Crum v. International Coal Group, Inc.
MEMORANDUM OPINION AND ORDER: denying Defendant's 4 MOTION to Dismiss Plaintiff's Complaint. Signed by Judge Irene C. Berger on 12/8/2017. (cc: attys; any unrepresented party) (btm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 5:17-cv-02980
ICG BECKLEY, LLC,
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Defendant’s Motion to Dismiss Plaintiff’s Complaint
(Document 4) and Memorandum of Law in Support (Document 5), the Plaintiff’s Response to
Defendant’s Motion to Dismiss Plaintiff’s Complaint (Document 7), the Plaintiff’s Memorandum
of Law in Support of His Opposition to Defendant’s Motion to Dismiss the Plaintiff’s Complaint
(Document 8), and the Defendant’s Reply to Plaintiff’s Memorandum of Law in Opposition to
Defendant’s Motion to Dismiss Plaintiff’s Complaint (Document 12).
The Court has also
reviewed the Plaintiff’s Complaint (Document 1-1) and all attached exhibits. For the reasons
stated herein, the Court finds that the Defendant’s motion should be denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Plaintiff, Donnie Crum, initiated this action by filing his complaint in the Circuit Court
of Raleigh County, West Virginia. The Plaintiff originally named International Coal Group, Inc.,
as the only defendant. On May 19, 2017, the Defendant removed the matter to this Court, citing
diversity jurisdiction. In the notice of removal, the Defendant alleged that International Coal
Group, Inc., was not the Plaintiff’s employer, but rather ICG Beckley, LLC. On June 6, 2017, the
parties filed a Joint Motion to Substitute Parties (Document 11) wherein both parties agreed to
substitute ICG Beckley, LLC, as the appropriate Defendant in this action. Pursuant to its Agreed
Order Granting Joint Motion to Substitute Parties (Document 13), the Court granted the motion
and dismissed International Coal Group, Inc., from the action, leaving ICG Beckley, LLC
(hereinafter “ICG Beckley”) as the sole Defendant.
The Plaintiff alleges that he was employed by ICG “in July 2012 as a General Mine
Foreman.” (Pl’s Complaint at ¶ 3.) The Plaintiff claims that he worked for the Defendant at its
Arch Beckley Complex in Raleigh County, West Virginia. According to the Plaintiff, shortly
after he was hired as a foreman, ICG Beckley also hired Keith Goins as Mine Superintendent.
Mr. Goins held a safety meeting and informed the workers that “the mine could not remain open
at the current accident rate.” (Id. at ¶ 12.) After this meeting, the Plaintiff would report
accidents, but, in an effort to minimize the number of accidents actually reported, the Defendant
did not follow the proper procedure regarding those accident reports. Eventually, the Defendant
replaced Mr. Goins with Kenny Evans. Upon Mr. Evans’s hiring, the Plaintiff was demoted from
General Mine Foreman to Assistant Mine Foreman with no explanation, after having been told by
the General Manager that he was “doing a ‘great job.’” (Id. at ¶ 16.)
Before the Plaintiff’s demotion, Kenny Evans and a shift foreman employed by the
Defendant had a discussion with the Plaintiff wherein Mr. Crum was “told not to do ‘pre-ops’ so
the men could get to work quicker.” (Id. at ¶ 17.) Because this was an unsafe practice, the
Plaintiff refused to follow the instruction, and he was again demoted. After his demotion, the
practice of doing “pre-ops” stopped. The Plaintiff was also informed that injured employees did
not need to fill out accident reports. According to the Plaintiff, the Defendant’s safety manager
told the Plaintiff he “could not make an employee fill out an accident report” after an injury. (Id.
at ¶ 21.) At some point after these conversations, the Plaintiff was questioned by management at
ICG Beckley, and by an attorney hired by ICG Beckley. During this questioning, the Plaintiff
informed the management officials that, in addition to the unreported accidents, he had also been
forced to send a miner underground while that miner was scheduled for light duty only.
In response to these discussions, the Plaintiff was told to return the next day at 11:00 and
was terminated from employment when he arrived. The Plaintiff contends in his single-count
complaint that he was terminated because he brought up legitimate safety concerns to officials and
because he refused to engage in unsafe practices in violation of mining safety regulations, and that
said discharge was in violation of West Virginia public policy.
The Defendant’s motion to dismiss has been fully briefed and is therefore ripe for review
by the Court.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of a complaint. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009);
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). “[T]he legal sufficiency of a complaint
is measured by whether it meets the standard stated in Rule 8 [of the Federal Rules of Civil
Procedure] (providing general rules of pleading) . . . and Rule 12(b)(6) (requiring that a complaint
state a claim upon which relief can be granted.)” Id. Federal Rule of Civil Procedure 8(a)(2)
requires that a pleading must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
In reviewing a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the Court
must “accept as true all of the factual allegations contained in the complaint.” Erikson v. Pardus,
551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences from those
facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
However, statements of bare legal conclusions “are not entitled to the assumption of truth” and are
insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Furthermore, the Court
need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E.
Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice…
[because courts] ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” Iqbal, 556 U.S. at 678 (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 555
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570.) In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570.) In the
complaint, a plaintiff must “articulate facts, when accepted as true, that ‘show’ that the plaintiff
has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S.
at 557.) “Determining whether a complaint states [on its face] a plausible claim for relief [which
can survive a motion to dismiss] will ... be a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
The Defendant argues that the Plaintiff’s complaint should be dismissed in its entirety
because the Plaintiff has failed to specifically set forth any substantial public policy of which the
Defendant acted in contravention. The Defendant contends that the Plaintiff cited no specific
constitutional provision, statute, regulation, or judicial opinion that sets forth such policy, and has
therefore failed to support his cause of action. The Defendant claims that the Plaintiff’s complaint
is merely “sprinkled . . . with conclusory allegations . . . untethered to any substantial public policy”
such that the complaint must be dismissed. (Def.’s Mem. of Law in Supp. at 7.)
The Plaintiff counters that he has satisfied his burden in his complaint. He argues that his
complaint clearly alleges that the Defendant violated the specific West Virginia public policy of
taking adverse employment action against an employee for airing legitimate safety concerns and
refusing to engage in unsafe mining practices that violate mine safety regulations. The Plaintiff
contends that he sufficiently alleged in his complaint that the Defendant both demoted and
eventually terminated him because he brought to light unsafe practices implemented by the mine
superintendent and because he refused to engage in those unsafe practices, and has therefore
satisfactorily pled a substantial public policy sufficient to survive a motion to dismiss.
With respect to the discharge of at-will employees, the West Virginia Supreme Court of
Appeals held in Harless v. First National Bank in Fairmont that “where the employer’s motivation
for the discharge [of an at-will employee] is to contravene some substantial public policy principle,
then the employer may be liable to the employee for damages occasioned by the discharge.” 246
S.E.2d 270, 271 (W.Va. 1978). In proving that an employee was discharged in contravention of
some public policy, the plaintiff employee has the burden of establishing that a substantial public
policy does actually exist. Roth v. DeFeliceCare, Inc., 700 S.E.2d 183, 190 (W.Va. 2010) (citing
Syl. Pt. 8, Page v. Columbia Natural Res., 480 S.E.2d 817 (W.Va. 1996)). Further, “[t]o identify
a substantial public policy, the Court looks to ‘established precepts in the State’s constitution,
legislative enactments, legislatively approved regulations, and judicial opinions.’” Id. (citing
Birthisel v. Tri-Cities Health Servs. Corp., 424 S.E.2d 606, 612 (W.Va. 1992)).
Pursuant to W.Va. Code § 22A-1-22, “[n]o person shall discharge or in any other way
discriminate against any miner . . . by reason of the fact that the person believes or knows that such
miner . . .(1) has notified the director, his or her authorized representative, or an operator, directly
or indirectly, of any alleged violation or danger.” The West Virginia Supreme Court of Appeals
has similarly held that “W.Va. Code, 22A-1A-20, prohibits retaliatory conduct by employers
against mine employees because of their reporting of violations of the Mine Safety Act.” Syl. Pt.
2, Collins v. Elkay Min. Co., 371 S.E.2d 46 (W.Va. 1988) (citing Syl. Pt. 2, Davis v. Kitt Energy
Corp., 365 S.E.2d 82, 83 (W.Va. 1987)).1
Here, Mr. Crum has alleged that his supervisor and other company officials told him to
undertake actions that were unsafe and against mine safety regulations. Specifically, he states
that his employer would not follow the proper procedure when accidents were reported by the
Plaintiff, that he was told not to perform “pre-ops” before shifts began so that miners could begin
work faster, that he could not make an employee fill out an accident report, and that injured
1 W.Va. Code § 22A-1A-20 was replaced by the most recent iteration of the statute creating the Office Miners’ Health,
Safety and Training, W.Va. Code § 22A-1-22, as quoted above. Thus, the Defendant’s argument that the Plaintiff’s
reliance on Collins is to no avail because the statutes in Collins have been repealed is feeble: Section 22A-1-22 clearly
asserts the same policy expressed in the older statute and relied on by the Collins court.
employees did not need to file accident reports. (Pl.’s Complaint at ¶¶ 13-21.) Mr. Crum further
alleges that he was fired specifically because he brought these concerns to the attention of certain
ICG Beckley management officials, and because he refused to take part in certain unsafe practices
when requested to do so.
These allegations allow Mr. Crum the opportunity to prove his
employment was terminated in violation of the substantial public policy against retaliation against
a mine employee who reported a violation or danger. The Court finds that the Plaintiff has
satisfactorily alleged sufficient facts and a substantial public policy to state a plausible claim for
WHEREFORE, after careful consideration, the Court ORDERS that the Defendant’s
Motion to Dismiss Plaintiff’s Complaint (Document 4) be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
December 8, 2017
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