Denton v. Chittenden Bank

Gibson, J.,

dissenting. Plaintiffs’ complaint alleged that Christopher Bishop engaged in an intentional and systematic course of conduct to harass and intimidate Bernard Denton in both his work and private life. In support of this allegation, plaintiffs submitted depositions and affidavits from which a jury could reasonably find that Bishop acted beyond all possible bounds of decency by his humiliating public and private activities, his implied threats to Denton’s job security, and by making it impossible for Denton to escape Bishop’s presence. Because I believe that plaintiffs successfully presented genuine issues of material fact on their claims for intentional infliction of emotional distress and invasion of privacy, I dissent.

I begin with a restatement of the facts because, although the majority professes to “recite the facts most favorably to plaintiffs,” I do not believe it truly fathoms or is fully sensitive to the ordeal to which Denton was subjected. Denton was an assistant vice-president of Chittenden Bank until 1988. He had worked for the company ten years before his promotion to an officer’s position. After Bishop was hired as Denton’s supervisor, the climate in which Denton worked changed significantly. The affidavits and deposition testimony support plaintiffs’ allegations that Bishop, among other things: pressured Denton to produce reports on deadlines that required him to stay up all night and to work weekends, including an Easter Sunday; opened the sliding doors between their offices and reopened them if Denton closed them; moved his desk so as to face Denton directly; occasionally shut off Denton’s telephone; scheduled meetings at times that interfered with Denton’s ability to car pool; asked Denton to engage in business practices that Denton considered unethical; repeatedly *71made derogatory references to Denton’s lack of a college degree to both Denton and others; told Denton that the Bank did Denton an injustice by promoting him to assistant vice-president; taunted Denton about his writing skills; and took credit for Denton’s work.

Plaintiffs alleged that Bishop not only harassed Denton at the office, but also insinuated himself into Denton’s after-work personal life. He sought to compete against Denton in athletic activities and ridiculed him as an “old man” in front of his son Marc. When meeting Denton and his daughter Sara coincidentally at a ski area, Bishop insisted on riding the lift with both of them. Bishop also introduced Denton and Sara to the friend who accompanied him, and related his intention to fire and replace one of Denton’s subordinates with the friend because he had a better education. Bishop then challenged Denton to a ski race, telling Sara to ski on ahead.

When Denton was out ill, and while he was on disability leave, Bishop called the Denton home constantly, looking for Denton. These calls were made during nonworking hours, at all hours dining the day, in the evening, and on weekends. Plaintiffs also recount that one Sunday evening, when Denton was on disability leave, Bishop came with his fiancee to the Denton home unannounced and uninvited during a birthday party for Sara. Despite his fiancee’s protests, Bishop entered the Denton home, and in front of the guests, questioned Denton about his condition and his medication.

Plaintiffs’ affidavits show that, as a result of Bishop’s conduct, Denton suffers from an ulcer, extreme depression and anxiety, and has been suicidal. He has undergone psychological and medical therapy for these problems. Denton’s wife, Sandra, states that after Bishop became Denton’s supervisor, things changed radically for the worse. She asserts that Denton talked constantly about Christopher Bishop’s conduct toward him at work, and about the stress and anxiety he felt with Bishop as his supervisor. She relates instances of Denton’s increasingly depressive behavior, stating that he was unable to sleep more than one hour each night, that his physical condition deteriorated, that he was nonfunctional for several months, talked of suicide, and could not remember routine items. She further explains that her husband’s continuing problems seriously affected the family’s life, causing her to worry about her children. The affidavits of Denton’s daughter Sara, his son Marc, and his adult daughter Wanda Audette, contain similar observations of Denton’s physical sickness and' depressed attitude, and relate the effects of Denton’s loss of confidence and self-esteem on the family.

*72The trial court found that plaintiffs’ allegations did not rise to the level of outrage necessary to send the case to a jury on the intentional-inffiction-of-emotional-distress claim. The majority correctly states that the trial court must decide initially whether the conduct alleged is sufficiently outrageous and extreme that a jury could reasonably find liability. Jobin v. McQuillen, 158 Vt. 322, 327, 609 A.2d 990, 993 (1992). It is fundamental in our jurisprudence, however, that where reasonable persons may differ, it is for the jury to make the ultimate determination. Restatement (Second) of Torts § 46 cmt. h (1965); see also Drejza v. Vaccaro, 650 A.2d 1308, 1316 (D.C. 1994) (“If reasonable people may differ as to whether, given [the victim’s] condition and circumstances, [the detective’s] conduct was outrageous as well as obnoxious, the issue must be left to the jury.”). Reasonable persons could readily disagree on the degree of outrage presented by the facts in this case.

There is no question that the standard for establishing outrageous conduct is a high one. The conduct must surpass “all possible bounds of decency, and... be regarded as atrocious[] and utterly intolerable in a civilized community.” Restatement § 46 cmt. d; see Demag v. American Ins. Cos., 146 Vt. 608, 611, 508 A.2d 697, 699 (1986) (plaintiff has “heavy burden to make out a case of outrageous conduct”). Further, the work environment may tolerate a level of teasing and taunting that in other contexts might be considered outrageous. Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir. 1991).

But even under this high standard, there are instances where the behavior fairly announces itself as outrageous. See, e.g., id. at 1145 (finding outrageous conduct in demeaning and humiliating way in which executive with college education and thirty-years’ experience was demoted to janitorial position); Pratt v. Brown Machine Co., 855 F.2d 1225, 1240 (6th Cir. 1988) (finding outrageous conduct where employer, despite knowledge that plaintiff was in dire financial straits and that company official had made numerous obscene telephone calls to plaintiff’s wife and threatened to rape her, conditioned plaintiff’s reemployment on plaintiff’s agreement to apologize to official who had made calls, work directly under him, attend church and pray with him, and remain silent or risk losing his job). There are also cases where the behavior clearly is not outrageous. See, e.g., Bourque v. Town of Bow, 736 F. Supp. 398, 404 (D.N.H. 1990) (former town employee had no viable claim for intentional infliction of emotional distress where he alleged that town selectman stared at plaintiff and his wife for “a few minutes,” upsetting them, and that supervisor ignited firecracker in vicinity of plaintiff’s work).

*73There are closer cases as well, where reasonable minds may differ and a genuine issue of material fact may exist as to the level of outrageousness present in the alleged conduct. See, e.g., Bower v. Weisman, 639 F. Supp. 532, 541 (S.D.N.Y. 1986) (it was for trier of fact to determine if conduct “went beyond all reasonable bounds of decency,” where defendant placed armed guards in lobby of townhouse occupied by plaintiff, preventing all but plaintiff, her children, and medical personnel from entering or leaving, changed locks on doors without consent, and entered apartment without permission to remove artwork); Boyle v. Wenk, 392 N.E.2d 1053, 1056 (Mass. 1979) (it is for jury to determine whether defendant’s conduct was merely “rude and clumsy” or “extreme and outrageous” where defendant, a private investigator, called plaintiff asking questions about plaintiff’s brother-in-law and was told by plaintiff not to call again because she was just released from the hospital, defendant repeated call at 1:00 A.M., and defendant told plaintiff’s brother-in-law in front of plaintiff that defendant had been in jail for rape). I believe the present case falls squarely in the category of closer cases.

What distinguishes this case from “the vast realm of unpleasant and often stressful” workplace conduct, and makes it a closer case proper for a jury to consider, is that Bishop’s conduct was not limited to the employment setting. He used his supervisory position over Denton to intrude upon Denton and his family in their private, nonworking life, and exploited Denton’s known weaknesses. Whether Bishop’s actions, examined together, were extreme and outrageous should have been left for a jury to decide.

The majority correctly states that conduct may be outrageous if it derives from a defendant’s abuse of authority over the plaintiff. See Crump v. P & C Food Markets, Inc., 154 Vt. 284, 296, 576 A.2d 441, 448 (1990) (oppressive conduct and abuse of position of authority in terminating employment may provide grounds for finding intentional infliction of emotional distress); see also Wilson, 939 F.2d at 1145 (finding that supervisor “intentionally and systematically set out to humiliate [plaintiff] in the hopes that he would quit”) (emphasis in original). But the majority goes on to assert that incidents should not be “consolidated to arrive at the conclusion that the overall conduct was outrageous.” The law is clear, however, that a series of incidents may be considered together to determine if the conduct alleged is extreme and outrageous. See Wenk, 392 N.E.2d at 1056 (“Repeated harassment . . . may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to war*74rant liability for infliction of emotional distress.”); see also Bower, 639 F. Supp. at 541 (complaint alleging three separate incidents was sufficient to describe that defendant “embarked upon a course of conduct” designed to “intimidate, threaten and humiliate” plaintiff and trier of fact must determine if conduct was extreme and outrageous).

Ironically, in each of the cases the majority cites, the court did consider all of the defendant’s acts together, not individually, in light of the parties’ relationship to find that the conduct was outrageous. See Wilson, 939 F.2d at 1145 (employer engaged in outrageous course of conduct designed to humiliate plaintiff, and demotion to janitor completed employer’s “steep downhill push to total humiliation” of plaintiff); Johnson v. Federal Reserve Bank, 557 N.E.2d 328, 330-31 (Ill. App. Ct. 1990) (Bank “engaged in pattern of abusive conduct” that met test for outrageousness because it “arose from an employment relationship in which the Bank held a position of authority, determining the nature, conditions, and duration of [plaintiff’s] employment; the Bank’s conduct, being retaliatory, served no legitimate purpose; and the abusive conduct continued even after the Bank knew of [plaintiff’s] susceptibility to emotional distress”).

In Crump, also cited by the majority, we found a genuine factual dispute on the outrageousness of defendant’s conduct by looking at the acts together and in context:

Plaintiff’s evidence showed that defendant’s representative summoned plaintiff to a lengthy meeting without notice, continued the meeting without a break for rest or food, repeatedly badgered him to amend and sign a statement, and that plaintiff did not feel free to leave the meeting. Immediately after the meeting, defendant’s representative directed plaintiff to clean out his desk, a summary dismissal after eighteen years of service.

Crump, 154 Vt. at 296-97, 576 A.2d at 449. In light of the majority’s reasoning in the present case, one could look at the acts in Crump and conclude that plaintiff suffered a mere insult, indignity or annoyance by being called into a meeting without notice, or by not getting a break for food or rest during the meeting, or by being badgered to sign or amend a statement, or by being summarily dismissed. I disagree that the law, as the majority suggests, requires the court to examine the facts at issue in this case in isolation.

Further, Bishop had been apprised of Denton’s strengths and weaknesses by Richard Fletcher, Bishop’s predecessor, and the *75alleged behavior appeared to deliberately target Denton’s weaknesses. See Restatement § 46 cmt. f (“conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of” knowledge that plaintiff is “peculiarly susceptible to emotional distress”); Drejza, 650 A.2d at 1316 (police officer should have known rape victim was vulnerable to emotional distress, and it was for jury to decide whether officer’s comments to her about her lack of virginity and instruction to “take her little panties home” were extreme and outrageous). Taking plaintiffs’ allegations as true, Messier v. Metropolitan Life Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 100 (1990), a reasonable jury could readily find the alleged behavior to be outrageous.

In addition to evidence of outrageous behavior, plaintiffs must also present evidence sufficient to support the elements of causation and harm. See Poplaski v. Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326, 1329 (1989) (court will grant summary judgment if plaintiff fails to prove element essential to claim). Plaintiffs have presented more than sufficient evidence on the elements of causation and harm. I would therefore reverse summary judgment as to this count.

I would also reverse summary judgment on plaintiffs’ invasion-of-privacy claim. Plaintiffs produced enough evidence to create a genuine issue for the jury regarding the offensiveness of Bishop’s intrusion into plaintiffs’ privacy. Bishop’s repeated telephone calls, as well as his uninvited and unwelcome entry into the Denton home are legally sufficient to permit the claim to go to the jury. See Restatement § 652B cmt. d (when telephone calls are repeated with “such persistence and frequency as to amount to a course of hounding the plaintiff,” cause of action for invasion of privacy will lie); see also Love v. Southern Bell Tel. & Tel. Co., 263 So. 2d 460, 466 (La. Ct. App. 1972) (employer liable to employee for invasion of privacy where employer, concerned that employee may be injured, entered employee’s trailer without permission with locksmith’s assistance). I cannot agree with the majority’s implication that an employer is privileged to hound an employee with persistent telephone calls and uninvited visits to the employee’s home merely because the employer’s purpose was to learn more about the employee’s illness and absence from work. Reasonable minds could differ on the offensiveness of Bishop’s method of inquiring about Denton’s illness. Summary judgment, in my view, was improper.

I am authorized to say that Justice Johnson joins in this dissent.