United States District Court, E.D. Virginia, Richmond Division
BRYAN M. BAUDEAN, Plaintiff,
PEARSON EDUCATION, INC., Defendant.
M. HANNAH LAUCK, District Judge.
This matter comes before the Court on the Motion to Dismiss filed by Defendant Pearson Education, Inc. ("Pearson"). (ECF No. 7.) Plaintiff Bryan M. Baudean responded, and Pearson replied. (ECF Nos. 10-11.) This matter is now ripe for disposition. The Court dispenses with oral argument because the materials before the Court adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. For the reasons that follow, the Court grants Pearson's Motion to Dismiss Counts III-V.
I. Standard of Review
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.
The Federal Rules of Civil Procedure "require only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Instead, a plaintiff must assert facts that rise above speculation and conceivability to those stating a claim that is "plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)).
"If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d); see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However, "a court may consider official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion into one for summary judgment] so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 F.Appx. 395, 396-97 (4th Cir. 2006) (citing Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999); Gasner v. Cnty. of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995)).
Baudean attached to his Complaint a portion of Pearson's Policy Manual ("Policy Manual") and a July 18, 2013 email ("July 2013 Email") from Pearson's Chief Executive Officer, John Fallon, to Pearson employees. (Compl. Ex. A ("Policy Manual"), ECF No. 1-1; id. Ex. B ("July 2013 Email"), ECF No. 1-2.) Pearson attached Baudean's Equal Employment Opportunity Commission Charge of Discrimination ("EEOC Discrimination Charge") to its Memorandum in Support of Motion to Dismiss. (Def.'s Mem. Supp. Mot. Dismiss ("Def.'s Mem. Supp.") Ex. 1 ("EEOC Discrim. Charge"), ECF No. 8-1.) The Court will consider the Policy Manual,  the Discrimination Charge, and the July 2013 Email because the documents are central to the claims, sufficiently referred to in the Complaint, and neither party contests their authenticity. See Witthohn, 164 F.Appx. at 396-97 (citations omitted).
II. Procedural and Factual Background
A. Procedural History
In this five-count Complaint, Baudean alleges that Pearson unlawfully discriminated against him because of his age (57), in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.,  and sex (male), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.  Baudean contends that the discrimination occurred when Pearson terminated his employment and replaced him with younger, female employees, including Nancy Baudean, his wife. Count I charges wrongful termination based on sex and "harassment" in violation of Title VII. Count II charges wrongful termination because of age and "harassment" in violation of the ADEA. Pearson has moved to dismiss the harassment aspect of those two claims. Baudean concedes that he does not pursue a harassment or hostile work environment theory in Counts I or II,  so the Court denies Pearson's motion as to those claims as moot.
Baudean brings three remaining counts under state law: Count III alleges intentional infliction of emotional distress ("IIED"); Count IV claims wrongful termination on grounds of breach of an implied contract; and, Count V alleges a breach of contract. These state law counts are subject to the discretionary exercise of this Court's supplemental jurisdiction. 28 U.S.C. § 1367(a). Virginia law applies to these claims. See infra Parts III.A, III.A.1, and III.A.3.
Baudean seeks $5 million dollars in compensatory, liquidated, and/or punitive damages, front pay, back pay, costs, and attorneys' fees. These damages stem, in part, from being replaced by his "younger, unqualified wife." (Compl. ¶¶ 76-78.) Baudean claims among other harms, loss of consortium. Baudean alleges that he has suffered "marital tension, and tension within the family." (Pl.'s Opp'n Def.'s Mot. Dismiss ("Opp'n") 5, ECF No. 10.) Pearson seeks to dismiss Counts III-V, Baudean's three state law claims.
B. Summary of Allegations in the Complaint
In October 2009, Baudean began working for Pearson as a Custom Media Editor. From October 2009 until approximately October 9, 2013, Pearson employed Nancy Baudean as a Custom Acquisitions Editor and Managing Editor. Baudean alleges that his job did not change from October 2009 until October 31, 2013, despite changing his job title three times.
During his employment, Baudean obtained positive performance reviews and had no disciplinary history. He received "recommendations and public praise from co-workers and supervisors" and, in 2012, received an award for being the top performer in his position nationwide. (Compl. ¶¶ 12-13.) However, Baudean observed "favoritism displayed towards the young female professionals by individuals in supervisory roles within the [sic] Pearson, " including "disciplining older employees for low sales numbers while failing to disciple [sic] younger employees for equally low sales numbers." ( Id. ¶ 18.)
In approximately June 2013, Eric Severson became Pearson's Vice President. His duties included supervising Baudean. On or about July 18, 2013, Pearson announced a plan to reorganize its business. On July 18, 2013, Pearson CEO John Fallon sent Pearson employees the July 2013 Email about the reorganization. Among other things, the July 2013 Email informs employees that "where roles in the new organisation are the same or broadly the same as they are today, we won't ask anyone to apply for their own jobs." (July 2013 Email 3.) The July 2013 Email further indicates "some talented and valued colleagues... won't, by the end of this year, have roles in Pearson." ( Id. ) Baudean contends that "Pearson's company handbook states... that Pearson may waive at-will employment by a separate written document signed by the CEO." (Compl. ¶ 21.) Baudean contends that the July 2013 Email is a written document that waives at-will employment when read together with the Policy Manual.
As of July 18, 2013, Pearson employed Baudean as a Learning Solutions Specialist. On October 9, 2013, Pearson changed the title of Baudean's position to Learning Solutions Consultant but did not alter his position or duties. That same day, Pearson notified Baudean, then 57 years old,  that his employment would be terminated effective October 31, 2013 as a result of the elimination of his job. Pearson notified Baudean's wife, Nancy Baudean, that she would assume the role of Learning Solutions Consultant. Baudean contends that ...