CHARLESTON – A state correctional facility medical assistant lost in her appeal to the state Supreme Court when the court found her claim of retaliatory discharge was not supported by any substantial West Virginia public policy.
The memorandum opinion was filed on June 24 with justices Robin Jean Davis, Margaret L. Workman, Menis E. Ketchum, and Allen H. Loughry II concurring. Chief Justice Brent D. Benjamin was the lone dissenter.
Angela Bailey was employed by Wexford Health Sources, Inc. and working at the Huttonsville Correctional Facility of the West Virginia Division of Corrections as a medical assistant in 2009. Wexford was under contract with the state DOC to provide health care service to prisons throughout the state.
In her job as a medical assistant, Bailey drew blood from inmates, gave injections and took vital signs and measurements, among other medical services performed.
After drawing blood from an inmate on Aug. 5, 2009, Bailey accidentally splashed some of the inmate’s blood on her clothing and keys. She was alarmed because she believed that the spilled blood was contaminated with Hepatitis C, the opinion says.
Correctional Officer Wamsley was present in the lab when the spill occurred and he called Inmate Honaker, who was working as a janitor, into the lab to help with the clean-up of the spilled blood.
At some point, Bailey gave her keys to Honaker to clean them in the sink. Officer Wamsley was present in the entirety of the incident.
On Aug. 7, 2009, Wexford terminated Bailey’s employment for giving her keys to an inmate in violation of the key control policies of the DOC and Wexford.
Prior to the blood spill and her firing, Bailey had complained to her supervisor, Tristan Tenney, about the lack of medical supplies in the medical facility of the prison. She had gone as far as threatening to contact the U.S. Occupational Health and Safety Administration regarding her assertion that there were inadequate medical supplies.
In May 2010, Bailey filed a complaint with the Circuit Court of Kanawha County that was transferred to the Circuit Court of Randolph County in September 2011. Among her allegations was a claim for retaliatory discharge related to her having raised the issue of not having “enough medical supplies to properly carry out care and treatment of inmates.” She specifically cited the supplies lacking were “Band-Aids and gauze.”
In response to Wexford’s motion for summary judgment, Bailey argued that there was a public policy for an employer to maintain a safe working environment and cited the Occupational Safety and Health Act as public policy.
The circuit court granted Wexford’s summary judgment motion, finding that Bailey’s reliance on OSHA law was misplaced because it had no relationship to the allegation in the complaint about alleged insufficient medical supplies for the care and treatment of inmates. The court also found that Wexford has “an overriding business justification” for Bailey’s discharge due to her violation of company policy regarding the handling of keys.
Bailey appealed to the state High Court, asserting that the circuit court erred by finding that there was no substantial state public policy on which she could base her claim of retaliatory discharge. She argued that West Virginia public policy established inmates’ right to adequate medical care under West Virginia Code § 25-1-1.
West Virginia Code § 25-1-1 states in pertinent part:
The primary purpose of the Division of Corrections is to enhance public safety by providing for the incarceration and care of convicted offenders who have been sentenced by courts of proper jurisdiction to serve terms of incarceration. It is the intent of the Legislature:
3) to establish a just, humane and efficient corrections program; and
(b) This section shall be construed in favor of public safety.
“We begin by recognizing that in the State of West Virginia, employers and employees alike are generally governed by the at-will employment doctrine. Pursuant to this principle, when a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract," the opinion says.
“An exception to the at-will employment doctrine recognizes that, in spite of the right of employers to terminate their employees, one of the fundamental rights of an employee is the right not to be the victim of a ‘retaliatory discharge,’ that is, a discharge from employment where the employer’s motivation for the discharge is in contravention of a substantial public policy.
“In order to sustain a cause of action for retaliatory discharge, the public policy relied upon must not just exist; it must be substantial. Moreover, [t]he 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. (Feliciano v. 7-Eleven, Inc.)
“Turning now to the issue presently before the Court, we must decide whether an inmate’s right to adequate medical supplies, such as bandages, is a substantial public policy exception to support a cause of action for retaliatory discharge. This Court finds no substantial public policy in West Virginia law lending support to petitioner’s claim. While West Virginia Code § 25-1-1a does refer to a ‘just, humane and efficient corrections program,’ these words are too general to provide any specific guidance.
“Furthermore, this statute explicitly provides that the primary purpose of the DOC is to ‘enhance public safety’ by incarcerating convicted offenders. Similarly, Policy Directive 410.02 does not provide a substantial public policy related to petitioner’s complaint about adequate medical supplies. The provision does refer to ‘appropriate services and supplies... to promote the maintenance of acceptable levels of offender hygiene.’ Likewise, this phrase is too general to provide any specific guidance.
“For the foregoing reasons, we affirm the circuit court’s order granting summary judgment in favor of respondents. Petitioner has failed to cite a substantial public policy of West Virginia which provides her with a cause of action under the complaint. Therefore, as an at-will employee, she could be discharged with or without cause.”
In a footnote to the opinion, the court also agreed with the circuit court’s finding that OSHA was “not designed for the purpose of protecting inmates, and the well-being of inmates is wholly unrelated to workplace safety for employees.”