Weidman v. Exxon Mobil Corporation et al

Filing 28

MEMORANDUM OPINION Re: 4 Motion to Dismiss for Failure to State a Claim, 6 Motion to Deny 4 Motion to Dismiss for Failure to State a Claim 7 Motion to Remand to State Court, 8 Motion to Delay Hearing on the 4 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Claude M. Hilton on 8/1/2013. Copy mailed to pltf pro se.(stas)

IN THE UNITED
FOR THE

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Alexandria Division
i

RICHARD C.

AUG -1 2013

WEIDMAN

ALEXANDRIA, VIRGIf j'A

Civil Action No.

v.

1:13-cv-00501

EXXON MOBIL CORPORATION,
et

,_• !

CLEHK U.S. OiSTR'CT ;".: jar

Plaintiff,

al.

Defendants
MEMORANDUM OPINION

This matter comes before the Court on Defendants 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, and

Meghan Hasson's (collectively "Defendants") Motion to Dismiss,

and Plaintiff Richard Weidman's ("Plaintiff") Motion to Deny
Defendant's Motion to Dismiss, Motion to Remand to State Court

and Motion to Delay Hearing.

Plaintiff, pro se, brought this

lawsuit against his former employer, Exxon Mobil Corporation
("ExxonMobil") and ten employees of ExxonMobil for fraud,

intentional infliction of emotional distress, personal injury,
and wrongful discharge/breach of contract.

Plaintiff was employed as a Senior Physician in
ExxonMobil's Fairfax, Virginia, office from 2007 until his
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;;

termination in January 2013.
action;

During all times relevant to this

Defendant Clarion Johnson ("Johnson")

served as the

Medical Director of ExxonMobil, Defendant Jeffrey Woodbury
("Woodbury") served as the Vice President of ExxonMobil for

Safety, Security,

Health and Environment and supervised Johnson,

Defendant Victoria Martin Weldon

("Weldon")

served as the U.S.

Director of Medicine and Occupational Health for ExxonMobil,

and began supervising Plaintiff in or around February 2010,
Defendant Stephen Jones ("Jones")

supervised Weldon,

reported to Johnson and

and Defendant Rex Tillerson ("Tillerson") is

the CEO of ExxonMobil.

Defendants Daniel

Whitfield

("Whitfield"), Kent Dixon ("Dixon), Jeremy Sampsell
("Sampsell"), and F. Bud Carr ("Carr"), conducted investigations
into Plaintiff's violation and retaliation reports.

Defendant

Meghan Hasson ("Hasson") is an ExxonMobil employee working in
the Human Resources Department.

Upon being hired as an ExxonMobil employee, Plaintiff was
required to read ExxonMobil's Standards of Business Conduct

("the handbook"), a handbook detailing employee standards with
respect to violations,

and the reporting of such,

retaliation by ExxonMobil against employees.

and non-

According to

Plaintiff, employees of ExxonMobil are prohibited, by the
handbook,

from creating an intimidating,

hostile,

or offensive

work environment, and from unreasonably interfering with an

individual's work performance.

Plaintiff claims that he

attended yearly meetings where videos were played depicting
Defendant Tillerson, CEO of ExxonMobil, guaranteeing that
employees would never suffer retaliation for reporting

violations of the law or violations of the ethics policies of
ExxonMobil.

Plaintiff alleges that in or around 2009 he discovered that

ExxonMobil had been operating illegal pharmacies in the United

States, and that large quantities of medication were being

illegally stockpiled in the ExxonMobil Fairfax, Virginia,
clinic,

as well as in other clinics.

Plaintiff asserts that

many senior managers were aware of the illegal activities,
including Johnson, Weldon and Jones.

Plaintiff further contends

that Defendant Jones requested that Plaintiff participate in a
scheme involving a pharmacy that was distributing stockpiled
medication to ExxonMobil employees.

In January 2010,

Plaintiff

says that he informed Defendant Johnson that he would not obtain
a New Jersey medical license to be used at an ExxonMobil medical

clinic as long as the clinic was operating an illegal pharmacy.
In response to this,

Plaintiff alleges that Defendant Johnson

became physically intimidating toward Plaintiff.

Following Plaintiff's report of violations, on an
unidentified date,

he alleges that Defendant Johnson initiated a

"campaign of retaliation" by humiliating Plaintiff and

characterizing him as a poor performer, and implying that
Plaintiff was a pedophile at an office gathering in January
2010.

Shortly thereafter,

Plaintiff reported, via email,

his

belief that Defendant Johnson was retaliating against him for

prior complaints, that ExxonMobil was violating pharmacy laws in
several states, that Defendant Johnson and the Medical

Department were permitting legal violations to occur, and that
Johnson had withheld information from corporate headquarters
that a nurse had been terminated for falsifying medical records.

ExxonMobil then proceeded to conduct an investigation into
Plaintiff's allegations and concluded that Defendant Johnson had
not harassed Plaintiff and that the pharmacies were legal.

On an unspecified date after the investigation into
Plaintiff's complaint, he alleges that various implications and
comments were made with respect to his ability to perform and

that he was required to begin participation in a performance
improvement plan.

In September 2011, Plaintiff claims to have

received an email from ExxonMobil's Legal Department alleging
that ExxonMobil pharmacies had been in violation of multiple
state

laws.

Plaintiff

then sent

another email to

unidentified

senior managers of ExxonMobil informing them that Defendant
Johnson and other members of the Medical Department had
retaliated against him and that there had been a cover up of
these actions in the course of the first investigation into

Plaintiff's complaints.

A second investigation was then

conducted; Defendant Sampsell and Carr led the investigation.

During the investigation, Defendant Carr allegedly admitted to
Plaintiff that ExxonMobil had been operating illegal pharmacies
for years and that Defendant Johnson had permitted the illegal
pharmacy operations.

Carr also told Plaintiff that he was a

poor performer and that ExxonMobil had developed a "plan" to

deal with Plaintiff and his complaints.
The meetings associated with the performance improvement
plan were conducted by Defendant Weldon and attended by
Defendant Hasson.

During the meetings,

there was purportedly no

mention of performance improvement, but only the creation of new
tasks for Plaintiff with the hope of over-burdening him and
causing his failure to perform.

In late October 2012,

supposedly complained to J. Seth Barnes,

Plaintiff

a Human Resources

representative, about the "oppressive and unjustifiable"
meetings conducted by Defendant Weldon.

Plaintiff claims to

have been particularly concerned about a performance improvement

meeting scheduled just days before he was to undergo surgery.
The meeting,

scheduled for October 24,

2012,

occurred and

Plaintiff claims to have had a heart attack during the meeting
as a result of the stress inflicted upon him.

Plaintiff's

employment was terminated in January 2013 for continued poor

work performance and failure to cooperate with the plan.

In order to survive a

Federal Rule of Civil Procedure Rule

12(b)(6) motion to dismiss a complaint must set forth "a claim

for relief that is plausible on its face."
Twombly, 550 U.S. 544, 547 (2007).

Bell Atl. Corp. v.

A claim is facially

plausible "when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged."

Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009); Twombly, 550 U.S. at 556.

"A pleading

that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do."

Iqbal,

129 S. Ct.

1937,

1949 (2009); Twombly,

Ashcroft v.

550 U.S.

at 555.

Further, "conclusory allegations regarding the legal effect of
the facts alleged" need not be accepted.
F.3d 918,

921

(4th Cir.

Labram v. Havel, 43

1995).

In order to establish his fraud claim Plaintiff must show

(1) a false representation;

intentionally and knowingly;

(2) of material fact;

(3) made

(4) with intent to mislead;

(5)

reasonable reliance by the party misled; and (6) resulting
damage to the misled party.

Prospect Dev. Co., Inc. v.

Bershader, 258 Va. 75, 515 S.E.2d 291 (1999).

Additionally,

Plaintiff "must state with particularity the circumstances
constituting fraud or mistake."

Fed. R. Civ.

P. 9(b).

Plaintiff needs to allege with particularity, "the time, place,
and contents of the false representations,

as well as the

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

See Harrison v. Westinghouse Savannah River

Co., 176 F.3d 776, 784 (4th Cir. 1999).

Plaintiff vaguely

refers to Defendant Tillerson,

and unnamed members of the Human

Resources and Law Departments,

representing that there would be

no retaliation against him for reporting violations.

These

representations, and the vague fraud allegations, seem to stem

primarily from the handbook and associated meetings.

Plaintiff

does not include the details of the representations or who made

them and when.

Plaintiff fails to allege with any specificity

the facts necessary to establish a fraud claim.
Additionally, a two year statute of limitations bars
Plaintiff's fraud claim because Plaintiff filed suit more than

two years after he concluded that the anti-retaliation policy he
claims to have relied upon was not being honored by ExxonMobil
and its employees.

Va. Code Ann.

§ 8.01-243(a).

Plaintiff's

Complaint admits that by 2010 he had concluded the antiretaliation policy was not being complied with.

Plaintiff

allegedly discovered that he was being retaliated against in
2010, more than two years prior to the time that he filed suit

in March 2013, thus his fraud claims are absolutely time barred

by Va. Code Ann. § 8.01-243(a) ("every action for damages
resulting from fraud, shall be brought within two years after

the cause of action accrues").

The limitations period begins

running when the fraud "is discovered or by the exercise of due
diligence reasonably should have been discovered."

Id. at §

8.01-249(1).

Counts II and III of Plaintiff's Complaint allege

intentional infliction of emotional distress and personal
injury.

To state a claim for intentional infliction of

emotional distress under Virginia law, a plaintiff must allege:
(1) the wrongdoer's conduct 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. Eldridqe, 215 Va. 338, 342, 210 S.E.2d 145, 148

(1974).

Plaintiff argues that he was accused of being a poor

performer and verbally attacked at times; he also contends he

was impliedly called a pedophile and a thief.

Plaintiff's

allegations fall far short of establishing outrageous and
intolerable conduct.

Even the allegations that Defendants

Johnson and Dixon falsely implied that Plaintiff was a pedophile
and a thief are insufficient as a matter of law to establish

"outrageous and intolerable conduct."

It is insufficient for a

defendant to have "acted with an intent which is tortious or

even criminal . . . liability has been found only where the
conduct has been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to
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be regarded as atrocious, and utterly intolerable in a civilized

community."
(1991).

Russo v. White, 241 Va. 23, 27, 400 S.E.2d 160, 161

Plaintiff sets forth no facts that rise to the level of

outrageous and intolerable conduct.

Additionally, the personal injury claim is barred by the
Virginia Workers' Compensation Act, which provides the exclusive
remedy for workplace injuries such as these.

65.2-100 et seq.

Va. Code Ann. §

Coverage under the VWCA is triggered, and

common law remedies barred, where the employee suffered "an
injury by accident arising out of and in the course of the

employment."

Va. Code Ann. § 65.2-101.

An injury, therefore,

falls within the purview of the VWCA if it: (1) occurs by
accident; (2) arises out of the employee's employment; and (3)
arises in the course of the employee's employment.

Combs v.

Virginia Elec. & Power Co., 259 Va. 503, 508, 525 S.E.2d 278,
281 (2000).

The injury Plaintiff points to, namely the heart

attack, was an accident that arose out of his employment with
ExxonMobil and in the course of his employment with ExxonMobil.
Plaintiff fails to state a claim for intentional infliction of

emotional distress or personal injury.

Plaintiff also fails to state a claim for wrongful

discharge.

Plaintiff made no showing to rebut the presumption

that he was an at-will employee.

When an employee is at-will,

in Virginia, either party may terminate the relationship at its

discretion for any reason, unless the discharge would violate
public policy.

See Miller v. SEVAMP, Inc., 234 Va. 462, 362

S.E.2d 915, 916-17 (1987).

Plaintiff failed to identify the

public policy statute that ExxonMobil violated in discharging
him from employment, and in allegedly operating illegal
pharmacies, and thus did not remotely establish that his

termination falls within the public policy exception.
Additionally, the handbook did not create a contract for
employment between ExxonMobil and Plaintiff.

Plaintiff has not

attached any purported agreement to the Complaint that would

establish a contract, or otherwise pleaded facts that adequately
describe any such contractual obligation.

Plaintiff fails to

state a claim for wrongful discharge or breach of contract.
As to Plaintiff's Motion to Remand,

Plaintiff cannot state

a claim as to Defendants Monsivaiz, Sampsell and Hasson.
Plaintiff's basis for the Motion to Remand is that this Court

does not have jurisdiction due to the fact that Defendants

Monsivaiz, Sampsell and Hasson are Virginia residents, therefore

creating a lack of complete diversity.

Defendants argue that

the 3 Defendants are fraudulently joined.

In order to establish

that a non-diverse defendant has been fraudulently joined, the
removing party must establish either: "[t]hat there is no
possibility that the plaintiff would be able to establish a

cause of action against the in-state defendant in state court;
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or [t]hat there has been outright fraud in the plaintiff's
pleading of jurisdictional facts."

Marshall v. Manville Sales

Corp., 6 F.3d 229, 232 (4th Cir. 1993).

For the aforementioned

reasons, Plaintiff fails to state a claim against these three
Defendants, or any of the Defendants for that matter.

Monsivaiz is not even mentioned in the Complaint.

Defendant

Plaintiff

fraudulently joined 3 of the 11 named Defendants - Jeremy
Sampsell, Gerard Monsivaiz, and Meghan Hasson - which allows

this Court to retain subject matter jurisdiction under 28 U.S.C.
§ 1332(a)(1).

Plaintiff's Motion to Deny the Motion to Dismiss is

improper and should be denied.

Plaintiff's Motion to Delay the

Hearing on the Motion to Dismiss is now moot.

&_
Claude M. Hilton

United States District Judge

Alexandria, Virginia
August J , 2013

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