(concurring in part and dissenting in part).
I concur with the majority on the wrongful termination claim. I dissent on the intentional infliction of emotional distress issue. Under the majority theory, we must send the case back so a new trial may be held. Petersen cannot repudiate her previous trial testimony; hence, the trial court must direct a verdict. This may result in another appeal, and then, we must consider the trial testimony and uphold the trial court. To me, that is a waste of judicial resources.
The majority opinion cites Voutour v. Vitale, 761 F.2d 812 (1st Cir.1985); Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1036 (D.C.Cir.1988); and Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 37 (D.C.Cir.1987) as authority we may not consider the trial testimony of Petersen to support the summary judgment granted on the intentional infliction of emotional distress issue.
In Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 285 (3rd Cir.1991), the third circuit held:
Our review of summary judgment motions is plenary. ‘We may affirm if, and only if, on the basis of the complaints filed by three [parties] there was no set of facts which could be proven to establish’ liability. Rose v. Bartle, 871 F.2d at [331] 342 [(3rd Cir.1989)]. Moreover, we will consider any additional evidence in the record before us, even though that evidence may have been submitted to the district court after it had ruled on Ford’s motion, in order to avoid any prejudice to Altran and as part of our plenary review.
(footnote omitted). The third circuit acknowledged Frito-Lay Inc. and Voutour, but found those cases inapplicable. I believe the same rationale should be applied in this case since Petersen’s claim cannot arise above her own testimony. Nor, can she change it as the majority seems to suggest.
Petersen’s own trial testimony established Karel had been earing and understanding when Petersen lost a child in April of 1986. Sioux Valley Hospital, in general, had accommodated Petersen by granting her leave and permitting her to return and work part-time for a period following her child’s death.
After several employees began complaining about Petersen’s work and absenteeism, Karel, on July 12, 1988, met with Petersen and gave Petersen the opportunity to explain her side. Karel even pledged to attempt to address the rumors about Petersen.
Karel met with Petersen on several occasions after the July 12 meeting to discuss continuing problems between Petersen and certain co-workers. Petersen knew the identity of those co-workers. Karel’s suggestion to Petersen was to inform the disgruntled co-workers about Peterson’s health problems so that the co-workers could understand Petersen’s position. Petersen refused to do so, however. During these meetings, according to the testimony of Petersen herself, Karel expressed concern about Peterson’s health problems and even confided to Petersen that his wife experienced similar migraine headaches.
Ultimately, Karel on or about September 7, determined that a meeting was necessary between Petersen and two other tech*522nicians to discuss the problems and to attempt to resolve them. Petersen concedes Karel called the meeting trying to resolve the problems within his department. During the meeting, two co-workers aired their grievances with Petersen, and Petersen responded by airing her belief one co-worker was sometimes hungover and was stuck up. As a result of the meeting, Petersen and the two co-workers agreed they would stop bickering and fighting and would try to move forward and mend the relationships in the department.
Petersen’s own trial testimony makes clear that, as a matter of law, Karel did not act in a manner “exceeding all bounds usually tolerated by decent society and which is of a nature especially calculated to cause, and does cause, mental distress of a very serious kind.” Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 169 (S.D.1987); see also Mackintosh v. Carter, 451 N.W.2d 285, 287 (S.D.1990). Rather, Petersen’s own testimony establishes Karel was concerned about the friction within his pharmacy department and was attempting to resolve the friction by meeting with Petersen, making suggestions to Petersen, and listening to Petersen’s explanations of the problems. Such conduct, as a matter of law, does not satisfy the first element of intentional infliction of emotional distress because it is not extreme and outrageous conduct.
Moreover, as a matter of law, the second element of intentional infliction of emotional distress is not met. The second element requires “intent on the part of the defendant to cause plaintiff severe emotional distress,” Groseth Intern., 410 N.W.2d at 169; see also Mackintosh, 451 N.W.2d at 287, or reckless conduct which causes severe emotional distress, Wangen v. Knudson, 428 N.W.2d 242, 248 (S.D.1988). Petersen has pointed to no evidence whatsoever Karel intended to cause Petersen severe emotional distress. Nor did any of the evidence indicate “a deliberate disregard of a high degree of probability that ... emotional distress [would] follow.” Id. (quoting Restatement (Second) of Torts § 46, comment (i)). To the contrary, Petersen’s own testimony indicates Karel was simply trying to assist Petersen m overcoming and resolving the friction between Petersen and several other technicians in the pharmacy department at Sioux Valley Hospital. Petersen can claim no better version of the facts than that to which she has testified. See Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 463 (S.D.1991); Waddell v. Dewey Cty. Bank, 471 N.W.2d 591, 595 n. 3 (S.D.1991); Heer v. State, 432 N.W.2d 559, 567 (S.D.1988) (citing cases); Drier v. Perfection, Inc., 259 N.W.2d 496, 508 (S.D.1977).
Petersen relies heavily upon an affidavit she signed before trial. Many of the assertions in the affidavit are conclusory and inconsistent with her own trial testimony. Because the trial testimony of Petersen contains her sworn testimony in open court before a jury on both direct and cross-examination, the trial testimony should be given much greater weight than the one-sided affidavit. See generally 3 Am.Jur.2d Affidavits § 30, at 490-91 (1986); 2 Jones on Evidence § 9.29, at 247 (1972); 3 Jones on Evidence § 12.24, at 387 (1972). I would affirm the trial court in granting Sioux Valley Hospital’s motion for summary judgment on the intentional infliction of emotional distress claim.