Reiber v. Mathew

• Decision Date: 25 September 2017
• Docket Number: Case No. 1:17–CV–33
• Citation: 271 F.Supp.3d 968
• Parties: Robin REIBER and Gary Reiber, Plaintiffs, v. Dr. John MATHEW, Curo Health Services, LLC and Southern Care Hospice, Inc., Defendants.
• Court: U.S. District Court — Northern District of Indiana

271 F.Supp.3d 968

Robin REIBER and Gary Reiber, Plaintiffs,

v.Dr. John MATHEW, Curo Health Services, LLC and Southern Care Hospice, Inc., Defendants.

Case No. 1:17–CV–33

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

Signed September 25, 2017

Andrew S. Williams, Michelle K. Floyd, Hunt Suedhoff Kalamaros LLP, Fort Wayne, IN, for Plaintiffs.

Rachel J. Guin–Lowry, Timothy A. Manges, Eilbacher Fletcher LLP, Fort Wayne, IN, Alan L. McLaughlin, Emily L. Connor, Littler Mendelson PC, Indianapolis, IN, Kevin S. Mullen, PHV, Littler Mendelson PC, Austin, TX, for Defendants.

OPINION AND ORDER

William C. Lee, JudgeThis 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.

PROCEDURAL AND FACTUAL BACKGROUND

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.

STANDARD OF REVIEW

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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). 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, 127 S.Ct. 1955 (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, 129 S.Ct. 1937.

DISCUSSION

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...