Gray v. Wal-Mart Stores, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 9/17/2012; 15 Motion to Dismiss is DENIED IN PART as to Plaintiffs intentional infliction of emotional distress claim against Defendant Cousins. SUSTAINED IN PART and Plaintiffs claims for religious discrimination; intentional infliction of emotional distress as against Defendant Wal-Mart; and tortious interference with contractual relations are DISMISSED WITH PREJUDICE. cc:counsel (TLB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:11-CV-367-H
WALTERENE GRAY
PLAINTIFF
v.
WAL-MART STORES, INC. and
SANDIE COUSINS,
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff, Walterene Gray, brings this case against her employer Wal-Mart Stores, Inc.
(“Wal-Mart”) and Sandie Cousins, her supervisor (collectively, “Defendants”), alleging
religious, racial, and age discrimination, harassment, emotional distress, retaliatory discharge,
wrongful termination, and tortious interference with a contractual relationship. Now before the
Court is Defendants’ motion for partial dismissal or, in the alternative, for partial summary
judgment on three of these claims. For the reasons stated below, this Court will sustain the
motion to dismiss as to the religious discrimination claim, the intentional infliction of emotional
distress claim against Wal-Mart, and the tortious interference claim. However, this Court will
deny the motion to dismiss as to the intentional infliction of emotional distress claim against
Cousins.
I.
The facts alleged in the Complaint are summarized as follows. Gray, an AfricanAmerican, worked for Wal-Mart as a maintenance crew member from 2006 until the date of her
forced separation on January 3, 2010. Cousins was an assistant manager and Gray’s direct
supervisor. According to Gray, Cousins spoke disparagingly of African-American employees on
occasion. For example, Gray alleges that Cousins used derogatory language when proposing
that the African-American employees participate in a plantation theme dinner reminiscent of the
film, GONE WITH THE WIND (1939). Gray complained of Cousins’ racial remarks to Wal-Mart
management. Gray alleges that as a result of her complaint, her supervisors forced her to
perform duties that required her to work from her hands and knees, and management subjected
her to disciplinary “coachings” and conferences concerning her work.
In addition, Gray charges that Cousins disrespectfully regarded her religious beliefs. In
one instance Cousins allegedly mandated that Gray no longer reference Jesus in her workplace
discussions. Additionally, Gray alleges that Cousins once hid her Bible in order to prevent Gray
from practicing her faith during her authorized break.
Eventually, Gray filed a timely complaint with the Equal Employment Opportunity
Commission (“EEOC charge”) setting forth some of these details. On the EEOC charge, Gray
indicated that she suffered discrimination based on race and age and endured retaliation for
reporting the discrimination under Title VII of the Civil Rights Act and the Age Discrimination
in Employment Act. The EEOC determined that the information provided did not establish a
violation of these statutes, but refused to certify that Wal-Mart complied with the statutes.
Following the EEOC determination, Gray filed the present lawsuit.
II.
A threshold issue here is the proper characterization of the motion before the Court. The
Defendants designated this motion as a Rule 12(b)(6) motion to dismiss or as a motion for
summary judgment under Rule 56. The Federal Rules of Civil Procedure provide that the
defendant must assert the defenses enumerated in Rule 12(b) “before pleading if a responsive
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pleading is allowed.” Fed. R. Civ. P. 12(b). All such defenses are to be presented in a single
motion if they were available at the time the initial motion was filed. Fed. R. Civ. P. 12(g)(2).
Failure to comport with Rule 12(g)(2) in some instances will constitute a waiver of a defense.
Fed. R. Civ. P. 12(h)(1).
Because Defendants’ current motion is their second 12(b)(6) motion, filed after
Defendants filed their Answer to the Complaint, Gray urges the Court to deny the motion on the
grounds that Defendants waived the defenses. However, the current motion is based on the
defenses asserted in Defendants’ Answer, and as such, can be properly characterized as a motion
for partial dismissal under Rule 12(b). Thus, the motion must be resolved on the pleadings.
Defendants’ motion does rely in part on the EEOC charge, and the Court’s use of this
document is contrary to the general rule that a court may not consider matters outside the
pleadings in a motion to dismiss. See Hammond v. Baldwin, 866 F. 2d 172, 175 (6th Cir. 1989).
However, where a plaintiff’s complaint refers to documents that are later attached to a
defendant’s motion to dismiss, those documents are considered part of the pleadings. Weiner v.
Klais & Co. Inc., 108 F.3d 86, 88-89 (6th Cir. 1997) (citing Venture Assocs. Corp. v. Zenith
Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).
To survive a 12(b)(6) dismissal for failure to state a claim, “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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The Court must view the allegations in the Complaint in the light
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most favorable to Plaintiff Gray, treating all well-pleaded facts as true, but need not accept bare
legal conclusions as definitive. See Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488
(6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)). Based on this
standard, the Court proceeds to address the three substantive issues of the motion.
III.
Defendants seek dismissal of Gray’s claim of religious discrimination on the grounds that
she failed first to bring this claim to the EEOC. A plaintiff seeking relief under Title VII must
bring his or her grievance to the EEOC, and only after first exhausting this potential remedy may
a plaintiff proceed in federal court. Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 731
(6th Cir. 2006) (internal citations omitted). This rule exists to encourage parties to enter into a
voluntary settlement and to support the EEOC’s investigatory and conciliatory role. However,
because the employee filing the charge is often a lay complainant, the rule is not meant to be so
rigid as to bar subsequent complaints due to procedural technicalities or imprecise wording.
Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). “As a result, the EEOC
complaint should be liberally construed to encompass all claims ‘reasonably expected to grow
out of the charge of discrimination.’” Randolph, 453 F.3d at 731 (citing Haithcock v. Frank, 958
F.2d 671, 675 (6th Cir. 1992))
Parties can exhaust their administrative remedies in two ways. First, and most typically,
a Title VII plaintiff explicitly may state the claim in the EEOC charge. For example, Gray
alleged a Title VII claim based on racial discrimination by checking the “race” box in the
“discrimination based on” section on the EEOC charge. Second, a plaintiff may satisfy the
EEOC exhaustion requirement “where facts related with respect to the charged claim would
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prompt the EEOC to investigate a different, uncharged claim.” Davis v. Sodexho, Cumberland
Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998). “When the EEOC investigation of one
charge in fact reveals evidence of a different type of discrimination against the plaintiff, a
lawsuit based on the newly understood claim will not be barred.” Id.
Here, Gray failed to expressly indicate that she was making a religious discrimination
charge. She did not check the “religion” box in the “discrimination based on” section, nor did
she mention any facts in the narrative section of the EEOC charge tending to show religiousbased discrimination. Regardless, Gray argues that the EEOC investigation elicited facts that
satisfy the second means of achieving administrative exhaustion. Gray points to a partial
statement Cousins provided to the EEOC that discusses Gray’s frequent religious references at
work as evidence of religious discrimination. However, the statement does not derogate Gray’s
religious beliefs and would not suggest to the EEOC that religious-based discriminatory actions
had taken place.
In Younis v. Pinnacle Airlines, Inc., the Sixth Circuit held that “the inclusion in the
EEOC charge of a discrete act or acts, standing alone, is insufficient to establish a hostile workenvironment claim for purposes of exhaustion.” 610 F.3d at 362. In that case, the defendant
terminated Younis, an Arab-American Muslim pilot, who then filed a claim for discrimination
based on religion and national origin with the EEOC. In his complaint before the federal district
court, Younis made discrimination claims and a hostile work environment claim. Younis alleged
in his EEOC charge that co-workers made four comments over three years that supported a
hostile work environment claim. The Court found that such evidence will not “support a
subsequent, uncharged claim of hostile work environment ‘unless the allegations in the
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complaint can be reasonably inferred from the facts alleged in the charge.’” Id. (quoting Cheek v.
W. & S. Life Ins. Co., 31 F.3d 497, 503 (7th Cir. 1994)).
Like Younis, Gray did not mention any events tending to show religious discrimination
in the workplace on the EEOC charge. The EEOC would not reasonably infer a religious
discrimination claim from the facts actually presented in the EEOC charge. For these reasons,
the Court will dismiss Gray’s religious discrimination claim.
IV.
Gray also asserts an intentional infliction of emotional distress (“IIED”) claim against
both Defendants. Defendants first object that the Kentucky Civil Rights Act (“KCRA”) itself
preempts each of these IIED claims. The Court will treat this argument against each Defendant
separately, beginning with the claim against Wal-Mart.
A.
Kentucky adopted the Restatement (Second) of Torts §46 (1965) definition of IIED,
which reads, “One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily harm.” Craft v. Rice, 671 S.W.2d 247,
251 (Ky. 1984). Gray also brought claims against Wal-Mart under the KCRA, an act intended to
protect individuals “from humiliation, personal indignity, and other intangible injuries.” McNeal
v. Armour & Co., 660 S.W.2d 957, 959 (Ky. 1983). The KCRA specifically provides relief for
humiliation and embarrassment as against employers. See KRS § 344.230.
“Where the statute both declares the unlawful act and specifies the civil remedy available
to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute.”
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Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). Based on this principle, the Kentucky Court
of Appeals has held that a plaintiff’s recovery under the KCRA subsumes a claim of IIED,
because both the KCRA and the tort of IIED address the same unlawful act and provide similar
remedies. Wilson v. Lowe’s Home Ctr., 75 S.W.3d 229, 239 (Ky. Ct. App. 2001); see also
Messick v. Toyota Motor Mfg., Ky., Inc., 45 F. Supp. 2d 578, 582 (E.D. Ky. 1999). Thus, the
claim against Wal-Mart may only be brought under the statute.
Gray’s argument that she asserted the IIED claim in the alternative to the KCRA claims
is contrary to Kentucky law; the KCRA claim does subsume the IIED claim regardless of
whether the plaintiff inserted the phrase “in the alternative” in his or her complaint. Therefore,
Gray’s IIED claim against Wal-Mart must be dismissed.
B.
Defendants make a similar argument as to Gray’s claim for IIED against Cousins
individually–that Gray’s KCRA claims subsume and preempt this claim as well. However, this
argument presents a different analysis, and the Court can find no Kentucky cases to support
Defendants’ view.
The KCRA protects individuals against the unlawful acts of their employers. Chapter
344 of the Kentucky Code defines an employer as “a person who has eight (8) or more
employees within the state in each of twenty (20) or more calendar weeks in the current or
preceding calendar year and an agent of such person . . .” KRS § 344.030(2)(emphasis added).
Despite the agency language, the Kentucky Court of Appeals determined that “individual agents
or supervisors who do not otherwise qualify as employers cannot be held personally liable in
their individual capacities under KRS Chapter 344.” Conner v. Patton, 133 S.W.3d 491, 493
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(Ky. Ct. App. 2004) (citing Wathen v. Gen. Electric Co., 115 F.3d 400, 405 (6th Cir. 1997)).
Without the option to sue supervisors in their individual capacities under the KCRA, the KCRA
does not have the same effect as to IIED claims against an individual. For these reasons,
therefore, the Court concludes that the KCRA cannot subsume causes of action against
employee-supervisors.
V.
Next, the Court considers Defendants’ argument that Cousins’ conduct was not
sufficiently outrageous to constitute intentional infliction of emotional distress. The elements of
an IIED claim under Kentucky law are:
(1) the wrongdoer’s conduct must be intentional or reckless; (2) the conduct
must be outrageous and intolerable in that it offends against the generally
accepted standards of decency and morality; (3) there must be a causal
connection between the wrongdoer’s conduct and the emotional distress; and (4)
the emotional distress must be severe.
Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990) (citing Craft v. Rice, 671 S.W.2d
247, 249 (Ky. 1984)). Defendants argue that Plaintiff cannot satisfy the second element of this
tort.
The standard for outrageous and intolerable conduct is stringent under Kentucky law,
because “[c]itizens in our society are expected to withstand petty insults, unkind words and
minor indignities.” Kroger Co.v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996). Adopting
language from the Restatement (Second) of Torts §46 cmt. d (1965), the Kentucky Supreme
Court explained that “[l]iability has only been found where the conduct has been 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.” Humana of Ky., 796
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S.W.2d at 3 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
The Court takes Gray’s allegations as true and in the light most favorable to her. Ewell v.
Central City, 340 S.W.2d 479, 480 (Ky. 1960). Gray relies on the following assertions to
support her claim: 1) Cousins spoke disparagingly of African-American employees, including an
incident wherein Cousins used the word “nigger” in connection with a discussion about the
African-American employees participating in a plantation theme dinner reflecting the movie
GONE WITH THE WIND; 2) Cousins referred to another African-American employee’s hair as
“nappy”; 3) Cousins hid Gray’s Bible to prevent her from reading it during her break period; and
4) Cousins demanded that Gray acknowledge servitude to non-managerial co-workers.
Cousins argues that these racial comments cannot be the basis for an IIED claim, because
they were merely petty insults and minor indignities. See Kroger Co., 920 S.W.2d at 65.
However, the word “nigger” “is a universally recognized opprobrium, stigmatizing AfricanAmericans because of their race.” Lovings v. Akzo Nobel Coatings, Inc., No. 2002-CA-001160MR, 2003 WL 21991540, at *4 (Ky. Ct. App. Aug. 22, 2003) (quoting Brown v. E. Miss.
Electric Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993)). The isolated and infrequent use of
derogatory racial terms must be taken in light of the context spoken to determine whether those
statements rise to the level of outrage required for a IIED claim. In addition to Cousins’ use of
the word “nigger” when referring to and in the presence of her African-American employees,
Gray alleges a number of other instances of derogatory statements and inappropriate actions
directed toward Gray in her Complaint. These too must be considered in conjunction with the
racial slurs when deciding the degree of impropriety exhibited by Cousins.
The difficulty with this analysis is that Cousins may have used the derogatory term on
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only one occasion. On the other hand, any such use could be deemed extremely offensive and
outrageous. At this stage, the circumstances surrounding Cousins’ statements and behavior are
unclear. Whether Cousins intended to cause emotional distress is also uncertain. When taken as
true, however, Gray’s allegations potentially present intentional conduct which many would
view as intolerable in civilized society and tantamount to an intentional infliction of emotional
distress.
VI.
Finally, Defendants seek dismissal of Plaintiff’s claim for tortious interference with a
contractual relationship. Under Kentucky law, tortious interference occurs when one party
wrongfully induces another not to perform or enter into a contract or a business relationship with
a third party. Brett v. Media Gen. Operations, Inc., 326 S.W.3d 452, 459 (Ky. Ct. App. 2010).
This requires three parties. Gray asserts that Cousins interfered with her contractual employment
relations with Wal-Mart. However, under Kentucky law, agents of a party to a contract, acting
within the scope of their employment, are considered an arm of that party such that the agent
cannot interfere with that party’s contract. Harstad v. Whiteman, 338 S.W.3d 804, 814 (Ky. Ct.
App. 2011).
It is undisputed that Cousins was an employee of Wal-Mart and acting within the scope
of her employment when the alleged discriminatory acts took place. As such, Cousins was
acting as an agent on behalf of Wal-Mart during the period of her supervision over Gray, and
thus Cousins and Wal-Mart are considered the same party. Without a third party to interfere
with Gray’s contract with Wal-Mart, Gray’s tortious interference claim fails as a matter of law.
Even so, Gray argues that she can maintain a tortious interference claim against Cousins,
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referencing two Michigan Court of Appeals cases in which the Court held that a tortious
interference claim is actionable on an at-will employment contract. Feaheny v. Caldwell, 437
N.W.2d 358, 304 (Mich. Ct. App. 1989); Patillo v. Equitable Life Assurance Soc’y of the U.S.,
502 N.W.2d 696, 700 (Mich. Ct. App. 1992) (relying on Feaheny for the same point of law).
Two federal district courts have refused to follow Feaheny v. Caldwell on grounds that “the
basic premise of this reasoning [in Feaheny] is flawed.” Sahadi v. Per-Se Techs., Inc., 280 F.
Supp. 2d 689, 702 (E.D. Mich. 2003) (quoting Carlson v. Westbrooke Serv. Corp., 815 F. Supp.
1019, 1024 n.2 (E.D. Mich. 1992)). This Court agrees. “[T]he cause of action for tortious
interference with a contract ‘was never intended and does not apply to the relationship between
employer and employee.’” Carlson, 815 F. Supp. at 1024 (quoting Tash v. Houston, 254 N.W.2d
579, 575-76 (Mich. Ct. App. 1977) (Beasley, J., dissenting)). For these reasons, the Court will
dismiss Gray’s claim for tortious interference with a contractual relationship.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants’ motion to dismiss is DENIED IN PART as to
Plaintiff’s intentional infliction of emotional distress claim against Defendant Cousins.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss is SUSTAINED IN PART
and Plaintiff’s claims for religious discrimination; intentional infliction of emotional distress as
against Defendant Wal-Mart; and tortious interference with contractual relations are DISMISSED
WITH PREJUDICE.
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September 17, 2012
cc:
Counsel of Record
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