United States Court of Appeals,
Eleventh Circuit.
No. 95-8602.
Alfonzo HARRIS, Beverly Harris, Plaintiffs-Appellees,
v.
PROCTER & GAMBLE CELLULOSE CO., Terri Delong, Tollie Strode and
Michael Brantley, Defendants-Appellants.
Jan. 22, 1996.
Appeal from the United States District Court for the Middle
District of Georgia. (No. CV-94-135-2-MAC(DF)), Duross Fitzpatrick,
Chief Judge.
Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior
Circuit Judge.
HATCHETT, Circuit Judge:
In this interlocutory appeal, we rely on Lightning v. Roadway
Express, Inc.,
60 F.3d 1551 (11th Cir.1995), to affirm the district
court's denial of appellants' rule 12(b)(6) motion to dismiss the
appellee's claim for intentional infliction of emotional distress
under Georgia law.
BACKGROUND
Appellee Alfonzo Harris (Harris) worked at the Oglethorpe,
Georgia, pulp and paper plant of appellant Procter & Gamble
Cellulose Co. (Procter & Gamble) for approximately twelve years.
The company terminated his employment in 1992. On May 2, 1994,
Harris instituted this lawsuit in the United States District Court
for the Middle District of Georgia asserting federal and state due
process, federal civil rights, and state tort law claims against
Procter & Gamble and appellants Terri Delong, Tollie Strode, and
Michael Brantley.1 Harris's wife, appellee Beverly Harris, also
brought a claim for loss of consortium.
The Harrises' pro se complaint alleged the following facts:
13. During October 1991, Plaintiff detected and reported
overexposure at the work place to toxic chemicals, known as
"Hydrogen Sulfide", said chemicals capable of causing harm to
Plaintiff Alfonzo Harris and other Procter & Gamble employees.
14. As a direct result of the overexposure to Hydrogen
Sulfide, Plaintiff Alfonzo Harris suffered numerous physical
ailments, including sever[e] headaches, extreme nausea and
fainting spells, which he reported to Defendants.
15. After Plaintiff Alfonzo Harris reported the toxic
chemical overexposure of employees, Defendants failed and
refused to correct the problem reported and denied [that]
overexposure to Plaintiff and/or other employees of toxic
chemicals [had] occurred, in spite of the evidence to the
contrary gathered by this Plaintiff.
16. After reporting his findings to his supervisor of
toxic chemical overexposure of employees, this Plaintiff
suffered continuous harassment, threats of termination from
employment, humiliation, supervisory indifference and false
accusations from Defendants, said deliberate conduct on the
part of Defendants intended to, and did eventually result, in
Mr. Alfonzo Harris' termination from employment.
....
21. Said discharge of Plaintiff Alfonzo Harris by the
Defendant Procter & Gamble was malicious, abusive, and
wrongful and was done with the intent to subject Plaintiff
Alfonzo Harris and Plaintiff Beverly Harris, to public scorn
and ridicule, to prevent Plaintiff Alfonzo Harris from
collecting severance pay due from the sale of the Defendant
Company as other employees received, to prevent this plaintiff
from continued employment with the new owner of the Defendant
company's plant as other employees were entitled, such conduct
on the part of Defendants being the result of racial
discrimination and the attempt to cover-up serious
occupation[al] safety standards violations committed by
Defendants.
....
27. As a result of Defendants' intentional and/or
1
Procter & Gamble employees Delong, Strode, and Brantley
allegedly had supervisory authority over Harris.
negligent conduct, Plaintiffs, Alfonzo Harris and Beverly
Harris, have suffered emotional and mental distress,
humiliation and public ridicule, and damage to their
reputation.
On March 31, 1995, the district court issued an amended order
in response to appellants' motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). That order granted appellants'
motion as to Harris's: (1) claims based upon 42 U.S.C. § 1983 and
state and federal due process clauses; (2) retaliation claim under
Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §
2000e-3(a); (3) racial discrimination claim against Delong,
Strode, and Brantley under Title VII, 42 U.S.C. § 2000e-2(a)(1);
and (4) state claims for wrongful or retaliatory discharge, breach
of the covenant of good faith and fair dealing, and negligent
infliction of emotional distress.2 The court also granted
appellants' motion as to Beverly Harris's claim under Title VII for
loss of consortium.
The district court denied appellants' motion, however, as to
Harris's claim for intentional infliction of emotional distress,
holding:
Liability for intentional infliction of emotional
distress "does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other
trivialities," Cooler v. Baker, 204 Ga.App. 787, 420 S.E.2d
[649] 649-650 (1992) (quoting with approval The Restatement
(Second) of Torts [Ch. 2, Emotional Distress,] § 46(1),
comment d) (emphasis added). More specifically, threats by an
employer do not constitute "the kind of egregious conduct
necessary to state a claim for the intentional infliction of
emotional distress." Sossenko v. Michelin Tire Corp., 172
Ga.App. 771,
324 S.E.2d 593, 594 (1984) (quoting Thomas v.
Ronald A. Edwards Construction Co., 163 Ga.App. 202, 205(2),
293 S.E.2d 383 (1982)). However, threats arising in an
2
Harris's Title VII racial discrimination claim against
Procter & Gamble survived appellants' motion to dismiss.
employer-employee relationship involve a "captive victim whom
may fear reprisal for complaining," such that "a reasonable
person could find the conduct outrageous and egregious" and
thereby claim intentional infliction of emotional distress.
Richardson v. Hennly, 209 Ga.App. 868,
434 S.E.2d 772, 776
(1993) (quoting Coleman v. Housing Authority, etc., 191
Ga.App. 166, 169(1),
381 S.E.2d 303 (1989)). Despite
everything stated thus far, an employer's threats and
retaliatory activities satisfy the requisite element of
outrageousness supportive of a claim for intentional
infliction of emotional distress. Yarbray v. Southern Bell
Telephone & Telegraph Co.,
261 Ga. 703,
409 S.E.2d 835, 838
(1991).
Given the above-noted split in Georgia authorities this
court cannot conclusively state that these plaintiffs fail to
present a claim for intentional infliction of emotional
distress, and if for no other reason defendants' motion to
dismiss must be DENIED in this particular.
The district court, however, also determined that "Harris' claim
for intentional infliction of emotional distress and, a fortiori,
Ms. Harris' claim for loss of consortium, presents a controlling
question of law as to which there is substantial grounds for a
difference of opinion." Consequently, the court, pursuant to 28
U.S.C. § 1292(b), permitted the parties to petition for an
interlocutory appeal on this issue. On May 18, 1995, this court
granted appellants permission to appeal.
DISCUSSION
We have jurisdiction pursuant to 28 U.S.C. § 1292(b). In
this interlocutory appeal, our review of the district court's
decision is limited to a pure question of law. See Foster Wheeler
Energy Corp. v. Metropolitan Knox Solid Waste Auth., Inc.,
970 F.2d
199, 202 (6th Cir.1992).
It has long been the rule ... that a complaint should not
be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his [or her] claim which would entitle him [or her]
to relief. Moreover, in evaluating the sufficiency of the
pleading attacked on motion, both the district court and this
court are required to construe the complaint in the light most
favorable to the plaintiff and to take the allegations
contained therein as true. The plaintiff need not set forth
all the facts upon which the claim is based; rather, a short
and plain statement of the claim is sufficient if it gives the
defendant fair notice of what the claim is and the grounds
upon which it rests. A 12(b)(6) motion tests only the
sufficiency of the claim set out in the plaintiff's pleadings.
Denial of such a motion, therefore, does not indicate that the
plaintiff will ultimately prevail on a claim which withstands
a 12(b)(6) challenge.
Mann v. Adams Realty Co., Inc.,
556 F.2d 288, 293 (5th Cir.1977)
(citations omitted).3
Applying these principles, we hold that the Harrises'
complaint sets forth sufficient factual allegations to state a
claim under Georgia law for intentional infliction of emotional
distress. See Lightning v. Roadway Express, Inc.,
60 F.3d 1551,
1554-55, 1558 (11th Cir.1995); Yarbray v. Southern Bell Tel. &
Tel. Co.,
261 Ga. 703,
409 S.E.2d 835, 837-38 (1991); Anderson v.
Chatham, 190 Ga.App. 559,
379 S.E.2d 793, 799-800 (1989).
CONCLUSION
Accordingly, we affirm the district court's order denying
appellants' motion to dismiss as to Harris's claim for intentional
infliction of emotional distress.
AFFIRMED.
3
In Bonner v. City of Prichard, Ala.,
661 F.2d 1206, 1207
(11th Cir.1981) (en banc ), this court adopted as binding
precedent all decisions of the former Fifth Circuit rendered
prior to October 1, 1981.
