TRIMBLE v. CIRCUIT CITY STORES, INC

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Docket Number

A95A2046

Attorney(S)

Nelson Hill, Joseph C. Nelson III, John F. Beasley, Jr., for appellant. Wimberly Lawson, J. Larry Stine, for appellee.

Judges

BEASLEY, Chief Judge.

Acts

The Public Health And Welfare — Civil Rights — Equal Employment Opportunities — Definitions

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Smart Summary

Factual and Procedural Background

This is an interlocutory appeal by plaintiff Trimble, a former employee of defendant Circuit City Stores, Inc., from an order granting Circuit City's motion to dismiss portions of the complaint under OCGA § 9-11-12(b)(6) that alleged intentional infliction of emotional distress and entitlement to punitive damages. Trimble alleges that after her April 15, 1992 hiring as a commission Sales Counselor who would not be required to lift over 25 pounds, she was repeatedly sexually harassed by supervisor Dan Pea (unwanted touching, lewd comments and gestures, ridicule, and intrusion into her clothing). Trimble reported the conduct to management, which apart from a warning took no effective action. After she filed EEOC charges on February 16, 1993 (the same day Pea resigned), she alleges continued adverse treatment by the store: altered/removed sales figures, excessive hours and denial of days off, orders to lift over 25 pounds, refusal to pay overtime, and assignments reducing commission opportunities. Trimble's health suffered, she resigned on November 15, and she required medical treatment for dehydration, stress, and exhaustion.

Legal Issues Presented

Whether the allegations, if proven, state a claim for intentional infliction of emotional distress (i.e., whether the conduct is sufficiently "extreme and outrageous").
Whether dismissal under OCGA § 9-11-12(b)(6) was appropriate given the pleadings and applicable standards for deciding questions of outrageousness as a matter of law.
Whether Title VII precludes (i.e., preempts) Trimble's common-law intentional infliction of emotional distress claim.
Whether an employer can be held liable for an employee's intentional torts under the circumstances alleged (including employer knowledge and possible ratification or retaliatory conduct).

Arguments of the Parties

Appellant's (Trimble's) Contentions

The complaint alleges repeated sexual harassment by a supervisor, ineffective managerial response, retaliatory and adverse employment actions after filing EEOC charges, and resulting severe emotional distress and physical effects, supporting claims for intentional infliction of emotional distress and punitive damages.

Appellee's (Circuit City’s) Arguments

The allegedly complained-of conduct is insufficiently "outrageous" as a matter of law to support an intentional infliction of emotional distress claim and therefore dismissal under OCGA § 9-11-12(b)(6) was proper.
Allowing the tort claim to proceed would undermine Title VII and effectively convert Title VII retaliation claims into common-law claims; Title VII should preempt such common-law recovery.
An employer is not vicariously liable for an employee's intentional torts (including sexual harassment) absent ratification, so Circuit City cannot be held based solely on Pea's actions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560, 561 (359 S.E.2d 383) (1987)	Motion-to-dismiss standard; pleadings construed in plaintiff's favor.	Cited to state the standard that dismissal is improper unless plaintiff could be entitled to no relief under any facts that could be proved.
Bourn v. Herring, 225 Ga. 67, 70 (166 S.E.2d 89) (1969)	Motion-to-dismiss standard.	Used with Wehunt to frame the dismissal standard applied by the court.
Yarbray v. Southern Bell Telephone Telegraph Co., 261 Ga. 703, 706 (409 S.E.2d 835) (1991)	Whether conduct is sufficiently extreme and outrageous (a question of law); employer retaliation can support IIED.	Court applied Yarbray's rationale to conclude Circuit City's alleged conduct could meet the outrageousness threshold.
Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227, 230 (335 S.E.2d 445) (1985)	Elements of intentional infliction of emotional distress (intentional/reckless conduct; extreme and outrageous; causation; severity).	Cited to state the elements that Trimble must plead and to support that the complaint alleges those elements.
Anderson v. Chatham, 190 Ga. App. 559, 567 (379 S.E.2d 793) (1989)	Factors for outrageousness, including control relationship (one person has control over another) and severity of harm.	Used to emphasize employer-employee relationship increases potential for outrageousness.
Williams v. Voljavec, 202 Ga. App. 580, 582 (415 S.E.2d 31) (1992)	Actor's awareness of victim's particular susceptibility as a factor for outrageousness.	Cited to show relevant factors for assessing outrageousness in the workplace.
Gordon v. Frost, 193 Ga. App. 517, 521 (388 S.E.2d 362) (1989)	Some claims fail the outrageousness threshold as a matter of law.	Referenced to acknowledge that not all conduct qualifies, distinguishing those cases from the present allegations.
Richardson v. Hennly, 209 Ga. App. 868, 872 (434 S.E.2d 772) (1993)	Workplace setting creates a "captive victim" and control element exacerbating injury.	Cited to support the proposition that the employer-employee relationship can make conduct outrageous.
Lightning v. Roadway Exp., 60 F.3d 1551, 1558 (11th Cir. 1995)	Examples where supervisor abuse plus managerial strategy of write-ups supported recovery against employer.	Used as analogous authority where employer conduct was upheld as sufficient for liability.
Coleman v. Housing Authority of Americus, 191 Ga. App. 166 (381 S.E.2d 303) (1989)	Supervisor sexual harassment by conversation, innuendo, and body language can support denial of summary judgment.	Referenced as similar authority where summary judgment was denied on harassment-related claims.
Sossenko v. Michelin Tire Corp., 172 Ga. App. 771 (324 S.E.2d 593) (1984)	Employer statements about job performance after complaints were held not sufficiently outrageous.	Distinguished by the court: facts in Sossenko were less egregious and the employee there was not intimidated; therefore it does not control here.
Newsome v. Cooper-Wiss, Inc. 179 Ga. App. 670, 673 (347 S.E.2d 619) (1986)	Employer not vicariously liable for employee's intentional torts absent ratification; employer knowledge may give rise to liability.	Cited to explain that although Circuit City cannot be vicariously liable absent ratification, its knowledge of Pea's actions may itself give rise to liability.
Smith v. Holeman, 212 Ga. App. 158, 161 (441 S.E.2d 487) (1994)	General rule that employer is not liable for an employee's intentional torts.	Cited by Circuit City; court acknowledged the rule but explained employer knowledge can still support a claim under the pleading.
Favors v. Alco Mfg. Co., 186 Ga. App. 480, 482 (367 S.E.2d 328) (1988)	Employer non-liability for employee intentional torts.	Cited by Circuit City; court relied on other authorities to explain circumstances where employer knowledge or ratification create liability.
Johnson v. Savannah College of Art Design, 218 Ga. App. 66, 67 (460 S.E.2d 308) (1995)	Reaffirms that the first element of an IIED claim requires intentional or reckless conduct.	Cited to support the required mental state element and that allegations could meet a "high degree of probability" standard for distress.

Court's Reasoning and Analysis

The court applied the motion-to-dismiss standard (pleadings construed in plaintiff's favor) and reviewed whether Trimble's allegations could satisfy the elements of intentional infliction of emotional distress. Citing Bridges, the court identified the elements required (intentional/reckless conduct; extreme and outrageous; causation; severe distress). Relying on Yarbray and related authority, the court explained that whether conduct is extreme and outrageous is a question of law involving factors such as employer control over the employee, the actor's awareness of the victim's susceptibility, and severity of harm. The court found Circuit City's alleged conduct (sexual harassment by a supervisor, ineffective managerial response, retaliatory and adverse employment actions after EEOC filing, threats to physical health and livelihood) could, if proven, meet the outrageousness threshold. The court distinguished Sossenko as involving less egregious facts. Addressing Circuit City's argument that Title VII preempts the common-law claim, the court noted that Title VII's savings clause (42 U.S.C. § 2000e-7) preserves state-law remedies and that Circuit City cited no authority to the contrary. Regarding employer liability for an employee's intentional torts, the court explained that while an employer is not vicariously liable absent ratification, employer knowledge of a supervisor's conduct and a conscious disregard for the probability of mental distress may give rise to liability. The court concluded that the complaint's allegations satisfy pleading requirements and that a jury could grant relief if the facts were proven, so dismissal was improper.

Holding and Implications

Judgment reversed and remanded.

Direct effect: The trial court's dismissal of the intentional infliction of emotional distress and punitive damages counts was reversed, and the claims may proceed (including potential jury determination) consistent with the court's analysis. The opinion does not announce that it sets a new broad precedent beyond applying existing authority to the facts of this case.

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TRIMBLE v. CIRCUIT CITY STORES, INC.

BEASLEY, Chief Judge.

This is an interlocutory appeal by plaintiff Trimble, a former employee of defendant Circuit City Stores, Inc., from an order pursuant to OCGA § 9-11-12(b)(6) granting Circuit City's motion to dismiss portions of the complaint alleging intentional infliction of emotional distress and entitlement to punitive damages.

Trimble alleges the following facts relevant to the dismissed counts: On April 15, 1992, Circuit City hired Trimble as Sales Counselor working on commissions. Trimble specifically requested, and was assured, that she would not lift more than 25 pounds in performing her job. In September, Circuit City transferred Dan Pea to Trimble's store and made him Trimble's immediate supervisor. Pea repeatedly sexually harassed Trimble, including unwanted touching, lewd comments and gestures, and other similar acts. Pea allegedly would hug Trimble, rub up against her body, and gesture in a manner that made Trimble extremely uncomfortable. Pea also ridiculed Trimble in front of other employees, telling them that Trimble did not wear underwear. Under the pretext of inspecting Trimble's clothes to meet store requirements, Pea allegedly placed his hands down inside her shirt. Trimble reported these matters to the store manager but, apart from a warning, Circuit City took no action.

Pea continued harassing Trimble, scheduling long hours for her and denying requests for days off while granting other employees' requests. Pea asked another employee if he was "doing Sharon." Trimble again unfruitfully reported the incidents to the store manager.

On February 16, 1993, Trimble filed charges of sexual harassment with the EEOC. On the same day, Pea resigned for reasons which Circuit City refused to disclose. Trimble alleges that afterwards the store continued its pattern of intentional harassment, including deliberately altering and removing her sales figures upon which commissions were figured, requiring Trimble to work extremely long hours with no days off, ordering her to lift television consoles in excess of 25 pounds, refusing to compensate her for overtime, and forcing her to perform price comparisons at competitors more often than other sales personnel, reducing her volume of commission sales.

Trimble received honors for outstanding results in video sales and sales excellence, yet Circuit City consistently charged her with various infractions over which she had no control. She reported the problems to the store manager, who did nothing to remedy them. Circuit City's treatment affected her health and eventually forced her to resign on November 15. She fainted the next day and had to be taken to a medical facility, where the doctors determined she suffered from dehydration, stress, and exhaustion.

A motion to dismiss should not to be granted unless, construing the pleadings in a light most favorable to plaintiff, it appears to a certainty that plaintiff would be entitled to no relief under any state of facts which could be proved in support of her claim. Wehunt v. ITT Business Communications Corp., 183 Ga. App. 560, 561(2) ( 359 S.E.2d 383) (1987); Bourn v. Herring, 225 Ga. 67, 70 ( 166 S.E.2d 89) (1969). Applying this standard and the rationale of Yarbray v. Southern Bell Telephone Telegraph Co., 261 Ga. 703, 706 ( 409 S.E.2d 835) (1991), we cannot agree with the trial court's conclusion that Circuit City's alleged conduct was insufficient to establish the requisite "outrageousness" of the alleged facts.

A plaintiff must prove the following elements in order to recover for intentional infliction of emotional distress: (1) intentional or reckless conduct (2) which is extreme and outrageous and (3) caused the emotional distress (4) which is severe. Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227, 230 ( 335 S.E.2d 445) (1985). The existence of a special relationship between the actor and victim, such as that of employer to employee, may make otherwise non-egregious conduct outrageous. Id.

Whether the conduct alleged is sufficiently extreme or outrageous to support recovery is a question of law for the trial court. Yarbray, supra at 706(2). Factors include the existence of a relationship in which one person has control over another, Anderson v. Chatham, 190 Ga. App. 559, 567 (8) ( 379 S.E.2d 793) (1989); the actor's awareness of the victim's particular susceptibility, Williams v. Voljavec, 202 Ga. App. 580, 582 ( 415 S.E.2d 31) (1992); and the severity of the resultant harm. Anderson, supra. Some claims have been found not to meet the threshold of outrageousness and egregiousness as a matter of law. Gordon v. Frost, 193 Ga. App. 517, 521 ( 388 S.E.2d 362) (1989). Other cases in which reasonable persons could differ must be decided by a jury. Id.

In Yarbray, supra, the Supreme Court held an employer's retaliation against an employee for testifying against the employer could provide the basis for an employee's intentional infliction of emotional distress claim. The employee filed an employment discrimination suit against her employer and served as a witness for a similar suit by a co-worker. The employer's attorney told the employee "he hoped that [her testifying against the company] would not affect [her] job." Id. at 704. After the employee testified "against" the company, she was transferred to a position considered to be a demotion. This alleged retaliation met the threshold which reasonable persons would consider outrageous. Id. at 706 (2).

Circuit City's alleged conduct likewise satisfies the threshold. The conduct occurred "in a workplace setting, in which the element of control is present. `[B]y its very nature, [the employee-employer relationship] provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships [that] cannot easily be avoided.' [Cit.]" Richardson v. Hennly, 209 Ga. App. 868 872 ( 434 S.E.2d 772) (1993). See also Lightning v. Roadway Exp., 60 F.3d 1551, 1558 (11th Cir. 1995), where a supervisor subjected an employee to obscene and abusive language, and management undertook a strategy of writing up the employee for infractions in order to justify termination. The court upheld judgment against the employer. Similar is Coleman v. Housing Authority of Americus, 191 Ga. App. 166 ( 381 S.E.2d 303) (1989), where a supervisor engaged in sexual harassment through conversation, innuendo, and body language. The court affirmed denial of the supervisor's motion for summary judgment.

Circuit City relies on Sossenko v. Michelin Tire Corp., 172 Ga. App. 771 ( 324 S.E.2d 593) (1984), but it is distinguishable. The court held that after an employee reported alleged manufacturing defects, his employer's statements to the employee concerning his job performance were not sufficiently outrageous so as to satisfy a claim for emotional distress. The court noted that the incidents the employee cited involved advice and warnings to him when appellant complained of various job transfers, which the employee insisted were demotions; however, his salary steadily increased. In addition, the employee admitted he was not personally frightened or intimidated by any of the individuals who made various statements to him.

The allegations in this case contrast sharply. Circuit City's conduct toward Trimble, if proven, could be construed as a threat to Trimble's physical health (requiring Trimble to work extremely long hours with no days off and to lift in excess of 25 pounds) and her livelihood (altering her sales figures and forcing her to perform price comparisons so that she could not make commission sales).

Circuit City further argues that reversal of the lower court will "remove the distinction between the common law tort . . . and Title VII, and undermine the requirements of the federal statute." Just because Trimble may have a claim under Title VII of the Civil Rights Act of 1964 ( 42 USCA § 2000e), she is not foreclosed from bringing what Circuit City characterizes as "a claim for retaliation under Title VII dressed up in the guise of a common law claim for intentional infliction of emotional distress." Circuit City cites several policy reasons to support its position, essentially contending that Title VII preempts the common law in this narrow area.

No authority is cited. On the other hand, Title VII provides, "Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State." 42 USCA § 2000e-7. Title VII itself expressly does not preempt Trimble's common law claim.

Circuit City also relies on the general rule that an employer is not liable for an employee's intentional torts, including sexual harassment. Smith v. Holeman, 212 Ga. App. 158, 161 ( 441 S.E.2d 487) (1994); Favors v. Alco Mfg. Co., 186 Ga. App. 480, 482(2) ( 367 S.E.2d 328) (1988). It asserts that Trimble is therefore "precluded from relying on any of the alleged actions of Mr. Pea, the alleged harasser." While it is true that Circuit City cannot be held vicariously liable for Pea's intentional sexual harassment unless Circuit City ratified his actions, Newsome v. Cooper-Wiss, Inc. 179 Ga. App. 670, 673(3) ( 347 S.E.2d 619) (1986), Circuit City's knowledge of Pea's actions against Trimble may give rise to liability nonetheless. Id. The first element of a claim such as Trimble's requires that the conduct be intentional or reckless. Bridges, supra at 230. Accord Johnson v. Savannah College of Art Design, 218 Ga. App. 66, 67 ( 460 S.E.2d 308) (1995). A plaintiff may prove circumstances "in which there [was] no certainty, but merely a high degree of probability that the mental distress [would] follow, and the defendant [went] ahead in conscious disregard of it." Prosser and Keeton on Torts, p. 64, § 12 (5th ed. 1984). The actions of Pea, to the extent Circuit City was aware of them and did little or nothing, are relevant as to whether there was a "high probability" that mental distress would result from Circuit City's response.

Furthermore, as in Yarbray, where the employer was found to have retaliated against the employee for testifying against the company, a jury could find that Circuit City retaliated against Trimble for filing an EEOC claim and that such retaliation in this instance was outrageous. A jury could also find that Circuit City simply decided to make Trimble miserable enough to resign by engaging in a practice of writing her up on unwarranted claims of infractions, as did the employer in Lightning, supra.

Trimble's alleged facts satisfy the pleading requirement. The trial court therefore erred in dismissing Trimble's claim because a jury could grant relief should Trimble prove the facts alleged in her complaint.

Judgment reversed and remanded. Pope, P.J., and Ruffin, J., concur.