Schneider v. Dodson Brothers Exterminating Co., Inc.

Filing 10

MEMORANDUM OPINION AND ORDER granting Defendant's 5 Motion to Dismiss Count Two of the Complaint. Signed by Judge Robert C. Chambers on 4/29/2020. (cc: counsel of record; any unrepresented parties) (jsa)

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IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
VINCENT SCHNEIDER,
Plaintiff,
v.

CIVIL ACTION NO. 3:20-0206

DODSON BROTHERS
EXTERMINATING CO., INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is Defendant Dodson Brothers Exterminating Company, Inc.’s Motion to Dismiss
Count Two of the Complaint, ECF No. 5. Because Count Two fails to state a plausible claim, the
Court GRANTS the Motion.
I. BACKGROUND
Plaintiff Vincent Schneider alleges the following facts. Schneider began working for
Dodson Brothers in a sales position in 2016. ECF No. 1-1 ¶ 5. He met the employer’s expectations
and received no written warnings about his performance. Id. ¶ 7. In late January 2020, Schneider
sought medical treatment and was unable to work for several days. Id. ¶¶ 8–10. He was diagnosed
with diabetes, and he informed his employer. Id. ¶¶ 11–12.
Two days after Schneider returned to work, Dodson Brothers told him he “didn’t have what
it would take” to stay in sales, so the company made him a route pest control technician instead.
Id. ¶¶ 14–16. This position paid Schneider substantially less and required a more demanding
schedule, which made taking lunch breaks difficult. Id. ¶¶ 17, 21. Dodson Brothers also refused to

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allow Schneider to take fifteen-minute breaks. Id. ¶ 23. Schneider complained to Dodson Brothers
that he was removed from his sales position because of his diabetes diagnosis and hospital stay.
Id. ¶ 18. However, Dodson Brothers refused to reconsider the transfer and told Schneider he would
be terminated if he did not meet his new position’s requirements. Id. ¶¶ 19–20. Schneider’s transfer
caused his blood sugar level to fall below recommended limits and exacerbated his diabetes. Id. ¶
22. As a result of these events, Schneider filed suit against Dodson Brothers for disability
discrimination under the West Virginia Human Rights Act and for the tort of outrage (also called
intentional infliction of emotional distress). Id. ¶¶ 25–40. Dodson Brothers now moves to dismiss
the tort of outrage claim under Federal Rule of Civil Procedure 12(b)(6).
II. LEGAL STANDARD
To survive a motion to dismiss, a complaint must contain “a short and plain statement of
the claim showing [the plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The facts contained
in the statement need not be probable, but the statement must contain “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim has facial plausibility when “the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). In considering the plausibility of a plaintiff’s claim,
the Court must accept all factual allegations in the complaint as true. Id. However, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citation omitted).
III. DISCUSSION
To state a claim for the tort of outrage, a plaintiff must plausibly allege:
(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
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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 Labs., Inc., 504 S.E.2d 419, 425 (W.Va. 1998).
The Supreme Court of Appeals of West Virginia has explained that an employment
discrimination claim can lead to separate actions for wrongful discharge and the tort of outrage.
Dzinglski v. Weirton Steel Corp., 445 S.E.2d 219, 225–26 (W.Va. 1994). A wrongful discharge
claim “involve[s] the employment discrimination itself,” whereas the tort of outrage “involve[s]
the outrageous manner in which the discrimination . . . was implemented,” for example, through
“frequent public ridicule, incessant verbal abuse, threats and intimidations.” Id. (citation and
internal quotation marks omitted). The Supreme Court of Appeals explained further:
The prevailing rule in distinguishing a wrongful discharge claim from an outrage
claim is this: when 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.
Id. at syl. pt. 2 (emphasis added). Adapting this reasoning to the discriminatory transfer alleged
here, Schneider must plausibly show Dodson Brothers acted outrageously in how it carried out the
transfer, not simply that a discriminatory transfer occurred. Id. He must also plausibly allege his
distress resulted from “the outrageous manner” by which Dodson Brothers transferred him. Id.
Distress resulting from the transfer itself does not support the outrage claim. Id.

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The Supreme Court of Appeals’s decision in Hosaflook v. Consolidation Coal Company
helps clarify these distinctions. 497 S.E.2d 174 (W.Va. 1997). After being promoted to mine
foreman, the plaintiff experienced problems like stumbling, bumping into things, and having
trouble completing paperwork. Id. at 177. These problems caused him to become one of the lowest
ranked salaried employees at the mine. Id. Only after receiving his low rank did the plaintiff realize
his difficulties arose from a degenerative eye condition that would lead to permanent blindness,
and he informed his supervisor. Id. Months later, the company terminated him as part of a reduction
in force based on his low performance rank. Id. The plaintiff asserted the tort of outrage because
the company terminated him after sixteen years of employment without investigating whether his
known vision loss caused his poor performance. Id. at 184. The plaintiff also pointed to the
company’s callous termination of his disability benefits, which left him unable to support his
family. Id. The court held the plaintiff asserted a wrongful discharge claim rather than an outrage
claim because the plaintiff’s claimed distress resulted from the discharge rather than improper
conduct in effecting the discharge. Id. at 185. The plaintiff did not identify facts suggesting the
company’s conduct when effecting his discharge was outrageous, such as being “singled out,
embarrassed, threatened, verbally abused, ridiculed or humiliated.” Id. Instead, the plaintiff
testified he “was called into an office, was told that he was being discharged, was advised of
benefits available to him and nothing more.” Id.
Roth v. DeFeliceCare, Inc. is a useful contrast. 700 S.E.2d 183 (W.Va. 2010). There, the
plaintiff’s supervisor directed the plaintiff to come to work over the weekend. Id. at 187. When
the plaintiff arrived, she found her supervisor and a woman engaged in a sexual act. Id. The
supervisor directed the plaintiff to wait in the conference room while he clothed himself. Id. He
then ordered the plaintiff to forget about what she saw and threatened her with the loss of her job

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and respiratory therapy license. Id. The plaintiff did not tell anyone about the incident, but the
supervisor fired her anyway about one week later. Id. at 188. Based on these allegations, the
Supreme Court of Appeals held the plaintiff sufficiently stated a tort of outrage claim. Id. at 194–
95. The court emphasized that the director placed the plaintiff into unwantedly observing the
sexual act by asking her to come into work. Id. at 194. Also significant was the supervisor’s threat
to not only terminate the plaintiff, but to cause the loss of her professional license. Id. The
plaintiff’s emotional distress plausibly resulted from this outrageous conduct, not just the discharge
itself. Id. at 195.
In light of these cases, the Court finds Schneider did not plausibly allege outrageous
conduct. He argues Dodson Brothers’ decision to transfer him after learning of his diabetes
diagnosis, as well as the company’s refusal to reconsider that transfer, was outrageous. ECF No.
8, at 3–4. But this argument misses the crucial distinction: an employment discrimination claim
involves the discrimination itself, whereas the tort of outrage involves the outrageous manner in
which the discrimination was implemented. See Dzinglski, 445 S.E.2d at 225–26. Schneider’s
transfer and unanswered complaint are indicative of discrimination, but the tort of outrage requires
Schneider to show Dodson Brothers acted outrageously in how it handled his transfer. See id. Yet,
like the plaintiff in Hosaflook, Schneider merely alleges his supervisor pulled him into a
conversation, where he was told he “didn’t have what it would take” to stay in sales. ECF No. 1-1
¶¶ 14–15; 497 S.E.2d at 185. He does not allege he was “singled out, embarrassed, threatened,
verbally abused, ridiculed or humiliated” beyond what an employee would typically experience
during a demotion. Dzinglski, 497 S.E.2d at 185. Schneider does allege Dodson Brothers told him
he would be terminated if he did not meet his new job requirements. ECF No. 1-1 ¶¶ 19–20. But
this warning to maintain a certain performance level does not come close to the kind of threat in

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Roth against one’s job and professional license based on concealing a supervisor’s inappropriate
conduct. 700 S.E.2d at 194. The Court therefore concludes Schneider failed to state a tort of
outrage claim.
III. CONCLUSION
For these reasons, the Court GRANTS Dodson Brothers’ Motion to Dismiss Count Two
of the Complaint, ECF No. 5. The Court DIRECTS the Clerk to send a copy of this Memorandum
Opinion and Order to counsel of record and any unrepresented parties.
ENTER:

April 29, 2020

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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