CROWLEY v. N. AMERICAN TELECOMMUNICATIONS, 95-CV-1675

• Citation: 691 A.2d 1169
• Decision Date: 10 April 1997
• Docket Number: No. 95-CV-1675,95-CV-1675
• Parties: Michael CROWLEY, Sandra Crowley, Appellants, v. NORTH AMERICAN TELECOMMUNICATIONS ASSOCIATION, Matthew J. Boland, Appellees.
• Court: Court of Appeals of Columbia District

691 A.2d 1169

Michael CROWLEY, Sandra Crowley, Appellants, v. NORTH AMERICANTELECOMMUNICATIONS ASSOCIATION, Matthew J. Boland, Appellees.

No. 95-CV-1675.

District of Columbia Court of Appeals.

Argued November 20, 1996.

Decided April 10, 1997.

APPEAL FROM THE SUPERIOR COURT, GEOFFREY M. ALPRIN, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Frances F. Rogala, Washington, DC, for appellants.

Charles B. Molster, III, Washington, DC, for appellees.

Before WAGNER, Chief Judge, and RUIZ, and REID, Associate Judges.

WAGNER, Chief Judge:

Appellants, Michael Crowley and Sandra Crowley, husband and wife, appeal from an order of the trial court dismissing their complaint for damages against appellees, North American Telecommunications Association (NATA) and Matthew J. Boland. On appeal, the Crowleys challenge the trial court's dismissal of counts IV (intentional infliction of emotional distress), V (defamation) and VII (loss of consortium).¹ They also contend that the trial court erred in denying their motion for leave to amend Count VI of the complaint, which alleged a violation of 29 U.S.C. § 1161 et seq. (1994) (ERISA). We affirm the trial court's dismissal of the claim for intentional infliction of emotional distress. We reverse as to the remaining counts.

I.

The claims arise out of Michael Crowley's employment with NATA which commenced on May 9, 1994 and ended when NATA terminated him in September 1994. According to the allegations in the complaint, Crowley left a secure position to accept a contract of employment with NATA. Crowley was to be compensated, in part, by commissions based upon the amount of dues paid to the organization by new members. Crowley claimed that Boland, NATA's managing director and Crowley's supervisor, thwarted Crowley's efforts to increase NATA's membership. He contended that Boland refused to meet with him or include him in board meetings, ignored his presence, and treated him in a hostile and unprofessional manner. At the end of ninety days, Boland gave Crowley a poor performance evaluation which Crowley refused to sign, contending that it was unfair and motivated by Boland's hostility toward him. Boland terminated Crowley, providing initially as a reason, Crowley's refusal to sign the performance appraisal and subsequently, citing his poor performance. In a proceeding before the Office of Unemployment Compensation, where Crowley was seeking unemployment compensation benefits, the appeals examiner determined that Crowley did not leave his position with NATA voluntarily and that "the evidence as a whole fails to show any misconduct on [Crowley's] part." Crowley also alleged in his complaint that on or about March 1, 1995, Boland told his employees and former co-workers that an empty bullet casing had been found in the hallway which was probably left by Crowley and that this caused injury to his business and personal reputation.

II.

Crowley's claim for intentional infliction of emotional distress is based essentially upon the foregoing circumstances. Such circumstances are not the type for which liability may be imposed for this particular tort. See Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980) (Liability does not extend to "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities") (quoting RESTATEMENT (SECOND) OF TORTS § 46 (1965)). To prove a claim of intentional infliction of emotional distress, "a plaintiff must show (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff 'severe emotional distress.' " District of Columbia v. Thompson, 570 A.2d 277, 289-90 (D.C. 1990), cert. denied, 502 U.S. 942, 112 S.Ct. 380, 116 L.Ed.2d 331 (1991) (quoting Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.)) (quoting RESTATEMENT (SECOND) OF TORTS § 46 (1965)), cert. denied, 459 U.S. 912, 103 S.Ct. 221, 74 L.Ed.2d 176 (1982) (other citationsomitted). Liability will be imposed only for conduct which exceeds all bounds of decency and for acts which are regarded as "atrocious and utterly intolerable in a civilized community." Waldon, 415 A.2d at 1076 (citation and internal quotation marks omitted). Recovery is not allowed merely because conduct causes mental distress. Thompson, 570 A.2d at 290 (citations omitted).

In dismissing the complaint, the trial court properly determined that Crowley failed to allege conduct sufficiently outrageous and extreme to support a claim for intentional infliction of emotional distress. The circumstances leading to and surrounding Crowley's discharge from NATA, as alleged in the complaint, are insufficient as a matter of law to satisfy the standard for the claim. See Elliott v. Healthcare Corp., 629 A.2d 6, 9 (D.C. 1993). "Mere discharge of an employee is not 'conduct that goes beyond all possible bounds of decency and [is] regarded as atrocious and utterly intolerable in a civilized community.' " Id. (quoting Schoen v. Consumers United Group, Inc., 670 F. Supp. 367 (D.D.C. 1986)); see also Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 270 (D.C. 1993) (employee's dismissal without prior disciplinary procedures does not meet the standard for the tort of intentional infliction of emotional distress) (citations omitted). Essentially, Crowley alleges only that he was subjected to contempt, scorn and other indignities in the workplace by his supervisor and an unwarranted evaluation and discharge. While offensive and unfair, such conduct is not in itself of the type actionable on this tort theory. See Elliott, 629 A.2d at 9; Smith, 620 A.2d at 270. Therefore, the trial court properly dismissed count IV (intentional infliction of emotional distress) for failure to state a claim. See Wanzer v. District of Columbia, 580 A.2d 127, 129 (D.C. 1990) (dismissal for failure to state a claim is warranted when " 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief' ") (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

III.

The trial court also dismissed the count of the complaint alleging defamation (slander) on the ground that the complaint failed to set forth the actual language or substance of the alleged defamatory statement. Crowley alleged that on or about March 1, 1995, Boland told NATA's employees and Crowley's former co-workers that an empty bullet casing found in the hallway was probably left by Crowley. The trial court deemed the allegations to be inadequate to state a claim, citing in support of its ruling Watwood v. Credit Bureau, Inc., 68 A.2d 905 (Mun.App.D.C. 1949).

In Watwood, the plaintiff alleged that the defendants "furnished certain written reports and information" to an individual "in which the defendants made false and libelous statements as to the financial situation of the plaintiff, as to her marital status and other libelous information which was untrue and false." 68 A.2d at 905. Noting that the complaint contained neither the alleged defamatory language nor its substance, the court determined that these mere legal conclusions were insufficient to state a claim even under our liberalized standard of pleading. Id. at 906.

Crowley's complaint does not suffer from the same infirmity. Unlike Watwood's complaint, Crowley's complaint contains the substance of the alleged defamatory statement. It also sets forth the date and the identification by employment of the persons to whom Boland allegedly made the statement. The factual allegations are sufficient to permit the opposing party to form responsive pleadings, the principal reason that some courts demand a heightened standard of pleading in defamation cases. See Asay v. Hallmark Cards, Inc., 594 F.2d 692, 699 (8th Cir. 1979); Wiggins v. Philip Morris, Inc., 853 F. Supp. 470, 478 (D.D.C. 1994); Hoffman v. Hill and Knowlton, Inc., 777 F. Supp. 1003, 1005 (D.D.C. 1991). Construing the complaint in the light most favorable to Crowley, we can not say that " 'it appears beyond doubt that [Crowley] can prove no set of facts in support of his claim which would entitle him to relief.' "²McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C. 1979) (quoting Owens v. Tiber Island Condominium Ass'n, 373 A.2d 890, 893 (D.C. 1977) (quoting Conley, supra, 355 U.S. at 45-46, 78 S.Ct. at 101-02)).

NATA and Boland contend that they had a qualified privilege with respect to all of the alleged communications insofar as they were made concerning Crowley's job performance, employment status and related matters. "To be qualifiedly privileged the communication must be one made in good faith upon a subject matter 'in which the party communicating has an interest or in reference to which he has, or honestly believes he has, a duty to a person having a corresponding interest or duty. . . .' " Smith, supra note 2, 399 A.2d at 220 (quoting May Dep't Stores Co. v. Devercelli, 314 A.2d 767, 773 (D.C. 1973)). Qualified privilege is a defense to what would otherwise be considered to be defamatory. The defense of qualified privilege should be alleged and proved. Here, it is not clear from the complaint that the alleged defamatory statement was made under circumstances which indicate that the person who uttered it had a legitimate interest in making it to those who heard it. See id. (citing Collins v. Brown, 268 F. Supp. 198, 200 (D.D.C. 1967)). Therefore, dismissal of the claim on that basis would not be warranted given the allegations of the complaint and the posture of the case. Thus, we conclude that the trial court erred in dismissing count V (defamation).

IV.

In Count VI of the complaint, the Crowleys alleged that they sustained damages as a result of NATA's noncompliance with the provisions of 29 U.S.C. § 1161 et seq. (1994) (ERISA), which requires an employer to provide a discharged employee with information...