Opinion
No. 2:03 CV 830 PGC
April 21, 2004
ORDER DENYING MOTION TO DISMISS
Plaintiff Sean King has filed a complaint alleging sexual harassment and retaliation claims under Title VII, together with a number of common law claims based on the same set of allegations underlying the Title VII claims. Defendants Business Consulting Services, Inc., Corporate Staffing Services, Inc., and Steven Tafoya (collectively "BCS") have filed a motion to dismiss plaintiff Sean King's fifth cause of action for negligent employment, sixth cause of action for respondeat superior, seventh cause of action for intentional interference with contractual relations, and eighth cause of action for invasion of privacy based on false light. Having carefully reviewed the pleadings, the court grants in part and denies in part the motion to dismiss for the reasons stated below.
Background
According to the complaint, Mr. King was hired on April 29, 2002. Within one month of being hired, Mr. Tafoya began making unwelcome sexual advances towards him. Because BCS had no human resources department, Mr. King complained to Ms. Shelly Couch, the personal assistant to the CEO of BCS in May or June 2002. No one at BCS ever spoke to Mr. King regarding his complaints. Mr. King was fired by BCS in June 2002, allegedly due to unsatisfactory job performance. On September 23, 2003, Mr. King filed a complaint in this court and the defendants filed a timely motion to dismiss.
Discussion
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), this court must accept all of the alleged facts in the complaint as true. BCS seeks dismissal of four causes of action: (1) negligent employment (2) intentional interference with contractual relations (3) false light, and (4) respondeat superior. Each cause of action is considered in turn.
See Sutton v. Utah State Sch. for the Deaf Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
Negligent Employment, Training and Supervision
BCS argues this claim must be dismissed because the Utah Worker's Compensation Act ("Act") provides the exclusive remedy for this claim. The Act provides in relevant part:
Utah Code Ann. § 34A-2-101, et seq.
the right to recover compensation pursuant to this chapter for injuries sustained by an employee . . . shall be the exclusive remedy against the employer and shall be the exclusive remedy against any . . . employee of the employer and the liabilities of the employer imposed by this chapter shall be in place of any and all other civil liability whatsoever, at common law or otherwise, to the employee . . . in any way contracted . . . or incurred by the employee in the course of or because of or arising out of the employee's employment. . . .
Mr. King responds that he only seeks recovery for his lost earnings and benefits due to BCS's decision to terminate him and that these damages are recoverable under the Act.
Both parties point to Mounteer v. Utah Power Light Co., in support of their respective positions. In that case, the Utah Supreme Court determined that the exclusivity provision of the Act did not bar a claim for slander. The Court concluded that the Act addresses primarily physical and mental injuries that occur during employment. The Court reasoned that a claim for slander did not require the plaintiff prove mental or physical injury. Slander requires proof of injury to reputation, or defamation, and this type of injury is not covered by the Worker's Compensation statute.
823P.2d 1055 (Utah 1991).
Id. at 1056-58.
Id. at 1057.
Id. at 1058.
Id.
In a subsequent decision, Retherford v. A.T. T. Communications of Mountain States, Inc., the Utah Supreme Court discussed Mounteer's implications for a claim of negligent employment as follows:
We have yet to address directly whether a plaintiff who is mental or physically injured by the intentional torts of a fellow employee can sue his or her employer for negligent employment or whether workers' compensation provides the exclusive remedy for the employer's negligence. Neither the Act itself nor judicial interpretations of it in Utah or elsewhere supply an explicit exception for the tort of negligent employment in such an instance. Our ruling in Mounteer, based as it is on an injury-oriented analysis rather than on an analysis centered on the legal theory of the claim, would suggest that worker's compensation would be an exclusive remedy.
Retherford v. ATT Communications of Mountain States, Inc., 844 P.2d 949, 965 (Utah 1992) (emphasis added).
BCS argues that this language mandates this court dismiss Mr. King's claim of negligent employment. Mr. King responds that he is not seeking claims for mental damages, but rather is seeking only financial damages for lost income and benefits.
The court agrees with BCS for several reasons. First, Mr. King has not accurately described his own complaint. In fact, it does seek mental damages. Second and more important, the Utah Supreme Court language in Retherford appears to extend to claims such as those alleged by Mr. King. To be sure, the language is not a direct holding by the Court. But this court agrees that the language is a persuasive interpretation of Mounteer and should be followed here. Mr. King's efforts to avoid Retherford by allegedly seeking only economic damages would elevate form over substance. His economic damages would stem in no small part from the mental difficulties occasioned by his loss of employment. This court's decision in Matthews v. Kennecott Copper Corporation reached a similar conclusion. There, the plaintiff claimed he was mentally and emotionally scarred by the improper supervision. This court held that any claims for lost earnings and benefits should be recovered under the Act because his lost earnings were a result of his mental injury. Mr. King's cause of action is analogous to that found deficient in Mathews. For all these reasons, the negligent supervision cause of action is dismissed.
See, e.g., Complaint at ¶¶ 37, 50, 60.
Matthews v. Kennecott Utah Copper Corporation, 54 F. Supp.2d 1067, 1076 (D. Utah 1999).
Id.
Intentional Interference with Contractual Relations
BCS next argues that Mr. King's cause of action for intentional interference with contractual relations should be dismissed. The right to recover for unlawful interference with the performance of a contract presupposes the existence of a valid enforceable contract, BCS argues that because Mr. King was an at-will employee with no expectation of continuing employment, no enforceable contract existed.
Tatum v. Philip Morris Incorporated, 809 F. Supp. 1452 (W.D. Okla. 1992); aff'd 16 F.3d 417 (10th Cir. 1993), cert. denied, 114 S.Ct. 1833 (1994).
Utah law presumes that an employment arrangement that does not have a specified term of duration is at-will relationship. An at-will arrangement allows either the employer or employee to terminate the employment for any reason, at any time, without extending any procedural safeguards to an employee unless required by law. However, at-will employment is only a presumption and it can be rebutted by facts demonstrating that either an express or implied employment contract existed. Here, Mr. King has minimally asserted that Mr. Tafoya's actions constitute "intentional interference with the Plaintiff's contractual relationship with Defendants" At this early stage of the litigation, these assertions suffice (though barely) to survive a motion to dismiss. Of course, Mr. King will have to prove facts to rebut the presumption of at-will employment to survive a motion for summary judgment.
See Ryan v. Dan's Food Stores, 972 P.2d 395, 400 (Utah 1998) (citing Fox v. MCI Communications Corp., 931 P.2d 857, 958 (Utah 1997)).
Id.
Id.
Verified Amended Complaint, p. 12.
BCS argues that even if an employment contract did exist, Mr. King's inconsistent assertions that Mr. Tafoya acted both inside and outside of the scope of his employment warrants dismissal. Tortious interference with contractual relations requires two contracting parties and a third interfering party. If Mr. Tafoya's alleged actions were within the scope of his employment at BCS, no third interfering party exists. Whether an individual has acted within the scope of their employment is generally a question of fact. At this early stage, the court has no difficulty in allowing Mr. King to plead positions in the alternative. Perhaps the inconsistency will produce a successful summary judgment motion later on, but that can be resolved in a future proceeding.
See Leigh Furniture and Carpet Co. v. horn, 657 P.2d 293, 301 (Utah 1982).
See Ahlstrom v. Salt Lake City Corp., 73 P.3d 315, 317 (Utah 2003); Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1040 (Utah 1991); and Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989).
False Light
Mr. King's next cause of action is for the tort of invasion of privacy based on a claim of "false light." It is based on Mr. Tafoya's letter to the Utah Antidiscrimination Division ("UALD") rebutting Mr. King's allegations and calling him dishonest and a thief. BCS argues this claim should be dismissed because (1) a letter to the UALD does not meets the public disclosure requirement of a claim of false light and (2) the statute of limitations has run.
The tort of false light requires: (1) publicity of a matter concerning another that places the other before the public in a false light; (2) the false light would be highly offensive to a reasonable person; and (3) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the individual would be placed. Publicity or public disclosure "means that the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." The size of the audience that receives the communication, though an important consideration, is not dispositive of the issue. The facts and circumstances of a particular case must be taken into consideration in determining whether the disclosure was sufficiently public to support a claim for invasion of privacy. The mere malicious sending of letters has supported a claim for invasion of privacy. At this early point in the litigation, the court must take the facts in the light most favorable to Mr. King. Accordingly, the court concludes that the publicity element has been sufficiently alleged.
Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 907 (Utah 1992) (quoting Restatement (Second) of Torts § 652E (1997)).
Shattuck-Owen v. Snowbird Corporation, 16 P.3d 555, 558 (Utah 2000) (quoting Restatement (Second) of Torts § 652D cmt. a (1977)).
Shattuck-Owen, 16 F.3d at 558-559.
Id. at 559 (internal citations omitted).
See, e.g., Kinsey v. Macur, 107 Cal.App.3d 265 (1980) cited in Shattuck-Owen at 559.
BCS's remaining argument is that the statute of limitations has run on Mr. King's claim for false light because it is "closely allied" with an action for defamation and the statute has run on any defamation claim. The Utah courts have not ruled whether false light claims are governed by the one-year statute of limitations for defamation or the general four-year statute of limitations. The Utah Supreme Court has, however, distinguished between claims for false light and claims for defamation in other contexts. The Court has noted that defamation and false light may be maintained as separate causes of action. The Court reasoned that an invasion of privacy claim (such as false light) protects an individual's interest in being left alone, whereas the tort of defamation protects an individual's interest in protecting their reputation. According to well-settled Utah law, if a tort is not specifically enumerated in any statute of limitations, it must fall under the four year statute. Because of the absence of false light from any statute of limitations, and because the tort is distinguishable in at least some important ways from the tort of defamation, the catch-all four year statute of limitations applies.
Utah Code Ann. § 78-12-29(4).
Utah Code Ann. § 78-12-25(3).
Russell v. Thomson Newspapers, Inc., 842 P.2d 896, 906-7 (Utah 1992).
Id.
See Hodges v. Howell, 4 P.3d 803, 805 (Ut. Ct. App. 2000) (citing Olsen v. Hooley, 865 P.2d 1345, 1347 n. 1 (Utah 1993)); Dow v. Gilroy, 901 P.2d 1249, 1251-52 (Utah Ct.App. 1996).
Respondeat Superior
Because the court has upheld Mr. King's cause of action for false light, the corresponding claim for respondeat superior remains a viable cause of action. Because the court has dismissed the claim for negligent employment, the corresponding claim for respondeat superior is also dismissed.
Conclusion
The court GRANTS the motion to dismiss as to Mr. King's fifth cause of action. The court GRANTS the motion to dismiss as to the negligent employment claim of Mr. King's sixth cause of action. The court DENIES the motion to dismiss as to the false light portion of Mr. King's sixth cause of action. The court DENIES the motion to dismiss as to Mr. King's seventh and eighth causes of action. SO ORDERED. DATED this 21st day of April, 2004.