England v. CenturyLink Sales Solutions et al

Filing 45

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Motion to Dismiss, Defendants Counterclaims for Breach of Contract, [Doc. No. 41 ], is DENIED. IT IS FURTHER ORDERED that the counterclaims are transferred to the United States District Court for the Western District of Louisiana. Signed by District Judge Henry Edward Autrey on 7/28/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUDY M. ENGLAND,
Plaintiff,
v.
CENTURYTEL OF MISSOURI, LLC,
et al.,
Defendants.

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Case No. 4:16CV475 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Dismiss Defendants’
Counterclaims for Breach of Contract, [Doc. No. 41]. Defendants oppose the
Motion. For the reasons set forth below, the Motion to dismiss is denied, the
alternative motion to transfer is granted.
Facts and Background
The relevant facts and background of Plaintiff’s claims are set forth in the
Court’s July 28, 2017 Opinion, Memorandum and Order. Defendants’
Counterclaims allege the following facts:
England started working for Embarq, a subsidiary of CenturyLink, Inc., and
a sister company of CenturyTel of Missouri, LLC (“CenturyTel”), in July 1997.
Most recently, England worked as a Revenue Assurance Manager in Embarq’s
Revenue Assurance Department.

In April 2014, Embarq announced that it was moving the Revenue
Assurance Department positions that were located in St. Louis to Monroe,
Louisiana. Employees were told they could relocate with their jobs, and were
entitled to severance benefits if they elected not to relocate.
England chose not to relocate and on December 12, 2014, she was provided
with a Confidential Separation Agreement and Release in Full of All Claims
(“Release”). England was separated on December 26, 2014, and she signed the
Release on January 6, 2015. In exchange for $66,496.00 in severance pay and
$1,250.00 in outplacement services, England agreed to release and discharge
CenturyLink, Inc. and its “affiliates (including, without limitation, EMBARQ
Corporation, Qwest Communications International, Inc. and their subsidiary and
affiliate companies), subsidiaries, predecessors, successors, assigns, management
companies or any related organizations or entities” “of and from any and all
grievances, claims, actions and lawsuits arising out of or related to [England’s]
employment with [Embarq] or the termination of that employment . . . .”
England agreed to release, inter alia, “any and all claims, grievances, actions
or lawsuits in any forum, which have been, might have been, or in the future might
be asserted by Employee and/or on behalf of Employee, under local, state and
federal laws, administrative regulations, Executive Orders, and wage payment or
equal employment opportunity legislation . . . and any and all state or common-law
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claims, including whistleblower, retaliation, tort and wrongful discharge claims;
contract claims, including express or implied contract and breach of the covenant
of good faith and fair dealing; and claims for attorneys’ fees.”
Embarq and CenturyTel are both subsidiaries of CenturyLink, Inc. and thus
are both released parties pursuant to the Release.
On February 18, 2016, England filed a Petition in the Circuit Court of St.
Louis County, Missouri (“Original Complaint”) against CenturyLink Sales
Solutions, Inc. (“CenturyLink Sales Solutions”), CenturyLink Public
Communications, Inc., CenturyLink Communications, LLC, Embarq, and John
Doe Entity A alleging that these entities discriminated against her based on her sex
and her age, and retaliated against her, all in violation of the Missouri Human
Rights Act (“MHRA”), when it selected her for layoff.
England served only CenturyLink Sales Solutions with the Original
Complaint. CenturyLink Sales Solutions timely removed the action to this Court
on April 6, 2016.
On April 11, 2016, counsel for CenturyLink Sales Solutions spoke via
telephone with England’s prior counsel, Jaclyn Zimmermann of Ponder
Zimmermann LLC, to alert Ms. Zimmermann to the fact that England had
executed the Release, to notify her that England’s claims were waived pursuant to
the Release (as all the named defendants in the Original Complaint are subsidiaries
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of CenturyLink, Inc. and thus are released parties pursuant to the Release), and to
notify her that CenturyLink Sales Solutions intended to move to dismiss the
Original Complaint pursuant to the Release and to seek sanctions if England failed
to dismiss her claims with prejudice before the responsive pleading deadline.
On April 18, 2016, Ms. Zimmermann and Ponder Zimmermann LLC
withdrew as Plaintiff’s counsel
On May 11, 2016, CenturyLink Sales Solutions, Inc. filed a Motion to
Dismiss England’s Original Complaint for failure to state a claim and a Motion for
Sanctions against England for filing baseless claims against it. CenturyLink Sales
Solutions also filed a Counterclaim Complaint against England for breach of the
Release.
After many extensions and after having retained new counsel, on August 26,
2016, England moved for leave to file a First Amended Complaint, asserting that
her amended complaint would do two things: (1) “eliminate any ambiguity,
whether real or perceived, as to whether or not she can successfully advance her
claim of discrimination”; and (2) “voluntarily dismisses without prejudice,
Defendants that were not properly served [sic] Plaintiff, thus obviating the need for
further response to The Court’s July 21, Show Cause Order.”

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The Court granted England’s Motion for leave to file an Amended
Complaint on October 21, 2016 and denied CenturyLink Sales Solutions’ Motions
to Dismiss and for Sanctions as moot.
CenturyLink Sales Solutions’ Counterclaim against England remains
pending.
England filed her First Amended Complaint (“Amended Complaint”) on
November 4, 2016. In her Amended Complaint, England asserts three counts
against Embarq and CenturyTel – Count I for Violation of the OWBPA, Count II
for Sex Discrimination in Violation of the Missouri Human Rights Act, and Count
III for Retaliation in Violation of the Missouri Human Rights Act.
All of England’s claims in the Amended Complaint – alleged violation of
the OWBPA, sex discrimination under the MHRA, and retaliation under the
MHRA – are federal and state law claims arising out of England’s employment
with Embarq, and are thus covered by the Release.
England entered into a valid Separation Agreement and Release on January
6, 2015. In the Release, England agreed to waive any and all claims, including
claims under the MHRA, against Embarq and CenturyTel.
England breached the Release by filing her Original Complaint and
Amended Complaint. As a direct and proximate result of England’s breach,
Embarq has incurred and will continue to incur substantial losses including, but not
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limited to, attorneys’ fees and costs, including interest due thereon, incurred in
defending England’s lawsuit and as a result of prosecuting the instant claims
against England.
Motion to Dismiss Standard
Under Fed.R.Civ.P. 12(b)(6), a party may move to dismiss a claim for
“failure to state a claim upon which relief can be granted.” The notice pleading
standard of Fed.R.Civ.P. 8(a)(2) requires a plaintiff to give “a short and plain
statement showing that the pleader is entitled to relief.” To meet this standard and
to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation
omitted). This requirement of facial plausibility means the factual content of the
plaintiff's allegations must “allow[ ] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Cole v. Homier Distrib. Co.,
599 F.3d 856, 861 (8th Cir.2010) (quoting Iqbal, 556 U.S. at 678). Courts must
assess the plausibility of a given claim with reference to the plaintiff's allegations
as a whole, not in terms of the plausibility of each individual allegation. Zoltek
Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir.2010) (internal
citation omitted). This inquiry is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Iqbal, 556
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U.S. at 679. The Court must grant all reasonable inferences in favor of the
nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872–73 (8th Cir.2010).
Discussion
Plaintiff moves to dismiss the Counterclaim arguing that it was brought in
retaliation for her having filed her claims against Defendants. Plaintiff argues that
she has done nothing more than attempt to exercise her protected rights, and assert
claims in accordance with the same. By the same token, Defendants argue that
they are setting forth their valid claims for breach of contract which occurred when
Plaintiff filed her lawsuit.
A lawsuit can be the basis of a retaliation claim. Bill Johnson's Rest., Inc. v.
Nat'l Labor Relations Bd., 461 U.S. 731, 740 (1983). The filing of a lawsuit is
unlawful if it is baseless. Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1407
(10th Cir.1992). A lawsuit is baseless if (1) “controlling federal law bars the
plaintiff's right to relief,” (2) “clear state law makes the case frivolous,” or (3) “no
reasonable jury could find in favor of the plaintiff.” Id. at 1407. Simply filing a
counterclaim, without more, cannot be the basis of a retaliation claim for it is the
rare case that a conduct during litigation can be the basis for retaliation. Equal
Emp. Opportunity Comm'n. v. K & J Mgmt., Inc., No. 99 C 8116, 2000 WL
34248366 at *4 (N.D.Ill. June 8, 2000).

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Defendants assert their counterclaims are not baseless because Plaintiff has
presented nothing to show or indicate that Defendants merely filed their
counterclaims because Plaintiff filed this suit. Indeed, Defendants filed their
counterclaims to enforce what they believe is a valid waiver of the exact claims
Plaintiff made in her action against them.
Federal Rule of Civil Procedure 13(a) requires a party to state a
counterclaim if it arises out of the same transaction or occurrence as the opposing
party's claim and does not require adding a party over whom the court does not
have jurisdiction. The Eighth Circuit has cited four tests to determine if a
counterclaim is compulsory. BOKF, N.A. v. BCP Land Co., LLC, No. 6:14–CV–
03025–MDH, 2015 WL 2354386 at *2 (W.D.Mo. May 15, 2015) (citing Cochrane
v. Iowa Beef Processors, Inc., 596 F.2d 254, 264 (8th Cir.1979) and Tullos v.
Parks, 915 F.2d 1192, 1195 (8th Cir.1990)). The “tests ask whether (1) the issues
of fact and law raised by the claim and counterclaim are largely the same, (2) res
judicata would bar a subsequent suit on the counterclaim, (3) substantially the
same evidence supports/refutes the claim and counterclaim, and (4) there is any
logical relation between the claim and counterclaim.” Id.
Defendants’ counterclaims are for Plaintiff’s alleged breach of contract.
Applying the tests of the Eighth Circuit, the counterclaims for breach of contract

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appear to be compulsory, and therefore properly brought. Stockdall v. TG
Investments, Inc., 129 F. Supp. 3d 871, 877–78 (E.D. Mo. 2015).
Plaintiff alternatively argues that the counterclaims should be transferred to
the District Court for the Western District of Louisiana. Defendants countered that
this Court should retain them based on judicial economy since Plaintiff’s claims
were properly pending in this Court. Since the filing of the motion to dismiss the
counterclaims, the Court has dismissed Plaintiff’s claims. Thus, Defendants’
judicial economy argument is moot. Defendants alternatively do not oppose the
transfer. As such, the Court agrees that the counterclaims should be transferred to
the Western District of Louisiana pursuant to the forum selection clause contained
in the Release Agreement.
Conclusion
Based upon the foregoing analysis, Plaintiff’s Motion to Dismiss
Defendants’ counterclaims is not well taken. The Counterclaims are not retaliatory
and are based on valid legal arguments.
Accordingly,
IT IS HEREBY ORDERED that Motion to Dismiss, Defendants’
Counterclaims for Breach of Contract, [Doc. No. 41], is DENIED.
IT IS FURTHER ORDERED that the counterclaims are transferred to the

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United States District Court for the Western District of Louisiana.
Dated this 28th day of July, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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