Biven Software, Inc. v. Newman
| Decision Date | 17 June 1996 |
| Docket Number | No. A96A0492,A96A0492 |
| Citation | 222 Ga.App. 112,473 S.E.2d 527 |
| Parties | BIVEN SOFTWARE, INC. et al. v. NEWMAN. |
| Court | Georgia Court of Appeals |
Kilpatrick & Cody, Thomas C. Harney, Michael E. Brooks, Atlanta, for appellants.
Bruce A. Hagen, Atlanta, for appellee.
Emily S. Newman, pro se.
Emily Newman sued Biven Software, Inc., its successor FSH Associates, Inc. and HBO & Company, Biven, Inc., Biven's founder and chief executive officer, Paul Harrison, Biven's President, David Engert, and its office manager, Elizabeth Marino (collectively "Biven"), for malicious prosecution, intentional infliction of emotional distress, and breach of contract. Newman alleged the tortious conduct and contract breach occurred in connection with Biven's termination of her employment. The jury returned a verdict in favor of Newman on her emotional distress and contract claims and in favor of Biven on her malicious prosecution claim. Biven appeals the trial court's denial of its motion for directed verdict on Newman's intentional infliction of emotional distress and contract claims. We reverse.
" 'In determining whether the trial court erred by denying [Biven's] motion for a directed verdict this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict.' " (Punctuation omitted.) Evans v. Willis, 212 Ga.App. 335, 337(1), 441 S.E.2d 770 (1994). A directed verdict is proper only where Id.
Viewed in this light, the evidence reveals that Newman worked as a contract employee in an administrative position at Biven from April 1991 to October 1992. At the time, Biven was just beginning operations. When Biven offered Newman the position, Harrison purportedly promised that although he could not presently afford to pay her the $35,000 annual salary she was making in her previous employment, she would be placed on payroll as a full-time employee at an annual salary of $35,000 "later," further "down the line," "when we get more money." Newman testified that Biven promised that as a full-time employee, she would be entitled to paid vacation, overtime, and other employee benefits, including corporate stock. Biven never gave Newman a date when she would be made a full-time employee. Biven's then president and chief operating officer, David Engert, subsequently fired Newman for absenteeism, inability to complete projects, and rudeness to customers and staff. At the time of her termination, Newman was permitted to retrieve personal information from her computer.
On December 19, 1992, Engert filed criminal charges against Newman, alleging she had destroyed valuable computer files on the day of her discharge when she was permitted to take personal information from the computer. After a hearing, the magistrate found probable cause to issue an arrest warrant for the crime of computer trespass. Biven agreed to accept $450 in restitution rather than prosecute further. Because Newman paid the restitution, the magistrate did not issue the arrest warrant and dismissed the charge.
1. Biven argues that the trial court erred in denying its motion for directed verdict on the intentional infliction of emotional distress claim because Newman presented insufficient proof of extreme or outrageous conduct. We agree.
Johnson v. Savannah College, etc., 218 Ga.App. 66, 67, 460 S.E.2d 308 (1995). Comments made within the context of one's employment may be horrifying or traumatizing, but are generally considered "a common vicissitude of ordinary life." Peoples v. Guthrie, 199 Ga.App. 119, 121(2), 404 S.E.2d 442 (1991). Liability for intentional infliction of emotional distress " 'has been found only where the conduct has been 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" ' [Cits.]" Yarbrough v. SAS Systems, 204 Ga.App. 428, 429(3), 419 S.E.2d 507 (1992). The issue of whether the allegations rise to the requisite level of outrageousness is a question of law for the trial court. Johnson, supra.
The evidence of intentional infliction of emotional distress in this case fails to rise to the requisite level of outrageousness. Viewed in a light to support the verdict, the evidence at trial supporting Newman's claim showed that Engert spoke to her in a rude tone and condescending manner, belittled her, was critical of her work, and imposed unreasonable deadlines. Newman also testified that Marino was jealous and tried to establish her control over the office. Newman asserted that she was under great stress at Biven because she worked long hours and had to leave a number where she could be reached at all times. In addition, she claimed that Harrison showed a disregard for their relationship by his absence when Engert discharged her and by stating she did not have "any f ... ing rights" when she demanded additional compensation after her termination. She further asserted that her discharge after working so hard and the initiation of criminal proceedings against caused her emotional distress.
Biven's treatment of Newman while she was still employed did not constitute outrageous conduct. "Despite [Newman's] arguments to the contrary, it is clear that the language used by [Engert and Harrison] consisted either of expressions of dissatisfaction with [her] job performance or suggestions that if [she] did not improve [her] job performance [she] might be terminated...." Sossenko v. Michelin Tire Corp., 172 Ga.App. 771, 772, 324 S.E.2d 593 (1984). These allegations, considered individually or collectively, are insufficient to support a claim that Biven's conduct was extreme and outrageous. Id. at 773, 324 S.E.2d 593. The incidents which occurred at Biven during the course of Newman's employment cannot reasonably be characterized as atrocious or " 'utterly intolerable in a civilized community.' " Yarbrough, supra at 429, 419 S.E.2d 507.
Neither do Biven's actions in terminating Newman...
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