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Rice v. Gabriel Brothers, Inc.

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

May 23, 2018

HELEN RICE, Plaintiff,
GABRIEL BROTHERS, INC., a domestic corporation and MICHELLE CONATSER, an individual, Defendants.



         Pending 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)

         Motion 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.


         As 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.

         In 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 ¶27.

         In her 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.


         In 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).

         Thereafter, 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 allegations.” Id.


         West 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 ...

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