United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, JUDGE
before the Court is Defendant's Partial Motion to Dismiss
(ECF No. 6) pursuant to Federal Rule 12(b)(6). Defendant
filed an Answer on May 12, 2017 (ECF No. 5) but did not file
this Motion until May 24, 2017. As Defendant filed its Motion
after its responsive pleading, Defendant's Motion is
untimely. However, Federal Rule 12(h)(2) provides that
“[f]ailure to state a claim upon which relief can be
granted … may be raised … by a motion under
Rule 12(c).” Fed.R.Civ.P. 12(h)(2). Accordingly, the
Court converts Defendant's Motion to Dismiss into a
Motion for Judgment on the Pleadings pursuant to Federal Rule
12(c). For the following reasons, the Court
GRANTS Defendant's Motion for Judgment
on the Pleadings (ECF No. 6) for Counts II and III.
filed suit against Defendant for alleged sex and disability
discrimination in the workplace that culminated in
Plaintiff's termination. See Pl.'s Compl.,
ECF No. 1-1. Plaintiff began working for Defendant in the
fall of 2006, holding positions of senior representative,
sales representative, and experience specialist at different
points during his employment. Id. at ¶¶
7-8. In January of 2016, Plaintiff's supervisor advised
Plaintiff to attend speech therapy. Id. at ¶
10. The supervisor indicated that Plaintiff's speech
prevented Defendant from promoting and otherwise advancing
Plaintiff within the company. Id. at ¶ 11.
Although Plaintiff had not been diagnosed with any speech
impediment, Plaintiff began attending speech therapy sessions
to comply with Defendant's request and secure his
continued employment. Id. at ¶¶ 12-13.
Plaintiff attended five sessions before quitting due to the
expense of the sessions. Id. at ¶¶ 14-15.
However, when asked by Plaintiff's supervisor about the
status of Plaintiff's speech therapy, Plaintiff said he
continued attending sessions, explaining that Plaintiff
feared he would lose his job if Defendant knew he stopped.
Id. at ¶ 16. Plaintiff later sought a promotion
but Defendant refused, blaming errors made by Plaintiff's
co-workers. Id. at ¶¶ 17-18.
fall of 2016, Plaintiff allegedly learned of an exchange of
sexually explicit photographs between the manager of
Defendant's Ashland, Kentucky store and one of the female
employees. Id. at ¶ 23. During this same
period, Defendant eliminated various positions at the stores
in Kentucky and West Virginia. Id. Plaintiff
believed that he had the most experience and was the most
qualified employee at Defendant's store. Id. at
¶ 24. However, Defendant terminated Plaintiff and
retained the female employee and supervisor who had exchanged
the sexually explicit photographs. Id. at ¶ 25.
Complaint alleges three causes of action for the alleged
discriminatory conduct. Count I alleges that Defendant
regarded Plaintiff as having a disability and intentionally
discriminated Plaintiff for that disability with disciplinary
action and termination. Id. at ¶¶ 28-36.
Count II alleges a common law cause of action for wrongful
discharge in violation of public policy, citing disability
and sex discrimination. Id. at ¶¶ 37-47.
Count III alleges that Defendant's actions in terminating
Plaintiff amounted to a case of outrage-or intentional
infliction of emotional distress. Id. at
¶¶ 48-52. Plaintiff requests actual damages,
compensatory damages, punitive damages, and attorney's
fees and costs. See generally id.
analyzing a party's motion for judgment on the pleadings
pursuant to Federal Rule 12(c), the Fourth Circuit has
indicated that the applicable standard is the same as a
motion to dismiss pursuant to Federal Rule 12(b)(6), noting
that the “distinction is one without a
difference.” Burbach Broad Co. of Del. v. Elkins
Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). To
overcome a motion for judgment on the pleadings, a complaint
must be plausible. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 546 (2007). This standard requires a plaintiff to
set forth the “grounds” for an
“entitle[ment] to relief” that is more than mere
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Id. at 555 (internal quotations and citations
omitted). A complaint must contain “sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotations and citation
omitted). Facial plausibility exists when a claim contains
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
the factual allegations in the complaint as true (even when
doubtful), the allegations “must be enough to raise a
right to relief above the speculative level ….”
Twombly, 550 U.S. at 555 (citations omitted). If the
allegations in the complaint, assuming their truth, do
“not raise a claim of entitlement to relief, this basic
deficiency should … be exposed at the point of minimum
expenditure of time and money by the parties and the
court.” Id. at 558 (internal quotations and
citations omitted). Finally, “[a]lthough for the
purposes of a motion [for judgment on the pleadings] we must
take all of the factual allegations in the complaint as true,
we are not bound to accept as true a legal conclusion couched
as a factual allegation.” Iqbal, 556 U.S. at
678 (internal quotations and citation omitted).
Motion for Judgment on the Pleadings challenges Count II and
Count III of Plaintiff's Complaint. See Def.'s
Mem. of Law in Supp., ECF No. 7. Count II alleges a
common law cause of action for wrongful discharge in
violation of public policy, and Count III alleges a common
law cause of action for outrage. See Pl.'s
Compl., ECF No. 1-1. Defendant argues that neither cause
of action states a plausible claim because both are
superseded by the West Virginia Human Rights Act (WVHRA).
See Def.'s Mem. of Law in Supp., ECF No. 7, at
1. Plaintiff argues that the statutory scheme under the WVHRA
does not preclude common law causes of action. See
Pl.'s Resp., ECF No. 8, at 1.
Wrongful Discharge in Violation of Public Policy
Virginia generally follows the common law rule that an
employer can terminate an employee at will without
explanation. See Harless v. First Nat'l Bank in
Fairmont, 246 S.E.2d 270, 275 (W.Va. 1992). However, the
Supreme Court of Appeals of West Virginia in Harless
recognized that when “the employer's motivation for
the discharge contravenes some substantial public policy
principle, then the employer may be liable to the employee
for damages occasioned by the discharge.” Id.
This exception forms the cause of action for wrongful
discharge in violation of public policy. To prevail on this
claim, the plaintiff must establish that a substantial public
policy exists. Wounaris v. W.Va. State Coll., 588
S.E.2d 406, 413 (W.Va. 2003). Once established, the plaintiff
must show by a preponderance of the evidence that the
“discharge was motivated by an unlawful factor
contravening that policy.” Id. (citation
omitted). The defendant will incur liability on the discharge
unless the defendant can demonstrate by a preponderance of
the evidence that the employee would have suffered the same
termination absent an unlawful motive. Id.
argues that Plaintiff cannot maintain a cause of action for
wrongful discharge in violation of public policy because the
WVHRA supersedes that common law claim. Def.'s Mem.
of Law in Supp., ECF No. 7, at 3-5. The courts in this
district have largely recognized that when a statutory scheme
provides a public policy and a private cause of action for a
violation of that policy, the plaintiff cannot bring a claim
under the common law Harless-type action. See
Talley v. Caplan Ind., Inc., Civ. No. 2:07-67, 2007 WL
634903, at *2 (S.D. W.Va. Feb. 26, 2007) (citing various
cases from the Southern District of West Virginia prohibiting
Harless actions). The WVHRA undisputedly details the
state's public policy against discrimination based on
disability and sex. See W.Va. Code § 5-11-9.
The WVHRA also provides for a civil cause of ...