Labor & Employment Law Daily Wrap Up, TORT CLAIMS—W.D. Va.: Walmart worker fired after reporting manager gave him THC-laced gummies can’t advance public policy claim, (May 13, 2025)

By Marjorie Johnson, J.D.

The criminal codes on poisoning that the employee pointed to did not grant any specific rights, “and as there is no statutory right, there is no corresponding public policy.”

A former Walmart employee who claimed he was fired in retaliation for reporting to the police and the ethics hotline that a manager tricked him into eating THC-laced gummies failed to plausibly allege a common law claim of wrongful discharge in violation of Virginia public policy. Granting Walmart’s motion to dismiss, a federal district court held that the criminal code sections against poisoning upon which the employee relied did not create a specific statutory right or corresponding public policy that would support applying an exception to the employment-at-will doctrine (Blake v. Walmart, Inc., No. 7:24-cv-00683-RSB-JCH (W.D. Va. May 7, 2025)).

Racism and retaliation. In February 2020, Walmart hired the employee as a loss prevention manager at a Virginia store where he allegedly experienced racial discrimination and retaliation from his white supervisor. In October 2021, he was transferred to a different store and promoted, but the discrimination and retaliation continued.

THC-laced gummies. In June 2023, a store manager allegedly offered him what he believed to be “normal gummies.” After eating the candy, the manager asked him, “do you know what you ate?” to which he responded, “yes, just gummies, right?” The manager laughed and said, “you will see.” About an hour later he began to lose control of his movements, and the effects became so unbearable that he called 911 and was taken to the hospital.

Fired after reporting being drugged. He suspected the gummies contained THC, which he reported to the police. He also notified Walmart’s ethics department that he had been drugged by the manager. On September 9, 2023, Walmart fired him for allegedly making an inappropriate comment to a female coworker, which he claimed was a pretextual ground for termination.

Bowman claim. In addition to bringing claims against Walmart for discrimination and retaliation, the employee also brought a common law Bowman claim for wrongful discharge. In Virginia, so-called Bowman claims stem from the Supreme Court of Virginia’s decision in Bowman v. State Bank of Keysville, where the state’s high court first recognized an exception to the employment-at-will doctrine for employees who claim to have been discharged in violation of an established public policy. In Bowman, the employer discharged two employee stockholders in retaliation for their refusal to vote their stock in the way management demanded. The employer was held liable for wrongful discharge because its coercion violated the policy underlying a state statute that conferred on the employees as stockholders the right to vote “free of duress and intimidation” by corporate management.

Criminal statute on poisoning. To support his Bowman claim, the employee pointed to Virginia criminal statutes that make administering poison or adulterating substances with the intent to kill or injure another a Class 3 felony, and specify penalties for assault, including when the victim is selected because of his race. He alleged Walmart retaliated against him “for opposing these statutory violations” by terminating him for notifying the police and Walmart’s ethics hotline of the violations of the law.

Narrow exception. The district court noted that the Supreme Court of Virginia continues to characterize the Bowman exception as “narrow,” and has only recognized a cognizable claim: (1) where an employer discharged an employee for exercising a statutorily created right; (2) when the public policy is “explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy;” or (3) “where the discharge was based on the employee’s refusal to engage in a criminal act.”

No statutory right. Here, the issue was whether the employee could ground his Bowman claim on a criminal statute where he did not allege that he was fired for resisting the employer’s coercion to violate the statute, but instead claimed that the employer’s behavior violated the public policy expressed in the criminal statute. This issue was determinative, explained the district court, because the Supreme Court of Virginia held in its answer to a certified question in the case of Rowan v. Tractor Supply Co. that the state’s criminal obstruction of justice statute did “not grant a person involved in a criminal prosecution any specific right” and thus no Bowman claim existed in that case.

The state’s high court distinguished the case from Bowman, where the public policy that was found to have been violated by the employer existed to protect the exercise of a statutory right—specifically, “the shareholders right to vote shares granted by the statute.” But the obstruction of justice statutes at issue in Rowan provided “no statutory right and, therefore, there exists no corresponding public policy necessary to protect the right.”

The same reasoning applied here. Unlike the shareholders right in Bowman to vote their shares free of coercion from their employer, the criminal codes the employee pointed to did not grant any specific rights, “and as there is no statutory right, there is no corresponding public policy,” explained the district court. “Further, the Supreme Court of Virginia has made clear that just because criminal statutes have an underlying policy of the protection of the public’s safety and welfare, that does not necessarily support a Bowman claim.”

The case is No. 7:24-cv-00683-RSB-JCH.

Judge: Ballou, R.

Attorneys: Christopher Earl Collins (Yugo Collins) for Joshua Blake. Gilda Bethany Ingle (Littler Mendelson) for Walmart Inc.

Companies: Walmart Inc.

Cases: TortClaims Discharge Retaliation Whistleblowers StateLawClaims VirginiaNews