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Peterson v. SCIS Air Security Corporation

United States District Court, D. Utah, Central Division

March 9, 2017

LISA C. PETERSON, Plaintiff,
v.
SCIS AIR SECURITY CORP., LSG SKY CHEFS, INC., Defendants.

          MEMORANDUM DECISION AND ORDER

          DAVID SAM SENIOR JUDGE UNITED STATES DISTRICT COURT

         I. INTRODUCTION

         Plaintiff 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.

         Sky Chefs move to dismiss all claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6).

         II. STANDARD OF REVIEW

         Federal 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).

         III. DISCUSSION

         The 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.

         A. Negligent Employment[1] (Third Claim for Relief)

         It is 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)).

         Absent 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.[2] 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.[3] 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.

         Although 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.[4] 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.

         B. Intentional Infliction of Emotional Distress (Fourth Claim for Relief)

         To 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 ...


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