Stewart v. Everyware Global, Inc.

68 F.Supp.3d 759

Michael STEWART, Plaintiff

v.EVERYWARE GLOBAL, INC., et al., Defendants.

Case No. 2:14–cv–600.

United States District Court, S.D. Ohio, Eastern Division.

Signed Nov. 10, 2014.

Kathy Ruark Blevins, Lori Ann Strobl, Michelle M. Arostegui, Strobl & Associates Co., LPA, Centerville, OH, for Plaintiff.

Catherine Frost Burgett, Anne E. McNab, Frost Brown Todd LLC, Columbus, OH, for Defendants.

OPINION AND ORDER

JAMES L. GRAHAM, District Judge.

This is an action brought by plaintiff Michael Stewart against his former employers, Everyware Global, Inc., a Delaware corporation with its corporate headquarters in Lancaster, Ohio, and Anchor Hocking, LLC, a subsidiary of Everyware having its principal place of business in Lancaster, Ohio. The action was originally filed in the Court of Common Pleas of Fairfield County, Ohio, on April 7, 2014. Defendants filed a notice of removal on June 20, 2014, on the ground of federal question jurisdiction.

In his complaint, plaintiff alleges that he was employed by defendants as the IT Infrastructure and Operations Manager for Anchor Hocking. Complaint, ¶ 6. Plaintiff alleges that in November, 2013, defendants' general counsel discovered discrepancies in Everyware's financial disclosures, and told management that she would report this information to the Securities and Exchange Commission unless the issues were not corrected within ninety days. Complaint, ¶ 11–12. General counsel was terminated by the defendants. Complaint, ¶ 14. Thereafter, Associate General Counsel Erica Schoenberger approached plaintiff about participating in an internal investigation into the matter. Complaint, ¶ 15. Plaintiff stated that he was not comfortable with retrieving communications for an investigation that involved upper level management and plaintiff's supervisors. Complaint, ¶¶ 16–17. As a result of plaintiff's concerns, an outside firm was retained to retrieve information from cell phones and other equipment, and plaintiff's role was confined to working with the outside firm in retrieving company emails. Complaint, ¶¶ 18–19. Plaintiff alleges that as part of his job responsibilities, he was required to submit weekly updates regarding his tasks, including his work on the investigation, to Chief Financial Officer Bernard Peters, who was one of the individuals implicated in the matter of inaccurate financial disclosures. Complaint, ¶¶ 23–27.

Plaintiff further alleges that after submitting these weekly reports to Peters, plaintiff began experiencing retaliation, including the cancellation of a vacation day, the rescheduling of weekly meetings to times when plaintiff would be unable to attend, and the inclusion of his name on a list of individuals targeted for termination. Complaint, ¶¶ 31–34. On January 21, 2014, plaintiff was terminated, reportedly due to a reduction in force and the elimination of his job. Complaint, ¶¶ 39–40. Plaintiff's position was then held, in sequence, by three younger and less experienced individuals. Complaint, §§ 42–47.

In his complaint, plaintiff advances the following claims: (1) retaliation in violation of the Sarbanes–Oxley Act of 2002 (“SOX”), 18 U.S.C. § 1514A ; (2) wrongful termination in violation of public policy under Ohio law; (3) age discrimination in violation of Ohio Rev.Code Chapter 4112; and (4) promissory estoppel under Ohio law. This matter is before the court on the defendants' motion pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the wrongful termination and promissory estoppel claims for failure to state a claim for which relief may be granted.

I. Rule 12(b)(6) Standards

In ruling on a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff, accept all well-pleaded allegations in the complaint as true, and determine whether plaintiff undoubtedly can prove no set of facts in support of those allegations that would entitle him to relief. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir.2008) ; Harbin–Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005). To survive a motion to dismiss, the “complaint must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir.2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice. Id.

While the complaint need not contain detailed factual allegations, the “[f]actual allegations must be enough to raise the claimed right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and must create a reasonable expectation that discovery will reveal evidence to support the claim. Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776, 780 (6th Cir.2007). A complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Where the facts pleaded do not permit the court to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief as required under Fed.R.Civ.P. 8(a)(2). Id.

Plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ; see also Ashcroft, 556 U.S. at 679, 129 S.Ct. 1937 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir.2007).

II. Wrongful Termination Claim

Defendants move to dismiss plaintiff's claim for wrongful termination in violation of public policy, arguing that the remedies afforded plaintiff under SOX are adequate to address the public policy embodied in that statute.

The common-law doctrine of employment at will, under which an employee or an employer may legally terminate the employment relationship at any time and for any reason, generally governs employment relationships in Ohio. Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 103, 483 N.E.2d 150 (1985). However, Ohio recognizes a public policy exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute. See Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, Syll. Para. 1, 551 N.E.2d 981 (1990). The elements for the tort of wrongful discharge in violation of public policy are: (1) that a clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law; (2) that dismissing employees under circumstances like those involved in plaintiff's dismissal would jeopardize the public policy; (3) that plaintiff's dismissal was motivated by conduct related to the public policy; and (4) that the employer lacked an overriding legitimate business justification for the dismissal. Leininger v. Pioneer National Latex, 115 Ohio St.3d 311, 313, 875 N.E.2d 36 (2007). The first and second elements are questions of law to be determined by the court. Id.

In addressing the second element (the so-called “jeopardy” element), the Ohio Supreme Court has declined to recognize a common-law claim for wrongful termination in cases where plaintiff is provided with sufficiently broad and inclusive remedies by the statute expressing the public policy. See Wiles v. Medina Auto Parts, 96 Ohio St.3d 240, 244, 773 N.E.2d 526 (2002) (noting that there is “no need to recognize a common-law action for wrongful discharge if there already exists a statutory remedy that adequately protects society's interests”). In such a case, public policy is not jeopardized by the absence of a common-law action in tort “because an aggrieved employee has an alternate means of vindicating his or her statutory rights ... thereby discouraging an employer from engaging in the unlawful conduct.” Id. In Wiles, the plaintiff relied on the Family Medical Leave Act (“FMLA”) as the source of public policy supporting his wrongful discharge claim. The Ohio Supreme Court noted that even though the FMLA might not provide all of the remedies, such as punitive damages or compensation for emotional distress, which might be recovered under common law, “the absence of those items of recovery does not render the statutory remedies inadequate” and there was “no need to create by judicial fiat further remedies by way of a Greeley claim when the FMLA provides reasonably satisfactory ones.” Id. at 247–248, 773 N.E.2d 526.

Similarly, in Leininger, 115 Ohio St.3d at 319, 875 N.E.2d 36, the Ohio Supreme Court held that the jeopardy element was not satisfied where Ohio Rev.Code Chapter 4112 adequately protected the state's policy against age discrimination in employment through the remedies it offers to aggrieved employees. The court concluded that “it is unnecessary to recognize a common-law claim when remedy provisions are an essential part of the statutes upon which the plaintiff depends for the public policy claim and when those remedies adequately protect society's interest by discouraging the wrongful conduct.” Id. at 317, 875 N.E.2d 36.

In this case, the public policy relied upon by plaintiff is contained in SOX, as codified in 18 U.S.C. § 1514A. That statute provides whistleblower protection for employees of publicly traded companies by creating a civil action for retaliation. Section 1514A(a) provides in relevant part that no publicly traded company

may discharge, demote, suspend, threaten, harass, or in any other

...