Texas Supreme Court: Did You Not Hear Me On Intentional Infliction of Emotional Distress?

When the opinion starts out,

For the tenth time in little more than six years, we must reverse an intentional infliction of emotional distress claim for failing to meet the exacting requirements of that tort.

there's no doubt about how it is going to end. Creditwatch v. Jackson (Tx. 2/25/05)[pdf]. In forceful language, the Court seems to be getting closer to the position Justice Hecht has long urged, the total abolition of the tort in Texas jurisprudence. Justice Brister's penultimate paragraph:

This tort was never intended as an easier and broader way to pursue claims already protected by our expanding civil and criminal laws. If the tort is to remain viable where ?gaps? still remain, litigants and judges cannot entertain it as a catch-all that avoids the careful balancing behind alternate legal claims.

(emphasis added) clearly indicates the Supreme Court is losing its patience.

In this case, there were allegations of sexual harassment which were time barred, the refusal of the employer to provide a reference letter or take reference calls during business hours, a policy that employees should not contact ex-employees, and finally that plaintiff's temporary roommate, also a former co-employee, was told to evict her at the threat of losing her own job. Even assuming the truth of all that, "callous, meddlesome, mean-spirited, officious, overbearing, and vindictive" as it would be -- it is not enough to meet the outrageous conduct standard required for intentional infliction of emotional distress . What it will take, for as long as the claim remains viable, is "circumstances bordering on serious criminal acts."

Two other important items, the Court pointedly "assumes" that the court of appeals was correct in finding that nothing in the TCHRA preempts other common-law causes of actions, inviting, it would seem, arguments that it does preempt some; and confirms what was implied in Zeltwanger, if the complaints are covered by other statutory remedies, the fact that those avenues are now barred (time barred in this case) does not allow them to be asserted as an intentional infliction of emotional distress claim.

Whatever sting was left in the tort of intentional infliction of emotional distress after Zeltwanger, is now even milder.

Priorities? Confined Spaces Has A Point

Jordan Barab's Confined Space is an eloquent voice on behalf of workers, particularly on safety issues. And his post about an editorial in the North Jersey Record, comparing fines proposed by Congress for cursing or sexual material on public airwaves and a fine by a former Enron executive and those issued by OSHA in a fatality make a point. And because Jordan knows his stuff and does his homework, he makes the point even better.

Governing By Publicity? Is That A Good Use of the Justice System?

I suppose there is a fine line between getting the word out about what the government is doing to enforce the laws, which could make stretched enforcement dollars go further, and trying one's case (not to mention a defendant) in the media. Not sure whether the EEOC may be crossing that line with their latest tactic of advertising their upcoming announcement of two lawsuits. Naomi Earp, Vice Chair of the Commission is taking the time to fly to Phoenix so she can personally deliver the message, and of course the press is invited to attend. According to the press release:

Naomi C. Earp, Vice Chair of the U.S. Equal Employment Opportunity Commission (EEOC), will host a press conference at the agency's Phoenix District Office on Thursday, February 24, at 12 noon, to announce the filing of two important employment discrimination lawsuits involving teen workers.

The suits involve sexual harassment of male and female teen employees, including same-sex harassment, at two different franchises of a national fast-food chain. Joining the Vice Chair to announce the filing of the two lawsuits in federal district court in Arizona and New Mexico will be EEOC Phoenix District Director Chester V. Bailey and Regional Attorney Mary Jo O'Neill. Bailey noted, "These lawsuits are expected to have far reaching effects on the youth-oriented restaurant industry."

And just to build the suspense, "No additional information about the cases will be available until the time of the press conference."

I am not totally sure what I think about this tactic, but it does make me wonder whether this is a good use of government resources (possibly, but I would bet there are better uses), whether it is fair to the defendant (no), and whether since I would normally decry a private plaintiff (or defendant for that matter) who tried to use a lawsuit for a public relations purpose, I should think any differently just because it is a government agency (I don't see why).

Naomi Earp was one of the first items I blogged about, way back on July 29, 2002. (Man, I have been doing this a long time.) And you would think given the comment in that post, she of all the Commissioners might be sensitive to the issue of accusing someone with great fanfare before their case has been adjudicated. My earlier post:

Carswell redux?

Interesting to note that the NAACP is opposing the nomination of Naomi Churchill Earp, a career government worker, to the EEOC. (One small irony is that Earp is African American.) One of the complaints raised in an edition of the federal eeo advisor is that she has cost the government nearly half a million in settlements and awards of federal EEOC charges filed against her.

And the headline? I see I was sometimes cheeky, even back in the beginning:

Borrowing from Senator Roman Hruska's famous endorsement of Supreme Court nominee, G. Harrold Carswell ("Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."): Aren't those accused of discrimination entitled to a little representation on the Commission as well?

Whistling While You Wait and Walk - Should You Get Paid For It?

The Supreme Court will let us know as today they granted certiorari in two cases to decide whether employees' time spent walking from a changing room to an equipment distribution center and waiting in line for equipment is "time worked" under the Fair Labor Standards Act. Sonja Starr, has the commentary and link to the cases at SCOTUSblog. And as noted in the lead, they should be familiar with the issue since Goldstein and Howe represent the petitioners in one of the cases.

The cases will require the Court to renew its relationship with the 1947 Portal to Portal Act, the first substantive revision to the Fair Labor Standards Act, which was originally passed in 1938. Interesting that more than 50 years after the FLSA was passed, questions still exist as to what is "work" under the Act.

The two cases represent a split in the circuits, with compensation being denied in Tum v. Barber Foods (1st Cir. 2004) and awarded in IBP v. Alvarez, (9th Cir. 2003). It will be interesting to see if the 9th Circuit's usual run of luck on employment cases before the Supreme Court, which would augur for the reversal of Alvarez and upholding of Tum, holds true.

Good To Know My Instincts Are Sound - Jury Awards $2.25 Million for Violence in the Workplace

More than a year ago I commented on a decision from the 4th Circuit, remanding a case to trial on one of my less favored causes of action, intentional infliction of emotional distress. But I was forced to admit that based on the allegations set out in the Court's opinion, even I wasn't offended by the use of the doctrine in that case.

In my original post, I highlighted the facts as follows:

Gantt, a security guard obtained a restraining order against her boyfriend. Her week-end supervisor who also was her boyfriend's supervisor at another security company during the week, sent her to a job assignment knowing that she would be exposed to her boyfriend. Even after he called and threatened Gantt, the supervisor refused to remove her. After Gantt was kidnapped, raped and held captive for 6 hours by the boyfriend, she sued the company for among other things, the intentional infliction of emotional distress. The facts seem to me to be the very narrow exception that the tort was designed to cover.

Now courtesy of a press release from the National Crime Victim Bar Association, it appears that a jury when presented with the facts was not offended either. And according to the release, the jury did not even get to hear all the facts:

Due to the trial court's interpretation of the Fourth Circuit's opinion, the jury never heard about the rape and abduction. The Judge ruled that the abduction began when Sheppard [the boyrfriend] grabbed Gantt, and allowed testimony only on events that occurred up to that point. "The jury heard about Sheppard running up the driveway to the security post wielding a shotgun," said Martin. "They heard how [Gantt]was left alone there cowering and pleading for her life. That was enough for the jury to conclude that she had suffered severe emotional distress intentionally inflicted by her supervisor, and which continues today in the form of nightmares, panic attacks, and fear of Sheppard."

Although this is a rather graphic example of the confluence of violence in the workplace and an employer's responsibility, it makes clear how highly juries value safety in the workplace and an employer's responsibility to ensure it, even sometimes where the worst conduct is by a third party.

More Faltering Business Success

First it was Arthur Andersen, and now Ozark Aircraft Systems, which have taken advantage of the faltering business exception under the WARN Act. In Ozark's case, it was a federal jury that found the exception applicable. See Plane shop found exempt of notice from the Arkansas Democratic Gazette.

Maybe its the economic times, but recent history indicates that this defense may be of more use than many, including me, have thought.

But Wasn't It For The Gorilla?

What is there to say after this headline, Gorilla Caretakers Sued Over Breast-Baring Request. Apparently two female employees of the Gorilla Foundation were required to "indulge Koko's nipple fetish" by baring their breasts on occasion. Terminated after they complained about sanitary conditions, they have now brought suit against the Foundation and Francine "Penny" Patterson, the longtime trainer of Koko, a gorilla with a vocabulary of more than 1,000 signs. Koko, at least at this juncture, has not been sued.