Nesvold, Terry v. Roland, Dean et al
Filing
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ORDER denying as moot 6 Motion to Dismiss with respect to plaintiff's claims for negligent infliction of emotional distress and intentional infliction of emotional distress and denying the motion with respect to plaintiff's assault claim. Signed by District Judge William M. Conley on 8/1/14. (rep)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TERRY R. NESVOLD,
Plaintiff,
OPINION AND ORDER
v.
13-cv-744-wmc
SHERIFF DEAN W. ROLAND, and
BURNETT COUNTY,
Defendants.
In this civil action, plaintiff Terry Nesvold pleads both state and federal law claims
against defendants arising from the alleged violent outbursts directed towards him by his
supervisor Sheriff Dean W. Roland. Plaintiff’s state law claims include assault, negligent
infliction of emotional distress and intentional infliction of emotional distress.
Defendants have filed a motion to dismiss these state law claims as currently pled in
plaintiff’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on
the grounds that they are barred by the Wisconsin Worker’s Compensation Act
(“WCA”), Wis. Stat. § 102.03(2).1 (Dkt. #6.) In opposing defendants’ motion, plaintiff
concedes that the intentional infliction of emotional distress and negligent infliction of
emotional distress claims are barred by the WCA and has withdrawn them, leaving only
1
Defendants filed an answer to the original complaint. As a result, defendants’ pending
motion is actually a motion for judgment on the pleadings, rather than a motion to
dismiss. However, this “misstyling” does not alter the court’s analysis. See Alioto v. Town
of Lisbon, 651 F.3d 715, 718 (7th Cir. 2011).
the viability of the assault claim for decision. Because plaintiff’s assault claim as pled
falls within the assault exception to the WCA, the court will deny defendants’ motion.
ALLEGATIONS OF FACT2
For all times relevant to his complaint, plaintiff Terry Nesvold is a citizen of
Wisconsin and was employed as Jail Administrator with the Burnett County Sheriff’s
Office. Defendant Dean W. Roland is also a citizen of Wisconsin and is the Sheriff of
the Burnett County Sheriff’s Office. As Sheriff, Roland served as Nesvold’s supervisor.
In the fall of 2012, the Burnett County Board of Supervisors began considering
consolidating the Burnett County Dispatch Center with the Polk County Dispatch
Center. Sheriff Roland supported this action. Nesvold, who was in charge of the Burnett
County Dispatch Center, opposed it.
Aware of their difference of opinion, Sheriff
Roland allegedly “ordered Nesvold not to speak or associate with the media or Board of
Supervisors regarding the consolidation.” (Am. Compl. (dkt. #9) ¶ 3.) Despite Sheriff
Roland’s orders, Nesvold attended a Board of Supervisors meeting and spoke in
opposition of the consolidation.
On November 20, 2012, Sheriff Roland informed Nesvold that he would no
longer be in charge of the Burnett County Dispatch Center because he had violated
orders by speaking at the Board of Supervisor’s meeting. Sheriff Roland also allegedly
yelled and cursed at Nesvold, reminding him that he was to speak to no one regarding
the proposed consolidation.
For purposes of this motion only, the following facts alleged in the Amended Complaint
are assumed to be true.
2
2
A little over a week later, on November 29, Sheriff Roland allegedly went further,
both threatening and then assaulting Nesvold in his office because he continued to speak
publicly about the consolidation. According to Nesvold, Sheriff Roland yelled at him,
pointed his finger close to his face and told Nesvold, “do it [my] way or else.” (Id. at ¶
3.)
Sheriff Roland also allegedly pounded on the office windows while screaming at
Nesvold. Sheriff Roland then ordered Nesvold to follow him to his office. Once in
Sheriff Roland’s office, he continued to curse and berate Nesvold.
Sheriff Roland
allegedly then threw boxes against the wall, and “rushed at Nesvold, pointing his finger at
him and threatening to cause him harm.” (Id. at ¶ 20.) Nesvold also alleges that Sheriff
Roland “intended to physically restrain Nesvold.” (Id.) These actions caused Nesvold to
fear for his safety and he went into a defensive posture at which point Sheriff Roland
backed off.
Despite these altercations, Nesvold wrote a letter to the Board of Supervisors in
February 2013, again expressing his concerns about the consolidation. Sheriff Roland
learned of the letter and ordered Nesvold to provide him with a copy. On February 21,
2013, the Board of Supervisors voted against consolidation. The next day Sheriff Roland
allegedly informed Nesvold that he would be making some “changes” at the office. (Id. at
¶ 26.) Sheriff Roland then demanded that Nesvold enroll in a four-week “jail school,” as
well as attend a two-week “dispatch school.”
On February 28, 2013, Nesvold resigned from his position as Jail Administrator
with Burnett County. He claims that he resigned due to “the anxiety, stress, medical
injury, threats and retaliation caused by the defendants.” (Id. at ¶ 27.) In his amended
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complaint, Nesvold also alleges that he has “suffered nausea, stomach aches and
emotional stress because of Sheriff Roland’s actions.” (Id.) Nesvold also alleges that he
suffered from sleep deprivation and was prescribed sleep medication after consulting a
physician.
Based on these circumstances, Nesvold claims that he was constructively
discharged and forced to resign because Sheriff Roland and Burnett County created an
intolerable work environment.
OPINION3
Defendants move to dismiss plaintiff’s state law claim of assault. To survive a
motion to dismiss under 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. 570 (2007)). “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.”
Id. The plausibility requirement simply “asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. When assessing a complaint’s sufficiency, the court
construes it in the light most favorable to the non-moving party, accepts all well-pled
facts as true, and draws all inference’s in the plaintiff’s favor. Reger Dev., LLC v. Nat’l
City Bank, 592 F.3d 759, 763 (7th Cir. 2010).
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The court has jurisdiction over plaintiff’s 42 U.S.C. § 1983 First Amendment and Due
Process claims pursuant to 28 U.S.C. § 1331, and will exercise its supplemental
jurisdiction, 28 U.S.C. § 1367, over plaintiff’s related state law claim for assault at this
time.
4
Defendants assert that all three of plaintiff’s state law claims are barred by the
exclusive remedy provision of the WCA, which provides in pertinent part:
(2) Where such conditions exist the right to recovery of
compensation under this chapter shall be the exclusive
remedy against the employer, any other employee of the same
employer and the worker’s compensation insurance carrier.
This section does not limit the right of an employee to bring
action against any co-employee for an assault intended to
cause bodily harm.
Wis. Stat. § 102.03(2). As explained above, plaintiff has now voluntarily withdrawn his
negligent infliction of emotional distress and intentional infliction of emotional distress
claims, but maintains his assault claim is not barred by the WCA. Specifically, plaintiff
argues that his remaining state law claim falls within the assault exception to the
exclusive remedy provision of the WCA, which provides that “an employee may bring
action against any co-employee for an assault intended to cause bodily harm.” Wis. Stat.
§ 102.03(2).
To resolve the parties’ dispute as to whether the assault exception applies, this
court must answer two questions. The first is whether, as defendants maintain, plaintiff
must plead that there was physical contact in order for the exception to apply. The
second issue is whether plaintiff has adequately pled that there was intent to cause bodily
harm. Because the answers both favor plaintiff, he will be allowed to proceed with his
assault claim, at least past the pleading stage.
I. Physical Contact
While courts often use the terms “assault” and “battery” interchangeably, the
principal difference between them is that “battery” requires physical contact of some sort,
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whereas “assault” is committed without physical contact. Black’s Law Dictionary 105 (7th
ed. 1979). Defendants assert that plaintiff’s claim must fail because he does not allege
some form of physical contact. In making this assertion, defendants primarily rely on a
misreading of dicta from Jenson v. Emp. Mut. Cas. Co., 161 Wis. 2d 253, 275-6, 468
N.W.2d 1, 10 (1991), which clarified that the assault exception included, but was not
necessarily limited to, instances involving physical contact and attacks.
Ironically, this
clarification was prompted by the Wisconsin Supreme Court’s concern that its agreement
with the lower court’s holding the assault exception did not apply and/or the specific
facts in Jensen4 could be misconstrued as approving the lower court’s conclusion that only
claims involving an actual physical attack or battery were subject to the assault exception
under the WCA. Id. at 275. Of course, it does not logically follow that just because the
court in Jenson concluded that the assault exception could include both assault and
battery, then the exception must only apply to situations involving physical contact.
To support the conclusion that the assault exception was applicable to instances
of assault and battery, the Wisconsin Supreme Court in Jenson admittedly cited three
examples involving physical contact.5 Id. Defendants argue that the court’s use of these
three examples supports the assertion that the plaintiff must also allege physical contact.
4
In Jenson, the defendant co-employee had publicly subjected the plaintiff to harsh verbal
attacks, criticizing her job performance, which the Wisconsin Supreme Court determined
“did not constitute an assault upon Jenson under any of the possible definitions” of
assault. Jenson, 161 Wis. 2d at 276.
5
The factual situations included an actual physical attack, a physical ejection from a
plant, and a fatal stabbing. See Goranson v. ILHR Dept., 94 Wis. 2d 537, 556, 289
N.W.2d 270 (1980); Nash-Kelvinator Corp. v. Industrial Comm., 266 Wis. 81, 82, 62
N.W.2d 567 (1954); Allied Mfg., Inc., v. ILHR Dept., 45 Wis. 2d 563, 173 N.W.2d 690
(1970).
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However, the court in Jenson also cautioned that the examples were not an exhaustive list
meant to lay out definitively boundaries of what did or did not constitute assault for
purposes of the exception. Id. As a result, while Jenson stands for the proposition the
assault exception includes instances of both assault and battery, that decision in no way
limited the assault exception to instances involving physical contact.
This conclusion makes sense. Just because the Jenson court concluded that the
assault exception applied to situations where both assault and battery were present, does
not mean that assault alone is not enough. Nor is there any obvious reason the exception
should not apply to an individual who intends to cause bodily harm, makes every effort
to do so, intimidates the victim, but despite his best efforts still fails to make physical
contact with the victim. The mere fact that the would-be assailant was unsuccessful in
this last respect simply means an assault, but not a battery, occurred, not that the claim
should fall outside an exception that is, after all, expressly for “assault.”
II. Intent to Cause Bodily Harm
While physical contact is not required, the Wisconsin Supreme Court did hold in
Jenson that to fall within the exception the assault “must be more than verbal, it must be
physical.” 161 Wis. 2d at 276, 468 N.W.2d at 10. As such, actions limited to “berating
and criticizing” a fellow employee without a threat of physical harm do not fall within
the assault exception.
Id. at 273, 468 N.W.2d at 9.
Moreover, even when there is
physical contact, there is no assault within the meaning of the statute unless a physical
injury was intended as a result of the unlawful touching. Hrabak v. Marquip, Inc., 798 F.
Supp. 550, 554 (W.D. Wis. 1992); see also Lucterhand v. Granite Microsystems, Inc., No. 057
CV-1047, 2007 WL 703400, at *15 (E.D. Wis. Mar. 2, 2007) (holding that an employee
must provide proof a co-worker intended to cause bodily harm, “or that physical injuries
were substantially certain to follow from his actions”); West Bend Mut. Ins. Co. v. Berger,
192 Wis. 2d 743, 754, 531 N.W.2d 636, 640 (Ct. App. 1995) (explaining that
inappropriate touching coupled with abusive language was such that a reasonable person
“would have understood that [the victim] would be upset enough to lose sleep, lose
weight, and suffer physical ailments . . . and that injuries were substantially certain to
follow”).
The allegations contained in plaintiff’s complaint are sufficient to support the
conclusion that Sheriff Roland intended to cause Nesvold some form of bodily harm, at
least at the pleading stage. Plaintiff alleges that on multiple occasions Sheriff Roland not
only yelled and cursed at him, but also threatened to harm him physically. (Am. Compl.
(dkt. #9) ¶¶ 17-20.) Moreover, while plaintiff does not allege that Sheriff Roland ever
touched him, there was an element of physicality to his outbursts which takes his actions
beyond the scope of simply berating or criticizing. For example, plaintiff’s complaint
alleges that at different times Sheriff Roland rushed at Nesvold, pointed his finger in
plaintiff’s face, intended to restrain Nesvold physically, and pounded on windows and
threw boxes at the wall. (Id. at ¶¶ 18-20.) These actions allegedly caused Nesvold to fear
for his safety and at different times take a defensive posture. (Id. at ¶ 20.) Moreover,
Nesvold also alleges that he suffered bodily harm, including nausea, emotional distress
and sleep deprivation, as a result of Sheriff Roland’s actions. (Id. at ¶ 27.) When taken
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as true, all of these allegations at least allow for a facially plausible inference in plaintiff’s
favor regarding Roland’s intent to cause Nesvold bodily harm.
As pled, the actions of Sheriff Roland certainly went well beyond workplace
criticism and verbal attacks which might be covered by Wisconsin’s Worker’s
Compensation Act. Sheriff Roland’s alleged threats and verbal abuse were accompanied
by physical actions that while not resulting in contact with Nesvold, can plausibly be
viewed as intended to cause bodily harm. This fact, when coupled with the allegations
that physical harm did result from Sheriff Roland’s outbursts, at least gives rise to an
inference that this harm was intended. At this stage, therefore, plaintiff has pled facts
sufficient to establish a claim that the assault exception applies. Whether plaintiff will be
able to prove his allegations of intent to cause bodily harm is a matter for another day.
ORDER
IT IS ORDERED that defendants Sheriff Dean W. Roland and Burnett County’s
motion to dismiss (dkt. #6) is DENIED AS MOOT with respect to plaintiff’s claims for
negligent infliction of emotional distress and intentional infliction of emotional distress,
and DENIED with respect to plaintiff’s assault claim.
Entered this 1st day of August, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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