Sorry boss, I didn’t know you were having sex in the office!!

The West Vir­ginia Supreme Court recently issued an opin­ion deal­ing with one of those stereo­typ­i­cally awk­ward sit­u­a­tions, where an employee allegedly stum­bles into a room where the boss is hav­ing sex with a co-worker. The deci­sion was  Roth v. DeFe­lice­Care, Inc., – W. Va. –, — S.E.2d –, 2010 WL 2346248 (June 8, 2010) (per curiam). It was a 3–2 deci­sion, in which the 3-vote major­ity con­sisted of Jus­tices Robin Davis, Mar­garet Work­man, and  Thomas McHugh. Jus­tices Menis Ketchum and Brent Ben­jamin dis­sented, and Jus­tice Ketchum wrote a dis­sent­ing opinion.

The Facts–Sex at Work

Edvard Munch, The Scream, click for Wikipedia article These are the facts accord­ing to the com­plaint in the law­suit: Tri­cia Roth was a res­pi­ra­tory ther­a­pist work­ing at DeFe­lice­Care, Inc. in Ohio County, West Vir­ginia, and she was about to go on vaca­tion. She was directed by Leslie DeFe­lice (the male boss/owner) to come to work some­time dur­ing the week­end pre­ced­ing her vaca­tion in June 2006. She was not told a spe­cific time to come to work dur­ing that week­end. When she came to work as ordered, she “observed Defen­dant [Leslie] DeFe­lice and/or Michelle Kelly par­tially clothed and in a com­pro­mis­ing posi­tion”. Mr. DeFe­lice instructed Ms. Roth to go into a con­fer­ence room and wait–meanwhile Mr. DeFe­lice and the other employee got all their clothes back on. Mr. DeFe­lice then talked to Ms. Roth and told her to for­get about what she had just seen, and threat­ened Ms. Ross with the loss of her res­pi­ra­tory ther­apy license and the loss of her employment.

Ms. Roth then went on vaca­tion. When she got back from vaca­tion and returned to work, she had a meet­ing with Mr. DeFe­lice that didn’t go well. Ms. Roth told Mr. DeFe­lice that she hadn’t told any­one about his sex­ual encounter at work. Mr. DeFe­lice pro­ceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal the­o­ries cen­ter­ing around sex dis­crim­i­na­tion and sex­ual harass­ment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s com­plaint (the doc­u­ment which starts the law­suit and describes the plaintiff’s alle­ga­tions) focused on the sex­ual inci­dent I have described above, but also made alle­ga­tions about other sex­ual harassment–I will dis­cuss those details below.

Motion to Dis­miss Under Rule 12(b)(6)

The impor­tant thing to under­stand about the appeal to the WV Supreme Court is that the defen­dants imme­di­ately filed a motion to dis­miss (under Rule 12(b)(6)) based only on the com­plaint filed by Ms. Roth–there was no evi­dence that had been accu­mu­lated through depo­si­tions, affi­davits, and the like. The basis for the motion to dis­miss was that Ms. Roth had “failed to state a claim upon which relief may be granted.” That motion is based solely “on the plead­ings”, and is based on no other evidence.

A motion to dis­miss on the plead­ings must assume the truth­ful­ness of the alle­ga­tions in the plaintiff’s com­plaint, and argues roughly this: even if every­thing the plain­tiff says is true, she still can’t win, because there is noth­ing about those alle­ga­tions that would allow her any recov­ery in court.

Let’s use this as an exam­ple to illus­trate a motion to dis­miss on the plead­ings (under Rule 12(b)(6)):

  • Sup­pose my boss fires me, and hands me a nota­rized res­o­lu­tion issued by the board of direc­tors of my cor­po­rate employer say­ing: “We hereby fire Drew M. Capuder because his socks don’t match. We hate peo­ple that can’t clothe them­selves with min­i­mal com­pe­tence. We infer from that char­ac­ter­is­tic that such peo­ple are incom­pe­tent employ­ees. Fur­ther­more, we, the board of direc­tors and man­age­ment of Drew’s employer, har­bor an intense per­sonal hatred for such peo­ple. We fire Drew with the great­est joy and aban­don.” My boss hands me the board res­o­lu­tion and says “you’re fired, and the com­pany secu­rity will escort you out imme­di­ately”. I say to my boss, “that’s dis­crim­i­na­tory”. My boss replies: “Of course it is–we despise peo­ple who can’t dress them­selves prop­erly”. My boss, who recorded the ter­mi­na­tion meet­ing, then hands me a nicely pack­aged CD record­ing of the ter­mi­na­tion meet­ing as the com­pany secu­rity guard quickly ush­ers me out of the building.
  • I file suit for dis­crim­i­na­tion and wrong­ful dis­charge. I ini­ti­ate the law­suit by fil­ing a doc­u­ment called a “com­plaint” which sets out a brief state­ment of the facts and the legal the­o­ries on which I am relying.
  • My employer’s defense coun­sel looks at my com­plaint, and says to her­self: “I don’t have to answer this silly-assed law­suit. I will file a motion to dis­miss, because there is noth­ing about Drew’s idi­otic alle­ga­tions that our legal sys­tem rec­og­nizes as valid legal claims”. So the defense lawyer files a motion to dis­miss, based only on the alle­ga­tions in my com­plaint, under Rule 12(b)(6) of the West Vir­ginia Rules of Civil Pro­ce­dure. This is the same kind of motion that the defen­dants filed against Ms. Roth.
  • The trial judge reviews the motion to dis­miss and my response. The trial judge then takes about 6 nanosec­onds to decide that the defendant’s motion should be granted, and–bada bing!–my case is dis­missed. This is the same type of deci­sion which the judge made in Ms. Roth’s case (and the cor­rect­ness of that deci­sion was the issue on appeal).
  • The trial judge in my case made the cor­rect deci­sion because, assum­ing (for pur­poses of the motion to dis­miss) every­thing I said in my com­plaint was true, there is noth­ing about those alle­ga­tions that estab­lishes any sort of rec­og­nized claim for wrong­ful dis­charge. In other
    words, my com­plaint would not allow me to win in court. It’s as sim­ple as that.
  • Con­trary to some pop­u­lar under­stand­ing, the law does not pro­hibit all forms of employ­ment dis­crim­i­na­tion. The law only pro­hibits employ­ment dis­crim­i­na­tion in which the employer’s deci­sion is based on pro­tected char­ac­ter­is­tics. Those char­ac­ter­is­tics include race, age, gen­der, national ori­gin, dis­abil­ity, and reli­gion (and there are other char­ac­ter­is­tics like cer­tain types of whis­tle blow­ing, mil­i­tary ser­vice, jury duty, etc.). So if my employer dis­crim­i­nates against me because my socks don’t match, there is noth­ing about being a fash­ion moron that con­sti­tutes a pro­tected char­ac­ter­is­tic. My employer is free to law­fully dis­crim­i­nate, and make adverse employ­ment deci­sions, on that basis. The point of the motion to dis­miss in Ms. Roth’s case was that there was noth­ing about her alle­ga­tions that involved dis­crim­i­na­tion based on her sex (gender)–and that was the main issue under review on appeal.

Stan­dards for Dis­missal Under Rule 12(b)(6); Iqbal is Rejected

When an employer (or any other defen­dant) is try­ing to dis­miss a law­suit under Rule 12(b)(6), the deck is stacked in favor of the employee in the sense that this will be a deci­sion based on only the suf­fi­ciency of the alle­ga­tions in the com­plaint. The WV Supreme Court has applied these rules in scru­ti­niz­ing the ade­quacy of the complaint:

  • lib­er­ally con­strue the com­plaint so as to do sub­stan­tial justice”;
  • keep in mind that “the pref­er­ence is to decide cases on their merits”;
  • con­strue the com­plaint in the light most favor­able to the plain­tiff, tak­ing all the alle­ga­tions as true”;
  • dis­miss the com­plaint only if it “appears beyond doubt that the plain­tiff can prove no set of facts in sup­port of his claim which would enti­tle him to relief”, and
  • the rules con­cern­ing plead­ings require that the com­plaint  merely give “fair notice” of the alle­ga­tions, and the com­plaint itself is “not required to set out facts upon which the claim is based”.  (This prin­ci­ple arises out of Rule 8(a) which states that a com­plaint shall con­tain a “short and plain state­ment of the claim show­ing that the pleader is enti­tled to relief”. Rule 9(b) then states that alle­ga­tions of “fraud or mis­take” shall be stated “with par­tic­u­lar­ity”, but that “[m]alice, intent, knowl­edge, and other con­di­tion of mind of a per­son may be averred gen­er­ally.” The com­pa­ra­ble fed­eral Rule 8(a) was the basis for the US Supreme Court in 1957 for­mu­lat­ing the “notice” con­cept for plead­ings in Con­ley v. Gib­son, 355 U.S. 41 (1957).)

This last item, the “fair notice” require­ment, is key to under­stand­ing this case and dis­missal motions under Rule 12(b)(6). The point of the com­plaint in West Vir­ginia is to give “fair notice” of the alle­ga­tions, and it is not required to set out the alle­ga­tions in more detail. The “more detail” is some­thing that the par­ties explore under the “dis­cov­ery phase” of the law­suit when doc­u­ments are requested, depo­si­tions are taken, etc.

The US Supreme Court has recently adopted a more strin­gent sys­tem for eval­u­at­ing com­plaints in the Rule 12(b)(6) con­text (the feds have the same rule), with the deci­sions being Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Cor­po­ra­tion v. Twombly, 550 U.S. 544 (2007). In Iqbal, the US Supreme Court held:

[t]o sur­vive a motion to dis­miss, a com­plaint must con­tain suf­fi­cient fac­tual mat­ter, accepted as true to state a claim to relief that is plau­si­ble on its face.

The US Supreme Court held that “bare asser­tions” are not enti­tled to be accepted as true in eval­u­at­ing a motion to dis­miss under Rule 12(b)(6).

The WV Supreme Court in Roth v. DeFe­lice­Care, Inc., on the other hand, rejected the “more strin­gent” fed­eral require­ment, and stuck with the “fair notice” principles.

The Iqbal deci­sion was a 5–4 split, and has gen­er­ated a good bit of con­tro­versy. Mem­bers of Con­gress have taken steps toward leg­isla­tively over­turn­ing it. The US House bill (H.R. 4115), called the Open Access to Courts Act of 2009, is in com­mit­tee, and hear­ings have been con­ducted by the House Judi­ciary Com­mit­tee. The Bill has not emerged from the Judi­ciary Com­mit­tee. In the Sen­ate, a com­pa­ra­ble bill called the “Notice of Plead­ings Restora­tion Act of 2009” (S. 1504) has been intro­duced, and it has not emerged from the Sen­ate Judi­ciary Com­mit­tee. Both of these bills would return fed­eral law to the “notice plead­ing” prin­ci­ples for­mu­lated in Con­ley v. Gib­son, 355 U.S. 41 (1957).

Roth’s Hos­tile Work Envi­ron­ment Claim

The trial court dis­missed Ms. Roth’s claim for hos­tile work envi­ron­ment, which includes claims for sex­ual harass­ment.

To “estab­lish a claim for sex­ual harass­ment based upon a hos­tile or abu­sive work envi­ron­ment” under WV Human Rights Act, the plain­tiff must prove

  • 1. The sub­ject con­duct was unwelcome,
  • 2. It was based on the sex of the plaintiff,
  • 3. It was suf­fi­ciently severe or per­va­sive to alter the [plaintiff’s] con­di­tions of employ­ment and cre­ate an abu­sive work envi­ron­ment, and
  • 4. It was imputable on some fac­tual basis to the employer.

The key ele­ment for this appeal was the sec­ond ele­ment. The trial court deter­mined that the weird cir­cum­stance described by Ms. Roth in her com­plaint, when she allegedly stum­bled into an area where her boss and another female employee were in some sort of sex­ual activ­ity, was not any sort of hos­tile work envi­ron­ment that was “based on the sex of the plain­tiff” (ele­ment 2 above). (For this pur­pose, the courts use “sex” and “gen­der” interchangeably.)

The WV Supreme Court’s opin­ion dis­cussed whether these alle­ga­tions could form the basis for a hos­tile work envi­ron­ment “based on sex”, and Jus­tice Ketchum’s dis­sent dis­cusses that as well. I am a bit con­fused by the Court’s opin­ions (the major­ity and the dis­sent) because some of the analy­sis seems to assume that the only the facts alleged in sup­port of a hos­tile work envi­ron­ment are the facts relat­ing to the episode of the boss allegedly being in sex­ual activ­ity with a female coworker. How­ever, the Supreme Court’s opin­ion makes it clear that there were sig­nif­i­cant other alle­ga­tions that sup­ported a claim for hos­tile work environment:

Defen­dant DeFe­lice­Care autho­rized, directed and acqui­esced in the allowance of per­va­sive, explicit and habit­ual harass­ment which included but is not lim­ited to: sub­ject­ing [Ms. Roth] to such sex­u­ally explicit con­duct, threats of loss of license, loss of employ­ment and ter­mi­na­tion for unwanted sex­u­ally explicit con­duct she observed.

The key lan­guage in that por­tion is a “per­va­sive, explicit and habit­ual harass­ment which included but is not lim­ited to” the boss’s alleged sex­ual activ­ity with the coworker described in the com­plaint. Based on notice plead­ing require­ments, and if the issue is whether the com­plaint puts the defen­dant on notice con­cern­ing a claim of hos­tile work envi­ron­ment or sex­ual harass­ment, that alle­ga­tion alone should end the argu­ment. In other words, there were alle­ga­tions that there were sex­ual activ­i­ties cre­at­ing a hos­tile work envi­ron­ment above and beyond the episode involv­ing the boss and coworker.

Another alle­ga­tion in the com­plaint that is rel­e­vant to this issue is:

Ms. Roth was “sub­jected to improper and sex­u­ally explicit con­duct by her supe­ri­ors includ­ing the pres­i­dent and CEO Defen­dant DeFe­lice… thereby cre­at­ing a hos­tile and abu­sive envi­ron­ment for employment”.

Again, that is clearly mak­ing alle­ga­tions of a hos­tile work envi­ron­ment that involve supe­ri­ors other than Mr. DeFe­lice. So the complaint’s alle­ga­tions of hos­tile work envi­ron­ment were not lim­ited to the boss/co-worker-being-partially-undressed episode.

Ulti­mately,  the WV Supreme Court con­cluded that Ms. Roth’s alle­ga­tions in her com­plaint were suf­fi­cient to sat­isfy the plead­ings require­ments for a hos­tile work envi­ron­ment claim.

Ms. Roth’s Claim for “Quid Pro Quo” Sex­ual Harassment

Ms. Roth also alleged that she was ter­mi­nated because of the sex­ual harass­ment. This is a claim under the WV Human Rights Act for what is gen­er­ally known as “quid pro quo sex­ual harass­ment”, which involves an alle­ga­tion that a tan­gi­ble employ­ment decision—here, termination—was related to the sex­ual harass­ment. For such a claim, the plain­tiff must prove that she was a mem­ber of a pro­tected class (here, female), that there was an adverse employ­ment deci­sion (here, ter­mi­na­tion), and that “but for the plaintiff’s pro­tected sta­tus, the adverse deci­sion would not have been made.”

The trial court also dis­missed this claim, again on the the­ory that the com­plaint did not present any alle­ga­tion that the ter­mi­na­tion was based on Ms. Roth’s sex. The WV Supreme Court dis­agreed and reversed this decision.

The WV Supreme Court dis­cussed whether Ms. Roth’s encounter with her boss and coworker, and the sub­se­quent ter­mi­na­tion, could be con­sid­ered “based on the sex” of Ms. Roth, and described a state­ment made at oral argu­ment by the plaintiff’s attor­ney, to the effect that a woman might have been fired, and a man might have been retained under the cir­cum­stances, because men might view such sex­ual activ­ity as some­thing to be “admired” (so by infer­ence, there would be no ter­mi­na­tion), but a woman employee might be dis­ad­van­taged under com­pa­ra­ble cir­cum­stances. The Court described that the­ory as “spec­u­la­tive at best”, and then focused on what was the real issue: “whether the appel­lants’ com­plaint was “suf­fi­ciently pleaded”.

For Ms. Roth’s dis­crim­i­na­tion claim over her dis­charge, on the issue of whether her dis­charge was based on her sex, a rel­e­vant alle­ga­tion was that Mr. DeFe­lice fired Ms. Roth stat­ing that “he did not like how s

he dressed” and “he did not like the style/color of her hair”. That seems to me to be a pretty gender-based rea­son for ter­mi­na­tion (again, that is Ms. Roth’s alle­ga­tion, and it must be accepted as true in this pro­ce­dural context).

Ms. Roth’s Claim for Dis­charge in Vio­la­tion of a Sub­stan­tial Pub­lic Policy

Ms. Roth also alleged wrong­ful ter­mi­na­tion under the doc­trine first announced by the WV Supreme Court in Har­less v. First National Bank in Fair­mont, 162 W. Va. 116, 246 S.E.2d 270 (1978), where ter­mi­na­tion will be action­able if the “moti­va­tion” of the employer “is to con­tra­vene some sub­stan­tial pub­lic pol­icy prin­ci­ple.” That doc­trine has been applied in a num­ber of set­tings, includ­ing whistle­blower cir­cum­stances, sit­u­a­tions where an employee invokes a right such as self defense (in the set­ting of a store rob­bery), pri­vacy rights under some cir­cum­stances to refuse drug tests, and sit­u­a­tions where the employee is ter­mi­nated because of some tes­ti­mony in a legal proceeding.

The trial judge decided that the facts did not sup­port any con­clu­sion that there was a “sub­stan­tial pub­lic pol­icy” that the employer was try­ing to “con­tra­vene”.  The WV Supreme Court dis­agreed and reversed on this deci­sion as well.

Ms. Roth sub­mit­ted the fol­low­ing three alleged “sub­stan­tial pub­lic poli­cies” at issue which she claimed made the ter­mi­na­tion unlaw­ful, and the trial court rejected all of them. The WV Supreme Court con­cluded that the sec­ond and third poli­cies could be viable, so that it reversed the deci­sion to dis­miss this wrong­ful dis­charge claim under the Har­less doctrine:

  • First: the plain­tiff invoked West Vir­ginia statutes con­cern­ing pub­lic nudity, and the trial court dis­missed that as a rel­e­vant sub­stan­tial pub­lic pol­icy; and the West Vir­ginia Supreme Court agreed.
  • Sec­ond: Ms. Roth con­tended that the sex dis­crim­i­na­tion and sex­ual harass­ment laws under the WV Human Rights Act cre­ated sub­stan­tial pub­lic poli­cies, and the West Vir­ginia Supreme Court has pre­vi­ously made it clear under the Har­less doc­trine that those statutes in fact estab­lished sub­stan­tial pub­lic poli­cies which could form the basis of a wrong­ful dis­charge claim. How­ever, the trial court implic­itly rejected that theory—the trial court didn’t expressly dis­cuss it. The West Vir­ginia Supreme Court dis­agreed, based on the analy­sis that I have described above in dis­cussing the hos­tile work envi­ron­ment claim. This pol­icy and the next (third) pol­icy were raised by Ms. Roth’s coun­sel in her oppo­si­tion to the motion to dis­miss, and the WV Supreme Court said the trial court should have addressed them in reach­ing its deci­sion. In other words, the trial court should not have lim­ited its con­sid­er­a­tion of poten­tial pub­lic poli­cies to those described in the complaint.
  • Third: Ms. Roth alleged that there was another law­suit by another female employee for sex­ual harass­ment that pre­ceded her own, and in that law­suit, there had been alle­ga­tions of a sex­ual rela­tion­ship between Mr. DeFe­lice and the co-worker that was in a state of par­tial undress with Mr. DeFe­lice when Ms. Roth walked in right before her vaca­tion. In that other law­suit, there had been tes­ti­mony deny­ing the rela­tion­ship between Mr. DeFe­lice and the (par­tially clothed) co-worker. Thus, Ms. Roth had the poten­tial for hav­ing tes­ti­mony in that other law­suit that could have con­tra­dicted the tes­ti­mony that Mr. DeFe­lice and the other co-worker were not involved in any sort of rela­tion­ship. Ms. Roth’s lawyer alleged that DeFe­lice­Care was vio­lat­ing a sub­stan­tial pub­lic pol­icy in poten­tially ter­mi­nat­ing Ms. Roth for her pos­si­ble tes­ti­mony in that other law­suit. The trial court rejected this the­ory, but the West Vir­ginia Supreme Court dis­agreed, and con­cluded that this was a viable the­ory for a “sub­stan­tial pub­lic pol­icy” being vio­lated. In other words, Ms. Roth’s the­ory was that she was fired because her obser­va­tion of the sex­ual encounter between Mr. DeFe­lice and the coworker could have been dam­ag­ing to Mr. DeFe­lice and his com­pany in that other law­suit, such that Mr. DeFe­lice was moti­vated to ter­mi­nate Ms. Roth.

So the WV Supreme Court thought the sec­ond and third the­o­ries above con­sti­tuted sub­stan­tial pub­lic poli­cies so the dis­miss of the Har­less claim was inappropriate.

Ms. Roth’s Claim for Retaliation

Ms. Roth also alleged retal­i­a­tion under the West Vir­ginia Human Rights Act. Retal­i­a­tion under that Act required that Ms. Roth engaged in some “pro­tected activ­ity” either in the form of (a) oppo­si­tion to dis­crim­i­na­tory behav­ior, or (b) in the form of par­tic­i­pat­ing in con­nec­tion with some pro­ceed­ing under the Act. As far as I can tell, the only pro­tected activ­ity alleged by Ms. Roth was the “oppo­si­tion”, so that was the only type of  pro­tected activ­ity dis­cussed in the WV Supreme Court’s opinion.

The “oppo­si­tion” pro­tected activ­ity includes “oppo­si­tion to a prac­tice that the plain­tiff rea­son­ably and in good faith believes vio­lated the pro­vi­sions” of the WV Human Rights Act. The opposition

must be rea­son­able in the sense that it must be based on a set of facts and a legal the­ory that are plau­si­ble. Fur­ther, the view must be hon­estly held and must be more than a cover for trou­ble­mak­ing. Thus, even if there was no action­able sex­ual harass­ment, the plain­tiff could still have engaged in a pro­tected activ­ity if she com­plained about being sex­u­ally harassed.”

The trial court dis­missed this claim, and the WV Supreme Court agreed because Ms. Roth had never “engaged in any pro­tected activ­ity”. She had sim­ply never done any­thing to express any oppo­si­tion to any of the sex­ual con­duct she claims to have expe­ri­enced or heard about.

Ms. Roth’s Claim for Inten­tional Inflic­tion of Emo­tional Distress

Ms. Roth also alleged a claim for “inten­tional inflic­tion of emo­tional dis­tress”, which is an extremely hard claim to pre­vail upon in an employ­ment set­ting. The WV Supreme Court described the claim this way:

One who by extreme or out­ra­geous con­duct inten­tion­ally or reck­lessly causes severe emo­tional dis­tress to another is sub­ject to lia­bil­ity for such emo­tional dis­tress, and if bod­ily harm to the other results from it, for bod­ily harm.

The con­duct must be

so out­ra­geous in char­ac­ter, and so extreme in degree, as to go beyond all pos­si­ble bounds of decency, and to be regarded as atro­cious and utterly intol­er­a­ble in a civ­i­lized community.

Wow, that sounds tough to sat­isfy, espe­cially in the work­place, and there are rel­a­tively few cases in which plain­tiffs have suc­ceeded on that the­ory. But keep in mind that the issue for pur­poses of the Supreme Court’s deci­sion was whether Ms. Roth’s plead­ings were suf­fi­cient to sup­port this claim. The trial court had focused on the fact that there was no alle­ga­tion that the employer had ter­mi­nated Ms. Roth in an “out­ra­geous manner”.

But the West Vir­ginia Supreme Court dis­agreed, and said that the fol­low­ing alle­ga­tions in the com­plaint were sufficient::

  • 1. Mr. DeFe­lice called Ms. Roth and asked her to come to the office, and when she com­plied with that request she was placed “by her employer into unwant­edly observ­ing Mr. DeFe­lice Ms. Kelly in a sex­u­ally com­pro­mis­ing position.”
  • 2. Because of that obser­va­tion, Mr. DeFe­lice “threat­ened” Ms. Roth “not only with ter­mi­na­tion from her employ­ment, but with pos­si­bly los­ing her res­pi­ra­tory ther­a­pist license, which was her means of mak­ing a living.”
  • 3. Ms. Roth was then ter­mi­nated “within the same week”, allegedly because Mr. DeFe­lice “did not like how she dressed or the style and color of her hair.” (The Court thought it was sig­nif­i­cant that there was a close prox­im­ity in time for these allegations.)

Again, this is not the same thing as say­ing these alle­ga­tions alone, with­out any other evi­dence, would sat­isfy the require­ments for inten­tional inflic­tion of emo­tional dis­tress at trial; but it is to say that, with these alle­ga­tions in the com­plaint, the Court could not con­clude “beyond doubt” that Mr. Roth “can prove no set of facts in sup­port of [her] claim which would enti­tle [her] to relief.” Thus, the WV Supreme Court reversed the trial court’s deci­sion to dis­miss the claim for inten­tional inflic­tion of emo­tional dis­tress.

About Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 25 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
Harless wrongful discharge, Hostile work environment, Intentional infliction of emotional distress, Medical Industry Litigation, Pleading requirements, Result for Employee, Retaliation claims, Sex Discrimination, Sexual harassment, WV Human Rights Act, WV Supreme CourtPermalink