Harshbarger v. Csx Trasnp., Inc., CIV.A. 3:05-0588.

478 F.Supp.2d 890

Jeffery B. HARSHBARGER, Plaintiff, v. CSX TRANSPORTATION, INC., a Virginia Corporation, Defendant.

No. CIV.A. 3:05-0588.

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

August 4, 2006.

COPYRIGHT MATERIAL OMITTED

Timothy P. Rosinsky of Rosinsky Law Office, Huntington, WV, for Plaintiff.

Christine A. Samsel, Los Angeles, CA, and Heidi L. Gunst, Washington, DC of Akin Gump Strauss Hauer & Feld, LLP, and Edward M. Kowal, Jr., Huntington, WV of Campbell Woods, PLLC, for CSXT.

ORDER

CHAMBERS, District Judge.

Pending before the Court is Defendant CSX Transportation, Inc.'s Motion to Dismiss all four counts in Plaintiffs Complaint. For the following reasons, the Court GRANTS Defendant's motion with respect to Plaintiff's claim for outrage, violation of public policy, and breach of oral contract, and DENIES Defendant's motion with respect to Plaintiff's claim for equitable estoppel and detrimental reliance.

I. FACTS

Plaintiff began working for Defendant in its Risk Management Department in approximately 1990. Plaintiff alleges in his Complaint that, during the course of his employment, he was harassed and intimidated by his supervisor, A.F. Bobersky. Plaintiff states he complained of Mr. Bobersky's actions on August 7, 2001, after being assured that he would not be fired or retaliated against for documenting his complaints. Despite his complaints, Plaintiff states that Mr. Bobersky continued to harass him on more than one occasion. Therefore, Plaintiff continued to complain about Mr. Bobersky's actions. In April of 2003, Plaintiff's complaints were ultimately reassigned to Matt Charron, a Human Resource employee, and Plaintiff spoke to Mr. Charron about the situation. A short time later, Mr. Charron contacted Plaintiff to discuss allegations that Plaintiff was involved in misconduct. Plaintiff denied the allegations and suggested to Mr. Charron that Mr. Bobersky was behind the allegations. Plaintiff did not speak with Mr. Charron again. However, on July 24, 2003, Plaintiff was fired. Plaintiff believes that Mr. Bobersky fabricated the allegations against him in retaliation for Plaintiffs complaints against him. Plaintiff asserts that such action violated `Defendant's Code of Ethics and the verbal assurances he received that he would not be terminated. Therefore, Plaintiff filed his Complaint in this Court on July 22, 2005.

II. STANDARD OF REVIEW

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defending party may move to dismiss if the pleading party has failed to state a claim for which relief may be granted. A Rule 12(b)(6) motion tests the sufficiency of the pleading. It does not resolve factual disputes, "the merits of a claim, or the applicability of defenses." Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (citations omitted). In considering the motion, the claims must be viewed in the light most favorable to the nonmoving party and all allegations accepted as true. Id. Dismissal is appropriate only when it appears beyond a doubt that no set of facts would entitle the pleader to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

III. DISCUSSION

A. Tort of Outrage

In its Motion to Dismiss, Defendant first argues that Plaintiff's claim for outrage must be dismissed because it was not filed within the statute of limitations and, even if it was, it is not supported by the facts alleged. The parties agree that these issues are controlled by the West Virginia Supreme Court's decision in Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998). In Syllabus Point 8 of Travis, the court held:

In claims for intentionally or recklessly inflicted emotional distress that arise from the termination of employment, the two-year statute of limitation for personal injuries begins to run on the date of the last extreme and outrageous conduct, or date of the last extreme or outrageous conduct, or threat of extreme and outrageous conduct, which precipitated the termination of employment.

Syl. Pt. 8, Travis. Defendant asserts that the purported outrageous conduct as alleged in Plaintiff's Complaint occurred from early 2001 to early 2003, with the last alleged conduct occurring in April of 2003. However, Plaintiff did not file his Complaint until July 22, 2005, more than two years after the precipitating conduct. Therefore, Defendant argues Plaintiff's cause of action for outrage is untimely.

In order for Plaintiffs claim of outrage to be timely under these facts, the last outrageous conduct would have had to occurred within the period between July 22, 2003, and July 24, 2003, the date Plaintiff was terminated. If the last alleged outrageous conduct occurred before July 22, 2003, Plaintiff's claim would be barred by the two-year statute of limitations because his Complaint was not filed until July 22, 2005. In order to prove the tort of outrage, the West Virginia Supreme Court held in Syllabus Point 3 of Travis:

In order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress,¹ four elements must be established. It must be shown: (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.

Syl. Pt. 3, Travis (footnote added). Plaintiff states in his Response to Defendant's motion that he does not know when the last act of outrageous conduct occurred and, thus, discovery is necessary and Defendant's motion is premature. However, in examining the elements of the claim, the Court finds it would be impossible for Plaintiff to prove his claim if he is unaware of any outrageous conduct that occurred between July 22, 2003, and July 24, 2003. Under Travis, Plaintiff must have been aware of the conduct in order for it to have caused him such severe emotional distress that a reasonable person could not have endured it. Otherwise, Plaintiff has not stated a claim. Clearly, if this conduct occurred, Plaintiff necessarily would be aware of it without the need for further discovery. However, Plaintiff has not alleged such conduct in his Complaint during the time frame at issue. In fact, the last conduct Plaintiff discusses in his Complaint occurred "a short time after" April of 2003 when Mr. Charron spoke to him about allegations that he had committed some wrongdoing. Complaint, ¶ 20. According to Plaintiff, this discussion was the last time he spoke with Mr. Charron. Id. The next paragraph in the Complaint provides that Plaintiff was terminated on July 24, 2003. Id. There are no allegations in the Complaint that Defendant committed an outrageous act during the interim period. If Plaintiff could identify an outrageous act, but simply was unsure of precisely when the act occurred, then, perhaps, Plaintiff could conduct discovery to determine whether it fell within the statute of limitations. Here, however, there is no such allegation in the Complaint, nor has Plaintiff identified any such act in his Response to Defendant's motion. Thus, even considering the Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff's claim for outrage must be dismissed and GRANTS Defendant's motion to dismiss this count.

B. Violation of Public Policy

Defendant next argues for dismissal of Plaintiff's claim that Defendant violated public policy by terminating him. In his Complaint, Plaintiff alleges:

that it is a violation of West Virginia Public Policy for CSX to terminate his employment based upon his reasonable reliance of a business policy which prohibits retaliation against employees who report harassment against a management employee, As a direct and proximate consequence thereof, plaintiff asserts that he suffered damages for loss of past, present and future wages.

Id. at ¶ 33. In his Response to Defendant's motion, Plaintiff recognizes that employers have an absolute right to terminate at-will employees, such as himself, except that they may be liable if the termination violates a substantial public policy. See Syl., Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978) (stating "[t]he rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge"). Defendant maintains, however, Plaintiff has failed to identify any clear mandate of public policy that was violated and its alleged failure to follow an internal business policy is not the equivalent of violating a public policy. For the following reasons, the Court agrees with Defendant.

In Syllabus Point 2 of Birthisel v. Tri-Cities Health Services Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992), the West Virginia Supreme Court held that "[t]o identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, ... [courts] look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions." Syl. Pt. 2, Birthisel. In Tiernan v. Charleston Area Medical Center, Inc., 203 W.Va. 135, 506 S.E.2d 578 (1998), the court further explained that numerous other courts "unanimously take the position that public policy has to be preexisting and germinate from constitutional, statutory, or regulatory provisions or prior judicial decisions." 506 S.E.2d at 583 (footnote with...