Livingston v. Agricultural Workers Mutual Auto Insurance Company
Filing
27
Memorandum Opinion and Order granting 23 Motion to Dismiss: The court ORDERS that defendant's motion to dismiss plaintiff's second amended complaint for failure to state a claim upon which relief may be granted be, and is hereby, granted; and The court further ORDERS that all claims and causes of action asserted by plaintiff against defendant be, and are hereby, dismissed. (Ordered by Judge John McBryde on 12/4/2014) (mdf)
f NOR~I~1~~~~;~EJ{A~
IN THE UNITED STATES DISTRIC COUR~
NORTHERN DISTRICT OF TEX S
]
FORT WORTH DIVISION
.
RONALD MAURICE LIVINGSTON,
Plaintiff,
VS.
AGRICULTURAL WORKERS MUTUAL
AUTO INSURANCE COMPANY.
Defendant.
-. 421114
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CLERK, U.S. DISTRICT COURT
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~DEC
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By _ _--=:---l)epury
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NO. 4:14-CV-624-A
MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of defendant, Agricultural Workers Mutual Auto Insurance
Company, to dismiss plaintiff's second amended complaint for
failure to state a claim upon which relief may be granted.
After
having considered such motion, the response of plaintiff, Ronald
Maurice Livingston, thereto, defendant's reply, the second
amended complaint, and pertinent legal authorities, the court has
concluded that such motion should be granted.
1.
Nature of the Claims Made by Plaintiff
in the Second Amended Complaint
Plaintiff asserted against defendant in the second amended
complaint that (1) defendant engaged in discrimination against
plaintiff in his emploYment based on plaintiff's age,
(2)
defendant breached an oral contract of emploYment with plaintiff
..-
by terminating plaintiff's emploYment with defendant,
(3)
defendant's termination of plaintiff's emploYment was at a time
when plaintiff was an officer of defendant and was protected by
the by-laws of defendant from termination unless by action of
defendant's Board of Directors,
(4) his termination was wrongful
because it was the result of his refusal to commit a criminal
act, and (5) defendant defamed plaintiff by false statements of
facts made by defendant, acting through a representative,
concerning plaintiff in front of groups of employees of
defendant.
II.
The Grounds of the Motion to Dismiss
In response to plaintiff's breach of contract claim,
defendant contended that the facts alleged would plausibly lead
only to the conclusion that plaintiff was an at-will employee of
defendant when plaintiff's employment was terminated, with the
result that the second amended complaint failed to allege facts
that would support a breach of contract claim.
Defendant responded to plaintiff's claim that he has a cause
of action because termination of his emploYment had not been
approved by the Board of Directors by contending that there is no
private cause of action for unauthorized termination of an
officer's emploYment.
2
As to plaintiff's claim that he was terminated because he
refused to commit a criminal act, defendant responded that no
facts are pleaded by plaintiff that would support a reasonable
inference that his termination resulted from his refusal to
commit a crime.
Defendant maintained that plaintiff's defamation claim
should be dismissed because plaintiff has failed to plead facts
that would lead to a plausible conclusion that defendant, through
a representative, made statements about defendant that would
constitute actionable defamation.
In addition, defendant
maintained that plaintiff has alleged no facts establishing that
he suffered any damage by reason of the statements he claimed
were defamatory.
As to the age discrimination claim, defendant maintained
that the facts alleged by plaintiff do not support an inference
that he was terminated, or compensated differently from others,
because of his age.
III.
Analysis
A.
Applicable Standards
Rule 8(a) (2) of the Federal Rules of civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
3
of the claim showing that the pleader is entitled to relief,"
Fed. R. civ. P. 8(a) (2),
"in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
quotation marks and ellipsis omitted).
(internal
Although a complaint need
not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.
Twombly, 550 U.S. at 555 & n.3.
Thus, while a court
must accept all of the factual allegations in the complaint as
true, it need not credit bare legal conclusions that are
unsupported by any factual underpinnings.
556 U.S. 662, 669 (2009)
See Ashcroft v. Iqbal,
("While legal conclusions can provide
the framework of a complaint, they must be supported by factual
allegations.") .
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
plausible.
Id.
To allege a plausible right to relief, the facts
pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient.
U.S. at 566-69.
Twombly, 550
"Determining whether a complaint states a
plausible claim for relief . .
[is] a context-specific task
4
that requires the reviewing court to draw on its judicial
experience and common sense."
B.
Iqbal, 556 U.S. at 679.
The Breach of Contract Claim
Plaintiff acknowledged that when he went to work for
defendant he was an at-will employee.
He pleaded that an oral
contract of emploYment came into existence because he was led to
believe that he was being groomed to replace a higher ranking
employee, and because he made a special effort to do things that
would assist him in obtaining such a promotion.
He claimed he is
entitled to recover from defendant because defendant breached
that oral agreement.
For plaintiff to be successful in the pleading of such a
claim, he would be required under Texas law to plead facts
establishing ~(1) the existence of a valid contract;
(2)
performance or tendered performance by the plaintiff;
(3) breach
of the contract by the defendant; and (4) damages sustained by
the plaintiff as a result of the breach."
smith Int'l, Inc. v.
Egle Grp., LLC, 490 F.3d 380, 387 (5th Cir. 2007).
The terms of
a contract must be certain enough that there is no doubt what the
parties intended.
See Nickerson v. E.I.L. Instruments, Inc., 874
S.W.2d 936, 939 (Tex. App.--Houston [1st Dist.], 1994, pet.
denied) .
5
Unless there is a "specific agreement to the contrary,
emploYment may be terminated by the employer or the employee at
will, for good cause, bad cause, or no cause at all."
Montgomery
Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).
While an oral agreement can modify an employee's at-will status,
the facts must indicate with certainty the employer's "definite
intent to be bound not to terminate the employee except under
clearly specified circumstances."
of fact,
rd.
Plaintiff's allegations
if accepted as true, would not establish the existence
of a valid oral contract of emploYment.
Plaintiff's conclusory allegation that his "status as an atwill employee was modified when [he] was offered and accepted an
oral contract to be promoted to senior vice-president upon
Hencke's retirement," 2d Am. Compl. at 9, , 14, does not satisfy
plaintiff's obligation to plead facts from which the inference
reasonably can be drawn that plaintiff has factual bases for a
breach of oral contract claim.
The facts plaintiff pleaded are
too indefinite to lead to a plausible conclusion that plaintiff's
at-will emploYment status was converted to a contractual
emploYment status.
See Kougl v. xspedius Mgmt. Co. of
Dallas/Fort Worth, LLC, No. 3:04-CV-2158-D, 2005 WL 1421446, at
*3
(N.D. Tex. June 1, 2005) {holding that an allegation that the
parties "entered into a written or oral agreement" without
6
offering additional supporting facts is a "conclusory allegation
for the existence of an oral contract that is devoid of the
factual support necessary to withstand dismissal under Rule
12(b)(6)").
For the reasons stated, plaintiff's breach of contract claim
is to be dismissed.
C.
The Claim Based on Improper-Termination-of-an-Officer Theory
This claim is based on the allegation that plaintiff, who
had been selected as a vice president of defendant, could only be
removed by defendant's Board of Directors.
Defendant maintained
in its motion that there is no private cause of action for
unauthorized termination of an officer.
The court decisions
cited by defendant on page 9 of its motion and on pages 4-5 of
its reply, while not factually in point, tend to support this
ground of defendant's motion.
Plaintiff cited on pages 6-8 of
his response court decisions in support of his opposition to the
motion to dismiss on this point, but the court does not consider
those decisions persuasive.
The court has not found any
authority that would cause the court to think that plaintiff has
alleged facts that would support a cause of action for
"unauthorized termination of officer."
7
There is no reason to think that the Texas Supreme Court is
likely to create, or recognize such a cause of action.
Therefore, that claim is to be dismissed.
D.
The Claim Based on Theory that Plaintiff Was Terminated
Because He Would Not Commit a Crime
This claim appears to be predicated on the holding of the
Texas Supreme Court in Sabine pilot Serv., Inc. v. Hauck, 687
S.W.2d 733
(Tex. 1985).
For a plaintiff to prevail on a Sabine
Pilot claim, he must allege and prove that (1) his employer
directed him to commit a crime carrying criminal penalties,
(2)
he refused to commit the crime, and (3) his employer discharged
him for the sole reason that he refused to commit the crime.
at 735.
659
Id.
See also Safeshred, Inc. v. Martinez, 365 S.W.3d 655,
(Tex. 2012); Ed Rachal Found. v. D'Unger, 207 S.W.3d 330, 332
(Tex. 2006).
Sabine pilot applies only if the plaintiff is
forced to choose between committing a criminal act and being
discharged.
See Burling v. Davis, No. 01-00-01279-CV, 2002 WL
188485, at *2 (Tex. App.--Houston [1st Dist.] Feb. 7, 2002, no
pet.) (not designated for publication); see also winters v.
Houston Chronicle PUbl'g Co., 795 S.W.2d 723, 724
(Tex.
1990) {holding that the plaintiff did not qualify for a Sabine
pilot cause of action "because he was not unacceptably forced to
8
choose between risking criminal liability or being discharged
from his livelihood").
Plaintiff has not alleged facts that, if believed, would
state a Sabine pilot cause of action.
He alleged that he
witnessed many severe breaches of fiduciary duties on the part of
a fellow employee, and that he refused to sit by and allow his
fellow employee to breach his fiduciary duties.
However, there
is no allegation of facts in the second amended complaint
indicating that plaintiff was directed by defendant to commit a
crime, that any action he refused to perform carried criminal
penalties, that he refused to do anything that would have been a
crime if he had done it, or that if he refused to commit a crime
he would be discharged.
Moreover, plaintiff's allegations affirmatively establish
that his discharge was not solely because of circumstances that
he argued constituted refusal to commit a crime.
He made the
allegation on page 6 of his second amended complaint that his
"interference with [activities of a fellow employee that he
considered to be to the detriment of defendant] and his age were
the ultimate and actual reasons for his termination."
Compl. at 6,
~
2d. Am.
9.
Thus, plaintiff never alleged that he was required to commit
any of the acts that he argued were illegal, and he affirmatively
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-------------------------------------------------
alleged that the termination of his employment was the result of
something other than a refusal to commit a crime.
For the
reasons stated, plaintiff's Sabine pilot claim is to be
dismissed.
E.
The Defamation Claim
Plaintiff's defamation claim is based on plaintiff's
allegation that defendant's president directed one of defendant's
fellow employees to tell other employees of defendant that
plaintiff had been "guilty of severe insubordination by going
behind [the president's] back to the Board."
rd. at 7, ~ 10, 11,
~ 17.
For a claim of defamation to be stated, the plaintiff must
allege that (1) the defendant published a statement of fact, as
opposed to opinion,
(2) the statement was false,
(3)
the
statement was defamatory concerning the plaintiff, and (4) that
the defendant acted negligently regarding the truth of the
statement.
See Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.--
Dallas 2011, no. pet.).
A defamatory statement is one that an
ordinary person would interpret in a way that "tends to injure []
a person's reputation and thereby expose the person to pUblic
hatred, contempt or ridicule, or financial injury or to impeach
[the] person's honesty, integrity, virtue, or reputation."
10
rd.
The decision of whether a statement is reasonably capable of
a defamatory meaning is a question of law to be decided by the
court.
See Musser v. Smith Protective Servs., Inc., 723 S.W.2d
653, 654-55 (Tex. 1987).
In making that determination, the court
should consider "how a person of ordinary intelligence would
perceive the entire statement."
Id. at 655.
The court has
concluded that the statement of which plaintiff complained was
not reasonably capable of a defamatory meaning.
A person of
ordinary intelligence would not perceive the statement as
exposing plaintiff to pUblic hatred, contempt or ridicule, or
financial injury, or as impeaching plaintiff's honesty,
integrity, virtue, or reputation.
Moreover, the court agrees with defendant that the statement
of which plaintiff complained is more of a statement of an
opinion than of fact.
The fact incorporated into the statement
was that plaintiff said or reported something to defendant's
Board of Directors.
The embellishment that his having done so
constituted "severe insubordination" or "going behind Hill's
back" are mere expressions of opinions.
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The only fact, i.e.,
that plaintiff said or reported something to the Board of
Directors, included in the statement apparently was true.!
Beyond that, the content of the allegedly defamatory statement
was nothing more than opinions.
For the reasons stated, plaintiff's defamation claim is to
be dismissed.
F.
The Age Discrimination Claim
The integrity of plaintiff's claim that defendant
discriminated against him by reason of his age can perhaps best
be measured by an allegation made on page 10 of the second
amended complaint.
Plaintiff unqualifiedly alleged that he was
terminated from his emploYment with defendant for a reason other
than his age, stating that "[p]laintiff refused to sit by and
allow Hill to continue to breach his fiduciary duties to the
company and it was this reason that he was terminated from his
employment with Defendant./I
added).
2d Am. Compl. at 10, , 16 (emphasis
Plaintiff did allege at other places in his complaint
that age was one of the factors that led to his termination.
On
page 6 he alleged that his "interference with [the activities of
a superior] and his age were the ultimate and actual reasons for
lPlaintiff alleged in the second amended complaint that he "sought to remedy [issues about which
he had concern] by asking for the assistance of board members and other officers ...." 2d. Am. Compo
at 6, ~ 9. And, plaintiff alleged that his "actions in dealing with the Board of Directors was at all times
with the consent and assurance of Hill." rd. at 11, ~ 18.
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his termination," id. at 6, , 9; but, at page 7 plaintiff alleged
that "Hill feared that [plaintiffl might go to a competitor and
implement his proven idea there, to Ag Worker's detriment" and
that plaintiff "believes that this was the reason that Hill began
a campaign to destroy Plaintiff's business reputation," id. at 7,
, 10.
He alleged on that same page that he believed that the
reason defendant gave for termination of his emploYment "was not
true and was but a pretext to discriminate against him because of
his age and because he stood in the way of continued breaches of
fiduciary duties."
Id.
Plaintiff asserted age-discrimination claims under the Texas
Commission on Human Rights Act ("TCHRA") as well as the Age
Discrimination in EmploYment Act ("ADEA").
"Under the ADEA, a
plaintiff must prove that age was the 'but for' of the challenged
adverse emploYment action," Reed v. Neopost USA, Inc., 701 F.3d
434, 440 (5th Cir. 2012), while "[ulnder the TCHRA, however, a
plaintiff need only show that age was a 'motivating factor' in
the defendant's decision," id.
The allegations of plaintiff in
his second amended complaint fail to satisfy either standard.
For that reason alone, plaintiff fails to state a claim of
emplOYment discrimination based on his age.
More generally, when
the court considers the allegations of fact in the second amended
complaint in their entirety, the court cannot reasonably infer
13
that plaintiff was subjected to employment discrimination because
of his age.
His conclusory allegations to that effect do not
carry the day under Twombly and Iqbal.
A plaintiff alleging age discrimination in employment,
whether under federal law or state law, must plead facts that
show either (1) direct evidence of age discrimination or (2)
indirect evidence of age discrimination by showing a prima facie
case based on circumstantial evidence.
See Acker v. Deboer,
Inc., 429 F. Supp. 2d 828, 837 (N.D. Tex. 2006).
Plaintiff has
done neither.
"Direct evidence is evidence that, if believed, proves the
fact in question without inference or presumption."
Id.
includes, in the employment discrimination context,
That
"any
statement or document which shows on its face that an improper
criterion served as a basis--not necessarily the sole basis, but
a basis--for [an] adverse employment action."
Id.
For "stray
remarks," such as those on which plaintiff relies, to constitute
direct evidence of discrimination, the alleged discriminatory
conduct must (1) relate to the protected class of persons of
which the plaintiff is a member,
the termination,
(2) occur proximate in time to
(3) be made by an individual with authority over
the employment decision at issue, and (4) relate to the
employment decision at issue.
See Holmes v. Drug Enforcement
14
Admin. t 512 F. Supp. 2d. 826
t
845 (W.D. Tex. 2007)
Jackson v. Cal-W. Packaging Corp.t 602 F.3d 374
t
i
see also
380 (5th Cir.
2010) .
Stray remarks such as those attributed in the second amended
complaint to plaintiffts superior regarding the ages of other
employees are not to be considered probative of discriminatory
intent or policies because the remarks were not about plaintiff t
and in no way related to plaintiffts termination.
602 F.3d at 380.
See Jackson t
The inquiries of plaintiff concerning his age
do not relate to termination of his emploYment.
Plaintiff
himself admitted in the amended complaint that he believed the
questions about his age were meaningless at the time.
Compl. at 4-5
t
~
8.
2d Am.
In any event t the mere fact that such
questions were asked does not constitute proof of direct
discrimination.
See Aker t 429 F. Supp. 2d at 839.
And t the
alleged difference in pay and failure to pay PTO t if true t could
well be based on factors independent of age discrimination.
The second amended complaint is similarly lacking in factual
allegations that t if believed t would established a prima facie
case of age discrimination.
A prima facie case is established by
showing that (1) plaintiff is a member of a protected groupt
he was qualified for the position at issue t
(2)
(3) he was discharged
or suffered some adverse emploYment action t and (4) he was (i)
15
replaced by someone outside the protected class,
(ii) replaced by
someone younger, or (iii) suffered an adverse action because of
his age.
See Machinchick v. PB Power, Inc., 398 F.3d 345, 350
(5th Cir. 2005).
Plaintiff failed to allege any facts that would
lead to a reasonable inference that he was replaced by someone
outside the protected class, replaced by someone younger, or
otherwise discharged or discriminated against because of his age.
For the reasons stated, plaintiff's age discrimination claim
is to be dismissed.
G.
Conclusion
Having concluded that all of plaintiff's claims are to be
dismissed, the court is granting defendant's motion to dismiss in
its entirety.
The facts pleaded by plaintiff do not allow the
court reasonably to infer that any theory of relief alleged by
plaintiff is plausible.
IV.
Order
Therefore,
The court ORDERS that defendant's motion to dismiss
plaintiff's second amended complaint for failure to state a claim
upon which relief may be granted be, and is hereby, granted; and
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The court further ORDERS that all claims and causes of
action asserted by plaintiff against defendant be, and are
hereby, dismissed.
SIGNED December 4, 2014.
17
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