Opinion
CIVIL ACTION No. 03-2150-KHV
January 15, 2004
MEMORANDUM AND ORDER
Sue Ann Dolquist brings suit against Heartland Presbytery, Leawood Presbyterian Churchand John Miller alleging employment discrimination, harassment and retaliation on account of sex in violation of Title VII of the Civil Rights Act of 1964 ("Title W), 42 U.S.C. § 2000e et seq. as amended, and state law claims for intentional failure to supervise, negligent infliction of emotional distress, outrage, assault and battery. This matter comes before the Court on Defendant Heartland Presbytery's Motion To Dismiss. Or In The Alternative For Summary Judgment. On Counts I. II. IV And V Of Plaintiff's Claims Asserted Against Defendant Heartland Presbytery ("Motion To Dismiss") (Doc. #26) filed July 1, 2002 and Plaintiffs Motion For Leave To File Surreply Regarding Defendant Heartland Presbytery's Motion To Dismiss. And/Or Motion For Summary Judgment (Doc. #43) filed November 3, 2003. As a preliminary matter, the Court finds that a surreply is not necessary. For reasons stated below, the Court sustains defendant's motion to dismiss in part.
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 doubt that plaintiff can prove no set of facts which 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).
Defendant seeks an alternative ruling of summary judgment, but it has not complied with D. Kan. Rule 56.1. Therefore, the Court will not consider its alternative request for summary judgment.
II. Facts
Plaintiff alleges the following facts:
Heartland Presbytery is a Missouri corporation which operates churches and supporting businesses in Kansas. Heartland operates Leawood Presbyterian Church, which is a Kansas corporation.
On July 5, 1995, Sue Ann Dolquist accepted a position as minister at Leawood Presbyterian. As minister, Dolquist preached, moderated the session, supervised staff and ministered to the church community. Dolquist's duties required continuous contact with John Miller, director of music and church elder. Heartland and Leawood Presbyterian refused to adequately supervise Miller or take steps necessary to protect Dolquist from inappropriate conduct by Miller. As a result, Dolquist suffered severe and extreme emotional distress, humiliation, embarrassment, personal injuries and lost wages.
From 1996 to October of 2001, Miller subjected Dolquist to sexually inappropriate behavior which was rude, offensive, oppressive, humiliating, degrading, embarrassing, annoying and emotionally upsetting. Such conduct included (1) embracing Dolquist in an extremely hard, suggestive and sexual manner; (2) making comments about the drug called Viagra; (3) making comments about his "ding a ling;" (4) telling Dolquist that he liked it when she wore short skirts because the view was better; (5) making explicit gestures and comments while opening a white elephant gift; and (6) touching Dolquist's breasts, buttocks and other personally sensitive areas. Miller subjected other women in the church to similar behavior.
In late June of 2000, Miller resigned as music director but retained his position as elder.
In late August of 2001, members of the session sought to rehire Miller as music director. Dolquist strenuously objected, referring to his past sexual misconduct. On August 27, 2001, the session met to consider Miller's reinstatement. At the meeting, Dolquist again complained about Miller's sexually inappropriate behavior. Dolquist also complained about Miller to the elders of Heartland and Leawood Presbyterian.
On September 17, 2001, Heartland and Leawood Presbyterian advised Dolquist that she had been accused of engaging in inappropriate behavior similar to that of Miller.
On October 7, 2001, Heartland and Leawood Presbyterian fired Dolquist despite her satisfactory job performance.
On June 7, 2002, Dolquist filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that Heartland and Leawood Presbyterian had engaged in sex discrimination, sexual harassment and retaliation. On December 12, 2002, the EEOC issued Dolquist a right to sue letter.
III. Analysis
Plaintiff asserts five counts against Heartland: sex discrimination (Count I); sexual harassment (Count II); retaliation (Count III); intentional failure to supervise (Count IV); and negligent infliction of emotional distress and outrage (Count V). Heartland urges the Court to dismiss plaintiff's discrimination and harassment claims (Counts I and II) for failure to timely exhaust administrative remedies. In addition, Heartland argues that plaintiff does not state a claim for intentional failure to supervise (Count IV). Finally, Heartland asserts that the First Amendment to the United States Constitution and Section 7 of the Kansas Constitution Bill of Rights bar plaintiff's claim for negligent infliction of emotional distress (part of Count V). A. Whether Plaintiff Timely Filed An EEOC Charge On Her Discrimination And Harassment Claims (Counts I and II).
Plaintiff asserts the same counts against Leawood Presbyterian and two separate counts against Miller: assault and battery (Count VI) and negligent infliction of emotional distress (Count VII). Leawood Presbyterian and Miller have not filed motions to dismiss.
Heartland does not challenge plaintiff's claims for retaliation (Count III) or outrage (part of Count V).
Heartland argues that plaintiff did not timely file an EEOC charge on her discrimination and harassment claims. Before filing suit under Title VII, plaintiff must exhaust administrative remedies. See Aramburu v. Boeing Co., 112 F.3d 1398, 1409 (10th Cir. 1997). The filing of an EEOC charge — whether timely or not-is a prerequisite to jurisdiction.See Jones v. Runyon, 91 F.3d 1398, 1399-1400 n. 1 (10th Cir. 1996). Filing an untimely charge, however, does not deprive the Court of jurisdiction.See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982). The timeliness requirement is like a statute of limitations, i.e, subject to waiver, estoppel and equitable tolling. Id.
In Kansas, plaintiff must file an EEOC charge within 300 days of the alleged discriminatory action. See 42 U.S.C. § 2000e-5(e)(1). Plaintiff alleges that she filed her EEOC charge on June 7, 2002. Thus, to be timely, the alleged conduct must have occurred within 300 days of that date, or after August 10, 2001.
Heartland contends that plaintiff's petition alleges that all harassment took place before June of 2000. The Court disagrees. Plaintiff alleges that the offensive conduct occurred from 1996 to October of 2001. See Plaintiff's Second Amended Petition For Damages ("Second Amended Petition") ¶ 21. Attachment Z to Record Of State Court Proceedings (Doc. #7) filed April 4, 2003. Because at least some of the alleged conduct occurred after August 10, 2001, the Court will not dismiss plaintiff's discrimination and harassment claims (Counts I and II).
The parties have not briefed — and the Court does not address — whether plaintiff's claims should be dismissed to the extent they are based on conduct which occurred before August 11, 2001.
B. Whether Plaintiff States A Claim For Intentional Failure To Supervise (Count IV)
Heartland argues that Kansas law does not recognize a cause of action for intentional failure to supervise. Kansas has long recognized a cause of action for negligent retention of an unfit or incompetent employee. See Plains Res., Inc. v. Gable, 235 Kan. 580, 590-91, 682 P.2d 653, 662 (1984). Under this doctrine, "[a] master may be liable for injuries to a third person which are the direct result of the incompetence or unfitness of his servant where the master was negligent in employing the servant or in retaining him in employment when the master knew or should have known of such incompetence or unfitness of the servant. Id. (quoting Balin v. Lysle Richel Post No. 68, 177 Kan. 520, 280 P.2d 623 (1955)). In addition, Kansas courts follow the Restatement (Second) of Torts § 317 (1965), which provides as follows:
Plaintiff couches her claim as one for "intentional" failure to supervise and not "negligent" failure to supervise. See Second Amended Petition at 18-19. In Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997), the Missouri Supreme Court found that the First Amendment to the United States Constitution bars a claim for negligent failure to supervise clergy, but not a claim for intentional failure to supervise clergy. See id. at 247-48. The Court makes no determination whether Kansas courts would reach the same result.
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.Id.: see Thies v. Cooper, 243 Kan. 149, 155-56, 753 P.2d 1280, 1285(1988). These authorities suggest that Kansas courts would recognize a claim for intentional failure to supervise.
Heartland contends that plaintiffs petition alleges that it failed to supervise plaintiff, not Miller. The Court disagrees. Construed liberally, the petition asserts that Heartland refused to supervise Miller. Second Amended Petition ¶¶ 23(k), 62-69. Heartland also contends that the petition alleges that Miller was an employee of Leawood Presbyterian, not Heartland. Construed liberally, the petition alleges that Miller was an employee of both Leawood Presbyterian and Heartland.See id. ¶¶ 6, 7. Morever, the petition plainly asserts that Heartland had supervisory responsibilities with respect to Miller. See id. ¶¶ 21, 23(k), 24, 29, 31, 34 and 37. Plaintiff sufficiently states a claim against Heartland for intentional failure to supervise.
Heartland argues that plaintiff's claim is barred by a two-year statute of limitations. See K.S.A. § 60-513. Plaintiff filed her lawsuit on October 7, 2002. As discussed supra, plaintiff alleges that the offensive conduct occurred from 1996 to October of 2001. Therefore, at least some of the alleged conduct occurred within the two-year statute of limitations. The Court will not dismiss plaintiff's claim for intentional failure to supervise.
Plaintiff originally filed the case in the District Court of Johnson County, Kansas, and Heartland later removed it to this Court.See Notice Of Removal (Doc. #1) filed March 20, 2003.
The parties have not briefed — and the Court does not address — whether plaintiff's claim should be dismissed to the extent it is based on conduct which occurred before October of 2000.
C. Whether The First Amendment To The United States Constitution And Section 7 Of The Kansas Constitution Bill Of Rights Bar Plaintiff's Claim For Negligent Infliction Of Emotional Distress (Part Of Count V)
Heartland asserts that religious freedom protections of the First Amendment to the United States Constitution and Section 7 of the Kansas Constitution Bill of Rights bar plaintiff's claim for negligent infliction of emotional distress. The First Amendment protects the autonomy of churches to make decisions regarding their own internal affairs. See Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 655 (10th Cir. 2002). Under this doctrine, the Court cannot review internal church disputes involving matters of faith, doctrine, church governance and polity. Id. The church autonomy doctrine, however, does not apply to purely secular decisions. Id. at 657. The threshold inquiry is whether the alleged misconduct is "rooted in religious belief." Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).
In support of its argument, Heartland cites Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997). In Gibson, the Missouri Supreme Court found that the First Amendment barred plaintiffs' claim against the Catholic Diocese for negligent infliction of emotional distress, but not intentional infliction of emotional distress. See id. at 248-49. In doing so, the court concluded that a negligence standard would inevitably require the court to judge the reasonableness of religious beliefs, discipline and government — but that it could impose liability for intentional torts without excessively delving into religious doctrine, polity, and practice. Id. at 249.
Heartland also cites Avon v. Gourley, Case No. 98-1305, 1999 WL 516088 (10th Cir. 1999), arguing that the Tenth Circuit upheld the district court determination that the First Amendment barred plaintiff's claim for negligent supervision. See Motion To Dismiss (Doc. #26) at 7-8. The Avon court, however, decided the case based on the statute of limitations and found that it need not address the First Amendment question. See Avon, 1999 WL 516088 at *2.
In response to Heartland's motion, plaintiff asserts only that the church autonomy doctrine does not bar her claims of sexual harassment.See Plaintiff's Suggestions In Opposition To Defendant Heartland Presbytery's Motion To Dismiss. Or In The Alternative. Motion For Summary Judgment On Counts I. II. IV And V Of Plaintiffs Claims Asserted Against Defendant Heartland Presbytery (Doc. #32) filed September 25, 2003 at 6-7. In other words, plaintiff does not oppose Heartland's argument that the First Amendment bars her claim for negligent infliction of emotional distress. The Court will therefore dismiss that claim. Heartland's argument does not apply to plaintiff's claim of outrage, which is an intentional tort. See Curts v. Dillard's. Inc., 30 Kan. App. 2d 814, 815-16, 48 P.3d 681, 682 (2002). That claim therefore remains in the case.
IT IS THEREFORE ORDERED that Defendant Heartland Presbytery's Motion To Dismiss. Or In The Alternative For Summary Judgment. On Counts I. II. IV And V Of Plaintiff's Claims Asserted Against Defendant Heartland Presbytery (Doc. #26) filed July 1, 2002 be and hereby is SUSTAINED in part and OVERRULED in part, Defendant's motion is sustained as to plaintiff's claim for negligent infliction of emotional distress (part of Court V). Defendant's motion is otherwise overruled. The following claims remain against Heartland: sex discrimination (Count I); sexual harassment (Count II); retaliation (Count III); intentional failure to supervise clergy (Count IV); and outrage (part of Count V). In addition, all of plaintiff's claims remain against Leawood Presbyterian and Miller.
IT IS FURTHER ORDERED that Plaintiff's Motion For Leave To File Surreply Regarding Defendant Heartland Presbytery's Motion To Dismiss. And/Or Motion For Summary Judgment (Doc. #43) filed November 3, 2003 be and hereby is OVERRULED.