Rotriga v. AZZ, Inc.
Filing
24
MEMORANDUM OPINION AND ORDER CONFIRMING THE PRONOUNCED ORDER OF THIS COURT GRANTING IN PART AND DENYING IN PART DEFENDANT' S 5 MOTION TO DISMISS. GRANTED as to Count II and DENIED as to Counts I and III. Signed by Senior Judge Frederick P. Stamp, Jr on 2/11/13. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEBBIE ROTRIGA,
Plaintiff,
v.
Civil Action No. 5:12CV120
(STAMP)
AZZ, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
CONFIRMING THE PRONOUNCED ORDER OF THIS COURT
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS
I.
Procedural History
The plaintiff, Debbie Rotriga, filed the complaint in the
above-styled
civil
action
initially
in
the
Circuit
Marshall County, West Virginia on June 27, 2012.
alleges in her complaint three separate claims.
Court
of
The plaintiff
Count I alleges
wrongful termination on the basis of age and sex in violation of
the West Virginia Human Rights Act (“WVHRA”).
Count II alleges
that the defendant committed a tort of outrage against her based on
its conduct.
Count III alleges that the defendant breached the
employment contract between the parties by violating the contract’s
terms and conditions of employment.
On July 31, 2012, the defendant removed the case to this Court
claiming federal jurisdiction based upon 28 U.S.C. § 1332(a)(1)
diversity jurisdiction.
to
dismiss
under
Thereafter, the defendant filed a motion
Federal
Rule
of
Civil
Procedure
12(b)(6),
asserting that plaintiff failed to allege factual allegations to
support her claims and as such, they fail as a matter of law.
For
the reasons set forth below, this Court denies the defendant’s
motion to dismiss as to Counts I and III and grants the motion to
dismiss as to Count II.
This Court held a status and scheduling conference for this
case on January 25, 2013.
During this conference, this Court
provided the parties with preliminary rulings on the defendant’s
motion to dismiss.
This order confirms those rulings.
II.
Facts
The plaintiff was an employee of the defendant for three years
starting in April 2009.
In September 2011, the plaintiff took
leave in conjunction with her pregnancy. The plaintiff returned to
work in November 2011. While the plaintiff was on pregnancy leave,
the plaintiff claims that the defendant hired other employees to
perform the plaintiff’s job duties.
The day that the plaintiff
returned to work, her supervisor allegedly placed the plaintiff on
probation.
The plaintiff asserts that prior to her pregnancy
leave,
had
she
not
received
any
complaints
regarding
her
performance and had even earned positive performance reviews.
The
plaintiff continued to work for the defendant for thirty days
following her return to work and at that time, the plaintiff states
that she was terminated.
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III.
Applicable Law
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to raise the defense of “failure to state a claim upon
which
relief
can
be
granted”
as
a
motion
in
response
to
a
plaintiff’s complaint before filing a responsive pleading.
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept the factual allegations
contained in the complaint as true.
Advanced Health-Care Servs.,
Inc. v. Radford Cmty. Hosp., 910 F.2d 139, 143 (4th Cir. 1990).
Dismissal is appropriate only if “‘it appears to be a certainty
that the plaintiff would be entitled to no relief under any state
of facts which could be proven in support of its claim.’”
Id. at
143-44 (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
1969)); see also Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d
324, 325 (4th Cir. 1989).
A motion to dismiss for failure to state a claim under Rule
12(b)(6) should be granted only in very limited circumstances, as
the pleading requirements of Federal Rule of Civil Procedure
8(a)(2) only mandate “a short and plain statement of a claim
showing that the pleader is entitled to relief.” Conley v. Gibson,
355 U.S. 41, 47 (1957).
Still, to survive a motion to dismiss, the
complaint must demonstrate the grounds to entitlement to relief
with “more than labels and conclusions . . . factual allegations
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must be enough to raise a right to relief above the speculative
level.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).
IV.
A.
Discussion
Count I: Wrongful Termination
The defendant first asserts that the plaintiff failed to state
a claim for wrongful termination because she failed to allege how
the termination of her employment was in violation of the WVHRA or
a specific public policy recognized as an exception to West
Virginia’s at-will employment doctrine.
The plaintiff, however,
argues that she has asserted sufficient factual matter to state a
claim of gender discrimination under the WVHRA or under common law
that is plausible on its face.
Under the WVHRA, it is illegal to discriminate on the basis of
sex “with respect to compensation, hire, tenure, terms, conditions
or privileges of employment if the individual is able and competent
to perform the services required.”
W. Va. Code 5-11-9(a).
The
West Virginia Supreme Court has held that discrimination on the
basis of pregnancy is sex discrimination. Frank’s Shoe Store v. W.
Va. Human Rights Comm’n, 365 S.E.2d 251, 258 (W. Va. 1986).
Under the WVHRA, the burden of sustaining a discrimination
claim follows the burden shifting framework of Title VII of the
Civil Rights Act of 1964, established by McDonnell Douglas Corp v.
Green, 411 U.S. 792, 802-04 (1973).
Ford Motor Credit Co. v. W.
Va. Human Rights Comm’n, 696 S.E.2d 282, 292 (2010).
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Thus,
initially, the plaintiff has the burden of establishing a prima
facie case of discrimination.
A prima facie case under WVHRA
requires a showing 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. (3) But for the plaintiff’s
protected status, the adverse decision would not have been made.”
Id. (internal citations omitted).
While this burden is not an
“onerous” one, it must be satisfied initially in order for a
discrimination case to move forward.
Id. at 777.
This Court agrees with the plaintiff concerning whether she
stated a claim for sex discrimination under the WVHRA.
As stated
above, in order to survive a motion to dismiss for failure to state
a claim, the “factual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555.
In regards to the prima face case required to be proven by the
plaintiff, this Court finds that the plaintiff stated sufficient
factual allegations.
Specifically, this Court finds that the
plaintiff, although not announcing that she is a female, did refer
to herself by using feminine pronouns and also states she was
pregnant.
Such allegations indicate that she is a member of a
protected class.
also
allege
plaintiff.
that
Furthermore, the allegations in her complaint
an
adverse
decision
was
made
against
the
Specifically, she alleges that she was placed on
probation and then eventually fired. Finally, there are sufficient
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facts to allege the third element, that the adverse decision would
not have occurred but for her protected status, as the plaintiff
states that she was placed on probation the day she returned from
pregnancy leave, and fired thirty days later.
Further, under West Virginia law, an employer may be liable if
it
terminates
an
at-will
employee
in
contravention
of
some
substantial public policy even if the plaintiff does not have a
statutory remedy.
Williamson v. Greene, 490 S.E.2d 23, 31 (1997).
The West Virginia Supreme Court of Appeals has indicated that if a
plaintiff
cannot
maintain
a
statutory
claim
for
retaliatory
discharge based on sex discrimination or sexual harassment under
the WVHRA, a plaintiff may bring a claim for retaliatory discharge
based on such discrimination or harassment under common law, as sex
discrimination and sexual harassment in employment contravene the
public
policy
of
the
State
of
West
Virginia.
Id.
at
33.
Therefore, because the West Virginia Supreme Court has held that
sex
discrimination
employment
doctrine
is
and
a
specific
because
exception
this
Court
to
the
found
at-will
that
the
plaintiff’s claim for sex discrimination should not be dismissed
under the WVHRA, this Court also finds that this claim should not
be dismissed for the same reasons as stated above.
defendant’s motion to dismiss is denied as to Count I.
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Therefore,
B.
Count II: Tort of Outrage
The defendant next claims that the plaintiff failed to state
a claim for the tort of outrage.
Specifically, the defendant
argues that the plaintiff failed to include any of the necessary
factual allegations to support such a claim and her assertions
amount to a “formulaic recitation of the elements of [the] cause of
action.”
Twombly, 550 U.S. at 555 (2007).
The plaintiff asserts
that more discovery is necessary for this claim and dismissal at
this stage would be premature.
In order to prevail on a tort of outrage claim, the West
Virginia Supreme Court has held that a plaintiff must prove:
(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.
Travis v. Alcon Laboratories, Inc., 202 W. Va. 369, 375 (1998).
The
plaintiff’s
complaint
contains
the
following
three
statements under Count II:
13. Defendant’s actions were so outrageous in
character and 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.
14.
By acting in such an extreme, atrocious an
[sic] inexcusable manner, Defendant intended to cause the
Plaintiff severe emotional distress.
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15. As a result of Defendant’s outrageous conduct,
Plaintiff has suffered severe emotional distress.
ECF No. 1 Ex. 1 *6.
As the defendant said, such statements amount
to nothing more than a “formulaic recitation of the elements of a
cause of action.”
Twombly, 550 U.S. at 555.
Under Twombly, a
complaint must contain more than such “labels and conclusions” and
the “factual allegations must be enough to raise a right to relief
above the speculative level.”
The plaintiff does not assert
Id.
a single fact concerning what actions were so outrageous or extreme
or elaborate at all regarding the plaintiff’s alleged emotional
distress.
Further,
this
Court
finds
plaintiff’s
argument
concerning needing more discovery on this claim to be without
merit, as the plaintiff should be able to assert enough facts to
establish the grounds for her relief in a tort of outrage claim
without needing further discovery.
motion
to
dismiss
is
granted
as
Therefore, the defendant’s
to
Count
II
of
plaintiff’s
complaint.
C.
Count III: Breach of Contract
The defendant lastly asserts that the plaintiff failed to
state a claim for breach of contract.
The defendant asserts that
the plaintiff has failed to allege the existence of a contract to
set forth a cause of action for breach of contract because she did
not demonstrate that the employment policies contained in the
employee handbook included either of the provisions relating to
discharge
or
job
security
that
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modify
an
at-will
employment
relationship. The plaintiff argues that she cannot assert any more
specific factual allegations until she obtains a copy of the
employee handbook in discovery, as she no longer has a copy of the
handbook.
She states that the Court should revisit this issue at
the summary judgment phase of this litigation.
To state a breach of contract claim under West Virginia law,
a plaintiff must show: (1) existence of a valid enforceable
contract; (2) plaintiff performed under the contract; (3) defendant
breached or violated a duty under the contract; and (4) the
plaintiff was injured by this breach.
Wince v. Easterbrooke
Cellular Corp., 681 F. Supp. 2d 688, 693 (N.D. W. Va. 2010).
Under West Virginia law, generally at-will employment is
terminable at any time.
591
S.E.2d
254,
257
Younker v. Eastern Associated Coal Corp.,
(W.
Va.
2003).
However,
“contractual
provisions relating to discharge or job security may alter the atwill status of a particular employee.”
Id. (quoting Bailey v.
Sewell
451
Coal
Co.,
437
S.E.2d
448,
(W.
Va.
1993)).
Representations made in an employee handbook “can meet the normal
requirements for formation of an implied contract” necessary to
alter such status.
Id.
This Court finds that the plaintiff did state a claim upon
which relief can be granted in Count III.
She states there is a
valid contract, that being the employee handbook.
She further
states that the defendant violated the terms of the handbook and as
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a result, she was injured due to being fired.
While the factual
allegations of the plaintiff’s complaint are not overwhelmingly
abundant, taking those allegations that are provided, and in
reliance on the plaintiff’s representations that she does not have
a copy of the employee handbook at this time, this Court finds that
it does not appear “to be a certainty that the plaintiff would be
entitled to no relief under any state of facts which could be
proven in support of its claim.” The employee handbook may in fact
provide
the
necessary
material
for
the
plaintiff’s
claim.
Therefore, this Court agrees with the plaintiff that such issue is
better left for the summary judgment phase of this litigation.
Thus, this Court denies the defendant’s motion to dismiss as to
Count III.
V.
Conclusion
For the reasons stated above, the defendant’s motion to
dismiss (ECF No. 5) is GRANTED as to Count II and DENIED as to
Counts I and III.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
February 11, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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