Pineda v. PRC, LLC
| Decision Date | 22 July 2011 |
| Docket Number | CASE NUMBER: 1:11-CV-20894-JLK |
| Parties | NANCY PINEDA Plaintiff, v. PRC, LLC d/b/a PRECISION RESPONSE CORPORATION, Defendant, |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE comes before the court upon Defendants' Motion to Dismiss Counts III and IV of the Complaint (D.E. # 5), filed on April 8, 2011. Therein, Defendant seeks dismissal of Plaintiff's claims for negligent supervision and retention (Count III) and breach of implied in fact contract (Count IV).1 (D.E. # 1). The Court is fully briefed in the matter.2 Upon careful review of the record and applicable legal authority, the Court finds that Defendants' Motion to Dismiss Count III must be denied, and Count IV must be granted.
I. Background
Plaintiff Pineda is a former employee of Defendant PRC, LLC ("PRC"). She worked for PRC as a sales representative in a call center for approximately five years. Compl. ¶7. Plaintiff was an at-will employee with no written employment contract. Plaintiff alleges that during her employment with PRC, she was continually subjected to a sexually hostile work environment by a fellow employee, Kelly Wright ("Wright"). Compl. ¶8. Specifically, Wright persistently asked Plaintiff out on dates, leered at Plaintiff in a sexual way, and touched her in a sexual way. Compl. ¶9. Plaintiff openly complained about her treatment, but did not file a formal written complaint. Compl. ¶. 10.
On September 3, 2009, Mr. Wright's advances toward Plaintiff finally culminated in a particularly egregious incident. While Plaintiff was on the telephone with a customer, "Wright, standing, pressed close to [Plaintiff], who was sitting, so that his penis was in close proximity to and aligned with her face in an overtly sexual manner." Compl. ¶ 11. Although Plaintiff asked Mr. Wright to move, he refused. Compl. ¶11. Following this incident, Plaintiff formally complained to her supervisor. Compl ¶12. After learning of plaintiff's complaint, Mr. Wright began screaming derogatory remarks at her, and subsequently had to be removed from the office. Compl. ¶12. Plaintiff filed a written report with Defendant's Human Resources Department. Id. PRC took no action against Mr. Wright regarding the September 3, 2009, incident. Compl. ¶13.
Plaintiff was later disciplined and placed on final warning. Compl. ¶14. On October 27, 2009, PRC's Vice President of Client Services, Mabel Rodriquez, listened to a single sales call, and then terminated Plaintiff for failure to follow the company'srequired call components. Compl. ¶15. plaintiff's termination occurred two months after she filed her formal complaint against Wright. Compl. ¶15. Plaintiff claims the given reason for her termination was pretextual, and she was in fact fired in retaliation for her complaint against Wright. Compl. ¶ 16. Plaintiff filed this action on March 15, 2011 (D.E.#1).
The requirements of a motion to dismiss are well known: for the purpose of such a motion, "the Court must view the allegations of the complaint in the light most favorable to Plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom." Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003). A complaint may only be dismissed if the facts as pleaded fail to state a facially plausible claim to relief. See Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1968-69, 1974 (2007) (); Marsh v. Butler County, Ala., 268 F.3d 1014, 1037 (11th Cir. 2001) (en banc) (). The issue is not whether the Plaintiff will ultimately prevail, but "whether the claimant is entitled to offer evidence to support the claims." Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986) (citations omitted). In arriving at its determination, a court must "limit its consideration to the pleadings and exhibits attached thereto." Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006).
In Count III of her Complaint, Plaintiff asserts a cause of action for Negligent Supervision and Retention. Plaintiff claims that PRC should have realized she was being sexually harassed by Wright and taken steps to stop it. Defendant argues that Count III must be dismissed because Plaintiff has failed to allege an underlying common law tort and failed to satisfy Florida's "impact rule."
"Negligent retention and supervision occurs when, during the course of employment, the employer becomes aware, or should have become aware, of problems with an employee that indicates his unfitness, and the employer fails to take further action such as investigation, discharge, or reassignment." Grice v. Air Prods, and Chem., Inc., Case No. 3:98cv205/RV, 2000 WL 353010, at *15 (N.D. Fla. Feb. 17, 2001) (citing Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744, 753 (Fla. 1st DCA 1991)). In addition, to allege a claim for negligent supervision and retention, "the underlying wrong . . . must be a common law tort." Gutman v. Quest Diagnostics Clinical Labs., Inc., 707 F.Supp. 2d 1327, 1331 (S.D. Fla. 2010). Defendant PRC correctly points out that sexual harassment is not a common law tort under Florida law. Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1030 (Fla. 1st DCA 2002) ().
However, battery is a common law tort, and allegations of battery can support a claim for negligent supervision and retention. Samedi v. Miami-Dade County, 134 F.Supp. 2d 1320, 1353 n.30 (S.D. Fla. 2001) (Hoeveler, J.) (). Here, Plaintiff has adequately pled that she was touched without her consent by Defendant's employee, Wright. These allegations of battery are sufficient to support plaintiff's claim for negligent retention and supervision.3 Count III may not be dismissed on this basis.
Florida's "impact rule" limits the availability of damages for emotional or mental injuries in negligence cases. The Third District Court of Appeal aptly explained the impact rule in Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517, 526 (Fla. 3d DCA 1986):
In Florida, the prerequisites for recovery for negligent infliction of emotional distress differ depending on whether the plaintiff has or has not suffered a physical impact from an external force. If the plaintiff has suffered an impact, Florida courts permit recovery for emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself. If, however, the plaintiff has not suffered an impact, the complained-of mental distress must be "manifested by physical injury."
Id. Thus, if a plaintiff has suffered a physical impact, the impact rule does not apply to preclude damages. Willis v. Gami Golden Glades, LLC, 967 So. 2d 846, 850 (Fla. 2007) ().
Here, Defendant argues Count III should be dismissed because Plaintiff has not alleged any physical injury giving rise to her damages. However, under Florida law, Plaintiff need not allege an actual physical injury to avoid the impact rule. "Impact" is not synonymous with "injury." Rather, "the essence of impact ... is that [an] outside force or substance, no matter how large or small, visible or invisible, and no matter that the effects are not immediately deleterious, touch or enter into the plaintiff's body." Eagle-Picher, 481 So. 2d at 527. Thus, "for a plaintiff to have endured a contact sufficient to render an action sustainable, the plaintiff need only meet slight requirements." Futch v. Wal-Mart Stores, Inc., 988 So. 2d 687, 629 (Fla. 1st DCA 2008) (citing Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007)). For example, in Willis, a hotel patron who was robbed at gunpoint in the hotel parking lot sued the hotel for her emotional distress. 967 So. 2d at 848-9. The robber placed his gun to the plaintiff's head and patted down her body with his hands. Id. at 849. There was no allegation that this contact physically injured the plaintiff. See id. Nonetheless, the Florida Supreme Court held these instances of "actual physical contact" "more than satisfy the] definition" of impact. Id. at 850-51. In so holding, the Court explained: Id. at 850.
Thus, "the impact rule bars only cases in which the plaintiff claims mental or emotional injury but has not sustained any physical contact." Futch, 988 So. 2d at 691 (). Here, Plaintiff Pineda has alleged that she "sustained physical contact" at the hands of Wright. Accordingly, her claim for negligent supervision and retention is not barred by Florida's impact rule.
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