Moore et al v. Verizon West Virginia, Inc. et al

Filing 59

MEMORANDUM OPINION AND ORDER granting 29 plaintiff's Motion to Remand. The Court REMANDS this case to the Circuit Court of Harrison County, West Virginia. Signed by District Judge Irene M. Keeley on 3/30/2012. (Copy Circuit Court of Harrison County/US Mail)(kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TRECIA MARIE MOORE, Individually and on
behalf of all others similarly situated,
KIMBERLY ANN DAVIS, Individually and
on behalf of all others similarly situated,
and LAURA J. MARTIN, Individually and on
behalf of all others similarly situated,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:11cv127
(Judge Keeley)

VERIZON WEST VIRGINIA, INC.,
FRONTIER WEST VIRGINIA, INC.,
VERIZON SERVICES CORP.,
VERIZON COMMUNICATIONS, INC.,
MARY FREDERICK, CODY STEWART,
CORBY MILLER, BARBARA TERWILLIGER,
BOB ANDERSON, TAMMY MASON, DAWN
WATSON, and MICHAEL HATHAWAY,
Defendants.

MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO REMAND [DKT. NO. 29]
Before the Court is the plaintiffs’ motion to remand (dkt. no.
29).

For

the

reasons

discussed

below,

the

Court

GRANTS

the

plaintiffs’ motion and REMANDS this case to the Circuit Court of
Harrison County, West Virginia.
I.
On May 20, 2011, the named plaintiffs, Trecia Marie Moore,
Kimberly

Ann

Davis,

and

Laura

J.

Martin

(collectively

“the

plaintiffs”), filed this putative class action in the Circuit Court
of Harrison County, West Virginia. Their complaint alleges that the

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1:11CV127

MEMORANDUM OPINION AND ORDER
defendants, Verizon West Virginia, Inc., Frontier West Virginia,
Inc., Verizon Services Corp., Verizon Communications, Inc., Jodi
Dennis,

Mary

Frederick,

Cody

Stewart,

Corby

Miller,

Barbra

Terwilliger, Bob Anderson, Tammy Mason, Dawn Watson, and Michael
Hathaway (collectively “the defendants”), engaged in discriminatory
employment practices against the plaintiffs, who have actual or
perceived

disabilities,

in

derogation

of

their

rights.

The

complaint contains a single cause of action against the defendants
for violating the West Virginia Human Rights Act (“WVHRA”), W. Va.
Code § 5-11-9. (Dkt. No. 2-1 at 11).
On August 8, 2011, the defendants timely removed this case
under 28 U.S.C. §§ 1441 and 1446, invoking this Court’s federal
question jurisdiction pursuant to 28 U.S.C. § 1331. The defendants
argue that federal subject matter jurisdiction over this case
exists because the plaintiffs’ claim is completely preempted by
§ 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a),
and the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001
et seq.

The plaintiffs moved to remand, contending that the

doctrine of complete preemption is inapplicable to the allegations
contained in their well-pleaded complaint (dkt. no. 29).

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MEMORANDUM OPINION AND ORDER
II.
Federal district courts have original jurisdiction over “all
civil actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. Any state civil action which
satisfies this requirement “may be removed by the defendant or the
defendants, to the district court of the United States for the
district and division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). The party seeking removal bears the
burden of establishing federal jurisdiction, Mulcahey v. Columbia
Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994), and
all doubts about the propriety of removal should be resolved in
favor of retaining state jurisdiction. Hartley v. CSX Transp.,
Inc., 187 F.3d 422, 425 (4th Cir. 1999).
Under the well-pleaded complaint rule, “federal jurisdiction
exists only when a federal question is presented on the face of the
plaintiff’s

properly

pleaded

complaint.”

Caterpillar

Inc.

v.

Williams, 482 U.S. 386, 392 (1987). Accordingly, federal question
jurisdiction may not rest on the assertion of a federal defense,
including the defense of preemption. Id. at 393. Rather, federal
district courts have jurisdiction over “‘only those cases in which
a

well-pleaded

complaint

establishes

either

that

federal

law

creates the cause of action or that the plaintiff’s right to relief
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MEMORANDUM OPINION AND ORDER
necessarily depends on resolution of a substantial question of
federal law.’” Interstate Petroleum Corp. v. Morgan, 249 F.3d 215,
219 (4th Cir. 2001) (quoting Franchise Tax Bd. v. Const. Laborers
Vacation Trust, 463 U.S. 1, 27 (1983)).
A

corollary

to

the

well-pleaded

complaint

rule

is

the

“complete preemption doctrine.” Under this doctrine, a complaint
“can be recharacterized as one ‘arising under’ federal law if the
law governing the complaint is exclusively federal.” Vaden v.
Discover Bank, 556 U.S. 49, 50 (2009) (citing Beneficial Nat. Bank
v. Anderson, 539 U.S. 1, 8 (2003)). This doctrine will apply to a
claim

when

“the

pre-emptive

force

of

a

statute

is

so

‘extraordinary’ that it ‘converts an ordinary state commonlaw
complaint into one stating a federal claim for purposes of the
well-pleaded

complaint

rule.’”

Caterpillar,

482

U.S.

at

393

(quoting Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65
(1987)).

The

completely

preempted

state

claim

will

thus

be

considered, “from its inception, a federal claim,” and consequently
“arises under” federal law. Caterpillar, 482 U.S. at 393 (citing
Franchise Tax Bd., 463 U.S. at 24).
In order to remove an action on complete preemption grounds,
a defendant must show that “the plaintiff has a ‘discernible
federal [claim]’ and that ‘Congress intended [the federal claim] to

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MEMORANDUM OPINION AND ORDER
be the exclusive remedy for the alleged wrong.’” Pinney v. Nokia,
Inc.,

402

F.3d

430,

449

(4th

Cir.

2005)

(alteration

in

original)(quoting King v. Marriott Int’l, 337 F.3d 421, 425 (4th
Cir. 2003)). Here, the defendants argue that the plaintiffs’ claims
are completely preempted by § 301 of the Labor Management Relations
Act (“LMRA”), 29 U.S.C. § 185, and unspecified sections the
Employee

Retirement

Income

Security

Act

(“ERISA”),

29

U.S.C.

§§ 1001 et seq. The Supreme Court has found the congressional
intent to create an exclusively federal remedy for LMRA § 301 and
ERISA § 502(a). Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67
(1987) (ERISA § 502(a)); Avco Corp. v. Aero Lodge No. 735, Int’l
Ass’n of Machinists, 390 U.S. 557, 560 (1968) (LMRA § 301).
A.
Section 301 of the LMRA provides in pertinent part:
Suits for violation of contracts between an employer and
a labor organization representing employees in an
industry affecting commerce as defined in this chapter,
or between any such labor organizations, may be brought
in any district court of the United States having
jurisdiction of the parties, without respect to the
amount in controversy or without regard to the
citizenship of the parties.
29 U.S.C. § 185(a). This statute creates “a body of federal common
law” in order to secure uniform interpretation of labor contracts
and

“‘promot[e]

the

peaceable,

consistent

resolution

of

labor-management disputes.’” McCormick v. AT&T Tech., Inc., 934
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MEMORANDUM OPINION AND ORDER
F.2d 531, 534, 537 (4th Cir. 1991) (quoting Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 404 (1988)).
Even though the preemptive effect of § 301 “is so powerful as
to displace entirely any state cause of action for violation of
contracts between an employer and a labor organization,” Franchise
Tax

Bd.,

463

U.S.

at

23,

“the

bare

fact

that

a

collective

bargaining agreement will be consulted in the course of state-law
litigation plainly does not require [preemption].” Livadas v.
Bradshaw, 512 U.S. 107, 124 (1994). Instead, a state law claim will
be completely preempted by § 301 only if resolution of the claim
“requires the interpretation of a collective-bargaining agreement,”
Lingle,

486

U.S.

at

405,

or

if

the

claim

is

“inextricably

intertwined with consideration of the terms of the labor contract.”
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). Section
301 does not, for example, “pre-empt nonnegotiable rights conferred
on individual employees as a matter of state law,” because “it is
the legal character of a claim, as ‘independent’ of rights under a
collective-bargaining agreement . . . that decides whether a state
cause of action may go forward.” Livadas, 512 U.S. at 123 (citing
Lueck, 471 U.S. at 211).
District courts must examine the prima facie elements of a
state

law

cause

of

action

in

6

order

to

determine

whether

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MEMORANDUM OPINION AND ORDER
interpretation of a collective-bargaining agreement is required in
order to resolve the claim. Foy v. Pratt & Whitney Group, 127 F.3d
229, 233 (2d Cir. 1997) (citing Lingle, 486 U.S. at 407); see also
Arnold v. Cabot Corp., No. 1:99-75, 2000 WL 1283078, at *7 (N. D.
W. Va. May 8, 2000).
B.
ERISA operates to protect “‘the interests of participants in
employee benefit plans and their beneficiaries’” by establishing
“substantive

regulatory

requirements”

for

these

plans

and

“‘provid[ing] for appropriate remedies, sanctions, and ready access
to the Federal courts.’” Aetna Health Inc. v. Davila, 542 U.S. 200,
208 (2004) (quoting 29 U.S.C. § 1001(b)). ERISA contains provisions
preempting

“any

state-law

cause

of

action

that

duplicates,

supplements, or supplants the ERISA civil enforcement remedy.”
Davila, 542 U.S. at 209 (citing Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41, 54–56 (1987)). A state law claim that falls under ERISA’s
civil enforcement provisions will be preempted and converted into
a federal claim for “‘purposes of the well-pleaded complaint
rule.’” Davila, 542 U.S. at 209 (quoting Metropolitan Life Ins. Co.
v. Taylor, 481 U.S. 58, 65–66 (1987)).

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III.
The sole count of the plaintiffs’ complaint is entitled
“Violation of the WVHRA.” (Dkt. No. 2-1 at 11).1

This count

alleges that the defendants “engaged in a course of unlawful
employment practices” by “discriminat[ing] against” the plaintiffs
and “adopt[ing] and implement[ing] policies and practices (not
contained in any . . . collectively bargained document) that
resulted in disparate treatment of the Plaintiffs” in violation of
W. Va. Code § 5-11-9. (Id. at 11-12). The plaintiffs thus maintain
that

they

have

pled

a

single

disparate

treatment

discrimination claim under West Virginia law.

employment

(Dkt. No. 49 at 6).

The defendants, on the other hand, point to other provisions of the
complaint to argue that the plaintiffs have also pled a failure to
accommodate claim. See, e.g., (Compl. at ¶ 38 (“[t]he claims raised
by Class Representatives are substantially typical . . . insofar as
they

have

alleged

or

could

allege,

.

.

.

reasonable

accommodations”) (emphasis added)).
The WVHRA itself gives rise to both employment discrimination
and failure to accommodate causes of action. Dawson v. Kokosing

1

The plaintiffs filed an amended complaint subsequent to the
this case. (Dkt. No. 5). For the purposes of resolving the
remand, however, only the complaint as it existed at the time
is relevant. See Pinney v. Nokia, Inc., 402 F.3d 430, 443
2005).

8

removal of
motion to
of removal
(4th Cir.

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MEMORANDUM OPINION AND ORDER
Construction Co., Inc., No: 3:08-287, 2009 WL 1176447, at *8 n.7
(S.D. W. Va. Apr. 29, 2009) (“Under West Virginia caselaw[,] [a
failure to accommodate claim] is generally treated as a separate
cause of action with a different test than that used for a general
discrimination claim.” (citing Skaggs v. Elk Run Coal Co., 479
S.E.2d 561, 574 (W. Va. 1996) and Alley v. Charleston Area Medical
Center, 602 S.E.2d 506 (W. Va. 2004)). As the defendants do not
dispute that the plaintiffs’ employment discrimination claim is not
completely preempted, see Brosius v. Verizon Communications, Inc.,
No. 1:11-cv-38, 2011 WL 3269677, at *4 (N.D. W. Va. July 29, 2011),
the only question presented by the instant motion is whether the
plaintiffs’ purported cause of action for failure to accommodate is
completely preempted by either the LMRA or ERISA.
A.
To state a prima facie claim for failure to accommodate, a
plaintiff must establish that:
(1) The plaintiff is a qualified person with a
disability; (2) the employer was aware of this
disability; (3) the plaintiff required an accommodation
in order for perform the essential functions of the job;
(4) a reasonable accommodation existed that would meet
the plaintiffs needs; (5) the employer knew or should
have known of the plaintiff’s needs and of the
accommodation; and (6) the employer failed to provide the
accommodation.

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MEMORANDUM OPINION AND ORDER
Syl. Pt. 2, Skaggs, 479 S.E.2d 561 (emphasis added). In addition,
“a plaintiff also could state a claim by alleging an employer
refused to consider or discuss accommodation.” Id. at 575 n.11.
A “reasonable accommodation” is defined by the applicable
regulations as “reasonable modifications or adjustments to be
determined on a case-by-case basis which are designed as attempts
to enable an individual with a disability to be hired or to remain
in the position for which he was hired.” 77 W. Va. C.S.R. 1 § 4.4.
The regulations further provide a non-exhaustive list of these
“reasonable accommodations”:
[1] altering facilities; [2] restructuring jobs, work
schedules, and assignments; [3] reassigning the employee
‘to a vacant position for which the person is able and
competent . . . to perform’; [4] acquiring or modifying
equipment to provide ‘readers or interpreters’; [5]
adjusting testing, training materials, or policies; and
[6] educating fellow workers.
Skaggs, 479 S.E.2d at 576 (emphasis added) (quoting 77 W. Va.
C.S.R. 1, § 4.5).
B.
The

defendants

argue

that

the

plaintiffs’

failure

to

accommodate claim2 is preempted by the LMRA because, as an element
of their prima facie case, they must prove “that an open position
2

For the purposes of resolving the instant motion, the Court assumes
without deciding that the complaint pleads a failure to accommodate
claim.

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MEMORANDUM OPINION AND ORDER
existed into which they could be transferred.” (Dkt. No. 43 at 3).
As the Collective Bargaining Agreement (“CBA”) and collectively
bargained Medically Restricted Policy (“MRP”) “determine whether
there were available positions into which Plaintiffs could have
been transferred,” the defendants maintain that this claim would
require that the Court interpret the CBA & MRP, rendering it
completely preempted. (Id. at 3-4).
Contrary to the defendants’ position, however, a plaintiff is
not required to prove, as part of her prima facie case for failure
to accommodate under the WVHRA, “that a specific alternative
position was available”; instead, the plaintiff must simply prove
that “some accommodation was possible.” Alley, 602 S.E.2d at 516.
There is no evidence that the plaintiffs, in meeting their burden
of proving that “some accommodation was possible,” will argue for
a “reasonable accommodation” that would require interpretation of
the CBA or MRP. Id.

Rather, a failure to accommodate claim under

West Virginia law turns on “questions of fact pertaining to the
abilities of the plaintiff to perform essential functions of his or
her job with or without an accommodation and the employer’s
knowledge and conduct,” an analysis that does not require the
interpretation of a CBA. McCutcheon v. Alcan Rolled Products

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MEMORANDUM OPINION AND ORDER
- Ravenswood, LLC, No. 2:07-622, 2008 WL 2223867, at *5 (S.D. W.
Va. May 22, 2008).
Importantly,

the

right

to

be

free

from

employment

discrimination is a substantive right granted by the state of West
Virginia, and is thus independent of any duty under an employment
agreement: “Equal opportunity in the areas of employment and public
accommodations is hereby declared to be a human right or civil
right of all persons without regard to . . . disability.” W. Va.
Code § 5-11-2 (emphasis added); cf. Martin Marietta v. Maryland
Commission on Human Relations, 38 F.3d 1392, 1400-01 (4th Cir.
1994)

(finding

Maryland

disability

statute

“provides

a

nonnegotiable right to be free from handicap discrimination and a
right to a reasonable accommodation, each independent of the
CBAs.”). Section 301 has no impact on “‘the substantive rights a
State may provide to workers when adjudication of those rights does
not

depend

upon

interpretation

of

[collectively

bargained]

agreements.’” Owen v. Carpenter District Counsel, 161 F.3d 767, 773
(4th Cir. 1998) (quoting Lingle, 486 U.S. at 409)); see also
Livadas, 512 U.S. at 123 (§ 301 does not “pre-empt nonnegotiable
rights conferred on individual employees as a matter of state
law”).

As the plaintiffs’ failure to accommodate claim rests

purely on rights created by West Virginia law and turns solely on

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MEMORANDUM OPINION AND ORDER
factual questions relating to the conduct of the parties in this
case, it is not completely preempted by § 301.
IV.
The defendants’ ERISA preemption argument is relegated to a
footnote of its brief in opposition to remand, which simply notes
that “[t]o the extent the Plaintiffs mean by [their allegation of
disparate treatment] that they have been improperly treated under
the Verizon short term disability plan, there is preemption of that
claim

under

ERISA.”

(Dkt.

No.

43

at

22).

The

face

of

the

plaintiffs’ complaint does not refer to ERISA, nor does it seek to
recover,

rescind,

or

challenge

an

ERISA

benefit.

See,

e.g.,

(Compl. ¶ 3 (“The Plaintiffs seek no relief under any federal laws
or regulations, assert no federal claims, and withdraw any asserted
state law claims that are preempted by federal law.”)). As such,
the plaintiffs’ claims are not preempted by ERISA.
V.
For the reasons discussed, the Court GRANTS the plaintiff’s
motion to remand (dkt. no. 29) and REMANDS this case to the Circuit
Court of Harrison County, West Virginia.
It is so ORDERED.

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The Court directs the Clerk to transmit copies of this Order
to counsel of record, and to mail a copy to the Circuit Court of
Harrison County, West Virginia.
DATED: March 30, 2012.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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