Opinion
File No. 1:99-CV-718
June 3, 2000
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Defendants' Rule 12(b)(6) motion for partial dismissal (Docket # 10) is GRANTED IN PART and DENIED IN PART. The motion is granted as to Counts 2, 4, 5, 6, 7, 8, and 9, and denied as to Count 1.
IT IS FURTHER ORDERED that Counts 4, and 6-9 are DISMISSED.
IT IS FURTHER ORDERED that Counts 2 and 5 are DISMISSED as to the individual defendants, Bell, Myers, and O'Hare.
OPINION
In this action Plaintiff Connie Malburg challenges her termination of employment by Defendant PaineWebber, Inc. This matter is currently before the Court on Defendants' Rule 12(b)(6) motion for partial dismissal. Defendants move for dismissal of Counts 1, 4, 6-9, and for dismissal of the claims against the individual defendants (Myers, Bell and O'Hare) in Counts 2 and 5. For the reasons that follow, Defendants' motion will be granted in part and denied in part.
I.
Defendant moves to dismiss Count 1 alleging wrongful termination. Defendants contend that Plaintiff has failed to allege a just-cause employment contract, and that she accordingly fails to state a claim for wrongful termination.
Under Michigan law, employment relationships are presumed to be terminable at the will of either party. Lytle v. Malady, 458 Mich. 153, 163, 579 N.W.2d 906 (1998). The presumption of employment at will can be overcome with proof of (1) a contractual provision for a definite term of employment or a provision forbidding discharge absent just cause; (2) an express agreement, either written or oral, regarding job security that is clear and unequivocal; or (3) a contractual provision, implied at law, where an employer's policies and procedures instill a "legitimate expectation" of job security in the employee. Id.
Plaintiff was hired by PaineWebber, Inc., at its Muskegon, Michigan, office in 1979 as a wire operator/receptionist. In 1983 she was promoted to the position of Operations Manager, the position she held until her termination in May 1999. Plaintiff has alleged in her first amended complaint that notwithstanding her initial belief that she was an "at will" employee, Defendant Dean Bell, the branch manager of PaineWebber's Muskegon office, and Plaintiff s supervisor, repeatedly advised her that she could only be fired "for cause" and that he was actively attempting to identify a basis which would constitute such a justification for her termination. (First Amended Complaint ¶ 27). She further alleges that she had an expectation, based upon her long term employment and the verbal assurances of Mr. Bell that she would only be terminated for cause. (First Amended Complaint ¶ 37).
Defendants cite a number of cases where summary judgment was granted to defendants who based their wrongful termination claim upon an implied contract of employment supported by similar evidence. See e.g., Cole v. Knoll, Inc., 984 F. Supp. 1117, 1127-31 (W.D.Mich. 1997); Muthler v. Ann Arbor Machine. Inc., 18 F. Supp.2d 722, 725-26 (E.D.Mich. 1998); Rood v. General Dynamics Corp., 444 Mich. 107, 123 (1993). This case, however, is before the court on a motion to dismiss for failure to state a claim, and not on a motion for summary judgment. This is not the time to test the evidentiary support for Plaintiff's wrongful termination claim. In response to a Rule 12(b)(6) motion to dismiss Plaintiff is not required to come forward with all the evidence that might support her claim. "In order for a dismissal to be proper, it must appear beyond doubt that the plaintiff would not be able to recover under any set of facts that could be presented consistent with the allegations of the complaint." Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996) (citations omitted) (emphasis added). "`A complaint need not set down in detail all the particularities of a plaintiff's claim,'" but must simply "give the defendant `fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Gazette, 41 F.3d at 1064 (citations omitted).
Plaintiff has adequately stated a claim for wrongful termination. The allegations in her first amended complaint are sufficient to put defendants on notice of the grounds upon which her wrongful termination claim rests.
II.
Defendants move for dismissal of Count 6 of Plaintiff's First Amended Complaint, alleging intentional infliction of emotional distress. In order to state a claim of intentional infliction of emotional distress under Michigan law a plaintiff must show (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Teadt v. Lutheran Church Missouri Synod, 237 Mich. App. 567, 582, 603 N.W.2d 816, 823 (1999); Andrews v. Prudential Securities, Inc., 160 F.3d 304, 309 (6th Cir. 1998). The outrageous conduct requirement is satisfied only by conduct that is "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" and only "where the distress inflicted is so severe that no reasonable man could be expected to endure it."Andrews, 160 F.3d at 309 (quoting Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 374 N.W.2d 905, 908-09 (1985) (quoting Restatement (Second) of Torts § 46, comment d (1965)). It is not enough that a defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Rush v. United Technologies, Otis Elevator Div., 930 F.2d 453, 456 (6th Cir. 1991) (quoting Restatement 2d of Torts, § 46, comment d. A defendant is also not liable for "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities," Id.
Although the Michigan Supreme Court has not yet recognized the tort of intentional infliction of emotional distress, see Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 374 N.W.2d 905, 906 (1985), the Michigan Court of Appeals has recognized such a tort, and we assume that the Michigan Supreme Court would do so too under appropriate circumstances. See Andrews v. Prudential Securities, Inc., 160 F.3d 304, 309 (6th Cir. 1998).
In evaluating a motion to dismiss under Rule 12(b)(6) the court accepts as true all factual allegations in the complaint, and construes ambiguous allegations in the plaintiff's favor. In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). Accordingly, the Court accepts as true Plaintiff's allegations that Defendants Bell and Myers embarked on a campaign designed to confuse, aggravate and torture her, which campaign included the following actions:
a. Repeatedly challenging her authority within the office;
b. Altering and shifting her responsibilities spontaneously and arbitrarily to prevent any sense of security or any ability on Connie's part to accurately identify and fulfill her work responsibilities;
c) The shifting of staff supervised by Connie and elimination of staff supervised by Connie so that she would be unable to perform her responsibilities;
d) The repeated threat to terminate her employment which alternated with offers of termination with favorable conditions, employment alternatives in other PaineWebber offices, and severance packages which were held open for short periods of time or arbitrarily withdrawn;
e) The repeated statement by Defendant Bell that he was actively looking for "cause" to terminate Connie and that she would be terminated for the "next" act of misconduct even though she had not been apprised of any initial act or acts of misconduct;
a. The promising of Connie's job and title to others;
b. The arbitrary changing of Connie's performance evaluations; and
c. Defendants' hiring of young inexperienced "replacements" for Connie without her knowledge, with the implicit and explicit threat that she would be terminated at some point in the future.
(First Amended Complaint ¶ 28).
"[I]t is initially for the court to determine whether the defendant's conduct reasonably may be regarded as so extreme and outrageous as to permit recovery." Teadt, 237 Mich. App. at 582, 603 N.W.2d at 824. Taking all of the plaintiffs' allegations as true, those allegations fall well short of the substantial threshold required as a matter of law to show outrageous conduct. The conduct Plaintiff complains of is not, as a matter of law, so outrageous in character, or so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as utterly intolerable in a civilized community. Accordingly, Count 6 of Plaintiff's First Amended Complaint alleging a state law claim for intentional infliction of emotional distress will be dismissed for failure to state a claim.
III.
With respect to the remaining counts Defendants seek to dismiss, Plaintiff has acknowledged that her allegations of defamation in Count 4 have not been plead with sufficient particularity. She advises that this count will either be re-plead or withdrawn shortly. Plaintiff asserts that counts 7-9, alleging damages, will be clarified to eliminate Defendants' objection. As to the individual liability allegations in Counts 2 and 5, alleging age discrimination under the ADEA and retaliatory termination under Title VII, Plaintiff agrees that controlling authority bars individual liability under the ADEA and Title VII. At the conclusion of her response to Defendants' motion to dismiss, Plaintiff requests the Court to allow her to amend her complaint for a third time concerning defamation (Count 4), the personal liability of individual Defendants under the ADEA and Title VII (Counts 2 5), and the liability and damages allegations (Counts 7-9).
Plaintiff has not moved to amend her complaint a third time. On this basis alone, Plaintiff's request for leave to amend must be denied. In addition, although leave to amend "shall be freely given when justice so requires," FED. R. CIV. P. 15(a), Plaintiff has not met her burden of showing that amendment would in fact be in the interests of justice. Plaintiff has not informed the Court as to how she intends to amend her complaint, how the amendment will address Defendants' objections, or why an amendment would not be futile. For this additional reason, Plaintiff's request for leave to amend her complaint for a third time will be denied. The Court will accordingly dismiss Count 4, and Counts 2 and 5 to the extent they apply to the individual Defendants. As to the allegations in Counts 7-9, the Court will allow the allegations regarding liability and damages to be incorporated within the general allegations of the complaint, but the Court will not consider these allegations as separate counts alleging separate claims for recovery.
An order consistent with this opinion will be entered.
Date: June 3, 2000
ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE