Opinion
Case Number: 1:97cv321-B-A
September 22, 2000.
MEMORANDUM OPINION
This cause comes before the court on remand from the Fifth Circuit. Whitmire v. Victus Limited, 212 F.3d 885 (5th Cir. 2000). The court has duly considered the defendant's motion for summary judgment as to the state law claims, the defendant's motion for leave to amend the answer and the parties' memoranda and exhibits.
This court granted the defendant's motion for summary judgment as to the federal claims under the Americans with Disabilities Act [ADA] and the Family and Medical Leave Act [FMLA] and declined to exercise supplemental jurisdiction over the state law claims. 1999 U.S. Dist. Lexis 13442. The plaintiff's post-judgment motion to amend the complaint to allege diversity jurisdiction was denied. On appeal of the post-judgment ruling, the Fifth Circuit reversed and remanded this cause for consideration of the state law claims on the independent jurisdictional basis of diversity of citizenship. On remand the United States Magistrate Judge granted the plaintiff's motion to amend the complaint to allege diversity jurisdiction and gave the defendant leave to file an answer within a prescribed period.
The state law claims arise out of the plaintiff's previous employment with the defendant. The plaintiff seeks actual and punitive damages for assault, intentional infliction of mental distress and breach of the implied covenant of good faith and fair dealing. The defendant moved for leave to amend the answer to affirmatively plead the exclusive remedy bar under the Workers' Compensation Act, Miss. Code Ann. § 71-3-9, as a defense to the assault claim in the event the proof establishes negligence. "[T]he Workers' Compensation Act does not bar an employee from pursuing a common law remedy against his employer for an injury caused by [another employee's] wilful and malicious act." Royal Oil Co. v. Wells, 500 So.2d 439, 442 (Miss. 1986) (citing Miller v. McRae's, Inc., 444 So.2d 368, 371 (Miss. 1984)). The defendant asserts that the exclusivity defense has not been waived since the plaintiff alleged and admitted that her injury is covered under the defendant's workers' compensation insurance coverage. See Seal v. Industrial Electric, Inc., 362 F.2d 788, 789 (5th Cir. 1966) (construing Mississippi law) ("in the absence of a presumption of coverage . . . the duty rests upon the party relying upon the coverage of the compensation Act to plead and prove the facts which establish coverage unless, of course, such facts are pleaded or otherwise admitted by the other party").
The defendant first raised the exclusive remedy defense in support of its motion for summary judgment and moved for leave to amend in response to the plaintiff's objection thereto. The defendant has plead the defense in its answer to the second amended complaint filed on remand for the purpose of alleging diversity jurisdiction. Although the defendant was granted leave to file an answer to the second amended complaint, the affirmative defense is not responsive to the amendment in the complaint. Therefore, the court will address the defendant's motion for leave to amend its answer.
See Griffin v. Futorian Corp., 533 So.2d 461, 463 (Miss. 1988) (under the intentional tort exception to the exclusive remedy provision, the injury must be caused by an employee's willful act within the course and scope of his employment and in furtherance of the employer's business and noncompensable under the Workers' Compensation Act); Miller v. McRae's, Inc., 444 So.2d 368, 372 (Miss. 1984) ("Obviously, if the injury is not compensable under the Act, the Act does not provide the exclusive remedy.").
The original complaint, as well as the amended complaints, allege that "Defendant's plant manager, William Lamb, deliberately pushed Plaintiff off a conveyor line" and that "Lamb "intimidat[ed] Plaintiff about filing a Workman's Compensation claim." It is undisputed that the plaintiff's injury occurred within the course and scope of her employment and in the furtherance of the defendant's business. The plaintiff admitted in her deposition that she filed a claim for and received workers' compensation benefits. The court finds that the plaintiff's allegations and admission of an on-the-job injury and workers' compensation coverage exempt the defendant from the duty to plead the statutory bar as an affirmative defense. Therefore, the court further finds that the defendant has not waived the exclusive remedy defense to the plaintiff's foot injury-related claim.
The court previously found:
In April, 1994 the plaintiff, as safety coordinator at the defendant's furniture manufacturing plant, was injured while inspecting the assembly area; she fell approximately four feet from the conveyor belt and landed flat-footed on a concrete floor. 1999 U.S. Dist. Lexis 13442 at *4.
The plaintiff contends that the proposed amendment would add an entirely new factual issue at a late stage in this cause, i.e., "whether the assault was an intentional act, so as not to be barred by the Workers' Compensation statute, or whether it was a negligent action which would be barred by the Workers' Compensation statute." The pertinent issue of fact, as reflected on the pretrial order entered on August 23, 2000, is "[w]hether Defendant's agent committed an assault upon plaintiff." As the defendant asserts, the assault claim necessarily involves the issue of intent. The plaintiff further contends that the exclusive remedy issue will inject the pending workers' compensation controversy into this cause. The controversy involves the issue of the extent of coverage, as opposed to the issue of coverage, and is properly before the Mississippi Workers' Compensation Commission. Accordingly, the defendant's motion for leave to amend will be granted and the exclusive remedy defense will not be stricken from the answer filed on August 15, 2000.
The plaintiff's petition to controvert is pending before the Mississippi Workers' Compensation Commission. The petition states that past medical treatment was paid by the plaintiff's employer but seeks compensation for disability. The issue of the plaintiff's entitlement to additional benefits sought in the petition is properly before the Commission.
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L.Ed.2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the nonmoving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the nonmovant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 91 L.Ed.2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be drawn in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L.Ed.2d 202, 216 (1986); Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir. 1994). Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 91 L.Ed.2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the nonmovant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538, 552 (1986); Fed. Sav. Loan Ins. v. Kralj, 968 F.2d 500, 503 (5th Cir. 1992).
The plaintiff alleges that the defendant's plant manager, Lamb, assaulted her by deliberately pushing her off a conveyor line. Under Mississippi law,
Assault occurs where a person `(a) . . . acts intending to cause a harmful or offensive contact . . . or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.' Restatement (Second) of Torts § 21 (1965).
Webb v. Jackson, 583 So.2d 946, 951 (Miss. 1991). The plaintiff testified in her deposition as follows:
Superseded by statute on other grounds, as stated in Duncan v. Chamblee, 757 So.2d 946, 949 (Miss. 1999).
Q. Okay. And did he say why he pushed you?
A. No. That was just normal for Bill. He pushed and hit and pinched and kicked everyone. That was just Bill.
Q. Okay. Was this him kidding around?
A. Yes.
Q. Do you think well, would you agree with me it was not malicious on his part?
A. No.
Q. When he pushed you, did he think that you would jump from or leave the conveyor belt?
A. Well, he's a heavy set person and the conveyor belt was maybe four feet, three or four feet wide, four maybe. There is not a lot of room to stand, so I'm sure he had he knew that I would fall, but he didn't think I would be hurt. I'm hoping he didn't. I don't know.
. . .
Q. And at that time, did you have a good relationship with him?
A. Yes.
The plaintiff contends that a jury could infer an intent to injure from the fact that Lamb approached the plaintiff from behind and pushed her, resulting in a four-foot fall. The defendant contends that the plaintiff admitted that Lamb was "kidding" and that horseplay does not amount to the intentional tort of assault. The court finds that the plaintiff has presented no evidence that creates a genuine issue of material fact as to whether Lamb "act[ed] intending to cause a harmful or offensive contact" with the plaintiff. The court further finds that the plaintiff has neither alleged nor presented any evidence that Lamb acted intending to cause an imminent apprehension of a harmful or offensive contact or that the plaintiff was "put in such imminent apprehension." The plaintiff asserts that Lamb approached her from behind by surprise, and without warning. Therefore, the defendant is entitled to summary judgment as to the assault claim, and the claim, insofar as it is based on negligence, is barred under the Mississippi Workers' Compensation exclusivity provision, Miss. Code Ann. § 71-3-9.
The plaintiff's affidavit states in part: "I did not either hear or see Mr. Lamb approaching me."
The plaintiff alleges that the defendant is liable for its agents' alleged deliberate infliction of mental distress. Under Mississippi law, intentional infliction of mental and/or emotional distress occurs "[w]here there is something about the defendant's conduct which evokes outrage or revulsion [with] the results being reasonably foreseeable." Sears, Roebuck Co. v. Devers, 405 So.2d 898, 902 (Miss. 1981) ("it is the nature of the act itself as opposed to the seriousness of the consequences which gives impetus to legal redress"). Mississippi case law does not clearly define "the contours of this `outrage or revulsion' standard, White v. Walker, 950 F.2d 972, 978 (5th Cir. 1991), but relies on The Restatement (Second) of Torts. Jenkins v. City of Grenada, 813 F. Supp. 443, 446-47 (N.D.Miss. 1993). "A claim for intentional infliction of emotional distress will not ordinarily lie for mere employment disputes." Lawson v. Heidelberg Eastern, 872 F. Supp. 335, 338 (N.D.Miss.) (construing Mississippi law), aff'd without op., 70 F.3d 1269 (5th Cir. 1995). The threshold question is whether the plaintiff's alleged mistreatment could reasonably amount to extreme and outrageous conduct outside the realm of nonactionable employment disputes.
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. White v. Walker, 950 F.2d 972, 978 (5th Cir. 1991) (quoting Comment d to Restatement (Second) of Torts § 46)..
The plaintiff alleges in the pretrial order:
From the date of her injury, Lamb, acting on behalf of the Defendant, deliberately began inflicting mental duress upon Plaintiff. Lamb did this through repeated intimidation about filing a Worker's Compensation claim, by ignoring the Plaintiff at work, and by attempting to force Plaintiff to quit her employment.
The plaintiff's affidavit states in part:
The document styled as the plaintiff's affidavit is an unsworn declaration under penalty of perjury pursuant to 28 U.S.C. § 1746 .
Mr. Lamb . . . told me that I was not going to turn [the foot injury claim] in on workmen's compensation. He asked how would it look, if it was learned that the plant manager had pushed and injured the safety coordinator?
Lamb allegedly warned the plaintiff against filing a workers' compensation claim in order to retain her job. The plaintiff's affidavit further states that upon return from medical leave the plaintiff was transferred from her position of human resources representative to data management assistant "in a small office with no telephone, a computer that was not hooked up and a broken chair" and initially no job duties under the supervision of Danny Robinson who refused to speak to her and gave orders to her through other employees. Employees were allegedly instructed not to otherwise speak to the plaintiff. The plaintiff's affidavit states that she suffered and was treated for severe depression and eventually took medical leave for job-related stress and depression.
The defendant refers to this job title as data entry clerk.
The plaintiff's affidavit states that after complaining to the defendant's vice-president, Richard Mihalik, she was assigned "some job duties." The plaintiff further complains in her affidavit that "the company brought in another employee, Ms. Diane Jones, and gave her my [former] office and title as data management assistant." Ms. Jones "only worked a few hours and then quit."
The "wide ranging category" of ordinary employment disputes includes a supervisor's "unfair criticism of job performance, poor evaluations, demands that [the plaintiff] quit or face the threat of defendant fabricating a case against her to justify termination." Jenkins, 813 F. Supp. at 447 ("Although defendant Morgan's treatment of plaintiff may have been nervewracking, upsetting, and even improper, no reasonable juror could conclude that it rose to the heightened level of `extreme and outrageous.'"). The Fifth Circuit has held that "an alleged course of harassing conduct against [the plaintiff] by his supervisors that culminated in his termination" fell within the broad range of ordinary and nonactionable employment disputes. Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 32, 33-34 (5th Cir. 1992) (construing Texas law). In Johnson, the plaintiff, a pharmaceutical sales representative, alleged that his division manager "was extremely hostile to him," constantly criticized his ability to organize his sales territory and his record keeping and reporting, realigned his sales territory four or five times in little over a year, and "threatened him with termination on numerous occasions." Id. at 32-33. The plaintiff worked for a series of division managers who allegedly treated him in a similar manner, including false accusations and threats of termination. Id. at 33. The defendant company terminated the plaintiff while he was on psychiatric disability leave. Id.
As in Mississippi, a claim for intentional infliction of emotional distress under Texas law requires proof of "extreme and outrageous conduct" set forth in Restatement (Second) of Torts § 46, Comment d (1965). Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33 (5th Cir. 1992).
The plaintiff in Johnson was allegedly harassed "in retaliation for his questioning some business practices of the company and his decision to testify in favor of a former Merrell Dow employee in that employee's suit against the company." Johnson, 965 F.2d at 32 .
The plaintiff was falsely accused of failing to obtain a physician's required signature for samples. Johnson, 965 F.2d at 33 .
The regional manager threatened to fire the plaintiff on several occasions and "told Johnson that he was being disloyal to the company by maintaining a friendship with . . . the employee on whose behalf Johnson agreed to testify." Johnson, 965 F.2d at 33 .
A supervisor allegedly called the plaintiff during his sick leave on a weekly basis to tell him that his disability "was hurting the company." Johnson, 965 F.2d at 33 .
"[M]ore is required to prove intentional infliction of emotional distress than the usual [federal employment discrimination] claim." Wilson v. Monarch Paper Co., 939 F.2d 1138, 1144 (5th Cir. 1991) (construing Texas law). The allegations in the instant cause are similar to those falling short of "extreme and outrageous conduct" in Johnson and Wilson. The court in Wilson stated:
The plaintiff in Wilson prevailed on his age discrimination claim.
See supra note 12.
The plaintiff in Wilson alleged that the manager refused to speak to him or directly assign work to him, other managers refused to work with him and referred to him as old and one manager prepared a sign stating "Wilson is old." 939 F.2d at 1144-45 (such conduct fails to reach the required "level of outrageousness"). The court in Wilson did hold that demoting the plaintiff from the Vice-President position to an entry level warehouse supervisor position with primarily janitorial duties was "so outrageous that civilized society should not tolerate it." Id. at 1145.
[I]t is not unusual for an employer, instead of directly discharging an employee, to create unpleasant and onerous work conditions designed to force an employee to quit, i.e., `constructively' to discharge the employee. In short, although this sort of conduct often rises to the level of illegality, except in the most unusual cases it is not the sort of conduct, as deplorable as it may sometimes be, that constitutes `extreme and outrageous' conduct. Wilson, 939 F.2d at 1143, cited in Jenkins, 813 F. Supp. at 447. Cf. Dean v. Ford Motor Credit Co., 885 F.2d 300, 306-07 (5th Cir. 1989) (assistant manager's alleged planting of company checks in the plaintiff's purse "to make it appear that she was a thief, or to put her in fear of such an accusation" "passes the bounds of conduct that will be tolerated by a civilized society and is, therefore, outrageous conduct."). Viewing the alleged facts in the light most favorable to the plaintiff, the court finds that, as a matter of law, the plaintiff's alleged mistreatment in her workplace environment was not so extreme or outrageous "as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Therefore, there is no genuine issue of material fact that precludes summary judgment on the plaintiff's claim of intentional infliction of emotional distress.
The plaintiff's second amended complaint alleges that the defendant's harassment, including the plaintiff's reassignment and discharge, violated the implied covenant of good faith and fair dealing in the parties' employment contract. The plaintiff did not specifically address the bad faith claim in opposition to the instant motion for summary judgment. The existence of an employment contract is not in dispute. Mississippi law recognizes an implied covenant of good faith and fair dealing only in the performance of a contract, as opposed to the negotiation or formation of the contract. Baldwin v. Laurel Ford Lincoln-Mercury, Inc., 32 F. Supp.2d 894, 899 (S.D.Miss. 1998) (construing Mississippi law). Similarly, the implied covenant of good faith and fair dealing does not extend to the termination of a contract in the employment context, i.e., the covenant does not create a cause of action for discharge, actual or constructive, as an alternative to a breach of contract claim. Perry v. Sears, Roebuck Co., 508 So.2d 1086, 1089 (Miss. 1987) (Mississippi has not adopted the theory that "[a]ny breach of this implied covenant [of good faith and fair dealing] by malicious termination or harassment is said to give the victim a tort action for wrongful discharge") (emphasis added). Therefore, the plaintiff's discharge does not give rise to an actionable bad faith claim. Allegations of the plaintiff's reassignment and her supervisors' harassment are akin to a constructive discharge claim and therefore, do not support an actionable claim for breach of implied covenant of good faith and fair dealing.
The plaintiff's separate claim of wrongful discharge, independent of the bad faith claim, is newly asserted in the pretrial order entered in this cause on remand and is, therefore, not properly before this court. See Perry v. Sears, Roebuck Co., 508 So.2d 1086, 1089 (Miss. 1987) (wrongful discharge actions may sound in contract or tort). The Fifth Circuit remanded this cause with the understanding that
[in moving for leave to allege diversity jurisdiction] Whitmire did not propose to add any new causes of action or new parties, nor did she seek to introduce any new substantive facts to the case. . . . Defendant has completed discovery and plaintiff's amendment does not seek to inject any new facts or causes of action into the case. . . .212 F.3d 885, 887, 890 (5th Cir. 2000).
See Cenac v. Murry, 609 So.2d 1257, 1272 (Miss. 1992) ("All contracts contain an implied covenant of good faith and fair dealing in performance and enforcement."); Miss. Code Ann. § 75-1-203 ("Every contract or duty within [the Mississippi Uniform Commercial Code] imposes an obligation of good faith in its performance or enforcement.").
The second amended complaint alleges: "While Plaintiff was on this necessary leave, necessitated by Defendant's harassment, Defendant terminated Plaintiff from her employment."
In any event, with respect to William Lamb's alleged harassment of the plaintiff, the defendant transferred the plaintiff to another supervisor. With respect to Danny Robinson's alleged harassment, the defendant had assigned the plaintiff to four supervisors before transferring her to Danny Robinson, who had been a life-long friend of the plaintiff. With respect to the plaintiff's job reassignment, the court previously held that the defendant articulated legitimate reasons for its decision to remove the plaintiff from the human resources position, and the plaintiff has presented no evidence showing a genuine issue of material fact as to bad faith in the defendant's decision to reassign her. In addition, the court previously found:
The issue is bad faith on the part of the defendant employer.
1999 U.S. Dist. Lexis 13442 at *2 n. 3 (the defendant presented evidence that "without knowledge that the plaintiff would take leave for her foot condition, it had decided to reassign the plaintiff to the receptionist position for performance reasons and that upon learning of her walking/standing restriction during her leave, the defendant decided to reassign the plaintiff to the newly created position of data entry clerk").
Following complaints from the plaintiff, the defendant increased her job duties and improved her office conditions and equipment. Her salary and benefits were not reduced."
1999 U.S. Dist. Lexis 13442 at *5. The plaintiff did not challenge this finding of fact. The plaintiff appealed only the denial of her post-judgment motion to amend jurisdictional allegations. 212 F.3d 885 .
For the foregoing reasons, the court finds that the defendant is entitled to summary judgment as to the state law claims. An order will issue accordingly.
THIS, the day of September, 2000.