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Blackwood v. Berry Dunn, LLC

United States District Court, S.D. West Virginia

May 29, 2019

JULIA E. BLACKWOOD, Plaintiff,
v.
BERRY DUNN, LLC, NICOLE Y. BECNEL, and JANE DOES, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Pending is the joint motion to dismiss plaintiff's complaint, filed by defendants Berry Dunn, LLC (“Berry Dunn”) and Nicole Becnel (collectively, “the defendants”) on August 15, 2018. Also pending is plaintiff's “Motion for Leave to File Motion to Remand Instanter” (which is simply a request to file a late response), filed September 24, 2018, which motion is granted as set forth below.

         I. Background

         Plaintiff Julia E. Blackwood, a citizen of West Virginia, worked for Berry Dunn, a Maine corporation with its principal place of business in Maine, as a contract employee. Compl. ECF No. 1-1, at ¶ 16. On February 25, 2016, Ms. Blackwood was offered and accepted “full-time employment with Berry Dunn as a Senior Consultant . . . with her employment to start on April 5, 2016.” Id. ¶ 20. Ms. Becnel, a resident of West Virginia, was the manager of Berry Dunn's Charleston office and was responsible for assigning projects to senior consultants such as Ms. Blackwood. Id. ¶ 9. Ms. Becnel, however, assigned the more lucrative positions only to a particular group of her “close personal friends and confidants within the office, ” excluding Ms. Blackwood. Id. ¶ 12.

         Ms. Blackwood, at some point not specified in the complaint, began to question the propriety of certain billing practices of Berry Dunn. Id. ¶¶ 22-28. Around the time she began this questioning, Ms. Blackwood noticed discussions of particularly lavish spending by Ms. Becnel on events she “privately hosted for the State employee assigned with oversight responsibility on the Berry Dunn State consulting contracts.” Id. ¶ 29. Ms. Blackwood believes that her questioning of Berry Dunn's state billing practices led Ms. Becnel to initiate “an internal campaign of discrimination, intentional harassment, invasion of privacy and defamation of Ms. Blackwood.” Id. ¶ 30.

         At the direction of Ms. Becnel, other employees secretly photographed Ms. Blackwood with her eyes closed while she was on her lunch break in the office, though Ms. Blackwood never consented to having her picture taken. Id. ¶ 35-38. Ms. Blackwood became aware of the photographs taken by employees of Berry Dunn at the direction of Ms. Becnel on May 2, 2017 when she received the pictures from defendants' counsel. Id. ¶ 53.

         On March 16, 2017, Ms. Becnel informed Ms. Blackwood that she had been fired because she had fallen asleep on the job on three separate occasions. Id. ¶ 31. Ms. Becnel is further alleged to have discussed Ms. Blackwood's confidential employment information with other employees. Id. ¶ 32.

         On March 17, 2017, a day after Ms. Blackwood was informed that her employment was being terminated, Berry Dunn's director of human resources, Debra Genender, informed Ms. Blackwood by electronic mail that she would be paid, in addition to the payment for her eight hours of work the previous day and for her fifty-five hours of accrued vacation time, three weeks' severance, amounting to $4, 038.46. Id. ¶¶ 42-44. Ms. Blackwood alleges she was “unconditionally promised she was ‘being given'” this severance pay; and, as a consequence, that she made purchases and committed to making other payments “in the approximate amount of the severance payments.” Id. ¶¶ 44-45. When Berry Dunn learned that Ms. Blackwood had retained counsel in connection with her employment termination, they refused to pay the three weeks' severance unless she released all potential claims against them and subjected herself to restrictions in seeking future employment. Id. ¶¶ 45-47. The conditions placed on Ms. Blackwood's receiving the severance pay are alleged to have caused her “substantial emotional distress accompanied by physical injury, ” and Berry Dunn is purported to have attempted to leverage those injuries to “force Ms. Blackwood to release her lawful claims against” the defendants. Id. ¶¶ 48-52.

         On May 5, 2017, Berry Dunn's counsel sent Ms. Blackwood a second electronic letter in which they stated that if she chose to pursue her claims, the pictures of her sleeping at work would undoubtedly become a part of the public record and might hinder her ability to obtain future employment. Id. ¶ 54. Berry Dunn further stated that in the interest of keeping those photographs from becoming public, it would be in “Ms. Blackwood's interest to execute the separation agreement that she has been offered, so both parties can move forward.” Id.

         Ms. Blackwood initiated this action in the Circuit Court of Kanawha County on March 16, 2018. She asserts claims against Berry Dunn for violations of the West Virginia Wage Payment and Collection Act (“WPCA”), West Virginia Code § 21-5-1 et seq., “for late payment of amounts paid and failure to pay all amounts due Ms. Blackwood, ” and against all defendants for wrongful termination of employment by discriminating against her on the basis of her age, unlawful invasion of privacy, breach of promise, detrimental reliance, breach of contract and breach of the related covenant of good faith and fair dealing, intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress, and aiding and abetting. Id. at 9.

         The defendants moved to dismiss the claims against them on August 15, 2018. The plaintiff did not respond to this motion within the fourteen days provided by Local Rule of Civil Procedure 7.1(a)(7). Instead, on September 24, 2018, the plaintiff filed the motion entitled “Motion for Leave to File Motion to Remand Instanter, ” attached to which is a response in opposition to defendants' motion to dismiss. The court deems the plaintiff's motion to be a request for leave to file a late response. The defendants opposed plaintiff's motion by noting that plaintiff's counsel admitted that his late filing was due to lack of familiarity with the local rules.[1] Inasmuch as plaintiff's counsel also assigns his illness as a reason for the late filing and because there has not been any prejudice alleged by the defendants, the court, in the interest of justice, grants the plaintiff's motion to file a late response. It is so ORDERED.

         On August 8, 2018, the defendants removed the case to federal court, asserting fraudulent joinder of Ms. Becnel and invoking this court's diversity jurisdiction, see 28 U.S.C. § 1332(a)(1), and on September 11, 2018, the plaintiff moved to remand the case to the Circuit Court of Kanawha County. The court denied plaintiff's motion to remand on March 13, 2019.

         II. Standard of Review

         Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide “a short and plain statement of the claim showing . . . entitle[ment] to relief.” Fed.R.Civ.P. 8(a)(2); Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint when it “fail[s] to state a claim upon which relief can be granted . . . .” Fed.R.Civ.P. 12(b)(6).

         The required “short and plain statement” must provide “‘fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on other grounds, Twombly, 550 U.S. at 563); see also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007). In order 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.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); see also Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009).

         Application of the Rule 12(b)(6) standard requires that the court “‘accept as true all of the factual allegations contained in the complaint . . . .'” Erickson, 127 S.Ct. at 2200 (quoting Twombly, 127 S.Ct. at 1965); see also South Carolina Dept. Of Health And Environmental Control v. Commerce and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)). The court must also “draw[] all reasonable . . . inferences from th[e] facts in the plaintiff's favor . . . .” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

         III. Discussion

         A. West Virginia Wage Payment and Collection Act

         The parties dispute whether the severance pay offered to Ms. Blackwood is covered under the WPCA.

         The WPCA states that “[w]henever a person, firm or corporation discharges an employee . . . the person, firm or corporation shall pay the employee's wages due for work that the employee performed prior to the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable.” W.Va. Code § 21-5-4(b).

The term “Wages” is defined by the WPCA as compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation. As used in sections four, five, eight-a, ten and twelve of this article, the term “wages” shall also include then accrued fringe benefits capable of calculation and payable directly to an employee: Provided, That nothing herein contained shall require fringe benefits to be calculated contrary to any agreement between an employer and his or her employees which does not contradict the provisions of this article.

Id. at § 21-5-1(c). Further, the term “fringe benefits, ” which constitutes wages according to the WPCA, is defined as

any benefit provided an employee or group of employees by an employer, or which is required by law, and includes regular vacation, graduated vacation, floating vacation, holidays, sick leave, personal leave, production incentive bonuses, sickness and accident benefits and benefits relating to medical and pension coverage.

Id. at § 21-5-1(1).

         Inasmuch as the Supreme Court of Appeals of West Virginia has never explicitly contemplated whether severance pay constitutes “wages” or “fringe benefits” under the WPCA, the defendants cite several cases that they believe prove instructive.

         In Southern v. Emery Worldwide, 788 F.Supp. 894 (S.D. W.Va. 1992), this court noted that “[s]everance benefits are unaccrued, unvested benefits provided to employees upon their separation from employment, ” Id. at 897. There, the plaintiff brought state law claims under the WPCA which the court declined to address because such claims were preempted by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. While the court did not ultimately decide whether severance pay constituted a “wage” under the “WPCA, ” the description of “severance benefits” provided above is useful.[2]

         The Supreme Court of Appeals of West Virginia has similarly noted, when a petitioner made a claim for recovery of a severance payment under the WPCA, that it believed severance pay “would constitute a specific promise by the City to him, not a fringe benefit.” Howell v. City of Princeton, 210 W.Va. 735, 738 n.3, 559 S.E.2d 424, 427 n.3 (2001). The supreme court in that matter did not specifically address petitioner's claim to severance pay because it reversed the decision of the circuit court on other grounds. Id. at 738 n.2, 559 S.E.2d at 427 n.2.[3]

         Finally, the West Virginia Supreme Court has also stated:

the WPCA protects as “wages” only those fringe benefits which have both accumulated and vested. In order to ensure that the amount of accumulated benefits may be determined, only those benefits which are “capable of calculation” under the terms of the applicable employment policy are protected. Also, the fringe benefits must have vested according to the eligibility requirements of the terms of employment.

Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 217, 530 S.E.2d 676, 690 (1999). “Further, the terms of employment may condition the vesting of a fringe benefit right on some eligibility requirement in addition to the performance of services.” Id. “However, the terms of employment must be express and specific so that employees understand the amount, if any, of the fringe benefits owed to them upon separation from employment. ...


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