The West Vir­ginia Supreme Court recent­ly issued an opin­ion deal­ing with one of those stereo­typ­i­cal­ly awk­ward sit­u­a­tions, where an employ­ee alleged­ly stum­bles into a room where the boss is hav­ing sex with a co-work­er. The deci­sion was  Roth v. DeFe­lice­Care, Inc., 226 W. Va. 214, 700 S.E.2d 183 (June 8, 2010) (per curi­am). It was a 3–2 deci­sion, in which the 3‑vote major­i­ty con­sist­ed of Jus­tices Robin Davis, Mar­garet Work­man, and  Thomas McHugh. Jus­tices Menis Ketchum and Brent Ben­jamin dis­sent­ed, and Jus­tice Ketchum wrote a dis­sent­ing opinion.

The Facts–Sex at Work

These are the facts accord­ing to the com­plaint in the law­suit: Tri­cia Roth was a res­pi­ra­to­ry ther­a­pist work­ing at DeFe­lice­Care, Inc. in Ohio Coun­ty, West Vir­ginia, and she was about to go on vaca­tion. She was direct­ed by Leslie DeFe­lice (the male boss/owner) to come to work some­time dur­ing the week­end pre­ced­ing her vaca­tion in June 2006. She was not told a spe­cif­ic time to come to work dur­ing that week­end. When she came to work as ordered, she “observed Defen­dant [Leslie] DeFe­lice and/or Michelle Kel­ly par­tial­ly clothed and in a com­pro­mis­ing posi­tion”. Mr. DeFe­lice instruct­ed Ms. Roth to go into a con­fer­ence room and wait–meanwhile Mr. DeFe­lice and the oth­er employ­ee got all their clothes back on. Mr. DeFe­lice then talked to Ms. Roth and told her to for­get about what she had just seen, and threat­ened Ms. Ross with the loss of her res­pi­ra­to­ry ther­a­py license and the loss of her employment.

Ms. Roth then went on vaca­tion. When she got back from vaca­tion and returned to work, she had a meet­ing with Mr. DeFe­lice that did­n’t go well. Ms. Roth told Mr. DeFe­lice that she had­n’t told any­one about his sex­u­al encounter at work. Mr. DeFe­lice pro­ceed­ed to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal the­o­ries cen­ter­ing around sex dis­crim­i­na­tion and sex­u­al harass­ment, and–bada bing!–the case prompt­ly got dismissed.

Ms. Roth’s com­plaint (the doc­u­ment which starts the law­suit and describes the plain­tiff’s alle­ga­tions) focused on the sex­u­al inci­dent I have described above, but also made alle­ga­tions about oth­er sex­u­al harassment–I will dis­cuss those details below.

Motion to Dismiss Under Rule 12(b)(6)

The impor­tant thing to under­stand about the appeal to the WV Supreme Court is that the defen­dants imme­di­ate­ly filed a motion to dis­miss (under Rule 12(b)(6)) based only on the com­plaint filed by Ms. Roth–there was no evi­dence that had been accu­mu­lat­ed through depo­si­tions, affi­davits, and the like. The basis for the motion to dis­miss was that Ms. Roth had “failed to state a claim upon which relief may be grant­ed.” That motion is based sole­ly “on the plead­ings”, and is based on no oth­er evidence.

A motion to dis­miss on the plead­ings must assume the truth­ful­ness of the alle­ga­tions in the plain­tiff’s com­plaint, and argues rough­ly this: even if every­thing the plain­tiff says is true, she still can’t win, because there is noth­ing about those alle­ga­tions that would allow her any recov­ery in court.

Let’s use this as an exam­ple to illus­trate a motion to dis­miss on the plead­ings (under Rule 12(b)(6)):

• Sup­pose my boss fires me, and hands me a nota­rized res­o­lu­tion issued by the board of direc­tors of my cor­po­rate employ­er say­ing: “We here­by fire Drew M. Capud­er because his socks don’t match. We hate peo­ple that can’t clothe them­selves with min­i­mal com­pe­tence. We infer from that char­ac­ter­is­tic that such peo­ple are incom­pe­tent employ­ees. Fur­ther­more, we, the board of direc­tors and man­age­ment of Drew’s employ­er, har­bor an intense per­son­al hatred for such peo­ple. We fire Drew with the great­est joy and aban­don.” My boss hands me the board res­o­lu­tion and says “you’re fired, and the com­pa­ny secu­ri­ty will escort you out imme­di­ate­ly”. I say to my boss, “that’s dis­crim­i­na­to­ry”. My boss replies: “Of course it is–we despise peo­ple who can’t dress them­selves prop­er­ly”. My boss, who record­ed the ter­mi­na­tion meet­ing, then hands me a nice­ly pack­aged CD record­ing of the ter­mi­na­tion meet­ing as the com­pa­ny secu­ri­ty guard quick­ly ush­ers me out of the building.
• I file suit for dis­crim­i­na­tion and wrong­ful dis­charge. I ini­ti­ate the law­suit by fil­ing a doc­u­ment called a “com­plaint” which sets out a brief state­ment of the facts and the legal the­o­ries on which I am relying.
• My employ­er’s defense coun­sel looks at my com­plaint, and says to her­self: “I don’t have to answer this sil­ly-assed law­suit. I will file a motion to dis­miss, because there is noth­ing about Drew’s idi­ot­ic alle­ga­tions that our legal sys­tem rec­og­nizes as valid legal claims”. So the defense lawyer files a motion to dis­miss, based only on the alle­ga­tions in my com­plaint, under Rule 12(b)(6) of the West Vir­ginia Rules of Civ­il Pro­ce­dure. This is the same kind of motion that the defen­dants filed against Ms. Roth.
• The tri­al judge reviews the motion to dis­miss and my response. The tri­al judge then takes about 6 nanosec­onds to decide that the defen­dan­t’s motion should be grant­ed, and–bada bing!–my case is dis­missed. This is the same type of deci­sion which the judge made in Ms. Roth’s case (and the cor­rect­ness of that deci­sion was the issue on appeal).
• The tri­al judge in my case made the cor­rect deci­sion because, assum­ing (for pur­pos­es of the motion to dis­miss) every­thing I said in my com­plaint was true, there is noth­ing about those alle­ga­tions that estab­lish­es any sort of rec­og­nized claim for wrong­ful dis­charge. In oth­er
  words, my com­plaint would not allow me to win in court. It’s as sim­ple as that.
• Con­trary to some pop­u­lar under­stand­ing, the law does not pro­hib­it all forms of employ­ment dis­crim­i­na­tion. The law only pro­hibits employ­ment dis­crim­i­na­tion in which the employ­er’s deci­sion is based on pro­tect­ed char­ac­ter­is­tics. Those char­ac­ter­is­tics include race, age, gen­der, nation­al ori­gin, dis­abil­i­ty, and reli­gion (and there are oth­er char­ac­ter­is­tics like cer­tain types of whis­tle blow­ing, mil­i­tary ser­vice, jury duty, etc.). So if my employ­er dis­crim­i­nates against me because my socks don’t match, there is noth­ing about being a fash­ion moron that con­sti­tutes a pro­tect­ed char­ac­ter­is­tic. My employ­er is free to law­ful­ly dis­crim­i­nate, and make adverse employ­ment deci­sions, on that basis. The point of the motion to dis­miss in Ms. Roth’s case was that there was noth­ing about her alle­ga­tions that involved dis­crim­i­na­tion based on her sex (gender)–and that was the main issue under review on appeal.

Standards for Dismissal Under Rule 12(b)(6); Iqbal is Rejected

When an employ­er (or any oth­er defen­dant) is try­ing to dis­miss a law­suit under Rule 12(b)(6), the deck is stacked in favor of the employ­ee in the sense that this will be a deci­sion based on only the suf­fi­cien­cy of the alle­ga­tions in the com­plaint. The WV Supreme Court has applied these rules in scru­ti­niz­ing the ade­qua­cy of the complaint:

• “lib­er­al­ly con­strue the com­plaint so as to do sub­stan­tial justice”;
• keep in mind that “the pref­er­ence is to decide cas­es on their merits”;
• “con­strue the com­plaint in the light most favor­able to the plain­tiff, tak­ing all the alle­ga­tions as true”;
• dis­miss the com­plaint only if it “appears beyond doubt that the plain­tiff can prove no set of facts in sup­port of his claim which would enti­tle him to relief”, and
• the rules con­cern­ing plead­ings require that the com­plaint  mere­ly give “fair notice” of the alle­ga­tions, and the com­plaint itself is “not required to set out facts upon which the claim is based”.  (This prin­ci­ple aris­es out of Rule 8(a) which states that a com­plaint shall con­tain a “short and plain state­ment of the claim show­ing that the pleader is enti­tled to relief”. Rule 9(b) then states that alle­ga­tions of “fraud or mis­take” shall be stat­ed “with par­tic­u­lar­i­ty”, but that “[m]alice, intent, knowl­edge, and oth­er con­di­tion of mind of a per­son may be averred gen­er­al­ly.” The com­pa­ra­ble fed­er­al Rule 8(a) was the basis for the US Supreme Court in 1957 for­mu­lat­ing the “notice” con­cept for plead­ings in Con­ley v. Gib­son, 355 U.S. 41 (1957).)

This last item, the “fair notice” require­ment, is key to under­stand­ing this case and dis­missal motions under Rule 12(b)(6). The point of the com­plaint in West Vir­ginia is to give “fair notice” of the alle­ga­tions, and it is not required to set out the alle­ga­tions in more detail. The “more detail” is some­thing that the par­ties explore under the “dis­cov­ery phase” of the law­suit when doc­u­ments are request­ed, depo­si­tions are tak­en, etc.

The US Supreme Court has recent­ly adopt­ed a more strin­gent sys­tem for eval­u­at­ing com­plaints in the Rule 12(b)(6) con­text (the feds have the same rule), with the deci­sions being Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Cor­po­ra­tion v. Twombly, 550 U.S. 544 (2007). In Iqbal, the US Supreme Court held:

[t]o sur­vive a motion to dis­miss, a com­plaint must con­tain suf­fi­cient fac­tu­al mat­ter, accept­ed as true to state a claim to relief that is plau­si­ble on its face.

The US Supreme Court held that “bare asser­tions” are not enti­tled to be accept­ed as true in eval­u­at­ing a motion to dis­miss under Rule 12(b)(6).

The WV Supreme Court in Roth v. DeFe­lice­Care, Inc., on the oth­er hand, reject­ed the “more strin­gent” fed­er­al require­ment, and stuck with the “fair notice” principles.

The Iqbal deci­sion was a 5–4 split and has gen­er­at­ed a good bit of con­tro­ver­sy. Mem­bers of Con­gress have tak­en steps toward leg­isla­tive­ly over­turn­ing it. The US House bill (H.R. 4115), called the Open Access to Courts Act of 2009, is in com­mit­tee, and hear­ings have been con­duct­ed by the House Judi­cia­ry Com­mit­tee. The Bill has not emerged from the Judi­cia­ry Com­mit­tee. In the Sen­ate, a com­pa­ra­ble bill called the “Notice of Plead­ings Restora­tion Act of 2009” (S. 1504) has been intro­duced, and it has not emerged from the Sen­ate Judi­cia­ry Com­mit­tee. Both of these bills would return fed­er­al law to the “notice plead­ing” prin­ci­ples for­mu­lat­ed in Con­ley v. Gib­son, 355 U.S. 41 (1957).

Roth’s Hostile Work Environment Claim

The tri­al court dis­missed Ms. Roth’s claim for hos­tile work envi­ron­ment, which includes claims for sex­u­al harass­ment.

To “estab­lish a claim for sex­u­al harass­ment based upon a hos­tile or abu­sive work envi­ron­ment” under WV Human Rights Act, the plain­tiff must prove

• 1. The sub­ject con­duct was unwelcome,
• 2. It was based on the sex of the plaintiff,
• 3. It was suf­fi­cient­ly severe or per­va­sive to alter the [plain­tiff’s] con­di­tions of employ­ment and cre­ate an abu­sive work envi­ron­ment, and
• 4. It was imputable on some fac­tu­al basis to the employer.

The key ele­ment for this appeal was the sec­ond ele­ment. The tri­al court deter­mined that the weird cir­cum­stance described by Ms. Roth in her com­plaint, when she alleged­ly stum­bled into an area where her boss and anoth­er female employ­ee were in some sort of sex­u­al activ­i­ty, was not any sort of hos­tile work envi­ron­ment that was “based on the sex of the plain­tiff” (ele­ment 2 above). (For this pur­pose, the courts use “sex” and “gen­der” interchangeably.)

The WV Supreme Court’s opin­ion dis­cussed whether these alle­ga­tions could form the basis for a hos­tile work envi­ron­ment “based on sex”, and Jus­tice Ketchum’s dis­sent dis­cuss­es that as well. I am a bit con­fused by the Court’s opin­ions (the major­i­ty and the dis­sent) because some of the analy­sis seems to assume that the only the facts alleged in sup­port of a hos­tile work envi­ron­ment are the facts relat­ing to the episode of the boss alleged­ly being in sex­u­al activ­i­ty with a female cowork­er. How­ev­er, the Supreme Court’s opin­ion makes it clear that there were sig­nif­i­cant oth­er alle­ga­tions that sup­port­ed a claim for hos­tile work environment:

Defen­dant DeFe­lice­Care autho­rized, direct­ed and acqui­esced in the allowance of per­va­sive, explic­it and habit­u­al harass­ment which includ­ed but is not lim­it­ed to: sub­ject­ing [Ms. Roth] to such sex­u­al­ly explic­it con­duct, threats of loss of license, loss of employ­ment and ter­mi­na­tion for unwant­ed sex­u­al­ly explic­it con­duct she observed.

The key lan­guage in that por­tion is a “per­va­sive, explic­it and habit­u­al harass­ment which includ­ed but is not lim­it­ed to” the boss’s alleged sex­u­al activ­i­ty with the cowork­er described in the com­plaint. Based on notice plead­ing require­ments, and if the issue is whether the com­plaint puts the defen­dant on notice con­cern­ing a claim of hos­tile work envi­ron­ment or sex­u­al harass­ment, that alle­ga­tion alone should end the argu­ment. In oth­er words, there were alle­ga­tions that there were sex­u­al activ­i­ties cre­at­ing a hos­tile work envi­ron­ment above and beyond the episode involv­ing the boss and coworker.

Anoth­er alle­ga­tion in the com­plaint that is rel­e­vant to this issue is:

Ms. Roth was “sub­ject­ed to improp­er and sex­u­al­ly explic­it con­duct by her supe­ri­ors includ­ing the pres­i­dent and CEO Defen­dant DeFe­lice… there­by cre­at­ing a hos­tile and abu­sive envi­ron­ment for employment”.

Again, that is clear­ly mak­ing alle­ga­tions of a hos­tile work envi­ron­ment that involve supe­ri­ors oth­er than Mr. DeFe­lice. So the complaint’s alle­ga­tions of hos­tile work envi­ron­ment were not lim­it­ed to the boss/­co-work­er-being-par­tial­ly-undressed episode.

Ulti­mate­ly,  the WV Supreme Court con­clud­ed that Ms. Roth’s alle­ga­tions in her com­plaint were suf­fi­cient to sat­is­fy the plead­ings require­ments for a hos­tile work envi­ron­ment claim.

Ms. Roth’s Claim for “Quid Pro Quo” Sexual Harassment

Ms. Roth also alleged that she was ter­mi­nat­ed because of the sex­u­al harass­ment. This is a claim under the WV Human Rights Act for what is gen­er­al­ly known as “quid pro quo sex­u­al harass­ment”, which involves an alle­ga­tion that a tan­gi­ble employ­ment decision—here, termination—was relat­ed to the sex­u­al harass­ment. For such a claim, the plain­tiff must prove that she was a mem­ber of a pro­tect­ed class (here, female), that there was an adverse employ­ment deci­sion (here, ter­mi­na­tion), and that “but for the plaintiff’s pro­tect­ed sta­tus, the adverse deci­sion would not have been made.”

The tri­al court also dis­missed this claim, again on the the­o­ry that the com­plaint did not present any alle­ga­tion that the ter­mi­na­tion was based on Ms. Roth’s sex. The WV Supreme Court dis­agreed and reversed this decision.

The WV Supreme Court dis­cussed whether Ms. Roth’s encounter with her boss and cowork­er, and the sub­se­quent ter­mi­na­tion, could be con­sid­ered “based on the sex” of Ms. Roth, and described a state­ment made at oral argu­ment by the plain­tiff’s attor­ney, to the effect that a woman might have been fired, and a man might have been retained under the cir­cum­stances, because men might view such sex­u­al activ­i­ty as some­thing to be “admired” (so by infer­ence, there would be no ter­mi­na­tion), but a woman employ­ee might be dis­ad­van­taged under com­pa­ra­ble cir­cum­stances. The Court described that the­o­ry as “spec­u­la­tive at best”, and then focused on what was the real issue: whether the appel­lants’ com­plaint was “suf­fi­cient­ly pleaded”.

For Ms. Roth’s dis­crim­i­na­tion claim over her dis­charge, on the issue of whether her dis­charge was based on her sex, a rel­e­vant alle­ga­tion was that Mr. DeFe­lice fired Ms. Roth stat­ing that “he did not like how s

he dressed” and “he did not like the style/color of her hair”. That seems to me to be a pret­ty gen­der-based rea­son for ter­mi­na­tion (again, that is Ms. Roth’s alle­ga­tion, and it must be accept­ed as true in this pro­ce­dur­al context).

Ms. Roth’s Claim for Discharge in Violation of a Substantial Public Policy

Ms. Roth also alleged wrong­ful ter­mi­na­tion under the doc­trine first announced by the WV Supreme Court in Har­less v. First Nation­al Bank in Fair­mont, 162 W. Va. 116, 246 S.E.2d 270 (1978), where ter­mi­na­tion will be action­able if the “moti­va­tion” of the employ­er “is to con­tra­vene some sub­stan­tial pub­lic pol­i­cy prin­ci­ple.” That doc­trine has been applied in a num­ber of set­tings, includ­ing whistle­blow­er cir­cum­stances, sit­u­a­tions where an employ­ee invokes a right such as self-defense (in the set­ting of a store rob­bery), pri­va­cy rights under some cir­cum­stances to refuse drug tests, and sit­u­a­tions where the employ­ee is ter­mi­nat­ed because of some tes­ti­mo­ny in a legal proceeding.

The tri­al judge decid­ed that the facts did not sup­port any con­clu­sion that there was a “sub­stan­tial pub­lic pol­i­cy” that the employ­er was try­ing to “con­tra­vene”.  The WV Supreme Court dis­agreed and reversed on this deci­sion as well.

Ms. Roth sub­mit­ted the fol­low­ing three alleged “sub­stan­tial pub­lic poli­cies” at issue which she claimed made the ter­mi­na­tion unlaw­ful, and the tri­al court reject­ed all of them. The WV Supreme Court con­clud­ed that the sec­ond and third poli­cies could be viable, so that it reversed the deci­sion to dis­miss this wrong­ful dis­charge claim under the Har­less doctrine:

• First: the plain­tiff invoked West Vir­ginia statutes con­cern­ing pub­lic nudi­ty, and the tri­al court dis­missed that as a rel­e­vant sub­stan­tial pub­lic pol­i­cy; and the West Vir­ginia Supreme Court agreed.
• Sec­ond: Ms. Roth con­tend­ed that the sex dis­crim­i­na­tion and sex­u­al harass­ment laws under the WV Human Rights Act cre­at­ed sub­stan­tial pub­lic poli­cies, and the West Vir­ginia Supreme Court has pre­vi­ous­ly made it clear under the Har­less doc­trine that those statutes in fact estab­lished sub­stan­tial pub­lic poli­cies which could form the basis of a wrong­ful dis­charge claim. How­ev­er, the tri­al court implic­it­ly reject­ed that theory—the tri­al court didn’t express­ly dis­cuss it. The West Vir­ginia Supreme Court dis­agreed, based on the analy­sis that I have described above in dis­cussing the hos­tile work envi­ron­ment claim. This pol­i­cy and the next (third) pol­i­cy were raised by Ms. Roth’s coun­sel in her oppo­si­tion to the motion to dis­miss, and the WV Supreme Court said the tri­al court should have addressed them in reach­ing its deci­sion. In oth­er words, the tri­al court should not have lim­it­ed its con­sid­er­a­tion of poten­tial pub­lic poli­cies to those described in the complaint.
• Third: Ms. Roth alleged that there was anoth­er law­suit by anoth­er female employ­ee for sex­u­al harass­ment that pre­ced­ed her own, and in that law­suit, there had been alle­ga­tions of a sex­u­al rela­tion­ship between Mr. DeFe­lice and the co-work­er that was in a state of par­tial undress with Mr. DeFe­lice when Ms. Roth walked in right before her vaca­tion. In that oth­er law­suit, there had been tes­ti­mo­ny deny­ing the rela­tion­ship between Mr. DeFe­lice and the (par­tial­ly clothed) co-work­er. Thus, Ms. Roth had the poten­tial for hav­ing tes­ti­mo­ny in that oth­er law­suit that could have con­tra­dict­ed the tes­ti­mo­ny that Mr. DeFe­lice and the oth­er co-work­er were not involved in any sort of rela­tion­ship. Ms. Roth’s lawyer alleged that DeFe­lice­Care was vio­lat­ing a sub­stan­tial pub­lic pol­i­cy in poten­tial­ly ter­mi­nat­ing Ms. Roth for her pos­si­ble tes­ti­mo­ny in that oth­er law­suit. The tri­al court reject­ed this the­o­ry, but the West Vir­ginia Supreme Court dis­agreed, and con­clud­ed that this was a viable the­o­ry for a “sub­stan­tial pub­lic pol­i­cy” being vio­lat­ed. In oth­er words, Ms. Roth’s the­o­ry was that she was fired because of her obser­va­tion of the sex­u­al encounter between Mr. DeFe­lice and the cowork­er could have been dam­ag­ing to Mr. DeFe­lice and his com­pa­ny in that oth­er law­suit, such that Mr. DeFe­lice was moti­vat­ed to ter­mi­nate Ms. Roth.

So, the WV Supreme Court thought the sec­ond and third the­o­ries above con­sti­tut­ed sub­stan­tial pub­lic poli­cies so the dis­miss of the Har­less claim was inappropriate.

Ms. Roth’s Claim for Retaliation

Ms. Roth also alleged retal­i­a­tion under the West Vir­ginia Human Rights Act. Retal­i­a­tion under that Act required that Ms. Roth engaged in some “pro­tect­ed activ­i­ty” either in the form of (a) oppo­si­tion to dis­crim­i­na­to­ry behav­ior, or (b) in the form of par­tic­i­pat­ing in con­nec­tion with some pro­ceed­ing under the Act. As far as I can tell, the only pro­tect­ed activ­i­ty alleged by Ms. Roth was the “oppo­si­tion”, so that was the only type of  pro­tect­ed activ­i­ty dis­cussed in the WV Supreme Court’s opinion.

The “oppo­si­tion” pro­tect­ed activ­i­ty includes “oppo­si­tion to a prac­tice that the plain­tiff rea­son­ably and in good faith believes vio­lat­ed the pro­vi­sions” of the WV Human Rights Act. The opposition

“must be rea­son­able in the sense that it must be based on a set of facts and a legal the­o­ry that are plau­si­ble. Fur­ther, the view must be hon­est­ly held and must be more than a cov­er for trou­ble­mak­ing. Thus, even if there was no action­able sex­u­al harass­ment, the plain­tiff could still have engaged in a pro­tect­ed activ­i­ty if she com­plained about being sex­u­al­ly harassed.”

The tri­al court dis­missed this claim, and the WV Supreme Court agreed because Ms. Roth had nev­er “engaged in any pro­tect­ed activ­i­ty”. She had sim­ply nev­er done any­thing to express any oppo­si­tion to any of the sex­u­al con­duct she claims to have expe­ri­enced or heard about.

Ms. Roth’s Claim for Intentional Infliction of Emotional Distress

Ms. Roth also alleged a claim for “inten­tion­al inflic­tion of emo­tion­al dis­tress”, which is an extreme­ly hard claim to pre­vail upon in an employ­ment set­ting. The WV Supreme Court described the claim this way:

One who by extreme or out­ra­geous con­duct inten­tion­al­ly or reck­less­ly caus­es severe emo­tion­al dis­tress to anoth­er is sub­ject to lia­bil­i­ty for such emo­tion­al dis­tress, and if bod­i­ly harm to the oth­er results from it, for bod­i­ly harm.

The con­duct must be

so out­ra­geous in char­ac­ter, and so extreme in degree, as to go beyond all pos­si­ble bounds of decen­cy, and to be regard­ed as atro­cious and utter­ly intol­er­a­ble in a civ­i­lized community.

Wow, that sounds tough to sat­is­fy, espe­cial­ly in the work­place, and there are rel­a­tive­ly few cas­es in which plain­tiffs have suc­ceed­ed on that the­o­ry. But keep in mind that the issue for pur­pos­es of the Supreme Court’s deci­sion was whether Ms. Roth’s plead­ings were suf­fi­cient to sup­port this claim. The tri­al court had focused on the fact that there was no alle­ga­tion that the employ­er had ter­mi­nat­ed Ms. Roth in an “out­ra­geous manner”.

But the West Vir­ginia Supreme Court dis­agreed, and said that the fol­low­ing alle­ga­tions in the com­plaint were sufficient:

• 1. Mr. DeFe­lice called Ms. Roth and asked her to come to the office, and when she com­plied with that request she was placed “by her employ­er into unwant­ed­ly observ­ing Mr. DeFe­lice Ms. Kel­ly in a sex­u­al­ly com­pro­mis­ing position.”
• 2. Because of that obser­va­tion, Mr. DeFe­lice “threat­ened” Ms. Roth “not only with ter­mi­na­tion from her employ­ment, but with pos­si­bly los­ing her res­pi­ra­to­ry ther­a­pist license, which was her means of mak­ing a living.”
• 3. Ms. Roth was then ter­mi­nat­ed “with­in the same week”, alleged­ly because Mr. DeFe­lice “did not like how she dressed or the style and col­or of her hair.” (The Court thought it was sig­nif­i­cant that there was a close prox­im­i­ty in time for these allegations.)

Again, this is not the same thing as say­ing these alle­ga­tions alone, with­out any oth­er evi­dence, would sat­is­fy the require­ments for inten­tion­al inflic­tion of emo­tion­al dis­tress at tri­al; but it is to say that, with these alle­ga­tions in the com­plaint, the Court could not con­clude “beyond doubt” that Mr. Roth “can prove no set of facts in sup­port of [her] claim which would enti­tle [her] to relief.” Thus, the WV Supreme Court reversed the tri­al court’s deci­sion to dis­miss the claim for inten­tion­al inflic­tion of emo­tion­al dis­tress.