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Collins v. Lowe's Home Centers, LLC

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

December 7, 2017

SEAN C. COLLINS, Plaintiff,
LOWE'S HOME CENTERS, LLC, and SCOTT HORSFIELD, individually and as Manager of Lowe's Home Centers, LLC, Defendants.



         Pending 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.

         Defendants requests the dismissal of Count IV of Plaintiff's five-count Complaint. Defendants contend that Count IV, claiming retaliatory discharge[1] 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”).

         I. BACKGROUND[2]

         Plaintiff's 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.

         Plaintiff 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.

         During 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.

         Finding 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.


         Federal 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).

         Accepting 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)).


         As 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 ( W.Va. 1984)).

         The 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 element);
(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 elements);
(4) The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).

Id. (citations omitted) (italicization original) (providing these factors as a summary of the four factors announced by Justice Davis in Feliciano v. 7-Eleven, Inc.).

         Plaintiff 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.

         a. The WVHRA supersedes one of Plaintiffs ...

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