Fromson v. State

Fromson v. State (2003-262); 176 Vt. 395; 848 A.2d 344

2004 VT 29

[Filed 02-Apr-2004]


       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.


                                 2004 VT 29

                                No. 2003-262


  D. Michael Fromson	                         Supreme Court

                                                 On Appeal from
       v.	                                 Caledonia Superior Court


  State of Vermont, Department of 	         October Term, 2003
  Corrections and Celeste M. Girrell, 
  Superintendent

  Mark J. Keller, J.

  Sten M. Lium of Law Office of Jay Abramson, St. Johnsbury, for
    Plaintiff-Appellant.

  William H. Sorrell, Attorney General, and David K. Herlihy, Special
    Assistant Attorney General, Montpelier, for Defendants-Appellees.


  PRESENT:  Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.


       ¶  1.  DOOLEY, J.   Plaintiff, D. Michael Fromson, appeals two
  rulings by the Caledonia Superior Court in favor of defendants, Vermont
  Department of Corrections and Celeste M. Girrell, Superintendent of the
  Northeast Regional Correctional Center: (1) grant of defendants' motion for
  summary judgment dismissing plaintiff's claim for intentional infliction of
  emotional distress (IIED); and (2) denial of plaintiff's request to amend
  his complaint to add a prima facie tort claim because Vermont has not
  recognized such a tort. We affirm.  
   
       ¶  2.  Plaintiff claims that from July 21, 1999 until mid-October
  1999, defendants "engaged in a campaign to harass, intimidate, and oppress
  the plaintiff, for the purpose of breaking his spirit and rendering him
  unable or unfit or unwilling to continue in his employment."  Plaintiff
  alleges that defendants engaged in this course of conduct in retaliation
  for plaintiff's reporting of several junior officers' complaints that two
  supervisors often reported to work under the influence of alcohol.  In
  support of his allegation, plaintiff claims defendants: (1) filed work rule
  violations against him in bad faith; (2) investigated claims and
  allegations against him in bad faith; (3) discriminatorily altered his work
  schedule; (4) imposed unfair disciplinary action and other punishment; and
  (5) made remarks and insinuations calculated to threaten, harass,
  intimidate, and oppress him.  Because this is an appeal from summary
  judgment we present the facts most favorably to plaintiff, giving him the
  benefit of all reasonable inferences.  Denton v. Chittenden Bank, 163 Vt.
  62, 63, 655 A.2d 703, 705 (1994).  The facts come primarily from
  plaintiff's affidavit in opposition to summary judgment, supplemented by
  his deposition and his answers to interrogatories.

       ¶  3.  Plaintiff was employed by the State as a senior corrections
  officer in the Northeast Regional Correctional Center in Saint Johnsbury
  from November 1, 1993 until October 18, 1999.  Up until July, 1999,
  plaintiff had never been subject to employee disciplinary actions.  During
  that period, he received excellent evaluations, was frequently consulted by
  defendant superintendent, and was in line to become a supervisor.  In the
  fall of 1998, plaintiff was selected as a facility steward for the Vermont
  State Employees Association (VSEA).
   
       ¶  4.     In mid-July 1999, several junior officers approached
  plaintiff as union steward and informed him that two supervisors were
  coming to work under the influence of alcohol.  Plaintiff reported these
  concerns to defendant superintendent, who stated that she was pleased that
  the situation had been brought to her attention.  

       ¶  5.  A few days after plaintiff made this report, he was summoned to
  meet with the superintendent and told that he should bring a union
  representative to the meeting.  At the meeting, plaintiff was informed that
  the superintendent was investigating a complaint brought against him by a
  supervisor - not one of the supervisors plaintiff reported - for using
  demeaning language about a supervisor.  Plaintiff became concerned that the
  alleged incident was being blown out of proportion and not being handled by
  the normal procedure of informing plaintiff's supervisor.  Around this same
  time, plaintiff noticed that the other officers and supervisors were
  treating him less congenially than they had before he reported the
  supervisors.  

       ¶  6.  Also around this time, plaintiff experienced several changes in
  his working conditions.  First, plaintiff was no longer given breaks during
  his shift as he had been prior to July 1999.  Second, during his shift,
  several of the more experienced officers were moved to more menial jobs,
  and replaced with less experienced officers, creating more demands on
  plaintiff.  Third, plaintiff's name was removed from the acting
  supervisor's list.  Finally, when plaintiff signed up for overtime shifts
  he would be reassigned to shifts he had not specified. 

       ¶  7.  Around the end of July or the beginning of August, plaintiff's
  supervisor told him that he feared what other supervisors might do to him
  because he was not hostile to plaintiff.  He told him that supervisors were
  meeting about plaintiff and telling trusted workers and inmates to watch
  him. 
   
       ¶  8.  On August 25, 1999, the superintendent gave plaintiff a
  reprimand letter stating he had "demeaned the reputation of supervisors
  using profane and inflammatory language."  The letter ordered plaintiff to
  refrain from using profanity.  Plaintiff found this restriction to be
  unreasonable because all employees in the correctional center used
  profanity on a regular basis.  The superintendent also told plaintiff that
  he had to respond to another complaint about his handling of a disciplinary
  appeal.  The complaint had been made by another corrections officer to the
  administrative supervisor.  Plaintiff met with the administrative
  supervisor and explained his actions with regard to that complaint and two
  others from the officer.

       ¶  9.  A few days after this meeting, plaintiff "blew up" at his
  supervisor.  Plaintiff then met with the superintendent to discuss this
  incident.  Following this meeting, plaintiff was informed that he was going
  to be investigated to determine if at any time during his six years as a
  senior corrections officer his actions "reflected discredit upon the
  Department."  Plaintiff was unaware of any other department employee ever
  being subject to this type of investigation.  

       ¶  10.  In early fall 1999, plaintiff appealed the reprimand letter he
  received earlier that year. On October 13, 1999, plaintiff attended a
  grievance hearing before the department personnel officer.  During the
  hearing, plaintiff was not allowed to see the witness statements or reports
  in the superintendent's file.  At the conclusion of the hearing,
  plaintiff's grievance was denied.   After the hearing, plaintiff was
  emotionally distraught.  He did not return to work and was admitted to the
  VA hospital psychiatry wing.  
   
       ¶  11.  On November 2, 2000 plaintiff filed a complaint against
  defendants for intentional infliction of emotional distress (IIED).  On
  June 5, 2002, plaintiff filed a motion to amend his complaint to supplement
  the IIED allegations and add a prima facie tort claim.  The trial judge
  allowed the amendments to the IIED allegations, but denied the motion to
  add a prima facie tort count because this cause of action has not been
  recognized in Vermont.  On October 18, 2002 defendants filed a motion for
  summary judgment arguing, as they do here, that plaintiff's complaint did
  not allege actions sufficiently outrageous to support an IIED claim. 
  Defendants further argued that even if the trial court found the alleged
  conduct sufficiently outrageous, sovereign immunity barred plaintiff's
  claim against the State and the superintendent in her official capacity and
  the doctrine of qualified immunity barred plaintiff's claim against the
  superintendent in her individual capacity. 

       ¶  12.  In March 2003, the Caledonia Superior Court granted
  defendants' summary judgment motion.  Plaintiff then, pursuant to V.R.C.P.
  59(e), asked the trial court to amend its opinion and consider plaintiff's
  renewed motion to amend his complaint.  The trial court granted plaintiff's
  motion in part, making minor edits to the order, and denied plaintiff's
  renewed motion to amend the complaint.  This appeal followed.

       ¶  13.  In reviewing a grant of summary judgment we apply the same
  standard as the trial court.  Ross v. Times Mirror, Inc., 164 Vt. 13,
  17-18, 665 A.2d 580, 582 (1995).   For a grant of summary judgment to be
  upheld, the moving party must show "that no genuine issue of material fact
  exists and that the party is entitled to judgment as a matter of law." 
  Denton, 163 Vt. at 66, 655 A.2d  at 706.  If the nonmoving party alleges
  specific facts that raise a triable issues and establish a prima facie
  case, the trial court's finding will be reversed; however, if the nonmoving
  party fails to establish an essential element of his or her claim, the
  ruling will be affirmed.  Dulude v. Fletcher Allen Health Care, Inc., 174
  Vt. 74, 79, 807 A.2d 390, 395 (2002).
   
       ¶  14.  To sustain a claim for IIED plaintiff must show defendants
  engaged in "outrageous conduct, done intentionally or with reckless
  disregard of the probability of causing emotional distress, resulting in
  the suffering of extreme emotional distress, actually or proximately caused
  by the outrageous conduct."  Sheltra v. Smith, 136 Vt. 472, 476, 392 A.2d 431, 433 (1978).  Plaintiff's burden on this claim is a "heavy one" as he
  must show defendants' conduct was "so outrageous in character and so
  extreme in degree as to go beyond all possible bounds of decent and
  tolerable conduct in a civilized community and be regarded as atrocious and
  utterly intolerable."  Dulude, 174 Vt. at 83, 807 A.2d  at 398.  The court
  makes the initial determination of whether a jury could reasonably find
  that the alleged conduct satisfies all the elements of an IIED claim. 
  Jobin v. McQuillen, 158 Vt. 322, 327, 609 A.2d 990, 993 (1992) (citing
  Restatement (Second) of Torts § 46, comment h (1965)).  

       ¶  15.  The trial court ruled that the evidence plaintiff presented
  did not show conduct "so outrageous in character and so extreme in degree
  to go beyond all possible bounds of decency and tolerable conduct in a
  civilized community."  In reviewing this determination, we note that our
  IIED cases have often been brought by employees against employers for
  actions occurring in the employment relationship in the workplace.  Many
  have involved events somewhat similar and comparable to those alleged by
  plaintiff here.  For example, in Denton v. Chittenden Bank, plaintiff
  alleged that his supervisor engaged in a pattern of harassing and demeaning
  conduct that eventually caused plaintiff to have a nervous breakdown.  We
  held:

         We have never extended liability to "mere insults,
    indignities, threats, annoyances, petty oppressions, or other
    trivialities."  See Restatement [(Second) of Torts] § 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.

  163 Vt. at 66-67, 655 A.2d  at 706.  In Baldwin v. Upper Valley Services,
  Inc., 162 Vt. 51, 644 A.2d 316 (1994), plaintiff alleged that he was fired
  for misconduct under suspicious circumstances after he had filed wage and
  hour and sexual harassment complaints.  We found that he had not made out a
  claim for IIED, emphasizing that defendants' motives could not establish
  the tort:

    Plaintiff argues that the court, in ruling on the summary judgment
    motion, inappropriately assessed the perceptions and motivations
    of UVS. In effect, plaintiff suggests a purely subjective test for
    outrageousness, based not on what defendant's agents or employees
    did or said, but on what plaintiff personally believed motivated
    their conduct. Established law, however, posits an objective test
    for outrageousness: a plaintiff must demonstrate legal harm
    resulting from inflicted distress so severe that no reasonable
    person could be expected to endure it.  Plaintiff has not alleged
    particular susceptibility to stress.

  Id. at 57, 644 A.2d  at 319 (citations omitted).
   
       ¶  16.  In Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635
  (1994), plaintiff firefighter filed a complaint under the Vermont Fair
  Employment Practices Act that he had been passed over for a promotion
  because of handicap discrimination.  Thereafter, he was assigned menial
  tasks at the firehouse and received disciplinary memoranda for the first
  time in his long work career.  He brought an action for IIED, among other
  claims.  We held that the allegations fell "far short" of those necessary
  to show IIED: the menial tasks were routine duties, albeit normally
  assigned to more junior firefighters, and the disciplinary actions could
  not be characterized as outrageous conduct surpassing the bounds of
  decency.   Id. at 94-95, 656 A.2d  at 643; see also Farnum v. Brattleboro
  Retreat, Inc., 164 Vt. 488, 498-99, 671 A.2d 1249, 1256-57 (1995) (summary
  firing of long-serving employees without giving grounds does not constitute
  IIED); Murray v. St. Michael's College, 164 Vt. 205, 212, 667 A.2d 294, 300
  (1995) (no prima facie IIED claim where plaintiff claimed defendants
  retaliated against him for filing a workers' compensation claim by
  "badgering him to come back to work [although he was injured], changing his
  employment duties and responsibilities, requiring him to work night shifts
  in breach of a previous agreement, changing his work hours, giving him
  unfairly low job evaluations, challenging his right to receive workers'
  compensation benefits," and finally demoting him for misconduct); Dulude,
  174 Vt. at 83, 807 A.2d  at 398 (plaintiff's termination and disciplinary
  action taken against her not sufficiently severe to establish IIED claim).

       ¶  17.  As in Denton, plaintiff here is trying to combine a series of
  events without showing a significant outrageous act.  As in Gallipo,
  Baldwin and Murray, plaintiff relies upon his perception of defendants'
  motives underlying the disciplinary actions.  As in Gallipo, plaintiff
  relies on changes in workplace assignments and practices that disadvantaged
  him.  For the reasons given in those decisions, we do not believe that
  plaintiff has shown outrageous conduct that meets the threshold standard
  for an IIED claim.
   
       ¶  18.  In reaching our conclusion, we reject plaintiff's argument
  that we can uphold his claim based on his assertion that the actions taken
  were improperly motivated by retaliation for plaintiff's complaint against
  the supervisors.  The plaintiffs in the cases cited above alleged improper
  motives, and yet, as noted, in each instance we declined to find outrageous
  conduct based solely on the alleged illegal motives underlying the conduct. 
  See Restatement (Second) of Torts § 46 cmt. d (1965) (conduct is not
  outrageous merely because defendant acted with tortious or criminal
  intent); Aquavia v. Goggin, 208 F. Supp. 2d 225, 237 (D. Conn. 2002)
  (motives underlying employment decisions are generally not relevant in
  determining whether acts are sufficiently outrageous to meet elements of
  intentional infliction of emotional distress; rather, acts themselves must
  be outrageous).  But cf.  Dale v. City of Chicago Heights, 672 F. Supp. 330, 333 (N.D. Ill. 1987) (plaintiffs survived motion to dismiss on IIED
  claim alleging that defendants engaged in racially motivated course of
  conduct that included threats, harassment, abuse of power, and termination
  of plaintiffs' business). 

       ¶  19.  This last point brings us directly to plaintiff's second
  argument on appeal - that plaintiff can establish liability based on
  improper motive using the alternative cause of action of prima facie tort. 
  As described above, plaintiff attempted to amend his complaint to allege
  this liability theory.  The proposed amendment alleged no new facts, but
  claimed generally that defendants' actions were intentional and malicious,
  were engaged in to injure plaintiff, were generally culpable, and were not
  justifiable.  The  trial court denied plaintiff's motion to amend because
  we have not previously recognized a cause of action for prima facie tort. 

       ¶  20.  Plaintiff's theory is based upon § 870 of the Restatement
  (Second) of Torts, which provides :

         One who intentionally causes injury to another is subject to
    liability to the other for that injury, if his conduct is
    generally culpable and not justifiable under the circumstances. 
    This liability may be imposed although the actor's conduct does
    not come within a traditional category of tort liability.

  The cause of action described in § 870 is commonly called "prima facie
  tort."  Although some states have relied upon the general principle of §
  870, only a handful have adopted prima facie tort as an independent cause
  of action.  See Stock v. Grantham, 964 P.2d 125, 136 (N.M. Ct. App. 1998)
  (prima facie tort recognized in a few jurisdictions). (FN1)  As the
  superior court observed, we have never decided whether we would recognize
  liability based on § 870.

       ¶  21.  We need not decide whether we would recognize prima facie tort
  because, even if did so, plaintiff could not prevail in this case. 
  Although plaintiff does not explain in detail exactly how he has shown each
  of the elements of prima facie tort, he has explained that this theory "is
  based on the exact same facts" as his claim of IIED.  We interpret his
  argument to be that he can make up for the deficiencies in his ability to
  prove the elements of IIED by relying on defendants' alleged improper
  motives under this alternative theory. 
   
       ¶  22.  The courts in each of the main jurisdictions that have
  recognized liability based on prima facie tort - Missouri, New Mexico and
  New York - have struggled with the situation plaintiff presents here, that
  is, an attempt to use prima facie tort to make up for the inability to
  prove an element of a specific intentional tort.  In each, the courts have
  indicated that prima facie tort may not be used in this way.  In New York,
  the state with the greatest number of reported cases, the Court of Appeals
  originally held that a plaintiff could plead an intentional tort and prima
  facie tort as alternatives because "there may be instances where the
  traditional tort cause of action will fail and plaintiff should be
  permitted to assert this alternative claim."  Bd. of Educ. v. Farmingdale
  Classroom Teachers Ass'n, 343 N.E.2d 278, 285 (N.Y. 1975).  Later cases
  have made clear, however, that prima facie tort may not be used to evade
  the "essential elements of traditional tort."  Belsky v. Lowenthal, 405 N.Y.S.2d 62, 65 (App. Div. 1978).  The New York law is best summarized in
  Nat'l Nutritional Foods Ass'n v. Whelan, 492 F. Supp. 374 (S.D.N.Y. 1980),
  a case in which plaintiff relied upon prima facie tort because it could not
  show all the elements of defamation:


         Strictly stated, the theory suggests a rule both reasonable
    and manageable: a prima facie tort may not rest upon conduct that
    is well within the area of activity meant to be regulated by a
    traditional tort, and which is insufficient to establish that
    tort.
                                 . . .

    The defamation counts are not only insufficient, they are
    insufficient for reasons that reflect policy determinations
    implicit in New York libel law to protect the forms of expression
    adopted by defendants.  It would make no sense, for example, to
    deem certain expressions immune from suit as libel, and then find
    them sufficient in the identical factual context to constitute a
    prima facie tort; or to make truth an absolute defense in libel
    and defamation suits, but then to allow a prima facie tort claim
    based on the same facts merely because defendant was motivated by
    ill will and caused economic injury; or to prohibit actions based
    on class defamation, and then to allow such actions under a
    different theory. ...  In short, the underlying reasons that
    justify dismissal of plaintiffs' defamation claims apply with
    equal force to their claim of prima facie tort.

  Id. at 383-84.
   
       ¶  23.  The decisions in Missouri and New Mexico are similar.  See
  Bandag of Springfield, Inc. v. Bandag, Inc., 662 S.W.2d 546, 553 (Mo. Ct.
  App. 1983) ("If there are categories of legally protectible interests which
  are now redressed, but inadequately so, the much preferable course is to
  revise traditional doctrine so as to protect the interest which has gone
  unprotected"); Martinez v. N. Rio Arriba Elec. Coop, 51 P.3d 1164, 1170
  (N.M. Ct. App. 2002) (referring to IIED, can't use prima facie tort to
  evade stringent requirements of other torts); Stock, 964 P.2d  at 136-37
  (same).  The court in Stock added that: "we would not recognize a claim of
  intentional infliction of emotional distress in the absence of the
  outrageous conduct required for that tort, even if the plaintiff relabeled
  the cause of action as 'prima facie tort.'" Id. at 137.  

       ¶  24.  We also note that many courts have not adopted prima facie
  tort because the application of the doctrine arises in cases where the
  plaintiff is attempting to evade the requirements of a specific intentional
  tort.  See, e.g., Cabanas v. Gloodt Associates, 942 F. Supp. 1295, 1311
  (E.D. Cal. 1996) (California courts would not recognize prima facie tort in
  a case where the conduct in issue is "adequately governed by existing
  torts"); Rutledge v. Phoenix Newspapers, Inc., 715 P.2d 1243, 1246 (Ariz.
  Ct. App. 1986), overruled on other grounds by Godbehere v. Phoenix
  Newspapers, Inc., 783 P.2d 781, 784 (Ariz. 1989) (plaintiff's interests
  adequately protected by torts of IIED and invasion of privacy so that prima
  facie tort would not apply even if court adopted it); Taylor v. Metzger,
  706 A.2d 685, 701 (N.J. 1998) (Court would not adopt prima facie tort in
  case where "essential elements of an established and relevant cause of
  action are missing."). 
   
       ¶  25.  We understand plaintiff to be arguing that we should recognize
  prima facie tort as a cause of action in exactly the same circumstances
  present in Stock.  That is, plaintiff argues that we should make tortious
  conduct not outrageous under our IIED law as long as we conclude that
  defendant had an improper motive for the conduct, here to retaliate for
  plaintiff's complaint that certain supervisors were appearing for work
  under the influence of alcohol.  The result would be to eviscerate the
  carefully constructed requirements of IIED.  Moreover, any claim of
  emotional distress damages would end up going to a jury trial because
  motive can only be inferred from surrounding circumstances.  Even if we
  were to make such a change in our law, we would do it by redefining the
  elements of IIED and not by adopting a new tort theory that would
  accomplish the same result.  On this record, we decline to adopt prima
  facie tort.

       ¶  26.  The superior court correctly concluded that we would not
  recognize prima facie tort on this record.  Even if it had allowed the
  amendment of the complaint to allow a count of prima facie tort, the count
  would have to be dismissed.  Since we affirm the trial court's summary
  judgment we do not reach the other grounds for affirmance raised by
  defendants.

       Affirmed. 


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes



FN1.  Plaintiff relies upon 10 S. Speiser, C. Krause & A. Gans, The American
  Law of Torts §35:8 (1993) for the proposition that at least 21 states have
  recognized prima facie tort.  An examination of the cases cited in the
  treatise shows, however, that most have not adopted this theory of
  liability or have adopted it in circumstances wholly different from those
  before us.