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Shannon v. Verizon Wireless (VAW) LLC

United States District Court, D. Arizona

December 2, 2015

David Shannon, Plaintiff,
v.
Verizon Wireless (VAW) LLC, et al., Defendants.

ORDER AND OPINION [RE: MOTION AT DOCKET 16]

JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE

I. MOTION PRESENTED

At docket 16 defendant Verizon Wireless (VAW) LLC (“Verizon”) moves pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order dismissing the second amended complaint (“SAC”) of plaintiff David Shannon (“Shannon”). Shannon responds at docket 18; Verizon replies at docket 19. Oral argument was not requested and would not assist the court.

II. BACKGROUND

Verizon hired Shannon as a Retail Sales Representative in 2000. According to the SAC, he had worked his way up to the position of Strategic Account Manager in the Business Channel by 2012.[1] Then, in 2013, several Verizon employees induced him to work for Verizon’s newly-created Health Care Team with promises about the work he would have on that team. The promises did not pan out, and in early 2014 Verizon issued Shannon two written “developmental warnings” related to his job performance.

In April 2014 Shannon reported to his supervisor “that there were sexual relationships between supervisors and subordinates and that the same was improper and against Verizon policy.”[2] Verizon fired Shannon the next day.

Shannon filed suit against Verizon in the Maricopa County Superior Court.[3]Verizon removed the action to this court, invoking the court’s diversity jurisdiction. At docket 10 Shannon filed the SAC, which includes five causes of action against Verizon: (1) wrongful termination breach of contract; (2) bad faith; (3) intentional misrepresentation; (4) negligent misrepresentation; and (5) retaliatory termination. Verizon seeks dismissal of the SAC in its entirety.

III. STANDARD OF REVIEW

Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s claims. In reviewing such a motion, “[a]ll allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party.”[4] To be assumed true, the allegations “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”[5] Dismissal for failure to state a claim can be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”[6] “Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss.”[7]

To avoid dismissal, a plaintiff must plead facts sufficient to “state a claim to relief that is plausible on its face.”[8] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[9] “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”[10] “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”[11] “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content, ’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”[12]

IV. DISCUSSION

A. Counts I, II, & V - Wrongful Termination, Bad Faith, and Retaliatory Termination

Arizona Revised Statute § 23-1501 makes employment relationships severable at will “unless both the employee and the employer have signed a written contract to the contrary setting forth that the employment relationship shall remain in effect for a specified duration of time or otherwise expressly restricting the right of either party to terminate the employment relationship.”[13] The written contract may be set forth in an “employment handbook or manual or any similar document distributed to the employee, if that document expresses the intent that it is a contract of employment.”[14]

Verizon argues that Shannon’s wrongful termination, bad faith, and retaliatory termination claims each fail because the SAC fails to plausibly allege that Shannon had a contract of employment. Verizon first argues that the SAC fails to allege “any facts even remotely suggesting that [Shannon] entered into a” written employment contract.[15]This is not so. The SAC alleges that Verizon breached a written employment contract with Shannon set out in Verizon’s “employment handbook or manual or similar documents, ...


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