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govinfo:USCOURTS-mnd-0_25-cv-04407-0
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Sylvia Rabo,
Plaintiff,
v.
Essentia Health, a non-profit Minnesota
corporation,
Defendant.
File No. 25-cv-4407 (ECT/LIB)
OPINION AND ORDER
Karin Ryan and Charlie R. Alden, Gilbert Alden Barbosa PLLC, Burnsville, MN, for
Plaintiff Sylvia Rabo.
Terran C. Chambers and Hannah Camilleri Hughes, Faegre Drinker Biddle & Reath LLP,
Minneapolis, MN, for Defendant Essentia Health.
Sylvia Rabo worked as a cardiovascular perfusionist for Essentia Health in Fargo,
North Dakota. There, Rabo alleges, she suffered discrimination based on her race, national
origin, and sex, including sexual harassment, all at the hands of her direct supervisor.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Essentia has moved to dismiss
four of the Amended Complaint’s six counts. The motion will be granted for the most part.
(1) Fatal to her hostile-environment sexual-harassment claim under the North Dakota
Human Rights Act, the Amended Complaint does not allege that Rabo reported sexual
harassment to Essentia. However, Rabo’s claim that her Essentia employment was
terminated for rejecting her supervisor’s sexual advances in violation of the North Dakota
Human Rights Act will not be dismissed. (2) The negligent-supervision-or-retention claim
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will be dismissed because the Amended Complaint does not plausibly allege that the
harassing conduct of Rabo’s supervisor was reasonably foreseeable to Essentia. (3) The
claim that Rabo’s termination violated public policy will be dismissed because the
Amended Complaint does not tether the alleged public policy to a rule having the force of
law. (4) And Rabo’s claim for intentional infliction of emotional distress will be dismissed
because the supervisor’s harassment on which the claim depends was not plausibly within
the supervisor’s scope of employment.
I1
Rabo began working as a cardiovascular perfusionist (her formal title was
“perfusionist – surgery”) at Essentia-Fargo’s Heart and Vascular Center in October 2023.
Am. Compl. [ECF No. 12] ¶¶ 18–19.2 When Rabo started at Essentia, Carl Moser was the
1 In accordance with the standards governing Rule 12(b)(6) motions, the facts are
drawn entirely from the operative Amended Complaint and documents embraced by
it. Glow In One Mini Golf, LLC v. Walz , 37 F.4th 1365, 1370 (8th Cir. 2022). Relevant
here, “materials embraced by the complaint include documents whose contents are alleged
in a complaint and whose authenticity no party questions, but which are not physically
attached to the pleadings.” Zean v. Fairview Health Servs. , 858 F.3d 520, 526 (8th Cir.
2017) (citation modified).
2 According to the Mayo Clinic,
Cardiovascular perfusionists are responsible for operating
extracorporeal circulation equipment, such as the heart-lung
machine, during an open-heart surgery or any other medical
procedure in which it is necessary to artificially support or
temporarily replace a patient’s circulatory or respiratory
function.
Perfusion is the passage of bodily fluids, such as blood,
through the circulatory or lymphatic system to an organ or
tissue. Because the heart is mainly responsible for pumping
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chief perfusionist and Rabo’s direct supervisor. Id. ¶¶ 26, 31. Rabo and Moser were the
only full-time perfusionists, and they typically split all perfusionist procedures evenly. See
id. ¶¶ 21, 39, 43. Moser also supervised a “ PRN3 perfusionist” who worked at another
hospital and traveled to Fargo to cover Rabo and Moser’s vacations. Id. ¶¶ 31–33. Moser
managed the perfusionists’ schedules. See id. ¶¶ 31, 35–36.
On June 14, 2024, Moser died unexpectedly, and Duane Neugebauer, the cardiac
department’s supervisor, became Rabo’s direct supervisor. See id. ¶ 42, 202. Following
Moser’s death, Rabo was the only full-time perfusionist on staff. Id. ¶ 43.
On June 25, 2024, Neugebauer offered Rabo the chief perfusionist position. Id.
¶ 44. After accepting that offer, Rabo went “from handling about 50% of the cases to
handling all of the cases and potentially working 24/7.” Id. ¶ 48. “Rabo notified
Neugebauer they needed to hire a second perfusionist to comply with AmSECT’s 4
fluid through the body, when a patient has a procedure that
interrupts the heart’s normal function, a cardiovascular
perfusionist steps in to temporarily do the heart’s job. They
monitor a patient’s vitals and then select appropriate
equipment and technique to manage normal blood flow, body
temperature, and other respiratory functions.
Cardiovascular Perfusionist, Mayo Clinic Coll. of Med. & Sci., https://college.mayo.edu/
academics/explore-health-care-careers/careers-a-z/cardiovascular-perfusionist (last visited
June 11, 2026).
3 “PRN” is the medical abbreviation for the Latin phrase pro re nata , which means
“as needed.” See pro re nata, Merriam -Webster, https://www.merriam-webster.com/
dictionary/pro%20re%20nata (last visited June 11, 2026); see also Am. Compl. ¶ 32.
4 AmSECT is the “American Society of ExtraCorporeal Technology,” and it provides
Standards and Guidelines for Perfusion Practice to be used “as a checklist or template to
ensure departments follow what is expected of a perfusion team by its national society.”
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Guideline 15.1,” id. ¶ 46, but Neugebauer refused, id. ¶¶ 53–54. Instead, Neugebauer hired
PRN or locum5 perfusionists to fill in for Rabo one week per month. Id. ¶¶ 55, 59. That
left Rabo working “as the only perfusionist three out of four weeks per month,” and during
those three weeks, “she was either scheduled for a procedure or could be called at any time
for a procedure 24/7.” Id. ¶ 58. “Neugebauer finally agreed to also hire two other PRNs[,]
but they only covered on-call shifts along with Rabo.” Id. ¶ 60. The PRN perfusionists
earned a higher hourly wage than Rabo. See id. ¶¶ 32, 44.
According to the Amended Complaint, “shortly after Rabo was made Chief
Perfusionist, Neugebauer began harassing and discriminating against her.” Id. ¶ 66. To
support these legal characterizations of Neugebauer’s conduct, the Amended Complaint
alleges Neugebauer: (1) controlled scheduling, id. ¶ 67; (2) ignored Rabo’s scheduling
requests and prioritized requests of male PRNs, id. ¶ 68; (3) expected Rabo to handle all
the cases three out of four weeks per month, called Rabo “lazy,” and told her if he did not
schedule her continuously, she would “lay around and do nothing,” id. ¶ 69; (4) did not
require white male perfusionists to handle all cases, id. ¶ 71; (5) paid Rabo less for on-call
scheduling than PRN perfusionists were paid, id. ¶¶ 72, 77; (6) told Rabo she was
See AmSECT’s Standards and Guidelines, AmSECT, https://amsect.org/policy-
practice/amsects-standards-and-guidelines (last visited June 11, 2026). AmSECT’s
guidelines “are what AmSECT has determined are the minimum requirements for safe
cardiopulmonary bypass.” Id.
5 A “locum” or “locum tenens” refers to “one filling an office for a time or
temporarily taking the place of another.” Locum tenens, Merriam Webster, https://
www.merriam-webster.com/dictionary/locum%20tenens (last visited June 11, 2026).
CASE 0:25-cv-04407-ECT-LIB Doc. 26 Filed 06/12/26 Page 4 of 25
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“‘difficult to deal with’ and insinuated he would fire her” when she requested schedule
changes or additional compensation, id. ¶ 74.
On September 30, 2024, Rabo reported to Essentia human resources that
Neugebauer had discriminated against her based on her gender, race, and national origin.
Id. ¶ 76. Rabo wrote:
My name is Sylvia Rabo, and I am writing to formally report
the discrimination I have experienced from my immediate
manager, Duane Neugebauer. This treatment has been severe,
pervasive, and appears to be motivated by gender, race, and
national origin[.]
As the only full-time, Black female chief perfusionist, my input
is consistently dismissed, ignored, and considered last when it
comes to the monthly scheduling. For example, Duane
informed PRN staff, specifically a White male, that the
intention was not for him to handle all the cases during the
week he was scheduled. However, since the death of our other
full-time staff, I have been handling 90-95% of the cases at the
hospital. When I requested help with locum support or
additional compensation, Duane responded by stating I would
not be paid because I would “lay around and do nothing” on
days without cases. He suggested that he rather [sic] replace
me with Locums.
The hospital is intended to have two full-time perfusionists. It
was acceptable to have slow periods when there were two of
us, but now, being the sole full -time staff, the workload has
become a lot. Despite this, PRN staff are compensated
generously with overtime on slow days and other incentives,
while my requests have been ignored.
Additionally, Duane frequently compares my work ethic to that
of his daughter, also a perfusionist, which I find inappropriate
and demeaning. On Thursday, September 26, 2024, I went to
Duane’s office to discuss the November schedule, which I felt
was unfair to me. Instead of addressing my concerns, he called
me “difficult to deal with” and mentioned how he recently fired
someone.
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This behavior has created a hostile work environment for me.
I love working at Essentia Health, and I am respectfully asking
for this issue to be resolved.
Id.; see ECF No. 18-1 at 3–5. On October 16, 2024, Essentia human resources notified
Rabo that it had investigated but did not substantiate that the discrimination or hostile work
environment described in Rabo’s September 30 email had occurred. Am. Compl. ¶ 78.
On November 11, 2024, Neugebauer agreed to provide Rabo with additional pay
for each call shift, but only until a second perfusionist was hired at the end of June 2025.
Id. ¶¶ 79–80. Rabo received additional pay for November and December 2024. Id. ¶ 81.
But beginning in January 2025, Neugebauer stopped scheduling Rabo for fifteen
consecutive days, resulting in a reduction in Rabo’s call pay. See id. ¶¶ 82–83, 91. Rabo
also took issue with Neugebauer instructing another person to handle PRN perfusionists’
questions or orientation; Rabo believed these duties should be hers as Chief Perfusionist,
and that giving them to someone else undermined her credibility. Id. ¶¶ 84 –85. On
December 18, 2024, Rabo wrote to Essentia’ s human resources department to complain
about these on-call scheduling issues. See id. ¶ 91.
Neugebauer hired his daughter, Corie Bellefeuille, as a PRN perfusionist to cover
Rabo’s vacation during the week of December 22, 2024. Id. ¶ 86.6 At some point that is
6 Bellefeuille and Rabo had interacted prior to Bellefeuille’s coverage of Rabo’s
vacation. After she became a perfusionist in June 2023, Bellefeuille visited Essentia at
some point that is not identified in the Amended Complaint. At that time, Bellefeuille
refused to allow Rabo to “personally orient [her] to [Essentia’s] policies and procedures.”
Am. Compl. ¶ 88. On November 11, 2024, Bellefeuille filed a complaint with Essentia’s
human resources department, claiming that Rabo’s attempts to orient her at this visit were
inappropriate. Id. ¶ 90.
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not clear from the Amended Complaint, Bellefeuille complained to Rabo and Neugebauer
about scheduling, the department’s use of expired equipment, the understocking of
supplies, and the absence of teamwork within the department. See id. ¶¶ 94–100. On
December 30, 2024, Bellefeuille filed a human resources complaint against Rabo, reporting
that Rabo failed to complete development conversations with PRN staff, engaged in hostile
communications with other employees and staff, used expired items, failed to keep supplies
stocked, and was not present on site when she should have been. Id. ¶ 109.
On January 14, 2025, Rabo notified Essentia ’s human resources that Bellefeuille
refused to follow Rabo’s directions or allow Rabo to orient her regarding the department’s
procedures. Id. ¶ 111. On January 20, 2025, Rabo asked Essentia human resources to
reopen her case against Neugebauer regarding “ongoing discrimination and harassment.”
Id. ¶ 113.
On February 20, 2025, Neugebauer placed Rabo on a Performance Improvement
Plan (or “PIP”) because Rabo’s “performance had fallen below expected levels. ” Id.
¶ 116. The PIP identified concerns regarding Rabo’s performance and future expectations
regarding her improved performance. See id. ¶¶ 117, 141. Rabo disputes these concerns,
and she alleges that Moser and other male PRN perfusionists were not held to the same
expectations. See id. ¶¶ 122, 128, 134, 177–81. As part of the PIP, Rabo was required to
check in and out with Neugebauer every day. See id. ¶ 179.
Rabo alleges that from February 28 to May 16, 2025, Neugebauer made sexually
suggestive and racially inappropriate gestures and remarks to Rabo at her PIP -required
check-ins. Id. ¶¶ 186–90. Neugebauer made sexually suggestive comments, commented
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on Rabo’s anatomy, called Rabo racial epithets, and touched his genitals in Rabo’s
presence. Id. ¶ 190. Following the first of these two incidents —in which “Neu gebauer
mentioned with an air kiss and a wink that Rabo could come to his office” an hour early
and suggested the same several days later “with a wink and a sexually suggestive lick of
his tongue”— Rabo took a six-week FMLA leave “for a mental break” starting March 7,
2025. Id. ¶¶ 186–88.
At a PIP follow-up meeting on May 16, 2025, with Neugebauer and an Essentia
human resources representative, Rabo mentioned that between surgeries she “took
lactation breaks,” because she was a nursing mother and “needed to go to the bathroom to
express breast milk.” Id. ¶¶ 191, 196–98. According to Rabo, “Neugebauer expressed his
disbelief and indicated he did not like the fact Rabo was going to the bathroom to pump
breast milk where he could not find her.” Id. ¶ 199.
On May 20, 2025, Rabo filed a complaint with Essentia human resources,
complaining of “discrimination, harassment and retaliation since February 21, 2025.” Id.
¶ 202. Rabo complained of being: (1) placed on PIPs with vague goals; (2) required to
report to Neugebauer at check-ins that were “ uncomfortable and at time hostile since he
made bullying remarks and used racial slurs directed at her”; (3) “[a]ccused of leaving
expired items in the pump roo m”; (4) required to provide accounts of her whereabouts,
with her badge activity monitored and others being instructed to observe her actions; and
(5) “[s]ubjected to disbelief and dismissiveness when she explained to Neugebauer that she
used a breast pump during breaks.” Id. Rabo complained that Neugebauer’s behavior was
“unacceptable and has created a hostile and unsafe work environment” and that his
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behavior had “persisted and escalated” despite Rabo’s “several attempts to address
[Neugebauer’s] discriminatory and retaliatory actions.” Id. That same day, Neugebauer
changed Rabo’s position to “scout nurse,” which Rabo asserts “undermined her credibility
as the Chief Perfusionist” since it did not “require the same high level of professional
credentialling as a perfusionist.” Id. ¶ ¶ 203–04; see id. ¶ 206 (describing scout nurse as
“a non-sterile member of a surgical team” that “coordinat[es] the operating rooms’
activities” and “monitor[s] the intra-operative environment and aseptic status of the sterile
team”).
Neugebauer’s sexually and racially inappropriate comments continued between
May 20 and May 27, 2025. See id. ¶ 208. On May 28, 2025, Rabo again complained to
Essentia’s human resources department, stating that “as a Black female she felt unsafe
during her morning check-ins with Neugebauer.” Id. ¶¶ 209–10. Rabo stated that the
check-ins and check-outs with Neugebauer were “hurtful” and “requir[ed] the victim to
return to the abuser on a daily basis.” Id. ¶ 210. Rabo requested that the PIP check-ins be
stopped. Id. ¶ 209. On May 30, “Rabo again requested FMLA leave due to the effect of
Neugebauer’s outrageous actions on her emotional and mental state.” Id. ¶ 211. Essentia
granted the leave. Id. At the end of her May 30 shift, Rabo’s access to Essentia’s email
and work portal were blocked. Id. ¶ 212.
On June 4, 2025, during a meeting between Rabo, Neugebauer, and an unnamed
Essentia human resources representative, Rabo’s employment was terminated. Id. ¶ 213.
Neugebauer replaced Rabo with his daughter, Bellefeuille, who Rabo believes was given
the chief perfusionist position. Id. ¶¶ 216–17. In a letter dated June 11, 2025, Essentia
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wrote that Rabo was terminated because she “failed to meet the performance expectations
of [her] role” and her “performance created undue safety risks for patients and substantially
interfered with [Essentia’s] business operations.” Id. ¶ 218.
Rabo filed this case in St. Louis County, Minnesota District Court on November 14,
2025. ECF No. 1-1. On November 21, 2025, Essentia removed the case based on diversity
jurisdiction. See ECF No. 1.7 Rabo asserts six claims in her Amended Complaint: a claim
7 There is subject-matter jurisdiction over this case, but why this is so deserves a brief
explanation. Rabo filed this case originally in St. Louis County, Minnesota District Court.
ECF No. 1-1. Before being served with the Complaint (more on that in a bit), Essentia
removed the case to this court, alleging there is federal subject- matter jurisdiction under
the general diversity statute, 28 U.S.C. § 1332(a)(1). ECF No. 1 ¶¶ 5–11. “To remove a
case from a state court to a federal court, a defendant must file in the federal forum a notice
of removal ‘containing a short and plain statement of the grounds for removal.’” Dart
Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 83 (2014) (quoting 28 U.S.C.
§ 1446(a)). In Dart, the Supreme Court interpreted § 1446(a)’s “short-and-plain-
statement” requirement to mean that a removing defendant must include factual allegations
in its notice of removal plausibly showing that statutory jurisdictional prerequisites are
met. Id. at 87–89. Here, in other words, Dart required Essentia to allege facts plausibly
showing that it and Rabo were citizens of different states and that the amount in controversy
exceeded “$75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)(1). Essentia did
that. In it notice of removal, Essentia plausibly alleged that Rabo is a North Dakota citizen,
that it is a Minnesota citizen, and that the amount in controversy exceeds $75,000 . ECF
No. 1 ¶¶ 5–11.
But there is a wrinkle. Though Essentia is a Minnesota citizen—meaning the forum-
defendant rule in 28 U.S.C. § 1441(b)(2) would ordinarily have prevented it from removing
the case—Essentia asserted in its notice of removal that “[t]he forum defendant rule . . .
does not apply to this removal because the forum defendant (Essentia) ha[d] yet to be
‘properly . . . served.’” ECF No. 1 ¶ 8 (quoting 28 U.S.C. § 1441(b)(2)). The Eighth
Circuit has not decided whether this so-called “snap removal” is proper. See M & B Oil,
Inc. v. Federated Mut. Ins. Co., 66 F.4th 1106, 1109–10 (8th Cir. 2023); Mosley v. First
Student, Inc., No. 4:25-CV-1440-CMS, 2025 WL 3466952, at *3 (E.D. Mo. Dec. 3, 2025).
But it doesn’t matter here. The Eighth Circuit has held “that violation of the forum-
defendant rule is a nonjurisdictional defect in removal that is waived if not raised in ‘[a]
motion to remand . . . made within 30 days after the filing of the notice of removal.’”
Holbein v. TAW Enters., Inc., 983 F.3d 1049, 1053 (8th Cir. 2020) (en banc) (quoting 28
U.S.C. § 1447(c)). Here, Rabo did not file a motion to remand.
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of discrimination based on “race, gender, sex, and/or national origin” in violation of the
North Dakota Human Rights Act, N.D. Cent. Code § 14-02.4-03, Am. Compl. ¶¶ 235–39
(Count I); a claim of sex discrimination based on sexual harassment, including hostile work
environment and quid-pro-quo termination, in violation of the North Dakota Human Rights
Act, N.D. Cent. Code § 14-02.4-03, Am. Compl. ¶¶ 240 –50 (Count II); a claim of
retaliation in violation of the anti-retaliation and whistleblower-protection provision of the
North Dakota Human Rights Act, N.D. Cent. Code § 14-02.4-18, Am. Compl. ¶¶ 251–54
(Count III); a common -law claim of negligent supervision and retention, id. ¶¶ 255–59
(Count IV); a common-law claim of retaliation and wrongful termination in violation of
public policy, id. ¶¶ 260–63 (Count V); and a common-law claim of intentional infliction
of emotional distress, id. ¶¶ 264–72 (Count VI). Though the Amended Complaint does not
specify a source of law underlying the common-law claims, Rabo’s counsel confirmed at
the hearing on this motion that the common-law claims arise exclusively under North
Dakota law. Tr. (rough) at 12.
II
In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
court must accept all the complaint’s factual allegations as true and draw all reasonable
inferences in the plaintiff’s favor. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir.
2014). Although the factual allegations need not be detailed, they must be sufficient to
“raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). The complaint must “state a claim to relief that is plausible on its face.”
Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that
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allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Considering “matters outside the pleadings” generally transforms a Rule 12(b)(6)
motion into one for summary judgment, but not when the relevant materials are
“necessarily embraced” by the pleadings. Zean v. Fairview Health Servs., 858 F.3d 520,
526 (8th Cir. 2017). Materials embraced by the complaint include “documents whose
contents are alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the pleading.” Kushner v. Beverly Enters., Inc., 317 F.3d
820, 831 (8th Cir. 2003) (quoting In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.
1996)). Here, Essentia has submitted seven documents, each of which is referenced in the
Amended Complaint. See ECF No. 18, Exs. A–G. Rabo does not challenge the
authenticity of these documents, meaning they may be considered without converting this
motion into one for summary judgment.
III
Essentia seeks the dismissal of Counts II, IV, V, and VI, and the claims will be
analyzed in that order.
A
The North Dakota Human Rights Act prohibits sex discrimination, including sexual
harassment. The Act characterizes “sexual harassment” as a “discriminatory practice,” and
defines sexual harassment as including “unwelcome sexual advances, requests for sexual
favors, sexually motivated physical conduct or other verbal or physical conduct or
communication of a sexual nature when . . . [t]hat conduct or communication has the
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purpose or effect of substantially interfering with an individual’s employment.” N.D. Cent.
Code §§ 14-02.4-02(6), 14-02.4-03(1). The Act limits an employer’s liability for hostile-
work-environment sexual harassment perpetrated by its employees to those situations
where the employer “knows or should know of the existence of the harassment and fails to
take timely and appropriate action.” N.D. Cent. Code § 14-02.4- 02(6)(c). The North
Dakota Supreme Court has explained that a claim for hostile work environment under the
Act
requires proving five elements: (1) the employee belongs to a
protected class; (2) the employee was subject to unwelcome
sexual harassment; (3) the sexual harassment was based on sex;
(4) the harassment affected a term, condition , or privilege of
employment; and (5) the employer knew or should have known
of the harassment and failed to take proper remedial action.
Hysjulien v. Hill Top Home of Comfort, Inc., 827 N.W.2d 533, 544 (N.D. 2013) (citation
modified).
The Amended Complaint does not allege facts plausibly showing that Essentia knew
or should have know n of the harassment Rabo alleges. According to the Amended
Complaint, Neugebauer’s sexual harassment occurred between February 28 and May 27,
2025. See Am. Compl. ¶¶ 186, 190, 208, 246. As part of Count II, the Amended Complaint
alleges that “beginning on . . . February 28, 2025, Rabo was subjected to unwelcome and
ongoing inappropriate sexual gestures and remarks by Neugebauer during her required
check-ins and check- outs,” including Neugebauer’s “sexually explicit comments and
innuendos,” “leering and suggestive gestures,” “unwanted sexual advances,” and “sexually
charged behavior.” Id. ¶ 246 (citation modified). Although Rabo alleges that she “reported
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the sexual harassment to HR,” see id. ¶ 247, this general allegation is based on specific
reports that do not mention or plausibly implicate sexual harassment. Rabo’s first
complaint to Essentia’s human resources area after Neugebauer’s sexually harassing
behavior began occurred by email on May 20, 2025. Id. ¶ 202. In that email, Rabo reported
that the check-ins with Neugebauer were “ uncomfortable, and at times, hostile,” that
Neugebauer “made bullying remarks” and used “racial slurs,” and that his behavior was
“abusive.” ECF No. 18-1 at 18. The May 20 email did not mention sexual harassment or
describe the specific sexual-harassment incidents alleged in the Amended Complaint. See
Am. Compl. ¶¶ 186, 190. Rabo’s subsequent May 28, 2025 email complained that the PIP
check-ins and check- outs were “programmed by [Neugebauer] in a way that was
intentionally to be hurtful,” and that reporting to him “requir[ed] the victim to return to the
abuser on a daily basis.” ECF No. 18-1 at 22. Again, there was no mention of sexual
harassment.
The arguments Rabo advances to defend her hostile-environment claim are not
persuasive. Rabo first argues that her pre–February 2025 complaints put Essentia on notice
of Neugebauer’s sexual harassment. See ECF No. 21 at 23–24, 26. It is difficult to
understand how that might be so. The Amended Complaint does not allege that
Neugebauer engaged in sexual harassment until February 28, 2025, months after Rabo’s
earlier complaints. Rabo characterized her September 30, 2024 complaint as regarding
“gender, race, and national origin ” discrimination, and the complaint itself focused on
Rabo’s disagreements with Neugebauer about scheduling, workload, and benefits, though
it also described Rabo’s claims that white males were being treated more favorably than
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she was. See Am. Compl. ¶ 76. Rabo’s December 18, 2024 complaint concerned
scheduling and call-pay issues, not sexual harassment. See id. ¶ 91. And there is no
allegation that Rabo’s January 14 and 20, 2025 complaints to Essentia’s human resources
had anything to do with sexual harassment. See id. ¶¶ 111, 113. Rabo’s January 14
complaint concerned Bellefeuille’s alleged refusal to submit to Rabo’s supervisory
authority. See id. ¶ 111. On January 20, 2025, Rabo “requested HR reopen her case against
Neugebauer with respect to the ongoing discrimination and harassment she had been
experiencing,” id. ¶ 113, but ( again) the Amended Complaint does not allege that Rabo
was experiencing sexual harassment by that time. In sum, no allegations plausibly show
that Essentia knew, or should have known, that Rabo was being subjected to sexual
harassment based on her complaints to Essentia before February 28, 2025, the earliest date
that any sexual harassment is alleged to have occurred.
Rabo next argues that Essentia was on notice of Neugebauer’s sexual harassment
by virtue of his role as supervisor. ECF No. 21 at 24 (“Essentia was on notice of the sexual
harassment because Neugebauer, the director of the Cardiovascular Department at
Essentia’s Fargo location, was the harasser.”). Citing Hysjulien, Rabo argues that North
Dakota recognizes imputed knowledge when the sexual harassment is conducted by a
supervisor. ECF No. 21 at 27. In Hysjulien, the plaintiff (Hysjulien) brought hostile work
environment claims under both the North Dakota Human Rights Act and Title VII against
her employer (Hill Top) and its CEO (Armitage) after Armitage allegedly sexually
assaulted Hysjulien when they attended a work conference. 827 N.W.2d at 537. Hysjulien
alleged that after she rebuffed Armitage’s advances, she was subject to hostile and different
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treatment. Id. at 537–38. There, as here, Hysjulien did not notify anyone at Hill Top of
Armitage’s behavior. In analyzing the timeliness of Hysjulien’s Title VII claim, the North
Dakota Supreme Court explained:
Armitage’s conduct in the alleged assault, as Hill Top’s
administrator and chief executive officer, may alone have
established liability on a hostile work environment theory had
Hysjulien timely complained of the assault. Because Hysjulien
did not timely complain of the assault, the length of time
passing before she filed her administrative charge means the
assault cannot form the basis for the hostile work environment
liability unless she shows Armitage’s later alleged conduct had
some relation to the sexual assault.
Id. at 548 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)). The
case does not support Rabo’s supervisor-imputation argument.
Rabo cites several other Title VII and Minnesota Human Rights Act (“MHRA”)
cases for the proposition that knowledge of Neugebauer’s harassment should be imputed
to Essentia. See ECF No. 21 at 28–30. These cases are unhelpful. Unlike the North Dakota
Human Rights Act, which imposes liability on the employer only “if it knows or should
know of the existence of the harassment and fails to take timely and appropriate action,”
N.D. Cent Code § 14-02.4-02(6)(c), Title VII and the MHRA impute knowledge to the
employer unless the employer can show that “(a) [the employer] exercised reasonable care
to prevent and promptly correct sexual harassment, and (b) the employee unreasonably
failed to take advantage of the preventive or corrective measures provided.” See Bush v.
Penske Truck Leasing Co., No. 06-cv -1110 (RHK/AJB), 2007 WL 1321853, at *3 (D.
Minn. May 4, 2007) (first citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);
and then citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)); see id.
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(describing the Minnesota Legislature’s amendment to the MHRA’s definition of sexual
harassment to remove the language requiring that the employer “knows or should know”
of the harassment, so that “the definition of sexual harassment in the MHRA is now nearly
identical to the definition of sexual harassment in Title VII”); see also Minn. Stat.
§ 363A.03, subdiv. 43 (defining “sexual harassment”); 29 C.F.R. § 1604.11(a) (same).
Rabo’s claim that she was terminated for rejecting Neugebauer’s sexual advances
will not be dismissed. Rabo alleges that her “refusal to submit to and her rejection of
Neugebauer’s sexual advances led to her termination,” in violation of North Dakota
Century Code section 14.02.4-02(6)(b). Am. Compl. ¶ 249. This subsection provides that
“[s]exual harassment includes unwelcome sexual advances, requests for sexual favors,
sexually motivated physical conduct or other verbal or physical conduct or communication
of a sexual nature when . . . [s]ubmission to or rejection of that conduct . . . by an individaul
is used as a factor in decision affecting that individual’s employment.” N.D. Cent. Code
§ 14.02.4-02(6)(b).
8 The Amended Complaint alleges that on May 27, 2025, Neugebauer
told Rabo that they were “safe here to do whatever we want,” to which Rabo responded
“No thank you!” Am. Compl. ¶ 208. Three days later, Rabo’s access to her email and
work portal were blocked. Id. ¶ 212. And a week later, Rabo was terminated. Id. ¶ 213.
Essentia makes three arguments to support dismissal of this aspect of Rabo’s claim,
but none is convincing . First, Essentia argues Rabo’s claim should be characterize d as a
hostile-environment claim under North Dakota Century Code section 14-02.4-02(6)(c),
8 Neither party cited, and the Court’s independent research has not identified, cases
addressing this type of quid-pro-quo claim under North Dakota law.
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requiring notice to Essentia. ECF No. 22 at 10. I disagree. A claim that an employee was
terminated (or suffered some other adverse employment action) because she refused to
submit to unwelcome sexual advances is distinct from a hostile- environment claim.
Section 14-02.4-02(6)(b) is an independent subsection of section 14-02.4-02(6), and it
contains no employer-knowledge requirement. Second, Essentia argues that Rabo “does
not so much as plead that she reasonably viewed this comment as one that was sexual in
nature,” or that she “refused Neugebauer’s unwelcome sexual advances.” See ECF No. 22
at 10. According to Essentia, “given the wide variation of comments alleged in the
Complaint,” an inference cannot be drawn that Rabo viewed this comment as sexual in
nature. Id. Again, I disagree. Read in the context of the Amended Complaint’s allegations,
it is at least plausible that Rabo reasonably viewed Neugebauer’s “we’re safe to do
whatever we want” comment as sexual in nature. See Am. Compl. ¶¶ 190, 208. Third,
Essentia argues that the “safe here to do whatever we want” statement was made in the
context of Rabo and Neugebauer discussing appropriate places to breastfeed. ECF No. 22
at 10–11 (citing Am. Compl. ¶¶ 196–99). The Amended Complaint alleges that Rabo and
Neugebauer’s discussion regarding breastfeeding locations occurred on May 16, 2025. See
id. ¶¶ 191–199. Neugebauer’s “safe here to do whatever we want” statement occurred on
May 27, 2025. Id. ¶ 208.
B
A claim for negligent supervision arises under North Dakota law “when an
employer fails to exercise ordinary care in supervising the employment relationship to
prevent the foreseeable misconduct of an employee from causing harm to other employees
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or third persons.” Koehler v. County of Grand Forks, 658 N.W.2d 741, 749 (N.D. 2003).
To succeed on a negligent-retention claim, the plaintiff must show: “(1) a duty of care owed
by an employer to a third person; (2) breach of that duty; and (3) injury to the third person
proximately caused by the employer’s breach.” Richard v. Washburn Pub. Schs., 809
N.W.2d 288, 297 (N.D. 2011) (quoting Gingerich v. City of Elkhart Prob. Dep’t, 273
F.R.D. 532, 538 (N.D. Ind. 2011)). “Imposition of a duty is limited to those instances
where a reasonably foreseeable victim is injured by a reasonably foreseeable harm.” Id.
(quoting Gingerich, 273 F.R.D. at 538). An employer can be liable for employees who are
“in the habit of misconducting themselves in a manner dangerous to others.” Id. (quoting
Gingerich, 273 F.R.D. at 538).
Rabo alleges that Essentia negligently supervised or retained Neugebauer because
Essentia
knew or should have known that Neugebauer posed a risk of
engaging in sexually inappropriate conduct with Rabo during
the daily check-ins and check-outs when she was forced to go
alone to his office every morning and afternoon and she
notified HR that she felt unsafe during these check-ins and
check-outs and she was a victim being forced to return to her
abuser.
Am. Compl. ¶ 257. But as just explained, the Amended Complaint does not plausibly
allege that Rabo reported Neugebauer’s sexually harassing conduct and thus does not
allege facts supporting Essentia’s knowledge that Neugebauer posed a risk.
Rabo cites cases that she says show this claim is plausible, but they don’t. The cases
Rabo cites make clear that sexual harassment is deemed foreseeable for purposes of a
negligent supervision claim where (1) the employer was given notice of the inappropriate
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conduct, see Richard, 809 N.W.2d at 297–98 (finding issue of fact where, once misconduct
was reported, school district failed to address misconduct and subsequent misconduct
occurred), or (2) the nature of the relationship between the employee and the abused creates
a potential for sexual abuse, see Nelson v. Gillette, 571 N.W.2d 332, 343 (N.D. 1997)
(“Because of the known risk of sexual activity present in the unequal power relationship of
counseling between a social worker and a child-ward, the potential of sexual contact
between a male counselor and a female child- client raises questions of fact.”); Doe YZ v.
Shattuck–St. Mary’s Sch., 214 F. Supp. 3d 763, 786 (D. Minn. 2016) (noting the record
included evidence that sexual abuse of students by teachers was a recognized danger prior
to teacher’s abuse of students, causing the Minnesota Legislature to enact mandatory
reporting laws). Neither of these circumstances is present here. There are no allegations
that Essentia had notice, and nothing about Neugebauer’s relationship with Rabo made
sexual harassment inherently foreseeable. Rabo also argues that “volumes of cases in
which supervisors abused their power” requiring employers to create anti-discrimination
guidelines, handbooks, and policies demonstrate that a supervisor’s discrimination and
harassment is foreseeable. See ECF No. 21 at 33–34. Rabo cites no case adopting this
position, and it is difficult to understand how the theory would not swallow the
foreseeability rule.
Essentia argues that Rabo’s claim also fails because “there can be no ‘independent
claim for negligent supervision in an employment case where the injury suffered by the
plaintiff employee is the loss of employment—at least absent a physical injury.’” ECF No.
17 at 20 (quoting Kongelf v. Sears Holding Corp., No. 4:09-cv-038, 2010 WL 1977955, at
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*4 (D.N.D. Apr. 12, 2010), R. & R. adopted, 2010 WL 11627810 (D.N.D. May 4, 2010) ).
Rabo acknowledges this is the law, but she argues that claims of sexual harassment are an
exception to the physical-injury requirement. See ECF No. 21 at 35–36 (citing Thompson
v. Olsten Kimberly Qualitycare, Inc., 980 F. Supp. 1035, 1041 (D. Minn. 1997) (stating
that “a plaintiff enjoys a more expansive concept of what constitutes a threat of physical
injury when the case involves allegations of sexual harassment”)). The problem with this
contention is that Thompson is a case brought under Minnesota law, and Rabo identifies
no North Dakota authority adopting that approach.
C
North Dakota recognizes a “limited public policy exception[] to the at-will
[employment] rule if employees establish they were terminated in retaliation for complying
with a clear public policy.” Anderson v. Meyer Broad. Co., 630 N.W.2d 46 , 53 (N.D.
2001). “[P]ublic policy must be evidenced by a constitutional or statutory provision.” Jose
v. Norwest Bank N.D. , N.A., 599 N.W.2d 293, 299 (N.D. 1999); see Lee v. Walstad, 368
N.W.2d 542, 547 (N.D. 1985) (refusing to recognize public policy exception to at-will
employment where claimant “defined no clear public policy which his removal violates”).
This claim will be dismissed because the alleged public policy is not evidenced by
a constitutional provision, statute, or regulation. The Amended Complaint alleges that
Rabo was retaliated against and terminated for complaining about long working hours and
safety issues.9 Am. Compl. ¶ 261. Rabo identifies three sources of alleged “public policy”
9 Count V also alleges that Rabo was retaliated against in violation of public policy
for “reporting unlawful discrimination and/or harassment.” Am. Compl. ¶ 261. Essentia
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to support her claim, but none of them works. She first tethers her claim to the AmSECT
standards. See ECF No. 21 at 38–39. The AmSECT staffing guidelines, however, are
promulgated by a professional organization (not a governmental body), and by their own
terms, they are “not mandatory.” See AmSECT’s Standards and Guidelines, AmSECT,
https://amsect.org/policy-practice/amsects-standards-and-guidelines (last visited June 11,
2026). The AmSECT guidelines thus cannot form the basis for a public-policy/retaliation
claim under North Dakota law. See Jose, 599 N.W.2d at 299 (“[P]ublic policy must be
evidenced by a constitutional or statutory provision.”). Rabo next cites the Fair Labor
Standards Act and Occupational Safety and Health Administration rules regarding work
hours and worker safety. See ECF No. 21 at 39–42. However, Rabo points to no specific
statutory or regulatory provision that she claims was violated. See id.
D
In Count VI, the Amended Complaint alleges that Essentia is vicariously liable for
intentional infliction of emotional distress caused by Neugebauer’s racial slurs and sexual
harassment. Am. Compl. ¶¶ 264– 272. Under North Dakota law, “an employer is liable
argues that “the presence of a statutory remedy for a violation of an anti-discrimination
statute precludes a common law action based on violation of a policy against
discrimination,” ECF No. 17 at 21–22 (quoting Bakken v. N. Am. Coal Corp., 641 F. Supp.
1015, 1023 (D.N.D. 1986)). Essentia maintains that Rabo’s public policy claim is
precluded on this basis because the North Dakota Human Rights Act includes a remedy for
retaliation via its anti-discrimination laws, including the claim at Count III. ECF No. 17 at
22. In her response brief, Rabo focuses only on long hours and working safety to support
Count V, and s he does not address the “reporting unlawful discrimination” aspect of her
claim, see ECF No. 21 at 36–42. This means she has waived any challenge to this specific
argument. See Hassan v. Amazon.com Servs., LLC, No. 23-cv -1470 (ECT/DLM), 2025
WL 591313, at *7 (D. Minn. Feb. 24, 2025) (collecting waiver cases).
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for tortious acts of its employees committed while they are acting within the scope of
employment.” Van Klootwyk v. Baptist Home, Inc., 665 N.W.2d 679, 685 n.2 (N.D. 2003).
“The general rule is that sexual harassment by a supervisor is not conduct within the scope
of employment.” Burlington Indus., 524 U.S. at 757. “Conduct of a servant is not within
the scope of employment if it is different in kind from that authorized, far beyond the
authorized time or space limits, or little actuated by a purpose to serve the master.” Nelson,
571 N.W.2d at 335 (quoting Restatement (Second) of Agency, § 228 (A.L.I. 1958). Without
more, these general rules would bar this claim.
Rabo says there is more. She cites Minnesota cases applying vicarious liability to
an employer for its employee’s intentional torts, but the cases themselves show that
Minnesota law is different. See ECF No. 21 at 44–46 (first citing Fahrendorff ex rel.
Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999); then citing Lange
v. Nat’l Biscuit Co., 211 N.W.2d 783, 785 (Minn. 1973); and then citing Marston v.
Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329 N.W.2d 306, 311 (Minn. 1982)).
Rabo cites an unpublished decision from the District of North Dakota for the premise that
a claim of vicarious liability for intentional infliction of emotional distress exists, but that
case is likewise unhelpful. ECF No. 21 at 48 (citing Steele v. ExxonMobil Oil Corp., No.
1:23-cv-133, 2024 WL 1741341, at *4–5 (D.N.D. Apr. 23, 2024)). Steele did not address
vicarious liability—it addressed the liability of two companies for retaliating against Steele
after she filed an ERISA lawsuit against the companies. 2024 WL 1741341, at *4–5. The
court addressed whether the defendants’ alleged actions rose to the level of extreme and
outrageous conduct required under North Dakota law—not whether vicarious liability was
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appropriate. Id. Here, the issue of whether Neugebauer’s conduct was extreme and
outrageous has not been raised. See ECF No. 22 at 16 (clarifying that “[t]his issue is not
before the Court on Essentia’s motion”).
Rabo argues that Neugebauer’s conduct taken as a whole (including making her
work long hours, calling her lazy, accusing her of violating the rules, and placing her on a
PIP) should be considered when determining if Neugebauer’s sexual harassment fell within
the scope of his employment under North Dakota law. See ECF No. 21 at 50–52. But
Rabo’s intentional-infliction-of-emotional-distress claim is not based on this theory , see
Am. Compl. ¶¶ 264– 72, and Rabo cannot amend her complaint through a brief , see
Al-Saadoon v. Barr, 973 F.3d 794, 805 (8th Cir. 2020) (“It is axiomatic that a complaint
may not be amended by the briefs in opposition to a motion to dismiss.” (citation
modified)). If Rabo were allowed to amend the complaint, the general rule is that such
“routine employment management functions,” ECF No. 22 at 16, do not rise to intentional
infliction of emotional distress as a matter of law. See Krause v. Bobcat, 297 F. Supp. 2d
1212, 1219 (D.N.D. 2003) (“While a termination certainly causes stress and mental anguish
in the person being terminated, it is not conduct that is so extreme and outrageous that it
goes beyond all possible bounds of decency.” (citation omitted )); Dahlberg v. Lutheran
Soc. Servs. of N.D., 625 N.W.2d 241, 249 (N.D. 2001); Sadler v. Basin Elec. Power Coop.,
409 N.W.2d 87, 90 (N.D. 1987).
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ORDER
Therefore, based on the foregoing, and on all the files, records, and proceedings
herein, IT IS ORDERED THAT Defendant Essentia Health’s Partial Motion to Dismiss
Amended Complaint [ECF No. 15] is GRANTED IN PART AND DENIED IN PART
as follows:
1. Count II is DISMISSED WITHOUT PREJUDICE, but only to the extent
it asserts a hostile-work-environment sexual-harassment claim.
2. Counts IV, V, and VI are DISMISSED WITHOUT PREJUDICE.
Dated: June 12, 2026 s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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