Gibson v. Hummel, 48216
| Decision Date | 22 January 1985 |
| Docket Number | No. 48216,48216 |
| Citation | 688 S.W.2d 4 |
| Parties | 118 L.R.R.M. (BNA) 2943 Pamela GIBSON, Respondent, v. Voleta HUMMEL and the Southland Corporation, Appellants. |
| Court | Missouri Court of Appeals |
Shepherd, Sandberg & Phoenix, Kenneth W. Bean, Stephen J. Potter, St. Louis, for appellants.
Arthur G. Muegler, Jr., St. Louis, for respondent.
The Southland Corporation (employer) and Voleta Hummel (supervisor) appeal from a judgment awarded Pamela Gibson (employee) on her claims for intentional infliction of emotional distress and violation of the "service letter" statute. The jury awarded employee $125,000.00 actual damages jointly against both defendants, and punitive damages of $400,000.00 against employer, and $30,000.00 against supervisor, on employee's claim for intentional infliction of emotional distress, and actual damages of $5,000.00 against employer for the service letter violation. We reverse.
Employer and supervisor challenge submissibility. Employee was an employee at will, and as such could be fired for any or no reason. Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981); Ising v. Barnes Hospital, 674 S.W.2d 623, 625-26 (Mo.App.1984). Employer and supervisor claim that employee only proved wrongful discharge, recovery for which is barred. Employee contends the conduct of defendants, in light of the attendant circumstances, was extreme and outrageous, and intentionally caused emotional distress, under the theory of § 46, Restatement (2d) of Torts (1965). Pretsky v. Southwestern Bell Tel. Co., 396 S.W.2d 566 (Mo. banc 1965). Assuming, without deciding, a case for wrongful discharge may ripen into the tort of outrage, our inquiry is directed to the question of whether employee made a submissible case. We review the evidence in a light most favorable to the verdicts. Duke v. Gulf & Western Mfg. Co., 660 S.W.2d 404, 409 (Mo.App.1983).
Employer, who owns the registered trade mark "7-Eleven," is the world's largest operator and franchisor of convenience stores. Employee was a full-time clerk in one of these stores, located at the Colonnade Shopping Center in St. Louis County, in supervisor's area. Employee claims the conduct of supervisor and employer, occurring from April 24 to May 4, 1982, when her employment ended, was extreme and outrageous, and intentionally and recklessly caused her severe emotional distress.
The Colonnade Store had experienced severe inventory shortages for several months. Employer was aware inventory shortages, which regularly occurred at its stores, was due to several causes, including errors in accounting, computing, or auditing (counting) inventory, errors or theft by vendors, customer theft, manager errors or negligence, and employee errors, grazing (in-store consumption of items without payment) and theft. A procedure was established to control inventory shortages. It was explained in this procedure that employee theft and grazing accounted for 83% of the total of inventory shortages. Employer's zone manager and district manager, witnesses called by employee, could not substantiate that figure, but did testify, in their experience, employee theft was the major inventory control problem, accounting for more than 50% of shortages. They believed the 83% figure was an industry--wide figure, which they followed as true. The brunt of the inventory control procedure fell on the store managers, who were taught not to trust the employees. Spy techniques were used by the managers to discover the causes of shortages, to preserve their own jobs. Polygraphs were available, but the managers were told that good management was the real answer to their problems.
Supervisor had serious inventory control problems in her stores. Her job performance, rated about seven weeks before employee lost her job, was unsatisfactory, in part because inventory losses in her stores were 1.9% of sales as opposed to a generally allowable 1% of sales. This was also a factor in a demotion of supervisor's immediate superior which occurred after April of 1982.
The Colonnade Store had experienced several months of inventory losses over the allowable limit before April of 1982. An audit on April 15, covering the first 15 days of the month, showed a shortage of $882.00. A second audit, performed eight days later because of the large shortage in the first audit, showed an additional shortage of over $1,200.00. These audits did not reveal the cause of the shortages, or reveal what was missing. After checking the paper work, and discovering no cause of the shortages, supervisor and her immediate superior decided to polygraph the three full-time employees of the store. They had no factual basis to suspect employee of complicity in the shortages.
Employee had worked for employer for over a year. She had received a promotion, several merit raises, and an award from employer. She was an employee at will. On duty when supervisor came into the store right after the audit, employee was told "heads were going to roll." The audit was unacceptable and something was going to be done about it. Employee was indecisive about whether the store manager or anyone else in the store heard this conversation. In a second, later conversation, supervisor again complained about the audit, and stated she believed an employee in the store was stealing, and the full-time employees would have to take polygraph tests or be fired. Again, employee was indecisive as to whether anyone overheard this conversation.
Supervisor selected the polygrapher, and drove the three employees to their location. Employee did not remember signing the consent and release form admitted into evidence, but stated she did not voluntarily consent to take the test. Preliminary questions about employee's drug or alcohol use, bill-paying practices, and whether she was self supporting were highly offensive to her. The small polygraph room made her claustrophobic. The polygraph itself looked like an "octopus" that would shock or electrocute her. She went in and out of consciousness during the test, and was involuntarily tapping her foot and breathing deeply. When asked to stop these movements, she could not do so.
Polygrapher reported the test was inconclusive with signs of deception, and employee had confessed to taking approximately $100.00 worth of merchandise during her employment. Supervisor confronted employee with this report and gave her the choice of quitting, or being fired and having the police called. Employee denied the charges, and pleaded for more time, but this was not granted. She then "quit."
Employee then consulted a psychiatrist, who diagnosed her as having a major mental disorder arising from the termination and surrounding circumstances. She was alleged to have been susceptible to stress, and described by fellow employees as "nervous," "high strung," "up-tight," "very hyper" and particularly sensitive to work related criticism. It was alleged that defendant knew of this; however, supervisor testified employee did not seem abnormally nervous.
The Supreme Court in Pretsky essentially adopted § 46, Restatement (2d) of Torts (1965), providing;
(1) 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.
There are three elements of proof:
(1) defendant's conduct must be extreme and outrageous;
(2) defendant acts in an intentional or reckless manner; and
(3) by reason of said acts, plaintiff is caused to suffer severe emotional distress for which severe bodily harm results.
LaBrier v. Anheuser Ford, Inc., 612 S.W.2d 790, 793 (Mo.App.1981); but see Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983) (modifying the bodily harm requirement).
For a plaintiff to recover, a defendant's conduct must have been extreme and outrageous. Comment d to § 46, Restatement (2d) of Torts (1965), delineates the type of conduct which is required:
d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of...
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