Hartman v. White Hall Pharmacy, LLC et al
Filing
28
MEMORANDUM OPINION. Signed by District Judge Irene M. Keeley on 6/19/15. (cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ADAM HARTMAN,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:15CV26
(Judge Keeley)
WHITE HALL PHARMACY, LLC,
C. GENE WRIGHT, TERRI VILAIN,
JEFFREY TUCKER,
Defendants.
MEMORANDUM OPINION
On June 18, 2015, the Court orally granted the “Motion to
Certify Question to the Supreme Court of Appeals of West Virginia”
filed by the plaintiff, Adam Hartman (“Hartman”), and stayed its
ruling
on
the
“Motion
to
Dismiss
Count
II
of
Plaintiff’s
Complaint” filed by the defendants, White Hall Pharmacy, LLC
(“White Hall”), C. Gene Wright (“Wright”), Terri Vilain (“Vilain”),
and Jeffrey Tucker (“Tucker”) (collectively, the “defendants”).
The Court advised the parties that this Memorandum Opinion would
follow.
I.
This case involves retaliatory discharge claims stemming from
Hartman’s termination from employment on October 31, 2014.
Wright
and Vilain are the member-owners of White Hall, a pharmacy with two
locations in Fairmont, West Virginia.
Tucker is White Hall’s
director of business operations and human resources. Hartman began
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working at White Hall as an intern in April 2011, and was later
promoted to a registered staff pharmacist, and then to pharmacistin-charge.
In May 2014, Hartman’s attorney notified the defendants that
they had failed to provide his client time for meals and rest
breaks, nor had they paid him holiday or overtime pay.
Hartman
alleges that, since receiving such notice, the defendants have
engaged in a “campaign of retaliation” against him for having
asserted his rights.
(Dkt. No. 6-1 at 5).
Hartman points out
that, although he was never disciplined during his employment with
White Hall, the defendants suspended him effective August 18, 2014.
On August 22, 2014, Hartman filed two lawsuits against the
defendants.
First, he sued them in the Circuit Court of Marion
County, West Virginia, alleging that they had failed to provide him
time for meals and rest breaks, as well as holiday pay, in
violation of the West Virginia Wage Payment and Collection Act, W.
Va. Code § 21-5-1, et seq. (the “WPCA”) (the “WPCA Action”).
Second, he filed a collective action in this Court under the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), alleging
that
the
defendants
had
failed
to
compensate
employees for overtime pay (the “FLSA Action”).
2
him
and
other
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The parties settled the FLSA Action on October 15, 2014, and
the WPCA Action on October 24, 2014.
Hartman alleges that “[t]he
final step in the resolution of the Civil Actions occurred on
October 28, 2014.”
defendants
(Dkt. No. 6-1 at 4).
terminated
Hartman’s
Three days later, the
employment.
Although
the
defendants claim Hartman was fired as “part of a reduction in
force,”
Hartman
characterizes
that
as
Defendants’ unlawful retaliatory motives.”
“a
pretext
to
mask
Id.
On January 26, 2015, Hartman filed the instant action in the
Circuit
Virginia,
alleging
“retaliatory discharge claims” against the defendants.
(Dkt. No.
13 at 2).
Court
of
Marion
County,
West
Count I asserts a violation of the FLSA, 29 U.S.C. §
215(a)(3), which prohibits the discharge of an employee because he
or she has “filed any complaint or instituted or caused to be
instituted any proceeding under or related to this chapter.” Count
II asserts common law retaliatory discharge in violation of a
substantial public policy embodied by § 21-5-3 of the WPCA, which
requires employers to pay employees all “wages due” at least once
every two weeks. Finally, Count III asserts a violation of § 21-54 of the WPCA, which requires companies to pay “wages in full” to
discharged employees no later than the earlier of the next regular
payday or four business days after termination.
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The
defendants
moved
to
dismiss
Count
II
of
Hartman’s
complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the
WPCA is not a “substantial public policy” within the meaning of
Harless v. First Nat’l Bank in Fairmont, 246 S.E.2d 270, 275 (W.
Va. 1978).
The defendants also contend that Count II is preempted
by the FLSA.
In response, Hartman filed a motion to certify the following
question to the Supreme Court of Appeals of West Virginia: “Does
the [WPCA], in particular § 21-5-3, which requires that wages be
paid every two weeks, embody a substantial public policy which
supports a claim for wrongful discharge where the employee alleges
he was fired in retaliation for pursuing a claim for pay pursuant
to § 21-5-3?”
(Dkt. No. 14 at 2).
All matters are fully briefed
and ripe for review.
II.
In reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual allegations contained in
the complaint.’”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). However, while a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
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and a formulaic recitation of the elements of a cause of action
will not do.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Indeed, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265,
286
(1986).
In
considering
whether
the
facts
alleged
are
sufficient, “a complaint must contain ‘enough facts to state a
claim to relief that is plausible on its face.’”
Anderson, 508
F.3d at 188 (quoting Twombly, 550 U.S. at 547).
III.
A.
Count II of Hartman’s complaint, which alleges that the
defendants fired Hartman “in retaliation for [his] engaging in
protected activity by complaining that he was being denied pay for
rest periods and holiday pay and asserting his rights under the
WPCA” (dkt. no. 6-1 at 6) (emphasis added), is not preempted by
FLSA.
In their motion, the defendants misapprehend that Count II
“allege[s]
retaliation
for
initiating
suit
against Defendants
related to White Hall’s overtime procedures and payments.”
No. 5 at 7) (emphasis added).
(Dkt.
Moreover, courts have held that
state law claims based on an employee’s right to vacation pay are
not preempted by the FLSA.
See, e.g., Sosnowy v. A. Perri Farms,
Inc., 764 F. Supp. 2d 457, 462-63 (E.D.N.Y. 2011) (“[T]he only
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potential overlap between the state common law claims and the FLSA
is the recovery for overtime wages, because the FLSA does not
provide recovery for accrued vacation and sick time.”); Nimmons v.
RBC Ins. Holdings (USA), Inc., No. 6:07CV2637, 2007 WL 4571179, at
*2 n.1 (D.S.C. Dec. 27, 2007) (“Plaintiff’s claim for failure to
pay accrued vacation pay is not preempted or otherwise foreclosed
by the FLSA claim.”).
Therefore, preemption is not a bar to Count
II.
B.
The Court turns next to the heart of the parties’ motions,
that is, whether § 21-5-3 of the WPCA is a substantial public
policy that can sustain a retaliatory discharge claim. In Harless,
246 S.E.2d at 275, the Supreme Court of Appeals of West Virginia
permitted
terminated
a
cause
from
of
action
employment
where
an
establishes
employee
that
who
“the
had
been
employer’s
motivation for the discharge contravenes some substantial public
policy principle.”
The court later
articulated the necessary proof for a claim for relief
for wrongful discharge in contravention of substantial
public policy as follows:
(1) [Whether a] clear public policy existed and was
manifested in a state or federal constitution,
statute or administrative regulation, or in the
common law (the clarity element).
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(2)
[Whether]
dismissing
employees
under
circumstances
like
those
involved
in
the
plaintiff’s dismissal would jeopardize the public
policy (the jeopardy element).
(3) [Whether t]he plaintiff’s dismissal was
motivated by conduct related to the public policy
(the causation element).
(4) [Whether t]he employer lacked overriding
legitimate business justification for the dismissal
(the overriding justification element).
Swears v. R.M. Roach & Sons, Inc., 696 S.E.2d 1, 6 (W. Va. 2010)
(alterations and italics in original) (quoting Feliciano v. 7Eleven, Inc., 559 S.E.2d 713, 723 (W. Va. 2001)).
Count II of Hartman’s complaint alleges that the defendants
fired him “in retaliation for [his] engaging in protected activity
by complaining that he was being denied pay for rest periods and
holiday pay and asserting his rights under the WPCA.”
1 at 6).
(Dkt. No. 6-
It further alleges that “[t]he WPCA is a substantial
public policy of the State of West Virginia.”
Id.
The defendants attack this conclusion under the first element
of Hartman’s prima facie Harless claim, i.e., the clarity element.
As support, they rely on two decisions from the United States
District Court for the Southern District of West Virginia: Wiley v.
Asplundh Tree Expert Co., 4 F. Supp. 3d 840 (S.D.W. Va. 2014)
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(Johnston, J.); and Baisden v. CSC-Pa, Inc., No. 2:08CV01375, 2010
WL 3910193 (S.D.W. Va. Oct. 1, 2010) (Goodwin, J.).
In Baisden, 2010 WL 3910193 at *5, the plaintiff asserted,
inter alia, a Harless claim for “retaliatory discharge, arguing
that he was wrongfully terminated for trying to enforce his rights
under the [WPCA].”
Relying on the decision of the Supreme Court of
Appeals of West Virginia in Roberts v. Adkins, 444 S.E.2d 725 (W.
Va.
1994),
Judge
Goodwin
summarily
dismissed
the
“declin[ing] to recognize a new type of Harless action.”
claim
by
Baisden,
2010 WL 3910193 at *5.
Notably, in Roberts, the Supreme Court of Appeals had held:
A cause of action for wrongful discharge may exist under
West Virginia Code § 21-5-5 (1989) [a section of the
WPCA],1 for the retaliatory discharge of an employee
because of the employee’s purchase of goods from a
competitor of a separate and distinct business owned by
the employer, where the employee did not work for the
employer’s separate and distinct business and, where the
purchased goods were in no way related to or within the
scope of the employment.
Syl. Pt. 4, 444 S.E.2d at 726.
1
This section of the WPCA prohibits employers from requiring
employees to purchase particular goods or supplies with their wages. See
§ 21-5-5; see also Roberts, 444 S.E.2d at 729 (explaining that the
original purpose of the statute was to “alleviate the situation in which
coal companies required miners to make their purchases at the company
store . . . either by deducting said purchases from their wages or by
being paid in company script which was spendable only at the company
store”).
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Despite
its
holding,
the
court
cautioned
that
“[t]his
interpretation of West Virginia’s Code § 21-5-5 is in no way
intended to unlock a Pandora’s box of litigation in the wrongful
discharge arena.”
Id. at 729.
This statement provided the basis
for Judge Goodwin’s decision to dismiss the Harless claim in
Baisden.
2010 WL 3910193 at *5 (“The West Virginia Supreme Court
of Appeals has not recognized Harless actions for violations of the
[WPCA] and has read Harless narrowly so as not to ‘unlock a
Pandora’s box of litigation in the wrongful discharge arena.’”)
(quoting Roberts, 444 S.E.2d at 729).
The question whether the WPCA provides the predicate public
policy for a Harless claim was raised again in Wiley, 4 F. Supp. 3d
at
843-44.
There,
the
plaintiffs,
who
had
filed
a
putative
collective action, alleged, inter alia, a Harless claim premised on
the WPCA, specifically § 21-5-3.
Id. at 841.
The defendants filed
a motion to dismiss in which they argued that “a Harless claim
cannot be predicated on the WPCA.”
Id. at 843-44.
Citing Baisden, Judge Johnston observed that “[t]his Court has
previously declined to recognize a new type of Harless claim under
the WPCA because the West Virginia Supreme Court has interpreted
Harless so narrowly.”
Id. at 847-48.
9
Judge Johnston went on to
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distinguish Roberts, explaining that it involved § 21-5-5 of the
WPCA, not § 21-5-3.
Id. 848-49.
Based on this, he concluded:
Where this Court has previously refused to recognize the
WPCA as a Harless predicate, and where Plaintiffs fail to
offer any source of West Virginia authority that
recognizes the sections of the WPCA on which they mount
their claim as Harless predicates, this Court rejects
Plaintiffs’ contention their Harless claim may be
predicated on the WPCA.
Id. at 849.
Hartman urges the Court to reject Baisden and Wiley, both of
which he contends are “inconsistent with decisions of the Supreme
Court of Appeals of West Virginia and contrary to a reasonable
interpretation of [§ 21-5-3].”
(Dkt. No. 13 at 3).
Nevertheless,
he concedes that “the Supreme Court of Appeals has not issued an
opinion which directly addresses this issue.”
this
reason,
he
proposes,
as
an
Id. at 3 n.3.
alternative
to
finding
For
a
substantial public policy predicated on § 21-5-3, that the Court
certify the question to the Supreme Court of Appeals.2
C.
As recognized in Baisden and Wiley, federal courts applying
West Virginia substantive law are circumspect in concluding that a
particular law amounts to a substantial public policy within the
2
Notably, the courts in Baisden and Wiley were not confronted with
the certification question.
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meaning of Harless. Indeed, the United States Court of Appeals for
the Fourth Circuit has observed:
West Virginia courts have proceeded with “great caution”
in applying public policy to wrongful discharge actions.
The power to declare an employer’s conduct as contrary to
public policy is to be exercised with restraint, and with
due deference to the West Virginia legislature as the
primary organ of public policy in the state.
Washington v. Union Carbide Corp., 870 F.2d 957, 962-63 (4th Cir.
1989) (internal citations omitted).
In Tritle v. Crown Airways,
Inc.,
1990),
928
F.2d
81,
84
(4th
Cir.
the
Fourth
Circuit
reaffirmed its holding that “a state claim which has not been
recognized by that jurisdiction’s own courts constitutes a settled
question of law, which will not be disturbed by this court absent
the
most
compelling
of
circumstances.”
This
principle
expressed most recently by another court within this district.
was
In
Frohnapfel v. ArcelorMittal Weirton, LLC, __ F. Supp. 3d __, __ No.
5:14CV45, 2015 WL 1843032, at *6 (N.D.W. Va. Apr. 22, 2015), Judge
Bailey explained that the Fourth Circuit has “specifically declined
to expand the Harless cause of action by recognizing novel theories
of substantial public policy absent a clear statement from the
Supreme Court of Appeals of West Virginia.”
Based on this precedent, the Court declines to expand Harless
to limits as yet unrecognized by the Supreme Court of Appeals.
11
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closer issue is whether Hartman’s argument that § 21-5-3 should
constitute a substantial public policy is strong enough to warrant
certification of the question to the Supreme Court of Appeals.
D.
Under the West Virginia Uniform Certification of Questions of
Law Act (“UCQLA”), § 51-1A-1, et seq., federal courts may petition
the state’s highest court for an answer to a question of state law
so long as (i) it is “determinative of an issue in a pending cause
in
the
certifying
court,”
and
(ii)
“there
is
no
controlling
appellate decision, constitutional provision or statute of this
state.” § 51-1A-3. Indisputably, the question proposed by Hartman
satisfies both requirements of the UCQLA. Nevertheless, it remains
within the Court’s discretion whether to certify the question or to
conclude that extant case law provides a sufficient ground for a
decision in favor of the defendants.
See Lehman Bros. v. Schein,
416 U.S. 386, 390-91 (1974) (“We do not suggest that where there is
doubt as to local law and where the certification procedure is
available, resort to it is obligatory.
It does, of course, in the
long run save time, energy, and resources and helps build a
cooperative judicial federalism.
Its use in a given case rests in
the sound discretion of the federal court.”).
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As an initial matter, the Supreme Court of the United States
looks favorably on the lower courts’ use of the state certification
procedure.
In Arizonans for Official English v. Arizona, 520 U.S.
43, 56-62 (1997), the district court, a panel of the Ninth Circuit,
and the Ninth Circuit sitting en banc all denied the state attorney
general’s request to certify the pivotal state law question to the
Arizona Supreme Court.
Although the Supreme Court of the United
States vacated the en banc decision on different grounds, in doing
so it admonished the lower courts for not giving “more respectful
consideration” to the certification requests.
Id. at 78.
It also
noted the Ninth Circuit’s error in requiring “unique circumstances”
as a condition precedent to certification.
As
the
Supreme
Court
explained,
Id. at 79.
the
prerequisite
for
certification is a “[n]ovel, unsettled question[] of state law.”
Id.
When such a question arises, federal courts should consider
availing themselves of the state certification procedure, which
“allows a federal court . . . to put the question directly to the
State’s highest court, reducing the delay, cutting the cost, and
increasing the assurance of gaining an authoritative response.”
Id. at 76.
Moreover, “[t]aking advantage of certification made
available by a State may greatly simplify an ultimate adjudication
in federal court.”
Id. at 79 (internal quotation marks, brackets,
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and citation omitted); see also Lehman Brothers, 416 U.S. at 394
(Rehnquist, J., concurring) (“State certification procedures are a
very desirable means by which a federal court may ascertain an
undecided point of state law, especially where, as is the case in
[West Virginia], the question can be certified directly to the
court of last resort within the State.”).
In Frohnapfel,
__ F. Supp. 3d at __, 2015 WL 1843032 at *6,
Judge Bailey certified to the Supreme Court of Appeals the question
whether the West Virginia Water Pollution Control Act established
a substantial public policy on which a Harless claim could be
based.
As in this case, the state’s highest court had not
addressed
the issue.
Its
silence,
however,
provided
only a
necessary, but not sufficient, ground on which to certify the
question. Ultimately, Judge Bailey certified the question based on
“a
strong
articulates
argument
a
public
that
the
policy
retaliatory discharge claim.”
[Water
sufficient
Id.
Pollution
to
Control
support
a
Act]
Harless
He also relied on the Fourth
Circuit’s certification of a question to the Supreme Court of
Appeals in order to ascertain whether a state statute provided a
substantial public policy sufficient for a Harless claim.
See
Lilly v. Overnight Transp. Co., 425 S.E.2d 214, 217 (W. Va. 1992)
(answering the Fourth Circuit’s certified question by holding that
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“a cause of action for wrongful discharge may exist under West
Virginia Code § 17C-15-1(a), § 17C-15-31 and § 24A-5-5(j)”).
Here, relying on precedent from the Supreme Court of Appeals,
Hartman makes
a
strong
argument
that
the
WPCA
establishes a
substantial public policy. For instance, the state’s highest court
has observed that
the Legislature has placed upon officers in the
management of a corporation the duty to see that the Wage
Payment and Collection Act is enforced. This duty is
founded on a specific statutory requirement designed to
further an important public policy. This public policy
requires employers to pay the wages of working people who
labor on their employer’s behalf.
Mullins v. Venable, 297 S.E.2d 866, 871 (W. Va. 1982).
Even more
forcefully, albeit in an unpublished opinion, the court has stated
that the WPCA “reflects a strong public policy in favor of prompt
payment of wages.”
State ex rel. Joseph v. Dostert, No. 15988,
1983 WL 131194, at *3 (W. Va. Dec. 14, 1983) (per curiam).
Moreover, in Legg v. Johnson, Simmerman & Broughton, LC, 576 S.E.2d
532, 537 (W. Va. 2002), the court cited Mullins for the proposition
that the broad definition of “employee” as used in the WPCA “was
adopted to further an important public policy,” one that requires
employers to pay those who labor on their behalf.
See also Shaffer
v. Fort Henry Surgical Assocs., Inc., 599 S.E.2d 878, 881 (W. Va.
2004).
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Notably, the defendants have offered almost no defense to
Hartman’s argument that, were the Supreme Court of Appeals to
address the pertinent issue, it would decide that § 21-5-3 provides
a substantial public policy within the meaning of Harless.
They
cite to Roberts, where the Supreme Court of Appeals held that § 215-5 is a substantial public policy that can support a Harless cause
of action.
Syl. Pt. 4, Roberts, 444 S.E.2d at 726.
At best,
however, their reading of Roberts indicates that the decision
should not be applied to other provisions of the WPCA.3
The defendants also suggest that it would be “dangerous” for
the Court to certify the proposed question in this case: “If
allowed, the inevitable result is that each and every time a
substantial public policy claim is brought in federal court,
plaintiffs in West Virginia will always request certification.”
(Dkt. No. 16 at 3) (emphasis in original).
The Court, however,
finds little merit in the defendants’ fear that the floodgates will
be opened.
First, the question posed in this case –- whether § 21-5-3 of
the WPCA provides the predicate substantial public policy for a
Harless claim –- finds strong support in several decisions of the
3
Notwithstanding that argument, Hartman does not rely on Roberts
for his position.
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Supreme Court of Appeals.
The same cannot be said for “each and
every” potential Harless claim, as described by the defendants.
Second, certification will not always provide plaintiffs’ attorneys
with the most desirable vehicle of litigating the public policy
issue.
Absent a good-faith belief that the Supreme Court of
Appeals would render a favorable ruling, counsel may have no
incentive
to
certify
a
question
that,
when
answered,
could
foreclose a potential avenue of litigation.
IV.
Based
on
(i)
Hartman’s
strong
argument
that
§
21-5-3
establishes a substantial public policy within the meaning of
Harless; (ii) the recognition by the Supreme Court of the United
States, as well as courts within this district, that the state
certification procedure is an efficient and useful mechanism for
resolving an unanswered question of state law; and (iii) the
defendants’ lack of a persuasive argument against certification,
the Court concluded that Hartman’s motion should be granted and a
ruling on the defendants’ motion should be stayed.
The Court will
enter a separate certification order.
The
Court
directs
the
Clerk
to transmit
copies
of
this
Memorandum Opinion to counsel of record.
DATED: June 19, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
17
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