Boggs v. Avon Products, Inc.

• Decision Date: 08 January 1990
• Docket Number: No. CA89-05-071,CA89-05-071
• Citation: 56 Ohio App.3d 67,564 N.E.2d 1128
• Parties: , 6 IER Cases 171 BOGGS et al., Appellants, v. AVON PRODUCTS, INC. et al., Appellees.
• Court: Ohio Court of Appeals

Page 67

56 Ohio App.3d 67

564 N.E.2d 1128, 6 IER Cases 171

BOGGS et al., Appellants, v. AVON PRODUCTS, INC. et al., Appellees.

No. CA89-05-071.

Court of Appeals of Ohio, Twelfth District, Butler County.

Jan. 8, 1990.

Syllabus by the Court

1. An employer's alleged failure to warn its employees of the dangerous properties of a toxic chemical does not constitute an intentional tort.

2. An employer's assurances that an employee's job is secure if his attendance problems improve do not create an implied contractual provision altering the terms of an employment-at-will relationship, nor do they fall within the doctrine of promissory estoppel limiting the employer's right to discharge the employee.

3. "Pressuring" an employee and demanding more of him than of other employees is not extreme and outrageous conduct constituting intentional infliction of emotional distress.

Holbrook & Jonson and Timothy R. Evans, Hamilton, for appellants.

Taft, Stettinius & Hollister and Gerald J. Rapien, Cincinnati, for appellees.

HENDRICKSON, Judge.

This is an appeal by plaintiff-appellant, Boyd Boggs, Jr., from a decision of the Butler County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Avon Products, Inc. and Robert Nelson, in a suit alleging an intentional tort, breach of an implied employment contract and intentional infliction of emotional distress.

Boggs was employed by Avon for approximately fifteen years. He worked as a processor at Avon's cosmetic processing facility in Springdale, Ohio, where his job was to measure and mix the ingredients used in Avon's cosmetic products.

Sometime around midnight on July 5, 1984, Boggs was standing at a desk in the West Liquids area of the plant filling out some paperwork. About fifteen to twenty feet away, another processor Carl Peters, was using a large floor scale to weigh the ingredients of a cosmetic product. One of the ingredients was a white powder referred to as "1062," a chemical which can cause a toxic reaction if inhaled or allowed to contact skin. When Peters transferred "1062" from one drum to another, some of it became airborne and was carried towards Boggs by air currents from an air conditioning vent. Boggs inhaled the powder and got it on his skin, causing him to break out in a rash, develop blisters in his mouth and nose and become wheezy, short of breath and dizzy. He was later diagnosed as suffering from chemical bronchitis.

Boggs was unable to work for several weeks due to the accident. During that time, he developed problems with anxiety. When he returned to work, he met with Nelson, his supervisor, who told Boggs that he was aware of his "problem" as a result of the accident and that he would "take care of" Boggs by assigning him to tasks he could handle.

In July 1985, Nelson reprimanded Boggs for attending his son's baseball game when he called in sick that same day and the following day. An internal memorandum, dated July 3, 1985, was created as a result of this meeting and placed in Boggs's personnel file. The memorandum recited Nelson's concerns over Boggs's absenteeism and Boggs's fear that his job might be in jeopardy. It also indicated that Nelson told Boggs that his job was not in jeopardy and that he need not fear for his job "if he came back to work with his problems cleared up, and continued to get his attendance improved * * *." However, it also indicated that Nelson told Boggs that "if his attendance record deteriorates, further disciplinary action would be necessary * * *."

A follow-up meeting was held on July 30, 1985. The substance of the meeting was summarized in an internal memorandum dated August 1, 1985. During the meeting, Nelson stated that Boggs's attendance record was good and that he appeared to be "getting his tension problems resolved." However, he also discussed Boggs's inappropriate use of vacation and "convenience" days in lieu of sick time. Nelson set out three guidelines for Boggs to follow: (1) "[n]o more than five single days of vacation time in 1986"; (2) "[n]o convenience days off in lieu of sick time"; and (3) "[a] doctor's excuse will be required for any sick time, listing what restrictions [Boggs] has." Boggs conceded that these guidelines applied generally to all Avon production employees, except that a doctor's excuse was normally required only when the absence was for more than three days. Boggs contends that Nelson told him that his job was secure as long as he complied with the guidelines and did not discuss the accident with other employees or take medication in their presence.

In December 1985, Nelson again reprimanded Boggs for failing to comply with attendance policies. Boggs was asked to come in early to work on a rush batch. He did so but left an hour before his shift ended without informing management. As a result, Nelson threatened to fire him and placed another memorandum summarizing the incident in his personnel file.

In February 1986, Avon discharged Boggs, allegedly because he attempted to cover up a production error. Boggs attributed his actions to the "pressure [he] was under." However, he admitted that he knew something was wrong with the batch he was making and that he failed to follow the customary quality control procedures. He threw away a lab sample of the product and left the premises without informing anyone of the error.

On June 5, 1986, Boggs filed a complaint against Avon and Nelson which contained four claims for relief. The first was an intentional tort claim against Avon. The third was a claim for breach of an implied employment contract and intentional infliction of emotional distress. The second and fourth were loss of consortium claims by his wife.

Appellees filed a motion for summary judgment on the first and second claims, the intentional tort and the derivative loss of consortium claims, which was granted by the trial court on December 14, 1987. On December 30, 1988, the trial court dismissed the breach of contract claim. After Boggs filed an amended complaint, appellees filed a motion for summary judgment on the remaining claims, which was granted by the trial court on April 6, 1989. This appeal followed.

In his sole assignment of error, Boggs states that the trial court erred in granting appellees' motions for summary judgment. Under this assignment of error, he sets forth three issues for review which involve three separate arguments. First, he argues that there was evidence from which a jury could find that Avon knowingly failed to warn of the toxic properties of "1062" and, therefore, the trial court's granting of summary judgment in favor of Avon on his intentional tort claim was improper. We find no merit in this argument.

Boggs relies upon Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, certiorari denied (1982), 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 and Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046. In Blankenship, the Ohio Supreme Court recognized the intentional tort exception to the exclusivity provisions of the Workers' Compensation Act, R.C. Chapter 4123. In Jones, it defined an intentional tort as "an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur." Id. at paragraph one of the syllabus.

However, instead of narrowing the class of cases that fall within the intentional tort exception, "this definition, particularly the enigmatic phrase 'substantially certain to occur,' has spawned a plethora of 'intentional tort' cases based on nothing more than negligent or reckless conduct." Parker v. Sorg Paper Co. (June 30, 1989), Butler App. No. CA88-12-175, unreported, at 7, 1989 WL 72514; see, also, Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 138-139, 522 N.E.2d 477, 481.

Subsequently, the Ohio Supreme Court decided Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, which is now the leading case in the area of the intentional tort exception to the Workers' Compensation Act. In that case, the court reaffirmed the validity of the Jones definition of an intentional tort but expressed concern about the uncertainty and confusion that developed in the lower courts struggling to apply the phrase "substantially certain to occur." Of particular concern to the court was the tendency of the lower courts to "misconstrue such phrase, transforming negligence cases into intentional tort cases. * * * " Id. at 115, 522 N.E.2d at 503. Therefore, it interpreted Jones to require knowledge on the part of the employer "as a vital element of the requisite intent," id. at 116, 522 N.E.2d at 504, and established the following elements as essential to an intentional tort claim:

" * * * [I]n order to establish 'intent' for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty and not just a high risk; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task." Id. at paragraph five of the syllabus.

The court recognized that intent may be proven circumstantially, but stressed that its decision was "directed toward significantly limiting the areas within which 'intent' on the part of the actor may be circumstantially inferred." (Emphasis in original.) Id. at 117, 522 N.E.2d at 504. It went on to state:

"There are many acts within the business or manufacturing process which involve the existence...