Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Adkins v. Cellco Partnership, Inc.

United States District Court, S.D. West Virginia, Huntington Division

July 11, 2017

FRANKIE ADKINS, Plaintiff,
v.
CELLCO PARTNERSHIP, INC. d/b/a VERIZON WIRELESS, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS, JUDGE

         Pending before the Court is Defendant's Partial Motion to Dismiss (ECF No. 6) pursuant to Federal Rule 12(b)(6). Defendant filed an Answer on May 12, 2017 (ECF No. 5) but did not file this Motion until May 24, 2017. As Defendant filed its Motion after its responsive pleading, Defendant's Motion is untimely. However, Federal Rule 12(h)(2) provides that “[f]ailure to state a claim upon which relief can be granted … may be raised … by a motion under Rule 12(c).” Fed.R.Civ.P. 12(h)(2). Accordingly, the Court converts Defendant's Motion to Dismiss into a Motion for Judgment on the Pleadings pursuant to Federal Rule 12(c). For the following reasons, the Court GRANTS Defendant's Motion for Judgment on the Pleadings (ECF No. 6) for Counts II and III.

         I. Background

         Plaintiff filed suit against Defendant for alleged sex and disability discrimination in the workplace that culminated in Plaintiff's termination. See Pl.'s Compl., ECF No. 1-1. Plaintiff began working for Defendant in the fall of 2006, holding positions of senior representative, sales representative, and experience specialist at different points during his employment. Id. at ¶¶ 7-8. In January of 2016, Plaintiff's supervisor advised Plaintiff to attend speech therapy. Id. at ¶ 10. The supervisor indicated that Plaintiff's speech prevented Defendant from promoting and otherwise advancing Plaintiff within the company. Id. at ¶ 11. Although Plaintiff had not been diagnosed with any speech impediment, Plaintiff began attending speech therapy sessions to comply with Defendant's request and secure his continued employment. Id. at ¶¶ 12-13. Plaintiff attended five sessions before quitting due to the expense of the sessions. Id. at ¶¶ 14-15. However, when asked by Plaintiff's supervisor about the status of Plaintiff's speech therapy, Plaintiff said he continued attending sessions, explaining that Plaintiff feared he would lose his job if Defendant knew he stopped. Id. at ¶ 16. Plaintiff later sought a promotion but Defendant refused, blaming errors made by Plaintiff's co-workers. Id. at ¶¶ 17-18.

         In the fall of 2016, Plaintiff allegedly learned of an exchange of sexually explicit photographs between the manager of Defendant's Ashland, Kentucky store and one of the female employees. Id. at ¶ 23. During this same period, Defendant eliminated various positions at the stores in Kentucky and West Virginia. Id. Plaintiff believed that he had the most experience and was the most qualified employee at Defendant's store. Id. at ¶ 24. However, Defendant terminated Plaintiff and retained the female employee and supervisor who had exchanged the sexually explicit photographs. Id. at ¶ 25.

         Plaintiff's Complaint alleges three causes of action for the alleged discriminatory conduct. Count I alleges that Defendant regarded Plaintiff as having a disability and intentionally discriminated Plaintiff for that disability with disciplinary action and termination. Id. at ¶¶ 28-36. Count II alleges a common law cause of action for wrongful discharge in violation of public policy, citing disability and sex discrimination.[1] Id. at ¶¶ 37-47. Count III alleges that Defendant's actions in terminating Plaintiff amounted to a case of outrage-or intentional infliction of emotional distress. Id. at ¶¶ 48-52. Plaintiff requests actual damages, compensatory damages, punitive damages, and attorney's fees and costs. See generally id.

         II. Legal Standard

         In analyzing a party's motion for judgment on the pleadings pursuant to Federal Rule 12(c), the Fourth Circuit has indicated that the applicable standard is the same as a motion to dismiss pursuant to Federal Rule 12(b)(6), noting that the “distinction is one without a difference.” Burbach Broad Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). To overcome a motion for judgment on the pleadings, a complaint must be plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546 (2007). This standard requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal quotations and citations omitted). A complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). Facial plausibility exists when a claim contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

         Accepting the factual allegations in the complaint as true (even when doubtful), the allegations “must be enough to raise a right to relief above the speculative level ….” Twombly, 550 U.S. at 555 (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should … be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal quotations and citations omitted). Finally, “[a]lthough for the purposes of a motion [for judgment on the pleadings] we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted).

         III. Discussion

         Defendant's Motion for Judgment on the Pleadings challenges Count II and Count III of Plaintiff's Complaint. See Def.'s Mem. of Law in Supp., ECF No. 7. Count II alleges a common law cause of action for wrongful discharge in violation of public policy, and Count III alleges a common law cause of action for outrage. See Pl.'s Compl., ECF No. 1-1. Defendant argues that neither cause of action states a plausible claim because both are superseded by the West Virginia Human Rights Act (WVHRA). See Def.'s Mem. of Law in Supp., ECF No. 7, at 1. Plaintiff argues that the statutory scheme under the WVHRA does not preclude common law causes of action. See Pl.'s Resp., ECF No. 8, at 1.

         a. Wrongful Discharge in Violation of Public Policy

         West Virginia generally follows the common law rule that an employer can terminate an employee at will without explanation. See Harless v. First Nat'l Bank in Fairmont, 246 S.E.2d 270, 275 (W.Va. 1992). However, the Supreme Court of Appeals of West Virginia in Harless recognized that when “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 the discharge.” Id. This exception forms the cause of action for wrongful discharge in violation of public policy. To prevail on this claim, the plaintiff must establish that a substantial public policy exists. Wounaris v. W.Va. State Coll., 588 S.E.2d 406, 413 (W.Va. 2003). Once established, the plaintiff must show by a preponderance of the evidence that the “discharge was motivated by an unlawful factor contravening that policy.” Id. (citation omitted). The defendant will incur liability on the discharge unless the defendant can demonstrate by a preponderance of the evidence that the employee would have suffered the same termination absent an unlawful motive. Id.

         Defendant argues that Plaintiff cannot maintain a cause of action for wrongful discharge in violation of public policy because the WVHRA supersedes that common law claim. Def.'s Mem. of Law in Supp., ECF No. 7, at 3-5. The courts in this district have largely recognized that when a statutory scheme provides a public policy and a private cause of action for a violation of that policy, the plaintiff cannot bring a claim under the common law Harless-type action. See Talley v. Caplan Ind., Inc., Civ. No. 2:07-67, 2007 WL 634903, at *2 (S.D. W.Va. Feb. 26, 2007) (citing various cases from the Southern District of West Virginia prohibiting Harless actions). The WVHRA undisputedly details the state's public policy against discrimination based on disability and sex. See W.Va. Code ยง 5-11-9. The WVHRA also provides for a civil cause of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.