Stewart v. Everyware Global, Inc. et al

Filing 16

ORDER finding as moot 5 Motion to Dismiss; granting 10 Amended Motion to Dismiss for Failure to State a Claim. Signed by Judge James L. Graham on 11/10/14. (jlg1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael Stewart,
Plaintiff,
v.

Case No. 2:14-cv-600

Everyware Global, Inc.,
et al.,
Defendants.
OPINION AND ORDER
This is an action brought by plaintiff Michael Stewart against
his

former

employers,

Everyware

Global,

Inc.,

a

Delaware

corporation with its corporate headquarters in Lancaster, Ohio, and
Anchor Hocking, LLC, a subsidiary of Everyware having its principal
place of business in Lancaster, Ohio.

The action was originally

filed in the Court of Common Pleas of Fairfield County, Ohio, on
April 7, 2014.

Defendants filed a notice of removal on June 20,

2014, on the ground of federal question jurisdiction.
In his complaint, plaintiff alleges that he was employed by
defendants as the IT Infrastructure and Operations Manager for
Anchor Hocking.

Complaint, ¶ 6.

Plaintiff alleges that in

November, 2013, defendants’ general counsel discovered discrepancies
in Everyware’s financial disclosures, and told management that she
would

report

this

information

to

the

Securities

and

Exchange

Commission unless the issues were not corrected within ninety days.
Complaint,

¶

11-12.

General

counsel

was

terminated

by

the

defendants. Complaint, ¶ 14. Thereafter, Associate General Counsel
Erica Schoenberger approached plaintiff about participating in an
internal investigation into the matter.

Complaint, ¶15.

Plaintiff

stated that he was not comfortable with retrieving communications

for an investigation that involved upper level management and
plaintiff’s supervisors.

Complaint, ¶¶ 16-17.

As a result of

plaintiff’s concerns, an outside firm was retained to retrieve
information from cell phones and other equipment, and plaintiff’s
role was confined to working with the outside firm in retrieving
company emails.

Complaint, ¶¶ 18-19.

Plaintiff alleges that as

part of his job responsibilities, he was required to submit weekly
updates

regarding

his

tasks,

including

his

work

on

the

investigation, to Chief Financial Officer Bernard Peters, who was
one of the individuals implicated in the matter of inaccurate
financial disclosures.

Complaint, ¶¶ 23-27.

Plaintiff further alleges that after submitting these weekly
reports

to

Peters,

plaintiff

began

experiencing

retaliation,

including the cancellation of a vacation day, the rescheduling of
weekly meetings to times when plaintiff would be unable to attend,
and the inclusion of his name on a list of individuals targeted for
termination.

Complaint, ¶¶31-34.

On January 21, 2014, plaintiff

was terminated, reportedly due to a reduction in force and the
elimination of his job.

Complaint, ¶¶ 39-40.

Plaintiff’s position

was then held, in sequence, by three younger and less experienced
individuals.

Complaint, §§42-47.

In his complaint, plaintiff advances the following claims: (1)
retaliation in violation of the Sarbanes-Oxley Act of 2002 (“SOX”),
18 U.S.C. §1514A; (2) wrongful termination in violation of public
policy under Ohio law; (3) age discrimination in violation of Ohio
Rev. Code Chapter 4112; and (4) promissory estoppel under Ohio law.
This matter is before the court on the defendants’ motion pursuant
to Fed. R. Civ. P. 12(b)(6) to dismiss the wrongful termination and

2

promissory estoppel claims for failure to state a claim for which
relief may be granted.
I. Rule 12(b)(6) Standards
In ruling on a motion to dismiss under Rule 12(b)(6), the court
must construe the complaint in a light most favorable to the
plaintiff, accept all well-pleaded allegations in the complaint as
true, and determine whether plaintiff undoubtedly can prove no set
of facts in support of those allegations that would entitle him to
relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008);
Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). To survive
a motion to dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

Conclusory

allegations or legal conclusions masquerading as factual allegations
will not suffice.
While

the

Id.
complaint

need

not

contain

detailed

factual

allegations, the “[f]actual allegations must be enough to raise the
claimed right to relief above the speculative level,” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must create a
reasonable expectation that discovery will reveal evidence to
support the claim.

Campbell v. PMI Food Equipment Group, Inc., 509

F.3d 776, 780 (6th Cir. 2007).

A complaint must contain facts

sufficient to “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.”

3

Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009).

Where the facts pleaded do not

permit the court to infer more than the mere possibility of
misconduct, the complaint has not shown that the pleader is entitled
to relief as required under Fed.R.Civ.P. 8(a)(2).

Id.

Plaintiff must provide “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not
do.”

Twombly, 550 U.S. at 555; see also Ashcroft, 556 U.S. at 679

(“Threadbare
supported

by

recitals
mere

of

the

elements

conclusory

of

statements,

a

cause

do

not

of

action,

suffice.”);

Association of Cleveland Fire Fighters v. City of Cleveland, Ohio,
502 F.3d 545, 548 (6th Cir. 2007).
II. Wrongful Termination Claim
Defendants move to dismiss plaintiff’s claim for wrongful
termination in violation of public policy, arguing that the remedies
afforded plaintiff under SOX are adequate to address the public
policy embodied in that statute.
The common-law doctrine of employment at will, under which an
employee

or

an

employer

may

legally

terminate

the

employment

relationship at any time and for any reason, generally governs
employment relationships in Ohio.

Mers v. Dispatch Printing co.,

19 Ohio St.3d 100, 103, 483 N.E.2d 150 (1985).

However, Ohio

recognizes a public policy exception to the employment-at-will
doctrine when an employee is discharged or disciplined for a reason
which is prohibited by statute.

See Greeley v. Miami Valley

Maintenance Contrs., Inc, 49 Ohio St.3d 228, Syll. Para. 1, 551
N.E.2d 981 (1990).

The elements for the tort of wrongful discharge

in violation of public policy are: (1) that a clear public policy
existed and was manifested in a state or federal constitution,

4

statute or administrative regulation, or in the common law; (2) that
dismissing employees under circumstances like those involved in
plaintiff’s dismissal would jeopardize the public policy; (3) that
plaintiff’s dismissal was motivated by conduct related to the public
policy; and (4) that the employer lacked an overriding legitimate
business justification for the dismissal.

Leininger v. Pioneer

National Latex, 115 Ohio St.3d 311, 313, 875 N.E.2d 36 (2007).

The

first and second elements are questions of law to be determined by
the court.

Id.

In addressing the second element (the so-called “jeopardy”
element), the Ohio Supreme Court has declined to recognize a commonlaw claim for wrongful termination in cases where plaintiff is
provided with sufficiently broad and inclusive remedies by the
statute expressing the public policy.

See Wiles v. Medina Auto

Parts, 96 Ohio St.3d 240, 244, 773 N.E.2d 526 (2002)(noting that
there is “no need to recognize a common-law action for wrongful
discharge if there already exists a statutory remedy that adequately
protects society’s interests”).

In such a case, public policy is

not jeopardized by the absence of a common-law action in tort
“because an aggrieved employee has an alternate means of vindicating
his or her statutory rights ... thereby discouraging an employer
from engaging in the unlawful conduct.”

Id.

In Wiles, the

plaintiff relied on the Family Medical Leave Act (“FMLA”) as the
source of public policy supporting his wrongful discharge claim.
The Ohio Supreme Court noted that even though the FMLA might not
provide

all

of

the

remedies,

such

as

punitive

damages

or

compensation for emotional distress, which might be recovered under
common law, “the absence of those items of recovery does not render

5

the statutory remedies inadequate” and there was “no need to create
by judicial fiat further remedies by way of a Greeley claim when the
FMLA provides reasonably satisfactory ones.”

Id. at 247-248.

Similarly, in Leininger, 115 Ohio St.3d at 319, the Ohio
Supreme Court held that the jeopardy element was not satisfied where
Ohio Rev. Code Chapter 4112 adequately protected the state’s policy
against age discrimination in employment through the remedies it
offers to aggrieved employees.

The court concluded that “it is

unnecessary to recognize a common-law claim when remedy provisions
are an essential part of the statutes upon which the plaintiff
depends

for

the

public

policy

claim

and

when

those

remedies

adequately protect society’s interest by discouraging the wrongful
conduct.”

Id. at 317.

In this case, the public policy relied upon by plaintiff is
contained in SOX, as codified in 18 U.S.C. §1514A.

That statute

provides whistleblower protection for employees of publicly traded
companies by creating a civil action for retaliation.

Section

1514A(a) provides in relevant part that no publicly traded company
may discharge, demote, suspend, threaten, harass, or in
any other manner discriminate against an employee in the
terms and conditions of employment because of any lawful
act done by the employee—
(1) to provide information, cause information to be
provided, or otherwise assist in an investigation
regarding any conduct which the employee reasonably
believes constitutes a violation of section 1341 [mail
fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348
[securities fraud], any rule or regulation of the
Securities and Exchange Commission, or any provision of
Federal law relating to fraud against shareholders, when
the information or assistance is provided to or the
investigation is conducted by—
* * *
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(C) a person with supervisory authority over the employee
(or such other person working for the employer who has
the authority to investigate, discover, or terminate
misconduct)[.]
18 U.S.C. §1514A(a).

Under 18 U.S.C. §1514A(b), an employee who

alleges discharge or any discrimination in violation of subsection
(a) may file a civil action in a United States district court and
shall be entitled to a jury trial.
(2)(E).

18 U.S.C. §1514A(b)(1)(B) and

A prevailing employee is entitled to “all relief necessary

to make the employee whole.”

18 U.S.C. §1514A(c)(1).

Available

compensatory damages include reinstatement with the same seniority
status that the employee would have had but for the discrimination,
back pay with interest, and “compensation for any special damages
sustained as a result of the discrimination, including litigation
costs, expert witness fees, and reasonable attorney fees.”

18

U.S.C. §1514A(c)(2)(A)-(C).
In Mann v. Fifth Third Bank, Nos. 1:09-cv-14, 1:09-cv-476
(unreported), 2011 WL 1575537 (S.D.Ohio 2011), another judge of this
court addressed the issue of whether a plaintiff asserting a SOX
claim could also bring a claim for wrongful discharge in violation
of public policy under Ohio law.

The plaintiff bank employee

alleged that he was discriminated against for reporting alleged
improper practices regarding inadequate staffing, loan closings,
appraisals and other practices allegedly related to fraud against
the bank’s shareholders to his superiors.
The

court

preventing

concluded
fraudulent

that
or

because
poor

the

lending

2011 WL 1575537 at *9.
Ohio

public

practices

policy

of

injurious

to

shareholders was fully vindicated by SOX’s “full panoply of remedies
if someone is fired for reporting such violations[,]” that policy

7

would not be jeopardized if plaintiff could not sue in tort for
wrongful discharge. Id. at *12. The court then held that plaintiff
had failed to establish the jeopardy element of his wrongful
discharge claim.

Id.

Other courts have reached the same conclusion.
Fannie Mae,

F.Supp.2d

In Taylor v.

, 2014 WL 4219553 at *4 (D.D.C. August

25, 2014), the court applied the law of the District of Columbia
(that there is no need to create a new exception to the at-will
employment doctrine where there is already a statutory framework in
place), and held that SOX provided a suitable remedy for plaintiff’s
termination. The district court in Hein v. AT & T Operations, Inc.,
No. 09-cv-00291-WYD-CVS (unreported), 2010 WL 5313526 at *5-6 (D.
Colo. Dec. 17, 2010) considered Colorado law, which provided that
a public policy exception to the at-will doctrine is not available
when the statute relied upon for the policy provides a remedy for
retaliatory discharge, and dismissed plaintiff’s wrongful discharge
claim because SOX provided its own remedy for retaliatory discharge.
In Day v. Staples, Inc., 555 F.3d 42 (1st Cir. 2009), the court
declined

to

recognize

a

claim

for

wrongful

termination

under

Massachusetts common law in light of plaintiff’s SOX claim, noting:
In passing SOX, Congress aimed to create comprehensive
legislation to fill the gaps in a patchwork of state laws
governing
corporate
fraud
and
protections
for
whistleblowers. It would be entirely inappropriate for
plaintiff to be able to use a federal statute designed to
address the inadequacies of state law to create a new
common law cause of action under Massachusetts law.
555 F.3d at 59-60.
This court concludes that SOX provides sufficiently broad and
inclusive remedies which adequately protect the public policy
embodied in that statute, and that it would not be appropriate to
8

recognize a common-law action in tort.

Even if it later develops

that SOX does not provide for punitive damages or other remedies
which might be available at common law, the make-whole remedies
provided under SOX

are “reasonably satisfactory ones.”

Wiles, 96

Ohio St.3d at 248.
Plaintiff argues that he has pleaded his SOX and wrongful
discharge claims as alternative theories of recovery, and

that he

should therefore be entitled to proceed on his wrongful discharge
claim in case he does not prevail on his SOX claim.

While a

litigant is entitled to plead claims in the alternative, see Fed.
R. Civ. P. 8(d)(2) and (3), this rule does not insulate claims which
are insufficient from dismissal under Rule 12(b)(6). Under the Ohio
law discussed in Leininger, plaintiff’s wrongful termination claim
would not be recognized as a viable exception to the termination-atwill doctrine.

Because SOX provides adequate remedies to protect

the public policy advanced by that statute, plaintiff cannot prove
the jeopardy element of his wrongful termination claim as a matter
of law.
In addition, the Ohio Supreme Court has held that where the
plaintiff failed to prevail under Ohio Revised Code §4113.52, the
Ohio whistleblower statute, the plaintiff also had no foundation for
a Greeley claim for wrongful termination. Contreras v. Ferro Corp.,
73 Ohio St.3d 244, 251, 652 N.E.2d 940 (1995); see also Kulch v.
Structural Fibers, Inc., 78 Ohio St.3d 134, 677 N.E.2d 308, 323
(1997)(“The obvious implication of Contreras is that an employee who
fails to strictly comply with the requirements of R.C. 4113.52
cannot base a Greeley claim solely upon the public policy embodied
in that statute.”).

In light of Contreras, the Sixth Circuit has

9

held that “where the sole source of the asserted public policy is
a whistleblower statute, state or federal, an employee must comply
strictly with the dictates of the statute.”

See Hill v. Mr. Money

Finance Co. and First Citizens Banc Corp., 309 F.App’x 950, 964 (6th
Cir. 2009)(noting that if plaintiff’s claims under the federal
whistleblower statutes fail, then his public policy claims for
wrongful termination based on those statutes must also fail).
Because SOX is a federal whistleblower statute and the sole source
of policy identified in plaintiff’s memorandum contra the motion to
dismiss, if plaintiff fails to prevail on his SOX claim, he will
lose the basis for his wrongful termination claim as well.
Plaintiff also relies on Sutton v. Tomco Machining, Inc, 129
Ohio St.3d 153, 950 N.E.2d 938 (2011), for the proposition that even
if he does not win on his SOX claim, he should still be able to
proceed on his wrongful termination claim.
distinguishable.

However, Sutton is

In that case, the plaintiff was terminated after

being injured but before filing a workers’ compensation claim.
Ohio

retaliation

statute

governing

the

filing

of

The

workers’

compensation claims only prohibited retaliatory acts against an
employee after he had filed a claim.

The Ohio Supreme Court found

that the General Assembly did not intend to leave this gap in
protection for employees who had not yet filed claims, and that
§4123.90 expressed a clear public policy prohibiting retaliatory
employment action against injured employees, even those who had not
yet filed a workers’ compensation claim.

Id. at 160.

The court

also concluded that because the statute’s remedies were not
available to workers such as plaintiff who suffered retaliation
before filing a claim, plaintiff could pursue a common law cause of

10

action for wrongful discharge. Id. at 161. In this case, plaintiff
does not identify a gap in SOX’s coverage which would preclude him
from seeking the remedies available under §1514A.
Because SOX provides an adequate remedy, plaintiff has not
shown that he can establish the jeopardy element of the Ohio commonlaw claim for wrongful termination in violation of public policy,
and plaintiff’s claim for wrongful termination fails to state a
claim for relief.
III. Promissory Estoppel Claim
Defendants argue that plaintiff has failed to plead sufficient
facts to state a claim for promissory estoppel.
promissory

estoppel

claim

under

Ohio

law

The elements of a

are:

(1)

a

clear,

unambiguous promise: (2) reliance upon the promise by a person to
whom the promise is made; (3) the reliance is reasonable and
foreseeable; and (4) the person claiming reliance is injured as a
result of the reliance on the promise.

Weiper v. W.A. Hill &

Associates, 104 Ohio App.3d 250, 260, 661 N.E.2d 796 (1995).
In the employment context, a promise of future employment
benefits or opportunities without a specific promise of continued
employment does not support a promissory estoppel exception to the
doctrine of employment at will.

Wing v. Anchor Media, Ltd. of

Texas, 59 Ohio St.3d 108, 110-11, 570 N.E.2d 1095 (1991); Lawson v.
AK Steel Corp., 121 Ohio App.3d 251,

256, 699 N.E.2d 951 (1997).

In Welch v. Finlay Fine Jewelry Corp., No. 01 AP-508 (unreported
Tenth Dist.), 2002 WL 206047 at *3 (Ohio App. Feb. 12, 2002), the
court upheld the trial court’s dismissal of plaintiff’s promissory
estoppel claim where plaintiff’s complaint failed to allege “either
a promise of continued employment or state any facts from which it

11

could be inferred that such a promise was made.”
In addition, any alleged employment agreement is at will and
terminable by either party where it fails to specify a certain term
or duration. Henkel v. Educational Research Council of Am., 45 Ohio
St.2d

249,

Syll.,

344

N.E.2d

118

(1976);

Nealon

v.

City

Cleveland, 140 Ohio App.3d 101, 109, 746 N.E.2d 694 (2000).

of
In

Rhodes v. R & L Carriers, Inc., 491 F.App’x 579 (6th Cir. 2012), the
Sixth Circuit upheld the district court’s dismissal of plaintiff’s
promissory estoppel claim.

The court noted that under Ohio law,

“the promise at a minimum not only must be sufficiently clear and
unambiguous, but also must promise ‘continued employment for a
specific period.’”

Id. at 585 (quoting Steele v. Mara Ents., Inc.,

No. 09AP-102 (unreported Tenth Dist.), 2009 WL 3494847 at *3 (Ohio
App. Oct. 29, 2009)). An employer’s promise of continued employment
until some unspecified date, such as death or retirement, does not
satisfy this requirement.

Id.

The plaintiff must point to specific promises, and cannot rely
on nebulous representations by the employer.

Penwell v. Amherst

Hospital, 84 Ohio App.3d 16, 20, 616 N.E.2d 254 (1992).
evidence

of

a

specific

promise

of

continued

Absent

employment,

the

employee’s subjective understanding is insufficient as a matter of
law to create an inference of continued employment upon which to
base the promissory estoppel exception to the employment-at-will
doctrine.
Ohio

Weiper, 104 Ohio App.3d at 261; see also Nuovo v. The

State

University,

2010)(complaint’s

vague

726
and

F.Supp.2d
general

829,

842

allegations

(S.D.Ohio
essentially

reflecting plaintiff’s subjective conclusions were insufficient to
present a clear and unambiguous promise by the employer that

12

plaintiff’s reports of alleged misdiagnoses would not subject him
to retaliation, where plaintiff did not indicate what promise led
to these subjective conclusions).
In the instant case, plaintiff makes the general, conclusory
allegation that there was “a clear and unambiguous promise to
Plaintiff that Defendants would neutrally apply its policies and
procedures,

making

employment

decisions.”

Complaint,

¶

72.

Plaintiff also alleges that there was a “clear and unambiguous
promise to Plaintiff that his cooperation and participation in the
internal

investigation

Defendants.”

would

not

harm

his

employment

with

Plaintiff further alleges that he “did, in fact,

cooperate and participate in the internal investigation, following
all directives that were given to him.”

Complaint, ¶ 74.

However,

the complaint fails to describe the wording of the allegedly “clear
and unambiguous” promises, or to identify when and by whom the
promises

were

made.

The

complaint

does

not

state

what

the

defendants’ “policies and procedures” were, or where they were
recorded, or whether they were ever specifically referred to by
defendants or disclosed to plaintiff as part of a promise.

What

amounts to plaintiff’s subjective belief that his job would be
secure if he followed all directions from his supervisors is not
sufficient to support a promissory estoppel claim.

See Welch, 2002

WL 206047 at *3 (“Plaintiff’s subjective belief that if she obeyed
her supervisor’s order she would be ensured continued employment
cannot be a substitute for allegations of a specific promise of
continued

employment

by

the

employer.”)

There

are

also

no

allegations in the complaint that plaintiff was promised continued
employment for a specific period.

13

In response to defendants’ motion to dismiss, plaintiff notes
the allegations in the complaint indicating that he expressed his
discomfort to Schoenberger about participating in the investigation
by retrieving the communications of upper level management and his
supervisors.

Plaintiff further notes that the complaint alleges

that, as a result of plaintiff’s concerns, an outside firm was hired
to retrieve information from cell phones and other equipment for
chain of custody purposes, and plaintiff’s role in the investigation
was limited to retrieving company emails and working with the
outside firm.

Complaint, ¶¶ 15-19.

Plaintiff argues that this

factual information is sufficient to allege that he was promised
that his role in the investigation would not impact his employment.
However, no reference is made in those paragraphs to any specific
promise which was made to plaintiff concerning job security.
Plaintiff’s subjective understanding based on these circumstances
that the safety of his job was guaranteed is insufficient to
demonstrate a promise of continued employment upon which to base the
promissory estoppel exception to the employment-at-will doctrine.
See Weiper, 104 Ohio App.3d at 261.
As

stated

earlier,

to

survive

a

motion

to

dismiss,

the

“complaint must contain either direct or inferential allegations
with respect to all material elements necessary to sustain a
recovery under some viable legal theory.” Mezibov, 411 F.3d at 716.
“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”

Ashcroft, 556 U.S.

at 679. The complaint fails to allege sufficient facts to show that
a clear, specific and unambiguous promise of continued employment
was made to plaintiff by defendants, an essential element of the

14

promissory estoppel claim.

Plaintiff’s promissory estoppel claim

fails to state a claim for which relief may be granted.
IV. Conclusion
In accordance with the foregoing, defendants’ amended partial
motion to dismiss (Doc. 10) is granted.

Defendant’s original

partial motion to dismiss (Doc. 5), which was docketed before the
filing of the amended complaint, is moot.

Plaintiff’s claims of

wrongful discharge in violation of public policy (Second Claim for
Relief) and promissory estoppel (Fourth Claim for Relief) are
dismissed.

Date: November 10, 2014

s/James L. Graham
James L. Graham
United States District Judge

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