Roberts v. Amtrust Bank

Filing 23

OPINION and ORDER granting 10 Motion to Dismiss Counts VIII and IX of 1 Complaint. Plaintiff may file an Amended Complaint within fourteen (14) days. Signed by Judge Kenneth A. Marra on 12/22/2014. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-81266-CIV-MARRA/MATTHEWMAN
LOUISE ROBERTS,
Plaintiff,
vs.
AMTRUST BANK, a division of
New York Community Bank,
Defendant.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant’s Motion to Dismiss Counts VIII and IX
of Plaintiff’s Complaint (DE 10). The motion is fully briefed and ripe for review. The Court has
carefully considered the Motion and is otherwise fully advised in the premises.
I. Background
On October 14, 2014, Plaintiff Louise Roberts (“Plaintiffs”) filed a nine-count Complaint
against Defendant Amtrust Bank (“Defendant”), alleging age discrimination in violation of the
Age Discrimination in Employment Act (“ADEA”) (count one), unlawful retaliation under the
ADEA (count two), gender discrimination in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”) (count three), retaliation pursuant to Title VII (count four), age discrimination
in violation of the Florida Civil Rights Act (“FCRA”) (count five), gender discrimination in
violation of the FCRA (count six), retaliation in violation of the FCRA (count seven), intentional
infliction of emotional distress (count eight) and negligent hiring, retention and training (count
nine). The underlying allegations concern employment discrimination as well as harassment and

a hostile work environment.
Defendant moves to dismiss counts eight and nine of the Complaint on the basis that the
claim for intentional infliction of emotional distress fails because the facts alleged do not meet
the outrageousness requirement of that tort. Defendant also moves to dismiss the claim for
negligent hiring, retention and training. Defendant contends that the Complaint does not contain
any allegations of negligent hiring. With respect to negligent retention and training, Defendant
asserts that the facts alleged do not meet the requisite standard.
In response, Plaintiff states that the “outrageous” conduct requirement for the tort of
intentional infliction of emotional distress is “currently defined beyond reason and should be
modified.” (Resp. at 1.) Additionally, Plaintiff states that she seeks only to bring a claim for
negligent retention and training, not hiring, and that if the Court agrees that she stated a claim for
intentional infliction of emotional distress, then the claim for negligent retention and hiring
should be allowed to proceed.
II. Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
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"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility 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. Thus, "only a complaint that states a
plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion
to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a
plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984).
III. Discussion
Under Florida law, to state a cause of action for intentional infliction of emotional
distress, a complaint must allege four elements: “(1) deliberate or reckless infliction of mental
suffering; (2) outrageous conduct; (3) the conduct caused the emotional distress; and (4) the
distress was severe.” Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 594 (Fla. Dist. Ct. App.
2007). Whether conduct is outrageous enough to support a claim for intentional infliction of
emotional distress is a question of law, not a question of fact. Id. at 595; see also Baker v. Florida
Nat. Bank, 559 So. 2d 284, 287 (Fla. Dist. Ct. App. 1990) (“The issue of whether or not the
activities of the defendant rise to the level of being extreme and outrageous so as to permit a
claim for intentional infliction of emotional distress is a legal question in the first instance for the
court to decide as a matter of law.”).
Behavior claimed to constitute the intentional infliction of emotional distress must be “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency.” Ponton v. Scarfone, 468 So.2d 1009, 1011 (Fla. Dist. Ct. App. 1985) (quoting
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Metropolitan Life Ins. v. McCarson, 467 So.2d 277, 278 (Fla. 1985)). In applying that
standard, the subjective response of the person who is the target of the actor's conduct
does not control the question of whether the tort of intentional infliction of emotional
distress occurred. Id. Rather, the court must evaluate the conduct as objectively as is
possible to determine whether it is “atrocious, and utterly intolerable in a civilized
community.” Id. (quoting Metropolitan, 467 So.2d at 278).

Liberty Mut., 968 So.2d at 594-95.
The conduct alleged, if true, does not meet the standard of being “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.” Metropolitan, 467 So.2d
at 278-79 (quoting Restatement (Second) of Torts § 46 (1965)). See e.g., Williams v. Southeast
Florida Cable, Inc., 782 So.2d 988 (Fla. Dist. Ct. App. 2001) (holding trial court did not err in
dismissing claim for intentional infliction of emotional distress where the alleged conduct did not
rise to the level of outrageousness required under Florida law). Liability does not extend to
“mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Scheller v.
Am. Med. Int'l, Inc., 502 So.2d 1268, 1271 (Fla. Dist. Ct. App.1987) (quoting Restatement
(Second) of Torts § 46 cmt. d (1965)).
Generally, courts have been hesitant to allow intentional infliction of emotional distress
claims that arise from abuses in the workplace. See generally Hare v. Citrus World Inc., 39 F.
Supp. 2d 1365, 1369 (M.D. Fla.1999) (“precedent on the tort . . . especially within the
employment context, reveals an unwillingness by Florida courts to allow a plaintiff to proceed on
this theory”); Vernon v. Med. Mgmt. Assoc. of Margate, Inc., 912 F. Supp. 1549, 1558
(S.D.Fla.1996). Ordinary sexual harassment by coworkers, for instance, is generally not
considered to be outrageous conduct, even when the harassment is flagrant. See Ball v.
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Heilig–Meyers Furniture Co., 35 F. Supp. 2d 1371, 1375–76 (M.D. Fla.1999) (no outrageous
conduct where defendant store manager rubbed genitals against plaintiff and repeatedly engaged
in verbal sexual innuendo); Pucci v. USAir, 940 F. Supp. 305, 309 (M.D. Fla.1996) (placement
of pornographic material and suggestive comments did not reach level of outrageousness). But
cf. Johnson v. Thigpen, 788 So.2d 410, 412 (Fla. Dist. Ct. App.2001) (verbal sexual harassment,
coupled with the existence of “repeated offensive, unwelcomed physical contact,” was
sufficiently outrageous). Courts also regularly find that gender discrimination allegations,
whether delivered by verbal insults or intimidating acts, are not egregious enough to be
“outrageous.” See Hercule v. Wendy’s of N.E. Florida, Inc., No. 10–80248–CIV, 2010 WL
1882181, at * 3 (S.D. Fla. May 11, 2010) (granting motion to dismiss on intentional infliction of
emotional distress claim when supervisor made derogatory verbal comments about the plaintiff’s
pregnancy and fabricated false work reports about the plaintiff); Latson v. Hartford, No.
05CV1435ORL19KRS, 2006 WL 485097, at * 4 (M.D. Fla. Feb. 28, 2006) (dismissing
intentional infliction of emotional distress claim when supervisor made insensitive comments
regarding pregnancy, which allegedly caused her miscarriage).
Here, none of factual allegations in the Complaint constitute intentional infliction of
emotional distress as a matter of law. By way of example, the complained-about conduct
concerns allegations that Plaintiff was held to a “higher” standard than other employees and was
subjected to criticisms of her work performance and unjust evaluations. (Compl. ¶ ¶ 14-23.)
Given the outrageousness requirement, the Court finds that this behavior does not meet the
standard. Indeed, Plaintiff’s response memorandum instead asks for the Court to disregard the
Florida state law precedent and to redefine the tort to include relief for these types of allegations.
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The Court cannot do this and instead must follow Florida state law precedent. See West v. AT &
T Co., 311 U.S. 223, 236 (1940) (“. . . the highest court of the state is the final arbiter of what is
state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining
state law unless it has later given clear and persuasive indication that its pronouncement will be
modified, limited or restricted.”). Thus, this claim is dismissed.
Finally, with respect to the negligent hiring claim, Plaintiff explains that the claim
relating to hiring was a scrivener’s error. With respect the retention and training claim, she does
not dispute that the failure to state a claim for intentional infliction of emotional distress is fatal
to this claim. See, e.g., Foster v. Select Med. Corp., Inc., No. 6:11–cv–1234–J–37GJK, 2012
WL 1415499, at * 9 (The underlying wrong committed by an employee in a negligent retention
and training claim “must be based on an injury resulting from a tort which is recognized under
common law”); Scelta v. Delicatessen Support Services, Inc., 57 F. Supp. 2d 1327, 1348 (M.D.
Fla.1999) (same). Therefore, the Court will dismiss this claim as well.
Plaintiff requests leave to amend to assert additional facts to support her claims. The
Court will grant Plaintiff leave to amend, provided she can do so in good faith and in accordance
with Rule 11 of the Federal Rules of Civil Procedure.

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IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion to
Dismiss Counts VIII and IX of Plaintiff’s Complaint (DE 10) is GRANTED. Plaintiff may file
an amended complaint within 14 days of the date of entry of this Order.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 22nd day of December, 2014.
______________________________________
KENNETH A. MARRA
United States District Judge

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