Wedel v. Petco Animal Supplies Stores, Inc.
Filing
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MEMORANDUM AND ORDER denying 47 Defendant's Motion to Dismiss Count VIII of plaintiff's second amended complaint. Signed by District Judge John W. Lungstrum on 03/10/2014. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Rachel A. Wedel,
Plaintiff,
v.
Case No. 13-CV-2298
Petco Animal Supplies Stores, Inc.,
Defendant.
MEMORANDUM & ORDER
Plaintiff Rachel A. Wedel filed this suit against Petco Animal Supplies Stores, Inc.
(“Petco”), her former employer, asserting numerous claims arising out of her employment with
Petco, including claims for discrimination under the Americans with Disabilities Act and
retaliation under the Family and Medical Leave Act. This matter is presently before the court on
defendant’s motion to dismiss Count VIII of plaintiff’s second amended complaint (doc. 47) for
failure to state a claim upon which relief can be granted. In that count, plaintiff asserts a claim
for intentional infliction of emotional distress under Kansas law. As will be explained, the
motion is denied.
Defendant’s motion to dismiss is based on Federal Rule of Civil Procedure 12(b)(6). In
analyzing that motion, the court accepts as true “all well-pleaded factual allegations in the
complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortgage
Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citation omitted). “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.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). Consistent
with this standard, the following well-pleaded allegations, taken from plaintiff’s second
amended complaint, are accepted as true for purposes of defendant’s motion. Plaintiff began her
employment with Petco in 2004 and eventually was promoted to the position of Assistant Store
Manager. At the time she was hired, plaintiff disclosed to Petco that she suffered from Crohn’s
disease and that she would have occasional doctor appointments that would necessitate leave
from work. While the first several years of plaintiff’s employment passed without incident,
plaintiff experienced a significant flare-up of her Crohn’s disease in April 2011 and she began
missing long periods of work due to hospital stays and subsequent medical restrictions. When
her physician released her to work a partial schedule, Petco began permitting plaintiff to utilize
intermittent FMLA leave. Once plaintiff exhausted her FMLA leave, she began receiving
benefits under a short-term disability policy.
Plaintiff contends that Petco took various adverse employment actions against her on the
basis of her disability and her exercise of her rights under the FMLA, including changing her
employment status from exempt to non-exempt; failing to pay her overtime wages; docking her
pay when she worked less than 40 hours in a workweek; ignoring her medical restrictions;
questioning her time sheets; falsely accusing her of stealing store merchandise; and initiating
criminal charges against her. According to plaintiff, Petco took these actions in a concerted
effort to cause plaintiff to resign her employment and, when those efforts failed, Petco
terminated plaintiff’s employment in February 2012.
In support of her claim for intentional infliction of emotional distress, plaintiff alleges
that defendant accused her of falsifying her time sheets for the week of December 4, 2011;
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deliberately refused to investigate plaintiff’s legitimate explanation of why her time sheets
reflected hours worked when plaintiff was not present in the store; and knew that her time sheets
were in fact accurate because the District Manager had given plaintiff an assignment to engage
in competitive shopping outside the store. She further alleges in support of her claim that she
was improperly suspended from work as a result of defendant’s false claim that she had falsified
her time sheets as well as defendant’s claim that plaintiff, on one occasion, had worked in
violation of her medical restrictions and without taking a lunch break. Finally, plaintiff alleges
intentional infliction of emotional distress on the grounds that defendant falsely accused plaintiff
of stealing store merchandise. With respect to the alleged theft of store merchandise, plaintiff
asserts in her second amended complaint that defendant refused to interview an exculpating
witness on plaintiff’s behalf and refused to consider exculpating video of plaintiff’s conduct.
She contends that defendant “concocted” the theft allegations in retaliation for plaintiff’s
exercising her rights under the ADA and the FMLA. According to plaintiff, the theft charge was
dismissed by the trial judge at the close of the prosecutor’s case on a motion for a directed
verdict.
To prevail on a claim of intentionally causing emotional distress, a plaintiff must prove
four elements: (1) The conduct of the defendant was intentional or in reckless disregard of the
plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection
between the defendant’s conduct and the plaintiff’s mental distress; and (4) the plaintiff’s mental
distress was extreme and severe. Valadez v. Emmis Communications, 290 Kan. 472, 476 (2010)
(citing Taiwo v. Vu, 249 Kan. 585, 592 (1991)). Liability for extreme emotional distress has two
threshold requirements which must be met and which the court must, in the first instance,
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determine: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is
in such extreme degree the law must intervene because the distress inflicted is so severe that no
reasonable person should be expected to endure it. Id. (citing Roberts v. Saylor, 230 Kan. 289,
292–93 (1981)). Conduct that rises to the level of tortious outrage must be outrageous to the
point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.
Id. (citing Taiwo, 249 Kan. at 592–93).
Defendant moves to dismiss this claim on the grounds that the conduct described in
plaintiff’s second amended complaint, even if true, is not sufficiently extreme or outrageous to
permit recovery under Kansas law.1
Plaintiff counters that her allegations are sufficiently
analogous to the facts set forth in Taiwo v. Vu, 249 Kan. 585 (1991), wherein the Supreme Court
of Kansas affirmed a jury verdict in favor of the plaintiffs on a claim of intentional infliction of
emotional distress, to entitle her to discovery on her claim. In Taiwo, the plaintiffs filed a civil
suit against the defendant alleging assault, battery, false imprisonment and intentional infliction
of emotional distress. Id. at 586. The dispute in that case initially arose out of an employment
relationship. Id. The disagreement between Mrs. Taiwo and Vu concerned Mrs. Taiwo’s final
paycheck.
Id. at 587.
During an argument about the amount of the final paycheck, the
defendant shoved Mrs. Taiwo in the chest and subsequently locked Mrs. Taiwo inside the daycare center. Id. Vu also made false accusations to the police indicating that Mr. Taiwo had
vandalized her car and she instructed another employee to tell the police that she observed Mr.
For purposes of its motion, defendant does not challenge plaintiff’s allegations of severe
emotional distress.
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Taiwo’s vandalism, when in fact she did not witness any acts of vandalism by the Taiwos. Id. at
587-88. The jury returned a verdict in favor of the plaintiffs in the amount of $20,000 and the
trial judge assessed $3,000 in punitive damages.
Like Taiwo, some of the allegations in plaintiff’s second amended complaint reflect a
malicious, intentional abuse of the criminal justice process. Plaintiff alleges that defendant
concocted the allegations of theft against plaintiff in retaliation for plaintiff’s exercise of her
statutorily protected rights after defendant’s efforts to force plaintiff to quit were unsuccessful.
While Taiwo clearly involved additional tortious conduct not alleged here—physical assault as
well as false imprisonment—there is no indication in any case that the court has uncovered that
a complaint must fit squarely on all fours with Taiwo to state a claim of outrage under Kansas
law.
Indeed, the Tenth Circuit has suggested, albeit in an unpublished decision, that an
employer’s knowing submission of a false report about an employee to a government agency
might suffice to state a claim of outrage under Kansas law. In Wagoner v. Pfizer, Inc., 391 Fed.
Appx. 701 (10th Cir. 2010), the employee’s outrage claim focused largely on her theory that her
employer had falsely accused her of altering the dates on certain forms, accused her of lying
when it confronted her about it, refused to listen to her explanation and then reported to the
FDA’s Office of Compliance that the employee had altered the forms. Id. at 705. Affirming the
district court’s grant of summary judgment on the claim under Kansas law, the Tenth Circuit
explained:
Unlike the uncontestedly false reporting at issue in Taiwo, Pfizer presented
evidence that it honestly believed Plaintiff had falsified dates on her starter forms
to spread out her work activity. Further, Pfizer was required to report any
instances of such falsification to the FDA. Wagoner has presented no evidence,
other than her own denials of any wrongdoing, that demonstrates Pfizer
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intentionally lied to the FDA. Accordingly, the district court’s grant of summary
judgment in Pfizer’s favor on this claim was therefore correct.
Id. at 712. While the Circuit, then, did not squarely address the issue before this court, it
certainly left the door open for a potential outrage claim under Kansas law based on an
employer’s false reporting and intentional lying to a governmental agency about an employee.
As noted earlier, certain allegations in plaintiff’s second amended complaint reflect that
defendant knowingly pursued false criminal charges against her for the purpose of “covering
up” the true reasons for plaintiff’s termination—plaintiff’s disability and her exercise of her
FMLA rights. Other allegations in that complaint, however, suggest (somewhat inconsistently)
that defendant unreasonably concluded that plaintiff had committed theft and that defendant’s
unreasonable mistake would have been easily remedied if defendant had interviewed a specific
witness or looked at certain surveillance tape—actions that it unreasonably refused to take
despite plaintiff’s requests that it do so.
Because discovery will reveal the specific facts
underlying plaintiff’s claim, the court can better ascertain at the summary judgment stage
whether defendant’s conduct rises to the level of outrageousness under Kansas law. The motion
is denied.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion to
dismiss Count VIII of plaintiff’s second amended complaint (doc. 47) is denied.
IT IS SO ORDERED.
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Dated this 10th day of March, 2014, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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