Opinion
No. C00-82MJM.
December 1, 2000.
OPINION AND ORDER
Plaintiffs, Sherri M. Speed and her husband Ryan Speed, brought the present action against Defendants, Northwest Airline, Inc. ("Northwest Airlines"), Joleen Stadsklev ("Stadsklev"), and Ray Browning ("Browning"). (Doc. #1) Plaintiffs' fourteen count complaint includes claims of sexual harassment, intentional infliction of emotional distress, invasion of privacy, defamation and assault. In the present motion, Defendants move for the dismissal of all of Plaintiffs' claims. (Doc. #12 16) Although Defendants Northwest and Stadsklev filed a separate motion to dismiss from that of Defendant Browning, each Defendant poses largely the same challenges to Plaintiffs' complaint. The Court will therefore address Defendants' motions concomitantly, highlighting, where necessary, challenges unique to a particular defendant.
Ryan Speed also brought a claim for loss of consortium, Count XIV, premised solely on the claims brought by his wife Sherri Speed. Because this claim does not state a cause of action, but instead is a request for relief, his success is contingent on the success of Sherri's claims. For this reason, the Court will hereinafter refer only to Sherri Speed in discussing the viability of a particular claim; thus, when the Court refers to "Speed," it is simply referring to Sherri Speed. In the event Ryan Speed is relevant to the discussion, the Court will use his full name.
STANDARD FOR MOTION TO DISMISS
Defendants lodge a separate challenge to each of Plaintiffs' claims. However, all Defendants' challenges contend, in essence, that the factual allegations in Speed's complaint do not state a claim upon which relief could be granted. See Brief in Support of Defendants Northwest Airlines and Joleen Stadsklev's Motion to Dismiss Plaintiffs' Complaint, at pp. 6-8 10; Brief in Support of Defendant Ray Browning, Individually, Motion to Dismiss Plaintiffs' Complaint, at pp. 1-2. In analyzing a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by, Harlow v. Fitzgerald, 457 U.S. 800 (1982); see also United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir. 1989). Therefore, a court must "take the well-pleaded allegations in the complaint as true and view the complaint, and all reasonable inferences arising therefrom, in the light most favorable to the plaintiff." St. Croix Waterway Ass'n v. Meyer, 178 F.3d 515, 519 (8th Cir. 1999); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998).
In viewing the complaint in the light most favorable to the Plaintiff, this Court is cognizant that "[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him [or her] to relief." Conley, 355 U.S. at 45-46; see also Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (finding court "may dismiss only if it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations") (internal quotations omitted)); Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995); Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993). Rather, "[a] motion to dismiss should be granted 'as a practical matter . . . only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.'" Frey, 44 F.3d at 671 (internal quotations omitted); see also Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974). With these standards in mind, the Court will review the factual allegations made in Plaintiffs' complaint and then turn to Defendants' challenges to each of Plaintiffs' claims.
BACKGROUND
In her complaint, Speed alleges the following facts:
She was an employee of the United States Postal Service and worked at the Cedar Rapids Municipal Airport postal facility (hereinafter "the Airport postal facility"). (Complaint, ¶ 1.) Browning was an employee of Northwest Airlines, whose employment duties included regular visits to the Airport postal facility. (Complaint, ¶¶ 5 and 20.)
During the course of his employment with Northwest Airlines, Browning repeatedly, sexually harassed and assaulted Speed at her place of employment. (Complaint, ¶¶ 7, 10, 21, 41, 44, 54, 75, 78, 88, and 108-09.) This harassment went on for a period of approximately one and half years. (Complaint, ¶ 108) Speed notified Northwest Airlines of Browning's sexually harassing behavior and Northwest Airlines either failed or refused to eliminate the harassment. (Complaint, ¶¶ 8, 22, 55, and 89.) On or about October 1998, after repeated efforts by Speed and her employer to eliminate Browning's sexually harassing behavior, a restraining order against Browning was sought and obtained, prohibiting him from being in the Airport postal facility at any time. (Complaint, ¶¶ 9, 43, and 77.) Browning, however, continued to harass, intimidate and assault Speed in the parking lot of the Airport postal facility. (Complaint, ¶¶ 10, 44, and 78.)
After Speed complained to Northwest Airlines about Browning's continuing, sexually harassing behavior, Northwest Airlines hired Stadsklev to conduct an investigation. (Complaint, ¶¶ 11, 23, 45, 56, 67, 90, 95, and 101.) During the investigation, both Stadsklev and Browning unreasonably disclosed information of a highly personal and confidential nature to Speed's co-employees. (Complaint, ¶¶ 12, 29, 35, 37, 46, 62, 68-71, 80, 96-8, and 102-05.) According to Speed, many of the statements made during the investigation were untrue and were made in an attempt to intimidate her. (Complaint, ¶¶ 37, 70, and 104.)
Speed was awarded a right to sue letter from the Equal Employment Opportunities Commission and the Iowa Civil Rights Commission, and later brought the present action. (Complaint, ¶¶ 25, 58, and 92.)
DISCUSSION
A. Sexual Harassment, Counts II, VI, and X
Defendants argue that Speed cannot maintain a sexual harassment claim against Northwest Airlines and its agents because Northwest Airlines is not the employer of Speed as required by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e), et seq. ("Title VII). Speed concedes as much and withdraws Counts II, VI and X of her complaint. These Counts are therefore dismissed.
Defendants originally moved to dismiss the remainder of Speed's tort claims on the theory they are preempted by Title VII of the Civil Rights Act. With the Title VII claims now dismissed, Defendants' preemption argument is rendered moot.
B. Intentional Infliction of Emotional Distress, Counts I. V. and IX
Speed brings claims of intentional infliction of emotional distress against Northwest Airlines in Count I, Stadsklev individually in Count V, and Browning individually in Count IX. In order to prevail on a claim of intentional infliction of emotional distress Speed must ultimately prove: "(1) outrageous conduct by the defendants; (2) the defendants' intentional causing, or reckless disregard of the probability of causing emotional distress; (3) severe or extreme emotional distress was suffered by plaintiff; and (4) actual proximate causation of the emotional distress by defendants' outrageous conduct." VanBaale v. City of Des Moines, 550 N.W.2d 153, 156 (Iowa 1996); see also Amsden v. Grinnell Mutual Reinsurance Co., 203 N.W.2d 252, 255 (Iowa 1972).
Defendants' challenge centers around element one — the existence of outrageous conduct. Defendants contend that Speed's allegations of outrageous conduct, even when viewed in the light most favorable to her, do not rise to the level of outrageousness defined by Iowa courts, and therefore cannot sustain a claim of intentional infliction of emotional distress.
"'[I]t is for the court to determine in the first instance, as a matter of law, whether the conduct complained of may reasonably be regarded as outrageous.'" Cutler v. Klass, Whicher Mishne, 473 N.W.2d 178, 183 (Iowa 1991) (quoting M.H. By and Through Callahan v. State, 385 N.W.2d 533, 540 (Iowa 1986)); see also Mills v. Guthrie County Rural Elec., 454 N.W.2d 846, 849 (Iowa 1990). For conduct to be outrageous, it must be "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." Cutler, 473 N.W.2d at 183 (quoting Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 636 (Iowa 1990); see also Engstrom v. State, 461 N.W.2d 309, 320 (Iowa 1990) (quoting Vinson v. Linn-Mar Community School Dist., 360 N.W.2d 108, 118 (Iowa 1984)); see also Harsha v. State Sav. Bank, 346 N.W.2d 791, 801 (Iowa 1984) (quoting Restatement (Second) of Torts § 46 Comment d (1965)). In Northrup v. Farmland Industries, the Iowa Supreme Court relied on the Restatement (Second) of Torts to ascertain the level of "egregiousness required to elevate (or downgrade) mere bad conduct to the level of outrageousness." 372 N.W.2d 193 (Iowa 1985). The Northrup Court wrote:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found 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"
372 N.W.2d at 198 (quoting Restatement (Second) of Torts § 46 (1965)); see also VanBaale, 550 N.W.2d at 156-57 (same as above).
In reviewing the Iowa case law, it is evident that a showing of outrageousness is difficult to make. In fact, as one court in the Northern District of Iowa has observed, "[i]t is a simpler matter to discover what kinds of behavior the Iowa Supreme Court has held insufficiently outrageous to sustain the tort than it is to find out what kind of behavior is sufficiently egregious." Chester v. Northwest Iowa Youth Emergency Serv. Ctr, 869 F. Supp. 700, 710-11 (N.D. Iowa 1994) (citing long list of Iowa cases where courts found alleged conduct was not sufficiently outrageous, including e.g., Cutler, 473 N.W.2d at 183 (letter advising partner who had suffered from mental illness that he could not return to law practice without further review by partners was not extremely outrageous and did not generate genuine issue of material fact); Engstrom, 461 N.W.2d at 320 (negligent failure to search for plaintiffs' adopted daughter's natural father before placing her in plaintiffs' home, and telling adoptive parents father was dead without verifying his death, not outrageous); Kirk v. Farm City Ins. Co., 457 N.W.2d 906, 911 (Iowa 1990) (insurance company's refusal to pay full amount of uninsured coverage not outrageous); Mills, 454 N.W.2d at 849 (rural electric cooperative's conduct in using split bolt connectors instead of compression connectors to connect grounding jumper wire to main neutral line, in failing to discover dangerous situation that such omission presented, and in conducting settlement negotiations through insurance carrier with cooperative customers who sustained fire damage not sufficiently outrageous)).
With this said, however, at the motion to dismiss stage, the issue is whether the claim of outrageousness has been sufficiently pled pursuant to Federal Rule of Civil Procedure 8 (a), thereby permitting Speed the opportunity to put forth evidence in support of this claim. "All that is required by Federal Rule of Civil Procedure 8(a) is a short and plain statement of the claim showing that the pleader is entitled to relief." Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974) (internal quotations omitted). "[A] complaint should not be dismissed merely because the court doubts that a plaintiff will prevail in the action." Id., (citing Thomason v. Hospital T. V. Rentals, 272 F.2d 263, 266 (8th Cir. 1959)). "That determination is properly made on the basis of proof and not merely on the pleadings." Id.
Indeed, this much can be gleaned from Defendants' motion; that is, although Defendants challenge Speed's claim by maintaining the allegations made in her complaint do not meet the requisite standard of outrageousness as outlined in a host of Iowa cases, Defendants rely solely on cases which analyzed alleged outrageous conduct at the summary judgment stage. See Chester, 869 F. Supp. at 710 (denying summary judgment of intentional infliction of emotional distress claim because alleged facts, if believed, supported claim of outrageousness); Northrup, 372 N.W.2d at 198 (granting summary judgment on plaintiffs intentional infliction of emotional distress claim because facts in record did not support finding of outrageousness); cf, Vinson, 360 N.W.2d at 120 (granting directed verdict for defendants on plaintiffs intentional infliction of emotional distress claim because facts at trial did not support finding of outrageousness). Thus, while this Court is aware of numerous Iowa rulings where the conduct is not considered outrageous, those courts had the benefit of a post discovery record to make that determination. In fact, in Northrup, a case relied upon by Defendants, the court addressed both challenges to the plaintiffs pleadings for failure to state a claim as well as viewing the record as a whole to determine if the plaintiff could survive summary judgment. See 372 N.W.2d at 198-99. The Northrup court did ultimately grant defendant's motion for summary judgment on the plaintiffs claim of tortious infliction of emotional distress because the conduct was not sufficiently outrageous. Id. at 199. However, prior to doing so the court found the allegations were sufficient to state a claim on the pleadings. See Id. at 198.
Reviewing the complaint under the pleading requirements of Iowa Rule of Civil Procedure 69(a) the court wrote:
The petition asserted three of the four elements of tortious infliction of emotional distress: Reckless disregard of causing emotional harm, proximate cause, and damages. Although he did not expressly allege the fourth element, "outrageous conduct," we believe the petition when taken as a whole gave fair notice of the tortious interference claim and was therefore sufficient under rule 69(a).
Turning now to the facts alleged by Speed in her complaint, this Court finds Speed's allegations of outrageousness are sufficient to survive a motion to dismiss. Speed alleges that Browning, an agent of Northwest Airlines, sexually harassed and assaulted her, that she made Northwest Airlines aware of this and after its failure to remedy the problem, she was forced to get a protective order to keep him out of the Airport postal facility. Then, after Browning violated the spirit of the protective order by continuing to harass her in the parking lot of the postal facility, Northwest Airlines hired Stadsklev to investigate Speed's claims. According to the allegations in Speed's complaint, Stadsklev publicly humiliated Speed by revealing highly personal matters and untrue statements to her co-employees during an investigation ostensibly conducted to shield Speed from further harm. This Court finds these allegations sufficient to support a claim of outrageous conduct by Stadsklev and Browning individually, and as agents of Northwest Airlines. See, e.g., Blong v. Snyder, 361 N.W.2d 312, 315-17 (Iowa App. 1984) (court entered judgment notwithstanding verdict, finding supervisor's successive and groundless harassment of employee sufficient to support claim of emotional distress); see also Thompto v. Coborn's Inc., 871 F. Supp. 1097, 1125 (N.D. Iowa 1994) (finding allegations of employee who was terminated after being denied insurance benefits promised to her and who threatened to seek a lawyer to obtain those benefits were sufficient to show outrageousness at summary judgment); Chester, 869 F. Supp. at 711 (holding frequent, continuous and obscene sexual harassment sufficiently outrageous to support emotional distress claim at summary judgment). Accordingly, Defendants' motion to Dismiss Counts I, V, and IX is denied.
C. Invasion of Privacy. Counts III, VII and XI
Counts III, VII and XI of Speed's complaint allege invasion of privacy on the part of Browning and Stadsklev individually and as agents of Northwest Airlines. The tort of invasion of privacy was recognized and defined by the Iowa Supreme Court in Bremmer v. Journal-Tribune Publishing Company as invasion of "the right of an individual to be let alone, to live a life of seclusion, to be free from unwarranted publicity." 76 N.W.2d 762, 764-65 (1956). Since then the Iowa Supreme Court has adopted and applied the principles of invasion of privacy articulated in the Restatement (Second) of Torts (1977). See Anderson v. Low Rent Housing Commission of Muscatine, 304 N.W.2d 239, 248 (Iowa 1981); Howard v. Des Moines Register, 283 N.W.2d 289, 291 (Iowa 1979); and Winegard v. Larsen, 260 N.W.2d 816, 822 (Iowa 1977); see also Hanson v. Hancock County Mem. Hosp., 938 F. Supp. 1419, 1435 (N.D. Iowa 1996). Section 652A(2) of the Restatement of Torts provides:
[t]he right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or
(b) appropriation of the other's name or likeness, as stated in § 652(C); or
(c) unreasonable publicity given to the other's private life, as stated in § 652(D); or
(d) publicity that unreasonably places the other in a false light before the public, as stated in § 652(E).
Here again, Defendants argue that Speed fails to allege facts sufficient to establish a cause of action for an invasion of privacy. First Defendants take issue with Speed's apparent attempt to change her legal theory upon which to base her claim of invasion of privacy from "unreasonably publicity" in her complaint (Complaint, ¶¶ 29, 62 and 96), to "false light" or "intrusion upon seclusion" in her response brief (Plaintiffs Resistance Brief pp. 6-7). However, Speed's failure to identify one specific legal theory upon which her cause of action is premised is not fatal to her claim of an invasion of privacy. See Bramlet, 495 F.2d at 716. Indeed, "a complaint should not be dismissed merely because a plaintiffs allegations do not support the particular legal theory he [or she] advances." Id.
"Nor should a complaint be dismissed that does not state with precision all elements that give rise to a legal basis for recovery." Id. (citing Sparks v. England, 113 F.2d 579, 581-582 (8th Cir. 1940)). It is this Court's "duty to examine the complaint to determine if the allegations provide for relief on any possible legal theory." See id.; Stessman v. American Black Hawk Broadcasting Co., 416 N.W.2d 685, 686 (Iowa 1987) (citing Unertl v. Bezanson, 414 N.W.2d 321, 324 (Iowa 1987)).
Nevertheless, Defendants contend the allegations in Speed's complaint fall short of stating a prima facie case under any of the three possible legal theories for invasion of privacy — intrusion upon seclusion (§ 652(B)), unreasonable publicity (§ 652(D)), or false light (§ 652(E)). Speed's complaint alleges:
during the course of the investigation, very personal and confidential information was provided to co-employees of Plaintiff Sherri M. Speed. Said disclosures constituted unreasonable publicity given to Plaintiff Sherri M. Speed's private life.
(Complaint, ¶¶ 29, 62, and 96). Elsewhere in her complaint Speed alleges "many of the statements were untrue." (Complaint, ¶¶ 37, 70, and 104)
To recover under the intrusion upon seclusion theory of the tort, Speed must show (1) that Defendants' actions intentionally interfered with her interest in solitude or seclusion, either as to her person or her private affairs or concerns, and (2) this interference would be highly offensive to a reasonable person. See Restatement § 652B Comment a; accord Winegard, 260 N.W.2d at 822; see also Stessman, 416 N.W.2d at 687 (holding that first plaintiff must show defendant has invaded upon a seclusion that plaintiff "has thrown about [his or her] person or affairs" and such an "intrusion must be one that would be highly offensive to a reasonable person."(internal quotations omitted0) Unlike categories (c) and (d) of the tort for invasion of privacy which require publicity or publication of some sort, category (a), intrusion upon seclusion does not require publication. See Hanson, 938 F. Supp. at 1436 (citing Lamberto v. Bown, 326 N.W.2d 305, 309 (Iowa 1982)); Winegard, 260 N.W.2d at 822; Restatement (Second) of Torts § 652B, Comment a.)
Comments to the Restatement provide further clarification for this theory underlying the tort of invasion of privacy. The Comments states in relevant part:
b. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, . . . [or] It may be by some other form of investigation or examination into his private concerns, as by opening his private mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability.
* * *
c. The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that plaintiff has thrown about his person or affairs
* * *
d. There is likewise no liability unless the interference with the plaintiffs seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object. Thus there is no liability for knocking at the plaintiffs door, or calling him to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded. . . .
Restatement (Second) of Torts § 652B, Comment a, b and c.
Speed's allegations are, in essence, that Stadsklev and Browning, under the auspices of conducting an investigation for Northwest Airlines, revealed information about her personal affairs, some of it false, to her co-employees, in an effort to intimidate her. As to the second element of the claim, Speed has sufficiently pled facts that Defendants' disclosure of her private affairs to those with whom she worked could be considered "highly offensive to a reasonable person." See, e.g, Stessman, 416 N.W.2d at 687-88 (finding plaintiffs allegations that defendant filmed her in a restaurant against her will and broadcast film on local television station sufficiently stated facts that were "highly offensive to a reasonable person").
With regard to the first element, however, Speed is not explicit about whether the investigation impermissibly intruded into personal affairs she attempted to seclude. See Restatement (Second) of Torts § 652B, Comment b (stating plaintiff must show that defendant "invaded a private seclusion that plaintiff has thrown about his person or affairs" and it is "[t]he intrusion itself [that] makes the defendant subject to liability"). Nevertheless, when viewing the complaint in the light most favorable to Speed, as the Court must do at this stage, it seems evident that, to the extent Speed did divulge information to Stadsklev about her personal life in order for Stadsklev to carry out an investigation, Speed had a reasonable expectation that the information would be kept private from her co-employees and particularly from the person whom she alleged sexually harassed her. See Hanson, 938 F. Supp. at 1436 (finding allegations that defendant "gave 'publicity' to the matters on which [plaintiff] had requested absolute confidentiality, because [defendant] 'made known' to employees of the Hospital that [plaintiff] was staying in the Hospital, and, as a consequence of that 'publicity,' the employees sent [plaintiff] flowers" was sufficient to meet first element of intrusion upon seclusion but not second). In other words, even assuming Stadsklev and Browning legitimately obtained information about Speed's personal affairs when carrying out an investigation into alleged sexual harassment as Defendants attest, one can equally assume Speed continued to have an interest in those affairs remaining secluded, and Stadsklev and Browning's divulging of that information to her co-employees could be considered an invasion upon a seclusion Speed "has thrown about [her] person or affairs." For these reasons, the Court finds Speed sufficiently stated a claim of intrusion upon seclusion.
The Court is also aware that the intrusion into Speed's affairs must be a substantial one and, again, Speed does not specifically allege to what extent Defendants intruded into her personal affairs. However, the Court is not inclined to dismiss Speed's claim based on uncertainty of the level of intrusion. See Warford v. Des Moines Metro. Transit Auth., 381 N.W.2d 622, 623 (Iowa 1986) (holding at pleading stage, pleading of "ultimate facts" is clearly not required). Speed's allegations that Stadsklev and Browning invaded her privacy with the intent to intimidate her is sufficient to state substantial intrusion.
The Court notes moreover, that other jurisdictions, which have recognized the tort of invasion of privacy for intrusion upon seclusion as outlined by the Restatement Second, have upheld claims based on facts similar to those in the present case. See, e.g., Johnson v. Kmart Corp., 723 N.E.2d 1192, 1196-97 (III App. 2000) (finding "[p]laintiffs had a reasonable expectation that their conversations with 'coworkers' would remain private, at least to the extent that intimate life details would not be published to their employer"); Goosen v. Walker, 714 So.2d 1149, 1150 (Fl.App. 1998) (finding "[c]onduct that amounts to a persistent course of hounding, harassment and unreasonable surveillance, even if conducted in a public or semi-public place, may nevertheless rise to the level of invasion of privacy based on intrusion upon seclusion."); and Doe v. High Tech Inst., 972 P.2d 1060, 1068 (Co. App. 1998) (stating "[a]lthough intrusion upon seclusion clearly encompasses an intrusion upon a physical space held in seclusion by a person, the element of seclusion also encompasses intrusions into a person's private concerns based upon a reasonable expectation of privacy in that area").
Because Speed's claim of invasion of privacy survives a motion to dismiss under the intrusion upon seclusion theory of the tort, the Court need not analyze the facts under the remaining two legal theories. Defendants' motion to dismiss Counts III, VII and XI is denied. D. Defamation, Counts IV, VIII and XII
Finally, Defendants seek to dismiss Speed's claims of defamation, Counts IV, VIII, and XII of her complaint, for failure to state a claim upon which relief can be granted. "Defamation involves the publication of written or oral statements which tend to injure a person's reputation and good name." Kerndt v. Rolling Hills National Bank, 558 N.W.2d 410, 418 (Iowa 1997) (citing Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994)); see also Taggart v. Drake Univ., 549 N.W.2d 796, 802 (Iowa 1996) (stating defamation "consists of twin torts of libel and slander — the former being written and the latter being oral"). Typically, a plaintiff alleging defamation must prove that the statements at issue were made with malice, were false, and caused damage. See Kerndt, 558 N.W.2d at 418 (citing Jenkins v. Wal-Mart Stores, Inc., 910 F. Supp. 1399, 1425 (N.D. Iowa 1995)); see also Taggart, 549 N.W.2d at 802 (stating "[t]o establish a prima facie case in any defamatory action, a plaintiff must show the defendant (1) published a statement that was (2) defamatory (3) of and concerning the plaintiff'). However, some statements are presumed, as a matter of law, to have a defamatory effect, even without a showing by the plaintiff of malice, falsity, or damage. See Jenkins, 910 F. Supp. at 1425-26; Lara, 512 N.W.2d at 785. Such statements are considered defamatory per se. See Lara, 512 N.W.2d at 785 (stating "[s]tatements which are actionable without proof of malice, falsity, or special harm fall within the category of slander "per se.'") This category includes defamatory statements affecting a person in his or her business, trade, profession, or office, as well as attacks on a person's integrity and moral character. See Kerndt, 558 N.W.2d at 418; Lara, 512 N.W.2d at 785; Vinson, 360 N.W.2d at 115-16 (stating "[a]n attack on the integrity and moral character of a party is [slanderous] per se").
Reviewing the facts in the present case, this Court finds Speed has sufficiently stated a claim of defamation. Speed alleges that: (1) Defendants published statements by divulging her personal affairs to her co-employees; (2) those statements were false; (3) they were made with malice in that Defendants' intent was to inhibit her from pursuing legal action; and (4) she suffered damage to her emotional well-being. The Court also finds that these facts support a claim of defamation per se given the alleged false statements about Speed's personal life which were made to her co-employees could be seen as an attack on her personal character. See Lara, 512 N.W.2d at 785-86 (holding "remark [which] reflected on [plaintiffs] character or fitness as an employee . . . could also constitute slander per se" and "[t]he imputation of substance abuse clearly reflects on [plaintiffs] capacity or fitness to perform . . . [her employment] duties").
Defendants' second line of attack is that of qualified privilege. Defendants contend that whatever statements may have been made, they were made in the course of a sexual harassment investigation and are therefore privileged. In order for Defendants to prevail on this defense, the alleged communications must be "(1) in good faith, (2) concerning a subject matter in which the speaker has an interest, right, duty, or obligation, and (3) to a listener who has a corresponding interest, right, duty, or obligation in the subject matter of the communication." Taggart, 549 N.W.2d at 803 (citing Brown v. First Nat'l Bank of Mason City, 193 N.W.2d 547, 552 (Iowa 1972)); see also Jenkins, 910 F. Supp. at 1427 (stating "elements of the qualified privilege defense are that: (1) the statements were made in good faith; (2) the defendant had an interest to be upheld; (3) the statements were limited in their scope to this purpose; (4) the statements were made on a proper occasion; and (5) publication was in a proper manner and to proper parties only.")
Speed contends Defendants have yet to file an answer to her complaint, and therefore have not pled the affirmative defense of qualified privilege. Speed is correct that "qualified privilege is an affirmative defense that must be pleaded and proved." Vinson, 360 N.W.2d at 116-17. Defendants however, cite Hafley v. Lohman, 90 F.3d 264 (8th Cir. 1996) cert. denied, 519 U.S. 1149 (1997), for the proposition that they are entitled to the full benefit of their affirmative defense at a motion to dismiss stage. In Hafley the court noted "that 'qualified immunity is an affirmative defense,' and 'it will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.'" Id. (quoting Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir. 1995) cert denied, 522 U.S. 1098 (1998) (emphasis added)). A qualified immunity analysis is decidedly different from that of qualified privilege which requires, in part, a factual inquiry into whether the alleged defamatory statements were done with actual malice or instead were defamatory per se. See Vinson, 360 N.W.2d at 116; see discussion infra. With these admonitions in mind, the Court will address Defendants' claim of qualified privilege on the facts alleged in the complaint. However, the Court notes that actual malice is largely a fact specific inquiry which is difficult to ascertain from a complaint alone.
Defendants' qualified privilege defense fails at the motion to dismiss stage for two reasons. First, from the present record, it is unclear whether the listeners of the communication at issue had any interest, right, duty, or obligation in the subject matter of the communication. That is, while arguably Defendants may have had a right to know about the "highly personal" affairs of Speed in order to conduct a legitimate investigation, it would be purely speculation at this point for the Court to suggest that the co-employees of Speed also had an interest in learning about her personal life and Defendant could therefore divulge it. This line of defense becomes even more problematic when one considers Defendants allegedly revealed information to Speed's co-employees who were not even employees of Northwest. Again the Court would be engaging in speculation to hypothesize circumstances under which Defendants had a right to discuss the personal affairs of someone not in their employ, to other individuals, also not in their employ.
Moreover, Speed's allegations are distinct from those in Malone v. Eaton Corp., 187 F.3d 960 (8th Cir. 1990), a case relied upon by Defendants for the proposition that they are entitled to qualified privilege. In Malone the Eighth Circuit held, on a motion for summary judgment, an employee who announced at a meeting of supervisors and subordinates the plaintiff "had been fired 'for a form of sexual harassment'" was entitled to qualified privilege. Id. at 962-63. The Malone Court explained "[t]he purpose of this meeting was to reiterate [the Defendant's] policy against supervisor-subordinate relationships, warn the other supervisors about the consequences of violating the policy, and underscore the risk of potential liability from a sexual-harassment claim. This communication was between parties sharing a common interest in the subject matter and is entitled to a qualified privilege under Nebraska law." Id. Defendants in the present action seek qualified privilege for statements made to non-employees about another individual not employed by them, simply because the statements were made in the course of an investigation. The Court declines to recognize this privilege, on these facts, at the motion to dismiss stage.
Secondly, "[q]ualified privilege applies to publications without regard to whether they are defamatory per se, but it protects only those statements made without actual malice." Taggart, 549 N.W.2d at 803 (citing Vinson, 360 N.W.2d at 116). Where there is actual malice — proof that the statement was made with malice in fact, ill-will or wrongful motive — the privilege does not apply. See Ott v. Murphy, 160 Iowa 730, 740-42 (1913); Taggart, 549 N.W.2d at 803-04 (stating "[a] finding of actual malice turns on the motive for the communication, and requires proof that the statement was made with ill will or wrongful motive"); see also Vinson, 360 N.W.2d. at 117. "Actual malice occurs when a statement is made with knowledge that it is false or with reckless disregard for its truth or falsity." Taggart, 549 N.W.2 at 804 (citing Jones v. Palmer Communications, Inc., 440 N.W.2d 884, 894 (Iowa 1989)); McCarney v. Des Moines Register Tribune Co., 239 N.W.2d 152, 156 (Iowa 1976).
Speed alleges that some of the statements made by Stadsklev and Browning were false and that they were made in an effort to intimidate her. If Speed proved statements were made about her personal life "with knowledge that [they were] false or with reckless disregard for [their] truth or falsity" Defendants would not be entitled to qualified privilege. Speed "may indeed fail to prove her allegations at trial, but that is irrelevant to the consideration of the [D]efendants' Rule 12(b)(6) motion to dismiss." Hafley 90 F.3d at 267. Moreover, the Defendants ultimately may establish that they are entitled to qualified privilege, but they have not done so yet. See id. In conclusion, the Court finds Speed has adequately stated a claim of defamation to survive a motion to dismiss. Likewise, the record, in its present state, does not support a claim of qualified privilege.
Defendant Browning makes the additional argument that "Count XII [Defamation] of the Complaint must be dismissed for the reason that Ray Browning, individually, is not the employer of the Plaintiff and has never been at anytime." Browning's argument is not entirely clear. It is clear however, that there is no requirement that Speed be employed by Browning in order to bring a successful defamation claim against him. It occurs to the Court that Browning is referring to paragraph 105 of Count XII which states:
the transmission of the defamatory information was malicious and done with the deliberate intent to chill and inhibit Plaintiff Sherri M. Speed and others from making and pursuing sexual harassment or discrimination claims [pursuant to Title VII] against Defendant Northwest Airlines, Inc. and its employees or agents.
Browning appears to be arguing that he could not maliciously inhibit Speed from pursuing a Title VII claim that she is not entitled to pursue in the first place. The Court does not agree that the dismissal of Speed's Title VII claims negates Defendants' possible malicious intent behind the alleged statements. If Browning was indeed sexually harassing and assaulting Speed, she has other legal remedies, apart from Title VII, that Defendants could seek to prevent Speed from pursuing.
E. Assault. XIII
Defendant Browning moves to dismiss Speed's claim of assault, Count XIII. He contends it is preempted by the Iowa Civil Rights Act and Title VII. Because Speed's claims of sexual harassment pursuant to Title VII and the Iowa Civil Rights Act have been dismissed, Browning's preemption argument is rendered moot. The motion to dismiss Speed's claim of assault is denied.
The Court also notes that all of Speed's claims against Defendant Browning individually appear to have a typographical error with regards to her prayer for relief. Counts IX through XIII are entitled "Claims against Ray Browning, Individually." However, in each count Speed's prayer for relief asks for a judgment to be entered against Defendant Joleen Stadsklev. It is clear from the factual allegations underpinning these claims and their introductory title, that these counts seek judgment against Defendant Browning and not Defendant Stadsklev. The Court therefore grants Speed leave to amend this typographical error pursuant to Fed.R.Civ.Pro. 15(a).
ORDER
Accordingly it is Ordered:
Defendants' Motion to Dismiss as to Counts II, VI, and X is GRANTED.
Defendant's Motion to Dismiss the remaining Counts is DENIED.