Radcliffe v. Securian Financial Group, Inc.

Filing 31

MEMORANDUM OPINION AND ORDER : Defendant's Partial Motion to Dismiss [Doc. No. 16] is GRANTED, such that those portions of Counts Two through Five which fall outside of the statute of limitations are dismissed, and Counts Six and Seven are dismissed in their entirety (Written Opinion). Signed by Judge Susan Richard Nelson on 10/30/12. (LPH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Kathleen Radcliffe,

Civil No. 11-CV-3701 (SRN/TNL)

Plaintiff,

MEMORANDUM OPINION
AND ORDER

v.
Securian Financial Group, Inc.,
Defendant.

Barbara Jean Felt, Clayton D. Halunen, and Ross D. Stadheim, Halunen & Associates,
1650 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402, for Plaintiff
David M. Wilk, Angela Beranek Brandt, and Melissa M. Weldon, Larson King, LLP, 30
East Seventh Street, Suite 2800, Saint Paul, Minnesota 55101, for Defendant
________________________________________________________________________
SUSAN RICHARD NELSON, United States District Court Judge
This matter is before the Court on Defendant’s Partial Motion to Dismiss Counts
Two Through Seven [Doc. No. 16]. For the reasons set forth herein, Defendant’s Motion
is granted, and portions of Counts Two through Five are dismissed, and Counts Six and
Seven are dismissed in their entirety.
I.

BACKGROUND
Plaintiff Kathleen Radcliffe was hired by Defendant Securian Financial Group,

Inc. (“Securian”) as an Investment Accounting Manager in 2000 and is currently an
inactive employee. (Compl. ¶¶ 12, 47 [Doc. No. 1-1].) During most of her active tenure
1

at Securian, Dave LePlavy supervised Radcliffe. (Id. ¶ 2.) Plaintiff alleges that Securian
received numerous complaints about LePlavy’s abusive treatment of female employees
and had once required him to attend an internal “charm school” to work on managing
employees better. (Id. ¶¶ 18-19.) Plaintiff alleges that when one woman left the
company in 1999, she cited LePlavy as the reason for her departure. (Id. ¶ 20.)
Plaintiff contends that, despite receiving regular promotions, commendations and
competing job offers, LePlavy created a hostile work environment that led to Plaintiff’s
severe depression and, ultimately, her termination, or, alternatively, her constructive
discharge. (Id. ¶¶ 2, 51-52.) Radcliffe also has a medical history of lupus, fibromyalgia
and polyarthritis. (Id. ¶¶ 1, 14.) However, she alleges that her disabilities did not
interfere with her career until late 2008. (Id. ¶ 14.)
After Plaintiff had worked for Securian for approximately three years, she received
a job offer from the St. Paul Travelers Company in 2003. (Id. ¶ 15.) Securian presented a
counteroffer, which Radcliffe accepted, leading to her promotion to Fund and Investment
Accounting Manager. This position required Radcliffe to be routinely on call and offered
little time off. (Id.) In 2006, Radcliffe pursued other employment options, leading to a
job offer from Assurant. (Id. ¶ 16.) Plaintiff alleges that Securian matched Assurant’s
offer, provided her with additional time off, “and assured Plaintiff that no negative
responses would be had if additional time off were requested.” (Id.) Plaintiff further
alleges that after she received the offer from Assurant, LePlavy requested that Plaintiff
write a note to Securian’s Chief Financial Officer Warren Zaccaro, stating that she did not
2

want to leave Securian on account on LePlavy, that she liked working for him, and that he
was not the reason she sought to leave Securian. (Id. ¶ 17.) Plaintiff alleges that she
wrote the note, as requested. (Id.)
In 2007 or 2008, Plaintiff alleges that LePlavy told her that he enjoyed the fact that
he no longer had more women working for him and that Plaintiff was the only woman he
could not reduce to tears. (Id. ¶ 21.) Plaintiff contends that, at the time, her health
worsened. (Id.) She alleges that she informed Defendant of these developments and
expressed a need to take time off. In response, Radcliffe contends that Defendant told
her that she could use her accumulated vacation time as sick days. (Id. ¶ 22.) Plaintiff
was unaware of the Family and Medical Leave Act (“FMLA”) and Securian did not
advise her that she could take leave under the Act. (Id.) Instead, she used her vacation
time as sick days, missing only a few days a month initially. (Id.) As her health
deteriorated, she alleges that she eventually missed a day of work per week. (Id.)
Nevertheless, Radcliffe contends, her time off was within the amount of accumulated
vacation days. (Id.)
Plaintiff alleges that her performance reviews indicated that she “exceeded
expectations.” (Id. ¶ 23.) Upon her ten-year anniversary with the company, Radcliffe’s
achievements were lauded, including work in the expansion of Securian’s products and
services and the adoption of changes in accounting practices. (Id. ¶ 30.)
Plaintiff alleges that while her health problems continued into the next year,
Defendant still did not suggest FMLA leave. (Id.) Rather, Plaintiff contends that she
3

asked for an accommodation, to include a flexible work schedule, but was refused. (Id. ¶
24.) She alleges that “LePlavy even told her that working from home did not count and
that her vacation time would be deducted for a full eight hours for everyday [sic] she
worked from home.” (Id.) Radcliffe contends that because fatigue is a symptom of her
diseases, she required almost constant rest on the weekends in order to prepare for the
following week and to avoid taking any working sick days. (Id. ¶ 26.)
In 2009, Plaintiff was promoted to the position of Director of Fund and Investment
Accounting and continued to report directly to LePlavy. (Id. ¶ 18.) Plaintiff contends
that the day after Thanksgiving 2009, she was working on a large project with a short
deadline. (Id. ¶ 25.) Because of the holiday, Plaintiff had brought her niece into work
with her. (Id.) Radcliffe contends that LePlavy belittled and harassed her in front of her
niece. Further, Radcliffe contends that LePlavy threw a ruler at her and told her not to
leave the office until she had reviewed a particular document. (Id.) Plaintiff also alleges
that LePlavy further indicated that he would get back to Radcliffe and her staff with
instructions about the project. Instead, Plaintiff alleges that he left the office without
providing the instructions and without informing her of his departure. (Id.) Radcliffe
alleges that the following week, Securian’s CFO Zaccarro told LePlavy, in Plaintiff’s
presence, that Radcliffe “sure makes LePlavy look good,” in reference to the work she
had just completed on the project. (Id. ¶ 27.)
Plaintiff further alleges that LePlavy erected communication barriers between
them, to the point of making it impossible for Radcliffe to complete her job tasks on time.
4

(Id. ¶ 28.) She contends that LePlavy would also make fun of her slow gait, complain
about her work and “constantly compare her to employees without health concerns or
disabilities.” (Id.) Radcliffe alleges that LePlavy’s behavior contributed to her worsening
condition, compounding her levels of stress and depression. (Id.) She contends that she
developed thoughts of suicide. (Id. ¶ 29.)
In early 2010, Plaintiff sought assistance from Securian’s Human Resources
employee Melvin Collins to deal with the situation with LePlavy. (Id. ¶ 31.) Collins
allegedly stated that he would take Radcliffe’s concerns to Kathy Pinkett, the Senior Vice
President of Human Resources. (Id.) After Radcliffe heard nothing for several weeks,
she spoke with Collins. Plaintiff alleges that “Collins informed her that Pinkett was too
busy to do anything about her situation or any other issues regarding LePlavy” and
nothing was done. (Id.) Plaintiff alleges that she therefore confronted LePlavy herself,
and the situation temporarily improved. (Id. ¶ 32.) Radcliffe next met with Defendant’s
Chief Compliance Officer, Nancy Swenson, who, Plaintiff alleges, discussed the situation
with Pinkett in Human Resources. (Id. ¶ 33.)
Plaintiff alleges that after several weeks went by with no response, she utilized
Securian’s Employee Assistance Program. (Id. ¶¶ 33-34.) Radcliffe contends that after
she told them about her difficulties with LePlavy, the Employee Assistance staff told her
that they could offer no help. (Id. ¶ 34.)
In the summer of 2010, Plaintiff alleges that two occupational health nurses
confronted her, informing her that she was in violation of company policy regarding sick
5

leave. (Id. ¶ 35.) Radcliffe alleges that when she explained that Defendant had instructed
her to use her vacation days as sick days, she was finally informed of the FMLA and was
offered relief under its provisions. (Id.) Plaintiff further alleges that LePlavy conceded
that they “messed up” and that Plaintiff should have been on FMLA leave in the past.
(Id.)
Radcliffe thereafter took leave under the FMLA and alleges that she worked
approximately 75% of her normal hours from home. (Id. ¶ 36.) She alleges that she
answered emails, phone calls, and couriered documents from her home to Defendant and
other businesses while on FMLA leave. (Id.)
In August 2010, Plaintiff met with Occupational Health Nurse Barb Warner, who
suggested that Plaintiff meet with Securian’s in-house Occupational Health Physician, Dr.
Battis. (Id. ¶ 38.) Radcliffe met with Battis on August 16, 2010. (Id. ¶ 38.) They
discussed Plaintiff’s situation during the meeting and Dr. Battis also phoned Plaintiff’s
regular physician. (Id.) Plaintiff alleges that after that conversation, Dr. Battis directed
Plaintiff to United Hospital in order to meet with a social worker and physician to
formulate a treatment plan. (Id.). However, Plaintiff alleges, Battis and Warner instead
took her to United Hospital’s mental health ward, where Radcliffe was involuntarily
committed. (Id.) There, Plaintiff contends that she was placed on a 72-hour lockdown
and was subjected to a strip search, against her will. (Id.) Radcliffe contends that the
event embarrassed and humiliated her and contributed to her depression. (Id.) She
asserts that she was released a day and a half early, after pleading with doctors and staff.
6

(Id.)
Following this incident, Radcliffe obtained a doctor’s note to return to work and
did so the following day. (Id. ¶ 39.) She alleges that, once there, Defendant required her
to present a doctor’s note specifically from a psychologist. Plaintiff further alleges that
Occupational Health Nurse Cindy Scott locked her out of the building and that her
computer rights were suspended. (Id.) Radcliffe alleges that she obtained the note and
returned to work.
Upon returning to work with the psychologist’s note, Plaintiff contends that Scott
and Collins presented her with two options: (1) take a leave of absence; or (2) return to
work with no more than six unplanned absences for any reason, for the rest of the year.
(Id. ¶ 40.) Plaintiff alleges that if she chose the second option, and missed more than six
days, she would be placed under disciplinary review, with the option of Defendant
terminating her. (Id.) She contends that Defendant informed her that she had exhausted
all of her FMLA leave and that any absences would count as unplanned absences. (Id.)
Radcliffe chose the second option. (Id.)
Plaintiff alleges that in October 2010, Securian demoted her. (Id. ¶ 42.) While her
title and pay did not change, she contends that a number of her responsibilities were
removed. (Id.) Radcliffe alleges that she understood that her pay and job duties would be
reevaluated in six months’ time. (Id.) Her new supervisor, Peter Berlute, was younger
and less experienced. (Id.)
On November 16, 2010, Plaintiff’s personal physician, Dr. Mary Loken,
7

recommended that Plaintiff take an immediate leave of absence due to changes in
Plaintiff’s health. (Id. ¶ 41.) Plaintiff had expressed increasing feelings of loneliness,
depression, and frequent thoughts of suicide. (Id.) Radcliffe took her doctor’s advice
and began her leave of absence on November 16, 2010. (Id. ¶ 43.) Before doing so,
however, Radcliffe checked with Melvin Collins in Human Resources, who, she alleges,
told her that Radcliffe’s annual bonus and profit sharing would not be affected by her
leave of absence. (Id.)
Plaintiff contends that, contrary to Collins’ assurances, she never received her
2010 bonus. (Id. ¶ 44.) When she inquired into the matter in February 2011, Plaintiff
alleges that Berlute returned her call and LePlavy was also on the line. (Id.) Radcliffe
contends that Berlute informed her that she had done nothing to merit the bonus. (Id.)
Shortly thereafter, Plaintiff alleges that she decided to try to return to work, but her
physician recommended that she only work a maximum of four hours per day. (Id. ¶ 45.)
Plaintiff contends that she left a message for Berlute, requesting to work four, full days a
week, but received no response. (Id.) After receiving no response, Radcliffe contacted
Scott, who, she alleges, denied her request. (Id.) Plaintiff subsequently went on longterm disability. (Id.) Plaintiff contends that she is currently an inactive Securian
employee. (Id. ¶ 47.) She also alleges that because Defendant denied her request to
return to work, she was effectively terminated. (Id. ¶ 48.) Alternatively, Radcliffe asserts
that she was constructively discharged. (Id.)
Plaintiff brings seven claims against Defendant: (1) violations of the FMLA, 29
8

U.S.C. §§ 2601 et seq; (2) disability discrimination in violation of the Minnesota Human
Rights Act (“MHRA”), Minn. Stat. §§ 363A.01 et seq.; (3) failure to provide a reasonable
accommodation in violation of the MHRA; (4) reprisal discrimination in violation of the
MHRA; (5) gender discrimination in violation of the MHRA; (6) negligent supervision
and retention; and (7) intentional infliction of emotional distress (“IIED”). In the instant
motion, Defendant moves to dismiss all, or portions of, Plaintiff’s claims, with the
exception of her FMLA claim. Defendant argues that pursuant to Fed. R. Civ. P. 12,
Plaintiff’s claims in Counts Two-Seven, or portions thereof, fail as a matter of law. As to
Plaintiff’s claims under the MHRA (Counts Two-Five), Defendant contends that they are
barred by the one-year statute of limitations under the Act. Securian also argues that
Plaintiff’s common law claims for negligence and IIED fail. Specifically, Defendant
contends that these claims are preempted by the MHRA or the Worker’s Compensation
Act (“WCA”) and further alleges that they are insufficiently pled.
In response, Plaintiff argues that the continuing violations doctrine – an exception
to the statute of limitations – saves her claims under the MHRA. In addition, she
contends that her common law claims fall within the assault exception to the WCA’s
exclusive remedy provision, and are not preempted by the MHRA. She further contends
that her common law claims state plausible claims for relief. In the event that the Court
finds it necessary, Plaintiff seeks leave to amend her pleadings to correct any deficiencies.

II.

DISCUSSION
9

A.

Standard of Review

Defendant brings a motion to dismiss for failure to state a claim under Fed. R. Civ.
P. 12(b)(6). (Def’s Mot. [Doc. No. 16]) (arguing that Plaintiff has failed to state a claim
upon which relief can be granted and that the motion “is brought pursuant to Rule 12.”)
Plaintiff argues, however, that Securian filed this motion after filing its Answer to the
Complaint and therefore, Defendant’s motion is procedurally improper. (Pl’s Opp’n
Mem. at 8, n.1 [Doc. No. 22].)
By its terms, Rule 12(b) provides that a party asserting a defense by motion,
including a motion for failure to state a claim upon which relief can be granted, must
assert such a defense before pleading, if a responsive pleading is allowed. Fed. R. Civ. P.
12(b) (emphasis added). Technically, therefore, a Rule 12(b)(6) motion cannot be filed
after an answer has been submitted. Westcott v. City of Omaha, 901 F.2d 1486, 1488
(8th Cir. 1990).
As a leading treatise observes,
“A strict interpretation of [this] language leads to the conclusion that the
district judge must deny any Rule 12(b) motion made after a responsive
pleading is interposed as being too late.” 5C Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1361 (3d ed. 2004). But as that
treatise also observes, as long as the defense of failure to state a claim has
been asserted in the answer, federal courts routinely consider defendants'
post-answer motions raising the defense “although technically they are no
longer Rule 12(b) motions.” Id.
Great Lakes Gas Transmission Ltd. P’ship Five. Essar Steel Minn., LLC, __ F. Supp.2d
__, No. 09-CV-3037 (SRN/LIB), 2012 WL 1694595, *4-5 (D. Minn. May 15, 2012)

10

(quoting Ali v. Frazier, 575 F. Supp.2d 1084, 1089 (D. Minn. 2008)).
In Ali, this Court treated the moving party's Rule 12(b)(6) motion to dismiss for
failure to state a claim as a Rule 12(c) motion asserting the same argument. Id. at
1089-90 (citing Westcott, 901 F.2d at 1488). A motion for judgment on the pleadings
brought pursuant to Rule 12(c) may be brought “after the pleadings are closed - but early
enough not to delay trial. . . .” Fed. R. Civ. P. 12(c). “As the Eighth Circuit held in
Westcott, because motions to dismiss for failure to state a claim are subject to the same
legal standard whether brought under Rule 12(b)(6) or Rule 12(c), the distinction is
‘purely formal . . . .’” Ali, 575 F. Supp.2d at 1089 (citing Westcott, 901 F.2d at 1488).
While Securian did not expressly assert a Rule 12(b)(6) defense in its Answer, it
did cross-reference its Motion to Dismiss in its responses to Counts Two through Seven
of the Complaint, stating, e.g., “Plaintiff’s Count Two is the subject of a motion to
dismiss and, in any event, Securian denies the allegations . . . .” (Answer ¶ 58 [Doc. No.
4].) Securian originally filed its Motion to Dismiss on the same day that it filed its
Answer. (See Original Motion to Dismiss - Filed in Error [Doc. No. 6].) While the
docket reflects that the original Motion to Dismiss was filed in error and would be re-filed
at a later date, Defendant sought dismissal under Rule 12 for failure to state a claim, or, in
other words, Rule 12(b)(6).
Given the preference to decide legal issues on the merits, the Court will not refuse
to consider Defendant’s motion because it was styled as a Rule 12(b)(6) motion.
Assuming for the sake of argument that Securian had simply filed its Answer and original
11

Motion to Dismiss in reverse order, there would be no procedural infirmity. In light of
these factors – the specific procedural circumstances of this case, the identical standard of
review applicable under the two rules, and the Eighth Circuit's recognition of a “purely
formal” distinction between the rules – the Court will consider Plaintiff's motion on the
merits. This approach is consistent with this Court’s ruling in Great Lakes, __ F. Supp.2d
at __, 2012 WL 1694595 at *4-5, and in other rulings made, albeit in passing, by this
Court, see E.E.O.C. v. Northwest Airlines, 216 F. Supp.2d 935, 937 (D. Minn. 2002), and
by other district courts within the Eighth Circuit, see, e.g., Egziabher v. Parks, No.
11-CV-5088, 2012 WL 912933, *1-2 (W.D. Ark. Mar. 16, 2012); Janis v. Nelson, No.
09-CR-5019-KES, 2009 WL 5216902, *2, n.2 (D. S.D. Dec. 30, 2009); Woods v. St.
Louis Justice Center, No. 4:06-CV-233 CAVES, 2006 WL 2990240, *1 (E.D. Mo. Oct.
18, 2006).
When evaluating a motion to dismiss under Rule 12(b)(6) or 12(c), the Court
assumes the facts in the Complaint to be true and construes all reasonable inferences from
those facts in the light most favorable to the plaintiff. Morton v. Becker, 793 F.2d 185,
187 (8th Cir. 1986). However, the Court need not accept as true wholly conclusory
allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir.
1999), or legal conclusions the plaintiff draws from the facts pled. Westcott, 901 F.2d at
1488.
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
12

545 (2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative
level.” Id. at 555. As the United States Supreme Court recently stated, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,”
will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing
Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550
U.S. at 556. Here, the Court will not consider evidence outside of the pleadings, and
therefore confines its analysis to Plaintiff’s Complaint.
B.

Plaintiff’s Claims Under the MHRA

Under the MHRA, claims of unfair discriminatory practice must be filed within
one year of the occurrence of the alleged discriminatory practice. Minn. Stat. § 363A.28,
subd. 3. Plaintiff filed the instant suit in Minnesota state court on December 6, 2011.
Under the statute of limitations, allegedly discriminatory practices occurring prior to
December 6, 2010 are time-barred, but for any applicable exception to the statute. One
such exception is the continuing violation doctrine, which allows a plaintiff to toll the
expiration of the statute of limitations where a continuing pattern forms due to
discriminatory acts occurring over a period of time, “‘as long as at least one incident of
discrimination occurred within the limitations period.’” Taxi Connection v. Dakota,
Minn. & E. R.R. Corp., 513 F.3d 823, 825 (8th Cir. 2008) (citing Sigurdson v. Isanti
Cnty., 448 N.W.2d 62, 66 (Minn. 1989)). The challenged actions that fall outside of the
13

statute of limitations must be related to violative acts which occurred within the statutory
period. Smith v. Ashland, Inc., 179 F. Supp.2d 1065, 1069 (D. Minn. 2000) (emphasis
added), aff'd, 250 F.3d 1167 (8th Cir. 2001); Mandy v. Minn. Mining & Mfg., 940 F.
Supp. 1463, 1468 (D. Minn. 1996). Even though discriminatory acts may have
continuing consequences, the discriminatory acts must be “more than the mere
consequences of past discrimination,” and the Court’s focus must be upon the “time of the
discriminatory acts, not upon the time at which the consequences of the acts became most
painful.”

Treanor v. MCI Telecomm’cns Corp., 200 F.3d 570, 574 (8th Cir. 2000).

The continuing violation doctrine does not apply to discrete discriminatory acts,
such as termination, failure to promote, denial of transfer, or refusal to hire, which are
considered individually actionable. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113-14 (2002) (addressing continuing violation doctrine for Title VII claims); Tademe v.
Saint Cloud State Univ., 328 F.3d 982, 988 (8th Cir. 2003) (applying Morgan, and finding
the plaintiff’s claims of discrimination were barred by the statute of limitations).1 “A
continuing violation must be either a series of related acts, one or more of which falls
within the limitations period, or the maintenance of a discriminatory system or policy
during the limitations period and before.” Koren v. Supervalu, Inc., No. 00-CV-1479
(ADM/AJB), 2003 WL 1572002, *9 (D. Minn. March 14, 2003) (citing Mandy, 940 F.
Supp. at 1468). Courts must look to whether a present violation exists, rather than to

1

In deciding issues of continuing violation, Minnesota courts have looked to
Supreme Court guidance in Title VII cases. Sigurdson, 448 N.W.2d at 67.
14

whether continuing effects from earlier acts exist. Kohn v. City of Minneapolis Fire
Dep’t, 583 N.W.2d 7, 11 (Minn. Ct. App. 1998) (citing United Air Lines, Inc. v. Evans,
431 U.S. 553, 558 (1977)).
Plaintiff alleges two actions falling within the statutory period, both of which
occurred in February 2011: (1) the phone conversation with Berlute, with LePlavy
listening in, during which Radcliffe was told that she had done nothing to earn a 2010
bonus; and (2) Securian’s refusal to grant Radcliffe’s request to return to work four days
per week. (Compl. ¶¶ 44-45 [Doc. No. 1-1].) The portion of Defendant’s Motion to
Dismiss related to the MHRA claims is limited to only those allegations falling outside of
the statute of limitations. (Def’s Mem. at 3 [Doc. No. 18]) (stating, “Counts Two through
Five fail to the extent plaintiff seeks relief for discrete acts of alleged discrimination or
retaliation that occurred outside of the one year statute of limitations set forth in the
Minnesota Human Rights Act.”) At the motions hearing, counsel for Defendant
confirmed the scope of Defendant’s motion and conceded that the allegations occurring in
February 2011fall within the statute of limitations. The Court therefore addresses the
applicability of the continuing violations doctrine to Radcliffe’s claims of disability and
gender discrimination, failure to accommodate, and reprisal discrimination under the
MHRA that fall outside of the statutory period. In addition, while Plaintiff does not plead
a separate cause of action for hostile work environment, because her general allegations
refer to a hostile work environment (see, e.g., Compl. ¶¶ 2, 44 [Doc. No. 1-1]), the Court
examines the continuing violation doctrine with respect to claims of a hostile work
15

environment as well.
1.

Disability Discrimination

In support of her claim for disability discrimination, Plaintiff alleges that
Defendant “discriminat[ed] against her because of her disability; involuntarily
committ[ed] her to a mental ward without merit; alter[ed] the terms and conditions of her
employment; and withh[eld] her 2010 bonus that she rightly earned.” (Compl. ¶ 58 [Doc.
No. 1-1].) She also alleges that Securian denied her request to return to work four days
per week and constantly subjected her to demeaning comments, making it difficult for her
to perform her job. (Id. ¶¶ 61, 64.) Of these alleged acts, the act of withholding the 2010
bonus and the denial of the request to return to work on a part-time basis fall within the
statutory period, as noted, and remain actionable.
While the continuing violations doctrine is most frequently addressed in the
context of hostile work environment claims, where the discriminatory practice may
consist of many acts not individually actionable, Taxi Connection, 513 F.3d at 825, courts
have also considered the continuing violation doctrine in the context of disability
discrimination cases under the ADA. Treanor, 200 F.3d at 574 (affirming finding of no
continuing violation where two individual instances of alleged failure to accommodate
were separated by two years and were unconnected by any intervening acts of
discriminatory contact); Connor v. Reckitt & Coleman, Inc., 84 F.3d 1100, 1102 (8th Cir.
1996) (finding no continuing violation because the plaintiff was no longer an employee at
the time of the employer’s refusal to accommodate).
16

Regarding the actions occurring outside of the limitations period, Plaintiff’s
allegation that Defendant “discriminat[ed] against her because of her disability” (id. ¶ 58)
is the type of vague and conclusory allegation that does not pass muster under Iqbal and
Twombly, absent reference to a specific act of discrimination. This allegation cannot
support Radcliffe’s disability discrimination claims that fall outside of the statutory
period. Similarly, Plaintiff contends that Defendant altered the terms and conditions of
her employment, without providing greater specificity. (Compl. ¶ 58 [Doc. No. 1-1].)
Because this conclusory allegation lacks sufficient detail, it also fails under Iqbal and
Twombly. To the extent that “altering the terms and conditions of her employment”
refers to Radcliffe’s alleged demotion in 2010, the continuing violations doctrine is
inapplicable. The Supreme Court’s ruling in Morgan makes clear that a separate violation
may not form the basis of a continuing violation theory. 536 U.S. at 111. Demotion
constitutes a discrete, separate act. See Garcia v. Centerpoint Energy Resources Corp.,
No. 1:10-cv-54-DPM, 2012 WL 892278, *2 (E. D. Ark. Mar. 15, 2012) (“Like
termination or failure to promote, demotion is a discrete act,” actionable when
committed) (citing Morgan, 536 US. at 113-14); Goliday v. GKN Aerospace-St. Louis
Aerospace, No. 4:11CV-729 JCH, 2011 WL 3847411, *2, n.1 (E.D. Mo. Aug. 26, 2011)
(finding that claims related to demotion could not be saved under a continuing violation
theory, as the demotion was a discrete act and not part of any continuing violation).
Regarding her other allegations, the continuing violations doctrine applies “so long
as all acts which constitute the claim are part of the same unlawful employment practice
17

and at least one act falls within the time period.” Morgan, 536 U.S. at 122. Plaintiff
urges the Court to apply the Fifth Circuit's test in Berry v. Board of Supervisors of L.S.U.,
715 F.2d 971 (5th Cir. 1983), in determining whether the continuing violation doctrine
applies to toll the statute of limitations. (Pl.’s Opp’n Mem. at 12 [Doc. No. 22].) The
Berry court identified the following three non-exhaustive factors as relevant in its analysis
of whether the continuing violations doctrine applies: (1) whether the acts involve the
same subject matter; (2) the frequency of the acts; and (3) the degree of permanence of
the alleged acts of discrimination; that is, whether an act outside the limitations period
should have triggered the plaintiff's awareness of and duty to assert his or her rights. 715
F.2d at 981. As Plaintiff notes, Minnesota courts, including this Court, have applied the
Berry test, although it has not been formally adopted. See, e.g., Koren, 2003 WL
1572002; Bradley v. American Home Prods. Corp., No. 00-CV-4 (JMR/SRN), 2002 WL
31317393 (D. Minn. Aug. 16, 2002); Bradley v. Hubbard Broadcasting, Inc., 471 N.W.2d
670, 676 (Minn. Ct. App. 1991).
However, the Berry test, “which, among other things, takes into account . .
.whether the earlier acts have sufficient permanency to trigger the employee's awareness
of and duty to challenge the alleged violation,” Morgan, 536 U.S. at 107, n. 3, was called
into question by the Supreme Court in Morgan. Id. at 117–18 (observing, “[i]t is
precisely because the entire hostile work environment encompasses a single unlawful
employment practice that we do not hold, as have some of the Circuits, that the plaintiff
may not base a suit on individual acts that occurred outside the statute of limitations
18

unless it would have been unreasonable to expect the plaintiff to sue before the statute ran
on such conduct.”) Rather, “in determining whether an actionable hostile work
environment claim exists, we look to ‘all the circumstances,’ including ‘the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance.’” Id. at 116 (internal quotations omitted).
The Court finds that the alleged acts – involuntarily committing Plaintiff to a
mental ward after consulting with her treating physician in August 2010 (Compl. ¶ 38
[Doc. No. 1-1]), making demeaning comments about Plaintiff’s disabilities, and cutting
off communication in 2009 (id. ¶ 28) – do not constitute a continuing violation, under
either Morgan or Berry. As to the allegations regarding Plaintiff’s involuntarily
commitment, this allegation would appear to fall into the category of “discrete acts,” such
that this claim would arise on the day in question, not over a period of time. See Morgan,
536 U.S. at 111. While under Morgan, courts consider whether the complained-of action
was humiliating, id. at 116, as Plaintiff alleges the involuntary commitment was, under
both Morgan and Berry, courts also consider the frequency of the alleged action, with
more frequent action tending to support application of the continuing violation doctrine.
See id.; Berry, 715 F.2d at 981. The involuntary commitment was a one-time occurrence.
The Court concludes that these alleged acts are not related to the two acts falling
within the statutory period and are not part of a “systematic repetition of the same
policy,” nor are they an “integrated pattern.” Hubbard v. United Press Int’l, Inc., 330
19

N.W.2d 428, 440-41, n.11 (Minn. 1983). Rather, they are temporally distinct actions,
some of which involved different actors (e.g., LePlavy and Dr. Battis) and are not similar
in nature, frequency, and severity so as to be considered “part and parcel” of a continuing,
integrated pattern or policy. Wilkie v. Dept. of Health & Human Services, 638 F.3d 944,
951 (8th Cir. 2011). Because the continuing violation doctrine does not apply to the
alleged acts of MHRA disability discrimination falling outside of the statute of
limitations, these acts are time-barred and cannot form the basis of Radcliffe’s disability
discrimination claim. Defendant’s motion to dismiss these allegations is therefore
granted.
2.

Failure to Provide Reasonable Accommodation

In Count Three, Radcliffe asserts a claim for failure to provide a reasonable
accommodation in violation of the MHRA. In support of this claim, Radcliffe alleges that
Defendant, through its managers and officials, “fail[ed] to accommodate [her] disabilities
after notice, and forc[ed] her to work through and around her disabilities by not allowing
her to work from home, and [did] not otherwise accommodat[e] her disabilities.” (Compl.
¶ 68 [Doc. No. 1-1].) In her general allegations, Plaintiff contends that in approximately
2007 or 2008, she asked for a flexible work schedule, but was refused and told that
working from home was not possible. (Id. ¶ 24.) Plaintiff also alleges that in 2010, “she
needed help,” although the Complaint is unclear as to whether this refers to help with an
accommodation, or help in intervening with LePlavy, or something else. (Id. ¶ 31.)
Radcliffe alleges that she turned to various departments or people at Securian – Human
20

Resources, the Chief Compliance Officer, the Employee Assistance Program – to no
avail. (Id. ¶¶ 31, 33-34.) In the summer of 2010, Plaintiff alleges that Securian first
informed her of the existence of the FMLA, and she took leave under the Act. (Id. ¶ 35.)
Of the two allegations falling within the statute of limitations, Radcliffe’s request in
February 2011 to work a four-day weekly schedule also appears to form part of the basis
for this claim. (Id. ¶ 45.)
The Court finds that the continuing violations doctrine is also inapplicable to the
portions of Plaintiff’s reasonable accommodation claim that fall outside of the statutory
period. While Plaintiff alleges that she requested an accommodation to work from home
in approximately 2007 or 2008, and was denied, this Court has held that a denial of a
request for accommodation constitutes a discrete act and is not part of a continuing
violation. Quasius v. Schwan Food Co., No. 08–CV–575 (JNE/JJG), 2008 WL 4933764,
*5 (D. Minn. Nov. 14, 2008) (citing Morgan, 536 U.S. 101, 114 (2002); Cherosky v.
Henderson, 330 F.3d 1243, 1248 (9th Cir. 2003) (holding denial of employee's request for
an accommodation for a disability under the Rehabilitation Act was a discrete act);
Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) (holding denial
of request for religious accommodation was a discrete act). Plaintiff’s allegations
regarding her need for help, which led her to contact various persons and departments at
Securian (Compl. ¶¶ 31, 33-34 [Doc. No. 1-1]), also do not sufficiently plead a claim for
failure to provide reasonable accommodation. The allegations do not indicate whether
Plaintiff made any such requests for accommodation. For all of these reasons, the Court
21

finds that the portions of Plaintiff’s claim for failure to reasonably accommodate falling
outside of the one-year statute of limitations are time-barred. Defendant’s motion to
dismiss is therefore granted with respect to these allegations.
3.

Reprisal Discrimination

Plaintiff contends that the continuing violation doctrine also applies to her reprisal
claim under the MHRA in Count Four of the Complaint. Plaintiff alleges that in October
2010, she was demoted and a number of her job responsibilities were taken away, and in
February 2011, her 2010 bonus was withheld, and she was terminated or constructively
discharged. (Compl. ¶ 42, 43-45, 73 [Doc. No. 1-1].) Plaintiff contends that Securian’s
actions in withholding the 2010 bonus and refusing to permit a four-day work week,
resulting in her alleged constructive discharge or termination and occurring within the
statutory period, are related to the earlier alleged acts.
The Court disagrees and finds that the alleged acts falling outside of the statutory
period are not sufficiently related to the alleged acts that occurred in February 2011. As
noted, a demotion is considered a discrete act to which the continuing violation doctrine
does not apply. Moreover, the Court does not find the removal of a number of Plaintiff’s
job responsibilities in October 2010 to be an act of the similar type as the acts falling
within the statutory provision, i.e., withholding of the 2010 bonus and the refusal to
permit Radcliffe to work four days per week. For these reasons, the continuing violation
doctrine is inapplicable to these portions of Plaintiff’s claim. Defendant’s motion to
dismiss is granted as it relates to these portions of Plaintiff’s reprisal claim.
22

4.

Gender Discrimination

In Count Five of the Complaint, Plaintiff alleges gender discrimination under the
MHRA, for which she argues that the continuing violation doctrine applies. In support of
her claim, Radcliffe alleges that Securian took adverse actions against her, created a
hostile work environment because of her gender by subjecting her to demeaning
comments about her gender, cutting off communication, involuntarily committing her to a
mental ward, and, in 2011, terminating her from her employment, or constructively
discharging her, and refusing her request to work four days per week. (Compl. ¶¶ 83, 8586, 88 [Doc. No. 1-1].)
Again, the Court’s focus is on whether the alleged actions that fall outside of the
one-year statute of limitations are sufficiently related to the 2011 conduct so as to form a
continuing violation, tolling the statute, or whether the acts form part of a discriminatory
system or policy during the limitations period and before. The Court finds that the
alleged actions are not sufficiently related, nor do they form part of a system or policy.
First, as to the demeaning comments, Plaintiff alleges two specific gender-related
comments, which apparently occurred around 2007 or 2008: (1) that LePlavy informed
Radcliffe that he was glad that no other women worked for him; and (2) that LePlavy told
Radcliffe that he was not able to reduce her to tears. (Id. ¶ 21.) These comments are not
sufficiently related to the 2011 within-the-statute conduct concerning Defendant’s alleged
refusal to provide a 2010 bonus and to allow Plaintiff to work four days a week. Not
only are they unrelated by subject matter, they are also separated in time from the 2011
23

actions by three to four years. In addition, although the comments are objectionable, they
are essentially offensive utterances, as compared to physically threatening or humiliating
actions, and do not form part of a continuing violation. See Morgan, 536 U.S. at 116.
Plaintiff’s allegation that LePlavy closed off communication in 2009, making it
difficult for her to perform her job (id. ¶ 28), also is not related to the actions occurring in
2011 regarding the bonus and refusal to permit a four-day work week, nor can this action,
and the 2011 actions, be considered part of a discriminatory system or policy. Under
Berry, which looks to whether the actions concern the same subject matter, among other
things, 715 F.2d at 981, the closed-off communication in approximately 2009 and the
later actions concerning the 2010 bonus and the refusal to permit a four-day work week,
do not involve the same subject matter. The Supreme Court’s test in Morgan addresses
whether the complained-of action unreasonably interferes with the employee’s work
performance, as Plaintiff alleges here, and the frequency of the action, 536 U.S. at 116, as
the Complaint suggests the communication barrier was constant. Additionally, Morgan
requires examination into the severity of the action and whether it was physically
threatening or humiliating. Id. As to these latter two factors from Morgan, without
diminishing the difficulty that Plaintiff experienced, the lack of communication pled here
was neither sufficiently severe nor physically threatening or humiliating. On balance, the
Court finds that the lack of communication does not support application of the continuing
violation doctrine.
Lastly, the allegation concerning Radcliffe’s involuntary commitment in August
24

2010 (id. ¶ 38) contains no reference to gender and is unrelated to the failure to provide a
bonus and refusal to permit a four-day work week. Moreover, as a one-time event, this
allegation would appear to fall into the category of discrete acts, such that this claim
would arise on the day in question, not over a period of time.

Given that Plaintiff

alleges that the involuntary commitment occurred on a single occasion and that the 2011
allegations are unrelated to such hospitalization, the Court finds the August 16, 2010
incident to be a separate, discrete act.2
Accordingly, the continuing violations doctrine is inapplicable to toll the statute of
limitations for the portions of Plaintiff’s gender discrimination claim that fall outside of
the statute of limitations. Defendant’s motion to dismiss is therefore granted as it relates
to these portions of Plaintiff’s gender discrimination claim.
5.

Hostile Work Environment

As noted earlier, while Plaintiff has not specifically pled a hostile work
environment cause of action, her general allegations refer to a hostile work environment.
(Compl. ¶¶ 2, 43 [Doc. No. 1-1].) The Court therefore addresses the applicability of the
continuing violation doctrine to such a claim. As noted, the denial of the 2010 bonus and

2

Few cases specifically discuss whether involuntary commitment constitutes a
continuing violation. In Smith v. Shorstein, 217 Fed. Appx. 877, 881 (11th Cir. 2007), a state
prisoner challenged his confinement under Florida's law concerning the involuntary commitment
of sexual predators. The court found that the prisoner’s causes of action for civil rights
violations did not accrue, for statute of limitations purposes, until he was eventually released
from the commitment. The facts of Smith are factually inapposite here, where the involuntary
commitment occurred one time, for a 72-hour period, and is unrelated to the Defendant’s alleged
actions in 2011.
25

Defendant’s refusal to provide Radcliffe with a four-day a week position – actions which
occurred in February 2011 – fall within the statutory period. Because Plaintiff was on
FMLA leave as of November 16, 2010, Defendant argues that during the statutory period,
from December 6, 2010 to December 6, 2011, Plaintiff “did not experience any work
environment – hostile or otherwise – during the one year before she filed suit.” (Def’s
Reply Mem. at 4 [Doc. No. 23].) While this is true, the law requires the Court to
consider whether the alleged actions within the statutory period are sufficiently related to
the alleged actions outside of the statutory period, or whether they demonstrate the
maintenance of a discriminatory system or policy during the limitations period and
before. Koren, 2003 WL 1572002 at *9.
In her general allegations, Plaintiff alleges the following facts, falling outside of
the statutory period, that presumably might support a hostile work environment claim: (1)
in 2007 or 2008, LePlavy engaged in “bizarre, overt and hostile behavior (id. ¶ 21); (2) in
2009, LePlavy made fun of Plaintiff’s gait, complained about her work, and “constantly
compare[d] her to employees without health concerns or disabilities” (id. ¶ 28); (3) in
2010, Dr. Battis took Plaintiff to a hospital mental ward after consulting with her treating
physician (id. ¶ 38); and (4) in 2010, she was demoted (id. ¶ 42).
The Court finds that the above-alleged incidents do not constitute a continuing
violation sufficient to toll the statute of limitations for purposes of a hostile work
environment claim. Again, to the extent that Plaintiff alleges, in support of a hostile work
environment claim, that she was demoted, under Morgan, a separate violation may not
26

form the basis of a continuing violation theory, 536 U.S. at 111, and demotion constitutes
a discrete, separate act, as this Court noted previously. See Garcia, 2012 WL 892278 at
*2; see also Goliday v. GKN Aerospace-St. Louis Aerospace, 2011 WL 3847411at *2,
n.1. Plaintiff’s alleged demotion therefore constitutes a separate, discrete act and is timebarred.
As to the other allegations supporting a hostile work environment claim, the court
finds that they are unrelated and not part of a “systematic repetition of the same policy,”
or an “integrated pattern.” Hubbard, 330 N.W.2d at 440-41, n.11. Instead, they are
temporally distinct and not similar in nature, frequency, severity so as to be considered
“part and parcel” of a hostile work environment. Wilkie, 638 F.3d at 951. As noted in
the Court’s discussion of Plaintiff’s gender discrimination claim, the Court views the
allegations concerning the trip to the hospital mental health ward as a separate, discrete
act to which the continuing violation doctrine is inapplicable. It was also an action that
occurred on one occasion and was therefore not a repeated action, that became a pattern
or practice.
C.

Plaintiff’s Common Law Claims

In the Complaint, Plaintiff asserts common law claims of negligent supervision
and retention (Count Six) and IIED (Count Seven). Defendant argues that Plaintiff’s
claims are preempted by both the exclusivity provision in the Minnesota WCA for
personal injuries which arise out of and in the course of employment, and by provisions
of the MHRA. In addition, Securian argues that Plaintiff fails to sufficiently plead prima
27

facie common law claims for negligent supervision and retention in Count Six and IIED
in Count Seven.
1.

Preemption Under the WCA

Plaintiff alleges in her common law claims that she was personally injured.
(Compl. ¶¶ 95, 100 [Doc. No. 1-1].) The WCA provides that employers “are liable to pay
compensation in every case of personal injury. . . of an employee arising out of and in the
course of employment without regard to the question of negligence.” Minn. Stat. §
176.021, subd. 1; Meintsma v. Loram Maint. of Way, Inc., 684 N.W.2d 434, 438 (Minn.
2004). The employer's liability to pay worker's compensation “is exclusive and in place
of any other liability.” Minn. Stat. § 176.031. Thus, the WCA provides the exclusive
remedy to employees for personal injuries arising out of and in the course of employment.
Id.; McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995).
When the WCA provides the employee's exclusive remedy, a district court is without
subject-matter jurisdiction unless the employee can show that the alleged conduct falls
within an exception to WCA exclusivity. Stengel v. East Side Beverage, 690 N.W.2d
380, 383 (Minn. Ct. App. 2004).
Plaintiff argues that such an exception applies, asserting that her negligence claim
is not barred under the “assault exception” to WCA exclusivity. (Pl’s Opp’n Mem. at 1620 [Doc. No. 22]) (citing Minn. Stat. § 176.011, subd. 16). As noted, if an employee
suffers a personal injury or death arising out of and in the course of her employment, the
Act provides the employee's exclusive remedy. Minn. Stat. § 176.031. However, in
28

defining the phrase “personal injury,” the WCA includes an “assault exception” to the
Act’s default exclusivity, providing that “[p]ersonal injury does not include an injury
caused by the act of a third person or fellow employee intended to injure the employee
because of personal reasons, and not directed against the employee as an employee, or
because of the employment.” Minn. Stat. § 176.011, subd. 16. Under those
circumstances, such claims are not subject to the WCA’s exclusivity provision.
In the context of the WCA’s exclusivity provision, the Minnesota Supreme Court
has identified three categories of assault cases. The first two categories of assault cases
are only compensable under the WCA, and are therefore subject to the Act’s exclusivity
provision: (1) when the provocation or motivation for the assault arises solely out of the
activity of the victim as an employee; or (2) when the assault was random and neither
directed against the victim as an employee nor for reasons personal to the employee.
McGowan, 527 N.W.2d at 834 (holding that the assault exception did not apply to the
rape of a female director of a homeless shelter because being in isolated places with male
clients was both a potential job duty and a “causal factor”); see also Meintsma, 684
N.W.2d at 439 (holding that the assault exception did not apply to a birthday spanking
administered by co-workers “during working hours in the workplace because all
employees were spanked on their birthdays and the spanking was not personally
motivated.”). The final category of assault, which is outside of the WCA’s exclusivity
provision, as noted above, occurs if the assailant is motivated by personal animosity
toward the victim, arising from circumstances wholly unconnected with the employment.
29

McGowan, 527 N.W.2d at 834; Mehl v. Portaco, Inc., No. 11-CV-36 (RHK/LIB), 2012
WL 1593215, *7-8 (D. Minn. May 7, 2012) (finding assault exception applied where
plaintiff’s duties as a welder put her at risk for groping, employer had no policy
condoning such conduct, and individual defendant’s actions were personal, having no
association with plaintiff’s duties as a welder). Thus, the assault exception applies in
situations where there is some prior relationship between the assailant and victim and
does not apply when the victim is chosen at random or is targeted because of her status as
an employee. B.E.M. v. Bridgeman's Restaurants, Inc., No. C8–96–2187, 1997 WL
161852, *3 (Minn. Ct. App. April 8, 1997).
While it is generally the case that an assault occurring during working hours, at the
workplace, that “ar[ises] out of a discussion about office affairs” does not fall within the
assault exception, Muhonen v. AT&T Inc., No. 09-CV-0452 (JRT/SRN), 2009 WL
3013530, *6 (D. Minn. Sept. 16, 2009) (citing Parker v. Tharp, 409 N.W.2d 915, 917
(Minn. Ct. App.1987)), aff’d, 456 Fed. Appx. 610 (8th Cir. 2012), cert. denied, __ S. Ct.
__, No. 12-5122, 2012 WL 2847499, *1 (2012)), this Court held in Birth v. Myles, No.
09-CV-3386 (DWF/JSM), 2010 WL 5067488, *4-5 (D. Minn. Dec. 6, 2010), that the
WCA did not preempt the plaintiff’s tort claims even though the alleged assault and
battery occurred during working hours and in the workplace. In Birth, the plaintiff
alleged sexual harassment by her department manager, which occurred in the workplace,
but also continued after the co-worker was fired – the plaintiff had seen the former coworker parked outside of her apartment.

2010 WL 5067488, at *2. When the co30

worker was still employed, however, he had attempted to sexually assault the plaintiff.
Id. at *1. The Court found that the alleged assault and battery was personally motivated
and did not arise out of her employment activities, nor was this activity directed at all
employees.3 Id. at *4-5.
Plaintiff's assault claim, for the incident in November 2009 when LePlavy is
alleged to have thrown a ruler at Radcliffe, does not fall within the assault exception to
the WCA exclusivity provision. The event occurred in the workplace, during daytime
hours, on the day following Thanksgiving. At least two other employees were working
with Radcliffe on that day. (Compl. ¶ 25 [Doc. No. 1-1].) Plaintiff alleges that LePlavy
threw the ruler in the context of reviewing a document on a large work project. (Id.) As
in Parker and Muhonen, the ruler incident occurred at the workplace, during workplace
hours and arose out of a discussion about workplace issues. Unlike Birth and Mehl,
which involved allegations of sexual assault and battery, Plaintiff has not alleged that
LePlavy threw the ruler because of personal animosity towards Plaintiff unrelated to her
employment. And, while nothing indicates that LePlavy routinely threw rulers at all other
employees, the allegations make clear that the incident was specifically related to
Plaintiff's status as an employee, working on a large project, with a short deadline.
(Compl. ¶ 25 [Doc. No. 1-1].) Accordingly, the assault exception to the WCA does not

3

This Court has held that a sexual harassment action brought pursuant to the
MHRA does not preempt a sexually-motivated common law battery claim. Mehl, 2012
WL 1593215 at *7 (citing Wirig v. Kinney Shoe Corp., 461 N.W.2d 374 (Minn. 1990)).
31

apply and Defendant’s motion to dismiss Plaintiff’s common law claims in Counts Six
and Seven is granted.
2.

Preemption Under the MHRA

In addition, Defendant argues that Plaintiff’s common law claims are subject to
preemption under the MHRA. Plaintiff asserts that her common law claims are not
preempted.
The MHRA is the exclusive remedy for acts declared actionable by the MHRA.
Minn. Stat. § 363A.04. “[T]he MHRA preempts a common law cause of action if: (1) the
factual basis and injuries supporting the common law claim also would establish a
violation of the MHRA; and (2) the obligations the defendant owes to the plaintiff, as a
practical matter, are the same under both the common law and the MHRA.” Pierce v.
Rainbow Foods Group, Inc., 158 F. Supp.2d 969, 975–76 (D. Minn. 2001).
While Plaintiff contends that the duties of care underlying her common law claims
differ from those obligations underlying her MHRA claims, the Court disagrees.
Applying Pierce, in Beliveau v. The Saint Paul Area Council of Churches, this Court held
that the MHRA preempted the plaintiff’s common law claims alleging negligence and
negligent training, retention, and supervision, where none of the facts or injuries alleged
in the plaintiff’s common law claims fell outside the realm of protections under the
MHRA. No. 10-CV-3593 (DWF/JJK), 2010 WL 5422559, *3 (D. Minn. Dec. 23, 2010).
The allegations here dictate the same result. In Count Six, Radcliffe alleges negligent
supervision and retention, and in Count Seven, IIED, based on her general factual
32

allegations, and allegations of a “continual pattern of discrimination and harassment” that
caused Plaintiff to suffer severe emotional stress, trauma, embarrassment and depression.
(Compl. ¶¶ 91-92; 96 [Doc. No. 1-1].) Plaintiff further alleges in Count Six that
Defendant was negligent in retaining LePlavy (id. ¶ 94), and, in Count Seven, that both
LePlavy and Dr. Battis intentionally inflicted emotional distress upon her. (Id. ¶ 100.)
Radcliffe’s resulting “personal, emotional, and economic injuries” (id. ¶¶ 95, 100)
are related to Defendant’s duty to protect Plaintiff from harassment, discrimination, and
retaliation in the workplace and fall within the MHRA’s protections. Accordingly, in
addition to the exclusive remedy provision of the WCA, Plaintiff’s common law claims in
Counts Six and Seven are preempted by the MHRA. Defendant’s motion to dismiss
Counts Six and Seven is therefore granted on this additional basis.
3.

Sufficiency of Common Law Claims

Finally, in addition to the WCA exclusive remedy provision and MHRA
preemption, Defendant argues that Plaintiff’s common law claims fail as a matter of law.
Plaintiff argues that her claims are sufficiently pled. Alternatively, she seeks permission
to amend her Complaint if the Court finds that her allegations are insufficient.
a.

Negligent Supervision and Retention Claim

Even if Plaintiff’s negligent supervision and retention claim in Count Six was not
preempted by the MHRA and the WCA, it would nevertheless be subject to dismissal on
the merits. Under a claim for negligent supervision or retention, an employer may be held
directly liable for “an employee's intentional tort, an action almost invariably outside the
33

scope of employment, when the employer knew or should have known that the employee
was violent or aggressive and might engage in injurious conduct.” Yunker v. Honeywell,
Inc., 496 N.W.2d 419, 422 (Minn. Ct. App. 1993); see also Ponticas v. K.M.S.
Investments, 331 N.W.2d 907, 911 (Minn. 1983) (recognizing claim for negligent hiring
and acknowledging Minnesota has recognized a claim for negligent retention). Applying
Minnesota law, this Court has held that employment-based sexual harassment may form
the basis for a claim of negligent retention. See Mandy, 940 F. Supp. at 1470–72 (D.
Minn. 1996); Thompson v. Campbell, 845 F. Supp. 665, 676 (D. Minn. 1994).
Harassment of a more general nature, however, has been found insufficient to sustain
such a claim. Bruchas v. Preventive Care, Inc., 553 N.W.2d 440, 442–43 (Minn. Ct. App.
1996). Rather, the employee's conduct must rise to the level of an intentional tort. See id.;
see also Thompson v. Olsten Kimberly Qualitycare, Inc., 980 F. Supp. 1035, 1040–41 (D.
Minn. 1997) (dismissing claims of negligent supervision because plaintiff failed to allege
that she suffered either physical injury or feared such injury).
Negligent supervision also requires an allegation of physical injury. Johnson v.
Peterson, 734 N.W.2d 275, 277 (Minn. Ct. App. 2007) (affirming judgment on pleadings
for defendant). Moreover, such claims require the plaintiff to establish that the physical
harm was reasonably foreseeable to the employer. See, id. at 278 (“[A] negligent hiring
claim like a negligent supervision claim, requires that the employer knew or should have
known that the employee was violent or aggressive and might engage in injurious
conduct.”)
34

Plaintiff alleges that LePlavy’s comments and conduct led to her deteriorating
health and depression. (Compl. ¶¶ 92, 95 [Doc. No. 1-1].) Her general allegations also
refer to the incident in which LePlavy threw a ruler at her, although she does not allege a
direct physical injury as a result. (Id. ¶ 25. ) While Plaintiff’s allegation of depression
might be considered a physical injury, and assuming that she may have had apprehension
of physical injury during LePlavy’s ruler-throwing incident, she has not alleged that
Securian should have known that LePlavy had a propensity to cause physical harm.
Instead, she alleges that Securian knew or should have known of “problems with LePlavy
after numerous employees under him reported his actions to human resources, with one
citing him as the specific reason for her departure in her exit interview, in addition to
requiring him to take a class to work and manage people better.” (Id. ¶ 93.) These past
reports from other employees may have described offensive behavior on LePlavy’s part,
but the Complaint fails to allege that the past complaints involved the use or threat of
physical harm. Moreover, the Complaint describes the class which LePlavy was
allegedly required to attend as a “charm school” (id. ¶ 19), not a class on overcoming the
physical abuse of employees. In short, Plaintiff does not allege the type of intentional,
physically injurious tort that courts deem necessary to create an actionable claim for
negligent supervision and retention. Accordingly, Plaintiff’s claim for negligent
supervision and retention fails on the merits, as well as for the reasons previously
identified. Defendant is entitled to the dismissal of this claim.

35

b.

IIED Claim

Regarding Radcliffe’s claim for IIED in Count Seven, a person asserting a claim
for IIED must establish the following four elements: (1) the conduct must be extreme and
outrageous; (2) the conduct must be intentional or reckless; (3) the conduct must cause
emotional distress; and (4) the distress must be severe. Hubbard, 330 N.W.2d at 438-39
(citing Restatement (Second) of Torts § 46(1) (1965)). This claim is limited to the most
egregious facts, in situations in which the defendant’s conduct is “so atrocious that it
passes the boundaries of decency and is utterly intolerable to the civilized community.”
Id. at 439 (citation omitted). Thus, “[l]iability for intentional infliction of emotional
distress does not extend to insults, indignities, threats, annoyances, petty oppressions, or
trivialities.” Langeslag v. KYMN, Inc., 664 N.W.2d 860, 865 (Minn. 2003) (citations
omitted). Verbal harassment by a supervisor also falls short of the type of egregious
conduct necessary to maintain a claim. Schibursky v. Int’l Bus. Machines Corp., 820 F.
Supp. 1169, 1183 (D. Minn. 1993); see also Onyiah v. St. Cloud State Univ., 655 F.
Supp.2d 948, 970-72 (D. Minn. 2009).
Plaintiff fails to allege conduct sufficiently extreme and outrageous to support such
a claim. She contends that LePlavy was generally disrespectful and threw a ruler at her.
(Compl. ¶¶ 21, 25, 28 [Doc. No. 1-1].) While such allegations certainly describe
unprofessional, objectionable conduct, these actions do not satisfy the requirement of
extreme and outrageous conduct necessary to maintain a claim for IIED. Morever, as
Defendant notes, while LePlavy allegedly engaged in such behavior, he consistently rated
36

Radcliffe’s work performance as “exceed[ing] expectations” and Defendant regularly
promoted Radcliffe. (Id. ¶¶ 1, 23.)
As to Dr. Battis and the allegations of involuntary commitment, Plaintiff alleges
that after she met with Battis on August 16, 2010, he consulted with Radcliffe’s general
physician by phone. (Id. ¶ 38.) Dr. Battis then summoned his assistant and the two drove
Plaintiff to United Hospital. (Id.) Plaintiff alleges that she was placed on a 72-hour
mental health lockdown and subjected to a strip search. (Id.) As Defendant notes,
however, Plaintiff does not allege that Dr. Battis actually admitted Plaintiff to the
hospital, that he searched her, or that the hospital misdiagnosed her as a threat to herself
or others. (Def.’s Reply Mem. at 13 [Doc. No. 23].) In Hempel v. Fairview Hosp. &
Healthcare Servs., Inc., 504 N.W.2d 487, 492-93 (Minn. Ct. App. 1993), the Minnesota
Court of Appeals held that the actions of medical staff in undertaking a necessary
procedure that could be conducted safely, although it led to the patient’s death, did not
constitute extreme and outrageous conduct. In Hempel, the plaintiffs were the parents of
an adult psychiatric patient, who died from cardiac arrest during a psychiatric “take
down” procedure in the hospital, which the parents witnessed. Id. at 489. The court
found that while witnessing their son’s death was undoubtedly distressing, the fact that
the patient’s sweatshirt was pulled over his head during the take down procedure, and that
the “team leader” of the psychiatric attendants did not provide appropriate reassurance to
the patient, were actions not so “utterly intolerable” as to sustain a claim for IIED claim.
Id. at 493. Here also, while Plaintiff clearly found the incident involving the mental
37

health ward upsetting, the actions of Dr. Battis and his assistant in transporting Radcliffe
to the hospital after consulting with her personal physician do not qualify as behavior
“utterly intolerable to the civilized community.” Id.
c.

Leave to Amend

Finally, Plaintiff seeks leave to amend her Complaint. (Pl’s Opp’n Mem. at 27
[Doc. No. 22].) The Court, however, finds that because Plaintiff has failed to satisfy the
statute of limitations with respect to the allegations at issue in Counts Two through Five,
permitting leave to amend would be futile as to those claims. Thunander v. Uponor, Inc.,
__ F. Supp.2d __, No. 11-CV-2322 (SRN/SER), 2012 WL 3430749, *24 (D. Minn. Aug.
14, 2012) (denying leave to amend particular claims that were time-barred under statutes
of limitation on grounds of futility). In addition, as set forth herein, the Court finds that
permitting leave to amend Plaintiff’s common law claims in Counts Six and Seven would
be similarly futile, because they are preempted by both the WCA, the MHRA, and fail on
the merits. The deficiencies in the pleading are therefore not mere technicalities, for
which leave to amend might be appropriate to cure such deficiencies. See Eller v. Nat’l
Football League Players Ass’n, __ F. Supp.2d __, No. 11-CV-2623 (SRN/JJG), 2012 WL
1933746, *12 (D. Minn. May 29, 2012) (denying, as futile, permission for leave to amend
where claims failed as a matter of law). Finally, Plaintiff articulates no additional or
different allegations or claims that she would make. Id. (citing In re NVE Corp. Sec.
Litig., 527 F.3d 749, 752 (8th Cir.2008) (affirming dismissal with prejudice where
“appellants have not articulated any changes they wish to make, much less demonstrated
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how revision would address the numerous pleading deficiencies identified by the district
court”). The Court therefore denies the request for leave to amend.
THEREFORE, IT IS HEREBY ORDERED THAT:
Defendant’s Partial Motion to Dismiss [Doc. No. 16] is GRANTED, such that
those portions of Counts Two through Five which fall outside of the statute of limitations
are dismissed, and Counts Six and Seven are dismissed in their entirety.

Dated:

October 30, 2012
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge

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