Dean v. Ford Motor Credit Co.
| Decision Date | 11 October 1989 |
| Docket Number | No. 88-1800,88-1800 |
| Citation | 885 F.2d 300 |
| Parties | 51 Fair Empl.Prac.Cas. 324, 51 Empl. Prac. Dec. P 39,400, 15 Fed.R.Serv.3d 506, 4 Indiv.Empl.Rts.Cas. 1623 Beverly J. DEAN, Plaintiff-Appellee Cross-Appellant, v. FORD MOTOR CREDIT COMPANY, Defendant-Appellant Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard R. Brann, Paul L. Mitchell, Houston, Tex., for defendant-appellant cross-appellee.
Eric W. Schulze, Austin, Tex., John Judge, Amarillo, Tex., for plaintiff-appellee cross-appellant.
Appeals from the United States District Court for the Northern District of Texas.
Before GEE, REAVLEY, and JOLLY, Circuit Judges.
The plaintiff brought suit in federal court against her former employer, alleging two claims under Title VII and a pendent claim under Texas law for intentional infliction of emotional distress. The defendant filed a Rule 12(b)(6) motion to dismiss the plaintiff's emotional distress complaint on the ground that it failed to state a claim upon which relief could be granted. The district court denied this motion, holding that the complaint did state a claim and giving the plaintiff leave to file a supplemental complaint that clarified her emotional distress claim.
That claim was tried to a jury, and at the same time plaintiff's Title VII claims were tried to the district court. At the close of the plaintiff's case, the defendant moved for an order of dismissal pursuant to Fed.R.Civ.P. 41(b) or a directed verdict pursuant to Fed.R.Civ.P. 50(a). The district court denied this motion. The jury returned a verdict for the plaintiff on her emotional distress claim, awarding her a total of $275,000 for past, future and punitive damages. The defendant then filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied this motion. On the same date the district court issued a memorandum opinion on the plaintiff's Title VII claims, holding that the plaintiff had failed to prove retaliatory discharge and entering judgment for the defendant on that issue.
On appeal the defendant contends that the district court erred in denying its Rule 12(b)(6) motion to dismiss the plaintiff's emotional distress claim. The defendant also contends that the district court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict on the emotional distress claim. The plaintiff cross-appeals, contending that the district court erred by failing to address her Title VII claim for failure to promote. We affirm.
The defendant contends that the plaintiff's complaint failed to state a claim for intentional infliction of emotional distress and that the district court erred, therefore, in denying its motion to dismiss. The plaintiff argues that this contention was not properly preserved for appeal. We agree.
Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 479-80 (5th Cir.1984) (citations omitted). In this case the defendant contends that it properly preserved this issue for appeal by raising that issue in both its Rule 12(b)(6) motion and its joint pretrial order. Additionally, the defendant contends that it raised the issue again in its motion for dismissal and its motion for judgment notwithstanding the verdict. Neither contention has merit.
The defendant filed its Rule 12(b)(6) motion in response to the plaintiff's original complaint. After that motion was denied the plaintiff, with the court's permission, filed a supplemental complaint clarifying her emotional distress claim. The defendant failed to raise the issue of the sufficiency of the complaint with respect to the "supplemental" complaint, thus failing to preserve the issue for appeal. The defendant argues that it was not required to challenge the sufficiency of the supplemental complaint because it, unlike an amended complaint which replaces the original complaint, "merely represents additions to or continuations of the earlier pleading." 6 C. Wright & A. Miller, Federal Practice & Procedure, Sec. 1504 at 540 (1971). According to the defendant, the original complaint remained "live" and its Rule 12(b)(6) motion therefore applies to the supplemental as well as the original complaint.
The defendant's argument misconstrues the basic difference between amended and supplemental claims as set forth by Wright & Miller at the exact section and page cited by the defendant. According to Wright & Miller,
[a]mended and supplemental pleadings differ in two respects. The former relate to matters that occurred prior to the filing of the original pleading and entirely replace the earlier pleading; the latter deal with events subsequent to the pleading to be altered and merely represent additions to or continuations of the earlier pleading. Id. (Emphasis added.)
In other words, the important distinction between amended and supplemental pleading is when the events pleaded occurred. The defendant also ignores the remainder of the cited paragraph in which the authors state:
[p]arties and courts occasionally confuse supplemental pleadings with amended pleadings and mislabeling is common. However, these misnomers are not of any significance and do not prevent the court from considering a motion to amend or supplement under the proper portion of Rule 15. Indeed, the distinction between amendments and supplemental pleadings is sometimes ignored completely. Id. at 541. (Emphasis added.)
In this case the plaintiff's second complaint clearly related to matters that occurred prior to the initial pleading. Therefore, despite its designation as a "supplemental complaint" it was in fact an amended complaint that replaced the original complaint. Therefore, the defendant's Rule 12(b)(6) motion did not address the second complaint.
The defendant's motion to dismiss--filed after the close of the plaintiff's case-in-chief--and its motion for judgment n.o.v. also fail to challenge the sufficiency of the plaintiff's complaint. In its motion to dismiss, the defendant maintains that plaintiff "has failed to present any evidence" of emotional distress or outrageous conduct. This language challenges the sufficiency of the evidence, not the sufficiency of the plaintiff's allegations in her complaint. Similarly, in its motion for judgment n.o.v. the defendant states that the plaintiff "failed to present any competent evidence ..." that plaintiff suffered emotional distress or that defendant acted outrageously. Again, this language challenges the sufficiency of the evidence, not the sufficiency of the allegations in the complaint. We, therefore, conclude that the defendant failed to raise this defense in the trial court.
Perhaps anticipating our response to its arguments that it preserved the issue for appeal, the defendant raises the novel, albeit wholly meritless, argument that the district court had an independent duty itself to determine sua sponte whether the plaintiff's allegations satisfied the threshold requirements of extreme and outrageous conduct. The defendant cites numerous cases in support of its contention that this supposititious duty exists, independent of the adversary process and absent a valid challenge to the complaint by the defendant. In alleging that these cases support its argument the defendant comes dangerously close to playing fast and loose with both the law and this court.
These cases do, in fact, state that in the first instance the court must determine whether a complaint alleges conduct sufficiently outrageous to support an action. In each case, however, the court was required to make that determination by a defendant's challenge to the complaint, either by a motion to dismiss or by a motion for summary judgment. The court has no independent duty to make any such determination. The defendant having failed to preserve the issue, and the district court having no independent duty to do so, it is not properly drawn before us.
A. Facts
The plaintiff was employed as a clerk in the Administrative Department of the defendant's Amarillo office from November 1981, until she was fired in July 1985. All of the clerks in the Administrative Office were women. The defendant's Amarillo office also contained a collection department. Throughout the plaintiff's employment with the defendant, Russ Archer was the Assistant Branch Manager and Joe Lumpkin was the Branch Manager.
During the plaintiff's employment with the defendant the defendant had an established performance review system. Under the system each employee received an annual formal performance review. In addition, the system called for each employee to receive an informal "interim review" between formal annual reviews. The purpose of the interim review was to advise employees of areas in which they might need improvement so that they could adjust their performance before the next annual review.
In November 1982 the plaintiff had her first annual performance review, receiving an overall performance rating of "satisfactory." During the course of the review the plaintiff expressed an interest in transferring to the collection department. A position in this department would have paid higher wages and would have been a promotion. The plaintiff testified that, in response to her expressed interest in a transfer, Mr. Archer, the Assistant Manager, "grinned" and stated that "women usually don't go into that department." As a result of this conversation the plaintiff wrote to the defendant's area regional manager regarding her dissatisfaction with the branch office's policy with respect to hiring women for the collection department. The regional manager responded, acknowledging the plaintiff's ...
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