The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ASHLEY N. BURDETTE,
Plaintiff,
v. CIVIL ACTION NO. 1:22CV154
(KLEEH)
ALDI INC.,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
Pending before the Court is Defendant ALDI, Inc.’s, Motion to
Dismiss with prejudice pursuant to Federal Rule of Civil Procedure
12(b)(6). ECF No. 12. Plaintiff filed her response in opposition
[ECF No. 15] and Defendant ALDI, Inc. replied in support [ECF No.
16]. The motion is fully briefed and ripe for review. For the
reasons discussed herein, the motion to dismiss is GRANTED and the
case is DISMISSED WITH PREJUDICE.
I. PROCEDURAL BACKGROUND
On November 18, 2022, Plaintiff Ashley N. Burdette,
(“Burdette”) by counsel, filed her Complaint in Monongalia County,
West Virginia, against Defendants ALDI, Inc., and Peter McGinley.
ECF No. 1. On December 12, 2022, the defendants removed the action
to the Northern District of West Virginia. Id.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
On January 10, 2023, Burdette filed an amended complaint,
which removed Peter McGinley as a named defendant from this civil
action. ECF No. 11. The Amended Complaint, which Defendant ALDI,
Inc. (“ALDI”) now challenges under Rule 12(b)(6), alleges six
counts: (1) disability discrimination, (2) failure to provide
accommodation, (3) workers’ compensation
discrimination/retaliatory discharge, (4) violation of the Family
Medical Leave Act, (5) wrongful termination, and (6) tort of
outrage. Id. Burdette seeks compensatory and punitive damages,
attorneys’ fees, costs, and interest, and a trial by jury. Id.
II. AMENDED COMPLAINT
Burdette’s Amended Complaint results from her alleged
termination from employment as a Lead Store Associate at ALDI.
Burdette sustained the first alleged injury while working a shift
at ALDI’s Earl L. Core Road location in Morgantown, Monongalia
County, West Virginia. ECF No. 11, Am. Compl. ¶ 6-9. On August 22,
2021, Burdette was placing milk into a cooler, when there was “an
audible ‘pop’ from her right knee.” Id. ¶ 9. As a result of the
knee injury, Burdette’s doctor instructed her not to “bend/stoop,
kneel, or pull/push . . . [and] . . . only [carry or lift] 6-10
lbs.” Id. ¶ 12. ALDI placed Burdette “on curb side and truck duty
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
for the majority of her shifts” after learning of these
restrictions. Id. ¶ 13.
Burdette sustained her second alleged injury on November 17,
2021, after she fell while unloading products into a cooler. Id.
¶ 14. After she was injured, she sat in a wheelchair at a cash
register. Id. Because the store was short staffed, “Plaintiff felt
that she needed to stay and continue working through her pain.”
Id. She sought medical attention after she finished her shift, was
treated for her hip and back pain, and was “ordered to be off
work.” Id. ¶ 15. ALDI was informed of Burdette’s order to be off
work. Id. ¶ 15.
Burdette had a follow up medical visit, where she gained
clearance to return to work on light duty and was instructed to
“use her cane and perform sedentary work.” Id. ¶ 16. ALDI was again
made aware of these instructions, but Burdette was never placed
back on the work schedule. Id. ¶ 17. Burdette alleges she filed
for FMLA because ALDI failed to accommodate her work restrictions.
Id. ¶ 18. However, Plaintiff was not granted additional leave. Id.
Burdette received a letter from ALDI “approving her requested
accommodations of using a cane and sedentary work.” Id. ¶ 19.
However, Human Resources informed Burdette the approval letter was
a mistake, and her accommodations request was denied. Id. Burdette
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
alleges she never received a letter from ALDI stating its denial
of accommodations. Id.
On or about June 14, 2022, Burdette submitted a doctor’s
letter to ALDI, which outlined her work restrictions of sedentary
work and use of a cane. Id. ¶ 20. Two days later, Burdette alleges
a district manager called her “and asked that she get updated
medical information that did not include her use of a cane.” Id.
¶ 21. When Burdette stated she was unable to fulfill that request,
she “received a letter from Defendant ALDI that there were no
accommodations available . . . [and] . . . further stated that if
she could not return to work with no accommodations that she would
be terminated, effective July 1, 2022.” Id. ¶ 22. On July 1, 2022,
ALDI terminated Burdette. Id. ¶ 23.
III. LEGAL STANDARD
Under Rule 12(b)(6), a defendant may move for dismissal upon
the ground that a complaint does not “state a claim upon which
relief can be granted.” In ruling on a 12(b)(6) motion to dismiss,
a court “must accept as true all of the factual allegations
contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d
181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). A court is “not bound to accept as true a legal
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986).
A court should dismiss a complaint if it does not contain
“enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).1
Plausibility exists “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A motion to dismiss “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 942, 952 (4th Cir. 1992).
A motion filed under Rule 12(b)(6) challenges
the legal sufficiency of a complaint, Jordan
v. Alternative Resources Corp., 458 F.3d 332,
338 (4th Cir. 2006), considered with the
assumption that the facts alleged are true,
Eastern Shore Mkts, Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). And
the legal sufficiency of a complaint is
measured by whether it meets the standards for
a pleading stated in Rule 8 (providing general
rules of pleading), Rule 9 (providing rules
for pleading special matters), Rule 10
(specifying pleading form), Rule 11 (requiring
the signing of a pleading and stating its
1 While Burdette cites to Conley v. Gibson, 355 U.S. 41, 45-46 (1957) in her
response brief [ECF No. 15 at 5], this Court – like all federal courts - utilizes
the pleading standard set forth by the Supreme Court of the United States in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
significance), and Rule 12(b)(6) (requiring
that a complaint state a claim upon which
relief can be granted).
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
IV. DISCUSSION
ALDI moves for Rule 12(b)(6) dismissal of each count of the
amended complaint, arguing Burdette failed to state a claim for
which relief can be granted. ECF No. 12. Burdette filed an untimely
response in opposition, and ALDI replied in support. ECF Nos. 15,
16. The Court will discuss each of ALDI’s Rule 12(b)(6) challenges
to the Amended Complaint in turn.
A. Count I – Disability Discrimination
To succeed on a claim for intentional discrimination, or
disparate treatment, a plaintiff must establish she is “a member
of a protected class,” “that the employer made an adverse decision
concerning the plaintiff,” and “but for the plaintiff’s protected
status, the adverse decision would not have been made.” Woods v.
Jefferds Corp., 824 S.E.2d 539, 547 (W. Va. 2019). Because Burdette
failed to establish she is a member of a protected class, i.e., a
qualified individual with a disability, her discrimination claim
fails.
The West Virginia Human Rights Act (“WVHRA”) states
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
[i]t shall be an unlawful discriminatory
practice, unless based upon a bona fide
occupational qualification, . . . for any
employer to discriminate against an individual
with respect to compensation, hire, tenure,
conditions or privileges of employment if the
individual is able and competent to perform
the services required even if such individual
is . . . disabled.
W. VA. CODE ANN. § 5-11-9(1). To establish an employment
discrimination discharge based on disability under WVHRA, the
plaintiff must show the following three elements: “(1) he or she
meets the definition of [having a ‘disability’], (2) he or she is
a ‘qualified individual with a disability],’ and (3) he or she was
discharged from his or her job.” Morgan v. Mylan Pharm. Inc., No.
1:21-CV-141, 2023 WL 2026539, *3 (N.D.W. Va. Feb. 15, 2023)
(quoting Woods v. Jefferds Corp., 824 S.E.2d 539, 545 (W. Va.
2019)). A plaintiff must prove whether she is qualified. Id.
(citation omitted).
Indeed, “[n]o employer shall, on the basis of disability,
subject any qualified individual with a disability to
discrimination in employment as it relates to . . . termination.”
W. Va. Code R. § 77-1-4.1.1, 77-1-4.1.2 (emphasis added). West
Virginia state regulations go on to define “qualified individual
with a disability”:
4.2. “Qualified Individual with a Disability”
means an individual who is able and competent,
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
with reasonable accommodation, to perform the
essential functions of the job, and if an
employer has prepared a written description
before advertising or interviewing applicants
for the job, this description may be
considered evidence of the essential functions
of the job. A job function may be considered
essential for several reasons, including but
not limited to the following:
4.2.1. The function may be essential because
the reason the employment position exists is
to perform that function;
4.2.2. The function may be essential because
of the limited number of employees available
among whom the performance of that job
function can be distributed; and/or
4.2.3. The function may be essential because
of the amount of time spent on the job
performing the function.
W. Va. Code R. § 77-1-4.2. “A ‘[qualified individual with a
disability]’ under the West Virginia Human Rights Act and the
accompanying regulations is one who is able and competent, with
reasonable accommodation, to perform the essential functions of
the job in question.” Woods, 824 S.E.2d at 546 (citations
omitted).
The Court begins with Burdette’s alleged disability. WVHRA
defines “disability” as “a mental or physical impairment which
substantially limits one or more of such person’s major life
activities,” “[a] record of such impairment,” or [b]eing regarded
as having such an impairment.” W. Va. Code § 5-11-3(m) (emphasis
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
added). “Major life activities” are “caring for one’s self,” and
other functions such as “walking, seeing, hearing, speaking,
breathing, learning, and working[.]” Id. § 5-11-3(m)(1). State
regulation defines “substantially limits” as
the inability to perform a major life activity
that the average person in the general
population can perform; [a] significant
restriction as to the condition, manner or
duration under which an individual can perform
a particular major life activity[,] . . . but
. . . does not include or mean minor temporary
ailments or injuries.
W. VA. CODE R. § 77-1-2.5.
Burdette asserts she was injured at work twice, and that she
sustained “a tear to her meniscus, which led to a baker cyst on
the back of her knee.”. ECF No. 11, Am. Compl. ¶¶ 9, 12, 14.
However, Burdette has failed to plead sufficient facts supporting
the contention that she was unable to walk, see, hear, speak,
breathe, learn, work, or care for herself, generally. W. VA. CODE
§ 5-11-3(m)(1). Instead, Burdette generally asserted “[t]hese
physical injuries to her back, hip, and knee have affected her
ability to work and have impacted life activities.” ECF No. 11,
Am. Compl. ¶ 27. Other than identifying the aforementioned physical
ailments, Burdette fails to allege how the injuries affected her
abilities to perform major life activities such that she is
disabled. There are no facts to support the allegation that
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
Burdette was regarded as disabled. Based upon the facts pleaded in
her Amended Complaint, Burdette failed to establish she suffers
from a disability under WVHRA.
Similarly, Burdette fails to meet the definition of a
qualified person with a disability. Woods, 824 S.E.2d at 545. In
addition to failing to describe her alleged disability, Burdette
has not alleged what the essential functions of the job are, much
less whether she can perform them with reasonable accommodation.
W. Va. Code R. § 77-1-4.2. Indeed, Burdette listed only her two
job titles while employed by ALDI: store associate and lead store
associate. ECF No. 11, Am. Compl. ¶ 3, 8. The Amended Complaint
lacks sufficient facts to support a claim for disability
discrimination because the plaintiff has failed to state she is a
qualified individual with a disability; therefore, the motion to
dismiss Count I is GRANTED. ECF No. 12.
B. Count II – Failure to Provide Accommodation
To plead a claim of failure to accommodate, Burdette must
show that (1) she is a qualified person with a disability; (2)
ALDI was aware of her disability; (3) she required an accommodation
to perform the essential functions of her job; (4) a reasonable
accommodation existed that met Burdette’s needs; (5) ALDI knew or
should have known Burdette’s need and of the accommodation; and
(6) ALDI failed to provide the accommodation. Skaggs v. Elk Run
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
Coal Co., Inc., 479 S.E.2d 561, 575 (W. Va. 1996). Indeed, “an
employer’s duty to accommodate an employee is triggered by an
employee’s recognized disability.” Andrew O. v. Racing Corp. of
W. Va., No. 12-1255, 2013 WL 3184641, *6 (W. Va. 2013) (citing
Skaggs, 479 S.E.2d 561). Because Burdette failed to show she is
a qualified person with a disability, her claim of failure to
accommodate fails to survive ALDI’s Rule 12(b)(6) challenge and
likewise must be dismissed. ALDI’s motion to dismiss Count II is
GRANTED. ECF No. 12.
C. Count III – Workers’ Compensation Discrimination /
Retaliatory Discharge
To survive ALDI’s Rule 12(b)(6) motion against Burdette’s
workers’ compensation discrimination / retaliatory discharge
claim, Burdette must establish “(1) an on-the-job injury was
sustained; (2) proceedings were instituted under the Workers’
Compensation Act, W. Va. Code, 23-1-1, et seq.; and (3) the filing
of a workers’ compensation claim was a significant factor in
[ALDI’s] decision to discharge or otherwise discriminate against
[Burdette].” Powell v. Wyoming Cablevision, Inc., 403 S.E.2d 717,
718 (W. Va. 1991). If the employee makes her requisite showing,
the burden shifts to the employer to “prove a legitimate,
nonpretextual, and nonretaliatory reason for the discharge.” Id.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
Of course, circumstantial evidence can support the inference
that the employee’s filing of her workers’ compensation claim was
a significant factor in her termination. Anderson v. Consol. Coal
Co., No. 1:11CV138, 2014 WL 4388288, *7 (N.D.W. Va. Sept. 5, 2014)
(citation omitted). Circumstantial evidence that supports this
inference includes the “proximity in time of the claim and the
firing.” Powell, 403 S.E.2d at 721. “[E]vidence of an actual
pattern of harassing conduct for submitting the claim is very
persuasive.” Id.
Here, Burdette failed to show sufficient evidence to support
the inference that filing her workers’ compensation claim was a
significant factor in her termination. To support this allegation,
the amended complaint only states she “was engaged in filing for
and/or receiving West Virginia Worker’s Compensation benefits” and
that her “discharge was proceeded [sic] by her filing and
collection of West Virginia Worker’s Compensation benefits,
within a time period that retaliatory discharge can be inferred.”
ECF No. 11, Am. Compl. ¶¶ 41, 44. From the face of the Amended
Complaint, it is difficult to determine whether Burdette was
receiving worker’s compensation benefits. While “Burdette
[allegedly] consistently performed her duties in a satisfactory
manner and met the reasonable expectations of the Defendant” and
was eventually promoted to “Lead Store Associate,” there are no
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
allegations supporting her worders’ compensation discrimination
claim or that any time period can be offered as an inference to a
retaliatory discharge. Id. ¶¶ 7-8. Therefore, ALDI’s motion to
dismiss is GRANTED as to Count III. ECF No. 12.
D. Count IV – Violation of Family Medical Leave Act (“FMLA”)
“FMLA entitles eligible employees to take ‘12 workweeks of
leave’ during a 12-month period for a qualifying ‘serious health
condition that makes the employee unable to perform the functions
of’ [her] job.” Adkins v. CSX Transp., Inc., 70 F.4th 785, 795
(4th Cir. 2023) (quoting 29 U.S.C. § 2612(A)(1)(D)). “It shall be
unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made
unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2).
To allege a prima facie case of FMLA interference is
straightforward. A plaintiff must show “(1) that [she] is entitled
to an FMLA benefit; (2) that [her] employer interfered with the
provision of that benefit; and (3) that the interference caused
[her] harm.” Adkins v. CSX Transp., Inc., 10 F.4th 785, 796 (4th
Cir. 2023).
To support this claim, Burdette alleges ALDI “failed to
properly offer Plaintiff leave and then retaliated against her for
needing time off work for medical issues” and also “unlawfully
interfered with, restrained, and/or denied Plaintiff Burdette the
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
exercise of her FMLA rights.” ECF No. 11, Am. Compl. ¶¶ 49-50.
When put to the test, Burdette comes short of alleging she is
entitled to an FMLA benefit, that ALDI interfered with that
benefit, or that ALDI’s interference caused her harm. Burdette’s
statement that she “clearly pled that she had a serious health
condition” referencing her alleged hip, back, and knee pain does
not save her claim. ECF No. 15 at 10.
A “serious health condition” includes “continuing treatment
by a health care provider.” 29 U.S.C. § 2611(11). “Incapacity and
treatment” as defined in the Code of Federal Regulations could
cover Burdette’s claims if she had made a showing of
a period of incapacity of more than three
consecutive, full calendar days, and any
subsequent treatment or period of incapacity
relating to the same condition, that also
involves: (1) [t]reatment two or more times,
within 30 days of the first day of incapacity
. . .; or (2) [t]reatment by a health care
provider on at least one occasion, which
results in a regimen of continuing treatment
under the supervision of the health care
provider.
29 C.F.R. § 825.115(a)(1-2). “Incapacity” means “inability to
work, attend school, or perform other regular daily activities due
to the serious health condition, treatment thereof, or recovery
therefrom.” 29 C.F.R. § 825.113(b).
Burdette has failed to show that she has a serious health
condition under FMLA. While Burdette was allegedly receiving
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
treatment from a medical professional, the amended complaint does
not support any period of incapacity. When she was first injured,
Burdette “received restrictions not to bend/stoop, kneel, or push.
She was also limited to only carrying/lifting 6-10 lbs.” ECF No.
11, Am. Compl. ¶ 12. However Burdette could still work after she
sustained her first injury. When she was injured the second time,
only then was Burdette ordered to not return to work. Id. ¶ 15.
Burdette has not alleged any facts to support she received
treatment two or more times within the first 30 days of the
incapacity. The only timeline given begins on November 17, 2021,
when Burdette visited a medical professional. Id. ¶ 15. She had a
follow up visit on December 23, 2021, creating a lapse of 36 days
between the first and second visit. Id. ¶¶ 15-16. Additionally,
Burdette does not allege any facts to support receiving a regimen
of continuing treatment under the supervision of a health care
provider. She only sought treatment after the second injury and
then had a follow up visit on December 23, 2021. Id. For these
reasons, Burdette’s claim of FLMA violation must be dismissed, and
ALDI’s motion is GRANTED. ECF No. 12.
E. Count V – Wrongful Termination
“In West Virginia, an employment relationship of indefinite
duration is ‘presumed to be terminable at any time at the will of
the employer or of the employee, with or without cause.’” Jackson
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
v. Vaughn, No. 1:15CV128, 2015 WL 6394510, *2 (N.D.W. Va. Oct. 22,
2015) (Keeley, J.) (citation omitted). However, “the absolute
right to discharge an at will employee must be tempered by the
further principle that where the employer’s motivation for the
discharge contravenes some substantial public policy principle,
then the employer may be liable to the employee for damages
occasioned by the discharged.” Harless v. First Nat. Bank in
Fairmont, 246 S.E.2d 270, 275 (W. Va. 1978). If the public policy
“is enforceable by a statutory cause of action,” then filing a
Harless claim is excessive. Jackson at *3. “When a statutory
scheme provides a private cause of action to ensure compliance
with its underlying public policy objectives, that statutory cause
of action cannot be displaced by a Harless style common law tort
action.” Id. (citation omitted). Specifically, “federal courts in
West Virginia have repeatedly held that a plaintiff cannot maintain
both a Harless-based common law action and a WVHRA claim based on
the same conduct.” Romans v. Wayne Cnty. Comm’n, No. 3:20-0797,
2021 WL 4005614, *5 (S.D.W. Va. 2021)
(citing Adkins v. Cello P’ship, Inc., No. 3:17-2772, 2017 WL
2961377, at *3 (S.D.W. Va. 2017)) (internal quotation marks
omitted); see also Seavolt v. Variform, Inc., No. 3:19-CV-136,
2020 WL 6146574, *7 (N.D.W. Va. 2020) (granting, in part, a motion
for judgment on the pleadings because “West Virginia federal
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
district courts have repeatedly found that a plaintiff
cannot maintain a Harless-type common law action and
a WVHRA claim based on the same conduct.”) (citing Adkins at *3).
Here, Burdette’s wrongful termination claim is preempted by
WVHRA. Burdette only alleges that “[ALDI] based [its] decision to
terminate [her] at least in part due to her injury, filing of
Worker’s Compensation, and her request for an accommodation.” ECF
No. 11, Am. Compl. ¶ 53. This allegation is identical to claims I
and II, which are her WVHRA claims. WVHRA establishes a public
policy and provides a private cause of action for plaintiffs when
properly pleaded. WVHRA preempts Burdette’s Harless claim;
therefore, it is dismissed and ALDI’s motion is GRANTED. ECF No.
12.
F. Count VI – Tort of Outrage / Intentional Infliction of
Emotional Distress
Burdette alleges intentional infliction of emotional distress
or the tort of outrage against ALDI. ECF No. 11, Am. Compl. ¶¶ 56-
61. “An intentional infliction of emotional distress claim
requires that a plaintiff suffer severe emotional distress in order
to be successful.” Councell v. Homer Laughlin China Co., 823
F.Supp.2d 370, 383 (N.D.W. Va. 2011) (Stamp, J.) (cleaned up).
Evidence of outrageous conduct must also be alleged. Id. at 384.
“Additionally, the actual act of terminating an employee for an
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
invidious cause cannot be grounds for ‘outrageous’ conduct
under West Virginia law.” Id. (quoting syl. pt. 2, Dzinglski v.
Weirton Steel Corp., 445 S.E.2d 219 (W. Va. 1994)).
Notwithstanding whether Burdette proved her prima facie case
of intentional infliction of emotional distress (“IIED”), which
the Court finds she did not, the tort of IIED is barred by the
West Virginia Workers’ Compensation Act (“WCA”). WCA provides
immunity to employers “from all tort negligence actions by
employees for injuries, including emotional distress, that occur
‘in the course of and resulting from employment.’” Councell v.
Homer Laughlin China Co., 823 F.Supp.2d 370, 384 (N.D.W. Va. 2011)
(quoting Bias v. Eastern Associated Coal Corp., 640 S.E.2d 540 (W.
Va. 2006)). “Emotional distress [that] results from termination
from employment does . . . result [from] employment,” and,
therefore, it would fall under the immunity provision. Id. There
are exceptions to employer immunity, but the exceptions are narrow.
Id. One exception is “‘when an employer has deliberately intended
to cause injury or death to an employee.’” Id. (internal quotations
omitted). For a claim of intentional infliction of emotional
distress to meet this exception, a plaintiff must make “a showing
of an actual, specific intent and may not be satisfied by
allegation or proof of: (A) conduct which produces a result that
was not specifically intended; (B) conduct which constitutes
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
negligence, no matter how gross or aggravated; or (C) willful,
wanton or reckless misconduct.” Weirton Health Partners, LLC v.
Yates, No. 5:09CV40, 2010 WL 785647, *6 (N.D.W. Va. Mar. 4, 2010)
(quoting W. Va. Code § 23-4-2(d)(2)(A)). Broadly pleading
intentional infliction of emotional distress is not enough to show
an actual, specific intent. Councell, 823 F.Supp.2d at 384.
Here, Burdette has failed to meet her burden in pleading a
claim for IIED and showing an exception to WCA applies. It remains
undisputed that Burdette has not pleaded a deliberate intent claim
against her employer, ALDI.
W. Va. Code [] 23-2-6a [1949] extends the
employer’s immunity from liability set forth
in W. Va. Code [] 23-2-6 [1991] to the
employer’s officer, manager, agent,
representative or employee when he is acting
in furtherance of the employer’s business and
does not inflict an injury with deliberate
intention. Syllabus point 4, Henderson v.
Meredith Lumber Co., Inc., 190 W.Va. 292, 438
S.E.2d 324 (1993).
Syl. Pt. 1, Wisman v. William J. Rhodes and Shamblin Stone, Inc.,
447 S.E.2d 5 (W. Va. 1994). Burdette has not pleaded a deliberate
intent claim against her employer, ALDI, and has therefore failed
to allege the specific intent required under W. Va. Code § 23-4-
2(d). Indeed, Burdette’s claim for intentional infliction of
emotional distress or the tort of outrage against ALDI “fails to
allege that such action was undertaken with specific intent of
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
causing [her] injury.” Brevard v. Racing Corp. of W. Virginia, No.
2:19-cv-578, 2020 WL 1860713 at *7 (S.D.W. Va. Apr. 13, 2020).
Burdette only contends “the actions against Plaintiff Burdette by
Defendant . . . was done in an outrageous manner and was so extreme
as to be intolerable in a civilized society” and “the wrongful
employment acts and/or omissions taken against Plaintiff Burdette
by Defendant, as set forth herein were [sic] done in an outrageous
manner and were so extreme as to be intolerable in a civilized
society.” ECF No. 11, Am. Compl. ¶¶ 59-60. Such broad allegations
do not overcome ALDI’s Rule 12(b)(6) motion, nor do they rise to
the level required under the immunity exception. Therefore,
Burdette’s IIED claim against ALDI fails, and the motion to dismiss
is GRANTED on this ground. ECF No. 12.
V. CONCLUSION
For the foregoing reasons, ALDI’s Motion to Dismiss is
GRANTED. ECF No. 12. ALDI’s request to strike Burdette’s untimely
response is DENIED. ECF No. 16. All claims are DISMISSED WITH
PREJUDICE. The Clerk is DIRECTED to enter judgment in favor of
ALDI, consistent with this Memorandum Opinion and Order, and to
STRIKE this case from the Court’s active docket.
It is so ORDERED.
BURDETTE V. ALDI INC. 1:22CV154
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS
The Clerk shall transmit copies of this Order to counsel of
record by electronic means.
DATED: September 11, 2023
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
21