Bedenfield v United Parcel Service, Inc., No. 2:2019cv02658 - Document 19 (D. Kan. 2020)
Court Description: MEMORANDUM AND ORDER granting 7 Partial Motion to Dismiss. Plaintiff's common law counts 3 and 4 are dismissed. Plaintiff's request to certify the question to the Kansas Supreme Court is denied. Signed by U.S. District Senior Judge Sam A. Crow on 2/12/20. (msb)
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Bedenfield v United Parcel Service, Inc. Doc. 19 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS TANEI SHA BEDENFI ELD, Plaint iff, vs. Case No. 19- 2658- SAC UNI TED PARCEL SERVI CE, I NC., Defendant . MEMORANDUM AND ORDER The plaint iff Taneisha Bedenfield ( “ Bedenfield” ) has filed an em ploym ent discrim inat ion com plaint assert ing claim s under Tit le VI I of t he Civil Right s Act of 1964, as am ended, 42 U.S.C. § 2000e et seq. ( “ Tit le VI I ” ) and t wo Kansas com m on- law claim s of negligent ret ent ion and negligent supervision. The defendant Unit ed Parcel Service, I nc. ( “ UPS” ) , m oves under Fed. R. Civ. P. 12( b) ( 6) t o dism iss Bedenfield’s t wo com m on- law claim s ( count s t hree and four) . ECF# # 7 and 8. UPS argues t he federal dist rict court s in Kansas have consist ent ly held t hat a plaint iff does not have a negligence claim in t he em ploym ent cont ext against her em ployer for a coem ployee’s harassm ent . The plaint iff’s com plaint assert s 1) t hat she was subj ect ed t o repeat ed inst ances of sexual harassm ent cont ribut ing t o a host ile w ork environm ent ; 2) t hat she was ret aliat ed against for report ing t his unlawful conduct ; 3) t hat UPS failed t o address t his repeat ed unlawful conduct ; 4) t hat UPS negligent ly ret ained and supervised t he em ployees who com m it t ed Dockets.Justia.com t his unlawful conduct and who were known for engaging in such behavior; 5) t hat UPS violat ed it s policies and codes; and 6) t hat UPS knowingly and m aliciously subj ect ing plaint iff t o ext rem e fear, anxiet y and dist ress. ECF# 1, p. 1. The well- est ablished st andards governing a m ot ion under Rule 12( b) ( 6) , Mayfield v. Bet hards, 826 F.3d 1252, 1255 ( 10t h Cir. 2016) , were followed in t hat t he court looked at whet her t he facially plausible fact ual allegat ions sust ain a reasonable inference t hat t he defendant is liable under t he assert ed claim for relief. UPS here seeks dism issal of count s t hree and four arguing t he plaint iff cannot assert a cognizable claim for relief under Kansas law governing such claim s. This is a proper ground for dism issal under Rule 12( b) ( 6) . See Meier v. Chesapeake Operat ing L.L.C., 778 Fed. Appx. 561, 568 ( 10t h Cir. Jun. 21, 2019) . On her Kansas com m on- law claim s for negligent ret ent ion and supervision, t he plaint iff alleges for bot h t hat t he defendant “ knew or should have known t hat t he em ployees who harassed and assault ed . . . [ her] were unfit or incom pet ent ,” t hat t he defendant “ had reason t o believe t hat an undue risk of harm exist ed t o ot hers as a result of t he cont inued em ploym ent of t hat em ployee,” and t hat t he plaint iff’s inj ury from t hese em ployees act s was wit hin t he foreseeable risk creat ed by ret aining t hese em ployees. ECF# 1, ¶¶ 134- 136, 139- 141. As far as her fact ual allegat ions, t he plaint iff accuses a co- em ployee of t ouching her hips and backside. Aft er 2 com plaining t o a supervisor, she did not have t o work wit h t hat coem ployee. She event ually gave a writ t en st at em ent and m et wit h supervisors and hum an resources concerning t his incident . The co- em ployee did com e t o her work area on a couple occasions, and a supervisor st epped in front of t he plaint iff on one occasion when t he em ployee approached t he plaint iff. The plaint iff was surprised when anot her em ployee revealed having heard about t he plaint iff’s confident ial harassm ent com plaint . She also learned t hat t he em ployee who had harassed her had a hist ory of such behavior. The plaint iff also alleges t hat in June of 2018, a fem ale coworker harassed and physically assault ed her during an em ployee m eet ing. When t he plaint iff t old her t o st op, t he co- worker grabbed t he plaint iff a second t im e. Bot h t he plaint iff and supervisor yelled at t he co- worker t o st op, and she did so only aft er repeat ed shout ing. The plaint iff was dist urbed t hat several people wit nessed t his, and yet , “ t hose present j ust wat ched, and aft er t his incident , went about t heir business, as if t hat kind of t hing was norm al or not out of t he ordinary.” ECF# 1, ¶ 61. The plaint iff m ade bot h a verbal st at em ent and a writ t en com plaint about t his incident t o hum an resources. She expressed t o m anagem ent t hat she did not feel safe, and she was assured som e m easures would be put int o place t o deal wit h t he em ployee. The plaint iff was surprised when t he defendant allowed t his em ployee t o ret urn t o work and even perm it t ed her t o pass by t he area 3 where t he plaint iff worked. Finally, t he plaint iff alleges t he defendant has a dut y t o prot ect it s em ployees from physical assault s, sexual harassm ent , and a host ile work environm ent . The plaint iff also alleges a corresponding dut y not t o ret ain an em ployee who sexually harasses, physically assault s, or harasses ot her em ployees. I n effect , t he plaint iff is claim ing t he defendant is negligent in supervising and ret aining em ployees who caused her physical and em ot ional harm . UPS seeks dism issal of t he com m on- law claim s as t he t wo alleged assailant s and harassers were t he plaint iff’s co- workers at t he t im e of t he alleged incident s. Kansas law does im pose a dut y on em ployers t o “ hire and ret ain only safe and com pet ent em ployees.” Plains Res. I nc. v. Gable, 235 Kan. 580, 590, 682 P.2d 653 ( 1984) ( liabilit y for dam ages caused by an em ployee done t o a t hird part y who was not a co- em ployee) . “ [ T] o find an em ployer liable for negligent ly hiring or ret aining an em ployee, t here m ust be som e causal relat ionship bet ween t he dangerous propensit y or qualit y of t he em ployee, of which t he em ployer has or should have knowledge, and t he inj uries suffered by t he t hird person . . . .” Schm idt v. HTG, I nc., 265 Kan. 372, 961 P.2d 677, cert . denied, 525 U.S. 964 ( 1998) . Federal dist rict court s in Kansas, however, have held t hat “ [ a] n em ployee who has been inj ured by a coworker cannot recover against her em ployer for negligent ret ent ion, supervision or t raining; recovery is generally lim it ed t o t hird part ies.” Greer v. Sout hwest ern Bell Telephone Com pany, 2019 WL 4 2646662, at * 2 ( D. Kan. Jun. 27, 2019) ( cit at ions om it t ed) . “ Twent y years ago, t he Court answered t hat “ Kansas has not and would not recognize t he t ort s . . . in t h[ at ] fact ual cont ext ,” t hat is, when an em ployee is inj ured by a fellow em ployee. Forbes v. Kinder Morgan, I nc., 172 F. Supp. 3d 1182, 1201 ( D. Kan. 2016) ( cit ing Beam v. Concord Hosp., I nc., 920 F. Supp. 1165, 1166 ( D. Kan. 1996) ) , aff’d, 686 Fed. Appx. 552 ( 10t h Cir. Apr. 21, 2017) . The principles behind t his rule are t hat “ ’an em ployer is not responsible for it s em ployee’s unaut horized act s com m it t ed out side t he scope of t he em ployee’s dut ies,’ and t he em ployee’s dut ies do not include t he way she t reat s ot her em ployees.” Greer, 2019 WL 264662 at * 2 ( quot ing Beam , 920 F. Supp. at 1168) . “ For t he sam e reason, harassm ent by a coworker will not const it ut e an act ionable inj ury for t he purposes of negligent supervision or t raining.” I d. ( cit ing See Fiscus v. Trium p Grp. Ops., I nc., 24 F. Supp. 2d 1229, 1242- 43 ( D. Kan. 1998) ; Lawyer v. Eck & Eck Mach. Co., 197 F. Supp. 2d 1267, 1277 ( D. Kan. 2002) ) . Because t hese holdings have looked t o t his court ’s long- st anding analysis of Kansas law found in Beam , t here are few reservat ions in following t his line of precedent est ablished for m ore t han t went y years. The plaint iff count ers wit h several argum ent s; none of which are convincing. The sim ple reason is t hat t he plaint iff does not cit e a single Kansas aut horit y recognizing a plaint iff em ployee’s abilit y t o sue her em ployer for negligent supervision or ret ent ion of a co- em ployee who 5 allegedly harasses t he plaint iff em ployee in an em ploym ent set t ing. The plaint iff offers Reardon v. King, - - - Kan. - - - , 452 P.3d 849 ( 2019) , but her analysis of t he decision is unrem arkable and fails t o est ablish it s relevance here. The plaint iff t here was a t hird part y, a client of t he em ployer, who sued t he em ployer for negligent ly t raining an em ployee who also owed a fiduciary dut y t o t he plaint iff client . Neit her Reardon’s fact s nor it s holding calls int o t he quest ion or even im plicat e t he line of aut horit y cont rolling of t he out com e of UPS’s m ot ion. The plaint iff cit es but fails t o show t he relevance of t he Kansas Suprem e Court ’s recent decision finding unconst it ut ional t he st at ut ory cap on noneconom ic dam ages. Hilburn v. Enerpipe Lt d., 309 Kan. 1127, 442 P.3d 509 ( 2019) . Finally, t he plaint iff argues her case is “ at ypical” in t hat she was t wice assault ed by t wo different em ployees wit h known hist ories for t his kind of unlawful behavior and t hat one assault was wit nessed by t he m em bers of defendant ’s m anagem ent . The plaint iff does not explain how t hese fact s im pact applying t he est ablished line of precedent here. The precedent applies because Bedenfield is an em ployee suing her em ployer for negligent ly supervising or not t erm inat ing a co- em ployee for on- t he- work harassm ent . There is not hing in t he precedent t hat m akes it condit ional upon t he seriousness of t he harassm ent or upon t he degree of t he em ployer’s knowledge of t he co- em ployee’s conduct . As already st at ed above, t he principle guiding t he precedent is t hat “ ’an em ployer is not 6 responsible for it s em ployee’s unauthorized act s com m it t ed out side t he scope of t he em ployee’s dut ies, and t he em ployee’s dut ies do not include t he way she t reat s ot her em ployees.” Greer, 2019 WL 264662 at * 2 ( quot ing Beam , 920 F. Supp. at 1168) . 1 I n a single sent ence, t he plaint iff asks t hat if t he court should feel com pelled t o grant t he defendant ’s m ot ion t hen it should cert ify t his issue t o t he Kansas Suprem e Court since t he issue is one of Kansas law. “ [ C] ert ificat ion is not t o be rout inely invoked whenever a federal court is present ed wit h an unset t led quest ion of st at e law.” Kansas Judicial Review v. St out , 519 F.3d 1107, 1119 ( 10t h Cir. 2008) ( int ernal quot at ion m arks and cit at ion om it t ed) . “ [ O] nly quest ions of st at e law t hat are bot h “ unset t led and disposit ive” are t o be cert ified, and t his det erm inat ion is com m it t ed t o t he court ’s sound discret ion.” I d. at 1119- 20. The uniform it y and longevit y of t he federal precedent cert ainly put s in doubt whet her t he st at e law quest ion here is as unset t led as quest ions should be for cert ificat ion. I n it s discret ion, t he court declines t o cert ify t his quest ion t o t he Kansas Suprem e Court . I T I S THEREFORE ORDERED t hat t he defendant UPS’s Rule 12( b) ( 6) m ot ion t o dism iss ( ECF# 7) t he plaint iff’s t wo com m on- law claim s ( count s t hree and four) is grant ed; 1 This line of aut horit y also has said t hat effort s t o rest at e “ a federal em ploym ent law claim ” int o “ a generic st at e law t ort ” are t o be rej ect ed and t hat Kansas court s are unlikely “ t o adopt a liabilit y rule wit h such broad im plicat ions.” Fant roy v. Sout hwest ern Bell Telephone Co., 2019 WL 1556207, at * 2 ( D. Kan. Apr. 10, 2019) ( int ernal cit at ions om it t ed) . 7 I T I S FURTHER ORDERED t hat t he plaint iff’s request t o cert ify t he quest ion t o t he Kansas Suprem e Court is denied. Dat ed t his 12 t h day of February, 2019, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 8
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