United States District Court, N.D. Oklahoma
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 ...