United States District Court, S.D. West Virginia, Huntington Division
SEAN C. COLLINS, Plaintiff,
LOWE'S HOME CENTERS, LLC, and SCOTT HORSFIELD, individually and as Manager of Lowe's Home Centers, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court is Defendants' Partial Motion to Dismiss
(ECF No. 9). As explained below, the Court GRANTS, IN
PART, and DENIES, IN PART,
Defendants' Partial Motion to Dismiss. Plaintiff's
Harless claim, in Count IV, premised upon the WVHRA
is DISMISSED. But, Plaintiff's
Harless claim, also in Count IV, premised upon the
FMLA remains viable.
requests the dismissal of Count IV of Plaintiff's
five-count Complaint. Defendants contend that Count IV,
claiming retaliatory discharge in violation of West Virginia
public policy (a “Harless claim”),
should be dismissed for three reasons: 1) Plaintiff's
complaint fails to provide the facts upon which a retaliatory
discharge claim can be stated; 2) a retaliatory discharge
claim cannot be based upon the Family and Medical Leave Act
(“FMLA”) and that West Virginia has no
substantial public policy that reflects the concerns of the
FMLA; and 3) Plaintiff's retaliatory discharge claim is
preempted by the statutory cause of action under the West
Virginia Human Rights Act (“WVHRA”).
claims arise out of an employment relationship gone-bad. For
nearly 20 years, Plaintiff worked for Lowes Home Centers, LLC
(“Defendant Lowes”), one of the defendants.
Compl., ECF No. 1, ¶ 8. Plaintiff received a
litany of awards and commendations during his employment with
Defendant Lowes, even earning the impressive title of
“The Legend.” Id. at ¶ 8-9.
developed this folkloric reputation despite personal
challenges. Throughout his career, Plaintiff received
treatment for diabetes and high blood pressure. Id.
at ¶ 10. In addition to his own ailments,
Plaintiff's wife suffered from her own serious health
conditions. Id. at ¶ 12. Plaintiff had notified
Defendants of his and his wife's heath concerns.
Id. at ¶ 5, 43. In order to care for both
himself and his wife, Plaintiff notified Defendants of his
potential need to take some time off from work. Id.
at ¶ 43. It is with this development that Plaintiff
claims “The Legend” began to unravel.
the course of his employment, Plaintiff claims that Defendant
Scott Horsfield (“Defendant Horsfield”)
discriminated against Plaintiff. Believing, in good faith,
that Defendant Horsfield, Plaintiff's manager, had
discriminated against Plaintiff in a way he believed was in
violation of West Virginia and federal law, Plaintiff
reported these concerns to Defendant Lowes. Id. at
¶ 15, 16, 59. 60. Plaintiff claims that Defendant Lowes
terminated his employment because of Plaintiff's
reporting of his concerns. Id. at ¶ 61, 64.
Further, Plaintiff contends that the reason given by
Defendant Lowes's for firing Plaintiff was pretextual.
Id. at ¶ 18-22, 70.
his termination objectionable, Plaintiff filed the complaint
that commenced this action on March 16, 2017. Plaintiff's
complaint contained five counts arising out of his employment
and subsequent firing: (1) Interference With Rights Under the
Family and Medical Leave Act; (2) Discrimination/Retaliation
for Exercising Rights and Engaging in Protected conduct Under
the Family and Medical Leave Act of 1993; (3) Disability
Discrimination (under West Virginia Human Rights Act); (4)
Retaliatory Discharge in Violation of West Virginia Public
Policy; and (5) Violation of West Virginia Wage Payment and
Collection Act. See generally Compl. In their
Partial Motion to Dismiss, Defendants only moved to dismiss
Count IV that claimed retaliatory discharge in violation of
West Virginia public policy. Defs.' Partial Mot. to
Dismiss, ECF No. 9, at ¶ 2. With the partial motion
fully briefed, the matter is ready for adjudication.
STANDARD OF REVIEW
Rule 8(a) requires a complaint to include “a short and
plain statement of the claim … showing entitle[ment]
to relief.” Fed.R.Civ.P. 8(a)(2). To overcome a motion
to dismiss under Federal Rule 12(b)(6), a complaint must
state plausible claims. 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, 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).
“Although for the purposes of a motion to dismiss 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).
Finally, a court must also “draw[ ] all reasonable
factual inferences from those facts [alleged] in the
plaintiff's favor . . . .” Martin v.
Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (internal
quotations omitted) (quoting Veney v. Wyche, 293
F.3d 726, 730 (4th Cir. 2002) (internal citations omitted)).
noted above, Defendants challenge Count IV of Plaintiff's
Complaint that states a claim for common law retaliatory
discharge. In West Virginia, an employer's absolute right
to discharge an at-will employee is tempered by common law
considerations. See Syl. pt. 4, Herbert J.
Thomas Memorial Hosp. Ass'n v. Nutter
(“Thomas”), 795 S.E.2d 530 ( W.Va.
2016). Where the employer's motivation for termination
contravenes a “substantial public policy principal,
” then the employee has a cause of action for
retaliatory discharge in violation of public policy (a
“Harless claim”). Id.; see
also Harless v. First Nat'l Bank, 246 S.E.2d 270,
275 ( W.Va. 1978). To establish substantial public policy for
a Harless claim, courts should “look to
established precepts in [West Virginia's] constitution,
legislative enactments, legislatively approved regulations,
and judicial opinions. Williamson v. Greene, 490
S.E.2d 23, 31 ( W.Va. 1997) (quoting Syl. pt. 2,
Birthisel v. Tri-Cities Helath Servs. Corp., 424
S.E.2d 606 ( W.Va. 1992)). The term “substantial public
policy” is intended to “exclude claims that are
based on insubstantial considerations.” Birthisel
v. Tri-Cities Helath Servs. Corp., 424 S.E.2d 606, 612 (
W.Va. 1992). “Substantial public policy” also
encapsulates the implication that the public policy principal
provides both specific and recognized guidance for employers.
Id. The existence of a substantial public policy for
a Harless claim is a question of law, not one of
fact. Thomas, 795 S.E.2d at 541 (citing Syl. pt. 1,
Cordle v. Gen. Hugh Mercer Corp., 325 S.E.2d 111 (
Supreme Court of Appeals of West Virginia (“West
Virginia Supreme Court”) has provided four elements
necessary to state a claim for retaliatory discharge:
(1) That a clear public policy existed and was manifested in
a state or federal constitution, statute or administrative
regulation, or in the common law (the clarity
(2) That dismissing employees under circumstances like those
involved in the plaintiff's dismissal would jeopardize
the public policy (the jeopardy element);
(3) That plaintiff's dismissal was motivated by conduct
related to the public policy (the causation
(4) The employer lacked overriding legitimate business
justification for the dismissal (the overriding
Id. (citations omitted) (italicization original)
(providing these factors as a summary of the four factors
announced by Justice Davis in Feliciano v. 7-Eleven,
has asserted two Harless claims, one premised upon
the public policy emanating from the WVHRA, and the other
premised upon a potential public policy derived from the
FMLA. Compl. ¶ 58, 59, 60, 64, 66. With the
background of a retaliatory discharge claim laid out, the
Court will examine each of the Plaintiff's
Harless claims in turn.
The WVHRA supersedes one of Plaintiffs ...