Foley v. Polaroid Corp.

Liacos, J.

(concurring in part and dissenting in part). I agree with the court’s analysis of all but two of the issues raised by these cross appeals. I strongly disagree, however, with the court’s treatment of the jury’s verdict for Mary Foley on her loss of consortium claim arising from Polaroid’s intentional infliction of emotional distress on her husband. Additionally, I do not agree that a threat of discharge from employment cannot support a claim of false imprisonment. In my view, the opinion of the court, and authorities cited therein, are simply unrealistic in their underestimation of what employment, and the threat of its loss, means to an individual in this society. Accordingly, I dissent.

I. Loss of consortium arising from intentional infliction of emotional distress. In reviewing the judge’s denial of a motion for judgment notwithstanding the verdict, the issue before this court is whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be *102found from which a reasonable inference could be drawn in favor of the plaintiff.” Poirier v. Plymouth, 374 Mass. 206, 212 (1978), quoting Pamela v. Hertz Corp., 361 Mass. 341, 343 (1972). In applying this standard, we should examine the evidence in the light most favorable to the plaintiff. See, e.g., LaClair v. Silberline Mfg. Co., 379 Mass. 21, 23 (1979). When ruling on a motion for judgment notwithstanding the verdict, we consider neither the credibility of the witnesses nor the comparative weight of the parties’ respective evidence. Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974). See J.W. Smith & H.B. Zobel, Rules Practice §§ 50.2, 50.12 (1977). Nor may we substitute our judgment of facts for that of the jury. 9 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2524, at 543-544 (1971).1 J.W. Smith & H.B. Zobel, Rules Practice § 50.6, at 203 (1977), and cases cited therein.

On the facts of this case, it is inconceivable that the court can conclude that nowhere in the evidence, from whatever source derived, any combination of circumstances could be found from which inferences could be drawn in favor of Mary Foley. “This court should not invade the province of the jury by substituting its judgment on questions of fact.” Commonwealth v. Bianco, 388 Mass. 358, 375 (1983) (Liacos, J., dissenting). Other courts have abided by this fundamental principle on similar facts. In Armano v. Federal Reserve Bank, 468 F. Supp. 674, 676 (D. Mass. 1979), for example, the plaintiff alleged that his employer “undertook a planned and systematic program to harass him in an attempt to force him to voluntarily terminate his employment.” He alleged harassment including “transferring him to a less responsible position, assigning him to work which was substantially below his grade and pay level, circulating rumors . . . that plaintiff was caught or suspected of stealing money and directing supervisory per*103sonnel to assign plaintiff to the lowest and most menial tasks.” Id. Applying Massachusetts law, the judge held that the plaintiff had raised a question for the jury because there was a factual question whether such conduct reasonably could be found to be so extreme and outrageous as to permit recovery.

In the instant case, there was evidence that Edward Foley was banished from his regular place at work, and was denied the fruits of what had been a promising career. He was placed at a desk in an open corridor, and he was treated as a pariah by his superiors. His personnel files disappeared. He was taunted and humiliated in front of his fellow employees. He was given no responsibility and was assigned no work. He was subjected not to rumors but to direct accusations of conduct far more serious than stealing money, and was given one assignment, i.e., to clean out and inventory a dirty area of a warehouse. I cannot join an opinion which so oversteps the proper role of this court as to conclude summarily that such allegations do not even raise a question for the jury.

It seems important to note, although the opinion of the court ignores the rule, that the same rule governs cases alleging infliction of emotional distress as applies whenever a party to a civil proceeding moves for a directed verdict or for judgment notwithstanding the verdict. Where “reasonable men may differ” as to whether a plaintiff has alleged facts and circumstances which reasonably could lead the trier of fact to conclude that the defendant’s conduct was extreme and outrageous, the question should go to the jury. See Restatement (Second) of Torts § 46 comment h (1965). Moreover, as we stated in Agis v. Howard Johnson Co., 371 Mass. 140 (1976), “The jury is ordinarily in a better position ... to determine whether outrageous conduct results in mental distress than whether that distress in turn results in physical injury. From their own experience jurors are aware of the extent and character of the disagreeable emotions that may result from the defendant’s conduct . . . .” Id. at 144, quoting State Rubbish Collectors Ass’n v. Siliznoff, 38 Cal. 2d 330, 338 (1952).

In my view, the flaw in the court’s analysis is that it isolates individual incidents and “ignores the fact that the jury are *104entitled to draw reasonable inferences from the totality of circumstances.”2 Boyle v. Wenk, 378 Mass. 592, 595 (1979), citing Poirier v. Plymouth, supra at 212. We have stated that “[Repeated harassment. . . may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability for infliction of emotional distress.” Boyle v. Wenk, supra.

The court errs by invading the province of the jury and substituting its judgment for that of the jury on questions of fact. “Jurors saw the witnesses, and their judgment of the credibility of the witnesses, of the comparable strength of the conflicting evidence, and of the factual validity of the contentions put forth by each side should be immune from attack.” Bonin v. Chestnut Hill Towers Realty Corp., 392 Mass. 58, 77-78 (1984) (Abrams, J., dissenting). It is jurors, not judges, who decide questions of fact and who apply the law to the facts. “[W]e have no authority to take upon ourselves the duties of a tribunal of fact, and to determine what verdicts should have been rendered by the jury.” Electric Welding Co. v. Prince, 200 Mass. 386, 392 (1909). What is extreme and outrageous conduct should be left to the judgment of a jury who represent the values of the community.

The facts in this case easily support a conclusion that “[mjore than one decision was possible to honest and reasonable men, and, therefore, the jury was the tribunal to determine which [decision should be reached].” Hicks v. H.B. Church Truck Serv. Co., 259 Mass. 272, 277 (1927). The jury’s verdict in favor of Mary Foley was warranted by the evidence, and the judgment on this claim should be affirmed.

II. False imprisonment. The court concludes that the judge erred by implicitly instructing the jury that a threat that Foley *105would lose his job if he left the room where he was being interrogated could be a means of false imprisonment. Although the court’s conclusion is supported by cases from other jurisdictions and the Restatement (Second) of Torts § 892B (1982 App.), I disagree. It seems to me that the court’s analysis minimizes and distorts the growing recognition of the centrality of work in a person’s life and the fact that “for most employees, their job is the most valuable thing they possess.” Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va. L. Rev. 481, 532 (1976).

The court states that “an employee at will who relinquishes his right to move about in return for continued employment . . . has a free choice.” Ante at 91. Judges, secure in their position, are free to make such statements, but such a statement must appear to a worker to be what it is, pure poppycock. Fortunately, this court has not always disregarded the reality of the workplace. In other contexts, we have recognized the illusory nature of such a “free choice.” In Uloth v. City Tank Corp., 376 Mass. 874, 880 (1978), for example, we observed that “a user may not have a real alternative to using a dangerous product, as where a worker must either work on a dangerous machine or leave his job.”

The United States Supreme Court has stated that “[i]t requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure” (citations omitted). Truax v. Raich, 239 U.S. 33, 41 (1915).

As Justice Douglas put it, “it does a man little good to stay alive and free and propertied, if he cannot work.” Barsky v. Board of Regents, 347 U.S. 442, 473 (1954) (Douglas, J., dissenting). Justice Douglas wrote: “The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. The American ideal was stated by Emerson in his essay on Politics, ‘A man has a right to be employed, to be trusted, to be loved, to be revered.’ ... To work means to eat. It also means to live. For many it would be better to *106work in jail, than to sit idle on the curb. The great values of freedom are in the opportunities afforded man to press to new horizons, to pit his strength against the forces of nature, to match skills with his fellow man.” Barsky v. Board of Regents, supra at 472 (Douglas, J., dissenting).

It is difficult to overstate the importance of the employment relationship as a focus of security and standing in our society. See, e.g., Glendon & Lev, Changes in the Bonding of the Employment Relationship: An Essay on the New Property, 20 B.C.L. Rev. 457 (1979). “Empirical studies indicate that discharge from employment affects the self-esteem of employees no less severely than it affects their economic well-being. Work serves not only a useful economic purpose but plays a crucial role in the individual’s psychological identity and sense of order. The growing recognition of the centrality of work in a person’s life, together with an awareness of the severe economic consequences resulting from arbitrary treatment in the employment relationship, supports [the] assertion that employer control over the job means that ‘the substance of life is in another man’s hands.’ ” (Footnotes omitted.) Note, Implied Contract Rights to Job Security, 26 Stan. L. Rev. 335, 339 (1974). In my view, the threat of physical force is less significant than the threat of losing one’s employment and career as an invalidation of the consent that contradicts imprisonment for purposes of this tort.

Accordingly, while I agree that the false imprisonment claim should be remanded for a new trial because of the judge’s failure to give Polaroid’s requested instruction regarding the reasonableness of Foley’s confinement, I do not join the court’s discussion regarding the threat of discharge from employment.

Since Mass. R. Civ. P. 50 (b) is patterned after the Federal Rule of Civil Procedure 50 (b), New England Acceptance Corp. v. American Mfrs. Mut. Ins. Co., 373 Mass. 594, 596 (1977), we may be guided by the construction which Federal courts have given the corresponding Federal rule. Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975). See Martin v. Hall, 369 Mass. 882, 884 (1976).

The court’s argument also disregards the Reporter’s Note that “[t]he law [concerning infliction of emotional distress] is still in a stage of development, and the ultimate limits of this tort are not yet determined. . . . The Caveat [to § 46] is intended to leave fully open the possibility of further development of the law, and the recognition of other situations in which liability may be imposed.” Restatement (Second) of Torts § 46 comment c (1965).