Denton v. Chittenden Bank

Morse, J.

Plaintiffs Bernard and Sandra Denton, and their children Marc and Sara, appeal a summary judgment ruling in favor of defendants Chittenden Bank and Christopher Bishop dismissing their claims of (1) intentional infliction of emotional distress by Bishop; (2) invasion of privacy by Bishop; (3) breach of employment contract by the bank; (4) breach of an implied covenant of good faith and fair dealing by the bank; and (5) loss of consortium against both defendants. We affirm.

Plaintiffs allege that the facts of this case support the inference that Bishop embarked on an insulting, demeaning, and vindictive course of conduct toward Denton that included ridicule, invasions of privacy, intentional interference with ability to car pool, competitiveness in after-work sports, and an unreasonable workload, all of which so affected Denton’s physical and mental state that he was forced to leave work on permanent disability. Because plaintiffs appeal from summary judgment, we recite the facts most favorably to plaintiffs, giving plaintiffs the benefit of all reasonable inferences.

Bernard Denton began working at Chittenden Bank as a maintenance employee in 1971. In 1981, the bank promoted him to assistant *64vice-president in charge of buildings and grounds. His supervisor during this time was Richard Fletcher, who regarded Denton as a valuable employee and with whom Denton got along well. In early 1987, Fletcher left the bank, and Christopher Bishop assumed. Fletcher’s duties as part of a newly created supervisory position.

Before Fletcher left the bank, he apprised Bishop of Denton’s strengths and weaknesses as an employee.- He told Bishop that Denton was a “hands-on” supervisor who did not function well in areas requiring concentration on figures such as the production of reports, budgets, and forecasts. Fletcher cautioned Bishop not to “push” Denton, that Denton required careful supervision because he was so hardworking, and that it was difficult to get Denton to “slow down” and to take vacations. Under Fletcher’s supervision, Dentonset a demanding pace for himself, often working nights and weekends to finish projects. Fletcher described Denton as able to handle the stress of his job extremely well.

Bishop directly supervised Denton from April 1987 until October 1988. Bishop’s management style did not agree with Denton. During that period, Bishop asked Denton to make reports and required him to meet deadlines. Denton worked more nights and weekends, including one Easter Sunday afternoon to complete his projects on time. Bishop at times shut off Denton’s office telephone, telling him that he need not take calls because he needed to get work done. Bishop presented Denton with a dictaphone and suggested he use it to dictate memoranda while jogging so that he could get his work done quicker. Bishop also scheduled early morning meetings over Denton’s objection that it would be difficult for him to attend as the Denton family had only one car. Bishop asked Denton to continue to work on and improve memoranda that Denton submitted in final form. Bank management praised only Bishop for a project that he, Denton, and members of other departments had worked on.

Not long after Bishop became Denton’s supervisor, the growth of other departments in their building required the bank to move Bishop and Denton from private offices on the fourth floor to offices separated by sliding wooden doors on the fifth floor. Denton wanted these doors closed; Bishop wanted them open with their desks facing each other. As part of what Denton called a childish game, Denton repeatedly closed the doors and Bishop repeatedly opened them. Bishop also opened Denton’s files and desk drawers while Denton was on two-month sick leave, on one occasion asked Denton to empty his brief case, and occasionally interrupted Denton’s business meetings without knocking.

*65In this office, as well as after work, Bishop explained to Denton his dissatisfaction with other employees’ job performance, and his hiring and firing decisions. Bishop made it abundantly clear that he weighed college degrees heavily in making these decisions. He explained that someone in Denton’s position should have a degree and that people now being hired for like positions were required to have one. He made comments like, “It’s too bad you don’t have a degree,” and “I hope we can work on one.” Bishop went so far as to tell Denton that the Bank had done Denton an injustice in giving him his position.

Bishop also imposed himself on the Denton family during nonworking hours. He invited Denton to play basketball and volleyball, and changed into his athletic clothes at the Denton home. Denton did not feel comfortable turning down the invitations, and although he thought the request strange, permitted Bishop to change clothes at his home with no objection. Bishop was competitive during these games, often pairing off against Denton, and sometimes calling Denton “old man” in front of Denton’s son, Marc, who came to watch his father play. On one occasion, Bishop happened upon Denton and his daughter at a ski resort, invited himself to ride the chair lift with them, told Denton he planned to fire one of Denton’s coworkers, and challenged Denton to a race.

Early in April 1988, Denton told Bishop, his coworkers, and members of his family that he had the flu and left work on sick leave which ultimately lasted two months. In truth, Denton was feeling stressed about all the responsibilities Bishop assigned and fearful that he might lose his job. Bishop called the Denton home, as did other employees, approximately twenty times during that two-month period, either to ask Denton a question or to see how he was feeling. Bishop never spoke directly with Denton because the family members who answered the phone kept the conversations short.

On April 10, a Sunday, Bishop and his fiancée visited the Denton home. Mrs. Denton answered the door, and Bishop stepped inside. When Denton came over to the door, Bishop asked him about his health and whether he was on medication and seeing a doctor. The Dentons happened to be celebrating their daughter Sara’s birthday, and although Bishop stayed near the front door while speaking with Denton, some guests overheard Bishop’s questions.

Denton returned to work at the end of May 1988. He worked four months, taking short-term disability leave in October of 1988 and eventually long-term disability in October of 1989, claiming work-related stress. The bank terminated his employment shortly thereafter, although it paid his disability claims. This action followed.

*66The moving party on a motion for summary judgment must demonstrate that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. V.R.C.E 56(c). In ruling on the motion, a trial court will give the nonmoving party the benefit of all reasonable doubts and inferences, and will regard the allegations in opposition to the motion as true, so long as those allegations are supported by “affidavits or other evidentiary material.” Messier v. Metropolitan Life Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 100 (1990). We review according to the same standards. Id. We include, however, hearsay information garnered from affidavits submitted by plaintiffs in support of their claims. This inclusion is harmless given our disposition. Cf. Levy v. Town of St. Albans Zoning Board of Adjustment, 152 Vt. 139, 145-46, 564 A.2d 1361, 1365 (1989) (affidavit must be based on personal knowledge to raise genuine issue of material fact).

I. Intentional Infliction of Emotional Distress

To prevail on a claim of intentional infliction of emotional distress, a plaintiff must show extreme and outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, that has resulted in the suffering of extreme emotional distress. Crump v. P & C Food Markets, Inc., 154 Vt. 284, 296, 576 A.2d 441, 448 (1990); Demag v. American Ins. Cos., 146 Vt. 608, 611, 508 A.2d 697, 699 (1986).

As a threshold issue, the trial court must determine whether the conduct was so extreme and outrageous that a jury could reasonably find liability. Jobin v. McQuillen, 158 Vt. 322, 327, 609 A.2d 990, 993 (1992). The standard for establishing “outrageous” conduct is necessarily a high one. The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and ... be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts § 46 cmt. d (1965); see Demag, 146 Vt. at 611,508 A.2d at 699 (plaintiff has “heavy burden to make out a case of outrageous conduct”). The trial court determined that, taking all of plaintiffs’ allegations as true, Bishop’s conduct did not, as a matter of law, reach the level of extreme outrage necessary to permit a jury to reasonably find liability. We agree.

We have never extended liability to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” See Restatement § 46 cmt. d. Because laws proscribing conduct must be *67specific enough to give fair notice of what conduct will give rise to liability, we decline, on these facts, to extend liability to a series of indignities. Absent at least one incident of behavior that transcends the ignoble and vast realm of unpleasant and often stressful conduct in the workplace, incidents that are in themselves insignificant should not be consolidated to arrive at the conclusion that the overall conduct was outrageous. Cf. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th Cir. 1991) (intentional and systematic humiliation of plaintiff in hopes plaintiff would quit not actionable without final demotion of vice president with college degree, thirty years’ experience, and responsibility for company’s largest construction projects to lowest janitorial position in particularly degrading and humiliating way); Johnson v. Federal Reserve Bank, 557 N.E.2d 328, 331 (Ill. App. Ct. 1990) (absent retaliation for disclosing illegal banking practices, excessive workload, verbal abuse, and denial of advancement not per se outrageous despite knowledge of employee’s deteriorated health and subsequent need to avoid stress).

Plaintiffs argue, however, that our holding in Crump, 154 Vt. at 296-97, 576 A.2d at 448-49, would permit a reasonable jury to find Bishop’s conduct actionable. In Crump, we stated that “if the manner of termination evinces circumstances of oppressive conduct and abuse of a position of authority vis-á-vis plaintiff, it may provide grounds for the tort [of intentional infliction of emotional distress].” Id. at 296, 576 A.2d at 448. Crump, an eighteen-year employee, was summarily dismissed after being falsely accused of theft, kept in a three-hour meeting with no opportunity to leave or have lunch, and badgered to sign a confession. In addition, the company defamed Crump by publishing reports that he was a problem employee because he was a thief. Id. at 288-89, 296-97, 576 A.2d at 444-45, 448-49. Crump stands for the proposition that the extreme and outrageous character of conduct may arise from the abuse of authority; it does not mean that supervisors may be held liable for “mere insults, indignities, or annoyances that are not extreme or outrageous.” Restatement § 46 cmt. e; see also Wilson v. Monarch Paper Co., 939 F.2d at 1143 (although intentional and systematic humiliation of employees often rises to level of illegality, it does not constitute extreme and outrageous conduct “except in the most unusual cases”) (emphasis in original).

Plaintiffs next argue that Bishop’s conduct was extreme and outrageous because Richard Fletcher had specifically warned Bishop *68of Denton’s “weaknesses and sensibilities.” Otherwise unaetionable conduct may become extreme and outrageous in character if an actor knows “that the other is peculiarly susceptible to emotional distress[] by reason of some physical or mental condition or peculiarity,” and the actor proceeds in the face of that knowledge. Restatement § 46 cmt. f. Fletcher, however, described Denton’s strengths and weaknesses solely in terms of Denton’s suitability for performing certain types of work. The only susceptibility to emotional distress Fletcher mentioned was “stress,” and he described Denton as able to handle the stress of his job extremely well. Further, Denton did not inform Bishop that he was under emotional distress or that Bishop was causing it. In deposition Denton stated, “I believe that my relationship to [Bishop] . . . never changed because I denied everything. ... I showed this individual and to my friends, to employees, fellow employees total respect for this man.” The record does not support a reasonable inference that Bishop knew Denton was susceptible to emotional distress.

Taking plaintiffs’ allegations as true, Messier, 154 Vt. at 409, 578 A.2d at 100, a reasonable jury with proper instruction on the law could not find Bishop’s behavior to be outrageous. Accordingly, we affirm the grant of summary judgment as to this count.

II. Invasion of Privacy

Plaintiffs’ invasion-of-privacy claim arises largely from the incident that took place during Denton’s sick leave, when Bishop and his fiancée came to the Denton house while a birthday party for Sara Denton was in progress. Bishop entered when Mrs. Denton opened the door. He stayed by the door and inquired about Denton’s condition, his doctor, whether Denton was taking any medication, and when he would be coming back to work. Plaintiffs were embarrassed and upset because their family and friends overheard the conversation.

Although plaintiffs contend that this incident is sufficient to sustain their claim of an invasion of privacy, they enumerate other incidents which, they assert, the trial court overlooked in granting summary judgment. These include the incident at the ski area; telephone calls to the Denton home during nonworking hours and while Denton was on sick leave; and Bishop’s action in turning his desk to face Denton and opening the doors between their offices.

“The right of privacy is the right to be let alone.” Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 162, 624 A.2d 1122, 1129 (1992) (citing *69Restatement § 652A (1977)). Invasion of privacy is “an intentional interference with [a person’s] interest in solitude or seclusion, either as to [the] person or as to [the person’s] private affairs or concerns, of a kind that would be highly offensive to a reasonable [person].” Id. at 162, 624 A.2d at 1129 (quoting Restatement § 652B). The intrusion must be substantial. Id.

We agree with the trial court that Bishop’s actions, especially asking questions in front of guests, were “unusual and possibly rude.” We do not, however, find Bishop’s actions to be substantial or to be an intrusion that would be highly offensive to a reasonable person. All of Bishop’s questions concerned Denton’s illness and absence from work. Because Denton told Bishop, his coworkers, and family that he was home with the flu, we do not attach great weight to Bishop’s inquiries. Plaintiffs’ subjective impressions to the contrary, Bishop’s questions were not highly offensive under these circumstances. Accordingly, we affirm the grant of summary judgment on this count.

III. Breach of Employment Contract

Plaintiffs have failed to preserve their breach of employment contract claim. Plaintiffs have not appealed the trial court’s determination that Denton had an at-will employment contract with Chittenden Bank. Instead, for the first time on appeal, plaintiffs argue that Denton’s discharge was contrary to the public policy exception to the employment at-will doctrine recognized by this Court in Payne v. Rozendaal, 147 Vt. 488, 494, 520 A.2d 586, 589 (1986). The only public policy issue raised below was in the context of a disability discrimination claim. Plaintiffs did not appeal summary judgment in favor of the bank on that claim. Because plaintiffs did not argue below that Chittenden Bank discharged Denton in violation of any other specific public policy of this state, the argument is not properly before us for consideration. Failure to raise a legal or factual reason why summary judgment should not be granted before the trial court precludes raising such a reason on appeal. See Fitzgerald v. Congleton, 155 Vt. 283, 295, 583 A.2d 595, 602 (1990) (applying rule to factual issues).

IV. Breach of Implied Covenant of Good Faith and Fair Dealing

Plaintiffs next argue that this Court should recognize an implied covenant of good faith and fair dealing in every employment contract and that we should find a breach of that covenant whenever conduct *70by an employer is contrary to public policy. Plaintiffs argue that the Bank violated public policy because Bishop tortiously caused Denton’s disability. Because we do not find Bishop legally responsible for Denton’s disability, we do not reach this claim.

V. Loss of Consortium

Because loss of consortium is a derivative action, Derosia v. Book Press, Inc., 148 Vt. 217, 220, 531 A.2d 905, 907 (1987), and depends on the viability of the underlying tort claim, Hay v. Medical Center Hospital, 145 Vt. 533, 535, 496 A.2d 939, 942-43 (1985), plaintiffs’ claims for loss of consortium necessarily fail.

Affirmed.