Cesena v. Gray
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CA08-830
ARMAND CESENA
Opinion Delivered
March 4, 2009
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
[NO. CV 2005-10031]
V.
STEVE GRAY
APPELLEE
HONORABLE ALICE S. GRAY,
JUDGE
AFFIRMED
JOSEPHINE LINKER HART, Judge
Armand Cesena argues on appeal that the Pulaski County Circuit Court erred when
it granted Steve Gray’ s motion for summary judgment. Cesena had filed a lawsuit against
Gray, asserting the torts of outrage and defamation; however, on appeal Cesena only
pursues his outrage claim. We affirm.
Summary judgment should be granted only when it is clear that there are no genuine
issues of material fact to be litigated and the party is entitled to judgment as a matter of law.
Templeton v. United Parcel Service, Inc. , 364 Ark. 90, 216 S. W. 3d 563 (2005). The
burden of sustaining a motion for summary judgment is the responsibility of the moving
party; however, once the moving party has established a prima facie entitlement to summary
judgment, the nonmoving party must meet proof with proof and demonstrate the existence
of a material issue of fact. Id. On appellate review, we determine if summary judgment was
appropriate based on whether the evidence presented by the moving party in support of its
motion leaves a material fact unanswered. Id. We view the evidence in the light most
favorable to the nonmoving party, resolving all doubts and inferences against the moving
party. Id.
In order to establish the tort of outrage, the plaintiff must prove the following four
elements: (1) the defendant intended to inflict emotional distress or knew or should have
known that emotional distress was the likely result of his conduct; (2) the conduct was
extreme and outrageous, was beyond all possible bounds of decency, and was utterly
intolerable in a civilized community; (3) the defendant’ s actions were the cause of the
plaintiff’ s distress; (4) the emotional distress sustained by the plaintiff was so severe that
no reasonable person could be expected to endure it.
Id. Arkansas appellate courts have
taken a strict view in recognizing an outrage claim, particularly where it is alleged in
employment relationships. See id. ; Smith v. American Greetings Corp. , 304 Ark. 596, 804
S. W. 2d 683 (1991); Sterling v. Upjohn Healthcare Servs. , Inc. , 299 Ark. 278, 772 S. W. 2d
329 (1989). The type of conduct that meets the standard for outrage must be determined
on a case-by-case basis. Crockett v. Essex, 341 Ark. 558, 19 S. W. 3d 585 (2000). Precedent
requires that we give the tort of outrage a “ narrow view” and requires “ clear-cut proof”
to establish the elements in outrage cases. Id.
We are obligated to first decide whether the conduct alleged in Cesena’ s complaint,
taken as true, states a claim for the tort of outrage, for if Cesena has not stated sufficient
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facts to support a claim for outrage, any unresolved factual issues are simply irrelevant.
Hollomon v. Keadle, 326 Ark. 168, 931 S. W. 2d 413 (1996). Cesena is employed as a
systems analyst at Arkansas Blue Cross and Blue Shield (ABCBS). Gray was the supervisor
of the department to which Cesena was assigned.
Gray also supervised Cesena’ s
immediate supervisor, Derrick Flowers. The department was responsible for processing
payments of Medicare claims for out-of-state entities who contracted with ABCBS for this
service. The conduct alleged in Cesena’ s complaint took place entirely during working
hours and was allegedly perpetrated by Gray and Flowers, who were ABCBS employees.
In his complaint, Cesena alleged four categories of conduct that he asserted were
actionable. First, he stated that “ for over a year Derrick FlowerS repeatedly and angrily
threatened Plaintiff that he was going to take Plaintiff out into the parking lot and kick his
ass. ” Second, Cesena alleged, “ On occasion when Plaintiff requested assistance from
Defendant Gray to stop Derrick Flowers from subjecting him to threats of being taken out
into the parking lot by Derrick Flowers and having his ‘ ass kicked, ’ Defendant Gray
shoved his finger into Plaintiff’ s face and screamed, ‘ Do you want to see how tough I can
be?’ ” He believed that this “ threat” was significant because he was aware that Gray had
previously sustained a broken leg in a fight with an ABCBS employee. Cesena claimed that
Gray “ informed Plaintiff that Derrick Flowers was an extension of Defendant Gray’ s
authority, ” and that “ it was reasonably assumed by Plaintiff that the threats of Derrick
Flowers were the threats of Defendant Gray, which caused him to have fear of imminent
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harm of being beat up by one or the other or both. ” Third, Cesena alleged that on February
24, 2004, Gray terminated him for dishonesty. 1 Fourth, Cesena asserted that Gray defamed
him by declaring him dishonest, incompetent, and “ crazy, ” which he contended not only
constituted defamation, but conduct that qualified as outrage as well. We hold that the
conduct that Cesena alleges cannot support a claim for the tort of outrage because the
conduct did not rise to the level of being extreme and outrageous, beyond all possible
bounds of decency, and utterly intolerable in a civilized community.
Even more egregious conduct in an employment setting was found by our supreme
court to not constitute the tort of outrage. In Smith v. American Greetings Corp. , supra,
there was not only an angry confrontation by the plaintiff’ s direct supervisor, but actual
physical violence. Moreover, the employer in that case actually discharged the plaintiff.
Nonetheless, the supreme court held that the plaintiff had failed to establish a claim for the
tort of outrage and upheld a dismissal of the complaint. See also, Hollomon, supra (conduct
involved death threats including making the employee aware that the perpetrator was armed
with a handgun and suggestions that the employer had others murdered).
Likewise, Cesena’ s contention that he was subjected to defamatory and demeaning
comments failed to support the tort of outrage in more egregious cases. In Sterling v.
Upjohn Healthcare Services, Inc. , supra, the supreme court upheld the trial court’ s grant
1
Cesena was not actually fired. He contends that higher-level management at ABCBS
intervened.
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of summary judgment to the defendant, despite the plaintiff’ s employer’ s unfounded
assertions that the plaintiff was drunk at work, the employer' s attempts to undermine the
plaintiff, and the employer’ s eventual violent rhetoric regarding the plaintiff. Similarly,
in Faulkner v. Arkansas Children’ s Hospital, 347 Ark. 941, 69 S. W. 3d 393 (2002), the
plaintiff presented facts indicating strained working relationships, a deliberate attempt to
undermine her authority, false accusations of shoddy work, false accusations and rumors of
mental illness, and, eventually, her being placed on administrative leave. There, the
supreme court affirmed the dismissal of the complaint, noting that the plaintiff had not
alleged any conduct that was beyond all possible bounds of human decency and utterly
intolerable in a civilized society so as to rise to the level of outrage. Accordingly, while
Cesena repeatedly describes the conduct he endured as “ outrageous, ” merely describing
conduct as outrageous does not make it so. Fuqua v. Flowers, 341 Ark. 901, 20 S. W. 3d 388
(2000).
We are aware of only two cases involving the tort of outrage that have been upheld
on appeal that are even remotely analogous to the case at bar; however, those cases are
readily distinguishable. In Tandy Corp. v. Bone, 283 Ark. 399, 678 S. W. 2d 312 (1984),
the supreme court sustained a jury verdict in a case where the employer thought that Bone,
the manager of one of its stores in Little Rock, might be stealing either money or
merchandise. Bone’ s supervisor and two security officers came to the store to conduct an
investigation of the losses, and Bone was questioned at thirty-minute intervals throughout
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the day. According to Bone, the security men cursed him, threatened him, subjected him
to a polygraph exam, and refused to allow him to take his prescribed medication, despite
knowing that he had been dependent upon that medication for three years. In holding that
the circuit court did not err in sending Bone’ s claim of outrage to the jury, the supreme
court emphasized that the basis for its holding was that it was for the jury to decide whether
under the circumstances it was outrageous conduct for the employer to deny Bone his
medication, knowing that Bone depended on it.
The threats that Bone received were
believed to not be sufficient to sustain his outrage claim. Here, of course, the threats
allegedly made by Gray and his purported confederate, Derrick Flowers, were the essence
of Cesena’ s case.
The second case is Hess v. Treece, 286 Ark. 434, 693 S. W. 2d 792 (1985), where a
divided court affirmed the award of compensatory and punitive damages where the
defendant, Hess, motivated by personal animosity, carried on a two-year campaign to cause
plaintiff Treece’ s discharge from the Little Rock Police Force. During those two years,
Hess personally and through paid informants kept Officer Treece under surveillance and
repeatedly filed false reports with plaintiff’ s supervisors in the Little Rock Police
Department, alleging official misconduct as often as twice a week.
While the alleged duration and repetitive nature of the conduct in Hess is analogous
to the case at bar, we believe that the nature of the conduct makes Hess inapposite. First,
Hess is not a case where the plaintiff and defendant had a supervisor/subordinate
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relationship, but rather one where the plaintiff’ s employment was affected by the conduct.
Second, the false complaints made by Hess were calculated to spawn official police
investigations by Treece’ s superiors. Hess also essentially stalked Treece, expanding the
scope of the complained of conduct geographically and temporally to anywhere and anytime.
Conversely, the conduct that Cesena complains of in the instant case was not intended to
result in official police investigations and did not take place outside of the place of
employment or outside of work hours.
Because we hold that the conduct complained of is not sufficiently extreme and
outrageous as to support Cesena’ s outrage claim, we need not consider the disputed facts
that existed after he answered Gray’ s motion for summary judgment.
Affirmed.
G LOVER and H ENRY, JJ. , agree.
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