Rositano v. FreightWise, LLC
| Decision Date | 26 March 2021 |
| Docket Number | No. 3:20-cv-00420,3:20-cv-00420 |
| Parties | ALEXIS ROSITANO, Plaintiff, v. FREIGHTWISE, LLC and RICHARD HOEHN, individually, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
Following her termination, Alexis Rositano brought this fourteen-count action against her former employer FreightWise, LLC ("FW") and supervisor Richard Hoehn, alleging various tort claims, statutory violations, and a breach of contract claim. Before the Court is FW's Partial Motion to Dismiss Counts IV, VII, VIII, X, XII, XIII, and XIV of the Second Amended Complaint (Doc. No. 34), to which Rositano has responded in opposition (Doc. No. 37) and FW has replied (Doc. No. 38). For the following reasons, FW's motion will be granted in part and denied in part.
The 80-page, 500-paragraph Complaint alleges that on December 14, 2018, Rositano began working for FW as an invoice preprocessor, which involved reviewing invoices and checking their accuracy. (Compl. ¶¶ 18-20). Rositano "worked on site [at FW], had little to no control over how her work was performed, did not create her own hours, and . . . routinely worked a 9 or 10 hourday[.]"2 (Id. ¶¶ 28-29). Her supervisor, Richard Hoehn, was a member of FW and the "CIO/CTO" of the company. (Id. ¶¶ 4, 32). In these roles, Hoehn "had the authority to set policy and exercise control, discretion, and independent judgment over a significant scope of [FW]'s business," and "had the power to modify the terms and conditions of Rositano's employment," including the ability to fire her. (Id. ¶¶ 375, 425, 484).
Rositano alleges that shortly after she started working for FW, Hoehn became romantically interested in her. (Id. ¶¶ 32, 35). Hoehn demonstrated his interest by commenting on Rositano's appearance, calling her a "tease," asking if he could see nude photos of her on her cellphone, and frequently requesting that Rositano have drinks or spend time with him outside of work. (Id. ¶¶ 37-38, 45-47, 53, 76). Between March 30, 2019 and May 6, 2019, Hoehn also tried to kiss Rositano multiple times, including in an empty space in FW's office building, in a FW stairwell, and in a car leaving an after-hours work event. (Id. ¶¶ 61-63, 71-75, 79-80).
Hoehn's efforts to pursue Rositano culminated on the evening of May 21, 2019, when Rositano alleges he raped her. (See id. ¶¶ 190-210). On that day, Hoehn asked Rositano to have dinner with him at the Honeysuckle restaurant after work to discuss "big news" and "exciting information about her job." (Id. ¶¶ 191, 408). Rositano agreed to the meeting because she "believed . . . it was strictly work related," and the two left from FW to Honeysuckle in Rositano's car. (Id. ¶¶ 192-93). At Honeysuckle, "Hoehn became intoxicated or was in the process thereof," encouraged Rositano to drink alcohol, and made vague references to a potential promotion. (Id. ¶¶ 194, 409). After leaving Honeysuckle and while driving back to FW, Hoehn suggested they continue "hanging out" at the Tin Roof bar so "they could talk about the job." (Id. ¶ 195).
At the Tin Roof bar, Hoehn "advised Rositano that he was going to talk with [CEO Christopher] Cochran and [Human Resources specialist] Julie Kinnard about a promotion for Rositano the next day and that she was going to get the promotion." . However, he also allegedly stated that "I got you this promotion [and] covered for your lateness," and (Id. ¶¶ 197-98). Rositano declined Hoehn's invitation for sex but continued drinking alcohol paid by Hoehn and/or FW. (Id. ¶ 199). As the two were driving home from the Tin Roof later that night, Hoehn demanded that Rositano pull over the car, took the keys out of the ignition, and pulled her into the back seat to sit next to him. (Id. ¶¶ 201-04). The Complaint alleges that Hoehn then forced himself on top of Rositano and sexually penetrated her without her consent. (Id. ¶¶ 205-10). As a result of this incident, Rositano was diagnosed with acute post-traumatic stress disorder, depression, and anxiety, and now has trouble sleeping and experiences other difficulties. (Id. ¶¶ 355, 357, 368).
Exhibit 1 to the Complaint shows that Rositano and Hoehn sent several work-related and personal text messages to each other before and after the May 21, 2019 incident. (See Doc. No. 31 at 82-154). For example, Rositano once sent a message about "a good deal" for a computer, and Hoehn responded: (See id. at 118; see also Compl. ¶¶ 250-51). Many of these messages also involved Rositano explaining why she would be missing work or coming in late that day. (See Doc. No. 1 at 85 (May 9-10, 2019), 93-94 (May 16, 2019), 99-100 (May 17, 2019), 108-09 (May 22, 2019), 110 (May 28, 2019), 111-112 (May 29, 2019), 117 (June 17, 2019), 122-123 (June 24, 2019), 124-125 (June 28, 2019), 127 (July 2, 2019), 128 (July 3, 2019), 130 (July17, 2019), 133 (July 19, 2019); see also Compl. ¶¶ 111, 147, 173, 214, 219, 222, 266, 279, 288, 302).
On July 25, 2019, Rositano messaged Hoehn that she did not want to go on a walk with him and stated: (Compl. ¶ 305; Doc. No. 1 at 135). Hoehn called her later that day, and "Rositano specifically told Hoehn that what he had done to her at the Tin Roof was wrong." (Compl. ¶ 308). The Complaint alleges that, in response, Hoehn told "Rositano that she was lying about not being interested in him because she had misplaced feelings of guilt, shame and regret[.]" (Id.). Rositano did not go to work the next day (a Friday) or the following Monday. (Id. ¶¶ 312, 315). She also arrived late to work on several days in August 2019, including on August 20, 2019, when she told Hoehn that she had a "doctor appointment" and would not be on time. (Id. ¶¶ 327, 331, 334, 340, 342). The last text message in Exhibit 1 is from Hoehn stating: (Doc. No. 31 at 148).
Later that day, Rositano's doctor informed FW that Rositano needed to take a leave of absence until August 30, 2019. (Compl. ¶ 347). Kinnard responded that "there was no FMLA leave and that, while Rositano may have short term disability, that is something Rositano must discuss with her supervisor, Richard Hoehn, and [he] would then discuss with Human Resources." (Id. ¶ 349). Rositano's doctor sent FW another letter on August 30, 2019, stating that her leave needed to be extended through September 11, 2019. (Id. ¶ 350). On September 3, 2019, Hoehn terminated Rositano's employment for "tardiness and job abandonment." (Id. ¶ 351).
Based on the circumstances leading to her termination, Rositano brought fourteen claims against FW and Hoehn under federal and Tennessee law. FW now moves to dismiss seven of those claims under Federal Rule of Civil Procedure 12(b)(6).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "the complaint must include a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ryan v. Blackwell, 979 F.3d 519, 524 (6th Cir. 2020) (quoting Fed. R. Civ. P. 8(a)(2)). When determining whether the complaint meets this standard, the Court must accept all of the complaint's factual allegations as true, draw all reasonable inferences in the plaintiff's favor, and "take all of those facts and inferences and determine whether they plausibly give rise to an entitlement to relief." Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Moreover, the Court must determine only whether "the claimant is entitled to offer evidence to support the claims," not whether the plaintiff can ultimately prove the facts alleged, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232 (1974)). And "[w]hile the complaint '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 a cause of action's elements will not do.'" Blackwell, 979 F.3d at 524 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
FW has moved to dismiss Rositano's claims for vicarious liability for Hoehn's alleged torts (Count IV); constructive discharge (Count VII); retaliation (Count VIII); wage violations (Count X); negligent retention/supervision (Count XII); removal of punitive damage caps (Count XIII); and breach of contract (Count XIV). The Court will address each of these counts in turn.
In Count IV, Rositano claims that FW is vicariously liable for Hoehn's alleged sexual battery, false imprisonment, and intentional or negligent infliction of emotional distress towards Rositano, as alleged in Counts I, II, and III. (Compl. ¶¶ 406-19). FW moves to dismiss Count IV,arguing that it cannot be held vicariously liable because (1) Rositano's claim is barred by the Tennessee Worker's Compensation Act ("TWCA"), and (2) "Hoehn could not have been acting within the scope of his employment or on FW's business when the alleged rape occurred." (Doc. No. 35 at 3-5).3
FW argues that Count IV should be dismissed because Rositano's sole avenue for relief, if any, against FW for Hoehn's allegedly tortious conduct is a workers' compensation claim under the TWCA. (Doc. No. 35 at 5). Section 50-6-108(a) of the TWCA provides that "the rights and remedies granted to an employee subject to this chapter, on account of personal injury or death by accident . . . shall exclude all other rights and remedies of the employee . . . at common law or otherwise, on...
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