Berrington v. Wal-Mart Stores, Inc
| Decision Date | 28 July 2011 |
| Docket Number | No. 1:10–cv–427.,1:10–cv–427. |
| Citation | 799 F.Supp.2d 772 |
| Parties | William BERRINGTON, Plaintiff, v. WAL–MART STORES, INC, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
OPINION TEXT STARTS HERE
William F. Piper, William F. Piper PLC, Portage, MI, for Plaintiff.
Kelly Ann Petrocelli, Barnes & Thornburg LLP, Grand Rapids, MI, Michael P. Palmer, Barnes & Thornburg LLP, South Bend, IN, for Defendant.
Defendant Wal–Mart Stores filed a motion to dismiss, contending that Michigan does not recognize the cause of action in the complaint. (ECF No. 6.)
Plaintiff Berrington (“Berrington”) filed suit in Ninth Circuit Court in Kalamazoo County, Michigan. Berrington alleges a single claim, a violation of public policy for failing to rehire him for an impermissible reason. Defendant Wal–Mart Stores (“Wal–Mart”) timely removed the action to federal court on May 3, 2010. Rather than filing an answer to the complaint, Wal–Mart filed this motion to dismiss. Berrington filed a response. (ECF No. 10.) Wal–Mart filed a reply. (ECF No. 11.) Having reviewed the complaint, motion, briefs, and relevant legal authority, oral argument is not necessary to resolve the motion. See W.D. LCivR 7.2(d).
The party seeking removal bears the burden of establishing that the district court has original jurisdiction. Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir.2000). Berrington is a citizen of Michigan, residing in Van Buren County. (Compl.¶ 1.) The allegations in the complaint concern events alleging occurring at a Wal–Mart store in Kalamazoo, Michigan. Wal–Mart Stores East, the entity that owns and operates the store in Kalamazoo, is a limited partnership, organized under the laws of the State of Delaware with its principal place of business in the State of Arkansas. (Notice of Removal ¶ 5.) The limited partners, WSE Management and WSE Investment are Delaware limited liability companies with their principal places of business in Arkansas. ( Id.) The parent company of Wal–Mart Stores East, Wal–Mart Stores, Inc., is incorporated in Delaware and has its principal place of business in Arkansas. ( Id.) Wal–Mart asserts Berrington's claim for back-pay, by itself, could amount to over $92,000. ( Id. ¶ 13.) Under these facts, this Court has original jurisdiction over this action under the diversity statute. See 28 U.S.C. § 1332(a).
Under the notice-pleading requirements, a complaint must contain a short and plain statement of the claim showing how the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). The complaint need not contain detailed factual allegations, but it must include more than labels, conclusions, and formulaic recitations of the elements of a cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The court need not accept as true any legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must provide sufficient factual allegations that, if accepted as true, are sufficient to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and the “claim to relief must be plausible on its face” Id. at 570, 127 S.Ct. 1955.
When an action comes before a federal court under the diversity jurisdiction statute, the district court applies the substantive law of the forum state. CenTra, Inc. v. Estrin, 538 F.3d 402, 409–10 (6th Cir.2008). When applying state law, federal courts must “anticipate how the relevant state's highest court would rule in the case and are bound by controlling decisions of that court.” In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir.2005) (citation omitted). “Intermediate state appellate court's decisions are also viewed as persuasive unless it is shown that the state's highest court would decide the issue differently.” Id. (citation omitted); see King v. Order of United Commercial Travelers of America, 333 U.S. 153, 161, 68 S.Ct. 488, 92 L.Ed. 608 (1948) ().
Berrington asserts the following facts in his complaint. Berrington began working for the Wal–Mart store on West Main Street in Kalamazoo, Michigan, in November 2003. (Compl.¶ 6.) During his employ, Berrington took a number of approved leaves of absence. ( Id. ¶ 8.) On February 22, 2007, Berrington began a leave of absence that was approved through April 30, 2007. ( Id. ¶ 8.) Berrington, however, did not return to work after April 30. According to Berrington, “[b]ecause of the leave of absence time that he had built up, and because of conversations he had with Wal–Mart managers, [he] did not believe he needed to update or extend his leave of absence that ended on April 30, 2007.” ( Id. ¶ 9.) In mid-May, a personnel manager contacted Berrington and told him to update his leave of absence paperwork, which Berrington did. ( Id. ¶¶ 10–11.) Three days after Berrington updated his leave of absence paperwork, he was summoned to the store and informed, based on store policy, he would be terminated for not returning to work at the end of his leave of absence. ( Id.¶ 12.) Berrington was told he could be rehired after ninety days. ( Id.)
The Wal-Mart's termination paperwork indicated Berrington voluntarily terminated his employment by failing to return from a leave of absence. (Compl.¶ 13.) The paperwork also recommended rehiring Berrington. ( Id.) Under the impression that he had been involuntarily terminated, Berrington applied for unemployment benefits with the State of Michigan. ( Id. ¶ 15.) Wal–Mart opposed Berrington's request for benefits on the basis that Berrington had quit his job of his own volition. ( Id. ¶ 16.)
While the dispute over unemployment benefits was ongoing, ninety days passed and Berrington reapplied for employment with Wal–Mart. (Compl.¶ 18.) Wal–Mart did not offer Berrington a position. ( Id. ¶ 19.) Since late August 2007, the Wal–Mart store on West Main Street has hired a number of employees to positions for which Berrington is qualified. ( Id. ¶ 30.) After another ninety days passed, Berrington applied again for a position at the Wal– Mart on West Main Street, without success. ( Id. ¶ 22.) Berrington believes Wal–Mart refuses to hire him because he filed for unemployment benefits, which were eventually awarded over Wal–Mart's objections. ( Id. ¶ 24.)
Assuming Plaintiff's well-pled facts to be true, and further assuming that these facts establish a wrongful refusal to rehire 1, this Court must determine whether Michigan law recognizes wrongful refusal to rehire as a cause of action. Absent some indication to the contrary, in Michigan, an employment relationship is presumed to be at-will, although the presumption may be rebutted. Lytle v. Malady (on rehearing), 458 Mich. 153, 579 N.W.2d 906, 910 (1998). The Michigan Supreme Court has recognized “[i]n general, in the absence of a contractual basis for holding otherwise, either party to an employment contract for an indefinite term may terminate it at any time for any, or no, reason.” Suchodolski v. Mich. Consol. Gas Co., 412 Mich. 692, 316 N.W.2d 710, 711 (1982) (per curiam); see Silberstein v. Pro–Golf of Am., Inc., 278 Mich.App. 446, 750 N.W.2d 615, 621 (2008). However, certain discharges may be so contrary to public policy as to be actionable. Suchodolski, 316 N.W.2d at 711; Silberstein, 750 N.W.2d at 621. Michigan courts have invoked the public policy exception to the at-will rule most often in three situations: (1) adverse treatment of employees who act in accordance with a statutory right or duty; (2) an employee's failure or refusal to violate a law in the course of employment; and (3) an employee's exercise of a right conferred by a well-established legislative enactment. Kimmelman v. Heather Downs Mgt. Ltd., 278 Mich.App. 569, 753 N.W.2d 265, 268 (2008) (citing Suchodolski, 316 N.W.2d at 711–12).
Berrington acknowledges that no Michigan state court has considered whether a failure to rehire may violate public policy. (Pl. Br. 8.) Berrington has not provided authority from any jurisdiction where a court enforced a retaliatory failure to hire or rehire, absent some other statutory violation. Berrington argues that in Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976), the Michigan Court of Appeals recognized an anti-retaliation public policy claim in the employment context, even though there was no explicit legislative anti-retaliation provision. Sventko, however, is readily distinguishable from the facts here. First, Sventko involved a wrongful discharge claim for filing a worker's compensation claim, not a failure to rehire claim. Sventko, 245 N.W.2d at 152. Second, the court found significant that the Legislature had made it a crime for employers to consistently terminate employees before they qualify for worker's compensation in order to avoid the provisions of the statute. Id. at 154 (citing Mich. Comp. Laws § 418.125).
Berrington relies on the Michigan Employment Security Act (“MESA”), Mich. Comp. Laws § 421.1, et seq. Berrington argues Michigan has a strong public policy for the provision of unemployment benefits to individuals who have been laid-off or otherwise involuntarily terminated through no fault of their own. See Mich. Comp. Laws § 421.2. As a remedial statute, MESA must be liberally construed to achieve its intended goal. Empire Iron Mining P'ship v. Orhanen, 455 Mich. 410, 565 N.W.2d 844, 848 (1997). Similar to the situation in Sventko where the worker's compensation legislation...
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Berrington v. Wal–Mart Stores, Inc.
...this Court has no basis to find that Michigan state courts would recognize Berrington's cause of action.” Berrington v. Wal–Mart Stores, Inc., 799 F.Supp.2d 772, 777 (W.D.Mich.2011). The district court entered judgment in favor of Wal–Mart. This appeal followed.II. LAW AND ANALYSISA. Standa......