Sid Steinberg of Post & Schell
The standard under Pennsylvania law for an employee (or likely former employee) to state a claim for Intentional Infliction of emotional distress is high. Just how high was discussed in the recent case of Schaffhouser v. Transedge Truck Center, No. 19-5811-KSM (June 2, 2020).
Abusive Behavior Since Second Day of Work
William Schaffhouser started work as a salesperson at Transedge in March 2019. His first day at work was unremarkable, but on day two, Schaffhouser’s supervisor, John Martin, summoned him to the office by stating: “Helen Keller, come in here.” This started what was alleged to be a three-month course of abuse directed at Schaffhouser by Martin, during which he was repeatedly referred to as “Helen Keller” (the case makes no mention of Schaffhouser having any actual hearing or sight limitations), was often summoned by Martin “slapping his thigh as if calling for a dog to come and saying ‘come here, come here’ and other demeaning actions. Schaffhouser also claimed that Martin refused to communicate with him at work, making it “nearly impossible” to succeed.
But perhaps the lack of communication was a benefit because, when he did speak, Martin allegedly referred to co-workers as “pieces of ____” and referred to a group of female employees as working on “estrogen row.”
Incredibly, it took Schaffhouser two months of this behavior to lodge a formal complaint (to the human resources representative who Martin had previously referred to as one of the “pieces of ____”). When he brought this to HR, he was told that “several other employees had also complained about Martin’s abusive conduct … we’re going to handle it.” The next day (after Schaffhouser had taken the rest of the previous day off), Transedge’s vice president questioned why Schaffhouser had complained about Martin—and was told that “we all know how John is and you don’t have to be afraid of him.”
Later that day, Martin, who suffered from an existing heart condition, went to the emergency room where his heart medication was increased and he was diagnosed with anxiety and depression based on the psychological toll of Martin’s conduct. At the doctor’s suggestion, Schaffhouser took off a few days from work and when he returned, he was allegedly ostracized, leading to a return to the emergency room after which he was admitted to the hospital and directed not to return to work for the rest of the week.
Termination for Policy Violation
Schaffhouser returned to work in early June, but a few weeks later, he was terminated for a “violation of company policy” and not being “physically present in the office enough.” He brought suit against Transedge claiming a violation of the Americans with Disabilities Act and both negligent and intentional infliction of emotional distress—the latter claim against both Transedge and Martin personally. Transedge moved to dismiss the emotional distress claims for failure to state claims as a matter of law.
IIED Claim Preempted by Workers’ Compensation Law
Initially, Schaffhouser conceded that the negligent infliction claim was barred by the Pennsylvania Workers’ Compensation Act, which provides the exclusive remedy for employees’ work-related injuries. The only exception to the WCA’s broad preemptions is when the behavior is based upon “personal animus.” That is, if the acts of a co-worker are “intended to injure the employee because of reasons personal to him and not directed against him as an employee or because of his employment” the acts are not barred by the WCA. Of course, as observed by the court, if a claim falls within the “personal animus” exception, it undermines the employee’s ability to hold the employer (in this case Transedge) vicariously liable.
The court found that Martin’s behavior was not due to personal animus, ironically, because he appeared to be an “equal opportunity bully.” This was set forth in the complaint itself, when Schaffhouser pleaded that he was told that “other employees” had complained about Martin and that the company had “talked to him many times.” The court found that even the highly personal behavior of referring to Schaffhouser as “Helen Keller” and summoning him like a dog were directed at him while at work. As such, Schaffhouser’s claim was preempted by the WCA.
Manager’s Behavior Not Extreme or Outrageous
But even if there was no preemption, the court found that Martin’s behavior was not the type of “extreme and outrageous conduct that is deliberate or reckless and causes severe emotional distress” as a matter of law. The oft-applied standard for claims of intentional infliction of emotional distress is behavior that is “beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in a civilized society.” This, the court observed requires more than just “bullying, abusive, improper and highly offensive conduct” and cited numerous cases where significant sexist or sexual behavior in the workplace did not support an IIED claim.
Even the cases cited where a viable IIED claim was pleaded—particularly one involving a years-long barrage of sexual harassment, including discussions about specific sexual acts and the sexual performance of other in the workplace, punctuated with retaliation—were distinguished from Schaffhouser’s claim because the latter only endured Martin’s behavior for a few months and the allegations would not make the “average community member exclaim “Outrageous!”
While Transedge escaped tort liability in this matter (although the ADA claim remains viable), the workplace described in the complaint, if accurate, seems unfathomable and thoroughly counterproductive. From a risk-management perspective, the type of behavior described would seem to be a daily risk of liability—which would need to be addressed by a strong anti-harassment policy and remedial action. While the behavior may not be “Outrageous!” it certainly does not seem to be “OK.”
Sid Steinberg is a principal and chair of Post & Schell’s employment and employee relations and labor practice groups. Steinberg’s practice involves virtually all aspects of employee relations, including litigation experience defending employers against employment discrimination in federal and state courts. He can be reached at (email protected)