Doohan v. Bigfork School District No. 38

No. 89-207
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

THOMAS P. DOOHAN,
Plaintiff and Respondent,
-v-
BIGFORK SCHOOL DISTRICT NO. 38, BIGFORK, MT.,
DR. ROBERT W. BOWMAN, ROBERT CHRYSLER, ALBERT
COCHRANE, ROBERT BOESE, LLOYD MAGNALL, JOSEPH
POTOCZNY, RONALD MARTIN, EDWIN ANDERSON, and
CHARLES MASON, Trustees thereof, the following
Bigfork School ~istrict No. 38 Board Members
cds&& E
QF O U P R E I ~ ..
S T A + ~ OF @ O N ~ A ~
in their individual capacity; ROBERT CHRYSLER
and ALBERT COCHRANE,
Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Gordon R. Bennett, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Stephen C. Berg; Warden, Christensen, Johnson &
Berg; Kalispell, Montana
For Respondent:
Chris P. Christensen, Kalispell, Montana
John K. Addy; Matovich, Addy & Keller; Billings,
Montana
For Amicus:
Catherine Swift; Montana School Boards Assn.;
Helena, Montana

Heard: November 1, 1989
Submitted: October 18, 1990
Decided: February 5, 1991
m
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

This case is an appeal from a judgment against Bigfork School
District No. 38 (School District) and Trustees Robert Chrysler and
Albert Cochrane individually, following a trial in the Eleventh
Judicial District, Flathead County, Montana. The jury fixed
damages of $87,583.33 against the School District for unlawfully
depriving the respondent, Thomas P. Doohan, of his constitutionally
protected right to continued employment as a school district
superintendent. The jury found defendant School Board Trustees
Robert Chrysler and Albert Cochrane each individually liable for
intentional infliction of emotional distress and fixed damages in
the amount of $1 against Chrysler and $12,500 against Cochrane.
We reverse and remand for new trial.
The parties raise several issues which we restate as follows:
As to School District No. 38:
I. Did the District Court err in giving Instruction No. 12?
11. Did Doohan properly state a claim for deprivation of a
property right under 42 U.S.C. 5 1983?
111. Does substantial evidence support the jury verdict
against the School District?
IV. Is the School District immune from liability for civil
damages under 42 U.S.C. 5 1983?
As to School Trustees Robert Chrysler and Albert Cochrane:
V. Does substantial evidence support the jury's verdict that
Cochrane and Chrysler inflicted emotional distress on Doohan?
VI. Are Cochrane and Chrysler entitled to immunity under 3
2
2-9-111, MCA?
Doohan raises an issue on cross-appeal:
VII. Did the filing of the Notice of Appeal divest the
District Court of jurisdiction to decide Doohan's application for
attorney fees pursuant to 42 U.S.C. 5 1983?
Doohan was the Superintendent of School District No. 38 in
Bigfork, Montana from July 1, 1983, to June 6, 1985, when he took
a medical disability retirement. Chrysler was a trustee of the
School Board when Doohan began work and Cochrane was appointed to
the Board in May of 1984. Doohan alleged that the School Board
collectively and Cochrane and Chrysler individually made his
working conditions intolerable. Doohan alleged that, as a result
of these intolerable working conditions, he suffered severe mental
distress and physical illness which forced him into a medical
disability retirement. Further, Doohan alleged that Cochrane and
Chrysler engaged in a concerted effort to force him out of his job
and that their actions constituted an intentional infliction of
emotional distress upon him.
During the eight-day trial, Doohan introduced evidence, both
testimonial and documentary, relating to numerous specific
instances of conduct by the School Board and Chrysler and
Cochrane. These instances began in August of 1983 and occurred
frequently, oftentimes each month, until June 6, 1985. Testimony
related to the appellants' conduct during open School Board
meetings, executive School Board sessions, communication with
school personnel, communication with the media, communication with
the public, School Board members1 communication with each other
privately, and various private communications with Doohan.
Defendants introduced evidence that conflicted substantially
with Doohan1s evidence regarding the same incidents. More
specific facts will be discussed as necessary.
I and 11.
We will discuss the first two issues together. First, the
defendant School District argues that Instruction No. 12 provides
an inadequate definition of the requirements of due process and
essentially directed a verdict on the § 1983 claim in Doohan's

favor. Instruction No. 12 provided:
INSTRUCTION NO. 12
Under the United States Constitution and the federal
statute I [the court] previously referred to, the
Plaintiff is claiming he has been deprived of property
and liberty I1withoutdue process of law." To be deprived
of onels property and liberty I1without due process of
lawf1 means to be deprived of such rights without
authority of the law. Before you can determine, then,
whether or not the Plaintiff was deprived by the
Defendants of his property and liberty "without due
process of law,I1 you must first determine from a
preponderance of the evidence in the case whether the
Defendants committed the acts alleged, and, if so,
whether the Defendants acted under circumstances within
or without the bounds of their lawful authority under
state law. If the Defendants acted within the limits of
their lawful authority under state law, then the
Defendants could not have deprived the Plaintiff of any
right I1withoutdue process of law.l1
Under Montana law, the Trustees may terminate the
services of a superintendent of Schools only at the
expiration of his term, and only if they give him written
notice of the termination prior to February 1 of the last
year of his contract. The Trustees also have an implied
right to terminate the Superintendent prior to the
expiration date in the contract only if they give him a
hearing on the reasons for the dismissal and find that
there is just cause to dismiss him.
 In this case, Mr. Doohan, the Plaintiff, has claimed
that the Defendant Board of Trustees has constructively
discharged him from his position as Superintendent
without giving him a hearing, and that their actions have
deprived him of his constitutionally protected rights to
property and liberty.
If you find that the Defendant Board constructively
discharged the Plaintiff without notice and hearing you
may find the Plaintiff was deprived of the due process
of law. (Emphasis in original.)

This instruction was fashioned by the court from the court's own
language, several of the plaintiff's instructions, and the first
paragraph of the defendant's Proposed Instruction No. 14, which is
identical to the first paragraph of ~nstruction 12 above.
Defendant's proposed instruction No. 14, contained the following
language in its second paragraph, which was omitted by the Court:
Due process may be defined as notice and opportunity
for hearing appropriate to the nature of the case. It
is not a mechanical instrument. It is not a yardstick.
It is a process. It is a delicate process of adjustment
inescapably involving the exercise of judgment by those
entrusted with the unfolding of the process. Among the
considerations that must enter into the judgment is the
precise nature of the interest that has been adversely
affected, the manner in which this was done, the reasons
for doing it, the available alternatives to the procedure
that was followed, the protection implicit in the office
of the functionary whose conduct is challenged and the
balance of the hurt complained of and good accomplished.

Defendant's definition of due process is taken directly from the
United States Supreme Court decision in Anti-Fascist Committee v.
McGrath (1951), 341 U.S. 123, 162-163, 71 S.Ct. 624, 643-644, 95
L.Ed. 817, 849, as cited in Montana Power Co. v. Public Service
commission (1983), 206 Mont. 359, 367-368, 671 P.2d 604, 609.
While we agree with the trial judge's assessment of this definition
as better suited for judicial opinions than jury instructions,
nevertheless it is a better definition of due process than the one
given in Instruction No. 12. However, we sympathize with the
presiding judge in this case for guidelines are sparse in this
evolving field of the law.
Instruction No. 12 briefly defines lvwithoutdue process of
law" as 'Iwithout authority of the This definition is
conclusory, its inaccuracy is evident in the many cases that have
held that a particular law or statute violates the due process
requirement of the 14th Amendment. Rather, as the defendant's
proposed instruction notes, "[tlhe fundamental requirement of due
process is the opportunity to be heard 'at a meaningful time and
in a meaningful manner. It' Mathews v. Eldridge (1976), 424 U.S.
319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32; Fuentes v. Shevin
(1972), 407 U.S. 67, 81, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 570.
Generally, "some kind of a hearingv8 ordinarily a constitutional
is
requirement for due process purposes before a public employee who
has a property interest in his job may be terminated. Cleveland
Board of Education v. Loudermill (1985), 470 U.S. 532, 542, 105
S.Ct. 1487, 1493, 84 L.Ed.2d 494, 504. And as noted by Justice
Frankfurter in the language used in the defendant's proposed
instruction, the notice and hearing required are not inflexible;
rather they should be "appropriate to the nature of the case." See
Anti-Fascist Com., supra.
Obviously, the very nature of a constructive discharge in many
cases precludes the giving of notice and hearing on the subject
employee's discharge. This does not, as we shall discuss later,
always lead to the conclusion in every case that a constructive
discharge in the context of public employment also gives rise to
a claim for deprivation of a constitutional right under 42 U.S.C.
5 1983. But here, Instruction No. 12 implies that the foregoing
is correct. It instructed that the Trustees could terminate Doohan
prior to the expiration of his contract only after a hearing on the
reasons for dismissal and a finding of just cause. Furthermore,
instructed that Doohan alleged that the Trustees "constructivelv
discharsed him from his position as Superintendent without siving
him a hearinq." The instruction then provided:
If you find that the Defendant Board constructively
discharsed the Plaintiff without notice and hearinq you
may find the Plaintiff was deprived of the due process
of law. (Emphasis added.)
The instruction essentially directed a verdict for Doohan on his
§ 1983 claim because it incorrectly focused on the idea of
constructive discharge "without a hearing1',and tells the jury that
it may find that Doohan was deprived of due process if they find
such. However, there was no issue as to giving notice or hearing
in this case--both parties agreed that there had been neither
notice or hearing. Nor is lack of notice and hearing unusual in
a constructive discharge claim. Nevertheless, once the jury found
a constructive discharge, they were directed to find a violation
of plaintiff's due process rights.
This is not supported by the law. Under the law of this case,
the elements of constructive discharge required facts sufficient
to logically lead a prudent person to believe his tenure had been
7
terminated; generally no notice or hearing is in any way involved
in that type of a termination. These elements were contained in
the court's Instruction No. 10:

INSTRUCTION NO. 10
Plaintiff has asserted a claim for constructive
wrongful discharge against the School Board and against
Defendants Chrysler and Cochrane as individuals.
The doctrine of constructive discharge applies where
facts are present showing harassment, intimidation,
coercion or other aggravating conduct on the employer's
part which renders working conditions intolerable.
The fact of discharge does not depend upon the use
of formal words of firing. The test is whether
sufficient words or actions by the employer would
logically lead a prudent person to believe his tenure had
been terminated.
Because defendants did not object to this instruction, we will not
discuss it at length. However, we do point out that while the
wording of the second paragraph reflects the definition of
constructive discharge given in Snell v. Montana Dakota Utilities
Co. (1982), 198 Mont. 56, 65, 643 P.2d 841, 846, the wording of
the third paragraph of this instruction was rejected in Frigon v.
Morrison-Maierle, Inc. (1988), 233 Mont. 113, 119, 760 P.2d 57, 61,
because it actually applies to cases alleging actual discharge.
See Hannifin v. Retail Clerks IntllAss'n. (1973), 162 Mont. 170,

Our decision in Snell pointed out that a determination of
constructive discharge depends on the totality of the
circumstances, and must be supported by more than an employee's
subjective judgment that working conditions are intolerable.
Snell, 643 P.2d at 846, citing Nolan v. Cleland (N.D.Ca1.1979),
482 F.Supp. 668, 672; aff'd in part, rev'd in part, 686 F.2d
806, 812-813 (9th Cir. 1982). Snell involved a federal law claim
of constructive discharge in an employment discrimination case
under Title VII of the Civil Rights Act of 1974, 42 U.S.C. 5 2000e.
Many such Title VII employment discrimination cases are accompanied
by due process claims under 42 U.S.C. 5 1983. See e.s., Hervey
v. City of Little Rock (8th Cir.1986), 787 F.2d 1223, Bailey v.
Kirk (10th Cir.1985), 777 F.2d 567, Satterwhite v. Smith (9th Cir.
1984), 744 F.2d 1380, Nolan, supra, (9th Cir.1982), 686 F.2d 806,
Bourque v. Powell Manufacturing Co. (5th Cir. 1980) , 617 F. 2d 61,
Young v. Southwestern Savings and Loan Association (5th Cir.1975),
509 F.2d 140, 144. In Nolan the Ninth Circuit recognized the
standard for constructive discharge in Title VII employment
discrimination cases adopted by the Fifth Circuit in Younq:
The general rule is that if the employer deliberately
makes an employee's working conditions so intolerable
that the employee is forced into an involuntary
resignation, then the employer has encompassed a
constructive discharge and is as liable for any illegal
conduct involved therein as if it had formally discharged
the aggrieved employee.
Nolan, 688 F.2d at 812-813; citing Younq, 509 F.2d at 144. The
Fifth Circuit later clarified Younq and adopted an objective
standard, stating that a constructive discharge exists when
"working conditions would have been so difficult or unpleasant that
a reasonable person in the employee's shoes would have felt
compelled to resign." See Bourque v. Powell Manufacturins Co. 617
F. 2d at 65. The Boursue court specifically rejected arguments that
an employee has to prove that it was the employer's intent to force
the employee to resign in Title VII discrimination cases.
While Title VII employment discrimination cases under 42
U. S.C. 5 2000e may involve similar issues and are often accompanied
by claims under 42 U.S.C. 5 1983, such claims are not analogous to
§ 1983 claims based solely on deprivation of due process where a
constructive discharge is alleged as the basis of the claim.
Failure to recognize the distinctions between a straight § 1983
action based on constructive discharge and Title VII constructive
discharge has led to confusion among the circuits in adopting an
appropriate standard for the straight 5 1983 action:
The elements required to establish a constructive
discharge claim under the due process clause are not
entirely clear. Some courts have required an individual
asserting a constructive discharge claim to establish
that the defendant forced a discharge in order to avoid
a pretermination hearing, see, e . s . , Fowler v. Carrollton
Public Librarv, 799 F.2d 976 (5th ~ir.), reh. denied,
803 F.2d 717 (1986); others have required that the
plaintiff show that the employer either obtained the
plaintiff's resignation through misrepresentations or
deceit or forced the resignation by duress or coercion,
see Stone v. University of Maryland Medical System, 855
F.2d 167 (4th Cir.1988) ; and still others appear to adopt
the Title VII standard, see, e.q., ~reenberqv. ~metko,
840 F.2d 467, 475 (7th Cir. 1988).
Desper v. Montgomery County (E.D.Pa.1990), 727 F.Supp. 959, 964.
Other jurisdictions apparently hold that a 5 1983 claim can never
be based on an allegation of constructive discharge. See, e.q.,
Beard v. Baum (Alaska 1990), 796 P.2d 1344, 1350.
We think that the position adopted by the Fifth Circuit in
Fowler v. Carrollton Public Librarv, supra, is the better-reasoned
one. There, the court analyzed 5 1983 claims based on constructive
discharge in light of the general principles governing 1983
claims set forth by the United States Supreme Court in Loudermill
and Daniels v. Williams (1986), 474 U.S. 327, 106 S.Ct. 662, 88
L.Ed.2d 662. We quote at length the Fifth Circuitls reasoning:
The Loudermill rule does not a fortiori apply to cases
of alleged constructive discharge. A pretermination
hearing is just not feasible when the gist of the
employee's claim is that he was forced to resign by
unbearable working conditions. More significantly, the
lack of a pretermination hearing does not necessarily
create a constitutional procedural due process violation
when that deficiency was an unintended or fortuitous
consequence of harassment at work. In Daniels v.
Williams [citation omitted] the Supreme Court recently
held that negligent conduct does not implicate the Due
Process Clause of the Fourteenth Amendment. . .
. The
Court cited with approval Justice Powell's concurrence
in Parratt, [Parratt v. Taylor (1981), 451 U.S. 527, 101
S.Ct. 1908, 68 L.Ed.2d 4201 urging that the word
"deprivet1 in the Due Process Clause connotes more than
a negligent act and that the doors of the federal court
house should not be l1open . . . where there has been no
affirmative abuse of power." Daniels 106 S.Ct. at 664-
65, citing Parratt, 101 S.Ct. at 1919-20. Discussing a
public employee dismissal case, the Court cautioned, "In
the absence of any claim that the public employer was
motivated by a desire to curtail or to penalize the
exercise of an employee's constitutionally protected
rights, we must presume that official action . . . if
erroneous, can best be corrected in other ways.I1 Bishop
v. Wood, 426 U.S. 341, 350, 96 S.Ct. 2074, 2080, 48
L.Ed. 2d 684 (1976) (emphasis added. )
No issue of intent arises in a Loudermill case,
because the employee ... has been actually terminated
without resort to constitutionally required procedures.
The employer must have consciously ignored procedural due
process. . . . [Hlowever, constructive discharge may
often result as an unintended consequence from the course
of interpersonal relations among employees and
supervisors. Indeed, that was very likely the case here,
for to the extent that Fowler demonstrated unbearable
working conditions in the library, there was nevertheless
no evidence that Mj aaland and Fowler I s coworkers
purposefully sought to force her to resign or
purposefully planned to avoid the City's post-
termination hearing procedure. Without proof of that
critical nexus between the conduct complained of and the
constitutional risht beins asserted, we find no general
procedural due process protection against harassment at
work.
 ...
From the forgoing discussion, it appears that the
district court erroneously submitted actual and
constructive discharge as theories of 5 1983 recovery in
the same jury interrogatory. Constructive discharge in
a procedural due process case constitutes a 5 1983 claim
only if it amounts to forced discharse to avoid affording
pretermination procedures. (Emphasis added.)
Fowler, 799 F.2d at 980-981. We adopt the rationale of the Fifth
Circuit and hold that a valid procedural due process claim based
on constructive discharge requires employer conduct motivated by
a desire to avoid subjecting its actions to the scrutiny of a
termination related hearing. We also note, as did the Fowler
court, that our holding here does not affect the viability of the
objective constructive discharge standard in a Title VII employment
discrimination claim, under 42 U.S.C. 82000e. In those cases,
harassment motivated by the discrimination proscribed in the
statute automatically establishes the Itcriticalnexus1'between the
conduct complained-of and the employee's constitutional right.
Fowler, 799 F.2d at 980-981.
Thus, not only was it error in this case for the District
Court to give an incomplete instruction on the definition of due
process and essentially direct a verdict for the plaintiff, the
court also erred in instructing the jury that it could find a
deprivation of due process if it merely found a constructive
discharge under the traditional objective test. Under the law we
adopt here a 8 1983 claim based on harassment at work requires
additional proof of the employer's subjective intent to deprive the
employee of his due process hearing.
In this regard, evidence that the Trustees in this case
withdrew their request for Doohan's resignation--allegedly for the
purpose of investigating the due process requirements to ensure
compliance therewith--would be material to the issue of the
Trustees actual intent concerning the alleged on-the-job harassment
of Doohan. If the jury finds that the Trustees were sincere in
their concerns about termination law, it cannot find that the
Trustees deprived Doohan of due process of the law. If, on the
other hand a jury finds that the Board is merely attempting to
disguise its intentional attempts to deprive Doohan of his job and
his right to a hearing on his discharge then Doohan has a
cognizable claim under 5 1983.
It was imperative that Instruction No. 12 told the jury
specifically what Doohan had to prove to satisfy each element of
the 5 1983 claim. To establish a deprivation of that constitutional
right, Doohan first had to prove that the School District
constructively discharged him. ~dditionally, had to prove that
he
such discharge was intentionally carried out with the purpose of
depriving Doohan of his right to notice and a hearing. The Court Is
instructions failed to require this additional proof. The jury was
not correctly instructed concerning the requirements of due process
in this case nor was it properly instructed on the type of conduct
required for liability in a 5 1983 case. The giving of Instruction
No. 12 was reversible error.

Because we have determined that the giving of Instruction No.
12 was error, we decline to determine the defendant's third issue
regarding sufficiency of the evidence to support the verdict
against the School District. Because we are essentially adopting
a new standard for 5 1983 claims based on constructive discharge,
we think it fair that the plaintiff have an opportunity to present
proof of his 5 1983 claim under the Fowler standard at a new trial.
Therefore, we decline to rule on the sufficiency of the evidence
based on a record developed under a different standard. "The
supreme court may not be bound in advance to a record which was not
in existence at the time the decision was rendered. . . . If the
prior decision of the supreme court does not expressly pass on the
sufficiency of the evidence, the district court is free to consider
a motion for directed verdict as if there had been no prior
proceedings.I1 OIBrien v. Great Northern Ry. Co. (1966), 148 Mont.
429, 441, 421 P.2d 710, 716. In as much as Doohan1s 5 1983 claim
will be re-tried under the new standard, the defendants will have
an opportunity to raise the issue of the sufficiency of the
evidence supporting the 5 1983 claim at an appropriate time. a,
e.s., Zeke's Distributing Co. v. Brown Forman Corp. (1989), 239
Mont. 272, 279-280, 779 P.2d 908, 913.
IV.
Appellants argue that the School District is immune from
damages under the U.S. Supreme Court's decision in Harlow v.
Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396.
The Harlow decision held that government officials are immune from
civil liability as long as their conduct does not violate clearly
established law. In pertinent part, Harlow provides:
 If the law at that time was not clearly established, an
official could not reasonably be expected to anticipate
subsequent legal developments, nor could he fairly be
said to I1knoww that the law forbade conduct not
previously identified as unlawful. ..
. If the law was
clearly established, the immunity defense ordinarily
should fail, since a reasonably competent public official
should know the law governing his conduct.
Harlow 102 S.Ct. at 2738. Appellants argue that the law applicable
to the School Board's conduct in relation to terminating a
superintendent is not clearly established. However 5 20-4-401,
MCA, plainly delineates how a school board must terminate a
superintendent. The District Court correctly presumed the Board
to have knowledge of this statute and appellants do not argue
otherwise.
According to appellants the termination process required by
5 20-4-401, MCA, would be the I1clearlyestablishedI1 law only if it
had affirmatively discharged Doohan and Doohan had alleged that
it had wrongfully discharged him. Constructive discharge, however,
is a form of wrongful discharge. Thus, if the School Board
constructively discharged Doohan, then it did so in violation
5 20-4-401, MCA, which the Board knew outlined the required
termination procedure. Furthermore, if a jury finds that the Board
constructively discharged Doohan with the purpose of depriving
Doohan of the procedures prescribed in 5 20-4-401, MCA, the Board
obviously cannot claim immunity based on ignorance of the
procedures it was purposefully avoiding. Moreover, a state law
defense of sovereign immunity under 5 2-9-111, MCA, is not
available in a 5 1983 suit where a defendant school board is
otherwise subject to suit in a state court and where such a defense
would not be available had the action been brought in a federal
forum. Howlett v. Rose (1990), - . . ,
US- , 110 S.Ct. 2430,
2442-2445, 110 L.Ed.2d 332, 352-356. Thus, the immunity afforded
by § 2-9-111, MCA, does not apply to causes of action granted by
the federal constitution such as the Civil Rights Act, 42 U.S. C.
§ 1983. We hold that the School District is not entitled to
immunity from damages under 42 U.S.C. 5 1983.

The defendants Cochrane and Chrysler contend that the record
lacks substantial evidence to support the jury's verdict that they
intentionally inflicted emotional distress on Doohan. Instruction
No. 19 as given by the District Court covered the elements of the
intentional infliction of emotional distress and also the scope of
the immunity Cochrane and Chrysler pled as a defense to the alleged
infliction. It stated:

INSTRUCTION NO. 19
Plaintiff has asserted a claim for the intentional
infliction of emotional distress upon the Plaintiff by
Defendants Chrysler and Cochrane. One who by extreme and
outrageous conduct intentionally 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. In order for you
to find these two Defendants intentionally inflicted
emotional distress upon the Plaintiff, you must find that
their behavior, in their relationship with the Plaintiff,
was so outrageous in character, and 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. The liability does not extend to
mere insults, indignities, threats, annoyances, petty
oppression and other trivialities.
Emotional distress is defined as mental suffering,
 anguish, mental or nervous shock or the like. Severe
emotional distress is defined as emotional distress such
that no reasonable man could be expected to endure it.
I further instruct you that if you find the conduct
of Defendants Chrysler and Cochrane, in their dealings
with the Plaintiff, arose from their lawful discharge of
official duties associated with the introduction or
consideration of legislation or action by the Board of
Trustees, acting on behalf of the School District, then
you cannot find these Defendants intentionally inflicted
emotional distress upon the Plaintiff. Nor can you find
liability based upon such Defendants1 insistence upon his
legal rights in a permissible manner even though he is
well aware that such insistence is certain to cause
emotional distress.

The defendants did not object to this instruction at trial. They
now contend on appeal that the record does not contain substantial
credible evidence to support the verdict of the intentional
infliction of emotional distress. In addition they contend that
under 5 2-9-111, MCA, they were immunized from liability.
This Court has not yet dealt with a case which merits
recognition of a separate cause of action for the intentional
infliction of emotional distress. Frigon v. orriso on-Maierle, Inc.
(1988), 233 Mont. 113, 123-124, 760 P.2d 57, 63-64. We have not,
however, rejected outright the validity of such a cause of action.
Rather, we simply have not addressed a factual situation that may
give rise to liability for such a tort under the standard set forth
in 5 46 of the Restatement (Second) of Torts:
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 results from it, such bodily harm.
Comment lidw to 5 46 explains the nature of the conduct necessary
to impose liability:
 The cases thus far decided have found liability only
where the defendant's conduct has been extreme and
outrageous. It has not been enough that the defendant
has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized
by llmalice,ll a degree of aggravation which would
or
entitle the plaintiff to punitive damages for another
tort. Liability has been found only where the conduct
has been so outrageous in character, and 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. Generally, the case is one in
which the recitation of the facts to an average member
of the community would arouse his resentment against the
actor, and lead him to exclaim, l~Outrageous!"
The liability clearly does not extend to mere
insults, indignities, threats, annoyances, petty
oppressions, or other trivialities. The rough edges of
our society are still in need of a good deal of filing
down, and in the meantime plaintiffs must necessarily be
expected and required to be hardened to a certain amount
of rough language, and to occasional acts that are
definitely inconsiderate and unkind. There is no
occasion for the law to intervene in every case where
some one's feelings are hurt. There must still be
freedom to express an unflattering opinion, and some
safety valve must be left through which irascible tempers
may blow off relatively harmless steam.
Restatement (Second) of Torts 546 (1965), comment d.
Doohan introduced evidence tending to show that Chrysler and
Cochrane, over a period of eight months to a year, engaged in a
campaign designed to oust him from his position as Superintendent.
Doohan alleges that prior to this campaign, the record indicates
that he had performed exceptionally well and received good
evaluations during his first year as Superintendent, and was coping
well with the normal positive stresses that the job entailed.
Doohan alleges that Cochrane and Chrysler then began their
campaign seeking to undermine his credibility and effectiveness by
directing the attention of the School Board, the media and the
communitytowards certain events characterizing Doohan unfavorably.
He alleges that they attempted to manipulate the media and they
utilized every opportunity to characterize events so as to cast
doubt on Doohants professional abilities and moral character.
Doohan alleges that Chrysler and Cochrane worked with others
outside of School Board meetings to circumvent Doohan1s authority
and to lay something in the nature of an ambush during meetings.
Chrysler and Cochrane allegedly continued their campaign in the
face of Doohan1s deteriorating mental and physical condition of
which they were allegedly aware. The evidence Doohan contends
constitutes extreme and outrageous conduct by Cochrane and Chrysler
includes the following:

ROBERT CHRYSLER
1) Doohan insinuates that Chrysler changed his mind about
retiring as a Trustee after Doohan determined that there were not
enough funds in the school budget to support a school nurse
program---for which Chryslerlswife had already applied---so that
he could carry out a campaign against Doohan for not recommending
the creation of the position and the hiring of Mrs. Chrysler.

2 Doohan and Chrysler disagreed regarding Chrysler's
assertion that it is a Trustee's duty to periodically observe
classes although not for the purpose of evaluation. Chrysler
attempted to observe a class against Doohan1s wishes to which the
principal, with Doohantssupport, objected and eventually prevented
Chrysler from doing.
3) Chrysler issued a memorandum critical of Doohan the
19
morning after a school meeting during which Doohan became angry at
a school employee, threw down his pencil in disgust and publicly
criticized the employee.
4) Doohan was authorized by the Board to investigate and
purchase a computer. Doohan purchased the computer pursuant to the
lowest bid with only consulting one Board member for approval,
allegedly because it was a time limited offer that required
immediate action. At a School Board meeting Chrysler criticized
Doohan for purchasing the computer without consulting the Board and
for allegedly not investigating the compatibility of the software
with the appropriate state agency. Doohan alleges that Chrysler
would not accept any answer from him as a valid reason for his
sudden purchase and attempted to undermine Doohan by insinuating
that Doohan was attempting to conceal his failure to investigate
software compatibility from the Board.
5) Doohan alleges that Chrysler coordinated a November 26,
1984 School Board meeting agenda in advance and actively urged the

Board to listen to totally inappropriate criticism of a
superintendent by an elementary school principal in executive
session. Chrysler also allegedly encouraged elementary school
principal Chris Hagar to request this executive session to discuss
the Board's evaluation of him when such an evaluation would
properly be performed by Doohan.

6 Doohan asserts that Chrysler gave him a marginal
evaluation after the end of the second evaluation period and
refused to disclose to Doohan the basis of a comment insinuating
that Doohan was not "totally open and factual."
7) Chrysler supposedly refused to permit Doohan to observe
or participate in the tallying of the results of questionnaires
which ultimately concluded that the local mill levy did not pass
because the voters were dissatisfied with the school
administration.
8) Doohan recommended that the School Board not join the
Montana School Board Association. Chrysler sent Doohan1s
memorandum setting forth the reasoning behind his recommendation
to the association requesting an opinion thereon.

9) Doohan contends that Chrysler concocted a story regarding
a threatening telephone call Doohan supposedly made to Chrysler
after a discussion concerning wages for a new secretary position.
ALBERT COCHRANE
1) Doohan alleges that Cochrane had prior knowledge of and
probably participated in the preparation of the November 26th
meeting agenda with Chrysler.

2 Doohan alleges that Cochrane also brought out in the
Board meeting that he had independently investigated charges
brought by Hagar regarding an incident in the teacher's lounge
and related to the Board that an individual present in the
teacher's lounge verified that Doohan had called Hagar an 'IS .O.B.

Cochrane thereby concluded to the Board that Doohan was lying
regarding the incident at a time when Doohan was absent and unable
to respond to such a serious charge.

3) Doohan asserts that when he entered the meeting Cochrane
criticized him for failing to communicate effectively with Hagar,
shook his finger at Doohan and told him to straighten out his
relationship with Hagar Iforelse.'' Doohan also criticizes Cochrane
because he allegedly urged the Board to inappropriately issue a
public memorandum suggesting that Doohan was responsible for the
lack of communication between Hagar and himself, when in reality
the problem was Hagar's fault.
4) Cochrane stated that there was a 'Icloud of mysteryI1
surrounding the apparent disappearance of the original of Doohan's
contract. The absence of the original was discovered when
uncertainty arose as to whether the Board had agreed to give Doohan
a one or two year contract. Doohan alleges that this comment was
meant to insinuate that Doohan was somehow responsible for the
contract's disappearance.
5) Cochrane also gave Doohan a marginal evaluation at the
close of the second evaluation period and refused to disclose to
Doohan the meaning of the I1totallyopen and factual1'comment which
Doohan alleges was an accusation that he was a liar.
6) When Doohan announced he would hold a faculty morale
session, Cochrane allegedly insisted on attending despite Doohan1s
explanation that Cochrane's attendance was inappropriate and would
be disruptive. After much disagreement on this issue Cochrane
eventually did not attend.
7) When Cochrane's son Tim was caught in possession of
alcohol at school, Doohan alleges that Cochrane attempted to
persuade Doohan to impose a lesser penalty on Tim and then berated
him for not doing so. Doohan insinuates that this escalated the
motive underlying Cochranets campaign to oust Doohan, just as the
school nurse position incident increased Chryslerls motive to
undermine him.

8) Doohan asserts that Cochrane was instrumental in preparing
and conducting a survey of School District residents. He alleges
that the questions were designed and the results later manipulated
to reflect badly upon Doohan's performance as Superintendent, and
to imply that Doohan was the reason for the failure of the voters
to pass the school mill levy. Doohan alleges that the survey was
not scientifically valid and that Cochrane intentionally
disregarded a number of suggestions on survey methodology made by
High School Principal Zepp concerning distribution and the wording
of questions. Doohan also asserts that Cochrane arranged Doohan1s
absence as a chaperon for a group of students visiting Washington,
D.C. so that he would be away from Bigfork and unable to protest
at the time the survey was conducted and the results were
published.
In reviewing the evidence, we are required to consider it in
a light most favorable to Doohan, the prevailing party. Nelson v.
Fairmont Hotsprings Resort, Inc. (1988), 234 Mont. 452, 455, 763
P.2d 1135, 1137. We note that the record discloses substantial
conflict in the evidence regarding Chrysler and Cochranels alleged
campaign of harassment. The jury apparently resolved these
conflicts in favor of Doohan. Even so, it is a question of law
whether a plaintiff has introduced sufficient evidence to support
a prima facie case for intentional infliction of emotional
distress. Philip R. Morrow, Inc. v. FBS Ins. Montana-Hoiness
Labar, Inc. (1989), 236 Mont. 394, 403, 770 P.2d 859, 864. As
unfortunate as the apparent consequences to Doohan's health that
allegedly arose from his tenure at Bigfork may be, when the
evidence is considered as a whole and in the light most favorable
to Doohan, the alleged actions of Chrysler and Cochrane still fail
to approach the threshold level of ggoutrageousness~~
necessary to
establish a prima facie case of intentional infliction of emotional
distress. In ruling on the defendantsg motions for directed
verdict, the trial judge stated that "there was copious evidence
that the Plaintiff was under acute emotional distress." Indeed,
the record does demonstrate that Doohan suffered mental distress
or symptoms commonly related to mental distress. However, the
record also indicates that Doohan suffered from medical and
psychological problems prior to his employment in Bigfork. Thus
whether the symptoms he suffered were entirely a result of the
Trustees' conduct is unclear. Moreover, we do not live in an
"eggshell societytt in which every harm gives rise to a right of
action for mental distress. First Bank Billings v. Clark (1989),
236 Mont. 195, 206, 771 P.2d 84, 91. As the commentators to the
Restatement note:
Complete emotional tranquility is seldom attainable in
this world, and some degree of transient and trivial
emotional distress is a part of the price of living
among people. The law intervenes only where the distress
inflicted is so severe that no reasonable person could
be expected to endure it. . . .
The distress must be reasonable and justified under
the circumstances, and there is no liability where the
 plaintiff has suffered exaggerated and unreasonable
emotional distress, unless it results from a peculiarly
susceptibility to such distress of which the actor has
knowledse. ... (Emphasis added.)
Restatement (Second) of Torts 5 46 (1965), comment j. In this
regard, Doohan presented the testimony of a psychologist who
concluded that Doohan suffered from a personality disorder that
arose from his being a recovering alcoholic. This disorder
allegedly caused Doohan to over extend himself in order to gain
approval of others and be viewed as an extraordinary individual,
and consequently made him particularly sensitive to criticism.
However, there is no evidence in the record that the Board knew
about Doohan1s past struggle with substance abuse or any resulting
peculiarity in Doohan1s personality that would make him unusually
susceptible to their alleged attacks.
As we held in Philip R. Morrow, no facts here demonstrate
extreme and outrageous conduct going I1beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.11 Restatement (Second) of
Torts § 46 (1965), comment d; Philip R. Morrow, 770 P.2d at 864,
Frison, 760 P.2d at 64. Nor has Doohan presented facts showing a
I1substantial invasion of a legally protected interest.If Johnson
v. Supersave Markets, Inc. (1984), 211 Mont. 465, 473, 686 P . 2 d
209, 213. While we have yet to decide under what facts we will
recognize this tort, we have at least decided some situations where
we will not. Philip R. Morrow, 770 P.2d 864. We add the situation
here to that list. We conclude that the District Court erred when
it denied the defendants1 motions for directed verdict on Doohan's
intentional infliction of emotional distress claims.
We also note that there is an inconsistency in the jury's
answer to interrogatory 2(a) in the special verdict form regarding
trustee Chrysler. There the jury found that Chrysler intentionally
inflicted emotional distress upon Doohan and awarded $ 1.00 as
damages. One element of a prima facie case for intentional
infliction of emotional distress is that the plaintiff actually
suffer severe emotional distress. See Prosser and Keeton on Torts
12, pp. 63-64 (5th Ed. 1984), see also Clark 771 P.2d at 91.
Thus, unlike other intentional torts against the person--such as
assault, battery, 'or false imprisonment--intentional infliction of
emotional distress requires a showing of actual damages. A finding
of $1.00 in actual damages--in essence an award of nominal damages-
-is inconsistent with the finding that defendant Chrysler inflicted
''severe emotional distressl1upon Doohan. Such distress by its very
nature must manifest itself as actual damage, and certainly if
llseveren would amount to substantially more than $1.00.
it
VI .
Finally, Cochrane and Chrysler argue that they are entitled
to immunity under 3 2-9-111, MCA, and as instructed in Instruction
No. 19, quoted earlier. However, we need not determine this issue.
Doohan brought two state law claims against the individual
defendants Chrysler and Cochrane, one for constructive discharge
and one for intentional infliction of emotional distress. The jury
found no liability against the individual defendants for
constructive discharge and, as we have determined, Doohan failed
to state a prima facie case for intentional infliction of emotional
distress against Chrysler and Cochrane. Thus, all that remains to
be determined at retrial is Doohan's 5 1983 claim against the
remaining defendant, the School District, under the law we have set
forth in this opinion. Under our holding on Issue 111, immunity
does not apply to the School Board on this claim. Howlet, supra,
110 S.Ct. at 2442-2445.

VII.
Finally, the issue raised by Doohan on cross appeal---whether
the filing of the Notice of Appeal divested the District Court of
jurisdiction to decide Doohants application for attorney fees
pursuant to 42 U.S.C. 5 1988---is rendered moot by our remand of
this case for retrial of Doohan's claim under 42 U.S.C. 5 1983.
REVERSED and REMANDED for further proceedings consistent with

this opinion.

We Concur:

I

Justices
27
Justice Fred J. Weber dissents as follows:
My review of the record in a light most favorable to Mr.
Doohan demonstrates that he presented a compelling factual case in
support of his claims. In addition, I disagree that the defendants
presented valid legal grounds for reversal.
In its ruling reversing the judgment on the constructive
discharge claim, the majority adopts and retroactively applies a
new standard which has been adopted in the Fifth Circuit of the
federal courts. That rule is not universally recognized and it was
not argued in the parties1 briefs. I do not agree that it is a
workable rule. I find it inappropriate to retroactively apply such
a new standard.
When the challenged jury instruction, Instruction No. 12, is
read as a whole and considered with the other instructions given,
it does not misrepresent the law. The instructions as given
required that the plaintiff prove the key elements of constructive
discharge and provided that the defendants could not be held liable
if they acted within limits of their lawful authority. I would not
recommend the use of Instruction No. 12 in a constructive discharge
case because it contained various comments which were not essential
in the absence of an issue as to notice or hearing. However, I
would conclude that there was no reversible error in the giving of
Instruction No. 12.
I further conclude that the record supports the courtls
action in submitting the issue of intentional infliction of
emotional distress to the jury, because the evidence of the
defendants1 acts reached the threshold level of l~outrageousness.~
Mr. Doohan presented evidence of many events demonstrating that the
conduct on the part of Mr. Cochrane and Mr. Chrysler was
intentional in nature, and sufficient to demonstrate a basis for
the jury's verdict in his favor. While the defendants presented
conflicting evidence, when we view all of the evidence in the light
most favorable to Mr. Doohan, as we are required to do, there is
clearly sufficient evidence to support the verdict against both Mr.
Cochrane and Mr. Chrysler. Our review is of the cold record which
is a poor foundation on which to evaluate testimony here and
conclude it was not woutrageous.~ The record clearly demonstrates
that the acts of Mr. Chrysler and Mr. Cochrane caused serious
emotional distress for Mr. Doohan.
I would affirm the judgment of the ~istrictCourt.

Justices John C. Sheehy and William E. Hunt, Sr., concur in
the foregoing dissent.
,
, ''1