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Reiber v. Mathew

United States District Court, N.D. Indiana, Fort Wayne Division

September 25, 2017



          William C. Lee, United States District Court Judge

         This matter is before the Court on the Partial Motion to Dismiss filed by Defendants Curo Health Services, LLC and SouthernCare Hospice, Inc. (ECF 38).[1] The motion challenges portions of the Plaintiffs' Amended Complaint (ECF 25). Plaintiffs Robin and Gary Reiber filed a response in opposition to the motion (ECF 41) and Defendants filed a reply (ECF 44). For the reasons discussed below, the motion is GRANTED in part and DENIED in part. The motion is GRANTED as to the Plaintiffs' state law claims against Curo and SouthernCare for sex discrimination, assault, battery, and intentional infliction of emotional distress, and those claims are DISMISSED WITH PREJUDICE. The motion is DENIED as to the Plaintiffs' claims against Curo and SouthernCare for negligent hiring and supervision, negligent infliction of emotional distress, negligence, and loss of services, and those claims remain pending. Plaintiff Robin Reiber's federal sex discrimination claims brought under Title VII are unaffected by this order and remain pending as to all three Defendants.


         Robin and Gary Reiber, wife and husband, filed this lawsuit in state court on December 5, 2016. Complaint (ECF 4). Defendants Curo Health and SouthernCare removed the case to this Court on January 27, 2017, on the basis of federal question jurisdiction. Notice of Removal (ECF 1).[2] Curo Health and SouthernCare filed a joint motion for partial dismissal asking the Court to dismiss the majority of claims asserted in the original Complaint. Motion for Partial Dismissal (ECF 18). This motion was fully briefed on April 17, 2017. The Reibers, however, along with their response in opposition to the motion to dismiss, also filed a motion to amend their Complaint. Motion to Amend/Correct State Court Complaint (ECF 25). On April 26, 2017, Magistrate Judge Susan Collins, to whom this case is on partial referral pursuant 28 U.S.C. § 636, granted Plaintiffs' motion to amend and the Amended Complaint filed on that date became the controlling complaint in this case. Curo Health and SouthernCare then filed this second motion for partial dismissal as to the Amended Complaint.

         The Reibers make the following factual assertions and allegations in their Amended Complaint, which are taken as true for purposes of the motion to dismiss. Robin Reiber was “employed by Defendant, SouthernCare Hospice and worked under the supervision of SouthernCare's Medical Director, Defendant, Dr. John Mathew[]” from April 27, 2015, until October 20 when she “was forced to resign as a result of the severe and pervasive sexual harassment by Dr. Mathew, [and] the hostile work environment” to which she was subjected. Amended Complaint, pp. 1 and 10. Curo Health Services is named as a defendant because the Reibers contend that “all of SouthernCare's supervisors and employees were also employees of Curo.” Id., p. 3.[3] Mrs. Reiber claims she was the victim of repeated, unwanted verbal and physical sexual advances by Dr. Mathew throughout her brief period of employment. She claims she reported what was happening to superiors, including Katie Huffman, who was Reiber's direct supervisor, and Staci Krueger, a vice president of SouthernCare, but that neither SouthernCare nor Curo took any action to remedy the situation. Id., generally. Mrs. Reiber alleges that her resignation was really a constructive discharge forced upon her by an intolerably hostile work environment and an employer (or employers) who did nothing to address the situation. Id., generally.

         Based on these factual assertions (and additional underlying facts that will be discussed below as they become pertinent to the Court's analysis) the Reibers allege the following federal and state law claims:

1) a claim for “sexual harassment and hostile work environment” in violation of Title VII of the Civil Rights Act (Amended Complaint, Count 1, pp. 10-12);
2) a claim for retaliation under Title VII (id., Count 2, pp. 12-13);
3) state law claims for “negligent hiring and supervision and respondeat superior” (id., Count 3, pp. 13-14);
4) state law claims for “assault and battery” (id., Count 4, pp. 14-15);
5) a state law claim for “intentional infliction of emotional distress” (id., Count 5, pp. 15-16);
6) a state law claim for “negligent infliction of emotional distress” (id., Count 6, p. 16);
7) a state law claim for negligence (id., Count 7); and
8) a state law claim, asserted by Mr. Reiber, for “loss of services” (id., Count 8, p. 17).

         In their prayer for relief, the Reibers seek compensatory and punitive damages, attorney fees and costs, and unspecified injunctive relief to “[e]njoin the Defendants from future violations of Title VII.” Id., p. 17.


         Curo Health and SouthernCare bring their joint motion for partial dismissal pursuant to Federal Rule 12(b)(6), arguing that the Reibers' Amended Complaint fails to allege any cognizable state law claim against either Defendant. Partial Motion to Dismiss.[4] The Defendants ask the Court to “dismiss Counts 1 (in part), 3, 4, 5, 6, 7, and 8 of Plaintiffs' [Amended] Complaint . . . with prejudice.” Id.

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) allows a defendant to move to dismiss a complaint that fails to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the Supreme Court explained that the complaint must allege facts that are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. 544, 555 (2007). The complaint must include “enough facts to state a claim to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal citation and quotation marks omitted). To be facially plausible, the complaint must allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Stated differently, “[a] motion under Rule 12(b)(6) challenges the sufficiency of the complaint and not the merits of the suit.” Neal v. Backs, 2016 WL 5933429, *2 (N.D.Ind. Oct. 12, 2016) (citing Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990)). In Twombly the Supreme Court articulated the following standard regarding factual allegations that are required to survive dismissal:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Twombly, 550 U.S. at 555 (quotation marks, ellipsis, citations, and footnote omitted). A plaintiff can also plead himself out of court if he pleads facts that preclude relief. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007); McCready v. Ebay, Inc., 453 F.3d 882, 888 (7th Cir. 2006). Finally, determining whether a complaint states a plausible claim for relief requires a reviewing court to “draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.


         Curo Health and SouthernCare argue that the Amended Complaint fails to state claims against them for several reasons. They note that the Amended Complaint “failed to remove claims under Indiana law for sexual harassment from Count 1. Indiana law does not recognize a private right of action for employment discrimination or harassment and the state law portions of Count 1 must be dismissed under Rule 12(b)(6).” Defendants' Memorandum in Support (ECF 39), p. 2. They contend that “[s]imilarly, Plaintiffs have not alleged sufficient facts to support the theory of respondeat superior in Counts 4 and 5. Dr. Mathew (who was not an employee of Curo or SouthernCare) could not have been acting as an agent of Curo or SouthernCare when he allegedly harassed [Mrs. Reiber], and Plaintiffs cannot assert claims for assault, battery, or intentional infliction of emotional distress against either company.” Id.[5] Finally, Defendants maintain that Robin Reiber's state law claims for negligent hiring and supervision, negligent infliction of emotional distress, negligence, and loss of services fall within “the exclusivity provision of Indiana's Worker's Compensation Statute” and are therefore barred. Id.

         I. Motion to dismiss Count 1 in part.

         The issue regarding a state law claim for sex discrimination appears to arise out of slightly confusing or inartful language in the original Complaint that was not removed from the Amended Complaint. Count 1 of the Amended Complaint is titled “SEXUAL HARASSMENT AND HOSTILE WORK ENVIRONMENT” and consists of 18 paragraphs. Amended Complaint, pp. 10-12 (capitalization in original). The detailed assertions and allegations in those paragraphs clearly state claims against the Defendants under Title VII, and these claims are not challenged by the motion to dismiss. But, in the second to last paragraph of Count 1, the Plaintiffs state: “The sexual harassment, assault, hostile work environment, retaliation, and Robin's constructive discharge were in violation of Robin's rights under Title VII and Indiana State law.” Id., p. 12, ¶ 83.

         The Defendants are correct that Title VII, not Indiana state law, provides the legal foundation for Robin Reiber's sexual harassment, hostile work environment, constructive discharge, and retaliation claims, and so they move to dismiss those claims to the extent the Plaintiffs are trying to bring them under both Title VII “and Indiana State law.” In other words, the last four words of paragraph 83 are the reason for Defendants' motion to dismiss since they arguably imply (or at least the Defendants infer) a cause of action for sexual harassment under state law as well as Title VII. This is unlikely since Count 1 contains express allegations of “unwelcome verbal and physical sexual advances” (id., ¶ 68) “directed at Robin because she is female” (id., ¶ 69), and which were “severe and pervasive and created a hostile working environment for Robin[]” (id., ¶ 70)-the classic language of a Title VII claim. Also, Mrs. Reiber states in the Amended Complaint (as she did in the original Complaint) that she exhausted mandatory administrative remedies prior to filing this lawsuit by filing a charge of discrimination, under Title VII, with the Fort Wayne Metropolitan Human Relations Commission” and therefore “Robin has exhausted all administrative remedies, and all conditions precedent to the institution of this lawsuit have been fulfilled.” Amended Complaint, p. 2, ¶¶ 8, 10; see also, original Complaint, p. 3, ¶¶ 8, 10. These statements also make clear Mrs. Reiber's intent to bring her sex discrimination claims under Title VII. Neither the original Complaint nor the Amended Complaint include any mention of a “state law” discrimination claim and neither one cites or references any state statute or common law theory that would support such a claim.

         Count 1 of the Amended Complaint, as its title indicates, clearly asserts a cause of action under Title VII based on allegations of sexual harassment, hostile work environment, retaliation, [6]and constructive discharge-and the Defendants are not challenging that. But four words loitering at the end of paragraph 83 give rise to an issue that probably doesn't even really exist. Unfortunately, the Reibers' brief in opposition to the motion to dismiss does not address this issue. Instead, the first half of the brief is dedicated to arguing that an agency relationship existed between SouthernCare, Curo and Dr. Mathew such that his actions are attributable to the corporate Defendants for purposes of holding them “vicariously liable for the intentional acts of Dr. Mathew[, ]” (id., pp. 3-5), while the second half is devoted to arguing that “the Plaintiffs' negligence claims are not barred by Indiana's Worker's Compensation Act[]” (id., pp. 5-8). The Plaintiffs make no mention at all in their brief of any purported state law claim for sexual harassment, hostile work environment, constructive discharge, or retaliation. The Defendants argue that “[d]espite two Partial Motions to Dismiss, two responses thereto, and an Amended Complaint, Plaintiffs . . . have failed to remedy the contradictions and failings that plague their Amended Complaint[]” and that “Plaintiffs have waived-several times over-any argument in response to Defendants' position that Count 1 fails to state a cognizable claim under Indiana law, and the same should be dismissed.” Defendants' Reply, p. 1. It is not clear why the Plaintiffs didn't remove the words “and Indiana State Law” from Count 1, or why they did not simply concede in their response brief that they were not asserting a state law sex discrimination claim. It is possible that the words were included only to indicate that the Plaintiffs were asserting both federal claims under Title VII and separate state law tort claims (after all, paragraph 83 includes mention of “assault, ” which is a state law claim) and that the phrase “and Indiana State Law” was not intended to allege a separate or distinct state law discrimination claim. But since the Reibers did not delete those words before they filed their Amended Complaint, or address the issue in their brief, the Defendants were forced to assume that the issue was more than semantical and to persist in their argument that Count 1 should be dismissed to the extent that it arguably purports to include a claim for sex discrimination under Indiana state law. In any event, the Reibers have chosen not to address this issue or challenge the motion for partial dismissal of Count 1, and so the motion is granted as to Count 1 insofar as it purports or could be interpreted to allege claims for sex discrimination under Indiana state law. Robin Reiber's Title VII claims in Count 1 are unaffected by this ruling and remain pending.[7]

         II. Motion to Dismiss Counts 3, 6, 7 and 8.[8]

         Curo and SouthernCare argue that the Reibers cannot proceed with their state law claims for negligent hiring and supervision (Count 3), negligent infliction of emotional distress (Count 6), negligence (Count 7), or loss of services (Count 8) because those tort claims are “precluded by Indiana's Worker's Compensation Statute.” Defendants' Memorandum, p. 13. The Defendants note that in her original Complaint, Mrs. Reiber stated that she “suffered ‘pain and suffering' and ‘physical injury' in the scope and course of her employment.” Id., pp. 9-10 (quoting original Complaint). Therefore, argue the Defendants, “Plaintiffs' allegations that Mrs. Reiber was injured because she was fulfilling her normal job duties invalidated her negligence claims under the [Worker's Compensation] Act.” Id, p. 10 (citing Neal v. Backs, 2016 WL 5933429 at *8 (N.D. Ind. Oct. 12, 2016)). The Defendants then argue that “Plaintiffs attempted to cure their error by removing references to physical injury in the Amended Complaint. . . . However, Plaintiffs hedged their bets stating in their Response to Defendants' Motion to Dismiss, [that] ‘Mrs. Reiber was physically injured in the sense that there was unwelcome touching, but not in terms of needing medical attention for a physical injury.' . . . Thus, Plaintiffs still claim Mrs. Reiber suffered a physical injury as it relates to her battery claim, but conveniently, not as it relates to her negligence claims. Plaintiffs cannot have it both ways and her negligence claims should be dismissed on this basis.” Id. The long and short of it, according to the Defendants, is that Mrs. Reiber alleges she suffered injuries while at work and so any negligence based claims she might try to assert are barred by the exclusivity provision of Indiana's Worker's Compensation Act.

         A. Indiana Worker's Compensation Act.

         The Indiana WCA states that “[t]he rights and remedies granted to an employee” under the WCA “on account of personal injury . . . by accident shall exclude all other rights and remedies of such employee . . . on account of such injury.” Ind. Code § 22-3-2-6. The exclusivity provision of the WCA bars a court from hearing a common law claim brought by an employee if the “employee's injury occurred by accident arising out of and in the course of employment.” Sims v. U.S. Fid. & Guar. Co., 782 N.E.2d 345, 349-50 (Ind. 2003).[9] If Mrs. Reiber's injuries 1)

         occurred by accident, 2) arose out of the course of her employment, and 3) occurred in the course of her employment, they arguably would be compensable only under the WCA and her tort claims would be barred, just as the Defendants insist. But the elements of a WCA claim are not the issue here and the Plaintiffs don't debate these elements specifically, arguing instead that the WCA doesn't apply from the get-go since the injuries for which they seek compensation are non-physical in nature and therefore outside the clutches of the WCA. The determinative issue before the Court is not whether the Reibers' alleged injuries occurred “by accident” or “arose out of employment, ” or “occurred in the course of employment, ” but whether the WCA applies at all given the nature of those injuries. Stated a bit more legalistically, the issue is whether the Plaintiffs' common law negligence claims are barred by the exclusivity provision of the Indiana Worker's Compensation Act when the Plaintiffs seek compensation only for nonphysical rather than physical injuries. Resolution of that issue requires first a discussion of the three elements of a WCA claim.

         1. In the course of employment.

         Addressing the elements in reverse order, Mrs. Reiber does not dispute that the events giving rise to her tort claims occurred while she was at work. Since an “accident occurs ‘in the course of' employment when it takes place at the time and place of a person's employment while [the] employee is fulfilling his duties[, ]” Global Constr., Inc. v. March, 813 N.E.2d 1163, 1166 (Ind. 2004), there is no dispute that this element is satisfied in this case.

         2. Arising ...

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