United States District Court, S.D. West Virginia, Charleston Division
JOHN D. DANIELS, Plaintiff,
AMERICAN WATER WORKS SERVICE COMPANY, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is Plaintiff, John Daniels' Motion to
Remand [ECF No. 12]. The motion is ripe for adjudication. For
the reasons stated herein, the court GRANTS in
part and DENIES in part the Motion
to Remand [ECF No. 12].
plaintiff, John Daniels, commenced this action by filing a
four-count complaint in the Circuit Court of Kanawha County,
West Virginia. Compl. [ECF No. 1-2]. The plaintiff's
four-count Complaint arises out of the alleged wrongful
termination of his employment. Specifically, the Complaint
alleges three counts of West Virginia Human Rights Act
violations and one count of retaliatory discharge in
violation of substantial West Virginia public policies.
Id. The retaliatory discharge count, which is at
issue here, states
Defendants' acts and/or omissions constitute unlawful
discriminatory practices, which violated substantial public
policies of the State of West Virginia as set forth in W.Va.
Code § 21-3-1; the Family and Medical Leave
Act, 29 U.S.C. § 2601, et seq., including but not
limited to §§ 2615; and the Occupational Safety and
Health Act, 29 U.S.C. § 651, including but not limited
to § 654. Accordingly, Defendants' actions
constitute retaliatory/wrongful discharge in violation of
substantial public policy pursuant to Harless v. First
Nat'l Bank, 246 S.E.2d 270 (1978).”
Id. at 9.
defendants, American Water Works Company, Inc. and American
Water Works Service Company, Inc. removed the action to
federal court, with co-defendant Jason Kessler's consent.
See Not. Removal [ECF No. 1]; Not. Consent Removal
[ECF No. 2]. The defendants based their removal on the
contention that the “plaintiff alleges violations of
the FMLA.” Not. Removal 6. The plaintiff moved to
remand the case, arguing that the cause of action alleged is
not one under the FMLA but one under state common law, as
articulated in Harless. See Pl.'s Mem.
Law Supp. Mot. Remand 3 [ECF No. 13].
Standard of Review
action may be removed from a state court to a federal court
if it is one over which the district court would have had
original jurisdiction. 28 U.S.C. § 1441(a). Federal
district courts have original jurisdiction over “all
civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
A cause of action arises under federal law “only when
the plaintiff's well-pleaded complaint raises issues of
federal law.” Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 63 (1987); see Custer v.
Sweeney, 89 F.3d 1156, 1165 (4th Cir. 1996)
(“[Courts] ordinarily . . . look no farther than the
plaintiff's complaint in determining whether a lawsuit
raises issues of federal law capable of creating
federal-question jurisdiction under 28 U.S.C. §
1331.”) This rule provides two distinct pathways into
federal court. Either (1) federal law creates the cause of
action, Franchise Tax Bd. v. Const. Laborers Vacation
Trust, 463 U.S. 1, 27 (1983)), or (2) the
plaintiff's claim raises “a federal issue, actually
disputed and substantial, which a federal forum may entertain
without disturbing any congressionally approved balance of
federal and state judicial responsibilities.”
Grable & Sons Metal Prods. Inc. v. Darue, 545
U.S. 308, 314 (2005).
case is removed to federal court, the removing party bears
the burden of establishing the federal court's
jurisdiction over the matter. Wilson v. Republic Iron
& Steel Co., 257 U.S. 92 (1921); Strawn et al.
v. AT&T Mobility, LLC et al., 530 F.3d 293, 296 (4th
Cir. 2008); Mulcahey v. Columbia Organic Chems. Co.,
29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction must
be strictly construed. Mulcahey, 29 F.3d at 151. If
federal jurisdiction is doubtful, the federal court must
remand the case. Id.
defendants assert that the plaintiff's complaint
“alleges violations of the FMLA.” Not. Removal 3.
Specifically, the defendants state that “[i]n his
Complaint at Count IV, or his retaliatory discharge in
violation of public policy claim, Plaintiff alleges
Defendants violated two federal statutes: the Family and
Medical Leave Act . . . and the Occupational Safety and
Health Act. . . .” Resp. Opp. To Pl.'s Mot. Remand
1-2 [ECF No. 16]. Despite the defendants' contentions,
the plaintiff does not allege FMLA or OSHA violations.
Instead, the plaintiff alleges a claim for retaliatory
discharge in violation of a substantial West Virginia public
policy. Under West Virginia law, an at-will employee can
bring such a claim (a “Harless claim”)
when the employer's motivation for termination
contravenes a “substantial public policy
principal.” Harless v. First Nat'l Bank in
Fairmont, 289 S.E.2d 692 ( W.Va. 1982). To state a
Harless claim, the plaintiff must prove four
elements, the first of which is relevant to this analysis:
“(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).” Herbert J. Thomas
Mem'l Hosp. Assoc. v. Nutter, 238 W.Va. 375, 386
in alleging a Harless claim, the plaintiff is
required to state a clear manifestation of the public policy
that was allegedly violated. There is no indication, other
than mere reference to the FMLA and OSHA, that the plaintiff
intended to pursue any federal claims. The
“well-pleaded complaint rule is designed to protect the
plaintiff from a defendant reading a cause of action into a
complaint when none is stated. . . . The rule is designed to
allow the plaintiff the right to choose the forum.”
Spaulding v. Mingo Cty. Bd. of Educ., 897 F.Supp.
284, 287 (S.D. W.Va. 1995); see Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987) (“The rule
makes the ...