Richard Weidman v. Exxon Mobil Corporation , 776 F.3d 214 ( 2015 )

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 Corporation (“ExxonMobil”), and ten ExxonMobil
employees, alleging that he was fired in 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 employer, ExxonMobil, and ten
ExxonMobil employees. These employees include: (1) Clarion
Ellis Johnson, Medical Director; (2) Jeffrey Woodbury, Vice
President for Safety, Security, Health and 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 reported directly to Johnson and supervised
Weldon. The complaint also named four individuals who
investigated Weidman’s reports of retaliation: Daniel
Whitfield, Kent Dixon, Jeremy Sampsell, and F. 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 is a Virginia
resident, as are three of the defendants: 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 hired, Weidman was required to read ExxonMobil’s
Standards of Business Conduct (“handbook”). This handbook
detailed employee standards with respect to reporting suspected
violations of law and policy. It also guaranteed non-
retaliation by ExxonMobil against employees for making such
reports. 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 complaint alleges that in 2009 he discovered
ExxonMobil had been operating illegal pharmacies in multiple
states, and had also illegally stockpiled large quantities of
medication in its Fairfax, Virginia office, as well as in other
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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 distribute stockpiled medication to ExxonMobil
employees in Virginia. In January 2010, Weidman says he
informed Johnson he would not obtain a New Jersey 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.” The campaign included
“attempts to humiliate, discredit, and punish Weidman,”
including “continuously humiliat[ing] 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 him for prior complaints, and that
ExxonMobil was violating pharmacy laws in several states.
ExxonMobil proceeded to conduct what Weidman describes as a
“sham” investigation into his allegations. Weidman says
Whitfield and Dixon, two investigators assigned to the matter,
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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 up of these actions during the first
investigation. A second investigation commenced, led by
Sampsell and Carr. 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. In late October 2012, Weidman alleges he complained to
Human Resources about the “oppressive and unjustifiable”
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meetings. He was particularly concerned about a meeting
scheduled just days before he was to undergo surgery. The
meeting occurred on October 24, 2012, and was “hostile and
confrontational.” Weidman claims to have had a heart attack
during the meeting “as a direct result of the stress which
Weldon maliciously inflicted upon him.” In mid-December,
ExxonMobil extended Weidman’s performance improvement plan. At
the next meeting in January 2013, Weidman’s employment was
terminated, allegedly for failure to cooperate with the plan.
Subsequently, Weidman filed his complaint asserting four
causes of action: (1) fraud, because Appellees allegedly
retaliated against him despite representations made 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 District of Virginia, where they also moved to
dismiss the case under Federal Rule of Procedure 12(b)(6).
Weidman moved to remand the case to state court. The district
6
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. See Mayes v. Rapoport, 198 F.3d 457, 460 (4th
Cir. 1999). Weidman named three non-diverse defendants in his
complaint, but the district court found it could properly retain
subject matter jurisdiction under the “fraudulent joinder”
doctrine. 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. Id. at 464. However, the fraudulent joinder
doctrine provides that diversity jurisdiction 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.
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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 non-
diverse 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 ExxonMobil in the paragraph of his complaint
describing this count. Even assuming Weidman brings suit
against all Appellees on this claim, there simply are not enough
8
facts to connect the actions of Sampsell and Hasson to his
allegedly wrongful discharge. Virginia law recognizes
individual employee liability for wrongful discharge for public
policy reasons. See VanBuren v. Grubb, 733 S.E.2d 919, 923 (Va.
2012). 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). A complaint
“must contain sufficient facts to state a claim that is
‘plausible on its face.’” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A formulaic recitation of
the elements of a cause of action” is not enough. Robertson v.
9
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: “(1) a
false representation, (2) of a material fact, (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 contents of the false 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)).
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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. J.A.
22 (Compl. ¶ 25). 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. This
claim requires that: (1) the wrongdoer’s conduct 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 allegations against Appellees – that he was
labeled a poor performer and impliedly called a pedophile –
while unsettling, are nonetheless insufficient as a matter of
law to establish “outrageous and intolerable” conduct. Id.11
Weidman simply failed to set forth facts rising to the level of
conduct “so outrageous . . . as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Russo v. 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 of outrageous conduct in case of teacher
intentionally humiliating student she knew 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
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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. Weidman states in a single
paragraph: “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, the
Plaintiff suffered irreparable damage to his heart.” J.A. 23
(Compl. ¶ 33). In dismissing this count, the district court
treated Weidman’s heart attack as an injury for which the
Virginia Workers’ Compensation Act provides the exclusive
remedy. 2 We instead affirm dismissal of this count for failure
2
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.”). A well-pled
complaint must offer more than “labels and conclusions,” or
“naked assertions devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets and
internal quotation marks omitted). Weidman’s one-sentence
allegation that, “due to the intentional and 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 discharge claim against ExxonMobil is
presented in two parts. According to Weidman, his termination
for refusing to participate in an allegedly illegal pharmacy
operation violated Virginia public policy. He also argues that
the anti-retaliation provision in 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)).
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constituted an implied unilateral contract that ExxonMobil
breached by firing him for reporting 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. See VanBuren, 733 S.E.2d
at 921. 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, 801 (Va. 1985). 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 (3) “where the discharge was based on the
employee’s refusal to engage in a criminal act.” Rowan v.
Tractor Supply Co., 559 S.E.2d 709, 711 (Va. 2002).
The district court determined that Weidman failed to
identify a statute whose public policy ExxonMobil violated in
firing him. We disagree and find Weidman sufficiently stated a
claim that his termination violated the public policy of
sections 54.1-3310 and 54.1—3435 of the Virginia Code. These
15
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 of the Commonwealth of Virginia.” J.A. 24
(Compl. ¶ 38). 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. However,
any deficiency in this regard is merely technical. Weidman did
provide the citations in his reply to Appellees’ Motion to
Dismiss. 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)). Especially since Weidman’s complaint identified his
refusal 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 claim under Virginia’s public policy
exception to its at-will employment doctrine. As a 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 of Weidman’s wrongful discharge claim against
ExxonMobil and remand the case for further proceedings
consistent with this opinion. We affirm the district court in
all other respects.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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