WEST VIRGINIA RECORD

CHARLESTON – A man who claims he suffered a torn rotator cuff after his boss allegedly attacked him wants to see his lawsuit remain in Kanawha Circuit Court.

But defendants Sperry Rail and Ron Hodgson say plaintiff Steven P. Miller's complaint belongs in U.S. District Court, where they removed it Nov. 13.

Miller originally filed his lawsuit in Kanawha Circuit Court over allegations that Hodgson, his boss, abused him, which caused him to file a worker's compensation claim, which resulted in Miller's termination from his job at Sperry Rail.

According to Miller's complaint, Hodgson attacked Miller after Miller reported a problem with a test carriage that he noticed while working as an assistant operator on Dec. 6, 2007.

"When Plaintiff attempted to engage Defendant Ron Hodgson to discuss an issue related to the test carriage, Defendant Hodgson, without justification or provocation, verbally and physically assaulted Plaintiff," the suit states.

After the incident, Miller reported Hodgson's attack to CSX police and to supervisors at Sperry Rail, the complaint says.

"Plaintiff advised Sperry management that he feared for his own safety and was suffering severe anxiety as a result of the prior incidents," the suit states. "Sperry management ordered Plaintiff to take vacation from his job, after which, plaintiff returned to his Ohio residence. Plaintiff was advised by Sperry supervisors to call in the following week."

On Dec. 8, 2007, Miller claims doctors at Dunlap Memorial Hospital treated him for an anxiety reaction related to the incident with Hodgson. Doctors ordered Miller to follow up with his local physician as soon as possible.

So, on Dec. 11, 2007, Miller visited a local physician for assessment of Miller's left chest and left arm pain, according to the complaint. And on Dec. 17, 2007, Sperry referred Miller to a psychologist, who diagnosed him with an adjustment disorder with mixed anxiety and depressed mood and with an occupational problem due to Hodgson's mistreatment, the suit states. The psychologist recommended Miller remain off work until Jan. 7, 2008, the complaint says.

Miller claims he returned to the psychologist on Dec. 17, 2007, and reported increased stress because Sperry had refused to file his worker's compensation claim and had not paid him for his time off the job.

Because Sperry would not file Miller's worker's compensation claim, he decided to file his own claim on Feb. 19, 2008. But during the claim's pendency, Sperry fired Miller on March 31, 2008, according to the complaint.

After his termination, Miller claims his physician and orthopedic surgeon determined that Miller suffered from a left rotator cuff tear, chronic impingement syndrome, glenohumeral synovitis and degenerative arthritis of the left glenohumeral joint.

"Plaintiff's orthopedic surgeon opines that the left shoulder conditions he treated surgically were caused by the incident of December 6, 2007," the complaint says.

In his complaint, Miller alleges Sperry wrongfully terminated him and discriminated against him. He alleges assault, negligent hiring, deliberate intent, negligence, intentional infliction of emotional distress and negligent infliction of emotional distress.

In their answer to Miller's complaint, the defendants deny all his allegations against them and contend the lawsuit should be dismissed, saying any damages Miller incurred were his own fault.

"Plaintiff lacks a good faith factual basis for his claims in whole or in part, thereby entitling Defendants to an award of attorney fees, costs, and expenses incurred in defending this action," the defendants' answer says.

In his eight-count complaint, Miller seeks compensatory damages, plus pre- and post-judgment interest, attorney's fees, costs and other relief the court deems just. In addition, he seeks punitive damages.
In their answer, the defendants want the case dismissed and the court to award them costs and other relief it deems just.

The defendants removed the court to U.S. District Court for the Southern District of West Virginia.

A case can be filed in district court for one of two reasons. Either, it must involve defendants and plaintiffs who are residents of different states and the plaintiff must be seeking more than $75,000 or the controversy in the case must involve a question arising from federal law.

The defendants contend both instances apply to Miller's case.

"The court has original jurisdiction of this action and this action is therefore removable, given that the parties are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs," the defendants' response says. "In addition, the court has original jurisdiction of this action and this action is therefore removable, given a federal question exists. Plaintiff alleges a violation of the Federal Occupational Safety and Health Act."

But Miller argues that if the district court allowed his complaint to remain there, it would create unnecessary judicial inefficiency and inappropriate confusion. He claims the defendants are not allowed to remove the case to district court because law prohibits the removal of a state workers' compensation claim.

"Because Count One of Plaintiff's complaint alleges a claim for wrongful and discriminatory discharge in retaliation for the exercise of statutory rights under the West Virginia Workers' Compensation Act, the provisions of 28 USC 1445(c) mandate remand," the suit states.

In addition, even though Miller did allege a violation of the federal Occupational Safety and Health Act, the allegation is just one example of policies that prohibit violence in the workplace.

"To decide plaintiff's case, a court will not have to pass upon the validity, construction, or effect of OSHA," Miller's objection to the remand states. "The rights claimed by Plaintiff will not be defeated by one construction of the statute and sustained by the opposite construction."

The defendants fought back and stand firm in their belief the case belongs in district court.

They say that because Miller's retaliation claims do not involve interpretation of West Virginia's workers' compensation act, the complaint should not be remanded to circuit court.

Although the defendants admit that normally complaints involving workers' compensation claims are not allowed to be removed to district court, the workers' compensation provision should not apply to Miller's case because his complaint raises a federal question.

"Whether the Plaintiff's claim falls within the meaning of Section 1445 is immaterial, as the Complaint raises a question of federal law," the defendants' response states. "The prohibition against removing workers' compensation claims does not apply when the Court otherwise has federal question jurisdiction. Here, federal law, specifically the Occupational Safety and Health Act, is an essential element of the Plaintiff's deliberate intent claim."

Even if the court determines that Miller's complaint should be remanded to district court, it should allow the defendants to remove Miller's retaliation allegation and exercise the remaining allegations in district court.

"Seven of these claims involve an alleged between the Plaintiff and Hodgson, that occurred sometime early December," the defendants' response states. "The retaliation claim, however, involves the Plaintiff's termination in March 2008, allegedly for seeking workers' compensation benefits. The Plaintiff's may prevail on the retaliation claim, regardless of the outcome on the remaining allegations. Thus, severance of that claim – creating two separate causes of action – will protect the Defendants from unfair prejudice, allow this Court to maintain jurisdiction over the remaining claims, and further the interests of judicial economy, all while only minimally affecting the Plaintiff."

Paul K. Reese of Warner Law Offices in Charleston will be representing Miller.

Ashley C. Pack of Dinsmore and Shohl in Charleston will be representing the defendants.

U.S. District Court case number: 2:09-cv-1246