McGuire v. Lord Corp.

• Citation: 456 F.Supp.3d 729
• Decision Date: 27 April 2020
• Docket Number: NO. 5:19-CV-25-FL,5:19-CV-25-FL
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Robert MCGUIRE, Plaintiff, v. LORD CORPORATION, Defendant.

456 F.Supp.3d 729

Robert MCGUIRE, Plaintiff,

v.LORD CORPORATION, Defendant.

NO. 5:19-CV-25-FL

United States District Court, E.D. North Carolina, Western Division.

Signed April 27, 2020

Elizabeth Vennum, Vennum PLLC, Charlotte, NC, for Plaintiff.

Tory Ian Summey, Parker Poe Adams & Bernstein LLP, Charlotte, NC, Maureen M. Zyglis, Patricia T. Bartis, Parker, Poe, Adams, & Bernstein LLP, Raleigh, NC, for Defendant.

ORDER

LOUISE W. FLANAGAN, United States District Judge This matter is before the court upon defendant's motion to dismiss plaintiff's amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 34). Plaintiff has responded in opposition and defendant replied. In this posture, the issues raised are ripe for ruling. For the following reasons, the motion is granted.

STATEMENT OF THE CASE

Plaintiff initiated this action in Wake County Superior Court, on December 27, 2018, asserting claims of discrimination and retaliatory discharge against defendant, his alleged former employer, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Plaintiff claims that he was terminated from employment with defendant in retaliation for asserting his right to be free from sexual harassment in the workplace from a co-worker. Plaintiff seeks compensatory damages, including lost wages, as well as punitive damages, injunctive relief, attorney's fees, and interest.

Defendant removed to this court on January 24, 2019, and filed a motion to dismiss the original complaint on March 14, 2019, relying upon an Agreement for Separation between plaintiff and Lord Japan, Inc. (hereinafter, the "Separation Agreement"). On September 30, 2019, this court granted defendant's motion to dismiss, ordering plaintiff's claims dismissed without prejudice, and allowing plaintiff to file a motion for leave to amend his complaint. Over defendant's opposition, the court allowed plaintiff to file the operative first amended complaint in a text order entered on January 9, 2020.

Plaintiff asserts in the amended complaint the same claims and seeks the same relief that he sought in his original complaint. Plaintiff has added factual allegations regarding the Separation Agreement and the circumstances surrounding his execution of the Separation Agreement.

Defendant filed the instant motion to dismiss for failure to state a claim on January 24, 2020. In opposition, plaintiff relies upon a memorandum from Yasuyoshi Goto ("Goto") to plaintiff's counsel, regarding "Japanese Law on Duress." (DE 36-1 at 1). Plaintiff also relies upon a declaration by Goto. (DE 37). In reply, defendant relies upon a declaration of Rikisuke Yamanaka ("Yamanaka") and a memorandum summarizing Japanese law. (DE 32).

STATEMENT OF ALLEGED FACTS

The facts alleged in the amended complaint as pertinent to the instant motion, may be summarized as follows.

Plaintiff is a resident of Minnesota, and defendant is a Pennsylvania corporation with principal office in North Carolina. Defendant hired plaintiff on October 4, 2013, for the position of "Regional Director, Japan." (Am. Compl. ¶ 10). "As Regional Director, Japan, [plaintiff] directed [defendant's] strategy in Japan, including the development of strategic objectives to support enterprise growth." (Id. ¶ 11). "Under [plaintiff's] leadership, [defendant's] profits in Japan more than doubled and sales increased more than 25%." (Id. ¶ 12). During his time of employment plaintiff "received multiple performance-related recognitions and accolades, including being awarded the second highest ‘spot bonus’ in the company and receiving a personal note of appreciation from [defendant's] CEO in 2017." (Id. ¶ 13).

According to the complaint, in 2016, plaintiff heard "rumors that a colleague, Zhong Bei (‘Ms. Bei’) did not like him and was spreading false information," including a "complaint against him for sexual harassment in an attempt to get him fired." (Id. ¶¶ 15-16). In fact, according to the complaint, plaintiff was subject to sexual harassment from Ms. Bei, who made "sexually suggestive comments whenever she spoke with [plaintiff]," tried to "touch and flirt with him at company events," giving plaintiff reason to believe she "was attempting to entrap him in a compromising situation and then claim he sexually harassed her." (Id. ¶¶ 18, 20).

Plaintiff raised concerns about a "special pricing" plan created by Bei to Gareth McAllister ("McAllister"), defendant's "president of Asia Pacific," and other company executives at a meeting of Asia regional leadership. (Id. ¶¶ 23-24). Plaintiff "was ignored" and "several colleagues warned [plaintiff] that [Bei] and [McAllister] were very good friends, such that trying to address concerns about [Bei's] behavior with [McAllister] was a bad idea." (Id. ¶ 25).

After Bei again "began touching him and hanging on to him" at a work event in April 2017, plaintiff demanded that she stop. (Id. ¶¶ 26-27). "Because of [plaintiff's] considerable rapport with Japanese business partners, [McAllister] directed [plaintiff] to assist [Bei] in connecting with Japanese customers in China." (Id. ¶ 28). According to the complaint, in early September, at a regional employee meeting, when plaintiff was briefly separated from his colleagues, Bei "immediately launched into her typical aggressive and sexually lewd flirtations." (Id. ¶ 32). During the course of plaintiff's conversation with Bei, she "describe[d] her menstruation in graphic detail," and she exposed herself to plaintiff. (Id. ¶¶ 35-36).

On September 15, 2017, plaintiff met with defendant's manager of human resources in Japan, to discuss the details "of the humiliating situation" "regarding Ms. Bei's offensive and inappropriate conduct." (Id. ¶ 38-39). It was this manager's duty "to report this sexual harassment incident up the chain of command." (Id. ¶ 40).

"Less than two months later, on November 13, 2017, [McAllister] met with [plaintiff] and informed [plaintiff that defendant] was terminating his employment." (Id. ¶ 41). During this meeting McAllister presented plaintiff with the Separation Agreement and directed him to sign it. Plaintiff alleges the following circumstances surrounding his consideration of the Separation Agreement:

Still reeling from the news of his termination and concerned about the impact on himself and his family, [plaintiff] asked for more time to review the Separation Agreement.

During the next few days, [plaintiff] attempted to negotiate the terms of the Separation Agreement, but [McAllister] flatly refused, threatening not only to terminate [plaintiff's] employment without any severance whatsoever, but to withhold compensation [plaintiff] had already earned ( [plaintiff's] $150,000 annual performance bonus), if [plaintiff] did not sign the Separation Agreement as written.

Among other concerns about the Separation Agreement, [plaintiff] suspected that the Company could not legally threaten to withhold income already earned, but McAllister's tight timeline did not permit him the opportunity to consult with an attorney licensed in Japan.

On or about November 17, 2019, after hearing [plaintiff's] detailed account of the sexual harassment, retaliation, and potential corporate corruption he witnessed at Lord, the Company's Director of Global Compliance, Wren Mitchell ["Mitchell"], advised [plaintiff] not to sign the Separation Agreement until the Company could conduct a thorough investigation.

[Plaintiff] trusted [Mitchell's] commitment to investigating the wrongdoing, but [McAllister's] threats continued, and [plaintiff] feared that refusing to sign the Separation Agreement would result in serious financial loss.

During phone calls and in text messages on November 17 and 18, [plaintiff] informed [Mitchell] of the pressure he was under to sign the Separation Agreement, and his concerns that, by signing the Separation Agreement, he would be allowing the individuals responsible for the sexual harassment, retaliation, and other wrongdoing to escape liability and to continue harming the Company.

Although she claimed that Lord's formal investigation into the misconduct could not begin until after the Thanksgiving holiday, [Mitchell] assured [plaintiff] that "the investigation is completely separate from your departure negotiations," thus his signing the Separation Agreement would not prevent the company from investigating.

[Plaintiff] told [Mitchell] that he did not want to sign the Separation Agreement until the company investigated the wrongdoing, but [McAllister's] ultimatum left him with no choice.

Based on [Mitchell's] assurance that she would investigate the wrongdoing, [plaintiff] reluctantly agreed to sign the Separation Agreement, but told Ms. Mitchell he was signing under duress, and that he was not waiving his rights to bring a claim for unlawful harassment and retaliation based on the subject matter of the investigation.

On November 19, 2017, after signing the Separation Agreement, [plaintiff] followed up with [Mitchell], providing her with more information for her investigation into the wrongdoing at Lord.

(Id. ¶¶ 43-52).

Plaintiff alleges that "months passed without any further investigation by Defendant into the harassment and retaliation [plaintiff] experienced." (Id. ¶ 53). According to the complaint, although defendant "ostensibly terminated [plaintiff] for failing to succeed in his role," defendant in fact terminated plaintiff "in retaliation for opposing [Bei's] offensive workplace conduct and for making a claim to HR, or in the alternative, [plaintiff's] sexual harassment claim against [Bei] was a substantial factor in [defendant's] decision to terminate [plaintiff's] employment." (Id. ¶¶ 54-55). Plaintiff also asserts in the complaint that he "was over 40 years of age at the time of his termination, was meeting [defendant's] legitimate performance expectations, and ... was replaced by someone substantially younger." (Id. ¶ 56). "Because of his termination, [plaintiff]...