Boone v. Activate Healthcare, LLC

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term FILED
_______________ June 11, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 19-1007 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________

DIANA BOONE,
Plaintiff Below, Petitioner

v.

ACTIVATE HEALTHCARE, LLC,
Defendant Below, Respondent

____________________________________________________________

Appeal from the Circuit Court of Jackson County
The Honorable Lora Dyer, Judge
Civil Action No. 18-C-96

AFFIRMED

____________________________________________________________

Submitted: March 2, 2021
Filed: June 11, 2021

Walt Auvil, Esq. J. David Fenwick, Esq.
Kirk Auvil, Esq. Stephanie H. Daly, Esq.
The Employment Law Center, PLLC GOODWIN & GOODWIN, LLP
Parkersburg, West Virginia Charleston, West Virginia
Counsel for Petitioner Counsel for Respondent

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
JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to file
separate opinions.
 SYLLABUS BY THE COURT

1. “‘Appellate review of a circuit court’s order granting a motion to

dismiss a complaint is de novo.’ Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-

Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syllabus Point 1, Barber v. Camden

Clark Mem’l Hosp. Corp., 240 W. Va. 663, 815 S.E.2d 474 (2018).

2. “‘The 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.’ Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syllabus

Point 3, Chapman v. Kane Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977).

3. 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.

i
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). 1

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

1
W. Va. Code §§ 5-11-1 to -20.

1
purposes[,]” 2 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.

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

2
Conrad v. ARA Szabo, 198 W. Va. 362, 376, 480 S.E.2d 801, 815 (1996) (citing
W. Va. Code § 5-11-15).

2
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. 3 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. 4 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[.]”

3
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.
4
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.

3
 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. 5 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.

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

5
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.

4
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. 6 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.”

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

6
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.

5
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) 7 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.

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.” 8 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.” 9 Finally, we have noted that

7
W. Va. Code §§ 55-7B-1 to -12.
8
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)).
9
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 (1957)).

6
courts must construe “the factual allegations in the light most favorable to the plaintiff.” 10

With these standards on mind, we proceed to address the arguments on appeal.

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. 11

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:

10
Murphy v. Smallridge, 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996).
11
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).

7
 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 SER 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.” 12 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. 13 As such, Ms.

Boone’s first assignment of error fails. 14

Syl. Pt. 3, Chapman, 160 W. Va. at 530, 236 S.E.2d at 207; see also Syl. Pt. 2,
12

Mountaineer Fire & Rescue Equipment, LLC v. City National Bank of West Virginia —
W. Va. —, 854 S.E.2d 870 (2020).
13
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).
14
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. — W. Va. at — n. 4, 854
8
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.[15]

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.”).

15
Mountaineer Fire, — W. Va. at —, 854 S.E.2d at 883-84 (internal footnote
omitted).

9
We have also stated in Williamson v. Harden 16 that

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.[17]

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[.]” 18 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[.]” 19

16
214 W. Va. 77, 585 S.E.2d 369 (2003).
17
Id. at 79, 585 S.E.2d at 371 (quoting Scott Runyan Pontiac-Buick, 194 W. Va. at
776, 461 S.E.2d 522).
18
W. Va. Code § 5-11-9(1).
19
W. Va. Code § 5-11-3(h).

10
 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[.][20]

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. 21 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

20
W. Va. Code § 5-11-9(7) (emphasis added).
21
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 (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.”).

11
United States District Court for the Northern District of West Virginia addressed this

precise question. 22 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. 23

The court also noted that this Court adopted the language of § 876(b) for other civil causes

of action in Courtney v. Courtney, 24 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.

Other state courts have adopted the Restatement (Second) of Torts § 876(b)

when interpreting similar aiding-and-abetting provisions in their anti-discrimination

statutes. 25 We now join them and hold that one may be held liable for aiding and abetting

22
Larry v. Marion Cnty. Coal Co., 302 F. Supp. 3d 763 (N.D. W. Va. 2018).
23
Id. at 777.
24
186 W. Va. 597, 413 S.E.2d 418 (1991), syl. pt. 5.
25
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, 853 A.2d 921, 928-29 (N.J. 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
12
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.

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,

the New Jersey Law Against Discrimination (quotation omitted)); Fiol v. Doellstedt, 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)).

13
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

14
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. 26 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.

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.

26
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.

15