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GREEN v. ABC

November 8, 1986

Dorothy Green, Plaintiff,
v.
American Broadcasting Companies, Inc., et al., Defendants



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE.

 INTRODUCTION

 Plaintiff, a black female, was employed by defendant American Broadcasting Companies, Inc. ("ABC") as a Technical Manager at A8C's Washington News Bureau from November 1981 until her employment was terminated on May 16, 1986. Defendants' Statement of Material Facts as to which There is No Genuine Issue 2. Plaintiff alleges that she was repeatedly harassed and discriminated against by defendants. Specifically, plaintiff alleges that defendants encouraged insubordination by plaintiff's supervisees, assigned plaintiff an "oppressive work schedule," were routinely rude, cold, and disdainful to plaintiff, issued a written performance evaluation that falsely attacked plaintiff's job performance, subjected plaintiff to job-related restrictions that non-female, non-minority co-workers did not experience, and created a "hostile and intimidating work environment poisoned with discrimination." Complaint at paras. 12-16. These acts, plaintiff claims, amount to employment discrimination in violation of the District of Columbia Human Rights Act of 1977, D.C. Code § 1-2512.

 Plaintiff also maintains that she was fired in retaliation for filing a discrimination claim against defendants in the Superior Court of the District of Columbia. She further maintains that defendants' conduct intentionally caused her severe and substantial emotional distress.

 Defendants present a different picture. They claim, first of all, that plaintiff's employment was terminated for cause. Answer and Counterclaim of Defendant ABC para. 9. Second, they maintain that plaintiff's medical history shows that any emotional distress, or physical manifestation of that distress, cannot be tied to defendants' actions.

 Several motions are pending before this Court. Defendants have moved for summary judgment on plaintiff's claim of intentional infliction of emotional distress and have also moved to strike plaintiff's jury demand and prayer for punitive damages. Plaintiff has moved to amend her complaint. All motions are vigorously opposed. The Court has thoroughly considered each motion and opposition thereto, the entire record in this case, and the underlying law. In consequence, the Court grants defendants' motion for partial summary judgment, denies defendants' motion to strike plaintiff's jury demand, denies defendant's motion to strike the prayer for punitive damages, and grants plaintiff's motion to amend her complaint.

 DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

 Defendants have moved for summary judgment on Count III of plaintiff's complaint, an allegation of intentional infliction of emotional distress. The legal standard governing summary judgment motions is clear. Summary judgment is proper only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). While the movant must demonstrate that material facts are undisputed, he need not negate all elements of his opponent's claim. He may instead lead the Court to the parts of the record that show an absence of evidence to support his opponent's case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Greenberg v. Food and Drug Administration, 803 F.2d 1213, slip op. at 5, 256 U.S. App. D.C. 135 (D.C. Cir. 1986). Once that is done, his opponent must point to evidence to support the elements of the claim as to which he has the burden of proof. Celotex, 106 S. Ct. at 2554. If the non-movant fails to do so, the court must grant summary judgment. Id.

 The contours of the tort of intentional infliction of emotional distress in the District of Columbia are no less clear. It consists of "'extreme and outrageous'" conduct, which "intentionally or recklessly" causes the plaintiff "'severe emotional distress.'" Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. App.), cert. denied, 459 U.S. 912, 74 L. Ed. 2d 176, 103 S. Ct. 221 (1982) (quoting Restatement (Second) of Torts § 46 (1965)); see also, Howard University v. Best, 484 A.2d 958, 985 (D.C. App. 1984). Plaintiff must prove all three elements to prevail on her claim. Id.

 Defendants raise two arguments in their summary judgment motion. First, they claim that the conduct about which plaintiff complains is insufficient, as a matter of law, to show intentional infliction of emotional distress. Nowhere do they point to evidence or a lack of evidence in the record, as Catrett requires, to support their claim of summary judgment on this ground. Indeed, their assertion amounts to a motion to dismiss for failure to state a claim, not a summary judgment motion. See, e.g., Defendants' Reply to Plaintiff's Oppositions 8 ("the conduct of which plaintiff complains . . . is insufficient to state a claim for intentional infliction . . ."). Even if the Court were to regard it as such, defendants' argument would fail.

 Conduct that gives rise to liability for intentional infliction of emotional distress 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." Sere, 443 A.2d at 37. Actions that violate public policy, including discrimination, can constitute such extreme and outrageous conduct. Best, 484 A.2d at 986.

 Defendants maintain that District of Columbia law allows an employee to recover for intentional infliction of emotional distress only if he or she has suffered a physical assault in the course of the employment. Memorandum of Points and Authorities in Support of Defendants' Motions 14. This, however, is an overly constricted view of the law. Granted, mere employee-employer conflicts, even those marked by charges of sexual harassment, are not necessarily characterized by the degree of serious misconduct that gives rise to this tort. Id. at 986-87. But a pattern of harassment that violates public policy may, if serious enough to constitute "extreme and outrageous conduct," rise to intentional infliction of emotional distress by an employer. Id. at 986. *fn1" This Court could not say, on a motion to dismiss, that plaintiff could fail to prove that the harassment and discrimination of which she complains was sufficiently extreme.

 Defendants, however, also argue that they are entitled to summary judgment because the record shows that any emotional distress plaintiff may have experienced was not the result of defendants' acts. Under District of Columbia law, plaintiff must be able to show that defendants' actions "proximately caused [her] emotional upset 'of so acute a nature that harmful physical consequences might not be likely to result.'" Sere v. Group Hospitalization, Inc., 443 A.2d at 37 (quoting Clark v. Associated Retail Credit Men, 105 F.2d 62, 65, 70 App. D.C. 183 (1939)). Defendants are entitled to summary judgment on this tort claim because the evidence shows that they did not cause plaintiff's emotional distress.

 The record reveals that, on February 9, 1985, plaintiff was injured in a serious automobile accident. Fishman Affidavit, Medical Records Attachment ("Medical Records") at 55007. Afterwards she experienced, in addition to physical and memory disabilities, anxiety and depression. Id. at 55008. Both plaintiff's psychiatrist and neurologist found that those emotional problems were "caused by the accident." Id. at 55007-08.

 One year after the accident, plaintiff, who was suffering from headaches and complaining of depression, revisited Dr. Richard Restak, a neurologist who treated her for post-traumatic syndrome after the car crash. Id. at 55007. While Dr. Restak concluded that the relationship of these new complaints to the car accident was "questionable," he did not suggest what factors may have caused plaintiff's recurring ailments.

 Even if plaintiff's emotional difficulties could be tied to defendants, she could not recover damages unless they caused her some physical harm. Garber v. United States, 578 F.2d 414, 188 U.S. App. D.C. 172 (D.C. Cir. 1978). Nothing in the record connects plaintiff's physical ailments with acts of defendants. As such, her emotional distress claim is untenable.

 Moreover, the record does not even connect plaintiff's emotional ailments with defendants' acts. A letter from Dr. Richard Greenberg, plaintiff's psychiatrist, to her supervisor suggests that plaintiff found her work stressful. Id. at 6018. To the extent that plaintiff's claim results from a stressful work situation created by defendants' alleged acts of discrimination, it is subsumed within her discrimination claim. Stewart v. Thomas, 538 F. Supp. 891, 896 (D. D.C. 1982). To the extent that stress is merely a corollary of plaintiff's job responsibilities, it hardly meets the rigorous standards for an intentional emotional distress action in the District of Columbia, where the complained-of acts must have exceeded "all possible bounds of decency and [could be] regarded as ...


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