Opinion
No. CIV 04-364 LFG/ACT.
July 14, 2004
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S PRIMA FACIE TORT CLAIM
THIS MATTER comes before the Court on Defendant's Motion to Dismiss Count IV, Prima Facie Tort of Plaintiff's Complaint [Doc. 4], filed herein on May 18, 2004. Plaintiff filed a Response on May 27, 2004, and Defendant filed a Reply on June 29 and an Amended Reply on July 7, 2004.
Defendant's two Replies were filed beyond the period prescribed in the Local Rules (D.N.M.LR-Civ. 7.1(b)). However, the Court notes Defendant's statement that it never received Plaintiff's Response and the Court will, in its discretion, consider Defendant's Amended Reply in spite of its late filing. The motion is now fully briefed. For the reasons given below, Defendant's motion will be granted.
Standards for Motion to Dismiss
Defendant brings this motion under Fed.R.Civ.P. 12(b)(6), seeking dismissal of Plaintiff's prima facie tort claim for failure to state a claim upon which relief can be granted. In considering a motion to dismiss for failure to state a claim, a court accepts as true all allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Swanson v. Bixler, 750 F. 2d 810, 813 (10th Cir. 1984). All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true, all reasonable inferences must be indulged in favor of the plaintiff, and the pleadings must be liberally construed. Id. The court will not grant a motion to dismiss unless it appears beyond doubt that the plaintiff can prove no set of facts supporting the claim that would entitle plaintiff to relief.Chavez v. City of Santa Fe Housing Authority, 606 F.2d 282 (10th Cir. 1979).
Factual and Procedural Background
Plaintiff Robert Rentschler brings this diversity action against his former employer, alleging four causes of action under state law: Count I, breach of contract; Count II, breach of implied covenant of good faith and fair dealing; Count III, retaliatory discharge; and Count IV, prima facie tort. Defendant's motion to dismiss is directed at Count IV.
In his complaint, Plaintiff alleges as follows:
He was employed as a craftsman for Defendant at its National Solar Observatory facility in Sunspot, New Mexico, from September 1977 until his termination on April 1, 2002. He also served for some of this time as chairman of the Observatory's Safety Committee, a position which required him to find, correct and inform management of safety problems at the facility. (Complaint, at ¶ 4-6).
At numerous times during his employment, Plaintiff brought several serious safety violations to the attention of Defendant, but these violations were repeatedly ignored by management and Plaintiff was discouraged from following appropriate procedures. He was demoted and endured continuing harassment because of his adherence to safety rules. This harassment consisted of: a fellow employee's deliberate sabotage, directed at Plaintiff, of a water line and boiler, which would have resulted in an explosion had Plaintiff not discovered it in time (Complaint, ¶ 7); Defendant's refusal to allow Plaintiff to repair 40 or more improperly installed gas lines and management's refusal to allow discussion of this problem at a meeting of the safety committee (Complaint, ¶¶ 10-11); vandalism of Plaintiff's office at least 8-10 times (Complaint, ¶ 13); the refusal of Defendant to take any action when Plaintiff complained of physical threats made by a coworker on at least three occasions (Complaint, ¶ 13); and Plaintiff's termination and consequent loss of health insurance benefits, in retaliation for raising concerns about safety issues and for complaining about the workplace harassment (Complaint ¶¶ 15-22).
Under each of the four counts in his complaint, Plaintiff alleges that, as the result of Defendant's actions or inactions, he has suffered damages including loss of wages and earning capacity, loss of employment advancement and opportunities, retirement benefits, vacation and sick leave, fringe benefits, insurance, bonuses, and other employee benefits. He also alleges under each count that Defendant's actions were wilful, malicious and done in bad faith and with the intent to cause Plaintiff to fail in performance of his job duties, thus leading to his termination. (Complaint ¶¶ 29-30, 35-36, 41-42, 47-48). He seeks compensatory and punitive damages. (Id., and Prayer for Relief).
Discussion
Defendant argues that Plaintiff's Count IV must be dismissed because under New Mexico law, prima facie tort is not available as a cause of action in employment termination cases.
A cause of action in prima facie tort was recognized in New Mexico in 1990. Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (1990). This cause of action is intended to provide redress for intentionally inflicted injuries which do not come within other traditional categories of tort liability. The cause of action is not intended to provide a remedy in tort for every intentionally caused harm; rather, the defendant's activity is to be balanced against its justification and the severity of the injury. Id., 109 N.M. at 394-95. The New Mexico Supreme Court in Schmitz established the following elements of the claim: (1) an intentional, lawful act by defendant; (2) an intent to injure the plaintiff; (3) injury to the plaintiff; and (4) the absence of sufficient justification for the defendant's acts. Id., 109 N.M. at 394.
Defendant argues that the cause of action for prima facie tort is inconsistent with New Mexico's "at-will" employment doctrine, and it is therefore unavailable in a case alleging wrongful termination in employment. Under the at-will doctrine, an employer may terminate an employee for any reason or no reason at all, in the absence of an express contractual provision stating otherwise or unless the discharge is for a legally forbidden reason such as racial discrimination. Garrity v. Overland Sheepskin Co. of Taos, 121 N.M. 710, 917 P.2d 1382 (1996). Therefore, Defendant argues, Plaintiff cannot establish the third element of prima facie tort because the requisite injury must be to a "legally protected interest," and in New Mexico Plaintiff has no legally protected interest in continued employment or in termination only for just cause.
Federal courts sitting in New Mexico have interpreted state law in just this manner; that is, they have held that prima facie tort is not a valid cause of action in a case alleging wrongful termination from employment, because recognition of the tort in this context would completely undermine the "at-will" doctrine.Hill v. Cray Research, Inc., 864 F. Supp. 1070 (D.N.M. 1991) (Burciaga, J.); Yeitrakis v. Schering-Plough Corp., 804 F. Supp. 238 (D.N.M. 1992) (Burciaga, J.); EEOC v. MTS Corp., 937 F. Supp. 1503, 1516 (D.N.M. 1996) (Hansen, J.); Gioia v. Pinkerton's, Inc., 194 F. Supp. 2d 1207, 1222-23 (D.N.M. 2002) (Black, J.); see also, Ewing v. State Farm Mut. Auto. Ins. Co., 6 F. Supp. 2d 1281, 1291 (D.N.M. 1998) (Kelly, J.) ("Although prima facie tort can occur in a workplace setting . . . it is unlikely that it was meant to interfere with a company's prerogative to select its employees . . ."). In an unpublished case, the Tenth Circuit also held that "New Mexico law does not recognize a claim for prima facie tort in employment-at-will situations," specifically citing Hill, Yeitrakis, and Ewing. Cordova v. PNM Elec. Gas Servs., 72 Fed. Appx. 789, 793 (10th Cir. July 31, 2003).
The thrust of New Mexico law is along the same lines. InSchmitz v. Smentowski, supra, the seminal New Mexico case on prima facie tort, the state supreme court specifically adopted the Missouri court's approach to the doctrine, finding it "analytically sound," and cited with approval a Missouri case holding that prima facie tort cannot be used to avoid the employment-at-will doctrine. Schmitz, 109 N.M. at 395, 398.
This Court finds the reasoning of these cases persuasive. Whatever one may think of the harsh at-will doctrine, it is the law in New Mexico and thus, to the extent Plaintiff alleges wrongful termination, he cannot bring his claim under the theory of prima facie tort.
Plaintiff argues, however, that his complaint does not deal solely with wrongful termination, but also alleges "workplace conduct" which, he says, gives rise to a prima facie tort claim, citing Beavers v. Johnson Controls World Servs., Inc., 120 N.M. 343, 901 P.2d 761 (Ct.App. 1995); and Silverman v. Progressive Broadcasting, Inc., 125 N.M. 500, 964 P.2d 61 (Ct.App. 1998). Plaintiff points to allegations in his complaint that, because of his superior knowledge of and insistence on following procedures, he became the object of harassment by Defendant and its employees, including vandalism of his office, physical threats by coworkers, and failure of management to investigate acts of sabotage or to take steps to stop the alleged harassment.
The court finds that neither of the two cases cited by Plaintiff supports his argument. The New Mexico Court of Appeals held in Beavers, supra, that the prima facie tort doctrine encompassed Plaintiff's allegations that her supervisor, knowing that she was experiencing work-related stress, nevertheless repeatedly ridiculed, demeaned and belittled her in front of other employees and thereby created a hostile work environment leading to significant mental distress that required hospitalization.
In Silverman, supra, the plaintiff asserted a prima facie tort claim based on post-termination conduct of her former employer, who allegedly discriminated against her on the basis of gender and sent a defamatory letter to her new employer, meant to harm her in her new job. The state court of appeals reversed summary judgment on one of the plaintiff's prima facie tort claims, finding that the post-employment letter, which referred to plaintiff as "a liar, a gossip, and out of control," would support a jury finding that prima facie tort had been committed. However, the Silverman court also affirmed summary judgment on plaintiff's other claims of prima facie tort, including allegations of sex discrimination. With regard to these claims, the court pointed out that, "if what Plaintiff alleges is true . . . then Defendants' conduct violated Title VII and would not constitute a lawful act necessary for a prima facie tort . . . Thus, the trial court properly dismissed the prima facie tort claim. . . ." Silverman, 964 P.2d at 71.
In the present case, the thrust of Plaintiff's complaint is that he was wrongfully terminated in retaliation for his strict adherence to safety rules. He does not, in his complaint, allege any additional emotional distress damages based on the alleged acts of harassment, such as those alleged in Beavers; rather, all of his damage elements are based on the loss of wages and benefits due to termination. His argument that the prima facie tort claim is directed at workplace conduct occurring prior to his alleged wrongful termination is therefore not borne out by the language of the complaint and appears to have been added as a makeweight.
In addition, Plaintiff faces the same problem as theSilverman plaintiff; that is, he fails to allege lawful conduct done maliciously, which is a necessary element of the prima facie tort claim. As was true in Silverman, if what plaintiff says in his complaint is true — that is, that Defendant breached a contract, breached its duty of good faith and fair dealing, and/or allowed acts of harassment and eventually discharged Plaintiff in retaliation for "doing his job and violating both Federal and Administrative safety procedures, rules and regulations" (Complaint, ¶ 39) — then Defendant's conduct was not "lawful." And the Court must accept these allegations as true, in the context of a motion to dismiss.
Therefore, although Plaintiff may have a claim under one or all of the first three counts, he does not have a claim for prima facie tort. As the New Mexico Supreme Court held in Schmitz, supra, the basic theory of the cause of action for prima facie tort is that "the underlying malicious motive of a defendant's action, done without justification, makes an otherwise lawful act . . . tortious." Id., 109 N.M. at 396 (emphasis added). See also, Portales Nat'l Bank v. Ribble, 134 N.M. 238, 75 P.3d 838, 840 (Ct.App. 2003): "Prima facie tort provides a remedy for persons harmed by intentional and malicious acts that are otherwise lawful, but fall outside of the rigid traditional intentional tort categories." The cause of action is not intended to provide an additional or duplicative remedy where one already exists.
Conclusion
Plaintiff's claim for prima facie tort based on his allegedly wrongful termination must be dismissed, as it is inconsistent with the "at-will" employment doctrine currently in force in New Mexico. And even if the Court were to conclude that Plaintiff adequately pled "workplace conduct" as the basis for his prima facie tort claim, this too would fail since Plaintiff does not allege that Defendant was engaged in "lawful" conduct, a necessary element of the cause of action. The unlawful conduct alleged, if proved, can be redressed under the other counts of the complaint, and the Court applies the New Mexico Supreme Court's admonition that "prima facie tort should not be used to evade stringent requirements of other established doctrines of law." Schmitz, 109 N.M. at 398.
Having found that Plaintiff failed to allege all necessary elements of the cause of action for prima facie tort, the Court does not reach the balancing test as set forth in Schmitz.