal County, alleging in Two of the Com- Count regarding responses truthful the Board Kanagy’s plaint that Mrs. dismissal was employer’s violations of licensure re- her by “wholly substantially or motivated the contravenes quirements Investigator” provided information the she and that is afforded Mrs. Disbennett’s desire retaliate wrongful discharge. common law action against Kanagy Mrs. violation of West (2000).2 §§ Virginia Conversely, Code 6C-1-1 -8 The contend that the Defendants cosmetology regulations the action to Defendants removed federal do create court and to dismiss Count Twо sufficient moved Virginia provide §§ Code 30-27-1 to -16 1. Because this matter is before the Court 3.West posture question, we do not have certified for the of a Board of Barbers and establishment during any accumulated the benefit evidence authority Cosmetologists provide pro- for the discovery process. question The certified re- mulgation regulations governing of rules and only legal quires us to issue of wheth- resolve profession. Virginia practice of that West Code exists; we er a cause of impeded are therefore not actiоn Regulations § provides that "[i]t of State 3-1-3 is by complete factual de- the absence any person practice or unlawful offer to velopment culture, beauty barbering, manicuring, practice obtaining or aesthetics in this state without first original 2. The concede that their Plaintiffs now purpose Board.” a license for that from the Sec- allegation of a violation of the Whistle-Blower provides: tion 3-1-3.2 Virginia § Statute of Code 6C-1-1 was in West only applicable error because the statute Every barbering, beauty person praсticing Thus, employees of West culture, manicuring every aesthetics filed a the Plaintiffs' counsel motion to amend display his or her license or li- student shall Complaint, admitting altering error and conspicuous place cense in a renewal allegation, employed shop practices he or she or is Kanagy’s Plaintiff Donna dismissal was required, and whenever shall exhibit the li- wholly substantially motivated the infor- represen- its cense to the board or authorized provided Investigator mation she for the tative. Virginia West Board of Barbers and Cosmеtol- permits impose 3-7-2.12 the Board Section ogists, and the Defendants’ desire to retaliate $500.00 financial for the first offense sanctions against doing her so. retaliation $1,000.00 offense, permit- for the second and ting and a contravention of viola- cosmetology. persons unlicensed prohibits reprisal tion of state law which W. 3-7-2.12. 3-5-2.21 re- Va.C.S.R. Section against provides who true and posted quires the to be near license “framed concerning accurate information his or her beauty or work stand.” employer's each barber and chаir violation of rules of a state regulatory agency. W. Va.C.S.R. 3-5-2.21. recognized claim wrongful discharge where an this Court a claim provid- emanating right common allegedly from the employee is investigator. privacy for a information to an as a basis ing truthful emphasize involving that the cosme- who refused to take an The Defendants specific provision polygraph syllabus point tology laws do not contain test. Cordle, reprisal. explained prohibiting “[a] such The Defendants one of determi- argument conclusion that nation of the existеnce extend law, question of do not is a rather “because the statutes conduct, alleged question jury.” for a address Defendant’s than a fact even they provide cannot basis for a acknowledged quality of the nebulous We policy claim.” concept “public policy” in Yoho *4 II. Discussion Inc., 556, PWC, Triangle 175 336 W.Va. (1985), 204 S.E.2d law, employee
At common
an at-will
against
pleasure
power
will
of his or her
to declare an action
serves at the
The
time,
discharged
any
power
employer
and can be
at
is a broad
and one
Wright v.
can
with or without cause.
Standard
difficult to define. “No fixed rule
be
368,
given
public policy.
. 141
Ultramarine
Color Co.
W.Va.
to determine what is
(1955).
382,
459,
In
principle
90
468
Harless v.
It
as that
S.E.2d
is sometimes defined
Bank,
116,
First National
162 W.Va.
246
of contract or
law under which freedom
(1978),however,
acknowledged
dealings
by
for
private
270
we
are restricted
S.E.2d
expanding
excep
good
community
public
the
inclination toward an
the
of the
—the
McFarland,
889,
employment
good.” Higgins
tion to the common law at-will
196
Va.
(1955).
894,
168, 172
recognized
despite
doctrine.4 We
that
the
86 S.E.2d
employer normally
right
fаct that an
has the
(citations
561, 336
at 209
175 W.Va. at
S.E.2d
discharge
employee
to
without
omitted).
cause,
wrong
discharge may
be considered
right
petition
The state constitutional
by
discharge
ful when the
is motivated
the
retaliatory
the basis for a
for redress formed
employer’s desire to contravene some sub
discharge
McClung
in
action
v. Marion
public policy.
syllabus
In
stantial
Commission,
County
178
360
W.Va.
Harless, this Court stated:
(1987).
dog
plaintiff,
The
war
S.E.2d
employer
rule that an
has an abso-
The
commission,
county
had been
den
right
discharge
employee
an at will
lute
rеspond
days
failing
suspended for five
by
tempered
principle
must
telephone
involving animals.
to three
calls
motivation for the
in
Allegedly
Id. at
360 S.E.2d
225.
discharge is to contravene some substan-
response to
claim for overtime
the warden’s
public policy principle],
tial
then the em-
war
wages,
commission terminated the
may
employee
ployer
be liable to the
jury
den. The lower court set aside
verdict
damages
by
discharge.
occasioned
this
warden, reasoning
that the warden
appeal, this
pronouncements
emрloyee
an
at-will. On
Since our initial
Harless,
constitutional
required to
concluded that the state
we have been
determine Court
petition
sufficiently
right
clear embodi
for redress satisfied
what constitutes
requirement
of a substantial
ment
several different
retaliatory discharge
Hugh
underlying
action and
contexts.
Cordle v. General
Mercer
(1984),
explained
follows:
Corp., 174 W.Va.
325 S.E.2d
court
4. Scholars hail
v. International Broth-
his return to work.
Petermann
Petermann
Teamsters,
deeming
Cal.App.2d
plaintiff,
for the
it "obnoxious
erhood
found
contrary
P.2d 25
as the seminal case on the
the interests of the state
morality
policy exception
employment
doc-
and sound
to allow an
to the at-will
Petermann,
discharge any employee,
employ-
plaintiff
employ-
whether the
trine.
at-will
duration,
testify
unspecified
subpoenaed
legis-
designated
before a
ment be for a
ee was
state
Disregarding
employer's
ground
declined
lative committee.
on the
by
enjoined
falsely testify,
plaintiff
perjury,
specifically
an act
instructions to
truthfully
testified
commit
hearing
at the
and was
statute.” Id. at
plan.
rights of аn master treatment
She claimed
fundamental
One
data,
by
supervi-
right not to be the victim transfer of
as ordered
her
is the
is,
sor,
discharge,”
regard-
“retaliatory
a dis-
would
ethical standards
violate
patients
employment
ing
where the em-
closed charts of
with whom she
charge from
discharge
for the
not had contact.
feared that to do
ployer’s motivation
had
“She
public poli-
falsify
would
would be to
the records and
contravention
so
Certainly it is in contravention of
cy....
constitute a violation of the West
an
public policies fоr
Id. at
Code of Ethics....”
Social Work
however,
retaliation
employer,
at 609. The
S.E.2d
employee’s exercising his or her state
testified that “the social workers were mere-
petition for
rights to
redress
constitutional
ly being
asked to make sure
the records
Va,
(W.
Ill,
Art.
grievances
Const.
See.
accurately
the course of treatment
reflected
16)
access to the courts
seek
patient
Id. at
that the
had received.”
17)
(W.
Ill,
by
Art.
See.
Va. Const.
at 609.
wages.
filing
action ...
for overtime
Locating
specific guidance
appli-
no
at 227. This Court
Id. at
regulations,
“general
found that
cable
stated:
requirement
good
admonitions as to the
public employee,
even
A
officer
patients
social workers do
care
*5
pleasure
of
who serves at the will
one
type
constitute the
of substantial
clear
may
appointing authority,
not be dis-
the
retaliatory discharge
a
on which
for the
charged in retribution
exercise
at
424
claim can be based.” 188 W.Va.
constitutionally protected right, unless a
general
at
“If such a
standard
S.E.2d
governmental
interest
out-
substantial
public policy, it
сould constitute a substantial
public
public
or
em-
weighs the
officer’s
a
enable a social worker
to make
would
exercising
right.
such
ployee’s interest
in
challenge
any type
procedure
to
that the
Id.
good
his or
worker felt violated
her sense
Recognizing
employ-
“[a]n
Id.
that
service.”
meaning of
further clarified the
We
liability
exposed
where a
er should
be
public policy” in
phrase “substantial
the
general
pro-
public policy standard is too
Corp.,
v.
Health Services
Birthisel
Tri-Cities
any specific guidance
vague
vide
is sо
(1992),
371, 424
606
S.E.2d
ex
188 W.Va.
subject
interpretations!;,]”
we
it is
different
requiring
presence of a
plaining that
the
employee had
concluded that
failed
regard
public policy with
to a
substantial
that her
contravened a
establish
particular
issue would serve
exclude
public policy.
Id. at
424
on insubstantial considerations.
claims based
at 612.
S.E.2d
Birthisel,
syllabus point
we dis
In
two
sources from which a substantial
cussed the
Co.,
Lilly Overnight Transportation
In
derived,
policy could
public
be
214
W.Va.
identify
“To
the sources
of a dismissal based
addressed the issue
determining
a retaliato
purposes of
whether
upon
employee’s
operate
an
a mo-
refusal
occurred,
ry discharge has
we look to estab
tor
with unsafe brakes and found
vehicle
constitution, legislative
precepts in our
lished
a
created
cause
enactments,
regula
legislatively approved
discharge.
underly-
action for
The
tions,
judicial
syllabus
opinions.”
ing statutory provisions
spe-
“in
enumerated
Birthisel,
we further elaborat
point three
equipment
cific
brake
detail the
public
“Inherent in the term ‘substantial
ed:
types of motor vehicles....”
Id. at
all
policy
policy’
concept
will
“that
medical
policy exception
regulations
based
partment
Transportation
charge under
employer’s
reported
that he
upon allegation
falsify logs regarding compliance
refusing to
official, assisted
government
alleged bribe of
regulations).
with the
investigation, and was ter
corruption
FBI in
underlying
Employing
reasoning
informing the
after
minated
Maynard’s
conclusion and Justice
Birthisel
investiga
and his role
pending arrests
Tudor,
jurisdictions have
other
dissent
Co.,
tion);
Eng’g
19 Cal.4th
Ralee
v.
Green
underly
in which the
encountered situations
960 P.2d
Cal.Rptr.2d
(1998)
regulations
ing policy
qualify
can be
as a substantial
(recognizing
failed
upon
which
public policy sources
necessary
valid
retaliato
regulations
if
discharge claims
wrongful
base
Daley
ry discharge action.
v. Aetna Life
of au
with terms
intent
consistent
are
Co.,
Casualty
249 Conn.
734 A.2d
statute);
American Pharmaceutical
thorizing
Flores v.
example,
court
held
s.,
Inc.,
994 P.2d
Serv
that she had
who claimed
(holding that
(Colo.Ct.App.1999)
WL
criticizing
in retaliation for
been terminated
overhearing co
after
employee terminated
“family-
implement
her
failure
inci
reporting
insurance fraud
worker’s
friendly” policies had not established
state insurance
supervisor could use
dent to
wrongful discharge claim under the
public policy excep
as basis for
fraud statute
employment
policy exception to the at-will
stat
employment even where
tion to at-will
court concluded
doctrine.
133. The
duty);
reporting
imposed
specific
no
ute
that neither state nor federal medical leave
Inc.,
Eyewear,
700 S.W.2d
Boyle v. Vista
implement
acts
(holding
plaintiff
stat
(Mo.Ct.App.1985)
friendly
family
policies оr to re
broad-based
of action for
ed cause
taking
against an
frain from
adverse action
eye
reported
of federal
violations
where she
pursuing
insisted
efforts
who
testing regulations and was subse
glass
ar
benefits such as work-at-home
Bank,
secure
Valley
quently discharged); Allum
134;
(1998)
rangements.
Id. at
see also Merck
(finding
rogative.” v. Atlantic Richfield this Court. Cal.Rptr. 610 P.2d Cal.3d Question Certified' Answered. (1980). 1330, 1336 Chief MAYNARD attempt Justice dissents and The Defendants to minimize the dissenting Opinion. files a issue, substantiality characterizing cosmetology regulation this MAYNARD, Justice, dissenting. Chief insufficiently create cause (Filed 5, 2000) Dec. discharge. wrongful of action for Such nar- however, analysis, begs question row I I dissent because do nоt believe essentially regulation spe- flawed. The is Regulations Code imposition duty upon cific in its § provides 3-5-3 a substantial carrying provi- Plaintiff “to assist in out the a claim sufficient by reporting any violation sions of this rule discharge. duly any its authorized to the Board majority wrongly concludes that § agents.” W. Va.C.S.R. 3-5-3.1. The socie- provides § C.S.R. 3-5-3 procuring concerning tal interest the truth policy solely obligation it because creates
violations of law is a substantial
However,
report
duty
a violation.
regulation.
There is a sub-
embodied
alone,
report, standing
cannot constitute a
discouraging illegal
stantial
interest
policy.
Courts must in-
language
specific
behavior. The absence
purpose
duty.
stead determine the
placing
employer on
that the dis-
notice
words,
other
what is the nature of
viola-
compliance
charge
of an
with
people
duty
report?
tion that
have a
subject
regulation will
report
C.S.R.
3-5-3 creates a
viola-
liability
retaliatory discharge
does not
tions of the rules of the Board of Barbers
*8
employee’s
defeat the
claim.
here,
Cosmetologists,
including,
and
a
report
barbering
and
cosmetology
without
license. The real is-
We echo the concise sentiment ex
sue, therefore,
mandatory
is
li-
whether the
by
Wagner
v.
pressed
the Arizona court
censing
cosmetologists
and
consti-
barbers
Globe,
City
150 Ariz.
tial damages. This to the liable HALL, Petitioner William K. exception to limited this narrow has Court Below, Appellant, v. employees were terminated instances action; legal truthfully in a testifying of the West reporting intentional violations THE BOARD OF EDUCATION OF THE and Protection Virginia Consumer Credit MINGO, Respondent COUNTY OF test;
Act; refusing polygraph to take a exer- Below, Appellee. rights; refus- cising their State constitutional operate a with ing to motor vehicle unsafe Hall, K. Petitioner William brakes; with reporting problems staffing Below, Appellant, safety hospital. ex- patient These protect public from ceptions properly health, well-being, to their financial threats County The Board Education of rights, guarantee constitutional Howard, Mingo, Matney, Ron Joe system. operation legal Such effective Crum, Below, Respondents Ap T. Joel weighty mаtters are contrast in blatant pellees. mandatory licensing and cos- of barbers motiva- metologists. I am not of all certain Nos. 28396. passage licensing tions behind provision, suppose I primary but motivation Supreme Appeals of Court protect from bad haircuts. deplore I a bad as much as While haircut Nov. 2000. Submitted pro- I am I can person, next confident myself from bad haircut without tect Decided Dec. government’s assistance. sum, case this makes bad because it that a
establishes
now can be found the most obscure and
petty regulation and to further used employment-at-will doctrine.
erode you agencies
When consider that executive King
chum like chums Stephen out rules out
novels, scary development. Finally, this is wary duty-to-tell regulations.
I am of these regulations applied
If such are ensure the
public’s they legiti- safety well-being, are applied provisions promul-
mate. When
gated by the Board of Barbers and Cosme-
tologists, these move us closer to Therefore,
Big I Brother. dissent.