Richard Weidman v. Exxon Mobil Corporation

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-00501-CMH-JFA. Copy to Richard Weidman. [999507254]. [13-2007]--[Edited 01/08/2015 by SAW]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2007

RICHARD C. WEIDMAN,
Plaintiff - Appellant,
v.
EXXON
MOBIL
CORPORATION;
CLARION
ELLIS
JOHNSON;
JEFFREY WOODBURY; VICTORIA MARTIN WELDON; STEPHEN D. JONES;
KENT DIXON; F. BUD CARR; DANIEL WHITFIELD; JEREMY SAMPSELL;
GERARD MONSIVAIZ; MEGHAN HASSON,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:13-cv-00501-CMH-JFA)

Argued:

October 28, 2014

Decided:

January 8, 2015

Before GREGORY, FLOYD, and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Floyd
and Judge Thacker joined.

ARGUED: Richard C. Weidman, Great Falls, Virginia, Appellant Pro
Se.
Thomas Patrick Murphy, HUNTON & WILLIAMS, LLP, McLean,
Virginia, for Appellees.
ON BRIEF: Arthur E. Schmalz, Ryan M.
Bates, HUNTON & WILLIAMS LLP, McLean, Virginia, for Appellees.

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GREGORY, Circuit Judge:
Pro se Plaintiff Richard Weidman sued his former employer,
Exxon

Mobil

employees,

Corporation

alleging

(“ExxonMobil”),

that

he

was

fired

and
in

ten

ExxonMobil

retaliation

for

reporting illegal pharmacy practices, which caused him to suffer
a heart attack and emotional distress.

Weidman, still pro se,

appeals the district court’s dismissal of his fraud, intentional
infliction of emotional distress, personal injury, and wrongful
discharge claims.

Weidman furthermore challenges the district

court’s denial of his motion to remand the case to state court.
For the reasons below, we affirm the district court’s denial of
Weidman’s motion to remand and dismissal of all but one of his
tort claims.

We hold Weidman has sufficiently stated a claim

for wrongful discharge against ExxonMobil.

I.
In March 2013, Weidman filed suit in Fairfax County Circuit
Court

against

his

former

ExxonMobil employees.
Ellis

Johnson,

President

for

Medical
Safety,

employer,

ExxonMobil,

These employees include:
Director;
Security,

(2)

Jeffrey

Health

and

and

ten

(1) Clarion
Woodbury,

Vice

Environment

and

Johnson’s supervisor; (3) Victoria Martin Weldon, U.S. Director
of

Medicine

and

Occupational

Health

and

Weidman’s

supervisor

from February 2010; and (4) Stephen Jones, whose title is not
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given

but

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who
The

Weldon.

reported
complaint

investigated
Whitfield,

directly

to

Dixon,

also

of

Johnson

named

reports

Weidman’s
Kent

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Jeremy

and

four

supervised

individuals

retaliation:

Sampsell,

and

F.

who

Daniel
Bud

Carr.

Lastly, the suit named Meghan Hasson and Gerard Monsivaiz, who
worked in the Human Resources Department, though Monsivaiz is
only

mentioned

in

the

case

caption.

Weidman

resident, as are three of the defendants:

is

a

Virginia

Hasson, Monsivaiz,

and Sampsell.
Weidman worked as Senior Physician in ExxonMobil’s Fairfax,
Virginia office from 2007 until his termination in January 2013.
Upon

being

Standards

hired,
of

Weidman

Business

was

required

Conduct

to

read

(“handbook”).

ExxonMobil’s

This

handbook

detailed employee standards with respect to reporting suspected
violations

of

retaliation
reports.

by

law

and

ExxonMobil

policy.

It

against

also

employees

guaranteed

non-

for

such

making

Weidman claims that he attended yearly meetings where

videos were played showing Rex Tillerson, CEO of ExxonMobil,
guaranteeing that employees would never suffer retaliation for
reporting violations.
Weidman’s
ExxonMobil

had

complaint
been

alleges

operating

that

illegal

in

2009

he

pharmacies

discovered
in

multiple

states, and had also illegally stockpiled large quantities of
medication in its Fairfax, Virginia office, as well as in other
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clinics.

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He asserts many senior managers were aware of these

illegal

activities,

including

Johnson,

Weldon,

and

Jones.

Weidman further contends that Jones requested he “participate in
a

scheme”

to

employees
informed

in

distribute

stockpiled

Virginia.

Johnson

he

In

would

medication

January

not

2010,

obtain

a

to

ExxonMobil

Weidman

New

says

Jersey

he

medical

license to work at a clinic in that state as long as it was
operating an illegal pharmacy.

In response to this, Weidman

alleges Johnson became “physically intimidating” toward him.
Weidman claims he reported “violations of the law by the
Medical Department,” in response to which “Johnson initiated a
malicious

campaign

of

retaliation.”

“attempts

to

humiliate,

including

“continuously

The
and

discredit,
humiliat[ing]

campaign
punish

Weidman

included
Weidman,”

before

[his]

colleagues,” falsely classifying him as a poor performer, and
“ma[king] statements that clearly implied that Weidman was a
pedophile” at an office gathering.

Shortly thereafter, Weidman

reported via email to senior management his belief that Johnson
was

retaliating

against

ExxonMobil

was

ExxonMobil

proceeded

“sham”

him

violating

investigation

to

for

pharmacy

conduct

into

prior

his

laws

what

complaints,
in

Weidman

allegations.

several

and

that

states.

describes
Weidman

as

a

says

Whitfield and Dixon, two investigators assigned to the matter,

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falsely concluded that Johnson had not harassed Weidman and that
the pharmacies were legal.
On

an

unspecified

date

after

the

investigation

into

Weidman’s report, Weidman says the Medical Department designated
him as a “poor performer” and required him to participate in a
performance improvement plan.

In September 2011, Weidman claims

to have received an email from ExxonMobil’s Legal Department
stating ExxonMobil pharmacies had been in violation of multiple
state laws.

Weidman says he then sent another email to senior

managers informing them that Johnson and other members of the
Medical Department had retaliated against him, and that there
had

been

a

cover

investigation.

A

Sampsell and Carr.

up

of

these

second

actions

investigation

during

the

commenced,

first

led

by

During the investigation, Carr allegedly

admitted to Weidman that ExxonMobil had been operating illegal
pharmacies

for

years,

and

that

Johnson

had

permitted

their

operation.
Under the performance improvement plan, which lasted for
over a year, Weidman participated in meetings with Weldon, which
Hasson

also

attended.

Weidman

contends

the

purpose

of

the

meetings was not to improve his performance, but to overburden
him with the creation of new tasks meant to cause his failure to
perform.
Human

In late October 2012, Weidman alleges he complained to

Resources

about

the

“oppressive
5

and

unjustifiable”

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meetings.
scheduled
meeting

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He
just

was

particularly

days

occurred

before

on

confrontational.”
during

the

meeting

Weldon

maliciously

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he

October

concerned

was

24,

to

about

undergo

2012,

and

a

meeting

surgery.

was

The

“hostile

and

Weidman claims to have had a heart attack
“as

a

direct

inflicted

result

upon

him.”

of

the

stress

which

In

mid-December,

ExxonMobil extended Weidman’s performance improvement plan.
the

next

meeting

in

January

2013,

Weidman’s

At

employment

was

terminated, allegedly for failure to cooperate with the plan.
Subsequently,
causes

of

action:

retaliated

against

Weidman
(1)
him

filed
fraud,

despite

his

complaint

because

asserting

Appellees

representations

made

four

allegedly
to

the

contrary in the handbook and by CEO Tillerson in yearly videos;
(2) intentional infliction of emotional distress; (3) “personal
injury” of “irreparable damage to his heart”; and (4) wrongful
discharge.

Weidman pursues this last count under two theories,

that his termination violated Virginia’s public policy and was
also a breach of an implied unilateral contract established by
ExxonMobil’s employee handbook.
Appellees removed the case to the U.S. District Court for
the

Eastern

dismiss

the

District
case

of

under

Virginia,
Federal

where

Rule

of

they

Procedure

Weidman moved to remand the case to state court.

6

also

moved

to

12(b)(6).

The district

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court dismissed all of Weidman’s claims and denied his motion to
remand.

II.
In appealing the district court’s denial of his motion to
remand, Weidman raises a threshold jurisdictional issue that we
address de novo.
Cir. 1999).

See Mayes v. Rapoport, 198 F.3d 457, 460 (4th

Weidman named three non-diverse defendants in his

complaint, but the district court found it could properly retain
subject

matter

doctrine.

jurisdiction

under

the

“fraudulent

joinder”

Normally, complete diversity of citizens is necessary

for a federal court to exercise diversity jurisdiction, meaning
the plaintiff cannot be a citizen of the same state as any other
defendant.
doctrine

Id.

at

provides

464.
that

However,
diversity

the

fraudulent

jurisdiction

joinder
is

not

automatically defeated by naming non-diverse defendants. 1

The

district court can “disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants.”

Id. at 461.

It

can retain jurisdiction upon the non-moving party showing either

1

Contrary to its name, the “fraudulent joinder” doctrine
requires neither fraud nor joinder. “In fact, it is irrelevant
whether the defendants were ‘joined’ to the case or originally
included as defendants,” as the doctrine is “applicable to each
defendant named by the plaintiff either in the original
complaint or anytime prior to removal.” Mayes, 198 F.3d at 461
n.8.
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that

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the

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plaintiff

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committed

outright

fraud

in

pleading

jurisdictional facts, or that “there is no possibility that the
plaintiff would be able to establish a cause of action against
the in-state defendant in state court.”

Mayes, 198 F.3d at 464;

see also Marshall v. Manville Sales Corp., 6 F.3d 229, 233 (4th
Cir. 1993) (“A claim need not ultimately succeed . . . [as] only
a possibility of a right to relief need be asserted.”).
We agree with the district court that Weidman, a Virginia
resident, cannot succeed in any of his claims against the nondiverse defendants – Monsivaiz, Sampsell, or Hasson – in state
court.

First,

Monsivaiz

is

only

mentioned

in

the

complaint

caption; there is no factual detail at all to support any claims
against

him.

Of

the

two

remaining

non-diverse

defendants,

Weidman has not in any way alleged that Sampsell or Hasson made
materially false statements on which Weidman reasonably relied,
that their actions were connected to his heart attack, or that
they engaged in outrageous or intolerable conduct.

These claims

fail in any case, for reasons described in Part III.
The only plausible claim against Hasson and Sampsell is the
wrongful

discharge

claim.

Appellees

argue

that

Sampsell

or

Hasson cannot be liable for wrongful discharge because Weidman
named

only

describing

ExxonMobil
this

count.

in

the
Even

paragraph
assuming

of

his

Weidman

complaint

brings

suit

against all Appellees on this claim, there simply are not enough
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facts

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to

allegedly

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connect

the

wrongful

actions

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of

Sampsell

discharge.

and

Virginia

Hasson
law

to

his

recognizes

individual employee liability for wrongful discharge for public
policy reasons.
2012).

See VanBuren v. Grubb, 733 S.E.2d 919, 923 (Va.

Still, Sampsell is described as one of two investigators

assigned to the second investigation into Weidman’s complaints.
He is mentioned only once in a paragraph that focuses on actions
taken not by Sampsell, but by his co-investigator.

Similarly,

the most alleged against Hasson is that she attended Weidman’s
performance improvement meetings.
Appellees have satisfied their burden of showing there is
“no possibility” of Weidman succeeding in any of his tort claims
against any of these non-diverse defendants.

Thus, we affirm

the district court’s denial of Weidman’s motion to remand.

III.
Moving to the district court’s dismissal of Weidman’s tort
claims, we review a grant of a motion to dismiss for failure to
state a claim de novo.

E.I. du Pont de Nemours & Co. v. Kolon

Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
“must

contain

‘plausible

on

sufficient
its

face.’”

facts
Id.

to

state

(quoting

Twombly, 550 U.S. 544, 570 (2007)).

a

claim

that

is

Bell

Atl.

Corp.

v.

“A formulaic recitation of

the elements of a cause of action” is not enough.
9

A complaint

Robertson v.

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Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir. 2012)
(quoting

Twombly,

550

U.S.

at

555).

In

making

this

determination, we “accept as true all of the factual allegations
contained in the complaint,” and “draw all reasonable inferences
in favor of the plaintiff.”

DuPont, 637 F.3d at 440.

Under this standard, we review Weidman’s claims of fraud,
intentional infliction of emotional distress, personal injury,
and wrongful discharge in turn.
A.
To establish a fraud claim, Weidman must show:
false

representation,

(2)

of

a

material

fact,

“(1) a
(3)

made

intentionally and knowingly, (4) with intent to mislead, (5)
reliance by the party misled, and (6) resulting damage to the
party misled.”

Prospect Dev. Co. v. Bershader, 515 S.E.2d 291,

297 (Va. 1999) (quoting Bryant v. Peckinpaugh, 400 S.E.2d 201,
203 (Va. 1991)).

Additionally, he is required to “state with

particularity the circumstances constituting fraud or mistake.”
Fed. R. Civ. P. 9(b).

These circumstances are “the time, place,

and

false

contents

of

the

representations,

as

well

as

the

identity of the person making the misrepresentation and what he
obtained thereby.”

Harrison v. Westinghouse Savannah River Co.,

176 F.3d 776, 784 (4th Cir. 1999) (quoting 5 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1297, at
590 (2d ed. 1990)).
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We agree with the district court that Weidman failed to
sufficiently plead his fraud claim against Appellees.

Weidman

only vaguely referred to CEO Tillerson and unnamed “members of
the Human Resources and Law Departments” in his complaint.
22 (Compl. ¶ 25).

J.A.

He does not specify when or how many times

the representations occurred, but alleges that “[a]t the time
these representations were made . . . the parties who made them
knew” that reporting violations “could result in actions taken
against those who reported [them].”

J.A. 22 (Compl. ¶ 26).

Absent additional details, the district court properly dismissed
Weidman’s fraud claim.
B.
Weidman further appeals the district court’s dismissal of
his claim of intentional infliction of emotional distress.
claim

requires

that:

(1)

the

wrongdoer’s

conduct

This
was

“intentional or reckless”; (2) the conduct was “outrageous and
intolerable”; (3) “there was a causal connection between the
wrongdoer’s conduct and the emotional distress”; and (4) the
resulting distress was severe.

Womack v. Eldridge, 210 S.E.2d

145, 148 (Va. 1974).
Weidman’s
labeled a

poor

allegations
performer

against
and

Appellees

impliedly

–

called

that
a

he

was

pedophile

–

while unsettling, are nonetheless insufficient as a matter of
law

to

establish

“outrageous

and
11

intolerable”

conduct.

Id.

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Weidman simply failed to set forth facts rising to the level of
conduct “so outrageous . . . as to go beyond all possible bounds
of

decency,

intolerable

and
in

a

to

be

regarded

civilized

as

atrocious,

community.”

Russo

v.

and

utterly

White,

400

S.E.2d 160, 162 (Va. 1991); see, e.g., Baird ex rel. Baird v.
Rose, 192 F.3d 462, 472-73 (4th Cir. 1999) (finding sufficiently
pled

facts

intentionally

of

outrageous

humiliating

conduct

student

in

she

case
knew

of

teacher

suffered

from

depression); Lewis v. Gupta, 54 F. Supp. 2d 611, 621 (E.D. Va.
1999) (defendant conspiring to falsely accuse plaintiff of rape,
resulting in plaintiff’s imprisonment for 529 days); Delk v.
Columbia/HCA Healthcare Corp., 523 S.E.2d 826, 833 (Va. 2000)
(defendants’ knowing failure to inform plaintiff she was exposed
to HIV).
Weidman

argues

that

the

“outrageous

conduct”

requirement

set forth in Womack is not required when the harm complained of
results in definite physical injury.

This argument fails for

several reasons.

First, Weidman raises this issue for the first

time on appeal.

See Karpel v. Inova Health Sys. Servs., 134

F.3d 1222, 1227 (4th Cir. 1998) (“[I]ssues raised for the first
time

on

appeal

generally

will

not

be

considered.”).

More

fundamentally, the Supreme Court of Virginia wrote in Womack
that a plaintiff must show only negligent, as opposed to willful
or wanton conduct, “where emotional disturbance is accompanied
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by physical injury,” but did so in reference to the tort of
negligent infliction of emotional distress.

210 S.E. 2d at 147.

When Weidman points to Womack for the principle that he is not
required to show conduct going “beyond all possible bounds of
decency,” Russo, 400 S.E.2d at 162, he is actually trying to
reframe his claim as one for negligent, rather than intentional,
infliction of emotional distress, which we cannot allow.
Therefore, Weidman is required to allege “outrageous and
intolerable” conduct, and we agree with the district court that
he has not done so.
C.
Count Three of Weidman’s complaint is a “personal injury”
cause of action against Appellees.
paragraph:

Weidman states in a single

“Due to the intentional and malicious acts of the

Defendants towards the Plaintiff that the Defendants knew, or
should

have

known,

would

have

injured

the

Plaintiff,

Plaintiff suffered irreparable damage to his heart.”
(Compl. ¶ 33).
treated

the

J.A. 23

In dismissing this count, the district court

Weidman’s

heart

attack

Compensation

as

injury

for

provides

the

which

the

Virginia

Workers’

remedy. 2

We instead affirm dismissal of this count for failure

2

Act

an

exclusive

The Virginia Workers’ Compensation Act (“VWCA”) is
triggered when an employee suffers an “injury by accident
arising out of and in the course of the employment.”
Va. Code
(Continued)
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to sufficiently state a claim.

See Republican Party of N.C. v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“[W]e may affirm a
judgment for any reason appearing on the record.”).
complaint
“naked

must

offer

assertions

devoid

Ashcroft

v.

internal

quotation

allegation

Iqbal,

that,

more

556

of

U.S.

marks

“due

than

to

“labels
further

662,

conclusions,”

factual

678

omitted).
the

and

(brackets

Weidman’s
and

or

enhancement.”

(2009)

intentional

A well-pled

and

one-sentence

malicious

acts

. . . the Plaintiff suffered irreparable damage to his heart,”
J.A. 23 (Compl. ¶ 33), is exactly the kind of “naked assertion”
that is insufficient to state a claim.
D.
Weidman’s

wrongful

presented in two parts.

discharge

claim

against

ExxonMobil

is

According to Weidman, his termination

for refusing to participate in an allegedly illegal pharmacy
operation violated Virginia public policy.
the

anti-retaliation

provision

in

He also argues that

ExxonMobil’s

handbook

Ann. § 65.2-101.
This does not include “[i]njuries resulting
from repetitive trauma, continuing mental or physical stress, or
other cumulative events.” Morris v. Morris, 385 S.E.2d 858, 865
(Va. 1989).
Had Weidman pled that his heart attack was the
final result of repetitive stress or cumulative events, as
opposed to a discrete event, his claim may not have been barred
by the VWCA.
Nevertheless, his own complaint does not support
this argument. See J.A. 21 (Compl. ¶ 22) (“During the
[performance improvement] meeting, Weidman suffered a heart
attack as a direct result of the stress which Weldon maliciously
inflicted upon him.” (emphasis added)).
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constituted
breached

Filed: 01/08/2015

an

by

implied

firing

Pg: 15 of 18

unilateral

him

for

contract

reporting

that

ExxonMobil

violations

of

state

pharmacy laws.
Virginia adheres to a strong presumption that employment is
at will, meaning employment lasts for an indefinite term and can
be terminated for almost any reason.
at 921.

See VanBuren, 733 S.E.2d

However, there is an exception to this doctrine for at-

will employees who claim to have been discharged in violation of
public policy.

Bowman v. State Bank of Keysville, 331 S.E.2d

797,

1985).

801

(Va.

The

Supreme

Court

of

Virginia

has

recognized three situations in which a litigant may show her
discharge violated public policy:

(1) where an employer fired

an employee for exercising a statutorily created right; (2) when
the public policy is “explicitly expressed in the statute and
the

employee

was

clearly

a

member

of

that

class

of

persons

directly entitled to the protection enunciated by the public
policy”;

and

employee’s

(3)

refusal

“where
to

the

engage

in

discharge
a

was

criminal

based

act.”

on

the

Rowan

v.

failed

to

Tractor Supply Co., 559 S.E.2d 709, 711 (Va. 2002).
The

district

court

determined

that

Weidman

identify a statute whose public policy ExxonMobil violated in
firing him.

We disagree and find Weidman sufficiently stated a

claim

his

that

termination

violated

the

public

policy

sections 54.1-3310 and 54.1—3435 of the Virginia Code.
15

of

These

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statutes make it unlawful for anyone to practice pharmacy or to
engage in wholesale distribution of prescription drugs without a
license.

Va. Code Ann. §§ 54.1-3310, 54.1—3435.

While not part

of Virginia’s criminal code, a violation of these sections leads
to criminal penalties.

See id. § 54.1-111 (making a violation a

Class 1 misdemeanor 3).

Therefore, refusal to practice pharmacy

without a license should be treated as refusal to engage in a
criminal act.
Weidman has pled sufficient factual detail to adequately
state

this

claim.

He

writes

in

his

complaint

that

he

was

wrongfully discharged for “refusing to participate in illegal
pharmacy distribution activities . . . contraven[ing] the public
policy

interest

(Compl. ¶ 38).

of

the

Commonwealth

of

Virginia.”

J.A.

24

He furthermore describes:

Jones
also
requested
that
Weidman
participate in a scheme involving a Virginia
pharmacy,
in
which
the
pharmacy
would
distribute
the
stockpiled
medication
to
Exxon Mobil employees, but Weidman refused
to do so and informed Jones that this would
be against the law.
J.A.

14

(Compl.

¶

8).

In

this

way,

Weidman

has

clearly

described the circumstances of his refusal to engage in an act
of criminal consequences.

3

A Class 1 misdemeanor is punishable by “confinement in
jail for not more than twelve months and a fine of not more than
$2,500, either or both.” Va. Code Ann. § 18.2-11(a).
16

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Appellees

argue

that

Pg: 17 of 18

this

claim

cannot

survive

because

Weidman failed to cite the statute in his complaint.
any deficiency in this regard is merely technical.
provide

the

Dismiss.

citations

in

his

reply

to

However,

Weidman did

Appellees’

Motion

to

See Mem. Opp’n Mot. Dismiss 17, ECF No. 13; see also

Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (explaining
that “a complaint, especially a pro se complaint, should not be
dismissed

summarily

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” (internal quotation marks
omitted)).
refusal

Especially since Weidman’s complaint identified his

to

“participate

in

illegal

pharmacy

distribution

activities” as contravening Virginia public policy, his failure
to provide specific citations – which he in fact provided in his
responsive pleadings – cannot be considered failure to “give the
defendant fair notice of what the claim is and the grounds upon
which it rests.”

Twombly, 550 U.S. at 555 (ellipsis omitted).

We therefore find that Weidman has sufficiently stated a
wrongful

discharge

exception

to

its

claim

at-will

under
employment

Virginia’s

public

doctrine.

As

a

policy
result,

although we have previously recognized that Virginia law allows
“[e]mployers

[to]

make

unilateral

offers

even

to

at-will

employees . . . in employee handbooks,” we need not reach the

17

Appeal: 13-2007

issue.

Doc: 39

Filed: 01/08/2015

Pg: 18 of 18

Jensen v. Int’l Bus. Machs. Corp., 454 F.3d 382, 387

(4th Cir. 2006).

IV.
For the foregoing reasons, we reverse the district court’s
dismissal
ExxonMobil

of
and

Weidman’s
remand

wrongful
the

consistent with this opinion.

case

discharge
for

claim

further

against

proceedings

We affirm the district court in

all other respects.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

18