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No. 34805 - Tricia Roth and Brian Roth v. DeFelicecare Inc. and Leslie DeFelice
Ketchum, J., dissenting:
I respectfully dissent from the majority opinion because the plaintiffs'
complaint does not state a cause of action.
The complaint is very detailed and alleges facts that completely lay bare the
plaintiffs' grievance. In fact, even though the majority opinion makes clear that a plaintiff
is not required to set out facts upon which a claim is based, I would go so far as to say the
complaint is so well drafted that it meets the heightened pleading requirements in federal
courts outlined in Bell Atlantic Corp. v. Twombly
, 550 U.S. 544 (2007) and Ashcroft v. Iqbal
556 U.S. ___ (No. 07-1015, May 18, 2009). (See footnote 1)
But the elegantly drafted facts alleged in the complaint support the trial judge's
dismissal of the complaint. The complaint has 7 counts. In essence, these counts complain
of (1) hostile work environment because of sexual discrimination, (2) wrongful or retaliatory
discharge and (3) intentional inflection of emotional distress. While the complaint paints
defendant Leslie DeFelice as a pretty despicable actor, I do not see how his actions rise to
an actionable level.
The detailed facts in the complaint do not allege
that the defendant's firing of
plaintiff Tricia Roth was because of her gender, or because she was a victim of or threatened
to report unwanted sexual advances, or because she engaged in a protected activity, or that
the defendant's misconduct violated a state law, or that the plaintiff's discharge itself took
place in an intolerable or outrageous manner. The complaint merely alleges that she
stumbled upon her boss and another employee in a sexually compromising position in the
office, and then later got fired. While her discovery of this sexual escapade was unfortunate,
it does not prohibit her later termination as an at-will employee, no matter how ridiculous Mr.
DeFelice's stated reasons for her termination were. Our laws prohibiting gender
discrimination, sexual harassment, retaliatory discharge and outrage are not a general civility
Accordingly, I respectfully dissent.
Because of the problems created by strike suits and the high cost of frivolous
litigation, the Supreme Court tightened the pleading standards in federal courts. Thus, in Iqbal, the Court stated that '[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.' Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009), quoting Iqbal, 556 U.S. at
___ (129 S.Ct. at 1949), quoting Twombly, 550 U.S. at 570.