Garner v. Economy Supply, Inc.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITI'D STATUS DISTRICT JUDGE.

         Now before the Court is defendant Economy Supply, Inc.'s motion for partial dismissal of plaintiff Kylie Garner's claim of intentional infliction of emotional distress. Dkt. # 9. Plaintiff alleges that, over the course of her employment, defendant's general manager and another of defendant's employees harassed plaintiff, causing her to suffer severe emotional distress. Dkt. # 2-1, at 2-5. Defendant seeks dismissal of plaintiff's intentional infliction of emotional distress claim, arguing that plaintiff failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Dkt. # 9, at 4.

         I.

         Plaintiff's allegations are as follows. Plaintiff began her employment with defendant on February 15, 2017. Dkt. # 2-1, at 2. On her second day of work, Tray Coffey, defendant's general manager, told plaintiff that her first job was to plan the company party. Id. Coffey told plaintiff, “what happens at the work parties stays at the work parties, ” and that Coffey wished his wife would not be at the party, or that she would be drunk so that he could do whatever he wanted at the party. Id. at 2-3. Soon after plaintiff's employment with defendant began, Coffey began making lewd comments and sending lewd, pornographic, and sexually explicit videos, texts, and private Facebook messages to plaintiff. Id. at 3. Coffey would regularly walk into the office in front of her and say that he is the sexiest man alive and that he “loves being a pervert.” Id. Coffey also had a wind-up toy penis that he put on plaintiff's desk on several different occasions. Id.

         Plaintiff complained multiple times to Carrie Verrill, defendant's human resources manager, who is also Coffey's sister, about Coffey's conduct. Id. In response, Verrill would tell plaintiff to “stay away” from Coffey. Id. Plaintiff was also sexually harassed by one of defendant's employees named Bob. Id. Bob would put his hands on plaintiff's back and, on two different occasions, he snapped plaintiff's bra strap. Id. Plaintiff complained to Verrill about the sexual harassment by Bob, but Bob would continue to touch plaintiff's back and hug her. Id. When plaintiff would complain to Verrill about the sexual harassment that she suffered during her employment with defendant, Verrill would make her feel like the sexual harassment was plaintiff's fault. Id.

         Verrill and Coffey began to retaliate against plaintiff after her complaints of sexual harassment. Id. at 4. For example, after plaintiff's complaints, Verrill told her that she was “too cute” and was no longer allowed to wear yoga pants or shorts to the office. Id. However, other of defendant's employees were still allowed to wear yoga pants and shorts. Id. When plaintiff was hired, Coffey told her that there was no dress code at the office. Id. Plaintiff complained to Verrill about the retaliation and continued sexual harassment but, the next day, Coffey made an inappropriate comment in the office and looked at plaintiff and said, “oh no don't say that around her, the saint is present.” Id. Less than a week later, plaintiff was demoted, she was changed from salary to hourly, her pay was cut in half, she was told she could not use her cell phone at work anymore, and all of her things were moved to another location without her knowledge. Id. Coffey told plaintiff that she was being punished and could try to “work her way back up.” Id. The next Tuesday, May 23, 2017, plaintiff was terminated by Verrill and told it “just wasn't working out.” Id.

         II.

         In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. “To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead sufficient factual allegations ‘to state a claim to relief that is plausible on its face.'” Doe v. Woodard, 912 F.3d 1278, 1299 (10th Cir. 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true, and [the court] must liberally construe the pleadings and make all reasonable inferences in favor of the non-moving party.” Id. (internal citation omitted).

         III.

         Defendant argues that, under the Twombly/Iqbal pleading standard of Rule 12(b)(6), plaintiff's allegations amount only to “a mechanical recitation of the elements of her [intentional infliction of emotional distress] claim.” Dkt. # 9, at 1. Defendant further argues that plaintiff's allegations fail to meet the second and fourth elements of an intentional infliction of emotional distress claim, namely that defendant's conduct was not “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, ” and that plaintiff's distress was not “so severe that no reasonable [person] could be expected to endure it.” Id. at 5 (citing Kraszewki v. Baptist Med. Ctr. of Okla., Inc., 916 P.2d 241, 248 n.25 (Okla. 1996), Computer Publ'n, Inc. v. Welton, 49 P.3d 732, 736 (Okla. 2002)). Defendant argues that plaintiff “does not specify which actions or conduct by [defendant] purportedly support her [intentional infliction of emotional distress] claim.” Dkt. # 9, at 6. Plaintiff responds that Oklahoma law has recognized that “severe and pervasive sexual harassment precludes dismissal of intentional infliction of emotional distress claims, ” and that “[p]laintiff has alleged facts sufficient to support her [intentional infliction of emotional distress] claim.” Dkt. # 11, at 2. Plaintiff further argues that Coffey's “authority to terminate her employment” meets the standard of extreme and outrageous conduct to assert an intentional infliction of emotional distress claim under Oklahoma law. Id. at 3.

         Oklahoma courts have recognized a cause of action for intentional infliction of emotional distress, also known as the tort of outrage. See Gaylord Entm't Co. v. Thompson, 958 P.2d 128, 149 (Okla. 1998). The action is governed by the narrow standards laid out in the Restatement Second of Torts, § 46. Id. In Breeden v. League Servs. Corp., 575 P.2d 1374 (Okla. 1978), the Oklahoma Supreme Court explained:

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!' The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

Id. at 1376. To state a claim, a plaintiff must allege that “(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.” Schovanec v. Archdiocese of Oklahoma City, 188 P.3d 158, 175 (Okla. 2008) (quoting Computer Publ'ns, 49 P.3d at 735). Under Oklahoma law, the trial court must assume a “gatekeeper role” and make an initial determination that the defendant's conduct “may be reasonably regarded as sufficiently extreme and outrageous to meet the Restatement § 46 standards.” Trentadue v. United States, 397 F.3d 840, 856 n.7 (10th Cir. 2005) (applying Oklahoma law). If reasonable persons could reach differing conclusions in the assessment of the disputed facts, the Court should submit the claim to the jury to determine whether the defendant's conduct could result in liability. Id. The Court is to make a similar threshold determination with regard to the fourth prong, the presence of severe emotional distress. Id.

         In cases arising out of the workplace, Oklahoma appellate courts have found that a defendant engaged in extreme and outrageous conduct only when that defendant intentionally and persistently engaged in a course of conduct that harmed the plaintiff. See Computer Publ'ns, 49 P.3d at 736 (claim should have been submitted to a jury when plaintiff presented evidence that harassment lasted more than two years and caused plaintiff to quit her job, move, and repeatedly change phone numbers); Miner v. Mid-America Door Co., 68 P.3d 212, 223-24 (Okla.Civ.App. 2002) (employer's alleged failure to reassign the plaintiff after learning of workplace harassment, even if unreasonable, was not extreme and outrageous); Gabler v. Holder & Smith, Inc., 11 P.3d 1269, 1280 (Okla.Civ.App. 2000) (noting that workplace harassment rarely rises to the level of extreme and outrageous conduct); Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678, 682-83 (Okla.Civ.App. 1998) (employer's conduct was not extreme and outrageous when, inter alia, the plaintiff's manager made derogatory sexual remarks about the plaintiff, woke plaintiff up in the middle of the night to do unnecessary work, and terminated him two hours before his wedding); Zahors ...