United States District Court, D. Utah, Central Division
LISA C. PETERSON, Plaintiff,
SCIS AIR SECURITY CORP., LSG SKY CHEFS, INC., Defendants.
MEMORANDUM DECISION AND ORDER
SAM SENIOR JUDGE UNITED STATES DISTRICT COURT
Lisa C. Peterson is employed by Defendant SCIS Air Security
Corporation (“SCIS”) as a Security Ramp
Coordinator. SCIS provides security services for Defendant
LSG Sky Chefs, Inc. (“Sky Chefs”), who in turn
provides in-flight meals for various airlines. Both
Defendants operate out of Salt Lake International Airport.
Relevant for purposes of this motion are Ms. Peterson's
allegations that she was subjected to incidents of sexual
harassment by employees of Sky Chefs.
Chefs move to dismiss all claims against it pursuant to
Federal Rule of Civil Procedure 12(b)(6).
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(6) provides that a complaint
may be dismissed for failure to state a claim upon which
relief can be granted. To avoid dismissal the complaint must
plead sufficient facts, that when taken as true, provide
“plausible grounds” that “discovery will
reveal evidence” to support plaintiff's
allegations. Bell Atlantic Corp. V. Twombly, 550
U.S. 544, 556 (2007). The burden is on the plaintiff to frame
a “complaint with enough factual matter (taken as true)
to suggest” that he or she is entitled to relief.
Id. “Factual allegations must be enough to
raise a right to relief above the speculative level.”
Id. A plaintiff must provide more than labels,
conclusions, and a formulaic recitation of the elements of a
claim. Id. at 555. The allegations must be enough
that, if assumed to be true, the plaintiff plausibly (not
just speculatively) has a claim for relief. Robbins v.
Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir.
2008). And allegations “so general that they encompass
a wide swath of conduct, much of it innocent” are not
plausible. Bryson v. Gonzalez, 534 F.3d 1282, 1286
(10th Cir. 2008).
Complaint contains six claims for relief, but only the Third,
Fourth, and Fifth Claims appear to be directed specifically
at Sky Chefs. See Opp'n at 4, Reply at 2 n.1.
The Sixth Claim is directed at both defendants. Each of those
claims will be discussed in turn.
Negligent Employment (Third Claim for
undisputed that to prevail on a claim for negligent
employment, Ms. Peterson must show that: (1) Sky Chefs
“knew or should have known that its employees posed a
foreseeable risk of harm to third parties;” (2) Sky
Chefs' employees “inflicted such harm;” and,
(3) Sky Chefs' “negligent hiring, supervision, or
retention of the employees proximately caused the
injury”. See Jensen v. Gale, No.
1:13-cv-00030-DN, 2014 WL 7246948 at *5 (D. Utah Dec. 18,
2014) (citing C.C. v. Roadrunner Trucking, Inc. 823
F.Supp.913, 922 (D. Utah 1993)).
factual allegations sufficient to show that the employer knew
or should have known that its employees posed a foreseeable
risk of harm to third parties, a plaintiff fails to plead a
duty to take special supervisory measures. See J.H. v.
West Valley City, 840 P.2d 115, 126 (Utah 1992)
(“To prove that such a duty [negligent supervision]
existed, plaintiff was required to show that such acts were
foreseeable. There is no duty to protect persons from
unforeseeable risks of harm at the hands of another.”).
There are only two specific instances alleged in the
Complaint where Ms. Peterson notified Sky Chefs of sexual
harassment by any of its referenced 12
employees. The first notice is alleged to have
occurred September 9, 2014, when “Plaintiff wrote and
delivered to Defendants a long complaint about Sky Chefs'
employee ‘A.J.'” Compl. ¶ 27. Although,
Ms. Peterson asserts that the “vile pervasive sexually
hostile work environment continued unabated”,
id. ¶ 35, she pleads no specific facts of what
conduct involving A.J. subsequently occurred after Sky Chefs
was on notice of A.J.'s alleged harassment. The only other
notice allegedly occurred in December 2014. Ms. Peterson
complains that “[a]round Christmas time in 2014, Sky
Chefs[‘] employee ‘Villiami'‘ sexually
harassed her and that at a time unspecified she
“reported all this to Villiami's manager at Sky
Chefs, but once again, it was to no avail and the sexual
harassment continued.” Id. ¶¶ 36-
37. Ms. Peterson pleads no factual allegations of what
conduct involving Villiami subsequently occurred after Sky
Chefs was on notice of Villiami's alleged conduct.
the Complaint reflects that Ms. Peterson complained to Sky
Chefs about alleged harassment by A.J. and Villiami, there
are no post-complaint factual allegations of specific
incidents of harassment by those individuals. That is to say,
once on notice about A.J. and Villiami, no factual
allegations suggest that Sky Chefs failed in its duty to
prevent further harm to Ms. Peterson. As to Sky Chefs'
other employees referenced in the Complaint, there are
insufficient factual allegations to suggest that Sky Chefs
knew or should have known that those other employees posed a
foreseeable risk of harm to Ms. Peterson. In sum, Ms.
Peterson's conclusory assertions simply are factually
insufficient and her claim for negligent employment is
dismissed for failure to state a claim.
Intentional Infliction of Emotional Distress (Fourth Claim
state a claim for intentional infliction of emotional
distress against Sky Chefs, Ms. Peterson must plead facts
which demonstrate that Sky Chefs intentionally engaged in
conduct toward her “(a) with the purpose of inflicting
emotional distress, or, (b) where any reasonable person would
have known that such would result; and his actions are of
such a nature as to be considered outrageous and intolerable
in that they offend against the generally accepted standards
of decency and morality.” Bennett v. Jones, Waldo,
Holbrook & McDonough, 70 P.3d 17, 30 (Utah 2003)
(internal quotation marks and citation omitted). Conduct
“is not necessarily outrageous merely because it is
tortuous, injurious, or malicious, or because it would give
rise to punitive damages, or because it is illegal.”
Franco v. Church of Jesus Christ of Latter-day
Saints, 21 P.3d 198, 207 (Utah ...