Clay v. Consol Pennsylvania Coal Company

Filing 263

MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT DENYING DEFENDANTS 7 MOTION TO DISMISS THE ORIGINAL COMPLAINT AS MOOT ANDGRANTING IN PART AND DENYING IN PART DEFENDANTS' 18 MOTION TO DISMISSPLAINTIFF' S AMENDED COMPLAINT. Signed by Senior Judge Frederick P. Stamp, Jr on 7/3/13. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TONY B. CLAY,
Plaintiff,
v.

Civil Action No. 5:12CV92
(STAMP)

CONSOL PENNSYLVANIA COAL
COMPANY, LLC,
a foreign limited liability
company and subsidiary of
Consol Energy, Inc.,
McELROY COAL COMPANY,
a foreign corporation and
subsidiary of Consol Energy, Inc.
and CONSOL ENERGY, INC.,
a foreign corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
CONFIRMING PRONOUNCED ORDER OF THE COURT
DENYING DEFENDANTS’ MOTION TO DISMISS
THE ORIGINAL COMPLAINT AS MOOT AND
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT1
I.

Background

On June 21, 2012, the plaintiff, Tony B. Clay, filed a
complaint against the defendants, Consol Pennsylvania Coal Company,
LLC (“Consol PA”), McElroy Coal Company (“McElroy”), and CONSOL
Energy, Inc. (“CONSOL”).
separate counts.

1

The plaintiff’s complaint contains nine

In his complaint, the plaintiff specifically

On May 1, 2013, a letter was issued to the parties indicating
the tentative rulings of this Court regarding the defendants’
motion to dismiss (ECF No. 18). This order sets forth the ruling
in more detail.

alleges a hostile work environment claim, a race discrimination
claim, an age discrimination claim, a wrongful termination claim,
a retaliation claim, an intentional or reckless infliction of
emotional distress claim, a breach of employment agreement claim,
a claim for the violation of West Virginia’s Wage Payment and
Collection Act (“WPCA”), and a civil conspiracy claim.

As relief,

the plaintiff seeks compensatory damages, punitive damages, and
attorneys’ fees.
After the plaintiff filed his complaint, the defendants filed
a motion to dismiss.

In response to the motion to dismiss, the

plaintiff filed an amended complaint.

Thereafter, the defendants

filed a motion to dismiss the amended complaint.

In the motion to

dismiss the amended complaint, the defendants argue: (1) the age
discrimination count and the retaliation count should be dismissed
for a failure to exhaust Age Discrimination in Employment Act’s
(“ADEA”) administrative remedies; (2) the wrongful termination in
violation of the West Virginia Human Rights Act (“WVHRA”) count and
the retaliation count should be dismissed for a failure to conform
to the requirements of bringing a claim under the WVHRA; (3) the
intentional or reckless infliction of emotional distress count is
barred by the statute of limitations; (4) the breach of employment
agreement count facially fails to state a claim upon which relief
can be granted; (5) the breach of employment agreement fails to
state a claim against defendants McElroy and CONSOL because they

2

were not parties to the employment agreement; (6) the violation of
the West Virginia Wage Payment and Collection Act (“WPCA”) count
fails to state a claim because the plaintiff cannot demonstrate
that the defendants failed to pay him any wages owed to the
plaintiff; (7) the civil conspiracy count fails to state a claim
because the plaintiff has failed to allege that two or more persons
conspired to harm the plaintiff; (8) the civil conspiracy count is
preempted by the WVHRA; and (9) the plaintiff’s hostile work
environment, race discrimination, ADEA, and retaliation counts
should be dismissed for a lack of subject matter jurisdiction.
The plaintiff responded arguing: (1) the plaintiff did exhaust
his remedies under the ADEA as to the ADEA and retaliation counts;
(2)

as

to

the

plaintiff’s

wrongful

termination

count

and

retaliation count, the plaintiff is deemed to have timely filed his
complaint with the West Virginia Human Rights Commission (“WVHRC”);
(3) as to the plaintiff’s intentional or reckless infliction of
emotional distress count, the defendants’ unlawful and tortious
conduct continued beyond the plaintiff’s discharge; (4) based on
the plaintiff’s allegations that he was discharged for unlawful and
discriminatory reasons, the plaintiff has stated a claim for breach
of his employment agreement; (5) the defendants were the “joint
employer”

of

the

plaintiff

for

purposes

of

the

employment

agreement; (6) the defendants’ failure to remit the plaintiff’s
termination payment required under his employment agreement is a

3

violation of West Virginia’s WPCA; (7) the plaintiff did not fail
to state a claim for civil conspiracy as each defendant is a
“person” capable of entering into a civil conspiracy; (8) the
plaintiff’s civil conspiracy count is not preempted by the WVHRA;
and (9) this Court has subject matter jurisdiction over the
plaintiff’s hostile work environment, race discrimination, ADEA,
and retaliation counts because he has exhausted his remedies before
the

Equal

Employment

Opportunity

Commission

(“EEOC”).

The

defendants filed a reply addressing the plaintiff’s arguments.
For

the

reasons

stated

below,

this

Court

denies

the

defendants’ motion to dismiss the plaintiff’s original complaint as
moot and grants in part and denies in part the defendants’ motion
to dismiss the plaintiff’s amended complaint.
II.
A.

Applicable Law

Motion to dismiss for failure to state of a claim
In assessing a motion to dismiss for failure to state a claim

under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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.”
(2009)).

Id. (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
This

Court

also

declines

4

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).
It has often been said that the 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

essentially

most
the

favorable
court’s

to

the

inquiry

party
is

making

directed

the
to

claim

and

whether

the

allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).

Id. § 1357.

A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is 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,

5

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.”
B.

Twombly, 550 U.S. at 555.

Motion to dismiss for lack of subject matter jurisdiction
The Federal Rules of Civil Procedure provide that, prior to

filing

a

district

responsive
court’s

pleading,

subject

a

matter

defendant

may

jurisdiction

challenge

over

the

the

claims

brought against it by filing a motion to dismiss under Rule
12(b)(1).

The federal district courts are courts of limited

jurisdiction, and may only hear cases over which they have been
granted jurisdiction either by statute or by the Constitution.
When a defendant brings a motion under Rule 12(b)(1), a court must
dismiss the case against it if the court finds that it “lacks the
statutory or constitutional power to adjudicate it.”

Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000).
Once subject matter jurisdiction has been challenged, it is
the plaintiff’s “burden of proving that subject matter jurisdiction
exists.”
1999).

Evans v. B. F. Perkins Co., 166 F.3d 642, 647 (4th Cir.
Further, because subject matter jurisdiction cannot be

waived by the court or by the parties, and if lacking, renders the
district court wholly unable to rule on any matter in controversy,
in resolving a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a district court “may refer to

6

evidence outside the pleadings without converting the proceeding to
one for summary judgment.”

Richmond, F. & P. R. Co. v. United

States, 945 F.2d 765, 768 (4th Cir. 1991).
III.
A.

Discussion

Failure to exhaust ADEA remedies
The defendants first argue that this Court should dismiss

Count III, which alleges discrimination based on the plaintiff’s
age because the plaintiff failed to exhaust his administrative
remedies under the ADEA.

The defendants also argue that based on

this failure to exhaust, Count V should be dismissed insomuch as it
concerns retaliation based in violation of the ADEA. The plaintiff
contests this argument and alleges instead that the plaintiff did
in fact properly exhaust his administrative remedies under the
ADEA.
Under

the

ADEA,

a

plaintiff

must

file

a

discrimination with the EEOC prior to filing suit.

charge

of

Jones v.

Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citations
omitted).

This charge must be filed either within 180 days after

the alleged unlawful employment practice occurs, or within 300 days
from such event “‘when state law proscribes the alleged employment
practice and the charge has initially been filed with a state
deferral agency.’” Id. (quoting Tinsley v. First Union Nat’l Bank,
155 F.3d 435, 439 (4th Cir. 1998)).

“The scope of the plaintiff’s

right to file a federal lawsuit is determined by the charge’s

7

contents.”

Id.

“Only those discrimination claims stated in the

initial charge, those reasonably related to the original complaint,
and those developed by reasonable investigation of the original
compliant may be maintained” by the plaintiff in a subsequent
lawsuit. Evans v. Technologies Applications & Service Co., 80 F.3d
954, 963 (4th Cir. 1996).

A failure to file a proper charge and

thus, the failure to exhaust administrative remedies concerning an
ADEA claim, deprives federal courts of subject matter jurisdiction
over the claim.

Jones, 551 F.3d at 300.

The defendants argue that the charge filed with the EEOC did
not contain any allegations of age discrimination.

Further, the

defendants state that the EEOC’s determination regarding the charge
and the notice of right to sue letter also did not mention any age
discrimination claims.

The plaintiff argues, however, that he did

make claims of age discrimination in his initial charge.

The

plaintiff indicates that the statement that he “was passed over for
a promotion due to [the assistant mine superintendent’s] actions
when other, less qualified white employees were promoted” supports
the proposition that the defendants were put on notice of potential
charges of age discrimination.

The plaintiff also provides other

statements from the EEOC’s investigation that he feels put the
defendants on notice of possible age discrimination claims as well.
This Court need only review a copy of the plaintiff’s charge
to determine that no such charges of age discrimination were ever

8

presented to the EEOC.

See ECF No. 7 *1.

The statement set out

above, made by the plaintiff in his charge, which he believes
provides notice of possible claims of age discrimination does not
provide any such notice.

Instead, it seems to be directed solely

at a claim of race discrimination. Further, the charge contains an
area where the claimant is to check a box concerning which type of
charge he or she is making.

The only box checked by the plaintiff

was the box indicating that the plaintiff was asserting charges
under Title VII.

The ADEA box was left unchecked.

Not only were the original claims not stated in the initial
charge or related to those in the original charge, they were also
not developed by an investigation of the original complaint. After
the

EEOC

undertook

its

investigation,

the

determination and notice of right to sue letter.

EEOC

issued

a

This letter only

addresses the claims under Title VII that were made in the charge.
Therefore, this Court finds that the plaintiff did fail to exhaust
his remedies under the ADEA. As a result, this Court lacks subject
matter jurisdiction over such claims and must grant the motion to
dismiss as to Count III and Count V insomuch as it relates to a
claim under the ADEA.
B.

Failure to conform to the requirements of the WVHRA
The defendants next contend that Count IV, which alleges

wrongful termination in violation of the WVHRA, and Count V, which
concerns, in part, retaliation in violation of the WVHRA, should be

9

dismissed for a failure to satisfy the requirements of bringing a
claim under the WVHRA.

Specifically, the defendants contend that

the plaintiff failed to comply with the applicable statute of
limitations for bringing claims under the WVHRA.
however, asserts otherwise.

The plaintiff,

The plaintiff alleges that by filing

his charge with the EEOC, he is deemed to have filed under the
WVHRA with the WVHRC.
A plaintiff making claims of discrimination under the WVHRA
with the WVHRC is required to file a complaint with the WVHRC
“within 365 days after the alleged act of discrimination.” Woodrum
v. Thomas Memorial Hosp. Foundation Inc., 45 F. Supp. 2d 538, 540
(S.D. W. Va. 1999).

A plaintiff, however, may also choose to file

the complaint in a court instead of with the WVHRC.

If a plaintiff

chooses to do so, a two-year statute of limitations applies. Sesay
v. Montgomery Ward & Co., Inc., 937 F. Supp. 563, 567-68 (S.D. W.
Va. 1996) (citations omitted).

The plaintiff must choose one of

these two methods of bringing a claim under the WVHRA.
The plaintiff argues that based on West Virginia Code of State
Rules § 77-2-3.9.d.4, the plaintiff is deemed to have filed his
complaint with the WVHRC the same day that he filed his complaint
with the EEOC. The Rule reads as follows: “Any complaint alleging
acts which are unlawful under the West Virginia Human Rights Act
which is filed with federal agencies having deferral/referral
arrangements with the Commission, shall be deemed filed with the

10

Commission on the same day as the complaint was received by such
federal agency.” The defendants, however, argue that such argument
is erroneous, as such argument would only apply if the plaintiff
actually filed a complaint with the WVHRC, which the plaintiff does
not allege that he has done.
This Court agrees with the defendants’ analysis of the Rule.
Nothing in the Rule relieves the plaintiff from his duty to
actually file a complaint with the WVHRC or a complaint with the
court alleging violations under the WVHRA.

The latest dates

provided by the plaintiff as to any alleged act of discrimination
took place on the date of his termination, which was June 9, 2010.
He did not file a complaint with the WVHRC by June 9, 2011, nor did
he file a complaint with a court by June 9, 2012.

Instead, the

plaintiff filed his complaint in this Court alleging violations of
the WVHRA on June 21, 2012.

Therefore, because the plaintiff

failed to comply with the applicable limitation periods concerning
his claims under the WVHRA, this Court dismisses Count IV and Count
V insomuch as it relates to retaliation in violation of the WVHRA.
C.

Intentional or reckless infliction of emotional distress

statute of limitations
The defendants argue that Count VI, which is the plaintiff’s
count alleging intentional or reckless infliction of emotional
distress,

should

be

dismissed

because

it

is

barred

by

the

applicable statute of limitations. The plaintiff argues that it is

11

not barred by the statute of limitations because the defendants’
wrongful conduct continued beyond the plaintiff’s discharge.
Under West Virginia law, a two-year statute of limitations
applies to a claim for intentional or reckless infliction of
emotional distress.

W. Va. Code § 55-2-12(b); Travis v. Alcon

Laboratories, Inc., 504 S.E.2d 419, 432 (W. Va. 1998) (citations
omitted).

As to when such statute of limitations begins to run,

the West Virginia Supreme Court has held that “in claims for
intentionally or recklessly inflicted emotional distress that arise
from

a

termination

of

employment,

the

two-year

statute

of

limitation . . . begins to run on the date of the last extreme and
outrageous conduct, or threat of extreme and outrageous conduct,
which precipitated the termination of employment.”
The defendants argue that the last possible date on which the
limitation period began to run was the date of the plaintiff’s
termination, June 9, 2010.
the

wrongful

conduct

continues to this day.

The plaintiff, however, contends that

constituting

the

basis

for

this

claim

Specifically, the plaintiff contends that

the defendants’ continued failure to conduct an investigation
regarding his various charges of unlawful conduct and hostile work
environment constitutes a continuation of their wrongful conduct.
As

the

intentional

defendants
or

reckless

indicate,
infliction

to
of

establish
emotional

a

claim

for

distress,

a

plaintiff must show that the conduct complained of was “atrocious,

12

intolerable, and so extreme and outrageous as to exceed bounds of
decency.”
Virginia

Travis, 504 S.E.2d at 425.
Supreme

Court,

“[w]hether

According to the West

conduct

may

reasonably

be

considered outrageous is a legal question, and whether conduct is
in fact outrageous is a question for jury determination.” Hatfield
v. Health Mgmt. Assocs. Of W. Va., 672 S.E.2d 395, 404 (W. Va.
2008).

This Court finds that the plaintiff’s claim concerning the

defendants’

refusal

plaintiff’s

charges

to
is

take
not

seriously

conduct

and

that

investigate

could

reasonably

the
be

considered so extreme and outrageous as to exceed bounds of
decency.

See

Shawkey

v.

Lowe’s

Home

Centers,

Inc.,

No.

2:09-CV-01264, 2011 WL 1229784, at *12 (S.D. W. Va. Mar. 30, 2011)
(finding

that

the

plaintiff’s

claim

that

an

investigation

concerning his termination was completed in a “negligent or sub-par
fashion” was insufficient to establish his claim for intentional or
reckless infliction of emotional distress).

Therefore, the latest

possible date on which the limitation period could be said to have
started to run is June 9, 2010, the date of the plaintiff’s
termination, as the plaintiff did not allege any later conduct
aside from that which this Court found insufficient to establish
the claim.

The plaintiff filed his complaint alleging intentional

or reckless infliction of emotional distress on June 21, 2012.

At

that time, the two-year statute of limitations had expired based on
the plaintiff’s allegations as set forth in the complaint and

13

response to the motion to dismiss.

Therefore, this Court must

dismiss Count VI.
D.

Breach of employment agreement
The defendants contend that Count VII, in which the plaintiff

claims that the defendants breached the employment agreement,
should be dismissed because the plaintiff was fired for cause,
which

is

allowed

for

under

the

employment

agreement.

Alternatively, the defendants contend that Count VII should at
least be dismissed as to defendants McElroy and CONSOL, as those
defendants were not parties to the employment agreement.

The

plaintiff contests these arguments first by arguing that the
plaintiff was not fired for cause.

Further, the plaintiff argues

that each defendant was a joint employer of the plaintiff, and
therefore they were all parties to the agreement.
1.

Termination “for cause”

The subject employment agreement contains a choice of law
section, which states that Pennsylvania law is to govern said
agreement.

See ECF No. 17 Ex. 3 *8.

In order to establish a claim

for breach of an employment agreement under Pennsylvania law, the
plaintiff must show: “(1) the existence of a contract, including
its essential terms, (2) a breach of a duty imposed by the
contract, and (3) resultant damages.”
316, 332 (Pa. Super. Ct. 2005).

14

Hart v. Arnold, 884 A.2d

The subject employment agreement contains a clause which
allows for termination “for cause.”

See ECF No. 17 Ex. 3 *3.

The

defendants argue that the plaintiff was fired “for cause” and
therefore,

there

was

no

breach

of

the

employment

agreement.

Specifically, they state that the plaintiff was fired for sleeping
while on the job, which is allegedly in violation of McElroy Coal
Company’s Employee Conduct Rules. The plaintiff, however, contends
that he was not fired “for cause.”

Instead, the plaintiff argues

that the defendants’ proffered reason for firing him was a pretext
and

the

defendants

actually

terminated

his

employment

for

discriminatory reasons, which is not a valid “for cause” reason for
termination under the employment agreement. This Court agrees with
the plaintiff that, while the defendants may have provided a valid
“for cause” reason for plaintiff’s termination, this may not have
been the actual reason for his termination.

Therefore, based on

the defendants’ “for cause” argument, the Court cannot dismiss the
breach of the employment agreement count.
2.

Joint employers

Under Pennsylvania law, “one cannot be liable for a breach of
contract unless one is a party to that contract.”

Electron Energy

Corp. v. Short, 597 A.2d 175, 177 (Pa. Super. Ct. 2005).

The

defendants argue that McElroy and CONSOL were not parties to the
contract, and that only Consol PA was a party to the contract.

The

plaintiff argues that the defendants operated as a joint and

15

integrated

employer

when

they

terminated

him

and,

thus,

all

defendants breached the employment agreement.
While the plaintiff cites cases for the proposition that the
defendants are joint employers, none of the cited cases stand for
the proposition that as joint employers, all defendants may be
considered parties to the contract.

See Deras v. Verizon, No. DKC

09-0791, 2010 WL 3038812 at *3-8 (D. Md. July 30, 2010) (applying
joint employer doctrine to a Fair Labor Standards Act claim);
Schultz v. Capital Intern. Sec., Inc., 466 F.3d 298, 306 (4th Cir.
2006) (applying joint employer doctrine to Fair Labor Standards Act
claim); Rowe v. Grapevine Corp., 456 S.E.2d 1, 3-4 (W. Va. 1995)
(applying joint employer doctrine to West Virginia WPCA claim);
Amoroso v. Marion County Comm’n, 105 S.E.2d 299, 303-03 (W. Va.
1983) (applying joint employer doctrine to West Virginia wage and
hour law).

Further, this Court has not located any authority on

its own, which gives credence to the plaintiff’s argument.

See

also Rho v. Vanguard OB/GYN Associates, P.C., No. CIV. A. 98-1673,
1999 WL 228993 at *4 (E.D. Pa. Apr. 15, 1999) (finding that the
joint employer analysis under the Fair Labor Standards Act in the
Third Circuit had “never been applied to breach of contract
claims”).

As such, although the defendants may be considered the

plaintiff’s joint employer for other purposes,2 this Court finds

2

This Court notes, that it is not in any way making a finding
as to whether or not the defendants satisfy the requirements of the
joint employer doctrine for any of the plaintiff’s other counts.
16

that the doctrine does not apply to the plaintiff’s breach of
employment claim.
After reviewing the subject employment agreement, Consol PA
was the only other party and signatory to the employment agreement
aside from the plaintiff.

See ECF No. 17 Ex. 3 *10.

Therefore,

because it is required that one must be a party to a contract to
breach said contract and the joint employer doctrine does not make
McElroy nor CONSOL parties to the employment agreement, this Court
must dismiss Count VII as it pertains to McElroy and CONSOL.
E.

West Virginia’s WPCA
The defendants argue that this Court should dismiss Count

VIII, which alleges a violation of West Virginia’s WPCA, because
the plaintiff cannot demonstrate that the defendants failed to pay
him any wages owed to him based on the WPCA.

In Count VIII, the

plaintiff seeks the payment of a termination payment which is
agreed to in the employment agreement if the plaintiff is not fired
“for cause.”

See ECF No. 17 Ex. 3 *4.

his base rate for a period of one month.

This payment is equal to
Id.

The defendants argue

that the termination payment is not recoverable as it was not
compensation for labor or services rendered by him, nor was it an
accrued benefit because the plaintiff was fired “for cause.”

The

plaintiff opposes this argument, however, and states that the
termination payment is a fringe benefit owed to him and covered
under West Virginia’s WPCA.

17

The WPCA “is remedial legislation designed to protect working
people and assist them in the collection of compensation wrongly
withheld.” Mullins v. Venable,297 S.E.2d 866, 869 (1982). The Act
“controls the manner in which employees in West Virginia are paid
wages.”

Gress v. Petersburg Foods, LLC, 592 S.E.2d 811, 814 (W.

Va. 2003).

Under the WPCA, wages are specifically defined 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
. . . .
[T]he 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 employees which does not contradict the
provisions of this article.
W. Va. Code § 21-5-1(c) (emphasis added).

The term fringe benefit

is defined as “any benefit provided an employee or group of
employees by an employer, or which is required by law.”
Code § 21-5-1(l).

W. Va.

“[W]hether fringe benefits have then accrued,

are capable of calculation and payable directly to an employee so
as to be included in the term “wages” are determined by the terms
of

employment

§ 21-5-1(c).”

and

not

by

the

provisions

of

W.

Va.

Code

Syl. pt. 5, Meadows v. Wal-Mart Stores, Inc., 503

S.E.2d 676 (1999).
The plaintiff does not contest that the termination payment is
not “compensation for labor or services rendered by an employee.”
Instead, he argues that the payment is a fringe benefit.
18

The

defendants’ argument against the payment being considered a fringe
benefit is that the plaintiff was fired “for cause” and therefore,
did not accrue to the plaintiff.

As noted above, the termination

payment is only owed to an employee who is fired for a reason other
than “for cause.”

This Court, however, previously decided above

that the defendants’ argument that the plaintiff was fired “for
cause,” did not suffice for this Court to grant the dismissal of
the breach of employment agreement.
was

fired

“for

cause”

is

Whether or not the plaintiff

disputed,

and

the

plaintiff

has

sufficiently plead that he was not fired for cause, but instead for
discriminatory reasons.

If it is determined that he was not fired

“for cause” at a later stage in this litigation, the plaintiff may
at that time be entitled to the termination payment.

Therefore,

this Court cannot dismiss Count VIII based on the defendants’
argument that the fringe benefit did not accrue to the plaintiff.
F.

Civil conspiracy
The next argument provided by the defendants in support of

their motion to dismiss concerns Count IX of the plaintiff’s
complaint, which alleges a civil conspiracy between the defendants
to deprive the plaintiff of his protected civil rights.
defendants

argue

that

the

three

defendants

are

The

affiliated

corporations, and as such cannot be co-conspirators. The plaintiff
argues in opposition, that this intracorporate immunity defense

19

should not apply outside of the antitrust context and should
therefore not apply to this case.
Under West Virginia law, a civil conspiracy is defined as “a
combination

of

two

or

more

persons

by

concerted

action

to

accomplish an unlawful purpose or to accomplish some purpose, not
in itself unlawful, by unlawful means.”

Dixon v. American Indus.

Leasing Co., 253 S.E.2d 150, 152 (W. Va. 1979).

In Copperweld

Corp. v. Independence Tube Corp., the Supreme Court held that at
least for purposes of § 1 of the Sherman Act, parent companies and
their wholly-owned subsidiaries cannot conspire with one another.
467 U.S. 752, 771 (1984).

The Supreme Court stated in its

reasoning for this holding, that the parent and subsidiaries
general corporate actions are guided or determined not by
two separate corporate consciousness, but one. They are
not unlike a multiple team of horses drawing a vehicle
under the control of a single driver. With or without a
formal “agreement,” the subsidiary acts for the benefit
of the parent, its sole shareholder.
Id.
The plaintiff in this action argues that the intracorporate
immunity defense is only applied in antitrust actions under the
Sherman

Act

because

such

Act

is

concerned

with

regulating

competition in the marketplace.

He explains that because a parent

company

are

and

its

subsidiaries

not

in

competition,

their

combining actions and objectives do not threaten the free market,
which is the concern that the Sherman Act is meant to address.

In

comparison, the plaintiff states that no similar rationale exists
20

for applying the defense in cases involving related corporations
conspiring to deprive individuals of rights under state and federal
civil rights laws.
This Court does not find the plaintiff’s argument persuasive
enough for it to decline to apply the defense in this instance.
First, this Court notes that the plaintiff is incorrect in stating
that the intracorporate defense is only applied in antitrust cases.
See United States of America ex rel. Brooks v. Lockheed Martin
Corp.,

423

F.

Supp.

2d

522,

528

(D.

Md.

2006)

(applying

intracorporate immunity doctrine to a case involving a conspiracy
claim under the False Claims Act against a government contractor
and its wholly-owned subsidiaries); Kerns v. Range ResourcesAppalachia, LLC, No. 1:10CV23 2011 WL 3753117 at *6 (N.D. W. Va.
Aug. 23, 2011) (applying the intracorporate immunity defense when
a plaintiff argued that a parent and subsidiary company conspired
to commit fraud).

Further, the explanation offered by the Supreme

Court in Copperweld, that the actions of the parent and the
subsidiary are guided by one consciousness, is applicable in this
situation

as

well

where

the

plaintiff

is

defendants deprived him of his civil rights.

alleging

that

the

The defendants were

not acting as separate parties when terminating the plaintiff, but
instead were acting with one consciousness.
finds

that

the

plaintiff

cannot

state

Therefore, this Court
a

claim

against

the

defendants for conspiracy to deprive him of his civil rights

21

because two separate parties were not involved in the alleged
unlawful actions.3
G.

Subject matter jurisdiction
The defendants’ final argument in their motion to dismiss

concerns this Court’s subject matter jurisdiction over the counts
of the plaintiff’s complaint which allege violations of Title VII
and the ADEA.

As noted above, the plaintiff’s ADEA claims are

dismissed because this Court lacks subject matter jurisdiction over
those

claims

because

the

plaintiff

failed

to

exhaust

administrative remedies as it pertained to his ADEA claims.

his
Thus,

this Court need only address this subject matter jurisdiction
argument as it pertains to Counts I, VII and V insomuch as Count V
alleges retaliation in violation of Title VII.
The

defendants

specifically

argue

that

this

Court

lacks

subject matter jurisdiction over the plaintiff’s Title VII claims
against defendants CONSOL and Consol PA because the plaintiff
failed to name these defendants in the charge of discrimination
filed with the EEOC.

The plaintiff, however, argues that CONSOL

was included in the plaintiff’s charge and both CONSOL and Consol
PA appeared as respondents in their answer to the plaintiff’s
charge.

Further, the plaintiff notes that all defendants were

3

This Court notes that the defendants also argue that the
plaintiff’s conspiracy claim in Count IX should also be dismissed
as preempted by the WVHRA. Due to this Court dismissing the claim
based on the intracorporate immunity defense, however, it need not
address this argument.
22

charged by the EEOC with violating the plaintiff’s rights under
Title VII.
“Under

Title

VII,

a

civil

action

may

be

brought

after

administrative proceedings have ended or conciliation attempts have
failed only ‘against the respondent named in the [administrative]
charge.’”

Alvarado v. Board of Trustees of Montgomery Community

College, 848 F.2d 457, 458 (4th Cir. 1988) (citing 42 U.S.C.
§ 2000e-5(f)(1)).

The United States Court of Appeals for the

Fourth Circuit stated that two purposes are served by this naming
requirement: (1) it provides notice to the party of the alleged
violation; and (2) it provides an opportunity to secure voluntary
compliance with the law.

Id. at 458-59.

The failure to name a

defendant in the charge does not bar a subsequent suit if these
purposes are “substantially met.”

Vanguard Justice Soc., Inc. v.

Hughes, 471 F. Supp. 670, 687 (D. Md. 1979) (citations omitted).
Further, because EEOC charges are usually made by lay persons, they
“must be construed with utmost liberality.”

Alvarado, 848 F.2d at

460.
First, this Court notes that McElroy and CONSOL were named in
the plaintiff’s EEOC charge.

See ECF No. 25 Ex. 1 *1.

The only

party the plaintiff failed to name in his charge was Consol PA.
Although, while the plaintiff did fail to specifically name Consol
PA in his EEOC charge, Consol PA still had notice of the alleged
violation and it had an opportunity to voluntarily comply with the

23

law through the conciliation process.

This is evidenced by the

defendants’ response to the EEOC charge.
response

states

as

follows:

“This

The first line of the

firm

represents

Consol

Pennsylvania Coal Co. d/b/a McElroy Coal Co., a wholly owned
subsidiary of CONSOL Energy Inc. (“CONSOL”) with respect to the
above-referenced charge of discrimination filed by Tony Clay.” ECF
No. 25 Ex. 4 *1 (emphasis added).

Thus, if Consol PA’s attorneys

were responding to the EEOC charge, it is clear that they had
notice of the charge and had an opportunity to comply with the law
through the conciliation process.

Further, the determination

letter issued by the EEOC specifically names all three defendants,
which provides additional support to the proposition that the
purposes of the naming requirement were met as to Consol PA.
ECF No. 17 Ex. 1 *1.

See

Thus, based on this evidence as a whole, the

purposes of the naming requirement were not comprised.

This Court

finds there to be no reason to dismiss the Title VII claims against
Consol PA based on a procedural error of a lay person that had no
affect on the underlying purposes of the requirement.
IV.

Conclusion

For the reasons stated above, the defendants’ motion to
dismiss the amended complaint as it relates to Count III, Count IV,
Count V insomuch as it is related to retaliation claims brought
under the ADEA and the WVHRA, Count VI, Count VII as it pertains to
McElroy and CONSOL, and Count IX is GRANTED.

24

The defendants’

motion as it relates to Count I, Count II, Count V insomuch as it
pertains to claims of retaliation brought under Title VII, Count
VII as it pertains Consol PA, and Count VIII is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

July 3, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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