1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Jay M. Potter, 

Plaintiff below, Petitioner, 

vs.) No. 21-0009 (Kanawha County 19-C-686) 

Bailey & Slotnick, PLLC, and 

Charles R. Bailey, 

Defendants below, Respondents. 

MEMORANDUM DECISION 

Petitioner, Jay M. Potter, self-represented litigant, appeals the Circuit Court of 

Kanawha County’s December 10, 2020 order dismissing his complaint against 

Respondents, Bailey & Slotnick, PLLC, (“B&S”) and Charles R. Bailey, pursuant to Rule 

12(b)(6) of the West Virginia Rules of Civil Procedure.1 Respondents, by counsel Michael 

J. Farrell and J. Ben Shepard, filed a response to which petitioner filed a reply. 

After considering the parties’ written and oral arguments, as well as the appendix 

record and the applicable law, this Court finds no substantial question of law. Accordingly, 

this case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of 

Appellate Procedure [eff. 2010] and is appropriate for a memorandum decision rather than 

an opinion. For the reasons expressed below, the decision of the circuit court is reversed, 

and this case is remanded to the circuit court for further proceedings consistent with this 

decision. 

Mr. Potter is an attorney. When he joined B&S in August 2012, he was 65 years 

old and he brought with him several cases. He claims that Mr. Bailey, a managing member 

of B&S, lured him to the firm by promises that he would have opportunities to obtain new 

cases and that he would not be relegated to assisting other attorneys. Nevertheless, 

according to Mr. Potter, he found himself operating as Mr. Bailey’s assistant. These 

circumstances allegedly prompted him to leave B&S in July 2014, taking his cases with 

him to another firm. 

Mr. Potter was unhappy with his new firm and, in September 2014, he began 

exploring a return to B&S. Mr. Potter claims that Mr. Bailey said his prior experience at 

1 Rule 12(b)(6) authorizes a party to file a motion to dismiss for “failure to state a 

claim upon which relief can be granted[.]” W. Va. R. Civ. P. 12(b)(6) [eff. 1998]. 

FILED

May 27, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

B&S had been a “mistake[.]” According to Mr. Potter, Mr. Bailey expressed to him a 

seemingly “genuine commitment” that, if Mr. Potter returned with his cases, Mr. Potter (a)

would have the opportunities he had expected during his previous experience at B&S, (b) 

would have new cases assigned to him, (c) would not be relegated to assisting Mr. Bailey, 

(d) would not have to work on cases that did not appeal to him, and (e) would be paid a 

salary regardless of his productivity. 

Mr. Potter claims, however, that Mr. Bailey failed to disclose his actual intentions, 

which were to use Mr. Potter primarily as his assistant; to elevate other, younger attorneys 

and eventually shift Mr. Potter to a non-salaried position; and to allocate to himself the 

most lucrative case that Mr. Potter brought with him so that Mr. Bailey would receive a 

revenue share from Mr. Potter’s work.

Mr. Potter asserts that he relied on Mr. Bailey’s promises and returned to B&S in 

September 2014 at the age of 68. He says that he worked on his own cases for less than a 

month before he was asked to resume assisting Mr. Bailey. Mr. Potter claims that no new 

cases were assigned to him and that, in early 2015, B&S segregated its offices by age. He 

also claims that B&S excluded him from an in-house seminar in 2015 designed to develop 

additional business. Mr. Potter alleges that when he expressed concern about his role at 

B&S, Mr. Bailey professed concern that Mr. Potter might retire while Mr. Bailey still 

needed his help. 

In September 2015, Mr. Potter allegedly requested a meeting with B&S equity 

members Jason Hammond and John Fuller. During the meeting, Mr. Potter objected that 

he had returned to B&S based on assurances that he would have opportunities to acquire 

new cases and that his primary role would not be assisting Mr. Bailey or other attorneys. 

He also sought to be “integrated” into the firm’s work so that he would not become 

unproductive. According to Mr. Potter, Mr. Hammond and Mr. Fuller encouraged him to 

“be more receptive to the role of assisting Mr. Bailey.”

Mr. Potter alleges that he grew “increasingly vocal” about B&S’s failure to assign 

new cases to him or afford him opportunities to acquire them. In December 2015, Mr. 

Bailey offered to send Mr. Potter to CLE seminars to help him acquire new business. Mr. 

Potter declined the offer, reasoning that the plan was not likely to work, that he had received 

better assurances before he returned to the firm, and that he already had the opportunity to 

attend CLE seminars.

Mr. Potter alleges that Mr. Bailey became increasingly concerned that Mr. Potter 

might retire and began making “ageist” comments, such as referring to Mr. Potter’s “grayhaired” legal advice, saying that a certain judge is “older than Jay [Potter,]” and mocking 

Mr. Potter for being an “artifact.”
3

In March 2016, Mr. Potter learned that his most lucrative case had been assigned to 

Mr. Bailey. Mr. Potter alleges that this assignment increased his frustration with B&S 

using him as a “support system for Mr. Bailey.” He claims that when he expressed this 

frustration to Mr. Bailey, Mr. Bailey agreed to begin assigning cases to Mr. Potter, only to 

withdraw this promise a day later.

According to Mr. Potter, Mr. Bailey sought his help in January 2017 with 

preparation for trial in a “high-profile” case. At this time, Mr. Bailey allegedly informed 

Mr. Potter that other shareholders were concerned about Mr. Potter’s productivity. Mr. 

Bailey, however, allegedly professed that he did not share this concern, but he claimed that 

the other shareholders’ concern would be allayed if Mr. Potter resumed helping Mr. Bailey. 

Mr. Potter said he shared the shareholders’ concern and attributed his lack of productivity 

to B&S’s failure to assign new cases to him.

Mr. Potter claims that in May 2017, he advised B&S that he might have cancer and 

that in June 2017 he advised Mr. Bailey that the “primary” cases he had brought with him

to B&S would soon resolve. Mr. Potter also claims that in June 2017, B&S “closed its 

file” on the “high-profile” case on which he had been providing substantial assistance to 

Mr. Bailey. 

In July 2017, Mr. Potter asserts that Mr. Bailey e-mailed him to complain about his 

alleged lack of productivity. Mr. Potter claims that Mr. Bailey offered him a contractual, 

non-salaried position, like that of another older attorney at the firm, whereby Mr. Potter

would earn a share of revenue from his own cases or cases where he assisted other 

attorneys. In reply, Mr. Potter allegedly said that the only thing he had in common with 

the other attorney was age, and he reminded Mr. Bailey of his promise that Mr. Potter’s 

compensation would not be tied to his productivity. Mr. Potter asked what would happen 

if he declined the offer. According to Mr. Potter, Mr. Bailey responded that, if Mr. Potter

declined the offer, he would be terminated. Mr. Potter avers that he found out soon 

afterward that he had cancer and that he accepted Mr. Bailey’s offer in order to retain his 

health insurance.

However, Mr. Potter subsequently obtained his own insurance and a one hundred 

percent service-connected disability rating from the United States Department of Veterans 

Affairs. He alleges that he met with Mr. Bailey, Mr. Hammond, and Mr. Fuller in late 

January 2018, and that he advised them that he was capable of working, notwithstanding 

his cancer, and that he asked them what work he could expect to have in the future. He

claims that he received no response. However, in February 2018, he accepted a request to 

begin assisting Mr. Hammond. Mr. Potter alleges that, in the months that followed, his 

former work was assigned to younger attorneys and that the firm hired another younger 

attorney. He also claims that, over a four-year period, B&S promoted twelve substantially 

younger attorneys within the firm.
4 

According to Mr. Potter, he received no pay for his work assisting Mr. Hammond 

and, in October 2018, he refused to do more work for Mr. Hammond. In December 2018, 

Mr. Potter resigned. 

Mr. Potter sued both B&S and Mr. Bailey in July 2019, in a detailed, 46-page 

complaint. The complaint alleges that Mr. Potter is a member of a protected class by virtue 

of his age, and the complaint’s five counts charge the defendants with fraud, breach of 

contract, age discrimination (failure to provide equal opportunity), age discrimination 

(unlawful threats); and age discrimination (constructive discharge). 

B&S and Mr. Bailey subsequently moved to dismiss the complaint. After a hearing,

the circuit court granted the motion, dismissing all counts of the complaint with prejudice. 

Mr. Potter appeals from the circuit court’s December 10, 2020 order granting the motion 

to dismiss. 

In this appeal, Mr. Potter challenges the circuit court order that granted a motion to 

dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Our 

“‘[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is

de novo.’ Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 

W. Va. 770, 461 S.E.2d 516 (1995).” Syl. Pt. 1, Mountaineer Fire & Rescue Equip., LLC

v. City Nat’l Bank of W. Va., 244 W. Va. 508, 854 S.E.2d 870 (2020). We apply the same 

standard of review when we are called upon to interpret a rule of procedure. Syl. Pt. 4, 

Keesecker v. Bird, 200 W. Va. 667, 490 S.E.2d 754 (1997) (“An interpretation of the West 

Virginia Rules of Civil Procedure presents a question of law subject to a de novo review.”). 

With this standard of review in mind, we will consider Mr. Potter’s appeal.

Mr. Potter argues that the circuit court erred by dismissing his complaint, and he 

attributes this error to the circuit court’s failure to follow our “standards” for granting

motions to dismiss under Rule 12(b)(6). In particular, he faults the circuit court for failing 

to view the facts alleged in the complaint in the light most favorable to him and for failing 

to accord to him the benefit of all inferences that could have been drawn from those alleged 

facts. B&S and Mr. Bailey argue that the circuit court properly dismissed the complaint. 

After careful review of the complaint,2 we agree with Mr. Potter that dismissal pursuant to 

Rule 12(b)(6) was error. 

Because Mr. Potter has invoked our standards for granting a motion to dismiss, we 

begin by reviewing Rule 12(b)(6) and the principles that govern its application. Rule 

12(b)(6) authorizes a party to file a motion to dismiss for “failure to state a claim upon 

which relief can be granted” in lieu of filing a responsive pleading to a claim, counterclaim, 

cross-claim, or third-party claim. Id. This procedural device provides a means of “test[ing] 

2

 “Our review of the case is limited to the sufficiency of the complaint[.]” Scott 

Runyan Pontiac-Buick, 194 W. Va. at 776 n.7, 461 S.E.2d at 522 n.7. 
5 

the sufficiency of the complaint[,]” Cantley v. Lincoln Cnty. Comm’n, 221 W. Va. 468, 

470, 655 S.E.2d 490, 492 (2007) (per curiam), and exists to “weed out unfounded suits[,]”

Scott Runyan Pontiac-Buick, 194 W. Va. at 776, 461 S.E.2d at 522. 

However, “[a] court should not dismiss a case simply because it believes it is 

unlikely that the plaintiff will prevail.” McGinnis v. Cayton, 173 W. Va. 102, 104, 312 

S.E.2d 765, 768 (1984). The question is not whether a plaintiff has “a strong case, but 

rather whether [he or she] ha[s] any case.” Id. at 105, 312 S.E.2d at 768 (emphasis added). 

West Virginia law reflects a “preference . . . to decide cases on their merits[.]” Yurish v.

Sinclair Broad. Grp., Inc., 246 W. Va. 91, ___, 866 S.E.2d 156, 161 (2021) (quoting 

Sedlock v. Moyle, 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008) (per curiam)). 

Therefore, we require “[a] trial court considering a motion to dismiss under Rule 12(b)(6) 

[to] liberally construe the complaint so as to do substantial justice.” Cantley, 221 W. Va. 

at 470, 655 S.E.2d at 492 (emphasis added). Indeed, we have stated that “motions to 

dismiss are viewed with disfavor,” and we have “counsel[ed] lower courts to rarely grant 

such motions.” Forshey v. Jackson, 222 W. Va. 743, 749, 671 S.E.2d 748, 754 (2008). 

 

When a party files a motion to dismiss under Rule 12(b)(6), “the pleading party has 

no burden of proof. Rather, the burden is upon the moving party to prove that no legally 

cognizable claim for relief exists.” Mountaineer, 244 W. Va. at 520, 854 S.E.2d at 882. 

The “court reviewing the sufficiency of a complaint . . . should presume all of the plaintiff’s 

factual allegations are true, and should construe those facts, and inferences arising from 

those facts, in the light most favorable to the plaintiff.” Id. A plaintiff “is not required to 

establish a prima facie case at the pleading stage.” Id. at 522, 854 S.E.2d at 884. On the 

contrary, “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.” Mountaineer, 244 W. Va. at 521, 854 S.E.2d at 883. Dismissal of a 

complaint under Rule 12(b)(6) is inappropriate “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.” 

Syl. Pt. 3, in part, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977)

(emphasis added).3

 

3

 Although this standard of pleading provides latitude, we would remind parties and 

their counsel that it is still a standard. As we stated in Mountaineer, “our simplified 

pleading standard is not an excuse for ‘carelessly drafted or baseless pleading[s].’ Sticklen[ 

v. Kittle], 168 W. Va. [147,] 164, 287 S.E.2d [148,] 157-58 [(1981)].” Mountaineer, 244 

W. Va. at 522, 854 S.E.2d at 884 (alteration in original). We remain committed to the view 

that 

(continued . . .) 
6 

In this case, the circuit court dismissed all counts of Mr. Potter’s complaint, with 

prejudice, pursuant to Rule 12(b)(6). After careful review, we believe that dismissal was 

unwarranted. 

The circuit court dismissed Mr. Potter’s allegation of fraud (Count I) because it 

found that Mr. Potter’s claim “accrued no later than January 2017[.]” Mr. Potter filed his 

complaint in this matter on July 11, 2019, and no party disputes that the two-year statute 

of limitations set forth in West Virginia Code § 55-2-12 (eff. 1959) applies to a cause of 

action for fraud. 4 The question before us is whether the circuit court correctly determined, 

at the Rule 12(b) dismissal stage, that the statute of limitations for Mr. Potter’s fraud claim 

began to run no later than January 2017.

We established the analytical framework for assessing whether an action is barred 

by the applicable statute of limitations in Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 

255 (2009). According to Dunn, 

[a] five-step analysis should be applied to determine 

whether a cause of action is time-barred. First, the court should 

identify the applicable statute of limitation for each cause of 

“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.” Scott Runyan Pontiac-Buick, 

Inc., 194 W. Va. at 776, 461 S.E.2d at 522. 

Newton v. Morgantown Mach. & Hydraulics of W. Va., Inc., 242 W. Va. 650, 653, 838 

S.E.2d 734, 737 (2019). 

4

 West Virginia Code § 55-2-12 provides that 

[e]very personal action for which no limitation is 

otherwise prescribed shall be brought: (a) Within two years 

next after the right to bring the same shall have accrued, if it be 

for damage to property; (b) within two years next after the right 

to bring the same shall have accrued if it be for damages for 

personal injuries; and (c) within one year next after the right to 

bring the same shall have accrued if it be for any other matter 

of such nature that, in case a party die, it could not have been 

brought at common law by or against his personal 

representative. 
7 

action. Second, the court (or, if questions of material fact exist, 

the jury) should identify when the requisite elements of the 

cause of action occurred. Third, the discovery rule should be 

applied to determine when the statute of limitation began to run 

by determining when the plaintiff knew, or by the exercise of 

reasonable diligence should have known, of the elements of a 

possible cause of action, as set forth in Syllabus Point 4 of 

Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 

(1997). Fourth, if the plaintiff is not entitled to the benefit of 

the discovery rule, then determine whether the defendant 

fraudulently concealed facts that prevented the plaintiff from 

discovering or pursuing the cause of action. Whenever a 

plaintiff is able to show that the defendant fraudulently 

concealed facts which prevented the plaintiff from discovering 

or pursuing the potential cause of action, the statute of 

limitation is tolled. And fifth, the court or the jury should 

determine if the statute of limitation period was arrested by

some other tolling doctrine. Only the first step is purely a 

question of law; the resolution of steps two through five will 

generally involve questions of material fact that will need to be 

resolved by the trier of fact.[5]

225 W. Va. at 46, 689 S.E.2d at 258, syl. pt. 5. The circuit court focused its analysis on 

the third step, which asks “when the plaintiff knew, or by the exercise of reasonable 

diligence should have known, of the elements of a possible cause of action . . . .” Id. 

According to the circuit court, Mr. Potter knew or reasonably should have known that Mr. 

Bailey’s alleged promises were false in October 2014, when he was asked to resume 

assisting Mr. Bailey; in March 2015, when he was passed over for participation in the 

business development seminar; in September 2015, when he had been assigned no new 

cases for a year; or at the latest in January 2017, when Mr. Bailey mentioned other 

shareholders’ concern about his productivity. 

5

 Syllabus Point 4 of Gaither, 199 W. Va. 706, 487 S.E.2d 901, provides that 

[i]n tort actions, unless there is a clear statutory 

prohibition to its application, under the discovery rule the 

statute of limitations begins to run when the plaintiff knows, or 

by the exercise of reasonable diligence, should know (1) that 

the plaintiff has been injured, (2) the identity of the entity who 

owed the plaintiff a duty to act with due care, and who may 

have engaged in conduct that breached that duty, and (3) that 

the conduct of that entity has a causal relation to the injury. 
8 

The facts and circumstances alleged by Mr. Potter raise questions about when he 

knew, or reasonably should have known, that the promises that allegedly enticed him to 

join B&S were false.6 No doubt B&S and Mr. Bailey will seek to explore those questions 

in discovery. However, Dunn expressly provides that “when the plaintiff knew, or by the 

exercise of reasonable diligence should have known, of the elements of a possible cause of 

action” is a matter that “generally involve[s] questions of material fact that will need to be 

resolved by the trier of fact.” Id. at 46, 689 S.E.2d at 258, syl. pt. 5, in part (emphasis 

added). We believe that a jury might conclude that Mr. Potter did not know, and in the 

exercise of reasonable diligence should not have known, that the alleged promises were 

false until July 13, 2017, when Mr. Bailey allegedly informed Mr. Potter that B&S would 

be offering him new terms of employment, or perhaps until July 14, 2017, when Mr. Bailey 

allegedly informed Mr. Potter that he would be terminated if he refused B&S’s offer. 

We have stated that “[t]he task of a court in ruling on a Rule 12(b)(6) motion ‘is 

merely to assess the legal feasibility of the complaint, not to assay the weight of the 

evidence which might be offered in support thereof.’” Mountaineer, 244 W. Va. at 520, 

854 S.E.2d at 882 (quoting Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000)). It is true that, 

in many cases, the date on which a plaintiff has the requisite knowledge necessary to assert 

a claim is evident. In Forshey, the Court noted that to adjudicate an affirmative defense—

which includes the statute of limitations—on a motion to dismiss, “[t]wo conditions must 

be met . . . .” Id. at 746 n.8, 671 S.E.2d at 751 n.8 (quoting Cleckley, Davis, & 

Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[2], at 

349). Those are, first, that “the facts that establish the defense must be definitively 

ascertainable from the allegations of the complaint” and, second, that “the facts so gleaned 

must conclusively establish the affirmative defense.” Ibid. (emphasis added). However, 

assuming that the allegations in the complaint are true and making all inferences in Mr. 

Potter’s favor, he may yet demonstrate that he did not know, and in the exercise of 

reasonable diligence should not have known, that the alleged promises were false until July 

13, 2017. For that reason, we find that the circuit court improperly weighed the evidence, 

6

 We have held that 

[t]he essential elements in an action for fraud are: “(1) 

that the act claimed to be fraudulent was the act of the 

defendant or induced by him; (2) that it was material and false; 

that plaintiff relied upon it and was justified under the 

circumstances in relying upon it; and (3) that he was damaged 

because he relied upon it.” Horton v. Tyree, 104 W.Va. 238, 

242, 139 S.E. 737 (1927). 

Syl. Pt. 1, Lengyel v. Lint, 167 W. Va. 272, 280 S.E.2d 66 (1981) (emphasis added). 
9 

at the Rule 12(b)(6) dismissal stage of the proceeding, when it found that Mr. Potter’s fraud 

claim is barred by the statute of limitations. 

The circuit court dismissed Mr. Potter’s breach of contract claim (Count II) because 

it found that Mr. Potter failed to allege an agreement with Mr. Bailey (as opposed to B&S), 

that Mr. Potter was merely an at-will employee whose employment could be terminated at 

any time, and that Mr. Potter waived any breach of contract by remaining at B&S after 

B&S offered him employment on different terms.

7

 We find that in these matters, as well, 

the circuit court improperly dismissed Mr. Potter’s breach of contract claim. 

Although we agree that the complaint describes an employment relationship 

between Mr. Potter and B&S “of indefinite duration” and that such employment contracts

“may be terminated at any time by either party to the contract[,]” Syl. Pt. 1, in part, Suter 

v. Harsco Corp., 184 W. Va. 734, 735, 403 S.E.2d 751, 752 (1991) (quoting Syl. Pt. 2, in 

part, Wright v. Standard Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955)), 

we cannot agree that these factors demonstrate that “B&S did not breach any enforceable 

obligation owed to [Mr. Potter] as a matter of law.” The complaint alleges promises to Mr. 

Potter that B&S breached before it unilaterally changed the terms of his employment and 

threatened him with termination, such as the promise that B&S would assign new cases to 

him and the promise that he would not be relegated to assisting Mr. Bailey. While Mr. 

Potter’s breach of contract claim may or may not survive at the summary judgment stage, 

at this stage of the proceeding we must assume the truth of the factual allegations contained 

in the complaint in our review of the circuit court’s dismissal of the claim. In doing so, we 

do not believe that dismissal of the breach of contract claim is proper pursuant to Rule 

12(b)(6). 

7 With regard to the dismissal of Mr. Potter’s breach of contract claim against Mr. 

Bailey, it is clear that such dismissal was unwarranted pursuant to Rule 12(b)(6). “Rule 

12(b)(6) is not to be read or applied in a vacuum; it is intermeshed with numerous other 

rules.” Mountaineer, 244 W. Va. at 520, 854 S.E.2d at 882. Under Rule 20 of the West 

Virginia Rules of Civil Procedure, 

[a]ll persons may be joined in one action as defendants if there is 

asserted against them jointly, severally, or in the alternative, any right to 

relief in respect of or arising out of the same transaction, occurrence, or series 

of transactions or occurrences and if any question of law or fact common to 

all defendants will arise in the action. 

W. Va. R. Civ. P. 20(a) [eff. 1998]). Accordingly, the complaint’s reference to an alleged 

breach by the “Defendants” (which would include Mr. Bailey), warrants further discovery 

regarding the respective roles of Mr. Bailey and B&S, and renders dismissal of such breach 

of contract claim inappropriate. 
10 

The circuit court found that a party “will be deemed to have waived his rights” under 

a contract if he behaves in a manner that is “wholly inconsistent with reliance on the 

contract[.]” Syl. Pt. 1, in part, Beall v. Morgantown & Kingwood R. Co., 118 W. Va. 289, 

190 S.E. 333 (1937). It is true that Mr. Potter remained at B&S for several months after 

July 2017, when he accepted employment from B&S on new terms. We note, however, 

that “the existence of a waiver becomes a question of law” if “only one reasonable 

inference can be drawn from the evidence[.]” Bruce McDonald Holding Co. v. Addington, 

Inc., 241 W. Va. 451, 460 n.21, 825 S.E.2d 779, 788 n.21 (2019) (quoting Kossler v. Palm 

Springs Devs., Ltd., 101 Cal. App. 3d 88, 99, 161 Cal.Rptr. 423, 431 (1980)). Indeed, 

“[w]aiver is ordinarily a matter for jury determination[,]” Beall, 118 W. Va. at 295, 190 

S.E. at 336, and we do not believe that the only reasonable inference to be drawn from the 

complaint is that Mr. Potter waived his right to assert a breach of contract. 

According to the complaint, Mr. Potter raised frequent objections that he was being 

relegated to the role of Mr. Bailey’s assistant and that new cases were not being assigned 

to him. Indeed, when Mr. Bailey contacted Mr. Potter in July 2017 to offer him new terms 

of employment, Mr. Potter allegedly responded with further objections that he had joined

B&S to “expand his practice by obtaining additional cases” and that Mr. Bailey had 

breached his alleged promise that “there would be no relationship between his salary and 

his productivity.” Mr. Potter ultimately accepted B&S’s offer of employment on new

terms, but he alleges that he did so only after being diagnosed with cancer and only “to 

avoid losing . . . medical insurance coverage while being treated for the cancer[.]” Again, 

upon a proper motion for summary judgment, Mr. Potter’s claim may or may not survive. 

However, we believe that these allegations should be considered after appropriate 

discovery and in the context of a motion for summary judgment, or at trial. See 

Mountaineer at 522, 854 S.E.2d at 884 (quoting Swierkiewicz, 534 U.S. at 512) (noting that 

our “simplified notice pleading standard relies on liberal discovery rules and summary 

judgment motions to define disputed facts and issues and to dispose of unmeritorious 

claims”). Accordingly, we find that the circuit court erred when it prematurely dismissed 

Mr. Potter’s cause of action for breach of contract. 

The circuit court dismissed Count III of the complaint, alleging age discrimination 

based on failure to provide equal opportunities, because it found that Mr. Potter failed to 

allege “an actionable adverse employment decision as a matter of law.”8 Reviewing the 

8 The circuit court also dismissed Count III against Mr. Bailey finding that Mr. 

Bailey is not an employer for purposes of West Virginia Code § 5-11-9(1) (eff. 2016)

(providing that it is an unlawful discriminatory practice “[f]or any employer to discriminate 

against an individual with respect to compensation, hire, tenure . . .”). Under § 5-11-3(d) 

(continued . . .) 
11 

standard set forth in West Virginia Code § 5-11-9(1), we disagree with the circuit court’s 

finding that Mr. Potter failed to allege an actionable adverse employment decision. The 

statute forbids discrimination “against an individual with respect to compensation, hire, 

tenure, terms, conditions or privileges of employment[,]” see id., and provides that 

“‘discrimination’ means to exclude from, or fail or refuse to extend to, a person equal 

opportunities because of . . . age . . . and includes to separate or segregate[,]” Id. § 5-11-

3(h). 

The complaint plainly alleges that Mr. Potter was relegated to a “geriatric career

track” while other, younger attorneys were advanced at the firm and that Mr. Potter’s role 

and future at the firm was determined by his age and not his capacity for work. In addition, 

the complaint contains detailed allegations that B&S segregated its workspaces by age. 

Even a cursory review of the complaint shows that Mr. Potter has asserted factual 

allegations that, if taken as true and construed “in the light most favorable to the plaintiff” 

are sufficient to survive a motion to dismiss. Mountaineer, 244 W. Va. at 520, 854 S.E.2d 

at 882. 

The circuit court dismissed Mr. Potter’s claim, set forth in Count IV of the 

complaint, alleging age discrimination based on the prohibition against threats because it 

found that “[i]t is not an unlawful ‘threat’ for an employer to offer an employee continued 

employment on different terms.” West Virginia Code § 5-11-9(7) forbids “any person[ or] 

employer . . . to . . . [e]ngage in any form of threats . . . the purpose of which is to harass, 

degrade, embarrass or cause physical harm or economic loss . . . .” After reviewing the 

complaint, we believe that the circuit court order improperly dismisses these claims. 

The complaint alleges that B&S and Mr. Bailey threatened Mr. Potter with 

economic loss by forcing Mr. Potter to choose between giving up the promises that had 

induced him to join B&S and having his employment terminated. This alleged “threat” 

forms the primary basis of Mr. Potter’s claim pursuant to West Virginia Code § 5-11-9(7). 

However, the complaint goes on to provide further context, alleging that Mr. Bailey 

imposed this unappealing choice on Mr. Potter, not because Mr. Potter was genuinely 

(eff. 1998), an individual is an “employer” if he or she “employ[s] twelve or more persons 

within the state for twenty or more calendar weeks in the calendar year in which the act of 

discrimination allegedly took place or the preceding calendar year . . . .” Thus, only Mr. 

Potter’s “employer,” as defined in § 5-11-3(d) may face liability to him under § 5-11-9(1). 

Mr. Potter’s complaint clearly accuses the “Defendants” (which would include Mr. Bailey) 

of unlawful discriminatory employment practices under West Virginia Code § 5-11-9(1). 

Resolution of the questions of whether Mr. Bailey or B&S employed Mr. Potter, and 

whether either is an “employer,” as that term is defined in § 5-11-3(d), requires factual 

development and discovery and renders dismissal pursuant to Rule 12(b)(6) inappropriate 

at this early stage of the proceedings. 
12 

unproductive, but because he had been “positioned” in a discriminatory fashion within the 

firm and because B&S hoped to “position” Mr. Potter “even more discriminatorily” and to 

avoid the consequences of such discrimination by obtaining Mr. Potter’s consent to the 

new terms of employment. We make no prediction at this point as to whether this cause 

of action will survive after discovery and a potential motion for summary judgment. 

However, as the United States Supreme Court has observed, “[b]efore discovery has 

unearthed relevant facts and evidence, it may be difficult to define the precise formulation 

of the required prima facie case in a particular case.” Swierkiewicz, 534 U.S. at 512. 

Accordingly, we find that, pursuant to Rule 12(b)(6), this count of the complaint was 

improperly dismissed.

Finally, in Count V of the complaint, Mr. Potter alleges that Defendants’ 

discriminatory practices created working conditions so intolerable that any reasonable 

employee would resign rather than endure such conditions.9 The circuit court dismissed 

Count V of the complaint because the circuit court found that Mr. Potter failed to resign 

within a reasonable period of time. Failure to “resign within a reasonable time period after 

the alleged harassment” leads to a conclusion that the employee “was not constructively 

discharged.” Landrau-Romero v. Banco Popular De Puerto Rico, 212 F.3d 607, 613 (1st 

Cir. 2000). Following this reasoning, the circuit court found that Mr. Potter “voluntarily 

accepted the ‘intolerable’ conditions of his continued employment” when he remained at 

B&S from July 2017 until December 2018. 

However, the complaint alleges that B&S and Mr. Bailey “continued” their pattern 

of harassment after July 2017 by leveling unfair criticism against his prior work 

performance, offering him a single work assignment (on which he worked for nine months 

without pay), and assigning work that he was capable of performing to “substantially 

younger” attorneys. Mr. Potter alleges that B&S and Mr. Bailey “would not have taken 

the aforementioned prohibited actions but for Mr. Potter’s age.” However, taking Mr. 

Potter’s allegations as true, as the circuit court was required to do at the Rule 12(b)(6) stage, 

Mr. Potter alleged a series of events that progressively rendered his working environment 

intolerable. Whether Mr. Potter failed to “resign within a reasonable time period after”

that alleged progression of discrimination appears to be a question of fact that was 

inappropriately determined under a Rule 12(b)(6) motion. Landrau-Romero, 212 F.3d at 

613. Relevant questions remain as to whether Mr. Potter remained employed for an 

unreasonable period of time following the alleged instances of age discrimination, and we 

9 We have held that “[a] constructive discharge cause of action arises when the 

employee claims that because of age, race, sexual, or other unlawful discrimination, the 

employer has created a hostile working climate which was so intolerable that the employee 

was forced to leave his or her employment.” Syl. Pt. 4, Slack v. Kanawha Co. Housing & 

Redevelopment Auth., 188 W. Va. 144, 423 S.E.2d 547 (1992). 
13 

find that they are sufficient for this count of the complaint to survive a motion to dismiss 

pursuant to Rule 12(b)(6). 

Based on the foregoing, we find that Mr. Potter’s complaint stated a sufficient basis 

upon which relief could be granted, and we conclude that the circuit court erred when it 

dismissed all counts of the complaint with prejudice. Accordingly, we reverse the circuit 

court’s December 10, 2020 order and remand this case to the circuit court for further 

proceedings consistent with this decision. 

Reversed and remanded. 

ISSUED: May 27, 2022 

CONCURRED IN BY:

Chief Justice John A. Hutchison 

Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice William R. Wooton 

Justice C. Haley Bunn did not participate in the decision of the Court.