Murdock v. L A Fitness International, LLC et al
Filing
22
ORDER granting 11 Motion to Dismiss Certain Claims (Written Opinion). Signed by Senior Judge David S. Doty on 10/29/2012. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-975(DSD/SER)
Elias A. Murdock,
Plaintiff,
ORDER
v.
L.A. Fitness International,
LLC, (a.d.b.a. Pro Results)
(formerly dba Body of Change),
Bally Total Fitness, All
Individual Defendants herein,
Defendants.
Elias A. Murdock, 700 West Maryland Avenue, St. Paul, MN
55117, pro se.
Melissa Raphan, Esq., Jennifer L. Cornell, Esq. and
Dorsey & Whitney, LLP, 50 South Sixth Street, Suite 1500,
Minneapolis, MN 55402, counsel for defendants.
This matter is before the court upon the motion by defendant
for the partial dismissal of plaintiff’s pro se amended complaint.
Based on a review of the file, record and proceedings herein, and
for the following reasons, the court grants the motion.
BACKGROUND
This employment dispute arises out of the termination of
plaintiff Elias A. Murdock by defendant LA Fitness International,
LLC (LA Fitness).
Murdock, an American Indian male over the age of
forty, began working as a fitness instructor for LA Fitness in
January 2008.
Am. Compl. ¶¶ 8, 20.
Murdock later accepted a
position as an Aerobic Coordinator.
Id. ¶ 24.
terminated Murdock on February 7, 2010.
LA Fitness
Id. ¶ 150.
On July 6, 2012, Murdock filed a nine-count amended complaint,
alleging various state and federal claims.
LA Fitness moves to
dismiss the age discrimination (Count III), whistleblower (Count
V), fraud (Count VI), invasion of privacy (Count VII), intentional
infliction
of
emotional
distress
(Count
VIII)
and
tortious
interference (Count IX) claims.1
DISCUSSION
I.
Standard of Review
To survive a motion to dismiss 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.’”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
“A
claim has facial plausibility when the plaintiff [has pleaded]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007)).
Although a complaint need not contain
detailed factual allegations, it must raise a right to relief above
1
L.A. Fitness does not move to dismiss Murdock’s claims for
racial discrimination (Count I), gender discrimination (Count II)
or retaliation (Count IV).
2
the speculative level.
See Twombly, 550 U.S. at 555.
“[L]abels
and conclusions or a formulaic recitation of the elements of a
cause of action” are not sufficient to state a claim.
Iqbal, 129
S. Ct. at 1949 (citation and internal quotation marks omitted).
II.
Age Discrimination
Murdock first argues that he was terminated in violation of
the Age Discrimination in Employment Act of 1967 (ADEA) and the
Minnesota Human Rights Act (MHRA).2
Murdock raises his claims
based on his termination and LA Fitness’s failure to promote older
trainers.
A.
Termination
“When, as here, a plaintiff relies on circumstantial rather
than direct evidence of age discrimination, the case is considered
under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 [(1973)].”
Rahlf v. Mo-Tech Corp., 642 F.3d
633, 637 (8th Cir. 2011) (citations omitted). To establish a prima
facie case of age discrimination, “a plaintiff must show (1) he is
over 40 years old, (2) he met the applicable job qualifications,
(3) he suffered an adverse employment action, and (4) there is some
additional
evidence
that
termination decision.”
age
was
a factor
in
the
employer’s
Id. (citation omitted).
2
Age discrimination claims under the MHRA and ADEA are
considered under the same analysis. Chambers v. Metro. Prop. &
Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003).
3
Murdock
cannot
discrimination.
establish
a
prima
facie
case
of
age
While Murdock is over the age of forty and
suffered an adverse employment action, he has not pleaded any facts
demonstrating that age was a causal factor in his termination.
Murdock may show age was a factor in his termination “by presenting
either statistical evidence (such as a pattern of forced early
retirement or failure to promote older employees) or circumstantial
evidence (such as comments and practices that suggest a preference
for younger employees).” Chambers v. Metro. Prop. & Cas. Ins. Co.,
351 F.3d 848, 856 (8th Cir. 2003) (citations and internal quotation
marks
omitted).
Murdock
has
pleaded
no
statistical
or
circumstantial evidence to causally link his age and termination.
As
such,
Murdock
fails
to
plead
a
prima
facie
case
of
age
discrimination based on termination.
B.
Failure to Promote
Murdock also argues that LA Fitness promoted younger workers
at
his
expense.
To
establish
a
prima
facie
case
of
age
discrimination based on failure to promote, a plaintiff must show
that (1) he was a member of a protected group, (2) he was qualified
and applied for the promotion, (3) his application was rejected,
and (4) other employees with similar qualifications who were not
members of a protected class were promoted. See Lyoch v. AnheuserBusch Cos., 139 F.3d 612, 614 (8th Cir. 1998) (citation omitted).
Murdock does not allege that he applied for a promotion at LA
4
Fitness.
Therefore,
LA
Fitness
did
not
fail
to
promote
in
violation of the ADEA and MHRA, and dismissal of Murdock’s age
discrimination claim for failure to promote is warranted.3
III.
Minnesota Whistleblower Act
Murdock next argues that he was terminated in violation of the
Minnesota Whistleblower Act (MWA).
Specifically, Murdock argues
that he was fired for reporting poor management, fraud, theft and
discrimination.
MWA
claims
limitations.
Am. Compl. ¶ 185.
are
constrained
by
a
two-year
statute
of
See Minn. Stat. § 541.07(1); Larson v. New Richland
Care Ctr., 538 N.W.2d 915, 920 (Minn. Ct. App. 1995), abrogated on
other grounds by Gordon v. Microsoft Corp., 645 N.W.2d 393 (Minn.
2002).
At the latest, Murdock’s whistleblower claim accrued when
he was terminated on February 7, 2010.
Civil
Procedure
3.01,
an
action
is
Under Minnesota Rule of
commenced
upon
service.4
Murdock did not serve LA Fitness until, at the earliest, April 24,
3
Murdock also argues that LA Fitness gave more desirable
personal training clients to younger trainers.
Even if true,
“[m]inor changes in duties or working conditions, even unpalatable
or unwelcome ones, which cause no materially significant
disadvantage, do not rise to the level of an adverse employment
action.” Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 926 (citation
and internal quotation marks omitted). Therefore, the assignment
of particular customers to particular trainers, without more,
cannot form the basis of an age discrimination claim.
4
“[S]tate commencement rules apply because they are part and
parcel to the statute of limitations.” Larsen v. Mayo Med. Ctr.,
218 F.3d 863, 866 (8th Cir. 2000) (citation and internal quotation
marks omitted).
5
2012, more than two years after the accrual of his claim.
No. 3.
See ECF
Therefore, the MWA claim is time-barred, and dismissal is
warranted.
IV.
Fraud
Murdock next argues common law fraud5 and a violation of the
Minnesota Consumer Fraud Act (MCFA). Murdock bases these claims on
general
allegations
of
insurance
fraud,
deceptive
membership
practices, unsanitary facilities and LA Fitness’s improper use of
the “Spinning” trademark.
Fraud
claims
must
be
pleaded
with
particularity.
This
particularity requirement applies to common law fraud and MCFA
claims.
See E-Shops Corp. v. U.S. Bank Nat. Ass’n, 678 F.3d 659,
663 (8th Cir. 2012) (MCFA); Ritchie Capital Mgmt., L.L.C. v.
Jeffries, 653 F.3d 755, 764 (8th Cir. 2011) (common law fraud).
To
meet the particularity requirement, the complaint “must plead such
facts as the time, place, and content of the defendant’s false
representations,
as
well
as
the
details
of
the
defendant’s
fraudulent acts, including when the acts occurred, who engaged in
them, and what was obtained as a result.”
U.S. ex rel. Raynor v.
Nat’l Rural Utils. Coop. Fin., Corp., 690 F.3d 951, 955 (8th Cir.
2012) (citation omitted).
“[T]he particularity required by Rule
5
At Count VI of the amended complaint, Murdock alleges “fraud
fed.”
The court construes this as an allegation of common law
fraud. See Smith v. Hundley, 190 F.3d 852, 855 n.7 (8th Cir. 1999)
(explaining that pro se pleadings are liberally construed).
6
9(b) is intended to enable the defendant to respond specifically
and quickly to the potentially damaging allegations.” U.S. ex rel.
Costner v. United States, 317 F.3d 883, 888 (8th Cir. 2003)
(citation omitted).
As such, “conclusory allegations that a
defendant’s conduct was fraudulent and deceptive are not sufficient
to satisfy the rule.”
BJC Health Sys. v. Columbia Cas. Co., 478
F.3d 908, 917 (8th Cir. 2007) (citation omitted).
Murdock has not pleaded his fraud claims with particularity.
Murdock fails to identify who perpetrated the alleged fraud, what
was obtained as a result, relevant dates and factual details that
would aid LA Fitness in defending against these claims.
conclusory allegations fail under Rule 9(b).
Such
Therefore, dismissal
of the fraud claims is warranted.
V.
Invasion of Privacy
Murdock next argues that LA Fitness invaded his privacy in
violation of 42 U.S.C. § 1983.
In support, Murdock explains that
he has been followed and recognized in public places, that LA
Fitness contacted prospective employers and that LA Fitness posted
on Facebook about his termination.6
6
Murdock alleges that Robert Andy Smith, an LA Fitness
manager, responded to customer inquiries on LA Fitness’s Facebook
page regarding Murdock’s absence from LA Fitness. Murdock alleges
that Smith’s post reads: “For those commenting and speculating
about our group fitness coordinator/trainer who isn’t there anymore
- first, shame on you for gossiping about a man’s career, and the
decisions of his supervisors on an open forum.
Second, my
understanding as one peripherally aware of the decision, it had
(continued...)
7
To establish a claim under § 1983, a plaintiff must show (1) a
deprivation of a right secured by the Constitution or laws of the
United States and (2) that the deprivation was committed “under
color of” state law.
Lind v. Midland Funding, L.L.C., 688 F.3d
402, 405 (8th Cir. 2012)(citation omitted). To show that a private
defendant is acting under color of state law, a plaintiff must show
that the defendant’s actions are “fairly attributable” to the
state.
Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982).
Murdock’s complaint is devoid of any allegations that LA Fitness
acted under color of state law, other than a conclusory assertion
that “law enforcement officers may be involved in the invasion of
privacy.”
Am. Compl. ¶ 191.
indicating
that
LA
Fitness
enterprise with, a state actor.
Murdock does not allege any facts
conspired
with,
or
had
a
joint
As a result, LA Fitness can not be
interpreted as acting under color of state law, and Murdock’s §
1983 claim fails.
Given Murdock’s pro se status, the court also considers his
invasion of privacy claim under Minnesota common law. “Minnesota
recognizes the tort of invasion of privacy on three alternative
theories: intrusion of seclusion, appropriation of a name or
likeness of another, and publication of private facts.”
Yath v.
(...continued)
nothing to do with his abilities as an instructor. That wasn’t the
extent of his job though, and some serious HR/Administrative issues
arose surrounding his other responsibilities and parting was the
decision. That is all that needs to be said.” Am. Compl. ¶ 152.
8
Fairview
Clinics,
2009)(citation
N.P.,
omitted).
767
N.W.2d
Murdock
34,
42
makes
no
(Minn.
Ct.
allegations
App.
of
appropriation, and only intrusion of seclusion and publication of
private facts could apply here.
The allegations within Murdock’s complaint are insufficient to
state a claim for either intrusion upon seclusion or publication of
private facts.
Both theories require the invasion to be highly
offensive to a reasonable person.
See Lake v. Wal-Mart Stores,
Inc., 582 N.W.2d 231, 233 (Minn. 1998).7
In invasion of privacy
claims, “there is a preliminary determination of offensiveness
which must be made by the court in discerning the existence of a
cause of action.”
Bauer v. Ford Motor Credit Co., 149 F. Supp. 2d
1106, 1109 (D. Minn. 2001) (citation and internal quotation marks
omitted).
“[T]he question of what kinds of conduct will be
regarded as a highly offensive intrusion is largely a matter of
social conventions and expectations.”
Id. at 1110 (citation and
internal quotation marks omitted).
No reasonable person could find that these alleged invasions
of Murdock’s privacy meet this “highly offensive” threshold.
7
The
Intrusion upon seclusion “occurs when one intentionally
intrudes, physically or otherwise, upon the solitude or seclusion
of another ... if the intrusion would be highly offensive to a
reasonable person. Lake, 582 N.W.2d at 233 (citation and internal
quotation marks omitted). Publication of private facts occurs when
the facts are publicized in a way that “(a) would be highly
offensive to a reasonable person, and (b) is not of legitimate
concern to the public.” Id. (citation and internal quotation marks
omitted).
9
few cases that have found actionable invasions of privacy are based
on much more egregious facts than those present here.
See, e.g.,
Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 745 (Minn.
Ct. App. 2001) (finding invasion when defendant altered medical
release form to obtain plaintiff’s medical information); see also
Groeneweg v. Interstate Enters., Inc., No. A04-1290, 2005 WL
894768, at
*5-*6
(Minn. Ct.
App. Apr.
19,
2005)
(cataloging
invasion of privacy claims and concluding that termination in
presence of fellow employees was not actionable).
Therefore,
Murdock’s claim for common law invasion of privacy fails, and
dismissal is warranted.
VI.
Intentional Infliction of Emotional Distress
Murdock next argues that LA Fitness intentionally caused him
emotional distress.
Specifically, Murdock bases his claim on LA
Fitness employees “humiliating, bullying, making racially offensive
statements ... [and] posting demeaning comments on its Facebook
[page].”
Am. Compl. ¶ 193.
To establish intentional infliction of emotional distress
(IIED) under Minnesota law, “(1) the conduct must be extreme and
outrageous; (2) the conduct must be intentional or reckless; (3) it
must cause
emotional
distress;
and
(4)
the distress
must
be
severe.” Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 43839 (Minn. 1983) (citation omitted).
Conduct is considered extreme
or outrageous only when it is “so atrocious that it passes the
10
boundaries of decency and is utterly intolerable to the civilized
community.”
omitted).
Id. at 439 (citation and internal quotation marks
Murdock alleges, among other things, that he was not
permitted to wear a traditional American Indian necklace, was
singled out for having long hair and was told by a co-worker to
“cut that Last of the Mohicans hair.”
Am. Compl. ¶¶ 56-57, 78, 97.
While these alleged comments are insensitive, they do not amount to
extreme or outrageous conduct under Minnesota law.
“[F]alling
short of established standards of professionalism and courtesy is
a far cry from engaging in conduct that is so atrocious that it
passes the boundaries of decency and is utterly intolerable to the
civilized community.” Glass v. IDS Fin. Servs., 778 F. Supp. 1029,
1074 (D. Minn. 1991).
workers
or
Further, “a work environment in which co-
supervisors
criticize,
taunt,
or
harass
another
employee, does not present the egregious conduct required for an
IIED claim.”
Oniyah v. St. Cloud State Univ., 655 F. Supp. 2d 948,
971 (D. Minn. 2009) (citations omitted).
Therefore, LA Fitness’s
conduct was not extreme or outrageous, and dismissal of Murdock’s
claim for IIED is warranted.8
8
Moreover, the court notes that even if Murdock alleged
extreme and outrageous conduct, he failed to allege that his
emotional distress was sufficiently severe. Murdock alleges that
he suffers from “[d]epression, chronic fatigue, irritability, sleep
abnormalities, insomnia, tiredness throughout the day, malaise[,]
a significantly grim outlook for his future, and a feeling he will
never regain the prominence in his career, or his personal life.”
Am. Compl. ¶ 193. This “garden variety” emotional distress does
(continued...)
11
VII.
Tortious Interference
Murdock next argues that LA Fitness tortiously interfered with
his relationship with Fitness Crossroads, a prospective employer.
Murdock alleges that a current or former LA Fitness member
suggested that Fitness Crossroads not hire him.
Am. Compl. ¶ 196.
“Vicarious liability may be imposed when a master-servant or
principal-agent relationship exists between the tortfeasor and a
third party.”
Urban ex rel. Urban v. Am. Legion Post 184, 695
N.W.2d 153, 160 (Minn. Ct. App. 2005) (citation omitted).
Here,
the alleged tortfeasor was neither an employee nor an agent of LA
Fitness.
As such, this allegation fails to state a claim for
tortious interference against LA Fitness.
Murdock also argues that LA Fitness interfered by providing a
negative employment reference to Fitness Crossroads.
During his
interview with Fitness Crossroads, Murdock was informed that three
of
his
former
references.
employers
had
Am. Compl. ¶ 196.
furnished
negative
employment
To state a claim for tortious
interference with a prospective business relationship, Murdock must
show that LA Fitness intentionally and improperly induced a third
party not to enter into a business relationship.
See United Wild
(...continued)
not rise to the level required to establish severe distress under
Minnesota law.
See Elstrom v. Indep. Sch. Dist. No. 270, 533
N.W.2d 51, 57 (Minn. Ct. App. 1995) (finding insomnia, crying
spells, depression and fear of answering door and telephone
insufficient to establish severe distress prong of IIED).
12
Rice, Inc. v. Nelson, 313 N.W.2d 628, 633 (Minn. 1981) (citation
omitted).
There is nothing improper, however, with providing
employment references.
See Hunt v. Univ. of Minn., 465 N.W.2d 88,
96 (Minn. Ct. App. 1991) (“Kegler’s subjectively honest assessment
of Hunt’s job performance was an employment reference made for a
proper purpose.”).
Indeed, “the public interest is best served by
encouraging accurate assessments of an employee’s performance,”
including employment references.
Id.
As a result, LA Fitness did
not improperly interfere with Murdock’s prospective employment.
Therefore, dismissal of this claim is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that LA
Fitness’s motion to dismiss certain claims [ECF No. 11] is granted.
Dated:
October 29, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court
13
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