STATUTORY & COMMON LAW REMEDIES

Note: Workers’ compensation laws may preempt tort (personal injury) claims in some states.

• Intentional Infliction of Emotional Distress

  (IIED).  A tort is a civil action to redress a wrongdoing. According to the Restatement of Torts 2nd § 46: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

One court found the conduct must be “‘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’…but does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'” Porter v. Bankers Life & Casualty Co., 2002 U.S. Dist LEXIS 20627, at 5-6 (N.D. Ill. Oct. 25, 2002) (dismissing intentional infliction of emotional distress claim where employee claimed that he was falsely accused of fraud and bullied and intimidated during questioning about the alleged fraud).

However, the Supreme Court of Indiana said in dicta in Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008) that workplace bullying could be a form of  IIED .  Id. at 799.  In that particular case, the jury rejected the plaintiff’s IIED claim but did find in favor of the plaintiff on a claim for assault. The jury awarded the plaintiff $325,000 in damages.  The Indiana Supreme Court found there was substantial evidence or reasonable inferences to support the assault claim and upheld the damages award.

The plaintiff in Raess was hospital operating room perfusionist who claimed the defendant, a cardiovascular surgeon, was “angry at the plaintiff about reports to hospital administration about the defendant’s treatment of other perfusionists” and “aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him.” 883 N.E.2d at 794.  The plaintiff, fearing imminent physical harm, backed up against the wall and held his hands up. Instead of striking the plaintiff, the surgeon stopped, turned, and stormed out of the room, declaring, “you’re finished. you’re history.” Id.

The plaintiff did not return to work, in part, because he developed a panic disorder and depression, limiting his ability to perform under pressure in an operating room.

(Note: This case marked the first time that Gary Namie, the founder of the Workplace Bullying Institute, was allowed to testify as an expert on workplace bullying, over the objections of the defense. Namie called the 2001 incident an “episode of workplace bullying” and called the doctor “a workplace abuser.”  Defense counsel argued Namie was not qualified to be an expert because his is not a clinical psychologist, and that Namie based his report on a telephone call with the Plaintiff, without ever speaking to the Defendant. The Indiana Court of Appeals  ruled the trial court committed reversible error in allowing the doctor to be labelled a workplace bully and overturned the jury award.  However, the Indiana Supreme Court reinstated the jury’s award, finding, among other things, that the defendant’ s objection to Namie’s testimony was procedurally flawed.  One of the four justices dissented and said Namie’s testimony was highly prejudicial and violated an evidentiary rule that permits expert opinion testimony only as to  “scientific, technical, or other specialized knowledge” to “assist the trier of fact to understand the evidence or to determine a fact in issue.”

See also, Subbe-Hirt v. Baccigalupi, 94 F.3d 111 (1996), where the 3rd Circuit Court of Appeals ruled that a jury could find the plaintiff, a female salesperson, was the victim of IIED by her boss, Robert Baccigalupi. The Court said the Subbe-Hirt was not limited to damages under the New Jersey’s worker’s compensation law because of evidence  of deliberate intent on Baccigalupi’s part.  The Court said Subbe-Hirt had demonstrated her supervisor’s conduct was sufficiently outrageous to support an IIED claim.  Among other things, the Court said, witnesses testified:

” … Baccigalupi replaced females’ given names … with the term “cunt,” to depersonalize and deride the women in the office … Moreover, he would ask Subbe-Hirt for her resignation almost every time she was in the office. Baccigalupi even went so far as to have an unsigned resignation on his desk; we would then ask Subbe-Hirt “why don’t you sign it; if you don’t want to sign it, go on disability … Baccigalupi would “grill” her on work she submitted, asking “why did you do this, what did you do here, what was said here?” If he was not “satisfied” with her answer, he would call Subbe-Hirt’s clients in front of her and say “Elaine says this; what do you say?”

… After one meeting with Baccigalupi, Subbe-Hirt “literally blacked out behind the wheel and hit a tractor trailer just from stress and emotion[,]” suffering severe injuries that required eight days of hospitalization. This incident forced Subbe-Hirt to take temporary disability leave; indeed, her treating psychiatrist has opined that she remains totally disabled with post traumatic stress disorder triggered by Baccigalupi’s badgering and intimidation.”

Key evidence was a note Subbe-Hirt presented to  Baccigalupi from her psychiatrist stating she  was capable of working but should not be placed under undue stress. He refused her request to place it in her personnel file, and continued his allegedly abusive behavior.

• Breach of Contract

  Is there an anti-bullying or anti-harassment provision in your employee handbook? In an “at-will” employment states, where an employee can be fired for any reason (except illegal discrimination), this might be the basis for a lawsuit alleging the employer breached its contract of employment.

• Defamation.

  A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. There must be a false and defamatory statement, an unprivileged publication to a third party, and fault amounting at least to negligence on the part of the publisher.

• Assault and/or battery

  If this does not rise to the seriousness of a criminal act, it may still be an intentional tort. Assault consists of intentionally and voluntarily causing the reasonable apprehension of an immediate harmful or offensive contact. Battery consists of intentional and harmful or offensive physical contact.  See above entry for Intentional Infliction of Emotional Distress where a defendant was found guilty of assault in a workplace bullying case where a doctor approached him in a rage with raised fists but never actually touched him.

• Invasion of Privacy

  This includes an intentional interference with a person’s interest in solitude or seclusion, either as to his/her person or as to his/her private affairs or concerns. The intrusion must be of a kind that would be highly offensive to a reasonable person. It might include such things as placing a camera or a peephole in an employee bathroom or forcing your way into a person’s hotel room.

• False imprisonment.

  An actor is subject to liability to another for false imprisonment if h/she intends to and does confine the other or a third person in a confined space and the other is conscious of the confinement or harmed by it.   This might work if, for example, if a bully boss confines you inside an office and blocks your ability to leave.

• Tortuous interference with the employment contract or business relationships.

  Generally, a third party must  knowingly induce the employer to break the employment contract.  Theoretically, it could be argued the supervisor acted outside the scope of  his/her employment relationship in bullying the target .

• Failure of an employer to exercise reasonable care with respect to the hiring, supervision and retention of the abuser

  See Daka, Inc. v. McCrae, 839 A.2d 682 (D.C. 2003), where a male banquet chef complained he was sexually harassed by a male supervisor, the catering director, for several months after he refused the supervisor’s dinner invitation. The chef was subsequently demoted and fired.  The chef could show that other supervisors were aware of the harassment but did nothing. He sued for negligent supervision, and a jury awarded him $187,500 in compensatory damages and $4.8 million in punitive damages. Negligent supervision claims generally require a tort to be committed by the supervised employee before the employer can be held liable.   A tort is a  civil wrong recognized by the law as the basis for a lawsuit that results in an injury or harm. This remedy also has been successfully invoked by victims of sexual assault where a company hired a supervisor who had a record of sex offenses and in police brutality cases, where an officer had a record of complaints.

• Constructive dismissal:

  If you are forced to quit a job to escape a bully boss, you may still be able to get unemployment benefits. An employee can argue the employer changed the fundamental terms and conditions of the job for which the employee was hired, effectively dismissing the employee.

(05/11)