Subbe-Hirt v. Baccigalupi

• Decision Date: 30 September 1996
• Docket Number: SUBBE-HIR,A,No. 95-5786,95-5786
• Parties: 132 Lab.Cas. P 58,187, 11 IER Cases 1793 Elaine J.ppellant, v. Robert BACCIGALUPI; Prudential Insurance Company, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 111

94 F.3d 111

132 Lab.Cas. P 58,187, 11 IER Cases 1793

Elaine J. SUBBE-HIRT, Appellant, v. Robert BACCIGALUPI; Prudential Insurance Company, Appellees.

No. 95-5786.

United States Court of Appeals, Third Circuit.

Argued June 4, 1996.

Decided Aug. 28, 1996.

Sur Petition for Rehearing Sept. 30, 1996.

Donald J. Maizysm (argued), Karas, Kilstein, Hirschklau, Feitlin & Youngman, Fair Lawn, New Jersey, for Appellant.

M. Elaine Jacoby, T. Gary Mitchell (argued), Hill Wallack, Princeton, New Jersey, for Appellees.

Before: COWEN, NYGAARD, and LEWIS, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

I.

Appellant Elaine Subbe-Hirt brought this action against her former employer, Prudential Insurance Company, and Robert Baccigalupi, her former supervisor at Prudential, presenting several claims arising out of her employment with Prudential. The district court granted summary judgment in favor of the defendants on Subbe-Hirt's claim for intentional infliction of emotional distress. It held alternatively that her claim was barred by the exclusive remedy provided by the New Jersey Worker's Compensation Act and that, in any event, the claim would fail on its merits because defendants' conduct was not sufficiently outrageous under New Jersey law. Subbe-Hirt appeals from that ruling. ¹

II.

The district court applied a "substantially certain" standard to appellant's claim for intentional infliction of emotional distress; it then found that defendant's conduct did not meet the threshold level sufficient to support a cause of action for an intentional tort, thereby avoiding the exclusivity provisions of the New Jersey Workers' Compensation Act. This was incorrect as a matter of law.

The district court viewed the applicable legal standard as follows:

In order for an employee to bring an action against his or her employer based upon an "intentional wrong", thereby escaping the exclusivity of the WCA, the worker must prove that the employer's actions were "substantially certain " to cause the alleged harm.

The New Jersey Supreme Court, however, has required only that a plaintiff show deliberate intention to avoid the exclusive remedy provided by the Compensation Act. See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505, 514 (1985). The Millison court cited the Restatement (Second) of Torts § 8A to elucidate its definition of intent, opining in a parenthetical reference that the "meaning of intent is that actor desires to cause consequences of his act or is substantially certain that such consequences will result from his actions." Id. (emphasis added).

Although the Millison court did adopt a "substantial certainty" standard, the district court failed to apply the full Millison test, under which deliberate intent can be proven by either: 1) a desire to cause the consequences of an act; or 2) substantial certainty that those consequences will result.

Proving that the defendant desired to cause consequences of its act is both the most direct and usually the most difficult way to show deliberate intent to harm. The Millison court, although focusing on substantial certainty, did not reject this more direct means of proving deliberate intention:

It may help to perceive "substantial certainty" not so much as a substantive test Id. at 514 (citation omitted); accord New Jersey Mfrs. Ins. Co. v. Joseph Oat Corp., 287 N.J.Super. 190, 670 A.2d 1071, 1074 (1995) (the Millison court "did no more than explain that such deliberate intent to injure can be proved not only by evidence of actual subjective intent to injure, but also by circumstances where injury is a substantial or virtual certainty"); Hambsch v. Harrsch, 256 N.J.Super. 215, 606 A.2d 879, 883 (1991) ("Millison and its offspring have skillfully devised a standard based upon either a 'substantial certainty' to injure or the defendant's actual subjective intent to injure."); Bustamante v. Tuliano, 248 N.J.Super. 492, 591 A.2d 694, 699 (1991) ("The bar will fall only in the face of proof of a subjective intent to injure or a substantial certainty that injury will occur."). Because the district court erroneously applied only a substantial certainty test and because, as we explain infra, the record contains sufficient evidence of direct intent to injure, we hold that the Act does not bar appellant's intentional infliction claim.

itself nor as a substitute for a subjective desire to injure, as a specie of evidence that will satisfy the requirement ... that "deliberate intention" be shown.

III.

Subbe-Hirt contends that the district court also committed legal error by basing its summary judgment on a conclusion that defendants' conduct was not sufficiently outrageous to support a claim for intentional infliction of emotional distress. On this allegation of error we have but two issues to decide: 1) whether Robert Baccigalupi intended to inflict emotional distress upon Elaine Subbe-Hirt; and 2) whether the evidence supports appellant's contention that Baccigalupi succeeded in inflicting that distress. We answer both questions in the affirmative and hold that the record in this case exceeds a threshold showing of outrageous behavior sufficient to preclude summary judgment.

A.

The present record, when viewed in the light most favorable to Subbe-Hirt, shows that Robert Baccigalupi unquestionably intended to inflict emotional distress upon Elaine Subbe-Hirt. According to sales manager Mark Parisi, Baccigalupi "would berate [Subbe-Hirt] or talk about getting her." Indeed, Baccigalupi stated, "I'm going to get her."

Moreover, according to the deposition testimony of Parisi and sales manager Robert LaNicca, Baccigalupi stated, in the presence of other managers and on more than one occasion, that he "was going to trim her bush," ² a blatantly sexist metaphor to brag of how Baccigalupi would handle females in general and Subbe-Hirt in particular. According to sales manager David Meyer, "when it was brought to R. Baccigalupi's attention that [Subbe-Hirt] was soon going to be returning from disability, R. Baccigalupi quickly remarked, 'Well, don't worry about her. I'm going to trim her bush.' " When asked by counsel to explain what he understood Baccigalupi's remark to mean, Meyer testified, "I understood it that he was going to lay into her quite hard and put her in her place." LaNicca said that on another occasion Baccigalupi stated, "Let's bring Elaine in here on Friday and we'll trim her bush." Parisi understood that phrase to mean:

"That he was going to come down on her, whatever his particular style was, forcing her to either go out on disability or leave the company or to cease the union activity.... [This] is, unfortunately with Prudential, is an avenue that agents take when they can't take the--you know, when management pressure goes up, and that's what [Baccigalupi] might use that for."

Likewise, Robert King, a district agent, said:

There came a point in time where it was almost embarrassing for many of us to watch a woman being--... it was pretty much obvious that Elaine wouldn't and couldn't bear up under the general atmosphere ...--her time was expiring.... We talked amongst ourselves that, you know, this was a critical stage.... There was a persecution going of myself and Elaine, and Elaine in particular.... [Baccigalupi said] more or less than [sic] she was history and that if I intended to Baccigalupi's intent to inflict emotional distress can be further seen in his total lack of any vestige of compassion for any woman in the office. On one occasion Meyer told Baccigalupi that he "couldn't continue performing 'root canal' ³ on women agents on his staff because they broke down in tears." At that point, Baccigalupi simply selected a woman agent to abuse as a demonstration, saying "Well, don't worry. I'll show you how to handle it." Appellant describes this contrived encounter as follows:

continue that I would--I should leave things go as they are going.

He then called one of the women agents in for a review, and started the 'root canal' and the intimidation on her until she broke down and started crying. R. Baccigalupi kept tearing and pressing into her and when it was over and she had left the office, he was holding out his suspender straps as if to say, "this is how you handle it; don't let their emotions get in your way."

Indeed, Baccigalupi admitted his intent when he said to Subbe-Hirt, "do you know who Joan of Arc is, read between the lines, do you know why I'm looking at your work so closely, do you think I do this to everyone?"

We have no difficulty in concluding that a reasonable jury could find from this evidence that Baccigalupi intended that his conduct subject Elaine Subbe-Hirt to emotional distress, and will turn next to whether Baccigalupi's conduct had its intended effect, and whether that effect was sufficient as a matter of law to state a claim of intentional infliction.

B.

1.

The district court erred when it held that Subbe-Hirt did not allege, nor did the record on summary judgment show, conduct sufficiently outrageous to state a claim that Baccigalupi had intentionally inflicted emotional distress upon her. In Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 544 A.2d 857, 863-64 (1988), the New Jersey Supreme Court applied the view of the Restatement (Second) of Torts § 46 to the tort of intentional infliction. The district court was therefore correct that, under New Jersey law, intentional infliction of emotional distress comprehends conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement (Second) of Torts § 46 comment d. We disagree, however, with the district court's conclusion that Baccigalupi's conduct was not sufficiently outrageous, and are led inexorably to the conclusion that summary judgment should have been denied.

2.

Elaine Subbe-Hirt began...