United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
TIMOTHY J. CAVAN, United States Magistrate Judge.
Arlene Scheitzack (“Scheitzack”) brings this
action against her former employer Wells Fargo Bank, National
Association (“Wells Fargo”). In her Complaint,
Scheitzack asserts causes of action for wrongful discharge
under Montana's Wrongful Discharge from Employment Act,
Mont. Code Ann. § 39-2-901, et seq.
(“WDEA”) (Count I), negligent training and
supervision (Count II), negligent investigation (Count III),
and discrimination (Count IV). (Doc. 3.)
before the Court is Wells Fargo's Partial Motion to
Dismiss Counts II and III of the Complaint (Doc. 4), which
has been referred to the undersigned under 28 U.S.C. §
636(b)(1)(B). (Doc. 9.) The motion is fully briefed and ripe
for the Court's review. (Docs. 5, 7, 8).
considered the parties' submissions, the Court
RECOMMENDS Wells Fargo's Partial Motion
to Dismiss be GRANTED.
was hired by Wells Fargo in 2002 as a phone banker in
Sacramento, California. (Doc. 3 at ¶7.) Over the years,
Scheitzack advanced in the company, and in May 2011,
transferred to Billings, Montana to take a position as a
banker/assistant manager. (Id.) Scheitzack was
ultimately promoted to the position of Store Manager I, and
was recognized at the Wells Fargo national awards ceremony as
a “Top Manager” for the Rocky Mountain District
in 2014 and 2015. (Id. at ¶ 9-10.)
February 2015, Scheitzack took time off work to care for her
ill father, and to address her own personal health concerns.
(Id. at ¶ 14.) Scheitzack alleges she was
treated poorly when she returned to work. (Id.)
August 2015, Scheitzack received a formal warning relating to
a customer complaint and sales quality at her store.
(Id. at ¶ 13.) Scheitzack alleges that before
August 2015, she had never been “written up” for
any reason. (Id.)
December 2015, Scheitzack received an informal warning by her
supervisor for conducting personal matters during business
hours. (Id. at ¶ 16.)
April 19, 2016, Scheitzack was terminated. (Id. at
¶ 17.) Scheitzack alleges she was terminated in front of
her co-workers, without reason. (Id.)
under Rule 12(b)(6) is proper when the complaint either (1)
lacks a cognizable legal theory or (2) fails to allege
sufficient facts to support a cognizable legal theory.”
Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir.
2013) (quoting Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). The
Court's standard of review under Rule 12(b)(6) is
informed by Rule 8(a)(2), which requires that a pleading
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009)
(quoting Fed. R. Civ. P 8(a)).
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A plausibility
determination is context specific, and courts must draw on
judicial experience and common sense in evaluating a
complaint. Levitt v. Yelp! Inc., 765 F.3d 1123, 1135
(9th Cir. 2014).
Fargo argues Scheitzack's claims for negligent training
and supervision (Count II) and negligent investigation (Count
III) relate to the termination of her employment, and
therefore, should be dismissed because they are preempted by
the WDEA. Scheitzack counters that although she was
ultimately terminated, Wells Fargo's interim conduct
forms the basis of her negligence claims. Scheitzack argues
she was subject to emotional distress and humiliation prior
to her termination because Wells Fargo ...