Opinion
No. 05-CV-3514-PHX-FJM.
January 20, 2006
ORDER
The court has before it defendant's motion to dismiss plaintiff's complaint (doc. 4) and plaintiff's response (doc. 7). Concurrent with her response, plaintiff filed her first amended complaint (doc. 6). The court also has before it defendant's motion to dismiss plaintiff's first amended complaint and motion to strike (doc. 10), plaintiff's response (doc. 11), and defendant's reply (doc. 12). As the original complaint is no longer effective, we deny as moot defendant's motion to dismiss plaintiff's complaint (doc. 4).
I
Plaintiff Forsman alleges that she was employed by defendant Chicago Title Insurance Company ("Chicago Title"); that on at least three separate occasions, she was physically and verbally sexually harassed by Ted Michaud, a significant client at Chicago Title; that she reported the events to her supervisor but the supervisor did not take action; that a co-worker Kathy Hickman retaliated against Forsman after learning of the reports; that Forsman asked her supervisor to speak with Hickman about the retaliation; and that Forsman was discharged that day. First Amended Complaint at 2-3. Forsman further alleges that approximately two weeks later, Chicago Title offered to re-employ her at a different Chicago Title location; that she accepted; but that the working environment was so intolerable that she was forced to leave.Id. at 3, 5. Accordingly, Forsman claims that Chicago Title is liable for wrongful termination pursuant to the Employment Protection Act ("EPA"), A.R.S. § 23-1501(3)(b). Id. at 5-6. Forsman also claims that Chicago Title is liable for the intentional infliction of emotional distress. Id. at 6-7.
II
The EPA was intended to limit the common law avenues of relief for claims for wrongful discharge. Cronin v. Sheldon, 195 Ariz. 531, 535, 991 P.2d 231, 235 (1999). Accordingly, A.R.S. § 23-1501(3)(b) states that "[a]n employee has a claim against an employer for termination of employment" if the "employer has terminated the employment relationship of an employee in violation of a statute of this state," such as the Arizona Civil Rights Act ("ACRA"). To the extent that the EPA permits a plaintiff to raise a common law tort claim based upon the public policy arising out of the ACRA, that claim is limited by all the restrictions contained in the ACRA. A.R.S. § 23-1501(3)(b). The EPA therefore prevents a plaintiff from evading the explicit restrictions of the ACRA — which include the requirement to produce a right-to-sue notice, A.R.S. § 41-1481 (D) — by raising a common law tort claim for wrongful discharge based upon the public policies arising out of the ACRA. Cronin, 195 Ariz. at 531, 991 P.2d at 235.
Forsman seeks to raise a claim under the ACRA, or Title VII of the Civil Rights Act of 1964, but she has not yet received the requisite right-to-sue notice from the Equal Employment Opportunity Commission ("EEOC"). Response to Motion to Dismiss Complaint at 3-4. Accordingly, Forsman is currently barred from raising either an ACRA or Title VII claim. Concerned that she would be permanently barred by the expiration of the one-year statute of limitations of the ACRA, A.R.S. § 41-1481(D), Forsman filed suit claiming a violation of the EPA, A.R.S. § 23-1501(3)(b), with her underlying substantive claim based upon a violation of the ACRA.Response to Motion to Dismiss Complaint at 3-4. However, because Forsman is currently barred from raising an ACRA claim, she is similarly barred from raising this EPA claim. Accordingly, we grant Chicago Title's motion to dismiss plaintiff's EPA claim (doc. 10).
Forsman alerts us that she filed a charge with the EEOC on October 19, 2004; that the EEOC is currently investigating the charge; and that she intends to amend her complaint to include a federal employment discrimination claim and/or ACRA claim upon receipt of the right-to-sue notice from the EEOC. Response to Motion to Dismiss Complaint at 3-4; Response to Motion to Dismiss Amended Complaint at 5. Over 180 days have passed since Forsman filed her charge with the EEOC, and accordingly, she may request a right-to-sue notice from the EEOC. 29 C.F.R. § 1601.28(a)(1); 3 Lex. K. Larson, Labor and Employment Law § 83.02 (2005). Upon receipt of the right-to-sue notice, Forsman may, on a timely basis, amend the first amended complaint pursuant to Rule 15(a), Fed.R.Civ.P, to include the additional claims.
III A
Forsman claims that Chicago Title is liable for the intentional infliction of emotional distress. "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." Restatement (Second) of Torts § 46 (1965);accord Ford v. Revlon, 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987). Chicago Title moves to dismiss Forsman's claim, arguing that the allegations are insufficient as a matter of law to justify a finding that its conduct was extreme and outrageous.Motion to Dismiss the First Amended Complaint at 4-8. We disagree.
A defendant may be liable for the intentional infliction of emotional distress:
only where the conduct has been 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"Restatement (second) of Torts § 46 cmt. d. A claim for the intentional infliction of emotional distress is sufficient as a matter of law if the court determines that "reasonable [people] may differ" as to whether the conduct was sufficiently outrageous. Lucchesi v. Stimmell, 149 Ariz. 76, 79, 716 P.2d 1013, 1016 (1986) (quoting Restatement (Second) of Torts § 46 cmt. h).
For instance, in 1987, the Supreme Court of Arizona concluded that an employer could be found liable for the intentional infliction of emotional distress where an employee informed her employer many times that her supervisor was verbally and physically sexually assaulting her, and the employer disregarded the employee's concerns for months. Ford, 153 Ariz. at 43, 734 P.2d at 585. In contrast, in 1995, the Court of Appeals of Arizona concluded that an employer could not be liable for the intentional infliction of emotional distress, even if it failed to promote a female employee due to sex discrimination, or retaliation for the employee's previous allegation of sex discrimination. Mintz v. Bell Atlantic Systems Leasing Int'l, Inc., 183 Ariz. 550, 554, 905 P.2d 559, 563 (Ct.App. 1995).
Mintz relies in part on Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir. 1988) cert. denied, 498 U.S. 811, 111 S.Ct. 47 (1990), which states that under Pennsylvania law "it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Mintz, 183 Ariz. at 554, 905 P.2d at 563;Cox, 861 F.2d at 395. Cox continues, stating that "the only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is where an employer engaged in both sexual harassment and other retaliatory behavior against an employee." Cox, 861 F.2d at 395.
Forsman alleges that her supervisor failed to act to prevent ongoing verbal and physical sexual harassment after the supervisor was informed; that her co-worker retaliated against her after she complained of the harassment; that she complained to her supervisor about the retaliation; that she was thereafter discharged; and that she was subsequently rehired but was constructively discharged due to intolerable treatment. Forsman does not allege that she was harassed after reporting the harassment to her supervisor, but since she alleges that the supervisor failed to take any action to stop the harassment, Forsman appears to allege that the harassment ended either due to the discharge, or for some other reason.
Assuming that all of these allegations are true, as we must for purposes of the motion to dismiss, we believe that a reasonable member of this community could find Chicago Title's conduct outrageous. As in Ford, this case involves allegations of physical abuse or assault, factors not present in Mintz. In any event, a society's sense of outrage evolves with time, and therefore, while a court's presumption regarding the values of a community that existed ten or twenty years ago may be persuasive, it certainly is not dispositive.
Chicago Title argues that it cannot be liable for the conduct of Michaud — the man who allegedly harassed Forsman and who is allegedly a significant client of Chicago Title — because he was neither an employee nor agent. Motion to Dismiss at 5;First Amended Complaint at 2-3. While we agree that Chicago Title is not directly liable for Michaud's conduct under this theory of liability, we also believe that a jury could reasonably conclude that an employer acts outrageously when it takes no action to prevent a significant client from verbally and physically sexually harassing its employee. This is not a case of vicarious liability — this case involves Chicago Title's liability for its own independent conduct.
B
To commit the intentional infliction of emotional distress, the tortfeasor must act either intentionally or recklessly. Ford, 153 Ariz. at 43, 734 P.2d at 585. Forsman alleges that Chicago Title acted recklessly. First Amended Complaint at 6. A civil action is barred and workers' compensation is the sole available remedy for an injury caused by an employer acting within the scope of his employment, unless the injury is the result of "willful misconduct," which is defined as "an act done knowingly and purposely with the direct object of injuring another." A.R.S. § 23-1022(A), (B). In Gamez v. Brush Wellman, Inc., 201 Ariz. 266, 34 P.3d 375 (Ct.App. 2001), the Court of Appeals of Arizona concluded that recklessness and gross negligence are insufficient under this test; the act must be committed with the intent to cause injury. Id. at 269-71, 34 P.3d at 378-80. Chicago Title argues that because Forsman does not allege that it acted intentionally and with the direct object of injuring Forsman, Forsman's intentional infliction of emotional distress claim is preempted by the workers' compensation law. Motion to Dismiss the First Amended Complaint at 8-10.
Forsman later argues that the first amended complaint can be interpreted to include the allegation that Chicago Title acted intentionally. Response to Motion to Dismiss the Amended Complaint at 8. We find Forsman's argument unconvincing given her explicit allegation that Chicago Title's action was reckless. However, we need not further consider the argument because it is unnecessary to the outcome of this order.
However, Gamez appears to conflict with Ford v. Revlon, 153 Ariz. 38, 734 P.2d 580 (1987), where the Supreme Court of Arizona concluded that an intentional infliction of emotional distress claim premised on the defendant's recklessness is not preempted by the workers' compensation law. There, Ford claimed that Revlon, Ford's employer, was liable for the intentional infliction of emotional distress because Ford's supervisor sexually harassed her, and Revlon failed to act to stop the harassment after many months of complaints. Id. at 43, 734 P.2d at 585. The court concluded that "even if Revlon did not intend to cause emotional distress, Revlon's reckless disregard of [the supervisor's] conduct made it nearly certain that such emotional distress would in fact occur." Id. The court then concluded that because "the jury found [Revlon] liable for the intentional offense [of inflicting emotional distress]," the claim was not preempted by the workers' compensation statute. Id. at 44, 734 P.2d at 586. Therefore, the court must have concluded that so long as a plaintiff raises a claim for the intentional infliction of emotional distress, the claim will not be preempted by the worker's compensation law, even where liability is premised on reckless conduct. Gamez must yield to Ford. Forsman's claim is therefore not preempted by the workers' compensation law. Accordingly, Chicago Title's motion to dismiss plaintiff's intentional infliction of emotional distress claim is denied (doc. 10).
Ford bases its analysis on the interpretation of the term "accident" in A.R.S. § 23-1021(B), which identifies when an injury is compensable by workers' compensation. Ford, 153 Ariz. at 44, 734 P.2d at 586. Gamez bases its analysis on the interpretation of the term "willful" in A.R.S. § 23-1022(A), which identifies when a wrong committed is preempted by workers' compensation. Gamez, 201 Ariz. at 269-71, 34 P.3d at 378-80. At all events, both cases examine when a claim arising from misconduct is actionable.
IV
Chicago Title moves to strike paragraphs 16 through 26 from Forsman's First Amended Complaint, arguing that the allegations that relate to Michaud's sexual harassment are immaterial, impertinent, and scandalous. Motion to Dismiss at 10. We disagree. The paragraphs are material and pertinent to Forsman's claim for the intentional infliction of emotional distress because they describe the harassment which Forsman alleges that she endured, which she conveyed to her supervisor, and which her supervisor failed to take steps to remedy. Statements may be stricken as scandalous when they "unnecessarily reflect on the moral character of an individual or state anything in repulsive language that detracts from the dignity of the court." 2 James Wm. Moore et al., Moore's Federal Practice § 12.37[3]. The statements are relevant and while repulsive, are necessary to support a claim of outrage. Accordingly, Chicago Title's motion to strike is denied (doc. 10).
V
IT IS ORDERED DENYING as moot defendant's motion to dismiss plaintiff's complaint (doc. 4).
IT IS FURTHER ORDERED GRANTING defendant's motion to dismiss plaintiff's claim for a violation of A.R.S. § 23-1501(3)(b) (doc. 10), with leave to amend to assert a claim under the ACRA or Title VII.
IT IS FURTHER ORDERED DENYING defendant's motion to dismiss plaintiff's claim for intentional infliction of emotional distress (doc. 10). IT IS FURTHER ORDERED DENYING defendant's motion to strike (doc. 10).