Supreme Court rejects fired DHHS worker's constructive discharge claim

By Nathan Bass | May 30, 2013

CHARLESTON – A woman who alleged she was fired as a result of her whistleblowing activities got no relief from the state’s high court when it found that her lawsuit fell outside the statute of limitations for a whistleblower action.

The court affirmed the Circuit Court of Randolph County’s dismissal of the action with its unanimous May 24 memorandum decision.

Plaintiff Julie Broschart was terminated from her position as a child services worker with the West Virginia Department of Health & Human Resource on Aug. 25, 2010. She was alleged to have allowed a minor under her care use her cell phone to contact an adult in another state with photographs and conversation of a sexual nature, the opinion states.

In March 2011 Broschart filed a complaint alleging damages for the tort of “outrage, constructive discharge, violations of the employee handbook or manual, and a whistleblower claim.” She alleged that she was terminated as punishment for having previously informed her superiors of violations of internal procedure by other employees.

According to the opinion, each of the causes of action in the complaint were based on her alleged reports of wrongdoing within the organization.

On May 31, 2011, DHHS filed a motion to dismiss the case as being barred by West Virginia Code § 6C-1-4(a), which requires that a whistleblower action be brought within 180 days of the underlying claim and that the latest that Broschart could have brought the claim was March 24, 2011, four days prior to the date she actually filed.

The circuit court granted the motion to dismiss based on its finding that all of the actions alleged in the complaint were claimed to be the result of whistleblowing activities and therefore barred by the 180-day statute of limitations.

The court wrote, “On appeal, petitioner argues that a whistleblower law is not an exclusive remedy, but is intended to give an additional remedy under law for whistleblowers.

“Petitioner further argues that the circuit court erred in its application of the discovery rule because a question of fact exists as to when petitioner’s constructive discharge occurred, as well as applying the 180 day statute of limitation to the tort of outrage, constructive discharge, and violations of employee manuals claims.

“Respondent argues that petitioner reads the circuit court’s holding too broadly, and that West Virginia Code § 6C-1-1, et seq., provides an exclusive remedy only when employees are wrongfully discharged for engaging in whistleblowing activities, not for all wrongful discharges.

“Respondent argues that the 180 day statute of limitation applies due to the underlying factual basis and that petitioner is being disingenuous in arguing that her constructive discharge could have occurred any time after her last day of employment.

“The Court has carefully considered the merits of each of petitioner’s arguments as set forth in his petition for appeal. This Court has previously held that we consider a circuit court’s order granting a motion to dismiss under a de novo standard of review.

“Petitioner has not shown that the factual findings here were anything other than a whistleblower action, therefore the 180-day statute of limitations applies. Finding no error in the circuit court order dismissing petitioner’s claims, we affirm.”

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