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Fugate v. Frontier West Virginia, Inc.

United States District Court, S.D. West Virginia, Charleston Division

July 19, 2017

KERRY FUGATE, Plaintiff,
v.
FRONTIER WEST VIRGINIA, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON DISTRICT JUDGE.

         Pending is Defendant's Partial Motion to Dismiss the Amended Complaint. (ECF No. 22.) The motion will be GRANTED.

         I. BACKGROUND

         The following facts are drawn from the Amended Complaint. For purposes of the Partial Motion to Dismiss, they are regarded as true.

         Plaintiff Kerry Fugate began working for Defendant Frontier West Virginia, Inc. (“Frontier”)[1] in 1998. (Compl. ¶ 7.) Over the course of the next decade, he met or exceeded performance standards and received favorable performance reviews from his employer. In 2008, Plaintiff's mother grew ill. Plaintiff developed serious health conditions of his own during the same period. Between tending to his mother's condition and nursing his own illness, Plaintiff required several weeks of leave under the Family Medical Leave Act (“FMLA”) in 2009 and 2010. Over time, Plaintiff's absence from work led Frontier to advance him along the company's progressive discipline plan. On January 14, 2015, Frontier terminated Plaintiff's employment. Plaintiff alleges that his discipline and termination were motivated by unlawful retaliation.

         Plaintiff brought suit against Frontier on January 12, 2017, invoking the Court's federal question jurisdiction under 28 U.S.C. § 1331. He amended the Complaint on March 16, 2017. The Amended Complaint contains six counts. Count I alleges retaliatory discharge in contravention of a substantial public policy of the State of West Virginia; Counts II and III allege interference with FMLA rights and FMLA retaliation; Count IV alleges disability discrimination under the West Virginia Human Rights Act, W.Va. Code § 5-11-1 et seq.; Count V alleges negligent infliction of emotional distress (“NIED”); and Count VI alleges outrage. Frontier moves to dismiss Counts I, IV, V, and VI. Having been fully briefed, the Partial Motion to Dismiss is ready for disposition.

         II. LEGAL STANDARD

         A motion to dismiss for failure to state a claim upon which relief may be granted tests the legal sufficiency of a civil complaint. Fed.R.Civ.P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court observed that a case should be dismissed for failure to state a claim upon which relief can be granted if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. A court decides whether this standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer that “the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         III. DISCUSSION

         A. Count I-Wrongful Discharge in Violation of Substantial Public Policy

         Frontier puts forward a two-pronged argument in support of dismissal of Count I. It begins with the observation that Plaintiff was a union employee covered by a collective bargaining agreement while employed with Frontier. Frontier argues that the common law retaliatory discharge claim alleged in Count I, first recognized in Harless v. First National Bank, 246 S.E.2d 270 ( W.Va. 1978), is available only to at will employees. Second, Frontier contends that the FMLA-a federal statute-cannot serve as the source of public policy animating a Harless claim. Because the Court finds that Harless does not apply to contract employees like Plaintiff, Frontier's second argument is moot.

         The Supreme Court of Appeals of West Virginia has recognized a cause of action for wrongful discharge in violation of public policy as a limited exception to the employment at-will doctrine. Harless, 246 S.E.2d at 275. In Harless, West Virginia's highest court held:

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.

Syl. Pt. 1, id. at 271. Citing this holding, Frontier argues that contract employees may not maintain a policy-based wrongful discharge action. The Supreme Court of Appeals of West Virginia has not parsed the question beyond the Harless decision, though it recently intimated that an employee governed by a collective bargaining agreement may not be considered at will for purposes of bringing a Harless claim. Frohnapfel v. ArcelorMittal USA LLC, 772 S.E.2d 350, 354 ( W.Va. 2015).

         Frohnapfel presented the issue of whether a particular West Virginia statute established a substantial public policy for purposes of a policy-based wrongful discharge claim. Initiating a discussion of the Harless decision, the court noted that it would “not opine on whether Mr. Frohnapfel qualified as an at-will employee in view of the collective bargaining agreement that controlled the terms of his employment.” Id. at 354 n. 9. Nevertheless, Frohnapfel cited a case holding that an employee governed by a collective bargaining agreement is not an at-will employee capable of bringing a common law retaliatory discharge claim. Id. (citing Lambs v. Briggs Mfg., 700 F.2d 1092, 1093-94 (7th Cir. 1983)). Other courts have similarly so held. See Egan v. Wells Fargo Alarm Servs., 23 F.3d 1444, 1446-47 (8th Cir. 1994) (where provisions of collective bargaining agreement supported conclusion that plaintiff was a contract employee, Missouri public-policy exception to the at-will doctrine did not apply); Claggett v. Wake Forest Univ., 486 S.E.2d 443, 448 ( N.C. 1997) (dismissing wrongful discharge action brought by a university professor covered by contract and subject to discharge only for just cause); see also Cullen v. E.H. Friedrich Co., Inc., 910 F.Supp. 815, 821 (D. Mass. 1995) (cause of action for wrongful discharge ...


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