BOYD v. KEYSTONE CONSTRUCTION COMPANY
Filing
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ORDER - Keystone's 15 motion to dismiss is GRANTED in its entirety. However, Boyd's claims are DISMISSED WITHOUT PREJUDICE and no final judgment will enter at this time in order to give Boyd an opportunity to file an amended complaint that corrects the deficiencies in the current complaint. In light of this ruling, the Court DENIES Boyd's 21 30 motions for summary judgment. Keystone's 31 motion to strike is DENIED AS MOOT. If Boyd wishes to continue with this sui t, she shall file an amended complaint by October 31, 2014. The failure to file a timely amended complaint will result in final judgment being entered against Boyd in this case. Copy mailed to Plaintiff via US Mail. Signed by Judge William T. Lawrence on 10/14/2014. (AH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NORETTA F. BOYD,
Plaintiff,
vs.
KEYSTONE CONSTRUCTION, et al.,
Defendants.
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) CAUSE NO. 1:14-cv-119-WTL-MJD
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ENTRY ON PENDING MOTIONS
This cause is before the Court on several pending motions, all of which are ripe for
review. The Court, being duly advised, rules as follows.
DEFENDANT’S MOTION TO DISMISS (DKT. NO. 15)
Only one Defendant remains in this action, Keystone Construction Corporation
(“Keystone”). Keystone moves to dismiss Plaintiff Noretta F. Boyd’s Complaint in its entirety.
A. Preliminary Matters
Before the Court addresses the arguments raised in Keystone’s motion, there are two
arguments made by Boyd, who is proceeding pro se in this action, that need to be addressed in
order to put the Court’s ruling in the proper framework.
First, Boyd repeatedly argues that Keystone has “default[ed] on providing an answer” in
this case. That is incorrect. Instead of serving an answer, Keystone filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Serving a motion under Rule 12 alters the
time period for filing an answer as set forth in Rule 12(a)(4). Indeed, it would have been
improper for Keystone to file an answer responding to claims that it was seeking to dismiss.
Second, Boyd is incorrect that the Court “may dismiss a claim only when it is clear that
no relief can be granted under any set of facts that could be proved consistent with the
allegations found in the complaint.” In a case called Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2007), the Supreme Court replaced that standard, which used to apply to motions
under Rule 12(b)(6), with a new standard. Now “[i]n order to survive a motion to dismiss, a
plaintiff must allege sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. And while we draw all reasonable inferences and facts in favor of the
nonmovant, we need not accept as true any legal assertions or recital of the elements of a cause
of action supported by mere conclusory statements.” Vesely v. Armslist LLC, 762 F.3d 661, 66465 (7th Cir. 2014) (citing Twombly and other cases). That said, however, “the pleading standards
for pro se plaintiffs are considerably relaxed,” even under the new rule. Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013). Complaints drafted by pro se litigants are
construed liberally and held to a less stringent standard than those drafted by lawyers. Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011).
It is with that standard in mind that the Court must review the allegations in Boyd’s
Complaint.
B. Facts Alleged in Boyd’s Complaint
The relevant facts 1 alleged in Boyd’s Complaint are as follow. Boyd, who had many
years of experience in the electrical design, engineering, and MEP (which the Court presumes
refers to mechanical, electrical and plumbing) construction management industry, established her
own consulting firm in 2005. Her work often involved “evaluating and reporting inconsistent
1
Boyd’s Complaint contains many facts that do not seem to be relevant to her claims
against Keystone and therefore are not recited here.
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cost proposals,” which put her in an adversarial relationship with the companies whose proposals
she was evaluating, including ERMCO Electric and Power Partners MasTec. Boyd experienced
unspecified “personal and professional retaliation in the building industry” as a result.
On September 27, 2012, Keystone offered Boyd the position of “Project Manager—
Wishard Hospital Electrical Services.” The “New Wishard Project,” as Boyd refers to it, was a
“public project”; Boyd does not specify whether federal funds, state funds, or both were used for
the project. As project manager, “Boyd was informed she would be managing
Divane/Wesco/Eaton and ERMCO/Wesco/Eaton,” both of which she was familiar with from her
previous employment. As Boyd explains it:
Upon inception into the New Wishard Project, Ms. Boyd immediately
experienced the impact and retaliation of prior employment and internal
complaints and the effort to redirect her career on The New Wishard Project and
ultimately out of the construction industry. Ms. Boyd voiced concerns about
inconsistencies with cost proposals she was asked to review and reported verbally
and by email, to both The New Wishard Team Management and Keystone
Construction Executives, on several documented occasions. On August 13, 2013,
Ms. Boyd wrote and presented a letter detailing those discrepancies and the
impact it has and was having on her personal and professional career to the New
Wishard Team Management.
Ms. Boyd reported to Mr. Seta and Mr. Paul Riehle, while managing Divane Bros
and ERMCO bid packages. Ms. Boyd endured gender/role based bullying,
harassment and retaliation and believes the team strategized to end Ms. Boyd’s
employment on The New Wishard Project and deliberately give a negative
perception of her ability to perform her duties professionally, ultimately
destroying her career.
C. Discussion
Boyd asserts six enumerated claims in her Complaint. Keystone moves to dismiss each
of them.
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1. Claim I: Retaliatory Discharge
Although Boyd has entitled this claim “Retaliatory Discharge in Violation of the False
Claims Act, 31 U.S.C. 3729-3733,” she actually asserts a claim for retaliation under both the
federal False Claims Act, 31 U.S.C. § 3730(h), and a similar Indiana provision, Ind. Code 22-53-3. She asserts that the New Wishard Project was a “public Funded Project Healthcare Facility”
and that she engaged in “protected activity” that was known by her “direct report(s)” (which
presumably means supervisors) Jim Seta, Paul Riehle, and Lynn Wall. She further asserts:
Plaintiff is dismissed on August 16, 2013, after submitting a written complaint on
August 13, 2013, with regards to entitlement, cost and scope discrepancies,
between change order proposals and base bid documents, and the retaliation she is
[sic] experienced in providing that information as part of her duties. The Plaintiff
reported/discussed the circumstances on several occasions (documented) by
email, phone and meeting with both Keystone and The New Wishard Team
executive management, prior to writing the letter.
As Keystone points out, Boyd has not provided sufficient facts to demonstrate that her claim for
retaliation under the federal False Claims Act is plausible because, while she has alleged that the
project was publically funded, she has not alleged that it was funded by the federal government;
nor has she alleged that she reasonably believed that any of the “entitlement, cost and scope
discrepancies” she complained about had resulted in or would result in a false claim for payment
by the federal government. 2 The False Claims Act does not prohibit retaliation for any kind of
complaint about improper behavior made by an employee; the improper behavior must relate to
claims for money from the federal government. To have a viable complaint for retaliation under
31 U.S.C. § 3730(h), Boyd needs to explain what complaints she made, whom she made them to,
2
To the extent that the Defendants suggest that Boyd had to be acting “in furtherance of
an action under this section,” they are incorrect; “[i]n 2009, Congress amended the statute to
protect employees from being fired for undertaking ‘other efforts to stop’ violations of the Act,
such as reporting suspected misconduct to internal supervisors.” Halasa v. ITT Educ. Servs., Inc.
690 F.3d 844, 847-48 (7th Cir. 2012) (quoting 31 U.S.C. § 3730(h)(1)).
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and how what she was complaining of related to false claims for payment that had been or were
going to be made to the federal government. She has not done so; accordingly, that claim must
be dismissed.
Similarly, under Indiana law:
(a) An employee of a private employer that is under public contract may report in
writing the existence of:
(1) a violation of a federal law or regulation;
(2) a violation of a state law or rule;
(3) a violation of an ordinance of a political subdivision (as defined in IC
36-1-2-13); or
(4) the misuse of public resources;
concerning the execution of public contract first to the private employer, unless
the private employer is the person whom the employee believes is committing the
violation or misuse of public resources. In that case, the employee may report the
violation or misuse of public resources in writing to either the private employer or
to any official or agency entitled to receive a report from the state ethics
commission under IC 4-2-6-4(b)(2)(G) or IC 4-2-6-4(b)(2)(H). If a good faith
effort is not made to correct the problem within a reasonable time, the employee
may submit a written report of the incident to any person, agency, or organization.
Ind. Code 22-5-3-3. An employee may not be fired for making such a report. Id. In order to
state a claim for retaliatory discharge under Ind. Code 22-5-3-3, Boyd must plead facts that show
that the written complaint she made on August 13, 2013, involved at least one of the four
categories of information described in Ind. Code 22-5-3-3(a)(1)-(4). In other words, she needs to
explain how “entitlement, cost and scope discrepancies between change order proposals and base
bid documents” constitute violation of a law, regulation, ordinance, or the misuse of public
resources. She has not done so; accordingly, this claim also must be dismissed.
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2. Count II: Breach of Contract
It is not entirely clear, but it appears that Boyd alleges that Keystone breached an
employment agreement with her by terminating her employment. The document she has
attached as Exhibit 1 to her Complaint, which she refers to as an “employment agreement” is
simply an offer of employment. It is not a contract of employment; in fact, it expressly states
that it is “not a contract of employment or guarantee of employment for any specific duration”
and that her employment was to be at-will, such that “either you or we may terminate your
employment at any time for any reason at all, with our without notice.” Accordingly, Boyd has
not stated a claim for breach of contract, and the motion to dismiss is granted as to that claim.
Count III: Conspirator Tort of Interference with an Economic Advantage
Boyd next asserts a claim for interference with an economic advantage. Keystone argues
that this is not a recognized tort in Indiana; this may be an issue of semantics, however, because
Indiana does recognize the tort of “interference with prospective advantage” as well as the
related tort of tortious interference with a business relationship. “Illegal conduct by the alleged
wrongdoer is an essential element of tortious interference with a business relationship.” Miller v.
Central Indiana Community Foundation, Inc., 11 N.E.3d 944, 961 (Ind. App. 2014). Similarly,
interference with prospective advantage must be accomplished using “improper means” such as
“‘violence or intimidation, defamation, injurious falsehood or other fraud, violation of the
criminal law.’” Helvey v. O’Neill, 288 N.E.2d 553, 561 (Ind. App. 1972) (quoting Prosser, Law
of Torts 977 (3rd ed. 1964)),
It is not entirely clear to the Court what it is that Boyd alleges Keystone did and what
prospective advantage she alleges it interfered with. In order to plead a viable claim, Boyd must
allege facts that show it is plausible that Keystone interfered with an existing or prospective
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business relationship or advantage by means of some kind of illegal conduct. She has not done
so—or at least has not done so clearly enough that the Court understands what she is alleging—
and, accordingly, the motion to dismiss is granted as to this claim.
Count IV: Employment Discrimination
Keystone is correct that this claim is premature because Boyd has not received a right to
sue letter from the EEOC and therefore has not exhausted her administrative remedies.
Accordingly, this claim is dismissed without prejudice. See generally Hill v. Potter, 352 F.3d
1142, 1146 (7th Cir. 2003).
Counts V and VI: Intentional Infliction of Emotional Distress and Invasion of Privacy
Boyd does not indicate in either of these counts what actions she alleges were taken by
Keystone, specifically, that either were intended to cause her emotional distress or invaded her
property. Therefore, these counts also must be dismissed for failing to state a claim against
Keystone.
CONCLUSION
For the reasons set forth above, Keystone’s motion to dismiss (Dkt. No. 15) is
GRANTED in its entirety. However, Boyd’s claims are DISMISSED WITHOUT
PREJUDICE and no final judgment will enter at this time in order to give Boyd an opportunity
to file an amended complaint that corrects the deficiencies in the current complaint. See Barry
Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) ( “The
better practice is to allow at least one amendment regardless of how unpromising the initial
pleading appears because except in unusual circumstances it is unlikely that the court will be
able to determine conclusively on the face of a defective pleading whether plaintiff actually can
state a claim.”) (quotation marks and citation omitted). In light of this ruling, the Court DENIES
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Boyd’s motions for summary judgment (Dkt. No. 21 and 30).
Keystone’s motion to strike
(Dkt. No. 31) is DENIED AS MOOT.
If Boyd wishes to continue with this suit, she shall file an amended complaint by
October 31, 2014. That complaint (1) shall not contain a claim for employment discrimination
unless Boyd has received a right to sue letter from the EEOC; (2) shall not include irrelevant
factual allegations relating to things that do not involve Keystone; and (3) shall set forth facts
sufficient to explain the basis for each of the claims she wishes to pursue, consistent with the
Court’s discussion of those claims above. The failure to file a timely amended complaint will
result in final judgment being entered against Boyd in this case.
SO ORDERED: 10/14/14
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copy by United States Mail to:
NORETTA F. BOYD
8002 Crestway Dr. 1205
Indianapolis, IN 46236
Copies to all counsel of record via electronic notification
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