Cesena v Gray
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Cite as 2009 Ark. App. 143
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
Cite as 2009 Ark. App. 143
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.
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Cite as 2009 Ark. App. 143
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 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
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Cite as 2009 Ark. App. 143
“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 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).
1
Cesena was not actually fired. He contends that higher-level management at ABCBS
intervened.
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Cite as 2009 Ark. App. 143
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 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
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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 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
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Cite as 2009 Ark. App. 143
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 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.
Paul D. Groce, for appellant.
Baker, Donelson, Bearman, Caldwell and Berkowitz, P.C. by: William P.
Doughterty, for appellee.
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