Brewer v. Hillard

• Decision Date: 13 August 1999
• Docket Number: No. 1997-CA-001842-MR.,No. 1997-CA-001902-MR.,1997-CA-001842-MR.,1997-CA-001902-MR.
• Citation: 15 S.W.3d 1
• Parties: Jeff BREWER, Appellant, v. Kenneth Gene HILLARD, Appellee. Consolidated Freightways, Appellant, v. Kenneth Gene Hillard, Appellee.
• Court: Kentucky Court of Appeals

Page 1

15 S.W.3d 1

Jeff BREWER, Appellant, v. Kenneth Gene HILLARD, Appellee.

Consolidated Freightways, Appellant, v. Kenneth Gene Hillard, Appellee.

No. 1997-CA-001842-MR.

No. 1997-CA-001902-MR.

Court of Appeals of Kentucky.

August 13, 1999.

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Daniel Simons, Richmond, for appellant, Brewer.

Joseph Shelton, Atlanta, GA, for appellant, Consolidated Freightways.

William Kenealy, Louisville, for appellee.

Before: COMBS, EMBERTON and GUIDUGLI, Judges.

OPINION

GUIDUGLI, Judge.

These appeals arise from a jury verdict in favor of appellee, Kenneth Gene Hillard (Hillard) on his claim of intentional infliction of emotional distress against appellant Jeff Brewer (Brewer) and his claim of same-gender hostile environment sexual harassment against appellant Consolidated Freightways Corporation of Delaware (CF). On appeal, Brewer argues that he was entitled to judgment as a matter of law, that the tort remedy of intentional infliction of emotional distress was not available to Hillard, that Hillard's filing of a workers' compensation claim precluded him from filing a tort claim, and that the trial court erred in altering the jury's apportionment of damages. CF argues that the trial court erred in not granting its motion for judgment nowithstanding the verdict (JNOV) in its entirety and that a new trial is warranted due to improper jury instructions and improper apportionment of damages by the jury. We affirm in part and reverse in part.

Testimony at trial established that Hillard was employed by CF as a local deliveryman. Brewer was employed by CF as dispatcher/supervisor on the evening shift, which began around 3:00-4:00 in the afternoon and ended around 12:00-1:00 a.m. Brewer would often work past midnight to finish his work, thus overlapping with the midnight shift. Donna Carter (Carter) was the dispatcher/supervisor on the mid-night shift. Hillard often worked evening and midnight shifts because of his low seniority status.

According to Hillard, he initially had no problem with Brewer when he began working as a local deliveryman. After several months, Brewer began calling him sexually explicit names. As time passed, Brewer's conduct became worse. Hillard testified that Brewer would grab his buttocks and comment "why don't you give me some of that ass." Sometimes Brewer would rub his crotch while making lewd comments. There were also several occasions when Brewer made requests for oral and anal sex.

Hillard testified that if other employees were around Brewer would make the comments loudly, but if no one was around he would keep his tone of voice low. At the time the harassment was occurring, Hillard thought Brewer was either homosexual or bisexual. Hillard did admit that Brewer never intimated that his job would be in jeopardy if he did not comply with his requests.

Hillard testified that he reported Brewer's behavior in graphic detail to Carter in December 1992. At that time Carter made a copy of CF's harassment policy, which hung on a wall in the dispatch office area, and gave it to him. According to CF's harassment policy:

Any incident of harassment, including work-related harassment by any CF MotorFreight personnel or any other person, should be reported promptly so the matter can be investigated and resolved as quickly as possible. Managers or supervisors who receive complaints of harassment should inform their regional human resources manager, or the Human Resources Department in Menlo Park immediately, and if they observe harassing conduct, should act immediately to prevent it from continuing.

A. Harassment by co-workers. If employees feel they are being harassed by a co-worker or by an employee of a customer or vendor, they should immediately notify their supervisor or manager. Supervisors and managers are responsible for acting promptly to investigate such complaints.

B. Harassment by managers or supervisors. The company emphasizes that employees are not required to complain first to their supervisor if that supervisor is the individual who is harassing the employee. The Human Resources Department is responsible for investigating complaints of harassment by supervisors or managers.

Every complaint of harassment that is reported to the Human Resources Department will be investigated thoroughly, promptly, and in as confidential a manner as is possible, consistent with the Company's obligation to conduct a thorough investigation.

Hillard stated that Carter told him she would report Brewer's conduct to John Barrett (Barrett), CF's terminal manager. Several days later, Carter allegedly told Hillard that she had reported Brewer's conduct to Barrett, who allegedly said that he did not care what Brewer said as long as the acts were not done on company time. Hillard stated that after hearing what Barrett allegedly said he made no effort to pursue the matter because he felt no one cared. At trial, Carter denied giving Hillard a copy of the harassment policy, denied that Hillard complained to her about Brewer, and denied discussing Brewer with Barrett.

Hillard testified that he was hospitalized for two or three days in March 1993 for heart palpitations. His treating physician, Dr. Gus Bynum (Dr. Bynum) testified that Hillard's problems could be caused by high caffeine intake and stress. Dr. Bynum indicated that Hillard was given medication to control his heart rate. Dr. Bynum's office notes for May 14, 1993, showed that Hillard reported "Mots of problems with anxiety and stress; very tense; lots of conflict with dispatcher at work; likes his job but afraid he is going to explode at his boss." Dr. Bynum testified that Hillard never told him he was being sexually harassed at work. On the May 14 visit, Hillard appeared to be very stressed and anxious, but not depressed. At that time Dr. Bynum prescribed Xanax.

Hillard testified that when he returned to work after his hospitalization, Brewer's conduct continued. When he became increasingly upset to the point that his ability to drive was affected, he sought help from Dr. Ben Santa-Teresa (Dr. Santa-Teresa). Dr. Santa-Teresa saw Hillard on May 12, 1993. Dr. Santa-Teresa testified that Hillard complained of job-related stress and appeared to be very nervous and upset. Hillard indicated he was having a fight with management but did not give any details. Dr. Santa-Teresa diagnosed severe depression secondary to job stress, prescribed Xanax and Zoloft, and advised Hillard to stay off work for several weeks. In a letter to CF dated July 8 1993, Dr. Santa-Teresa indicated that Hillard "strongly believes he is being harrassed [sic] in his job by his supervisor."

Hillard was off work for approximately three weeks after seeing Dr. Santa-Teresa. When he returned to work he filed a workers' compensation claim and ultimately received benefits for the time he missed.

Hillard did not directly report Brewer's behavior to Barrett until August 6, 1993. According to Hillard, the harassment stopped after this meeting and Brewer began behaving like a gentleman.

We will address each of CF's and Brewer's claims separately with the exception of the claims regarding the jury instructions and apportionment of damages. Further facts will be developed where necessary to adequately address the issues raised.

I. APPEAL OF JEFF BREWER

A. WAS BREWER ENTITLED TO JUDGMENT AS A MATTER OF LAW ON HILLARD'S CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?

The tort of intentional infliction of emotional distress, or outrage, was first recognized in Craft v. Rice, Ky., 671 S.W.2d 247 (1984). In that case, the Kentucky Supreme Court adopted the following portion of Section 46 of the Restatement (Second) of Torts:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (Second) of Torts, § 46(1)(1965). In order to recover, the plaintiff must show that defendant's conduct was intentional or reckless, that the conduct was so outrageous and intolerable so as to offend generally accepted standards of morality and decency, that a causal connection exists between the conduct complained of and the distress suffered, and that the resulting emotional stress was severe. Humana of Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1, 2-3 (1990). An action for outrage will not lie for "petty insults, unkind words and minor indignities"; the action only lies for conduct which is truly "outrageous and intolerable." Kroger Co. v. Willumber, Ky., 920 S.W.2d 61, 65 (1996).

Brewer contends that he was entitled to summary judgment as a matter of law because Hillard failed to satisfy the foregoing elements for the tort of outrage. In reviewing a motion for summary judgment, the record is to be viewed in a light which is most favorable to the non-moving party with all doubts being resolved in his favor. Steelvest, Inc. Scansteet Service Center, Ky., 807 S.W.2d 476 (1991). Only if "it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor should the motion for summary judgment be granted." Steelvest, 807 S.W.2d at 482. In reviewing the record in a light most favorable to Hillard, we are not persuaded that summary judgment was proper in this case.

First, it cannot be seriously argued that Brewer's conduct was anything but intentional. Even if we accept Brewer's argument that the purpose behind his conduct was to inject humor in the workplace and not to inflict emotional distress, the tort still lies where his conduct is reckless; i.e., where he intended his specific conduct and either knew or should have known that emotional distress would result. Testimony from other CF employees established that Brewer harbored a strong dislike for Hillard; therefore, the recklessness of his comments is easily seen.

As to whether...