Rose v. Kanawha County Board of Education
Filing
30
MEMORANDUM OPINION AND ORDER granting in part and denying in part defendant's 13 AMENDED MOTION to Dismiss, as directed and set forth more fully herein; denying as moot defendant's 5 MOTION to Dismiss; denying as moot defendant 's 7 MOTION for Leave to Seal Exhibit B to Motion to Dismiss; denying defendant's 9 MOTION to Enter Judgment; granting defendant's 15 MOTION for Leave to Seal Exhibit B to Amended Motion to Dismiss; the Court DISMISSES Plaintiff's request for injunctive relief in the Complaint. Signed by Judge Thomas E. Johnston on 3/28/2016. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DEBORA ROSE,
Plaintiff,
v.
CIVIL ACTION NO. 2:15-cv-02473
KANAWHA COUNTY BOARD OF
EDUCATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Amended Motion to Dismiss (“Defendant’s
Motion”).1 (ECF No. 13.) For the reasons provided herein, the Court GRANTS IN PART and
DENIES IN PART Defendant’s Motion.
I. Background
This case relates to an employment dispute between Plaintiff (the employee) and Defendant
(the employer). Defendant is “organized . . . under West Virginia law.” (ECF No. 1 ¶ 2.) “Plaintiff
1
On May 11, 2015, Defendant filed its initial Motion to Dismiss. (ECF No. 5.) Defendant subsequently filed
Defendant’s Motion on August 3, 2015. (ECF No. 13.) In Defendant’s Motion, Defendant asserts each of the
arguments it presented in its first Motion to Dismiss, (see ECF Nos. 6 & 14), with the exception of an exhaustion
argument that Defendant concedes “is no longer applicable in the present case” due to a successful mediation between
the parties as to Plaintiff’s underlying claims, (see ECF No. 14 at 9). (See generally id. at 1 (providing that Defendant
filed Defendant’s Motion due to the Court entering an order and notice “setting August 3, 2015 . . . as the deadline to
file” motions under Federal Rule of Civil Procedure 12(b)).) As Defendant reasserts each of its live arguments in
Defendant’s Motion, the Court finds that Defendant’s initial Motion to Dismiss is moot. The Court therefore DENIES
AS MOOT Defendant’s first Motion to Dismiss. (ECF No. 5.)
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is a resident of Kanawha County, West Virginia, and at all times relevant to the allegations of [the]
Complaint, has been an employee of Defendant.” (Id. ¶ 3.)
The Complaint alleges that Plaintiff “is not subject to any of the exemptions from the
minimum wage and maximum hour provisions of the” Fair Labor Standards Act (the “FLSA”).
(Id.) The Complaint also alleges that Plaintiff “previously received overtime compensation on
some occasions in an amount representing one and one-half times her regular rate of pay for all
hours over forty worked in any one workweek.” (Id.)
The Complaint avers that “[r]ecords of employee working time at Defendant’s Elkview
Bus Garage are created by the FLSA non-exempt employees ‘swiping’ a personally-identifying
card through an electronic time clock that then records the time of each such swipe.” (Id. ¶ 4.) The
Complaint also alleges that, “[f]or a period of time prior to the institution of this action, Plaintiff
kept and maintained her own, hand-written yet accurate records of the times at which she would
swipe her personally-identifying card through the electronic time clock.” (Id. ¶ 6.) The Complaint
avers that Plaintiff began “making her own independent records of swipes upon a suspicion that
she was not being paid for all of the hours she was actually . . . work[ing] . . . .” (Id.)
The Complaint alleges that “the current supervisor of” the “Elkview Bus Garage” is “Peggy
Whitaker.” (Id. ¶ 4.) The Complaint avers that, “[p]ursuant § 83.04 of Defendant’s Time and
Attendance Policy, the appropriate supervisor is to review and to approve each employee’s time
records . . . following the end of the payroll period.” (Id. ¶ 8.) Plaintiff further avers―“[u]pon
information and belief”―that “the electronic process for the review and approval of employee
time records permits the supervisor to alter the records created by the electronic time clock.” (Id.)
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The Complaint alleges that, “[o]n or about October 22, 2014, Plaintiff requested from
Whitaker a print-out of” Plaintiff’s “[t]imesheet generated by her own time clock swipes with her
supervisor’s edits and approvals of the time recorded.” (Id. ¶ 10.) The Complaint also avers that,
“[w]hen asked by Whitaker why [Plaintiff] wanted the records, Plaintiff answered that she was
seeking the print-out for purposes of testing whether Plaintiff’s actual working time was being . .
. reduced without her knowledge or consent.” (Id.) The Complaint alleges that “Whitaker . . .
provided the requested records for the time period from August 10, 2014-October 22, 2014, but
did so with her own hand-written notes on it challenging some of Plaintiff’s time entries that had
already been approved by Whitaker.” (Id.) The Complaint avers that Plaintiff then compared this
time sheet with her “hand-written notes” and found “no fewer than 28 instances over the course of
. . . 55 working days on which Plaintiff’s time clock swipes were reduced or eliminated.” (Id. ¶
11.)
The Complaint next alleges that “[a]lmost immediately upon [Plaintiff’s] October 22
request to Whitaker for a print-out of her . . . [t]imesheet, Whitaker pursued a pattern of conduct .
. . in retaliation for Plaintiff’s notification to Whitaker of [Plaintiff’s] belief that Defendant was
not paying [Plaintiff] in accordance with” the requirements of the FLSA. (Id. ¶ 12.) In particular,
the Complaint avers that “Plaintiff requested from Whitaker permission to take off three
consecutive days of work using [Plaintiff’s] accrued personal leave” and Whitaker responded by
“approving a single day of the requested leave but denying the others.” (Id.) The Complaint further
alleges that “Whitaker then posted a notice to all employees that there would be no leave approved
on the particular days sought by Plaintiff,” but nevertheless “allowed another employee to take off
work during those days using personal leave.” (Id. ¶ 13.) The Complaint alleges that, “upon
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information and belief,” Whitaker engaged in “a pattern of harassment and retaliation for
Plaintiff’s complaint voiced . . . two weeks earlier that Whitaker was altering [Plaintiff’s] time
records” by (1) “den[ying] . . . Plaintiff’s request for personal leave;” (2) relying “on specious
reasoning for denying [Plaintiff’s] leave request;” and (3) “false[ly] claim[ing] that she was
denying all leave during the particular days sought by Plaintiff.” (Id. ¶ 15.)
The Complaint alleges that, despite the denial of her request, “Plaintiff . . . did not work”
and “took sick leave” on “the days for which her request for personal leave had been denied.” (Id.
¶ 14.) The Complaint then avers that, “[c]iting an alleged violation of Defendant’s Employee
Attendance Policy in her request for sick leave, Defendant suspended Plaintiff from her
employment with pay effective November 14, 2014.” (Id. ¶ 15.) The Complaint alleges that this
“paid suspension . . . was converted to a two-day, unpaid disciplinary suspension,” which Plaintiff
“served . . . on January 6 and 7, 2015.” (Id. ¶ 16.) Finally, the Complaint avers that “Defendant
failed and refused to pay Plaintiff wages she was owed and had not previously been paid on her
next regular payday.” (Id.)
Plaintiff filed the Complaint in this Court on March 4, 2015. (ECF No. 1.) The Complaint
asserts that Defendant’s alleged conduct violated numerous sections of the FLSA, including
provisions under 29 U.S.C. §§ 207, 211, 215, and 217, (see id. ¶¶ 17, 19‒22; see also id. ¶ 17
(asserting that Defendant’s alleged conduct “may also violate” 29 U.S.C. § 206)), as well as
Defendant’s obligations under the West Virginia Wage Payment and Collection Act (the
“WPCA”), (see id. ¶ 24). The Complaint includes the following prayers for relief: (1) “[a]n order
entered pursuant to 29 U.S.C. § 217 of the [FLSA] permanently enjoining and restraining
Defendant . . . from violating 29 U.S.C. §§ 206, 207, 211(c), 215(a)(2), (3) and (5) of the [FLSA];”
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(2) “[a]n order entered pursuant to 29 U.S.C. § 216(b) finding Defendant liable to Plaintiff for all
damages she has suffered as the result of the alteration of her time records and any resulting denial
of wages she should have received . . . as a result of Defendant’s violations of 29 U.S.C. §
215(a)(3);” (3) “damages incurred over a period of three years predating the filing of [the]
Complaint under 29 U.S.C. § 255 for” Defendant’s alleged “willful violations of the [FLSA];” (4)
“[a]n order entered pursuant to West Virginia Code § 21-5-4 finding Defendant liable for all
damages Plaintiff has suffered as the result of the denial of pay she was owed as of the next regular
payday following her unpaid suspension;” and (5) “liquidated damages in an amount equal to
[Plaintiff’s] actual damages and her attorney fees and costs associated with the pursuit of this
action,” as well as treble damages for Defendant’s alleged violations of the WPCA. (Id. at 10‒11.)
On May 11, 2015, Defendant filed its initial Motion to Dismiss. (ECF No. 5.) On June 22,
2015, Defendant filed a Motion to Enter Judgment on Defendant’s Motion to Dismiss (the “Motion
to Enter Judgment”). (ECF No. 9.) The next day, Plaintiff untimely filed her opposition to
Defendant’s initial Motion to Dismiss. (ECF No. 11.) Defendant then filed Defendant’s Motion on
August 3, 2015. (ECF No. 13.) To date, Plaintiff has not filed a responsive briefing to Defendant’s
Motion. As such, Defendant’s Motion is ready for disposition.
II. Subject Matter Jurisdiction
Defendant first challenges this Court’s subject matter jurisdiction over Plaintiff’s FLSA
claims pursuant to Federal Rule of Civil Procedure 12(b)(1). 2 (See ECF No. 14 at 4‒7.) In
In Defendant’s Motion to Enter Judgment, Defendant notes that Plaintiff “failed to file a response to Defendant’s”
initial Motion to Dismiss and requests “an entry of Judgment on” this first Motion to Dismiss. (ECF No. 9 at 1‒2.)
“Where a plaintiff fails to respond to a motion to dismiss within the time period set forth by the applicable procedural
rules, a court may rule on the motion to dismiss ‘on the uncontroverted bases asserted therein.’” Hager v. Star Transp.,
Inc., Civil Action No. 2:11–cv–00618, 2012 WL 3139465, at *1 (S.D. W. Va. Aug. 1, 2012) (citing Pueschel v. United
States, 369 F.3d 345, 354 (4th Cir. 2004)). Indeed, “[a] number of federal courts have declared that a motion to dismiss
may be properly granted without reaching the merits, based on the theory that (i) plaintiff’s failure to respond operates
2
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particular, Defendant argues that the Court lacks subject matter jurisdiction to address the merits
of Plaintiff’s claims under both of the specific statutory provisions that Plaintiff cites in the
Complaint for the purpose of invoking this Court’s jurisdiction―29 U.S.C. §§ 216(c) and 217.3
(See id. See generally ECF No. 1 ¶ 1 (providing Plaintiff’s assertion in the Complaint that
“[j]urisdiction over this action is conferred on this [C]ourt by Sections 16(c) and 17 of the [FLSA],
29 U.S.C. §§ 216(c) and 217”).)
For the reasons provided below, the Court agrees with Defendant’s arguments that Plaintiff
lacks standing to raise claims under either Sections 216(c) or 217 of the FLSA. Nonetheless, the
Court finds that it has federal question jurisdiction over Plaintiff’s remaining Section 216(b)
claims.
A.
Standard for Rule 12(b)(1) Motions
“Under Rule 12(b)(1), a federal court must dismiss a claim if the court lacks [subject
matter] jurisdiction over the claim.” Zimmeck v. Marshall Univ. Bd. of Governors, Civil Action
as a concession that the motion should be granted, or (ii) dismissal is appropriate as a sanction for failure to prosecute
or to obey the court’s orders.” Anderson v. Greene, No. Civ. 05-0393-WS-M, 2005 WL 1971116, at *2 (S.D. Ala.
Aug. 16, 2005) (citing Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294–95 (D.C. Cir. 2004), Pomerleau v. W. Springfield
Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004), and Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)).
However, as this Court previously stated, “when a [p]laintiff fails to respond to a motion to dismiss, the Court does
not deem such motion confessed, but rather [the Court] has an independent duty to examine the merits of that motion.”
Acey v. Bob Evans Farms, Inc., Civil Action No. 2:13‒cv‒04916, 2014 WL 989201, at *2 (S.D. W. Va. Mar. 13,
2014). Pursuant to this independent duty, this Court has consistently addressed the merits of motions to dismiss,
regardless of whether the plaintiff files opposition briefing. See, e.g., Tamburo v. Hall, Civil Action No. 2:13‒cv‒
01537, 2015 WL 1276711, at *3 n.2 (S.D. W. Va. Mar. 19, 2015); Osborne v. Long, Civil Action No. 1:11‒cv‒00070,
2012 WL 851106, at *10 n.5 (S.D. W. Va. Mar. 13, 2012). The Court therefore rejects Defendant’s request―as
provided in the Motion to Enter Judgment―to dismiss Plaintiff’s claims on the grounds that Plaintiff failed to file a
timely opposition to Defendant’s initial Motion to Dismiss.
Accordingly, the Court DENIES Defendant’s Motion to Enter Judgment. (ECF No. 9.)
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Plaintiff does not allege in the Complaint that this Court holds diversity jurisdiction over this controversy. (See ECF
No. 1; cf. id. ¶¶ 2‒3 (providing Plaintiff’s averments in the Complaint that Defendant is “organized . . . under West
Virginia law” and “Plaintiff is a resident of Kanawha County, West Virginia”).) Rather, Plaintiff’s allegations in the
Complaint attempt to invoke this Court’s federal question jurisdiction. (See id. ¶ 1); cf. Newman v. Gen. Servs. Corp.,
Civil Action No. 3:11cv783, 2012 WL 1882903, at *2 (E.D. Va. May 22, 2012) (“If federal law creates the claim, the
courts of the United States unquestionably have subject matter jurisdiction under 28 U.S.C. § 1331.”).
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No. 3:13–14743, 2013 WL 5700591, at *2 (S.D. W. Va. Oct. 18, 2013). See generally Newman v.
Gen. Servs. Corp., Civil Action No. 3:11cv783, 2012 WL 1882903, at *1 (E.D. Va. May 22, 2012)
(noting that “[a] Rule 12(b)(1) motion most typically is employed when the movant believes that
the claim asserted by the plaintiff does not involve a federal question, and there is no diversity of
citizenship between the parties” (citation omitted)). “A motion to dismiss pursuant to Rule 12(b)(1)
raises the fundamental question of whether a court is competent to hear and adjudicate the claims
brought before it.” Adkins v. United States, 923 F. Supp. 2d 853, 856 (S.D. W. Va. 2013). “It is
axiomatic that a court must have subject matter jurisdiction over a controversy before it can render
any decision on the merits.” Id. “The burden of establishing subject matter jurisdiction rests with
the plaintiff as ‘the party asserting jurisdiction.’” AGI Assocs., LLC v. City of Hickory, N.C., 773
F.3d 576, 578 (4th Cir. 2014) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
“Challenges to jurisdiction under Rule 12(b)(1) may be raised in two distinct ways: ‘facial
attacks’ and ‘factual attacks.’” Zimmeck, 2013 WL 5700591, at *2 (quoting Thigpen v. United
States, 800 F.2d 393, 401 n.15 (4th Cir. 1986), rejected on other grounds, Sheridan v. United
States, 487 U.S. 392 (1988)). Under a “facial attack,” the defendant argues “that the allegations of
the complaint are facially insufficient to sustain the court’s jurisdiction.” Thigpen, 800 F.2d at 401
n.15. “Confronted with a motion of that kind, the court must proceed as it would on a motion to
dismiss for failure to state a claim under Rule 12(b)(6).” Id. “In that situation, the facts alleged in
the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009); see, e.g., Thigpen, 800 F.2d at 401 n.15 (noting that, when considering a facial attack, “[t]he
allegations in the complaint are taken as true, and materials outside the pleadings are not
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considered” (citing Adams, 697 F.2d at 1219 and Williamson v. Tucker, 645 F.2d 404, 412–13 (5th
Cir. 1981))).
In a “factual attack,” the defendant contends “that the plaintiff’s jurisdictional allegations,
though facially adequate, are factually untrue.” Thigpen, 800 F.2d at 401 n.15. “In determining
whether jurisdiction exists” in the context of a factual attack, “the district court is to regard the
pleadings’ allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment.” Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citations
omitted). “The district court should apply the standard applicable to a motion for summary
judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to
show that a genuine issue of material fact exists.” Id. (citing Trentacosta v. Frontier Pac. Aircraft
Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987)).
Defendant argues that Plaintiff’s jurisdictional assertions in the Complaint are inadequate
to invoke this Court’s subject matter jurisdiction. (See ECF No. 14 at 4‒7.) In particular, Defendant
argues that Plaintiff does not have standing to bring claims under the statutory provisions she cites
in the Complaint to invoke this Court’s jurisdiction. (See id.) Defendant does not contend that any
materials outside of the pleadings are necessary to determine this Court’s subject matter
jurisdiction over Plaintiff’s claims. (See ECF No. 14.) The Court therefore construes Defendant’s
arguments regarding subject matter jurisdiction as facial attacks on this Court’s jurisdiction and
shall “proceed as [the Court] would on a motion to dismiss for failure to state a claim under Rule
12(b)(6).”4 Thigpen, 800 F.2d at 401 n.15 (citation omitted); cf. McGee v. Cole, 66 F. Supp. 3d
In the standard of review section of Defendant’s Motion, Defendant provides, in part, the standard applicable to a
factual attack on subject matter jurisdiction. (See ECF No. 14 at 3.) However, Defendant does not contend that
4
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747, 751‒52 (S.D. W. Va. 2014) (interpreting the defendants’ Rule 12(b)(1) motion as a facial
attack where he asserted that the plaintiffs lacked standing to bring their claims).
B.
29 U.S.C. § 217
The Court first addresses Plaintiff’s assertion in the Complaint that the Court holds
jurisdiction over her request for injunctive relief pursuant to 29 U.S.C. § 217. (ECF No. 1 ¶ 1.)
Defendant argues that Plaintiff’s request for injunctive relief must be dismissed because Plaintiff
lacks standing to seek an injunction under Section 217. (See ECF No. 14 at 6‒7; see also id. at 9‒
13 (providing Defendant’s additional arguments that Plaintiff’s request for injunctive relief should
be dismissed for failure to state a claim).) The Court agrees.
29 U.S.C. § 217 of the FLSA provides the following, in pertinent part:
The district courts . . . shall have jurisdiction, for cause shown, to restrain violations
of section 215 of [Title 29], including in the case of violations of section 215(a)(2)
of [Title 29] the restraint of any withholding of payment of minimum wages or
overtime compensation found by the court to be due to employees under this
chapter . . . .
By its plain terms, “Section 217 of the FLSA gives district courts jurisdiction to enter injunctive
relief against an employers’ violations of the [FLSA].” Davis v. Skylink LTD., Civil Action No.
3:11‒0094, 2011 WL 2447113, at *2 (S.D. W. Va. June 15, 2011) (citing 29 U.S.C. § 217).
In the Complaint, Plaintiff requests that the Court enter an order “pursuant to 29 U.S.C. §
217 of the [FLSA] permanently enjoining and restraining Defendant” from violating certain
Plaintiff’s jurisdictional assertions in the Complaint are untrue, or that the Court should consider any evidence outside
of the pleadings to determine whether it holds subject matter jurisdiction over Plaintiff’s claims. (See id. at 1‒13.) The
Court therefore finds that Defendant’s jurisdictional arguments are properly construed as facial attacks on this Court’s
subject matter jurisdiction. See, e.g., Zimmeck v. Marshall Univ. Bd. of Governors, Civil Action No. 3:13‒14743, 2013
WL 5700591, at *3 (S.D. W. Va. Oct. 18, 2013) (construing the defendants’ “12(b)(1) attacks as . . . ‘facial attacks’”
where the defendants did “not challenge the truthfulness of Plaintiff’s . . . allegations”). See generally U.S. ex rel. TBI
Invs., Inc. v. BrooAlexa, LLC, 119 F. Supp. 3d 512, 523 (S.D. W. Va. 2015) (discussing the differences between facial
and factual attacks on a court’s subject matter jurisdiction).
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provisions of the FLSA. (ECF No. 1 at 10.) However, a related statutory provision under the
FLSA―Section 211(a)―“sets forth the authority of the Secretary of Labor to conduct
investigations and inspections for violations of the FLSA,” Howard v. City of Springfield, Ill., 274
F.3d 1141, 1145 (7th Cir. 2001), and states, in pertinent part, that “[e]xcept as provided in section
212 of [Title 29], the Administrator shall bring all actions under section 217 of this title to restrain
violations of this chapter,”5 29 U.S.C. § 211(a). See generally Donovan v. Lone Steer, Inc., 464
U.S. 408, 409 n.1 (1984) (“Although § 11(a) [of the FLSA] grants investigatory authority
specifically to the Wage and Hour Administrator, pursuant to [a reorganization plan], the functions
of all officers of the Department of Labor, including the Wage and Hour Administrator, [were]
transferred to the Secretary of Labor . . . .”). Pursuant to this statutory scheme, “[c]ourts have
generally held that the right to seek injunctive relief under [the FLSA] rests exclusively with the
Secretary [of Labor].” Davis, 2011 WL 2447113, at *2; see, e.g., Mich. Corr. Org. v. Mich. Dep’t
of Corr., 774 F.3d 895, 903 (2014); United Food & Commercial Workers Union, Local 1564 v.
Albertson’s, Inc., 207 F.3d 1193, 1197‒98 (10th Cir. 2000); Howard, 274 F.3d at 1145; Powell v.
Florida, 132 F.3d 677, 678 (11th Cir. 1998); Barrentine v. Ark.-Best Freight Sys., Inc., 750 F.2d
47, 51 (8th Cir. 1984); see also Lorillard v. Pons, 434 U.S. 575, 581 (1978) (“[I]n construing the
enforcement sections of the FLSA, the courts had consistently declared that injunctive relief was
not available in suits by private individuals but only in suits by the Secretary.” (citations omitted));
Bailey v. TitleMax of Ga., Inc., 776 F.3d 797, 804 n.5 (11th Cir. 2015) (“In private FLSA actions,
. . . courts are empowered to grant only legal relief.” (citation omitted)).
5
Section 212 of Title 29 pertains to child labor. See 29 U.S.C. § 212. Plaintiff raises no allegations related to child
labor in the Complaint. (See ECF No. 1.) The Court therefore finds that the exception in Sections 211(a) pertaining
to child labor is inapplicable in this action.
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Plaintiff has failed to offer any argument as to why she is entitled to seek injunctive relief
under Section 217 despite this pervasive and persuasive authority indicating that the Secretary of
Labor retains the exclusive right to enjoin employers under the FLSA.6 (See ECF No. 11 ¶ 3
(providing Plaintiff’s statement that “it appears” that Defendant’s arguments regarding “the issue
of the availability of injunctive relief . . . have some validity”).) The Court therefore finds that, in
the present case, it “would have jurisdiction to entertain a request for injunctive relief only from
Plaintiff’s desired injunctive relief includes a permanent injunction against Defendant from violating the retaliation
provision under 29 U.S.C. § 215(a)(3). (See ECF No. 1 at 10.) In Bailey v. Gulf Coast Transportation, Inc., the
Eleventh Circuit recognized a limited exception to the general rule that private plaintiffs cannot seek injunctive relief
under the FLSA. See 280 F.3d 1333, 1335‒37 (11th Cir. 2002). The Bailey court held that, under the plain meaning
of 29 U.S.C. § 216(b), a plaintiff may “obtain preliminary injunctive relief to address violations of the [FLSA’s]
antiretaliation provision” under Section 215(a)(3). Id. at 1337. See generally Brown v. Club Assist Rd. Servs. U.S.,
Inc., Case No. 12 CV 5710, 2014 WL 1884461, at *11 (N.D. Ill. May 12, 2014) (noting that “[t]he Eleventh Circuit
appears to be the only Court of Appeals that squarely has confronted [this] issue”). The Court has not located any case
law from the Fourth Circuit or another court in this District specifically addressing this issue.
However, the Court need not reach the issue of whether the FLSA provides this limited exception to the
general bar against private injunctive relief for several reasons. First, Plaintiff only requests injunctive relief pursuant
to Section 217 of Title 29. (See ECF No. 1 at 10.) By contrast, the Bailey court found that the limited exception
permitting private plaintiffs to obtain injunctive relief arose solely out of Section 216(b). See 280 F.3d at 1335‒37.
Second, the circumstances of this case materially differ from those in Bailey. In particular, Plaintiff does not
allege that her position was terminated, or that she is in immediate danger of suffering irreparable harm. (See ECF No.
1.) Plaintiff also seeks permanent injunctive relief, rather than a preliminary injunction. (See id. at 10.) In contrast,
Bailey involved terminated employees who sought reinstatement through preliminary injunctive relief. See 280 F.3d
at 1336 (“An injunction reinstating employees to their former position and restraining further retaliation fits squarely
within the relief available under § 216(b) . . . .”); see also Carrillo v. Schneider Logistics, Inc., No CV 11‒8557 CAS
(DTBx), 2012 WL 556309, at *9 (C.D. Cal. Jan. 31, 2012) (granting the plaintiffs’ motion for preliminary injunction
pursuant to Section 216(b) where an “entire . . . workforce” faced termination the following month); Long v. Murray,
No. 6:09‒cv‒1320‒Orl‒19DAB, 2009 WL 4806941, at *1‒4 (M.D. Fla. Dec. 4, 2009) (addressing the plaintiff’s
request for a preliminary injunction pursuant to the Bailey opinion where the plaintiff was terminated from his
position). As such, Bailey is inapplicable to this case both as to the alleged harm and the injunctive relief Plaintiff
requests in the Complaint.
Finally, Plaintiff has not made the requisite allegations to sustain her request for a permanent injunction. In
particular, one requirement of a permanent injunction is that remedies available at law, such as monetary damages,
are insufficient to compensate for the injury to the plaintiff. See, e.g., eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006) (noting that one requirement to obtain permanent injunctive relief is that “remedies available at law,
such as monetary damages, are inadequate to compensate” a plaintiff for their “irreparable injury”). Plaintiff has failed
to make any allegation in the Complaint―or offer any argument in her briefing―that monetary remedies are
inadequate compensation for her alleged injuries. (See ECF No. 1; see also id. at 23 (providing Plaintiff’s averment
in the Complaint that “Plaintiff suffered damages” as a result of Defendant’s alleged violations of the FLSA).) Absent
such allegation, Plaintiff is not entitled to permanent injunctive relief. See, e.g., eBay Inc., 547 U.S. at 391.
For these reasons, the Court finds that―regardless of whether injunctive relief is available for retaliation
claims under Section 216(b) of Title 29―Plaintiff’s request for a permanent injunction preventing Defendant from
violating 29 U.S.C. § 215(a)(3) must be dismissed.
6
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the Secretary of Labor, not Plaintiff[].” N.Y. State Court Clerks Ass’n v. Unified Court Sys. of N.Y.,
25 F. Supp. 3d 459, 466 (S.D.N.Y. 2014). As Plaintiff cannot seek injunctive relief under Section
217, her request for such relief in the Complaint are properly dismissed.7
Accordingly, the Court GRANTS Defendant’s Motion insofar as Defendant seeks
dismissal of Plaintiff’s request for injunctive relief pursuant to 29 U.S.C. § 217.8
C.
29 U.S.C. § 216(b) and (c)
Defendant argues that the Court should dismiss Plaintiff’s remaining FLSA claims for lack
of subject matter jurisdiction because Plaintiff does not have standing to bring these claims under
the other statutory provision Plaintiff cites for the purpose of invoking this Court’s
jurisdiction―29 U.S.C. § 216(c). (See ECF No. 14 at 4‒6.) While the Court agrees that Plaintiff
lacks standing to raise claims under Section 216(c), the Court nonetheless finds that it holds federal
question jurisdiction over Plaintiff’s remaining FLSA claims.
On the first page of the Complaint, Plaintiff asserts that “[j]urisdiction over this action is
conferred on this [C]ourt by Section[] 16(c) . . . of the [FLSA], 29 U.S.C. § . . . 216(c).” (ECF No.
1 ¶ 1.) “Section 216(c) authorizes the Secretary to bring an action on behalf of an employee for
unpaid overtime and minimum wages and to seek an equal amount as liquidated damages.” Martin
v. Deiriggi, 985 F.2d 129, 134 (4th Cir. 1992) (citation omitted); see 29 U.S.C. § 216(c) (providing,
In her opposition to Defendant’s initial Motion to Dismiss, Plaintiff requests that the Court “hold a ruling in abeyance
on the issue of the availability of injunctive relief” so that Plaintiff’s counsel may have “the opportunity to conduct
additional research before potentially conceding” this issue. (ECF No. 11 ¶ 3.) Plaintiff filed this opposition on June
23, 2015. (See ECF No. 11.) Over nine months have passed since Plaintiff made this request and she has not provided
any additional arguments as to why her request for injunctive relief should not be dismissed. The Court therefore finds
that Plaintiff had an overabundance of time to address this issue and that a stay on the ruling as to the issue of injunctive
relief is not warranted.
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As the Court grants Defendant’s Motion to the extent it requests dismissal of Plaintiff’s Section 217 claims pursuant
to Federal Rule of Civil Procedure 12(b)(1), it does not reach Defendant’s alternative argument that the Court should
dismiss these Section 217 claims pursuant to Rule 12(b)(6). (See ECF No. 14 at 9‒13.)
7
12
in pertinent part, that “[t]he Secretary may bring an action in any court of competent jurisdiction
to recover the amount of unpaid minimum wages or overtime compensation and an equal amount
as liquidated damages”). As Defendant correctly notes, Section 216(c) is a grant of authority to
the Secretary of Labor and does not give private plaintiffs a separate cause of action. See, e.g.,
Martin, 985 F.2d at 134. Instead, to “afford[] individual employees access to the courts,” Congress
“armed” individuals “with a private cause of action” under Section 216(b). Bonetti v. Embarq
Mgmt. Co., 715 F. Supp. 2d 1222, 1224‒25 (M.D. Fla. Aug. 4, 2009). See generally Dellinger v.
Sci. Applications Int’l Corp., 649 F.3d 226, 228 (4th Cir. 2011) (“The [FLSA] is enforced through
criminal prosecutions, 29 U.S.C. § 216(a); private civil actions by employees, id. § 216(b); and
civil enforcement actions by the Secretary of Labor, id. §§ 216(c), 217.”). As such, Plaintiff’s
private cause of action for her remaining FLSA claims lies in Section 216(b), see, e.g., Dellinger,
649 F.3d at 228, and not Section 216(c), which Plaintiff errantly identified in the Complaint as the
statutory basis for this Court’s jurisdiction, (see ECF No. 1 ¶ 1).
In her opposition briefing, Plaintiff concedes that her reference to Section 216(c) in the
Complaint was a “typographical error” and that this Section provides “a cause of action available
only to the U.S. Secretary of Labor.” (ECF No. 11 ¶ 1.) However, Plaintiff argues that this Court
has subject matter jurisdiction over her remaining FLSA claims because Plaintiff cites the correct
statutory provision―Section 216(b)―in her prayer for relief. (See id.) Defendant, for its part, does
not contest that Plaintiff later cited Section 216(b), or that Section 216(b) is the correct statutory
basis for Plaintiff’s remaining FLSA claims. (See ECF No. 14 at 4‒7.) Instead, Defendant argues
that Plaintiff’s sole incorrect reference to Section 216(c) on the first page of the Complaint
precludes this Court’s jurisdiction over Plaintiff’s remaining FLSA claims. (See id. at 4.)
13
Defendant cites no authority in support of its argument that this isolated errant reference to Section
216(c) precludes this Court’s subject matter jurisdiction over Plaintiff’s remaining FLSA claims.
(See ECF No. 14.)
The Court is not persuaded by Defendant’s argument. Defendant asks that this Court find
that it lacks subject matter jurisdiction over Plaintiff’s remaining FLSA claims based on an isolated
reference to Section 216(c) in the Complaint, (see id. at 4), even though Plaintiff later identified
the correct statutory provision in her prayer for relief, (see ECF No. 1 at 10). In essence, Defendant
asks this Court to ignore the clear foundation for this Court’s federal question jurisdiction over
Plaintiff’s Section 216(b) claims provided in the substance of the Complaint based on what appears
to be a one-letter typographical error on the first page of the Complaint. The Court rejects
Defendant’s request. See, e.g., Vernell v. Nuvell Credit Co., Case No. 2:15-cv-674-FtM-38MRM,
2016 WL 931104, at *2 (M.D. Fla. Mar. 11, 2016) (noting that a counterclaim contained “a
typographical error” in that the party “cit[ed] the wrong jurisdictional statute,” but finding that
“this typographical error does not warrant dismissal” where the correct statute was “clear”); U.S.
ex rel. Bahrani v. ConAgra, Inc., 183 F. Supp. 2d 1272, 1279‒80 (D. Colo. 2002) (finding “no
basis for dismissal” where the plaintiff “did not cite to the specific or proper subsections of the
[statute] in pleading subject matter jurisdiction” and these were “technical or typographical errors
at most that in no way misled [the defendants]”); cf. Citigroup, Inc. v. Wachovia Corp., 613 F.
Supp. 2d 485, 493 (S.D.N.Y. 2009) (“This Court will not base subject matter jurisdiction on a
typographical error.”). See generally Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (noting
“the federal policy in favor of resolving cases on their merits instead of disposing of them on
technicalities” (citation omitted)). The Court therefore finds that it has federal question jurisdiction
14
over Plaintiff’s Section 216(b) claims. See, e.g., 29 U.S.C. § 216(b) (“An action to recover the
liability prescribed in [Section 216(b)] may be maintained against any employer . . . in any Federal
or State court of competent jurisdiction by any one or more employees for and in behalf of himself
or themselves and other employees similarly situated.”); Breuer v. Jim’s Concrete of Brevard, Inc.,
538 U.S. 691, 695 (2003) (“[T]he district courts . . . have original jurisdiction over [Section 216(b)]
FLSA claims under 28 U.S.C. § 1331, as ‘arising under the Constitution, laws, or treaties of the
United States,’ and § 1337(a), as ‘arising under any Act of Congress regulating commerce.’”).
Accordingly, the Court DENIES Defendant’s Motion to the extent Defendant seeks
dismissal of Plaintiff’s remaining FLSA claims.
III. Supplemental Jurisdiction
Defendant next argues that―as the Court purportedly lacks subject matter jurisdiction over
Plaintiff’s FLSA claims―the Court should decline to exercise its supplemental jurisdiction over
Plaintiff’s state-law claim under West Virginia Code § 21-5-4.9 (See ECF No. 14 at 7.) The Court
disagrees.
The Supreme Court “has long adhered to principles of pendent and ancillary jurisdiction
by which the federal courts’ original jurisdiction over federal questions carries with it jurisdiction
over state law claims that ‘derive from a common nucleus of operative fact.’” City of Chi. v. Int’l
Coll. of Surgeons, 522 U.S. 156, 164‒65 (1997) (quoting Mine Workers v. Gibbs, 383 U.S. 715,
725 (1966)); see also Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir. 1995) (noting that the
Defendant entitled its argument regarding the Court’s jurisdiction over Plaintiff’s state-law claim as the following:
“This Court does not have subject matter jurisdiction over Plaintiff’s State Law Claim.” (ECF No. 14 at 7.) While this
title references “subject matter jurisdiction,” the substance of Defendant’s argument indicates that Defendant requests
that this Court refrain from exercising supplemental jurisdiction over Plaintiff’s state-law claim. (See id. (citing
multiple provisions of the supplemental jurisdiction statute―28 U.S.C. § 1367―using the term “supplemental
jurisdiction” three separate times).) The Court therefore construes Defendant’s argument relating to Plaintiff’s statelaw claim as requesting that the Court decline to exercise supplemental jurisdiction over this claim.
9
15
supplemental jurisdiction statute “is not limited to cases where the original basis for federal
jurisdiction was a federal question,” as “[i]t clearly provides for the operation of supplemental
jurisdiction in diversity cases”). “Congress has codified those principles in the supplemental
jurisdiction statute, which combines the doctrines of pendent and ancillary jurisdiction under a
common heading.” City of Chi., 522 U.S. at 165 (citing 28 U.S.C. § 1367). This statute provides
the following, in pertinent part:
[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States Constitution.
28 U.S.C. § 1367(a). “Supplemental jurisdiction thus allows parties to append state law claims
over which federal courts would otherwise lack jurisdiction, so long as they form part of the same
case or controversy as the federal claims.” Shanaghan, 58 F.3d at 109 (citation omitted). Federal
and state claims “form part of the same case or controversy” if they “derive from a common
nucleus of operative fact.” Gibbs, 383 U.S. at 725. “But if, considered without regard to their
federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try
them all in one judicial proceeding, then . . . there is power in federal courts to hear the whole.”
Id.
Additionally, “[t]he Court may decline to exercise supplemental jurisdiction over a claim
for reasons listed in 28 U.S.C. § 1367(c).” Penn v. Citizens Telecom Servs. Co., 999 F. Supp. 2d
888, 901 (S.D. W. Va. 2014) (citation omitted). Section 1367(c) provides that the district court
“may decline to exercise supplemental jurisdiction” if: (1) “the claim raises a novel or complex
issue of State law;” (2) “the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction;” (3) “the district court has dismissed all claims over
16
which it has original jurisdiction;” or (4) “in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.” In addition to these statutory considerations, other “factors that
inform this discretionary determination are convenience and fairness to the parties, the existence
of any underlying issues of federal policy, comity, and considerations of judicial economy.”
Shanaghan, 58 F.3d at 110 (citations omitted).
In the present matter, Plaintiff has surviving federal-law claims pursuant to 29 U.S.C. §
216(b). (See ECF No. 1 at 10‒11.) The Complaint’s allegations indicate that the facts underlying
Plaintiff’s remaining federal-law claims and her state-law claim share a common nucleus of
operative fact, as these claims all relate to Plaintiff’s employment disagreements with Defendant
and the steps Plaintiff took to address these issues. (See, e.g., id. ¶ 24 (providing Plaintiff’s
allegation in the Complaint that “[t]he confluence of Defendant’s deletion of time for which
Plaintiff was entitled to be paid under the FLSA and the imposition of her unpaid suspension
resulted in an obligation under the WPCA to pay Plaintiff all wages to which she was entitled as
of the next regular payday following her unpaid suspension”).) Additionally, the Court finds that
it is appropriate to exercise supplemental jurisdiction over this state-law claim because (1) the
Court has retained original jurisdiction over Plaintiff’s remaining FLSA claims; (2) convenience
and fairness to the parties favors retaining jurisdiction; and (3) the interests of judicial economy
weigh in favor of the Court addressing Plaintiff’s federal and state-law claims in the same
litigation. See, e.g., Shanaghan, 58 F.3d at 110 (discussing “factors that inform” the Court’s
“discretionary determination” of whether to exercise supplemental jurisdiction over state-law
claims). The Court shall therefore exercise its discretion to retain supplemental jurisdiction over
Plaintiff’s state-law WPCA claim.
17
Accordingly, the Court DENIES Defendant’s Motion insofar as Defendant argues that the
Court should decline to exercise supplemental jurisdiction over Plaintiff’s state-law claim under
West Virginia Code § 21-5-4.
IV. Failure to State a Claim
Defendant next moves to dismiss Plaintiff’s state-law claim under West Virginia Code §
21-5-4 pursuant to Federal Rule of Civil Procedure 12(b)(6).10 (See ECF No. 14 at 9.) The Court
again disagrees with Defendant’s position.
A.
Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Allegations “must be simple,
concise, and direct” and “[n]o technical form is required.” Fed. R. Civ. P. 8(d)(1). A motion to
dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a civil complaint. See Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). “[I]t does not resolve contests surrounding
the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1356 (1990)).
“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, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court decides
Defendant included its brief argument regarding Plaintiff’s state-law claim in the same section as its discussion of
supplemental jurisdiction. (See ECF No. 14 at 9.) However, the substance of Defendant’s argument indicates that
Defendant is asserting that Plaintiff’s state-law claim fails to state a claim upon which relief can be granted. (See id.)
The Court therefore construes Defendant’s arguments regarding Plaintiff’s state-law claim as a request for dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(6).
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whether this standard is met by separating the legal conclusions from the factual allegations,
assuming the truth of only the factual allegations, and then determining whether those allegations
allow the court to reasonably infer that “the defendant is liable for the misconduct alleged.” Id. A
motion to dismiss will be granted if, “after accepting all well-pleaded allegations in the plaintiff’s
complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff’s
favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim
entitling him to relief.” Edwards, 178 F.3d at 244.
B.
Discussion
In the Complaint, Plaintiff alleges that Defendant was “obligated under the WPCA to pay
Plaintiff all wages to which she was entitled as of the next regular payday following her unpaid
suspension.” (ECF No. 1 ¶ 24.) The Complaint then includes a prayer for relief for an “order
pursuant to West Virginia Code § 21-5-4 finding Defendant liable for all damages Plaintiff has
suffered,” as well as “liquidated damages.” (Id. at 10‒11.) Defendant argues that Section 21-5-4 is
inapplicable based on the allegations in the Complaint. (ECF No. 14 at 9.) The Court is not
persuaded by Defendant’s argument.
West Virginia Code Ҥ 21-5-4(b), (c) and (d) provide specific time periods in which an
employer must ‘pay an employee’s wages’ in full after the employee’s discharge, resignation,
suspension, or lay off.” Conrad v. Charles Town Races, Inc., 521 S.E.2d 537, 540 (W. Va. 1998).
As pertinent here, West Virginia Code § 21-5-4(d) provides the following regarding the required
payment of wages in the event an employee is suspended:
When work of any employee is suspended as a result of a labor dispute, . . . the
person, firm or corporation shall pay in full to the employee not later than the next
regular payday, either through the regular pay channels or by mail if requested by
19
the employee, wages earned at the time of suspension . . . .
“In the context of [Section 21-5-4(d)], the word suspended is used only to denote an interruption
in work due to a labor dispute.” Lehman v. United Bank, Inc., 719 S.E.2d 370, 374 (W. Va. 2011).
“If [an employer] fails to adhere to the[] requirements” of Section 21-5-4, “the [employer] ‘shall,
in addition to the amount which was unpaid when due, be liable to the employee for three times
that unpaid amount as liquidated damages.’” Walker v. W. Publ’g Corp., Civil Action No. 5:09‒
cv‒00723, 2011 WL 3607960, at *10 (S.D. W. Va. Aug. 12, 2011) (quoting W. Va. Code § 21-54(e)).
The Supreme Court of Appeals of West Virginia “has recognized the WPCA as ‘remedial
legislation designed to protect working people and assist them in the collection of compensation
wrongly withheld.’” Lehman, 719 S.E.2d at 372‒73 (quoting Mullins v. Venable, 297 S.E.2d 866,
869 (W. Va. 1982)). As such, courts “must construe the [WPCA] liberally so as to furnish and
accomplish all the purposes intended.” Meadows v. Wal-Mart Stores, Inc., 530 S.E.2d 676, 688
(W. Va. 1999) (citation omitted).
Defendant argues that Section 21-5-4(d) is inapplicable in this case because Plaintiff was
not suspended “as a result of a labor dispute.” (ECF No. 14 at 9.) Defendant does not cite any
authority supporting this position, (see id.), and Plaintiff did not address this argument in her
opposition briefing, (see ECF No. 11.)
The terms “labor,” “dispute,” and “labor dispute” are not defined in either the WPCA, see
W. Va. Code § 21-5-1 (providing applicable definitions for the WPCA), or the rules promulgated
by the West Virginia Department of Labor to assist in effectuating the WPCA’s provisions, see
W. Va. Code R. § 42-5-3. See generally Lehman, 719 S.E.2d at 373 (noting that the West Virginia
20
Code of State Rules includes “the legislative rules promulgated by the West Virginia Division of
Labor to further the purposes of the [WPCA]”). Additionally, the Court has not located any case
law addressing the term “labor dispute” for purposes of Section 21-5-4(d)―which is not
surprising, as a plaintiff would likely only invoke this particular provision if they were suspended,
yet still retained their employment. See W. Va. Code § 21-5-4(d); cf. id. § 21-5-4(b) (addressing
the required time periods for employers to pay employees who “quit[],” “resign[ed],” or were
“discharge[d]”); id. § 21-5-4(d) (providing the applicable time periods for employers to pay
employees who are “laid off,” as well as the suspension provision at issue in this case).
In the absence of authority elaborating on the meaning of the term “labor dispute” for
purposes of Section 21-5-4(d), the Court looks to the ordinary meaning of this term. See, e.g.,
Meadows, 530 S.E.2d at 687‒88 (analyzing the statutory language of the WPCA and stating that
“[g]enerally the words of a statute are to be given their ordinary and familiar significance and
meaning, and regard is to be had for their general and proper use” (alteration in original) (quoting
West Virginia v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 107 S.E.2d 353,
354 (W. Va. 1959))); see also King Coal Chevrolet Co. v. Gen. Motors LLC, 758 S.E.2d 265, 272
(W. Va. 2014) (“Courts should favor the plain and obvious meaning of a statute as opposed to a
narrow or strained construction.” (citing Thompson v. Chesapeake & O. Ry. Co., 76 F. Supp. 304,
307‒08 (S.D. W. Va. 1948))). In particular, Black’s Law Dictionary defines the term “labor
dispute” as “[a] controversy between an employer and its employees concerning the terms or
conditions of employment, or concerning the association or representation of those who negotiate
or seek to negotiate the terms or conditions of employment.” Labor Dispute, Black’s Law
Dictionary (10th ed. 2014); cf. 29 U.S.C. § 402(g) (providing that, for purposes of the federal
21
Labor-Management Reporting and Disclosure Act, the term “labor dispute” is defined, in pertinent
part, as “includ[ing] any controversy concerning terms, tenure, or conditions of employment”).
Turning to Plaintiff’s allegations here, Plaintiff avers in the Complaint that―on or about
October 22, 2014―she requested her timesheets from Whitaker and informed Whitaker that
Plaintiff’s purpose in obtaining the timesheets was to “test[] whether Plaintiff’s actual working
time was being illegally reduced without her knowledge or consent.” (ECF No. 1 ¶ 10.) Roughly
two weeks later, Plaintiff requested personal leave for three days and Whitaker only granted this
request as to one day. (Id. ¶ 12.) Plaintiff nonetheless “took sick leave” on the other two days. (Id.
¶ 14.) Plaintiff then asserts in the Complaint that Defendant suspended Plaintiff for two days due
to “an alleged violation of Defendant’s Employee Attendance Policy.” (Id. ¶ 15; cf. ECF No. 14 at
9 (providing Defendant’s argument that “Plaintiff was not suspended as a result of a labor dispute;
she was suspended as a result of her violation of Defendant’s Employee Attendance Policy due to
her use of sick leave after her request for personal leave was denied”).)
The Court finds that these allegations are sufficient, for present purposes, to survive a
motion to dismiss. Plaintiff’s dispute with Defendant as to her wages and timesheets and the stated
reason for her suspension―a violation of Defendant’s Employee Attendance Policy―both relate
to the terms and conditions of Plaintiff’s employment with Defendant. (See ECF No. 1 ¶¶ 10 &
15.) Furthermore, Plaintiff’s allegations indicate that there was a temporal connection between her
voicing concerns to Whitaker regarding Plaintiff’s timesheets, Whitaker’s refusal to grant personal
leave, Plaintiff nonetheless taking sick leave on those days, and Plaintiff’s suspension. (See id. ¶¶
10‒15.) Construing these facts in the light most favorable to Plaintiff, see, e.g., U.S. ex rel. Oberg
v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014), and liberally construing
22
the phrase “as a result of a labor dispute,” as used in Section 21-5-4(d), see, e.g., Meadows, 530
S.E.2d at 688, the Court finds that Plaintiff’s allegations are sufficient to survive the present motion
to dismiss as to her state-law WPCA claim.11
Accordingly, the Court DENIES Defendant’s Motion insofar as Defendant requests the
dismissal of Plaintiff’s claim under West Virginia Code § 21-5-4(d).
V. Conclusion
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion.12 (ECF No. 13.) The Court DISMISSES Plaintiff’s request for injunctive
relief in the Complaint. (See ECF No. 1 at 10.)
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
March 28, 2016
The Court notes that―given the absence of authority as to the meaning of the term “labor dispute,” as used in West
Virginia Code § 21-5-4(d)―it may be willing at a later stage of this litigation to entertain a request to certify a question
to the Supreme Court of Appeals of West Virginia requesting guidance on the meaning of the term “labor dispute,” as
used in West Virginia Code § 21-5-4(d).
12
On May 11, 2015, Defendant filed a Motion for Leave to Seal Exhibit B to Motion to Dismiss (the “First Motion
for Leave”), in which Defendant requests leave to file an exhibit to its initial Motion to Dismiss under seal. (ECF No.
7.) As noted above, the Court denies as moot Defendant’s initial Motion to Dismiss. (ECF No. 5.) The Court therefore
similarly DENIES AS MOOT Defendant’s First Motion for Leave. (ECF No. 7.)
On August 3, 2015, Defendant filed a Motion for Leave to Seal Exhibit B to Amended Motion to Dismiss,
(ECF No. 15), in which Defendant requests permission to file an exhibit to Defendant’s Motion under seal. For good
cause shown, the Court GRANTS this motion. (Id.)
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