Currence v. Wolf Run Mining, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ELKINS

KRISTOPHER CURRENCE and

TRINITY CURRENCE,

Plaintiffs,

v. Civil Action No. 2:20-CV-10

(BAILEY)

WOLF RUN MINING, LLC and

ARCH COAL, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING

IN PART DEFENDANTS’ MOTION TO DISMISS

Pending before this Court is Defendants’ Motion to Dismiss, in Part, the Amended

Compiaint [Doc. 21]. The Motion is fully briefed and is ripe for decision. For the reasons

that follow, the Court will grant the Motion in part.

BACKGROUND

As alleged in the Complaint, plaintiff Kristopher Currence was employed by

defendants at the Sentinel Mine Complex in Barbour County, West Virginia.

[Doc. 16 at J 4]. Count | of the Complaint alleges that during his employment there,

defendanis “created and promoted a hostile and offensive working environment that was

permeated with a culture of persistent sexual harassment. ...” [Id. at 6]. Currence was

subjected to multiple acts of sexual assault and groping which he alleges were caused by

defendants’ failure to eliminate hostile working conditions. [Id. at J 9, 37-38]. These

included being punched in the genitals, which caused Currence to suffer permanent

physical injuries. [ld. at ] 38]. Currence seeks damages for violations of the West Virginia

Human Rights Act for “physical injuries, pain and suffering, humiliation, embarassment,

emotional stress, annoyance and inconvenience, and the inability to enjoy life in the

future.” [Id. at ] 33, 40]. In addition, Tiffany Currence, Kristopher Currence’s wife, seeks

damages for related loss of consortium.’ [Id. at J 47].

On July 18, 2020, defendants filed a Motion to Dismiss, in Part, the Amended

Complaint [Doc. 21]. Therein, defendants contend that the sexual harassment and

derivative loss of consortium are barred insofar as they seek compensation for physical

injuries as defendants are immune from such damages under the Workers’ Compensation

Act. [Doc. 21 at 1-2]. Accordingly, they ask that this Court dismiss Count | of the

Complaint to the extent it seeks damages for those injuries. [Id. at 2].

LEGAL STANDARD

A complaint must be dismissed if it does not allege “enough facts to state a claim

to relief that is plausible on its face.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (applying the

Twombly standard and emphasizing the necessity of p/ausibility). When reviewing a

motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the

Court must assume all of the allegations to be true, must resolve all doubts and inferences

in favor of the plaintiff, and must view the allegations in a light most favorable to the

plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999).

When rendering its decision, the Court should consider only the allegations

contained in the Compiaint, the exhibits to the Complaint, matters of public record, and

‘The Court notes that the Complaint also includes Counts for Wrongful

Discharge and Tortious Interference with Employment; those are not addressed here as

the Motion to Dismiss deals only with Count I.

other similar materials that are subject to judicial notice. Anheuser-Busch, Inc. v.

Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995). In Twombly, the Supreme Court, noting

that “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,” /d. at 1964-65, upheld the dismissal of a complaint where the

plaintiffs did not “nudge ] their claims across the line from conceivable to plausible.” fd.

at 1974.

This Court is well aware that “[MlJatters outside of the pleadings are generally not

considered in ruling on a Rule 12 Motion.” Williams v. Branker, 462 F. App’x 348, 352

(4th Cir, 2012). “Ordinarily, a court may not consider any documents that are outside of

the Complaint, or not expressly incorporated therein, unless the motion is converted into

one for summary judgment.” Witthohn v. Fed. Ins. Co., 164 F. App’x 395, 396 (4th Cir.

2006). However, the Court may rely on extrinsic evidence if the documents are central to

a plaintiff's claim or are sufficiently referred to in the Complaint. fd. at 396-97.

ANALYSIS

In analyzing the immunity provided by the Workers’ Compensation Act, the Supreme

Court of Appeals of West Virginia has held that:

The Legislature intended for W.Va.Code § 23-2-6 (1991) to provide

qualifying employers sweeping immunity from common-law tort liability for

negligently inflicted injuries. As this Court succinctly stated in State ex rel.

Frazier v. Hrko, 203 W.Va. 652, 659, 510 S.E.2d 486, 493 (1998), “[w]hen

an employer subscribes to and pays premiums into the Fund, and complies

with all other requirements of the Act, the employer is entitled to immunity for

any injury occurring to an employee and ‘shall not be liable to respond in

damages at common law or by statute.’ W.Va.Code § 23-2-6 [1991].” This

immunity is not easily forfeited. As suggested in Smith v. Monsanto

Company, 822 F.Supp. 327, 330 (S.D.W.Va.1992), “an employer who is

otherwise entitled to immunity under § 23—2-6 may lose that immunity in only

one of two ways: {1) by defaulting in payments required by the Act or

otherwise failing to comply with the provisions of the Act, see W.Va.Code

§ 23—2-8, or (2) by deliberately intending to produce injury or death to the

employee.” (Citation omitted.)

Bias v. Eastern Associated Coal Corp., 220 W.Va. 190, 194, 640 S.E.2d 540, 544

(2006). The Supreme Court of Appeals has likewise examined the scope of immunity

provided by the Workers' Compensation Act when a plaintiff brings claims under the West

Virginia Human Rights Act:

To the extent that {(1)] a worker's injuries are directly and proximately caused

by the unlawful discriminatory acts of his or her employer, and {(2)] are of a

type not otherwise recoverable under the Workers’ Compensation Act, we

hold that the exclusivity provision of the Workers’ Compensation Act is

inapplicable as the Legislature did not intend such injuries to fall within the

types of injuries for which the Workers’ Compensation Act was established.

Thus, while an aggravation or worsening of an employee's physical injury by

the conduct of his/her employer may be compensable under and thus

subject to, the exclusive remedy provided by the Workers’ Compensation

Act, an employee's claim against an employer for violation of The West

Virginia Human Rights Act and resulting non-physical injuries, such as

mental and emotional distress and anguish, directly and proximately resulting

from such violation and not associated with the physical injury or the

aggravation or worsening thereof are not barred by the exclusivity provisions

of the Workers Compensation Act, W.Va. Code § 23-2-6 (2003) and -6a

(1949).

Messer v. Huntington Anesthesia Group, Inc., 218 W.Va. 4, 20-21, 620 S.E.2d 144,

160-161 (2005). Assuming the allegations of the Amended Complaint to be true, the first

requirement, that the injuries at issue in the instant motion were directly and proximately

caused by the unlawful discriminatory acts of his or her employer, is met. Plaintiffs allege

that defendants’ failure to eliminate working conditions in which sexual harassment was

pervasive caused Kristopher Currence to be sexually assaulted and punched in the

genitals by another employee, causing him permanent injuries to his genitals.

At issue here is the second Messer requirement, that the injuries “are of a type not

otherwise recoverable under the Workers’ Compensation Act.” Plaintiffs argue that

Messer is distinguishable from this case. They argue that whereas the injury in Messer

occurred in the performance of job duties, the alleged injuries here occurred as a result of

a pattern of sexual harassment and are therefore not “arising from covered employment”

as required by West Virginia Code § 23-4-1(a). [Doc. 27 at 6]. However, the injuries as

alleged appear to be recoverable under the Workers’ Compensation Act. “[I]njuries

resulting from an assault by a fellow employee are generally compensable.” Geeslin v.

Workmen's Comp. Com'r, 170 W.Va. 347, 354, 294 S.E.2d 150, 157 (1982); see

also Tolliver v. Kroger Co., 201 W.Va. 509, 498 S.E.2d 702 (1997) (allegation that

plaintiff was physically assaulted by supervisor was not enough to satisfy a pleading of

deliberate intention under W.Va. Code § 23-4-2). Accordingly, this Court finds that the

physical injuries to Kristopher Currence resulting from conduct to be compensable under

the Workers’ Compensation Act. Thus, defendants are immune from liability for such

damages, and this Court will dismiss that portion of Count |. It is clear from Messer, and

defendants do not dispute, that this immunity does not extend to nonphysical injuries

sustained as a result of violations of the West Virginia Human Rights Act.

Nordoes the immunity extend to plaintiff Trinity Currence’s loss of consortium claim.

As above, the complaint alleges that these injuries were caused by the unlawful

discriminatory acts of defendants; however, unlike Kristopher Currence’s physical injuries,

the alleged loss of consortium is not recoverable under the Workers’ Compensation Act.

See Henry v. Benyo, 203 W.Va. 172, 179, 506 S.E.2d 615, 622 (1998) (“losses that are

not covered by workers’ compensation” include loss of consortium); Bias v. Eastern

Associated Coal Corp., 220 W.Va. 190, 208, 640 S.E.2d 540, 558 (2006) (Davis, C.J.,

concurring) ("Workers’ compensation has never been intended to make the employee

whole—it excludes benefits . . . for loss of consortium"). Accordingly, this Court does not

dismiss any portion of Count | relating to Trinity Currence’s loss of consortium.

CONCLUSION

Upon consideration of the above, Defendants’ Motion to Dismiss, in Part, the

Amended Complaint [Doc. 21] is hereby GRANTED IN PART. The portion of Count | of

the Complaint which seeks damages for Kristopher Currence’s physical injuries is

DISMISSED.

Itis so ORDERED.

DATED: July@]_, 2020.

UN STATES DISTRICT JUDGE