Pebsworth v. Spirit AeroSystems, Inc. et al
Filing
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OPINION AND ORDER by Judge Terence Kern - Count Six of Plaintiff's Complaint against Defendant Spirit Aerosystems is dismissed. ; granting 14 Motion to Dismiss (Re: State Court Petition/Complaint ) (lmc, Chambers)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ROGER SHANE PEBSWORTH,
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) Case No. 16-cv-644-TCK-FHM
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Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC.,
a foreign corporation, and
JORDAN C. KENTZLER,
individually,
Defendants.
OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss Count Six of Plaintiff’s Complaint
(“Motion to Dismiss”) (Doc. 14) pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”). For the foregoing reasons, the Motion to Dismiss is GRANTED.
I.
Factual Allegations
Plaintiff Roger Shane Pebsworth (“Plaintiff”) was employed by Defendant Spirit
AeroSystems, Inc. (“Spirit”) from February 2010 to February 2016. (Compl. ¶ 7, Doc. 2-2.) On
January 17, 2016, Plaintiff injured an ulnar nerve at work. (Id. ¶ 9-10.) Plaintiff immediately
reported the injury to his supervisor, Bryan Waller (“Waller”). (Id. ¶ 10.) Waller told Plaintiff
that because it was close to the end of the work shift, he would fill out the appropriate injury
reporting forms the next day, although he never did so. (Id. ¶ 16.) Spirit later refused Plaintiff
permission to leave work to seek medical treatment. (Id.)
On January 25, 2016, Waller instructed Plaintiff to attend a meeting with Defendant Jordan
C. Kentzler (“Kentzler”), the Human Resources Supervisor. (Id. ¶¶ 12, 47.) When Plaintiff
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entered the meeting, a security guard of Spirit immediately frisked him for weapons. (Id. ¶ 13.)
Kentzler also asked Plaintiff to sign a blank statement, which Plaintiff refused to do. (Id.) Plaintiff
repeatedly asked Kentzler for an explanation for this treatment, but Kentzler did not answer.
Instead, Kentzler asked Plaintiff about criminal conduct, as well as firearms and weapons that he
owned, and required Plaintiff to answer the questions. (Id. ¶ 14.) At the end of the meeting,
Kentzler terminated Plaintiff. (Id. ¶ 14.)
On June 3, 2016, Plaintiff filed his Petition against Spirit and Kentzler in Creek County
District Court. In his Petition, Plaintiff alleges (1) Family and Medical Leave Act (“FMLA”)
Interference; (2) FMLA Retaliation; (3) Assault; (4) Battery; (5) False Imprisonment; (6)
Intentional Infliction of Emotional Distress (“IIED”); and (7) Malicious Interference with a
Contractual Relationship. (Doc. 2-2.) Counts (1) through (6) are alleged against Spirit, and Count
(7) is alleged against Kentzler.
Spirit was served with a copy of the Petition and Summons on September 29, 2016. On
October 18, 2016, Spirit timely removed this case from Creek County District Court pursuant to
28 U.S.C. § 1441. It is undisputed that this Court has original jurisdiction over Plaintiff’s FMLA
claims pursuant to 28 U.S.C. § 1331. (Id.) The Court has supplemental jurisdiction over Plaintiff’s
remaining state law claims, including the IIED claim, pursuant to 28 U.S.C. § 1367. (Id.) On
November 15, 2016, Spirit filed its Motion to Dismiss. (Doc. 14.)
II.
Applicable Law
A.
Rule 12(b)(6) Standard
To survive a motion to dismiss under Rule 12(b)(6) “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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(2007)).1 “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts
in support of the pleaded claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis
in original).
The Tenth Circuit has interpreted “plausibility” to “refer to the scope of the allegations in
a complaint” rather than to mean “likely to be true.” Robbins v. Okla. ex rel. Okla. Dep’t of Human
Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). Thus, “if [allegations] are so general that they
encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their
claims across the line from conceivable to plausible.” Id. (internal quotations omitted). “The
allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just
speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not only to weed
out claims that do not (in the absence of additional allegations) have a reasonable prospect of
success, but also to inform the defendants of the actual grounds of the claim against them.” Id. at
1248. In considering a motion to dismiss under Rule 12(b)(6), the Court generally may not
consider facts outside of those alleged in the complaint.2
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Plaintiff cites the more lenient pleadings standard under Oklahoma state law. See
Rogers v. QuikTrip Corp., 230 P.3d 853, 856 (Okla. 2010) (denying a motion to dismiss unless it
is “without doubt that the plaintiff can prove no set of facts in support of the claim for relief.”
However, it is well-established that the federal pleading standard applies even when a federal
court applies substantive state law. See Rachner v. Westlake Nursing Home Ltd., P’ship, 871
F.3d 1152, 1162 (10th Cir. 2017).
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To the extent that Plaintiff’s Response to Defendant’s Motion to Dismiss (Doc. 40)
references factual allegations beyond the scope of Plaintiff’s Complaint, the Court has
disregarded these allegations, as “plaintiffs may not effectively amend their Complaint by
alleging new facts in their response to a motion to dismiss.” In re Qwest Commuc’n. Int’l, Inc.
Secs. Litig., 396 F. Supp. 2d 1178, 1203 (D. Colo. Jan. 13, 2004).
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B.
Intentional Infliction of Emotional Distress
Oklahoma recognizes IIED as an independent tort. Eddy v. Brown, 715 P.2d 74, 76 (Okla.
1986). In order to state a claim for IIED, a plaintiff must allege facts showing: (1) the defendant’s
conduct was intentional or reckless; (2) the defendant’s conduct was extreme and outrageous; (3)
the defendant’s conduct caused the plaintiff to suffer emotional distress; and (4) the plaintiff’s
emotional distress was severe. Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379, 1387 (10th
Cir. 1991) (applying Oklahoma law). IIED does not provide redress for every invasion of
emotional serenity or every anti-social act that may produce hurt feelings. Miller v. Miller, 956
P.2d 887, 900 (Okla. 1998). Rather, the emotional distress must be so severe that no reasonable
person could be expected to endure it. See Robbins Motorsports, L.L.C. v. Nat’l Fire & Marine
Ins. Co., No. CIV-10-245, 2011 U.S. Dist. LEXIS 59365, *12-13 (N.D. Okla. June 3, 2011)
(internal citations omitted).
Oklahoma law directs the district court to act as a “gatekeeper” and make an initial
determination about the outrageousness of the defendant’s conduct, as well as whether severe
emotional distress can be found, before sending the claim to a jury. See Bingaman v. Spirit
Aerosystems, Inc., No. 14-CV-677-GKF, 2015 U.S. Dist. LEXIS 183267, at *7 (N.D Okla. Feb.
4, 2015) (evaluating a motion to dismiss); Johnson v. ORS Nasco, LLC, No. 13-CV-777-JED, 2014
U.S. Dist. LEXIS 197073, *1 (N.D. Okla. Sept. 30, 2014) (evaluating a motion to dismiss). To
satisfy the “extreme and outrageous” element, a plaintiff must prove the defendant’s conduct was
so extreme and outrageous as to be beyond all possible bounds of decency. Eddy, 715 P.2d at 77
(“Conduct which, though unreasonable, is neither beyond all possible bounds of decency in the
setting in which it occurred, nor is one that can be regarded as utterly intolerable in a civilized
community, falls short of having actionable quality.”) (quotations omitted). Oklahoma courts
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adhere to the narrow standards set forth in Comment d to § 46 of the Restatement (Second) of
Torts:
Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to an average member
of the community would arouse his resentment against the actor, and lead him to
exclaim, “Outrageous!” The liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.
Breeden v. League Servs. Corp., 575 P. 2d 1374, 1376 (Okla. 1978) (citing Restatement (Second)
of Torts § 46, cmt. d)).
III.
Analysis
Spirit contends that Plaintiff’s Petition fails to allege facts sufficient to establish any of the
elements of an IIED claim, particularly the “extreme and outrageous” element. Plaintiff alleges
that Spirit’s extreme and outrageous conduct consists of failing to fill out the appropriate injuryreporting forms, prohibiting Plaintiff from leaving work for medical attention, terminating Plaintiff
for a pretextual reason, unlawfully searching Plaintiff, and creating a hostile work environment,
all in violation of his FMLA rights. Plaintiff also alleges that Spirit disregarded Plaintiff’s rights
when a security guard employed by Spirit frisked Plaintiff without his consent, engaging in assault
and battery, and that Spirit falsely imprisoned him by detaining him in the meeting with Kentzler
on January 25, 2016.
Workplace harassment rarely rises to the level of extreme and outrageous conduct. See
Bingaman, 2015 U.S. Dist. LEXIS 183267, at *7 (internal citations omitted). In fact, Oklahoma
appellate courts have found that a defendant engaged in extreme and outrageous conduct in the
workplace only when that defendant intentionally and persistently engaged in a course of conduct
that harmed the plaintiff. See Fifer v. City of Tulsa, No. 12-CV-408-CVE, 2012 U.S. Dist. LEXIS
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144363, at *2 (N.D. Okla. Oct. 2, 2012) (collecting cases); compare Computer Publs., Inc. v.
Welton, 49 P.3d 732, 736 (Okla. 2002) (IIED claim was sufficient to survive summary judgment
where a plaintiff presented evidence that harassment lasted more than two years and caused
plaintiff to quit her job, move apartments, and repeatedly change her phone number); and Durham
v. McDonald’s Rests. Of Okla., Inc., 256 P.3d 64, 66-68 (Okla. 2011) (IIED claim was sufficient
to survive summary judgment where the plaintiff was sixteen years old, and his supervisor refused
to allow him to take a break to take anti-seizure medication three times, and called plaintiff a
“f…ing retard”) with Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla. Civ. App. 2000)
(an employee whose manager made derogatory sexual remarks about him, woke him up in the
middle of the night to do unnecessary work, and terminated him two hours before his wedding did
not state a claim for IIED); and Chance v. City of Tulsa, No. 14-CV-449-CVE, 2014 U.S. Dist.
LEXIS 156108 (N.D. Okla. Nov. 3, 2014) (a female plaintiff failed to state a claim for IIED when
she was required to pose for a photograph as part of an interview, unlike male applicants, and her
interviewer compared that photograph to nude photographs of her that he had obtained from an
individual with whom she had a romantic relationship).
Construing Plaintiff’s allegations in the light most favorable to him, Plaintiff has failed to
state a claim for IIED. Though Plaintiff alleges violations of his FMLA rights, that he was frisked
unexpectedly in the workplace, and that he was detained at work against his will, the facts that he
alleges do not plausibly establish conduct so extreme and outrageous as to be beyond all possible
bounds of decency. See Eddy, 715 P.2d at 77. Indeed, the conduct alleged by Plaintiff falls short
even of the conduct found not to be extreme and outrageous in Mirzaie and Chance. In those
cases, employers engaged in overt, sexually explicit conduct towards the plaintiff, and in Mirzaie,
the harassment was repeated. Accordingly, Plaintiff’s allegations may constitute FMLA violations
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and/or tortious conduct, but cannot be regarded as “atrocious, and utterly intolerable in a civilized
community.” See Breeden, 575 P.2d at 1376 (internal citations omitted). Unlike overt, sexually
explicit conduct, or ongoing harassment, the conduct that Plaintiff has alleged cannot be said to
rise above the “indignities, threats [and] annoyances” to which liability does not extend. Id.
Accordingly, Plaintiff’s allegations do not meet the extremely high burden of alleging IIED in a
workplace setting.
Further, alleged law violations, even physical violations such as assault and battery, do not
automatically trigger liability for IIED. See Starr v. Pearle Vision, 54 F.3d 1548, 1559 (10th Cir.
1995) (“Absent Oklahoma authority espousing a per se correlation . . . we cannot accept that every
assault or battery is necessarily an intentional infliction of emotional distress”); Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1218 (10th Cir. 2003) (reversing a grant of summary judgment on a
Fourth Amendment unreasonable search claim, but upholding the grant of summary judgment as
to the same conduct on an IIED claim). Accordingly, assuming without deciding that Plaintiff has
stated a claim for FMLA interference, FMLA retaliation, assault, battery, or false imprisonment,
he has not pleaded the “extreme and outrageous” conduct required for an IIED claim.
Finally, even if Plaintiff had alleged conduct that was extreme and outrageous, Plaintiff
has failed to allege that he suffered severe emotional distress, as he has alleged only general,
conclusory allegations of emotional distress. Plaintiff alleges that Spirit’s conduct exacerbated his
“mental health disorder, including major depressive disorder.” (Doc. 2-2 ¶ 43.) Plaintiff also
alleges that Spirit’s conduct caused him, among other things, mental distress, embarrassment,
humiliation, anxiety, and emotional pain and suffering. (Id. ¶ 40). However, he “does not set forth
any facts regarding his mental or emotional state, much less distress which ‘is so severe that no
reasonable man could be expected to endure it.’” See Robbins Motorsports, L.L.C., 2011 U.S.
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Dist. LEXIS 59365, *12-13 (internal citations omitted). Accordingly, the Court finds that
Plaintiff’s IIED claim would fail independently on this ground.
IV.
Conclusion
Plaintiff’s Complaint fails to state a plausible claim for IIED. Accordingly, Count Six of
Plaintiff’s Complaint is DISMISSED. Defendant Spirit Aerosystems’s Motion to Dismiss Count
Six of Plaintiff’s Complaint (Doc. 14) is GRANTED.
DATED this March 30, 2018.
_______________________________
TERENCE C. KERN
UNITED STATES DISTRICT JUDGE
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