Greer v. Armstrong World Industries, Inc. et al

Filing 42

ORDER granting in part and denying in part 7 Motion for Judgment on the Pleadings Signed by Honorable David C. Bramlette, III on 3-24-10 (ECW)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI WESTERN DIVISION BILLY T. GREER VS. PLAINTIFF CIVIL ACTION NO. 5:09-cv-20(DCB)(JMR)

ARMSTRONG WORLD INDUSTRIES, INC. AND DAVID RITTGER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY MEMORANDUM OPINION AND ORDER

DEFENDANTS

This cause is before the Court on the defendants Armstrong World Industries, Inc. ("Armstrong") and David Rittger

("Rittger")'s motion for partial judgment on the pleadings (docket entry 7). Having carefully considered the motion and response, the memoranda and all documents submitted, as well as the applicable law, the Court finds as follows: The complaint in this action charges the defendants with unlawful employment practices as well as, inter alia, intentional infliction of emotional distress and tortious breach of contract. In the present motion, the defendants seek partial judgment on the pleadings based on the following: (1) defendant Rittger cannot be liable for claims of age discrimination, gender discrimination, and retaliation since he is not an "employer" under Title VII or the ADEA; (2) the plaintiff's state law claims for intentional

infliction of emotional distress and tortious breach of contract are barred by the statute of limitations; and (3) the plaintiff's claims for violations of federal employment law and the common law

in Count V fail to state a claim upon which relief may be granted and/or are barred by the statute of limitations. The standard for deciding a Rule 12(c) motion for judgment on the pleadings is the same as a Rule 12(b)(6) motion to dismiss. In

re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The court "accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Id. (internal

quotations omitted).

The plaintiff must plead "enough facts to Bell Atl.

state a claim to relief that is plausible on its face." Corp. v. Twombly, 550 U.S. 544, 570 (2007).

"Factual allegations

must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." footnote omitted). "The Fifth Circuit Court of Appeals has consistently held that Title VII provides no basis for individual liability for Id. at 555 (citations and

employees."

Windham v. Cardinal Health, Inc., 2006 WL 51185 * 7 The plaintiff offers no

(S.D. Miss. 2006)(citations omitted).

legal or factual support for his claim that defendant Rittger can be liable to him under Title VII or the ADEA. defendant Rittger pursuant to Title VII All claims against the ADEA shall

and

therefore be dismissed. The defendants raise a statute of limitations defense to the plaintiff's state law claims for tortious breach of contract and 2

intentional infliction of emotional distress.

The limitations Miss.

period for both claims under Mississippi law is one year.

Code Ann. § 15-1-35; Bellum v. PCE Constructors, Inc., 407 F.3d 734, 741 (5th Cir. 2005); City of Mound Bayou v. Johnson, 562 So.2d 1212, 1218 (Miss. 1990). The plaintiff offers no argument against As for

dismissal of his tortious breach of contract claim.

intentional infliction of emotional distress, Greer claims that this was a "continuing tort," thus the statute of limitations did not begin to run until the date of last injury. suit on February 23, 2009. Greer filed his

He acknowledges that he was terminated

from his employment on February 15, 2008, and offers no legal or factual basis for finding that any injury occurred after he was terminated. infliction of His tortious breach of contract and intentional emotional distress claims shall therefore be

dismissed as barred by the statute of limitations. The defendants seek dismissal of Greer's claim that the defendants made his "working conditions so intolerable that he would be compelled to resign" in "violation of federal employment law and the common law." To the extent that this claim alleges a

cause of action against Armstrong for violations of Title VII and/or the ADEA, it will not be dismissed. To the extent it

alleges a claim against Rittger on the same basis it will be dismissed for the reasons previously stated. Finally, to the

extent the plaintiff is asserting a "common law" claim for the 3

alleged conduct, this is a tort claim for intentional conduct barred by the statute of limitations, Miss. Code Ann. § 15-1-35. See Southern v. Mississippi State Hosp., 853 So.2d 1212, 1214 (Miss. 2003). Accordingly,

IT IS HEREBY ORDERED that the defendants Armstrong World Industries, Inc., and David Rittger's motion for partial judgment on the pleadings (docket entry 7) is GRANTED IN PART AND DENIED IN PART as follows: GRANTED as to all Title VII and ADEA claims against defendant Rittger; GRANTED as to state law claims for tortious breach of contract and intentional infliction of emotional distress against both defendants; GRANTED as to state law claims for intentional torts regarding intolerable working conditions against both defendants; GRANTED as to Title VII and ADEA claims regarding intolerable working conditions against defendant Rittger; DENIED as to Title VII and ADEA claims regarding intolerable working conditions against defendant Armstrong. SO ORDERED, this the 24th day of March, 2010.

/s/ David Bramlette UNITED STATES DISTRICT JUDGE

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