Ford v. Revlon, Inc., CV
| Decision Date | 24 February 1987 |
| Docket Number | No. CV,CV |
| Citation | 153 Ariz. 38,734 P.2d 580 |
| Parties | , 43 Fair Empl.Prac.Cas. (BNA) 213, 42 Empl. Prac. Dec. P 36,850, 55 USLW 2490, 1 IER Cases 1571 Leta Fay FORD, a single woman, Plaintiff-Appellee, v. REVLON, INC., Defendant-Appellant. 86-0148-PR. |
| Court | Arizona Supreme Court |
David F. Gomez, Phoenix, for plaintiff-appellee.
Allen, Kimerer & LaVelle by John V. Fels, Phoenix, and William H. Brown, III, Philadelphia, Pa., for defendant-appellant.
This is a petition for review of a memorandum decision of the court of appeals which reversed a trial court judgment in petitioner Leta Fay Ford's favor. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 12-120.24 and Rule 23, Ariz.R.Civ.App.P., 17A A.R.S.
We granted the petition for review to consider three questions raised by Ford. Because of the disposition of the case, we find we need consider only two of these questions:
1. May an employer be held independently liable when its supervisor is found not guilty of intentional infliction of emotional distress?
2. May the failure of an employer to take appropriate action in response to an employee's complaints of sexual harassment by a supervisory employee constitute the tort of intentional infliction of emotional distress?
Although not considered by the court of appeals because its disposition made it unnecessary, the following questions were raised by the parties and briefed by them. We consider them now.
3. Is this matter controlled by Arizona's Workers' Compensation Act?
4. Is Ford entitled to attorney's fees?
Leta Fay Ford worked for the purchasing department of Revlon, Inc. (Revlon) in Phoenix, Arizona. She began her employment in 1973 as a secretary. She worked her way up to junior buyer and buyer positions over the ten years of her employment at Revlon. In October 1979, Revlon hired Karl Braun as the new manager for the purchasing department, which made him Ford's supervisor.
On 3 April 1980, Braun invited Ford to a dinner ostensibly to discuss business away from the office. Ford agreed and met Braun at a Phoenix restaurant. The business discussion, however, turned to more personal topics. At the end of the dinner, Ford started to leave. Braun told her that she was not going anywhere and to sit down because he planned to spend the night with her. When Ford rejected his advances, Braun told her, "you will regret this." Ford testified at trial that after this incident her working relationship with Braun was strained and uncomfortable. Ford did not report the dinner incident nor the adverse working atmosphere to Revlon management.
On 3 May 1980, Revlon held its annual service awards picnic. Braun followed Ford for most of the day. At one point, Braun approached Ford as she was sitting on a picnic table with friends and put his face next to hers and said, "I want to fuck you, Leta." Ford replied, "never in a million years" to which Braun continued, "I am going to fuck you if it takes me ten years." Later that afternoon, as Ford and a friend were leaving the ladies room, Braun grabbed Ford and restrained her in a chokehold with his right arm, pulling Ford back a few steps. Braun ran his left hand over Ford's breasts, stomach, and between her legs. Braun repeatedly told Ford, As the struggle continued, Ford's friend intervened by yanking Braun's arm away which loosened his hold enough so that Ford could wrench herself free and run away.
Later in May of 1980, Ford began a series of meetings with various members of Revlon management to report her complaints. Ford first spoke with the Phoenix Revlon comptroller, Robert Lettieri, who had authority to recommend hiring, firing, discipline, and promotions. Ford told him about the incidents with Braun and that she was afraid of Braun and wanted help. Lettieri said that he would speak to someone in personnel about her complaint and that she also should talk to personnel.
In early June of 1980, Ford spoke to Cecelia Domin, the personnel manager for the clerical and technical group in the Phoenix plant. In the Revlon management hierarchy, Domin reported directly to the director of personnel and worked with the plant manager of executives. When meeting with Domin, Ford was very emotional, her hands were shaking, and she was crying. Ford told Domin about the incidents and said that she was afraid of Braun. On 23 June 1980, Ford spoke to Robert Kosciusko, the personnel manager for executives. Ford also told him about the incidents, that she was afraid of Braun, and that the strain was making her sick.
In August of 1980, Ford met again with Domin and additionally with Martin Burstein, the director of personnel at the Phoenix plant. Again Ford complained about the incidents and told them that she was afraid of Braun. Burstein told Ford that he would talk to a Revlon vice president and that he would get back to her. Also in August, Ford spoke to John Maloney, a manager in receiving and stores. Maloney suggested that Ford contact Marie Kane at Revlon headquarters in New Jersey. Kane, a manager of human resources, was a "trouble shooter" and a veteran of the Phoenix personnel department.
In November of 1980, Ford telephoned Kane in New Jersey to report her concerns about Braun and her frustrations about the work situation. At this time, it had been six months since Ford first complained of Braun's conduct and no action had been taken. Kane then reported the details of her conversation with Ford to her boss, David Coe, the vice-president of industrial relations and operations. Kane also informed Coe that Ford was becoming ill because of the problem. Coe's response was that the matter was not their concern at the corporate level and that the matter should be sent back to the local level and handled in Phoenix. Coe instructed Kane to telephone Burstein so that he could solve the problem. Kane did speak to Burstein, who promised to take care of the problem immediately.
When, as of December 1980, no action had been taken on Ford's complaint, Ford telephoned Kane again and informed her that Braun was continuing his harassment by calling her into his office and telling her that he wanted to destroy her, that she made him nervous, and that so long as she worked for him she was never going to go anywhere. He also called her into his office and did not allow her to sit down and would stare at her and not speak to her. According to Ford, Kane responded that it was a lot to absorb and that she would have to talk with someone else about it and that she would get back to Ford. After a few days had elapsed and Kane had not telephoned Ford, Ford again called Kane, who was out, and left a message. It was January 1981 before Kane returned Ford's call. Kane told Ford that the situation was too hot for her to handle and that she did not want to be involved. Kane suggested that Ford put the matter in the back of her mind and try to forget the situation.
Around this time, Ford also contacted Gene Tucker, a corporate Equal Employment Opportunity (EEO) specialist, and asked him for help. Tucker said that he would have to talk to Harry Petrie, the vice-president of industrial relations and personnel in New York. Tucker did not get back to Ford.
During the time of the harassment, Ford developed high blood pressure, a nervous tic in her left eye, chest pains, rapid breathing, and other symptoms of emotional stress. Ford felt weak, dizzy, and generally fatigued. Ford consulted a physician about her condition.
On 23 February 1981, Ford submitted a written request for a transfer out of the purchasing department. On 24 February 1981, Braun placed Ford on a 60-day probation because of her allegedly poor work performance. On 25 February 1981, a meeting finally was held in personnel at Ford's demand so she could have something done about her situation with Braun. Ford was able to have Tucker arrange a meeting with them and with Domin and Burstein. Ford again gave the details of her complaint against Braun and her fear of him. Ford also submitted a handwritten complaint which read in part:
I want to officially register a charge of sexual harassment and discrimination against K. Braun.
I am asking for protection from Karl Braun. I have a right to be protected.
I am collapsing emotionally and physically and I can't go on.
At this meeting on 25 February 1981, Braun was called in and confronted. After the meeting, Burstein and Domin told Ford that Braun would be closely monitored. Burstein also testified that he investigated Ford's allegation, which he said took him about three weeks.
Not until three months later, on 8 May 1981, however, did Burstein submit a report on Ford's complaint to Vice-President Coe; the report confirmed Ford's charge of sexual assault and recommended that Braun be censured. On 28 May 1981, a full year and one month after Braun's initial act of harassment, Braun was issued a letter of censure from Revlon.
In October of 1981, Ford attempted suicide.
On 5 October 1981, Revlon terminated Braun. Braun testified at trial that the reason given him for his termination was that he did not fit into the Revlon organization, partially because of the way he handled the "Ford situation."
In April of 1982, Ford sued both Braun and Revlon for assault and battery, and for intentional infliction of emotional distress. At trial, two written personnel policies were admitted as evidence. One policy concerning employee complaints, which became effective as of 1 July 1976, provided in part the following:
I. Policy
Any employee who has a complaint about any aspect of his or her employment is entitled to have the complaint heard, investigated and, if possible, resolved.
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II. Procedure
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C. Legitimate complaints are to be satisfied as promptly and as fully as possible. When a complaint is not valid, or when the resolution...
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