Parsons v. Nationwide Mut. Ins. Co.

• Decision Date: 23 June 1995
• Docket Number: No. 95-62-CIV-FTM-17D.,95-62-CIV-FTM-17D.
• Parties: Tara PARSONS, Jodi Selph and Eva MacDonald, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Nationwide Mutual Fire Insurance Company, Nationwide Life Insurance Company, Nationwide General Insurance Company, Nationwide Property and Casualty Insurance Company, Nationwide Variable Life Insurance Company, Colonial Insurance Company of California, and Jim R. Walker, Defendants.
• Court: U.S. District Court — Middle District of Florida

889 F. Supp. 465

Tara PARSONS, Jodi Selph and Eva MacDonald, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Nationwide Mutual Fire Insurance Company, Nationwide Life Insurance Company, Nationwide General Insurance Company, Nationwide Property and Casualty Insurance Company, Nationwide Variable Life Insurance Company, Colonial Insurance Company of California, and Jim R. Walker, Defendants.

No. 95-62-CIV-FTM-17D.

United States District Court, M.D. Florida, Fort Myers Division.

June 23, 1995.

Peter Michael De Manio, De Manio & Young, P.A., Sarasota, FL, Mark A. Draper, Farr, Farr, Haymans, Moseley, Emerich & Sifrit, P.A., Punta Gorda, FL, Connie M. Schider, Farr, Farr, Emerich, Sifrit, Hackett & Carr, P.A., Punta Gorda, FL, for Tara Parsons, Jodi Selph, Eve MacDonald.

Kalvin M. Grove, Fox & Grove, Chartered, St. Petersburg, FL, for Nationwide Mut. Ins. Co., Nationwide Mut. Fire Ins. Co., Nationwide Life Ins. Co., Nationwide Gen. Ins. Co., Nationwide Property and Cas. Ins. Co., Nationwide Variable Life Ins. Co., Colonial Ins. Co. of California.

Daniel H. Kunkel, Kunkel & Hament, Sarasota, FL, Michael G. Fink, Fink & Lane, P.A., Ft. Myers, FL, for Jim R. Walker.

KOVACHEVICH, District Judge.

ORDER ON DEFENDANT'S MOTIONS TO STRIKE AND DISMISS

This cause is before the Court on Defendant Walker's motion to strike certain allegations from Plaintiff's initial complaint (Dkt. Nos. 15, 16) and on Defendant Walker's motion to dismiss Counts I, II, IV, V, VII, VIII and X of the complaint, and response thereto (Dkt. Nos. 17, 18, 22).

BACKGROUND

This case involves Plaintiffs' claims that the alleged actions of the Defendants constituted sexual harassment (Counts I, IV, and VII) and retaliation (Counts II, V, and VIII) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., and the Civil Rights Act of 1991, ("Title VII"). Plaintiffs further allege claims of intentional infliction of emotional distress (Counts III, VI, and IX), and Plaintiff MacDonald has an individual claim of defamation (Count X).

Defendant Walker requests in his motion to dismiss that this Court dismiss Counts I, II, IV, V, VII, VIII, and X, as they apply to him, for the following reasons:

(i) The Complaint fails to state a claim for which relief can be granted as to Defendant Walker individually with respect to all counts of sexual harassment and retaliation under Title VII.

(ii) The Complaint fails to satisfy the pleading requirements of Fed.R.Civ.P. 8(a) with respect to this Court's subject matter jurisdiction over all Title VII claims.

(iii) The Complaint fails to state a claim for which relief can be granted as to all counts of sexual harassment and retaliation under Title VII because Plaintiffs failed to allege in their Complaint that all conditions precedent to the institution of this lawsuit have been fulfilled.

(iv) Plaintiff MacDonald fails to state a claim for which relief can be granted with respect to her defamation claim.

Defendant Walker's motion to strike certain allegations from the complaint centers around his assertion that this Court, pursuant to Fed.R.Civ.P. 12(f), should strike paragraph 75, which alleges that Defendant Walker "poisoned and killed horses for eating shrubs on his property and shot dogs that wandered onto his property", and portions of paragraphs 18, 46 and 70 which allege that the Defendant Walker "frequently made degrading comments about ... minorities." Defendant asserts that these allegations are either redundant, immaterial, impertinent, or scandalous, and that pursuant to Fed.R.Civ.P. 12(f) these allegations should be stricken from the Complaint.

In order to fully evaluate Defendant's Motion to Dismiss, it is necessary to briefly recite the facts alleged in this complaint. Plaintiffs (Parsons, Selph and MacDonald) were each employed on the office staff at Nationwide Mutual Insurance. Defendant Walker was also employed by Nationwide, and during the scope of this employment Defendant Walker alleged orally published "rude and offensive speculations" about Plaintiffs sexual practices, gave detailed accounts of his own sexual exploits, made unwelcome sexually suggestive comments to Plaintiffs and generally created a sexually graphic and offensive work environment. After the occurrence of the alleged events, each of the Plaintiffs were discharged from employment at Nationwide. As a result of these supposed actions, Plaintiffs brought suit against Defendants Walker and Nationwide.

Plaintiffs allege that Defendants (hereinafter "Walker" and "Nationwide") are joint employers of Plaintiffs because of Nationwide's "exercise of substantial control of the business of Defendant Walker including ownership of accounts, equipment and contracts, the interrelationship of operations, and the centralized control of labor relations and common management." However, Plaintiffs fail to specifically allege in the complaint what Walker's role is within Nationwide. Furthermore, there is no mention of Walker's official capacity or job title at Nationwide; it may only be inferred that Walker held some form of supervisory control over Plaintiffs.

STANDARD OF REVIEW

A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In reviewing a motion to dismiss, the court is required to view that complaint in the light most favorable to the Plaintiff and accept all allegations as true. Colodny v. Iverson, Yoakum, Papiano & Hatch, 838 F.Supp. 572 (M.D.Fla.1993) (citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Such a motion should be granted only where the Plaintiff can prove no set of facts upon which relief could be granted. National Organization for Women v. Scheidler, ___ U.S. ___, ___, 114 S.Ct. 798, 803, 127 L.Ed.2d 99 (1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 71-73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)).

DISCUSSION

I. THE COMPLAINT FAILS TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED AS TO DEFENDANT WALKER INDIVIDUALLY WITH RESPECT TO ALL COUNTS OF SEXUAL HARASSMENT AND RETALIATION UNDER TITLE VII.

Walker moves to dismiss the sexual harassment and retaliation claims against him because he alleges that he is being sued in his individual capacity as a result of his employment at Nationwide. In support of his motion, Walker relies on an opinion rendered by the Eleventh Circuit Court of Appeals prior to the 1991 amendment of Title VII: Busby v. City of Orlando, 931 F.2d 764 (11th Cir.1991) (per curiam). In Busby, the court wrote that, "Individual capacity suits under Title VII are ... inappropriate." Id. at 772. The court professed that, "The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act," and "the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly." (internal citations omitted) (emphasis in original). The crux of Busby is that, even though Congress defined "employer" to include any "agent," 42 U.S.C. § 2000e(b), this provision does not impose individual liability but only holds the employer accountable for the acts of its individual agents. Smith v. Capitol City Club of Montgomery, 850 F.Supp. 976 (M.D.Ala. 1994).

Title VII prevents "employers" from discriminating on the basis of race, color, religion, sex or national origin. Marshall v. Miller, 873 F.Supp. 628 (M.D.Fla. 1995) (citing 42 U.S.C. § 2000e-2(a)(1) (1988)). An employer is defined as "a person engaged in an industry affecting commerce ... and any agent of such person." Id. at 630. Even though such a definition might be construed so as to impose liability on individual employees as "agents," the Eleventh Circuit has held that agents of employers who violate Title VII provisions only trigger an action against the employer, and not an action against the individual agent/employee. Id. at 631. See also Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557-59 (11th Cir.1987). Moreover, the law in the Eleventh Circuit has been settled that there is no individual liability under Title VII. Smith at 980. "If Congress had envisioned individual liability under Title VII for compensatory or punitive damages, it would have included individuals in this litany of limitations and would have discontinued the exemption for small employers." Miller v. Maxwell's Intern. Inc., 991 F.2d 583, 588 (9th Cir.1993).

Having determined that the Eleventh Circuit follows an approach which does not recognize individual liability for Title VII claims, it is necessary to determine whether Walker should be viewed as an "employee" of Nationwide or, in the alternative, as an "employer" of Plaintiffs. In Plaintiff's Response to Defendant's Motion to Dismiss (Docket No. 22) it is asserted that Walker and Nationwide were joint employers of Plaintiffs under a single enterprise theory. Plaintiffs cite to Stockett v. Tolin, 791 F.Supp. 1536 (S.D.Fla.1992) as support for their theory that Defendants Walker and Nationwide functioned as an integrated enterprise. In Stockett, the court found that the defendant corporations management services were so similar and interrelated that the corporations constituted a single employer under Title VII guidelines. However, Stockett is distinguishable from the instant case in that Stockett dealt with two (2) defendant corporations and the instant case contains an individual and a corporation. Walker is being sued in his individual capacity, not as a corporate entity, and so Plaintiffs' argument that Nationwide and Walker were joint employers is thus without merit.

Based on the complaint, this Court finds that Walker was not functioning as an employer of Plaint...