Clay v. Consol Pa. Coal Co.

• Citation: 955 F.Supp.2d 588
• Decision Date: 03 July 2013
• Docket Number: Civil Action No. 5:12CV92.
• Parties: Tony B. CLAY, Plaintiff, v. CONSOL PENNSYLVANIA COAL COMPANY, LLC, a foreign limited liability company and subsidiary of Consol Energy, Inc., McElroy Coal Company, a foreign corporation and subsidiary of Consol Energy, Inc. and Consol Energy, Inc., a foreign corporation, Defendants.
• Court: U.S. District Court — Northern District of West Virginia

955 F.Supp.2d 588

Tony B. CLAY, Plaintiff,

v.CONSOL PENNSYLVANIA COAL COMPANY, LLC, a foreign limited liability company and subsidiary of Consol Energy, Inc., McElroy Coal Company, a foreign corporation and subsidiary of Consol Energy, Inc. and Consol Energy, Inc., a foreign corporation, Defendants.

Civil Action No. 5:12CV92.

United States District Court,

N.D. West Virginia.

July 3, 2013.

David K. Coleman, Patrick S. Casey, Sandra M. Chapman, Casey, Chapman & Mushet, PLLC, Wheeling, WV, for Plaintiff.

David J. Delfiandra, David E. Renner, Richard J. Cromer, Leech Tishman Fuscaldo & Lampl, LLC, Pittsburgh, PA, William A. Kolibash, Phillips, Gardill, Kaiser & Altmeyer, PLLC, Wheeling, WV, for Defendant.

MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT DENYING DEFENDANTS' MOTION TO DISMISS THE ORIGINAL COMPLAINT AS MOOT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT¹

FREDERICK P. STAMP, JR., District Judge.

I. Background

On June 21, 2012, the plaintiff, Tony B. Clay, filed a complaint against the defendants, Consol Pennsylvania Coal Company, LLC (“Consol PA”), McElroy Coal Company (“McElroy”), and CONSOL Energy, Inc. (“CONSOL”). The plaintiff's complaint contains nine separate counts. In his complaint, the plaintiff specifically alleges a hostile work environment claim, a race discrimination claim, an age discrimination claim, a wrongful termination claim, a retaliation claim, an intentional or reckless infliction of emotional distress claim, a breach of employment agreement claim, a claim for the violation of West Virginia's Wage Payment and Collection Act (“WPCA”), and a civil conspiracy claim. As relief, the plaintiff seeks compensatory damages, punitive damages, and attorneys' fees.

After the plaintiff filed his complaint, the defendants filed a motion to dismiss. In response to the motion to dismiss, the plaintiff filed an amended complaint. Thereafter, the defendants filed a motion to dismiss the amended complaint. In the motion to dismiss the amended complaint, the defendants argue: (1) the age discrimination count and the retaliation count should be dismissed for a failure to exhaust Age Discrimination in Employment Act's (“ADEA”) administrative remedies; (2) the wrongful termination in violation of the West Virginia Human Rights Act (“WVHRA”) count and the retaliation count should be dismissed for a failure to conform to the requirements of bringing a claim under the WVHRA; (3) the intentional or reckless infliction of emotional distress count is barred by the statute of limitations; (4) the breach of employment agreement count facially fails to state a claim upon which relief can be granted; (5) the breach of employment agreement fails to state a claim against defendants McElroy and CONSOL because they were not parties to the employment agreement; (6) the violation of the West Virginia Wage Payment and Collection Act (“WPCA”) count fails to state a claim because the plaintiff cannot demonstrate that the defendants failed to pay him any wages owed to the plaintiff; (7) the civil conspiracy count fails to state a claim because the plaintiff has failed to allege that two or more persons conspired to harm the plaintiff; (8) the civil conspiracy count is preempted by the WVHRA; and (9) the plaintiff's hostile work environment, race discrimination, ADEA, and retaliation counts should be dismissed for a lack of subject matter jurisdiction.

The plaintiff responded arguing: (1) the plaintiff did exhaust his remedies under the ADEA as to the ADEA and retaliation counts; (2) as to the plaintiff's wrongful termination count and retaliation count, the plaintiff is deemed to have timely filed his complaint with the West Virginia Human Rights Commission (“WVHRC”); (3) as to the plaintiff's intentional or reckless infliction of emotional distress count, the defendants' unlawful and tortious conduct continued beyond the plaintiff's discharge; (4) based on the plaintiff's allegations that he was discharged for unlawful and discriminatory reasons, the plaintiff has stated a claim for breach of his employment agreement; (5) the defendants were the “joint employer” of the plaintiff for purposes of the employment agreement; (6) the defendants' failure to remit the plaintiff's termination payment required under his employment agreement is a violation of West Virginia's WPCA; (7) the plaintiff did not fail to state a claim for civil conspiracy as each defendant is a “person” capable of entering into a civil conspiracy; (8) the plaintiff's civil conspiracy count is not preempted by the WVHRA; and (9) this Court has subject matter jurisdiction over the plaintiff's hostile work environment, race discrimination, ADEA, and retaliation counts because he has exhausted his remedies before the Equal Employment Opportunity Commission (“EEOC”). The defendants filed a reply addressing the plaintiff's arguments.

For the reasons stated below, this Court denies the defendants' motion to dismiss the plaintiff's original complaint as moot and grants in part and denies in part the defendants' motion to dismiss the plaintiff's amended complaint.

II. Applicable Law

A. Motion to dismiss for failure to state of a claim

In assessing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept all well-pled facts contained in the complaint as true. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.2009). However, “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6) purposes.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). This Court also declines to consider “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th Cir.2009).

It has often been said that the purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.1998). The Rule 12(b)(6) motion also must be distinguished from a motion for summary judgment under Federal Rule of Civil Procedure 56, which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. Id. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the party making the claim and essentially the court's inquiry is directed to whether the allegations constitute a statement of a claim under Federal Rule of Civil Procedure 8(a). Id. § 1357.

A complaint should be dismissed “if it does not allege ‘enough facts to state a claim to relief that is plausible on is face.’ ” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Facial plausibility is established once the factual content of a complaint ‘allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Nemet Chevrolet, 591 F.3d at 256 (quoting Iqbal, 129 S.Ct. at 1949). Detailed factual allegations are not required, but the facts alleged must be sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

B. Motion to dismiss for lack of subject matter jurisdiction

The Federal Rules of Civil Procedure provide that, prior to filing a responsive pleading, a defendant may challenge the district court's subject matter jurisdiction over the claims brought against it by filing a motion to dismiss under Rule 12(b)(1). The federal district courts are courts of limited jurisdiction, and may only hear cases over which they have been granted jurisdiction either by statute or by the Constitution. When a defendant brings a motion under Rule 12(b)(1), a court must dismiss the case against it if the court finds that it “lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).

Once subject matter jurisdiction has been challenged, it is the plaintiff's “burden of proving that subject matter jurisdiction exists.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). Further, because subject matter jurisdiction cannot be waived by the court or by the parties, and if lacking, renders the district court wholly unable to rule on any matter in controversy, in resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court “may refer to evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, F. & P.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991).

III. Discussion

A. Failure to exhaust ADEA remedies

The defendants first argue that this Court should dismiss Count III, which alleges discrimination based on the plaintiff's age because the plaintiff failed to exhaust his administrative remedies under the ADEA. The defendants also argue that based on this failure to exhaust, Count V should be dismissed insomuch as it concerns retaliation based in violation of the ADEA. The plaintiff contests this argument and alleges instead that the plaintiff did in fact properly exhaust his administrative remedies under the ADEA.

Under the ADEA, a plaintiff must file a charge of discrimination with the EEOC prior to filing suit. Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir.2009) (citations omitted). This charge must be filed either within 180 days after the alleged unlawful employment practice occurs, or within 300 days from such event “ ‘when state law proscribes the alleged employment practice and the charge has...