William C. Lee, Judge.
This matter is before the Court on the Partial Motion to Dismiss filed by Defendants Curo Health Services, LLC and SouthernCare Hospice, Inc. (ECF 38).
Robin and Gary Reiber, wife and husband, filed this lawsuit in state court on December 5, 2016. Complaint (ECF 4). Defendants Curo Health and SouthernCare removed the case to this Court on January 27, 2017, on the basis of federal question jurisdiction. Notice of Removal (ECF 1).
The Reibers make the following factual assertions and allegations in their Amended Complaint, which are taken as true for purposes of the motion to dismiss. Robin Reiber was "employed by Defendant, SouthernCare Hospice and worked under the supervision of SouthernCare's Medical Director, Defendant, Dr. John Mathew[ ]" from April 27, 2015, until October 20 when she "was forced to resign as a result of the severe and pervasive sexual harassment by Dr. Mathew, [and] the hostile work environment" to which she was subjected. Amended Complaint, pp. 1 and 10. Curo Health Services is named as a defendant because the Reibers contend that "all of SouthernCare's supervisors and employees were also employees of Curo." Id., p. 3.
Based on these factual assertions (and additional underlying facts that will be discussed below as they become pertinent to the Court's analysis) the Reibers allege the following federal and state law claims:
1) a claim for "sexual harassment and hostile work environment" in violation of Title VII of the Civil Rights Act (Amended Complaint, Count 1, pp. 10-12);
2) a claim for retaliation under Title VII (id., Count 2, pp. 12-13);
3) state law claims for "negligent hiring and supervision and respondeat superior" (id., Count 3, pp. 13-14);
4) state law claims for "assault and battery" (id., Count 4, pp. 14-15);
5) a state law claim for "intentional infliction of emotional distress" (id., Count 5, pp. 15-16);
6) a state law claim for "negligent infliction of emotional distress" (id., Count 6, p. 16);
7) a state law claim for negligence (id., Count 7); and
8) a state law claim, asserted by Mr. Reiber, for "loss of services" (id., Count 8, p. 17).
In their prayer for relief, the Reibers seek compensatory and punitive damages, attorney fees and costs, and unspecified injunctive relief to "[e]njoin the Defendants from future violations of Title VII." Id., p. 17.
Curo Health and SouthernCare bring their joint motion for partial dismissal pursuant to Federal Rule 12(b)(6), arguing that the Reibers' Amended Complaint fails to allege any cognizable state law claim against either Defendant. Partial Motion to Dismiss.
A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) allows a defendant to move to dismiss a complaint that fails to "state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the Supreme Court explained that the complaint must allege facts that are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint must include "enough facts to state a claim to relief that is plausible on its face." Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal citation and quotation marks omitted). To be facially plausible, the complaint must allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Stated differently, "[a] motion under Rule 12(b)(6) challenges the sufficiency of the complaint and not the merits of the suit." Neal v. Backs, 2016 WL 5933429, *2 (N.D.Ind. Oct. 12, 2016) (citing Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990)). In Twombly the Supreme Court articulated the following standard regarding factual allegations that are required to survive dismissal:
Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quotation marks, ellipsis, citations, and footnote omitted). A plaintiff can also plead himself out of court if he pleads facts that preclude relief. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007); McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). Finally, determining whether a complaint states a plausible claim for relief requires a reviewing court to "draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
Curo Health and SouthernCare argue that the Amended Complaint fails to state claims against them for several reasons. They note that the Amended Complaint "failed to remove claims under Indiana law for sexual harassment from Count 1. Indiana law does not recognize a private right of action for employment discrimination or harassment and the state law portions of Count 1 must be dismissed under Rule 12(b)(6)." Defendants' Memorandum in Support (ECF 39), p. 2. They contend that "[s]imilarly, Plaintiffs have not alleged sufficient facts to support the theory of respondeat superior in Counts 4 and 5. Dr. Mathew (who was not an employee of Curo or SouthernCare) could not have been acting as an agent of Curo or SouthernCare when he allegedly harassed [Mrs. Reiber], and Plaintiffs cannot assert claims for assault, battery, or intentional infliction of emotional distress against either company."
The issue regarding a state law claim for sex discrimination appears to arise out of slightly confusing or inartful language in the original Complaint that was not removed from the Amended Complaint. Count 1 of the Amended Complaint is titled "SEXUAL HARASSMENT AND HOSTILE WORK ENVIRONMENT" and consists of 18 paragraphs. Amended Complaint, pp. 10-12 (capitalization in original). The detailed assertions and allegations in those paragraphs clearly state claims against the Defendants under Title VII, and these claims are not challenged by the motion to dismiss. But, in the second to last paragraph of Count 1, the Plaintiffs state: "The sexual harassment, assault, hostile work environment, retaliation, and Robin's constructive discharge were in violation of Robin's rights under Title VII and Indiana State law." Id., p. 12, ¶ 83.
The Defendants are correct that Title VII, not Indiana state law, provides the legal foundation for Robin Reiber's sexual harassment, hostile work environment, constructive discharge, and retaliation claims, and so they move to dismiss those claims to the extent the Plaintiffs are trying to bring them under both Title VII "and Indiana State law." In other words, the last four words of paragraph 83 are the reason for Defendants' motion to dismiss since they arguably imply (or at least the Defendants infer) a cause of action for sexual harassment under state law as well as Title VII. This is unlikely since Count 1 contains express allegations of "unwelcome verbal and physical sexual advances" (id., ¶ 68) "directed at Robin because she is female" (id., ¶ 69), and which were "severe and pervasive and created a hostile working environment for Robin[ ]" (id., ¶ 70) — the classic language of a Title VII claim. Also, Mrs. Reiber states in the Amended Complaint (as she did in the original Complaint) that she exhausted mandatory administrative remedies prior to filing this lawsuit by filing a charge of discrimination, under Title VII, with the Fort Wayne Metropolitan Human Relations Commission" and therefore "Robin has exhausted all administrative remedies, and all conditions precedent to the institution of this lawsuit have been fulfilled." Amended Complaint, p. 2, ¶¶ 8, 10; see also, original Complaint, p. 3, ¶¶ 8, 10. These statements also make clear Mrs. Reiber's intent to bring her sex discrimination claims under Title VII. Neither the original Complaint nor the Amended Complaint include any mention of a "state law" discrimination claim and neither one cites or references any state statute or common law theory that would support such a claim.
Count 1 of the Amended Complaint, as its title indicates, clearly asserts a cause of action under Title VII based on allegations of sexual harassment, hostile work environment, retaliation,
Curo and SouthernCare argue that the Reibers cannot proceed with their state law claims for negligent hiring and supervision (Count 3), negligent infliction of emotional distress (Count 6), negligence (Count 7), or loss of services (Count 8) because those tort claims are "precluded by Indiana's Worker's Compensation Statute." Defendants' Memorandum, p. 13. The Defendants note that in her original Complaint, Mrs. Reiber stated that she "suffered `pain and suffering' and `physical injury' in the scope and course of her employment." Id., pp. 9-10 (quoting original Complaint). Therefore, argue the Defendants, "Plaintiffs' allegations that Mrs. Reiber was injured because she was fulfilling her normal job duties invalidated her negligence claims under the [Worker's Compensation] Act." Id, p. 10 (citing Neal v. Backs, 2016 WL 5933429 at *8 (N.D. Ind. Oct. 12, 2016)). The Defendants then argue that "Plaintiffs attempted to cure their error by removing references to physical injury in the Amended Complaint.... However, Plaintiffs hedged their bets stating in their Response to Defendants' Motion to Dismiss, [that] `Mrs. Reiber was physically injured in the sense that there was unwelcome touching, but not in terms of needing medical attention for a physical injury.' ... Thus, Plaintiffs still claim Mrs. Reiber suffered a physical injury as it relates to her battery claim, but conveniently, not as it relates to her negligence claims. Plaintiffs cannot have it both ways and her negligence claims should be dismissed on this basis." Id. The long and short of it, according to the Defendants, is that Mrs. Reiber alleges she suffered injuries while at work and so any negligence based claims she might try to assert are barred by the exclusivity provision of Indiana's Worker's Compensation Act.
The Indiana WCA states that "[t]he rights and remedies granted to an employee" under the WCA "on account of personal injury ... by accident shall exclude all other rights and remedies of such employee ... on account of such injury." Ind. Code § 22-3-2-6. The exclusivity provision of the WCA bars a court from hearing a common law claim brought by an employee if the "employee's injury occurred by accident arising out of and in the course of employment." Sims v. U.S. Fid. & Guar. Co., 782 N.E.2d 345, 349-50 (Ind. 2003).
Addressing the elements in reverse order, Mrs. Reiber does not dispute that the events giving rise to her tort claims occurred while she was at work. Since an "accident occurs `in the course of' employment when it takes place at the time and place of a person's employment while [the] employee is fulfilling his duties[,]" Global Constr., Inc. v. March, 813 N.E.2d 1163, 1166 (Ind. 2004), there is no dispute that this element is satisfied in this case.
More than the injured employee's mere presence at work is necessary, however, for an injury to "arise out of" that work. An injury "`arises out of' employment when a causal nexus exists between the injury ... and the duties or services performed by the injured employee." DePuy, Inc. v. Farmer, 847 N.E.2d 160, 164 (Ind. 2006). At first glance it seems counterintuitive to characterize Mrs. Reiber's alleged injuries as being the result of an accident or having arisen out of her work. It is easy to see, for example, how injuries sustained by a forklift driver when his forklift malfunctions (let's assume even that the employer was negligent in maintaining the machine) while he is operating it to unload pallets as part of his assigned duties were sustained "by accident." This seems especially obvious given that one Indiana court has explained that an injury is causally related to the scope of the plaintiff's employment, and therefore subject to the WCA, "when a reasonably prudent person considers a risk to be incidental to the employment at the time of entering into it." Burke v. Wilfong, 638 N.E.2d 865, 869 (Ind.Ct.App. 1994); see also, Ward v. Lowe's, 76 N.E.3d 918, 921 (Ind.Ct.App. 2017), trans. denied, 2017 WL 3608278 (Ind. Aug. 15, 2017) ("An injury arises out of employment when a causal nexus exists between the injury sustained and the duties or services performed by the employee."). It seems counterintuitive (if not outright absurd) to suggest that any employee would consider the risk of injury from a sexually hostile work environment as "incidental" to her employment. On the other hand, it seems equally counterintuitive that an employee would consider getting battered or
Indiana courts have explained that there is a difference, for purposes of the WCA, between an incident that occurs "by accident" and one that occurs as a result of "an accident." "The first jurisdictional question a trial court must answer is whether the injury at issue occurred `by accident.' ... If the injury did not occur `by accident,' then the [WCA] does not apply and the trial court has jurisdiction." Tippmann v. Hensler, 716 N.E.2d 372, 375 (Ind. 1999). The Tippmann court explained that difference as follows:
Id. (quoting Evans, 491 N.E.2d at 974). So, even injuries sustained by an employee who is assaulted or battered by a co-employee can be deemed to be the result of "accidental injury" for purposes of application of the WCA, at least as to the employer.
It would appear, then, that the elements of a worker's compensation claim are present in this case: the incidents giving rise to the Reibers' claims occurred in the course of Mrs. Reiber's employment, arose out of her employment (or so the Court will assume for present purposes since the Reibers don't challenge this point), and resulted in unexpected (and therefore "accidental") injury. But the inquiry doesn't end there. "Once the issue of exclusivity under the WCA is raised, the burden shifts to the plaintiff to prove that the claim falls outside the scope of the WCA." Branham v. Celadon Trucking Serv's., Inc., 744 N.E.2d 514, 519 (Ind.Ct. App. 2001); Eichstadt v. Frisch's Restaurants, Inc., 879 N.E.2d 1207, 1210 (Ind.Ct. App. 2008)). The Reibers argument does not focus on any of the three prongs just discussed. Instead, they argue that their claims are outside the gravitational pull of the WCA because "[t]he Act's exclusivity provision does not apply to claims where the plaintiff did not sustain a `physical injury' or `loss of physical function.'" Plaintiffs' Response, p. 6 (citing Tacket, 93 F.3d at 335 and Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1289 (Ind. 1994)). The Reibers point out that in Perry,
Perry, 637 N.E.2d at 1289 (italics added). The Reibers quote this passage from Perry and argue that "[h]ere, as in Perry, the Plaintiffs did not sustain physical injuries. Consequently, the exclusivity provision of the Act does not bar the Plaintiffs' negligence claims." Plaintiffs' Response, p. 7.
The Defendants counter this argument by contending that even if the Plaintiffs "do not seek damages for a physical injury, their negligence claims cannot succeed because Robin Reiber claims the emotional distress caused by Dr. Mathew's alleged conduct caused her such suffering she was forced to quit her job.... Robin Reiber is therefore unwilling or unable to do her job and her claims are barred by the Act." Defendants' Reply, p. 6. In support of this argument, the Defendants cite Roell v. American Senior Communities, LLP, et al., 970 N.E.2d 270 (Ind.Ct.App. 2012), an unpublished opinion that they claim holds that "employees who claim their emotional distress caused them to be unable to work suffer a `physical injury' or `disability' under the Act." Id. Therefore, argue the Defendants, "employees allegedly `disabled' by their emotional injuries cannot bring a claim for negligence against a prior employer." Id. The Defendants argue that "[s]imilarly, here, Plaintiffs specifically allege: `Robin Reiber was forced to resign as a result of the severe and pervasive sexual harassment by Dr. Mathew, ... the refusal of SouthernCare and Curo to reasonably prevent or attempt to correct ... Dr. Mathew's harassment, and SouthernCare and Curo's acts of retaliation against Robin.'" Id. (quoting Amended Complaint, ¶ 64). "Thus, Plaintiffs claim Defendants' actions caused Robin Reiber such emotional turmoil that she was unable to do her job and was forced to quit. She was, therefore, unable or unwilling to perform her job at SouthernCare and suffered a `disability' under the Act." Id.
Curo and SouthernCare argue that the Reibers' claims are barred by the WCA because the elements of a worker's compensation claim are present and, more to the point here, because Mrs. Reiber's alleged injuries, even if nonphysical, amount to a "disability" that is subject to the WCA. The Reibers argue in response that their claims do not invoke the WCA and that the Defendants are misinterpreting or mischaracterizing the Plaintiffs' allegations. Plaintiffs' Response, p. 5.
Indiana law is clear that "[t]o the extent [a plaintiff] seeks damages for only emotional distress ... those claims would not be barred by the Act." Davis v. Tri Mfg., Inc., 2000 WL 33281133, at *15 (S.D. Ind. Dec. 18, 2000) (citing Tacket, 93 F.3d at 335) (employee who alleged no physical injury and sought damages solely for emotional
In support of their position, Curo and SouthernCare cite Neal v. Backs, 2016 WL 5933429, a decision by this Court in which Judge Springmann found that the plaintiff's claims against his employer for negligent hiring, negligent retention, and premises liability, all of which stemmed from alleged racial harassment by co-workers, were subject to the exclusivity provision of the WCA. Judge Springmann held that "[t]he Amended Complaint makes clear that Plaintiff Neal's alleged injuries took place at the time and place of his employment, while he was fulfilling his duties, and he does not suggest or argue otherwise. Therefore, the Court finds that Plaintiff Neal's alleged injuries occurred in the course of his employment for the purposes of the WCA. Accordingly, the WCA's exclusivity provision applies to bar Plaintiff Neal's state tort claims[.]" Neal, 2016 WL 5933429, at *8. Even though Neal was seeking compensation for non-physical injuries, the issue of the nature of his injuries was not before the Court. Put another way, the issue of the applicability of the WCA in that case turned not on the type of injuries involved, but whether those injuries occurred "by accident." Judge Springmann found that they did and therefore
As another district court has explained, "[t]he Act does not bar claims for which the plaintiff does not seek relief for physical injury, disability or impairment." Neal v. Rock-Tenn Co., 2005 WL 1939955, at *10 (S.D. Ind. Apr. 20, 2005) (citing McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1166 (7th Cir. 1997) (holding that Act did not bar intentional infliction of emotional distress claim)). The Court in Neal concluded that "it is apparent that [Ms. Neal] does not seek damages for physical injuries. She has offered no evidence of any physical injuries. To the extent that Ms. Neal seeks damages for non-physical injuries, the Act does not bar her state law claims." Id. (citing Tacket, 93 F.3d at 335) ("On remand, Tacket may present evidence of any nonphysical injuries he suffered, but if he wishes to recover for any physical injuries, he must do so before the Indiana Worker's Compensation Board.").
The Defendants' argument is not wrong-purely nonphysical injuries can be subject to the WCA in limited circumstances — but it doesn't carry the day in this case. An emotional or mental injury incurred in the scope of employment is deemed subject to the WCA only if that injury rises to the level of a "disability" or "impairment" as those terms are contemplated by the Act. This brings us to the Defendants' fall-back argument, which is that Mrs. Reiber's injuries constituted a disability and are therefore swallowed up by the WCA. The Court disagrees. The Indiana Court of Appeals addressed this issue directly in Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514 (Ind. Ct.App. 2001), and explained as follows:
Branham, 744 N.E.2d at 520 (italics added).
In fact, the defendant in Branham argued, as do Curo and SouthernCare here, that the plaintiff's injuries, notwithstanding their nonphysical nature, still constituted a disability or impairment and were subject to the Act. The court rejected that argument and explained as follows:
Branham, 744 N.E.2d at 520-21 (internal citations omitted) (italics added).
Whether Mrs. Reiber's alleged injuries constitute a disability or impairment for purposes of the WCA depends, of course, on her allegations and the reasonable inferences to be drawn from them. In their Amended Complaint, the Reibers make the following pertinent allegations:
1) "Dr. Mathew's interaction with Robin quickly changed from Dr. Mathew being polite and friendly to Dr. Mathew being overly flirtatious and inappropriate. He began propositioning Robin nearly every time she was required to be in his medical office and when she was required to call Dr. Mathew regarding patient care." Amended Complaint, ¶ 21.
2) "By June 2015, the unwelcome and hostile environment that existed at the medical office was brought by Dr. Mathew to ... meetings. At the ... meetings, his conduct toward Robin included staring, winking, ogling, smirking and propositioning." Id., ¶ 22.
4) "Director Huffman did nothing to remedy the co-workers' teasing, demeaning, and degrading of Robin. At times, Director Huffman even joined in and encouraged this behavior by laughing along with her subordinates at Robin's expense." Id., ¶ 25.
5) "The sexual harassment, hostile work environment, physical assault, retaliation, constructive discharge, intentional acts, inactions, and negligence committed by Defendants have caused damages to Robin and Gary, including but not limited to, pain, suffering, mental anguish, loss of services and consortium, and lost wages, for which Defendants are responsible." Id., ¶ 66.
6) "The overwhelmingly hostile work environment forced Robin to resign from her position with SouthernCare/Curo. The circumstances of Robin's resignation constituted constructive discharge." Id., ¶ 82.
7) "Robin has suffered damages as a result of the Defendants' unlawful actions." Id., ¶ 84.
8) "Southern Care and Curo's negligent hiring and supervision of Dr. Mathew as its Medical Director proximately caused the Plaintiffs' damages including but not limited to, pain, suffering, severe emotional distress, shame, mental anguish, loss of services and consortium, and lost wages." Id., ¶ 96.
9) "Dr. Mathew's conduct and actions proximately caused the Plaintiffs to suffer severe emotional distress, mental anguish, indignation, wounded pride, shame, despair, physical injury, and loss of services and consortium." Id., ¶ 106.
10) "Dr. Mathew's negligent and/or reckless conduct has proximately caused the Plaintiffs to suffer severe emotional distress, mental anguish, indignation, wounded pride, shame, despair, and loss of services and consortium." Id., ¶ 119.
11) "On October 20, 2015, ... Robin contacted Director Huffman ... and advised she could not continue working in this environment." Id., ¶ 62.
Curo and SouthernCare try to characterize Mrs. Reiber's injuries as a "disability," or "impairment," but their argument attempts to place a square peg into a round hole. As the Indiana Court of Appeals has explained, a disability or impairment, to be subject to he WCA, is more than a refusal, or even emotional inability, to continue to work in a discriminatory and hostile environment: "[Plaintiff's] Amended Complaint ... claimed that [he] suffer[ed] embarrassment, humiliation, and severe emotional and physical distress `to the point that [his] doctor determined that [he] was fully disabled and unable to work.' ... As such, even though [plaintiff] purported to disclaim any recovery under the WCA in his Amended Complaint, the trial court correctly concluded that the substance of [his] claims fell under the WCA and properly dismissed those claims." Hart v. Webster, 894 N.E.2d 1032, 1036-37 (Ind.Ct.App. 2008). The present case, however, is easily distinguishable since the allegations and assertions in the Reibers' Amended Complaint, read as a whole and with all reasonable inferences drawn in their favor, unequivocally state claims for emotional and mental damages, not physical injury, disability or impairment. The Defendants argue that since Mrs. Reiber alleges that she was unable to continue performing her job, she is "disabled." But as the Reibers point out, the Defendants have "confused Mrs. Reiber's inability to continue her employment with
The Defendants argue that Mrs. Reiber's claim for negligent infliction of emotional distress fails for another reason also. They argue that "`[t]o maintain a claim for negligent infliction of emotional distress, a plaintiff must show that she suffered a direct physical impact.' Neal, [2005 WL 1939955 at *10] (citing Bader v. Johnson, 732 N.E.2d 1212, 1221 (Ind. 2005) (stating that `[a]s modified, the [impact] rule still requires physical impact'); Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1263-64 (Ind.Ct.App. 2002) (holding that in being discharged employee did not sustain the direct physical impact required to maintain an action for negligent infliction of emotional distress); Ketchmark v. N. Ind. Pub. Serv. Co., 818 N.E.2d 522, 524 (Ind.Ct.App. 2004) (rejecting argument that proof of `direct involvement' without the requirement of impact upon or threat of injury to a person is sufficient to prove a claim for negligent infliction of emotional distress))." Defendants' Memorandum, p. 12. The Defendants contend that since Mrs. Reiber did not "suffer[ ] a physical injury as a result of Defendants' alleged negligent infliction of emotional distress... her claim is facially deficient." Id. (italics added). This argument is incorrect and the Defendants' reliance on Neal is misplaced. In that case, there was no dispute that "Ms. Neal has pointed to no evidence that she suffered a direct physical impact or physical change as a result of the alleged negligent infliction of emotional distress." Neal, 2005 WL 1939955, at *10. Furthermore, the court noted that "Ms. Neal does not claim that [the sexually harassing co-employee] ever inappropriately touched her or propositioned her." Id. at *2. The other cases cited by the Defendants merely state the general rule
The Reibers readily concede that "Indiana law requires a `direct physical impact'" but they also correctly point out that "`the impact need not cause a physical injury to the plaintiff and the emotional trauma suffered by the plaintiff need not result from a physical injury caused by the impact.'" Plaintiffs' Response, p. 7 (quoting Powdertech, Inc., 776 N.E.2d at 1263). The Reibers state that they "have alleged multiple `direct physical impacts[,]' ... [including] how Dr. Mathew grabbed Mrs. Reiber's hand[,] ... the frightening encounter... in which Dr. Mathew grabs Mrs. Reiber, presses himself against her, presses her breasts against his chest and Mrs. Reiber pushes him away from her. Therefore, the Amended Complaint does state a claim for negligent infliction of emotional distress." Id., p. 8.
The Reibers are correct. The Indiana Court of Appeals explained the issue this way:
Powdertech, 776 N.E.2d at 1263. The Reibers' Amended Complaint includes very specific assertions about the "physical impact" Mrs. Reiber experienced with Dr. Mathew and the alleged emotional trauma she experienced as a result. Her allegations are sufficient to state a claim for negligent infliction of emotional distress that survives the motion for partial dismissal.
The Defendants argue that the Reibers' claims for assault and battery (Count 4) and intentional infliction of emotional distress (Count 5) must be dismissed for "[f]ailure to state a claim for liability as to Curo and SouthernCare under respondeat superior." Defendants' Memorandum, p. 13. The Defendants argue that the Reibers cannot pursue these claims against either Curo or SouthernCare because all of them arise from the alleged illegal conduct of Dr. Mathew and the Amended Complaint fails to establish the necessary elements for a respondeat superior theory
In their response brief, the Reibers argue that "[t]he allegations in the Amended Complaint, construed in favor of the Plaintiffs, show that SouthernCare, through its policies, acted in concert with Dr. Mathew to intentionally create the outcome-constructive discharge — and his acts were, in whole or in part, authorized by SouthernCare." Plaintiffs' Response, p. 3. The Reibers contend that "[t]he allegations in the Amended Complaint are sufficient to show that SouthernCare used Dr. Mathew's conduct to achieve their goal of forcing Mrs. Reiber to leave her employment[ ]" and "[t]herefore SouthernCare can be held vicariously liable for the intentional acts of Dr. Mathew." Id., pp. 3-4. The Reibers point to specific factual assertions included in their Amended Complaint in support of their argument, writing as follows:
Id., p. 4. The Reibers also claim that "[t]wo days after Mrs. Reiber reported Dr. Mathew's conduct, SouthernCare had posted an advertisement to fill Mrs. Reiber's position as an RN Case Manager in Fort Wayne on the SouthernCare website .... Coupled with this, SouthernCare also nearly doubled Mrs. Reiber's workload following her report of the battery and sexual harassment." Id. (citing Amended Complaint, ¶¶ 49, 52). Then, "[w]ithin days, Dr. Mathew again tried to attack Mrs. Reiber which forced her to end her employment.... These allegations are sufficient to show that SouthernCare authorized Dr. Mathew's actions to force Mrs. Reiber to end her employment." Id., p. 5 (citing Amended Complaint, ¶ 56). In other words, the Reibers insist that SouthernCare and Curo are vicariously liable for the alleged conduct of Dr. Mathew — including the assault and battery alleged in Count 4 and the intentional infliction of emotional distress alleged in Count 5-because they knew about it, did nothing to stop it, and even endorsed it in an effort to force out a troublesome employee. The problem with this position is that it is based on speculation, conclusion and a tortured interpretation
As the Defendants point out, the Reibers cite no authority in support of their argument that respondeat superior liability attaches under the facts alleged in this case. Defendants' Reply, p. 5. Indeed, the Reibers cite only one case in support of their theory — Konkle v. Henson, 672 N.E.2d 450 (Ind.Ct.App. 1996)-which they correctly note holds that "[u]nder Indiana law, an employer can be vicariously liable for the intentional and/or criminal acts of an employee." Plaintiffs' Response, p. 4. "`The test is whether the employee's actions were at least for a time authorized.... If there is a sufficient association between the authorized and unauthorized acts, then the unauthorized acts can be within the scope of employment.'" Id. (quoting Konkle, 672 N.E.2d at 457). The Reibers appear to be seizing on the phrases "for a time authorized" and "sufficient association between authorized and unauthorized," and then insisting that because SouthernCare and Curo wanted to get rid of Mrs. Reiber they implicitly "authorized" Dr. Mathew's alleged tortious conduct. The Defendants characterize this as a "novel theory" of respondeat superior liability and maintain that "[t]here is simply no legal support for this argument[.]" Defendants' Reply, p. 5. The Court agrees. The portions of the holding in Konkle quoted by the Reibers are nothing more than statements of black letter Indiana law — that employers can be held liable for the torts of their employees or agents under certain circumstances. The Konkle case does not, however, support the Reibers' argument that respondeat superior liability attaches in this case.
In their reply brief, SouthernCare and Curo continue to insist that the Reibers "have not provided any factual or legal basis for their respondeat superior claims[ ]" because they have failed to "demonstrate Dr. Mathew was acting as Defendants' `alter ego, or that the injuries were the intended product of a corporate policy.'" Defendants' Reply, p. 3 (quoting Neal v. Rock-Tenn Co., 2005 WL 1939955, *10 (S.D. Ind. April 20, 2005)). The Defendants contend that "Plaintiffs must prove not that SouthernCare had some ill-will toward Robin Reiber and used Dr. Mathew as its pawn to effectuate that intent[,] but[ ] instead that Dr. Mathew had `ownership and control' of Defendants or harassed Robin Reiber pursuant to a policy `made through [Defendants'] regular decision-making channels.' Plaintiffs have not — and cannot — make either allegation." Id., p. 4 (quoting Avila v. United States Steel Corp., 2010 WL 2710641, *11 (N.D.Ind. July 6, 2010)).
Under Indiana law, "in order for an employee's act to fall `within the scope of employment' the injurious act must be incidental to the conduct authorized or it must, to an appreciable extent, further the employer's business." Barnett v. Clark, 889 N.E.2d 281, 283-84 (Ind. 2008) (citations omitted).
Del Real v. LaCosta, Inc., 2014 WL 584878, at *2-3 (N.D.Ind. 2014). In Barnett, the court held that an employer whose employee's authorized duties included determining whether individuals qualified for public aid could not be held liable for that employee's sexual assault of a client because the employee's "alleged acts of confining, sexually touching, and raping the plaintiff were not an extension of authorized physical contact" and were not "incidental to nor sufficiently associated with the [employee's] authorized duties." Barnett, 889 N.E.2d at 284. See also, Hollis v. Metro. Sch. Dist. of Pike Twp., 2013 WL 5656088, at *4 (S.D. Ind. Oct. 15, 2013) (tortfeasor's acts were not incidental to or associated with authorized conduct because he was not "explicitly or impliedly authorized to touch or confine" the plaintiff and therefore was not acting within the scope of his employment for purposes of respondeat superior claims.).
As the cases discussed and cited above clearly indicate, the Plaintiffs' attempt to characterize Dr. Mathew's alleged conduct as "authorized" under the facts of this case amounts to a swing and a miss. In fact, with respect to Dr. Mathew's authorized conduct, the Reibers state it included "supervision and direction of the medical care
Mrs. Reiber's allegations also fail to state viable respondeat superior claims for another reason. As the Defendants point out, the Amended Complaint contains "no allegation that SouthernCare or Curo intended the alleged [conduct] to occur." Defendants' Memorandum, p. 8. They point out that "in Counts 4 and 5, Plaintiffs list Dr. Mathew's alleged intentional misconduct in great detail, and then conclude with only `SouthernCare [and Curo] are liable to Plaintiffs under the theory of respondeat superior for Dr. Mathew's [conduct]." Defendants' Memorandum, p. 8. The Defendants argue that "[t]o show the employer intended the injury, Plaintiffs must demonstrate Dr. Mathew was acting as Defendants' `alter ego, or that the injuries were the intended product of a corporate policy.'" Id. (quoting Neal v. Rock-Tenn Co., 2005 WL 1939955, at *10). In Neal, the district court addressed this issue and explained as follows:
Id. As stated previously, the Reibers do not allege that Curo or SouthernCare were Dr. Mathew's "alter ego." And their argument that Dr. Mathew engaged in tortious conduct pursuant to a corporate policy, like their argument that his conduct was authorized, is based on speculation, conclusion and a tortured definition of "policy." The Reibers maintain that the Defendants "authorized Dr. Mathew's conduct through their `policy' to force Mrs. Reiber to leave her employment." Plaintiffs' Response, p. 2. (They even placed the word "policy" in quotation marks — perhaps a tacit or even unintentional admission that they are taking liberty in their use of the word.) What the Reibers are liberally calling a "policy" is actually their theory that Curo and SouthernCare, after hearing Mrs. Reiber's allegations, failed to take action to remedy the situation because they wanted to get rid of her. From these allegations the Reiber's argument takes a leap of faith and lands on the legal conclusion that the Defendants' actions (or lack thereof) constituted a "corporate policy" that the Defendants intended, or were certain to know, would result in injuries to Mrs. Reiber. This is not the stuff of which vicarious liability is made. As the Seventh Circuit has explained:
Holbrook, 219 F.3d at 601; see also, Avila v. U.S. Steel Corp. (EC Tin), 2010 WL 2710641, at *11 (N.D. Ind. July 6, 2010) (plaintiff "must show that the individual who committed the tort was acting pursuant to a policy or decision that was made through the corporation's regular decision-making channels by those who had authority to do so and the policy or decision intended to cause the employee's injury.") (citing Holbrook, 219 F.3d at 601).
Assuming the allegations are true and the Defendants wanted to get rid of Mrs. Reiber, their actions in that regard, according to the Amended Complaint, consisted only of allegedly refusing to intervene to stop the harassment or to discipline Dr. Mathew, which is quite different from "authorizing" his conduct. And the allegations certainly do not support the Reibers' position that Dr. Mathew was "acting pursuant to a policy or decision... made through the corporation's regular decision-making channels," the purpose of which was to intentionally inflict harm on Mrs. Reiber. She therefore cannot prevail on her intentional tort claims.
For all of the reasons discussed above, the Plaintiffs' allegations fail to state claims against Curo and SouthernCare for assault, battery and intentional infliction of emotional distress, based on theories of respondeat superior (or vicarious liability), and those claims are dismissed with prejudice. The dismissal is with prejudice because the Reibers' opposition brief does not request an opportunity to file a second amended complaint in the event some or all of her claims are dismissed under Rule 12(b)(6) and because any amendment would be futile. See Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013) ("When a complaint fails to state a claim for relief, the plaintiff should ordinarily be given an opportunity, at least upon request, to amend the complaint to correct the problem if possible."); Tribble v. Evangelides, 670 F.3d 753, 761 (7th Cir. 2012) ("District courts have broad discretion to deny leave to amend ... where the amendment would be futile."); Estrada v. Reed, 346 Fed. Appx. 87, 89-90 (7th Cir. 2009) (affirming the district court's denial of "a futile amendment" where the plaintiff could not state a viable claim); James Cape & Sons Co. v. PCC Constr. Co., 453 F.3d 396, 400-01 (7th Cir. 2006) (rejecting the plaintiff's argument that the district court erred in dismissing its complaint with prejudice, rather than without prejudice and with leave to amend, where the plaintiff did not request leave to amend). The Reibers did not request a second opportunity to amend and, in any event, the Court finds that any amendment would be futile as to the Plaintiffs' claims under any respondeat superior theory.
For the reasons set forth above, the motion for partial dismissal filed by Defendants Curo Health Services and SouthernCare Hospice (ECF 38) is
