Opinion
Civil Action No. 02-2237-KHV
November 15, 2002
MEMORANDUM AND ORDER
Gina Carraway brings suit against Cracker Barrel Old Country Store, Inc. ("Cracker Barrel"), alleging employment discrimination on account of race and sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended, and state law claims for defamation, negligence and intentional infliction of emotional distress. This matter comes before the Court on Defendant's Motion To Dismiss (Doc. #7) filed July 1, 2002, which argues that plaintiff has not stated a claim for intentional infliction of emotional distress. For reasons stated below, the Court overrules defendant's motion.
I. Legal Standards
In ruling on a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well pleaded facts in the amended complaint and views them in a light most favorable to plaintiff. Zinermon v. Burch, 494 U.S. 113, 118 (1990). The Court makes all reasonable inferences in favor of plaintiff, and liberally construes the pleadings. Rule 8(a), Fed.R.Civ.P.; Lafoy v. HMO Colo., 988 F.2d 97, 98 (10th Cir. 1993). The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of her theories of recovery that would entitle her to relief. Jacobs, Visconsi Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111, 1115 (10th Cir. 1991). Although plaintiff need not precisely state each element of her claims, she must plead minimal factual allegations on material elements that must be proved. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
II. Facts
Plaintiff alleges the following facts:
Plaintiff is an African American woman. For almost five years, from November 24, 1997 to April 21, 2002, she worked as an assistant manager at the Cracker Barrel restaurant in Kansas City, Kansas (the "store"). Throughout her employment, plaintiff was the only person of color among the management staff at that store. Before April 21, 2001, plaintiff had an excellent work record.
On the night of April 21, 2001, plaintiff worked as night manager. As part of her duties, plaintiff frequently dropped off bank deposits, and she intended to do so that night. Prior to finishing her closing duties, plaintiff locked the evening deposits in her car, in a bank deposit bag with a deposit slip that she had signed. She did this as a precaution, because the store had been robbed on multiple occasions. Plaintiff also left a copy of the deposit slip in the store office. While plaintiff was finishing her duties, she and a maintenance worker were robbed at gunpoint. The robber ordered them to remove money from the safe. After they complied, the robber forced them to leave the store and they went to a nearby convenience store to call the police.
The police and general manager Jerry Thibideau soon arrived at the scene. After speaking with Thibideau, the police searched plaintiff's locked car and found the bank deposit bag. Without giving plaintiff a chance to explain, the police forced plaintiff to stand against her car and detained her in jail for 30 hours. They subsequently released plaintiff without bond or restriction and did not press charges.
After the police released plaintiff from jail, she called the store. Manager Andy Burris told her that she "had been replaced and not to come in." For months thereafter, store managers and representatives falsely told employees, customers and others that plaintiff had stolen money from the store on April 21, and that she had stolen money on two prior occasions. They also made other derogatory remarks, alleging that plaintiff used drugs and had a gambling problem. For more than a year, the store managers and representatives continued to falsely tell employees and customers that plaintiff is a criminal who uses drugs and has a gambling problem.
Twice before April 21, persons who attempted to rob the store had threatened plaintiff's life. On numerous occasions plaintiff asked defendant for more security at the store, including better lighting and protective measures for employees. Despite these requests, defendant did not provide a safe working environment.
Defendant did not properly investigate the April 21 incident. Instead, defendant terminated plaintiff because of her race and sex. The store had been robbed on three prior occasions, but defendant did not make false allegations or take adverse employment action against the white male managers were on duty at those times.
Defendant's actions have negatively impacted plaintiff's career and reputation, and have caused plaintiff to suffer severe emotional distress. Defendant acted intentionally or with reckless indifference to embarrassing, humiliating, intimidating and harming plaintiff.
III. Analysis
Defendant maintains that as a matter of law plaintiff's allegations do not state a claim for intentional infliction of emotional distress. In order to establish a prima facie case, plaintiff must plead the following: (1) that defendant acted intentionally or in reckless disregard of plaintiff; (2) that defendant's conduct was extreme and outrageous; (3) that a causal connection exists between defendant's conduct and plaintiff's mental distress; and (4) that plaintiff suffered extreme and severe mental distress. Roberts v. Saylor, 230 Kan. 289, 292, 637 P.2d 1175, 1179 (1981). In order to state a claim for intentional infliction of emotional distress, plaintiff must satisfy two threshold requirements. Id. First, plaintiff must allege conduct which may be reasonably regarded as so extreme and outrageous as to permit recovery. Id. Second, plaintiff must allege that she has suffered emotional distress that is so severe that no reasonable person should be expected to endure it. Id.
In determining what conduct may be regarded as "extreme and outrageous," the Kansas Supreme Court has set forth the following standard:
[l]iability may be found only in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. It was further said that liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead that citizen to spontaneously exclaim, "Outrageous!"
It should be understood that liability does not arise from mere insults, indignities, threats, annoyances, petty expression, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind. The law should not intervene where someone's feelings merely are hurt. . . . Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.Roberts, 230 Kan. at 293, 637 P.2d at 1179.
Defendant's sole argument is that plaintiff has not alleged conduct which may be considered "extreme and outrageous" under Kansas law. Kansas courts have been reluctant to extend actions for outrage to employment discrimination claims. See Laughinghouse v. Risser, 754 F. Supp. 836, 843 (D. Kan. 1990); see also Bolden v. PRC Inc., 43 F.3d 545, 554 (10th Cir. 1994) (Kansas courts reluctant to extend outrage cause of action to discrimination and harassment claims); Schartz v. Unified Sch. Dist. No. 512, 953 F. Supp. 1208, 1221 (D. Kan. 1997) (liability for tort of outrage rarely arises in discrimination and harassment context). Nevertheless, several cases have done so. See Glover v. Heart of Am. Mgmt. Co., 38 F. Supp.2d 881, 889 (D. Kan. 1999) (evidence of extreme sexual harassment sufficiently outrageous to survive summary judgment); Oleson v. KMart Corp., No. 96-4066-SAC, 1996 WL 772604, at *8 (D. Kan. Dec. 5, 1996) (allegations that employer intimidated witnesses and falsified evidence in workers compensation proceedings sufficient to overcome motion to dismiss); Bernard v. Doskocil Cos., Inc., 861 F. Supp. 1006, 1015 (D. Kan. 1994) (cumulative effect of racial harassment sufficient to overcome summary judgment);Laughinghouse, 754 F. Supp. at 843-44 (evidence of extreme sexual harassment and abuse sufficient to overcome summary judgment); Gomez v. Hug, 7 Kan. App. 603, 609-11, 645 P.2d 916, 921-22 (1982) (evidence of abusive yelling and "vitriolic bullying" sufficient to overcome summary judgment).
In one sentence, defendant argues that "the fact that Plaintiff was embarrassed and/or humiliated is irrelevant and certainly does not meet the threshold showing to state a claim . . . ." Memorandum Of Law In Support Of Defendant's Motion To Dismiss (Doc. #8) filed July 1, 2002 at 6. Defendant provides no analysis for its conclusion, and the remainder of its memorandum (and its entire reply brief) addresses only whether plaintiff has sufficiently alleged "extreme and outrageous" conduct. See id; Defendant's Reply To Plaintiff's Memorandum In Opposition To Defendant's Motion To Dismiss (Doc. #11) filed August 5, 2002. The Court will not sift through the record in attempt to construct legal arguments or theories for defendant. See Schunk v. United Fin. Mortg. Corp., No. 00-2137-KHV, 2001 WL 474299, at *4 n. 12 (D. Kan. April 11, 2002) (citingScott v. Hern, 216 F.3d 897, 910 n. 7 (10th Cir. 2000)).
On a motion to dismiss standard, plaintiff has sufficiently stated a claim for intentional infliction of emotional distress. The alleged conduct regarding defendant's investigation into the April 21 events and termination of plaintiff's employment, standing alone, cannot be considered "extreme and outrageous." Nevertheless, the Court cannot find beyond a doubt that plaintiff can prove no set of facts in support of her claim. Depending on how the evidence unfolds, the remainder of her allegations — that for over a year defendant intentionally spread false rumors that plaintiff stole money, used drugs and had a gambling problem, and that defendant's actions harmed plaintiff's career and reputation and caused plaintiff to suffer extreme emotional distress — might be sufficient to be considered "extreme and outrageous."See, e.g., Havens v. Tomball Cmty. Hosp., 793 S.W.2d 690. 691-92 (Tex.App. 1990) (allegations that employer commenced course of conduct to harass, humiliate and degrade good name sufficient to overcome summary judgment). Admittedly, plaintiff's evidence would have to be quite extreme in order to "go beyond the bounds of decency . . . to be regarded as atrocious and utterly intolerable in a civilized society." Roberts, 230 Kan. at 293, 637 P.2d at 1179. Nevertheless, on this record the Court cannot find beyond a doubt that plaintiff cannot do so.
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss (Doc. #7) filed July 1, 2002 be and hereby is OVERRULED.