United States District Court, D. Arizona
Reel Precision, Inc., an Arizona corporation; Alfred and Sheree Levett, a married couple filing jointly; Plaintiffs,
FedEx Ground Package Systems, Inc., a Delaware corporation doing business in Arizona; FedEx Corporation, a Delaware corporation doing business in Arizona; Eric Pagano and Jane Doe Pagano, a married couple; Amy Gosselink and Stacy Meendering, a married couple; John and Jane Does I-X; Black Corporations I-X; White Partnerships I-X; Red Limited Liability Companies I-X, Defendants.
V. WAKE SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Defendants’ Partial Motion to Dismiss or
for More Definite Statement (Doc. 25). On March 11, 2016,
Defendants moved to dismiss Counts IV and V of the Second
Amended Complaint for failure to state claims upon which
relief can be granted. On April 11, 2016, the Court ordered
that if Plaintiffs contended any further amendment of the
Second Amended Complaint could cure any alleged deficiency,
Plaintiffs must submit a proposed further amended complaint
containing all further allegations Plaintiffs could make. The
Court further ordered that no leave would be granted to amend
the Second Amended Complaint beyond what was offered in the
proposed further amended complaint. On April 22, 2016,
Plaintiffs lodged a proposed Third Amended Complaint.
Defendants’ motion will be considered a motion to
dismiss Counts IV and V of the proposed Third Amended
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), all allegations of material fact are assumed to be
true and construed in the light most favorable to the
nonmoving party. Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009). To avoid dismissal, a complaint need
contain only “enough facts to state a claim for relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The principle that a
court accepts as true all of the allegations in a complaint
does not apply to legal conclusions or conclusory factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
FACTUAL ALLEGATIONS ASSUMED TO BE TRUE FOR DECIDING THE
MOTION TO DISMISS
Alfred and Sheree Levett are a married couple and the
managing shareholders of Plaintiff Reel Precision, Inc.
Defendants are FedEx Corporation, its wholly owned subsidiary
FedEx Ground Package System, Inc., and two of its managers
and their spouses. Reel Precision was formed for the purpose
of contracting with FedEx to provide pick-up and delivery
services in specific primary service areas or routes.
Plaintiffs owned and operated the vehicles and other
equipment used to perform package pick-ups and deliveries.
They also hired other drivers to assist with the pick-up and
delivery services. Plaintiffs performed services for FedEx
pursuant to an operating agreement.
FedEx managers formed a Contractor Safety Committee. During a
meeting of the Contractor Safety Committee in November or
December 2013, which Plaintiff Sheree Levett attended,
Defendant Eric Pagano introduced a concept he referred to as
the “walk of shame.” Pagano explained that any
driver or person related to the driver who was involved in a
vehicle accident should be required to personally change the
electronic signage displaying the number of days since the
last accident. The signage was located so that any person who
would be required to take the “walk of shame”
would be observed by others.
April 25, 2014, a driver hired by Plaintiffs was involved in
a vehicle collision. On April 29, 2014, Sheree and
Plaintiffs’ driver met with Defendant Amy Gosselink to
discuss the collision. Alfred was not present at the FedEx
facility at the time. After the meeting, Gosselink told
Sheree she was required to take the “walk of
shame” by personally changing the electronic signage
displaying the number of days since the last accident. When
Sheree resisted, Gosselink coerced Sheree to comply and
escorted her to the signage area. Sheree was extremely
embarrassed and humiliated by being forced to change the
signage in view of other personnel and drivers. Upon
completing the “walk of shame, ” Sheree drove her
vehicle to a secluded area and burst into tears. She was
unable to concentrate or focus on her work. Subsequently,
Sheree has experienced depression, anxiety, loss of
concentration, and trembling.
a few days of taking the “walk of shame, ” Sheree
spoke with FedEx’s Contractor Relations Specialist,
Vicki Perry. Perry told Sheree that she thought the
“walk of shame” was disgusting and that she had
lost sleep several nights after hearing that Sheree had been
forced to take the “walk of shame.” In May 2014,
Alfred told Perry his concerns regarding Sheree being forced
to take the “walk of shame” and regarding FedEx
management forcing Plaintiffs to make delivery attempts
beyond the requirements of their operating agreement without
additional compensation. Alfred told Perry he believed
compelling Sheree to take the “walk of shame” may
have constituted illegal harassment and requiring delivery
attempts beyond the requirements of their operating agreement
without additional compensation illegally violated the terms
of the operating agreement and applicable wage laws.
Plaintiffs believe that Perry immediately conveyed
Alfred’s complaints to Pagano and Gosselink.
contractor for FedEx told Alfred that Gosselink subjecting
Sheree to the “walk of shame” was “out of
order.” One of Plaintiffs’ drivers said he wished
he was present when it occurred because he would have stopped
it from happening. Plaintiffs’ driver who was involved
in the collision said that Gosselink was a
“bitch” because she made Sheree take the
“walk of shame.”
policies prohibit harassment and retaliation against a person
who reports in good faith any known or suspected misconduct.
Plaintiffs are aware of other drivers who have been in
vehicle collisions but neither the driver nor anyone related
to the driver was similarly required to take the “walk
10, 2014, Pagano notified Plaintiffs that he was recommending
to FedEx that their contracts not be renewed. On July 14,
2014, Alfred requested a written explanation, which Pagano
refused. Pagano’s oral comments referred to Alfred
complaining to Perry. On August 5, 2014, Alfred received
notice of non-renewal effective October 9, 2014. No
explanation for non-renewal was given.
Count V: Intentional Infliction of Emotional
the proposed Third Amended Complaint alleges that
“Plaintiffs”- plural-suffered severe and
debilitating emotional distress, Plaintiffs’ response
to the motion to dismiss states that “Ms. Levett has
sufficiently pled all of the required IIED elements.”
(Doc. 31 at 6.) The response repeatedly refers to Ms.
Levett’s claim, but does not refer to any other
Plaintiff having a claim for intentional infliction of
emotional distress. Therefore, Count V is deemed to be pled
only by Sheree Levett.
Arizona law, a claim for intentional infliction of emotional
distress requires factual allegations showing that (1)
Defendants engaged in “extreme” and
“outrageous” conduct, (2) Defendants either
intended to cause emotional distress or recklessly
disregarded the near certainty that such distress would
result from Defendants’ conduct, and (3) Plaintiffs
suffered “severe emotional distress” as a result
of Defendants’ conduct. Craig v. M & O
Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007);
Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734
P.2d 580, 585 (1987); Mintz v. Bell Atl. Sys. Leasing
Int’l, Inc., 183 Ariz. 550, 553-54, 905
P.2d 559, 562-63 (Ct. App. 1995). “[C]onduct necessary
to sustain an intentional infliction claim falls at the very
extreme edge of the spectrum of possible conduct.”
Watts v. Golden Age Nursing Home, 127 Ariz. 255,
257, 619 P.2d 1032, 1035 (1980). It “must completely
violate human dignity. The conduct must strike to the very
core of one’s being, threatening to shatter the frame
upon which one’s emotional fabric is hung.”
Pankratz v. Willis, 155 Ariz. 8, 15, 744 P.2d 1182,
1189 (Ct. App. 1987).
explained in Restatement (Second) of Torts § 46 cmt. d:
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the
facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
The liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities. The rough edges of our society are still in
need of a good deal of filing down, and in the meantime
plaintiffs must necessarily be expected and required to be
hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate and unkind.
There is no occasion for the law to intervene in every case
where someone’s feelings are hurt.
trial court must make a preliminary determination whether the
conduct may be considered sufficiently “extreme”
and “outrageous” to permit recovery. Nelson
v. Phoenix Resort Corp., 181 Ariz. 188, 199, 888 P.2d
1375, 1386 (Ct. App. 1994). That issue may only go to the
jury where “reasonable minds may differ.”
Id. Even unjustifiable conduct by a defendant does
not necessarily rise to the level of “atrocious”
and “beyond all possible bounds of decency” to be
considered “outrageous” by an average member of
the community. Id. Case-by-case analysis is required
to determine whether a defendant’s conduct is
“outrageous.” Lucchesi v. Frederic N.
Stimmell, M.D., Ltd., 149 Ariz. 76, 79, 716 P.2d 1013,
allege that the “walk of shame” is
“atrocious” and “utterly intolerable”
because four people made comments indicating that they were
offended by it, Defendants intended to embarrass and
humiliate Sheree, and the “walk of shame”
violates company policies and Arizona laws prohibiting hazing
and harassment. But the standard is not whether any
individuals have actually exclaimed,
“Outrageous!” The standard is an objective one:
would an average person in this community consider the
conduct to be so outrageous and so extreme ...