United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court is a Partial Rule 12(b)(6) Motion to Dismiss
by Defendants Gabriel Brothers, Inc. and Michelle Conatser
(ECF No. 12), Defendants' Motion to Strike
Plaintiff's “Sur-Reply” in Support of her
Opposition to Defendants' Partial Rule 12(b)(6)
to Dismiss (ECF No. 18), and Plaintiff Helen Rice's
Motion for Leave to File “Sur-Reply to Defendants'
Response. ECF No. 19. For the following reason, the Court
GRANTS the motion to dismiss by Defendants
and Plaintiff's motion to file a “Sur-Reply”
and DENIES Defendants' motion to strike.
relevant to this motion, Plaintiff asserts in her Amended
Complaint that she was employed by Defendant Gabriel
Brothers, Inc., beginning in December of 2013. Am.
Compl. at ¶5, ECF No. 11. In May of 2015, Plaintiff
requested leave under the Family Medical Leave Act (FMLA) for
a medical problem. Id. at ¶8. A few months
later, Gabriel Brothers hired Defendant Michelle Conatser as
the General Manager/Store Manager for the store where
Plaintiff worked. Id. at ¶10. According to
Plaintiff, Ms. Conatser called her when she was off sick and
told her “you need to rethink your position with the
company. We need someone reliable who is not sick all the
time.” Id. at ¶11. Thereafter, Plaintiff
alleges that Ms. Conatser refused to allow her to take off
work for some of her scheduled doctor's appointments,
scolded her when she missed work for a medical appointment,
and began giving her warnings about her performance.
Id. at ¶¶12-14. Plaintiff states she
received no disciplinary actions or write-ups prior to Ms.
Conatser being hired. Id. at ¶10.
December 2015, Plaintiff asserts that she learned that Ms.
Conatser was improperly altering the payroll records of
certain employees. Id. at ¶¶19-26.
Plaintiff states that she reported the problem to the
Regional Manager of Loss Prevention. Id. at
¶26. Subsequently, Plaintiff states she was terminated
by the District Manager on January 7, 2016. Id. at
Complaint, Plaintiff sets forth four causes of action: (1)
disability discrimination under the West Virginia Human
Rights Act; (2) retaliatory discharge in violation of a
substantial public policy for reporting Ms. Conatser's
misconduct; (3) interference with Plaintiff's rights
under the FMLA; and (4) retaliation for exercising and
engaging in conducted protected by the FMLA. In their motion,
Defendants argue that Plaintiff's second cause of action
must be dismissed under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim because
Plaintiff has failed to allege the source of the substantial
public policy Defendants purportedly violated.
STANDARD OF REVIEW
ruling on a motion made pursuant to Rule 12(b)(6), the Court
looks to the analysis set forth by the United States Supreme
Court in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009). In Twombly, the United States Supreme Court
disavowed the “no set of facts” language found in
Conley v. Gibson, 355 U.S. 41 (1957), which was long
used to evaluate complaints subject to 12(b)(6) motions. 550
U.S. at 563. In its place, courts must now look for
“plausibility” in the complaint. 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 quotation marks and
citations omitted). Accepting 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 . . . .” Id. (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 quotation marks
and citations omitted).
in Iqbal, the Supreme Court reiterated that Rule 8
does not demand “detailed factual allegations[.]”
556 U.S. at 678 (internal quotation marks and citations
omitted). However, a mere “unadorned,
the-defendant-unlawfully-harmed-me accusation” is
insufficient. Id. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Id. (quoting
Twombly, 550 U.S. at 570). 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 Supreme Court continued
by explaining that, although factual allegations in a
complaint must be accepted as true for purposes of a motion
to dismiss, this tenet does not apply to legal conclusions.
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citation omitted). Whether
a plausible claim is stated in a complaint requires a court
to conduct a context-specific analysis, drawing upon the
court's own judicial experience and common sense.
Id. at 679. If the court finds from its analysis
that “the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. (quoting, in part,
Fed.R.Civ.P. 8(a)(2)). The Supreme Court further articulated
that “a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual
Virginia is an “at will” employment state, which
generally means that an “at will” employee may be
discharged by an employer for any reason at any time.
Herbert J. Thomas Mem'l Hosp. Ass'n v.
Nutter, 795 S.E.2d 530, 540 ( W.Va. 2016) (footnote
omitted). However, there are various exceptions to this
general rule, “one of which is that an employee may not
be discharged to subvert public policy.” Id.
In the landmark case of Harless v. First National Bank
in Fairmont, 246 S.E.2d 270 ( W.Va. 1978), the
West Virginia Supreme Court declared:
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., id. Thus, under West Virginia law, an
aggrieved employee may bring a cause of action for wrongful
discharge if an employer terminates the employee in violation
of a substantial public policy. Nutter, 795 S.E.2d
at 541 (quoting Felicia ...