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

El Jefe AbusivoHave 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.

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Comments

  1. catlady971 says:

    Oh My! This is exactly what is happening to me at work but I word for the Federal Govt and I can’t sue them. I have an EEOC mediation Monday afternoon about my horrible yearly appraisal and it is due to my FMLA leave use because of BiPolar II. I have actually been told by one of my bosses that I needed to talk to my doctor and change my medication so I could get up on time every morning to get to work ontime. I was suspended last December 2nd for one day without pay–because there is a big disagreement on two days last August. Management CHOSE to AWOL me instead of giving me FMLA which I requested. According to the FMLA laws they cannot just chose to change my requested FMLA leave. The people I work with are horrible–they talk about me, hollar at me and now they are telling some new employees not to have anything to do with me. I am so depressed about all this….but I refuse to go down without a total fight!! I have kept all my information since October 2007 when it all started–emails, notes everyday of what I do..everything..
    any suggestions?

  2. Lets not forget the recent case in in Iowa where they were successful in sueing a Dr. who was employed by the same hospital as the victim-yes it does mark the 1st-I bet we will be seeing more- sueing a company first and winning-turn around and sue your violater is making progress. You can sue the Federal Gov.-ask me how?????
    ALL FOR JUSTICE
    lorivorwald@hotmail.com

  3. I have worked for 6 months at a Dr. clinic owned by him. For 6 months I was harassed both by the manager and the owner. on various occasions the dr. used to pass demeaning comments on my ethnicity, he used to say things like you are too indian and need to get rid of your indianness…Also, i have submitted my Dr. note who had treated me for my back problems, in the note it said clearly that i should not be allowed to carry or lift more than 20 lbs and yet, each week i was forced both by this Dr. and by the abusive manager to transport their scanning maching. i had to bring the machine home and then transport it to his satellite offices. also, there i was made to bring in 500 lb x ray machine from the hospital to his clinic. also, for 3 months i was not assigned or accomodated one place to sit and work where as all the other employees had their own desk excpet me.
    the manager was very abusive and used to intimidate me by variuos tactics.
    recently i was fired and it was wrongful termination, the owner said that he is fring me because i had taken 3 sick days in a perioud of 6 months, also one day i had an emergency and i did call the manger and informed her that i will be coming in late. I left two voicemail but she didn’t return my calls. The owner also made that in excuse to fire me and said that according to our office policy if you do not hear back from the manager then you should have arrived according to your schedule. Now, i wasn’t given any employee handbook and was not aware of this policy so I told him and he yelled back at me and said ‘well this is common sense.
    all the other employees were given paid sick days, and i know that many employees are chronic later comers but no action has been taken against them. i feel that i was discriminated and abused at this place.
    another thing is that the owner had send me to attend a conference for which he paid the fees. and a week later after that conference was over the manager hands me the contract paper which stated that if for any reason my job is terminated then i have to return all the conference money which is around $1000.
    I want to ask why this contract was handed to me after i had attended this conference? is it illegal to hand me this conference.
    i have recently requested an access to my persoannel records and the manger wrote back that i need to pay back that money first. The owner have also not payed my wages for the weekend work i had done and says that he will not as he will deduct that amount from that conference money,

    i live in michigan and i want to know what are my legal rights. i want to file a case against this Dr. and his abusive manager. please help what should I do. I am very much emotionally traumatized and stressed as a result of this harassment and discrimination. Please, please advice me.

  4. In many states, however, the use of a negligent infliction of emotional distress claim is limited by what’s known as the impact rule.

    This requires that the emotional distress be accompanied by, and flow from, some type of physical contact. Under that standard, verbal & emotional or psychological abuse (the typical workplace bully scenario) wouldn’t qualify.

    Florida is one such state.

    And a recent case illustrates just how difficult it is to succeed with a claim for the intentional infliction of emotional distress (see this link). Williams v. Worldwide Flight Services, Inc., 877 So.2d 869 (Fla. 3d DCA 2004).

    The court determined that the following actions by a boss towards a black employee (Williams) were NOT sufficient:

    * Called him a “nigger” and “monkey” in front of him, other employees, and over the work radio;
    * Repeatedly told him that he did not want his “black ass” there;
    * Instructed another supervisor to “create a record” of false disciplinary related incidents for Williams so as to justify his subsequent termination;
    * Did not allow Williams to work with other African-American employees because “niggers will steal if they are left to work together”;
    * Falsely accused Williams of stealing;
    * Constantly and persistently threatened Williams with job termination for no apparent reason;
    * Directed Williams to load and unload aircraft in inclement and dangerous weather conditions, to move dangerous heavy equipment and cargo, and to work extra flights thereby deliberately eliminating his break times.

    The court found this conduct reprehensible, objectionable, and offensive, but not enough to win a claim of IIED.

    Of course, if you can show such overt misconduct was based on race, gender, or another protected classification, you might succeed on some other claim such as discrimination under Title 7.

  5. adviceplease says:

    I’m in NH – Submitted a wrongful term claim, written by the Director of the NHCHR. Wanted to withdraw the claim – stress; you are correct. After three years of fun and bonuses, this guy is hired – I started documenting new bosses “behavior’s” within one year of him arriving. No one that has heard 1 – 2 of the things he did can believe it… Let me go after seven years of above average, then average reviews – he had to give me a 10% raise. Has put my family and I thru hell – now in the middle of ch. 11. NH investigator has PUSHED me to file rebuttal; unable to retain counsel, due to the ch. 11; now the trustee is determning whether or not to retain counsel. Prior to the filing, had well respected, specialist in discrimination, wrongful term, hostile environment NH attorney pressing me to prepare hard data so I did. You are right about the stress – my medical records doccument that – you are also right about the absolutely audacious statements AND actions…if they hadn’t resulted in harm to my family, they would be laughable. If just me I’d walk away. My family has paid for this guys actions too – and I’ll save my feelings on that. A little worrried to be specific…anonymity. Does it matter?

  6. nicksfan says:

    i totally feel and agree with everyone here. why are there not laws to protect us as employees. there are laws against men or women beating each other up. whats the difference here? my boss i think grew up the way she is and no one ever said “no” to her. she has laid her hands on me at least 3x, once it was like shaken baby syndrome. she has her favorites and makes no bones about it. everyone is scared to talk back to her about anything. like today i tried to save alittle time performing a test (not going into too much detail in case she reads this). she threw 10 kinds of fits that i was wasting her time, owners wouldnt pay for it etc. we do this everyday so i dont know what was different. they want to do it or not. the test gets tossed. she hits counters and tables, kicks the fridge. the clients can hear all this. accuses me of things i havent heard of or didnt do. constantly puts me down in front of the other employees and sometimes in front of clients. this is very demeaning and doesnt give the clients much faith in us. she doesnt want to hear what you have to say and will cut you off cause she’s always right. she actually sent me home after 2 hrs into the shift. there was a shouting match, accusations of things i didnt do again. i flat told her one of these days the way she treats us like dogs and talks to us is going to come back and bite her in the butt big time. i was keeping a log, but things seem to have settled down cause she was picking on other people. i’ll take the fall for something i did, but not for everything in the place which is what i’m accused of on a daily basis. i have never in my life worked for such an animal. no appreciation at all for the business we bring for her, no good job compliments, just looks for anything at all to yell at you about or complain. sure she is the boss, but come on. if she didnt micromanage and let us do our job, not do it for us and stop treating everyone like 2 year olds we’d all be happier. she desperately needs anger management classes. i probably have parts of the ginas case that i could use but i have no dr. verification. cant afford insurance and visits are too expensive. i barely get my rent/car/utilities paid. had to file ch 7 recently because she has no set work schedule. she will send the higher paid home first which is going to end up helping me lose my only mode of transportation. i have tried finding another job in this field, but at my age most think/act like im going to drop dead tomorrow. so i’ve been stuck here. i cant just go out and work at mcdonalds. that wouldnt pay the bills. i’m my only income. she steals from the clients in several different ways so if it comes down to it and i cant find a way to make her stop i can turn her in for that. but i’m saving that as a last resort. the labor board in tx is of no help. can’t even find a spot to research this. its all lawyers wanting money to answer your questions. in calif. she would not get away with this. why is it different here in tx. does the state not care about their people? if anyone has any ideas or websites to help please let me know. what i have written here is the marshmellow part of the job. i’ve been taking otc medication for my ulcer that magically came back 1yr after working there so that should say something.

  7. CanSomethingBeDone says:

    I have worked at the same place for about two years at a little dinky convenience store. The owners are MONSTERS.. After a couple of months working there customers started saying they were surprised I still worked there, I had no clue why. Boy did I find out! Since I have worked there they have managed to run every good employee out.. If they dont like something your doing they will scream at the top of their lungs at you even with customers in the store.. One of the owners got mad at me one day because a delivery man came at 1130 which is about lunch time (there is a kitchen in the store too) so its always busy about that time.. Well the women owner was furious because she has told the delivery men not to come at that time.. Instead of talking to him about she screamed at me that we are not to allow people to deliver at that time, and didnt I tell you going on and on.. All of this in front of all the customers and workers. How embarrasing! Then after he left she said I wasnt mad at you I just wanted to get the point accross to the delivery man.. I was livid! Just recently two boys came in with two bags of cans and bottles to bring back. We have bags that you can fill with cans only and we will give you twelve dollars per bag. Well the store was busy and I didnt notice that they were mixed bags so when the boys (ages about 5 and 9!) came up I gave them the money. Luckily they didnt leave. My boss comes storming up to the counter and asks how did you give them money if those bags werent counted?! (maybe the backroom people should do their job better?!) I told him I thought they were twelve dollar bags, they didnt come up with slip or anything. So he told me I was to pay him the difference of the money I gave them andstorms out back. He comes back a minute later with one of the bags they brought (by this time I had everything sorted out money wise with the kids and they were getting candy about to leave) which happened to be quite dirty, turns to them and yells you guys need to clean this off before you bring it back! Takes the bag slams the front door open and whips it outside! THe kids looked like they were gonna pee themselves! :( After they left he comes up to me and says ‘I know YOU or anyone else around here doesnt care about MY fucking pay check, you need to pay better attention, those bags werent even close to 12 dollars (mind you the kids gave the money back and we sorted it all out) I just fuckin fired **** (a girl who recently was also being harrassed was going to quite and they fired her) we dont need another one of her in here! I know you can do your job so FUCKIN do it! then storms off.. Stories like these are weekly occurences and quite frankly I think something should be done. Not only that if anyone quits or leaves on bad terms (which is always) they drop you down to min wage on your last check/s and WITH HOLDS your paycheck! how illegal is that?! They pay overtime in cash and the only breaks we get are for cigs. THe last person who asked about breaks was told ‘I pay you to work not have breaks!’ WHAT SHOULD I DO?!

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  1. pligg.com says:

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

    Gina Strong sued her boss for negligent infliction of emotional distress. Read how she did it, and learn how you can too….

  2. 10url.com says:

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

    Gina Strong sued her boss for negligent infliction of emotional distress. Read how she did it, and learn how you can too….

  3. The Abusive Boss Who Got Sued For “Negligent Infliction of Emotional Distress” | UndercoverLawyer…

    Gina Strong sued her boss for negligent infliction of emotional distress. Read how she did it, and learn how you can too….

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