Frohnapfel v. Arcelormittal Weirton LLC

• Citation: 100 F.Supp.3d 556
• Decision Date: 22 April 2015
• Docket Number: Civil Action No. 5:14–CV–45.
• Court: United States District Courts. 4th Circuit. Northern District of West Virginia
• Parties: William FROHNAPFEL, et al., Plaintiffs, v. ARCELORMITTAL WEIRTON LLC, et al., Defendants.

100 F.Supp.3d 556

William FROHNAPFEL, et al., Plaintiffs

v.ARCELORMITTAL WEIRTON LLC, et al., Defendants.

Civil Action No. 5:14–CV–45.

United States District Court, N.D. West Virginia.

Signed April 22, 2015.

Robert J. D'Anniballe, Jr., Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Weirton, WV, for Plaintiffs.

Bradley K. Shafer, Swartz Campbell LLC, Wheeling, WV, Christine M. Costantino, Raymond C. Baldwin, Seyfarth Shaw LLP, Washington, DC, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS

JOHN PRESTON BAILEY, District Judge.

Presently pending before this Court is Defendants ArcelorMittal Weirton LLC (“AM Weirton”) and ArcelorMittal USA LLC's Motion to Dismiss [Doc. 7], filed April 11, 2014. By Order entered July 7, 2014, this Court referred a question of law to the Supreme Court of Appeals of West Virginia, deferred ruling on other issues and stayed this case pending resolution of the certified issue of law [Doc. 30]. This Court, now having the benefit of the West Virginia Supreme Court's decision will deny the Motion.

I. Background

This action arises from plaintiff¹ William Frohnapfel's allegedly unlawful termination from his employment with AM Weirton, a tin plate manufacturer located in Weirton, West Virginia.² At the time of his termination, plaintiff's employment was governed by a collective bargaining agreement between his union, the United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, and defendant ArcelorMittal USA, AM Weirton's parent company. See [Doc. 8–1].

Prior to his termination, plaintiff worked as a Technician II Operator in AM Weirton's Environmental Control/Utilities Department. Plaintiff's department was charged with overseeing B–Outfall, a portion of AM Weirton's manufacturing operation located on the Ohio River. B–Outfall discharges hazardous byproducts from its manufacturing process directly into the Ohio River. As such, B–Outfall is governed by a permit issued under the West Virginia Water Pollution Control Act (“WPCA”), W.Va.Code §§ 22–11–1 et seq., which regulates the discharge of hazardous materials at B–Outfall, imposes environmental monitoring obligations upon defendants, and requires defendants to report to the West Virginia Department of Environmental Protection (“WVDEP”) regarding discharges at B–Outfall.

According to plaintiff, defendants “viewed him as a watch dog for environmental compliance and a potentially dangerous whistleblower in regard to environmental violations.” Plaintiff alleges he repeatedly brought violations of defendants' WPCA permit to defendants' attention and on one occasion reported a violation to the WVDEP, causing defendants to take increasingly punitive adverse actions against him and ultimately resulting in his termination. Specifically, plaintiff alleges that:

• In February 2009, plaintiff complained to management after being instructed to “scrape labels off barrels and replace them with new labels due to expiration issues”;

• In March 2009, plaintiff informed management that a probe was being placed in a buffer in order to conceal certain PH issues;

• In June 2010, plaintiff truthfully responded to an inquiry from the WVDEP concerning the dumping of hazardous waste and was thereafter “summoned to the Office of the Defendants' highest ranking management official located in Weirton”;

• In November 2010, plaintiff complained regarding the inadequacy of hazardous material incident training, and was thereafter “chastised,” “disciplined,” and disqualified from receiving a promotion;

• In January 2011, plaintiff expressed concern regarding the lack of a containment area for “Prussian Blue,” a hazardous waste; and

• In June 2012, plaintiff questioned a third-party vendor's practices associated with the removal of hazardous waste and was thereafter harshly disciplined and temporarily suspended from work.

The events immediately preceding plaintiff's termination occurred in April 2013. Early that month, a piece of machinery used at B–Outfall broke down. Because the unusable machinery was causing hazardous waste to accumulate at B–Outfall, a group of employees, including plaintiff, developed a plan to repair the piece of machinery. The group asked plaintiff to present their plan to management. Plaintiff did so, but was informed by management that a different plan to fix the machinery was already in place. Later, while telling the other employees what had transpired, plaintiff remarked, apparently in reference to management, that “opinions are like assholes, everybody has one, some people have two.” Unbeknownst to plaintiff, a nearby open microphone broadcast his remark throughout the entire Environmental Control/Utilities Department. Following the accidental broadcast, defendants suspended plaintiff, and a few days later, on April 18, 2013, terminated plaintiff's employment.

Plaintiff filed a grievance contesting his termination in accord with procedures set forth in the collective bargaining agreement governing his employment. The grievance, which does not pursue the cause of action asserted in this lawsuit, is presently scheduled for arbitration.

On February 26, 2014, plaintiff and his wife initiated this action by filing their Complaint in the Circuit Court of Hancock County, West Virginia, alleging one count of state-law retaliatory discharge and one count of loss of consortium.³ Defendants thereafter removed the case to this Court, invoking this Court's diversity jurisdiction. See 28 U.S.C. § 1332. The instant Motion to Dismiss followed.

II. Legal Standard

A. Fed.R.Civ.P. 12(b)(1)

In general, a defendant's jurisdictional challenge under Rule 12(b)(1) can take one of two forms: factual or facial. Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009). A factual challenge attacks the truth-in-fact of the plaintiff's jurisdictional allegations. Id. A facial challenge, by contrast, attacks the legal sufficiency of the plaintiff's jurisdictional allegations. Id. Where the defendant—as defendants have done in this case⁴ —mounts a facial challenge under Rule 12(b)(1), the plaintiff is afforded the same procedural protections he would receive under Rule 12(b)(6) : all facts alleged in the complaint are taken as true, and all reasonable inferences are drawn in the plaintiff's favor. See id. (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982) ). Consequently, to avoid dismissal on a facial Rule 12(b)(1) challenge, plaintiff's complaint must contain “sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ ” See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

B. Fed.R.Civ.P. 12(b)(6)

To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court accepts all well-pled facts in the complaint as true and construes those facts in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937 ; Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir.2008). Legal conclusions, recitations of the elements of a cause of action, and bare assertions devoid of further factual enhancement do not constitute well-pled facts for Rule 12(b)(6) purposes. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Ultimately, a complaint must contain “sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). Facial plausibility is established where the facts alleged in the complaint “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This context-specific test does not require “detailed factual allegations,” but the complaint must produce an inference of liability strong enough to nudge the plaintiff's claims “across the line from conceivable to plausible.”Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955. A court ruling on a motion to dismiss may consider any documents integral to and relied on in the complaint, regardless of whether those documents are actually attached to the complaint. See Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.2004).

III. Discussion

Defendants argue that plaintiff's Complaint must be dismissed for three reasons: first, because this Court lacks subject matter jurisdiction⁵ as plaintiff's claim is subject to preemption by the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151 et seq., also known as Garmon preemption; second, because plaintiff's claim is preempted by § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and, properly characterized as a § 301 claim, must be dismissed for failure to exhaust; and third, because plaintiff has failed to state a claim for retaliatory discharge as defined by Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), as plaintiff's Complaint neither satisfies federal pleading standards nor alleges a substantial West Virginia public policy upon which his Harless claim may be predicated.

Plaintiff responds that neither form of preemption applies, and that his Harless claim is properly founded upon the substantial West Virginia public policy set forth in the WPCA. As this matter presented a novel question of West Virginia law—whether West Virginia recognizes a claim for Harless retaliatory discharge founded upon the WPCA—this Court certified the question to the Supreme Court of Appeals of West Virginia. As briefly discussed below, this Court further finds that adjudicating the applicability of either preemption doctrine would be premature, as both preemption analyses require a close examination of the underlying cause of action. As such, this Court deferred ruling upon defendants' Motion and stayed...