Griffith v. The Chemours Co.

• Court: U.S. District Court — Southern District of West Virginia
• Writing for the Court: IRENE C. BERGEF, UNITED STATES DISTRICT JUDGE.
• Decision Date: 21 September 2021
• Docket Number: Civil Action 2:21-cv-00369,2:21-cv-00368
• Citation: Griffith v. The Chemours Co., 2:21-cv-00368, Civil Action 2:21-cv-00369 (S.D. W.Va. Sep 21, 2021)
• Parties: PAUL GRIFFITH and DONNIE ENNIS, Plaintiffs, v. THE CHEMOURS COMPANY and THE CHEMOURS COMPANY FC, LLC, Defendants.

PAUL GRIFFITH and DONNIE ENNIS, Plaintiffs, v. THE CHEMOURS COMPANY and THE CHEMOURS COMPANY FC, LLC, Defendants.

Civil Action Nos. 2:21-cv-00369, 2:21-cv-00368

United States District Court, S.D. West Virginia, Charleston Division

September 21, 2021

MEMORANDUM OPINION AND ORDER

IRENE C. BERGEF, UNITED STATES DISTRICT JUDGE.

The Court has reviewed the Motion to Dismiss Plaintiffs' Amended Complaint (Document 26), Memorandum of Law in Support of Defendants' Motion to Dismiss Plaintiffs' Amended Complaint (Document 27) Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss Plaintiffs' Amended Complaint (Document 30), and Reply in Further Support of Defendants' Motion to Dismiss (Document 33). For the reasons stated herein, the Court finds that the motion to dismiss should be granted in part and denied in part.

FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiffs originally filed separate complaints on April 28 2021, in the Circuit Court of Kanawha County, West Virginia. The cases were removed to this Court on June 25, 2021. On July 20, 2021, the two cases were consolidated. On July 26 2021, an amended complaint was filed. The amended complaint alleges that the Plaintiffs were unlawfully discharged in retaliation for reporting Defendants' violations under applicable United States Department of Transportation Federal Motor Carrier Safety Administration (DOT) hazardous material regulations; United States Department of Labor Occupational Safety and Health Administration (OSHA) safety regulations; applicable federal Clean Water Act (CWA) regulations; and, applicable West Virginia Water Pollution Control Act (WVWPCA) regulations.

In particular, the amended complaint alleges that Plaintiff Griffith began working at the Chemours plant in Belle, West Virginia, in 2012. Plaintiff Ennis worked at the Belle site for twenty-six years and was employed by the Defendants for twelve years. The Defendants are a spin-off company of Dupont and took over the Belle chemical plant in 2015. In or around the summer of 2016, the Plaintiffs began working together as a two-person team. On that team, the Plaintiffs performed various job duties, including loading and unloading shipping containers, visually inspecting areas of the plant, writing work permits, completing gas checks, transporting samples to the lab, and checking units while in operation, among other tasks.

Beginning in 2016, the Plaintiffs began regularly and repeatedly reporting safety violations to the Defendants. For example, the Defendants failed to maintain its load shack in compliance with DOT Hazardous Materials Regulations, and also failed to maintain its fire and gas detection system. The load shack is a designated space where a qualified person attends and monitors the loading and unloading of hazardous materials in cargo tanks. The Plaintiffs regularly reported such violations to the Defendants, but the Defendants failed to repair the load shack or the fire and gas detection system throughout the Plaintiffs' term of employment.

In or around 2017, the Plaintiffs also became aware of an unpermitted outfall into the Kanawha River, which was leaking unknown substances. Plaintiffs regularly and repeatedly reported this risk to agents of the Defendants. Instead of correcting the unpermitted outfall, the Plant Manager instructed employees to stop excavating in an attempt to avoid identifying additional information about illegal outflows that could subject the Defendants to fines or costs. The situation was not remedied during the Plaintiffs' term of employment. Moreover, multiple chemical leaks occurred during the Plaintiffs' term of employment.

The Plaintiffs allege that they were unlawfully terminated on September 26, 2019, in retaliation for prior reports of Defendants' repeated violations. Plaintiff Griffith asserts that he worked for the Defendants for seven years and had never been written up; and, Plaintiff Ennis had worked at the Belle site for twenty-six years and had been employed by the Defendants for twelve years and was never written up. The Plaintiffs assert that employees are protected from retaliation for reporting reasonably perceived violations of any statute or regulations within the Consumer Product Safety Commission to their employer under the CPSIA. Based on these facts, the Plaintiffs have asserted a claim against the Defendants for retaliatory discharge in violation of public policy.

The Defendants filed their motion to dismiss on August 5, 2021. The Plaintiff filed a response on August 19, 2021, and a reply was filed on August 26, 2021. The matter is ripe for review.

STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1).

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

The Court must “accept as true all of the factual allegations contained in the complaint.” Erickson 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. Iqbal, 556 U.S. at 679. 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 Twombly, 550 U.S. at 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, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “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.

APPLICABLE LAW

In West Virginia, “an employment unaffected by contractual or statutory provisions to the contrary, may be terminated, with or without cause, at the will of either party to a contract of employment.” Wright v. Standard Ultramarine & Color Co., 90 S.E.2d 459, 468 (W.Va. 1955).

In Harless v. First National Bank in Fairmont, the West Virginia Supreme Court carved out an exception to that general rule, stating,

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.

Syl., 246 S.E.2d 270, 271 (W.Va. 1978). Four factors guide a court's determination of whether an employee has successfully presented a Harless claim:

(1) whether clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in common law; (2) whether dismissing employees under circumstances like those involved in plaintiff's dismissal would jeopardize the public policy (3) whether dismissal was motivated by conduct related to the public policy; and (4) whether employer lacked overriding legitimate business justification for dismissal.

Wiley v. Asplundh Tree Expert Co., 4 F.Supp.3d 840, 844-45 (S.D. W.Va. 2014) (Johnston, J.) (quoting Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713, 723 (W.Va. 2001)).

A Harless claim only exists where the statutory remedy is inadequate, or where there is no other private cause of action to enforce the public policy at issue. Edmonds v Altice Tech. Servs. U.S. LLC, 413 F.Supp.3d 488, 493 (S.D. W.Va. 2019); Daniel v. Raleigh Gen. Hospital LLC, No. 5:17-cv-03986, 2018 WL 3650248, at *10 (S.D. W.Va. Aug. 1, 2018). “In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or...