Legal Memorandum: Statutory Retaliatory Discharge Claim

Issue: Under U.S. law and West Virginia law, does a claim for statutory retaliatory discharge fall within the exclusivity provisions of the Workers’ Compensation Act and hence, is not subject to removal?

Area of Law: Workers Compensation Insurance
Keywords: Statutory retaliatory discharge; Workers compensation laws; Exclusivity provisions
Jurisdiction: West Virginia
Cited Cases: 161 W. Va. 695; 583 F. Supp. 1031
Cited Statutes: W. Va. Code § 23‑5A‑1; . Va. Code § 23‑4‑2
Date: 11/01/1007

The United States District Court for the Southern District of West Virginia has also addressed the issue of statutory retaliatory discharge within the context of the workers’ compensation laws.  In Thomas v. Kroger Co., 583 F. Supp. 1031 (S.D W. Va. 1984),  the court held that the plaintiff’s claim for retaliatory discharge for filing a workers’ compensation claim could not be removed since it was based on W. Va. Code § 23‑5A‑1, prohibiting such retaliatory discharges.  Id. at 1037.  The court found that there was no such action at common law and arose only on the basis of the statute, which meant that it arose under the workmen’s compensation laws of the state, and was an integral and essential component of the workmen’s compensation scheme.  Id.  The court, however, went on to elaborate: 

It is important to note that it is the statute itself which creates Plaintiff’s cause of action for retaliatory discharge . . . The origin of the instant Plaintiff’s cause of action stands in contrast to an injured employee’s cause of action for an injury received as a result of an employer’s intentional or willful, wanton and reckless misconduct under W. Va. Code § 23‑4‑2 and Mandolidis v. Elkins Industries, Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978).  W. Va. Code § 23‑4‑2 and Mandolidis do not create a cause of action for an injured employee, but rather preserves […]

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