Grace Gillis v. The Principia Corporation , 832 F.3d 865 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2968
___________________________
Grace Gillis
lllllllllllllllllllll Plaintiff - Appellant
v.
The Principia Corporation, doing business as Principia College
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: June 14, 2016
Filed: August 10, 2016
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Before SMITH and GRUENDER, Circuit Judges, and KETCHMARK,1 District
Judge.
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SMITH, Circuit Judge.
Grace Gillis brought suit against The Principia Corporation, doing business as
Principia College ("Principia"), asserting (1) breach of contract, (2) intentional
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri, sitting by designation.
infliction of emotional distress (IIED), (3) negligent infliction of emotional distress
(NIED), and (4) negligence under Missouri law. These claims arose from events that
occurred during Gillis's time as a student at Principia. The district court2 granted
Principia's motion to dismiss Gillis's complaint for failure to state a claim. On appeal,
Gillis argues that the district court erroneously (1) dismissed her breach-of-contract
claim based on its improper characterization of the claim as "educational malpractice,"
(2) concluded that she failed to plead the essential elements of IIED, and (3) found
that she failed to demonstrate facts plausibly demonstrating an unreasonable risk of
emotional distress on her NIED claim. We affirm.
I. Background3
Gillis is a graduate of Principia, an accredited private, coeducational four-year
liberal arts and science college for Christian Scientists, located in Elash, Illinois. Gillis
attended Principia from August 2009 through May 2013. "Principia promised certain
standards . . . and promised to help [Gillis] with various aspects of her life."
Additionally, it "promised that disputes would be resolved according to certain
procedures." Gillis chose to attend Principia because of these representations.
While attending Principia, Gillis clashed with a music professor who taught a
required course for Gillis's music major. Gillis felt that the professor "was becoming
exceedingly hostile toward her as the term progressed." Gillis sought to resolve the
conflict pursuant to the "Matthew Code," the Principia community's prescribed
dispute-resolution method. "'The Matthew Code' dictates that when one person has a
conflict with another, the concerned person is to speak privately with the other, in an
2
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
3
The following facts are taken from Gillis's Third Amended Complaint and are
taken as true for purposes of a motion to dismiss. Wolfchild v. Redwood Cty., No.
15-1580, 2016 WL 3082341, at *2 (8th Cir. June 1, 2016).
-2-
effort to resolve the conflict." If the parties are unable to resolve the conflict privately,
then "the concerned person is to increasingly bring other community members into the
conversation until it is resolved." Principia's student handbook explains this conflict-
resolution standard. "Principia base[s] its version of the 'Matthew Code' in religious
texts," but Gillis maintains that "it is a standard that could be very easily applied by
secular institutions."
Gillis expressed to the professor her belief that he was hostile towards her and
that she feared him. In response, the professor told Gillis that "the relationship
between a professor and a student is a professional relationship, and it should stay that
way." He also stated that "this makes sense why you're always around my office."
Based on the professor's comments, Gillis "believed that her professor had somehow
construed [her] conduct as some sort of romantic advance." Gillis had no romantic
interest in the professor.
Gillis alleges that the professor (1) angrily yelled at Gillis with harsh language,
(2) slammed doors when leaving Gillis, (3) threatened Gillis's grade when she asked
questions about exam formats or questions, (4) refused to help Gillis find ways to
learn the course material more effectively, (5) openly mocked Gillis as a "slow
learner" after Gillis received a poor grade, (6) consistently talked over Gillis and
denied her any opportunity to speak when meeting over academic issues with her and
other students, (7) told Gillis that she should withdraw from his course after Gillis
asked for applied examples of a theory referenced in the professor's lectures, and (8)
became agitated with Gillis when she asked him to clarify what she said that offended
him.
In an attempt to resolve her difficulties with the professor, Gillis sent the
professor an e-mail in which she requested another in-person meeting. At that
meeting, although Gillis perceived the professor as being "agitated or uneasy," she felt
that "any issues and misconceptions were laid to rest." At no time during the meeting
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did the professor mention excluding her from the course. Winter break arrived, and
five weeks elapsed with no contact between Gillis and the professor.
When Gillis returned from winter break, relations with her professor were still
tense. Gillis asked the professor for help with the course material, and the "professor
resorted to the harassing behavior described above." Gillis then wrote her professor
a letter to explain that she was not attacking his character or authority position.
"Thereafter, with no warning, [Gillis] was excluded from a music-major required
course by . . . this professor, preventing [Gillis] from completing a music-major."
Gillis maintains that her exclusion from the class "was decided with disregard
toward, and in violation of Principia rules, regulations and policies." Prior to her
exclusion from the course, Gillis was not advised in writing. The professor removed
her from the course because the "personal feelings" that Gillis expressed in the letter
had made the professor uncomfortable having Gillis in class. This reason was given
to Gillis "[d]espite the fact that the rules, policies, and procedures concerning
exclusion from a course only refers to academic or student-life related infractions in
its examples for when exclusions may be implemented." "[T]he professor refused to
engage in any dialogue to explain why he had excluded [Gillis] or to resolve the
misunderstanding." Gillis claims that the professor's conduct "broke Principia's rules
concerning proper procedure of exclusion from a course." The Principia
administration told Gillis that she would be suspended from Principia if she attempted
to communicate with the professor.
Thereafter, Gillis applied to take the music course from another professor, but
her petition was denied. Gillis claims that both the Dean of Academics and the Dean
of Students refused to address her situation and that although the Director of Human
Resources did meet with her, that individual "was dismissive, uncooperative, and
verbally abusive toward [her]." Because her request to enroll in another music class
was denied, Gillis was unable to complete a major in music.
-4-
Gillis maintains that Principia's conduct "breached the procedures represented
in the student handbook about how such situations should be addressed." She asserts
that even if she had committed an academic or student-life infraction,
Principia breached contractual agreements based in the student handbook
concerning how such infractions are to be addressed. Specifically,
Principia did not inform Plaintiff in writing before her exclusion, did not
allow Plaintiff to talk with her professor, did not bring Plaintiff to the
Restorative Justice Committee,[4] did not convene a circle,[5] did not
allow Plaintiff to tell her side of the story, and did not bring Plaintiff in
front of the Community Board[6] in order to address any perceived
infractions.
In addition to wanting to meet with Principia administrators and staff to discuss
her exclusion from the music course, Gillis contends that she attempted to meet with
them "to explain her existing health concerns and how she felt that being part of the
Music Department gave her a much needed sense of community and support,
especially in her time of need." Gillis "convince[d] herself that she was suffering from
a possible terminal illness" based on her symptoms of the "vomiting of blood and
4
"Principia's Restorative Justice Committee existed to 'help both the offender
and those affected to talk with each other about why the offense happened, what harm
was done to individuals and the community, and the reason for the standard.'"
(Quoting 2011–2012 Principia Student Catalog, at 12–13.)
5
"If an issue was referred to the Restorative Justice Committee, a group of
individuals were to come together and support affected individuals. This group is
generally referred to as 'the circle.'" The purpose of the circle is to inform the accused
of the alleged offenses against him or her and guarantee the accused the opportunity
to speak on his or her behalf. The circle determines a "reparation plan."
6
If the circle recommends suspension, or if the offender fails to complete the
reparation plan, then the case proceeds to the Community Board. "The Community
Board consisted of Principia College Community members (i.e., students, faculty, and
staff), all of whom receive training in the judicial process and standards of evidence."
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other fluids, passing out of consciousness for periods of time, the inability to see for
periods of time, extreme exhaustion, dizziness, chest pain, the inability to breathe
properly, lack of appetite, migraines, abdominal pain, and uncontrollable shaking."
Also, Gillis "had confided in Principia staff, faculty, and administration that she had
an abusive childhood, with which she was still struggling to deal with." Gillis claims
that "Principia knew that it was dealing with an extremely fragile individual" and
knew "that [Gillis] believed that she had a possible terminal illness." Principia's
knowledge of Gillis's condition is based on her repeated attempts "to explain her
situation to Principia, both verbally and in writing" and her plea "for support to
alleviate the physical symptoms that she described." According to Gillis, "Principia
ignored [her] cries for help" or "ridiculed [her] feelings." Gillis maintains that
Principia's behavior caused her to have difficulty concentrating on routine tasks,
"weep for hours each day," lose "nearly all enjoyment in life," feel agitated around
others, feel extreme fatigue, and experience insomnia.
According to Gillis, "Principia did not call 9-1[-]1, contact on-campus or nearby
Christian Science nurses or Christian Science nursing facilities, or contact nearby
medical institutions" in response to her cries for help despite its "Emergency Response
Program."7 Nor did Principia contact Gillis's parents about her health despite its
"Parental Notification" policy.8 Additionally, Gillis asserts that Principia failed to
follow its "Get Help When There is Immediate Danger" policy.9
7
According to Gillis, that policy "dictated . . . procedures for every case of a
health or injury emergency," such as "[c]all[ing] [a] Christian Science nurse,"
"[c]all[ing] a Christian Science practitioner for a Christian Scientist," [c]alling
Campus Security," and "[c]alling 9-911 (Police)." In addition, the policy provides
"General Information & Instruction" concerning first aid and CPR, notification of
accidents and injuries, and transportation to care facilities.
8
Gillis fails to set forth the terms of this policy in her complaint.
9
That policy provides:
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Based on these events, Gillis filed suit against Principia, alleging breach of
contract and negligence under Missouri law. Thereafter, Gillis filed her Second
Amended Complaint, which added the additional claims of IIED and NIED. Principia
moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. Principia argued that the claims set forth in Gillis's Second
Amended Complaint are noncognizable claims for educational malpractice and that
Gillis failed to adequately allege the outrageous-conduct and sole-intent elements
necessary for her IIED and NIED claims. The district court agreed and granted
Principia's motion to dismiss the complaint without prejudice. The court gave Gillis
leave to amend her complaint to cure the identified deficiencies.
After Gillis submitted her Third Amended Complaint, the court found that
Gillis's new allegations failed to cure the deficiencies identified in the court's order
dismissing the Second Amended Complaint. As a result, the court dismissed the Third
Amended Complaint with prejudice.
If a community member is aware of circumstances that threaten
someone's immediate well-being, he or she should act to prevent harm
and, if necessary, get help. Confidentiality is outweighed by the need to
get help. Suicidal talk, eating disorders, other health risks, fights,
recklessness, drug dealing, hazing, hate acts, child abuse, and possession
of a lethal weapon are examples of situations that should be immediately
reported to a resident counselor or the dean of students (ext. 5162). For
the quickest response of nursing care, call Cox Cottage first (ext. 5000),
and then 911 if an ambulance is needed. If there is an armed attack or
any other case that needs an immediate armed response from the police,
call 911 first and then the Gate House (ext. 5111).
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II. Discussion
On appeal, Gillis argues that the district court erred in dismissing her breach-of-
contract, IIED, and NIED claims.10 We review de novo a district court's grant of a
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Wolfchild, 2016
WL 3082341, at *2. "To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face." Id. (quotations and citations omitted). A district court's dismissal of a
complaint "is appropriate only when there is no dispute as to any material facts and
the moving party is entitled to judgment as a matter of law." Id. (quotation and
citations omitted).
A. Breach of Contract
Gillis argues that the district court erroneously construed her breach-of-contract
claim as one for educational malpractice, which is not a cognizable claim in Missouri.
She contends that the district court "ignored the vast majority of [her] allegations and
focused on only a few allegations which it conveniently categorized as aspirational or
religious in nature." She maintains that she adequately set forth in her Third Amended
Complaint the mutual promises set forth in the student handbook that form the basis
of her breach-of-contract claim.
For Gillis to state a claim for breach of contract under Missouri law, she "must
establish the existence of a valid contract, the rights of plaintiff and obligations of
defendant under the contract, a breach by defendant, and damages resulting from the
breach." Lucero v. Curators of Univ. of Mo., 400 S.W.3d 1, 5 (Mo. Ct. App. 2013)
(quotation and citation omitted). Therefore, Gillis must "identify which rights or
10
In her opening brief, Gillis includes no argument about the district court's
dismissal of her freestanding negligence claim. "[A]rguments not raised in an initial
brief are waived." Hernandez v. Holder, 760 F.3d 855, 863 (8th Cir. 2014) (citation
omitted).
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obligations [Principia] breached under the contract in order to establish a claim for
breach of contract." See id. "[A]n educational institution's brochures, policy manuals
and other advertisements may form the basis of a legally cognizable contractual
relationship between [a university] and its students." See id. (quotation and citation
omitted). In order for Gillis to state a cognizable breach of contract claim against
Principia, she "must point to an identifiable contractual promise that [Principia] failed
to honor." See id. (quotation and citations omitted).
But "[n]ot every dispute between a student and a university is amenable to a
breach of contract claim." Id. (alteration in original) (quotation and citation omitted).
"Generally, courts have refrained from recognizing educational malpractice claims,
either in tort or contract, on the premise that '[u]niversities must be allowed the
flexibility to manage themselves and correct their own mistakes.'" Id. at 8 (alteration
in original) (quoting Miller v. Loyola Univ. of New Orleans, 829 So. 2d 1057, 1061
(La. Ct. App. 2002)). "Missouri . . . has found that educational malpractice claims are
not cognizable because there is no duty." Dallas Airmotive, Inc. v. FlightSafety Int'l,
Inc., 277 S.W.3d 696, 699 (Mo. Ct. App. 2008) (citations omitted). "In refusing to
recognize a claim for educational malpractice, [Missouri courts have] emphasized that
it is not [the court's] place to micromanage a university's daily operations." Lucero,
400 S.W.3d at 8 (citing Dallas Airmotive, 277 S.W.3d at 700). A breach-of-contract
claim that "'raises questions concerning the reasonableness of the educator's conduct
in providing educational services' . . . 'is one of educational malpractice,' which
Missouri courts have recognized as a non-cognizable claim." Id. (quoting Dallas
Airmotive, 277 S.W.3d at 700).
To determine whether Gillis has stated a breach-of-contract claim, we must
necessarily identify the promises that Gillis relies upon and determine whether these
purported promises create rights and obligations on Principia's behalf. See id. at 5.
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This is no easy task, as Gillis's complaint contains scattershot allegations. We
therefore must create order from chaos.11
11
At oral argument, the court inquired where it could locate the promises that
Principia breached, Gillis's counsel replied:
With regard to the record, we have alleged that in the breach of contract
in various paragraphs in the Third Amendment Complaint . . . . And, to
your point, with regard to the specificity that is required, not at the
pleading stage, but later on, perhaps when we get to the summary-
judgment stage, that's the purpose of discovery. We can't possibly—it's
impossible for us to articulate every single point where these promises
arise. Why? Because, one, that's not what [Federal] Rule [of Civil
Procedure] 8 says that we're supposed to do. There is no such
requirement. We understand that there is . . . a plausibility standard . . . ,
but there is no specific requirement to identify a precise legal standard.
There is no requirement for the appellant to establish a prima facie case.
But a plaintiff does not get to wait until discovery to identify what promises the
defendant has breached. "In breach of contract actions, . . . the complaint must, at
minimum, cite the contractual provision allegedly violated. Generalized allegations
of a contractual breach are not sufficient." Cummins Law Office, P.A. v. Norman
Graphic Printing Co., No. CIV. 11-2061 RHK/FLN, 2012 WL 3430447, at *3 (D.
Minn. Aug. 14, 2012) (alterations in original) (quoting Otani v. State Farm Fire &
Cas. Co., 927 F. Supp. 1330, 1335 (D. Haw. 1996)). In other words, the plaintiff
"must plead enough facts, if true, that 'show' it is entitled to relief." Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009)). Thus, a complaint "fails to state a
claim for breach of contract [if] it does not set out [the claimant's] rights or [the
defendant's] obligations under the contract." Trotter's Corp. v. Ringleader Rests., Inc.,
929 S.W.2d 935, 941 (Mo. Ct. App. 1996)). "Vague references to unspecified
'agreements' are insufficient to state a claim for breach of contract." Reitz v. Nationstar
Mortg., LLC, 954 F. Supp. 2d 870, 884 (E.D. Mo. 2013) (citations omitted).
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We identify the following provisions in the Third Amended Complaint as the
sources of the purported promises that Principia made to Gillis: (1) the Matthew Code,
(2) Student Catalog provisions requiring notice prior to exclusion from class and
presentation before the Restorative Justice Committee, the circle, and Community
Board; (3) Principia's "Get Help When There is Immediate Danger" policy; (4)
Principia's "Health or Injury Emergency Response Program"; and (5) Principia's
"Parental Notification" policy. We conclude that none of the purported "promises"
contained in these sources are sufficient to state a claim for breach of contract under
Missouri law.
First, we conclude that the Matthew Code is "aspirational in nature" and
therefore cannot serve as the basis for Gillis's breach-of-contract claim. See Lucero,
400 S.W.3d at 6. Gillis contends that "'[t]he Matthew Code' dictates that when one
person has a conflict with another, the concerned person is to speak privately with the
other, in an effort to resolve the conflict." Gillis admits that "Principia based its
version of the 'Matthew Code' in religious texts"—unquestionably, the religious text
that Gillis is referring to is Matthew 18:15–17.12 The Matthew Code and the scriptural
After the court advised Gillis's counsel that Gillis does not "get to wait until
discovery to identify what promise was breached" and again asked "what promise was
breached," Gillis's counsel responded, "The promise that if you meet certain criteria,
you are going to be enrolled in a class, and we are not going to exclude you from that
class." Counsel argued that Gillis was entitled to notice prior to her exclusion from the
class.
12
Matthew 18:15–17 provides:
If your brother sins, go and show him his fault in private; if he listens to
you, you have won your brother. But if he does not listen to you, take
one or two more with you, so that by the mouth of two or three witnesses
-11-
passages embodied therein "do not amount to specific, discrete promises made by
[Principia]." See Lucero, 400 S.W.3d at 7. The Matthew Code does not set forth
"objective or quantifiable promises made by [Principia]." See id. Instead, the Matthew
Code embodies "general promises pronouncing [Principia's] intent to maintain an
ethical environment for its faculty and students" by setting forth principles of how to
resolve conflict. See id. These "aspirational" promises, see id. at 6, "cannot form the
basis of a breach of contract claim." See id. at 7.
Second, the Student Catalog provision requiring notice prior to exclusion from
class cannot serve as the basis for Gillis's breach-of-contract claim because it is
inapplicable to her. In her opening brief, Gillis concedes that Principia's exclusion
policy provides that
a student may be excluded with an F from a class for reasons including,
but not limited to, non-attendance, plagiarism, or cheating. Before
excluding the student from class, the instructor will inform the student in
writing of the reason for the exclusion and allow the student to respond.
A copy of the letter will be sent to the Scholastic Committee. (Emphasis
added.) (Quotations omitted.)13
Gillis's Third Amended Complaint does not allege that she was excluded from
the music course "with an 'F.'" As a result, the plain terms of Principia's exclusion
every fact may be confirmed. If he refuses to listen to them, tell it to the
church; and if he refuses to listen even to the church, let him be to you
as a Gentile and a tax collector.
The Holy Bible, Matthew 18:15–17 (New American Standard Bible).
13
In her Third Amended Complaint, Gillis sets forth only the second full
sentence of the above-quoted passage.
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policy does not apply to Gillis's exclusion from the music course because her exclusion
did not result in her receiving an "F."
Nor are the provisions discussing a student's presentation before the Restorative
Justice Committee, the circle, and the Community Board applicable to Gillis based on
the allegations contained in her complaint. Gillis's Third Amended Complaint provides
that "Principia's Restorative Justice Committee existed to 'help both the offender and
those affected to talk with each other about why the offense happened, what harm was
done to individuals and the community, and the reason for the standard.'" (Emphases
added.) (Quoting 2011–2012 Student Catalog, at 12–13.) Thus, a student's presentation
before the Restorative Justice Committee and potential presentation before the circle
and the Community Board are disciplinary procedures. Nowhere in Gillis's complaint
does she allege that Principia disciplined her following her exclusion from the music
class or what offense resulted in the discipline.14
Finally, Principia's "Get Help When There is Immediate Danger" policy, "Health
or Injury Emergency Response Program," and "Parental Notification" policy as set
forth in Gillis's Third Amended Complaint do not contain "rights or obligations" of
Principia, see Lucero, 400 S.W.3d at 5; instead, they contain general guidance on what
a "community member" should do in an emergency situation. As to the "Parental
Notification" policy, Gillis has failed to identify any language in that policy conferring
a duty on Principia to notify her parents.
14
The exclusion itself cannot be characterized as "discipline." Gillis's Third
Amended Complaint does not allege that Principia guaranteed her the right to take and
complete a particular class or receive a particular major. And, as previously noted,
Gillis does not allege that she received an "F" as a result of the exclusion.
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In summary, we hold that Gillis has failed to state a claim for breach of contract
because none of the policies and provisions that Gillis identifies in her Third Amended
Complaint create obligations that Principia owed to Gillis. See id.
B. IIED
Gillis next argues that the district court erred in dismissing her IIED claim
because she adequately "pleaded she was subjected to a continued campaign of tortious
conduct inflicted by [Principia], through its faculty and staff . . . in a clear position of
authority over [her]."
To state a claim for intentional infliction of emotional distress, a
plaintiff must plead extreme and outrageous conduct by a defendant who
intentionally or recklessly causes severe emotional distress that results in
bodily harm. K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. banc 1996). The
conduct must have 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."
Warrem v. Parrish, 436 S.W.2d 670, 673 (Mo. 1969). The conduct must
be "intended only to cause extreme emotional distress to the victim."
K.G., 918 S.W.2d at 799.
Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. 1997) (en banc); see also Gibson v.
Hummel, 688 S.W.2d 4, 7 (Mo. Ct. App. 1985) ("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, 'Outrageous!'" (quotation and citation
omitted)).
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Under Missouri law, "[i]t is for the court to determine, in the first instance,
whether the defendant's conduct may be reasonably regarded as so extreme and
outrageous as to permit recovery." St. Anthony's Med. Ctr. v. H.S.H., 974 S.W.2d 606,
611 (Mo. Ct. App. 1998) (citation omitted). "Missouri case law reveals very few
factual scenarios sufficient to support a claim for intentional infliction of emotional
distress." Kan. City Laser, Inc. v. MCI Telecomms. Corp., 252 F. App'x 100, 104 (8th
Cir. 2007) (unpublished per curiam) (quotation and citation omitted). In Missouri, it
is a rare occurrence when "a defendant's conduct [is] sufficiently extreme and
outrageous to warrant recovery." Id. (citing Hummel, 688 S.W.2d at 7–8 (listing cases
where Missouri courts have not found conduct alleged to inflict emotional distress to
be extreme and outrageous)).
Here, as recounted supra, Gillis alleges in her Third Amended Complaint that
the music professor yelled at her, excluded her, ignored and threatened her, and refused
to engage with her. She also alleges that some of Principia's administrators and staff
ignored her, yelled at her, refused to meet with her, and threatened her with suspension
if she persisted in challenging her exclusion from class.
The allegations set forth in Gillis's complaint detail, at most, "insults, indignities,
threats, annoyances, petty oppressions, or other trivialities" to which "[l]iability for
IIED 'clearly does not extend.'" Bailey v. Bayer CropScience L.P., 563 F.3d 302, 310
(8th Cir. 2009) (quoting Pretsky v. Sw. Bell Tel. Co., 396 S.W.2d 566, 569 (Mo.
1965)). They are comparable to that class of cases that the Missouri courts have held
failed to meet the high standard for extreme and outrageous conduct. See, e.g., Morris
v. Union Pac. R.R., 825 S.W.2d 911, 916 (Mo. Ct. App. 1992) (holding that plaintiff's
evidence that his various supervisors threatened to fire him, laughed at a cartoon
depicting him, watched him too closely, placed him on jobs for which he had no
experience, and allowed him to be absent from work but then complained to him about
his absenteeism, was insufficient to permit recovery on a claim of intentional infliction
-15-
of emotional distress); Hendrix v. Wainright Indus., 755 S.W.2d 411, 412 (Mo. Ct.
App. 1988) (holding that plaintiff who alleged that he was "continuously harassed and
threatened with termination" in retaliation for filing a complaint with the Occupational
Safety and Health Administration could not prevail on an IIED claim because the
defendant's conduct was not outrageous, although it was "undesirable" and "illegal");
Comstock v. Consumers Mkts., Inc., 953 F. Supp. 1096, 1106 (W.D. Mo. 1996)
(holding that plaintiff's claims that the epithet "bitch" was written on her time card, and
that her supervisor held her responsible for duties she did not believe were hers,
compared her legs to those of a coworker, stated that women were meant to be subject
to men, and frequently criticized her work, were "insensitive and unkind, but not
outrageous").
Therefore, we hold that the district court did not err in dismissing Gillis's IIED
claim.
C. NIED
Finally, Gillis argues that the district court erred in dismissing her NIED claim.
According to Gillis, her Third Amended Complaint sets forth allegations plausibly
demonstrating an unreasonable risk of emotional distress.
To state a claim of negligent infliction of emotional distress [under
Missouri law], appellant was required to plead: (1) appellees realized or
should have realized that their conduct involved an unreasonable risk of
causing distress; and (2) appellant suffered emotional distress or mental
injury that is medically diagnosable and sufficiently severe to be
medically significant.
Gordon v. City of Kansas City, Mo., 241 F.3d 997, 1004 (8th Cir. 2001) (citing
Brewer, 952 S.W.2d at 248–49).
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While Gillis alleges that her condition was "severe," she does not allege that her
"emotional distress or mental injury . . . is medically diagnosable," which is required
under Missouri law to state a NIED claim. See id. For that reason, the district court
properly dismissed her NIED claim.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
______________________________
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