Jarrell et al v. Hardy Cellular Telephone Company
Filing
17
MEMORANDUM OPINION AND ORDER directing that the Plaintiffs' 9 MOTION for Leave to Amend and Supporting Memorandum be GRANTED and that the Plaintiffs' proposed First Amended Complaint be FILED as a separate docket entry; further directing that the Defendant's 4 MOTION to Dismiss and the Defendant's 13 MOTION to Strike Plaintiffs' Untimely Response to Defendant's Motion to Dismiss, or in the Alternative, Defendant's Reply in Support of Its Motion to Dismiss be TERMINATED AS MOOT; further directing that an answer or responsive pleading be filed within twenty-one (21) days of the entry of this Order. Signed by Judge Irene C. Berger on 7/22/2020. (cc: counsel of record; any unrepresented party) (jsa)
Case 2:20-cv-00289 Document 17 Filed 07/22/20 Page 1 of 6 PageID #: 156
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
KARLA JARRELL and
BRITTANY JARRELL,
Plaintiffs,
v.
CIVIL ACTION NO. 2:20-cv-00289
HARDY CELLULAR TELEPHONE
COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiffs’ Initial Verified Complaint (Document 1-1), the
Defendant’s Motion to Dismiss (Document 4), the Memorandum in Support of Defendant’s Motion
to Dismiss (Document 5), the Plaintiffs’ Motion for Leave to Amend and Supporting Memorandum
(Document 9), the Plaintiffs’ proposed First Amended Complaint (Document 9-1), the Plaintiffs’
Memorandum in Opposition to Defendant’s Motion to Dismiss (Document 10), the Defendant’s
Motion to Strike Plaintiffs’ Untimely Response to Defendant’s Motion to Dismiss, or in the
Alternative, Defendant’s Reply in Support of Its Motion to Dismiss (Document 13), the Plaintiffs’
Response to Defendant’s Motion to Strike and Motion to File Its Memorandum in Opposition to
Defendant’s Motion to Dismiss (Document 14), the Defendant’s Response in Opposition to
Plaintiffs’ Motion for Leave to Amend (Document 15), and the Defendant’s Reply in Support of Its
Motion to Strike and Response in Opposition to Plaintiff’s Motion for Leave to File (Document
16). The Court finds that the Plaintiffs’ motion to amend should be granted.
Case 2:20-cv-00289 Document 17 Filed 07/22/20 Page 2 of 6 PageID #: 157
The Plaintiffs, Karla and Brittany Jarrell, were employed by Hardy Cellular Telephone
Company, properly named USCC Services, LLC.
They allege that they were both good
employees with generally positive work reviews and friendly relationships with coworkers and
supervisors. They entered into a relationship, and when coworkers discovered that relationship,
their coworkers and supervisors began making harassing and discriminatory comments, including
expressing disapproval of their relationship during group meetings. Their supervisor deliberately
exposed them to coworkers and others who ridiculed and harassed them because of their
relationship. Brittany Jarrell resigned her position in July 2018 as a result of the harassment. In
December 2018, Karla Jarrell received her first yearly evaluation since the discovery of her sexual
orientation.
Despite excellent sales numbers and performance consistent with her past
performance, she received a less than exemplary evaluation for the first time. Karla Jarrell
continued working at USCC until March 26, 2019, when she also left her position as a result of
the harassment.
The Plaintiffs filed their initial complaint in the Circuit Court of Kanawha County on
March 20, 2020. It alleges intentional and negligent infliction of emotional distress, breach of
promise based on an employee handbook, and discrimination in violation of the West Virginia
Human Rights Act (WVHRA). The Defendant filed its motion to dismiss on May 20, 2020. The
Plaintiffs did not file a timely response.
On June 26, 2020, the deadline for amendments
contained in the Court’s scheduling order, the Plaintiffs filed a motion to amend, as well as a brief
response in opposition to the motion to dismiss. The proposed amended complaint sets forth the
same basic factual allegations. It alleges intentional and negligent infliction of emotional distress
(with reference to the deliberate intent statute); violation of the WVHRA (with reference to
2
Case 2:20-cv-00289 Document 17 Filed 07/22/20 Page 3 of 6 PageID #: 158
Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1737 (2020), decided on June 26, 2020);
violation of associational discrimination; and constructive discharge.
The Defendant urges the Court to strike the Plaintiffs’ untimely response and grant its
motion to dismiss. It argues that the proposed amended complaint would be futile, based on the
analysis put forth in its motion to dismiss. It contends that the IIED claim is barred by the
immunity provisions of the worker’s compensation statute, 1 and the remaining claims are not
viable because the WVHRA does not prohibit discrimination based on sexual orientation.
Rule 15(a)(2) of the Federal Rules of Civil Procedure encourages Courts to freely grant
motions for leave to amend pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “A
district court may deny a motion to amend when the amendment would be prejudicial to the
opposing party, the moving party has acted in bad faith, or the amendment would be futile.”
Equal Rights Ctr. v. Niles Bolton Associates, 602 F.3d 597, 603 (4th Cir. 2010). “Motions to
amend are typically granted in the absence of an improper motive, such as undue delay, bad faith,
or repeated failure to cure a deficiency by amendments previously allowed.” Harless v. CSX
Hotels, Inc., 389 F.3d 444, 447 (4th Cir. 2004). “Futility is apparent if the proposed amended
complaint fails to state a claim under the applicable rules and accompanying standards.” Katyle
v. Penn Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011).
The Defendants rely on a decision from the West Virginia Supreme Court of Appeals
holding that “sex” and “sexual orientation” are distinct for purposes of the state criminal civil
rights statute. State v. Butler, 799 S.E.2d 718, 724–25 (W. Va. 2017). The court found that the
1 Because the Plaintiffs’ amendment contains brief additional allegations related to Count One, and because the Court
finds that the amendment is not otherwise futile as to the remaining counts, the Court has not addressed whether the
Plaintiffs’ proposed amended complaint states a claim as to the IIED allegations.
3
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hate crimes statute, which specifically included “sex” as a category, did not reach crimes based on
sexual orientation. Id. Much of the discussion focused on the rules of construction relevant to a
criminal statute. The Court noted comparisons to Title VII and the WVHRA but found those
analyses to be inapplicable. Id. at footnotes 8 & 11.
In contrast, when interpreting the WVHRA, including the specific provisions at issue here,
the West Virginia Supreme Court held that courts should use the “same analytical framework” to
consider WVHRA claims as federal courts apply to Title VII claims “particularly…when, as in
this case, the critical language of our Act — ‘because of sex’—parallels the federal legislation.”
Willis v. Wal-Mart Stores, Inc., 504 S.E.2d 648, 652 (W. Va. 1998) (internal quotation marks
omitted). On June 26, 2020, after the Defendant had filed its motion to dismiss, the United States
Supreme Court held that discrimination on the basis of sexual orientation or gender identity
constitutes discrimination “because of sex” for purposes of Title VII. Bostock v. Clayton Cty.,
Georgia, 140 S. Ct. 1731, 1737 (2020). The Court explained that “it is impossible to discriminate
against a person for being homosexual or transgender without discriminating against that
individual based on sex.” Id.at 1741 (explaining that an employer who fires a man for being
attracted to men but would not fire a woman for being attracted to men, has necessarily fired the
man because of his sex).
Because interpretation of the WVHRA parallels interpretation of Title VII, the Court finds
that the Plaintiffs’ allegations of discrimination based on their same-sex relationship state a claim
for sex discrimination under the WVHRA. The West Virginia Supreme Court’s interpretation of
similar terms in the context of the hate crimes statute, involving criminal penalties for violations,
is not applicable. The long-established precedent stating that West Virginia courts consider
4
Case 2:20-cv-00289 Document 17 Filed 07/22/20 Page 5 of 6 PageID #: 160
federal Title VII precedent to interpret the WVHRA governs here, and the Supreme Court’s
decision in Bostock is precisely on-point. Therefore, the Court cannot accept the Defendant’s
argument that the amendment would be futile because the additional claims rest on the sex
discrimination claim.
It remains early in litigation, and there is no suggestion that the proposed amendment would
be prejudicial or was made in bad faith. Therefore, the Court finds that the motion to amend
should be granted. The Court’s normal practice when an amended complaint is filed is to moot
any pending motion to dismiss the original complaint and permit updated briefing of any motions
with respect to the amended complaint to ensure a clean record, and the Court will follow that
practice.
Prior to submission of additional filings, the Court would urge counsel to carefully review
the Local Rules of Civil Procedure for this district, as well as the Court’s scheduling order and the
generally applicable timelines contained in the Federal Rules of Civil Procedure. The failure to
file a timely response to a brief is unacceptable, and any further neglect of that nature could be
prejudicial to the interests of clients. 2 The Local Rules contain formatting standards for briefs.
The Plaintiffs’ briefing in this matter has not used the appropriate font or spacing, and the
Defendant’s briefing including documents attached to the memorandum rather than the motion, is
contrary to the Local Rules. Future filings that do not comply with those rules, as well as all
applicable deadlines, may be stricken.
2 The Court does not summarily grant motions to dismiss based on the failure of a plaintiff to respond, but instead
reviews the motion in light of the allegations in the complaint to determine whether the defendant has demonstrated
that the plaintiff failed to state a claim. Nonetheless, effective representation generally requires timely responses to
pending motions.
5
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Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Plaintiffs’ Motion for Leave to Amend and Supporting Memorandum (Document 9) be
GRANTED and that the Plaintiffs’ proposed First Amended Complaint (Document 9-1) be
FILED as a separate docket entry. The Court further ORDERS that the Defendant’s Motion to
Dismiss (Document 4) and the Defendant’s Motion to Strike Plaintiffs’ Untimely Response to
Defendant’s Motion to Dismiss, or in the Alternative, Defendant’s Reply in Support of Its Motion
to Dismiss (Document 13) be TERMINATED AS MOOT. The Court further ORDERS that an
answer or responsive pleading be filed within twenty-one (21) days of the entry of this Order.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:
6
July 22, 2020
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