Nuss v. Central Iowa Binding Corp.

• Citation: 284 F.Supp.2d 1187
• Decision Date: 24 September 2003
• Docket Number: No. 4:03-CV-40383.,4:03-CV-40383.
• Parties: Kesha NUSS, Plaintiff, v. CENTRAL IOWA BINDING CORPORATION d/b/a American Business Phones, Defendant.
• Court: U.S. District Court — Southern District of Iowa

284 F.Supp.2d 1187

Kesha NUSS, Plaintiff, v. CENTRAL IOWA BINDING CORPORATION d/b/a American Business Phones, Defendant.

No. 4:03-CV-40383.

United States District Court, S.D. Iowa, Central Division.

September 24, 2003.

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Gordon R. Fischer, Bradshaw Fowler Proctor & Fairgrove, De Moines, IA, for Plaintiff.

Barbara M. Tapscott, Pingel & Templer PC, West Des Moines, IA, for Defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS

GRITZNER, District Judge.

This matter comes before the Court on Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Clerk's No. 5). A hearing on this motion was held on September 12, 2003. Plaintiff Nuss was represented by Gordon Fischer; Defendant American Business Phones was represented by Barbara Tapscott. For the following reasons, Defendant's Motion to Dismiss is granted as to Count V portion related to disability discrimination, Count VII, and Count VIII, and denied as to Count II. Plaintiff's request for leave to amend Count II of its Petition is hereby granted.

PROCEDURAL BACKGROUND

The Plaintiff, Kesha Nuss ("Nuss"), commenced this action against the Defendant, Central Iowa Binding Corporation, d/b/a American Business Phones ("ABP"), in the Iowa District Court for Polk County on or about June 25, 2003. The lawsuit contains eight claims arising out of ABP's termination of Nuss' employment. On July 10, 2003, pursuant to 28 U.S.C. § 1441(a) and LR 81.1, ABP removed the case to this court. Removal was based on federal question jurisdiction encompassed in 28 U.S.C. § 1331.

On July 18, 2003, ABP filed a motion to dismiss that seeks to eliminate some, but not all, of the claims asserted by Nuss in her petition. Of the eight counts in Nuss' Petition, ABP seeks to dismiss three claims in their entirety and a portion of a fourth. Defendant's motion seeks to dismiss from this lawsuit the following claims: Count II — Fraud; Count V — Iowa Civil Rights Act (portion of claim related to disability discrimination); Count VII — Americans with Disabilities Act; and Count VIII — Wrongful Discharge.¹

BACKGROUND FACTS

Kesha Nuss, a resident of Madison County, Iowa, was employed in a sales position by American Business Phones. ABP is authorized to conduct business in the state of Iowa, and in fact conducts business in Polk County, Iowa. In her position as salesperson, Nuss was headquartered in Polk County, Iowa. Nuss' employment was eventually terminated by ABP, and this lawsuit arises out of the employment relationship and the subsequent discharge.

Nuss alleges that the parties entered into an oral contract in which she was made certain promises concerning compensation, commission, and benefits. She claims she was promised certain support for business development as well as compensation, commissions, and benefits paid pursuant to company policy. Nuss asserts these promises were not met by ABP even though she raised concerns about her compensation, commissions, and benefits during her employment. Specifically, Nuss alleges breach of oral contract² by ABP in "(a) refusing and failing to provide long term opportunities, promised to Nuss at the time of her hiring, including, but not limited to, future promotions; and (b) refusing and failing to pay compensation, commissions, and benefits pursuant to company policy and promised to Nuss during the time of her employment."

ABP denies there was an oral contract between the parties, especially one obligating it to provide Nuss with long-term opportunities and future promotions. ABP maintains that Nuss was an at-will employee of the company.

Nuss further asserts in her fraud count that ABP's promises constitute misrepresentations and fraudulent inducements. She maintains these misrepresentations were intended to induce her to accept and maintain a position as salesperson with ABP and to perform her job to the best of her abilities. Nuss claims the misrepresentations were of material facts, that ABP intended to deceive her, and that she acted in reliance on these misrepresentations in accepting the position with ABP and working to the best of her abilities while employed by them.

Nuss also contends that she was discriminated against on the basis of her gender during her employment with ABP. She claims this discrimination came in the form of statements made by a co-owner of ABP, and in the form of giving priority for sales leads to male employees instead of to her. Some of the comments Nuss cites in her complaint for gender discrimination were that a co-owner stated it was "easier for a man to dress professionally than a woman," along with snide comments about "women and shopping."

Nuss asserts that she complained of the disparate treatment she received. ABP admits that Nuss did approach ABP President Steve Huyette ("Huyette") and raised two concerns: (1) that Larry Collins, Sales Manager at ABP, was spending more time with a male sales consultant, Jason Metzger, than with her; and (2) that she was not being given as many call-in leads as Mr. Metzger. ABP maintains Huyette immediately investigated Nuss concerns.

On or about October 18, 2002, Nuss learned that her father was terminally ill with cancer. She states that she informed the co-owners of ABP of her father's illness that same day. She also informed them she would need time off as a result of her father's illness. ABP admits that Nuss advised the managers at ABP sometime prior to her departure that her father was ill but denies it had knowledge of his medical diagnosis. ABP contends it does not know whether Nuss specifically requested time off because of her father's condition. Nuss alleges that her relationship with her father and her stated need for time off due to his illness played a role in her termination by ABP.

Nuss' employment was terminated by ABP on or about October 20, 2002. Nuss has not been paid any compensation, commission, or benefits by ABP since her termination. She alleges that this is in violation of company policy as well as the promises she was made by ABP. Nuss claims that she was fired after she complained of the disparate treatment she received based on her gender.³ In addition, Nuss asserts her termination was directly tied to her association with someone with a disability. Meanwhile, ABP contends Nuss was terminated for the legitimate and non-discriminatory reason of her failure to meet job expectations.

Nuss filed a civil rights complaint with the Iowa Civil Rights Commission ("ICRC") on or about March 24, 2003. This complaint ("original complaint") was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). The complaint alleged gender discrimination and retaliation. A right-to-sue letter was issued on or about June 19, 2003. This lawsuit was subsequently filed in Polk County, Iowa, prior to its removal to this court. On August 15, 2003, following the filing of Defendant's Motion to Dismiss, Nuss filed a new complaint ("amended complaint") with the EEOC in an attempt to amend her original complaint by adding discrimination due to her connection with a disabled person.

ANALYSIS

A. Standard for Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") allows the court to dismiss a cause of action for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Motions under this rule "can serve a useful purpose in disposing of legal issues with a minimum of time and expense to the interested parties." Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 973 (8th Cir.1968), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969). "The issue is not whether a plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to offer evidence in support of the plaintiff's claims." DeWit v. Firstar Corp., 879 F.Supp. 947, 959 (N.D.Iowa 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989).

In considering a motion to dismiss, the court must accept as true all of the plaintiff's allegations. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Concerned Citizens of Neb. v. United States Nuclear Reg. Comm'n, 970 F.2d 421, 425 (8th Cir.1992). The court must also liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal under Rule 12(b)(6) is not warranted when based solely on a judge's disbelief of the plaintiff's factual allegations. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A court should review only the pleadings in addressing a motion to dismiss to determine whether they state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6); DeWit, 879 F.Supp. at 959. Using these articulated standards, the court now considers in turn each of the arguments made in support of Defendant's motion to dismiss.

B. Motion to Dismiss as to Count II — Fraud

Nuss has asserted fraud as a cause of action in against ABP. Specifically, Nuss claims the promises made to her by ABP constitute misrepresentations and fraudulent inducements that were designed to induce her to accept the salesperson position and to perform her job at a certain level of ability. She also asserts that ABP's failure to deliver on its promises relating to certain compensation, commissions, and benefits constitutes misrepresentation. Nuss claims the misrepresentations were of material facts, that ABP intended to deceive her with these misrepresentations and induce her to accept the position of salesperson with ABP, and that she acted in reliance on these misrepresentations by accepting the position with ABP and working to the best of her abilities while employed by them.

ABP has moved to dismiss this count for failure to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b) ("Rule 9(b)"). Se...