Opinion
Civil No. 1:20-CV-979
02-05-2021
CAROLINE MCCULLOUGH, Plaintiff, v. WELLSPAN YORK HOSPITAL, et al., Defendants.
(Judge Conner)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This employment discrimination case comes before us for consideration of a motion to dismiss Count VII of the plaintiff's complaint, which alleges the state law tort of intentional infliction of emotional distress. (Doc. 5). With respect to this count of McCullough's complaint, the well-pleaded facts that guide our consideration of this motion to dismiss are as follows:
The plaintiff, Caroline McCullough, was employed by Wellspan York Hospital from January 1998 until she was terminated on June 17, 2019. (Doc. 1, ¶¶ 11, 43). At the time of her termination, McCullough worked as a Case Manager Registered Nurse and reported to the defendant, Tanya Haugh. (Id., ¶ 13).
According to McCullough, her daughter suffers from an array of physical and emotional impairments, conditions which create great stress for McCullough and have required McCullough to call off from work on a number of occasions with little or no notice to address medical emergencies. (Id., ¶ 14). The defendants' response to these absences lies at the heart of McCullough's complaint.
According to McCullough, she began experiencing the need for unscheduled absences from work to address her daughter's medical conditions in the fall of 2018. (Id., ¶ 15). After she had called off from work unexpectedly on three occasions in the span of two months, McCullough received a warning from Haugh regarding her absenteeism in November of 2018. (Id., ¶¶ 14-26). At that time, McCullough alleges that she brought her daughter's medical condition to Haugh's attention and received some information regarding FMLA resources offered to employees by Wellspan. (Id.) McCullough contends, however, that those resources were not made readily available to her, and that the defendants failed to engage in any meaningful interactive process to address her family medical needs, despite being required to do so. (Id.)
According to McCullough, these failures to communicate and engage in a meaningful exchange to address her needs led to a second disciplinary citation for absenteeism and tardiness by Wellspan on January 2, 2019. (Id., ¶ 31). In the wake of this second disciplinary citation, McCullough avers that she sought further assistance but continued to receive incomplete and inconsistent guidance, advice, and treatment by Wellspan officials, who failed to engage in a meaningful interaction process in her case and treated her leave requests in a fashion different from other similarly-situated employees. (Id., ¶¶ 31-39).
On June 5, 2019, McCullough states that she was presented with another sudden medical crisis relating to her daughter, who was threatening self-harm. McCullough notified her supervisor, Haugh, that she would miss work due to this emergency. Notwithstanding this notice, McCullough later learned that her June 5 absence was considered another unexcused absence from work. (Id., ¶ 40). Wellspan then refused to make an accommodations for this work absence, such as treating the absence as excused, and rather cited what it alleged was a failure by McCullough to seek a correction of the absence to an excused absence within 72 hours. (Id., ¶ 42). Wellspan and Haugh declined to make this change in McCullough's attendance records even though it is alleged that Haugh had the authority to treat the June 5 absence as an excused absence and McCullough had allegedly attempted to request an excused absence on this occasion. (Id., ¶ 42). Instead, on June 17, 2019, Haugh met with McCullough, provided her a third notice for absenteeism, and terminated her employment. (Id., ¶ 43).
Based upon this factual recital, McCullough has filed a seven-count civil complaint against Wellspan and Haugh. (Doc. 1). The first six counts of the complaint allege various federal claims involving alleged violations of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq., and the Rehabilitation Act of 1973. Count VII of the complaint then brings a state tort law claim of intentional infliction of emotional distress. (Id.) The factual basis of this state tort claim is grounded upon the course of conduct alleged in the complaint concerning the failure of the defendants to provide accommodations for McCullough's medical leave requests, and their decision to terminate McCullough for excessive absenteeism. (Id.)
Wellspan has now moved to dismiss Count VII, alleging that McCullough's complaint fails as a matter of law to state a claim for intentional infliction of emotional distress, and further asserting that any such state common law tort claim is pre-empted by Pennsylvania' worker's compensation statute. (Doc. 5). This motion is fully briefed and is, therefore, ripe for resolution.
For the reasons set forth below, it is recommended that the motion to dismiss be granted.
II. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, -U.S.-, 129 S. Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id., at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.' "Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S. Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S. Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id., at 1950. Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment"). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. Application of the Tort of Intentional Infliction of Emotional Distress to the Workplace.
In this case the defendants seek the dismissal of the plaintiff's intentional infliction of emotional distress claim; a claim that is premised upon the alleged failure of the defendants to provide accommodations for McCullough's medical leave requests and their decision to terminate McCullough for excessive absenteeism. Such claims are judged by exacting legal standards. Under Pennsylvania law, the elements of a claim for intentional infliction of emotional distress are as follows: "(1) the conduct [of the defendant] must be extreme and outrageous; (2) it must be intentional or reckless; (3) it must cause emotional distress; [and] (4) that distress must be severe." Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997). This claim also requires an allegation of some type of physical injury, harm, or illness related to the distress. Robinson v. Family Dollar, Inc., No. 14-3189, 2015 WL 3400836 (E.D. Pa. May 27, 2015) (citing Corbett v. Morgenstern, 934 F. Supp. 680, 684 (E.D. Pa. 1994)). It is difficult to make out a cognizable claim for intentional infliction of emotional distress, in no small part because "the conduct must be 'so extreme in nature as to go beyond all possible bounds of decency such that it would be regarded as utterly intolerable to civilized society.' " Regan v. Twp. of Lower Merion, 36 F.Supp.2d 245, 251 (E.D. Pa. 1999).
Thus, with respect to claims for intentional infliction of emotional distress, "courts have been chary to allow recovery for a claim of intentional infliction of emotional distress. Only if conduct which is extreme or clearly outrageous is established will a claim be proven." Hoy v. Angelone, 720 A.2d 745, 753-54 (Pa. 1998). Indeed, the Restatement (Second) of Torts instructs that
It has not been enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by "malice," or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.Restatement (Second) of Torts § 46, cmt. d; Hoy, 720 A.2d at 754. In keeping with these restrictive standards, the Pennsylvania Supreme Court has provided examples of conduct found to state a claim for intentional infliction of emotional distress, and such examples demonstrate the extraordinary nature of the theory:
Cases which have found a sufficient basis for a cause of action of intentional infliction of emotional distress have had presented only the most egregious conduct. See e.g., Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970)(defendant, after striking and killing plaintiff's son with automobile, and after failing to notify authorities or seek medical assistance, buried body in a field where discovered two months later and returned to parents (recognizing but not adopting section 46)); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981)(defendants intentionally fabricated records to suggest that plaintiff had killed a third party which led to plaintiff being indicted for homicide); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d. Cir. 1979) (defendant's team physician released to press
information that plaintiff was suffering from fatal disease, when physician knew such information was false).Hoy, 720 A.2d at 754.
Courts have considered the application of these legal principles to intentional infliction of emotional distress claims that arise in an employment context. Consistent with this narrow, restrictive view of what constitutes intentional infliction of emotional distress—conduct so extreme in nature as to go beyond all possible bounds of decency such that it would be regarded as utterly intolerable to civilized society—courts have frequently rebuffed efforts to cast workplace discipline or discharge decisions as the intentional infliction of emotional distress. Thus:
[I]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress. Rinehimer v. Luzerne County Community College, 372 Pa.Super. at 494, 539 A.2d at 1305. In the context of a dismissal, it has been noted that "while loss of employment is unfortunate and unquestionably causes hardship, often severe, it is a common event" and cannot provide a basis for recovery for intentional infliction of emotional distress. Brieck v. Harbison-Walker Refractories, 624 F.Supp. 363, 367 (W.D.Pa.1985), aff'd. in relevant part 822 F.2d 52 (3d Cir.1987). Moreover, courts applying Pennsylvania law have failed to find conduct outrageous where an employer deceived an employee into foregoing other employment, Cautilli v. GAF Corp., 531 F.Supp. 71, 74 (E.D.Pa.1982), or even where the employer engaged in a premeditated plan to force an employee to resign by making employment conditions more difficult. Madreperla v. Williard Co., 606 F.Supp. 874, 880 (E.D.Pa.1985).Cox v. Keystone Carbon Co., 861 F.2d 390, 395-96 (3d Cir. 1988).
Therefore, while Pennsylvania courts have declined to categorically bar such claims, they have often declined to treat an alleged wrongful discharge as tantamount to the intentional infliction of emotional distress. Strickland v. Univ. of Scranton, 700 A.2d 979, 987 (Pa. Super. Ct. 1997); Rinehimer v. Luzerne Cty. Cmty. Coll., 372 Pa. Super. 480, 495, 539 A.2d 1298, 1305 (1988). Likewise federal courts applying Pennsylvania law have consistently rejected efforts to extend the tort of intentional infliction of emotional distress to workplace discipline or termination. Green v. Bryant, 887 F. Supp. 798, 803 (E.D. Pa. 1995); Brieck v. Harbison-Walker Refractories, a Div. of Dresser Indus., 624 F. Supp. 363, 367 (W.D. Pa. 1985), amended on denial of reconsideration, 705 F. Supp. 269 (W.D. Pa. 1986), and aff'd in part, rev'd in part sub nom. Brieck v. Harbison-Walker Refractories, Div. of Dresser Indus., No. 86-3068, 1987 WL 246509 (3d Cir. June 18, 1987), and aff'd in part, rev'd in part, 822 F.2d 52 (3d Cir. 1987). Courts have adhered to this view even when it has also been alleged that the employer's conduct violated the FMLA or other federal workplace discrimination statute, holding that in this setting that "[i]t is well-settled that termination from a job is a legally insufficient basis for an intentional infliction of emotional distress claim." Sabo v. UPMC Altoona, 386 F.Supp.3d 530, 557 (W.D. Pa. 2019).
Under Pennsylvania law, there is a second obstacle to pursuit of the tort of intentional infliction of emotional distress in a workplace setting. Courts also acknowledge that "[t]he Pennsylvania Workers' Compensation Act ('PWCA') provides an exclusive remedy for work related injuries. 77 Pa. Stat. § 481(a). This includes [intentional infliction of emotional distress]. Papa v. Franklin Mint Corp., 400 Pa.Super. 358, 583 A.2d 826, 826-27 (1990). Therefore, IIED claims are generally preempted by the PWCA." Rorrer v. Cleveland Steel Container, 712 F. Supp. 2d 422, 436 (E.D. Pa. 2010). This general rule admits of a single, narrow exception, specifically:
There is, however, an exception to the general preclusion, known as the personal animus exception, that allows a plaintiff/employee to recover from a defendant/employer for "injuries caused by an act of a third party [including co-workers] intended to injure the employee because of reasons personal to him, and not directed against her as an employee or because of his employment." Faust v. Storm, 2009 WL 2143546, at *7 (E.D. Pa. July 15, 2009) (citing Jackson v. Lehigh Valley Physicians Group, 2009 WL 229756, at *6 (E.D. Pa. Jan. 30, 2009)); 77 Pa. Stat. § 411(1). "To fit within the [personal animus] exception, the third party or fellow employee's act must have been motivated by his animosity against the injured employee. If the third party would have attacked a different person in the same position as the injured employee, the attack falls outside the [personal animus] exception." Id. at *8 (quotations and citations omitted).Rorrer, 712 F. Supp. at 436-37.
It is against these demanding legal guideposts, which establish a general rule of preemption and prescribe an exceedingly high legal bar for such claims, that we assess the state tort claim advanced by McCullough in her employment discrimination case.
C. McCullough's Intentional Infliction of Emotional Distress Claim Should be Dismissed.
In our view, as it is currently pleaded, McCullough's state law intentional infliction of emotional distress claim founders on two legal obstacles. First, this claim runs afoul of the fact that such torts in the workplace are generally preempted by the Pennsylvania Workers Compensation Act. On its face, this preemption principle would apply to McCullough's complaint and bar her intentional infliction of emotional distress claims, since this claim entails work-related issues such as discipline, processing of leave requests, and termination.
Recognizing this general principle, McCullough nonetheless endeavors to avoid the preemption of her claim under state law by seeking the refuge of the personal animus exception to this preemption rule. This effort, while innovative, is ultimately unavailing for several reasons. In order to rely upon this personal animus exception to the general preemption of tort claims by the Worker's Compensation Act, a plaintiff must plead and prove that the defendants acted out of an animus that was wholly unrelated to the employer-employee relationship. In this case, the well-pleaded facts set forth in McCullough's complaint simply do not allege any animus between McCullough and the defendants that was divorced from their working relationship. Therefore, McCullough simply has not asserted facts that would entitle her to assert the protections of the personal animus exception.
McCullough cannot cure this shortcoming in her complaint by arguing for the first time in her opposition to this motion to dismiss that some personal animus existed between Haugh and McCullough. Quite the contrary, it is well-settled that a plaintiff cannot amend a complaint through the filing of a brief, or through arguments set forth in a brief opposing a dispositive motion. Indeed, "[i]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss." Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)); cf. Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007) ("[W]e do not consider after-the-fact allegations in determining the sufficiency of [a] complaint under Rules 9(b) and 12(b)(6)").
But even if McCullough could somehow overcome the preemption of her claim by the Pennsylvania Workers' Compensation Act, this state tort claim would still fail since the conduct alleged here—the wrongful processing of leave requests and termination in violation of the FMLA and Rehabilitation Act—simply does not meet the extremely high thresholds prescribed by state law for the tort of intentional infliction of emotional distress. Intentional infliction of emotional distress requires abhorrent behavior. "[T]he conduct must be 'so extreme in nature as to go beyond all possible bounds of decency such that it would be regarded as utterly intolerable to civilized society.'" Regan, 36 F.Supp.2d at 251. "In the context of a dismissal [from employment], it has been noted that 'while loss of employment is unfortunate and unquestionably causes hardship, often severe, it is a common event' and cannot provide a basis for recovery for intentional infliction of emotional distress." Cox, 861 F.2d at 395-96. Given this narrow interpretation of the tort of intentional infliction of emotional distress, "[i]t is well-settled that termination from a job is a legally insufficient basis for an intentional infliction of emotional distress claim." Sabo, 386 F.Supp.3d at 557.
These principles control here and compel dismissal of this claim. In this case McCullough's federal employment discrimination lawsuit includes this state tort law claim of intentional infliction of emotional distress. In a case such as this, where we are invited as part of a federal civil rights lawsuit to also entertain supplemental jurisdiction over a state law claim, we are bound by the substantive law of the state in evaluating and assessing that claim. Chin v. Chrysler LLC, 538 F.3d 272, 278 (3d Cir. 2008). Obliged as we are to adhere to state law when construing McCullough's work-related intentional infliction of emotional distress claim, we find that the principles of preemption and exacting standards of pleading and proof that govern this workplace tort claim in Pennsylvania combine to bar this claim. Therefore, this state tort claim should be dismissed.
Yet while we are constrained by state law to recommend dismissal of this claim, this recommendation does not mean that McCullough is without potential avenues of legal recourse in federal court. McCullough may still pursue her federal civil rights claims under the FMLA and the Rehabilitation Act. She is simply precluded from also asserting this particular state law tort claim in this specific factual setting.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendant's motion to dismiss (Doc. 5) be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 5th day of February 2021.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge