The Abusive Boss Who Got Sued For “Negligent Infliction of Emotional Distress”

Have you felt emotional distress at work because of the abusive way your boss treats you? Many of the people who contact me for help in dealing with a bully boss feel this way, and they want to sue their boss in court for all the workplace abuse he or she has inflicted.

When someone like this tells me they want to sue, the first thing they say is that their boss caused “a hostile work environment.” (If you still think you can sue for a hostile work environment, you need to sign up for my 7 Free Work Law Secrets Email Course). The second thing people want to sue for is “intentional infliction of emotional distress.” This also rarely works, and I don’t advise pursuing it, but…

…but a women named Gina Strong in Washington State recently has some success suing her boss for negligent infliction of emotional distress. Because she also sued her boss for intentional infliction of emotional distress (and lost on that one), her story is a great example of what legal claims can work if you want to sue your boss and which legal claims don’t (usually) work. Having a boss who did more than just call her names is where Gina’s story starts.

Gina Strong’s Emotional Distress

Gina Strong worked in a school district print shop, where Jim Terrell supervised her. Terrell screamed at Gina every day. Terrell criticized her work in a sarcastic unprofessional manner. Terrell told blond jokes in Gina’s presence, and yes Gina was blond. Terrell even ridiculed Gina’s personal life: he made fun of her new house; he mocked her husband’s job; and he told her that her son would soon realize that she was a “bum” mother.

How did Gina respond to Terrell’s workplace harassment? She responded the in the same way as many of the people who are reading this article have have responded to their own abusive work environments: she vomited, she experienced anxiety attacks, she suffer from depression, and she even began to have a heart arrhythmia.

Gina went to the school district office and filed a harassment complaint against Terrell. A district office employee, Nichollet Koch “investigated” the allegations and found (like every other in-house investigation) that nothing Terrell did to Gina “rose to the level of illegal harassment.” In other words, the organization knew that Terrell was an abusive asshole, but it wasn’t illegal abuse. So, the school district didn’t punish Terrell. It “recommended” that Terrell take some classes to improve his “management style.” Gina was not satisfied.

After the district closed it’s file on the matter, something made the investigator, Koch, look further into Terrell’s behavior. Soon after the district office recommended that Terrell be terminated. Terrell resigned before that happened.

Three months after Terrell had resigned Gina filed a lawsuit against the district officer and Terrell as individuals (not as agents of the school district). Both defendants filed motions for summary judgment – which asks the judge to throw the case out before trial. The court did throw out the case, but Gina was not satisfied. She filed an appeal.

The Appeals Court considered whether Gina could sue her boss for Constitutional violations (the court said no), whether she could sue her boss for “intentional infliction of emotional distress” (the court said no again) and whether she could sue her boss for “negligent infliction of emotional distress” (the court said yes).

The Appeals Court noted that Gina did not allege that Terrell sexually harassed her, or that his conduct created a “hostile work environment based on sex”. Instead the court observed that “the majority of her claims related to Terrell’s method and style of supervision.”

Court Acts on Gina’s “Intentional Infliction of Emotional Distress Claim”

The legal claim of “intentional infliction of emotional distress” is a “tort” (which is not a dessert in this context). A “tort” is a civil wrong – as opposed to a criminal wrong. Torts come from the history of judges writing written decisions about why the judge decided in favor of one side and against the other side.

In the state of Washington, for you to prevail against your boss on the tort claim of “intentional infliction of emotional distress” (IIED for short) you must prove that:

1. Your boss engaged in extreme and outrageous conduct;

2. Your boss intentionally or recklessly inflicted emotional distress on you; and

3. Your boss’s outrageous conduct actually caused you to feel severe emotional distress.

The Washington State Supreme Court adopted these elements from a publication called the Restatement (Second) of Torts sec. 46 (1965). I’ll explain the Restatement more fully in another article, but for our immediate purposes all you need to know is that most states follow the Restatement; so most States, including your state, use the same three elements above for their tort of IIED.

Most people read the elements of IIED and think “Perfect! This is how I’m going to sue my boss!!” The elements seem to fit what their boss does to them. It just sounds right. Their boss purposefully puts them through hell, and they can’t sleep, feel depressed, suffer from anxiety, and begin getting ulcers.

The problem is, most of what your boss does to put you “through hell” does not meet the very high threshold of what it takes to qualify as “outrageous.” In Gina’s appeal the court decided that the first element of IIED, outrageous behavior, must be “so outrageous in character and 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.”

IIED, said the court “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” The court claimed to be sympathetic to Gina’s plight, but said that what her boss did was more in the vein of “insults” and “indignities” and did not cross the boundary into something “beyond all possible bounds of decency” and “atrocious”.

Victory! The Court Allows Gina’s Claim of Negligent Infliction of Emotional Distress

After dismissing her IIED claim, the court turned to Gina’s legal claim against Terrell for the tort of Negligent Infliction of Emotional Distress (NIED). This time, the Appeals Court decided that what Terrell did could possibly rise to the level of NIED, and therefore allowed Gina to take Terrell to trial on the NIED claim.

NIED is more often recognized in the workplace setting when “it does not result from an employer’s disciplinary acts or its response to a workplace personality dispute.” The elements of this claim are:

1. Boss had a duty to refrain from conduct that would foreseeably harm you;

2. Boss breached the duty of #1, and did engage in conduct that would cause you forseeable harm;

3. The boss’s conduct in #2 directly caused you harm

4. You actually were harmed (you are not exceptionally tough, and didn’t manage to shrug it off);

5. You have objective medical evidence that you experienced emotional distress (such as your doctor had to prescribe anti-depressants, sleeping pills, or high blood pressure medication).

In Gina’s case against Terrell, she claimed that he did the following things (#2) and had a duty not to (#1) which directly caused (#3) her actual harm (#4), and she also had seen a doctor who could verify her “emotional distress” harm. So, here are the acts that made up element #2, what the boss Terrell should NOT have done:

• He continuously made demeaning comments and jokes about her blond hair until she dyed it brown

• He mocked the house she purchased

• He mocked her husband’s job

• He called her a “bum mother”

• He spit in her face as he screamed at her for using the wrong bulletin board for union information

• He stood so close to her while screaming in her face that she feared he would strike her and felt his spit hitting her face

• He disconnected the telephone during the night shift so she could not call out of the print shop

Terrell tried to argue that these actions could not possibly amount to NIED, because they were all “workplace personality disputes” or were related to discipline in the workplace. The court didn’t buy that argument for a second.

The court pointed out that spitting in someone’s face can equal fourth degree assault. Making someone believe you are going to hit them can equal battery. Neither of these two things are a “mere workplace personality dispute.”

The court also pointed out that there was no way the boss, Terrell, could convince them that his comments were all work related. Terrell’s mocking of Gina’s personal life and taunts about her hair color were “rude, boorish, and mean-spirited and were not done in furtherance of legitimate work-related topics… Terrell’s conduct regarding [Gina’s] personal life was not a workplace dispute, although it occurred in the workplace.”

The court then reversed the lower court, and ordered that Gina be allowed to go to trial in front of a jury on the NIED claim.

Undercover Lawyer’s Take Away Tips:

1. Don’t believe that you can sue a jackass boss for acting like a jackass by using “intentional infliction of emotional distress;” your best bet is, and always will be, to get yourself in a protected class.

2. You might be able to sue your boss for negligent infliction of emotional distress, but only if your state recognizes this tort and your boss is attacking you as a person and not as an employee.

3. Keep a journal, take notes, write everything down. It bears repeating that you need to keep dated quotes of what your boss says and does. To pursue an negligent infliction claim you will need to show that he or she lashed out at you in ways that are completely unrelated to workplace issues.

If you want to download the full case to read for yourself, or to highlight the NIED portion and hand to your HR Department when you turn in your own boss, you can view and print it here:

Does your boss attack you as a person, and not your work as an employee? Tell us about it in the comments section below.

10 Steps of Walking the Plank Toward Termination: Step 1 Your Industry Is Sputtering

Many people have written about “Signs You’re Getting Terminated,” but all those articles miss the natural progression that usually occurs.  These signs don’t appear scatter shot around you like the pellets of a shotgun blast.  No, it’s more ordered than that.  There are a series of steps that occur before you are terminated.  One leads to the next, like the steps of “walking the plank” toward termination and falling into the cold ocean of unemployment.

Through my decade of practicing employment law and through my previous years in human resources, I came to recognize a pattern that almost always occurs, with only slight variations, anytime an employee is fired.

Due to these rough economic times, I’ve added a step at the beginning which is not always there, but certainly increases the likelihood you’ll be terminated if that step is present in your case.  Today we’ll cover that first step, and then in the next 9 days we’ll cover the remaining steps.  Be sure to see if you recognize any of the following elements in your company right now:

1. Your Industry Is Suffering

Is the government bailing out your company?  This is a hard sign to miss.  There’s no way around it.  Terminations and layoffs are coming.  But there are less dramatic, similar signs that you should heed.  Such as:

• Your company or your industry is on the news
• Your company’s competitors are merging
• Top executives are leaving the company “to spend more time with family”
• The Company increases use of outsourcing
• Your Company is being investigated by the government
• All employee perks are suddenly eliminated: no off-site Christmas party this year; approval for travel requires extra steps; or, normal business maintenance is being delayed

Two competing companies will often consider merging when both are suffering financially.  Both companies hope they will have double the customers with less staff.  In other words, half the staff is going be laid off.  I saw this pattern first hand in my pre-lawschool life, when I worked in Human Resources for a big box retailer.

Our company acquired 3 smaller companies while I was working in H.R.; each time we would go in and lay off the corporate staffs of the smaller company we acquired, then add all of their work to our own (already full) work schedule.  This is what Corporate America calls saving money through efficiences of scale, or synergies.

Eventually I began seeing some more of the signs above in our own company.  One top executive left to go to work for a competitor.  There was a rumor that a former female VP was suing the company for gender discrimination.  The traditional blow-out Christmas Party that was held at a posh hotel with spouses invited was toned down to a on-site punch and cake reception the last hour of the work day with no family joining us.  It was obvious the company was hurting.

Then the big news came.  Our company was aquired by an even bigger “big-box” retailer.  H.R. representatives from the bigger company started visiting our corporate headquarters and talking about “efficiencies” and “learning from each other”.  That’s when I left for graduate school.

Only a couple of the many people I knew successfully made the jump to position with the company that acquired us.  Most people scattered to other companies in our area; some started their own business; some moved away in pursuit of jobs with competitors that were located in other states; some people jumped at the chance to take a “early retirement” package the new company offerred.  Most of the people, however, were simply told one day to box up the personal items at their desks and not come back.

I always wondered why those folks didn’t leave sooner.  Why didn’t they make plans to work elsewhere or start something of their own?  Maybe they were intensely loyal people who felt obligated by duty to “go down with the ship”.  But not even the Executives did that.

I think those folks who stayed until the bitter end with no plan for their future could not see the signs.  Maybe loyalty blinded them, sure.  Or even optimism could have dulled their perception of the tell-tale indicators that the company was on its last gasps.

What those folks missed, however, you should be keen to observe.

Today we covered Step One of the “10 Steps Toward Termination”, which is highly relevant to today’s economy, but not required.  Tomorrow we will start exploring the signs of impending termination that are more focused on your relationship with the company and your boss.

Please join me and the other readers of this blog over the next ten days as we explore and discuss the next 9 Steps over the next 9 days.

But before you go, have you seen any of the signs discussed above?  Do you think I’ve left out a sign that other people need to know about?  In the comments section tell me what you think, or about your experiences, and read about the experiences and views of other readers like you.

Learn How To File an Unemployment Claim

Economy Down, Unemployment Claims Up

With our economy the way it is, I decided to prepare a guide to filing for unemployment benefits. My idea was to explain how the unemployment system works, what the standard is for accepting or rejecting claims, and then add in stories from my own experience about what the best tactics and common mistakes are in filing for unemployment benefits.

Scam “Services”

In researching what others were already saying on the internet, I was alarmed to find “businesses” selling something that at first looks like legal services for people who want to file an unemployment claim. However, after you fill in your information (I did it just to see what the site was really offering) you have to check a box agreeing to a long waiver — where you agree you are not buying legal services, or even buying help with filing your claim. Then you are taken to a second screen where you pay the business $9.95 and they send you a “customized report” on where and how to file. In the fine print you also agree to $2.50 per week charged to your credit card so you can “access” their non-existent resources.

Where To File - For FREE!

For free, you can see where to file right here, for all 50 states.

The main thing you need to know, however, is the standard you must meet in order to get unemployment benefit compensation, which is this:

The Standard That Decides ALL Unemployment Claims

Unemployment Insurance Benefits are intended to provide temporary financial assistance to workers who are unemployed through no fault of their own.”  That last sentence is the key to unemployment claims.  Follow these four tips in order to implement that sentence:

Four Quick Tips For Filers

So a few quick tips if you can’t wait for my full report to come out.

• Never write down that you “resigned”. Instead write that you “were constructively discharged” (which means you were forced out).

• Even if you were terminated, always maintain that you “were willing and able to work.” This should be a theme that infuses every answer on your unemployment claim application.

• Example: “I wanted to continue working at ABC Company but was constructively discharged by the hostile work environment created by my manager’s behavior.”

• Don’t go into HOW your manager constructively discharged you on your application, leave that for your phone hearing or write a response to your manager’s response.

• Know your deadline! Follow the link above and learn how many days you have to file your claim. Then put it on your calendar and circle it in red.

Conclusion: Don’t Pay, There’s a Better Way

There is plenty of information here if you need to file your unemployment claim right away. Coming soon, however, will be my full report on filing successful unemployment claims. Even if you can’t wait for it, remember, don’t pay money to anyone for unemployment claim insurance advice.