Thompto v. Coborn's Inc.

Decision Date23 November 1994
Docket NumberNo. C 93-3046.,C 93-3046.
Citation871 F. Supp. 1097
PartiesTressa A. THOMPTO, Plaintiff, v. COBORN'S INCORPORATED, Defendant.
CourtU.S. District Court — Northern District of Iowa

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Gary E. Leonard of Alderson, Ondov, Leonard, Sween & Rizzi, P.A., Austin, MN, for plaintiff Tressa Thompto.

Robert S. Kinsey, III, of Brown, Kinsey & Funkhouser, Mason City, IA, for defendant Coborn's Inc.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
                TABLE OF CONTENTS
                I. PROCEDURAL BACKGROUND ............................................... 1103
                 II. STANDARDS FOR SUMMARY JUDGMENT ...................................... 1104
                III. FINDINGS OF FACT .................................................... 1106
                     A. Undisputed Facts ................................................. 1106
                     B. Disputed Facts ................................................... 1107
                 IV. LEGAL ANALYSIS ...................................................... 1108
                     A. Tort Claims And Iowa Code Ch. 216 ................................ 1108
                     B. The Claim Of Wrongful Discharge In Violation Of Public Policy .... 1111
                        1. Public Policy And Inquiries About Insurance Benefits .......... 1114
                        2. Public Policy And Threats To Consult An Attorney .............. 1116
                     C. The Intentional Infliction Of Emotional Distress Claim ........... 1122
                        1. Elements Of The Tort .......................................... 1122
                        2. The Outrageousness Of Defendant's Conduct ..................... 1122
                        3. Sufficiency Of Plaintiff's Emotional Distress ................. 1124
                     D. The Defamation Claim ............................................. 1124
                        1. Defamation And Defamation "Per Se" ............................ 1124
                        2. Qualified Privilege ........................................... 1125
                  V. CONCLUSION .......................................................... 1129
                

BENNETT, District Judge.

Defendant employer has moved for summary judgment on three of the seven counts in a former employee's lawsuit arising out of the termination of the employee's at-will employment. First, the employer has moved for summary judgment on the former employee's claim of wrongful or retaliatory discharge in violation of public policy. The former employee asks this court to extend the public policy exception to at-will employment to protect her from discharge allegedly based on her inquiries about cancer insurance coverage and requests for an explanation of why that coverage was not available, and her threats to consult a lawyer to assist her in obtaining coverage or an explanation. The employer seeks summary judgment on this claim on the ground that, even assuming the former employee was terminated for the reasons she suggests and not for poor performance as asserted by the employer, no clearly articulated public policy of this state is implicated by the former employee's termination. Second, the employer seeks summary judgment on the former employee's claim of intentional infliction of emotional distress on the ground that no conduct alleged is sufficiently outrageous as a matter of law to support the claim. Third, the employer seeks summary judgment on the former employee's claim of defamation, asserting a qualified privilege to make limited publication of the negative evaluations of the former employee's performance upon which the defamation claim is based. The parties have also agreed to dismissal of all or parts of other counts in the former employee's complaint.

I. PROCEDURAL BACKGROUND

Plaintiff Tressa A. Thompto filed her complaint against defendant Coborn's Incorporated on June 28, 1993, alleging age and sex discrimination, breach of contract, and tortious conduct arising out of her termination as deli manager of the Cash Wise Store in Mason City, Iowa, which is owned and operated by Coborn's. Thompto's complaint is in seven counts. Count I alleges sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). Count IV alleges failure to provide insurance benefits in violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. The remaining claims are pendant state-law claims. Count II alleges age and sex discrimination in violation of the Iowa Civil Rights Act, Iowa Code § 601A.6(1)(a) (now Iowa Code § 216.6(1)(a)). Count III alleges breach of contract for failure to provide cancer insurance. Count V alleges common-law wrongful or retaliatory discharge for inquiring about cancer insurance coverage and requesting an explanation for why the coverage was not available, and for threatening to consult a lawyer to obtain such coverage or an explanation. Count VI alleges common-law defamation as the result of alleged publication of unfavorable employment evaluations and false grounds for termination. Count VII alleges common-law intentional infliction of emotional distress as the result of all of the conduct alleged in the other counts of the complaint.

Coborn's answered the complaint on October 1, 1993. On September 23, 1994, Coborn's filed its first amended answer to the complaint to add as an affirmative defense to all complaints Thompto's failure to mitigate damages, and to add qualified privilege as an affirmative defense to the defamation claim in Count VI. Apparently because the parties did not contemplate any amendments in their scheduling report filed October 27, 1993, no deadline for filing of amendments was established. However, because the amendment here follows by more than twenty days the filing of the original answer, Coborn's requires leave of the court to file the amendment. That leave is hereby granted.

On October 11, 1994, Coborn's moved for partial summary judgment in its favor on three of the seven counts of the complaint. First, Coborn's argues that it is entitled to summary judgment on Thompto's claim of wrongful or retaliatory discharge, Count V, on the ground that the Iowa Supreme Court has never recognized a public policy exception protecting an at-will employee from termination on the basis of that employee's inquiries concerning insurance coverage. Thompto resists summary judgment on this count on the ground that there is a genuine issue of material fact as to whether or not she was terminated for discriminatory or retaliatory reasons rather than for poor performance as alleged by Coborn's, and on the ground that this court should recognize a public policy exception to termination of an at-will employee protecting her from termination for inquiring about cancer insurance coverage and for threatening to consult a lawyer to obtain that coverage or an explanation of the lack of coverage.

Coborn's has also moved for summary judgment on Count VI of Thompto's complaint on the ground that it had a qualified privilege to make the allegedly defamatory statements, in negative employee evaluations of Thompto and explanations of Thompto's termination, to investigatory bodies and Coborn's employees and that Thompto cannot show that those statements were made with actual malice. Thompto counters that there is a genuine issue of material fact as to the truth or falsity of the statements Coborn's made and whether they were made with actual malice. Thompto also argues that Coborn's did not make the allegedly defamatory statements in "good faith" and therefore cannot claim any qualified privilege.

Coborn's has also moved for summary judgment on Thompto's claim of intentional infliction of emotional distress, Count VII, on the ground that none of the conduct Thompto complains of, even if it were true, which Coborn's disputes, rises to the level of outrageousness necessary to support such a claim. Thompto argues that there is a genuine issue of material fact as to whether or not Coborn's conduct was sufficiently outrageous to support her tort claim.

Finally, the parties have agreed to disposition or partial disposition of some of the counts of Thompto's complaint and ask this court to enter an order confirming these dispositions. First, the parties have agreed to dismissal of Count IV, the ERISA claim. Second, the parties have agreed that Counts I (Title VII) and II (Iowa Code § 216.6) shall be amended to delete any age discrimination claims, and that Count II shall be withdrawn from jury consideration and will instead be tried to the bench. Next, the parties have agreed that Count II shall be further amended to delete any damages claims for "inconvenience" and "loss of enjoyment of life." The parties have also agreed that Counts III, V, VI, and VII of the complaint shall be amended to eliminate any claims for "back pay," "inconvenience," and "loss of enjoyment of life," and to eliminate any claim for recovery of attorney fees. The court confirms these dispositions or partial dispositions, and turns to consideration of Coborn's motion for partial summary judgment on Counts V, VI, and VII. Before addressing the merits of Coborn's summary judgment motion, the court examines the appropriate standards for summary judgment.

II. STANDARDS FOR SUMMARY JUDGMENT

The Eighth Circuit recognizes "that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years "motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, the "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just,...

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