Fugate v. Frontier West Virginia, Inc.

Filing 31

MEMORANDUM OPINION AND ORDER granting Defendant's 22 PARTIAL MOTION to Dismiss the 17 Amended Complaint; Counts I, IV, V, and VI of the Amended Complaint are DISMISSED. Signed by Judge Thomas E. Johnston on 7/19/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

KERRY FUGATE,
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-00559

FRONTIER WEST VIRGINIA, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending is Defendant’s Partial Motion to Dismiss the Amended Complaint. (ECF No.
22.) The motion will be GRANTED.
I.

BACKGROUND

The following facts are drawn from the Amended Complaint. For purposes of the Partial
Motion to Dismiss, they are regarded as true.
Plaintiff Kerry Fugate began working for Defendant Frontier West Virginia, Inc.
(“Frontier”)1 in 1998. (Compl. ¶ 7.) Over the course of the next decade, he met or exceeded
performance standards and received favorable performance reviews from his employer. In 2008,
Plaintiff’s mother grew ill. Plaintiff developed serious health conditions of his own during the
same period. Between tending to his mother’s condition and nursing his own illness, Plaintiff

1

Frontier claims that Plaintiff misidentifies his former employer, arguing that Plaintiff was employed by
Citizens Telecom Services Company LLC, a Frontier Communications subsidiary. Plaintiff does not
address this contention in his response to the Partial Motion to Dismiss. For purposes of the instant motion,
the Court identifies Plaintiff’s employer as Frontier West Virginia Inc., the name used by the Amended
Complaint.

required several weeks of leave under the Family Medical Leave Act (“FMLA”) in 2009 and 2010.
Over time, Plaintiff’s absence from work led Frontier to advance him along the company’s
progressive discipline plan. On January 14, 2015, Frontier terminated Plaintiff’s employment.
Plaintiff alleges that his discipline and termination were motivated by unlawful retaliation.
Plaintiff brought suit against Frontier on January 12, 2017, invoking the Court’s federal
question jurisdiction under 28 U.S.C. § 1331. He amended the Complaint on March 16, 2017.
The Amended Complaint contains six counts.

Count I alleges retaliatory discharge in

contravention of a substantial public policy of the State of West Virginia; Counts II and III allege
interference with FMLA rights and FMLA retaliation; Count IV alleges disability discrimination
under the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq.; Count V alleges
negligent infliction of emotional distress (“NIED”); and Count VI alleges outrage. Frontier
moves to dismiss Counts I, IV, V, and VI. Having been fully briefed, the Partial Motion to
Dismiss is ready for disposition.
II.

LEGAL STANDARD

A motion to dismiss for failure to state a claim upon which relief may be granted tests the
legal sufficiency of a civil complaint. Fed. R. Civ. P. 12(b)(6). In Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), the Supreme Court observed that a case should be dismissed for
failure to state a claim upon which relief can be granted if, viewing the well-pleaded factual
allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint
does not contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
A court decides 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

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allegations allow the court to reasonably infer that “the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III.
A.

DISCUSSION

Count I—Wrongful Discharge in Violation of Substantial Public Policy

Frontier puts forward a two-pronged argument in support of dismissal of Count I. It
begins with the observation that Plaintiff was a union employee covered by a collective bargaining
agreement while employed with Frontier.

Frontier argues that the common law retaliatory

discharge claim alleged in Count I, first recognized in Harless v. First National Bank, 246 S.E.2d
270 (W. Va. 1978), is available only to at will employees. Second, Frontier contends that the
FMLA—a federal statute—cannot serve as the source of public policy animating a Harless claim.
Because the Court finds that Harless does not apply to contract employees like Plaintiff, Frontier’s
second argument is moot.
The Supreme Court of Appeals of West Virginia has recognized a cause of action for
wrongful discharge in violation of public policy as a limited exception to the employment at-will
doctrine. Harless, 246 S.E. 2d at 275. In Harless, West Virginia’s highest court held:
The rule that an employer has an absolute right to discharge an at will employee
must be tempered by the principle that where the employer’s motivation for the
discharge is to contravene some substantial public policy principle, then the
employer may be liable to the employee for damages occasioned by this
discharge.
Syl. Pt. 1, id. at 271. Citing this holding, Frontier argues that contract employees may not
maintain a policy-based wrongful discharge action. The Supreme Court of Appeals of West
Virginia has not parsed the question beyond the Harless decision, though it recently intimated that
an employee governed by a collective bargaining agreement may not be considered at will for

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purposes of bringing a Harless claim. Frohnapfel v. ArcelorMittal USA LLC, 772 S.E.2d 350,
354 (W. Va. 2015).
Frohnapfel presented the issue of whether a particular West Virginia statute established a
substantial public policy for purposes of a policy-based wrongful discharge claim. Initiating a
discussion of the Harless decision, the court noted that it would “not opine on whether Mr.
Frohnapfel qualified as an at-will employee in view of the collective bargaining agreement that
controlled the terms of his employment.” Id. at 354 n. 9. Nevertheless, Frohnapfel cited a case
holding that an employee governed by a collective bargaining agreement is not an at-will employee
capable of bringing a common law retaliatory discharge claim. Id. (citing Lambs v. Briggs Mfg.,
700 F.2d 1092, 1093–94 (7th Cir. 1983)). Other courts have similarly so held. See Egan v. Wells
Fargo Alarm Servs., 23 F.3d 1444, 1446–47 (8th Cir. 1994) (where provisions of collective
bargaining agreement supported conclusion that plaintiff was a contract employee, Missouri
public-policy exception to the at-will doctrine did not apply); Claggett v. Wake Forest Univ., 486
S.E.2d 443, 448 (N.C. 1997) (dismissing wrongful discharge action brought by a university
professor covered by contract and subject to discharge only for just cause); see also Cullen v. E.H.
Friedrich Co., Inc., 910 F. Supp. 815, 821 (D. Mass. 1995) (cause of action for wrongful discharge
in violation of public policy was available only to at-will employees and did not apply to employee
covered by a collective bargaining agreement). Whatever the limits of Frohnapfel’s analysis, the
case reaffirms the settled principle that wrongful discharge claims under Harless are available only
to at-will employees. 772 S.E.2d at 354.
Strangely enough, Plaintiff concedes this point. Plaintiff admits that he was not an at-will

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employee while employed with Frontier. 2 In his response, Plaintiff merely asserts—correctly
enough—that the Supreme Court of Appeals of West Virginia has never held that a unionized
employee may not maintain a Harless action. Yet the notion runs contrary to the overt purposes
for recognizing the wrongful discharge claim in the first place, namely, to temper the harsh effects
of the at will employment doctrine. 246 S.E.2d at 271. In the typical case, union employees
working under the protection of a collective bargaining agreement are not employed at will.
Plaintiff also notes that collective bargaining agreements do not prevent union employees from
pursuing claims under the WVHRA. (Pl. Resp. at 3–4 (citing Bailey v. Norfolk & W. Ry., 527
S.E.2d 516 (W. Va. 1999)).)

Plaintiff’s attempt to analogize the WVHRA is unpersuasive. The

WVHRA does not distinguish between at will and contract employees, but casts a wide net in
outlawing unlawful employment practices with respect to any individual. See W. Va. Code § 511-9. The common law cause of action recognized in Harless, on the other hand, does not have
statutory underpinnings and is available only to at will employees. Any expansion of the claim
is best left to the West Virginia courts.
Plaintiff concedes that he was not an at-will employee while employed with Frontier, and
a public policy wrongful discharge action is not available to him. Count I is DISMISSED.

For example, the collective bargaining agreement governing Plaintiff’s employment compelled Frontier
to abide by a tiered grievance resolution procedure. (Def. Partial Mot. to Dismiss Ex. 1.) While Plaintiff
did not attach the collective bargaining agreement to the Amended Complaint, the Court may consider the
collective bargaining agreement at this stage of the proceedings because (1) it was attached to Frontier’s
Partial Motion to Dismiss and was integral to Plaintiff’s pleading, and (2) Plaintiff does not dispute its
authenticity. Elswick v. Daniels Electric Inc., 787 F. Supp. 2d 443, 445 n. 1 (S.D. W. Va. 2011) (citing
Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir. 2006)).
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B.

Count IV—Disability Discrimination

With regard to Count IV, Frontier raises three affirmative defenses in support of dismissal.
Frontier begins by arguing that Plaintiff previously litigated his disability discrimination claim as
a member of a class action in West Virginia state court, and that the doctrines of res judicata and
release now act as a bar. In the alternative, Frontier asserts that the statute of limitations has run
on Plaintiff’s disability discrimination claim.
The Court notes that res judicata, release, and statute of limitations are affirmative
defenses, Fed. R. Civ. P. 8(c)(1), and thus need not be “anticipate[d] and negate[d]” in a plaintiff’s
pleading. Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1986 n. 9 (2017). “It follows . . . that a
motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of
the complaint, generally cannot reach the merits of an affirmative defense[.]” Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). There is an exception when the facts supporting
the defense appear on the face of the complaint. Id. Further, “[w]hen entertaining a motion to
dismiss on the ground of res judicata, a court may take judicial notice of facts from a prior judicial
proceeding when the res judicata defense raises no disputed issue of fact.” Q Int'l Courier Inc. v.
Smoak, 441 F.3d 214, 216 (4th Cir. 2006) (citing Andrews v. Daw, 201 F.3d 521, 524 n. 1 (4th Cir.
2000)); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (items
subject to judicial notice are properly considered in determining whether to grant a Rule 12(b)(6)
motion).
Because Frontier’s res judicata defense is dispositive, the Court focuses its attention there.
“Generally, the preclusive effect of a judgment rendered in state court is determined by the law of
the state in which the judgment was rendered.” Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d

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156, 162 (4th Cir. 2008). As the class action at issue here was adjudicated in West Virginia state
court, the Court will apply the res judicata rules of that State. Like its federal counterpart, West
Virginia’s iteration of the res judicata rule contains three elements:
First, there must have been a final adjudication on the merits in the prior action by
a court having jurisdiction of the proceedings. Second, the two actions must involve
either the same parties or persons in privity with those same parties. Third, the cause
of action identified for resolution in the subsequent proceeding either must be
identical to the cause of action determined in the prior action or must be such that
it could have been resolved, had it been presented, in the prior action.
Blake v. Charleston Area Med. Ctr., Inc., 498 S.E.2d 41, 44 (W. Va. 1997). The factors are given
broad application. In reviewing identical factors in the federal context, for instance, the Fourth
Circuit noted that “[t]he preclusive affect of a prior judgment extends beyond claims or defenses
actually presented in previous litigation.” Meekins v. United Transp. Union, 946 F.2d 1054, 1057
(4th Cir. 1991). The doctrine of res judicata bars claims that were “raised and fully litigated” as
well as claims that could have been litigated in the prior proceeding, “regardless of whether they
were asserted or determined.” Peugeot Motors of Am., Inc. v. E. Auto Distribs., Inc., 892 F.2d
355, 359 (4th Cir. 1989) (citation omitted). Principles of res judicata may be applied against class
members so long as “invocation of the bar is consonant with due process.” Johnson v. Gen.
Motors Corp., 598 F.2d 432, 436 (5th Cir. 1979) (citing Hansberry v. Lee, 311 U.S. 32, 61 (1942)).
As stated, Frontier’s res judicata defense arises from a class action in which Plaintiff took
part. That action, styled Moore, et al. v. Verizon West Virginia Inc., et al., Civil Action No. 11C-307, involved class claims of disability discrimination arising under the WVHRA. The class
representatives were all employees of Frontier or Verizon West Virginia, Inc., its predecessor.
Moore came to its conclusion with entry of final judgment just weeks after Plaintiff filed the instant
lawsuit.

The final judgment order, proposed settlement agreement, and affidavit submitted by
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Plaintiff indicating his intent to join the class action—all filed in the Circuit Court of Harrison
County, West Virginia—are attached as exhibits to Frontier’s Partial Motion to Dismiss. (Def.
Partial Mot. to Dismiss Ex. 2.) As Plaintiff does not contest their authenticity, the Court takes
judicial notice of these records. Q Int'l Courier, 441 F.3d at 216.
Plaintiff admits that the first and second elements necessary for res judicata to apply are
present here. He does not dispute his membership in the Moore class, nor that the disability claims
raised in that action reached a final adjudication on the merits. The Court agrees. On March 9,
2009, the Circuit Court of Harrison County, West Virginia granted the joint motion for approval
of the settlement agreement and dismissed with prejudice the disability claims of the class
representatives and participating class members. (Def. Partial Mot. to Dismiss Ex. 2 at 4.) This
final judgment on the merits has preclusive effect. Further, Moore meets the “same parties”
requirement. According to the Moore settlement agreement, the class was comprised of present
or former employees of Verizon or Frontier who had a disability and suffered discrimination on
account of their disability. (Id. Ex. 3 at ¶ 3.47.)

By affidavit executed January 29, 2016,

Plaintiff notes that he has reviewed the class definition and considers himself a putative member
of the class. (Id. Ex. 4 ¶ 6.) Plaintiff’s participation in the class action against Frontier satisfies
the “identity of the parties” requirement; further, his affidavit evidencing an intent to join the
lawsuit assuages any due process concerns.
As to the third element, however, Plaintiff denies that the disability discrimination claim
alleged here is identical to the claim adjudicated in Moore. Frontier argues that because the
Moore class period extended from July 20, 2009 to November 9, 2016, Plaintiff’s disability
discrimination claim reached a final adjudication on the merits in the Moore action. Frontier adds

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that in consideration for the settlement negotiated therein, Plaintiff released Frontier from any
liability for claims that “were or could have been alleged” in the Moore action, including disabilityrelated claims under the WVHRA.

Plaintiff counters that the facts giving rise to the instant

disability discrimination claim occurred prior to July 20, 2009, the start date of the Moore class
period. This assertion is suspect; Plaintiff’s pleading alleges nothing of the sort. Plaintiff’s
pleading alleges generally that he required several weeks of leave “between approximately 2009
and 2010.” (Am. Compl. ¶ 11.) Frontier’s alleged acts in retaliation could only have occurred
after Plaintiff took FMLA leave.
Even accepting Plaintiff’s strained reading of the factual allegations, identity of causes of
action exists here. The test for deciding whether causes of action are the same is whether the
claim asserted in the current litigation “‘arises out of the same transaction or series of transactions
as the claim resolved by the prior judgment.’” Laurel Sand & Gravel, 519 F.3d at 162 (quoting
Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999)). Plaintiff’s claim in the Moore
action arose out of the same transaction as the instant case. Plaintiff alleges that as a Frontier
employee, he received discriminatory treatment in retaliation for taking FMLA leave due to his
disability in 2009 and 2010. This is precisely the claim he asserted as a member of the Moore
class. The same cause of action requirement is met.
Because Count IV fails on the ground of res judicata, the Court need not reach Frontier’s
release and statute of limitations defenses. Count IV is hereby DISMISSED.

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C.

Counts V and VI—NIED and Outrage

Lastly, Frontier’s Partial Motion to Dismiss addresses Plaintiff’s claims for NIED (Count
V) and outrage (Count VI). Frontier argues that these claims are precluded by the exclusivity
provision of the West Virginia Workers’ Compensation Act (“the Act”). W. Va. Code § 23-2-6.
The Act was developed to provide a speedy and expeditious means of compensating injured
employers for workplace injuries. Meadows v. Lewis, 307 S.E.2d 625, 638 (W. Va. 1983). To
effect that purpose, the Act creates “sweeping immunity” for employers for all tort actions by
employees for injuries occurring “in the course of and resulting from employment.’” Bias v.
Eastern Associated Coal Corp., 640 S.E.2d 540, 544 (W. Va. 2006)); see § 23-2-6 (providing an
employer in compliance with the Act “is not liable to respond in damages at common law or by
statute for the injury or death of any employee, however occurring”). The immunity provided by
the Act encompasses an action for negligent or intentional infliction of emotional distress.3 See
id. (immunity bars employee’s NEID action); Miller v. City Hosp., Inc., 475 S.E.2d 495, 501–02
(W. Va. 1996) (finding plaintiff’s claim of outrage fell within scope of Act’s immunity provision).
An employer’s immunity under the Act is not without limitation, however. Immunity may
be lost if an employer (1) defaults in payments required by the Act or otherwise falls out of
compliance with the Act, (2) acts with “deliberate intent” to injure the employee, or (3) “in such
other circumstances where the Legislature has by statute expressly provided an employee a private
remedy outside the workers’ compensation system.” Syl. Pt. 2, Bias, 640 S.E.2d at 540. Plaintiff
does not allege facts that Frontier failed to comply with the Act or that his former employer acted

In West Virginia, the “tort of outrageous conduct” is also known as intentional infliction of emotional
distress. See Hines v. Hills Dep’t Stores, Inc., 454 S.E.2d 385, 389 (W. Va. 1994).
3

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with deliberate intent to cause his injuries.4 He invokes the third exception to immunity, arguing
that because his emotional injuries arise from discriminatory conduct, not a workplace injury, the
exclusivity provision is inapplicable. Plaintiff relies chiefly on Messer v. Huntington Anesthesia
Group, Inc., 620 S.E.2d 144 (W. Va. 2005), in advancing this argument.
The immunity provided by § 23-2-6 is not so easily forfeited. In Messer, the Supreme
Court of Appeals considered whether the Act’s exclusivity provision barred an employee’s
discrimination claim under the WVHRA for failure to accommodate. 620 S.E.2d at 148. The
question before the appellate court was whether the employee’s recovery for non-physical injuries,
including mental and emotional distress and anguish, was limited to the remedies provided by the
Act. The court was thus tasked with reconciling the WVHRA, which outlaws discriminatory
practices in employment, with the Act, which “shield[s] the employer from liability outside the
workers’ compensation system.” Id. at 160. Importantly, the employee’s discrimination claim
in Messer was only tangentially related to her workplace injury—the WVHRA claim arose from
the employer’s allegedly discriminatory conduct after the injury occurred. Id.
The Supreme Court of Appeals found no conflict between the two statutes under such
circumstances. Enforcing the exclusivity clause against the employee, the court reasoned, “would
Plaintiff’s allegations of outrage, an intentional tort, are insufficient to plead deliberate intention to cause
injury. In order for a claim of outrage to fall outside the Act’s immunity provisions, “the plaintiff must
plead facts that suggest ‘an actual, specific intent.’” Councell v. Homer Laughlin China Co., 823 F. Supp.
2d 370, 384 (N.D. W. Va. 2011) (quoting Weirton Health Partners, LLC v. Yates, No. 5:09cv40, 2010 WL
785647, at *6 (N.D. W. Va. Mar. 4, 2010)). Allegations of “(i) [c]onduct which produces a result that was
not specifically intended; (ii) conduct which constitutes negligence, no matter how gross or aggravated; or
(iii) willful, wanton or reckless misconduct” are insufficient.” W. Va. Code § 23-4-2(d)(2)(A). In support
of Count VI, his outrage claim, Plaintiff alleges without elaboration that Frontier’s actions were “atrocious,
intolerable, and so extreme and outrageous as to exceed the bounds of decency,” and that “[Frontier] acted
with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain
emotional distress would result from its conduct.” (Am. Compl. ¶¶ 77–78.) These allegations are
insufficient to plead deliberate intention. Councell, 823 F. Supp. 2d at 384 (granting motion to dismiss
intentional infliction of emotional distress claim on identical grounds).
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render the WVHRA ineffective and useless to a large group of West Virginians who have
compensable work-related injuries.” Id. Messer held:
While an aggravation or worsening of an employee’s physical injury by the conduct
of his/her employer may be compensable under and thus subject to, the exclusive
remedy provided by the Workers’ Compensation Act, an employee’s claim against
an employer for violation of the [WVHRA] and resulting non-physical injuries,
such as mental and emotional distress and anguish, directly and proximately
resulting from such violation and not associated with the physical injury or the
aggravation or worsening thereof are not barred by the exclusivity provisions of the
Workers[’] Compensation Act.
Id. at 160–61.
Of course, Plaintiff’s NIED and outrage claims do not arise from the WVHRA.5 Plaintiff
offers an unduly broad reading of Messer, contending that causes of action arising from an
employer’s alleged discriminatory conduct, whether rooted in common law or statute, are outside
the reach of the Act’s exclusivity provision.

Messer does not support Plaintiff’s novel

interpretation. Messer harmonized two seemingly conflicting statutory schemes, both designed
to preserve sound policy interests. The need to further the objectives of both statutes—the Act
and the WVHRA—persuaded the Supreme Court of Appeals to recognize the third, limited
exception to the “expansive immunity” that an employer typically enjoys under workers’
compensation laws. For that reason, the holding in Messer cannot be divorced from the statutory
scheme that compelled the decision in the first place.
The decision in Bias further undermines Plaintiff’s argument. In Bias, the employee
attempted to hold his employer liable for emotional injuries he suffered as a result of being trapped
in a mine. On appeal, the Supreme Court of Appeals considered the certified question of whether

Under Messer, Plaintiff’s disability discrimination claim is not prohibited by the Workers’ Compensation
Act. Frontier does not argue otherwise.
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an employee who sustains a mental injury without physical manifestation, thereby precluded from
receiving workers’ compensation benefits, may nevertheless maintain a common law negligence
action against his employer. The Bias court answered the question in the negative, finding that
the immunity afforded by § 23-2-6 barred the employee’s emotional distress claim.

Bias

establishes that common law claims for emotional distress, arising from a mental injury allegedly
inflicted by an employer, are subject to the exclusivity provision of the Act. Bias is on all fours
with the instant case. Plaintiff’s attempt to distinguish Bias on the basis that the case did not
involve allegations of discrimination is without merit.
Plaintiff’s NIED and outrage claims are barred by the immunity extended to Frontier under
§ 23-2-6. Counts V and VI fail to state a claim upon which relief can be granted.
IV.

CONCLUSION

For these reasons, the Partial Motion to Dismiss the Amended Complaint is GRANTED.
(ECF No. 22.) Counts I, IV, V, and VI of the Amended Complaint are hereby DISMISSED.
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:

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July 19, 2017