Schroer v. Baldwin Filters, Inc.
ORDER - Baldwin's Motion to Dismiss, or, in the alternative, to Strike (Filing No. 34 ) is denied in part and granted in part. Schroer's fourth claim for wrongful termination based upon violation of public policy is dismissed. The motion is denied in all other respects. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BALDWIN FILTERS, INC.,
This matter is before the court on the defendant’s Motion to Dismiss, or, in the
alternative, to Strike (Filing No. 34).1 The defendant filed a brief (Filing No. 35) and
index of evidence (Filing No. 36) in support of the motion. The plaintiff filed a brief
(Filing No. 37) in opposition. The defendant filed a brief (Filing No. 38) in reply.
This matter arises from the alleged wrongful termination of the plaintiff, Lohn
Schroer (Schroer), by the defendant, Baldwin Filters, Inc. (Baldwin). On February 22,
2013, Schroer filed a complaint in the District Court of Buffalo County, Kearney,
Nebraska. See Filing No. 1-1 - Ex. 1 Complaint. On March 27, 2013, Baldwin removed
the case to the United States District Court for the District of Nebraska. See Filing No. 1
- Notice of Removal. On April 19, 2013, Baldwin moved to dismiss Schroer’s complaint
or, in the alternative, strike and for a more definite statement. See Filing No. 7. On July
29, 2013, the court granted the motion for a more definite statement and denied the
motion in all other respects. See Filing No. 28 - Order. On August 9, 2012, Schroer
filed an Amended Complaint. See Filing No. 29.
Schroer’s Amended Complaint sets forth multiple factual allegations, which the
court relies on for the purposes of Baldwin’s motion. Schroer alleges the following facts:
Baldwin hired Schroer on December 4, 2000, to work full-time at Baldwin’s
manufacturing plant in Kearney, Nebraska. See Filing No. 29 - Amended Complaint ¶
3. Baldwin employed Schroer under certain terms and conditions for approximately ten
years until December 2011, when Baldwin terminated Schroer’s employment. Id. ¶¶ 31
The parties consented to jurisdiction by a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). See Filing No. 26.
4. Those terms and conditions restricted Baldwin’s ability to terminate Schroer. Id. ¶ 3.
While working for Baldwin in 2004, Schroer sustained an injury and, as a result, became
forty-percent disabled but was able to work with restrictions. Id. ¶ 5. Baldwin continued
to employ Schroer “with the knowledge of the restrictions.” Id. Baldwin also employed
Corrie Crowin (Mr. Crowin) as Schroer’s supervisor. Id. ¶ 6. Mr. Crowin “harassed
Plaintiff during working hours and discriminated against Plaintiff due to his disability.”
Id. ¶ 7. “[Mr.] Crowin was acting within the course and scope of employment with the
Defendant. [Mr.] Crowin was acting on the Defendant’s behalf when the incident took
place.” Id. ¶ 9.2
In the Amended Complaint, Schroer added the following allegation presumably
describing the incident:
That the Defendant, through its employee, [Mr.] Crowin,
ultimately terminated Plaintiff after Plaintiff left a lockout
device on a machine while working at Defendant’s Kearney,
Nebraska facility. The lockout device was required by,
among other laws and policies, Occupational Safety &
Health Administration (OSHA) regulations, 29 C.F.R. 1910 et
seq.; by Nebraska Health and Safety Regulations, Neb. Rev.
Stat. 48-401 et seq.; and by Defendant’s own safety
procedures to remain present for the safety of Plaintiff and
other employees. That termination based upon following
mandatory safety procedures is against public policy.
See Filing No. 29 - Amended Complaint.
Schroer maintains four claims for relief:
breach of contract, breach of the implied covenant of good faith and fair dealing,
negligent hiring and supervision, and wrongful termination in violation of public policy.
Id. Schroer seeks $540,000.00 in lost wages in addition to lost benefits and emotional
distress and other damages to be determined at trial. Id. at ¶¶ 10, 31.
On September 6, 2013, Baldwin filed the instant motion to dismiss, or in the
alternative, to strike. See Filing No. 34 - Motion. Baldwin generally argues Schroer
failed to state a claim for wrongful termination under Nebraska law, Schroer failed to
state a claim for breach of contract, Schroer’s claim for negligent hiring and supervision
is insufficient because Schroer did not allege a single fact that would put Baldwin on
notice of employee misconduct, and to the extent Schroer alleges harassment and
discrimination, Schroer’s claims are barred by the applicable statute of limitations. See
These facts are identical to those alleged in the plaintiff’s original complaint.
Filing No. 35 - Brief; Filing No. 38 - Reply. Alternatively, Baldwin argues if the court
does not dismiss Schroer’s Amended Complaint, the court should strike the following
paragraphs in Schroer’s Amended Complaint: “Punitive damages in an amount to be
determined at trial” in paragraph X(e) and “[r]eimbursement of attorney’s fees” in
Paragraph X(i). See Filing No. 35 - Brief p. 9. Baldwin argues Schroer has cited no
statutory provision supporting such relief. Id.
Schroer generally argues he sufficiently alleges facts showing Baldwin breached
Schroer’s employment contract and wrongfully terminated him in violation of public
policy. See Filing No. 37 - Response p. 2-7. Schroer also argues he sufficiently alleges
facts sufficient to establish a contract and Baldwin was negligent in hiring and retaining
Mr. Crowin. Id. Schroer contends his claims are within the applicable four and five year
statute of limitations.
Lastly, Schroer asserts the court should deny Baldwin’s
alternative motion to strike because attorney’s fees and punitive damages are allowed.
Id. at 7-8.
Motion to Dismiss
“Federal Rule of Civil Procedure 8 requires that a complaint present a short and
plain statement of the claim showing that the pleader is entitled to relief.” Braden v.
Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
“Dismissal under Rule
12(b)(6) is appropriate if it is clear that no relief can be granted under any set of facts
that could be proven consistent with the allegations.” O’Neal v. State Farm Fire &
Cas. Co., 630 F.3d 1075, 1077 (8th Cir. 2011). “To survive a motion to dismiss, a
complaint must plead ‘enough facts to state a claim to relief that is plausible on its
face.’” Gomes v. American Century Co., Inc., 710 F.3d 811, 815 (8th Cir. 2013)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
“Specific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In applying these
standards, “a court assumes all facts in the complaint to be true and construes all
reasonable inferences most favorably to the complainant.” U.S. ex rel Raynor v. Nat’l
Rural Util. Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012). The court reviews
“the plausibility of the plaintiff’s claim as a whole, not the plausibility of each individual
allegation.” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012).
Breach of Contract and Good Faith and Fair Dealing
Baldwin argues Schroer’s breach of contract claim fails because Schroer does
not allege sufficient facts to establish a contract under the Federal Rules of Civil
Procedure. See Filing No. 35 - Brief p. 6-7. By extension, Baldwin argues Schroer’s
claim for breach of the implied covenant of good faith and fair dealing also fails as no
contract existed. Id. In response, Schroer argues he sufficiently alleges the formation
of a written contract and the details of the contract such as the employment period, pay
scale, and contract terms, including those related to restrictions on termination. See
Filing No. 37 - Response p. 4.
“In order to recover in an action for breach of contract, the plaintiff must plead
and prove the existence of a promise, its breach, damage, and compliance with any
conditions precedent that activate the defendant’s duty.” Henriksen v. Gleason, 643
N.W.2d 652, 658 (Neb. 2002). “[T]he burden of proving the existence of an employment
contract and all the facts essential to the cause of action is upon the person who asserts
the contract.” Blinn v. Beatrice Cmty. Hosp. & Health Ctr., Inc., 708 N.W.2d 235, 245
(Neb. 2006). “The language which forms the basis of an alleged employment contract,
whether oral or written, must constitute an offer definite in form which is communicated
to the employee, and the offer must be accepted and consideration furnished for its
enforceability.” Id. “[C]ontractual terms . . . may be created by employee handbooks
and oral representations.” Hillie v. Mut. of Omaha Ins. Co., 512 N.W.2d 358, 361
“The implied covenant of good faith and fair dealing exists in every
contract and requires that none of the parties to the contract do anything which will
injure the right of another party to receive the benefit of the contract.” RSUI Indem. Co.
v. Bacon, 810 N.W.2d 666, 674 (Neb. 2011). “A violation of the covenant of good faith
and fair dealing occurs only when a party violates, nullifies, or significantly impairs any
benefit of the contract.” Id.
Schroer alleges facts regarding the formation and terms of his employment
contract. See Filing No. 29 - Amended Complaint p. 1-5. Schroer alleges the terms of
the contract restricted Baldwin’s ability to terminate Schroer. Id. Schroer also alleges
Schroer’s salary, among other benefits, was scaled depending on length of
employment. Id. Assuming the facts in the Amended Complaint are true that Schroer’s
termination violated contractual provisions, Baldwin could be responsible for breach of
the contract and the implied duty of good faith and fair dealing. Schroer did not plead
with specificity in the Amended Complaint the terms restricting Schroer’s termination,
however, at this stage, specific facts are unnecessary. See Erickson, 551 U.S. at 93.
After construing all reasonable inferences in Schroer’s favor, Schroer’s Amended
Complaint sufficiently states causes of action for breach of contract and breach of the
implied duty of good faith and fair dealing in employment contracts.
Negligent Hiring and Supervision
Baldwin argues Schroer’s claim for careless hiring and retention should be
dismissed because Schroer does not allege a single fact that occurred before Schroer’s
termination that would have put Baldwin on notice of an employee’s alleged wrongful
actions. See Filing No. 35 - Brief p. 7-8. Schroer argues Baldwin’s employee and
Schroer’s supervisor, Mr. Crowin, committed wrongful acts and Baldwin should have
known of Mr. Crowin’s misconduct through employee exit interviews or periodic reviews
of Mr. Crowin’s work. Id.
Nebraska recognizes claims for negligent hiring and negligent supervision. See,
e.g., Kime v. Hobbs, 562 N.W.2d 705 (Neb. 1997) (negligent hiring); Schieffer v.
Catholic Archdiocese of Omaha, 508 N.W.2d 907 (Neb. 1995) (negligent
supervision). Under Nebraska law, a defendant charged with negligence must have
“had knowledge or [be] reasonably charged with knowledge that the act or omission
involved danger to another.” McClure v. Forsman, 662 N.W.2d 566, 571 (Neb. 2003).
Schroer alleges there were defects in Mr. Crowin’s work in that Mr. Crowin
discriminated against Schroer and improperly disciplined Schroer for following safety
protocols. See Filing No. 29 - Amended Complaint p. 1-4, 6-7. Further, Schroer alleges
Baldwin should have known about Mr. Crowin’s wrongful actions through performance
reviews or employee interviews. See id. Although Schroer has not alleged a specific
incident to show Baldwin had actual knowledge of Mr. Crowin’s wrongful actions, it is
sufficient for Schroer to allege Baldwin should have known of such actions through
Assuming the facts in the Amended Complaint are true and
construing all reasonable inferences in Schroer’s favor, the court finds Schroer
sufficiently alleges a claim for negligent hiring and supervision.
Baldwin argues Schroer’s wrongful termination claim fails to state a claim
because Schroer fails to allege he was an at-will employee, which is an essential
element of the claim for wrongful termination in violation of public policy. See Filing No.
35 - Brief p. 4-5; Filing No. 38 - Reply. Baldwin argues, without conceding, Schroer
alleges facts sufficient to establish an employment contract, therefore, he cannot seek
relief available for at-will employees. See Filing No. 38 - Reply p. 1-4. In response,
Schroer argues he alleges facts that show he was an employee and he was discharged
for leaving a lockout device on a machine, which safety regulations required, and
therefore the discharge violated public policy. See Filing No. 37 - Response p. 3-4.
Schroer does not admit he was not an at-will employee.
“Unless constitutionally, statutorily, or contractually prohibited, an employer,
without incurring liability, may terminate an at-will employee at any time with or without
reason.” Trosper v. Bag ‘N Save, 734 N.W.2d 704, 706-07 (Neb. 2007). Nebraska
“recognize[s], however, a public policy exception to the at-will employment doctrine.
Under the public policy exception, [Nebraska courts] will allow an employee to claim
damages for wrongful discharge when the motivation for the firing contravenes public
policy.” Wendeln v. The Beatrice Manor, Inc., 712 N.W.2d 226, 238 (Neb. 2006)
(internal citation omitted).
To ascertain whether Schroer validly asserted his claim for wrongful termination
in violation of public policy, the court is required to engage in a brief analysis of
Nebraska’s treatment of the public policy exception. The Supreme Court of Nebraska
first recognized, without adopting, the public policy exception to the at-will employment
doctrine in Mau v. Omaha Nat.’l Bank, 299 N.W.2d 147 (Neb. 1980). The court in Mau
noted other jurisdictions adopted a rule allowing at-will employees to claim damages for
wrongful discharge “when the motivation for the firing contravenes public policy.” Mau,
299 N.W.2d at 151.
Seven years later, after declining to adopt the public policy
exception,3 the Supreme Court of Nebraska applied the public policy exception. See
Ambroz v. Cornhusker Square Ltd., 416 N.W.2d 510 (Neb. 1987). In Ambroz, the
court addressed “whether an employee, whose contract of employment is a hiring at
will, ha[d] a cause of action against his employer who terminate[d] the employment . . .
because the employee refused to submit to a polygraph examination.” Ambroz, 416
N.W.2d at 512. The court recognized the general rule that in the absence of contractual
or statutory restrictions, an employer could discharge an at-will employee for any reason
without incurring liability, but Neb. Rev. Stat. § 81-1932 (Reissue 1999) created an
exception to the rule, which provides, in part, that “‘[n]o employer or prospective
employer may require as a condition of employment or as a condition for continued
employment that a person submit to a truth and deception examination. . . .’” Ambroz,
416 N.W.2d at 513. The statute provided any person who violated its provisions would
be guilty of a Class II misdemeanor. The Ambroz court held the statutory provisions
constituted a “pronouncement of public policy on the issue of wrongful discharge . . . in
language that is clear and unambiguous and specifically prohibits an employer’s use of
the polygraph to deny employment.”
Id. at 513-14.
The court defined the
circumstances when the public policy exception would apply:
This is a case involving a discharge in violation of a clear,
statutorily mandated public policy. We believe that it is
important that abusive discharge claims of employees at will
be limited to manageable and clear standards. The right of
an employer to terminate employees at will should be
restricted to exceptions created by statute or those instances
where a very clear mandate of public policy has been
violated. This case falls within that rule.
Id. at 515 (emphasis added).
The Supreme Court of Nebraska revisited the public policy exception in Schriner
v. Meginnis Ford Co., 421 N.W.2d 755 (Neb. 1988). In Schriner, an at-will employee
claimed the employer wrongfully discharged him for reporting his suspicions the
See, e.g., Johnston v. Panhandle Co-op. Ass’n, 408 N.W.2d 261, 269 (Neb. 1987) (“We
again decline to adopt the public policy exception at this time.”).
employer was violating state odometer fraud laws. Schriner, 421 N.W.2d at 756. The
court reasoned the criminal statute was a clear declaration of public policy against
odometer fraud. Id. at 759. However, the court declined to apply the public policy
exception because the employee did not act in good faith in reporting the criminal
Subsequently, the Supreme Court of Nebraska addressed the public policy
exception is several more cases. See Trosper, 734 N.W.2d at 706; Riesen v. Irwin
Indus. Tool Co., 717 N.W.2d 907, 913 (Neb. 2006); Wendeln, Inc., 712 N.W.2d at 238;
Blinn, 708 N.W.2d at 241); Jackson v. Morris Commc’ns Corp., 657 N.W.2d 634,
636 (Neb. 2003); Malone v. Am. Bus. Info., 634 N.W.2d 788, 790 (Neb. 2001); Hillie,
512 N.W.2d at 362; Blair v. Physicians Mut. Ins. Co., 496 N.W.2d 483, 485 (Neb.
1993); White v. Ardan, Inc., 430 N.W.2d 27, 30 (Neb. 1988); Teetor v. Dawson Pub.
Power Dist., 808 N.W.2d 86, 91 (Neb. Ct. App. 2012). In all of these cases, wherein
the public policy exception was either directly or tangentially addressed, the employees
were at-will employees. None of the previously cited cases addressed the situation in
which a contract employee filed a claim for wrongful discharge in violation of public
However, courts in other jurisdictions have addressed this issue. In Iowa and
Missouri, courts have held wrongful discharge claims are not limited to at-will
employees. See, e.g., Hagen v. Siouxland Obstetrics & Gynecology, P.C., C 114047-MWB, 2013 WL 4574456 (N.D. Iowa Aug. 29, 2013) (listing a long line of Iowa
cases addressing the public policy exception and determining Iowa court’s inclusive
language seems to presume that the wrongful discharge tort applies to contractual
employees); Keveney v. Missouri Military Acad., 304 S.W.3d 98, 102 (Mo. 2010)
(acknowledging prior Missouri court decisions limiting the tort of wrongful discharge in
violation of public policy to at-will employees but concluding “none of these cases has
offered a detailed justification for allowing an at-will employee to recover for wrongful
discharge while denying the same remedy to a contract employee”4). Nevertheless, this
The Supreme Court of Missouri found “at least three compelling reasons for allowing contract
employees to pursue an action for wrongful discharge in violation of public policy.” Keveney, 304 S.W.2d
First, limiting the wrongful discharge cause of action to at-will employees
fails to recognize the distinct underlying purpose of the wrongful
court is tasked with determining how the Supreme Court of Nebraska would rule. See
Friedberg v. Chubb & Sons, Inc., 691 F.3d 948, 951 (8th Cir. 2012) (stating when
there is no state supreme court case directly on point, a federal court sitting in diversity
must predict how the state supreme court would rule if faced with the issue).
Unlike in Iowa and Missouri, Nebraska has no language extending the claim for
wrongful termination in violation of public policy to situations where a contract governs
employment. Absent clear language, or at least some indication from the Supreme
Court of Nebraska, this court is not willing to extend Nebraska’s public policy
exception.5 Nebraska case law clearly states being an at-will employee is a factual
prerequisite to asserting a claim for wrongful termination in violation of public policy.
Schroer alleges Baldwin and Schroer were parties to an employment contract that
included restrictions on Schroer’s termination.
As such, Schroer was not an at-will
employee. Therefore, Schroer’s claim for wrongful termination based upon violation of
public policy fails because Schroer was allegedly a contract employee.
Statute of Limitations
Baldwin argues to the extent Schroer alleges “harassment” and “discrimination,”
such claims are barred by the applicable statute of limitations, which is the 300-day
period stated in the Nebraska Fair Employment Practices Act (NFEPA). See Filing No.
35 - Brief p. 8-9. In response, Schroer argues his claims are based in contract and tort
which have a four or five year statute of limitations. See Filing No. 37 - Response p. 57. Schroer contends his claims are not brought under NFEPA. See id.
discharge cause of action. . . . Second, given the distinct interests at
issue in a wrongful discharge action, it follows that the remedies are
distinct. If an employee is discharged for refusing to violate a public
policy requirement, a breach of contract action satisfies private
contractual interests but fails to vindicate the violated public interest or to
provide a deterrent against future violations. . . . Finally, it is inconsistent
to allow an at-will employee to pursue an action for wrongful discharge
while denying a contract employee the same right. Allowing an at-will
employee to pursue an action for wrongful discharge illogically grants at
will employees greater protection from these tortious terminations due to
an erroneous presumption that the contractual employee does not need
Keveney, 304 S.W.2d at 102-03.
In fact, the Supreme Court of Nebraska’s apparent hesitation in adopting the public policy
exception would indicate to this court that the Supreme Court of Nebraska is not inclined to readily
expand the public policy exception to apply to contractual employees. See, e.g., Johnston, 408 N.W.2d
“In determining which statute of limitations applies to any given cause of action,
we bear in mind that a special statute of limitations controls and takes precedence over
a general statute of limitations because the special statute is a specific expression of
legislative will concerning a particular subject.” Wendeln, 712 N.W.2d at 235. “To
determine the nature of an action, a court must examine and construe a complaint’s
essential and factual allegations by which the plaintiff requests relief, rather than the
legal terminology utilized in the complaint or the form of a pleading.” Johnson v. Knox
Cnty. P’ship, 728 N.W.2d 101, 107 (Neb. 2007). “A written charge of violation of the
[NFEPA] shall be filed within three hundred days after the occurrence of the alleged
unlawful employment practice[.]” Neb. Rev. Stat. § 48-1118(2). Actions based in tort
are subject to a four year statute of limitations. See Neb. Rev. Stat. 25-207. Breach of
contract claims are subject to a four, for oral contracts, and five, for written contracts,
year statutes of limitations. See Neb. Rev. Stat. 25-205 and 206.
According to the Amended Complaint, Schroer asserts claims based in contract
(breach of contract and the implied covenant of good faith and fair dealing) and tort
(negligent hiring and supervision). Schroer alleges Baldwin improperly discharged him
in December 2011.
Assuming the facts in the Amended Complaint are true and
construing all reasonable inferences in Schroer’s favor, Schroer filed his complaint
within the four and five year limitation period. The NFEPA 300-day limitation period, at
this point, appears inapplicable.
Motion to Strike
Alternatively, Baldwin argues if the court does not dismiss Schroer’s Amended
Complaint, the court should strike the following paragraphs in Schroer’s Amended
Complaint: “Punitive damages in an amount to be determined at trial” in paragraph X(e)
and “[r]eimbursement of attorney’s fees” in paragraph X(i) because Schroer has cited no
statutory provision supporting such relief.
See Filing No. 35 - Brief p. 9.
contends he is entitled to recover attorney’s fees and special damages under Neb. Rev.
Stat. § 48-1114 and 1119(4).6
“A complainant who has suffered physical, emotional, or financial harm as a result of a violation
of section . . . 48-1114 may . . . file an action . . . and any successful complainant shall be entitled to
appropriate relief, including . . . special damages, reasonable attorney’s fees, and costs.” Neb. Rev. Stat.
§ 48-1119(4). Under Neb. Rev. Stat. § 48-1114, “It shall be an unlawful employment practice for an
The Federal Rules of Civil Procedure provide a mechanism for the court to “strike
from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” See
Fed. R. Civ. P. 12(f). However, “such relief is an extreme measure, however, motions
under Rule 12(f) are viewed with disfavor in the Eighth Circuit and are infrequently
granted.” E.E.O.C. v. Product Fabricators, Inc., 873 F. Supp. 2d 1093, 1097 (D. Minn.
2012) (internal quotations omitted). Although Schroer fails to state a claim for wrongful
termination in violation of public policy, Schroer’s other claims based in contract and tort
remain. Under Neb. Rev. Stat. § 48-1114 and 1119(4), Schroer may be able to seek
the relief requested in paragraph X(e) and (i).
Therefore, at this point in the
proceedings, the court will not strike the paragraphs.
IT IS ORDERED:
Baldwin’s Motion to Dismiss, or, in the alternative, to Strike (Filing No. 34) is
denied in part and granted in part. Schroer’s fourth claim for wrongful termination based
upon violation of public policy is dismissed. The motion is denied in all other respects.
Dated this 25th day of October, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
employer to discriminate against any of his or her employees . . . because he or she (1) has opposed any
practice made an unlawful employment practice . . . or (3) has opposed any practice or refused to carry
out any action unlawful under federal law or the laws of this state.”
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