Mcfarland v. Virginia Retirement Services

• Decision Date: 06 March 2007
• Docket Number: Civil Action No. 3:06CV651.
• Citation: 477 F.Supp.2d 727
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Penny McFARLAND, Plaintiff, v. VIRGINIA RETIREMENT SERVICES OF CHESTERFIELD, L.L.C. d/b/a Magnolias of Chesterfield, et al., Defendants.

477 F.Supp.2d 727

Penny McFARLAND, Plaintiff, v. VIRGINIA RETIREMENT SERVICES OF CHESTERFIELD, L.L.C. d/b/a Magnolias of Chesterfield, et al., Defendants.

Civil Action No. 3:06CV651.

United States District Court, E.D. Virginia, Richmond Division.

March 6, 2007.

COPYRIGHT MATERIAL OMITTED

Robert Scott Oswald, Gregory Robert Sharma-Holt, Nicholas Wyckoff Woodfield, The Employment Law Group PC, Washington, DC, for Plaintiff.

Neil Shantaram Talegaonkar, Christopher M. Malone, Thompson & McMullan, Richmond, VA, for Defendants.

MEMORANDUM OPINION

DENNIS W. DOHNAL, United States Magistrate Judge.

This matter is before the Court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1) on the Defendants' Partial Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil. Procedure for failure to state a claim upon which relief can be granted (docket entry no. 14). The Plaintiff, Penny McFarland, brings suit pursuant to, inter alia, the Fair Labor Standards Act ("FLSA" or the "Act"), 29 U.S.C. § 201 et seq., alleging that the Defendants, Virginia Retirement Services of Chesterfield, L.L.C. ("Magnolia"),¹ and some of its various owners and directors,² failed and/or refused to pay McFarland certain regular and overtime wages due her under, the Act. (Am.Compl. ¶Para; 1, 3) (docket entry no. 2.) McFarland also brings two pendent state law claims: the first alleges wrongful discharge in violation of Virginia public policy (the "Bowman claim"); the second is for wrongful retaliation/discharge pursuant to Va.Code Ann. § 40.1-51.2:2. (Am.Compl.¶¶ 43-52). The matter has been extensively briefed and the Court has entertained oral argument. For the reasons set forth herein, the Defendants' Partial Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

Material Facts

Because this case arises from a motion to dismiss, the facts as alleged in the Amended Complaint must be taken as true and viewed in the light most favorable to Plaintiff, Penny McFarland ("McFarland" or the "Plaintiff'). Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Magnolia is a Virginia, for-profit retirement community, and it employed McFarland as its Activities Director and Office Manager from May 2005 until the date of her termination on July 1, 2006. (Am.Compl.¶¶ 17, 18.) In these roles, McFarland was responsible for coordinating and conducting activities for the residents of Magnolia, and was paid $15 per hour for such efforts. (Am.Compl. ¶ 18.)

McFarland's FLSA claim is based on Magnolia's alleged "hours shaving" and failure to compensate her for time worked "off-the-clock." See 29 U.S.C. § 207(a). McFarland asserts that her duties as the Activities Director required her to spend many hours "off the clock," that the Defendants were aware or should have been aware that McFarland was performing such work, that the Defendants accepted the benefits derived therefrom, and yet failed to compensate McFarland for her "regular and overtime hourly wages!' (Am.Compl.¶¶ 19, 37.) The specific instances of overtime work performed is not relevant to the Court's analysis of the pending Motion to Dismiss, but suffice it to say that McFarland claims she was not paid for any of these additional services. (Am.Compl.¶¶ 20-27.)

McFarland brings her second cause of action for wrongful termination in violation of Virginia public policy. She alleges that she was terminated for participating in a state investigation of a safety complaint levied against Magnolia. (Am.Compl. ¶ 30.) The facts supporting the wrongful termination charge are pled as follows:

On or around June 22, 2006, [Effie] Stovall³ instructed the staff to take the residents outside for a walk. It was around 95 degrees outside. Someone made a complaint out of concern for the residents. An inspector from the [state] licensing board called Magnolia and spoke to [McFarland] about the complaint. [McFarland] felt she had to comply with the investigation and answered the investigator's questions truthfully. [McFarland] immediately informed Stovall of the, phone call.

On or around June 29, 2006, after a telephone call with the inspector, [Defendant] Mary Dunmoyer told Stovall to terminate [McFarland]. Mary Dunmoyer stated that because the walk was an "activity," [McFarland] should be terminated, even though Stovall informed Mary Dunmoyer that it was indeed Stovall who had given the instruction for the walk. Mary Dunmoyer stated that by speaking to the inspector, [McFarland] was trying to "sabotage" Magnolia and should be terminated immediately. Initially, Stovall refused to terminate [McFarland], but complied after Mary Dunmoyer threatened to terminate her [(Stovall)] as well.

[McFarland] was terminated on July 1, 2006 and, filed for unemployment compensation.

(Am.Compl.¶¶ 31-33.) In essence, McFarland alleges that she was terminated because she provided information regarding the health and safety of Magnolia's residents in response to the State investigator's inquiry. Such action, McFarland contends, violates Virginia's strong public policy favoring the liberal reporting of suspicion of abuse, neglect, or exploitation of aged adults, see Va.Code Ann. § 632-1606, and, more specifically, the State's public policy prohibiting the retaliation against an employee of an assisted living facility who provides information to, or otherwise cooperates with, the appropriate State authorities regarding residents at such facilities, see id. § 632-1730.

After the Virginia Employment Commission determined that McFarland qualified for unemployment benefits (Am. Compl.¶ 33), McFarland filed a safety and health complaint with the Virginia Department of Labor and Industry on August 28, 2006. See Va.Code Ann. § 40.1-51.2:2(A) (an employee who has been discharged for filing a safety or health complaint may file a complaint with Commissioner within 60 days of the alleged violation). Nonetheless, the Commissioner refused to issue a charge against the Defendants. Hence, McFarland brings her third cause of action under Va.Code Ann. § 40.1-51.2:2(B) (if the Commissioner refuses to issue a charge against the allegedly discriminating/discharging employer, the employee may bring an action in state court for appropriate relief), which she believes vests her "with a right to report safety and health violations, and to bring an action for appropriate relief should her employer discharge her or otherwise discriminate against her for exercising a right under the Labor/Employment/Safety code." (Am.Compl.¶ 51.)

The Defendants have moved for partial dismissal of McFarland's lawsuit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Count II (wrongful discharge in violation of public policy) and Count III (retaliation/discrimination for filing a safety or health complaint) of the Amended Complaint fail to set forth sufficient factual allegations upon which relief can be granted. (Defs.' Partial Mot. Dismiss) (docket entry no. 14.)

Standard of Review

Pursuant to Rule 12(b)(6), a complaint must be dismissed when a plaintiffs allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). After accepting the facts as alleged, in the Amended Complaint as true and viewing them in the light most favorable to Plaintiff McFarland, see Chao, 415 F.3d at 346, this Court should not grant the Defendants' Rule 12(b)(6) motion "unless ... it appears certain that [McFarland] cannot prove any set of facts in support of [her] claim entitling [her] to relief." Id. (citation omitted). Stated differently, a "court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

Analysis

1. Virginia Law Applies to McFarland's Pendent State Claims

When a pendent state law claim is presented to a federal court in conjunction with a federal question claim, a federal court has supplemental jurisdiction to hear the pendent state law claim if it "form[s] part of the same case or controversy" as the federal claim. See 28 U.S.C. § 1367(a). Here, McFarland's state claims plainly arise from the same "case or controversy" as her federal FSLA claim, for both the FSLA claim and the state claims arise from the same set of facts, and it would be unreasonable to require that McFarland pursue her claims in two separate judicial proceedings. See White v. County of Newberry, 985 F.2d 168, 171 (4th Cir.1993) (district court may exercise supplemental jurisdiction over claims that "the plaintiff would ordinarily be expected to try ... in one judicial proceeding."). When deciding state law claims under supplemental jurisdiction, federal courts apply the choice-of-law rules of the jurisdiction in which they sit. Klaxon Co. v. Stentor Elec. Mfg, Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). This Court sits in Virginia, and since Virginia applies the doctrine of lex loci delicti to tort claims, "the law of the place of the wrong governs all matters related to the basis of the right of action." Dreher v. Budget Rent-A-Car Sys., Inc., 272 Va. 390, 634 S.E.2d 324, 327 (2006) (citations omitted). Hence, Virginia law will govern the resolution of McFarland's state law claims.

2. McFarland Has Pleaded a Valid Bowman Claim

Count II of the Amended Complaint alleges that McFarland was wrongfully discharged in violation of public policy. Essentially, McFarland alleges that she was fired because she answered a state investigator's questions truthfully regarding the "activity" of taking some of Magnolia's residents on an outside excursion in 95 degree weather. See Am. Compl. ¶¶ 31-33. Specifically, McFarland claims that Defendant Mary Dunmoyer, the Executive Director of Magnolia, told McFarland's supervisor that "by speaking to the [State] inspector, [McFarland] was trying to `sabotage' Magnolia and should be...