149 F. Supp. 3d 724
S.D.W. Va2016Background
- Vandevander worked for Verizon ~8 years and sought leave for spouse’s pregnancy-related visits and to care for his son’s serious medical needs, but Verizon allegedly directed him to use vacation and failed to inform/authorize FMLA leave.
- Verizon told him he did not qualify for FMLA because he and his fiancée were not married; Verizon repeatedly declined FMLA leave for hospital visits.
- Verizon terminated Vandevander on March 20, 2015 without explanation.
- Vandevander sued asserting six claims: FMLA interference and retaliation (federal), West Virginia common-law retaliatory discharge (Count III), negligent infliction of emotional distress (Count IV), intentional infliction of emotional distress (Count V), and a WPCA claim (Count VI).
- Verizon removed to federal court and moved to dismiss Counts III–V under Rule 12(b)(6), arguing the FMLA provides the exclusive remedy and preempts state-law claims; it also asked to strike emotional and punitive damages.
- The court denied the motion as to Counts III–V, holding the FMLA does not preempt these state-law claims and that the FMLA’s policies can supply a West Virginia public-policy basis for a Harless retaliatory discharge claim; emotional and punitive damages survive as available under the surviving state-law claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FMLA preempts state-law claims arising from same facts | Vandevander says state tort/retaliation claims may proceed alongside FMLA claims | Verizon argues FMLA is the exclusive remedy and preempts state claims | FMLA does not preempt state-law claims; court denies dismissal on preemption grounds |
| Whether West Virginia common-law retaliatory discharge can be based on violation of FMLA policies | Vandevander: FMLA’s notice/leave rules reflect substantial public policy permitting a Harless claim | Verizon: WV courts would not allow a common-law claim when the policy source is federal and statutory remedies exist | Court: FMLA policies can constitute a substantial WV public policy; Harless claim survives; no certification to state court needed now |
| Whether negligent infliction of emotional distress (NIED) is preempted by FMLA | Vandevander asserts state tort claim survives | Verizon argues FMLA preempts NIED | Court: FMLA does not preempt NIED; claim survives |
| Whether intentional infliction of emotional distress (IIED) is preempted by FMLA and whether emotional/punitive damages are proper | Vandevander seeks emotional and punitive damages under state claims | Verizon argues FMLA provides no emotional/punitive damages and those remedies therefore should be stricken | Court: Emotional and punitive damages remain available to the extent supported by surviving state-law claims; FMLA’s lack of those remedies does not preempt state remedies |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (standards for pleading; plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must contain plausible factual allegations)
- Harless v. First Nat’l Bank, 162 W. Va. 116, 246 S.E.2d 270 (recognizing WV common-law retaliatory discharge for violation of substantial public policy)
- Williamson v. Greene, 200 W. Va. 421, 490 S.E.2d 23 (defining sources and clarity required for WV public-policy retaliatory discharge claims)
- Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183 (recognizing that statutory and common-law claims can coexist)