Collins v. Lowe's Home Centers, LLC et al

Filing 33

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendants' 9 Partial Motion to Dismiss; dismissing Plaintiff's Harless claim referencing the WVHRA; allowing Plaintiff's Harless claim referencing the FMLA to continue. Signed by Judge Robert C. Chambers on 12/7/2017. (cc: counsel of record; any unrepresented parties) (hkl)

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

SEAN C. COLLINS,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-1902

LOWE’S HOME CENTERS, LLC, and
SCOTT HORSFIELD, individually and as
Manager of Lowe’s Home Centers, LLC,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Partial Motion to Dismiss (ECF No. 9). As
explained below, the Court GRANTS, IN PART, and DENIES, IN PART, Defendants’ Partial
Motion to Dismiss. Plaintiff’s Harless claim, in Count IV, premised upon the WVHRA is
DISMISSED. But, Plaintiff’s Harless claim, also in Count IV, premised upon the FMLA remains
viable.
Defendants requests the dismissal of Count IV of Plaintiff’s five-count Complaint.
Defendants contend that Count IV, claiming retaliatory discharge1 in violation of West Virginia
public policy (a “Harless claim”), should be dismissed for three reasons: 1) Plaintiff’s complaint
fails to provide the facts upon which a retaliatory discharge claim can be stated; 2) a retaliatory
discharge claim cannot be based upon the Family and Medical Leave Act (“FMLA”) and that West

Note that “retaliatory discharge” and “wrongful discharge” are interchangeable in this
area of the law. See Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713, 718, 723 (W. Va. 2001) (using
both terms in discussing the same cause of action). The two terms should be treated as
synonymous, and the Court does so in this memorandum opinion and order.
1

Virginia has no substantial public policy that reflects the concerns of the FMLA; and 3) Plaintiff’s
retaliatory discharge claim is preempted by the statutory cause of action under the West Virginia
Human Rights Act (“WVHRA”).
I. BACKGROUND2
Plaintiff’s claims arise out of an employment relationship gone-bad. For nearly 20 years,
Plaintiff worked for Lowes Home Centers, LLC (“Defendant Lowes”), one of the defendants.
Compl., ECF No. 1, ⁋ 8. Plaintiff received a litany of awards and commendations during his
employment with Defendant Lowes, even earning the impressive title of “The Legend.” Id. at ⁋ 89.
Plaintiff developed this folkloric reputation despite personal challenges. Throughout his
career, Plaintiff received treatment for diabetes and high blood pressure. Id. at ⁋ 10. In addition to
his own ailments, Plaintiff’s wife suffered from her own serious health conditions. Id. at ⁋ 12.
Plaintiff had notified Defendants of his and his wife’s heath concerns. Id. at ⁋ 5, 43. In order to
care for both himself and his wife, Plaintiff notified Defendants of his potential need to take some
time off from work. Id. at ⁋ 43. It is with this development that Plaintiff claims “The Legend”
began to unravel.
During the course of his employment, Plaintiff claims that Defendant Scott Horsfield
(“Defendant Horsfield”) discriminated against Plaintiff. Believing, in good faith, that Defendant
Horsfield, Plaintiff’s manager, had discriminated against Plaintiff in a way he believed was in
violation of West Virginia and federal law, Plaintiff reported these concerns to Defendant Lowes.
Id. at ⁋ 15, 16, 59. 60. Plaintiff claims that Defendant Lowes terminated his employment because

2

This section includes only those facts relevant to the issues identified in the Partial
Motion to Dismiss.
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of Plaintiff’s reporting of his concerns. Id. at ⁋ 61, 64. Further, Plaintiff contends that the reason
given by Defendant Lowes’s for firing Plaintiff was pretextual. Id. at ⁋ 18-22, 70.
Finding his termination objectionable, Plaintiff filed the complaint that commenced this
action on March 16, 2017. Plaintiff’s complaint contained five counts arising out of his
employment and subsequent firing: (1) Interference With Rights Under the Family and Medical
Leave Act; (2) Discrimination/Retaliation for Exercising Rights and Engaging in Protected
conduct Under the Family and Medical Leave Act of 1993; (3) Disability Discrimination (under
West Virginia Human Rights Act); (4) Retaliatory Discharge in Violation of West Virginia Public
Policy; and (5) Violation of West Virginia Wage Payment and Collection Act. See generally
Compl. In their Partial Motion to Dismiss, Defendants only moved to dismiss Count IV that
claimed retaliatory discharge in violation of West Virginia public policy. Defs.’ Partial Mot. to
Dismiss, ECF No. 9, at ⁋ 2. With the partial motion fully briefed, the matter is ready for
adjudication.
II. STANDARD OF REVIEW
Federal Rule 8(a) requires a complaint to include “a short and plain statement of the claim
… showing entitle[ment] to relief.” Fed. R. Civ. P. 8(a)(2). To overcome a motion to dismiss under
Federal Rule 12(b)(6), a complaint must state plausible claims. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 546 (2007). This standard requires a plaintiff to set forth the “grounds” for an
“entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Id. at 555 (internal quotations and citations
omitted). 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) (internal quotations
and citation omitted). Facial plausibility exists when a claim contains “factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citation omitted).
Accepting the factual allegations in the complaint as true, the allegations “must be enough
to raise a right to relief above the speculative level . . . . ” Twombly, 550 U.S. at 555 (citations
omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of
entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum
expenditure of time and money by the parties and the court.” Id. at 558 (internal quotations and
citations omitted). “Although for the purposes of a motion to dismiss we must take all of the factual
allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched
as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted). Finally,
a court must also “draw[ ] all reasonable factual inferences from those facts [alleged] in the
plaintiff’s favor . . . .” Martin v. Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (internal quotations
omitted) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (internal citations omitted)).
III. DISCUSSION
As noted above, Defendants challenge Count IV of Plaintiff’s Complaint that states a claim
for common law retaliatory discharge. In West Virginia, an employer’s absolute right to discharge
an at-will employee is tempered by common law considerations. See Syl. pt. 4, Herbert J. Thomas
Memorial Hosp. Ass’n v. Nutter (“Thomas”), 795 S.E.2d 530 (W. Va. 2016). Where the employer’s
motivation for termination contravenes a “substantial public policy principal,” then the employee
has a cause of action for retaliatory discharge in violation of public policy (a “Harless claim”). Id.;
see also Harless v. First Nat’l Bank, 246 S.E.2d 270, 275 (W. Va. 1978). To establish substantial
public policy for a Harless claim, courts should “look to established precepts in [West Virginia’s]
constitution, legislative enactments, legislatively approved regulations, and judicial opinions.

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Williamson v. Greene, 490 S.E.2d 23, 31 (W. Va. 1997) (quoting Syl. pt. 2, Birthisel v. Tri-Cities
Helath Servs. Corp., 424 S.E.2d 606 (W. Va. 1992)). The term “substantial public policy” is
intended to “exclude claims that are based on insubstantial considerations.” Birthisel v. Tri-Cities
Helath Servs. Corp., 424 S.E.2d 606, 612 (W. Va. 1992). “Substantial public policy” also
encapsulates the implication that the public policy principal provides both specific and recognized
guidance for employers. Id. The existence of a substantial public policy for a Harless claim is a
question of law, not one of fact. Thomas, 795 S.E.2d at 541 (citing Syl. pt. 1, Cordle v. Gen. Hugh
Mercer Corp., 325 S.E.2d 111 (W. Va. 1984)).
The Supreme Court of Appeals of West Virginia (“West Virginia Supreme Court”) has
provided four elements necessary to state a claim for retaliatory discharge:
(1) That a clear public policy existed and was manifested in a state or
federal constitution, statute or administrative regulation, or in the
common law (the clarity element);
(2) That dismissing employees under circumstances like those involved in
the plaintiff’s dismissal would jeopardize the public policy (the
jeopardy element);
(3) That plaintiff’s dismissal was motivated by conduct related to the public
policy (the causation elements);
(4) The employer lacked overriding legitimate business justification for the
dismissal (the overriding justification element).
Id. (citations omitted) (italicization original) (providing these factors as a summary of the four
factors announced by Justice Davis in Feliciano v. 7-Eleven, Inc.).
Plaintiff has asserted two Harless claims, one premised upon the public policy emanating
from the WVHRA, and the other premised upon a potential public policy derived from the FMLA.
Compl. ⁋ 58, 59, 60, 64, 66. With the background of a retaliatory discharge claim laid out, the
Court will examine each of the Plaintiff’s Harless claims in turn.

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a. The WVHRA supersedes one of Plaintiff’s Harless claims.
Plaintiff bases the first of his Harless claims upon the substantial public policy announced
in the WVHRA. Compl. ⁋ 59, 60, 64, 66. Defendants contend that this Harless claim should be
dismissed because it is supplanted by a statutory claim arising under the WVHRA. . Defs.’ Partial
Mot. to Dismiss, at ⁋ 9. Defendants base this contention upon a series of decisions from district
courts in West Virginia. Id.; see, e.g., Guevara v. K-Mart Corp., 629 F.Supp. 1189, 1192 (S.D.W.
Va. 1986); Burgess v. Gateway Comm’ns Inc.-WOWK TV, 984 F.Supp. 980, 983 (S.D.W. Va.
1997); Knox v. Wheeling-Pittsburgh Steel Corp., 899 F.Supp. 1529, 1535-36 (N.D.W. Va. 1995).
Plaintiff, citing to this Court’s decision in Vandevander v. Verizon Wireless, LCC, 149 F.Supp.3d
724 (S.D.W. Va. 2016), argues that he may pursue the common law Harless claim, despite also
having statutory remedies under the WVHRA. Pl.’s Resp. Mem. in Opp’n to Defs.’ Mot. to
Dismiss, ECF No. 12, at 6-7. Notwithstanding Plaintiff’s seemingly apt application of the logical
reasoning from Vandevander, this Court agrees with Defendants because of the clear and unrepudiated precedent of this District.
Just this year, this Court examined the precise issue over which the current parties disagree.
In Adkins v. Cello P’ship, Inc., this Court had to decide whether a claim under the WVHRA
supersedes and replaces a Harless claim that emanates from the public policy announced in the
WVHRA, when the same facts underlie both the WVHRA claim and the Harless claim. No. 3:17cv-2772, 2017 WL 2961377, at *2-4 (S.D.W. Va. July 11, 2017) (slip op.). In that case, the Court
considered arguments nearly identical to those made by the parties in this matter. The Court
discussed both the continuing precedent in this District, as well as the developments in the West
Virginia Supreme Court’s jurisprudence. See id.

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Specifically, this Court addressed the application of its Vandevander decision to the
question of whether the remedies provided in the WVHRA supersede a Harless claim that is based
upon the public policy embodied by the WVHRA. See id. at *3. Like the plaintiff in this case, the
plaintiff in Adkins argued that this Court’s opinion in Vandevander supported the proposition that
a plaintiff could maintain a Harless claim, even when a plaintiff also had an actionable statutory
claim. See id.
In Vandevander, this Court found that the FMLA does not preempt a state law claim, such
as a Harless claim, “even [when that] claim[] aris[es] out of the same transaction or occurrence as
an FMLA claim.” Vandevander, 149 F.Supp.3d at 728. The Court in Adkins distinguished the
circumstances and reasoning of Vandevander. The Court provided that Vandevander dealt with
the FMLA, a statute that by its express terms does not preempt state law claims. See Adkins, 2017
WL 2961377, at *3; see also Vandevander, 149 F.Supp.3d at 728. The WVHRA, on the other
hand, creates both “the anti-discriminatory public policy for the state and a private cause of action
for citizens to seek remedies when the WVHRA is violated.” Adkins, 2017 WL 2961377, at *3.
The Court reasoned that in light of the WVHRA’s creation of both the public policy and a cause
of action for its violation, a Harless claim was duplicative. See id. at *4. The Court noted that the
West Virginia Supreme Court created the Harless claim for wrongful terminations where the fired
employee did not have any cause of action under state law to enforce a violated public policy. See
id.; see also Harless, 246 S.E.2 at 276. But, where the act of the state legislature provided both the
policy and a cause of action, the Harless concerns no longer existed. An employee terminated in
violation of the public policy of the WVHRA has a statutory cause of action, rendering a Harless

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claim unnecessary. Thus, the Harless claim succumbed to the state statutory cause of action
provided in the WVHRA.3 See id.
Ultimately, this Court in Adkins concluded that “[a]lthough courts have recognized
exceptions and limitations, until the precedent of this District is disavowed, this Court will dismiss
common law claims when corresponding WVHRA claims remain actionable against the
defendant.” Id. at *3.
The law has not changed since this Court’s decision in Adkins. Although the West Virginia
Supreme Court could reverse the course of this District’s jurisprudence on this issue, it has yet to
do so explicitly. Accordingly, this Court must continue the travel the well-worn path of precedent.
Plaintiff’s Harless claim, premised upon the substantial public policy announced in the WVHRA,
fails as a matter of law.
b. Plaintiff can state a Harless claim based upon public policy announced in the
FMLA.
Defendants also contend that the FMLA cannot support Plaintiff’s Harless claim. Defs.’
Partial Mot. to Dismiss, at ⁋ 4. Defendants claim that West Virginia courts have never recognized
federal statutory law, including the FMLA, as embodying West Virginia public policy for a
Harless claim. Id. Additionally, Defendants argue that the Plaintiff cannot demonstrate the
establishment of any West Virginia public policy reflecting the concerns embodied in the FLMA.
Defs.’ Partial Mot. to Dismiss, at ⁋ 6.
West Virginia courts have reiterated the importance of judicial restraint in the announcing
of public policy. See Washington v. Union Carbide Corp., 870 F.2d 957, 962-63 (4th Cir. 1989)

3

Note that where the WVHRA does not apply to an employer, a plaintiff may pursue a
Harless claim to remedy a violation of the public policy announced in the statute. See Williamson
v. Greene, 490 S.E.2d 23, 33 (W. Va. 1997).
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(reflecting the importance of proceeding with “great caution” and citing to West Virginia cases).
Further, federal courts in this District have recognized the imperativeness of restraint when
analyzing the existence of a certain public policy. See Wiley v. Asplundh Tree Expert Co., 4
F.Supp.3d 840, 845-46 (S.D.W. Va. 2014). However, even in light of this mandated restraint, the
Court disagrees with Defendants.
On this issue, as with the issue discussed in the section above, district courts in West
Virginia have spoken. Both courts in this District, as well as those in our sister district to the north,
have found that that federal statutory law can embody public policy for a Harless claim. See Bartos
v. PDC Energy, Inc., No. 1:16-cv-167, 2017 WL 3224457, at *5, *7-8 (N.D.W. Va. July 28, 2017);
Vandevander, 149 F.Supp.3d at 729-31; Brown v. Tethys Bioscience, Inc., No. 1:10-1245, 2013
WL 65456, at *10 (S.D.W. Va. Jan. 4, 2013) (Faber, S.J.); Walker v. West Publ’g Corp., No. 5:09cv-723, 2011 WL 3607960, at *8-9 (S.D.W. Va. Aug. 12, 2011) (Burger, J.); Williams v. Basic
Contracting Servs., Inc., No. 5:09-cv-49, 2010 WL 3244888, at *9-10 (S.D.W. Va. Aug. 17, 2010)
(Johnston, J.); see also Boone v. MountainMade Found., 857 F.Supp.2d 111, 114-16 (D.D.C 2012)
(finding that the plaintiff could sustain a West Virginia Harless claim upon the substantial public
policy embodied in the False Claims Act).
Citations to the decisions of the West Virginia Supreme Court underlie the findings of these
courts. Although the West Virginia Supreme Court has not explicitly found a federal statue to
announce public policy for a Harless claim, it has laid the foundation for the district courts to reach
that conclusion. In Feliciano v. 7-Eleven, Inc., the West Virginia Supreme Court provided that, as
one of the four elements of Harless analysis, public policy must have “existed and [be] manifested
in a state or federal constitution, statute or administrative regulation, or in the common law.”
Feliciano, 559 S.E.2d at 723 (emphasis added). This suggests that although the requirements for

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deriving substantial public policy for a Harless claim may be strict, the body of law from which
to draw the potential policies is vast. See Williams, 2010 WL 3244888, at *9. Indeed, the West
Virginia Supreme Court has continued to provide that federal and state law can substantiate the
policies for a Harless claim. See Thomas, 795 S.E.2d at 541 (“That a clear public policy existed
and was manifested in a state or federal constitution, statutory or administrative regulation, or in
the common law (the clarity element).”)
As noted, the West Virginia Supreme Court has made clear that courts are to approach the
identification of substantial public policy with great caution. Washington, 870 F.2d at 962-63.
Behind that counsel is the concern that Harless claims will be the exception to swallow the rule.
To find nearly every public policy to be substantial for a Harless claim would render the
“substantiality” of the policy meaningless. See Birthisel, 424 S.E.2d at 612. Courts’ restrained
approach, in conjunction with the strenuous dictates for identifying substantial public policy,
protect Harless and its progeny from ballooning into a catchall cause of action. With the dualities
of restraint and substantiality protecting the gates to Harless relief, Court’s may consider whether
policies from a broad body of law meet the requirements for Harless public policy.
In addition to generally providing for an inspection of federal law to identify Harless public
policy, the West Virginia Supreme Court’s citations are telling. The State’s high court has
approvingly cited to cases where other courts have found public policy in federal statutes and
regulations to support state claims, even going so far as to assert that these courts used “similar
approaches” to that of West Virginia. See, e.g., Kanagy v. Fiesta Salons, 541 S.E.2d 616, 620 (W.
Va. 2000) (citing Meury v. Connie Kalitta Servs./Am. Int’l Airways, 181 F.3d 102 (6th Cir. 1999)
(finding public policy premised upon federal aviation regulations for a Harless-type claim under
Michigan law where safety violations were reported to the Federal Aviation Authority); Barela v.

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C.R. England & Sons, Inc., 197 F.3d 1313 (10th Cir. 1999) (relying on both state and federal
commercial trucking regulations in finding that the plaintiff asserted a clear and substantial public
policy under Utah law where the plaintiff had raised concerns about violations); Boyle v. Vista
Eyewear, Inc., 700 S.W.2d 859 (Mo. Ct. App. 1985) (finding a wrongful discharge claim existed
where the plaintiff reported violations of federal eyeglass testing regulations); Allum v. Valley
Bank, 970 P.2d 1062 (Nev. 1998) (finding public policy based upon Federal Housing
Administration rules and regulations for a Nevada employee who refused to process loans in
violation of those laws); Coman v. Thomas Mfg. Co., 381 S.E.2d 445, 447 (N.C. 1989)
(recognizing public policy based upon federal Department of Transportation regulations regarding
hours of permitted driving where employer discharged an employee for the employee’s failure to
exceed the hours permitted under those regulations)). As another court in this District as clarified,
“it is evident that West Virginia law authorizes the use of federal law to serve as the basis of a
wrongful discharge suit.” Williams, 2010 WL 3244888, at *9. Proceeding in light of this
jurisprudence, the Court must now consider whether the FMLA sufficiently states substantial
public policy upon which Plaintiff can maintain a Harless claim.
On this question, the Court is compelled by the decisions of this District, and our sister
district, to find that the FMLA does embody substantial public policy upon which Plaintiff can
maintain a Harless claim. Two cases from district courts in West Virginia counsel for this finding.
The first case, Vandevander v. Verizon Wireless, LLC, was before this Court. In that case,
like in this one, the plaintiff plead a Harless claim premised upon the public policy of the FMLA.
Vandevander, 149 F.Supp.3d at 727. The Defendant had moved to dismiss that claim, for among
other reasons, because “the FMLA provides the exclusive remedy in [that] case, and because the
[West Virginia Supreme Court] would not permit this state common law claim to proceed.” Id.

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The plaintiff in Vandevander even asked this Court to certify a question to the West Virginia
Supreme Court regarding whether a Harless claim could “arise from a violation of the policies
reflected in the FMLA.” Id. The Court reviewed the West Virginia Supreme Court’s case law
regarding the recognition of substantial public policy and found the certification of a question
unnecessary. Id.
Instead, the Court held that “the FMLA provides a substantial public policy that could
support a West Virginia” Harless claim. Id. at 729. The Court reached this holding after an
extensive application of the requirements imposed by the West Virginia Supreme Court for a court
to identify a substantial public policy. See id. at 728-30 (providing the strict guidelines established
by West Virginia courts and applying them to the FMLA). Ultimately, the Court found that the
FMLA provides
specific guidance to a reasonable person, and subjecting an
employer to liability based on violating the FMLA would not expose
the employer to liability for violating a standard too general to
provide any specific guidance or so vague that it is subject to
different interpretation. On the contrary, the FMLA’s requirement
at issue in this case provide clear and unequivocal standard for
employers to follow . . . .
Id. at 730. Following this thorough review, the Court concluded that the plaintiff had properly
plead the FMLA has establishing the public policy upon which his Harless claim could proceed.
Defendants claim that Vandevander is not conclusive on the issue presently before this
Court. As support for this proposition, Defendants cite to footnote five of the Vandevander
opinion, which notes: “The parties have not discussed whether the FMLA, as a federal law, is a
proper source of policy for purposes of a West Virginia common law retaliatory discharge claim.
Therefore the Court does not discuss this.” Defs.’ Reply, ECF No. 13, at 2 (citing Vandevander,
149 F.Supp.3d at 730 n.5). Defendants claim that the question presently before this Court is the

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same one that the parties had not briefed, and that the Court did not discuss, in Vandevander. Based
upon that, Defendants argue that Vandevander should not, and does not, dictate the finding that
Plaintiff can proceed with a Harless claim premised upon the public policy embodied in the
FMLA. Although Defendants are correct that the Court was silent on whether federal law could
properly support public policy for a Harless claim, the Defendants are incorrect that footnote five
of Vandevander negates the precedential value of that decision.
In this opinion, the Court has addressed the analysis that the parties had failed to identify
in Vandevander. Footnote five of Vandevander addresses the issue of whether federal law can
supply the public policy for a Harless claim, generally. See Vandevander, 149 F.Supp.3d. at 730
n.5. This Court has answered that question in the paragraphs above. See supra pp. 9-11. The failure
of the lawyers to identify and brief the issue in Vandevander does not require this Court to ignore
that decision. This is especially true because the counsel for both sides in this matter also appeared
in Vandevander. Where the Court has now fully analyzed the issue left untouched by counsel in a
previous case, the result in Vandevander supports the Court’s conclusion in this case that the
FMLA provides a substantial public policy upon which Plaintiff may state a Harless claim.
The second case compelling this Court’s finding arises out of our sister district, the
Northern District of West Virginia. In Bartos v. PDC Energy, Inc., the parties presented Chief
Judge Groh with substantial similar arguments to those made in this case. 2017 WL 3224457, at
*8. Chief Judge Groh, after a review of the West Virginia Supreme Court’s, and this District’s,
Harless jurisprudence, found this Court’s reasoning in Vandevander persuasive. See id. at *4-5,
*8. The Bartos court found that the FMLA provided the plaintiff with the substantial public policy
that allowed her Harless claim to survive summary judgment. Id.

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Based upon the precedent in both this District and the Northern District, as well as an
independent review of the relevant case law of West Virginia courts, this Court finds that the
FMLA provides the substantial public policy upon which Plaintiff may state a Harless claim.
As with this Court’s discussion regarding the WVHRA supplanting Plaintiff’s other
Harless claim, the West Virginia Supreme Court can alter the course taken by the federal district
courts on this issue. See supra pp. 6-8. To this point, the high court has not done so. Accordingly,
this Court’s finding is permissible and in-line with the precedent of both this District and our sister
district.
c. The FMLA does not preempt Plaintiff’s FMLA-based Harless claim.
Defendants also argue that if Plaintiff can state a Harless claim premised upon the public
policy reflected in the FMLA, then the FMLA preempts that Harless claim. Defs.’ Mem. of Law
in Supp. of Mot. to Dismiss, ECF No. 10, at 8 n.3; Defs.’ Reply, at 8 n.2. In doing so, Defendants
“request[] that this Court reconsider its decision in Vandevander and find that Plaintiff is limited
to a claim under the FMLA.” Defs.’ Reply, at 8 n.2. Defendants, as evidenced by their request,
recognize that this Court’s decision in Vandevander dictates the outcome of this issue if this Court
continues to apply that case. Despite the invitation to break with recent precedent, the Court will
abide by the conclusion in Vandevander.
In Vandevander, this Court examined whether the FMLA provides the “exclusive
remedy,” preempting a Harless claim based upon the public policy reflected in the FMLA.
Vandevander, 149 F.Supp.3d at 728. The Court first examined the language of the FMLA statute.
By its own terms, the FMLA does not preempt state law claims. Id. (citing 29 U.S.C. § 2651).
Indeed the language of the statute indicates Congress’ “general intent to prevent the FMLA from
preempting state law claims.” Id.

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In addition to noting the language of, and Congressional intent revealed by, the statute, the
Court also focused upon the treatment of the FMLA by courts within the Fourth Circuit. See id.
(citing Davis v. Cabela’s Inc., No. 07-88, 2008 WL 183717, at *2 (N.D.W. Va. Jan. 18, 2008)
(finding that the FMLA by its own language does not preempt related state law claims); Findlay
v. PHE, Inc., No. 99-54, 1999 WL 1939246, at *3 (M.D.N.C Apr. 16, 1999) (same and finding
that Congress did not attempt to “occupy the field”); Danfelt v. Bd. of Cty. Comm’rs of Washington
Cty., 998 F.Supp. 606, 611 (D.Md. 1998) (holding that the FMLA does not preempt a Maryland
wrongful discharge claim because the FMLA lacks evidence of Congress’ intent to preempt the
field of state tort law)). The Vandevander decision also noted a variety of other courts outside of
our circuit that have reached a similar conclusion. See id. at 728 & n.1 (citations omitted). Based
upon this analysis, the Court held that “the FMLA does not preempt state law claims, even those
claims arising out of the same transaction or occurrence as an FMLA claim.” Id. at 728.
Specifically, the Court found that the FMLA does not preempt a Harless claim. Id.
The Court finds that both the Vandevander analysis and conclusion remain sound.
Further, federal courts both inside and outside of this state have continued to reinforce the validity
of the Vandevander answer to the question of whether the FMLA preempts a Harless claim. See
Bartos, 2017 WL 3224457, at *5; Adkins, 2017 WL 2961377, at *3 (distinguishing the exclusivity
of the WVHRA remedy from the express lack of preemptive effect of FMLA on Harless claims);
Packett v. Univ. of Maryland Med. Ctr., No. RDB-17-1630, 2017 WL 5903759, at *3 (D. Md.
Nov. 30, 2017) (slip op.) (citing Vandevander among other cases from district courts in the Fourth
Circuit) (“[T]his Court and other district courts in the Fourth Circuit have held that the FMLA
unambiguously does not preempt state law claims.” (emphasis original)).

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In making its footnote-argument for FMLA preemption of Plaintiff’s Harless claim,
Defendants cite to a litany of district court cases. See Defs.’ Mem. of Law in Supp. of Mot. to
Dismiss, at 8 n.3; Defs.’ Reply, at 8 n.2. However, only three of the eleven cases cited by
Defendants originate from courts within our circuit. See Defs.’ Reply, at 8 n.2. One of those three
cases is Vandevander, which directly refutes Defendants’ contentions. Neither of the other two
cases from district courts in this circuit directly deal with the issue currently before the Court. See
Smith v. Bayer Material Sci., LLC, No. 5:12CV171, 2013 WL 4039946, at *3 (N.D.W. Va. Aug.
7, 2013) (considering on a motion to remand whether reference to the FMLA in a complaint was
sufficient to invoke federal question subject matter jurisdiction); Joliffe v. Mitchell, 971 F.Supp.
1039, 1044-45 (W.D. Va. 1997) (analyzing whether the plaintiff could maintain a §1983 claim
premised upon the FMLA as the source of substantive rights). In the best light for Defendants,
these cases deal with inapposite legal issues that render them unhelpful in analyzing the currently
pending question before the Court. In the worst light, these cases actually detract from Defendants’
argument and support this Court’s conclusion.
Of most note, Defendants cite Smith v. Bayer Material Sci., LLC, in which the District
Court for the Northern District of West Virginia considered the plaintiff’s motion to remand. 2013
WL 4039946, at *1. The plaintiff, who originally filed the suit in state court, had alleged a series
of state law claims arising from the termination of his employment. Id. Within the complaint, the
plaintiff had mentioned violations of the FMLA. Id. at *2. The defendant argued that this
constituted a claim arising under federal law. Id. The plaintiff, however, insisted that the FMLA
discussion was only factual support for his state law, negligent hiring claim. Id. at *1-2. Therefore,
the Court in Smith dealt with whether the court had federal question subject matter jurisdiction.

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In the portion of the opinion cited by Defendants, the Smith court addressed whether the
plaintiff’s mentioning of an FMLA violation could support federal jurisdiction in the case. Id. at
*3-4. Ultimately, the court found it could not and remanded the case. Id. at *4. The court reasoned
that the plaintiff had not alleged a claim under the FMLA, but had instead stated the FMLA
violation as a fact supportive of her negligent hiring claim Id. Additionally, the court did not
believe that the question regarding whether the allegedly negligent hire violated the FMLA was a
sufficiently essential federal question to the plaintiff’s claim. Id. Thus, the actual issue examined
by the court does not address the question currently facing this Court.
Yet, the Smith court’s reasoning and citations, if applicable at all, support this Court’s
conclusion that the FMLA does not preempt a Harless claim. The Smith court cited to two cases
from federal district courts in West Virginia: King v. Cardinal Health 411, Inc., No. 5:10cv112,
2011 WL 43030 (N.D.W. Va. Jan. 6, 2011) and Pudder v. Wal-Mart, 2:11cv970, 2012 U.S. Dist.
LEXIS 61293 (S.D.W. Va. May 2, 2012). See Smith, 2013 WL 4039946, at *3-4. Both of these
cases suggest support for this Court’s conclusion in this case.
In Pudder, the plaintiff stated a Harless-type claim upon, in part, the FMLA. Id. at *4.
Likewise, in King, the plaintiff appeared to state both a Harless-type claim based upon the FMLA
and a claim arising under the FMLA. See King, 2011 WL 43030, at *1-3 (explaining that the
plaintiff original failed to cite federal law in her Harless-type claim, but later explained in a
response to a motion to dismiss that was denied, that the FMLA was the source of the public policy
for the claim). In neither case did the court mention or discuss FMLA preemption, or any
impermissibility of stating a common law wrongful termination claim upon FMLA public policy.
Without doubt, the supportive weight of these cases for this Court’s conclusion on the present issue

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is merely minor and suggestive. However, this represents the only potentially germane application
of the Smith case to the case currently before this Court.
Defendants attempt to cite Smith for its reference to a case out of the Eastern District of
Missouri, where the court found that the exclusive remedy for a FMLA violation was under the
statute and not a common law wrongful discharge claim. Smith, 2013 WL 4039946, at *3-4 (citing
Anderson v. Shade Tree Servs., Co., No. 4:12CV1066ERW, 2012 WL 3288120 (E.D. Mo. Aug.
10, 2012)). However, the view of federal courts in this state and federal circuit differs from that of
the courts in Eastern District of Missouri. Compare Bartos, 2017 WL 3224457, at *5; Packett,
2017 WL 5903759, at *3; Vandevander, 149 F.Supp.3d at 728; with Anderson v. Shade Tree
Servs., Co., No. 4:12CV1066ERW, 2012 WL 3288120 (E.D. Mo. Aug. 10, 2012). That a district
court from a different state, in a different federal circuit, reaches a different conclusion from the
well-reasoned one of this Court does not necessitate that this Court must now forsake its
jurisprudence.
In sum, Defendants’ footnote citations do not persuade this Court to reverse course and
abandon its precedent. Therefore, the Court finds that the FMLA does not preempt Plaintiff’s
Harless claim.
Because one of Plaintiff’s Harless claims survives, as a matter of law, the Court will
proceed to examine whether Plaintiff has plead sufficient factual allegations to maintain a Harless
claim.
d. Plaintiff’s Complaint provides sufficient factual basis to state a Harless claim.
Defendants argue Plaintiff’s Complaint has insufficient factual allegations to maintain a
Harless claim. The Court, however, disagrees. At this stage in the proceedings, the Court must

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assume the factual allegations contained in the complaint are true. Taking them as true, the facts
alleged support a Harless claim.
Plaintiff bases his Harless claim upon a few central facts. First, Plaintiff claims that he
provided notice to Defendants about both his and his wife’s health conditions and the potential
need to take time off to address these illnesses. Compl. ⁋ 5, 43, 58. Second, Plaintiff asserts that
based upon this notification and request, he formed the good faith belief that Defendant Horsefield
was discriminating against him in violation of West Virginia law and the FMLA. Id. at ⁋ 59, 60.
Third, Plaintiff states that he reported this good faith belief to Defendant Lowes’s management.
Id. at ⁋ 59. Fourth, as a result of this reporting, he was fired, and that Defendants’ stated reason for
the firing was a mere pretext. Id. at ⁋ 68-70. Fifth, as a result of this termination, Plaintiff suffered
damages. Id. at ⁋ 71.
Further, Plaintiff properly claimed that this termination violated the substantial public
policy announced in the FMLA. Id. at ⁋ 64, 66. Based upon the public policy embodied by the
FMLA, Plaintiff can maintain a Harless claim given the facts alleged. See supra pp. 8-18.
Plaintiff asserts both the necessary facts and law to survive the 12(b)(6) phase. Plaintiff
properly cites to the FMLA as a substantial public policy violated by his firing. Compl. ⁋ 58, 60,
62, 64, 66, 73. Supporting the claim, Plaintiff provides facts that plausibly demonstrate how
Defendants acted contrary to that substantial public policy principal. Plaintiff identifies his and his
wife’s disability as the relevant circumstance that gave rise to FMLA concern. Compl. ⁋ 58.
Further, Plaintiff asserts that Defendants retaliated against him for attempting to report what he
believed was conduct violative of the FMLA. Id. at ⁋ 58, 60, 62, 64, 66, 73. Therefore, in asserting
that Plaintiff reported suspected unlawful practices, that Defendant terminated Plaintiff due to that

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reporting, and that Plaintiff suffered damages in the form of lost wages and general trauma,
Plaintiff has provided sufficient facts to survive this stage of the proceedings.
IV. Conclusion
Based upon the forgoing, the Court finds that Plaintiff has stated both sufficient factual
allegations and a proper legal foundation for one of his Harless claims to survive the motion to
dismiss stage. The Harless claim based upon the public policy reflected in the FMLA may proceed,
but the Harless claim premised upon the WVHRA fails a matter of law.
Accordingly, the Court GRANTS, IN PART, Defendants’ Partial Motion to Dismiss and
DISMISSES Plaintiff’s Harless claim referencing the WVHRA. The Court also DENIES, IN
PART, Defendants’ Partial Motion to Dismiss, and will allow Plaintiff’s Harless claim
referencing the FMLA to continue.

ENTER:

December 7, 2017

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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