Hundley v. Autism Services Center, Incorporated

Filing 11

MEMORANDUM OPINION AND ORDER granting 4 PARTIAL MOTION by Autism Services Center, Incorporated to Dismiss; DISMISSING WITHOUT PREJUDICE Counts II and III of Plaintiff's complaint. Signed by Judge Robert C. Chambers on 10/12/2017. (cc: attys; any unrepresented parties) (mkw)

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

WHITLEY HUNDLEY,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-3818

AUTISM SERVICES CENTER,
INCORPORATED,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Partial Motion to Dismiss. ECF No. 4. Defendant
moves to dismiss Counts II and III of Plaintiff’s complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6). Def.’s Partial Mot. to Dismiss, ECF No. 4. In Count II, Plaintiff claims that
Defendant tortuously interfered with her employment and prospective business advantage; and in
Count III, Plaintiff claims that Defendant fired Plaintiff in violation of West Virginia public policy,
constituting a retaliatory discharge. Compl., ECF No. 1-1, at ¶ 56-76. The parties have fully briefed
the issues and the motion is now ripe for adjudication. As explained below, the Court GRANTS
Defendant’s motion.
I. BACKGROUND
Plaintiff, Whitley Hundley, by counsel, filed a complaint in the Circuit Court of Cabell
County, West Virginia, on July 20, 2017, alleging several claims against Defendant, Autism
Services Center, Inc. See generally Compl. Plaintiff’s complaint had three claims: (1) interference
with rights under the Family and Medical Leave Act; (2) tortious interference with employment

and prospective business advantage; and (3) retaliatory discharge. Compl., at ¶ 41-76. On August
14, 2017, Defendant removed the case to this Court. Def.’s Notice of Removal, ECF 1, at 1.
Defendant operates a series of residences in the Huntington area that care for individuals
with autism. Mem. in Supp. of Def.’s Mot. to Dismiss, ECF No. 6, at 1. Plaintiff had been an
employee at one of the residences operated by Defendant. Compl., at ⁋ 4-6. She started working
for Defendant on October 19, 2014. Id. at ⁋ 4. After becoming pregnant, Plaintiff voluntarily left
her employment with Defendant on or around January 18, 2015. Id. at ⁋ 8-9; Answer, ECF No. 5,
at ⁋ 10. Plaintiff left her employment with Defendant on what appeared to be friendly terms.
Compl., at ⁋ 9. After an eight-month hiatus, Plaintiff resumed her employment with Defendant on
or about October 27, 2015. Id. at ⁋ 10-11; Answer, at ⁋ 10.
During her second period of employment with Defendant, Plaintiff discovered that her
daughter had multiple serious health conditions. Compl., at ⁋ 12. Plaintiff notified Defendant of
her daughter’s illnesses, and would periodically request time off to tend to her sick daughter. Id.
at ⁋ 15-16.
Roughly a year into her second period of employment, in the late summer or early fall of
2016, Plaintiff obtained a second job working for Autism Management in Cabell County, West
Virginia. Id. at ⁋ 18. Autism Management is a competitor of Defendant. Pl.’s Resp., ECF No. 8, at
1. On or about October 5, 2016, after Plaintiff had notified Defendant of her second job, Plaintiff’s
supervisor, an employee of Defendant, allegedly told Plaintiff that “he did not care if she had
another job, [but said] that she was ‘unloyal,’ and that she ‘needed to figure it out.’” Compl. at ⁋
21. Plaintiff believed these comments constituted a threat that if she maintained her second job,
she would be fired. Id. at ⁋ 22.

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On November 26, 2016, Plaintiff, although not scheduled to work, was called to one of the
Defendant’s residences by her co-workers. Id. at ⁋ 23. They needed Plaintiff’s assistance in caring
for one of Defendant’s clients who was upset. Id. at ⁋ 23-25. This particular client supposedly
cooperated better with Plaintiff than he or she did with others. Id. Eventually, Plaintiff calmed
down the client. Id. at ⁋ 27. However, during the situation, Plaintiff, apparently, was forced to raise
her voice to speak over the loud yelling of the client. Id. at ⁋ 34-35.
While at work during her next scheduled shift on November 28, 2016, Plaintiff’s supervisor
called Plaintiff into her office and alleged that Plaintiff had verbally abused the agitated client two
days prior. Id. at ⁋ 28-29. The next day, Defendant terminated Plaintiff based upon the allegation
of “inappropriate interaction with her client and/or verbal abuse.” Id. at ⁋ 30 (internal quotations
omitted). Defendant filed a report with Adult Protective Services (“APS”), against Plaintiff, in
which Defendant claimed that Plaintiff had used curse words and yelled at the agitated client. Id.
at ⁋ 32; Answer, at ⁋ 35. As a result of Defendant’s allegations regarding the incident for which
she was fired, Plaintiff claims that she “struggled to find suitable gainful employment following
her termination.” Compl., at ⁋ 36.
At some point after her termination, Plaintiff’s Certified Nursing Assistant (“CNA”)
license became due for renewal. Id. at ⁋ 37. Plaintiff asserts that Defendant was obligated to
“provide timely and accurate documentation to the Office of Health Facility Licensure &
Certification,” but that Defendant failed meet this obligation. Id. at ⁋ 37-38. Further, Plaintiff
alleges that as a result, her CNA license was suspended on or about February 28, 2017, pending
investigation. Id. After an apparently brief investigation, Plaintiff’s license was reinstated on
March 8, 2017. Id. at ⁋ 39. Plaintiff claims that Defendant’s conduct caused her to suffer “lost

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wages and other benefits of employment, emotional distress, and damage to her reputation. Id. at
⁋ 40.
On August 21, 2017, Defendant filed a Partial Motion to Dismiss (ECF No. 4) with an
accompanying Memorandum in Support of the Motion (ECF No. 6). Plaintiff responded on
September 5, 2017 (ECF No. 7); and Defendant replied on September 12, 2017 (ECF No. 8).
II. LEGAL STANDARD
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 also be plausible. 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 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 (even when doubtful), 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

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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 Defendant has moved to dismiss two of Plaintiff’s claims, the Court will address each
in turn.
A. Count II: Tortious Interference
Defendant first claims that Plaintiff has failed to state the factual basis on which a claim
for tortious interference can be made. Mem. in Supp. of Def.’s Mot. to Dismiss, at 4. In order to
establish a prima facie claim for tortious interference, a plaintiff must show: “(1) existence of a
contractual or business relationship or expectancy; (2) an intentional act of interference by a party
outside that relationship or expectancy; (3) proof that the interference caused the harm sustained;
and (4) damages.” Syl. Pt. 2, Torbett v. Wheeling Dollar Sav. & Trust Co., 314 S.E.2d 166, 167
(W. Va. 1983). If a plaintiff makes the prima facie showing, the defendant may “prove lawful
justification or privilege for its behavior as an affirmative defense.” Id. at 173 (internal citation
omitted). Such justification includes showing a “legitimate competition between plaintiff and
themselves.” Tiernan v. Charleston Area Med. Ctr., Inc., 506 S.E.2d 578, 592 (W. Va. 1998).
Additionally, West Virginia courts specifically recognize tortious interference claims in
the context of an individual’s employment relationships. Id. at 171-73; Imagine Medispa, LLC v.
Tranformations, Inc., 999 F.Supp.2d 873, 883 (S.D.W. Va. 2014) (listing West Virginia cases in

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which courts have permitted tortious interference claims in the context of employment
relationships).
Defendant contends that Plaintiff’s failure is twofold: (1) that Plaintiff failed to allege that
Defendant intentionally took any action with regard to her second-job; and (2) that Plaintiff failed
to state an actual injury. Mem. in Supp. of Def.’s Mot. to Dismiss, at 4-5. Defendant focuses
primarily upon the second of Plaintiff’s supposed failures. Defendant argues that Plaintiff’s
complaint states only vague allegations of harm, and that she fails to provide any explanation of
how a possible disruption to her CNA license caused any harmful effect on her potential job
prospects. Id. The Court finds Defendant’s arguments persuasive.
From the complaint, it is unclear to the Court on what specific course of conduct Plaintiff
bases her tortious interference claim. It appears that Plaintiff claims tortious interference by
Defendant premised upon two different factual predicates: (1) Defendant’s filing of the APS
complaint; and/or (2) Defendant’s failure to meet the license reporting obligation. Compl., at ⁋ 36,
58, 59. Additionally, Plaintiff appears to claim at least two different relationships with which
Defendant supposedly interfered: (1) Plaintiff’s employment relationship with Autism
Management; and (2) her prospective relationship with her “economic and wage-earning
prospects.” Id. However, regardless of the combinations available to Plaintiff under these options,
Plaintiff has failed to provide the necessary information in her complaint to give rise to a “plausible
claim” for tortious interference.
The basic shortcoming of Plaintiff’s complaint revolves around her alleged harm. The
complaint fails to define the harm caused by Defendant’s supposed interference, beyond making
vague assertions. In her complaint, Plaintiff provides that Defendant’s report with APS resulted in
her “struggl[ing] to find suitable gainful employment following her termination.” Compl., at ⁋ 36.

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This general claim of harm to employment prospects is reiterated later in the complaint. Id. at ⁋
59. But, at no point does Plaintiff provide that other potential employers rejected her application
for employment, or that other potential employers told her not to apply. Plaintiff does not even
state in her complaint that she attempted to apply to any other jobs.
Contrasting Plaintiff’s complaint with cases where West Virginia courts have found prima
facie claims for tortious interference, further highlights the complaint’s glaring deficiencies. In
Garrison v. Herbert J. Thomas Memorial Hosp. Ass’n, 438 S.E.2d 6 (W. Va. 1993), the Supreme
Court of Appeals of West Virginia (“West Virginia Supreme Court”) reviewed the claim of a
doctor who alleged that a hospital had committed tortious interference. The doctor, Dr. Garrison,
argued that Thomas Memorial Hospital, his former place of business, interfered with his expected
appointment to the medical staff of a Wyoming hospital. See Garrison, 438 S.E.2d at 12-15. The
plaintiff claimed that the interference took the form of an improper letter sent by Thomas Memorial
Hospital to the president of the staff for the Wyoming hospital. Id. at 9, 14. As a result of that
alleged interference, the doctor was denied an appointment to the Wyoming hospital. Id. at 9. This
forced the doctor to resign from a job he had already accepted as an assistant professor at a local
university and interfered with his expected relationship with the hospital. Id. at 9, 14. The doctor
clearly laid out in his complaint: his expected business relationship; how the defendant interfered
with that relationship; and what injury the interference caused him. Although the doctor may have
exceeded the minimum specificity needed, the complaint in Garrison demonstrates the type of
harm needed for a claim of tortious interference. The doctor provided that the supposed
interference cost him a job with a university and a potential appointment at a hospital.
Plaintiff, in this case, has provided no concrete demonstrations of harm. She has only
provided speculative assertions that lack factual underpinning. Merely stating “economic and

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wage-earning prospects” does not inform this Court of a fact. This provides a conclusion couched
in factual terms. Had Plaintiff’s complaint recounted, for example, even one instance where a
prospective employer denied her application for employment, the claim may be able to continue.
Instead, Plaintiff’s complaint reaches a conclusion bereft of detail.
Plaintiff also cites to expected employment relationships with “additional persons and/or
businesses” that were harmed. Compl. at ⁋ 60-61. Once again, Plaintiff provides no fact to support
that “additional persons and/or businesses” existed. The only support for the proposition that these
“additional persons and/or businesses” existed comes from the statement itself. Therefore, Plaintiff
makes a conclusion devoid of factual support. Without the factual foundation, this Court cannot
determine how or when the harm took place. Even putting these more detailed questions aside, the
Court still must speculate about the most basic information: with whom did Plaintiff have the
expected or existing harmed relationship(s). Unlike the doctor in Garrison, Plaintiff has left the
Court guessing as to her harm.
Of course, it is possible that Plaintiff had an employment relationship, or reasonable
expectation of one, with other people or businesses at some point. But possibility alone falls below
the standard to survive a 12(b)(6) motion. See Twombly, 550 U.S. at 546, 555 (citations omitted).
In addition to making vague assertions about harm to nondescript prospective relationships,
Plaintiff’s complaint also lacks the factual predicate to claim harm to her employment relationship
with her other employer. Plaintiff concludes that Defendant’s interference damaged her
relationship with Autism Management, the company with which she held her second-job.
However, nowhere in Plaintiff’s complaint does she explain that she was fired from her secondjob or that her second-job was otherwise adversely affected by Defendant’s alleged interference.
Even in her Response to the Motion to Dismiss, Plaintiff never claimed that she was fired from

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her second-job because of Defendant’s actions. Plaintiff merely concludes that she suffered harm.
Although the Court must make reasonable factual inferences, the Court is not empowered to simply
read in facts that are not plead. To assume that she was fired from her second-job would go a step
too far.
Where Plaintiff has failed to identify even the most basic facts of her harm, her claim for
tortious interference does not rise “above the speculative level.” Twombly, 550 U.S. at 555
(citations omitted). Accordingly, as ordered below, the Court believes dismissal of Plaintiff’s
tortious interference claim is appropriate.1
B. Count III: Retaliatory Discharge
Defendant also argues that Plaintiff failed to state a claim for retaliatory discharge (also
termed “wrongful discharge”)2 because she has failed to identify a substantial public policy which
Defendant violated in firing her. In general, employers in West Virginia “may discharge an ‘at
will’ employee at any time for any reason.” Herbert J. Thomas Memorial Hosp. Ass’n v. Nutter
(“Thomas”), 795 S.E.2d 530, 540 (W. Va. 2016) (citing Kanagy v. Fiesta Salons, Inc., 541 S.E.2d

In reaching this conclusion, and in subsequently granting Defendant’s Partial Motion to
Dismiss, the Court does not suggest that no facts exist on which Plaintiff could state a claim for
tortious interference. The Court only concludes that on the face of the complaint, Plaintiff failed
to include all the facts that would give rise to a “plausible claim.” On a motion to dismiss, the
Court is confined to the facts contained within the complaint. See Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (discussing the Supreme Court’s decisions in Twombly and Iqbal and
providing that the inquiry on a motion to dismiss focuses on the factual allegations of the complaint
itself); but see Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004) (internal quotations and citation omitted) (explaining that although extrinsic evidence is
generally not considered at 12(b)(6) stage, a court may consider some extrinsic evidence if the
authenticity is not challenged and it was integral to the inquiry).
2
West Virginia courts appear to use the terms interchangeably. See Herbert J. Thomas
Memorial Hosp. Ass’n v. Nutter (“Thomas”), 795 S.E.2d 530, 541 (W. Va. 2016) (referring to “a
cause of action for wrongful discharge,” then determining whether a “retaliatory discharge has
occurred”). Likewise, the Court uses the terms interchangeably in this Memorandum Opinion and
Order.
1

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616, 619 (W. Va. 2000)). However, the West Virginia Supreme Court, in Harless v. First. Nat’l
Bank in Fairmont, 246 S.E.2d 270 (W. Va. 1978), tempered this unrestricted right of an employer
to fire an employee. In Harless, the Court held that “where [an] employer’s motivation for [a]
discharge is to contravene some substantial public policy principle, then [an] employer may be
liable to [an] employee for damages occasioned by this discharge.” Syl. Pt. 1, Harless, 246 S.E.2d
at 271.
Subsequent jurisprudence has further expounded upon the requirements of a Harless
wrongful discharge claim. In Feliciano v. 7-Eleven, Inc., the high court in West Virginia laid out
the four elements that should be examined to determine whether the plaintiff has successfully
presented a wrongful discharge claim. 559 S.E.2d 713, 723 (W. Va. 2001). A court must consider:
1. Whether 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. Whether dismissing employees under circumstances like those involved in the
plaintiff’s dismissal would jeopardize the public policy (the jeopardy
element)[;]
3. Whether the plaintiff’s dismissal was motivated by conduct related to the public
policy (the causation element)[; and]
4. Whether the employer lacked overriding legitimate business justification for the
dismissal (the overriding justification element).
Id. (citing Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 375 (6th Cir. 1999)).
Defendant contends that Plaintiff has failed on the first element. Mem. in Supp. of Def.’s
Mot. to Dismiss, at 6-8. Defendant claims that Plaintiff has not demonstrated that a substantial
public policy exists to protect an employee’s right to work a second-job. Id. at 6. Whether a
substantial public policy exists is a question of law. Thomas, 795 S.E.2d at 541 (quoting Syl. Pt.
1, Cordel v. Gen. Hugh Mercer Corp., 325 S.E.2d 111 (W. Va. 1984)). In determining the existence

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of a public policy, a court must “look to established precepts in our constitution, legislative
enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2, Birthisel v. TriCities Health Servs. Corp., 424 S.E.2d 606, 607 (W. Va. 1992). Furthermore, “to be substantial, a
public policy must not just be recognizable as such but must be so widely regarded as to be evident
to employers and employees alike.” Feliciano, 559 S.E.2d at 718.
Since the initial recognition of the retaliatory discharge cause of action, “West Virginia
courts have proceeded with ‘great caution’ in applying public policy to wrongful discharge
actions.” Washington v. Union Carbide Corp., 870 F.2d 957, 962 (4th Cir. 1989). Indeed, the
heightened requirement of demonstrating a “substantial public policy,” as opposed to a “stated
public policy,” reflects the reticence of courts to recognize additional grounds on which a plaintiff
can make a claim for retaliatory discharge. See Birthisel, 424 S.E.2d at 612 (“An employer should
not be exposed to liability where a public policy standard is too general to provide any specific
guidance or is so vague that it is subject to different interpretations.”); Frohnapfel v. ArclorMittal
USA LLC, 772 S.E.2d 350, 355 (W. Va. 2015) (“[W]e clarified that our use of ‘substantial’ to
modify ‘public policy’ in Harless was expressly ‘designed to exclude claims based on insubstantial
considerations.’”); Roberts v. Adkins, 444 S.E.2d 725, 729 (W. Va. 1994) (explaining that
recognition of a substantial public policy under one code section, a violation of which would give
rise to a wrongful discharge claim, “is in no way intended to unlock a Pandora’s box of litigation
in the wrongful discharge arena”); Washington, 870 F.2d at 962-63 (citing Yoho v. Triangle PWC,
Inc., 336 S.E.2d 204, 209 (W. Va. 1985)). With an eye to that cautionary approach, this Court
agrees with Defendant that Plaintiff has not identified a substantial public policy on which a
retaliatory discharge claim can be maintained.

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Plaintiff bases her retaliatory discharge claim upon the right of employee to “practice her
trade and pursue employment.” Pl.’s Resp., at 6. This right, she argues, protected her second-job
with Defendant’s competitor. Id. at 7. Plaintiff claims that the protected right emanates from
Article III, §1 of the West Virginia Constitution. Compl. at ⁋ 64. That section of the West Virginia
Constitution protects the inherent right of persons to pursue happiness. Id. at ⁋ 65; see also W. Va.
Consti. Art. III, § 1. Plaintiff urges this Court to find that the West Virginia Constitution’s
protection for “pursuing happiness” creates a substantial public policy in favor of an employee’s
right to maintain a second-job. This request simply exceeds the defined boundaries that West
Virginia courts have drawn in recognizing substantial public policies.
This Court dealt with a similar request by a plaintiff in Wiley v. Asplundh Tree Expert Co.,
4 F.Supp.3d 840 (S.D.W. Va. 2014) (Johnston, J.). In Wiley, the plaintiff asked this Court to
recognize a substantial public policy emanating from Article III, § 17 of the West Virginia
Constitution. That section of the Constitution guarantees a right to access the Courts of West
Virginia. See W. Va. Consti. Art. III, § 17; see also McClung v. Marion Cty. Comm’n, 360 S.E.2d
221, 226 & n.6 (W. Va. 1987). The plaintiff contended that when the employer fired him for filing
a suit to recover wages he was due under Federal and State law, the employer discharged him in
violation of a substantial public policy. By firing the plaintiff for filing a lawsuit for wages he was
allegedly due under labor laws, the employer supposedly contravened the substantial public policy
created by Art. III, § 17 in favor of injured person’s right to access the courts.
The Court in Wiley found that Art. III, § 17 of the West Virginia Constitution did not create
a substantial public policy that could animate a claim for wrongful discharge. Wiley, 4 F.Supp.3d
at 847. In addition to generally referencing the restraint with which West Virginia courts have
proceeding in this area, the Court explained that the West Virginia Supreme Court “has been

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reluctant in the case of a private employee to find a cause of action for retaliatory discharge based
on a public policy emanating from” either the West Virginia or the United States Constitution. Id.
at 846 (internal quotations omitted) (citing 105 W. Va. L.Rev. 827 (2003)). The Court analyzed
West Virginia jurisprudence on the recognition of substantial public policy stemming from the
State’s Constitution. Id. at 846-74. The case law demonstrated that although a wrongful discharge
claim could be based upon a public policy emanating from a provision of the state constitution,
the West Virginia Supreme Court hesitated to recognize that claim “[i]n the absence of a statute
expressly imposing” that public policy. Id. at 847 (citing Tiernan v. Charleston Area Med. Ctr.,
506 S.E.2d 578, 591 (W. Va. 1998)).
Likewise, in this case, Plaintiff has not evidenced a statute that supports her claim that a
substantial public policy exists to protect an individual’s right to have a second-job. The position
of West Virginia courts has not changed since this Court decided Wiley. The West Virginia courts
are still reluctant to recognize a substantial public policy originating in a constitutional provision
without a legislative statute, for the purposes of a wrong discharge claim. See Tiernan, 506 S.E.2d
at 591; Swears v. R.M. Roach & Sons, Inc., 696 S.E.2d 1, 6-7 (W. Va. 2010) (citing positively the
preference for legislative action in recognizing a substantial public policy). This Court continues
to defer to the state courts on the recognition of substantial public policy under West Virginia law.
See Washington, 870 F.2d at 962 (explaining that “[f]ederal courts are permitted . . . to rule upon
state law as it presently exists and not to surmise or suggest its expansion”).
Plaintiff begins her response argument by asserting that Wiley is not dispositive. Pl.’s
Resp., at 6. The Court agrees. However, the analysis in that case serves as a relevant and applicable
guide for how the Court should handle this case. Indeed, as this Court did in Wiley, the Court again
refuses to stretch the Harless exception too far afield.

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Arguably, the plaintiff’s claim in Wiley stood on stronger footing than Plaintiff’s claim
here. In Wiley, the constitutional section, on its face, sought to protect an individual’s right to
access the courts when attempting to remedy some wrong. That is, the constitutional provision
clearly reflected the protected right that the plaintiff claimed the employer violated. But, in this
case, Plaintiff reads a right to pursue a second-job from a provision that merely seeks to protect
the right of persons to pursue happiness. Given that West Virginia courts have sown a trail from
Harless with an abundance of caution, this Court cannot leap ahead by reading a specifically
defined right from an expansive constitutional phrase. This would work contrary to the clear
guidelines established by the State’s courts for identifying substantial public policies for wrongful
discharge actions. See Syl. Pt. 3, Birthisel, 424 S.E.2d at 607 (“Inherent in the term ‘substantial
public policy’ is the concept that the policy will provide specific guidance to a reasonable
person.”). This type of recognition may be appropriate in other circumstances, but expansive
readings of the State’s Constitution in wrongful discharge actions have largely been foreclosed.
Plaintiff in her Response also contends that the ability to have a second-job is protected by
the Privileges and Immunities Clause of the United States Constitution (“P&I Clause”). Plaintiff
contends that the P&I Clause “guarantees citizens the right to pursue gainful employment.” Pl.’s
Resp., at 7. As such, Plaintiff argues that the P&I Clause establishes a substantial public policy
capable of animating a wrongful discharge action. The Court finds this line of argument
unpersuasive. Although Plaintiff is correct that the P&I Clause protects an individual’s right to
practice a trade or profession, Toomer v. Witsell, 334 U.S. 385, 403 (1948), Plaintiff has left out
the vitally important context of the P&I Clause.
That pursuing one’s trade or profession is a fundamental right under the P&I Clause does
not establish a substantial public policy protecting an employee’s ability to maintain a second-job.

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The overarching purpose of the P&I Clause is to place “the citizens of each State upon the same
footing with citizens of other States.” Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S. 287, 296
(1998) (internal quotations and citation omitted); see also U.S. Const. art. IV, § 2, cl. 1. Thus, the
P&I Clause operates to prevent States from discriminating against the citizens of other States.
Saenz v. Roe, 529 U.S. 489, 502 (1999) (“It provides important protections for nonresidents who
enter a State . . . to obtain employment.”). Even the most tortured reading of the facts in this case
could not raise the concerns addressed by the P&I Clause. At the most pedestrian level, Plaintiff
does not allege that Defendant discriminated against, or fired, her because of her citizenship.
Therefore, the fundamental rights under the P&I Clause do not establish a substantial public policy
for Plaintiff’s wrongful discharge action.
This Court has already demonstrated that fundamental rights under the P&I Clause will not
necessarily constitute substantial public policies for retaliatory discharges. Among the
fundamental rights protected under the P&I Clause is the right to access the courts. See McBurney
v. Young, 667 F.3d 454, 463 (4th Cir. 2012) (internal quotations and citations omitted); see also
Canadian N. Ry. Co. v. Eggen, 252 U.S. 553, 562 (1920). However, in Wiley, this Court did not
recognize a substantial public policy for an injured person’s right to access the courts, in the
context of a wrongful discharge claim. Wiley, 4 F.Supp.3d at 847. To date, no West Virginia courts
have disagreed with the conclusion in Wiley. That access to the courts is a fundamental right under
the P&I Clause, but has not been recognized as a substantial public policy for wrongful discharge
actions, further demonstrates that Plaintiff’s argument should be rejected.
Finally, Plaintiff contends that West Virginia common law helps to establish that there is a
substantial public policy protecting a person’s second-job. Plaintiff cites Torbett v. Wheeling
Dollar Sav. & Trust Co as support for this claim. This is the same case noted in the section above,

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discussing tortious interference. Plaintiff claims that the West Virginia Supreme Court’s
recognition of tortious interference with employment relationships in Torbett substantiates a
substantial public policy for this wrongful discharge action. As with Plaintiff’s other contentions,
the Court declines the opportunity to extend the limited areas of substantial public policy in
retaliatory discharge suits.
Plaintiff’s argument that Torbett establishes a substantial public policy strikes the Court as
an attempt to take two bites of the same apple. Plaintiff has already claimed that Defendant
tortuously interfered with her other employment relationship(s). Allowing that same claim to be
made again, albeit under the label of a different cause of action, would undercut the purpose of the
Harless exception that created a claim for wrongful discharge. See Harless v. First Nat. Bank in
Fairmont (“Harless II”), 289 S.E.2d 692, 693, 696-97 (W. Va. 1982) (finding duplicitous the
claim for the tort of outrageous conduct and the claim for retaliatory discharge, and citing the
general rule “there can only be one recovery of damages for one injury”). Accordingly, the Court
rejects Plaintiff’s position.
Therefore, the Court finds that Plaintiff has failed to establish a substantial public policy.
As Plaintiff failed the first element of a Harless wrongful discharge claim, dismissal of Plaintiff’s
claim is appropriate.
IV. CONCLUSION
Based upon the foregoing, the Court GRANTS Defendant’s Partial Motion to Dismiss
(ECF No. 4). Counts II and III of Plaintiff’s complaint are DISMISSED WITHOUT
PREJUDICE.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

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ENTER: October 12, 2017

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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