United States District Court, N.D. West Virginia
JOHN S. KOVACH, Plaintiff,
WARREN DISTRIBUTION, INC., Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
WARREN DISTRIBUTION, INC.'S UNOPPOSED MOTION TO PARTIALLY
DISMISS PLAINTIFF'S COMPLAINT AND DISMISSING COUNT IV OF
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
civil action involves the alleged unlawful termination of
employment of plaintiff John S. Kovach
(“Kovach”). ECF No. 1. In his complaint,
plaintiff Kovach alleges that he was hired by defendant
Warren Distribution, Inc. (“Warren”) and was
employed as a senior maintenance technician. Id. at
2. Plaintiff Kovach states that he slipped and fell at work
and was sent to Wheeling Hospital where a doctor found that
he needed a total knee replacement and that it was a
non-occupational injury. Id. Plaintiff Kovach stated
that he was then put on sedentary duty, until he had an
appointment with another doctor. Id. At 3. Plaintiff
Kovach alleges that he then went out on leave under the
Family and Medical Leave Act (“FMLA”) and
underwent knee surgery. Id. After his surgery,
plaintiff Kovach states that he then returned to work, with
restriction of light duty for six weeks, and that
“[t]hereafter, for about two weeks, he had no
restrictions.” Id. Plaintiff Kovach further
alleges that he suffered a severe break in one of his teeth
that sometimes made him nauseous, light headed, and dizzy.
Id. During one of his shifts, plaintiff states that
he became nauseous, light headed, and dizzy, went to
defendant Warren's technological office, sat in a chair
and put his head back due to his illness. Id. During
that time, plaintiff asserts that Michelle Prettyman
(“Ms. Prettyman”) came into the technological
office, stomped her foot, and stated that she caught him
sleeping on the job, and that he then explained to Ms.
Prettyman that he was not feeling well due to his illness.
Id. After this shift, plaintiff states that his
supervisor, Ken Williams (“Mr. Williams”), told
plaintiff Kovach that Ms. Prettyman caught him sleeping
during his shift and handed him an Associate Involuntary
Termination Report which he and Mr. Williams signed.
Id. at 3-4. In his complaint, plaintiff Kovach
references the Associate Involuntary Termination Report and
states that the report indicates that he was terminated
because he was found sleeping during his shift. Id.
at 4. Plaintiff Kovach states that another co-worker, Doug
Anthony (“Mr. Anthony”), was written up two times
for sleeping on the job and on the third time he was
suspended. Id. Plaintiff Kovach alleges that after
his termination, Mr. Anthony got a raise and became a senior
technician, indicating that at the time of his termination,
plaintiff Kovach was 45 years of age and Mr. Anthony was in
his early 20s. Id. Plaintiff Kovach alleges four
counts in his complaint: (1) violation of the FMLA based on
retaliation (Count I); (2) violation of the West Virginia
Human Rights Act (“WVHRA”) based on retaliation
(Counts II); (3) violation of the WVHRA on the basis of age
(Count III); and (4) violation of the WVHRA on the basis of
sex (Count IV). Plaintiff Kovach seeks compensatory,
liquidated, and punitive damages, and any and all other
equitable and legal relief the Court deems proper and
appropriate, including but not limited to, emotional
distress, and damages under the WVHRA. Id. at 6-7.
Moreover, plaintiff Kovach seeks the cost and expenses of
this action and reasonable attorney fees, costs, litigation
expenses, pre-judgment and post-judgment interest as provided
by applicable federal and state law. Id. at 7.
Warren then filed a motion to partially dismiss
plaintiff's complaint. ECF No. 5. In the memorandum
attached to the motion, defendant Warren states that
“there is nothing discriminatory in Warren's
reliance on the eyewitness observations of [p]laintiff
sleeping on the job made by supervisory employee Ms.
Prettyman, and the [c]omplaint is totally devoid of any
averments that Warren somehow treated [p]laintiff less
favorably than any similarly situated female employees who
may have observed by supervisory personnel to be sleeping on
the job.” ECF No. 5-1 at 4. Defendant further states
that “[p]laintiff identifies no similarly situated
comparators who were not members of his protected class who
Warren treated more favorably than he, nor does his
[c]omplaint include any factual averments that could support
a finding that Warren harbored animus against him because of
his sex.” Id. at 5. Therefore, defendant
Warren asserts that plaintiff's claim for unlawful
employment discrimination on the basis of sex should be
dismissed as a matter of law. Id.
Court notes that no response in opposition to the motion was
filed by plaintiff Kovach. Thus, defendant Warren's
motion to dismiss (ECF No. 5) is deemed unopposed.
Nevertheless, this Court considers the motion on its merits.
Custer v. Pan Am Life Ins. Co., 12 F.3d 410, 416
(4th Cir. 1993).
assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true. Nemet Chevrolet, Ltd
v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir.
2009). However, “legal conclusions, elements of a cause
of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule
12(b)(6) purposes.” Id. (citing Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). This Court also
declines to consider “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009).
purpose of a motion under Rule 12(b)(6) is to test the formal
sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or
the merits of the case. 5B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §
1356 (3d ed. 1998). The Rule 12(b)(6) motion also must be
distinguished from a motion for summary judgment under
Federal Rule of Civil Procedure 56, which goes to the merits
of the claim and is designed to test whether there is a
genuine issue of material fact. Id. For purposes of
the motion to dismiss, the complaint is construed in the
light most favorable to the party making the claim and
essentially the court's inquiry is directed to whether
the allegations constitute a statement of a claim under
Federal Rule of Civil Procedure 8(a). Id. §
complaint should be dismissed “if it does not allege
‘enough facts to state a claim to relief that is
plausible on its face.'” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Facial plausibility is established once the
factual content of a complaint ‘allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Nemet
Chevrolet, 591 F.3d at 256 (quoting Iqbal, 129
S.Ct. at 1949). Detailed factual allegations are not
required, but the facts alleged must be sufficient “to
raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
Kovach claims that defendant Warren discriminated against him
on the basis of his sex. He sues under the provisions of the
West Virginia Human Rights Act, W.Va. Code, § 5-11-9(1).
ECF No. 1 at 6.
Warren correctly points out that “[t]o make out a
prima facie case for unlawful discrimination on the
basis of sex under the WVHRA, a plaintiff ‘must make an
initial showing of: 1) membership in a protected class; 2)
adverse employment action; and that 3) but for membership in
a protected class, [he] would not have suffered [the] adverse
employment action.'” ECF No. 5-1 at 3 (citing
Cooper v. Norfolk and Western Railway Co., 870
F.Supp. 1410, 1417-18 (S.D. W.Va. 1994). Under this standard,
plaintiff Kovach fails to meet the requisite pleading
standard to survive a motion to dismiss.
Kovach fails to raise an inference that he was treated less
favorably than others outside of his sex. He does not compare
himself to other workers or provide sufficient evidence to
“to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. In short,
plaintiff Kovach has failed “to allege enough facts to
state a claim to relief that is plausible on its face.”
Giarratano, 521 F.3d at 302 (internal quotation
as the Court previously noted, plaintiff Kovach has failed to
respond to defendant Warren's motion to partially dismiss
plaintiff's complaint and has not otherwise ...