Green v. Admin of Tulane Ed ( 2000 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 99-31226
___________________________
CATHRYN GREEN,
Plaintiff-Appellant,
VERSUS
THE ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, incorrectly
referred to in plaintiff’s complaints as “The Administrators
of the Tulane Educatioinal Fund, Tulane University Hospital &
Clinic, and Tulane University School of Medicine”; TULANE
UNIVERSITY HOSPITAL AND CLINIC; TULANE UNIVERSITY SCHOOL OF
MEDICINE; DONALD R. RICHARDSON, M.D.,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
97-CV-1869-K
___________________________________________________
December 22, 2000
Before DAVIS and EMILIO M. GARZA, Circuit Judges and POGUE*, Judge.
DAVIS, Circuit Judge:**
I.
Cathryn Green filed an action against Dr. Donald Richardson
and his employer, Tulane University, alleging she was sexually
harassed and retaliated against by Dr. Richardson in violation of
*
Judge, U.S. Court of International Trade, sitting by
designation.
**
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Title VII of the Civil Rights Act of 1991. She also asserted a
state law claim of intentional infliction of emotional distress
against both Dr. Richardson and Tulane, and a claim of tortious
interference with contract against Dr. Richardson. Both Dr.
Richardson and Tulane filed motions for summary judgment. The
district court entered various orders of dismissal, the only one at
issue here being a grant of defendants’ motion for summary judgment
on the intentional infliction of emotional distress claim. The
district court granted a Rule 54(b) motion, allowing an appeal to
be taken from this order. Green’s Title VII case against Tulane
went to trial, resulting in a verdict for the plaintiff in the
amount of $429,013.1 The only issue before us is the propriety of
the district court’s order granting summary judgment in favor of
Dr. Richardson on plaintiff’s claim of intentional infliction of
emotional distress.
II.
After careful review of the record and briefs of the parties,
we are satisfied that Green failed to produce sufficient summary
judgment evidence to permit a jury to find that Dr. Richardson’s
alleged conduct was sufficiently egregious to allow Green to
establish her claim for intentional infliction of emotional
distress. In White v. Monsanto Co. the Louisiana Supreme Court
held that to make out such a claim, a plaintiff must prove: “1)
that the conduct of the defendant was extreme and outrageous; 2)
1
This judgment is currently the subject of a separate appeal
in this Court.
2
that the emotional distress suffered by the plaintiff was severe;
and 3) that the defendant desired to inflict severe emotional
distress or knew that severe distress would be certain or
substantially certain to result from his or her conduct.” 585 So.
2d 1205, 1209 (La. 1991).
In defining exactly what will be considered “extreme and
outrageous” conduct, the Louisiana Supreme Court has stated that:
The conduct must be 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.
Liability does not extend to mere insults,
indignities, threats, annoyances, petty
oppressions, or other trivialities. Persons
must necessarily be expected to be hardened to
a certain amount of rough language, and to
occasional acts that are definitely
inconsiderate and unkind. Not every verbal
encounter may be converted into a tort; on the
contrary, some safety valve must be left
through which irascible tempers may blow off
relatively harmless steam. Id.This Court has acknowledged that “the level of atrociousness
to which the behavior at issue must rise is quite high.” Skidmore
v. Precision Printing & Packaging, Inc., 188 F. 3d 606, 613 (5th
Cir. 1999). The tort is even more carefully scrutinized in the
workplace, since employers must, on occasion, “review, criticize,
demote, transfer, and discipline employees” in order to properly
manage their businesses. Therefore, it is extremely rare that an
employment dispute will support an emotional distress claim.
Wilson v. Monarch Paper Co., 939 F. 2d 1138, 1143 (5th Cir. 1991).
See also Nicholas v. Allstate Ins. Co., 765 So. 2d 1017, 1026-27
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(La. 2000). Even creating “unpleasant and onerous working
conditions designed to force an employee to quit, i.e.,
‘constructively’ to discharge the employee...although this sort of
conduct often rises to the level of illegality, except in the most
unusual cases...is not the sort of conduct...that constitutes
extreme and outrageous conduct.” Wilson at 1143.
III.
The district court’s careful order and reasons of April 8,
1999 accurately describe the summary judgment evidence. Viewing
that evidence in the light most favorable to plaintiff, we are
satisfied that the facts fall short of those necessary to make out
an intentional infliction of emotional distress claim under the
tough Louisiana standards. For the reasons stated above and in the
district court’s order and reasons, we AFFIRM the judgment of the
district court.
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POGUE, JUDGE, dissenting:
Based on a careful review of the record, I am convinced that
there are genuine issues of material fact in dispute and,
therefore, Green’s cause of action should have survived summary
judgment.
As the majority explains, to prove the tort of intentional
infliction of emotional distress, the plaintiff must show that (1)
the defendant’s conduct was extreme and outrageous, (2) the
emotional distress suffered by the plaintiff was severe, and (3)
the defendant desired to inflict severe emotional distress or knew
that severe distress would be certain or substantially certain to
result from his or her conduct. See White v. Monsanto Co., 585
So.2d 1205, 1209 (La. 1991). Moreover, in the work place
environment, the outrageous conduct requirement precludes
recognition of a cause of action based, for example, on a normal
workplace vendetta. See Nicholas v. Allstate Insurance Comp., 765
So.2d 1017, 1025 n. 11 (La. 2000). “[U]npleasant and onerous work
conditions designed to force an employee to quit, i.e., [to]
‘constructively’ . . . discharge the employee” do not usually
constitute outrageous conduct, except in the “most unusual cases.”
Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir.
1991)(emphasis omitted).
I depart from the majority’s analysis, however, because
Louisiana law also requires that, in an intentional infliction of
emotional distress case, an actor’s knowledge of the victim’s
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situation is to be considered in judging the actor’s conduct. See
Wright v. Otis Engineering Corp., 643 So.2d 484, 487 (La.App. 3rd
Cir. 1994); White, 585 So.2d at 1210. “Where the actor has
knowledge of another’s particular susceptibility to emotional
distress, the actor’s conduct should not be judged in the light of
the effect such conduct would have on a person of ordinary
sensibilities.” Wright, 643 So.2d at 487 (emphasis omitted).
After reviewing the record and briefs of the parties, I
believe that a reasonable jury could conclude that Richardson
intentionally tried to remove Green from her position as a result
of her decision to terminate their affair, and that considered in
light of the special nature of Green and Richardson’s relationship,
a relationship that influences the characterization of Richardson’s
behavior, a reasonable jury could determine that Richardson’s
actions were, in fact, “outrageous” and “beyond all possible bounds
of decency . . . .” White, 585 So.2d at 1209. As a result, and in
opposition to the majority, I believe that a reasonable jury could
find this conduct to be outrageous, satisfying the first prong of
the test.
I am also satisfied that a reasonable jury could conclude that
Green’s distress was severe and that Richardson was substantially
certain that severe distress would result from his conduct,
elements of the tort the majority did not analyze due to their
holding that Richardson’s conduct was not outrageous.
The record provides evidence of these facts: Richardson was
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Green’s boss and friend for more than twenty years. During the
course of Green’s employment, Richardson pursued Green, making
repeated requests to enter into an intimate relationship. In 1993,
after Richardson confirmed that a relationship would not affect
Green’s job, Green finally relented and entered into a consensual
relationship with her boss and close friend.
Green led a difficult life. She had experienced periods of
depression and attempted suicide, was attacked and raped in her
home, and suffered from meningitis, all during the twenty-year
period that she knew and was close to Richardson. A reasonable
jury could conclude that Richardson, fully aware of Green’s
background, took advantage of their closeness to pursue a more
intimate relationship. A jury could find that when Green ended the
affair, Richardson, knowing how important Green considered her job,
purposely tried to take away Green’s one stabilizing influence,
thereby intentionally inflicting distress. In so doing, Richardson
abused his authority as Green’s boss and close friend. Sexual
harassment of this nature falls within the “most unusual cases”
contemplated by Wilson.
As noted, a reasonable jury could have found that Richardson
was not only Green’s employer, but her friend, social companion,
and for the period of time leading up to the events in question,
her boyfriend. Richardson had, on occasion, prescribed
antidepressants to Green. He consoled her when she was raped,
visiting Green in the emergency room. It is difficult to imagine
that Richardson could not know of Green’s sensitivities. As such,
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under Louisiana law, Richardson’s conduct should not be viewed in
the light of its effect on a person of ordinary sensibilities, but
the effect such actions would have on a person who had suffered
through difficult emotional experiences. A jury could find that
instead of discussing with Green that, upon the termination of
their personal relationship, Richardson found it difficult to
continue a working relationship, Richardson attempted to sabotage
Green’s job. Viewed in this manner, Richardson’s conduct can be
characterized as “outrageous.”
A jury could have concluded that Green experienced severe
distress as the result of Richardson’s conduct. She received
numerous days of administrative leave, underwent therapy with a
psychiatrist, and was unable to continue her employment with
Richardson. Frank Currie, from Tulane’s Personnel Office, stated
that on several occasions, Green appeared distraught. One
psychiatrist found the stress so evident that he recommended to
Green not to return to Tulane if she was still under Richardson’s
supervision.
The evidence is also sufficient for a jury to find that
Richardson knew or should have known that his conduct would inflict
severe emotional distress on Green. Before entering into the
relationship, Green and Richardson had numerous discussions on the
effect this personal relationship would have on their working
relationship. Green refused to begin a personal relationship with
Richardson until he realized how important her job was and
reassured her that terminating the relationship would not
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jeopardize her job. Between these conversations and their twenty-
year friendship, a jury could find that Richardson was aware of the
important role Green’s job played in her emotional stability. He
would also be aware that any interference with her employment,
especially in a harassing manner, would obviously greatly distress
Green.
Thus, I conclude that when the evidence is viewed in the light
most favorable to the nonmovant, Green, material issues of fact
exist precluding summary judgment.
For the foregoing reasons, I respectfully dissent.
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