Sid Steinberg from Post & Schell
The standard under Pennsylvania law for an employee (or likely former employee) to make a claim for intentional infliction of emotional stress is high. How much was discussed in the latest case by Schaffhouser against Transedge Truck Center, No. 19-5811-KSM (June 2, 2020).
Abusive behavior since the second day of work
William Schaffhouser started working as a salesman at Transedge in March 2019. His first day of work was inconspicuous, but on the second day Schaffhouser’s supervisor John Martin called him into the office with the words: “Helen Keller, come in.” This began an alleged three month abuse course , which Martin had directed against Schaffhouser and in which he was repeatedly referred to as “Helen Keller” (in which case it is not mentioned that Schaffhouser actually has hearing or visual impairments) often called by Martin: “He hit his thigh when he would call a dog and say, “Come here, come here” and other degrading acts. Schaffhouser also claimed Martin refused to communicate with him at work, making it “almost impossible” to succeed.
But perhaps the lack of communication was a benefit because when Martin spoke, allegedly referring to employees as “pieces of ____” and referring to a group of female employees as “estrogen line”.
Incredibly, it took Schaffhouser two months of this behavior to file a formal complaint (to the staff representative, whom Martin had previously referred to as one of the “pieces of ____”). When he presented this to Human Resources, he was told that “several other employees had also complained about Martin’s abusive behavior … we will deal with it.” The next day (after Schaffhouser had taken the rest of the previous day off), Transedges Vice President asked why Schaffhouser had complained about Martin – and was told, “We all know how John is and you don’t have to be afraid of him. ”
Later that day, Martin, who had an existing heart condition, went to the emergency room, where his heart medication was increased and he was diagnosed with anxiety and depression due to the psychological stress of Martin’s behavior. At the doctor’s suggestion, Schaffhouser took a few days off work and when he returned he was reportedly ostracized, resulting in a return to the emergency room, after which he was hospitalized and instructed not to return to work for the remainder of the time Week.
Termination for Policy Violation
Schaffhouser returned to work in early June, but was fired a few weeks later for “violating company policies” and not being “physically present in the office”. He brought a lawsuit against Transedge, alleging a violation of the Disabled Americans Act and negligent and deliberate infliction of emotional distress – the latter against Transedge and Martin himself. Transedge rejected the emotional distress claims for failing to disclose claims on legal grounds.
IIED claim excluded by the Employee Compensation Act
Initially, Schaffhouser admitted that negligent infliction was excluded by the Pennsylvania Workers’ Compensation Act, which is the exclusive remedy for work-related injury to employees. The only exception to the general preferences of the WCA is that the behavior is based on “personal animus”. That is, if the actions of an employee are “intended to harm the employee for personal reasons and are not directed against him as an employee or because of his employment”, the actions will not be excluded from the WCA. As the court found, a claim that falls under the “personal animus” exception naturally undermines the employee’s ability to hold the employer (in this case, transedge) liable.
The court found that, ironically, Martin’s behavior was not due to personal animus, as he appeared to be an “equal opportunity bully”. This was set out in the complaint itself when Schaffhouser alleged that it was told that “other employees” had complained about Martin and that the company had “spoken to him many times”. The court found that even the very personal behavior of referring to Schaffhouser as “Helen Keller” and calling him like a dog was directed at him at work. In this respect, Schaffhouser’s request was excluded from the WCA.
Manager’s behavior is not extreme or outrageous
But even when there was no preliminary ruling, the court found that Martin’s behavior was not the kind of “extreme and outrageous behavior that is intentional or reckless and causes severe emotional distress”. The common standard for claiming that emotional stress is intentionally caused is behavior that “transcends all possible boundaries of propriety and is considered cruel and utterly intolerable in a civilized society”. This, the court said, involves more than “bullying, abusive, inappropriate and highly abusive behavior” and cited numerous cases where significant sexist or sexual behavior in the workplace failed to support an IIED claim.
Even the cited cases in which a viable IIED claim was made – particularly one that involved a year-long barrage of sexual harassment, including discussions of certain sexual acts and the sexual performance of others in the workplace, punctuated by retaliation – came from Schaffhouse’s allegation differed because the latter endured Martin’s behavior only a few months and the allegations would not make the “average community member” outrageous! “
While Transedge has escaped tort liability on this matter (although ADA’s claim remains viable), the workplace described in the complaint, if correct, appears unfathomable and utterly counterproductive. From a risk management perspective, the type of behavior described appears to be a daily liability risk that would need to be addressed through a strict anti-harassment policy and remedial action. While the behavior may not be “outrageous!” it certainly doesn’t seem “OK”.
Sid Steinberg is director and chairman of labor and employee relations as well as the working groups of Post & Schell. Steinberg’s practice encompasses virtually all aspects of employee relations, including litigation experience defending employers against workplace discrimination in federal and state courts. He can be reached at [email protected]