Hartman v. White Hall Pharmacy, LLC

• Citation: 112 F.Supp.3d 491
• Decision Date: 19 June 2015
• Docket Number: Civil Action No. 1:15CV26.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Adam HARTMAN, Plaintiff, v. WHITE HALL PHARMACY, LLC, C. Gene Wright, Terri Vilain, Jeffrey Tucker, Defendants.

112 F.Supp.3d 491

Adam HARTMAN, Plaintiff,

v.WHITE HALL PHARMACY, LLC, C. Gene Wright, Terri Vilain, Jeffrey Tucker, Defendants.

Civil Action No. 1:15CV26.

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

Signed June 19, 2015.

Allan N. Karlin, Allan N. Karlin & Associates, Morgantown, WV, for Plaintiff.

Brian J. Moore, Dinsmore & Shohl, LLP, Charleston, WV, Michael J. Moore, Dinsmore & Shohl LLP, Morgantown, WV, for Defendants.

MEMORANDUM OPINION

IRENE M. KEELEY, District Judge.

On June 18, 2015, the Court orally granted the "Motion to Certify Question to the Supreme Court of Appeals of West Virginia" filed by the plaintiff, Adam Hartman ("Hartman"), and stayed its ruling on the "Motion to Dismiss Count II of Plaintiff's Complaint" filed by the defendants, White Hall Pharmacy, LLC ("White Hall"), C. Gene Wright ("Wright"), Terri Vilain ("Vilain"), and Jeffrey Tucker ("Tucker") (collectively, the "defendants"). The Court advised the parties that this Memorandum Opinion would follow.

I.

This case involves retaliatory discharge claims stemming from Hartman's termination from employment on October 31, 2014. Wright and Vilain are the member-owners of White Hall, a pharmacy with two locations in Fairmont, West Virginia. Tucker is White Hall's director of business operations and human resources. Hartman began working at White Hall as an intern in April 2011, and was later promoted to a registered staff pharmacist, and then to pharmacist-in-charge.

In May 2014, Hartman's attorney notified the defendants that they had failed to provide his client time for meals and rest breaks, nor had they paid him holiday or overtime pay. Hartman alleges that, since receiving such notice, the defendants have engaged in a "campaign of retaliation" against him for having asserted his rights. (Dkt. No. 6–1 at 5). Hartman points out that, although he was never disciplined during his employment with White Hall, the defendants suspended him effective August 18, 2014.

On August 22, 2014, Hartman filed two lawsuits against the defendants. First, he sued them in the Circuit Court of Marion County, West Virginia, alleging that they had failed to provide him time for meals and rest breaks, as well as holiday pay, in violation of the West Virginia Wage Payment and Collection Act, W. Va.Code § 21–5–1 et seq. (the "WPCA") (the "WPCA Action"). Second, he filed a collective action in this Court under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), alleging that the defendants had failed to compensate him and other employees for overtime pay (the "FLSA Action").

The parties settled the FLSA Action on October 15, 2014, and the WPCA Action on October 24, 2014. Hartman alleges that "[t]he final step in the resolution of the Civil Actions occurred on October 28, 2014." (Dkt. No. 6–1 at 4). Three days later, the defendants terminated Hartman's employment. Although the defendants claim Hartman was fired as "part of a reduction in force," Hartman characterizes that as "a pretext to mask Defendants' unlawful retaliatory motives." Id.

On January 26, 2015, Hartman filed the instant action in the Circuit Court of Marion County, West Virginia, alleging "retaliatory discharge claims" against the defendants. (Dkt. No. 13 at 2). Count I asserts a violation of the FLSA, 29 U.S.C. § 215(a)(3), which prohibits the discharge of an employee because he or she has "filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter." Count II asserts common law retaliatory discharge in violation of a substantial public policy embodied by § 21–5–3 of the WPCA, which requires employers to pay employees all "wages due" at least once every two weeks. Finally, Count III asserts a violation of § 21–54 of the WPCA, which requires companies to pay "wages in full" to discharged employees no later than the earlier of the next regular payday or four business days after termination.

The defendants moved to dismiss Count II of Hartman's complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that the WPCA is not a "substantial public policy" within the meaning of Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270, 275 (1978). The defendants also contend that Count II is preempted by the FLSA.

In response, Hartman filed a motion to certify the following question to the Supreme Court of Appeals of West Virginia: "Does the [WPCA], in particular § 21–5–3, which requires that wages be paid every two weeks, embody a substantial public policy which supports a claim for wrongful discharge where the employee alleges he was fired in retaliation for pursuing a claim for pay pursuant to § 21–5–3 ?" (Dkt. No. 14 at 2). All matters are fully briefed and ripe for review.

II.

In reviewing the sufficiency of a complaint, a district court " ‘must accept as true all of the factual allegations contained in the complaint.’ " Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir.2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ). However, while a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Indeed, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). In considering whether the facts alleged are sufficient, "a complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’ " Anderson, 508 F.3d at 188 (quoting Twombly, 550 U.S. at 547, 127 S.Ct. 1955 ).

III.

A.

Count II of Hartman's complaint, which alleges that the defendants fired Hartman "in retaliation for [his] engaging in protected activity by complaining that he was being denied pay for rest periods and holiday pay and asserting his rights under the WPCA" (dkt. no. 6–1 at 6) (emphasis added), is not preempted by FLSA. In their motion, the defendants misapprehend that Count II "allege[s] retaliation for initiating suit against Defendants related to White Hall's overtime procedures and payments. " (Dkt. No. 5 at 7) (emphasis added). Moreover, courts have held that state law claims based on an employee's right to vacation pay are not preempted by the FLSA. See, e.g., Sosnowy v. A. Perri Farms, Inc., 764 F.Supp.2d 457, 462–63 (E.D.N.Y.2011) ( "[T]he only potential overlap between the state common law claims and the FLSA is the recovery for overtime wages, because the FLSA does not provide recovery for accrued vacation and sick time."); Nimmons v. RBC Ins. Holdings (USA), Inc., No. 6:07CV2637, 2007 WL 4571179, at *2 n. 1 (D.S.C. Dec. 27, 2007) ("Plaintiff's claim for failure to pay accrued vacation pay is not preempted or otherwise foreclosed by the FLSA claim."). Therefore, preemption is not a bar to Count II.

B.

The Court turns next to the heart of the parties' motions, that is, whether § 21–5–3 of the WPCA is a substantial public policy that can sustain a retaliatory discharge claim. In Harless, 246 S.E.2d at 275, the Supreme Court of Appeals of West Virginia permitted a cause of action where an employee who had been terminated from employment establishes that "the employer's motivation for the discharge contravenes some substantial public policy principle." The court later

articulated the necessary proof for a claim for relief for wrongful discharge in contravention of substantial public policy as follows:

(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 t]he plaintiff's dismissal was motivated by conduct related to the public policy (the causation element).

(4) [Whether t]he employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).

Swears v. R.M. Roach & Sons, Inc., 225 W.Va. 699, 696 S.E.2d 1, 6 (2010) (alterations and italics in original) (quoting Feliciano v. 7–Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713, 723 (2001) ).

Count II of Hartman's complaint alleges that the defendants fired him "in retaliation for [his] engaging in protected activity by complaining that he was being denied pay for rest periods and holiday pay and asserting his rights under the WPCA." (Dkt. No. 6–1 at 6). It further alleges that "[t]he WPCA is a substantial public policy of the State of West Virginia." Id.

The defendants attack this conclusion under the first element of Hartman's prima facie Harless claim, i.e., the clarity element. As support, they rely on two decisions from the United States District Court for the Southern District of West Virginia: Wiley v. Asplundh Tree Expert Co., 4 F.Supp.3d 840 (S.D.W.Va.2014) (Johnston, J.); and Baisden v. CSC–Pa, Inc., No. 2:08CV01375, 2010 WL 3910193 (S.D.W.Va. Oct. 1, 2010) (Goodwin, J.).

In Baisden, 2010 WL 3910193 at *5, the plaintiff asserted, inter alia, a Harless claim for "retaliatory discharge, arguing that he was wrongfully terminated for trying to enforce his rights under the [WPCA]." Relying on the decision of the Supreme Court of Appeals of West Virginia in Roberts v. Adkins, 191 W.Va. 215, 444 S.E.2d 725 (1994), Judge Goodwin summarily dismissed the claim by "declin[ing] to recognize a new type of Harless action." Baisden, 2010 WL 3910193 at *5.

Notably, in Roberts, the Supreme Court of Appeals had held:

A cause of action for wrongful discharge may exist under West Virginia Code § 21–5–5 (1989) [a section of the WPCA],¹ for the retaliatory discharge of an employee because of the employee's purchase of goods from a competitor of a

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