United States District Court, S.D. West Virginia
JULIA E. BLACKWOOD, Plaintiff,
BERRY DUNN, LLC, NICOLE Y. BECNEL, and JANE DOES, Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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. ¶¶
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.
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.
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. 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
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.
Standard of Review
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.
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.
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).
Virginia Wage Payment and Collection Act
parties dispute whether the severance pay offered to Ms.
Blackwood is covered under the WPCA.
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
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).
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
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.
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
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.