Grandchamp v. United Air Lines, Inc.

• Decision Date: 18 August 1988
• Docket Number: No. 86-2338,86-2338
• Citation: 854 F.2d 381
• Parties: 49 Empl. Prac. Dec. P 38,906, 3 Indiv.Empl.Rts.Cas. 1098 Harold W. GRANDCHAMP and Peter J. Seewald, Plaintiffs-Appellees, v. UNITED AIR LINES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 381

854 F.2d 381

49 Empl. Prac. Dec. P 38,906,

3 Indiv.Empl.Rts.Cas. 1098

Harold W. GRANDCHAMP and Peter J. Seewald, Plaintiffs-Appellees, v. UNITED AIR LINES, INC., Defendant-Appellant.

No. 86-2338.

United States Court of Appeals Tenth Circuit.

Aug. 18, 1988.

Edward J. Rau, Denver, Colo., for plaintiffs-appellees.

Patrick F. Gartland (Catherine M. Meyer, with him on the briefs), Montgomery Little Young Campbell & McGrew, P.C., Englewood, Colo., for defendant-appellant.

Before HOLLOWAY and ANDERSON, Circuit Judges, and DUMBAULD, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

United Air Lines, Inc. ("United") appeals from a jury verdict assessing damages for the intentional infliction of emotional distress arising from employment decisions involving appellees Harold Grandchamp and Peter Seewald. We find that the trial court erred in submitting the claim to the jury and reverse the judgment.

I.

Grandchamp and Seewald, were employed by United as Supervisors of Inflight Services, in Denver, Colorado. Grandchamp and Seewald were responsible for the supervision and management of United flight attendants. In 1981, United initiated a reorganization of its inflight services functions and the position of Supervisor of Inflight Services was eliminated. The functions of this former position were replaced by three new positions, and former Supervisors of Inflight Services, including Grandchamp and Seewald, were invited to compete for the new positions. At the time of the reorganization, Grandchamp was 49 years old and had worked for United for 31 years, Seewald was also 49 years old, and had worked for United for more than 21 years.

To fill the new positions, United developed a special selection process consisting of a "special assessment," designed to "measure observed behaviors on the job" and relate those behaviors to the characteristics required for the new positions, and a "structured interview," also designed to identify and measure the characteristics required for the new positions. The process resulted in a numerical score and candidates were ranked according to those scores. See R.Vol. II at 238-45. This special process was used only to review the incumbent Supervisors of Inflight Services who were applying for the new positions. ¹

After reviewing the numerical scores and ranking of the candidates, United determined that the low scorers, including Grandchamp and Seewald, would not be offered the new positions. Grandchamp and Seewald were replaced with younger employees with less seniority.

Grandchamp and Seewald were informed by their Denver supervisor that they had not been selected for the new positions. Both were eligible to return to their last non-management position with United. Grandchamp was offered, and accepted, a position as a passenger ticket agent in Denver. Seewald was offered a job as a schedule planner in Los Angeles or Miami, but declined to move. Instead, he accepted six months severance pay and a United seminar on job-hunting.

Subsequently, both men brought actions against United claiming violations of the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621, et seq., and damages resulting from the intentional infliction of emotional distress (an action under Colorado common law frequently referred to as "outrageous conduct" or "emotional distress"). ² The case went to trial on these two claims and the jury found in favor of United on the ADEA claim, and for the plaintiffs, Grandchamp and Seewald, on the intentional infliction of emotional distress claim, awarding actual and punitive damages to both men. ³ Grandchamp and Seewald moved for a judgment notwithstanding the verdict on the ADEA claim; that motion was denied and they do not appeal. United moved for a judgment notwithstanding the verdict, or in the alternative for a new trial, on the award for emotional distress. The district court denied that motion and United has appealed. United urges this court to reverse the jury's verdict in favor of Grandchamp and Seewald, arguing (1) that the claim for intentional infliction of emotional distress is barred by the Colorado Workmen's Compensation statute; (2) that the plaintiffs' claims were in fact, wrongful discharge claims, impermissible under Colorado law; (3) that United's conduct was not outrageous; and (4) that Grandchamp and Seewald failed to offer sufficient evidence of emotional distress. After carefully reviewing the arguments and the trial record, we conclude, as a matter of law, that United's conduct was not outrageous, and that the trial court should have directed a verdict for United on the outrageous conduct claim. Accordingly, we reverse and have no need to consider the other arguments. ⁴

II.

"In reviewing a district court's denial of a motion for a judgment n.o.v., we may find error only when the evidence points but one way and is susceptible to no reasonable inferences sustaining the position of the party against whom the motion is made." Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988) (citing EEOC v. Prudential Federal Savings & Loan Ass'n, 763 F.2d 1166, 1171 (10th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985)).

The tort of intentional infliction of emotional distress was adopted by the Colorado Supreme Court in Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970). The Colorado Court adopted the Restatement (Second) of Torts Sec. 46 (1965) in defining this action. Under the Restatement, liability may be found only "where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Rugg, 476 P.2d at 756. (quoting Restatement Sec. 46, comment d); see also Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1158-59 (10th Cir.1981) (en banc) (discussing Colorado law), cert. denied, 464 U.S. 824, 104 S.Ct. 92, 78 L.Ed.2d 99 (1983); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo.1988) (citing Rugg ). Thus, in order to be liable for the intentional infliction of emotional distress, the defendant's conduct must be more than unreasonable, unkind or unfair; it must truly offend community notions of acceptable conduct. Compare, e.g., Malandris 703 F.2d at 1165 (affirmed jury award for outrageous conduct) with Swanson v. Bixler, 750 F.2d 810 (10th Cir.1984) (affirmed dismissal of outrageous conduct claim).

Both the court and the jury have a role in assessing such claims. "The jury determines the ultimate question whether conduct is outrageous, but the trial court decides whether the issue should be submitted to the jury in the first instance, based on whether reasonable persons could differ on the conduct being outrageous." Montgomery Ward & Co. v. Andrews, 736 P.2d 40, 46 (Colo.Ct.App.1987) (citations omitted); Churchey, 759 P.2d at 1350.

United argues first that the district court failed to make the required threshold determination of outrageousness. That is simply wrong. The district court addressed the issue twice. First, in denying United's motion for summary judgment on the emotional distress claim, the district court concluded: "If a jury were to conclude that the defendant's entire management reorganization was a mere scam to hide its efforts to dismiss older employees who had been with the company for years, a reasonable person could find 'outrageous' conduct." R.Vol. I, Tab 2 at 5. The court made a similar finding in response to United's motion for a directed verdict on the emotional distress claim. R.Vol. III at 720-21.

United further argues that, if the district court did make the requisite threshold determination of outrageous conduct, that determination was in error. We agree. At the close of plaintiffs' case, there was no evidence upon which the jury could find United guilty of outrageous conduct toward Grandchamp and Seewald. The trial court should have directed a verdict for United on that claim.

The Colorado Supreme Court's recent decision in Churchey, reaffirms the central holding of Rugg, that outrageous conduct claims will lie only in circumstances that are truly outrageous. In Churchey, the plaintiff was discharged, according to her employer, "because of 'dishonesty,' " specifically because she 'failed and refused to report her medical clearances to return to work.' " Churchey, 759 P.2d at 1338. Churchey brought suit against Coors claiming wrongful discharge, defamation and outrageous conduct. ⁵ The Colorado Supreme Court affirmed a summary judgment for Coors on the outrageous conduct claim:

Outrageous conduct can occur in an employment situation. However, Churchey's assertion that Coors' failure to follow its own personnel policies amounted to outrageous conduct confuses breach of contract with outrageous conduct. While the average member of the community may not approve of someone who breaches a contract, such conduct is not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and ... (to cause) an average member of the community ... to exclaim 'Outrageous!' " The trial court correctly concluded that no reasonable person could have found Coors' conduct to be outrageous! We reject Churchey's invitation to expand our definition of outrageous conduct. The framework set forth in Rugg, 476 P.2d 753, is sufficient for analyzing her claim and summary judgment on this claim is affirmed.

Churchey, 759 P.2d at 1350-51 (citations, footnote omitted). ⁶

The court's reasoning in Churchey is also applicable to the claims advanced by Grandchamp and Seewald. Federal law provides a remedy for age discrimination. In this case, Grandchamp and Seewald allege nothing more than age discrimination; the manner in which they were discharged by United was not particularly unfair or abusive and is not comparable to those...