Beeman v. Safeway Stores, Inc.

• Decision Date: 25 October 1989
• Docket Number: No. 88-0463-CV-W-3.,88-0463-CV-W-3.
• Citation: 724 F. Supp. 674
• Parties: Connie BEEMAN, Plaintiff, v. SAFEWAY STORES, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

724 F. Supp. 674

Connie BEEMAN, Plaintiff, v. SAFEWAY STORES, INC., et al., Defendants.

No. 88-0463-CV-W-3.

United States District Court, W.D. Missouri, W.D.

September 29, 1989.

On Motion For Reconsideration October 25, 1989.

J.C. Hambrick, Jr., Schulz, Bender, Maher & Blair, P.C., Kansas City, Mo., for plaintiff.

Stanley E. Craven and Georgann H. Eglinski, Spencer Fane Britt & Browne, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

ELMO B. HUNTER, Senior District Judge.

Before the Court is defendants' motion, pursuant to Fed.R.Civ.P. 56(c), to grant summary judgment in their favor on Counts II and III of plaintiff's Third Amended Complaint. Counts II and III are state law claims pendent to plaintiff's Title VII claim in Count I. Count II is based on the prima facie tort doctrine as recognized by Missouri. Count III alleges the tort of intentional infliction of emotional distress. Missouri law controls both claims.

Plaintiff, a female, was a store manager for Safeway Stores, Inc. from 1984 until she resigned in 1986.¹ During that period, defendant Dale Wilkinson, as a district manager for Safeway, was plaintiff's immediate supervisor. Plaintiff alleges in her complaint that she was subjected to various forms of sexual harassment and discrimination. Plaintiff alleges that she endured sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature. Plaintiff realleges all of these allegations in Count II. She further alleges in Count II that "by reason of the foregoing acts of Defendants, she was subjected to the following: numerous meetings with Defendants, complaints about her performance, denial of promotion and intolerable work conditions."

After plaintiff informed defendant Wilkinson that she was "near a nervous breakdown due to his constant verbal attacks" on her, he yelled at her and called her a "wimp," a "loser" and a "liar." She further states that on occasion Wilkinson continued to attack her verbally after she became visibly distraught. In her deposition plaintiff testified that Wilkinson harassed her by making daily checks on her work, by "belittling" her work performance, by reprimanding her in meetings that lasted up to three hours, by making long lists of things for her to do, by asking her to accomplish work tasks that were impossible to accomplish within the allotted time and by "threatening" her employment.

Curiously, in defendant Wilkinson's deposition he stated that plaintiff was "a good store manager," an evaluation not consistent with his alleged harsh treatment of plaintiff. However, plaintiff testified that Wilkinson was "very hard on and very stern" with all employees under his supervision. Moreover, plaintiff explained in her deposition that she believed that at least some of Wilkinson's conduct was motivated by Wilkinson's desire to impress his supervisor.

At some point during this period, plaintiff requested a transfer out of Wilkinson's district. It is unclear whether those responsible made any final decision regarding plaintiff's request, but plaintiff apparently believed, based on her meetings with Wilkinson, that she had been denied the transfer and had no alternative but to resign. After filing a charge of discrimination with the EEOC, plaintiff instituted the present action.

I.

When determining whether summary judgment is proper, the Court is to view the facts "in the light most favorable to the opposing party." Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142, 154 (1970). Rule 56(c) of the Federal Rules of Civil Procedure requires the entry of summary judgment when the moving party shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. With respect to an issue on which the nonmoving party bears the burden of proof, the moving party need only show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). In rebuttal, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). Whether a "genuine issue" exists depends on "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986).

In Count II of her Third Amended Complaint plaintiff claims both compensatory and punitive damages under the prima facie tort theory. Although the prima facie tort has not been recognized by Missouri's Supreme Court, the Missouri appellate courts have nominally adopted the theory and unanimously agree upon the elements which are: an intentional lawful act by the defendant; an intent to cause injury to the plaintiff; injury to the plaintiff; and an absence of any justification or an insufficient justification for the defendant's act. Kiphart v. Community Federal Savings & Loans Assoc., 729 S.W.2d 510, 516 (Mo. Ct.App.1987). The courts have justified adoption of the theory as a means of redressing "a small residue of tortious conduct" which enjoyed immunity under traditional principles of tort law. Lundberg v. Prudential Ins. Co. of America, 661 S.W.2d 667, 670 (Mo.Ct.App.1983). Specifically, the tort is meant to reach defendants who engage in otherwise lawful conduct primarily for the purpose of maliciously injuring someone else. A plaintiff who proceeds under the prima facie tort theory has a heavy burden to shoulder. Plaintiff bears the burden of proving each and every element of the tort. Kiphart, 729 S.W.2d at 516.

The Court notes the caution with which Missouri courts have approached the prima facie tort. Research reveals no Missouri case resulting in a verdict for a plaintiff on a prima facie tort theory which has been affirmed by an appellate court. Southwestern Bell Telephone Co. v. Buie, 758 S.W.2d 157, 164 (Mo.Ct.App.1988). The Missouri Supreme Court has also refused to allow an at will employee to maintain an action for wrongful discharge on a prima facie tort theory. Brown v. Missouri Pacific Railroad Co., 720 S.W.2d 357, 362 (Mo.1986) (en banc); accord Dake v. Tuell, 687 S.W.2d 191 (Mo.1985) (en banc). The rationale for denying this cause of action to at will employees is that allowing it would eviscerate Missouri's "at will" doctrine. 687 S.W.2d at 193.

In this case, plaintiff has not established the first element of a prima facie tort. Plaintiff has failed to allege an intentional lawful act by the defendants. Rather, plaintiff has alleged that defendants' "action ... was an intentional unlawful act." Moreover, the gist of her complaint is that, "by reason of" various forms of alleged sexual harassment and sexual discrimination (acts which she realleges in paragraph 1 of Count II), defendants subjected her to "numerous meetings with Defendants, complaints about her performance, denial of promotion, and intolerable work conditions." Intentional acts "by reason of" sexual harassment and sexual discrimination are unlawful acts and thus not actionable, as a matter of law, under the prima facie tort theory. See Greco v. Robinson, 747 S.W.2d 730, 734 (Mo.Act.App.1988) (affirming summary judgment against plaintiffs who alleged, in support of their prima facie tort claim, acts that were unlawful). Defendants' motion for summary judgment must therefore be granted with respect to Count II of plaintiff's Third Amended Complaint.

II.

In Count III of plaintiff's Third Amended Complaint plaintiff is claiming intentional or reckless infliction of emotional distress. Under Missouri law, a plaintiff must prove three elements to recover for intentional or reckless infliction of emotional distress, sometimes referred to as the tort of "outrage" or "outrageous conduct." First, the plaintiff must establish that the defendant's conduct was extreme and outrageous. Second, the plaintiff must show that the defendant acted in an intentional or reckless manner. The third element a plaintiff must prove is that the defendant's conduct caused plaintiff to suffer severe emotional distress. Greco v. Robinson, 747 S.W.2d 730, 735 (Mo.Ct.App.1988).

To be actionable, the emotional distress of which plaintiff complains "must be medically diagnosable and must be of sufficient severity so as to be medically significant." Bass v. Nooney Co., 646 S.W.2d 765, 772-73 (Mo.1983) (en banc). Examples of such medically significant distress include "continuing nervousness, sleeplessness, or nausea for which a physician would prescribe medication .... `Harm,' then, is mental distress serious enough to require medical attention" but is not "mere upset, dismay, humiliation, grief and anger." Id. at 733, n. 4 (emphasis added) (quoting Comment, 33 Hastings L.J. 291, 309 (1981), and Comment c under Section 436A of Restatement (Second) of Torts (1965)).

In Greco, the court affirmed the trial court's entry of summary judgment against plaintiffs who claimed intentional infliction of emotional distress but failed to provide any expert medical testimony in support of their claim. 747 S.W.2d at 735-36. Plaintiffs' only evidence of emotional distress was their own testimony. This, the court held, was insufficient to survive the motion for summary judgment. Id. Moreover, the court held that the plaintiff's complaints of periodic nervousness, headaches and stomach problems did not add up "to the type of emotional distress required to give a cause of action." Id. at 736 (quoting Leonard v. Pioneer Finance Co., 568 S.W.2d 937, 942 (Mo.Ct.App.1978)).

Likewise, a plaintiff who witnessed a car accident and complained of ...