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granting 12(b) because "nothing in the complaint can be construed to establish the elements of [the claim] ...."
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No. 19-1007
06-11-2021
Diana BOONE, Plaintiff Below, Petitioner v. ACTIVATE HEALTHCARE, LLC, Defendant Below, Respondent
Walt Auvil, Esq., Kirk Auvil, Esq., The Employment Law Center, PLLC, Parkersburg, West Virginia, Counsel for Petitioner. David A. Sims, Esq., Law Offices of David A. Sims, PLLC, Vienna, West Virginia, Counsel for Amici Curiae West Virginia, Employment Lawyers Association and West Virginia Association for Justice. J. David Fenwick, Esq., Stephanie H. Daly, Esq., Goodwin & Goodwin, LLP, Charleston, West Virginia, Counsel for Respondent.
Walt Auvil, Esq., Kirk Auvil, Esq., The Employment Law Center, PLLC, Parkersburg, West Virginia, Counsel for Petitioner.
David A. Sims, Esq., Law Offices of David A. Sims, PLLC, Vienna, West Virginia, Counsel for Amici Curiae West Virginia, Employment Lawyers Association and West Virginia Association for Justice.
J. David Fenwick, Esq., Stephanie H. Daly, Esq., Goodwin & Goodwin, LLP, Charleston, West Virginia, Counsel for Respondent.
WALKER, Justice:
In 2018, Petitioner Diana Boone was working in the casting department at Constellium Rolled Products Ravenswood, LLC (Constellium) and requested a change in her work duties to accommodate a medical condition. As part of that process, she was directed to Activate Healthcare, LLC (Activate), Constellium's on-site medical provider, for a Physical Capacity Report (PCR). During a series of interactions with Ms. Boone, Activate issued more than one PCR. Eventually, Constellium terminated Ms. Boone's employment based on one of the PCRs. Ms. Boone returned to work a few weeks later in a different department at Constellium. She filed a grievance seeking lost wages for her break in employment, but that grievance was denied. So, she sued Constellium, Activate, and others alleging retaliation and discrimination in violation of the West Virginia Human Rights Act (WVHRA).
W. Va. Code §§ 5-11-1 to -20.
In this appeal, we consider the sole issue of whether the Circuit Court of Jackson County erred in dismissing Ms. Boone's claims against Activate under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. While this Court has recognized that the WVHRA "shall be liberally construed to accomplish its objectives and purposes[,]" we agree with the circuit court that Ms. Boone's factual allegations against Activate were insufficient to establish a claim of aiding and abetting under the WVHRA.
Conrad v. ARA Szabo , 198 W. Va. 362, 376, 480 S.E.2d 801, 815 (1996) (citing W. Va. Code § 5-11-15 ).
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2016, Ms. Boone was employed by Constellium, an aluminum manufacturer in Ravenswood, West Virginia, that produces sheet and coil aluminum for aerospace, transportation, defense, marine, and industrial uses. Constellium maintained an on-site medical facility for its employees. Activate operated that facility and was responsible for preparing PCRs for employees seeking worksite accommodations for disabilities or other medical issues, among other things. Ms. Boone contends here, as she did below, that Activate failed to prepare an accurate PCR for her, and in so doing, aided and abetted Constellium in its decision to wrongfully terminate her employment in violation of the WVHRA. Ms. Boone alleged the following facts in support of this argument.
In 2017, Ms. Boone was working in Constellium's casting department. As part of her work, Ms. Boone was required to operate an overhead crane, suspended from a warehouse ceiling, to move manufactured aluminum products. In the spring of 2018, two supervisors informed Ms. Boone that she was required to begin training to operate the overhead crane. She refused, referencing a prior negative experience she had while operating the crane. She then obtained a temporary PCR excusing her from operating the crane for a short time. Later, a supervisor asked whether Ms. Boone intended to seek a permanent PCR, and she replied in the affirmative.
On June 25, 2018, Ms. Boone went to Activate to obtain the permanent PCR. She presented a note from her personal physician that diagnosed her with acrophobia—a fear of heights—and restricted her from "training in high positions[.]" Activate did not take the physician's note, but issued two successive PCRs restricting Ms. Boone from working at specified heights. Upon reviewing these PCRs, Sherry Gordon, who worked in human resources, informed Ms. Boone that Constellium could not accommodate her and had no work for her, as all of its positions required employees to be able to work at a certain height. She then sent Ms. Boone home. Later that day, Kevin Gaul, of the United Steelworkers union, emailed Ms. Gordon, asking why Constellium denied Ms. Boone's accommodation request. In response, Ms. Gordon explained that the PCRs imposed height restrictions that Constellium could not accommodate, so Ms. Boone "would not be able to perform her job, thus she disqualified herself from her job[.]"
The first PCR restricted Ms. Boone from working at heights in excess of six feet, the second restricted her from working at heights in excess of ten feet.
Our review of the record does not reveal what that height is, but, considering the restrictions in the PCRs issued to Ms. Boone, it must presumably be above ten feet.
The following day, on June 26, 2018, Ms. Boone and Mr. Gaul requested a new PCR from Activate that only restricted Ms. Boone from operating the overhead crane. One of Activate's physician assistants issued the requested PCR. From the record, it appears neither Ms. Boone nor Mr. Gaul had any contact with Constellium's human resources department on June 26.
On June 27, 2018, union representatives met with Constellium CEO Lloyd Stemple and Human Resources Director Joe Martucci to discuss Ms. Boone's return to work. In the meeting, the union representatives presented the most recent PCR restricting Ms. Boone only from operating the overhead crane and asked that Constellium grant Ms. Boone's requested accommodation. Mr. Stemple and Mr. Martucci declined to do so, informing the union representatives that two other employees with more seniority than Ms. Boone were already receiving accommodations in the casting department. But, Mr. Stemple and Mr. Martucci agreed to transfer Ms. Boone from the casting department to the finishing department. Pursuant to this agreement, Ms. Boone returned to work in the finishing department eighteen days later on July 13, 2018.
Though the parties do not specify the date on which Ms. Boone was terminated, we infer, without deciding, that Constellium's refusal to accommodate her disability in the June 27 meeting constituted an effective termination of her position in the casting department.
Upon her return to work, Ms. Boone filed a grievance seeking lost wages for the time between her removal from the casting department and her resuming work in the finishing department. Constellium denied the grievance on August 30, 2018, noting that "[t]he employee was unable to perform all of the duties associated with her position and the company was (and continues to) accommodate two employees senior to her in the department. Since she was unable to work there is no contractual obligation to pay for duties not performed."
On October 29, 2018, Ms. Boone sued Constellium, Activate (first erroneously named USIMC of West Virginia), and others, in the Circuit Court of Jackson County alleging discrimination and retaliation in violation of the WVHRA. Ms. Boone's single cause of action against Activate alleged that "Activate Healthcare aided and abetted [Constellium's] refusal to accommodate [Ms. Boone's] disabilities as described herein above by refusing to review [Ms. Boone's] medical documentation and by repeatedly issuing erroneous ‘PCRs’ without interacting with Ms. Boone regarding her actual accommodation request."
Ms. Boone filed the First Amended Complaint on March 12, 2019, renaming USIMC of West Virginia to Activate. All references in this opinion to Ms. Boone's complaint against Activate are to the First Amended Complaint.
Activate moved to dismiss Ms. Boone's claim under Rule 12(b)(6), arguing that the complaint failed to state a claim upon which relief could be granted. Following a hearing, the circuit court granted the motion to dismiss on September 30, 2019, finding that Ms. Boone failed to plead a claim of aiding and abetting as to Activate that could survive dismissal under Rule 12(b)(6). Specifically, the circuit court found that Ms. Boone's complaint failed to allege that "Activate had any involvement in Constellium's decision regarding [her] employment, which occurred after Activate provided [Ms. Boone] her desired medical restriction." The circuit court also found that Ms. Boone's claim was a medical negligence claim governed by the West Virginia Medical Professional Liability Act (MPLA) and that Ms. Boone had failed to allege facts to establish such a claim. Ms. Boone now appeals the circuit court's order granting the motion to dismiss.
W. Va. Code §§ 55-7B-1 to -12.
II. STANDARD OF REVIEW
This Court has held that "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo. " Further, we have held that, "[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Finally, we have noted that courts must construe "the factual allegations in the light most favorable to the plaintiff." With these standards on mind, we proceed to address the arguments on appeal.
Syl. Pt. 1, Barber v. Camden Clark Mem'l Hosp. Corp. , 240 W. Va. 663, 815 S.E.2d 474 (2018) (citing Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc. , 194 W. Va. 770, 461 S.E.2d 516 (1995) ).
Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc. , 160 W. Va. 530, 236 S.E.2d 207 (1977) (citing Conley v. Gibson , 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ).
Murphy v. Smallridge , 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996).
III. ANALYSIS
Ms. Boone first argues that the circuit court applied an incorrect standard of review in evaluating Activate's motion to dismiss. Ms. Boone also asserts that she properly alleged that Activate aided and abetted Constellium in wrongfully terminating her employment in violation of the WVHRA.
Ms. Boone also states that the circuit court erred in finding that the MPLA applied to her claim against Activate. But we need not address this argument because the circuit court correctly determined that Ms. Boone failed to sufficiently plead a claim of aiding and abetting under the WVHRA that could withstand a motion to dismiss under Rule 12(b)(6).
A. Rule 12(b)(6) Standard of Review
Ms. Boone first asserts that the circuit court applied an incorrect standard of review in granting Activate's motion to dismiss because its dismissal order bears no evidence that it applied the proper standard. Activate counters that it argued the appropriate standard of review before the circuit court and that the order clearly demonstrates that the appropriate standard was used. We agree with Activate.
We readily dispose of Ms. Boone's argument on this point because the circuit court's order clearly states the standard of review it used. In relevant part, the order states:
Dismissal of a civil action pursuant to Rule 12(b)(6) is proper where "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977). The Court must construe "the factual allegations in the light most favorable to the plaintiff." Murphy v. Smallridge, 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996) (citing [State ex rel. ] McGraw v. Scott Runyan Pontiac-Buick, 194 W. Va. 770, 775-76, 461 S.E.2d 516, 521-22 (1995) ).
Undeniably, the circuit court identified the correct standard of review. As evidenced by our own citation to this standard above, this Court has long held that "[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." The circuit court's language is drawn directly from that holding. Beyond that, we have also long acknowledged that in analyzing a complaint subject to a motion to dismiss under Rule 12(b)(6) the reviewing court is to construe the facts in the light most favorable to the plaintiff. As such, Ms. Boone's first assignment of error fails.
Syl. Pt. 3, Chapman , 160 W. Va. at 530, 236 S.E.2d at 207 ; see also Syl. Pt. 2, Mountaineer Fire & Rescue Equipment, LLC v. City National Bank of West Virginia, 244 W. Va. 508, 854 S.E.2d 870 (2020).
Smallridge, 196 W. Va. at 36, 468 S.E.2d at 168 (citing Scott Runyan Pontiac-Buick, 194 W. Va. at 775-76, 461 S.E.2d at 521-22 ).
While Ms. Boone believes the circuit court applied a heightened pleading standard to her complaint, there is no evidence that the circuit court did so. As we explained fully in Mountaineer Fire , West Virginia is a notice pleading state. 244 W. Va. at –––– n. 4, 854 S.E.2d at 883 n. 4. See also Goldstein v. Peacemaker Properties, LLC , 241 W. Va. 720, 730, 828 S.E.2d 276, 286 (2019) ("West Virginia remains a notice-pleading state.").
B. Sufficiency of the Complaint
Next, Ms. Boone contends that her complaint sufficiently set out her aiding and abetting claim under the WVHRA against Activate, so the circuit court erred in granting Activate's motion to dismiss. Activate responds that the circuit court correctly found that the complaint "does not allege Activate had any involvement in Constellium's decision regarding [Ms. Boone's] employment, which occurred after Activate provided [Ms. Boone] her desired medical restriction." We agree with Activate. As noted above, we recently summarized our Rule 12(b)(6) jurisprudence in Mountaineer Fire . In that case, we discussed how a pleading may survive a motion to dismiss, and stated:
In light of the purpose behind the Rules of Civil Procedure, this Court has steadfastly held that, to survive a motion under Rule 12(b)(6), a pleading need only outline the alleged occurrence which (if later proven to be a recognized legal or equitable claim), would justify some form of relief. "The complaint must set forth enough information to outline the elements of a claim or permit inferences to be drawn that these elements exist." Fass v. Nowsco Well Serv., Ltd. , 177 W. Va. 50, 52, 350 S.E.2d 562, 563 (1986). "[A] complaint must be intelligibly sufficient for a circuit court or an opposing party to understand whether a valid claim is alleged and, if so, what it is." Scott Runyan Pontiac-Buick, Inc. , 194 W. Va. at 776, 461 S.E.2d at 522.[ ]
Mountaineer Fire , 244 W. Va. at ––––, 854 S.E.2d at 883-84 (internal footnote omitted).
We have also stated in Williamson v. Harden that
214 W. Va. 77, 585 S.E.2d 369 (2003).
despite the allowance in Rule 8(a) [of the West Virginia Rules of Civil Procedure] that the plaintiff's statement of the claim be "short and plain," a plaintiff may not "fumble around searching for a meritorious claim within the elastic boundaries of a barebones complaint [,]" see Chaveriat v. Williams Pipe Line Co. , 11 F.3d 1420, 1430 (7th Cir. 1993), or where the claim is not authorized by the laws of West Virginia. A motion to dismiss under Rule 12(b)(6) enables a circuit court to weed out unfounded suits.[ ]
Id. at 79, 585 S.E.2d at 371 (quoting Scott Runyan Pontiac-Buick , 194 W. Va. at 776, 461 S.E.2d at 522 ).
Turning to Ms. Boone's complaint, she alleged that Constellium wrongfully terminated her employment in violation of the WVHRA, and that Activate aided and abetted Constellium's actions. Under the WVHRA, it is unlawful "[f]or any employer to discriminate against an individual with respect to ... tenure, terms, conditions or privileges of employment[.]" And under the WVHRA, "[t]he term ‘discriminate’ or ‘discrimination’ means to exclude from, or fail or refuse to extend to, a person equal opportunities because of race, religion, color, national origin, ancestry, sex, age, blindness, disability or familial status and includes to separate or segregate[.]"
Under West Virginia Code § 5-11-9(7), it is also a violation of the WVHRA to aid or abet another's unlawful discriminatory practices. Specifically, that section provides that it shall be unlawful discriminatory practice
(7) For any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to:
(A) Engage in any form of threats or reprisal, or to engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss or to aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in this section [.][ ]
W. Va. Code § 5-11-9(7) (emphasis added).
So, to state a claim under § 5-11-9(7), Ms. Boone must allege that Constellium committed acts prohibited under the WVHRA and that Activate aided and abetted the commission of those acts. We take care to note that the WVHRA does not define the terms "aid" and abet," nor have we had the opportunity to determine what constitutes "aiding and abetting" within the context of the WVHRA. But recently, the United States District Court for the Northern District of West Virginia addressed this precise question. That court found that other state and federal courts addressing the applicable legal standard for aiding and abetting claims under statutory schemes similar to the WVHRA applied the standard set forth § 876(b) of the Restatement (Second) of Torts. The court also noted that this Court adopted the language of § 876(b) for other civil causes of action in Courtney v. Courtney , where we held that "[f]or harm resulting to a third person from the tortious conduct of another, one is subject to liability if he knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself." The district court concluded that this Court would be likely to apply the same standard to aiding and abetting claims under the WVHRA. We agree with this conclusion.
See Matthews v. Eichorn Motors, Inc. , 800 N.W.2d 823, 830 (Minn. Ct. App. 2011) (explaining that "a viable discrimination claim is a prerequisite to a claim of aiding and abetting discrimination" under a similar provision in the Minnesota Human Rights Act); see also Johnson v. BE & K Constr. Co., LLC , 718 F. Supp. 2d 988, 1009 (S.D. Iowa 2010) (holding that the plaintiff's aiding-and-abetting claim under the Iowa Civil Rights Act failed "because the Court ha[d] found no [underlying] unfair or discriminatory practice" by the employer); Strauss v. N.Y. State Dep't of Educ. , 26 A.D.3d 67, 73, 805 N.Y.S.2d 704 (2005) ("Where no violation of the [New York] Human Rights Law by another party has been established, we find that an individual employee cannot be held liable for aiding or abetting such a violation.").
Larry v. Marion Cnty. Coal Co. , 302 F. Supp. 3d 763 (N.D. W. Va. 2018).
Id. at 777.
186 W. Va. 597, 413 S.E.2d 418 (1991), syl. pt. 5.
Other state courts have adopted the Restatement (Second) of Torts § 876(b) when interpreting similar aiding-and-abetting provisions in their anti-discrimination statutes. We now join them and hold that one may be held liable for aiding and abetting a violation of the West Virginia Human Rights Act, W. Va. Code §§ 5-11-1 to - 20, if he or she knows that another person's conduct constitutes a violation of the act and gives substantial assistance or encouragement to the other's conduct.
See e.g., Matthews v. Eichorn Motors, Inc., 800 N.W.2d at 828-29 ; Ellison v. Plumbers & Steam Fitters Union Local 375, 118 P.3d 1070, 1077 (Alaska 2005) (applying Restatement (Second) of Torts when construing a provision that it is "unlawful for a person to aid, abet, incite, compel, or coerce the doing of a[n unlawful discriminatory] act" (quotation omitted)); Tarr v. Ciasulli, 181 N.J. 70, 853 A.2d 921, 928-29 (2004) (applying Restatement (Second) of Torts when construing a provision that it is unlawful for any person "to aid, abet, incite, compel or coerce the doing of any of the acts forbidden" under the New Jersey Law Against Discrimination (quotation omitted)); Fiol v. Doellstedt, 50 Cal.App.4th 1318, 58 Cal.Rptr.2d 308, 312–13 (1996) (applying common-law standard, as reflected in Restatement (Second) of Torts, when construing a provision that it is an unlawful employment practice "[f]or any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden" by the Fair Employment and Housing Act (quotation omitted)).
So, in order to establish an aiding and abetting claim under the WVHRA, Ms. Boone was required to plead facts that could be construed to show that Activate knew Constellium intended to wrongfully terminate her, and that Activate gave substantial assistance or encouragement to Constellium's actions. As the circuit court recognized, Ms. Boone did not plead facts that, if proven true, establish either of those elements.
Ms. Boone alleged that Activate "aided and abetted [Constellium's] refusal to accommodate [Ms. Boone's] disabilities as described [...] by refusing to review [her] medical documentation and by repeatedly issuing erroneous ‘PCRs’ without interacting with [her] regarding her actual accommodation request." The facts alleged in the First Amended Complaint, set out more fully above, establish that Activate issued its first PCR restricting Ms. Boone from working at heights in excess of six feet on June 25, 2018. The same day, after Ms. Boone complained the first PCR was inaccurate, Activate issued a second PCR restricting her from working at heights in excess of ten feet. At this point, Constellium's human resources representative sent Ms. Boone home. The next day, June 26, 2018, Ms. Boone and her union representative obtained a final PCR from Activate that restricted Ms. Boone only from working in the overhead crane. Ms. Boone agrees that this PCR was accurate. On June 27, 2018, Ms. Boone's union representatives attended a meeting with Constellium's CEO and its human resources director, during which Constellium officially declined to accommodate Ms. Boone, instead agreeing to move her to a different department. At the time of the meeting, Constellium had been provided with the accurate PCR restricting Ms. Boone only from working in the overhead crane.
Read plainly, these facts do not establish the elements of an aiding and abetting claim under the WVHRA as they fail to demonstrate that Activate knew Constellium intended to terminate Ms. Boone in violation of the WVHRA or that Activate took some step to assist Constellium in that goal. Rather, these facts only show that, while Activate initially issued two allegedly inaccurate PCRs, it ultimately provided an accurate PCR before the decision was made to terminate Ms. Boone's employment. So, Ms. Boone has not alleged facts that, if proven, could lead to a conclusion that Activate knew of or had any hand in Constellium's decision to terminate her employment, or otherwise gave substantial assistance or encouragement to Constellium's alleged prohibited conduct under the WVHRA.
Stated succinctly, Ms. Boone does not allege that Activate knew Constellium wished to terminate her in violation of the WVHRA (if it did so wish), or that Constellium even knew issuing a PCR restricting Ms. Boone's working height to a certain number of feet would lead to her termination. And, as alleged, the facts demonstrate that Activate issued an accurate PCR restricting Ms. Boone only from working in the overhead crane before Constellium made the official decision to terminate her employment in the casting department. Nothing in the complaint can be construed to establish the elements of an aiding and abetting claim, so dismissal of that claim under Rule 12(b)(6) was proper. So, we affirm the circuit court's order dismissing Ms. Boone's aiding and abetting claim under the WVHRA against Activate.
Even assuming Ms. Boone's employment was terminated prior to Activate's issuance of the corrected PCR on June 26, Ms. Boone still failed to properly plead an aiding and abetting claim because she did not plead facts which allege or lead to the inference that Activate knew Constellium intended to wrongfully terminate her employment in violation of the WVHRA.
IV. CONCLUSION
For the foregoing reasons, we affirm the Circuit Court of Jackson County's September 30, 2019, Order Granting Motion to Dismiss Activate Healthcare, LLC.
Affirmed.
JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to file separate opinions.
Wooton, Justice, dissenting, and joined by Justice Hutchison :
In what is becoming a disturbing trend in this Court's recent jurisprudence, yet another case is being jettisoned at the initial pleading stage on the ground that the complaint fails to state a cause of action. In this case, petitioner Diana Boone's complaint alleged that respondent Activate Healthcare, LLC's ("Activate") actions constituted aiding and abetting in the unlawful discriminatory practices of Ms. Boone's employer, Constellium Rolled Products Ravenswood, LLC ("Constellium"). Aiding and abetting a human rights violation is a well-established statutory cause of action that has been recognized by this Court. See Holstein v. Norandex, Inc. , 194 W. Va. 727, 732, 461 S.E.2d 473, 478 (1995) (cause of action under West Virginia Code § 5-11-9 may be maintained against a co-employee "based upon an allegation that the ... employee aided or abetted an employer engaging in unlawful discriminatory practices."); see also Michael v. Appalachian Heating, LLC , 226 W. Va. 394, 401, 701 S.E.2d 116, 123 (2010) (" W. Va. Code § 5-11-9(7)(A) (1998) (2006) of the West Virginia Human Rights Act establishes three distinct causes of action. More specifically, pursuant to W. Va. Code § 5-11-9(7)(A), unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the state of West Virginia or its agencies or political subdivisions, it is an unlawful discriminatory practice for any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to: ... (3) aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in W. Va. Code § 5–11–9.").
However, until today we have never had occasion to discuss the elements of the cause of action, or what types of evidence might be necessary to prove a claim. Nonetheless, the majority – ready to dispose of the instant matter without giving petitioner the opportunity to send a single interrogatory, request a single document, or take a single deposition – has decided at the initial pleading stage of the case that "[we] know it when [we] see it, and the [circumstances] involved in this case [are] not that." Jacobellis v. Ohio , 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring).
Reasoning backward, the majority has now defined "it" as the language set forth in the Restatement of Torts (Second) § 876(b) (Am. L. Inst. 1979) : "[O]ne is subject to liability if he ... knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself[.]" See Larry v. Marion Cnty. Coal Co. , 302 F. Supp. 3d 763, 776-77 (N.D. W. Va. 2018). I have no quarrel with the majority's adoption of this legal standard for aiding and abetting claims; as noted, this Court has previously adopted the same standard in an analogous context. See Courtney v. Courtney , 186 W. Va. 597, 602-03, 413 S.E.2d 418, 423-24 (1991) (applying Restatement standard to cause of action for infliction of severe emotional distress in the absence of physical injury). However, I vehemently object to the application of a standard that was announced today to a complaint that was filed almost three years ago. Whether intended or not, this action by the majority smacks of result-driven jurisprudence.
It is becoming increasingly clear that any attorney who relies on the unambiguous language of Rule 8 of the West Virginia Rules of Civil Procedure, which provides in relevant part that the complaint "shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief," does so at his or her peril. (Emphasis added). This case aptly illustrates the point: petitioner's nine-page complaint, containing forty-two paragraphs and eight appended exhibits, has been deemed insufficient to satisfy "the principle that a plaintiff pleading a claim for relief need only give general notice as to the nature of his or her claim." Mountaineer Fire & Rescue Equip., LLC v. City Nat'l Bank of W. Va., 244 W. Va. 508, ––––, 854 S.E.2d 870, 883 (2020) ; see also Roth v. DeFeliceCare, Inc. , 226 W. Va. 214, 220 n.4, 700 S.E.2d 183, 189 n.4 (2010) (under West Virginia law, when measuring the sufficiency of a complaint, "all that is required by a plaintiff is ‘fair notice.’ ") (citation omitted); Cantley v. Lincoln Cnty. Comm'n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007) ("A trial court considering a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do substantial justice."). Further, on numerous occasions we have counselled that motions to dismiss under Rule 12(b)(6) are looked upon with disfavor and should rarely be granted. Forshey v. Jackson , 222 W. Va. 743, 749, 671 S.E.2d 748, 754 (2008) ; Ewing v. Bd. of Educ. of Cnty. of Summers , 202 W. Va. 228, 235, 503 S.E.2d 541, 548 (1998) ; John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605–06, 245 S.E.2d 157, 159 (1978).
This guideline for the judicial construction of pleadings is set forth in Rule 8(f) of the West Virginia Rules of Civil Procedure, which explicitly requires that "[a]ll pleadings shall be so construed as to do substantial justice."
With these precedents to guide our resolution of this case, I cannot agree that petitioner's first amended complaint failed to give Activate fair notice of the substance of her claim. Petitioner alleged that when she sought to be excused from training on overhead cranes based on "a previous experience she had had in the cab[,]" she provided her employer a note from her private physician regarding a necessary workplace accommodation. Constellium refused to take the note, instead instructing petitioner to submit the note to Activate, which operated a medical facility at the Constellium site. Thereafter, according to petitioner, Activate repeatedly refused to consult with her, refused to accept documentation, misinterpreted or disregarded the accommodation proposed by the private physician, and prepared a Physical Capacities Report ("PCR") for submission to Constellium that resulted in the company's refusal to offer petitioner any work. Further, when petitioner went back to Activate seeking a corrected PCR, Activate again refused to consult with her and prepared a second document that was still an inaccurate representation of the accommodation petitioner sought and needed. Petitioner alleges that throughout this process, Activate and Constellium consulted and interacted with each other, and that Activate framed the PCR documents to aid and abet Constellium's plan to discriminatorily remove petitioner from her position.
Petitioner alleged that she was qualified to perform the duties of her job, and that male employees with identical restrictions to petitioner's were accommodated by Constellium.
It is instructive to review a case from the United States District Court for the Northern District of West Virginia, McClain v. Applebee's of Va., Inc. , No. 3:10-CV-117, 2010 WL 5464236 (N.D. W. Va. Dec. 30, 2010), where the court reviewed plaintiff's allegation of aiding and abetting workplace discrimination and harassment in the context of ruling on competing motions, plaintiff's motion to remand and defendant's motion to dismiss. Rather than meanly parsing the words of the plaintiff's complaint, the court gave them a generous construction consistent with the "basic policy ... that cases should be decided on their merits," State ex rel. United Mine Workers of Am., Loc. Union 1938 v. Waters , 200 W. Va. 289, 298, 489 S.E.2d 266, 275 (1997). The court wrote that "the plaintiff has a possibility of a right to relief[,]" and that "discovery could reveal that [defendant] ‘aided and abetted’ a person having discharge authority to discharge the plaintiff as ‘reprisal’ for her reports to him of racial and sexual harassment." McClain , 2010 WL 5464236, at *4. Further,
The two motions were intertwined in McClain , as the inclusion of the particular defendant in the complaint, on charges of conspiring with and/or aiding and abetting workplace discrimination, would defeat a claim of fraudulent joinder of a non-diverse party and thus compel remand.
[a]nother possible cause of action could arise from the manner in which [defendant] handled the plaintiff's reports of racial and sexual harassment. By either advising the plaintiff to ignore the harassment or failing to respond at all, [defendant] could be found to have ‘aided and abetted’ a hostile environment of racial or sexual harassment.
Id. Finally, the court concluded that "[e]ach of these possible causes of action represent a glimmer of hope for the plaintiff to obtain relief against [defendant]," id. at *5, which is dispositive in a fraudulent joinder inquiry.
Although I do not advocate for this Court's adoption of the "glimmer of hope" test in reviewing a motion to dismiss for failure to state a cause of action, it is far closer to the letter and spirit of Rule 8(f) and our case law than is the heightened pleading standard which the majority is slowly but surely releasing from its prior constraints. Additionally, the majority seems impervious to the reality of litigation filed by an individual against a governmental unit, a business, or some other organization: at the time a lawsuit is instituted, a plaintiff has no access to the documentation and other evidence in the possession of the defendant that may very well prove his or her case. That is why our rules permit notice pleading, to give the defendant fair notice of the substance of the claim, followed by discovery, to give the plaintiff a fair chance to prove the allegations in the complaint. Cf. Doe v. Logan Cnty. Bd. of Educ. , 242 W. Va. 45, 50, 829 S.E.2d 45, 50 (2019) (allowing plaintiff to go forward with discovery notwithstanding that "the Complaint is not a model of jurisprudential craftsmanship." In the instant case, it is pure sophistry for Activate to claim that the complaint doesn't give fair notice of the gist of petitioner's aiding and abetting claim. Further, it is simply unfair to dismiss petitioner's case before she has had any opportunity to see what evidence might come to light during discovery, to prove her allegations of collusion between Activate and Constellium.
For at least twenty-five years, this Court has required heightened pleadings only in cases "where immunities are implicated." W. Va. State Police, Dep't of Mil. Affs. and Pub. Safety v. J.H. , 244 W. Va. 720, ––––, 856 S.E.2d 679, 695-96 (2021) (citations omitted); Hutchison v. City of Huntington , 198 W. Va. 139, 149-50, 479 S.E.2d 649, 659-60 (1996).
All this being said, petitioner's case against Activate does not appear to be a strong one and might not survive a motion for summary judgment. Nonetheless, we have held that " ‘[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief (citation omitted).’ Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977)." Syl. Pt. 2, Sedlock v. Moyle , 222 W. Va. 547, 668 S.E.2d 176 (2008). Reviewing the allegations in petitioner's first amended complaint, together with the exhibits and the inferences which could reasonably be drawn therefrom, it simply cannot be deemed beyond doubt, as a matter of law, that petitioner could not prove any set of facts sufficient to make this claim a jury issue. To the contrary, petitioner has pleaded a viable cause of action and should be given a fair chance to do discovery and prove her aiding and abetting claim against Activate.
Handwritten notations on the PCR forms appear to show communication between Activate and Constellium, at a time when petitioner alleges that neither entity would speak to her.
Because petitioner has been deprived of that fair chance, I respectfully dissent. I am authorized to state that Justice Hutchison joins in this dissenting opinion.