Eddy v. Dollar General Corporation et al
Filing
94
MEMORANDUM OPINION AND ORDER granting in part and denying in part 57 Motion for Summary Judgment. The Court DISMISSES the defendants Scott Biddle and Lisa Barr WITH PREJUDICE. The Court ORDERS that the plaintiff's unauthorized surreply 79 be STRICKEN from the record. This case remains on the Court's trial docket and is scheduled as the second case on Tuesday, January 15, 2013. Signed by District Judge Irene M. Keeley on 1/4/2013. (kd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEBRA L. EDDY,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:11CV137
(Judge Keeley)
SCOTT BIDDLE, an individual, LISA BARR,
an individual, and DOLGENCORP, LLC,
a foreign Limited Liability Company,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Pending before the Court is the defendants’ motion for summary
judgment (dkt. no. 57). For the reasons that follow, the Court
GRANTS IN PART and DENIES IN PART the defendants’ motion.
I.
This action arises from the defendant, Dolgencorp, LLC’s
(“Dolgencorp”), termination of the plaintiff, Debra L. Eddy (“Eddy”
or “the plaintiff”), on May 27, 2011.1 Dolgencorp, a limited
liability company that owns and operates Dollar General stores,
maintains that it fired Eddy for violating company policy when she
took
certain
merchandise
from
a
Dollar
General
store
in
Blacksville, West Virginia, without first paying for her items.
Eddy, in contrast, contends that her termination was the result of
1
While the legal import of this date is subject to some
dispute, the parties do not contest that Eddy did not return to
work after May 27, 2011.
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
the unlawful and discriminatory conduct of Dolgencorp and two other
employees, the defendant Scott Biddle (“Biddle”), who was Eddy’s
supervisor, and the defendant Lisa Barr (“Barr”), who replaced her.
Eddy’s tenure with Dolgencorp began on either August 25, 2005,
or September 25, 2005,2 when she was hired as an Assistant Store
Manager (“ASM”) of the Dollar General store located in Blacksville,
West Virginia. She was promoted to the salaried position of Store
Manager (“SM”) of that store several months later, a position she
held until her termination.
As SM, Eddy bore the ultimate responsibility for the operation
of the Blacksville store. She was, in short, the one in charge. Her
responsibilities included the hiring, training, promotion, and
discipline of her subordinate employees, as well as the maintenance
of accurate inventory levels within her store. She was also
responsible for complying with and ensuring her subordinates’
compliance with the corporate policies of Dollar General. Of
particular relevance to this case is the Employee Purchase Policy
contained in both the Dollar General Employee Handbook as well as
Dollar General’s Standard Operating Procedures. This policy, in
pertinent part, provides that “[a]ll merchandise must be paid for
2
There is some confusion in the record as to the exact date.
Any discrepancy, however, is immaterial.
2
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
before it leaves the store. Failure to ring up all merchandise
could result in immediate termination for all involved employees.”
(Dkt. No. 58 at 7).
On May 1, 2010, Eddy hired Barr as Lead Sales Associate for
the Blacksville store. Approximately two months later, on June 28,
2010, Dolgencorp hired Biddle as the Retail District Manager (“DM”)
of a group of seventeen Dollar General stores known as District No.
245,
the
district
encompassing
the
Blackville
store.
As
DM,
Biddle’s job was to supervise each of the SMs who were operating
Dollar General stores within his district, including Eddy.
On the evening of May 18, 2011, well after the end of her
early morning shift, Eddy went to the Blacksville store to purchase
several items. Barr was working as the “manager on duty” that
evening, and another employee, Sarah Cross, was working as the
cashier. When Eddy brought her items to the sales counter for
purchase, Cross advised her that the credit card machines were not
working. Eddy set her items aside, went to her car, and then reentered the store. On her return, she told Barr and Cross that,
because she did not have any cash, she was going to take several
items, i.e., heating pads and dog treats, and return the following
day to pay for them.
3
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
The next day, Eddy saw a physician for a pain in her back that
she had been experiencing since earlier that month. Her doctor
diagnosed a low back sprain and gave her a note that excused her
from work through May 23, 2011. That night, Eddy went to the
Blacksville store to drop off the note. She also called Biddle and
advised him that she had left the doctor’s note at the store and
would be taking several days off. That day, May 19, 2011, she did
not pay for the items she had taken the day before.
Three days after Eddy dropped off the doctor’s note, on
May 21, 2011, Barr asked Paula Cummins, who was then the ASM of the
Blacksville store, if Eddy had paid for the items she had taken on
May 18, 2011. From there, the information traveled quickly up the
corporate chain. Cummins reported to Biddle that Eddy had taken
merchandise from the store without prior payment. Biddle, in turn,
reported the incident to the Regional Loss Prevention Manager, Lee
Holcomb.
In
response
to
Biddle’s
report,
Holcomb
visited
the
Blacksville store on May 23, 2011. His investigation consisted of
meeting with several employees, including Barr, and reviewing the
surveillance tapes of the night in question. After confirming that
Eddy had indeed left the store without paying for several items, he
told Biddle of his findings. At the direction of his Regional Human
4
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Resources Manager, from whom he sought advice, Biddle held off on
any further action until Eddy returned to the store and could make
a statement.
At some point during this time period, another employee told
Eddy that it was rumored she was going to be fired when she
returned to work. Subsequently, on May 26, 2011, after Holcomb’s
investigation and while she was still on sick leave, the plaintiff
visited the store and paid for her merchandise. She officially
returned to work the next day.
When Eddy returned to the Blacksville store on May 27, 2011,
Biddle facilitated a phone conversation between her and Holcomb.
During that conversation, Holcomb advised Eddy that he had reviewed
the store’s security footage and had seen her taking certain items
from the store without payment. After telling Holcomb she had, in
fact, paid for the items in question the day before, Eddy collected
her May 26, 2011 receipt and showed it to Biddle. At Holcomb’s
direction, Biddle then asked Eddy to prepare a written statement,
which she completed voluntarily. In that statement, she admitted
that she had taken “heat wraps” from the store on May 18, 2011,
with the intention of paying for them on a later date. (Dkt. No.
57-8 at 2). Biddle relayed the contents of her statement to
Holcomb, who advised him to contact Human Resources. The Human
5
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Resources
representative,
discharged.
Thus,
on
May
in
27,
turn,
2011,
recommended
Biddle
that
Eddy
terminated
be
Eddy’s
employment with Dolgencorp. She was forty-nine years old.
Approximately one month after he terminated Eddy, Biddle
approached two employees, Barr and Cummins, and told them that they
could take an on-line test if they were interested in filling the
vacant SM position. Cummins declined, but Barr took the test,
passed, and was promoted to Eddy’s former position. At the time of
her promotion, Barr was forty-six years old.
Eddy filed the instant suit on July 29, 2011, in the Circuit
Court of Monongalia County, West Virginia, alleging (1) common law
wrongful discharge; (2) age discrimination; (3) defamation; (4)
conspiracy; (5) outrage; (6) state and federal wage and hour law
violations; and (7) West Virginia Wage Payment and Collection Act
violations. The defendants timely removed this civil action under
28 U.S.C. §§ 1441 and 1446 on August 29, 2011, invoking this
Court’s federal question jurisdiction pursuant to 28 U.S.C. § 1331.
The defendants argue that there are no disputed issues of material
fact for a jury to decide as to any of Eddy’s claims, and they have
accordingly moved for summary judgment on all counts. The motion is
now fully briefed and ripe for review.
6
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
II.
Summary
documents,
judgment
is
electronically
declarations,
stipulations
appropriate
stored
.
.
where
the
information,
.,
admissions,
“depositions,
affidavits
or
interrogatory
answers, or other materials” show that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed R. Civ. P. 56(c)(1)(A), (a). When ruling on
a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party. Providence
Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000). The Court must avoid weighing the evidence or determining
the truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court
of
the
basis
for
the
motion
and
of
establishing
the
nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
7
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
nonmoving party will not prevent the entry of summary judgment; the
evidence
must
be
such
that
a
rational
trier
of
fact
could
reasonably find for the nonmoving party. Id. at 248–52.
III.
Given the overlapping legal issues in several of Eddy’s
counts, the Court addresses her causes of action in logical order.
A.
Wrongful Discharge
Eddy’s first cause of action, entitled “Common Law Wrongful
Discharge,” alleges that she was discharged in violation of “[the
defendants’] own Dollar General Handbook” because her termination
(1) “was not warranted in [her] particular case,” and (2) was in
violation of the company policy of providing employees “a positive
work environment” premised on “respect and opportunity.” (Dkt. No.
9-1 at 6). According to the complaint, the totality of this conduct
“was in violation of West Virginia Public Policy.” Id. In their
memorandum in support of summary judgment, the defendants refute
that a purported violation of company policy - the only potential
“West Virginia Public Policy” identified by the plaintiff in
discovery - can serve as an exception to West Virginia’s at-will
employment doctrine.
In West Virginia, an employment relationship of indefinite
duration is “presumed to be terminable at any time at the will of
8
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
the employer or of the employee, with or without cause.”
Suter v.
Harsco Corp., 403 S.E.2d 751, 756 (W. Va. 1991). This general rule,
however, is “tempered by the . . . principle that where the
employer’s
motivation
for
the
discharge
contravenes
some
substantial public policy principle, then the employer may be
liable to the employee for damages occasioned by this discharge.”
Harless v. First Nat’l Bank in Fairmont, 246 S.E.2d 270, 275 (W.
Va. 1978). Accordingly, “a cause of action for wrongful discharge
exists when an aggrieved employee can demonstrate that his/her
employer
acted
contrary
to
substantial
public
policy
in
effectuating the termination.” Swears v. R.M. Roach & Sons, Inc.,
696 S.E.2d 1, 6 (W. Va. 2010) (quoting Feliciano v. 7–Eleven, Inc.,
559 S.E.2d 713, 718 (W. Va. 2001)).
In order to obtain relief for a claim of wrongful discharge in
contravention of substantial public policy, the plaintiff must
show:
(1) [Whether a] clear public policy existed and was
manifested in a state or federal constitution, statute,
administrative regulation, or in the common law (the
clarity element);
(2) [Whether] dismissing employees under circumstances like
those involved in the plaintiff's dismissal would
jeopardize the public policy (the jeopardy element);
(3) [Whether t]he plaintiff’s dismissal was motivated by
conduct related to the public policy (the causation
element); and
9
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
(4) [Whether t]he employer lacked an overriding business
justification
for
the
dismissal
(the
overriding
justification element).
Swears, 696 S.E.2d at 6 (alterations and emphasis in original)
(quoting Feliciano, 559 S.E.2d at 723).
The burden is on the plaintiff to establish the existence of
a substantial public policy, Roth v. DeFeliceCare, Inc., 700 S.E.2d
183, 190 (W. Va. 2010) (citation omitted), which is a “question of
law, rather than a question of fact for a jury.”
Syl. Pt. 1.,
Cordle v. General Hugh Mercer Corp., 325 S.E.2d 111 (W. Va. 1984).
“It is only when a given policy is so obviously for or against the
public health, safety, morals or welfare that there is a virtual
unanimity of opinion in regard to it, that a court may constitute
itself the voice of the community so declaring.” Tiernan v.
Charleston Area Med. Ctr., Inc., 506 S.E.2d 578, 584 (W. Va. 1998).
As such, in order to “identify the sources of public policy for
purposes
of
determining
whether
a
retaliatory
discharge
has
occurred,” the Court looks to “established precepts in [West
Virginia’s] constitution, legislative enactments, legislatively
approved regulations, and judicial opinions.” Syl. Pt. 5, Armstrong
v. W. Va. Div. of Culture and History, 729 S.E.2d 860 (W. Va. 2012)
(quoting Syl. pt. 2, Birthisel v. Tri–Cities Health Servs. Corp.,
424 S.E.2d 606 (W. Va. 1992)).
10
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Neither party disputes that Eddy was an at-will employee of
Dolgencorp.3 As such, the Court begins with the premise that she
“may be terminated at any time, without reason, unless this
termination violates some substantial public policy.” Armstrong,
729 S.E.2d at 866. A private corporation’s internal employment
policy, particularly one so nebulous as the promise of a “positive
work environment,” does not qualify as the sort of clearly-defined
“substantial public policy” found in West Virginia’s “constitution,
legislative enactments, legislatively approved regulations, and
judicial opinions.” Syl. Pt. 5, Armstrong, 729 S.E.2d 860.
As
such, it cannot serve as the basis for a cause of action for
wrongful
discharge.
See,
e.g.,
Suddreth
v.
Maurices,
Inc.,
5:11–cv–00389, 2012 WL 275393, at *3 (S.D. W. Va. Jan. 31, 2012)
(rejecting
wrongful
discharge
claim
premised
on
violation
of
company policy); see also Harshbarger v. CSX Transp., Inc., 478
F.Supp.2d 890, 895 (S.D. W. Va. 2006) (same).
3
Notably, despite the tenor of some of the allegations in her
complaint, Eddy does not contend that the Dollar General Employee
Handbook altered her at-will status in any way. Given the clear
disclaimers in the handbook itself (dkt. no. 77-4 at 3, 4) as well
as her employment form (dkt. no. 57-5 at 3), such an attack would
not have succeeded. See, e.g., Syl. Pt. 5, Suter, 403 S.E.2d at 756
(“An employer may protect itself from being bound by any and all
statements in an employee handbook by placing a clear and prominent
disclaimer to that effect in the handbook itself.”).
11
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Perhaps recognizing the inherent weakness of such an approach,
Eddy posits an alternate theory in her response to the defendants’
motion
for
actions
summary
judgment,
contravened
“the
contending
West
that
Virginia
the
defendants’
Legislature’s
policy
regarding unemployment compensation,” i.e., W. Va. Code § 21A-1-1,
et. seq. (Dkt. No. 77 at 11). In support, Eddy argues that a
reasonable jury could find that her termination was “pretextual,”
as
other
employees
purportedly
violated
the
same
or
similar
provisions of the employee handbook without termination, and that
she was “denied unemployment compensation as a result.” Id.
Eddy’s
alternate
theory
does
not
save
her
claim.
As
a
threshold matter, she did not identify W. Va. Code § 21A-1-1 as the
“substantial public policy” for her wrongful discharge claim either
in the complaint or, according to the defendants, in any of the
discovery exchanged in this case. See U.S. ex rel. Owens v. First
Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 731 (4th Cir.
2010) (“[I]t is well established that a plaintiff may not raise new
claims after discovery has begun without amending his complaint.”
(citing Wahi v. Charleston Area Medical Center, Inc., 562 F.3d 599,
617 (4th Cir. 2009)). Further, she does not present any real
argument or identify any authority for the proposition that West
Virginia’s
unemployment
compensation
12
regime
qualifies
as
a
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
“substantial public policy” under which a wrongful discharge claim
can be pursued, a question of law that no West Virginia court
appears to have addressed to date. Finally, and most importantly,
she fails even to allege in her response brief that her dismissal
was in any way “motivated by conduct related to the public policy”
of unemployment compensation, much less point to any evidence that
would allow a reasonable jury to infer that fact. Swears, 696
S.E.2d at 6 (quoting Feliciano, 559 S.E.2d at 723).4
In sum, even if the Court were to permit this new claim to
proceed, it would necessarily fail in the absence of even a
scintilla of evidence that Eddy’s termination was somehow motivated
by conduct related to her pursuit of unemployment benefits. The
Court thus
GRANTS
summary judgment to the defendants on the
plaintiff’s wrongful discharge claim.
B. Age Discrimination
Eddy’s second cause of action is that Dolgencorp fired her on
account of her age, in violation of the West Virginia Human Rights
Act (“WVHRA”), W. Va. Code § 5–11–1 et seq. The defendants contend
4
Moreover, as discussed in greater detail later in this
opinion, her wrongful discharge claim also fails because Dolgencorp
clearly had an “overriding business justification” for her
dismissal, i.e., the fact that she removed merchandise from the
store without prior payment. Swears, 696 S.E.2d at 6 (alterations
and emphasis in original) (quoting Feliciano, 559 S.E.2d at 723).
13
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
that Eddy has failed to point to any evidence that would support an
inference of age discrimination and, in any event, they had a
legitimate and nondiscriminatory reason to discharge her.
i.
Standard
Under the WVHRA, it is unlawful “[f]or any employer to
discriminate against an individual with respect to . . . tenure,
terms, conditions or privileges of employment[.]” W. Va. Code
§ 5–11–9(1). “The term ‘discriminate’ . . . means to exclude from,
or fail or refuse to extend to, a person equal opportunities
because of . . . age[.]” W. Va. Code § 5–11–3(h). Discrimination
claims brought under the WVHRA are governed by the same burdenshifting analytical framework of Title VII of the Civil Rights Act
of 1964, set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973). See Barefoot v. Sundale Nursing Home, 457
S.E.2d 152, 160 (W. Va. 1995).
The plaintiff bears the initial burden of establishing a prima
facie case of discrimination. Syl. Pt. 2, Young v. Bellofram Corp.,
705 S.E.2d 560 (W. Va. 2010). In order to make a prima facie case,
the plaintiff must offer proof of the following:
(1) That the plaintiff is a member of a protected class;
(2) That the employer made an adverse decision concerning
the plaintiff;
14
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
(3) But for the plaintiff’s protected status, the adverse
decision would have been made.
Syl. Pt 3, Conaway v. Eastern Associated Coal Corp., 358 S.E.2d 423
(W. Va. 1986). To establish the third element, a plaintiff must
“show some evidence which would sufficiently link the employer’s
decision and the plaintiff’s status as a member of a protected
class so as to give rise to an inference that the employment
decision was based on an illegal discriminatory criterion.” Id. at
429–30 (internal footnote omitted). Examples of such evidence may
include:
an admission by the employer, a case of unequal or
disparate treatment between members of the protected
class and others[,] by the elimination of the apparent
legitimate reasons for the decision, or statistics in a
large operation which show that members of the protected
class received substantially worse treatment than others.
Id. (footnotes omitted).
If the plaintiff carries her prima facie burden, an inference
of discriminatory conduct arises and “the burden then shifts to the
employer to prove a legitimate, nonpretextual, and nonretaliatory
[or nondiscriminatory] reason for the discharge.” Syl. Pt. 5,
Young, 705 S.E.2d 560 (quoting Syl. Pt. 4, Birthisel v. Tri–Cities
Health
Services
employer’s
Corp.,
proffered
424
reason
S.E.2d
“is
not
606
(W.
required
Va.
to
1992)).
be
fair
The
or
honorable or even reasonable, so long as it is not discriminatory.”
15
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Councell v. Homer Laughlin China Co., No. 5:11CV45, 2012 WL 907086,
at *7 (N.D. W. Va. March 15, 2012) (citing Hazen Paper Co. v.
Biggins, 507 U.S. 604 (1993)); see also Holdcraft v. Cty. of
Fairfax, 31 F. App’x 97, 99 (4th Cir. 2002) (“The law does not
require an employer to make, in the first instance, employment
choices that are wise, rational, or even well-considered, as long
as they are nondiscriminatory.”). In other words, “[t]he reason can
be any other reason except that the plaintiff was a member of a
protected class.” Conaway, 358 S.E.2d at 430.
If the employer produces a legitimate and nondiscriminatory
reason for its adverse employment action, it rebuts the inference
of discrimination established by the plaintiff’s prima facie case.
Councell, 2012 WL 907086, at *7. The burden then shifts back to the
plaintiff to prove that the “facially legitimate reason given by
the employer for the employment-related decision is merely a
pretext for a discriminatory motive.” Ford Motor Credit Co. v. West
Virginia Human Rights Com’n, 696 S.E.2d 282, 293 (W. Va. 2010)
(citing Syl. pt. 2, West Virginia Inst. of Tech., 383 S.E.2d 490
(W. Va. 1989)).
ii.
Prima Facie Case
The first step in the Court’s analysis is to determine whether
Eddy has sufficient prima facie evidence of age discrimination to
16
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
survive summary judgment. It is undisputed that she was forty-nine
years old at the time of her termination and is, accordingly, a
member of a protected class. W. Va. Code § 5–11–3(k) (“age” means
anyone “the age of forty or above”). It is also clear that
Dolgencorp made an adverse decision concerning her employment
status when it discharged her from her position as SM. See, e.g.,
Young, 705 S.E.2d at 566. The Court’s inquiry is thus limited to
the third requirement of a prima facie discrimination case, i.e.,
whether Eddy can point to “some evidence which would sufficiently
link the employer’s decision and the plaintiff’s status as a member
of a protected class.” Conaway, 358 S.E.2d at 429-30.
The plaintiff first argues that she meets the third prong of
the prima facie test because her DM, Scott Biddle, was aware that
she was not “as spry as a younger manager would be.” (Dkt. No. 77
at 13). As support, she contends that, on May 19, 2011, she advised
Biddle that she had a doctor’s note which excused her from work for
several days for what she described as a “fatigued muscle” in her
back. (Dkt. No. 57-2 at 62). She also points to her own deposition
testimony that she had previously reported to work “while suffering
17
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
from pneumonia as well as while recovering from carpal tunnel
surgery.” (Dkt. No. 77 at 13).5
This Court recently rejected a similar attempt to bootstrap an
unrelated physical disability claim onto an age discrimination
cause of action. In Councell v. Homer Laughlin China Co., the
plaintiff
argued
that
she
suffered
from
age
and
gender
discrimination because she was terminated on the basis of a
“medical condition” specific to “older female[s].” 2012 WL 907086,
at
*8.
Nevertheless,
she
presented
no
evidence
that
her
disabilities were age- or gender- specific, or that she had been
treated any differently from any other employee with similar
physical limitations. Id. This Court ultimately granted summary
judgment to the defendant after determining that the plaintiff’s
5
As discussed below, although the Court finds that these
conditions are largely inapposite to the plaintiff’s age
discrimination claim, it would note that Eddy’s full deposition
testimony belies the contention that these conditions hindered her
job performance:
Q:
Prior to your termination,
problems performing your job?
A:
No. I went to work with pneumonia, I went to work
with my back out, I had carpal tunnel surgery on my
right hand and was back to work the next day.
(Dkt. No. 77-1 at 33).
18
did
you
have
any
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
alleged physical disabilities were “not probative of age or gender
discrimination.” Id.
Eddy’s complaints of activity-related back pain, pneumonia,
and carpal tunnel suffer from the same deficiencies identified in
Councell. Notwithstanding the fact that she has provided no timeframe or medical evidence detailing her pneumonia or carpal tunnel,
Eddy
also
has
failed
to
set
forth
any
evidence
that
these
conditions are age-specific (which they plainly are not) or even
disproportionately
present
among
individuals
over
forty.
Most
importantly, however, she has failed to provide even a scintilla of
evidence that would link these purported disabilities either to her
age or termination. The bare allegation that Biddle was aware Eddy
was not particularly “spry” around the time of her discharge does
not,
standing
alone,
give
rise
to
an
inference
of
age
discrimination. Accordingly, this argument does not advance her
discrimination claim. See Councell, 2012 WL 907086, at *8.
The plaintiff next argues that she was “more qualified and
efficient than her replacement,” Lisa Barr. (Dkt. No. 77 at 13).
She bases this contention on the fact that she “had been with
Dollar General for six (6) years, while Ms. Barr, the woman who
replaced Ms. Eddy, had only been with Dollar General for roughly
19
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
five
(5)
months.”
allegation,
once
Id.
again,
(emphasis
does
not
in
give
original).6
rise
to
a
This
bare
legitimate
inference of age discrimination. Most obviously, it stands to
reason that a replacement hire would generally have a smaller
employment history with a particular corporation than an outgoing
employee; the law, for obvious reasons, does not require an
employer to limit its replacement of employees to applicants with
equivalent experience. An employer, in other words, cannot be
exposed to liability “simply and solely because it elects to hire
a qualified young person when an older employee is terminated.”
Ratliff v. Gymboree Operations, Inc., No. 2:11–cv–00562, 2012 WL
2862567, at *4 (S.D. W. Va. July 11, 2012).
Here, the record reflects that Barr, who is three years
younger than Eddy, was a qualified replacement. Eddy herself
initially
hired
Barr
as
the
Lead
Sales
Associate
for
the
Blacksville store. (Dkt. No. 57-2 at 103). She even characterized
Barr as a “good worker[],” one of two employees that Biddle “always
wanted” when he needed employees at the other Dollar General
stores. (Dkt. No. 57-2 at 101). One month after the plaintiff’s
6
Although it is not particularly relevant, it is notable that
Eddy herself only served as Dolgencorp’s employee, albeit as an
ASM, for “[a] few months” before she was promoted to SM. (Dkt. No.
77-1 at 16).
20
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
termination, Biddle approached both Barr and the Assistant Store
Manager, Paula Cummins, and advised them to take an online test if
they were interested in the SM position. (Dkt. No. 57-6 at 18).
Cummins, whose husband was battling cancer, elected not to take the
test. Id. Barr, however, took the test, passed it on her first try,
and was promoted to SM. Id.
In the absence of any evidence indicative of an age-related
ulterior motive, Dolgencorp’s promotion of a qualified employee to
fill Eddy’s vacated position does not give rise to an inference of
age discrimination simply because Barr is three years younger than
Eddy. See, e.g., Ratliff, 2012 WL 2862567, at *4 (citing Smith v.
Sears, Roebuck, and Co., 516 S.E.2d 275, 280–81 (W. Va. 1999)
(plaintiff
failed
to
show
“any
sort
of
nexus”
between
age
discrimination and his termination, despite demonstrating, inter
alia, that he was replaced by a younger employee)). As this
argument does not demonstrate any link between Eddy’s termination
and her age, it too fails to sustain her employment discrimination
claim.
Eddy’s final argument in support of her prima facie case, that
she was a “hard worker” who was fired for a “trivial” reason, is
similarly ineffective. (Dkt. No. 77 at 13). In essence, she
contends that she was such a dedicated employee that the only
21
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
possible motivation for her firing must have been her age. She thus
attacks the defendants’ proffered nondiscriminatory reason for her
termination, i.e., the fact that she admittedly violated corporate
policy by taking merchandise from the store without paying for it.
Inasmuch as the Supreme Court of Appeals of West Virginia has
identified “elimination of the apparent legitimate reasons for the
decision” as one of the ways by which a plaintiff can establish her
prima facie case, the Court will first consider this argument,
which perhaps fits more naturally into the pretext analysis, in the
context of her initial burden. Conaway, 358 S.E.2d at 430.
Although there appears to be some confusion in the pleadings
concerning
the
exact
version
of
the
Dollar
General
Employee
Handbook in effect at the time of Eddy’s termination, the basic
import
remains
the
same.
By
uniform
company
policy,
“[a]ll
merchandise must be paid for before it leaves the store. Failure to
ring up all merchandise could result in immediate termination for
all involved employees.” (Dkt. No. 58 at 7). Eddy testified that
she was fully aware of this policy and, in fact, was tasked with
enforcing it within in her store. (Dkt. No. 57-2 at 36, 32).
There is no dispute that Eddy violated this policy on May 18,
2011,
when
she
took
heating
pads
and
dog
treats
from
the
Blacksville store without first paying for her merchandise. Indeed,
22
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Eddy expressly admitted to this conduct in her signed statement
dated May 27, 2011. (Dkt. No. 77-7). As such, although she attempts
to minimize her infraction,7 the bulk of Eddy’s argument appears to
lie in comparing her conduct and treatment to that of her younger,
subordinate employees. Specifically, she points out that employees
at the Blacksville store, including Barr, “routinely removed food
and drinks from the shelves and consumed it before paying.” (Dkt.
No. 77 at 2). As none of these employees were fired, she argues,
her own discharge was unwarranted and discriminatory.
The plaintiff’s argument suffers from several fundamental
flaws. First and foremost, the proposed comparison between the
plaintiff and her subordinate employees is only probative if they
were differently treated while “engaged in similar conduct.” W. Va.
Human Rights Comm’n v. Logan–Mingo Area Mental Health Agency, Inc.,
329 S.E.2d 77, 85 (W .Va. 1985). The in-store consumption of food
and drink during work hours without prior payment is simply not
7
Eddy’s myriad arguments in this regard are largely
irrelevant to both the fact of her policy violation as well as her
age discrimination claim. For example, although Eddy repeatedly
emphasizes the low cost of the items she removed from the store,
there is clearly no de minimus exception to the requirement that an
employee must pay for the items that they purchase. Such an
exception, particularly for a corporation that markets itself as a
purveyor of extremely low-cost items, would surely swallow the
rule. Similarly, although the plaintiff complains that she was in
“dire need” of the heating pads (dkt. no. 77 at 5), there is no
such exception to the employee purchase policy.
23
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
qualitatively similar to removing inventory from the premises
without prior payment. Eddy herself testified that she was unaware
of any situation in which an employee had admitted to actually
taking an unpurchased item from the store without being terminated.
(Dkt. No. 57-2 at 94).
The value of the plaintiff’s proposed comparison is further
diminished by the fact that, as the SM of the Blacksville store,
she was tasked with enforcing the employee purchase policy. (Dkt.
No. 57-2 at 32). Far from fostering an environment of strict
compliance,
Barr
testified
that
Eddy
expressly
granted
the
Blacksville employees permission to take certain consumables before
the registers opened for the day. (Dkt. No. 77-3 at 7). Although it
appears that Biddle had at least a vague idea that the employees
were engaging in this seemingly wide-spread conduct, id., Eddy has
pointed to no evidence demonstrating that any particular employee
was ever singled out or reported to the DM for these infractions,
a sharp contrast to her own situation.8 Indeed, Eddy testified that
she would sometimes put money in the registers to cover her
8
Although Eddy’s brief states that she advised Biddle of
this problem, that characterization of her deposition testimony is
misleading. Eddy specifically testified she had only reported to
her DM her suspicions that two night employees, who subsequently
quit, were stealing store merchandise. (Dkt. No. 77-1 at 43). She
further testified that she was unable to obtain proof of her
suspicions. Id.
24
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
subordinates’ unpaid consumption of store food and drink if she was
advised that “the DM was coming” to the store. (Dkt. No. 77-1 at
43). As such, given that the lax enforcement of this policy with
respect to Eddy’s subordinates appears to be largely her own doing,
the
Court
is
hard-pressed
to
find
that
Dolgencorp’s
alleged
disparate treatment of the plaintiff and her subordinates is any
way indicative of an age-related discriminatory motive.9
Finally, to the extent that Eddy attempts to minimize the
conduct preceding her termination by pointing to the administrative
decision to award her unemployment compensation, her argument
carries no weight. Unemployment benefit decisions have no binding
effect on this Court,
Osborne v. King, 570 F.Supp.2d 839, 845–48
(S.D. W. Va. 2008), and such cases operate under a “more liberal”
9
Eddy also testified that, in the ordinary case, Dolgencorp
would issue three warnings prior to terminating an employee for a
policy violation. (Dkt. No. 77-1). To the extent that she argues
Dolgencorp’s failure to follow its usual practice in her case is
indicative of discriminatory intent, there is no evidence in the
record that Dolgencorp ordinarily gave three warnings for a
violation of the employee purchase policy, which clearly provides
that “[f]ailure to ring up all merchandise could result in
immediate termination for all involved employees.” (Dkt. No. 58 at
7). Even if it did, however, the question before the Court is “not
whether an employment decision was essentially fair or whether it
was made in accordance with pre-established procedures. The
question is whether the individual was discriminated against[.]”
Romney Hous. Auth. v. W. Va. Human Rights Comm’n, 406 S.E.2d 434,
438 (W. Va. 1991). There is nothing in this record indicating that
the plaintiff’s age was in any way related to her termination.
25
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
standard than claims for wrongful termination. Slack v. Kanawha
County Housing and Redevelopment Agency, 423 S.E.2d 547, 558 (W.
Va. 1992). Moreover, no employee of Dolgencorp appeared at the
hearing in question, and the decision itself reveals a fundamental
misunderstanding of the facts of this case: it recites that Eddy
“removed some very inexpensive items with the consent of her
manager” and that, as such, her actions were “entirely approved.”
(Dkt. No. 77-10 at 2). As there is no dispute that the only two
employees
at
the
store
on
December
18,
2011,
were
Eddy’s
subordinates, not her managers, the unemployment award is wholly
unpersuasive.
In sum, the plaintiff must point to at least “some evidence
which would sufficiently link [Dolgencorp’s] decision and the
plaintiff’s status as a member of a protected class.” Conaway, 358
S.E.2d at 429-30. None of the various arguments that Eddy has
proposed create a genuine issue of material fact with regard to any
causal connection between her termination and her age. Accordingly,
she has failed to establish a prima facie case of employment
discrimination.
iii. Pretext
As a final comment, the Court notes that summary judgment on
this claim is warranted even if Eddy could establish a prima facie
26
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
case of age discrimination. It is undisputed that she violated
company policy when she removed certain items from the Blacksville
store without first paying for her merchandise, which is clearly a
qualifying nondiscriminatory reason for her termination. See, e.g.,
Prater v. Henry Schein, Inc., 621 F.Supp 2d 363, 367 (S.D. W. Va.
2008). Her attempts to paint this proffered reason as pretextual
largely echo those already disposed of above. She fails, however,
to adduce any evidence that it was discriminatory. Romney Hous.
Auth., 406 S.E.2d at 438 (“[T]he question is not whether an
employment decision was essentially fair or whether it was made in
accordance with pre-established procedures. The question is whether
the individual was discriminated against[.]”).
C.
Defamation
Eddy’s third cause of action is for the tort of defamation.
Specifically, she contends that her “reputation has been severely
damaged by false accusations of theft made and published by the
defendants.” (Dkt. No. 77 at 14). She does not, however, clarify
the precise statements upon which she bases her claims. It appears
her case rests entirely upon her own testimony as to certain
comments that members of her community made to her based on what
they, in turn, had heard from various Dollar General employees. The
defendants, for their part, contend that none of the evidence
27
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
proffered by the plaintiff is sufficient to show either that a
defamatory statement was made or that it was published by any of
the defendants.
To the extent that Eddy’s deposition offers any clarification
of her claim, the Court agrees with the defendants that her
allegations of defamation can be divided into the three categories:
(1) that two persons, Belinda Myers and Molly Fetty, told Eddy an
individual named Alisha Tennant, who was not an employee of Dollar
General at the time of Eddy’s termination, had advised them Eddy
had been fired for “stealing laundry detergent” (dkt. no. 77-1 at
46); (2) that a man named Bill Vidas told Eddy that Barr had told
him she would have Eddy’s job “no matter what it took” (dkt. no.
77-1 at 47); and (3) that, “one time,” a man named Bill Glasscock
told Eddy that Barr “was telling that [Eddy] was stealing.” (Dkt.
No. 77-1 at 47).10
10
Most of the plaintiff’s summary judgment argument on this
claim centers around the extent of her damages, which is, putting
it mildly, placing the cart before the horse. To the extent she
argues that she has been denied certain employment opportunities
because she believes Dollar General has likely provided her with a
bad reference, the Court simply notes that such speculation is
wholly unsubstantiated by any evidence in the record and will not
serve to prevent summary judgment. See Runnebaum v. NationsBank,
123 F.3d 156, 164 (4th Cir. 1997) (holding that “[u]nsupported
speculation is not sufficient to defeat a summary judgment
motion”); see also Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985) (holding that a non-moving party “cannot create a genuine
issue of material fact through mere speculation or the building of
28
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Defamation is a false statement that “tends so to harm the
reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing
with him.” Belcher v. Wal–Mart Stores, Inc., 568 S.E.2d 19, 29 (W.
Va. 2002). In order for a private plaintiff to sustain a defamation
claim,
she
must
establish
“(1)
defamatory
statements;
(2)
a
nonprivileged communication to a third party; (3) falsity; (4)
reference to the plaintiff; (5) at least negligence on the part of
the publisher; and (6) resulting injury.” Syl. pt. 1, Crump v.
Beckley Newspapers, Inc., 320 S.E.2d 70 (W. Va. 1984).
The plaintiff’s first allegation, that a woman named Alisha
Tennant told certain individuals that Eddy had been fired for
stealing,
offers
no
support
for
a
defamation
claim
against
Dolgencorp, Biddle, or Barr. As the plaintiff has not joined
Tennant as a defendant in this suit, she presumably seeks to impute
this statement to Dolgencorp. Under West Virginia law, however, a
legal entity accused of operating through its agents, e.g., a
corporation or a limited liability company, “will not be liable for
a libel published by one of its agents unless he was authorized
thereto, or his acts subsequently ratified.” Miller v. City Hosp.,
one inference upon another”).
29
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Inc., 475 S.E.2d 495, 503 (W. Va. 1996) (quoting Barger v. Hood,
104 S.E. 280, 282 (W. Va. 1920)). Given that Eddy’s sole testimony
concerning the connection between Tennant and Dolgencorp is that
Tennant was not employed by the latter at any time relevant to this
suit, the plaintiff has failed to meet her burden. (Dkt. No. 77-1
at 47).
Eddy’s
second
allegation,
that
Barr
allegedly
told
an
acquaintance of Eddy’s that Barr would have Eddy’s job “no matter
what it took,” similarly fails to meet the prima facie elements of
a defamation claim. (Dkt. No. 77-1 at 47). Specifically, it is the
Court’s duty to determine as a matter of law whether a statement is
“capable of a defamatory meaning,” Belcher, 568 S.E.2d at 26
(quoting Long v. Egnor, 346 S.E.2d 778, 780 (W. Va. 1986)), i.e.,
whether it “reflect[s] shame, contumely, and disgrace” upon Eddy.
Syl. Pt. 1, Sprouse v. Clay Commc’n, Inc., 211 S.E.2d 674 (W. Va.
1975).
The
Court
can
conceive
of
no
way
that
the
proffered
statement could impugn Eddy’s reputation, and the plaintiff herself
has provided none. Accordingly, this alleged statement also fails
to serve as the basis of a defamation claim.
Eddy’s
cause
of
action
thus
rests
wholly
on
her
third
allegation, the evidence of which, in its entirety, consists of the
following
statement
from
her
own
30
deposition:
“I
had
a
Bill
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Glasscock tell me one time that [Barr] was telling that I was
stealing, that I was giving customers bags of stuff for free.”
(Dkt.
No.
77-1
at
47).
Notwithstanding
the
fact
that
Barr
unequivocally denies making any such statement, (dkt. no. 57-6 at
9), there is no indication of when or in what context the alleged
statement was made, who “Bill Glasscock” is, or even if Barr
published the allegedly defamatory statement to him or some other
unidentified third party. Id. As such, even if this testimony
somehow reached a jury, ensconced as it is in several layers of
hearsay,
no
rational
trier
of
fact
could
find
that
these
objectively unsupported speculations suffice to raise a legitimate
inference of defamation on the part of Barr or Dolgencorp.
Runnebaum, 123 F.3d at 164 (“[u]nsupported speculation is not
sufficient
to
defeat
a
summary
judgment
motion”);
Ross
v.
Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)
(unsupported allegations “do not confer talismanic immunity from
Rule 56.”).
At bottom, the basis for Eddy’s defamation claim is that she
believes an inaccurate characterization of her termination is known
throughout her community, and that, ipso facto, the defendants must
be responsible. She cannot, however, simply spin a genuine issue of
material fact from her own unsupported and speculative testimony.
31
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Cf. Shawkey v. Lowe’s Home Centers, Inc., No. 2:09–cv–01264, 2011
WL 1229784, at *9 (S.D. W. Va. March 30, 2012) (granting summary
judgment
to
the
defendant
where
the
plaintiff’s
“argument
essentially boil[ed] down to the proposition that [the employer]
‘must have’ spread the word that Plaintiff was fired for theft
because of the speed in which ‘everybody knew.’”). As Eddy has
failed to provide even a scintilla of evidence that the defendants
made or published any defamatory statements about her, the Court
GRANTS summary judgment to the defendants on her defamation claim.
D.
Violation of Wage and Hour Laws
In the count of her complaint entitled “Violation of Wage and
Hour Laws,” Eddy alleges that the defendants violated “state and
federal wage and hour laws” by failing to provide her with overtime
compensation, making her work in the store alone, and paying her
less than her male peers. (Dkt. No. 9-1 at 10). The defendants,
although noting their confusion as to the precise causes of action
the plaintiff pursues in this count, moved for summary judgment on
the grounds that Eddy, as a managerial employee, was exempt from
the overtime requirement of the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 213 et seq., and that she has adduced no evidence that
she was paid less than any male SMs. Eddy failed to respond to
these arguments, instead opting to pursue a single claim arising
32
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
under the West Virginia Minimum Wage and Maximum Hours Standards
(“West Virginia Act”), W. Va. Code § 21-5C-1 et. seq. To the extent
that this count originally asserted claims arising under the FLSA
and WVHRA, then, the Court finds that Eddy has waived these
arguments.
Turning instead to the West Virginia Act, it is clear beyond
peradventure that it affords the plaintiff no relief. It is
undisputed that over eighty percent of Dolgencorp’s employees are
subject to the FLSA, and as such, it does not qualify as an
“employer” for the purposes of the West Virginia Act. See W. Va.
Code § 21-5C-1(e) (“[T]he term ‘employer’ shall not include any
individual, partnership, association, corporation, person or group
of persons or similar unit if eighty percent of the persons
employed by him are subject to any federal act relating to minimum
wage, maximum hours and overtime compensation.”). As the Supreme
Court of Appeals of West Virginia has stated: “[i]f 80% of [an
employer’s] employees are covered by a federal act relating to
minimum
wage,
maximum
hours,
and
overtime
compensation,
[a
plaintiff] is prevented from bringing his claim under state wage
and hour law and must bring it instead under federal wage and hour
laws.” Haney v. County Com’n, Preston County, 575 S.E.2d 434, 437
33
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
(W. Va. 2002). The FLSA is the plaintiff’s only avenue for overtime
relief, and she has elected to abandon that argument.11
The West Virginia Act does not apply to Dolgencorp, and as
such, Eddy’s claim fails.12 The Court therefore GRANTS summary
judgment to the defendants on her “Violation of Wage and Hour Laws”
claim.
E.
Intentional Infliction of Emotional Distress
The
Court
next
turns
to
Eddy’s
claim
for
intentional
infliction of emotional distress (“IIED”), otherwise known as the
tort
of
outrage.
identifies
three
In
support
acts
she
of
this
cause
characterizes
of
as
action,
Eddy
outrageous:
(1) Dolgencorp’s termination of her for a single violation of
company policy without first “writ[ing her] up three times for the
same violation”; (2) Dolgencorp’s failure to compensate her for her
11
Notably, several courts in the Fourth Circuit, as well as
this Court, have previously concluded that Dollar General SMs are
managerial employees exempt from the overtime requirements of the
FLSA. See 29 U.S.C. § 213(a)(1) (“any employee employed in a bona
fide executive, administrative, or professional capacity” is exempt
from the FLSA overtime requirement); see, e.g., Mayne–Harrison v.
Dolgencorp, Inc., No. 1:09CV42, 2010 WL 3717604, at *24 (N.D. W.
Va. Sept. 17, 2010).
12
The Court has not considered any arguments raised in Eddy’s
unauthorized surreply, where she simply complains that it was
“unfair” that she had to work an “infinite” number of hours,
because it was filed without leave of Court. See L.R. Civ. P.
7.02(b)(3) (“Parties shall not file surreply memoranda except by
leave of court.”).
34
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
many hours of overtime; and (3) Dolgencorp’s alleged attempt to
fire her in 2007 in contraventation of the Family Medical Leave Act
(“FMLA”). (Dkt. No. 77 at 17-18).13 The defendants contend that she
fails to raise a jury question as to any of the four prerequisites
for an IIED claim.
In order to establish a cause of action for outrage in West
Virginia, the plaintiff must show:
(1)
that
the
defendant’s
conduct
was
atrocious,
intolerable, and so extreme and outrageous as to exceed the
bounds of decency; (2) that the defendant acted with the
intent to inflict emotional distress, or acted recklessly
when it was certain or substantially certain emotional
distress would result from his conduct; (3) that the
actions of the defendant caused the plaintiff to suffer
emotional distress; and, (4) that the emotional distress
suffered by the plaintiff was so severe that no reasonable
person could be expected to endure it.
Syl. Pt. 3, Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (W.
Va. 1998). As to the first element, the plaintiff must demonstrate
that the conduct complained of is “so outrageous in character, and
13
Curiously, although it is a prominent theme throughout her
pleadings, Eddy does not identify the conduct underlying Biddle and
Barr’s alleged conspiracy to orchestrate her termination as
outrageous conduct. Regardless, the sole evidence the plaintiff has
adduced in support of her conspiracy theory is (1) her own
unsubstantiated testimony relaying Barr’s purported defamation,
which the Court has already rejected, (2) the fact that Holcomb
interviewed Barr during his investigation, which is wholly
innocuous, and (3) an allegedly “suspicious” meeting between Biddle
and Barr on May 27, 2012, which is entirely speculative. (Dkt. No.
77 at 15-16). Such weak and unsubstantiated allegations cannot give
rise to a claim for IIED.
35
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in
a civilized society.” Keyes v. Keyes, 392 S.E.2d 693, 696 (W. Va.
1990) (emphasis omitted) (quoting Harless v. First National Bank in
Fairmont, 289 S.E.2d 692, 703–04 n.20 (W. Va. 1982)). “Whether
conduct
may
reasonably
be
considered
outrageous
is
a
legal
question, and whether conduct is in fact outrageous is a question
for jury determination.” Hatfield v. Health Mgmt. Assocs. of W.
Va., 672 S.E.2d 395, 404 (W. Va. 2008).
Further, in the employment context, the West Virginia Supreme
Court of Appeals has distinguished claims for wrongful discharge
from outrage claims as follows:
[W]hen the employee’s distress results from the fact of
his discharge — e.g., the embarrassment and financial
loss stemming from the plaintiff’s firing — rather than
from any improper conduct on the part of the employer in
effecting the discharge, then no claim for intentional
infliction of emotional distress can attach. When,
however, the employee’s distress results from the
outrageous manner by which the employer effected the
discharge, the employee may recover under the tort of
outrage. In other words, the wrongful discharge action
depends solely on the validity of the employer’s
motivation or reason for the discharge. Therefore, any
other conduct that surrounds the dismissal must be
weighed to determine whether the employer’s manner of
effecting the discharge was outrageous.
36
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Syl. Pt. 2, Dzinglski v. Weirton Steel Corp., 445 S.E.2d 219 (W.
Va. 1994) (emphasis added), modified on other grounds by Tudor v.
Charleston Area Med. Ctr., Inc., 506 S.E.2d 554 (W. Va. 1997).
Eddy
first
alleges
that
Dolgencorp
and
Biddle
acted
outrageously when they terminated her for a single violation of
company policy. The gravamen of this theory is the allegedly
insufficient rationale for Dolgencorp’s outright termination of her
employment,
as
opposed
to
the
means
employed
to
effect
her
discharge. See Hosaflook v. Consolidation Coal Co., 497 S.E.2d 174,
185 (W. Va. 1997). Indeed, she testified that the employees
involved
in
her
termination,
i.e.,
Biddle
and
Holcomb,
were
“cordial” on the day she was fired and that she did not believe
Biddle otherwise intended to “hurt [her] feelings.” (Dkt. No. 77-1
at 44). These allegations sound primarily in wrongful discharge,
not intentional infliction of emotional distress. Cf. Councell, 823
F.Supp.2d at 384 (“[T]he actual act of terminating an employee for
an invidious cause cannot be grounds for ‘outrageous’ conduct under
West Virginia law.” (citing Syl. Pt. 2, Dzinglski, 445 S.E.2d
219)).
Moreover, to the extent that this claim rests in Dolgencorp’s
failure to employ graduated discipline prior to her discharge, it
is well-established that “conduct that is merely annoying, harmful
37
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
of
one’s
rights
or
expectations,
uncivil,
mean-spirited,
or
negligent does not constitute outrageous conduct.” Courtney v.
Courtney, 413 S.E.2d 418, 423 (W. Va. 1991) (footnote omitted). At
most, Eddy has alleged that the defendants’ conduct was “harmful of
[her] rights or expectations” to graduated discipline and continued
employment. Id. It is plain, however, that Dolgencorp acted within
its legal right to discharge its at-will employee “at any time,
without reason.” Armstrong, 729 S.E.2d at 866; see generally
Restatement (Second) of Torts § 46 cmt. g (“The actor is never
liable, for example, where he has done no more than to insist upon
his legal rights in a permissible way, even though he is well aware
that such insistence is certain to cause emotional distress.”). The
Court therefore finds, as a matter of law, that Dolgencorp’s
legitimate exercise of its discretion to terminate Eddy without
graduated discipline cannot reasonably be considered outrageous
conduct. See Hatfield, 672 S.E.2d at 404.
Eddy next argues that it was outrageous that she was “forced”
to
work
an
unprecedented
number
of
hours
without
overtime
compensation, “even if she was ill.” (Dkt. No. 77 at 17-18). There
is no evidence, however, that anyone, much less the defendants,
actually “forced” her to work extended days. Moreover, Eddy herself
testified that Dolgencorp never refused to grant her medical leave
38
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
when she presented a doctor’s note. (Dkt. No. 77-1 at 35). The
plaintiff’s conclusory and overly dramatic characterization of her
salaried position - a position that disqualifies her from statutory
overtime compensation14 - does not suffice to establish conduct so
“outrageous” and “extreme” as to “go beyond all possible bounds of
decency.” Keyes, 392 S.E.2d at 696. Accordingly, as a matter of
law,
the
Court
finds
that
Dolgencorp’s
failure
to
gift
the
plaintiff with the overtime compensation she was not legally
entitled to receive cannot reasonably be considered outrageous. See
Hatfield, 672 S.E.2d at 404.
The
plaintiff’s
final
argument
is
that,
“in
2007,”
the
defendants committed “another outrageous act” when they attempted
to fire her for taking FMLA leave. (Dkt. No. 77 at 18). Again, this
argument is both wholly unsupported by the record and substantively
frivolous. The statute of limitations for a cause of action for
IIED is two years, W. Va. Code 55-2-12, which begins to run from
the date of the offensive act. Noe v. Bentley, No. 3:05CV56, 2006
WL 231483, at *3 (N.D. W. Va. Jan. 31, 2006). As this suit was
14
As discussed earlier, it is undisputed that over eighty
percent of Dolgencorp’s employees are subject to the FLSA; as such
it does not qualify as an “employer” for the purposes of the West
Virginia Minimum Wage and Maximum Hours Act. See W. Va. Code § 215C-1(e). Further, the plaintiff does not dispute that Eddy, as a
managerial employee, was exempt from the FLSA overtime requirement.
See 29 U.S.C. § 213(a)(1).
39
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
filed in 2011, any cause of action premised on an alleged FMLA
violation occurring in 2007 is now time-barred.
Eddy has thus failed to identify any “outrageous” acts for the
purposes of the first element of the tort of outrage. See Syl. Pt.
3, Travis, 504 S.E.2d at 425. Even if she had, however, her claim
would still fail. As noted above, the Supreme Court of Appeals of
West Virginia has found that “no claim for intentional infliction
of emotional distress can attach” where an employee’s distress
results from “the fact of h[er] discharge — e.g., the embarrassment
and financial loss stemming from the plaintiff’s firing — rather
than from any improper conduct on the part of the employer in
effecting the discharge.” Syl. Pt. 2, Dzinglski, 445 S.E.2d 219. As
Eddy herself testified in her deposition,
Q: What actions caused this harm, this emotional harm?
A: Well, I live in a mobile home that has no septic, no
water, no utilities other than electric, because of the
welfare office paid the money on it. I have a car that’s
falling apart because I can’t afford to fix it.
Q: So it’s the financial impact as opposed to any
specific thing that was said to you or done to you.
A: Yes.
(Dkt. No. 77-1 at 49). Given this testimony, it is plain that
Eddy’s distress results from the “financial loss” of her discharge,
and as such, “no claim for intentional infliction of emotional
distress can attach.” Syl. Pt. 2, Dzinglski, 445 S.E.2d 219.
40
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
In sum, Eddy has failed to identify any conduct or acts of the
defendants
which
may
“reasonably
be
considered
outrageous.”
Hatfield, 672 S.E.2d at 404. Moreover, her own testimony reveals
that her emotional distress is not a result of the defendants’
conduct, but the fact of the termination itself. Syl. Pt. 2,
Dzinglski, 445 S.E.2d 219. The Court thus GRANTS summary judgment
to the defendants on the IIED claim.
F.
Conspiracy
Eddy’s
cause
of
action
for
conspiracy
against
all
the
defendants alleges that they conspired together to deprive her of
her position as SM of the Blacksville store. (Dkt. No. 9-1 at 8-9).
Notably,
however,
“[a]
civil
conspiracy
is
not
a
per
se,
stand-alone cause of action; it is instead a legal doctrine under
which liability for a tort may be imposed on people who did not
actually commit a tort themselves but who shared a common plan for
its commission with the actual perpetrator(s).”
Syl. Pt. 9,
Dunn
v. Rockwell, 689 S.E.2d 255 (W. Va. 2009). In the absence of any
underlying tort claim, then, Eddy’s conspiracy claim necessarily
fails. See O’Dell v. Stegall, 703 S.E.2d 561, 596 (W. Va. 2010)
(dismissing civil conspiracy claim after the other causes of action
in the complaint failed). Accordingly, as the Court has already
dismissed all of the claims that allege wrongdoing on the part of
41
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Biddle or Barr, it GRANTS summary judgment to the defendants on the
plaintiff’s conspiracy claim.
G.
Wage Payment and Collection Act
Finally, Eddy alleges that Dolgencorp15 violated the West
Virginia Wage Payment and Collection Act (“WPCA”) when it did not
pay her in full “within seventy-two hours” of her discharge. W. Va.
Code § 21-5-4(b). Eddy contends that her termination was effective
on May 27, 2011, the day Biddle actually told her she was fired. As
she was not paid in full until June 8, 2011, twelve days later, she
maintains that Dolgencorp violated the WPCA.
Dolgencorp, however, contends that Eddy advised Biddle on
May 27, 2011, that she would be contesting her termination via
Dollar General’s employee discrimination hotline, the Employee
Response
Center
administratively
(“ERC”),
ineffective
which
“until
rendered
the
ERC
her
termination
concluded
its
investigation into Plaintiff’s claims.” (Dkt. No. 57-1 at 19).
According to Dolgencorp, Eddy did not place this call for several
days, and the investigation consequently did not conclude until June
8, 2011. Id. As Eddy was paid in full that same day, it contends
that her WPCA claim must fail.
15
Other than the former defendant Dollar General Corporation,
which has already been dismissed from this case, Dolgencorp is the
only defendant named in this count. (Dkt. No. 9-1 at 10).
42
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
The WPCA, W. Va. Code § 21-5-1 et. seq., “controls the manner
in which employees in West Virginia are paid wages.” Gress v.
Petersburg Foods, LLC, 592 S.E.2d 811, 814 (W. Va. 2003). To this
end, it prescribes certain time limits within which employers are
required
to
pay
wages
upon
their
employees’
separation
from
employment. If an employee is “discharged,” which the regulations
define
as
“any
involuntary
termination
or
the
cessation
of
performance of work by employee due to employer action,” W. Va.
C.S.R.
§
42–5–2.8,
the
WPCA
requires
employers
to
“pay
the
employee’s wages in full within seventy-two hours.” W. Va. Code
§ 21-5-4(b). “Wages,” in turn, are defined as “compensation for
labor or services rendered by an employee” and include “accrued
fringe benefits capable of calculation and payable directly to an
employee.” Id. § 21-5-1(c). If a corporation fails to adhere to the
requirements of the WPCA, it “shall, in addition to the amount which
was unpaid when due, be liable to the employee for three times that
unpaid amount as liquidated damages.” W. Va. Code § 21–5–4(e).
There is no dispute that Eddy was “discharged” under the plain
meaning of the statute and thus was entitled to be paid in full
within seventy-two hours.
W. Va. Code § 21-5-4(b). The sole issue
here is whether Eddy was discharged on May 27, 2011, the day she was
terminated by Biddle and her last day of work at the Blacksville
43
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
store, or on June 8, 2011, the day her discharge became “effective”
in Dolgencorp’s system.
In support of its argument, Dolgencorp points out that Eddy
testified that, when she called the ERC after May 27, 2011, it
advised her she was still considered an active employee. (Dkt. No.
57-2). It also argues that her status as an active employee through
June 8, 2011, made her eligible for a quarterly bonus, paid in full
on June 10, 2011, which was “an amount [that] would not have vested
and to which Plaintiff would not have been entitled had her
employment with Dolgencorp ended earlier as alleged.” (Dkt. No. 571). As such, Dolgencorp contends, the plaintiff “was not terminated
until June 8, 2011, effective May 27, and . . . received all
compensation due within 72-hours of June 8.” (Dkt. No. 78 at 12).
Eddy responds that she “was not allowed to work” for Dolgencorp
after May 27, 2011, and that on June 8, 2011, she “received
compensation for the work she had completed up to May 27, 2011, but
not until June 8, 2011.” (Dkt. No. 77). She also testified in her
deposition that her insurance was cancelled as of May 27, 2011.
(Dkt. No. 57-2 at 106). Although Dolgencorp reiterated in its reply
that Eddy was nonetheless an “administratively active employee”
until June 8, 2011, it did not dispute the accuracy of Eddy’s
allegations. (Dkt. No. 78 at 12).
44
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Neither party has provided any authority for their respective
positions, which boil down to the legal question of the meaning of
“discharge”
within
the
WPCA.
Notably,
the
WPCA
is
“remedial
legislation designed to protect working people and assist them in
collection of compensation wrongly withheld,” Meadows v. Wal–Mart
Stores, Inc., 530 S.E.2d 676, 688 (W. Va. 1999) (quoting Mullins v.
Venable, 297 S.E.2d 866 (W. Va. 1982)), and must be “constru[ed] .
. . liberally so as to furnish and accomplish all the purposes
intended.” Meadows, 530 S.E.2d 676 (quoting State ex rel. McGraw v.
Scott Runyan Pontiac-Buick, Inc., 461 S.E.2d 516, 523 (W. Va.
1995)). The statute itself plainly provides that “[w]henever a
person, firm or corporation discharges an employee, such person,
firm or corporation shall pay the employee’s wages in full within
seventy-two
hours.”
W.
Va.
Code
§
21-5-4(b).
As
noted,
the
regulations define “discharge” as “an involuntary termination or the
cessation of performance of work by employee due to employer
action.” W. Va. C.S.R. § 42–5–2.8 (emphasis added). The regulations
further elaborate that “[a]n
employee who is discharged shall be
paid all wages including fringe benefits within seventy-two (72)
hours of the employee’s final hour of employment.” W. Va. C.S.R.
§ 42–5–13.1 (emphasis added).
45
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Dolgencorp’s “administratively active” theory finds no support
in either the plain language the statute or its accompanying
regulations.
“cessation
The
of
regulations,
performance
of
for
example,
work,”
not
speak
the
in
terms
cessation
of
of
an
employee’s “active” status within her employer’s computer system.
W. Va. C.S.R. § 42–5–2.8. An “employee’s final hour of employment,”
too, bears little relation to the hour an employer decides to remove
the employee from its “active” rolls. W. Va. C.S.R. § 42–5–13.1.
Indeed, there is no indication that the statute or its regulations
mean anything other than what they say – that an employee is
entitled to receive her wages within seventy-two hours of the date
her employer causes her to cease working.
From a policy perspective, moreover, Dolgencorp’s proposed
interpretation would permit knowledge of the official “discharge”
date under the WPCA to be held within the exclusive province of
employers, making it more difficult for employees to decide whether
to pursue wage payment claims and, consequently, undermining the
statute’s primary purpose of “protect[ing] working people and
assist[ing] them in collection of compensation wrongly withheld.”
Meadows, 530 S.E.2d at 690. It is also easy to see how any number
of employers could capitalize on Dolgencorp’s nebulous, criteriafree theory in order to “investigate” an employee’s discharge, while
46
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
delaying payment of her wages, for far longer than the twelve days
at issue in this case. Again, such an interpretation of the statute
would frustrate the fundamental purposes of the WPCA. See id.
The WPCA is mandatory: “An employer must pay earned wages to
its employees.” Szturm v. Huntington Blizzard Hockey Assocs. Ltd.
P’ship, 516 S.E.2d 267, 273 (W. Va. 1999) (emphasis added). The
statute itself “may not in any way be contravened or set aside by
private agreement,” W. Va. § 21-5-10, and it follows that it cannot
be
avoided
by
an
internal
corporate
policy
of
delaying
administrative termination pending the investigation of an employee
complaint. Accordingly, Dolgencorp’s allegation that the “quarterly
bonus”
it
gave
Eddy
would
not
have
been
owed
had
she
been
“officially” discharged on May 27, 2011, even if true, does not
permit it to escape liability. There is no provision in the WPCA
that exempts an employer from its mandatory obligations for electing
to provide, or mistakenly providing, an employee with an unwarranted
bonus in lieu of her statutory right, i.e., her “wages in full”
within seventy-two hours of her discharge. W. Va. Code § 21-5-4(b);
cf. W. Va. § 21-5-10 (“the acceptance by an employee of a partial
payment of wages shall not constitute a release as to the balance
of his claim and any release required as a condition of such payment
shall be null and void”).
47
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
Here, the parties do not dispute that Eddy did not return to
the Blackville store after May 27, 2011. They further do not dispute
that she did not ultimately receive her regular salary for the days
between May 27, 2011 and June 8, 2011. As the plaintiff was thus
neither working nor earning a salary after May 27, 2011, it is plain
that she had “ce[ased] . . . performance of work,” W. Va. C.S.R.
§ 42–5–2.8, and had consequently been “discharg[ed].” W. Va. Code
§ 21-5-4(b). By all accounts, then, summary judgment is appropriate
on this claim, but in favor of Eddy. Dolgencorp’s motion is thus
DENIED as to the WPCA claim.
The Court has the authority to sua sponte “grant summary
judgment to the nonmovant” so long as it provides the moving party
with “notice and a reasonable opportunity to respond.” Fed. R. Civ.
P. 56(f). Here, Dolgencorp itself raised - and fully briefed - its
position as to the operative date of Eddy’s “discharge” under the
WPCA. See Kannady v. City of Kiowa, 590 F.3d 1161, 1171 (10th Cir.
2010) (“When a district court’s sua sponte determination is based
on issues identical to those raised by a moving party, the risk of
prejudice is significantly lowered[.]’”). Accordingly, Dolgencorp
has had a full and fair opportunity to come forward with all of its
evidence concerning the date of Eddy’s statutory termination. See
Celotex, 477 U.S. at 326 (1986) (“district courts are widely
48
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
acknowledged to possess the power to enter summary judgments sua
sponte, so long as the losing party was on notice that she had to
come forward with all of her evidence”). The record before the
Court is complete, and there are no facts, much less material ones,
that are in dispute.
The Court has already determined that Dolgencorp “discharged”
Eddy on May 27, 2011, and did not pay her wages in full until June
8,
2011.
This
is
a
plain
violation
of
the
seventy-two
hour
provision of W. Va. Code § 21-5-4(b). As such, given the fully
developed record and the narrow legal issue presented by the
parties, the Court finds it appropriate to sua sponte GRANT summary
judgment to Eddy on her WPCA claim. See Anderson v. Wachovia Mortg.
Corp., 621 F.3d 261, 280 (3d Cir. 2010) (“‘[t]he notice requirement
is
satisfied
when
a
case
involves
‘the
presence
of
a
fully
developed record, the lack of prejudice, [and] a decision based on
a purely legal issue.’”).
The
damages
for
this
claim
are
fairly
straightforward,
inasmuch as the statute dictates that an employer in violation of
W. Va. Code 21-5-4 is liable for “the amount which was unpaid when
due,” which Dolgencorp has already paid, as well as “three times
that unpaid amount as liquidated damages.” W. Va. Code § 21–5–4(e).
Based on the records submitted with the summary judgment briefing,
49
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
(dkt. no. 57-10 at 2), this figure should be readily calculable.
The Court will, nevertheless, defer any determination of these
issues to the parties, or the judgment of a jury.
IV.
In conclusion, for the reasons stated above, the Court:
1.
GRANTS
IN
PART
the
defendants’
motion
for
summary
judgment (dkt. no. 57) as to the plaintiff’s wrongful
discharge, age discrimination, defamation, conspiracy,
outrage, and wage and hour claims, and DISMISSES
those
claims WITH PREJUDICE;
2.
DENIES
IN
PART
the
defendants’
motion
for
summary
judgment (dkt. no. 57) as to the plaintiff’s WPCA claim;
3.
GRANTS summary judgment to the plaintiff, sua sponte, as
to her WPCA claim;
4.
DISMISSES the defendants Scott Biddle and Lisa Barr WITH
PREJUDICE; and
5.
ORDERS that the plaintiff’s unauthorized surreply (dkt.
no. 79) be STRICKEN from the record.
This case remains on the Court’s trial docket and is scheduled
as the second case on Tuesday, January 15, 2013.
50
EDDY v. BIDDLE, ET AL.
1:11CV137
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[DKT NO. 57]
It is so ORDERED.
The Court directs the Clerk of Court to transmit copies of
this Order to counsel of record.
DATED: January 4, 2013.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
51
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?