Thompson v. Olsten Kimberly Qualitycare, Inc.

980 F.Supp. 1035

Hye S. THOMPSON, Plaintiff, v. OLSTEN KIMBERLY QUALITYCARE, INC., Defendant.

Civ. No. 97-11(JRT/RLE).

United States District Court, D. Minnesota.

September 19, 1997.

Stephen W. Cooper, Minneapolis, MN, Clayton D. Halunen, Duluth, MN, for Plaintiff.

Andrew J. Boling, Chicago, IL, for Defendant.

ORDER

TUNHEIM, District Judge.

Based upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, and after an independent review of the files, records and proceedings in the above-titled matter, it is —

ORDERED:

1. That defendant's Motion to Dismiss Count II of plaintiff's Complaint [Docket No. 6] shall be, and hereby is, denied, without prejudice.

2. That defendant's Motion to Dismiss Count III of plaintiff's Complaint [Docket No. 6] shall be, and hereby is, granted.

REPORT AND RECOMMENDATION

ERICKSON, United States Magistrate Judge.

Aug. 25, 1997.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Motion of the Defendant to Dismiss Counts II and III of the Plaintiff's Complaint for failing to state a claim upon which relief can be granted. See, Rule 12(b)(6), Federal Rules of Civil Procedure.

A Hearing on the Motion was conducted on April 10, 1997, at which time the Plaintiff appeared by Stephen W. Cooper and Clayton D. Halunen, Esqs., and the Defendant appeared by Andrew J. Boling, Esq.

For reasons which follow, we recommend that the Motion be granted in part.

II. Factual and Procedural Background

According to the allegations of her Complaint, the Plaintiff is a woman of Korean ancestry who was formerly employed by the Defendant, as a licensed practical nurse ("LPN"), during a period commencing in November of 1995, and extending through May 10, 1996, when her employment with the Defendant was terminated. The Defendant is a health-care provider, and specifically, for a fee, it provides medically trained personnel to individuals, and to businesses, in and around Duluth, Minnesota.

The Plaintiff alleges that she was subjected to multiple incidents of discrimination, which were asserted to have been premised upon her national origin, during her period of employment by the Defendant. In this respect, she maintains that, while employed by the Defendant, she received less favorable treatment than that which was afforded to similarly situated Caucasian employees. Accordingly, the Defendants are alleged to have illegally discriminated against the Plaintiff in terms of her salary, her work schedule, her job opportunities — specifically, in denying her application for a registered nurse ("RN") position — and, ultimately, in the termination of her employment.

As noted, on May 10, 1996, the Plaintiff was terminated by the Defendant. Thereafter, on May 17, 1996, an agent of the Defendant filed a written Statement with the Minnesota State Board of Nursing, which detailed the Defendant's reasons for its termination decision.¹ In particular, the Statement asserts that the Plaintiff engaged in intentional double billing, and that she improperly denoted her occupational credentials, on her time sheets and related documentation, as being those of an "RN." In addition, the Statement accuses the Plaintiff of having engaged in "gross misconduct;" namely, being absent from work without notice, being verbally abusive to her co-workers, and refusing to complete a scheduled work assignment.

On or about November 20, 1996, the Plaintiff commenced this action in Minnesota State Court and, on January 3, 1997, the action was removed by the Defendant to this Court. The Plaintiff's Complaint contains three Counts. Count I alleges a claim of national origin discrimination, in violation of the Minnesota Human Rights Act ("MHRA"). See, Minnesota Statutes Section 363.01, et seq. In Count II, the Plaintiff alleges a common-law claim of defamation and, in Count III, the Plaintiff asserts a claim for negligent supervision and retention.² In response to these allegations, after filing its Answer to the Plaintiff's Complaint on January 10, 1997, the Defendant filed, on February 27, 1997, the present Motion to dismiss Counts II and III of the Plaintiff's Complaint.

III. Discussion

A. Standard of Review. In considering a Motion to Dismiss under Rule 12(b)(6), we accept as true, in a hypothetical sense, all of the factual allegations of the Plaintiff's Complaint, and we view those allegations in a light most favorable to the Plaintiff. See, Patterson v. Von Riesen, 999 F.2d 1235, 1237 (8th Cir.1993); Schibursky v. International Business Machines Corp., 820 F.Supp. 1169, 1175 (D.Minn.1993). Under such an analysis, "[a] motion to dismiss for failure to state a claim should be granted only if it is clear that no relief could be granted under any set of facts, construing the allegations in the complaint favorably to the pleader." County of St. Charles v. Missouri Family Health Council, 107 F.3d 682, 684 (8th Cir.1997), citing, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), in turn citing, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In treating the factual allegations of a Complaint as true, the Court "do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts." Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990), citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987).

B. Legal Analysis. Given this procedural and factual backdrop, we separately address the Defendant's arguments for a dismissal of Counts II and III of the Plaintiff's Complaint.

1. The Motion to Dismiss the Plaintiff's Defamation Claim.

The Plaintiff's claim of defamation is premised upon the Defendant's acts in writing, and in sending, the Statement to the State Board of Nursing, in which it accused the Plaintiff of specific acts of misconduct. The Plaintiff maintains that the asserted acts of misconduct were false and defamatory.

In urging a dismissal of the Plaintiff's defamation claim, the Defendant contends that it was statutorily obligated to report the Plaintiff's alleged misconduct to the State authorities, by operation of Minnesota Statutes Section 148.263, Subdivision 3, which provides as follows:

A person licensed by a health-related licensing board as defined in section 214.01, subdivision 2, shall report to the board personal knowledge of any conduct the person reasonably believes constitutes grounds for disciplinary action under sections 148.171 to 148.285 by any nurse including conduct indicating that the nurse may be incompetent, may have engaged in unprofessional or unethical conduct, or may be mentally or physically unable to engage safely in the practice of professional or practical nursing.

In addition, the Defendant argues that it is absolutely immune from suit, for its act in reporting the Plaintiff's purported misconduct, by virtue of Minnesota Statutes Section 148.264, Subdivision 1, which provides, as pertinent, as follows:

Any person, health care facility, business, or organization is immune from civil liability or criminal prosecution for submitting in good faith a report to the board under section 148.263 * * *.

For her part, the Plaintiff concedes that the Defendant could enjoy an immunity from liability for statutorily reporting misconduct, but she argues that the requirement, that the report be in "good faith," infuses the claim of immunity with a factual component, which forecloses a conclusive immunity determination in the context of a Motion to Dismiss. We agree.

At the time of the Hearing on this Motion, there appeared to be no Minnesota case law construing, or otherwise addressing, the statutory provisions at issue here. Quite recently, however, in French v. Eagle Nursing Home, Inc. 973 F.Supp. 870 (D.Minn.1997), the District Court, the Honorable Paul A. Magnuson presiding, confronted the issue which has been presented to this Court, but in the framework of a Motion for Summary Judgment. In French, as here, one of the allegedly defamatory statements was contained in a report to the State Nursing Board. In arguing for Summary Judgment on the defamation claim, the defendants there noted — as the Defendant does here — that, pursuant to Section 148.263, Subdivision 2, they were required to make the challenged report, and that, as a consequence, pursuant to Section 148.264, subdivision 1, they should be immunized from any defamation claim that arises from the contents of that report. The Court agreed with the defendants, and granted their Motion for Summary Judgment on this claim but, in so doing, the Court expressly observed that the plaintiff had "provided no evidence that the report that [the defendants] submitted to the Nursing Board * * * was made in anything other than good faith." French v. Eagle Nursing Home, Inc., supra at 885.

Here, unlike the plaintiff in French, the procedural posture of this case has not afforded the Plaintiff with an opportunity to undertake discovery, so as to explore whether the Defendant's statements to the State Nursing Board were made in "good faith." However, as the Court implicitly recognized in French, whether the statements were proffered in good faith is inescapably fact-dependent and, therefore, we conclude that the resolution of this issue is not appropriate through a Rule 12(b)(6) dismissal. While discovery may well demonstrate that the Plaintiff will be unable to rebut the Defendant's good faith immunity, we must accept her allegations, as contained in her Complaint, as factually true for these purposes. Therefore, at this juncture, we recommend that the Motion to Dismiss Count II of the Plaintiff's Complaint be denied as presently premature.³

2. The Motion to Dismiss the Plaintiff's Negligent Supervision and Retention Claim.

In Count III of her Complaint, the...