Denton v. Chittenden Bank

Annotate this Case

DENTON_V_CHITTENDEN_BANK.93-247; 163 Vt 62; 655 A.2d 703

[Filed: 09-Dec-1994]

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 93-247

Bernard A. Denton, Sandra Supreme Court
Denton, and their minor
children
On Appeal from
v. Chittenden Superior Court

Chittenden Bank January Term, 1994
and Christopher Bishop

Matthew I. Katz, J.

John J. Collins and Michael J. Harris of Sutherland & Collins, Inc.,
Burlington, for plaintiffs- appellants

Heather Briggs and Patricia M. Sabalis of Downs Rachlin & Martin, and Philip
D. Saxer and Julie E. Singleton of Saxer, Anderson, Wolinsky & Sunshine,
Burlington, for defendant-appellee Chittenden Bank

Robert R. McKearin of Dinse, Erdmann & Clapp, and Philip D. Saxer and Julie
E. Singleton of Saxer, Anderson, Wolinsky & Sunshine, Burlington, for
defendant-appellee Bishop

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
Specially Assigned

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 vice-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 of
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,
Denton set 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.

In 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 fiancé 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.

The 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.P. 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, 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 (1977); 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, supra, 46 cmt. d. Because laws proscribing conduct must be
specific 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).

Plaintiff argues, however, that our holding in Crump, 154 Vt. at 296,
576 A.2d at ___, 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-a-vis plaintiff, it may provide grounds for the tort [of intentional
infliction of emotional distress]." Id. 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, 576 A.2d at ___. 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, supra, at 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).

Plaintiffs next argue that Bishop's conduct was extreme and outrageous
because Richard Fletcher had specifically warned Bishop of Denton's
"weaknesses and sensibilities." Otherwise unactionable 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, supra, at 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. Denton stated in deposition that, "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 ___, 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 fiancé
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 to privacy is the right to be let alone." Hodgdon v. Mt.
Mansfield Co., ___ Vt. ___, ___, 624 A.2d 1122, 1129 (1992) (citing
Restatement (Second) of Torts 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 ___, 624 A.2d at 1129 (quoting Restatement, supra,
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, 492, 520 A.2d 586, ___ (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, ___ (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 by 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, ___ (1987), and depends on the
viability of the underlying tort claim, Hay v. Medical Center Hospital, 145
Vt. 533, 535, 496 A.2d 939, ___ (1985), plaintiffs' claims for loss of
consortium necessarily fail.

Affirmed.
FOR THE COURT:

________________________________
Associate Justice

--------------------------------------------------------------------------------
Dissenting

No. 93-247

Bernard A. Denton, Sandra Supreme Court
Denton, and their minor
children
On Appeal from
v. Chittenden Superior Court

Chittenden Bank January Term, 1994
and Christopher Bishop

Matthew I. Katz, J.

John J. Collins and Michael J. Harris of Sutherland & Collins, Inc.,
Burlington, for plaintiffs- appellants

Robert R. McKearin of Dinse, Erdmann & Clapp, and Philip D. Saxer and Julie
E. Singleton of Saxer, Anderson, Wolinsky & Sunshine, Burlington, for
defendant-appellee Bishop

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
Specially Assigned

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 made 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 during 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 fiancée to the Denton home
unannounced and uninvited during a birthday party for Sara. Despite his
fiancée'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 non-functional 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.

The 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-infliction-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, ___ A.2d ___, ___, 63 U.S.L.W. 2144, 2145 (D.C. Aug. 25, 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).

There 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 warrant
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 alleged 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, ___ A.2d at ___, 63 U.S.L.W. at 2144, 2145
(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.

_______________________________________
Associate Justice

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