In Dillingham v. Otterbein Middletown, LLC, Case No. 1:23-cv-00820, 2024 WL 3470646 (S.D.Ohio July 19, 2024), the court denied defendants’ motion to dismiss plaintiff’s claim of intentional infliction of emotional distress.
From the decision:
In the case at bar, defendants contend that plaintiff’s allegations do not rise to the outrageous or extreme conduct required to support an IIED claim. (Doc. 10 at PAGEID 102-05). Dillingham alleges that defendants knowingly subjected her to repeated unwanted sexual advances and physical assaults by a particular patient. (Doc. 9 at PAGEID 72). The patient allegedly “repeatedly groped Dillingham’s breasts, as well as other sensitive areas of Dillingham’s body,” and, on multiple occasions, lured Dillingham to his room at night “by calling for medical assistance, only to then confront Dillingham by openly stroking his erect penis while naked.” (Id.). Dillingham alleges that she complained to both Augenstein and Katie about the sexual harassment, but defendants failed to investigate the incidents or take action to protect Dillingham from further assaults. (Id. at PAGEID 73-75).
In at least one case, a court considered an employer’s intentional refusal to investigate or intervene in repeated sexual harassment outrageous enough to support an intentional infliction of emotional distress claim. See Barhouma v. Athenian Assisted Living, Ltd., No. 1:14-cv-02214, 2015 WL 5437786 (N.D. Ohio 2015) (refusal to take corrective action where another employee “placed his hands under Plaintiff’s shirt and panties” on a daily basis sufficiently outrageous to support intentional infliction of emotional distress claim). But see Gardner v. CLC of Pascagoula, LLC, No. 1:15-cv-423, 2017 WL 487031, at *11 (S.D. Miss. Feb. 6, 2017)3 (Care facility entitled to summary judgment on intentional infliction of emotional distress claim from nursing assistant told to continue to care for male patient who groped and assaulted her or be fired because “conduct is not utterly intolerable in a civilized society, since [plaintiff] was hired to do the work necessary to care for patients who cannot conform their behavior to the standards of civilized society.”).
Defendants argue that the alleged perpetrator, a patient in a long-term care facility, was not an Otterbein employee so defendants are not responsible for his conduct. (Doc. 13 at PAGEID 157). However, the alleged perpetrator’s actions are not the focus of plaintiff’s claim. Plaintiff’s amended complaint alleges that Otterbein and Augenstein knowingly and repeatedly subjected plaintiff to the patient’s sexual harassment and assaults, refused to investigate her complaints, and refused to take action to minimize her exposure to the patient or otherwise protect her from his abuse. (Doc. 9 at PAGEID 72-75). Accepting plaintiff’s allegations as true, as required at the Rule 12(b)(6) stage of proceedings, the Court is unprepared to declare that those alleged facts are not sufficiently outrageous to support a claim for intentional infliction of emotional distress.
Based on this, the court permitted that plaintiff’s intentional infliction of emotional distress claim may proceed, but only as to the aforementioned particular allegations.