Opinion
No. 8:04CV120.
November 1, 2004
MEMORANDUM AND ORDER
This case is before me on the motions to dismiss, Filing Nos. 16 and 18, of defendants Robert M. Bertsch, Jr. (hereinafter "Bertsch") and Kathy Loncke (hereinafter "Loncke"). I have reviewed the record, the parties' briefs, Filing Nos. 17, 19, 20, 21, 25, and 26, and the applicable case law and conclude that the motions to dismiss should be denied.
LEGAL STANDARD
In considering a motion to dismiss a complaint under Rule 12(b)(6), the court must assume all the facts alleged in the complaint are true and must liberally construe the complaint in the light most favorable to the plaintiff. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle him to relief. Id. Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Id.
FACTS
Defendant Wells Fargo Bank employed plaintiff Rodgers for twenty-eight years. Plaintiff served as a Vice President and Senior Trust Administrator. Wells Fargo Bank employed both defendant Bertsch and defendant Loncke. In May 2003, defendant Bertsch became the manager of plaintiff's department. Plaintiff asserts that she had exemplary evaluations and performance reviews up until that time. Plaintiff further alleges that she suffers from a disability that includes vision problems, heart-respiratory issues, depression and anxiety. She contends that Bertsch intimidated and harassed her about wearing corrective eye wear and reading devices and made derogatory comments regarding her gender. Plaintiff asserts that Bertsch made known her medical information to other employees. On June 5, 2003, Bertsch purportedly told plaintiff that she had to resign. When plaintiff refused, Bertsch allegedly forced her to write and sign a letter of resignation, bruising her hand in the process.ADA/TITLE VII CLAIMS/TORT CLAIMS
Defendant contends that the ADA and Title VII claims are not permissible against individual defendants. However, plaintiff argues that she has not alleged these claims against either of these two defendants in her complaint. I have reviewed the complaint and I agree. Consequently, I shall deny the motion to dismiss as to these two claims and these two defendants, as I find that the ADA and Title VII claims have not been alleged against them.
Defendant Loncke contends that there are insufficient allegations to permit the state law claims to proceed against her. Again, I have reviewed the complaint and find the state tort claims of assault and battery, false imprisonment and invasion of privacy to be alleged only against defendant Bertsch and not defendant Loncke. Consequently, I shall deny the motion to dismiss as to these state law claims as I find them not to have been alleged against defendant Loncke.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Defendants argue that plaintiff has failed to state a claim against them for intentional infliction of emotional distress. To recover for this claim, plaintiff must show: (1) there has been intentional or reckless conduct; (2) the conduct was so outrageous as to be intolerable; (3) the conduct caused severe emotional distress that no reasonable person should have to endure. Foreman v. AS Mid-America, Inc., 586 N.W.2d 290, 305 (Neb. 1998). The facts alleged by plaintiff, if true, would show that defendant ridiculed plaintiff, harassed her about her disabilities, refused to allow her to go to the bathroom during a meeting, forced her to write her resignation letter, and physically assaulted her. The plaintiff has stated a claim of intentional infliction of emotional distress as to Bertsch in light of the requirements of notice pleading. While the allegations are not by themselves sufficient to prove outrageous conduct, the plaintiff does not have an obligation to present all her evidence. Rather, she has been required to present only enough that puts Bertsch on notice to the conduct which plaintiff believes is outrageous. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). I am going to deny the motion to dismiss as to defendant Bertsch at this point in the case. However, Bertsch is free to raise this issue at the summary judgment stage of this case, if appropriate.
I likewise find that this claim shall remain against defendant Loncke. Plaintiff contends that Loncke also made offensive and derogatory comments to other employees about plaintiff's physical disabilities, refused to allow required accommodations, deliberately harassed plaintiff, and removed special reading glasses and other items from plaintiff's office causing plaintiff to have to hunt for them. Likewise, if the evidence does not support the outrageousness of this claim, defendant is free to file a summary judgment motion at the appropriate time.
SLANDER
Defendants contend that the slander claim should be dismissed. Under Nebraska law, in order to state a cause of action, a plaintiff's duty at pleading is minimal, requiring only that the defamatory matter was published or spoken of the plaintiff, that the statement was made to a third party, that the statement was untrue, and that the statement caused harm. Norris v. Hathaway, 561 N.W.2d 583, 585 (Neb. 1997); Neb. Rev. Stat. § 25-839; White v. Ardan, Inc., 430 N.W.2d 27, 31 (Neb. 1988).
Defendants contend that this claim should be dismissed. First, I agree with the defendants that plaintiff may be barred from using statements made to the Nebraska Unemployment Compensation Tribunal at trial to prove slander. See Drew v. Davidson, 667 N.W.2d 560, 564 (Neb. 2003) (holding all statements by witnesses in judicial and quasi-judicial proceedings to be absolutely privileged). However, plaintiff has still stated a claim for slander against Bertsch. She has specified at least one topic of the slanderous statements — her resignation and her work performance. Plaintiff has alleged that Bertsch published the statement to others, that the statement was untrue, and that the statement caused her harm. Therefore, a cause of action for slander has been stated against Bertsch. Likewise, plaintiff has stated a claim for slander against Loncke. Plaintiff alleges that Loncke made statements about her fitness to perform her job to third parties which caused her damage. The allegations set forth in the complaint against both of these defendants are sufficient to require that I deny the motion to dismiss. However, defendants are free to raise these issues at the summary judgment stage, if there is insufficient evidence to support the claims.
THEREFORE, IT IS ORDERED that defendants' motions to dismiss, Filing Nos. 16 and 18, are denied.