Salazar v. Furr's, Inc.

• Decision Date: 23 January 1986
• Docket Number: No. CIV-84-1769 C.,CIV-84-1769 C.
• Citation: 629 F. Supp. 1403
• Parties: Barbara Loretta (Rehberg) SALAZAR, Plaintiff, v. FURR'S, INC., et al., Defendants.
• Court: U.S. District Court — District of New Mexico

629 F. Supp. 1403

Barbara Loretta (Rehberg) SALAZAR, Plaintiff, v. FURR'S, INC., et al., Defendants.

No. CIV-84-1769 C.

United States District Court, D. New Mexico.

January 23, 1986.

COPYRIGHT MATERIAL OMITTED

Perry C. Abernethy, Franklin, Dunn & Abernethy, Eric Isbell-Sirotkin, Albuquerque, N.M., for plaintiff.

Gardere & Wynne, 1500 Diamond Shamrock Tower, Dallas, Tex., and Duane C. Gilkey, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, N.M., for defendants.

MEMORANDUM OPINION

CAMPOS, District Judge.

This is a suit alleging discriminatory employment policies and practices and seeking relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and under state tort law. Plaintiff asserts eight counts in her Complaint: Count I for unlawful discrimination under Title VII, Count II for abusive discharge, Count III for breach of an implied contract, Count IV for tortious breach of the covenant of good faith and fair dealing, Count V for tortious interference with contractual relations, Count VI for negligence, Count VII for intentional or reckless infliction of emotional distress, and Count VIII for equitable estoppel. Defendants have asserted a variety of jurisdictional challenges, have moved to dismiss all counts except Count III (breach of implied contract), and have moved to strike various allegations contained in the Complaint.

The allegations of the Complaint are taken as true for purposes of ruling on a motion to dismiss. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); Dewell v. Lawson, 489 F.2d 877, 879 (10th Cir.1974). The motion should be granted only if, after liberal construction of the pleadings, there appears no possibility that the Plaintiff can prove a set of facts which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Gasa-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1107 (10th Cir.1973). See also Owens v. Rush, 654 F.2d 1370, 1378-79 (10th Cir.1981).

FACTS

Accordingly, for purposes of this Motion the Court accepts as true the following scenario. Plaintiff began working for Furr's, Inc. on August 10, 1973 as a waitress. Plaintiff became a checker on August 6, 1975. On September 19, 1975 Plaintiff married a man who worked for Smith's Supermarkets. Plaintiff immediately informed Furr's of her marriage and name change and of her husband's employment.

In April 1979, Plaintiff's husband was transferred to the Smith's store in Farmington as store manager. Plaintiff requested and was granted a transfer to Farmington so she could be with her husband. Plaintiff's husband was transferred to a larger Smith's store in Farmington in October 1980 and was again promoted in May 1983. Furr's Inc. at all times knew of Plaintiff's husband's employment, his transfers, and his promotions.

Plaintiff became pregnant in February 1983.

On July 30 and 31, 1983 Defendant Roland Hasenoehrl was in the Farmington Furr's store and saw Plaintiff, who was then six and one-half months pregnant. Hasenoehrl inquired into Plaintiff's personnel record and found that she had always received excellent ratings, had no disciplinary violations, and that her pension rights would vest on August 10, 1983.

On August 8, 1983, Hasenoehrl personally ordered the Furr's store manager to fire Plaintiff immediately, before August 10, 1983. The grounds for termination were that "she was married to a husband who was working for Smith's—a competitor."

On August 10, 1983, the store manager asked Plaintiff to work overtime. Although she was tired because of her pregnancy, Plaintiff agreed to work an additional hour. At 5:30 that evening the store manager told plaintiff that, effective August 13, 1983, she was fired for being married. Plaintiff was extremely upset, had difficulty sleeping for several weeks, and was forced to consult her physician. Later Plaintiff was told that her pension benefits did not vest because a union contract required 440 hours of work after the 10-year vesting period.

Plaintiff was terminated as a Furr's employee on August 13. She lost her seniority and her dental and medical benefits, including pregnancy benefits.

Furr's published a handbook of "Store Rules" which includes 16 pages of violations that can result in termination. Being married to an employee of a competitor is not mentioned among the grounds for termination. Plaintiff was never informed of such a rule. Plaintiff alleges that Furr's, Inc. has an unwritten policy promulgated by Defendant Hasenoehrl to fire all female employees who are pregnant and, to prevent payment of benefits, to fire all female employees who have seniority.

Plaintiff pursued her administrative remedies with the EEOC. She received a Notice of Right to Sue on September 7, 1984. This suit was filed on November 29, 1984.

JURISDICTIONAL CHALLENGES

A. Insufficiency of Process. Defendants assert in their Motion to Dismiss that service on Defendants was insufficient because the Summons named the Defendants "Furr's Supermarket, a Texas corporation" and "Roland Hasenoehrl, President of Furr's Supermarkets, Inc." The correct name of the corporate Defendant is "Furr's, Inc."

During the pendency of this Motion to Dismiss, this Court granted Plaintiff's Motion for Leave to Amend her Complaint to correct the name of the corporate Defendant. Plaintiff will be given a reasonable period of time to correct service of process. The Motion to Dismiss on these grounds will not be entertained at this time.

B. Failure to Join an Indispensable Party. Defendants argue that because of the misnomer of Furr's, Inc. in the style of the case and on the Summons, Furr's, Inc., an indispensable party, was not joined, thus warranting dismissal under Fed.R.Civ.P. 12(b)(7). This argument, too, has been mooted by granting Plaintiff's Motion for Leave to Amend the Complaint. The Order granting that Motion held that under Fed.R.Civ.P. 15(c) the amendment adding Furr's, Inc. as a party would relate back to the original filing of the Complaint. Furr's, Inc. argues that it cannot now be joined as a party because it did not receive notice of this action until after the statutory time period had passed. However, under 42 U.S.C. § 2000e-5(f)(1) Plaintiff was required to bring suit, not provide notice to Defendants, within ninety days of the right-to-sue letter. Because Plaintiff's amendment relates back to the commencement of the action, Furr's, Inc. can be made a party without violating the ninety-day requirement.

C. Amount in Controversy. Plaintiff claims subject matter jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. Alternatively, she bases jurisdiction on a federal question, with pendent jurisdiction over her state claims. Defendants argue that Plaintiff failed to allege permissible damages in an amount which would satisfy the $10,000 amount in controversy requirement of 28 U.S.C. § 1332. The Court disagrees.

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 854 (1938), set the standard for a jurisdictional inquiry into the amount in controversy. It must appear "to a legal certainty" that the claim is really for less than the requisite amount to justify dismissal. Id. at 288-89. See also Gibson v. Jeffers, 478 F.2d 216, 221 (10th Cir.1973). Generally, "the sum claimed by the plaintiff controls if this claim is apparently made in good faith." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. at 288, 58 S.Ct. at 590. However, once the amount has been challenged, the party asserting jurisdiction has the burden of showing that it does not appear to a legal certainty that the claim is for less than $10,000. Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939); Gibson v. Jeffers, 478 F.2d at 221. Where allegations of jurisdictional facts are challenged, plaintiff must support them by competent proof, McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936), including amendment or affidavits, if necessary. Diefenthal v. C.A.B., 681 F.2d 1039, 1052 (5th Cir.1982). But Plaintiff is entitled to the benefit of facts she could conceivably prove in support of her jurisdictional allegations. Lichter v. Paine, Webber, Jackson & Curtis, Inc., 570 F.Supp. 533, 536 (N.D.Ill.1983).

Even considering only Plaintiff's claims for back pay and lost medical, dental and pension benefits, as asserted under Count I, we cannot say to a legal certainty that Plaintiff has not met the amount in controversy requirement. Defendants argue that the uncertainty of Plaintiff's alleged damages renders them inadequate to meet the jurisdictional amount. However, some uncertainty is expected. The Court should not require that Plaintiff prove the merits of her case in response to a jurisdictional challenge and should be especially reluctant to dismiss where a ruling on the amount in controversy is also a determination of the merits. Gibson v. Jeffers, 478 F.2d at 220, 221; Jaconski v. Avisun Corp., 359 F.2d 931, 935 (3d Cir.1966); Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969). The Court finds that Plaintiff has diversity jurisdiction under 28 U.S.C. § 1332.

D. Pendent State Claims. Because Plaintiff has diversity jurisdiction over all her claims, we need not consider Defendants' arguments urging dismissal of any pendent state claims.

Count I. Title VII Claim.

A. Defendants seek dismissal of the Title VII count of Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Defendants make a weak attempt to dismiss on the ground that discharging an employee because she is married to a competitor's employee does not violate Title VII. Obviously Plaintiff is alleging that this was not the real reason for her discharge. Plaintiff recites facts which, if proved, would support her theory that she was in fact terminated because she...