Welder v. University of Southern Nevada et al
Filing
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ORDER granting Defendants' 8 Motion to Dismiss Plaintiff's Eleventh, Twelfth, and Thirteenth Claims for Relief. Signed by Judge Larry R. Hicks on 6/21/11. (Copies have been distributed pursuant to the NEF - ECS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ALLISON WELDER,
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Plaintiff,
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v.
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UNIVERSITY OF SOUTHERN NEVADA, a )
Nevada non-profit corporation; and RENEE )
COFFMAN,
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Defendants.
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2:10-CV-01811-LRH-LRL
ORDER
Before the court is Defendants University of Southern Nevada and Renee Coffman’s
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Motion to Dismiss Plaintiff’s Eleventh, Twelfth, and Thirteenth Claims for Relief Pursuant to
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FRCP 12(b)(6) (#81). Plaintiff Allison Welder filed an opposition (#11), and Defendants filed a
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reply (#13).
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I.
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Facts and Procedural History
This action arises out of Plaintiff’s employment and termination of her employment as
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Professor of Pharmacy at Defendant University of Southern Nevada (“USN”). Defendant Renee
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Coffman (“Dr. Coffman”) was Dean of the College of Pharmacy and University Administrator
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during the time in question, January 2002 to November 2009.
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Refers to the court’s docket entry number.
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Plaintiff commenced her employment with USN on January 1, 2002 as a Professor of
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Pharmacy, a position she maintained throughout her employment with USN. Doc #1, p. 2. On June
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2, 2008, Plaintiff entered into a five-year employment contract with USN, commencing July 1,
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2008. Id.
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On January 29, 2009, Plaintiff notified Dr. Coffman that she had been diagnosed with
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bladder cancer and was going in for immediate surgery and biopsy. Id. On February 3, 2009,
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Plaintiff received a letter of reprimand from Dr. Coffman, stating that Plaintiff’s behavior from
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missing work due to her illness was “unprofessional and unacceptable.” Id. On March 3, 2009,
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Plaintiff received her second letter of reprimand from Dr. Coffman for two incidents involving
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Plaintiff’s role as faculty advisor for USN’s Delta Tau chapter of Kappa Psi. Id. at 3. In the first
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incident Plaintiff had to leave a ceremony early for a medical procedure, and the second incident
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involved Plaintiff arriving late to a meeting. Id. at 3.
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In April 2009, Plaintiff sent two formal letters to USN and Dr. Coffman stating she believed
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she was being subject to disparate treatment on the basis of age and formally requesting reasonable
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accommodation for her disability under the ADA. Id. USN gave two responses, one on April 27,
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2009, which was a “curt,” two sentence response from Dr. Coffman. Id. Then on April 28, 2009, G.
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Benjamin Wills, Director of Human Resources, responded he could not find any Family and
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Medical Leave Act (“FMLA”) form or any previous request for accommodation from Plaintiff. Id.
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at 4. Plaintiff responded she was not requesting a leave of absence under the FMLA but a minor
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accommodation under the ADA, for brief absences during business hours for her medical needs. Id.
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Mr. Wills rejected Plaintiff’s accommodation request stating USN had already met their
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legal obligation to provide accommodation to Plaintiff. Id. Plaintiff responded that USN and Dr.
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Coffman singled her out and unfairly punished her because of her absence. Id. at 5. In a letter dated
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June 2, 2009, Mr. Wills informed Plaintiff that the “mere presence in an employee’s personnel file
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of documents from a supervisor formally informing the employee that he or she did something
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wrong” does not give rise to discrimination or retaliation. Id. On June 23, 2009, Mr. Wills sent
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another letter stating it was inappropriate, perhaps libelous, for Plaintiff to continue to assert that
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Dr. Coffman was engaging in unlawful discriminatory conduct. Id.
On August 31, 2009, Dr. Coffman ordered Plaintiff to complete a remediation plan after
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Plaintiff’s students left adverse comments to her teaching practices. Id. Dr. Coffman stated the
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comments from the students could expose USN to charges of discrimination and sexual
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harassment. Id. In defense to the allegations, Plaintiff claimed that she was merely teaching the
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students about sexual subjects concerning drug actions and drug-drug interactions that were
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pertinent to their education if they desired to be pharmacists. Id. at 8. Dr. Coffman reserved the
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right to subject Plaintiff to additional sanction up to and including termination if the remediation
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plan was not done right. Id.
After the adverse student reactions and the assignment of the remediation plan, Dr. Coffman
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banned Plaintiff from the campus until November 16, 2009. Id. On November 16, 2009, Plaintiff
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finished the remediation plan and submitted it to Dr. Coffman. Id. Dr. Coffman claimed the
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remediation plan was due by the end of business hours on November 13, 2009, and in a letter
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addressed November 16, 2009, terminated Plaintiff’s employment. Id. at 9. The letter was sent on
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behalf of USN and was signed by Dr. Coffman. Id. On November 17, 2009, Plaintiff demanded
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payment for all money due to her under her employment contract. Id.
After obtaining a right to sue letter from the EEOC, Plaintiff filed her complaint (#1)
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initiating this action on October 18, 2010. The Defendants moved to dismiss three of Plaintiff’s
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thirteen claims for relief (#8). The eleventh, twelfth, and thirteenth claims asserted are: (11)
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intentional interference with contractual relations against Dr. Coffman, (12) intentional infliction of
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emotional distress (“IIED”) against USN, and (13) IIED against Dr. Coffman. Plaintiff filed an
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opposition (#11), and Defendants filed a reply (#13).
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II.
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Legal Standard
Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state
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a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading
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standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That
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is, a complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require
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detailed factual allegations; however, a pleading that offers “‘labels and conclusions’ or ‘a
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formulaic recitation of the elements of a cause of action’” will not suffice. Ashcroft v. Iqbal, 129 S.
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Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,
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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting
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Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows
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the court to draw the reasonable inference, based on the court’s judicial experience and common
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sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. “The plausibility
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standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a
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defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a
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defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to
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relief.” Id. at 1949 (internal quotation marks and citation omitted).
In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as
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true. Id. However, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of
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the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret
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Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951) (brackets in original)
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(internal quotation marks omitted). The court discounts these allegations because “they do nothing
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more than state a legal conclusion—even if that conclusion is cast in the form of a factual
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allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to survive a motion to
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dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
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plausibly suggestive of a claim entitling the plaintiff to relief.” Id. (quoting Iqbal, 129 S. Ct. at
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1949).
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III.
Discussion
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A. Intentional Interference with Contractual Relations
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Plaintiff alleges Defendant Coffman intentionally interfered with the contractual relations
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between Plaintiff and Defendant USN. To state a claim for intentional interference with contractual
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relations, there must be: “(1) a valid and existing contract; (2) the defendant’s knowledge of the
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contract; (3) intentional acts intended or designed to disrupt the contractual relationship; (4) actual
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disruption of the contract; and (5) resulting damage.” J.J. Indus., LLC v. Bennett, 71 P.3d 1264,
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1267 (Nev. 2003).
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Here, Plaintiff adequately alleges each of these five elements. First, Plaintiff had a valid
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employment contract with Defendant USN. See Doc. #1, ¶¶ 10-11, 98. Second, Dr. Coffman had
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actual knowledge of the contract. See Id., ¶¶ 21, 22, 32(b), 99. Third, Dr. Coffman intentionally
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disrupted Plaintiff’s employment contract when she issued letters of reprimand, imposed sanctions
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by requiring Plaintiff to complete a remediation plan and by barring Plaintiff from campus, and
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terminated Plaintiff’s employment. See Id., ¶¶ 13-36, 100. Fourth, Plaintiff’s contract was actually
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disrupted when she was fired and her contract was terminated. Fifth, Plaintiff suffered actual
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damage when she was not fully paid for the remainder of her five year contract.
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Nonetheless, Plaintiff fails to state a claim because Dr. Coffman was acting in her capacity
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as Dean of the College of Pharmacy and University Administrator. “In Nevada, a party cannot, as a
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matter of law, tortiously interfere with its own contract.” Blanck v. Hager, 360 F. Supp. 2d 1137,
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1154 (D. Nev. 2005). “[A]gents acting within the scope of their employment, i.e. the principal’s
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interest, do not constitute intervening third parties, and therefore cannot tortiously interfere with a
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contract to which the principal is a party.” Id. (citing Alam v. Reno Hilton Corp., 819 F. Supp. 905,
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911-12 (D. Nev. 1993)).
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Although, Plaintiff alleges that Dr. Coffman was acting “outside the course and scope of her
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employment,” Doc. #1, ¶ 101, the court need not accept such conclusory allegations as true. Moss,
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572 F.3d at 969. Plaintiff’s complaint is devoid of any factual allegations to support her claim that
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Dr. Coffman was not acting within her employment capacity as Dean of the College of Pharmacy
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and University Administrator.
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Moreover, Plaintiff’s conclusory allegation is inconsistent with her well-pleaded factual
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allegations regarding Dr. Coffman’s allegedly tortious conduct. Dr. Coffman’s actions in
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reprimanding Plaintiff, imposing employment related sanctions, and terminating Plaintiff’s
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employment could have been taken only in Dr. Coffman’s capacity as Plaintiff’s supervisor and on
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behalf of USN. Because Plaintiff’s well-pleaded allegations in the complaint entail only actions
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taken within the course and scope of Dr. Coffman’s employment, the claim of intentional
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interference with contractual relations fails as a matter of law and is dismissed without prejudice.
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B. Intentional Infliction of Emotional Distress
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To state a claim for intentional infliction of emotional distress the plaintiff must establish:
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“(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing
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emotional distress, (2) the plaintiff’s having suffered severe or extreme emotional distress, and (3)
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actual or proximate causation.” Dillard Dep’t Stores, Inc. v. Beckwith, 989 P.2d 882, 886 (Nev.
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1999) (quoting Star v. Rabello, 625 P.2d 90, 92 (Nev. 1981)). “[E]xtreme and outrageous conduct
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is that which is outside all possible bounds of decency and is regarded as utterly intolerable in a
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civilized community.” Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998) (internal
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quotation marks and citation omitted). “The Court determines whether the defendant’s conduct may
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be regarded as extreme and outrageous so as to permit recovery, but, where reasonable people may
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differ, the jury determines whether the conduct was extreme and outrageous enough to result in
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liability.” Chehade Refai v. Lazaro, 614 F. Supp. 2d 1103, 1121 (D. Nev. 2009) (citing Norman v.
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Gen. Motors Corp., 628 F. Supp. 702, 704-05 (D. Nev. 1986)).
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Plaintiff has set forth two separate claims for intentional infliction of emotional distress. In
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her Twelfth claim for relief, Plaintiff asserts Defendant USN should be held vicariously liable for
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the alleged intentional acts of Dr. Coffman and Benjamin Wills, to the extent they were acting in
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their capacity of managerial employees for USN. The Thirteenth claim for relief is solely against
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Defendant Coffman, to the extent she was acting outside of the course and scope of her
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employment. Plaintiff fails to distinguish between the intentional acts that are within the course and
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scope of Dr. Coffman’s employment and which are outside, so they will be analyzed together.
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Plaintiff alleges, at length, the intentional acts as grounds for her claim. See Doc. #1, ¶¶ 13-
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36, 109, 116. Plaintiff’s accusations include: (1) receiving letters of reprimand and papering her
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file, (2) being pressured to take FMLA leave, (3) notification of exposure to a sexual harassment
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suit, (4) assignment of the remediation plan, (5) being barred from campus, and (6) termination of
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her employment. Defendants argue the conduct alleged, regarding the treatment and termination of
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Plaintiff, does not give rise to an actionable claim for IIED.
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“A simple pleading of personnel management activity is insufficient to support a claim of
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intentional infliction of emotional distress, even if improper motivation is alleged.” Janken v. GM
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Hughes Elec., 46 Cal. App. 4th 55, 80 (1996). Personnel management consists of such actions as
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hiring and firing, project assignments, promotion and demotions, performance evaluations and
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other similar acts. Id. at 64-65. Plaintiff’s claims regarding receiving letters of reprimand, papering
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her file, being barred from campus and being assigned the remediation plan are all actions that are
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properly categorized as personnel management. Even if the decisions by Dr. Coffman and
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Benjamin Wills had improper motive, the conduct itself is not beyond all bounds of human
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decency. Id. at 80.
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Plaintiff’s termination from her position as Professor of Pharmacy also does not constitute
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extreme and outrageous conduct. “Termination of employees, even in the context of a
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discriminatory policy, does not in itself amount to extreme and outrageous conduct actionable
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under intentional infliction of emotional distress.” Alam, 819 F. Supp. at 911. To the extent that
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Plaintiff’s termination or other adverse employment actions were due to a discriminatory policy,
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Plaintiff may have a legal remedy in her discrimination claims not addressed here.
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Plaintiff also claims she was threatened with a sexual harassment suit and pressured to take
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FMLA leave. She alleges that Dr. Coffman and Benjamin Wills sent letters informing Plaintiff that
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she made USN susceptible to threats of sexual harassment and suggesting she take FMLA leave.
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While Plaintiff characterizes the correspondence as threats, such communications do not constitute
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extreme and outrageous conduct. See Janken, 46 Cal. App. 4th at 80; Restatement (Second) of
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Torts § 46 cmt. d (1965) (“[L]iability clearly does not extend to mere insults, indignities, threats,
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annoyances, petty oppressions, or other trivialities.”).
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The alleged intentional acts set forth by Plaintiff fall short of extreme and outrageous
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conduct because the acts fall under normal employment relations. The conduct surrounding
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Plaintiff’s treatment as an employee and her termination is insufficient to meet the first element of
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an IIED claim. Therefore, the twelfth and thirteenth claims for relief are dismissed without
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prejudice.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Eleventh,
Twelfth, and Thirteenth Claims for Relief (#8) is GRANTED.
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IT IS SO ORDERED.
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DATED this 21st day of June, 2011.
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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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