941 F. Supp. 2d 1138
D. Ariz.2013Background
- Defendants moved to dismiss Counts III–V and certain individual/fictitious defendants; plaintiff Thorp opposes some dismissals, and the court grants others.
- Thorp, a former Clinical Supervisor at Team Select (Sept 27–Dec 31, 2010), alleges religious discrimination and sexual harassment against Lovell and Chicken and Team Select.
- Court applies Rule 12(b)(6) standard: plausibility required, not mere labels, and accepts well-pleaded facts as true while rejecting mere legal conclusions.
- Court evaluates intentional infliction of emotional distress elements—extreme and outrageous conduct, intent or reckless disregard, and severe distress—and finds facts support the claim against Team Select.
- Court rejects breach of the covenant of good faith and fair dealing claim under AEPA, rejects negligent hiring/retention/supervision claim, dismisses spouses of Lovell/Chicken from Count III, and dismisses fictitious defendants from Counts I–II; nonetheless, Count III survives against Team Select and Lovell over alleged conduct.
- Final orders dismiss Counts IV–V; dismiss spouses from Count III; dismiss fictitious defendants from Counts I–II; deny dismissal of Count III as to Team Select and Michael Lovell.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count III states a claim for intentional infliction of emotional distress | Thorp argues conduct was extreme/outrageous and caused severe distress | Team Select contends allegations insufficient to show extreme conduct or severe distress | Count III survives dismissal discussion; remains against Team Select and Lovell |
| Whether AEPA bars the breach of good faith claim | AEPA does not bar common-law tort claims for wrongful termination | AEPA exclusive remedy; no written contract alleged | Breach of good faith and fair dealing claim dismissed |
| Whether negligent hiring/retention/supervision is cognizable | Arizona recognizes negligent hiring/retention in some contexts | Arizona precludes such claims; workers’ compensation exclusive remedy applies | Negligent hiring/retention/supervision claim dismissed |
| Whether spouses (Stacy Lovell and John Doe Chicken) can be held liable for Count III | Complaint suggests community property liability | No allegations showing community-benefit or marital liability | Spouses dismissed from Count III |
| Whether fictitious defendants' dismissal is proper | Fictitious defendants not necessary to proceed | AEPA/Rule 12 dismissal applicable | Fictitious defendants dismissed from Counts I–II |
Key Cases Cited
- Bodett v. Cox-Com, Inc., 366 F.3d 736 (9th Cir. 2004) (intentional infliction elements; standard for extreme conduct)
- Ford v. Revlon, 734 P.2d 580 (Ariz. 1987) (severe emotional distress must be determined case-by-case)
- Cronin v. Sheldon, 991 P.2d 231 (Ariz. 1999) (AEPA exclusive remedy for certain wrongful terminations)
- White v. AKDHC, LLC, 664 F. Supp. 2d 1054 (D. Ariz. 2009) (discussion of implied covenant without written contract; dicta in focus)
- Olive v. City of Scottsdale, 1995 WL 599186 (D. Ariz. 1995) (negligent hiring/retention generally not recognized; workers’ comp relation)
- Midas Muffler Shop v. Ellison, 650 P.2d 496 (Ariz. App. 1982) (distinguishing mere emotional distress from severe distress)
- Spratt v. N. Auto. Corp., 958 F. Supp. 456 (D. Ariz. 1996) (examples of distress levels not amounting to severe)
- Pankratz v. Willis, 744 P.2d 1182 (Ariz. App. 1987) (emotional distress standards in Arizona)
- Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 716 P.2d 1013 (Ariz. 1986) (case-by-case approach to severe distress)
- Cronin v. Sheldon, 991 P.2d 231 (Ariz. 1999) (AEPA exclusive remedy for certain wrongful terminations)