796 F. Supp. 2d 1013
D. Ariz.2011Background
- Loos worked for Lowe's HIW, Inc. from Oct 30, 2006 to June 9, 2010 as Administrative Manager at a Scottsdale store.
- Store Manager Scott Hewitt began supervising her about two years before her termination and shared an office with Loos.
- Loos alleges Hewitt and other male employees frequently made crude sexual jokes and discussed adult topics in her presence.
- She claims this hostile environment caused stress- and weight-related health issues prompting medical treatment.
- Loos sought a transfer to another Lowe's store and was terminated the day after interviewing for a position in Surprise, Arizona.
- Plaintiff filed an EEOC charge on Aug 16, 2010 asserting gender discrimination and a sexual hostile environment; later filed a FAC in state court which Lowe's removed to federal court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retaliation exhaustion under Title VII/ACRA | Loos exhausted retaliation by EEOC charge alleging discrimination. | Retaliation not exhausted; EEOC charge only referenced sex discrimination. | Retaliation claims dismissed for lack of administrative exhaustion. |
| Negligent misrepresentation viability | Lowe's promised a professional workplace and Plaintiff relied in accepting employment. | Promises about future conduct not actionable as negligent misrepresentation. | Third claim dismissed; no misrepresentation of present fact. |
| Negligent infliction of emotional distress viability | Hostile environment and termination foresee or caused severe distress. | Bystander requirement not met; alleged distress from workplace not injury to another. | Fifth claim survives at this stage; may be argued on summary judgment. |
| Intentional infliction of emotional distress viability | Supervisor conduct extreme and outrageous; Lowe's failure to address harassment. | Conduct not sufficiently extreme; limited action by Lowe's not enough for IIED. | Sixth claim dismissed; no extreme and outrageous conduct shown adequate to hold Lowe's liable. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (new pleading standard requires plausibility rather than possibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for complaint withstands Rule 12(b)(6) scrutiny)
- Sommatino v. United States of Am., 255 F.3d 704 (9th Cir. 2001) (administrative exhaustion requirement governing Title VII claims)
- B.K.B. v. Maui Police Dep't, 276 F.3d 1091 (9th Cir. 2002) (liberal notice-along-with-exhaustion principles for administrative charges)
- Smith v. M&O Agencies, Inc., 496 F.3d 1047 (9th Cir. 2007) (scope of employment; sexual harassment cases and vicarious liability)
- Ford v. Revlon, Inc., 734 P.2d 580 (Ariz. 1987) (employer may be liable for IIED for failure to act on harassment)
- Keck v. Jackson, 593 P.2d 669 (Ariz. 1979) (bystander NIED; recognition of emotional distress claims in Arizona)
- Ball v. Prentice, 781 P.2d 628 (Ariz. Ct. App. 1989) (Restatement § 313 adoption in Arizona context)