Parsons v. Kroger Limited Partnership I

Filing 26

MEMORANDUM OPINION AND ORDER granting 3 MOTION to Dismiss and denying 7 MOTION to Remand to Circuit Court. Signed by Senior Judge John T. Copenhaver, Jr. on 3/31/2021. (cc: counsel of record; any unrepresented parties) (lca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
LORIE PARSONS,
Plaintiff,
v.

Civil Action No. 2:20-cv-00392

KROGER LIMITED PARTNERSHIP I,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff Lorie Parsons’ motion to remand
(ECF No. 7), filed June 12, 2020.

Also pending is defendant

Kroger Limited Partnership I’s (“Kroger”) motion to dismiss (ECF
No. 3), filed June 10, 2020.

These motions pertain to the same

legal issue, namely, whether Parsons’ claims are preempted by
Section 301 of the Labor Management Relations Act (“LMRA”).
I.

Background and the Pending Motions

Parsons alleges that she is and has been at all times
relevant an employee of Kroger.
(Complaint).

ECF No. 1-1, at ¶ 1

“In September[] 2018,” she states that she

inquired of Dave Wharton, Operations Assistant Store Manager of
Kroger 753 in Parkersburg, West Virginia, “as to what her hourly
rate of pay would be if she voluntarily left her position as

head deli.”

Id. at ¶ 2.

She claims that on September 24, 2018,

she received an email response from Courtney Perdue, a human
resources representative at Kroger, stating that her wage would
be $16.25 per hour should she voluntarily leave her head deli
position.

Id. at ¶ 3.
Parsons provides an email exchange between Wharton and

Perdue, which is attached to the complaint as Exhibit A.

ECF

No. 1-3, at 6 (Exhibit A to the Complaint (Email Exchange)).

In

a September 4, 2018 email, Wharton wrote to Perdue as follows:
Courtney,
Lori Parsons is wanting to know if she gives up head
Deli what her wages would be, she was hired 10/02/91
and is full time.
Would you get back with me so I can let her know.
Thanks
Dave Wharton
Id.

Perdue responded by email to Wharton on the same day,

stating, in full, “Lori would go to the wage of $16.25 on the
full time scale.”

Id.

Parsons states that she left the head deli position,
some ten months later, “in July 2019 . . . based entirely upon
Defendant’s representations that, upon doing so, Plaintiff would
be paid the hourly wage of $16.25 per hour . . . .”
2

ECF No. 1-

3, at ¶ 5.

When she received her first paycheck after leaving

the position, she alleges that she discovered she was being paid
at a base wage rate of $15.01 per hour, with an additional $0.75
per hour adjustment to the base wage rate for a department
backup role.

Id. at ¶ 7.

Parsons states that she was not

informed “of a rate of pay other than the $16.25 per hour
reflected in Exbibit A at any time between September 2018 and
the date of the filing of the Complaint in this matter.”
¶ 9.

Id. at

Parsons claims that she has not been paid the promised

rate of $16.25 per hour since she voluntarily relinquished the
head deli position.

Id. at ¶ 8.

She asserts that she “made

repeated efforts within the Defendant[’s] organization and
externally to resolve the failure of the Defendant to pay to the
Plaintiff to pay [sic] the promised hourly rate,” but that all
such efforts, “have been rebuffed by the Defendant.”

Id. at ¶

10.
Parsons filed this action in the Circuit Court of Wood
County on May 1, 2020.

ECF No. 1-3.

She alleges that Kroger

breached its obligation under the West Virginia Wage Payment and
Collection Act (“WPCA”) “to notify Plaintiff in writing
regarding her rate of pay and to notify the Plaintiff in writing
of any change to the Plaintiff’s rate of pay at least one full
pay period prior to the effective date of such change,” as set
3

forth in W. Va. Code § 21-5-9(2) and W. Va. C.S.R. § 42-5-4.2.
Id. at ¶ 12; accord id. at ¶ 6.

In addition to her WPCA claim,

Parsons asserts a “detrimental reliance” claim based on the
allegation that she detrimentally relied on the representation
that she would be paid at a rate of $16.25 per hour,
“substantially chang[ing] her position with regard to her
employment” based on that representation.

Id. at ¶ 14.

Parsons “demands against the Defendant the difference
in pay between the Plaintiff’s promised hourly rate of pay and
the rate of pay actually paid to the Plaintiff from July 2019
until the resolution of this matter.”

Id. at ¶ 13.

She further

requests that her rate of pay “be altered to reflect that” she
has a $16.25 per hour base wage rate going forward.

Id. at ¶

14.
Kroger removed the case to this court on June 10,
2020.

ECF No. 1 (Notice of Removal).

In the notice of removal,

Kroger asserts that Parsons’ claims are preempted by the LMRA
inasmuch as they “are completely dependent on interpretation of
a collective bargaining agreement,” the agreement being that
entitled “Agreement Between Kroger Mid-Atlantic Division and
United Food and Commercial Workers Union Local #400 Charleston
Area Stores” (“Collective Bargaining Agreement”) in effect from
4

October 8, 2017, to August 29, 2020, which is attached to the
notice of removal as Exhibit D.

Id. at ¶¶ 7, 9; accord ECF No.

1-4 (Exhibit D to the Notice of Removal (Collective Bargaining
Agreement)).

Inasmuch as the claims are preempted, Kroger

contends that federal question jurisdiction exists under 28
U.S.C. § 1331.

Id. at ¶ 9.

And to the extent the complaint

pleads any other state law claims not preempted by the LMRA,
Kroger states that supplemental jurisdiction exists under 28
U.S.C. § 1367.

Id. at ¶ 19.

The Collective Bargaining Agreement contains two
provisions relevant to this proceeding.

First, Article 5 of the

Collective Bargaining Agreement, entitled “Dispute Procedure,”
provides, as relevant here:
Section 5.2
Should any differences, disputes, or complaints arise
over the interpretation of the contents of this
Agreement, there shall be an earnest effort on the
part of both parties to settle such promptly through
the following steps when practical.

Step 1.
By conference between the aggrieved employee, the
shop steward and the manager of the store.\

5

Step 2.
If the grievance is not settled in Step 1,
proceed to Step 2 with a conference between an
official of the Union and/or grievant and the
District Manager or their designee within
fourteen (14) working days. The basic issue will
be reduced to writing for the District Manager. A
reply to the appropriate party will be given
within three (3) days after the above conference
is held.
Step 3.
If the grievance is not settled in Step 2,
proceed to Step 3 with a conference between an
official or officials of the Union and the
Division Vice President, a representative of the
Division Vice President, or both within fourteen
(14) working days. A reply will be given to the
appropriate party within three (3) days after the
above conference is held.

Section 5.3
In the event the grievance cannot be adjusted, notice
of intent to arbitrate must be given in writing by
either party, to the other party within ten (10)
calendar days of the date the decision was rendered in
Step 3.
Within ten (10) calendar days of the date of the
notice to arbitrate, the parties shall request from
the Director of Federal Mediation and Conciliation
Service a panel of fifteen (15) arbitrators from which
an arbitrator shall be chosen by the alternate
striking of names. The decision of the arbitrator
shall be final and binding upon all parties. The
expenses of the arbitrator shall be shared equally by
the Union and the Employer. The arbitrator will
render his decision within sixty (60) days of the
hearing.
. . .
6

Section 5.11
It is understood and agreed that all employees within
the bargaining unit covered by this Agreement must
exercise all their rights, privileges, or necessary
procedures under this Agreement, International and
Local Union Constitution, in the settlement of any and
all complaints or grievances filed by such employees
before taking any action outside of the scope of this
Agreement for the settlement of such grievances.
ECF No. 1-4, at 6-8.
Second, the Collective Bargaining Agreement contains a
provision entitled “Schedule ‘A’ – Wages.”

Id. at 37-38.

Schedule A provides that an employee classified as a “Head Deli
Clerk” earned $18.23 per hour in base pay when Parsons left this
position in July 2019.

Id. at 37.

And although it is not clear

from the complaint what position Parsons took when she left her
head deli position, the pay scale advises that $15.01 per hour,
i.e., the amount she alleges she was paid following the change
in position, was the hourly base wage rate for “Full Time
Status” employees classified as “(Top Rate) 73” employees.
at 38.

Id.

When Perdue allegedly told Parsons she would make $16.25

per hour with a position change on September 24, 2018, $16.25
was the base wage rate for “FT Clerks at $15.25 on 10/15/2014.”
Id. at 37.

7

Kroger filed its motion to dismiss on June 10, 2020.
ECF No. 3 (Motion to Dismiss).

Attached thereto is an

additional copy of the Collective Bargaining Agreement.
3-1.

ECF No.

In support of the motion, Kroger argues that Parsons’

claims are completely preempted by the LMRA inasmuch as they
dispute a wage rate that is governed by the Collective
Bargaining Agreement and require interpretation of that
agreement.

ECF No. 4, at 3-5 (Memorandum in Support of the

Motion to Dismiss).

In support of this position, Kroger cites

two cases involving LMRA preemption of WPCA claims from this
district, Swiger v. Bayer Cropscience, LP, No. 2:15-cv-07593,
2015 WL 5838578, at *1 (S.D. W. Va. Oct. 15, 2015), and Elswick
v. Daniels Elec. Inc., 787 F. Supp. 2d 443 (S.D. W. Va. 2011).
Id.

Kroger contends that Article 5 of the Collective Bargaining

Agreement requires interpretation of the agreement’s contents to
be resolved by a grievance procedure culminating in final
binding arbitration.

Id. at 5.

Inasmuch as the “Plaintiff,

through her designated agent, the UFCW Local 400, has failed to
exhaust her administrative remedies under the CBA,” Kroger
asserts that the action should be dismissed.

Id.

Notwithstanding these arguments, Kroger contends that
the plaintiff’s wage rate is subject to mandatory collective
bargaining under the National Labor Relations Act (“NLRA”) and
8

that it would not be able to enter into a valid separate
agreement with Parsons.

Id. at 6-7.

This, in Kroger’s

estimation, also warrants dismissal of Parsons’ claims.

Kroger

continues,
Moreover, Plaintiff’s claim that Kroger violated the
WPCA by failing to timely notify her of a change in
her rate of pay fails as a matter of law because it is
the CBA that is controlling, not the email. Thus,
there was no “change” of which to notify Plaintiff in
the first place. Plaintiff was timely and validly
notified of all applicable wage rates in the CBA.
Consequently, this claim, along with Plaintiff’s other
claims, fails as a matter of law and should be
dismissed under Rule 12(b)(6).
Id. at 7.

Finally, Kroger argues that the detrimental reliance
claim should be dismissed for reasons independent of those
concerning the Collective Bargaining Agreement.

It contends

that detrimental reliance is not a separate cause of action in
West Virginia but rather an element of a fraudulent
misrepresentation claim, which was not pled in this case
generally or with particularity as required by Federal Rule of
Civil Procedure 9.

Id. at 8.

Further, to the extent a

fraudulent misrepresentation claim is pled by Parsons, Kroger
asserts that such a claim should be dismissed inasmuch as no

9

equitable relief is sought and fraudulent misrepresentation
claims sound in equity under West Virginia law.

Id. at 9.

In support of her motion to remand, Parsons argues
that removal of this action relies on the complete preemption of
her claims by Section 301 of the LMRA, which does not exist
inasmuch as the WPCA and detrimental reliance claims do not
depend on an interpretation of the Collective Bargaining
Agreement.

ECF No. 8, at 3-10 (Memorandum in Support of Motion

to Remand).

At best, she contends, reference to the Collective

Bargaining Agreement is a defense to the claims she asserts,
which is insufficient to establish complete preemption for the
purposes of jurisdiction.

Id. at 9-10.

Parsons relies on two

Fourth Circuit cases in support of her position, Lontz v. Tharp,
413 F.3d 435 (4th Cir. 2005), and Price v. Goals Coal Co., 161
F.3d 3, 1998 WL 536371, at *1 (4th Cir. 1998) (per curiam)
(unpublished table opinion).

She asks that the court award her

attorney’s fees and costs for improper removal.

ECF No. 7, at

2-5.
Responding to the motion to remand, Kroger argues that
the Fourth Circuit cases cited by Parsons are inapposite
inasmuch as they involve retaliation (Lontz) and an age
discrimination violation of the West Virginia Human Rights Act
10

(“WVHRA”) (Price).
to Remand).

ECF No. 11, at 1-2 (Response to the Motion

Additionally, Kroger contends that Parsons does not

address the two cases it believes are applicable, Swiger and
Elswick.

Id. at 2.
In her reply, Parsons acknowledges that she is “a

member of a collective bargaining unit” but points to another
case, involving a WVHRA claim relating to age discrimination,
Adkins v. SuperValu, Inc., No. 3:08-1448, 2009 WL 2029807 (S.D.
W. Va. July 9, 2009), in support of her position that complete
preemption under the LMRA is inapplicable.
(Reply in Support of Motion to Remand).

ECF No. 14, at 2

She further cites Stump

v. Cyprus Kanawha Corp., 919 F. Supp. 221 (S.D. W. Va. 1995) for
the proposition that complete preemption does not occur where
“only a mere reference to a collective bargaining agreement is
necessary for the purpose of calculating damages.”
at 2.

ECF No. 14,

She also contends that Swiger supports the contention

that her action is not completely preempted.

Id. at 3.

Parsons did not respond to the motion to dismiss, and
consequently, no reply by Kroger was filed.

11

II.
A.

Motion to Remand
Legal Standard

Federal removal jurisdiction is governed by 28 U.S.C.
§ 1441(a), which provides: “any civil action brought in a State
court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the
district and division embracing the place where such action is
pending.”

“The burden of establishing federal jurisdiction is

placed upon the party seeking removal.”

Mulcahey v. Colum.

Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing
Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)).
Inasmuch as removal jurisdiction involves “significant
federalism concerns,” it is strictly construed, and remand is
appropriate where “federal jurisdiction is doubtful.”

Id.

(citations omitted).
Although the Lontz case cited by Parsons is not
particularly pertinent to the question of whether jurisdiction
exists in this action inasmuch as it considered whether a WPCA
claim was preempted by the NLRA rather than the LMRA, see 413
F.3d at 438-39, it does provide principles that guide the
court’s jurisdictional analysis.
12

“[Title 28 U.S.C.] § 1441

generally makes removal appropriate in three circumstances”:
“the parties are diverse and meet the statutory requirements for
diversity jurisdiction”; “the face of the complaint raises a
federal question”; and where the complete preemption doctrine,
which “is actually a narrow exception to the well-pleaded
complaint rule” implicated by federal question jurisdiction,
applies.

Id. at 439 (citations omitted).

Kroger does not

contend that diversity jurisdiction exists or that a federal
question arises on the face of the complaint, and thus, only
complete preemption is relevant here.
The complete preemption doctrine “provides that if the
subject matter of a putative state law claim has been totally
subsumed by federal law — such that state law cannot even treat
on the subject matter — then removal is appropriate.”

Id. at

439-40 (citing Aetna Health Inc. v. Davila, 542 U.S. 200 (2004);
Franchise Tax Board v. Construction Laborers Vacation Trust, 463
U.S. 1, 23–24, (1983); King v. Marriott Int’l, Inc., 337 F.3d
421, 424-25 (4th Cir. 2003)).

In other words, “when complete

preemption exists, there is ‘no such thing’ as the state
action,” and the relevant claim is transformed into a federal
cause of action.

Id. at 441 (quoting Beneficial Nat’l Bank v.

Anderson, 539 U.S. 1, 11 (2003)) (citation omitted).
13

“[C]ompletely preempted claims are rare,” and there is
a presumption against finding complete preemption where the
complaint appears to assert state law claims.
(citations omitted).

Id. at 440

“To remove an action on the basis of

complete preemption, a defendant must establish that the
plaintiff has a ‘discernible federal [claim]’ and that ‘Congress
intended [the federal claim] to be the exclusive remedy for the
alleged wrong.’”

Pinney v. Nokia, Inc., 402 F.3d 430, 449 (4th

Cir. 2005) (alterations in original) (quoting King, 337 F.3d at
425).

Section 301 of the LMRA is one of only three federal

statutory provisions in which the Supreme Court of the United
States has found complete preemption, the others being the
National Bank Act and the Employee Retirement Income Security
Act (“ERISA”).

Lontz, 413 F.3d at 441; accord Beneficial, 539

U.S. at 10–11 (National Bank Act complete preemption); Metro.
Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67 (1987) (ERISA
complete preemption); Avco Corp. v. Aero Lodge No. 735, Int’l
Ass’n of Machinists, 390 U.S. 557, 560 (1968) (Section 301 of
the LMRA complete preemption).

14

Section 301, as codified at 29 U.S.C. § 185, provides
in relevant part:
Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this
chapter, or between any such labor organizations, may
be brought in any district court of the United States
having jurisdiction of the parties, without respect to
the amount in controversy or without regard to the
citizenship of the parties.
29 U.S.C. § 185(a).

The Supreme Court has held that Section

301, “mandate[s] resort to federal rules of law in order to
ensure uniform interpretation of collective-bargaining
agreements, and thus to promote the peaceable, consistent
resolution of labor-management disputes.”

Lingle v. Norge Div.

of Magic Chef, Inc., 486 U.S. 399, 404 (1988) (citing Teamsters
v. Lucas Flour Co., 369 U.S. 95 (1962)).
Section 301 preempts a state law claim if resolution
of the state claim is “inextricably intertwined with
consideration of the terms of the labor contract” or application
of state law to a dispute “requires the interpretation of a
collective bargaining agreement.” Lingle, 486 U.S. at 413;
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). Section
301 does not “pre-empt nonnegotiable rights conferred on
individual employees as a matter of state law . . . .” Livadas
v. Bradshaw, 512 U.S. 107, 123 (1994) (citations omitted).
15

Instead, “[I]t is the legal character of a claim, as independent
of rights under a collective-bargaining agreement, . . . that
decides whether a state cause of action may go forward.”

Id. at

123-24 (internal citations and quotation marks omitted).
B.

Analysis

Inasmuch as the legal character of the state law claim
asserted is critical to the question of complete preemption by
Section 301 of the LMRA, the court notes at the outset that two
of the cases relied upon by Parsons are inapposite to the
analysis of whether complete preemption confers jurisdiction in
this action since they concern claims brought under the WVHRA. 1
As earlier noted, those cases, Price and Adkins, involved claims
brought by plaintiffs for age discrimination under the WVHRA.
Price, 1998 WL 536371, at *1-2; Adkins, 2009 WL 2029807, at *56.
To the extent these cases are applicable to the
circumstances of this action involving a WPCA claim, each
illustrates the same principle.

In Price, the Fourth Circuit

declined to find complete preemption where the collective

1

As above noted, Lontz, which is also relied on by Parsons,
is not applicable inasmuch as it considered whether a WPCA claim
was preempted by the NLRA rather than the LMRA.
16

bargaining agreement at issue was only relevant insofar as its
arbitration provision could be used as a defense to the WVHRA
claim.

1998 WL 536371, at *7-8.

In Adkins, the court found

that the collective bargaining agreement at issue was only
relevant insofar as its “recall” provisions could be used as a
defense to the WVHRA claim.

2009 WL 2029807, at *6.

These

decisions demonstrate the well-established principle that “[a]
defendant cannot convert a state law claim into one preempted
under federal law by merely injecting a defense that may require
analysis of a collective bargaining agreement.”

Harless v. CSX

Hotels, Inc., 389 F.3d 444, 450 (4th Cir. 2004) (citing
Caterpillar, Inc. v. Williams, 482 U.S. 386, 398–99 (1987)).
But contrary to Parsons’ arguments, her WPCA claim is
not one that involves the Collective Bargaining Agreement only
to the extent that its dispute procedure provisions may be
raised as a defense.
compensation.

The WPCA “does not create a right to

Rather, it provides a statutory remedy when the

employer breaches a contractual obligation to pay earned wages.”
Adkins v. Am. Mine Research, Inc., 765 S.E.2d 217, 221 (W. Va.
2014) (emphasis added) (internal citations and quotation marks
omitted).

The specific section of the WPCA that provides for

private actions, W. Va. Code § 21-5-12(a), states: “Any person
whose wages have not been paid in accord with this article, or
17

the commissioner or his designated representative, upon the
request of such person, may bring any legal action necessary to
collect a claim under this article.”

(emphasis added); see also

Syl Pt. 3, Beichler v. W. Va. Univ. at Parkersburg, 700 S.E.2d
532 (W. Va. 2010) (holding that pursuant to W. Va. Code §
21-5-12(a), “a person whose wages have not been paid in accord
with the West Virginia Wage Payment and Collection Act may
initiate a claim for the unpaid wages either through the
administrative remedies provided under the Act or by filing a
complaint for the unpaid wages directly in circuit court.”).
Further, “[t]he contract between the parties governs in
determining whether specific wages are earned.”

Am. Mine

Research, Inc., 765 S.E.2d at 221 (internal citations and
quotation marks omitted); see also Spano v. Metro. Life Ins.,
2:09–cv–01243, 2011 WL 2180657, at *2 (S.D. W. Va. June 2, 2011)
(“In WPCA cases, courts must consider the specific employment
agreement.”).
Parsons’ WPCA cause of action is premised on the
argument that she is entitled to a base wage rate higher than
what she was actually paid following her departure from the head
deli position.

Resolution of the claim, like other WPCA claims,

necessarily requires interpretation of the contract that
18

prescribes the relevant base wage rates, i.e., the Collective
Bargaining Agreement.
Parsons attempts to frame her WPCA claim as one
pursuant to W. Va. Code § 21-5-9(2) and W. Va. C.S.R. § 42-5-4.2
inasmuch as she believes she was entitled to written notice from
Kroger, which was allegedly not provided, one pay period prior
to the effective date her base wage rate changed.

W. Va. Code §

21-5-9(2) prescribes, “Every person, firm and corporation shall
. . . [n]otify his employees in writing, or through a posted
notice maintained in a place accessible to his employees of any
changes in the [rate of pay, and of the day, hour, or place of
payment] prior to the time of such changes.”

W. Va. C.S.R. §

42-5-4.2 states, “When an employer changes an employee’s rate of
pay, pay period, place or method of payment, time of payment, or
any other term of employment, the employer shall furnish a
written notice to the affected employee at least 1 full pay
period prior to the effective date of the change.”

It is

difficult to see how these provisions relate to the WPCA claim
brought by Parsons, namely, that which seeks wages allegedly
earned and requests a prospective adjustment to her base wage
rate.

19

On a related note, Parsons likely cannot proceed with
a WPCA claim premised solely on W. Va. Code § 21-5-9(2) and the
corresponding regulation found in W. Va. C.S.R. § 42-5-4.2.

In

Byard v. Verizon W. Va., Inc., No. 1:11CV132, 2012 WL 1085775
(N.D. W. Va. Mar. 30, 2012), the United States District Court
for the Northern District of West Virginia held that no private
cause of action exists for violations of W. Va. Code §
21-5-9(6), which, inter alia, obliges employers to make and keep
wage and hour records for employees.

Id. at *16-18.

In doing

so, the court noted that “[t]he enforcement scheme created by
the WPCA provides for a combination of administrative and
private remedies.”

Id. at *16.

With respect to administrative

remedies, the court observed that the Commissioner of the West
Virginia Division of Labor “is charged with full administrative
enforcement of the WPCA,” may investigate “whether any provision
of the WPCA has been violated,” issue subpoenas, and conduct
“proceedings which include an investigation, an initial meeting
with the parties, a hearing before a hearing examiner and the
entry of an order appealable to circuit court.”

Id. (citing W.

Va. Code § 21-5-11(a)-(b); W. Va. C.S.R. § 42–5–3; Beichler, 700
S.E.2d at 535) (internal quotation marks omitted).

20

The Byard court recognized, however, that “[by] its
terms, the WPCA limits private causes of action under the
statute, and the accompanying right to file directly in state
court, to employees who seek to ‘collect a claim’ for unpaid
wages,” as set forth in W. Va. Code § 21-5-12(a).
(citing Beichler, 700 S.E.2d at 535-36).

Id. at *18

Byard determined that

W. Va. Code § 21-5-9(6) “does not directly concern unpaid wages”
inasmuch as that subsection concerns recordkeeping.

Id. at *17.

The court further noted that the WPCA explicitly prescribes
remedies for “clearly enforceable” unpaid wage-related
provisions, W. Va. Code §§ 21-5–3 and 21–5–4.

Id. at *18

(citing Atchison v. Novartis Pharm. Corp., No. 3:11–cv–0039,
2012 WL 851114, at *2 (S.D. W. Va. March 13, 2012)).

By

contrast, “[v]iolations of W. Va. Code § 21–5–9 . . . have no
identified remedy or damages.”

Id.

Based on this analysis, the

court held as follows:
The plain language of the WPCA and accompanying
regulations place administration and enforcement of W.
Va. Code § 21–5–9 squarely within the purview of the
Commissioner. To the extent the plaintiffs have any
sort of claim arising under this provision, a fact far
from clear, it is not one that they are entitled to
privately enforce or bring to court in the first
instance.
Id. (citing W. Va. Code § 21–5–12(a)).

21

The cause of action asserted in Byard is not
completely analogous to that pled by Parsons inasmuch as Parsons
purports to proceed under subsection (2) of W. Va. Code §
21-5-9.

But Byard’s conclusion, drawn from an understanding of

the WPCA’s administrative and private remedy dichotomy, would
seem equally applicable here inasmuch as W. Va. Code § 21–5–9(2)
pertains directly to notice (and not unpaid wages) and there is
generally no statutory remedy prescribed for violations of this
subsection.
Regardless, Parsons does assert she is owed unpaid
wages under the WPCA, and “the Supreme Court has refused to
allow artful pleading to circumvent § 301’s preemptive force.”
Davis v. Bell Atlantic-West Virginia, Inc., 110 F.3d 245, 247
(4th Cir. 1997) (citing Allis–Chalmers Corp., 471 U.S. at 211).
“‘Form is not to triumph over substance as employees relabel
contract claims as claims for tortious breach of contract’ or
other tort actions arising from contract duties.”
WL 536371, at *6 (quoting Davis, 110 F.3d at 247).

Price, 1998
Thus, to the

extent Parsons attempts to diminish the contractual nature of
her claim with references to W. Va. Code § 21-5-9(2) and W. Va.
C.S.R. § 42-5-4.2, such references will not operate to defeat
complete preemption in this case.
22

Further, this court’s reasoning in Hayes v. Bayer
Cropscience, LP, 139 F. Supp. 3d 795 (S.D. W. Va. 2015), the
published companion to Swiger, cited by Kroger, is persuasive.
The Swiger and Hayes opinions, each issued by United States
District Judge Joseph R. Goodwin on October 5, 2015, are near
carbon copies of each other and appear to involve different
plaintiffs asserting the same claims against the same defendants
with the same counsel representing the respective sides in each
case.

See Hayes, 139 F. Supp. 3d at 798; Swiger, 2015 WL

5838578, at *1.
analyses.

The opinions have identical LMRA preemption

See Hayes, 139 F. Supp. 3d at 802-04; Swiger, 2015 WL

5838578, at *3-5.

And four days following the issuance of these

opinions, the cases were consolidated.
6956652, at *1-2.

See Swiger, 2015 WL

For simplicity, the court refers only to

Hayes in the body of this opinion.
The plaintiff in Hayes, a union member covered by
the terms of a collective bargaining agreement, worked as a
chemical operator for Bayer.

Id. at 799.

After Bayer announced

it would be discontinuing certain production lines and, as a
result, 220 employees were expected to lose employment, it
negotiated a voluntary severance plan with the union, which was
incorporated into the collective bargaining agreement.

Id.

Bayer’s vice president thereafter issued a memorandum, which the
23

plaintiff believed to contain a promise to pay $25,000 for a
voluntary resignation if he remained with the company until July
30, 2012.

Id.

“Acting on his belief, the plaintiff advised

Bayer via an email communication on July 1, 2012, that he
intended to resign his position effective August 2, 2012.”

Id.

“Soon afterward, a representative of Bayer informed the
plaintiff that Bayer ‘could not commit to pay the [p]laintiff
$25,000 by August 2 and further advised that it could not commit
to August 2 as an acceptable date of departure for the
[p]laintiff.’”

Id.

(alterations in original).

The plaintiff

filed a WPCA claim in the Circuit Court of Kanawha County, and
the defendants removed on the basis of complete preemption under
the LMRA and ERISA.

Id.

Considering the plaintiff’s motion to remand, the
court found that Section 301 of the LMRA completely preempted
the claim asserted by the plaintiff. 2

Id. at 803-04.

Specifically, the court found that the plaintiff’s claim was not
independent of rights conveyed under the CBA inasmuch as the
alleged right to payment stemmed from “promises” made by Bayer
through its vice president’s memorandum and the NLRA precludes
employers from “unilaterally alter[ing] certain terms and
2

The court did not find the claim to be completely preempted
by ERISA. Hayes, 139 F. Supp. 3d at 801-02.
24

conditions of employment when employees are members of a
certified bargaining unit — a union.”

Id. at 803.

Since Bayer

“was simply not able to enter into separate agreements with
employees regarding terms and conditions of employment that are
subject to mandatory collective bargaining under federal law,”
i.e., severance pay in that case, the court found that the
plaintiff’s reliance on the vice-president’s memorandum was
misplaced and that the claim was not independent of the rights
conveyed under the collective bargaining agreement.

Id.

The court further found that the plaintiff’s claim was
inextricably intertwined with consideration of the terms and
conditions of the collective bargaining agreement.
04.

Id. at 803-

The court rejected the plaintiff’s argument that Stump

weighed in favor of remand inasmuch as Stump dealt with a WPCA
claim for final wages against a defunct employer, which only
required consultation of a collective bargaining agreement for
the purposes of determining damages.
Supp. at 223-25).

Id. (citing Stump, 919 F.

Hayes, on the other hand, “concern[ed] a

benefit that is wholly derived from a collective bargaining
agreement and d[id] not implicate the WPCA” since severance pay,
unlike wages, is not covered by the WPCA.

Id. at 804.

Thus,

the court determined, “The plaintiff's claim requires a review
of the CBA to determine whether he is even entitled to the
25

severance pay he seeks,” leading to the conclusions that the
claim was inextricably intertwined with consideration of the
terms of the collective bargaining agreement and was necessarily
preempted by Section 301 of the LMRA.
This case is distinguishable from Hayes to a certain
extent inasmuch as it involves a claim for wages covered by the
WPCA rather than a severance pay claim that purportedly, but did
not actually, fall under the WPCA.

On the other hand, Hayes is

generally instructive.
Like the plaintiff in Hayes, Parsons pursues a claim
based on the representations of an employee of the defendant
that she would receive certain compensation.

And just as Bayer,

through its vice president, could not unilaterally alter the
terms and conditions of employment that were covered by the
collective bargaining agreement in that case, namely, those
concerning severance pay, Kroger could not unilaterally, through
Wharton or Perdue, alter Parsons’ wage rate inasmuch as her
wages were subject to mandatory collective bargaining in
accordance with the NLRA.

See Dorsey Trailers, Inc. v.

N.L.R.B., 233 F.3d 831, 838 (4th Cir. 2000) (“Matters falling
within the category of wages, hours, and other terms or
conditions of employment are mandatory subjects of bargaining.
26

An employer commits an unfair labor practice under Section
8(a)(5) [of the NLRA] when it makes a unilateral change or
otherwise fails to bargain in good faith on any mandatory
subject.”) (citing 29 U.S.C. § 158(a)(5); First Nat’l
Maintenance Corp. v. NLRB, 452 U.S. 666, 675 (1981)).
Importantly, this case differs from Stump, in which
the court found that consultation of the collective bargaining
agreement for the purposes of identifying the appropriate amount
of damages did not warrant preemption under Section 301 of the
LMRA.

919 F. Supp. at 224-25.

Instead, it resembles Hayes

inasmuch as the question of whether Parsons is entitled to
relief at all necessarily requires consideration of the terms of
the Collective Bargaining Agreement, which prescribe the
appropriate base wage rates for particular employment positions
during the period of time at issue.
Since the success of the WPCA claim asserted in this
action is “inextricably intertwined” with consideration of the
terms of the Collective Bargaining Agreement, the court finds
that the claim is preempted by Section 301 of the LMRA.
Accordingly, the court has subject matter jurisdiction over that
claim under the doctrine of complete preemption.

27

In connection with the motion to dismiss and its
preemption arguments therein, the defendant generally argues
that the detrimental reliance claim is also completely preempted
by Section 301 of the LMRA.

See, e.g., ECF No. 4, at 5

(“[T]here is complete federal preemption of Plaintiff’s claims
in this case because interpretation of a collective bargaining
agreement is required.”) (emphasis added).

However, it makes no

complete preemption argument specific to claims for detrimental
reliance and does not cite any caselaw pertaining thereto.
It is fairly clear that consideration of the
Collective Bargaining Agreement is necessary for the purposes of
evaluating a defense against the detrimental reliance claim
since such a claim, like the purported WPCA claim, concerns a
wage dispute that implicates Article 5’s grievance and
arbitration provisions.

Still, as the preceding illustrates,

consideration of a collective bargaining agreement to analyze a
defense to a claim is not sufficient to demonstrate complete
preemption for jurisdictional purposes.

Absent any arguments

specific to complete preemption of the detrimental reliance
claim, the court finds that Kroger has not overcome the
presumption against complete preemption as that presumption
pertains to this claim.
28

That said, Kroger has asserted in its notice of
removal that supplemental jurisdiction exists for any claim that
is not completely preempted by Section 301 of the LMRA in its
notice of removal.

Under 28 U.S.C. § 1367(a),

in 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.
Where a state law claim forms part of the same case or
controversy as another that is completely preempted under
Section 301 of the LMRA, the court may exercise supplemental
jurisdiction over the claim that has not been completely
preempted.

See Sayre v. United Steelworkers of Am., AFL-CIO,

District 8, No. 2:07–0787, 2010 WL 3810618, at *9 (S.D. W. Va.
Sept. 23, 2010) (exercising supplemental jurisdiction over a
negligent misrepresentation claim after finding a negligence
claim to be preempted by Section 301 of the LMRA).

The

detrimental reliance claim patently forms part of the same case
or controversy as the purported WPCA claim, and the court will
exercise supplemental jurisdiction over it.

29

III.
A.

Motion to Dismiss
Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires that
a pleading contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”

Rule 12(b)(6)

correspondingly provides that a pleading may be dismissed when
there is a “failure to state a claim upon which relief can be
granted.”
To survive a motion to dismiss, a pleading must recite
“enough facts to state a claim to relief that is plausible on
its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Monroe v. City of Charlottesville, 579 F.3d
380, 386 (4th Cir. 2009) (quoting Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008)).

In other words, the “[f]actual

allegations must be enough to raise a right to relief above the
speculative level.”

Twombly, 550 U.S. at 555 (citation

omitted).
The court “must accept as true all of the factual
allegations contained in the [pleading].”

Erickson v. Pardus,

551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56).
Such factual allegations should be distinguished from “mere
30

conclusory statements,” which are not to be regarded as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[T]he tenet that a
court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”

Id.

Rule 12(d) provides that “[i]f, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.”

The Fourth Circuit has

clarified that documents attached to a motion to dismiss may be
considered without converting the motion to one for summary
judgment “so long as they are integral to the complaint and
authentic.”

Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180

(4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523,
526 n. 1 (4th Cir. 2006)).
As the court’s preemption analysis in the preceding
section demonstrates, the Collective Bargaining Agreement is
integral to the complaint inasmuch as the success of the WPCA
claim hinges on whether Parsons is entitled to the pay she seeks
thereunder.

Moreover, no party disputes the authenticity of the

Collective Bargaining Agreement.

Accordingly, the court will

consider it without converting Kroger’s motion to a motion for
summary judgment.
31

B.

Analysis

Having established jurisdiction, the court must
determine whether the claims raised by the plaintiff should be
dismissed as asserted by Kroger. 3
“A state law claim that is preempted by the LMRA may
yet survive if it states a claim under the federal statute.”
Elswick, 787 F. Supp. 2d at 448 (citing Caterpillar, Inc., 482
U.S. at 393; Allis–Chalmers Corp., 471 U.S. at 220).

As was the

case in Elswick, where the defendant likewise contended that the
preempted WCPA claim should be dismissed for failure to exhaust
administrative remedies, it is necessary to consider whether
Parsons’ preempted claim should be dismissed for failure to
exhaust.

See id. (citing Clayton v. Int’l Union, 451 U.S. 679,

681 (1981)).

3

Inasmuch as Parsons neglected to respond to the motion to
dismiss, she offers no input on Kroger’s dismissal arguments
apart from the preemption issue briefed in connection with the
motion to remand. The fact that she did not respond to the
motion to dismiss, however, does not constitute a per se
admission that the motion should be granted. See, e.g., Hughes
v. Cabell Cnty., No. 3:19-cv-00606, 2020 WL 2202328, at *5 (S.D.
W. Va. Apr. 14, 2020); Hanshaw v. Wells Fargo, No.
2:11-cv-00331, 2014 WL 4063828, at *4 n. 5 (S.D. W. Va. Aug. 14,
2014). Accordingly, the court will address the merits of
dismissal pursuant to Rule 12(b)(6).
32

Subject to certain exceptions not applicable here, “an
employee is required to attempt to exhaust any grievance or
arbitration remedies provided in the collective bargaining
agreement” prior to bringing an action pursuant to Section 301
of the LMRA.

DelCostello v. Int’l Broth. Of Teamsters, 462 U.S.

151, 164 (1983) (citations omitted).

See generally, Staudner v.

Robinson Aviation, Inc., 910 F.3d 141 (4th Cir. 2018).

“[T]he

exhaustion requirement is not a freestanding rule of law, but
rather a matter of contract enforcement, holding parties to
their agreement to make a contractual grievance process the
‘exclusive remedy’ for breaches of that contract.”

Staudner,

910 F.3d at 148 (quoting Vaca v. Sipes, 386 U.S. 171, 184
(1967)).

Thus, “the threshold question is whether the parties

here in fact have agreed to a mandatory and exclusive grievance
process.”

Id.
It is apparent that the Collective Bargaining

Agreement prescribes a mandatory and exclusive grievance process
for the preempted claim asserted by Parsons.

Article 5, Section

5.2 of the Collective Bargaining Agreement states, “should any
differences, disputes, or complaints arise over the
interpretation of the contents of this Agreement, there shall be
an earnest effort on the part of both parties to settle such
promptly through the following steps when practical.”
33

ECF No.

3-1, at 6 (emphasis added).

The preempted claim, which

challenges the wages earned and appropriate wage rate as
prescribed in Schedule A of the Collective Bargaining Agreement,
constitutes a dispute over the interpretation of the base wage
rate provisions found in Appendix A.

The word “shall” mandates

compliance with the grievance process “when practical,” and
there is no indication that compliance therewith would have been
impractical in this case.
The Collective Bargaining Agreement proceeds to lay
out the three steps in Section 5.2, and Section 5.3 states that
“[i]n the event the grievance cannot be adjusted, notice of
intent to arbitrate must be given in writing by either party, to
the other party within ten (10) calendar days of the date the
decision was rendered in Step 3.”

Id.

Section 5.3 goes on to

state, “The decision of the arbitrator shall be final and
binding.”

Id.
Parsons’ complaint alleges that she, “made repeated

efforts within the Defendant[’s] organization and externally to
resolve the failure of the Defendant to pay to the Plaintiff to
pay [sic] the promised hourly rate,” only for her efforts to,
“have been rebuffed by the Defendant.”

ECF No. 1-3, at ¶ 10.

This vague assertion, however, does not establish compliance
34

with the specific three-step grievance procedure followed by
binding arbitration.

Indeed, there is no indication that

Parsons attempted to follow the three-step grievance procedure
to resolve the wage dispute, and it is obvious by virtue of this
action being before the court that the claim was not ultimately
subjected to binding arbitration.

Since Parsons did not comply

with the mandatory grievance and arbitration procedures provided
for in Article 5 of the Collective Bargaining Agreement, the
preempted claim, brought under the WPCA, must be dismissed.

See

Elswick, 787 F. Supp. 2d at 449 (“Accordingly, the court
concludes that Elswick inexcusably failed to exhaust his
remedies, rendering dismissal of the State Claim appropriate.”).

35

The detrimental reliance claim similarly fails. 4

Like

the preempted WPCA claim, Parsons uses this claim to assert
entitlement to damages constituting the difference between
$16.25 and $15.01 per hour base wage rates from July 2019 until
the resolution of this case as well as prospective relief in the
form of what would essentially be a raise to a base wage rate of
$16.25 per hour.

Since this claim necessarily concerns a wage

dispute, Parsons was required to abide by Article 5’s grievance
and arbitration procedures, which she did not do.

Thus,

dismissal of the detrimental reliance claim is also appropriate.

4

The court recognizes that inasmuch as it has determined
that dismissal of the completely preempted claim is appropriate,
it maintains discretion as to whether to decline to exercise
supplemental jurisdiction over the detrimental reliance claim
and remand the claim under 28 U.S.C. § 1367(c). See, e.g.,
Hinson v. Norwest Fin. South Carolina, Inc., 239 F.3d 611, 61617 (4th Cir. 2001). Put another way with respect to Rule
12(b)(6) dismissals, the Supreme Court has recognized that “when
a court grants a motion to dismiss for failure to state a
federal claim, the court generally retains discretion to
exercise supplemental jurisdiction, pursuant to 28 U.S.C. §
1367, over pendent state-law claims.” Arbaugh v. Y&H Corp., 546
U.S. 500, 514 (2006) (citation omitted).
When determining whether to exercise supplemental
jurisdiction or remand the case, courts consider “principles of
economy, convenience, fairness, and comity.” Hinson, 239 F.3d
at 617 (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343,
357 (1988)). Inasmuch as it is clear that the detrimental
reliance claim should be dismissed for failure to comply with
the grievance and arbitration procedures found in Article 5 of
the Collective Bargaining Agreement, these principles favor
adjudication and dismissal of the claim by this court at this
time rather than remand.
36

V.

Conclusion

Accordingly, it is ORDERED that:
1.

Parsons’ motion to remand (ECF No. 7) be, and it

hereby is, DENIED.
2.

Kroger’s motion to dismiss (ECF No. 3) be, and it

hereby is, GRANTED.

The WPCA and detrimental reliance claims

are dismissed with prejudice.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
ENTER:

37

March 31, 2021