Nester v. Hampton Inn Princeton, et al

Filing 16

MEMORANDUM OPINION AND ORDER granting in part and denying in part #5 MOTION to Dismiss. Signed by Judge David A. Faber on 6/7/2013. (cc: counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ANDREA NESTER,
Plaintiff,
v.

CIVIL ACTION NO. 1:13-03336

THE HAMPTON INN PRINCETON, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ motion to dismiss.
Doc. No. 5.

For the following reasons, the motion to dismiss is

GRANTED in part and DENIED in part.
Factual and Procedural Background
On February 1, 2013, plaintiff filed the instant suit in
the Circuit Court of Mercer County, West Virginia, alleging
several claims against defendants, each related to events
surrounding her pregnancy and employment termination.
generally Doc. No. 1-2.
defendants.

See

The complaint named a total of five

The first three defendants are business entities,

namely The Hampton Inn Princeton, SWV Hotel Limited Partnership,
and VIM, Inc.

Doc. No. 1-2, at 1.

The last two defendants are

individual defendants, both of whom are sued in their individual
capacities as well as their capacities as agents of the
corporate defendants.

See id.

Regarding the individual

defendants, and at all times relevant to the instant motion,
1

Clarence Kerr, Jr. was the President of each of the corporate
defendants.

See Doc. No. 1-2, at ¶ 11; Doc. No. 3, at ¶ 11.

Similarly, Melissa Dye was, at all times relevant to the instant
motion, general manager of the Hampton Inn Princeton.

See Doc.

No. 1-2, at ¶ 11; Doc. No. 3, at ¶ 11.
On February 22, 2013, defendants removed this case to this
court, alleging federal question jurisdiction pursuant to 28
U.S.C. § 1331, based on the complaint’s allegations of two
distinct federal causes of action, namely counts under the
Family and Medical Leave Act as well as Title VII of the Civil
Rights Act.

See Doc. No. 1, at 2, ¶ 5.

On March 15, 2013,

defendants filed the instant motion to dismiss, pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure, with an accompanying memorandum of law.
6.

Doc. Nos. 5,

On March 28, 2013, plaintiff responded to defendants’ motion

to dismiss.

Doc. No. 8.

to plaintiff’s response.

On April 5, 2013, defendants replied
Doc. No. 9.

2

Discussion
I. Count One - Pregnancy Discrimination Act,1 Title VII Claim
Rule 12(b)(1) of the Federal Rules of Civil Procedure
allows a party to assert the defense of “lack of subject-matter
jurisdiction” by pre-answer motion.
12(b)(1).

See Fed. R. Civ. P.

Relatedly, Rule 12(h)(3) states that “[i]f the court

determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
P. 12(h)(3).

Fed. R. Civ.

In Title VII cases, when a plaintiff fails to

exhaust administrative remedies, federal courts lack subject
matter jurisdiction over such a claim.

See Jones v. Calvert

Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
According to defendants, they seek dismissal of plaintiff’s
Title VII claim under 12(b)(1) because plaintiff has failed to
1

The court notes that the Pregnancy Discrimination Act of 1978
expanded certain definitions contained within Title VII.
Specifically, the Act amended section 701 of the Civil Rights
Act of 1964 such that the phrases “because of sex” and “on the
basis of sex” encompass pregnancy, childbirth, or related
medical conditions, as well as women affected by the same. In
other words, for purposes of the instant motion, there is no
independent cause of action created by the Pregnancy
Discrimination Act of 1978. Rather, for purposes of this
motion, the Act simply expands the set of possible causes of
action brought under Title VII of the Civil Rights Act of 1964
and does not affect other rights or obligations of litigants who
bring suit under Title VII. See Young v. United Parcel Serv.,
Inc., 707 F.3d 437, 445 (4th Cir. 2013)(citing DeJarnette v.
Corning Inc., 133 F.3d 293 (4th Cir. 1998)); cf. California Fed.
Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 285 (1987)("Congress
intended the PDA to be a floor beneath which pregnancy
disability benefits may not drop-not a ceiling above which they
may not rise.")(internal quotations omitted).
3

exhaust her administrative remedies by, among other things,
failing to obtain a right-to-sue letter from the Equal
Employment Opportunity Commission (EEOC).

See Doc. No. 6, at 3.

In her response, plaintiff concedes that she has not yet
“pursue[d] an EEOC claim,” but insists she still has time to do
so.

Doc. No. 8, at 5.

Accordingly, plaintiff asks that any

dismissal of her Title VII claim be without prejudice.

Id.

Defendants argue that any dismissal of plaintiff’s Title VII
claim should be with prejudice because “principles applicable to
splitting a cause of action” would prevent plaintiff from
asserting essentially the same claim in a future EEOC
proceeding.

See Doc. No. 9, at 2 (citing Jang v. United Tech.

Corp., 206 F.3d 1147 (11th Cir. 2000)).
It is clear this court currently lacks subject matter
jurisdiction over plaintiff’s Title VII claim because plaintiff
has, thus far, failed to exhaust her administrative remedies.
See Jones, 551 F.3d at 300.

On the other hand, precisely

because the court lacks subject matter jurisdiction over
plaintiff’s Title VII claim, the court cannot dismiss that claim
with prejudice since the court “has no power to adjudicate and
dispose of a claim on the merits.”

S. Walk at Broadlands

Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d
175, 185 (4th Cir. 2013).

4

Moreover, Jang is distinguishable because the plaintiff in
that case attempted to bring a previously-dismissed Americans
with Disabilities Act (ADA) claim after the remainder of his
suit had been decided on the merits.2
1148.

See Jang, 206 F.3d at

In other words, Jang consisted of Jang I and Jang II,

where Jang II was an entirely separate suit, but involved
essentially the same ADA claim from Jang I.

In that situation,

the Eleventh Circuit Court of Appeals concluded that the
resurrected ADA claim in Jang II was barred by res judicata
because the remainder of the action in Jang I had been decided
on the merits.

Here, there remain at least two claims, the

validity of which defendants do not contest in their instant
motion to dismiss.

In other words, no claim has yet been

2

Defendants refer to principles that counsel against “splitting
a cause of action.” At least four circuit courts of appeals
have decided cases where res judicata, sometimes referred to as
claim preclusion, prevents a plaintiff from filing one lawsuit
then waiting before filing a second lawsuit pursuing a federal
claim that had required exhaustion of administrative remedies.
See Jang v. United Technologies Corp., 206 F.3d 1147 (11th Cir.
2000)(holding that res judicata prevented a litigant from
“splitting cause of action” between two federal lawsuits);
Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 339 (7th
Cir. 1995)(same); Heyliger v. State Univ. & Cmty. Coll. Sys. of
Tennessee, 126 F.3d 849 (6th Cir. 1997)(holding that state law
governing collateral estoppel (claim preclusion) prevented a
litigant from “splitting cause of action” between a state
lawsuit and a subsequent federal lawsuit where alleged
employment discrimination arose out of the same transaction);
Woods v. Dunlop Tire Corp., 972 F.2d 36, 41 (2d Cir.
1992)(noting that litigants may avoid claim preclusion by filing
all other claims then moving to stay the action until related
Title VII administrative proceedings are complete).
5

decided on its merits in this case, unlike in Jang and the cases
Jang cites for the proposition that a cause of action may not be
split.

Therefore, defendants’ argument based on Jang does not

apply to the disposition of this motion.
Accordingly, defendants’ 12(b)(1) motion to dismiss
plaintiff’s Title VII claim is GRANTED, and plaintiff’s Title
VII claim is dismissed without prejudice.
II. Applicable Law — Rule 12(b)(6) of the Federal Rules of Civil
Procedure
Fundamentally, a 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted tests whether a
plaintiff's complaint satisfies Rule 8(a)'s liberal pleading
requirements.

Rule 8(a) of the Federal Rules of Civil Procedure

requires a “short and plain statement of the claim showing that
the pleader is entitled to relief.”• Fed. R. Civ. P. 8(a)(2).
Rule 8(a)’s "short and plain statement" requirement
indicates that one of the objectives of Rule 8(a) is to avoid
technicalities.

See Ostrzenski v. Seigel, 177 F.3d 245, 251

(4th Cir. 1999).

Moreover, the Supreme Court has reiterated

that, for purposes of Rule 8, pleading "[s]pecific facts [is]
not necessary; the statement need only give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests."

Erickson v. Pardus, 551 U.S. 89, 93 (2007)(quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007))(internal

6

quotations omitted); see also Ostrzenski, 177 F.3d at 251
(explaining that a claim satisfies Rule 8's requirements if a
plaintiff "colorably states facts which, if proven, would
entitle him to relief.”)(quoting Adams v. Bain, 697 F.2d 1213,
1216 (4th Cir.1982))(internal quotations omitted).
Nevertheless, while a complaint "need only give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests," Erickson, 551 U.S. at 93, the complaint
must state a plausible claim for relief.

More specifically, a

complaint must "permit the court to infer more than the mere
possibility of misconduct" based upon "its judicial experience
and common sense."

Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009); see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 256 (4th Cir. 2009)(adding that a
"complaint's factual allegations must produce an inference of
liability strong enough to nudge the plaintiff's claims across
the line from conceivable to plausible.").

As a general matter,

if a complaint could not satisfy the minimal requirements
outlined above, it could not survive a 12(b)(6) motion to
dismiss.

See 5B Fed. Prac. & Proc. Civ. § 1356 (3d ed.)(noting

that “[o]nly when the plaintiff's complaint fails to meet [Rule
8’s] liberal pleading standard is it subject to dismissal under
Rule 12(b)(6).”).

7

However, what satisfies Rule 8’s liberal pleading
requirements depends largely on individual pleadings and their
respective wording.

In at least some cases, the Supreme Court

has indicated that listing the elements that make out a prima
facie claim is unnecessary.

See Swierkiewicz v. Sorema N. A.,

534 U.S. 506, 511 (2002)(noting, in the Title VII context, that
“[t]his Court has never indicated that the requirements for
establishing a prima facie case under McDonnell Douglas also
apply to the pleading standard that plaintiffs must satisfy in
order to survive a motion to dismiss.”)(overruled on other
grounds).

However, the Fourth Circuit has not read Swierkiewicz

to remove “the burden of a plaintiff to allege facts sufficient
to state all the elements of her claim.”

Bass v. E.I. DuPont de

Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)(emphasis
added).

In sum, “[w]hile a plaintiff is not charged with

pleading facts sufficient to prove her case, as an evidentiary
matter, in her complaint, a plaintiff is required to allege
facts that support a claim for relief.”3

Id. (emphasis added).

Finally, when applying the 12(b)(6) standard, a court must
accept the complaint’s factual allegations as true.

3

See

The Fourth Circuit went on in Bass, a Title VII case, to state
that “[t]he words ‘hostile work environment’ are not talismanic,
for they are but a legal conclusion; it is the alleged facts
supporting those words, construed liberally, which are the
proper focus at the motion to dismiss stage.” Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
8

Twombly, 550 U.S. at 555-56.

Moreover, a court considering a

12(b)(6) motion must also “draw[] all reasonable . . .
inferences” from the facts alleged in the Complaint in the
plaintiff’s favor.

Edwards v. City of Goldsboro, 178 F.3d 231,

244 (4th Cir.1999).
III. Count Three - West Virginia Wage Payment and Collection Act
Defendants move pursuant to Rule 12(b)(6) to dismiss
plaintiff’s West Virginia Wage Payment and Collection Act (WV
Wage Payment Act) claim as it pertains to the individual
defendants, specifically Clarence Kerr, Jr. and Melissa Dye in
their individual capacities.

Doc. No. 6, at 8.

Defendants

argue that the WV Wage Payment Act claim against these two
defendants must be dismissed because plaintiff’s complaint
alleged neither actual nor constructive knowledge on the part of
defendants Kerr or Dye.

Plaintiff responds that she “does not

seek to hold the individual Defendants responsible for
violations of the [WV Wage Payment Act], except to the extent
that it is revealed that the individuals were involved in a
joint venture.”

Doc. No. 8, at 10.

The court presumes that plaintiff would have the words
“does not seek to hold . . . responsible” operate as a voluntary
dismissal of her WV Wage Payment Act claims against Clarence
Kerr, Jr. and Melissa Dye in their individual capacities.

9

However, several courts have held that
when multiple claims are filed against a single defendant,
Rule 41(a) is applicable only to the voluntary dismissal of
all the claims in an action. A plaintiff who wishes to drop
some claims but not others should do so by amending his
complaint pursuant to Rule 15.
9 Fed. Prac. & Proc. Civ. § 2362 (3d ed.).

Because plaintiff

has not moved pursuant to Rule 15 to amend her complaint, and
because the logic excerpted above ought to apply equally when
multiple claims are filed against multiple defendants, the court
will treat defendants’ 12(b)(6) motion to dismiss as unopposed
with respect to plaintiff’s WV Wage Payment Act claim against
Clarence Kerr, Jr. and Melissa Dye.4
Where 12(b)(6) motions go unopposed, at least one other
district court in the Fourth Circuit has concluded that failing
to oppose a 12(b)(6) motion to dismiss is sufficient reason to
grant the motion.

See Roberson v. Wilkes, 1:04-cv-984, 2004 WL

3019350 (M.D.N.C. 2004); compare Custer v. Pan Am. Life Ins.
Co., 12 F.3d 410, 416 (4th Cir. 1993)(holding that a court, “in
considering a motion for summary judgment, must review the
motion, even if unopposed, and determine from what it has before
it whether the moving party is entitled to summary judgment as a
matter of law.”)(emphasis added).

4

In other words, the court presumes plaintiff only seeks to
attach liability for WV Wage Payment Act violations to the
individual defendants, if at all, through liability theory based
on joint venture.
10

Accordingly, defendants’ motion to dismiss plaintiff’s WV
Wage Payment Act claim against Clarence Kerr, Jr. and Melissa
Dye in their individual capacities is GRANTED and the claim is
DISMISSED as against those individual defendants.
IV. Count Four - Joint Venture
In West Virginia, a joint venture is an “association of two
or more persons to carry out a single business enterprise for
profit, for which purpose they combine their property, money,
effects, skill, and knowledge.”

Syl. pt. 10, Cunningham v.

Herbert J. Thomas Mem'l Hosp. Ass'n, 230 W. Va. 242 (2012); see
also Armor v. Lantz, 207 W. Va. 672, 677 (2000).

Moreover,

joint ventures are created by contract, whether written or oral,
express or implied.

Id.

A particularly important criterion of

a joint venture is joint control and management of the property
used to accomplish the joint venture’s aims.

Cunningham v.

Herbert J. Thomas Mem'l Hosp. Ass'n, 230 W. Va. 242, 281 (2012).
Nevertheless, the joint control criterion refers not to actual
physical control, but the legal right to control the other joint
venturer's conduct in furtherance of the joint venture's aims.
Id.
Defendants move pursuant to Rule 12(b)(6) to dismiss
plaintiff’s joint venture claim as it pertains to the individual
defendants Clarence Kerr, Jr. and Melissa Dye.
9.

Doc. No. 6, at

Unlike their 12(b)(6) motion to dismiss plaintiff’s WV Wage
11

Act claim, defendants’ 12(b)(6) motion regarding joint venture
does not simply complain that plaintiff fails to list all legal
elements of a joint venture under West Virginia law.

Rather,

defendants additionally argue that plaintiff “fails to suggest
any evidence . . . of a written or verbal contract between
either of the individual defendants and any of the corporate
defendants” and, similarly, that plaintiff “fails to allege an
agreement between either of the individual defendants and the
corporate defendants to share profits.”

Id.

As noted above, a complaint need not speak certain magic
words to unlock a viable claim.

Rather, the liberal pleading

standards of the Federal Rules of Civil Procedure are a
departure from code pleading.

Cf. Conley v. Gibson, 355 U.S.

41, 48 (1957)(explaining, in dicta, that “[t]he Federal Rules
[of Civil Procedure] reject the approach that pleading is a game
of skill in which one misstep by counsel may be decisive to the
outcome and accept the principle that the purpose of pleading is
to facilitate a proper decision on the merits.”)(abrogated on
other grounds).
Here, to say that plaintiff’s complaint does not “suggest
any evidence whatsoever” of any contract between either of the
individual defendants and any of the corporate defendants
overstates the extent of the complaint’s deficiency in that
regard.

Specifically, paragraphs four and eleven allege
12

defendants Kerr and Dye’s relationships between each other and
the corporate defendants.

See Doc. No. 1-2, at ¶¶ 4, 11.

Paragraphs twelve, thirteen, fifteen, and sixteen allege
defendants Kerr and Dye’s behavior and demeanor toward plaintiff
before her termination.

See id., at ¶¶ 12, 13, 15, & 16.

Finally, paragraphs twenty-four, twenty-six, and twenty-seven
allege defendants Kerr and Dye’s behavior toward plaintiff after
learning plaintiff was pregnant and witnessing the effects that
plaintiff’s pregnancy complications had on her attendance at
work.

See id., at ¶¶ 24, 26, & 27.

Accepting each of these allegations as true, and drawing
all reasonable inferences therefrom in plaintiff’s favor, as the
court must do when applying the 12(b)(6) standard, see Twombly,
550 U.S. at 555-56; Edwards, 178 F.3d at 244, the court finds
that the complaint alleges facts sufficient to support a claim
of joint venture against each of the named defendants, including
Clarence Kerr, Jr. and Melissa Dye, under West Virginia law.
Given the allegations regarding defendants Kerr and Dye’s
relationships between one another and the corporate defendants,
as well as the allegations regarding defendants Kerr and Dye’s
behavior, both before and after learning plaintiff was pregnant,
the complaint, whose allegations are accepted as true, “show[s]
. . . the plausibility of entitlement to relief” by the
plaintiff on a theory of joint venture as against all defendants
13

under West Virginia law.

Francis v. Giacomelli, 588 F.3d 186,

193 (4th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotations omitted)).
In their reply brief, defendants cite one unpublished
decision from the Northern District of Texas.

See Doc. No. 9,

at 8 (citing JPA, Inc. v. USF Processors Trading, Inc., No.
3:05-cv-433, 2005 WL 1383362 (N.D.Tex. 2005)).

There, the court

required that each specific element of a joint venture claim
must be pled on the face of a complaint.

Id.

Notably, despite

its rigid requirement of listing the elements of joint venture
in a complaint, the court in USF Processors Trading nevertheless
declined to dismiss under 12(b)(6), finding instead that
plaintiff had “a basis for pleading the elements of a joint
venture” because the complaint sufficiently addressed each of
the elements required to prove a joint venture.

USF Processors

Trading, Inc., 3:05-cv-0433, at 2 (N.D.Tex. 2005)(declining to
dismiss under 12(b)(6) and, instead, allowing twenty days for
plaintiff to amend the complaint to explicitly list the elements
of a joint venture).

The court finds USF Processors Trading,

Inc. neither persuasive nor supportive of defendants’ position.
First, the court in USF Processors Trading, Inc. did not dismiss
the joint venture claim for failure to list the elements of a
joint venture where the complaint otherwise pled facts
sufficient to support such a claim.
14

Second, this court sees no

reasoned basis for requiring plaintiff to amend her complaint
where it otherwise alleges facts sufficient to support a claim
of joint venture under West Virginia law.

There is no such

fallback requirement under the Federal Rules of Civil Procedure
whereby a plaintiff, whose complaint survives a 12(b)(6) motion
to dismiss, must nevertheless amend to mimic an ideal complaint.
Separately, defendants cite Texas and Illinois case law for
the proposition that “the mere fact that . . . individual
defendants have some kind of employment relationship with the
corporate defendants is not sufficient to allege joint venture.”
Doc. No. 8, at 9 (citing Chapman v. Oshman’s Sporting Goods,
Inc., 792 S.W.2d 785, 788 (Tex. App. 1990); Landers-Scelfo v.
Corporate Office Sys., Inc., 827 N.E.2d 1051, 1058 (Ill. App.
2005)).

Defendants do not cite, and the court cannot find, West

Virginia case law that either stands for the same proposition or
indicates the West Virginia Supreme Court of Appeals would
decide a similar case in accord with Illinois and Texas state
law.5

In other words, West Virginia law does not seem to

5

Defendants cite to the Tenth Circuit Court of Appeals’ decision
in Freese v. United States, 455 F.2d 1146, 1151 (10th Cir. 1972)
to support the conclusion that an employer-employee relationship
precludes a joint venture relationship in certain circumstances.
That case is clearly distinguishable as it interprets the
application of federal tax law to business entities and not the
application of any state law regarding liability on a theory of
joint venture.
15

preclude a joint venture claim where other relationships among
the alleged joint venturers predate the joint venture itself.
Accordingly, defendants’ motion to dismiss plaintiff’s
joint venture claim against Clarence Kerr, Jr. and Melissa Dye
in their individual capacities is DENIED.
V. Count Five - Negligent Infliction of Emotional Distress
Plaintiff’s complaint includes a count labeled
“Intentional/Negligent Infliction of Emotional Distress,” under
which she generally alleges that the defendants’ actions “were
intended to cause, and/or negligently caused,” the plaintiff to
suffer severe emotional distress.

Doc. No. 1-2, at 10.

These

allegations notwithstanding, plaintiff’s response to defendants’
12(b)(6) motion to dismiss states that the plaintiff “is not
pursuing a claim for negligent infliction of emotional
distress.”

Doc. No. 8, at 5.

Accordingly, defendant’s motion to dismiss plaintiff’s
claim for negligent infliction of emotional distress is GRANTED
and the claim is DISMISSED.
VI. Count Five - Intentional Infliction of Emotional Distress
As a general matter, in West Virginia a plaintiff must
prove four elements to prevail on a claim for intentional
infliction of emotional distress.

First, that defendant’s

alleged conduct was “atrocious, intolerable, and so extreme and
outrageous as to exceed the bounds of decency.”
16

Syl. Pt. 3,

Travis v. Alcon Laboratories, 202 W.Va. 369 (1998).

Second,

that defendant “acted with the intent to inflict emotional
distress, or acted recklessly when it was certain or
substantially certain emotional distress would result” from
defendant’s conduct.

Id.

Third, that defendant’s actions

caused plaintiff’s emotional distress.

See id.

Fourth, that

plaintiff’s emotional distress was “so severe that no reasonable
person could be expected to endure it.”

Id.

When a claim does

not allege facts sufficient to support any of these elements,
the claim must fail a 12(b)(6) motion to dismiss.

See Bass v.

E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
For the reasons stated below, plaintiff’s complaint fails to
allege facts sufficient to support the first element of an
intentional infliction of emotional distress claim under West
Virginia law, namely that defendants’ conduct was “atrocious,
intolerable, and so extreme and outrageous as to exceed the
bounds of decency.”

Syl. Pt. 3, Travis, 202 W.Va. 369.

In West Virginia, whether conduct can “reasonably be
considered outrageous” for purposes of an intentional infliction
of emotional distress claim is a legal question.
Georgia-Pac. Corp., 209 W. Va. 515, 517 (2001).

Love v.
In the context

of employment, the simple act of termination cannot constitute
outrageous conduct, although the way termination was effected
might.

See Dzinglski v. Weirton Steel Corp., 191 W. Va. 278,
17

285 (1994)(distinguishing “when the employee's distress results
from the fact of his discharge . . . 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.”)(holding modified on other grounds).
The only alleged instances of conduct that can fairly be
construed as surrounding plaintiff’s termination are (1)
Clarence Kerr, Jr.’s response to the news of plaintiff’s
pregnancy, namely asking “Now, what are we going to do?”; (2)
Melissa Dye’s use of text messaging to fire plaintiff; and (3)
Melissa Dye’s delay in texting plaintiff the news of her
termination in order to have plaintiff “fill in” for Ms. Dye a
day after plaintiff was supposed to be terminated.
1-2, at ¶¶ 24, 26, 27.

See Doc. No.

Plaintiff argues that each of these

alleged instances of conduct amount to “outrageous” conduct for
purposes of her intentional infliction of emotional distress
claim while defendants argue that none of them do.
6, at 4-5; Doc. No. 8, at 7, 9.

See Doc. No.

The court agrees with

defendants.
As noted above, plaintiff argues that termination by
texting is, by itself, outrageous.

Doc. No. 8, at 7.

Failing

that, however, plaintiff adds that texting her termination with
a two day delay just so her supervisor could have someone "fill
in" for a shift the day after plaintiff was originally supposed
18

to be fired must amount to outrageous conduct.

Id., at 9.

However, this conduct, while perhaps tacky, is no more
outrageous than the conduct alleged in an exhaustive list of
West Virginia Supreme Court of Appeals cases cited by this court
in Suddreth v. Maurices, Inc., Civil Action No. 5:11-00389, 2012
WL 275393 (S.D.W. Va. 2012)(listing Hatfield v. Health
Management Associates of West Virginia, 223 W.Va. 259 (2008),
Love v. Georgia–Pacific Corp., 209 W.Va. 515 (2001), Hines v.
Hills Dep't Stores, Inc., 193 W.Va. 91 (1994), Cook v. Heck's
Inc., 176 W.Va. 368 (1986), Yoho v. Triangle PWC, Inc., 175
W.Va. 556 (1985)).

The conduct involved in the cases listed in

Suddreth consisted mainly of disparate, retaliatory treatment,
continuous harassment, or both.

The West Virginia Supreme Court

of Appeals found that the conduct surrounding employment
termination in those cases did not amount to the type of
“outrageous” conduct required by a claim of intentional
infliction of emotional distress.

By degree of outrageousness,

termination by text message, even when delayed for petty and
selfish reasons, does not rise to, let alone surpass, the degree
of outrageousness associated with continuous harassment or
disparate treatment.
However, asking "now what are we going to do" when
confronted with the reality of a pregnant employee goes further
than, for example, simply texting "u r fired."
19

Implying that a

pregnant employee is a liability by virtue of her pregnancy is,
at the very least, distasteful.

Nevertheless, as outlined

above, the West Virginia Supreme Court of Appeals has failed to
label similar disparaging conduct “outrageous” for purposes of
intentional infliction of emotional stress.

Even taking Kerr’s

alleged question in the worst possible light, plaintiff does not
allege any continuing harassment.

Moreover, even assuming

Kerr’s question implies that he would treat pregnant employees
differently once he knew they were pregnant, disparate treatment
alone has not amounted to “outrageous” conduct in West Virginia
for purposes of intentional infliction of emotional distress.
Accordingly, defendant’s motion to dismiss plaintiff’s
claim for intentional infliction of emotional distress is
GRANTED and the claim is DISMISSED.
Conclusion
As outlined more fully above, defendants’ motion to dismiss
is GRANTED in part and DENIED in part.

Doc. No. 5.

The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 7th day of June, 2013.
ENTER:
David A. Faber
Senior United States District Judge

20