Weidman v. Exxon Mobil Corp., No. 13-2007 (4th Cir. 2015)

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Justia Opinion Summary

Plaintiff filed suit against his former employer (ExxonMobil) and employees, alleging claims of fraud, intentional infliction of emotional distress, personal injury, and wrongful discharge. Plaintiff claimed that he was fired in retaliation for reporting illegal pharmacy practices, which caused him to suffer a heart attack and emotional stress. The court affirmed the district court's denial of plaintiff's motion to remand the case to state court and the dismissal of all but one of plaintiff's tort claims. The court concluded that plaintiff sufficiently stated a wrongful discharge claim under Virginia's public policy exception to its at-will employment doctrine. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings.

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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2007 RICHARD C. WEIDMAN, Plaintiff - Appellant, v. EXXON MOBIL CORPORATION; CLARION ELLIS JOHNSON; JEFFREY WOODBURY; VICTORIA MARTIN WELDON; STEPHEN D. JONES; KENT DIXON; F. BUD CARR; DANIEL WHITFIELD; JEREMY SAMPSELL; GERARD MONSIVAIZ; MEGHAN HASSON, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:13-cv-00501-CMH-JFA) Argued: October 28, 2014 Decided: January 8, 2015 Before GREGORY, FLOYD, and THACKER, Circuit Judges. Affirmed in part, reversed in part, and remanded by published opinion. Judge Gregory wrote the opinion, in which Judge Floyd and Judge Thacker joined. ARGUED: Richard C. Weidman, Great Falls, Virginia, Appellant Pro Se. Thomas Patrick Murphy, HUNTON & WILLIAMS, LLP, McLean, Virginia, for Appellees. ON BRIEF: Arthur E. Schmalz, Ryan M. Bates, HUNTON & WILLIAMS LLP, McLean, Virginia, for Appellees. GREGORY, Circuit Judge: Pro se Plaintiff Richard Weidman sued his former employer, Exxon Mobil employees, Corporation alleging (“ExxonMobil”), that he was fired and in ten ExxonMobil retaliation for reporting illegal pharmacy practices, which caused him to suffer a heart attack and emotional distress. Weidman, still pro se, appeals the district court’s dismissal of his fraud, intentional infliction of emotional distress, personal injury, and wrongful discharge claims. Weidman furthermore challenges the district court’s denial of his motion to remand the case to state court. For the reasons below, we affirm the district court’s denial of Weidman’s motion to remand and dismissal of all but one of his tort claims. We hold Weidman has sufficiently stated a claim for wrongful discharge against ExxonMobil. I. In March 2013, Weidman filed suit in Fairfax County Circuit Court against his former ExxonMobil employees. Ellis Johnson, President for Medical Safety, employer, ExxonMobil, These employees include: Director; Security, (2) Jeffrey Health and and ten (1) Clarion Woodbury, Vice Environment and Johnson’s supervisor; (3) Victoria Martin Weldon, U.S. Director of Medicine and Occupational Health and Weidman’s supervisor from February 2010; and (4) Stephen Jones, whose title is not 2 given but who The Weldon. reported complaint investigated Whitfield, to Dixon, also of Johnson named reports Weidman’s Kent directly Jeremy and four supervised individuals retaliation: Sampsell, and F. who Daniel Bud Carr. Lastly, the suit named Meghan Hasson and Gerard Monsivaiz, who worked in the Human Resources Department, though Monsivaiz is only mentioned in the case caption. Weidman resident, as are three of the defendants: is a Virginia Hasson, Monsivaiz, and Sampsell. Weidman worked as Senior Physician in ExxonMobil’s Fairfax, Virginia office from 2007 until his termination in January 2013. Upon being Standards hired, of Weidman Business was required Conduct to read (“handbook”). ExxonMobil’s This handbook detailed employee standards with respect to reporting suspected violations of retaliation reports. by law and ExxonMobil policy. It against also employees guaranteed non- for such making Weidman claims that he attended yearly meetings where videos were played showing Rex Tillerson, CEO of ExxonMobil, guaranteeing that employees would never suffer retaliation for reporting violations. Weidman’s ExxonMobil had complaint been alleges operating that illegal in 2009 he pharmacies discovered in multiple states, and had also illegally stockpiled large quantities of medication in its Fairfax, Virginia office, as well as in other 3 clinics. He asserts many senior managers were aware of these illegal activities, including Johnson, Weldon, and Jones. Weidman further contends that Jones requested he “participate in a scheme” to employees informed in distribute stockpiled Virginia. Johnson he In would medication January not 2010, obtain a to ExxonMobil Weidman New says Jersey he medical license to work at a clinic in that state as long as it was operating an illegal pharmacy. In response to this, Weidman alleges Johnson became “physically intimidating” toward him. Weidman claims he reported “violations of the law by the Medical Department,” in response to which “Johnson initiated a malicious campaign of retaliation.” “attempts to humiliate, including “continuously The and discredit, humiliat[ing] campaign punish Weidman included Weidman,” before [his] colleagues,” falsely classifying him as a poor performer, and “ma[king] statements that clearly implied that Weidman was a pedophile” at an office gathering. Shortly thereafter, Weidman reported via email to senior management his belief that Johnson was retaliating against ExxonMobil was ExxonMobil proceeded “sham” him violating investigation to for pharmacy conduct into prior his laws what complaints, in Weidman allegations. several and that states. describes Weidman as a says Whitfield and Dixon, two investigators assigned to the matter, 4 falsely concluded that Johnson had not harassed Weidman and that the pharmacies were legal. On an unspecified date after the investigation into Weidman’s report, Weidman says the Medical Department designated him as a “poor performer” and required him to participate in a performance improvement plan. In September 2011, Weidman claims to have received an email from ExxonMobil’s Legal Department stating ExxonMobil pharmacies had been in violation of multiple state laws. Weidman says he then sent another email to senior managers informing them that Johnson and other members of the Medical Department had retaliated against him, and that there had been a cover investigation. A Sampsell and Carr. up of these second actions investigation during the commenced, first led by During the investigation, Carr allegedly admitted to Weidman that ExxonMobil had been operating illegal pharmacies for years, and that Johnson had permitted their operation. Under the performance improvement plan, which lasted for over a year, Weidman participated in meetings with Weldon, which Hasson also attended. Weidman contends the purpose of the meetings was not to improve his performance, but to overburden him with the creation of new tasks meant to cause his failure to perform. Human In late October 2012, Weidman alleges he complained to Resources about the “oppressive 5 and unjustifiable” meetings. scheduled meeting He just was particularly days occurred before on confrontational.” during the meeting Weldon maliciously he October concerned was 24, to about undergo 2012, and a meeting surgery. was The “hostile and Weidman claims to have had a heart attack “as a direct inflicted result upon him.” of the stress which In mid-December, ExxonMobil extended Weidman’s performance improvement plan. the next meeting in January 2013, Weidman’s At employment was terminated, allegedly for failure to cooperate with the plan. Subsequently, causes of action: retaliated against Weidman (1) him filed fraud, despite his complaint because asserting Appellees representations made four allegedly to the contrary in the handbook and by CEO Tillerson in yearly videos; (2) intentional infliction of emotional distress; (3) “personal injury” of “irreparable damage to his heart”; and (4) wrongful discharge. Weidman pursues this last count under two theories, that his termination violated Virginia’s public policy and was also a breach of an implied unilateral contract established by ExxonMobil’s employee handbook. Appellees removed the case to the U.S. District Court for the Eastern dismiss the District case of under Virginia, Federal where Rule of they Procedure Weidman moved to remand the case to state court. 6 also moved to 12(b)(6). The district court dismissed all of Weidman’s claims and denied his motion to remand. II. In appealing the district court’s denial of his motion to remand, Weidman raises a threshold jurisdictional issue that we address de novo. Cir. 1999). See Mayes v. Rapoport, 198 F.3d 457, 460 (4th Weidman named three non-diverse defendants in his complaint, but the district court found it could properly retain subject matter doctrine. jurisdiction under the “fraudulent joinder” Normally, complete diversity of citizens is necessary for a federal court to exercise diversity jurisdiction, meaning the plaintiff cannot be a citizen of the same state as any other defendant. doctrine Id. at provides 464. that However, diversity the fraudulent jurisdiction joinder is not automatically defeated by naming non-diverse defendants. 1 The district court can “disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants.” Id. at 461. It can retain jurisdiction upon the non-moving party showing either 1 Contrary to its name, the “fraudulent joinder” doctrine requires neither fraud nor joinder. “In fact, it is irrelevant whether the defendants were ‘joined’ to the case or originally included as defendants,” as the doctrine is “applicable to each defendant named by the plaintiff either in the original complaint or anytime prior to removal.” Mayes, 198 F.3d at 461 n.8. 7 that the plaintiff committed outright fraud in pleading jurisdictional facts, or that “there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.” Mayes, 198 F.3d at 464; see also Marshall v. Manville Sales Corp., 6 F.3d 229, 233 (4th Cir. 1993) (“A claim need not ultimately succeed . . . [as] only a possibility of a right to relief need be asserted.”). We agree with the district court that Weidman, a Virginia resident, cannot succeed in any of his claims against the nondiverse defendants – Monsivaiz, Sampsell, or Hasson – in state court. First, Monsivaiz is only mentioned in the complaint caption; there is no factual detail at all to support any claims against him. Of the two remaining non-diverse defendants, Weidman has not in any way alleged that Sampsell or Hasson made materially false statements on which Weidman reasonably relied, that their actions were connected to his heart attack, or that they engaged in outrageous or intolerable conduct. These claims fail in any case, for reasons described in Part III. The only plausible claim against Hasson and Sampsell is the wrongful discharge claim. Appellees argue that Sampsell or Hasson cannot be liable for wrongful discharge because Weidman named only describing ExxonMobil this count. in the Even paragraph assuming of his Weidman complaint brings suit against all Appellees on this claim, there simply are not enough 8 facts to allegedly connect the wrongful actions of Sampsell discharge. and Virginia Hasson law to his recognizes individual employee liability for wrongful discharge for public policy reasons. 2012). See VanBuren v. Grubb, 733 S.E.2d 919, 923 (Va. Still, Sampsell is described as one of two investigators assigned to the second investigation into Weidman’s complaints. He is mentioned only once in a paragraph that focuses on actions taken not by Sampsell, but by his co-investigator. Similarly, the most alleged against Hasson is that she attended Weidman’s performance improvement meetings. Appellees have satisfied their burden of showing there is “no possibility” of Weidman succeeding in any of his tort claims against any of these non-diverse defendants. Thus, we affirm the district court’s denial of Weidman’s motion to remand. III. Moving to the district court’s dismissal of Weidman’s tort claims, we review a grant of a motion to dismiss for failure to state a claim de novo. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). “must contain ‘plausible on sufficient its face.’” facts Id. to state (quoting Twombly, 550 U.S. 544, 570 (2007)). a claim that is Bell Atl. Corp. v. “A formulaic recitation of the elements of a cause of action” is not enough. 9 A complaint Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 288 (4th Cir. 2012) (quoting Twombly, 550 U.S. at 555). In making this determination, we “accept as true all of the factual allegations contained in the complaint,” and “draw all reasonable inferences in favor of the plaintiff.” DuPont, 637 F.3d at 440. Under this standard, we review Weidman’s claims of fraud, intentional infliction of emotional distress, personal injury, and wrongful discharge in turn. A. To establish a fraud claim, Weidman must show: false representation, (2) of a material fact, “(1) a (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.” Prospect Dev. Co. v. Bershader, 515 S.E.2d 291, 297 (Va. 1999) (quoting Bryant v. Peckinpaugh, 400 S.E.2d 201, 203 (Va. 1991)). Additionally, he is required to “state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). These circumstances are “the time, place, and false contents of the representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1297, at 590 (2d ed. 1990)). 10 We agree with the district court that Weidman failed to sufficiently plead his fraud claim against Appellees. Weidman only vaguely referred to CEO Tillerson and unnamed “members of the Human Resources and Law Departments” in his complaint. 22 (Compl. ¶ 25). J.A. He does not specify when or how many times the representations occurred, but alleges that “[a]t the time these representations were made . . . the parties who made them knew” that reporting violations “could result in actions taken against those who reported [them].” J.A. 22 (Compl. ¶ 26). Absent additional details, the district court properly dismissed Weidman’s fraud claim. B. Weidman further appeals the district court’s dismissal of his claim of intentional infliction of emotional distress. claim requires that: (1) the wrongdoer’s conduct This was “intentional or reckless”; (2) the conduct was “outrageous and intolerable”; (3) “there was a causal connection between the wrongdoer’s conduct and the emotional distress”; and (4) the resulting distress was severe. Womack v. Eldridge, 210 S.E.2d 145, 148 (Va. 1974). Weidman’s labeled a poor allegations performer against and Appellees impliedly – called that a he was pedophile – while unsettling, are nonetheless insufficient as a matter of law to establish “outrageous and 11 intolerable” conduct. Id. Weidman simply failed to set forth facts rising to the level of conduct “so outrageous . . . as to go beyond all possible bounds of decency, intolerable and in a to be regarded civilized as atrocious, community.” Russo v. and utterly White, 400 S.E.2d 160, 162 (Va. 1991); see, e.g., Baird ex rel. Baird v. Rose, 192 F.3d 462, 472-73 (4th Cir. 1999) (finding sufficiently pled facts intentionally of outrageous humiliating conduct student in she case knew of teacher suffered from depression); Lewis v. Gupta, 54 F. Supp. 2d 611, 621 (E.D. Va. 1999) (defendant conspiring to falsely accuse plaintiff of rape, resulting in plaintiff’s imprisonment for 529 days); Delk v. Columbia/HCA Healthcare Corp., 523 S.E.2d 826, 833 (Va. 2000) (defendants’ knowing failure to inform plaintiff she was exposed to HIV). Weidman argues that the “outrageous conduct” requirement set forth in Womack is not required when the harm complained of results in definite physical injury. This argument fails for several reasons. First, Weidman raises this issue for the first time on appeal. See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (“[I]ssues raised for the first time on appeal generally will not be considered.”). More fundamentally, the Supreme Court of Virginia wrote in Womack that a plaintiff must show only negligent, as opposed to willful or wanton conduct, “where emotional disturbance is accompanied 12 by physical injury,” but did so in reference to the tort of negligent infliction of emotional distress. 210 S.E. 2d at 147. When Weidman points to Womack for the principle that he is not required to show conduct going “beyond all possible bounds of decency,” Russo, 400 S.E.2d at 162, he is actually trying to reframe his claim as one for negligent, rather than intentional, infliction of emotional distress, which we cannot allow. Therefore, Weidman is required to allege “outrageous and intolerable” conduct, and we agree with the district court that he has not done so. C. Count Three of Weidman’s complaint is a “personal injury” cause of action against Appellees. paragraph: Weidman states in a single “Due to the intentional and malicious acts of the Defendants towards the Plaintiff that the Defendants knew, or should have known, would have injured the Plaintiff, Plaintiff suffered irreparable damage to his heart.” (Compl. ¶ 33). treated the J.A. 23 In dismissing this count, the district court Weidman’s heart attack Compensation as injury for provides the which the Virginia Workers’ remedy. 2 We instead affirm dismissal of this count for failure 2 Act an exclusive The Virginia Workers’ Compensation Act (“VWCA”) is triggered when an employee suffers an “injury by accident arising out of and in the course of the employment.” Va. Code (Continued) 13 to sufficiently state a claim. See Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“[W]e may affirm a judgment for any reason appearing on the record.”). complaint “naked must offer assertions devoid Ashcroft v. internal quotation allegation Iqbal, that, more 556 of U.S. marks “due than to “labels further 662, conclusions,” factual 678 omitted). the and (brackets Weidman’s and or enhancement.” (2009) intentional A well-pled and one-sentence malicious acts . . . the Plaintiff suffered irreparable damage to his heart,” J.A. 23 (Compl. ¶ 33), is exactly the kind of “naked assertion” that is insufficient to state a claim. D. Weidman’s wrongful presented in two parts. discharge claim against ExxonMobil is According to Weidman, his termination for refusing to participate in an allegedly illegal pharmacy operation violated Virginia public policy. the anti-retaliation provision in He also argues that ExxonMobil’s handbook Ann. § 65.2-101. This does not include “[i]njuries resulting from repetitive trauma, continuing mental or physical stress, or other cumulative events.” Morris v. Morris, 385 S.E.2d 858, 865 (Va. 1989). Had Weidman pled that his heart attack was the final result of repetitive stress or cumulative events, as opposed to a discrete event, his claim may not have been barred by the VWCA. Nevertheless, his own complaint does not support this argument. See J.A. 21 (Compl. ¶ 22) (“During the [performance improvement] meeting, Weidman suffered a heart attack as a direct result of the stress which Weldon maliciously inflicted upon him.” (emphasis added)). 14 constituted breached an by implied firing unilateral him for contract reporting that ExxonMobil violations of state pharmacy laws. Virginia adheres to a strong presumption that employment is at will, meaning employment lasts for an indefinite term and can be terminated for almost any reason. at 921. See VanBuren, 733 S.E.2d However, there is an exception to this doctrine for at- will employees who claim to have been discharged in violation of public policy. Bowman v. State Bank of Keysville, 331 S.E.2d 797, 1985). 801 (Va. The Supreme Court of Virginia has recognized three situations in which a litigant may show her discharge violated public policy: (1) where an employer fired an employee for exercising a statutorily created right; (2) when the public policy is “explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy”; and employee’s (3) refusal “where to the engage in discharge a was criminal based act.” on the Rowan v. failed to Tractor Supply Co., 559 S.E.2d 709, 711 (Va. 2002). The district court determined that Weidman identify a statute whose public policy ExxonMobil violated in firing him. We disagree and find Weidman sufficiently stated a claim his that termination violated the public policy sections 54.1-3310 and 54.1—3435 of the Virginia Code. 15 of These statutes make it unlawful for anyone to practice pharmacy or to engage in wholesale distribution of prescription drugs without a license. Va. Code Ann. §§ 54.1-3310, 54.1—3435. While not part of Virginia’s criminal code, a violation of these sections leads to criminal penalties. See id. § 54.1-111 (making a violation a Class 1 misdemeanor 3). Therefore, refusal to practice pharmacy without a license should be treated as refusal to engage in a criminal act. Weidman has pled sufficient factual detail to adequately state this claim. He writes in his complaint that he was wrongfully discharged for “refusing to participate in illegal pharmacy distribution activities . . . contraven[ing] the public policy interest (Compl. ¶ 38). of the Commonwealth of Virginia.” J.A. 24 He furthermore describes: Jones also requested that Weidman participate in a scheme involving a Virginia pharmacy, in which the pharmacy would distribute the stockpiled medication to Exxon Mobil employees, but Weidman refused to do so and informed Jones that this would be against the law. J.A. 14 (Compl. ¶ 8). In this way, Weidman has clearly described the circumstances of his refusal to engage in an act of criminal consequences. 3 A Class 1 misdemeanor is punishable by “confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.” Va. Code Ann. § 18.2-11(a). 16 Appellees argue that this claim cannot survive because Weidman failed to cite the statute in his complaint. any deficiency in this regard is merely technical. provide the Dismiss. citations in his reply to However, Weidman did Appellees’ Motion to See Mem. Opp’n Mot. Dismiss 17, ECF No. 13; see also Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (explaining that “a complaint, especially a pro se complaint, should not be dismissed summarily unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief” (internal quotation marks omitted)). refusal Especially since Weidman’s complaint identified his to “participate in illegal pharmacy distribution activities” as contravening Virginia public policy, his failure to provide specific citations – which he in fact provided in his responsive pleadings – cannot be considered failure to “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (ellipsis omitted). We therefore find that Weidman has sufficiently stated a wrongful discharge exception to its claim at-will under employment Virginia’s public doctrine. As a policy result, although we have previously recognized that Virginia law allows “[e]mployers [to] make unilateral offers even to at-will employees . . . in employee handbooks,” we need not reach the 17 issue. Jensen v. Int’l Bus. Machs. Corp., 454 F.3d 382, 387 (4th Cir. 2006). IV. For the foregoing reasons, we reverse the district court’s dismissal ExxonMobil of and Weidman’s remand wrongful the consistent with this opinion. case discharge for claim further against proceedings We affirm the district court in all other respects. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED 18