Brevard v. Racing Corporation of West Virginia

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

ZACHARY BREVARD,

Plaintiff,

v. CIVIL ACTION NO. 2:19-cv-00578

RACING CORPORATION OF WEST VIRGINIA,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is a Partial Motion to Dismiss by Defendant Racing Corporation of West

Virginia d/b/a Mardi Gras Casino Resort (“Mardi Gras”). (ECF No. 30.) For the reasons

discussed more fully herein, the motion is GRANTED.

I. BACKGROUND

The following facts are drawn from the operative complaint and the documents attached

thereto. See Tinsley v. OneWest Bank, FSB, 4 F. Supp. 3d 805, 819 (S.D. W. Va. 2014) (providing

that “a court may consider documents attached to the complaint pursuant to Rule 10(c)” without

converting a motion to dismiss into one for summary judgment) (citing Philips v. Pitt Cnty. Mem’l

Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). Additionally, the Court will consider the pertinent

documents attached to Mardi Gras’ motion and Plaintiff’s response that are authentic and integral

to the complaint. See id. (citing Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222–23 (4th

Cir. 2009)).

Plaintiff Zachary Brevard (“Plaintiff”) is an African American male, born in 1964, and a

former employee of Mardi Gras. (ECF No. 9 at ¶ 7 (Am. Compl.).) Plaintiff was hired in

September 2008 and was, subsequently, promoted to the Table Games Pit Boss in July 2010. (Id.

at ¶¶ 16, 18.) Plaintiff alleges that, during the course of his employment with Mardi Gras, he

suffered from racial harassment and discrimination by Mardi Gras’ customers. (Id. at ¶¶ 21–22,

28, 33.) Specifically, he contends that customers “repetitively called” him racial slurs and

demonstrated “physically threatening conduct” or “threatening behaviors” towards him. (Id. at

¶¶ 28, 33–34.) Plaintiff further alleges that Mardi Gras was aware of this harassment but did

nothing to stop it. (Id. at ¶¶ 22, 27–28, 33.) He also claims that he was the “object” of “racially

charged and biased, derogatory working conditions, and negative stereotype-based conduct” while

he was employed with Mardi Gras. (Id. at ¶ 31.) In addition, he generally claims that he “was

not afforded the same benefits” as other employees, “including access to a break room for

managers.” (Id. at ¶ 29.)

On May 26, 2017, Plaintiff was involved in a physical altercation with a customer after the

customer used a racial slur and became aggressive towards Plaintiff. (Id. at ¶¶ 34–37). Due to

the customer’s “aggressive conduct,” Plaintiff “attempted to diffuse the situation” and struck the

customer in self-defense. (Id.) Following the incident, Plaintiff’s employment was suspended

on May 26, 2017, and terminated on June 2, 2017, for violating Mardi Gras’ “workplace violence

policy.” (Id. at ¶¶ 16, 23.) Plaintiff claims that the termination of his employment based on the

Mardi Gras’ workplace policy was pretext for discrimination on the basis of his race, color, and

age, and retaliation for his reporting of prior harassment by customers and complaining about the

lack of proper employee evaluations. (Id. at ¶¶ 26, 28, 51, 57.)

2

Plaintiff filed a claim with the West Virginia Human Rights Commission (“WVHRC”)

on July 3, 2017, asserting that Mardi Gras discriminated against him because of his race. (Id. at

¶ 42; ECF No. 9-8 (WVHRC Complaint).) On August 31, 2018, after concluding its

investigation, the WVHRC issued a “No Probable Cause Determination” along with a “Final

Determination and Dismissal Order” and a “Notice of Right to Sue.” (ECF Nos. 30-1, 30-2, 30-

3.) On May 8, 2019, the United States Equal Employment Opportunity Commission (“EEOC”)

adopted the findings of the WVHRC and notified Plaintiff of his right to sue within 90-days of

receiving the notice. (ECF No. 9 at ¶ 43; ECF No. 9-1 (EEOC Dismissal and Notice).)

Based on these facts, Plaintiff filed his initial complaint, pro se, on August 6, 2019, alleging

that Mardi Gras discriminated against him because of his race. (ECF No. 2.) After retaining

counsel, Plaintiff filed an amended complaint, asserting seven additional claims. (ECF No. 9.)

The claims asserted in Plaintiff’s Amended Complaint include the following: violations of Title

VII of the Civil Rights Act of 1964, as amended (“Title VII”), for discrimination on the basis of

Plaintiff’s race and color (Counts I and II); violations of the Age Discrimination in Employment

Act of 1967 (“ADEA”) (Count III); violations of the West Virginia Human Rights Act

(“WVHRA”) (Count IV); retaliation under Title VII, the ADEA, and the WVHRA (Count V);

common law claims for Intentional/Reckless Infliction of Emotional Distress (Count VI); Breach

of Employment Agreement, Terms and Conditions (Count VII); and a violation under the West

Virginia Wage Payment and Collection Act (“WVWPCA”) based on the alleged breach of an

employment agreement (Count VIII). On November 25, 2019, Mardi Gras filed the present

partial motion to dismiss. (ECF No. 30.) Plaintiff timely responded to the motion on December

3

9, 2019, (ECF No. 34), and Mardi Gras filed a timely reply on December 16, 2019, (ECF No. 35).

As such, the motion is ripe for adjudication.

II. LEGAL STANDARD

In general, a pleading must include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see McCleary-Evans v. Md. Dep’t of

Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement

exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). To withstand a motion to

dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough

facts “to state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat’l Sec.

Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“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. Stated another way, the factual allegations in the complaint “must be sufficient ‘to

raise a right to relief above the speculative level.’” Woods v. City of Greensboro, 855 F.3d 639,

647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). Well-pleaded factual allegations are

required; labels, conclusions, and a “formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555; see also Ms. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir.

2016) (“Bare legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to

state a claim.” (quoting Iqbal, 556 U.S. at 679)).

In evaluating the sufficiency of a complaint, the court first “identif[ies] pleadings that,

because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal,

4

556 U.S. at 679. The court then “assume[s] the[] veracity” of the complaint’s “well-pleaded

factual allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.”

Id. Review of the complaint is “a context-specific task that requires [the court] to draw on its

judicial experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is

not required to plead factual allegations in great detail, but the allegations must contain sufficient

factual heft to allow a court, drawing on judicial experience and common sense, to infer more than

the mere possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d

447, 452 (4th Cir. 2017) (internal quotation marks omitted).

III. DISCUSSION

Mardi Gras moves to dismiss part of Plaintiff’s claim under Counts I and II and all of

Plaintiff’s remaining claims under Counts III through VIII. The parties’ arguments with respect

to each count are addressed, in turn, below.

A. Failure to Exhaust Administrative Remedies – Counts I, II, III, and V

Plaintiff asserts claims for race and color discrimination under Title VII in Counts I and II,

age discrimination under the ADEA in Count III, and retaliation under Title VII and the ADEA in

Count V of the Amended Complaint. Before filing suit under Title VII and the ADEA, a party

alleging discrimination must exhaust their administrative remedies. See Love v. Pullman Co., 404

U.S. 522 (1972); Melendez v. Sebelius, 611 F. App’x 762, 763 (4th Cir. 2015) (requiring

exhaustion under Title VII); Nesbit-Harris v. Jackson, No. 3:07-696, 2008 WL 2329173, at *3

(E.D. Va. June 3, 2008) (holding that the ADEA requires exhaustion of administrative remedies).

The purpose of the exhaustion requirement is to ensure “that the employer is put on notice of the

alleged violations so that the matter can be resolved out of court if possible.” Miles v. Dell, Inc.,

5

429 F.3d 480, 491 (4th Cir. 2005) (citing EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1186 (4th Cir.

1981)). To meet this procedural requirement, the aggrieved individual must file a charge with the

EEOC within 180 days of the alleged unlawful practice. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C.

§ 626(d). Alternatively, an individual may fulfill this obligation by filing a charge with a state or

local agency that has a “worksharing” agreement with the EEOC. See EEOC v. Commercial

Office Prods. Co., 486 U.S. 107, 112 (1988) (citing 42 U.S.C. § 2000e–8(b), which authorizes the

EEOC to “enter into written agreements” with state and local agencies to promote “effective

enforcement” of employment discrimination laws). In such case, the charge must be filed within

300 days. See Haught v. Louis Berkman, LLC, 377 F. Supp. 2d 543, 552 (N.D. W. Va. 2005)

(citing Mohasco Corp. v. Silver, 447 U.S. 807 (1980)).

In West Virginia, the WVHRC is a Fair Employment Practices Agency (“FEPA”) under

29 C.F.R. § 1601.74 and has been operating under a worksharing agreement with the EEOC since

1983. See Petrelle v. Weirton Steel Corp., 953 F.2d 148, 151 (4th Cir. 1991). An individual

alleging employment discrimination in this state must, therefore, file a charge with the EEOC

within 300 days of the alleged unlawful practice. See Haught, 377 F. Supp. 2d at 552; see also

Mullins v. Charleston Stamping & Mfg., Inc., No. 2:10-cv-0792, 2011 WL 2471014, at *2 n.1

(S.D. W. Va. June 20, 2011) (citing Garcia v. Village of Mount Prospect, 360 F.3d 630, 642–43

n.13 (7th Cir. 2004) for the principle that “in a dual-filing system the filing of a charge with the

state agency is also considered as a filing in the EEOC.”). Failure to timely file a charge of

discrimination with the EEOC is an appropriate basis for dismissal. See Sloop v. Mem’l Mission

Hosp., Inc., 198 F.3d 147, 149 (4th Cir. 1999). Further, “[o]nly those discrimination claims stated

in the initial charge, those reasonably related to the original complaint, and those developed by

6

reasonable investigation of the original complaint may be maintained in a subsequent . . . lawsuit.”

Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).

Here, there is no dispute that Plaintiff timely filed a charge with the WVHRC in July of

2017, which was dually filed with the EEOC. (ECF No. 9-8 (WVHRC Charge); ECF No. 9-9

(EEOC Dual Filing Notice).) Instead, Mardi Gras argues that Plaintiff he cannot pursue his

claims for color discrimination, age discrimination, and retaliation in federal court because his

administrative charge was based solely on a race discrimination claim. (ECF No. 31 at 5–13.)

Plaintiff defends that Mardi Gras and the WVHRC and EEOC were on sufficient notice of the

breadth of his claims. In so arguing, he points to his “Employment and Pre-Complaint

Background Form” filed with the WVHRC, which he claims details the alleged discrimination and

retaliation he endured throughout his employment. (ECF No. 34 at 7–8.) He also claims that his

response to Mardi Gras’ position statement with the WVHRC provided further details about his

claims for discrimination based on color and age and retaliation. (Id.)

However, when determining whether a plaintiff has “properly alleged [a claim] before the

EEOC” in a manner satisfying the exhaustion requirement, this Court “may look only to the charge

filed with that agency.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th Cir.

2013) (emphasis added); see also Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005)

(stating that a “charge frames the scope of future litigation.”). Although “EEOC charges often

are not completed by lawyers and as such must be construed with utmost liberality,” the Court is

“not at liberty to read into administrative charges allegations they do not contain.” Balas, 711

F.3d at 408 (citations and quotation marks omitted). Accordingly, the Court will not consider

these extraneous documents.

7

In his charge, Plaintiff marked only race as the alleged unlawful practice. (ECF No. 9-8.)

He did not check any of the boxes for color, age, or reprisal. Further, the narrative portion

explaining his charge only references race discrimination. Nowhere in the narrative section did

Plaintiff allege that he was subjected to discrimination because of his color, age, or any other

reason. Likewise, he did not mention reprisal or retaliation anywhere in the text of his charge.

Nonetheless, in Plaintiff’s view, his claims for color and age discrimination as well as retaliation

are “reasonably related” to his race discrimination charge and, thus, should be deemed exhausted.

The Fourth Circuit’s decision in Chacko v. Patuxent Inst., 429 F.3d 505 (4th Cir. 2005)

provides guidance on determining whether claims are reasonably related. In Chacko, the

plaintiff’s administrative charges alleged that his supervisors discriminated against him on the

basis of sex and national origin, that his supervisors had subjected him to hostile treatment, and

that his supervisors demoted him in retaliation for filing other charges. Id. at 507. The thrust of

the plaintiff’s judicial complaint, however, alleged that his “coworkers continually made

derogatory national-origin remarks to him over the course of his twenty-year career, and that

supervisors did not discipline these coworkers, laughed at their comments, and may have joined

them.” Id. at 510–11. The Fourth Circuit held that the plaintiff had failed to exhaust his

administrative remedies because “his administrative charges reference[d] different time frames,

actors, and conduct than the central factual allegations in his formal suit.” Id. at 506.

In this case, while the administrative charge and the Amended Complaint involve the same

time frame, they implicate different actors and involve distinct conduct. First, Plaintiff’s charge

alleges harassment by customers but fails to mention that supervisors and management

discriminated against him as he alleges in the Amended Complaint. Also, none of the alleged acts

8

of harassment or discrimination referenced in the charge involved Plaintiff’s color or age. Rather,

the confrontations described in Plaintiff’s administrative charge solely involved racial slurs and

insults. Similarly, while the administrative charge notes that Plaintiff informed Mardi Gras about

the racist conduct he was subjected to, there are no assertions that Plaintiff complained about Mardi

Gras’ employee evaluation procedures or that his complaints led to his termination.

Furthermore, neither color and age discrimination nor retaliation would have developed

from a reasonable investigation of Plaintiff’s race discrimination claim. The law is clear that color

discrimination and race discrimination are distinct claims based on separate protected classes. In

Bryant v. Bell Atl. Md., Inc., 288 F.3d 124 (4th Cir. 2002), the Fourth Circuit explained that “[c]olor

discrimination arises when the particular hue of the plaintiff’s skin is the cause of the

discrimination . . . .” Id. at 132 n.5. In that case, the pro se plaintiff alleged race discrimination

in his administrative charge but, subsequently, asserted discrimination based on his color, race,

and sex, and retaliation in a civil suit. The court dismissed these claims, which exceeded the

scope of the EEOC charge, reasoning that an administrative investigation of retaliation and color

and sex discrimination “could not reasonably be expected to occur in light of [the plaintiff’s] sole

charge of race discrimination . . . .” Id. at 133.

Similarly, “Title VII and ADEA claims arise from completely distinct statutory schemes”

and, thus, require different allegation. Evans, 80 F.3d at 963 (4th Cir. 1996) (dismissing age

discrimination claim where EEOC charge only alleged sex discrimination); see also Miles, 429

F.3d at 491–92 (affirming the district court’s dismissal of plaintiff’s retaliation claim because it

was not included in her EEOC charge); Sloop, 198 F.3d at 149 (finding no administrative

exhaustion of retaliation claim where plaintiff checked only the box for age). In light of this

9

Fourth Circuit precedent, this Court finds that Plaintiff’s claims for color discrimination, age

discrimination, and retaliation do not flow from his race discrimination claim. Accordingly,

Plaintiff has failed to exhaust his administrative remedies with regard to retaliation and

discrimination based on color and age. As a result, these claims are dismissed.

B. Statute of Limitations – Counts IV and V

Next, Mardi Gras argues that Plaintiff’s claims under the WVHRA in Counts IV and V for

wrongful termination based on his race, color and age as well as retaliation are barred by the

applicable two-year statute of limitations. (ECF No. 31 at 13.) The applicable limitations

period for bringing a claim under the WVHRA is two years. See Metz v. E. Associated Coal,

LLC, 799 S.E.2d 707, 710 (W. Va. 2017) (applying a two-year limitations period found in W. Va.

Code § 55-2-12 to WVHRA based claims); Price v. Region 4 Planning & Dev. Council, No. 2:16-

cv-1529, 2019 WL 1869961, at *14 (S.D. W. Va. Apr. 25, 2019) (same). Here, Plaintiff’s

employment with Mardi Gras was terminated on June 2, 2017, (ECF No. 9-4 (Termination Letter)),

requiring any lawsuit asserting claims under the WVHRA to be filed by June 2, 2019. Plaintiff

filed the instant action on August 6, 2019, more than two months after the limitations period

elapsed for any claim under the WVHRA.

Plaintiff concedes that these claims fall outside the statute of limitations. However, he

contends that his original attorney either failed to timely file his claims or advise Plaintiff of his

intent not to pursue them to allow Plaintiff to seek other counsel or proceed pro se within the

applicable time period. He, therefore, asks this Court to equitably toll the statute of limitations.

(ECF No. 34 at 13.) Mardi Gras counters that the doctrine of equitable tolling cannot save

10

Plaintiff’s time barred claims because “Mardi Gras did not engage in any type of misconduct to

prevent him from timely filing this action.” (ECF No. 35 at 9–10.)

Mardi Gras relies on English v. Pabst Brewing Co., 828 F.2d 1047 (4th Cir. 1987) for the

proposition that the doctrine of equitable tolling only “applies where the defendant has wrongfully

deceived or misled the plaintiff in order to conceal the existence of a cause of action.” Id. at 1049

(citations omitted). However, the Fourth Circuit expounded on this notion in Harris v.

Hutchinson, 209 F.3d 325 (4th Cir. 2000). There, the court held that equitable tolling applies not

only when a plaintiff is “prevented from asserting their claims by some kind of wrongful conduct

on the part of the defendant” but also when “extraordinary circumstances beyond [the] plaintiff[’s]

control made it impossible to file the claims on time.” Id. at 330; Seacrist v. Metro. Sec. Servs.,

No. 2:14-cv-24372, 2015 WL 1527763 (S.D. W. Va. Apr. 3, 2015) (noting that tolling applies

under these two circumstances). For instance, federal courts have allowed equitable tolling under

the “extraordinary circumstances” exception where a plaintiff has filed a defective but otherwise

timely pleading. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 n.3 (1990) (citing cases).

Nonetheless, equitable tolling “is a rare remedy available only where the plaintiff has

“exercise[d] due diligence in preserving [his] legal rights.” Cruz v. Maypa, 773 F.3d 138, 145–

46 (4th Cir. 2014) (citation and quotation omitted). Courts generally hold that an attorney’s

mistake in calculating the statute of limitations is not a valid basis for equitable tolling. See id. at

330–31 (citing cases and stating, “we cannot say that the lawyer’s mistake in interpreting a

statutory provision constitutes that ‘extraordinary circumstance’ external to [plaintiff] that would

justify equitable tolling”); Gayle v. United Parcel Serv., Inc., 401 F.3d 222, 227 (4th Cir. 2005);

Irwin, 498 U.S. at 96. “Former counsel’s errors are attributable to [Plaintiff] not because he

11

participated in, ratified, or condoned their decisions, but because they were his agents, and their

actions were attributable to him under standard principles of agency.” Rouse v. Lee, 339 F.3d

238, 249 (4th Cir. 2003). Therefore, to the extent Plaintiff asserts that his former counsel failed

to timely file his claims, his counsel’s mistake does not warrant equitable tolling. However,

extraordinary circumstances may be demonstrated by a showing of “an extraordinary failure by

the attorney to provide reasonably competent legal work, to communicate with his client, to

implement his client’s reasonable requests, to keep his client informed of key developments of

their cases, or” by abandoning his client. United States v. Oriakhi, 394 F. App’x 976, 977 (4th

Cir. 2010) (citing Holland v. Florida, 130 S.Ct. 2549, 2562–65 (2010)).

In support of his equitable tolling claim based upon his former counsel’s misconduct,

Plaintiff submitted a letter dated November 25, 2019, that his former counsel, Michael Clifford,

sent to his current counsel. (ECF No. 34-3.) In that letter, Mr. Clifford states that he has

represented Plaintiff pro bono in a couple of matters, including a separate civil suit that was set for

trial that following January. He goes on to state that he is “not wasting another minute of [his]

time or any further expense on [Plaintiff’s] case.” Mr. Clifford notes that Plaintiff extracted

copies of his records from his office and, further, extended Plaintiff’s new counsel the opportunity

to come to his office and copy Plaintiff’s entire file. However, this letter does not reference the

instant matter involving Mardi Gras. Nor does it suggest that Mr. Clifford failed to inform

Plaintiff of the deadline for filing his claims or that he failed to comply with Plaintiff’s request to

file such claims. The letter simply establishes that Plaintiff and Mr. Clifford terminated their

attorney-client relationship. There is no indication that Plaintiff was prevented from filing his

action at an earlier date nor does Plaintiff identify any conduct from Mr. Clifford that prevented

12

him from doing so. See Harris, 209 F.3d at 330 (noting that equitable tolling is “reserved for

those rare instances where—due to circumstances external to the party’s own conduct—it would

be unconscionable to enforce the limitation period against the party and gross injustice would

result.”). Accordingly, Plaintiff is not entitled to equitable tolling, and his claims under the

WVHRA are time barred by the statute of limitations.

C. Continuing Tort and Immunity under the Workers’ Compensation Act – Count VI

Similarly, Mardi Gras argues that Plaintiff’s common law tort claim for intentional or

negligent infliction of emotional distress in Count VI is barred by the two-year statute of

limitations. (ECF No. 31 at 14.) Plaintiff’s claim, which he suggests in his response is only one

for intentional infliction of emotional distress (“IIED”), is governed by a two-year statute of

limitations under West Virginia Code § 55-2-12(b). See Syl. Pt. 5, Courtney v. Courtney, 437

S.E.2d 436, 437 (W. Va. 1993) (holding that “[a] claim for severe emotional distress arising out

of a defendant’s tortious conduct is a personal injury claim and is governed by a two-year statute

of limitations under W. Va. Code, 552-12(b).”); Evans v. United Bank, Inc., 775 S.E.2d 500, 508

n.8 (W. Va. 2015) (holding, under W. Va. Code § 55-2-12, that a two-year statute of limitations

applies to claims for IIED and NIED). As stated above, Plaintiff was terminated on June 2, 2017,

and he asserted an IIED claim in his Amended Complaint on August 26, 2019, more than two

years after the limitations period commenced. Therefore, unless some other rule or theory

applies, Plaintiff’s IIED claim cannot be based on anything that occurred before August 26, 2017.

Plaintiff attempts to avoid the statute of limitations under the equitable tolling doctrine, but

for the reasons explained above equitable tolling does not apply here. See supra at 11–13. He

also attempts to use the continuing tort doctrine to reach his claim back before August 26, 2017.

13

In particular, he argues that Mardi Gras’ wrongful conduct continues to this day because it has not

corrected an inadequate investigation of the events that led to Plaintiff’s termination. (ECF No.

34 at 15.) In West Virginia, “[w]here a tort involves a continuing or repeated injury, the cause of

action accrues at and the statute of limitations begins to run from the date of the last injury or when

the tortious overt acts or omissions cease.” Roberts v. W. Va. Am. Water Co., 655 S.E.2d 119,

124 (W. Va. 2007). The West Virginia Supreme Court of Appeals elaborated:

[T]he distinguishing aspect of a continuing tort with respect to negligence actions

is continuing tortious conduct, that is a continuing violation of a duty owed the

person alleging injury, rather than continuing damages emanating from a discrete

tortious act. It is the continuing misconduct which serves to toll the statute of

limitations under the continuing tort doctrine.

Id.

The primary allegations in Plaintiff’s Amended Complaint concern discriminatory conduct

and his discharge on June 2, 2017. While Plaintiff attempts to characterize Mardi Gras’ actions

as a continuing tort, his position confuses an act causing injury with an injury that continues

because of a failure to remedy it. The Court of Appeals for the District of Columbia considered

this same issue in Fitzgerald v. Seamans, 553 F.2d 220 (D.C. Cir. 1997), where a plaintiff’s

employment was terminated, and he then applied for reinstatement and sued for damages. The

Fitzgerald court rejected the application of the continuing tort doctrine, stating that “the mere

failure to right a wrong and make plaintiff whole cannot be a continuing wrong which tolls the

statute of limitations, for that is the purpose of any lawsuit and the exception would obliterate the

rule.” Id. at 230. Despite the allegation that Mardi Gras has not corrected its pre-discharge

investigation, Mardi Gras has no legal obligation to take affirmative action to rectify any alleged

misconduct after Plaintiff’s termination. Absent any allegation of a repeated, wrongful act that

14

initially occurred within the statutory period to support an emotional distress claim, the continuing

tort exception is inapplicable, and the Court so holds here.

Apart from the statute of limitations, Mardi Gras argues that Plaintiff would otherwise be

precluded from asserting an IIED claim based on the immunity and exclusivity provisions of the

West Virginia Workers’ Compensation Act (“WCA”). See W. Va. Code § 23-2-6. (ECF No. 31

at 15–16.) The WCA is “the exclusive remedy as against an employer for workplace injuries or

death and provides general immunity from suit for such injuries or death to qualifying employers.”

Young v. Apogee Coal Co., 753 S.E.2d 52, 55 (W. Va. 2013); W. Va. Code § 23-2-6 (providing

that an employer in compliance with the Act “is not liable to respond in damages at common law

or by statute for the injury or death of any employee, however occurring”); Bias v. E. Associated

Coal Corp., 640 S.E.2d 540, 544 (W. Va. 2006) (stating that the WCA creates “sweeping

immunity” for employers for all tort actions by employees for injuries occurring “in the course of

and resulting from employment.”); Wisman v. Rhodes, 447 S.E.2d 5, 7 (W. Va. 1994) (explaining

that the purpose of the WCA “is to replace the common-law tort claims and defenses between or

among employers and employees with the no-fault exclusive remedy of workers’ compensation.”).

Consequently, this Court and the West Virginia Supreme Court of Appeals has established that the

immunity provided by the WCA encompasses an action for negligent or intentional infliction of

emotional distress. See Fugate v. Frontier W. Va., Inc., No. 2:17-cv-00559, 2017 WL 3065216,

at *5 (S.D. W. Va. July 19, 2017); Bias, 640 S.E.2d at 544 (holding that WCA immunity precludes

a workplace NIED claim); Miller v. City Hosp., Inc., 475 S.E.2d 495, 501–02 (W. Va. 1996)

(finding plaintiff’s tort of outrage is barred by the WCA’s immunity provision).

15

An employer’s immunity under the WCA is not absolute, however. Immunity may be lost

if an employer (1) defaults in payments required by the WCA or otherwise falls out of compliance

with the WCA, (2) acts with “deliberate intent” to injure the employee, or (3) “in such other

circumstances where the Legislature has by statute expressly provided an employee a private

remedy outside the workers’ compensation system.” Syl. Pt. 2, Bias, 640 S.E.2d at 540 (citing

W. Va. Code § 23-4-2(d)(2)). Plaintiff does not contest that his claim is barred by the immunity

and exclusivity provisions of the WCA. Rather, he argues that his IIED claim constitutes a

“deliberate intention” claim within the meaning of W. Va. Code § 23-4-2(d)(2)(A). (ECF No. 34

at 16.) With respect to the pleadings surrounding Count VI, the Amended Complaint alleges:

87. The plan and/or decision to terminate Plaintiff’s employment and to include

pretextual justifications for the termination “for cause” as well as other acts and

omissions set out herein constituted intentional/reckless infliction of emotional

distress.

90. These and other intentional and reckless actions by Defendant in regard to

Plaintiff’s employment and the termination thereof were outrageous and exceed the

bounds of decency, and were committed intentionally and/or recklessly and with

the knowledge that such conduct was increasingly wearing upon Plaintiff, was

wrongful, and would result in the infliction of emotional distress upon Plaintiff.

91. Plaintiff suffered and continues to suffer emotional distress as a direct and

proximate result of Defendant’s conduct.

(ECF No. 9 at ¶¶ 87, 90, 91.) Although Plaintiff is not required to use any magic words to

adequately plead a deliberate intent claim, the Amended Complaint fails to plead several core

elements, including that Mardi Gras “acted with a consciously, subjectively and deliberately

formed intention” to cause Plaintiff’s injury. W. Va. Code § 23-4-2(d)(2)(A). At best, Plaintiff’s

claim alleges that Mardi Gras purposefully terminated Plaintiff’s employment. Critically, it fails

to allege that such action was undertaken with the specific intent of causing him injury.

16

Allegations of “(i) [c]onduct which produces a result that was not specifically intended; (ii)

conduct which constitutes negligence, no matter how gross or aggravated; or (iii) willful, wanton

or reckless misconduct” are insufficient.” W. Va. Code § 23-4-2(d)(2)(A). The Amended

Complaint therefore falls short of the specific intent necessary to satisfy the deliberate intent

exception to workers’ compensation immunity. See Tolliver v. Kroger Co., 498 S.E.2d 702, 716

n.26 (W. Va. 1997) (failure to plead deliberate intention exception to WCA immunity resulted in

dismissal of plaintiff’s common law tort claims for assault, battery and IIED).

D. Breach of Employment Agreement – Count VII

Turning to Count VII, Plaintiff alleges that he was “promoted under an employment

agreement dated on or about July 15, 2010.” (ECF No. 9 at ¶ 17.) Plaintiff then asserts that by

“wrongfully” terminating his employment, Mardi Gras breached his employment agreement,

including the terms and conditions under which he could be discharged. (Id. at ¶ 94.) In

addition, Plaintiff claims that Mardi Gras breached the duty of good faith and fair dealing as

implied in the employment agreement or related terms and conditions. (Id. at ¶ 95.) Mardi Gras

contends that there is no employment contract between Mardi Gras and Plaintiff to support

Plaintiff’s claims for breach of an employment agreement and the covenant of good faith and fair

dealing. Mardi Gras argues that Plaintiff’s claim is based on an offer letter, which contains at-

will disclaimers and does not specify any duration of employment. (ECF No. 31 at 16–19.)

Plaintiff appears to have abandoned his claim that the offer letter constituted an

employment agreement as he has failed to address Mardi Gras’ arguments in his response brief.

See Taylor v. Clay Cty. Sheriff's Dep’t, No. 2:19-cv-00387, 2020 WL 890247, at *2 (S.D. W. Va.

Feb. 24, 2020) (finding the plaintiff abandoned their claims because they failed to address the

17

defendants’ arguments); Blankenship v. Necco, LLC, No. 2:16-cv-12082, 2018 WL 3581092, at

*9 (S.D. W. Va. July 25, 2018) (“The failure to respond to arguments raised in a motion ... can

indicate that the non-moving party concedes the point or abandons the claim.”). Nonetheless, had

Plaintiff pursued this claim, it would be to no benefit.

To state a breach of contract claim under West Virginia law, a plaintiff must allege facts

sufficient to support “the existence of a valid, enforceable contract; that the plaintiff has performed

under the contract; that the defendant has breached or violated its duties or obligations under the

contract; and that the plaintiff has been injured as a result.” Kennedy v. BAC Home Loans

Servicing, LP, No. 3:13-cv-11401, 2013 WL 5274365, at *6 (S.D. W. Va. Sept. 18, 2013) (citing

Exec. Risk Indem., Inc. v. Charleston Area Med. Ctr., Inc., 681 F. Supp. 2d 694, 714 (S.D. W. Va.

2009)). Here, the employment agreement referenced in Plaintiff’s Amended Complaint is an

offer letter, dated, July 15, 2010, wherein Mardi Gras offered Plaintiff the position of Table Games

Pit Boss and gave him seven days to accept that offer. (ECF No. 9-3 (Offer Letter).) The offer

letter does not specify any duration of employment and contains the following at-will disclaimer:

Your employment with our Company is “at will,” which means that either you or

the Company may terminate the relationship at any time. As such, your

employment with the Company is at-will and neither this nor any other oral or

written representations may be considered a contract for a specific period of time.

(Id.) This express language in the offer letter directly contradicts Plaintiff’s characterization of

the offer letter as creating a binding and enforceable employment agreement. Thus, it cannot form

the basis of Plaintiff’s breach of contract claim. See Chand v. Merck & Co., Inc., No. 19-0286,

2019 WL 3387056, at *9 (E.D. Pa. July 26, 2019) (dismissing claims for breach of contract and

good faith and fair dealing based on an offer letter, which disclaimed any contractual relationship,

and reasoning that “such an offer letter is ‘part of the hiring process, and [i]s not an enforceable

18

contract.’”) (citation omitted); Godfrey v. Mastec, Inc., No. 1:15-cv-409, 2015 WL 7570209, at

*4–5 (S.D. Ohio Nov. 25, 2015) (dismissing breach of contract claim based on offer letter which

included an at-will disclaimer and did not provide any specific duration for plaintiff’s

employment).

Apparently retreating from the argument that the offer letter constituted an employment

contract, Plaintiff advances a new argument that the “zero tolerance” policy for discrimination or

harassment in Mardi Gras’ Employee Handbook created a unilateral contract that was breached.

(ECF No. 34 at 18–19.) West Virginia adheres to the employment at-will doctrine, which

provides that an employee can be discharged “at any time, with or without cause.” Feliciano v. 7-

Eleven, Inc., 559 S.E.2d 713, 717–18 (W. Va. 2001). Although there is a strong presumption in

West Virginia that all employment is at-will, an employee handbook can form the basis of a

unilateral employment contract and rebut that presumption “if there is a definite promise therein

by the employer not to discharge covered employees except for specified reasons.” Edmonds v.

Altice Tech. Servs. US LLC, 413 F. Supp. 3d 488, 496 (S.D. W. Va. 2019) (citing Cook v. Heck’s

Inc., 342 S.E.2d 453, 459 (W. Va. 1986)). On the other hand, “‘[n]o unilateral contract arises

merely by the fact that [the employer] has alerted its employees that certain conduct may form the

basis of a discharge.’” Id.

Plaintiff alleges that the anti-discriminatory and anti-harassment policy in Mardi Gras’

Employee Handbook creates a unilateral, contractual obligation to him. In Edmonds, this Court

addressed similar anti-discrimination policies contained in an employee handbook and found that

they do not create a “promise of job security:”

Here, plaintiff alleges that defendant’s handbook provides for the “protection of

men and women who are disabled,” as it is “against Defendant’s policies for a man

19

or a woman to be discriminated against . . . due to their disability,” and that the

handbook also states that employees “cannot be retaliated against for disability.”

While these provisions do serve as anti-discrimination policies, they do not

individually or collectively constitute a sufficiently definite promise not to

discharge except for specified reasons.

Id. (citations omitted). As in Edmonds, Plaintiff does not allege nor do the anti-discrimination

and anti-harassment provisions contained in Mardi Gras’ Employee Handbook exhibit a definite

promise that would alter the at-will nature of his employment.

In West Virginia, “[a]n employer may protect itself from being bound by any and all

statements in an employee handbook by placing a clear and prominent disclaimer to that effect in

the handbook itself.” Syl. Pt. 5, Suter v. Harsco Corp., 403 S.E.2d 751 (W. Va. 1991).

Significantly, Mardi Gras’ Employee Handbook contains two such prominent at-will employment

disclaimers:

THE INFORMATION AND POLICIES SET FORTH IN THIS HANDBOOK

ARE NOT A CONSIDERATION OF EMPLOYMENT AND THE LANGUAGE

IS NOT INTENDED TO CREATE OR BE CONSIDERED AN EMPLOYMENT

CONTRACT BETWEEN [MARDI GRAS] AND ITS EMPLOYEES.

. . .

Since employment with [Mardi Gras] is based on mutual consent, both the

employee and [Mardi Gras] have the right to terminate employment at will, with or

without cause, at any time.

(ECF No. 9-7 at 6, 51 (Employee Handbook).) These two disclaimers preserve Plaintiff’s at-will

employment and disclaim any implied promise that the handbook might otherwise create.

Accordingly, the employee handbook cannot support a claim for breach of an employee agreement.

Additionally, because West Virginia does not recognize a stand-alone claim for breach of the

covenant of good faith and fair dealing without an independent breach of contract claim, that claim

also fails as a matter of law. See Evans, 775 S.E.2d at 509 (affirming dismissal of claim alleging

breach of the covenant of good faith and fair dealing in absence of express breach of contract

20

claim); Powell v. Bank of Am., N.A., 842 F. Supp. 2d 966, 981 (S.D. W. Va. 2012) (noting that

claims for breach of the implied covenant of good faith and fair dealing must be predicated on a

breach of contract and citing cases).

E. Wage Payment and Collection Act – Count VIII

In Count VIII of the Amended Complaint, Plaintiff claims that Mardi Gras is liable under

the West Virginia Wage Payment and Collection Act (“WPCA”) based on an alleged “breach of

the employment agreement” and for failing to “remit to Plaintiff his termination payments.” (ECF

No. 9 at ¶¶ 99–100.) As discussed above, Plaintiff abandoned his claim for breach of an

employment agreement. See supra at 17–18. Therefore, this abandoned claim cannot be used to

support his purported WPCA claim.

To the extent Plaintiff’s WPCA claim is not based on his alleged employment agreement,

Mardi Gras contends that this claim fails to meet the plausibility requirements under Rule 12(b)(6)

of the Federal Rules of Civil Procedure. In particular, Mardi Gras argues that “Plaintiff has not

pled what he was supposed to be paid or if that allegedly failed payment was late under the

WPCA.” (ECF No. 35 at 19–20.) Mardi Gras also notes that, although the Amended Complaint

refers to “termination pay,” Plaintiff does not explain what termination pay is and what source

confers him with a right to such payment. (Id. at 20.) The Court agrees that the Amended

Complaint offers no factual support for Plaintiff’s conclusory assertions and does not satisfy the

plausibility standard under Rule 12(b)(6). Accordingly, Plaintiff’s claim based on violations of

the WCPA is dismissed for failure to state a claim upon which relief can be granted.

21

IV. CONCLUSION

For the foregoing reasons, Mardi Gras’ Partial Motion to Dismiss, (ECF No. 30), is

GRANTED. The Court DISMISSES part of Counts I and II insofar as these counts claim

discrimination on the basis of Plaintiff's color. Further, the Court DISMISSES all of Counts HI,

IV, V, VI, VII, and VIII.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: April 13, 2020

&

22