Sorry boss, I didn’t know you were having sex in the office!!

The West Vir­ginia Supreme Court recent­ly issued an opin­ion deal­ing with one of those stereo­typ­i­cal­ly awk­ward sit­u­a­tions, where an employ­ee alleged­ly stum­bles into a room where the boss is hav­ing sex with a co-work­er. The deci­sion was  Roth v. DeFe­lice­Care, Inc., – W. Va. –, — S.E.2d –, 2010 WL 2346248 (June 8, 2010) (per curi­am). It was a 3–2 deci­sion, in which the 3-vote major­i­ty con­sist­ed of Jus­tices Robin Davis, Mar­garet Work­man, and  Thomas McHugh. Jus­tices Menis Ketchum and Brent Ben­jamin dis­sent­ed, and Jus­tice Ketchum wrote a dis­sent­ing opin­ion.

The Facts–Sex at Work

These are the facts accord­ing to the com­plaint in the law­suit: Tri­cia Roth was a res­pi­ra­to­ry ther­a­pist work­ing at DeFe­lice­Care, Inc. in Ohio Coun­ty, West Vir­ginia, and she was about to go on vaca­tion. She was direct­ed by Leslie DeFe­lice (the male boss/owner) to come to work some­time dur­ing the week­end pre­ced­ing her vaca­tion in June 2006. She was not told a spe­cif­ic time to come to work dur­ing that week­end. When she came to work as ordered, she “observed Defen­dant [Leslie] DeFe­lice and/or Michelle Kel­ly par­tial­ly clothed and in a com­pro­mis­ing posi­tion”. Mr. DeFe­lice instruct­ed Ms. Roth to go into a con­fer­ence room and wait–meanwhile Mr. DeFe­lice and the oth­er employ­ee got all their clothes back on. Mr. DeFe­lice then talked to Ms. Roth and told her to for­get about what she had just seen, and threat­ened Ms. Ross with the loss of her res­pi­ra­to­ry ther­a­py license and the loss of her employ­ment.

Ms. Roth then went on vaca­tion. When she got back from vaca­tion and returned to work, she had a meet­ing with Mr. DeFe­lice that didn’t go well. Ms. Roth told Mr. DeFe­lice that she hadn’t told any­one about his sex­u­al encounter at work. Mr. DeFe­lice pro­ceed­ed to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dis­missed

Ms. Roth then filed suit on legal the­o­ries cen­ter­ing around sex dis­crim­i­na­tion and sex­u­al harass­ment, and–bada bing!–the case prompt­ly got dis­missed.

Ms. Roth’s com­plaint (the doc­u­ment which starts the law­suit and describes the plaintiff’s alle­ga­tions) focused on the sex­u­al inci­dent I have described above, but also made alle­ga­tions about oth­er sex­u­al harassment–I will dis­cuss those details below.

Motion to Dis­miss Under Rule 12(b)(6)

The impor­tant thing to under­stand about the appeal to the WV Supreme Court is that the defen­dants imme­di­ate­ly filed a motion to dis­miss (under Rule 12(b)(6)) based only on the com­plaint filed by Ms. Roth–there was no evi­dence that had been accu­mu­lat­ed through depo­si­tions, affi­davits, and the like. The basis for the motion to dis­miss was that Ms. Roth had “failed to state a claim upon which relief may be grant­ed.” That motion is based sole­ly “on the plead­ings”, and is based on no oth­er evi­dence.

A motion to dis­miss on the plead­ings must assume the truth­ful­ness of the alle­ga­tions in the plaintiff’s com­plaint, and argues rough­ly this: even if every­thing the plain­tiff says is true, she still can’t win, because there is noth­ing about those alle­ga­tions that would allow her any recov­ery in court.

Let’s use this as an exam­ple to illus­trate a motion to dis­miss on the plead­ings (under Rule 12(b)(6)):

  • Sup­pose my boss fires me, and hands me a nota­rized res­o­lu­tion issued by the board of direc­tors of my cor­po­rate employ­er say­ing: “We here­by fire Drew M. Capud­er because his socks don’t match. We hate peo­ple that can’t clothe them­selves with min­i­mal com­pe­tence. We infer from that char­ac­ter­is­tic that such peo­ple are incom­pe­tent employ­ees. Fur­ther­more, we, the board of direc­tors and man­age­ment of Drew’s employ­er, har­bor an intense per­son­al hatred for such peo­ple. We fire Drew with the great­est joy and aban­don.” My boss hands me the board res­o­lu­tion and says “you’re fired, and the com­pa­ny secu­ri­ty will escort you out imme­di­ate­ly”. I say to my boss, “that’s dis­crim­i­na­to­ry”. My boss replies: “Of course it is–we despise peo­ple who can’t dress them­selves prop­er­ly”. My boss, who record­ed the ter­mi­na­tion meet­ing, then hands me a nice­ly pack­aged CD record­ing of the ter­mi­na­tion meet­ing as the com­pa­ny secu­ri­ty guard quick­ly ush­ers me out of the build­ing.
  • I file suit for dis­crim­i­na­tion and wrong­ful dis­charge. I ini­ti­ate the law­suit by fil­ing a doc­u­ment called a “com­plaint” which sets out a brief state­ment of the facts and the legal the­o­ries on which I am rely­ing.
  • My employer’s defense coun­sel looks at my com­plaint, and says to her­self: “I don’t have to answer this sil­ly-assed law­suit. I will file a motion to dis­miss, because there is noth­ing about Drew’s idi­ot­ic alle­ga­tions that our legal sys­tem rec­og­nizes as valid legal claims”. So the defense lawyer files a motion to dis­miss, based only on the alle­ga­tions in my com­plaint, under Rule 12(b)(6) of the West Vir­ginia Rules of Civ­il Pro­ce­dure. This is the same kind of motion that the defen­dants filed against Ms. Roth.
  • The tri­al judge reviews the motion to dis­miss and my response. The tri­al judge then takes about 6 nanosec­onds to decide that the defendant’s motion should be grant­ed, and–bada bing!–my case is dis­missed. This is the same type of deci­sion which the judge made in Ms. Roth’s case (and the cor­rect­ness of that deci­sion was the issue on appeal).
  • The tri­al judge in my case made the cor­rect deci­sion because, assum­ing (for pur­pos­es of the motion to dis­miss) every­thing I said in my com­plaint was true, there is noth­ing about those alle­ga­tions that estab­lish­es any sort of rec­og­nized claim for wrong­ful dis­charge. In oth­er
    words, my com­plaint would not allow me to win in court. It’s as sim­ple as that.
  • Con­trary to some pop­u­lar under­stand­ing, the law does not pro­hib­it all forms of employ­ment dis­crim­i­na­tion. The law only pro­hibits employ­ment dis­crim­i­na­tion in which the employer’s deci­sion is based on pro­tect­ed char­ac­ter­is­tics. Those char­ac­ter­is­tics include race, age, gen­der, nation­al ori­gin, dis­abil­i­ty, and reli­gion (and there are oth­er char­ac­ter­is­tics like cer­tain types of whis­tle blow­ing, mil­i­tary ser­vice, jury duty, etc.). So if my employ­er dis­crim­i­nates against me because my socks don’t match, there is noth­ing about being a fash­ion moron that con­sti­tutes a pro­tect­ed char­ac­ter­is­tic. My employ­er is free to law­ful­ly dis­crim­i­nate, and make adverse employ­ment deci­sions, on that basis. The point of the motion to dis­miss in Ms. Roth’s case was that there was noth­ing about her alle­ga­tions that involved dis­crim­i­na­tion based on her sex (gender)–and that was the main issue under review on appeal.

Stan­dards for Dis­missal Under Rule 12(b)(6); Iqbal is Reject­ed

When an employ­er (or any oth­er defen­dant) is try­ing to dis­miss a law­suit under Rule 12(b)(6), the deck is stacked in favor of the employ­ee in the sense that this will be a deci­sion based on only the suf­fi­cien­cy of the alle­ga­tions in the com­plaint. The WV Supreme Court has applied these rules in scru­ti­niz­ing the ade­qua­cy of the com­plaint:

  • lib­er­al­ly con­strue the com­plaint so as to do sub­stan­tial jus­tice”;
  • keep in mind that “the pref­er­ence is to decide cas­es on their mer­its”;
  • con­strue the com­plaint in the light most favor­able to the plain­tiff, tak­ing all the alle­ga­tions as true”;
  • dis­miss the com­plaint only if it “appears beyond doubt that the plain­tiff can prove no set of facts in sup­port of his claim which would enti­tle him to relief”, and
  • the rules con­cern­ing plead­ings require that the com­plaint  mere­ly give “fair notice” of the alle­ga­tions, and the com­plaint itself is “not required to set out facts upon which the claim is based”.  (This prin­ci­ple aris­es out of Rule 8(a) which states that a com­plaint shall con­tain a “short and plain state­ment of the claim show­ing that the pleader is enti­tled to relief”. Rule 9(b) then states that alle­ga­tions of “fraud or mis­take” shall be stat­ed “with par­tic­u­lar­i­ty”, but that “[m]alice, intent, knowl­edge, and oth­er con­di­tion of mind of a per­son may be averred gen­er­al­ly.” The com­pa­ra­ble fed­er­al Rule 8(a) was the basis for the US Supreme Court in 1957 for­mu­lat­ing the “notice” con­cept for plead­ings in Con­ley v. Gib­son, 355 U.S. 41 (1957).)

This last item, the “fair notice” require­ment, is key to under­stand­ing this case and dis­missal motions under Rule 12(b)(6). The point of the com­plaint in West Vir­ginia is to give “fair notice” of the alle­ga­tions, and it is not required to set out the alle­ga­tions in more detail. The “more detail” is some­thing that the par­ties explore under the “dis­cov­ery phase” of the law­suit when doc­u­ments are request­ed, depo­si­tions are tak­en, etc.

The US Supreme Court has recent­ly adopt­ed a more strin­gent sys­tem for eval­u­at­ing com­plaints in the Rule 12(b)(6) con­text (the feds have the same rule), with the deci­sions being Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Cor­po­ra­tion v. Twombly, 550 U.S. 544 (2007). In Iqbal, the US Supreme Court held:

[t]o sur­vive a motion to dis­miss, a com­plaint must con­tain suf­fi­cient fac­tu­al mat­ter, accept­ed as true to state a claim to relief that is plau­si­ble on its face.

The US Supreme Court held that “bare asser­tions” are not enti­tled to be accept­ed as true in eval­u­at­ing a motion to dis­miss under Rule 12(b)(6).

The WV Supreme Court in Roth v. DeFe­lice­Care, Inc., on the oth­er hand, reject­ed the “more strin­gent” fed­er­al require­ment, and stuck with the “fair notice” prin­ci­ples.

The Iqbal deci­sion was a 5–4 split, and has gen­er­at­ed a good bit of con­tro­ver­sy. Mem­bers of Con­gress have tak­en steps toward leg­isla­tive­ly over­turn­ing it. The US House bill (H.R. 4115), called the Open Access to Courts Act of 2009, is in com­mit­tee, and hear­ings have been con­duct­ed by the House Judi­cia­ry Com­mit­tee. The Bill has not emerged from the Judi­cia­ry Com­mit­tee. In the Sen­ate, a com­pa­ra­ble bill called the “Notice of Plead­ings Restora­tion Act of 2009” (S. 1504) has been intro­duced, and it has not emerged from the Sen­ate Judi­cia­ry Com­mit­tee. Both of these bills would return fed­er­al law to the “notice plead­ing” prin­ci­ples for­mu­lat­ed in Con­ley v. Gib­son, 355 U.S. 41 (1957).

Roth’s Hos­tile Work Envi­ron­ment Claim

The tri­al court dis­missed Ms. Roth’s claim for hos­tile work envi­ron­ment, which includes claims for sex­u­al harass­ment.

To “estab­lish a claim for sex­u­al harass­ment based upon a hos­tile or abu­sive work envi­ron­ment” under WV Human Rights Act, the plain­tiff must prove

  • 1. The sub­ject con­duct was unwel­come,
  • 2. It was based on the sex of the plain­tiff,
  • 3. It was suf­fi­cient­ly severe or per­va­sive to alter the [plaintiff’s] con­di­tions of employ­ment and cre­ate an abu­sive work envi­ron­ment, and
  • 4. It was imputable on some fac­tu­al basis to the employ­er.

The key ele­ment for this appeal was the sec­ond ele­ment. The tri­al court deter­mined that the weird cir­cum­stance described by Ms. Roth in her com­plaint, when she alleged­ly stum­bled into an area where her boss and anoth­er female employ­ee were in some sort of sex­u­al activ­i­ty, was not any sort of hos­tile work envi­ron­ment that was “based on the sex of the plain­tiff” (ele­ment 2 above). (For this pur­pose, the courts use “sex” and “gen­der” inter­change­ably.)

The WV Supreme Court’s opin­ion dis­cussed whether these alle­ga­tions could form the basis for a hos­tile work envi­ron­ment “based on sex”, and Jus­tice Ketchum’s dis­sent dis­cuss­es that as well. I am a bit con­fused by the Court’s opin­ions (the major­i­ty and the dis­sent) because some of the analy­sis seems to assume that the only the facts alleged in sup­port of a hos­tile work envi­ron­ment are the facts relat­ing to the episode of the boss alleged­ly being in sex­u­al activ­i­ty with a female cowork­er. How­ev­er, the Supreme Court’s opin­ion makes it clear that there were sig­nif­i­cant oth­er alle­ga­tions that sup­port­ed a claim for hos­tile work envi­ron­ment:

Defen­dant DeFe­lice­Care autho­rized, direct­ed and acqui­esced in the allowance of per­va­sive, explic­it and habit­u­al harass­ment which includ­ed but is not lim­it­ed to: sub­ject­ing [Ms. Roth] to such sex­u­al­ly explic­it con­duct, threats of loss of license, loss of employ­ment and ter­mi­na­tion for unwant­ed sex­u­al­ly explic­it con­duct she observed.

The key lan­guage in that por­tion is a “per­va­sive, explic­it and habit­u­al harass­ment which includ­ed but is not lim­it­ed to” the boss’s alleged sex­u­al activ­i­ty with the cowork­er described in the com­plaint. Based on notice plead­ing require­ments, and if the issue is whether the com­plaint puts the defen­dant on notice con­cern­ing a claim of hos­tile work envi­ron­ment or sex­u­al harass­ment, that alle­ga­tion alone should end the argu­ment. In oth­er words, there were alle­ga­tions that there were sex­u­al activ­i­ties cre­at­ing a hos­tile work envi­ron­ment above and beyond the episode involv­ing the boss and cowork­er.

Anoth­er alle­ga­tion in the com­plaint that is rel­e­vant to this issue is:

Ms. Roth was “sub­ject­ed to improp­er and sex­u­al­ly explic­it con­duct by her supe­ri­ors includ­ing the pres­i­dent and CEO Defen­dant DeFe­lice… there­by cre­at­ing a hos­tile and abu­sive envi­ron­ment for employ­ment”.

Again, that is clear­ly mak­ing alle­ga­tions of a hos­tile work envi­ron­ment that involve supe­ri­ors oth­er than Mr. DeFe­lice. So the complaint’s alle­ga­tions of hos­tile work envi­ron­ment were not lim­it­ed to the boss/­co-work­er-being-par­tial­ly-undressed episode.

Ulti­mate­ly,  the WV Supreme Court con­clud­ed that Ms. Roth’s alle­ga­tions in her com­plaint were suf­fi­cient to sat­is­fy the plead­ings require­ments for a hos­tile work envi­ron­ment claim.

Ms. Roth’s Claim for “Quid Pro Quo” Sex­u­al Harass­ment

Ms. Roth also alleged that she was ter­mi­nat­ed because of the sex­u­al harass­ment. This is a claim under the WV Human Rights Act for what is gen­er­al­ly known as “quid pro quo sex­u­al harass­ment”, which involves an alle­ga­tion that a tan­gi­ble employ­ment decision—here, termination—was relat­ed to the sex­u­al harass­ment. For such a claim, the plain­tiff must prove that she was a mem­ber of a pro­tect­ed class (here, female), that there was an adverse employ­ment deci­sion (here, ter­mi­na­tion), and that “but for the plaintiff’s pro­tect­ed sta­tus, the adverse deci­sion would not have been made.”

The tri­al court also dis­missed this claim, again on the the­o­ry that the com­plaint did not present any alle­ga­tion that the ter­mi­na­tion was based on Ms. Roth’s sex. The WV Supreme Court dis­agreed and reversed this deci­sion.

The WV Supreme Court dis­cussed whether Ms. Roth’s encounter with her boss and cowork­er, and the sub­se­quent ter­mi­na­tion, could be con­sid­ered “based on the sex” of Ms. Roth, and described a state­ment made at oral argu­ment by the plaintiff’s attor­ney, to the effect that a woman might have been fired, and a man might have been retained under the cir­cum­stances, because men might view such sex­u­al activ­i­ty as some­thing to be “admired” (so by infer­ence, there would be no ter­mi­na­tion), but a woman employ­ee might be dis­ad­van­taged under com­pa­ra­ble cir­cum­stances. The Court described that the­o­ry as “spec­u­la­tive at best”, and then focused on what was the real issue: “whether the appel­lants’ com­plaint was “suf­fi­cient­ly plead­ed”.

For Ms. Roth’s dis­crim­i­na­tion claim over her dis­charge, on the issue of whether her dis­charge was based on her sex, a rel­e­vant alle­ga­tion was that Mr. DeFe­lice fired Ms. Roth stat­ing that “he did not like how s

he dressed” and “he did not like the style/color of her hair”. That seems to me to be a pret­ty gen­der-based rea­son for ter­mi­na­tion (again, that is Ms. Roth’s alle­ga­tion, and it must be accept­ed as true in this pro­ce­dur­al con­text).

Ms. Roth’s Claim for Dis­charge in Vio­la­tion of a Sub­stan­tial Pub­lic Pol­i­cy

Ms. Roth also alleged wrong­ful ter­mi­na­tion under the doc­trine first announced by the WV Supreme Court in Har­less v. First Nation­al Bank in Fair­mont, 162 W. Va. 116, 246 S.E.2d 270 (1978), where ter­mi­na­tion will be action­able if the “moti­va­tion” of the employ­er “is to con­tra­vene some sub­stan­tial pub­lic pol­i­cy prin­ci­ple.” That doc­trine has been applied in a num­ber of set­tings, includ­ing whistle­blow­er cir­cum­stances, sit­u­a­tions where an employ­ee invokes a right such as self defense (in the set­ting of a store rob­bery), pri­va­cy rights under some cir­cum­stances to refuse drug tests, and sit­u­a­tions where the employ­ee is ter­mi­nat­ed because of some tes­ti­mo­ny in a legal pro­ceed­ing.

The tri­al judge decid­ed that the facts did not sup­port any con­clu­sion that there was a “sub­stan­tial pub­lic pol­i­cy” that the employ­er was try­ing to “con­tra­vene”.  The WV Supreme Court dis­agreed and reversed on this deci­sion as well.

Ms. Roth sub­mit­ted the fol­low­ing three alleged “sub­stan­tial pub­lic poli­cies” at issue which she claimed made the ter­mi­na­tion unlaw­ful, and the tri­al court reject­ed all of them. The WV Supreme Court con­clud­ed that the sec­ond and third poli­cies could be viable, so that it reversed the deci­sion to dis­miss this wrong­ful dis­charge claim under the Har­less doc­trine:

  • First: the plain­tiff invoked West Vir­ginia statutes con­cern­ing pub­lic nudi­ty, and the tri­al court dis­missed that as a rel­e­vant sub­stan­tial pub­lic pol­i­cy; and the West Vir­ginia Supreme Court agreed.
  • Sec­ond: Ms. Roth con­tend­ed that the sex dis­crim­i­na­tion and sex­u­al harass­ment laws under the WV Human Rights Act cre­at­ed sub­stan­tial pub­lic poli­cies, and the West Vir­ginia Supreme Court has pre­vi­ous­ly made it clear under the Har­less doc­trine that those statutes in fact estab­lished sub­stan­tial pub­lic poli­cies which could form the basis of a wrong­ful dis­charge claim. How­ev­er, the tri­al court implic­it­ly reject­ed that theory—the tri­al court didn’t express­ly dis­cuss it. The West Vir­ginia Supreme Court dis­agreed, based on the analy­sis that I have described above in dis­cussing the hos­tile work envi­ron­ment claim. This pol­i­cy and the next (third) pol­i­cy were raised by Ms. Roth’s coun­sel in her oppo­si­tion to the motion to dis­miss, and the WV Supreme Court said the tri­al court should have addressed them in reach­ing its deci­sion. In oth­er words, the tri­al court should not have lim­it­ed its con­sid­er­a­tion of poten­tial pub­lic poli­cies to those described in the com­plaint.
  • Third: Ms. Roth alleged that there was anoth­er law­suit by anoth­er female employ­ee for sex­u­al harass­ment that pre­ced­ed her own, and in that law­suit, there had been alle­ga­tions of a sex­u­al rela­tion­ship between Mr. DeFe­lice and the co-work­er that was in a state of par­tial undress with Mr. DeFe­lice when Ms. Roth walked in right before her vaca­tion. In that oth­er law­suit, there had been tes­ti­mo­ny deny­ing the rela­tion­ship between Mr. DeFe­lice and the (par­tial­ly clothed) co-work­er. Thus, Ms. Roth had the poten­tial for hav­ing tes­ti­mo­ny in that oth­er law­suit that could have con­tra­dict­ed the tes­ti­mo­ny that Mr. DeFe­lice and the oth­er co-work­er were not involved in any sort of rela­tion­ship. Ms. Roth’s lawyer alleged that DeFe­lice­Care was vio­lat­ing a sub­stan­tial pub­lic pol­i­cy in poten­tial­ly ter­mi­nat­ing Ms. Roth for her pos­si­ble tes­ti­mo­ny in that oth­er law­suit. The tri­al court reject­ed this the­o­ry, but the West Vir­ginia Supreme Court dis­agreed, and con­clud­ed that this was a viable the­o­ry for a “sub­stan­tial pub­lic pol­i­cy” being vio­lat­ed. In oth­er words, Ms. Roth’s the­o­ry was that she was fired because her obser­va­tion of the sex­u­al encounter between Mr. DeFe­lice and the cowork­er could have been dam­ag­ing to Mr. DeFe­lice and his com­pa­ny in that oth­er law­suit, such that Mr. DeFe­lice was moti­vat­ed to ter­mi­nate Ms. Roth.

So the WV Supreme Court thought the sec­ond and third the­o­ries above con­sti­tut­ed sub­stan­tial pub­lic poli­cies so the dis­miss of the Har­less claim was inap­pro­pri­ate.

Ms. Roth’s Claim for Retal­i­a­tion

Ms. Roth also alleged retal­i­a­tion under the West Vir­ginia Human Rights Act. Retal­i­a­tion under that Act required that Ms. Roth engaged in some “pro­tect­ed activ­i­ty” either in the form of (a) oppo­si­tion to dis­crim­i­na­to­ry behav­ior, or (b) in the form of par­tic­i­pat­ing in con­nec­tion with some pro­ceed­ing under the Act. As far as I can tell, the only pro­tect­ed activ­i­ty alleged by Ms. Roth was the “oppo­si­tion”, so that was the only type of  pro­tect­ed activ­i­ty dis­cussed in the WV Supreme Court’s opin­ion.

The “oppo­si­tion” pro­tect­ed activ­i­ty includes “oppo­si­tion to a prac­tice that the plain­tiff rea­son­ably and in good faith believes vio­lat­ed the pro­vi­sions” of the WV Human Rights Act. The oppo­si­tion

must be rea­son­able in the sense that it must be based on a set of facts and a legal the­o­ry that are plau­si­ble. Fur­ther, the view must be hon­est­ly held and must be more than a cov­er for trou­ble­mak­ing. Thus, even if there was no action­able sex­u­al harass­ment, the plain­tiff could still have engaged in a pro­tect­ed activ­i­ty if she com­plained about being sex­u­al­ly harassed.”

The tri­al court dis­missed this claim, and the WV Supreme Court agreed because Ms. Roth had nev­er “engaged in any pro­tect­ed activ­i­ty”. She had sim­ply nev­er done any­thing to express any oppo­si­tion to any of the sex­u­al con­duct she claims to have expe­ri­enced or heard about.

Ms. Roth’s Claim for Inten­tion­al Inflic­tion of Emo­tion­al Dis­tress

Ms. Roth also alleged a claim for “inten­tion­al inflic­tion of emo­tion­al dis­tress”, which is an extreme­ly hard claim to pre­vail upon in an employ­ment set­ting. The WV Supreme Court described the claim this way:

One who by extreme or out­ra­geous con­duct inten­tion­al­ly or reck­less­ly caus­es severe emo­tion­al dis­tress to anoth­er is sub­ject to lia­bil­i­ty for such emo­tion­al dis­tress, and if bod­i­ly harm to the oth­er results from it, for bod­i­ly harm.

The con­duct 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.

Wow, that sounds tough to sat­is­fy, espe­cial­ly in the work­place, and there are rel­a­tive­ly few cas­es in which plain­tiffs have suc­ceed­ed on that the­o­ry. But keep in mind that the issue for pur­pos­es of the Supreme Court’s deci­sion was whether Ms. Roth’s plead­ings were suf­fi­cient to sup­port this claim. The tri­al court had focused on the fact that there was no alle­ga­tion that the employ­er had ter­mi­nat­ed Ms. Roth in an “out­ra­geous man­ner”.

But the West Vir­ginia Supreme Court dis­agreed, and said that the fol­low­ing alle­ga­tions in the com­plaint were suf­fi­cient::

  • 1. Mr. DeFe­lice called Ms. Roth and asked her to come to the office, and when she com­plied with that request she was placed “by her employ­er into unwant­ed­ly observ­ing Mr. DeFe­lice Ms. Kel­ly in a sex­u­al­ly com­pro­mis­ing posi­tion.”
  • 2. Because of that obser­va­tion, Mr. DeFe­lice “threat­ened” Ms. Roth “not only with ter­mi­na­tion from her employ­ment, but with pos­si­bly los­ing her res­pi­ra­to­ry ther­a­pist license, which was her means of mak­ing a liv­ing.”
  • 3. Ms. Roth was then ter­mi­nat­ed “with­in the same week”, alleged­ly because Mr. DeFe­lice “did not like how she dressed or the style and col­or of her hair.” (The Court thought it was sig­nif­i­cant that there was a close prox­im­i­ty in time for these alle­ga­tions.)

Again, this is not the same thing as say­ing these alle­ga­tions alone, with­out any oth­er evi­dence, would sat­is­fy the require­ments for inten­tion­al inflic­tion of emo­tion­al dis­tress at tri­al; but it is to say that, with these alle­ga­tions in the com­plaint, the Court could not con­clude “beyond doubt” that Mr. Roth “can prove no set of facts in sup­port of [her] claim which would enti­tle [her] to relief.” Thus, the WV Supreme Court reversed the tri­al court’s deci­sion to dis­miss the claim for inten­tion­al inflic­tion of emo­tion­al dis­tress.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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