LORELEI

HALECK, Plaintiff,

 

v.

 

AGAOLEATU

G. TAUTOLO, TRT, Inc., AMERICAN SAMOA 2000, Inc., and DOES I-XX, Defendants.

 

High

Court of American Samoa

Trial

Division

 

CA

No. 56-03

 

December

3, 2003

 

 

[1] In determining

a motion to dismiss for failure to state a claim, the complaint is to be

liberally construed and viewed in the light most favorable to the plaintiff.

 

[2] The Court

must take the material facts alleged in the complaint as true and read the complaint

as liberally as possible, drawing all inferences in favor of the plaintiff.

 

[3] Actions

founded on unwritten contracts shall be brought within 3 years under A.S.C.A. §

43.0120 (3).

 

[4] In an

at-will employment relationship, an employer can reduce an employee’s salary

provided that he gives the employee notice of the reduction and the employee

continues employment. 

 

[5] A contract

of employment or to perform services for an indefinite period is terminable at

will by either party, without liability for breach of contract or wrongful

discharge.

 

[6] Employment

manuals and handbooks may create contractual rights between the employee and

her employer. 

 

[7] Court will

not dismiss wrongful discharge claim where it does not have access to the

employment handbook, which may limit the employer’s right to discharge

employees. 

 

[8] As a matter of

law, plaintiff’s allegations of intentional infliction of emotional distress

are insufficient to withstand a motion to dismiss where employer merely questioned

a co-worker about employee’s fraternization with another employee.

 

[9] Actions not

directed at the employee have been held insufficient as a matter of law to

support an intentional infliction of emotional distress claim.

 

[10] A claim

based on the alter ego theory is not in itself a claim for substantive relief.

 

[11] An alter

ego claim in a complaint is sufficient notice under T.C.R.C.P. 8(a) that a

plaintiff seeks to hold the defendant individually liable for certain

actions. 

 

Before RICHMOND, Associate Justice, and

LOGOAI, Chief Associate Judge.

 

Counsel:          For Plaintiff, Marie A. Lafaele

For

Defendant Agaoleatu C. Tautolo, Devin McRae, Pro Hac Vice and William H.

Reardon

For

Defendants TRT, Inc. and American Samoa 2000, Inc., Marshall Ashley

 

ORDER

GRANTING IN PART MOTION TO DISMISS

 

Defendants

Agaoleata C. Tautolo (“Agaoleatu”), TRT, Inc. (“TRT”) and American Samoa 2000,

Inc. (“AS2000”) move to dismiss, pursuant to T.C.R.C.P. 12 (b) (6), the

complaint for damages filed by Plaintiff Lorelei Haleck (“Lorelei”).  Lorelei’s complaint alleges four counts

against all three Defendants in relation to the termination of her employment

at the McDonald’s restaurant in Tafuna. 

Lorelei alleges breach of contract for unpaid wages, breach of contract

for wrongful discharge, intentional infliction of emotional distress, and alter

ego liability.  For the reasons stated

below, we deny in part and grant in part the motion to dismiss.

 

Standard

of Review

 

[1-2] “In

determining a motion to dismiss for failure to state a claim, the complaint is

to be liberally construed and viewed in the light most favorable to the

plaintiff.”  Beaver v. Cravens, 17

A.S.R.2d 6, 8 (Trial Div. 1990).  We must

“take as true the material facts alleged in [Lorelei’s] complaint.”  McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273, 276 (1976).  Moreover, we

should          “read the complaint as

liberally as possible and . . . draw all inferences in favor of the

plaintiff.”  Gagliardi v. Universal

Outdoor Holdings, Inc., 137 F. Supp. 2d 374, 378 (S.D.N.Y. 2001).

 

Breach

of Contract for Unpaid Wages

 

[3] In

count one of her complaint, Lorelei seeks damages for unpaid wages allegedly

accrued during her employment at McDonald’s. 

Defendants argue that Lorelei seeks $24,500 in damages that are barred

by the statute of limitations applicable to oral agreements.  We agree. 

“[A]ctions founded on unwritten contracts . . . shall be brought within

3 years.”  A.S.C.A. § 43.0120 (3).  Lorelei is thus barred from recovering any

damages which occurred prior to August 20, 2000.  A.S.C.A. § 43.0120; Jennings v. Jennings,

19 A.S.R.2d 34, 38-39 (Land & Titles Div. 1991).

 

Lorelei alleges that

in April 2001, she and other management level employees were reclassified in a

cost-saving measure.  Lorelei alleges her

pay was reduced from    $1,500.00 twice

monthly to $1,041.67 twice monthly, and she seeks the $458.33        differential for the months in which she

was paid the reduced amount.  In

addition, Lorelei claims she was paid one payment of $1,041.67 and another

payment of $750.00 in July of 2001 and only one payment $750.00 in August of

2001.

 

[4] Lorelei

claims that the reduction in her wages and the non-payment of the August wages

constitute a breach of her oral employment contract.  Defendants claim that Lorelei cannot recover

the $458.33 pay differential because she admits her salary was legitimately

reduced along with other management employees as a cost saving measure.  We agree. 

Even assuming Lorelei can establish her employment was not at-will,[1] she may not recover the

pay differential when she admits that her salary was reduced in April of 2001

for valid economic reasons.  See, e.g.,

Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391, 1395 (9th Cir.

1985).  However, this does not affect her

allegations that she was only paid $750.00 in July and August rather than her

salary payments of $1,041.67.

 

In sum, we decline to

dismiss Lorelei’s claim for unpaid wages. 

However, Lorelei is precluded from recovering any pay differential that

resulted from the April 2001 valid salary reduction.  In addition, her request for damages which

occurred prior to August 20, 2000, is barred by the applicable statute of

limitations.

 

Breach

of Contract for Wrongful Discharge

 

[5-6] In

count two of her complaint, Lorelei seeks damages claiming the Defendants

breached her employment contract and wrongfully discharged her.  Generally, “a contract of employment or to

perform services for an indefinite            period

is . . . terminable at will by either party, without liability for breach of

contract or wrongful discharge.”  6 William Meade Fletcher et al., Fletcher

Cyclopedia of the Law of Private Corporations § 2579.  American Samoa follows this general rule.

 

The common law principle governing

termination of an ‘at will’ employee is that, if the parties have neither fixed

a definite term of employment nor created a contractual obstacle to the right

of discretionary discharge, then the employer may discharge the employee under

any circumstances without incurring liability.

 

Palelei v. Star

Kist Samoa, Inc., 5 A.S.R.2d 162, 165 (Trial Div.

1987).  Employment manuals and handbooks

may create contractual rights between the employee and her employer.  See id.  Lorelei alleges that “[t]he employment and

training manual that [she] relied upon in accepting employment with McDonald’s

implied that [she] would not be terminated without ‘good cause’ and that

disciplinary action would be progressive.” 

(Compl. ¶ 32.)  Similar

allegations have been held sufficient to withstand a motion to dismiss in a

number of jurisdictions. See, e.g., Scheid v. Fanny Farmer Candy

Shops, Inc., 859 F.2d 434, 437-38 (6th Cir. 1988); Atsepoyi v. Tandy

Corp., 51 F. Supp. 2d 1120, 1126 (D. Colo. 1999); Johnson v. N.T.I.,

898 F. Supp. 762, 765-66 (D. Colo. 1995); Mulcahey v. Hydro-Line Mfg. Co.,

707 F. Supp. 331, 335-36 (N. D. Ill. 1988); Brezinski v. F.W. Woolworth Co.,

626 F. Supp. 240, 243 (D. Colo. 1986); Burns v. Preston Trucking Co.,

621 F. Supp. 366, 368-69 (D. Conn. 1986).

 

[7] Cases

which have dismissed a plaintiff’s complaint under a Rule 12(b)(6) motion had

the benefit of reviewing the employee manual because it was attached to the

complaint.  Coatney v. Enter.

Rent-A-Car Co., 897 F. Supp. 1205, 1207-11 (W.D. Ark. 1995) (dismissing

plaintiff’s allegations of breach of contract and wrongful discharge because of

disclaimer in employment handbook); Bartenbach v. Bd. of Tr. of Nassau

Library Sys., 657 N.Y.S.2d 200 (N.Y. 1997) (dismissing plaintiff’s

complaint because plaintiff failed “to allege anything more than an employment

at will” when her employment manual “did not . . . limit the defendants’ right

to discharge an employee at will to just and sufficient cause only.”).  Unfortunately, we do not have the benefit of

reviewing the manual at this stage.

 

In light of the

standard for considering a Rule 12(b)(6) motion, Defendants’ motion to dismiss

count two of Lorelei’s complaint is denied.

 

Intentional Infliction of Emotional Distress

 

In count three,

Lorelei alleges Agaoleatu committed the tort of intentional infliction of

emotional distress (“IIED”).  As the

basis for this claim, Lorelei alleges she was informed by another McDonald’s employee

that that employee had been questioned by Agaoleatu regarding an alleged affair

between that employee and Lorelei. After this conversation, Lorelei informed

her manager of the situation and took a one-week leave.  Shortly thereafter she met with Agaoleatu and

her supervisor.  At this meeting, Lorelei

claims her supervisor wrongly terminated her for violating McDonald’s

fraternization policy.[2] 

 

[8-9]

As a matter of law, Lorelei’s allegations are insufficient to withstand a

motion to dismiss.  See, e.g., Balark

v. Ethicon, Inc., 575 F. Supp. 1227, 1230-32 (C.D. Ill. 1983).  First, Agaoleatu never confronted Lorelei

directly with the allegations of fraternization, nor did he actually

communicate her termination to her. 

Actions not directed at the employee have been held insufficient as a

matter of law to support an IIED claim. 

See Wolff v. Middlebxooks, 568 S.E.2d 88, 90 (Ga. Ct. App. 2002)

(“[E]ven malicious, wilful or wanton conduct will not warrant a recovery for

the infliction of emotional distress if the conduct was not directed toward the

plaintiff.”) (quoting Ryckeley v. Callaway, 412 S.E.2d 826 (Ga.

1992)). 

 

Moreover,

several jurisdictions have found that more severe allegations did not state a

claim for intentional infliction of emotional distress.  See Sacharnoski v. Capital Consol., Inc.,

187 F. Supp. 2d 843, 845 (W.D. Ky. 2002) (dismissing plaintiff’s IIED claim

because allegations that employer forced employee to falsify employment

records, and then terminated him for falsifying such records did not meet the

level of outrageous conduct necessary to sustain an IIED claim); Jackson v.

Blue Dolphin Comm. of North Carolina, L.L.C., 226 F. Supp. 2d 785, 793-94

(W.D.N.C. 2002) (dismissing IIED claim because allegations that employer “asked

[plaintiff] to sign false affidavit” and “made a racially discriminatory

statement to her” and terminated her from her position were insufficient to

meet the requisite extreme and outrageous conduct necessary to sustain an IIED

claim); Poulos v. Vill. of Lindenhurst, 2002 WL 31001876, *17 (N.D.   Ill. Sept. 3, 2002)         (noting that the defendants’ “alleged conduct–tampering

with [plaintiff’s] belongings, throwing firecrackers at her, making insulting

remarks to and about her and engaging in a physical altercation with her–do

not rise to the level of outrageousness required to state an IIED claim”); Lydeatte

v. Bronx Overall Econ. Dev. Corp., 2001 WL 180055, *2 (S.D.N.Y. Feb. 22,

2001) (allegations that defendant harassed plaintiff, denied her the same

benefits her coworkers received, wrongfully terminated her, and retaliated

against her were insufficient to meet the IIED standard).  As such, we grant Defendants’ motion to

dismiss count three of Lorelei’s complaint.

 

Alter

Ego Liability

 

[10-11] Count

four of Lorelei’s complaint is for alter ego liability in which she seeks to

hold Agaoleatu individually liable for counts one and two of her

complaint.  Lorelei’s counsel admitted at

the November 17, 2003 hearing on this matter that this count was improperly

pled.  It is well established that a

“claim based on the alter ego theory is not in itself a claim for substantive

relief.”  1 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of

Private Corporations § 41.10 (perm. ed., rev. vol. 1999).  However, Lorelei’s complaint does not seek

separate relief under count four but, rather, seeks to hold Agaoleatu

individually liable under counts one and two of her complaint.  (Compl. ¶ 63.)  In this regard, Lorelei has provided

Defendants with sufficient notice of her claims and Defendants’ motion to

dismiss count four is denied.  See

Gagliardi, 137 F. Supp. 2d at 379 (“In the end, the question must be

whether plaintiff has complied with the requirements of Rule 8(a),

[T.C.R.C.P.], to apprise the defendants of the charges asserted against

them.”).

 

ORDER

 

Defendants’

motion to dismiss is granted in part. 

Count three of Lorelei’s complaint is dismissed.  Defendants’ motion to dismiss the remaining

counts is denied.  However, Lorelei’s

request for $24,500 in damages, which is outside the applicable statue of

limitations, is stricken from the complaint, and Lorelei may not recover any

alleged lost wages which occurred as a result of the April 2001 salary

reduction.

 

It is so

ordered.