IN THE COMMONPLEASCOURTFORDORCHESTERCOUNTY

IN AND FOR THE STATE OF RENNARIA

FERRIS JOINER,

PlaintiffCase No. 09-C-07-123456

v.

DIMMSDALELAWSCHOOL,

Defendant

Now comes Defendant, DimmsdaleLawSchool, by and through undersigned counsel, and respectfully moves this Honorable Court for Summary Judgment under Rule 56(c) of the Rennaria Rules of Civil Procedure. This request is based on the reasons set forth in the attached argument and incorporated herein.

Respectfully Submitted,

2822

#1234567

Attorney for the Defendant

1801 Euclid Avenue

Cleveland, Ohio44115

(555) 867-5309

STATEMENT OF FACTS

The plaintiff in this case, Ferris Joiner, was a tenured professor at DefendantDimmsdaleLawSchool. (Appendix A, Deposition of Ferris Joiner, at 2) (hereafter Joiner depo). Joiner is 68 years old and had been employed by the defendant for 40 years prior to his retirement after the 2006-2007 school year. (Joiner depo, at 2). Five years ago Joiner lost his wife to cancer. (Joiner depo, at 3). After the death of his wife, Joiner began to experience health problems (Joiner depo, at 3). These health problems caused Joiner to have to cancel a number of his classes; oftentimes having to miss several classes in a row. (Joiner depo, at 3). It was also around this period of time when students began to notice Joiner appearing “impatient,” “frustrated,” and “stressed” when teaching class. (Appendix B, 2004 student eval). Furthermore, students also began complaining about Joiner and enrollment in his classes “dropped dramatically.” (Appendix A, Deposition of Virginia Merchant, at 3) (hereafter Merchant depo). Former Dean Clarence Fisher also noticed Joiner’s poor health, and in believing it was due to his heavy workload, repeatedly asked that he retire. (Appendix A, Deposition of Clarence Fisher, at 2) (hereafter Fisher depo). Joiner refused and refuted the concept that his heavy workload was affecting his health, stating “work was what kept [him] going.” (Joiner depo, at 2).

Dean Fisher retired at the end of the 2005-2006 school year and was replaced by Adrian Wurich, who was notified of Joiner’s health issues by Fisher. (Fisher depo, at 3). As one would expect, Dean Wurich made a number of administrative and policy changes within her first year. For example, Professor Joiner was assigned to teach subjects that were different from the subjects he had traditionally taught. (Joiner depo, at 4). Joiner contends he suffered exhaustion because these classes were “outside [his] area of expertise,” scheduled back-to-back, and taught to competitive first year students. (Joiner depo, at 4). He claims no other teacher was asked to teach outside his area of expertise. (Joiner depo, at 4). Joiner was also assigned to be on three law school committees (generally professors are required only to be on two), one of which was the time consuming self-study committee. (Joiner depo, at 4). Joiner claims he was assigned to these committees unfairly because tenured staff was typically able to choose their committees. (Joiner depo, at 4). However, Dean Fisher stated that while such committee assignments were not customary, they did “happen sometimes.” Fisher also noted that Joiner was a “logical choice” for the self-study committee. (Fisher depo, at 3). Dean Wurich also decided that the school’s First Amendment Journal, which Joiner and his wife founded, needed a fresh perspective; as a result, Joiner was removed from his position as advisor of the journal. (Joiner depo, at 5). Joiner stated he felt “devastated” and “worthless” after his removal from the position. (Joiner depo, at 5). Wurich also brought in a consulting group which deemed Joiner deficient in teaching one of his new classes. (Joiner depo, at 4). This resulted in Joiner not receiving a raise. (Joiner depo, at 4).

As spring approached in the 2006-2007 class year, Joiner began experiencing chest pains and anxiety attacks. (Joiner depo, at 5). He was prescribed medication for depression. (Joiner depo, at 5). His chest pains resulted in a hospital visits in April and May, causing him to cancel half of his classes during the final two months of school. (Joiner depo, at 5). When he was in class, students noted he acted “distracted,” “angry,” and “confused.” (Appendix B, 2007 student eval.). In June, 2007 Joiner submitted his notice of his intent to retire. (Joiner depo, at 1). Joiner insists that Wurich’s administration and policy changes “made [his] job so stressful and miserable that [he] had to retire.” (Joiner depo, at 1)

On November 22, 2007 Ferris Joiner filed suit against DimmsdaleLawSchool, claiming he was entitled to relief under the tort of intentional infliction of emotional distress. There are currently no facts in dispute. The Defendant, after the hiring of a new dean, assigned Joiner to new and challenging responsibilities; and during this time Mr. Joiner developed the aforementioned medical conditions. In light of the abovementioned facts, Defendant respectfully moves this Honorable Court to grant its Motion for Summary Judgment.

STATEMENT OF POSITION

THE HONORABLE COURT SHOULD GRANT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BECAUSE REASONABLE MINDS CAN ONLY CONCLUDE THAT DEFENDANT’S CONDUCT OF REMOVING PLAINTIFF FROM A LAW JOURNAL’S ADVISORY POSITION AND ASSIGNING PLAINTIFF TO NEW CLASSES AND COMITTEES FALLS SHORT OF THE LEGAL STANDARD OF “EXTREME AND OUTRAGEOUS” CONDUCT, AND THEREFORE FAILS TO ESTABLISH AN ESSENTIAL ELEMENT FOR A CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

DISCUSSION

In accordance with Rule 56(c) of the Rennaria Rules of Civil Procedure, a court may grant summary judgment when the record before the court shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” A genuine issue of material fact exists when, in viewing the evidence in a light most favorable to the non-moving party, the non-movant proves that a reasonable jury could return a verdict in his favor. Maddox v. BaisYaakovHebrewParochial School, 36 F. Supp. 2d 798, 802 (N.D. Ill. 1999). Moreover, summary judgment for a defendant is appropriate when the plaintiff “fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 317 (1986). In the case at hand, Mr. Joiner, as the plaintiff, must meet the “heavy burden” of proof that is required to establish the essential elements of the tort of intentional infliction of emotional distress. Gallipo v. City of Rutland, 656 A.2d 635, 643 (Vt. 1994). The element requiring that the defendant’s conduct be “extreme and outrageous” is an essential element of Joiner’s claim. Because Mr. Joiner has failed to meet the heavy burden of establishing this element, even when the facts are viewed in a light most favorable to him, this court should grant Defendant’s Motion for Summary Judgment.

Pursuant to Rennaria C.C. § 1.06the tort of intention infliction of emotional distress exists when four factors are met. First, defendant’s conduct must be intentional or reckless. Second, such conduct must be “extreme and outrageous.” Third, defendant’s conduct must be the cause of the victim’s mental distress. Fourth, such emotional distress must be “severe” and harm the victim. This motion will focus on the second factor: “extreme and outrageous” conduct. In general, conduct is considered “extreme and outrageous” when it goes “beyond all possible bounds of decency” and can “be regarded as atrocious, and utterly intolerable in a civilized community.” Wells v. Thomas, 569 F Supp 426, 433 (E.D. Pa. 1983) (quoting from Restatement (Second) of Torts § 46 cmt. d. (1965)). Furthermore, it is not enough that the defendant’s “conduct had been characterized by "malice" or a degree of aggravation that would have entitled the employee to punitive damages for another tort.” Frye v CBS, Inc., 671 SW2d 316, 320 (Mo. Ct. App. 1984). It is also not enough “that the [defendant] knows that the [plaintiff] will regard the conduct as insulting, or will have his feelings hurt.” White v. Monsanto Co., 585 So.2d 1205, 1210 (La.1991). For liability to be attached in this context, the plaintiff may show the defendant “had knowledge of the [plaintiff’s] particular susceptibility to emotional distress.” Id. Finally, “[l]iability does not attach where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional stress.” Id.

Consequently, in the current case, it should be apparent to the court that the Defendant’s conduct, while perhaps disrespectful and rude in light of the surrounding circumstances, clearly fell short of the legal standard of “extreme and outrageous” as it failed to go “beyond all possible bounds of decency” and “be regarded as atrocious, and utterly intolerable in a civilized community.” Moreover, when the facts are viewed in a light most favorable to the Plaintiff, the most Plaintiff can show is an implied malice in the conduct of the Defendant; and such a showing is not alone sufficient enough to prove “extreme and outrageous” conduct. Furthermore, no liability should be attached to Defendant’s conduct because Defendant, in removing Plaintiff from his position as law journal advisor and reassigning Plaintiff to new and different classes and committees, “did no more than insist upon [its] legal rights” and, in addition, had no knowledge of Plaintiff’s “particular susceptibility to emotional distress.” It is apparent, in light of the abovementioned facts, that reasonable minds could only conclude that Defendant’s conduct fell short of the legal standard of the “extreme and outrageous” element essential to the tort of intentional infliction of emotional distress.

Various cases provide support in showing that Defendant’s conduct toward Plaintiff fell far short of the legal standard of “extreme and outrageous.” For example, in Wells v. Thomas, 569 F. Supp. 426, 433 (E.D. Pa. 1983), the court held that defendant hospital’s conduct toward an employee of 25 years “was not the type of extreme and outrageous conduct that…courts have recognized as giving rise to a cause of action.” In Wells, the hospital, without cause, reassigned the plaintiff to a newly created position without responsibilities, gave her poor performance reviews, failed to give her a salary increase, moved her from her private office, and reassigned her secretary. Id. at 29. Furthermore, the plaintiff also claims that she was the only employee that, when not present, would have her calls go unanswered. Id. In granting defendant’s motion for summary judgment, the court reasoned that the defendant’s conduct, while “intentional and perhaps highly inappropriate in view of plaintiff's long work history at the hospital,” did not amount to “extreme and outrageous” conduct as it clearly failed to meet the legal standard of going “beyond all possible bounds of decency” and being “regarded as utterly intolerable in a civilized community.” Id. at 33.

In addition, the courts have further elaborated on employment reassignment that appears as if it was conducted in malice. For instance, in Frye v CBS, Inc., 671 SW2d 316, 320 (Mo. Ct. App. 1984), the court again held that defendant’s conduct fell short of the legal standard of “extreme and outrageous.” In Frye, a graphic artist (who had held that position for 12 years) with a partially amputated foot was reassigned to a job as a camera operator (which required him to stand for extended periods of time). Id. at 317. The plaintiff claimed that this prolonged standing caused him to experience both mental and physical distress. Id. at 318. The court, in holding that the defendant’s conduct was not “extreme and outrageous,” reasoned that it was not enough that the defendant “may have intended to inflict emotional distress, or even that their conduct had been characterized by "malice" or a degree of aggravation that would have entitled the employee to punitive damages for another tort.” Id. at 319; See, e.g., Baldwin v. Upper Valley Servs., Inc., 644 A.2d 316, 318-19 (Vt. 1994) (holding the demotion of an employee under suspicious circumstances for reasons that do not stand up under scrutiny is not “extreme and outrageous” ); Hatley v. Hilton Hotels Corp., 308 F.3d 473, 476 (5th Cir. 2002) (noting even though conduct may violate Title VII of the Civil Rights Act of 1964 as sexual harassment, it does not necessarily become intentional infliction of emotional distress).

Finally, the courts have discussed the instances in which the defendant knows his conduct will result in some degree of stress. In White v. Monsanto Co., 585 So.2d 1205, 1210 (La.1991), the court held that the defendant supervisor’s profanity laced tirade to three of his employers did not constitute “extreme and outrageous” conduct. In finding for the defendant, the court reasoned the “mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough” to qualify the conduct as “extreme and outrageous.” Id. Furthermore, unless “the actor has knowledge of the other's particular susceptibility to emotional distress, the actor's conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.” Id.; see Smith v. American Greetings Corp., 804 S.W.2d 683, 686 (Ark. 1991) (noting defendant’s conduct can rise to meet the “extreme and outrageous” standard when he has knowledge of plaintiff’s “particular susceptibility” to emotional distress and continues with the conduct). The court also notes that “[l]iability does not attach where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional stress.” Id.

The abovementioned cases demonstrate how the courts define the legal standard of “extreme and outrageous” and why this court should grant Defendant’s motion for summary judgment. In general, conduct is considered “extreme and outrageous” when it goes “beyond all possible bounds of decency” and can “be regarded as atrocious, and utterly intolerable in a civilized community.” 569 F Supp at 433 (quoting from Restatement (Second) of Torts § 46 cmt. d. (1965)). It is not enough that the defendant’s conduct can be characterized by "malice" or fall under the liability of another the tort. 671 S.W.2d at 320. It is also not enough that the defendant knows the conduct will be insulting or hurt the feelings of the plaintiff. 585 So.2d at 1210. For liability to be attached in this context, the plaintiff may show the defendant “had knowledge of the [plaintiff’s] particular susceptibility to emotional distress.” Id. Liability does not attach when the actor is insisting on his legal rights in a permissible way.Id.

As set forth in Wells, the legal standard of “extreme and outrageous” conduct is only met when the goes “beyond all possible bounds of decency” and can “be regarded as utterly intolerable in a civilized community.” 569 F. Supp. at 433. The similarity between facts in Wells and the case at hand are striking. As in Wells, Joiner had a long standing work history with his defendant employers. (Joiner depo, at 2). Also, Joiner had similarly been subjected to reassignment (new classes and committees), general inconveniences/ burdens (back-to-back classes, self-study committee, three committees), and perceived unfair treatment (being only tenured employee to receive such assignments). (Joiner depo, at 4). Because of the striking similarity between Wells and the current case, this court should come to a similar conclusion: While Wurich’s lack of reverence towards Joiner in deciding to remove him from his long held positions may be considered disrespectful and unmerited, her conduct by was no means “utterly intolerable in a civilized community,” and therefore should not be considered “extreme and outrageous.”

In Frye, it was held that it is not enough that the defendant’s conduct is characterized by "malice" or falls under the liability of another tort. In the current case, when the facts are viewed in the light most favorable to the plaintiff, only an implied characterization of “malice” can be made of Defendant’s conduct. Joiner apparently intends to imply that Dean Wurich was intent on making his year as miserable as possible as to force him into retirement. Yet this implication, at best, is extremely weak. Over the past few years Joiner had began to receive poor student evaluations. (Appendix B, 2004 student eval). Students also began complaining about Joiner and enrollment in his classes “dropped dramatically.” (Merchant depo, at 3). Moreover, the law journal he advised was struggling (Joiner depo, at 6). These facts show that Wurich would likely have had the cause needed to terminate Joiner as a tenured professor; yet she allowed him to continue working anyway. Finally, even if there was a strong case for malice (or even intent to cause emotional distress), its existence alone cannot prove Defendant’s conduct was “extreme and outrageous.”

In accordance with the rule set forth in White, liability may be attached when it is shown that the defendant had knowledge of plaintiff’s particular susceptibility to emotional distress; therefore giving rise to “extreme and outrageous” conduct when the defendant continues it in the face of such knowledge. 585 So.2d at 1210. For that reason, it is likely that opposing counsel will argue the thisrule - that Defendant had knowledge of Joiner’s particular susceptibility to emotional distress and continued its conduct anyway, therefore qualifying that conduct rise to the level of “extreme and outrageous.” On behalf of the Defendant, we disagree.

We don’t debate, in viewing the facts in a light most favorable to the Plaintiff, that Joiner was “particularly susceptible” to emotional risk – Joiner’s claims of severe depression, chest pains, and anxiety attacks are not common responses to employment reassignment. The issue at hand is whether Defendants knew of this “particular susceptibility.” One must examine the record carefully to determine what Defendant did and did not know. It was known to the Defendant, through Joiner and his absences, that Joiner had health issues prior to the 2006-2007 school year. (Joiner depo, at 4). Dean Fisher at one time believed that this poor health was due to the amount of work Joiner purposefully took on. (Fisher depo, at 3). Because of this, Fisher had several times asked Joiner to retire. (Fisher depo, at 2). Joiner himself refuted this, and in his own words responded that “work was what kept [him] going.” (Joiner depo, at 3). When she assumed her position prior to the 2006-2007 class year, Dean Wurich was relayed this information by Fisher. (Fisher depo, at 3-4).

It is unreasonable to believe that Dean Wurich, in fulfilling her title by assigning new and challenging work to a man whose “work was what kept [him] going,” knew Joiner was “particularly susceptible” and that such emotional devastation would result. It is also questionable about how Joiner could be tremendously emotionally burdened by certain work (new classes and committees), and yet on the other hand (and at the same time) be burdened by the relief of other work (relieved of the advisory position). Furthermore, Wurich never had any experience with Joiner being reassigned before. Therefore, she certainly could not know (or even predict) with what “particular sensitivity” Joiner would have with regard to this conduct. Surely Dean Wurich was certain that Joiner would be upset by the reassignment form his long held positions, but in accordance with White, “mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough” to qualify the conduct as “extreme and outrageous.” 585 So.2d at 1210. Because Defendant did not know of Plaintiff’s “particular susceptibility” to emotional distress, Defendant’s “conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.” Id. Here, as previously established in the context of Wells (where the plaintiff was not known to be “peculiarly susceptible” to distress), Defendant’s conduct was not ““extreme and outrageous” towards a person of ordinary sensibilities.”