UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONNA ROTEN,
Plaintiff-Appellant,

v.

GALEN OF WEST VIRGINIA,
                                                                 No. 97-2178
INCORPORATED, formerly known as
Humana of West Virginia,
Incorporated, a corporation; JEAN
EARLS; JANICE LEE,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CA-96-387-1)

Submitted: March 17, 1998

Decided: June 18, 1998

Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Robert H. Miller, II, KATZ, KANTOR, & PERKINS, Bluefield, West
Virginia, for Appellant. Bryan R. Cokeley, STEPTOE & JOHNSON,
Charleston, West Virginia, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Donna Roten appeals the district court's orders denying
her motion for remand to the state court and granting the Appellees'
motion for summary judgment. Finding no error, we affirm.

In May 1995, Roten commenced an action in West Virginia state
court against her former employer, Galen of West Virginia, Inc.
("Galen"), and two Galen employees, Jean Earles and Janice Lee. The
gravamen of Roten's complaint concerns her termination from
employment as a registered nurse from St. Luke's Hospital, a subsid-
iary of Galen, after an incident in the emergency room ("ER"). Roten
alleged breach of contract, conspiracy, violation of public policy, age
discrimination under state law, and intentional infliction of emotional
distress. During her deposition, Roten alleged she believed her dis-
missal was an attempt to prevent her from accruing additional retire-
ment benefits. Based on this allegation, the Defendants removed the
action to the United States District Court for the Southern District of
West Virginia under 28 U.S.C. § 1446(b) (1994), contending Roten's
complaint included a claim under the Employment Retirement
Income Security Act ("ERISA") (29 U.S.C.A.§§ 1001-1461 (West
1985 & Supp. 1997)).

Nearly a year later, and after the Defendants moved for summary
judgment, Roten abandoned her ERISA claim and moved to have the
case remanded to state court. Noting that remand would be "inconve-
nient and prejudicial [and] also a waste of judicial resources" and the
"remaining claims are neither novel nor complex," the district court
denied Roten's motion.

Roten was employed by St. Luke's Hospital as a registered nurse
from August 11, 1977, until May 23, 1994. Humana of West Virginia
("Humana") owned the hospital until 1992. In 1981, Roten received

                    2
Humana's "Employee Handbook." The handbook provided that cer-
tain "critical offenses" could be grounds for suspension and immedi-
ate termination. Critical offenses included "[t]hreatening,
intimidating, or coercing patients or others," and "willful acts, or con-
duct detrimental to patient care or hospital operations that results in
neglect or abuse of any patient." In addition, the handbook provided
that employees with fifteen or more years of service must have their
employment termination approved by the Chairman of the Board of
Humana.

In 1992, Galen purchased St. Luke's Hospital. It issued a new
employment handbook which stated that it "shall not be construed as
a contract" and "employment is terminable, with or without cause, at-
will of either the employee or the company." Humana's handbook did
not include a statement regarding at-will employment. Human
Resource Director Jean Earls sent a memorandum directing all
employees to meet with their supervisor to receive the new handbook.
However, Roten neither received the memorandum nor the new hand-
book.

On May 18, 1994, Roten was on duty in the ER when she received
a telephone call from Dr. Vestich informing her that Mr. and Mrs.
Blankenship would be arriving soon at the ER. Mr. Blankenship had
recently undergone oral surgery and was in some distress. Vestich
instructed Roten to have Mrs. Blankenship wait outside the ER until
he arrived. Upon their arrival, Mr. Blankenship was taken to the
trauma room and Mrs. Blankenship followed. After she took Mr.
Blankenship's vital signs, Roten asked Mrs. Blankenship to wait in
the hall. Mrs. Blankenship expressed a desire to stay with her husband
because he was having trouble speaking. Roten purportedly stated
"[i]f I let you stay in here, then I will have to let everybody out in the
hall come in." According to Mrs. Blankenship, despite warning Roten
that Mr. Blankenship was experiencing difficulty in speaking, Roten
was rude to her and verbally forced her out of the trauma room. As
Mrs. Blankenship was leaving the trauma room, Roten was laughing.

That evening, Mrs. Blankenship spoke about the incident with a
paramedic on duty and the hospital's Chief Operating Officer. Some-
time shortly thereafter, she wrote a letter describing the incident to
Director of Nursing Janice Lee. Mrs. Blankenship thought Roten's

                     3
conduct showed a lack of professionalism, understanding, and com-
passion.

On May 19, Lee suspended Roten for three days pending the result
of an investigation. After her investigation, Lee determined Roten's
conduct fell within the parameters of a critical offense.1 Lee found
that Roten was rude to Mrs. Blankenship and neglected providing
appropriate care to Mr. Blankenship. After Lee consulted with Chief
Executive Officer Barry Papania, the decision was made to discharge
Roten. Roten was given the option of resigning or being terminated.
Since Roten decided not to resign she was terminated.

We first consider Roten's claim that the district court erred in
denying her motion for remand. "The doctrine of supplemental juris-
diction indicates that federal courts generally have discretion to retain
or dismiss state law claims when the federal basis for an action drops
away." Shanagan v. Cahill, 

, 109 (4th Cir. 1995). Under
28 U.S.C. § 1367 (1994), a district court may decline supplemental
jurisdiction if:

          (1) the claim raises a novel or complex issue of state law;

          (2) the claim substantially predominates over the claim or
          claims over which the district court has original jurisdiction;

          (3) the district court has dismissed all claims over which it
          has original jurisdiction; or

          (4) in exceptional circumstances, there are other compelling
          reasons for declining jurisdiction.

Roten contends her case raises a novel or complex issue of state law
because West Virginia has not determined what constitutes reasonable
notice for purposes of changing an employee's status to at-will. The
district court, however, for the purposes of reaching a decision,
decided the state law issue in Roten's favor. Nevertheless, it granted
_________________________________________________________________
1 The Humana employee handbook and the Galen employee handbook
had nearly identical passages regarding critical offenses.

                     4
summary judgment to the Appellees. Thus, Roten was not prejudiced
by the court's decision to retain jurisdiction. Moreover, given how far
the case had proceeded, the court's decision was fair to both parties
and served the interests of judicial economy. See Carnegie-Mellon
Univ. v. Cohill, 

, 350 (1988); Shanagan, 58 F.3d at 110.
Accordingly, we find the district court did not abuse its discretion in
denying Roten's motion for remand.

With regard to the breach of contract claim, Roten contends the
Humana employee handbook was in effect at the time of her dis-
charge. She further contends the handbook established a contract lim-
iting the employer's discretion in terminating an employee. She
argues the contract was breached because her conduct was not a criti-
cal offense and the decision to terminate her was not approved by the
Chairman of the Board of Humana.2 On the other hand, the Appellees
contend that the Galen handbook was in effect at the time of the inci-
dent because Roten received reasonable notice of the handbook and
it clearly specified that employees were at-will and could be termi-
nated for any reason. In any event, the Appellees argue, assuming
without agreeing that the Humana handbook established an employ-
ment contract, Roten's termination was not a breach of that contract.

We review the grant of summary judgment de novo. See Henson
v. Ligget Group, Inc., 

, 274 (4th Cir. 1995). Summary
judgment is appropriate when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c). We review the facts and all reasonable
inferences drawn therefrom in the light most favorable to the non-
moving party. See Ross v. Communications Satellite Corp., 

, 364 (4th Cir. 1985).

Under West Virginia law, at-will employment status may be
changed by provisions in a handbook to a unilateral employment con-
tract if there is a definite promise not to discharge covered employees
except for specified reasons. See Hogue v. Cecil I. Walker Mach. Co.,
_________________________________________________________________
2 It is frivolous for Roten to contend that Humana's Chairman of the
Board should have approved her termination since Humana did not own
the hospital at the time of the offense. Roten's termination was approved
by the highest ranking official at St. Luke's Hospital.

                    5


, 689 (W. Va. 1993). An employer may protect itself
from being bound to a contract if it has the employee acknowledge
that employment is at-will and can be terminated for any reason. See
Suter v. Harsco Corp., 

, 754-55 (W. Va. 1991). Fur-
thermore, an employer may unilaterally modify the terms of employ-
ment by changing the employee's status to an at-will status upon
giving reasonable notice to the employee of the change. See Hogue,
431 S.E.2d at 691. West Virginia has not determined what it considers
reasonable notice.

We agree with the district court that the record before us precludes
finding Roten had reasonable notice of the change in her employment
status. There was no record of the memorandum Earls referred to, nor
was there any record that Roten or any other employee received the
memorandum or the handbook. On the other hand, we find Roten's
discharge was not in breach of any provision of the Humana hand-
book. It was not until after Lee investigated the incident by talking
with witnesses that she determined Roten's conduct was a critical
offense. This finding cannot be disturbed in light of the fact that there
was evidence that Roten intimidated Mrs. Blankenship and neglected
her patient. Moreover, Lee's decision to terminate was made after
consultation with the hospital's CEO.

Roten's remaining claims also must fail. She contends there was a
conspiracy because Lee, Earls, and the CEO discussed terminating
Roten. However, employees of a corporation cannot conspire with
their employer or corporate principle when they are acting in their
official capacities on behalf of the corporation and not for their indi-
vidual advantage. See Cook v. Heck's Inc., 

, 460 (W.
Va. 1986). Roten has not offered any reason why her conspiracy
claim is not governed by the exception in Cook .

Nor was Roten's discharge in violation of public policy. Her con-
tention that she was terminated for following doctor's orders is not
supported by the evidence. Clearly, she was terminated because of the
manner in which she carried out the doctor's orders. Finally, her
claim for damages for emotional distress must fail since it is based
solely on the unsuccessful public policy claim. 3
_________________________________________________________________
3 On appeal, Roten does not challenge the court's dismissal of her age
discrimination claim. Therefore, this issue is waived. See Canady v. Cre-

                     6
We therefore affirm the orders and judgment of the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.

AFFIRMED
_________________________________________________________________
star Mortgage Corp., 

, 973 (4th Cir. 1997). In addition,
although Roten makes an argument on appeal in support of her ERISA
claim, the claim is not before this court because she abandoned it in the
district court.

                    7