Mintz v. Bell Atlantic Systems Leasing Intern., Inc.

• Decision Date: 18 July 1995
• Docket Number: CA-CV,No. 1,1
• Citation: 183 Ariz. 550,905 P.2d 559
• Parties: , 131 Lab.Cas. P 58,065, 11 IER Cases 819 Tina MINTZ, a single woman, Plaintiff-Appellant, v. BELL ATLANTIC SYSTEMS LEASING INTERNATIONAL, INC., a foreign corporation, Robert Schoenlank and Jane Doe Schoenlank, husband and wife, Defendants-Appellees. 93-0218.
• Court: Arizona Court of Appeals

Page 559

905 P.2d 559

183 Ariz. 550, 131 Lab.Cas. P 58,065, 11 IER Cases 819

Tina MINTZ, a single woman, Plaintiff-Appellant, v. BELL ATLANTIC SYSTEMS LEASING INTERNATIONAL, INC., a foreign corporation, Robert Schoenlank and Jane Doe Schoenlank, husband and wife, Defendants-Appellees.

No. 1 CA-CV 93-0218.

Court of Appeals of Arizona Division 1, Department E.

July 18, 1995.

Review Denied Nov. 21, 1995.

[183 Ariz. 551] Schleier & Engle, P.C. by Bradley H. Schleier, Tod F. Schleier, Phoenix, for plaintiff-appellant.

Fennemore Craig, P.C. by Polly S. Rapp, Loral L. Deatherage, Phoenix, for defendants-appellees.

OPINION

NOYES, Judge.

After she failed to receive an expected promotion, Appellant Mintz suffered an emotional breakdown and later sued Appellee Bell Atlantic, her employer, and Appellee Schoenlank, her supervisor. The trial court granted Appellees' motion to dismiss. We affirm because we conclude that 1) there is no tort claim for wrongful failure to promote, 2) the complaint does not state a claim for intentional infliction of emotional distress, and 3) a supervisor acting in the course and scope of employment does not tortiously interfere with a plaintiff's contract of employment when he fails to promote her.

FACTS AND PROCEDURAL HISTORY

On appeal from a motion to dismiss, we consider the facts alleged in the complaint to be true, and we view them in a light most favorable to the plaintiff to determine whether the complaint states a valid claim for relief. See Mack v. McDonnell Douglas Helicopter Co., 179 Ariz. 627, 628, 880 P.2d 1173, 1174 (App.1994).

In July 1987, Bell Atlantic hired Mintz as a computer equipment broker. In December 1989, Mintz complained to the Equal Employment Opportunity Commission ("EEOC") that Bell Atlantic was guilty of sex discrimination by failing to promote her and promoting a male instead. This complaint was resolved by Mintz and Bell Atlantic in 1990. In June 1991, Mintz once again did not receive an expected promotion (to a job involving duties she had been performing for several months). Mintz thought she was more qualified than the male hired by Schoenlank for the position. As a result of not being promoted, Mintz was hospitalized for severe emotional and psychological problems, and she began receiving short term disability benefits.

About three months later, Bell Atlantic stopped Mintz's disability benefits and directed her to return to work on September 11, although Bell Atlantic was aware that Mintz's physician had recommended that she not return to work until October 1. Mintz returned to work as ordered on September 11, but the stress put her back into the hospital the following day. On September 13, Bell Atlantic delivered a letter to Mintz in the hospital informing her that her job duties were being reassigned.

Mintz promptly filed a sex discrimination complaint with the Civil Rights Division of the Arizona Attorney General's Office ("ACRD"), and in June 1992, she filed this lawsuit in Superior Court. After ACRD issued a right-to-sue letter in July 1992, Mintz filed an amended complaint in Superior Court, naming Bell Atlantic in Counts 1 through 4 and Schoenlank in Count 5. The five counts are as follows:

Count 1: Public policy tort for wrongful failure to promote because of sex discrimination;

Count 2: Public policy tort for wrongful failure to promote in retaliation for filing the EEOC complaint;

Count 3: Sex discrimination (Arizona Civil Rights Act);

Count 4: Intentional infliction of emotional distress;

Count 5: Intentional interference with contractual relations.

In granting Appellees' motion to dismiss, the trial court concluded: 1) the public policy theory relied on in Counts 1 and 2 applied only in wrongful discharge cases; existing discrimination laws provided the remedy for wrongful failure-to-promote; 2) Bell Atlantic's alleged conduct was not so extreme and outrageous as to state a claim for intentional infliction of emotional distress; and 3) because Mintz alleged that Schoenlank acted in the course and scope of employment, he was acting as the company and could not interfere with his own contract when he failed to promote her.

After the trial court dismissed Counts 1, 2, 4, and 5, the parties stipulated to dismissal of Count 3, judgment was entered, and this timely appeal followed. We have jurisdiction pursuant to Ariz.Rev.Stat.Ann. ("A.R.S.") sections 12-120.21(A)(1) (1992) and 12-2101(B) (1994).

ANALYSIS

A. Public Policy Torts

Mintz argues that the trial court failed to follow the broad policy pronouncements of Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985), in which the Arizona Supreme Court recognized a tort for wrongful discharge from employment when the reason for the discharge violates public policy. Mintz, in effect, asks us to create the tort of wrongful failure-to-promote.

A similar request was presented in Burris v. City of Phoenix, 179 Ariz. 35, 875 P.2d 1340 (App.1993). In Burris, the plaintiff proposed that a tort action for wrongful failure-to-hire arose from a violation of public policy found in the Arizona Civil Rights Act ("ACRA"). Id. at 43, 875 P.2d at 1348. Burris rejected this theory, citing the lack of any state or federal authority recognizing the tort of wrongful failure-to-hire. Id. We follow Burris, as did another recent panel of this Court in Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22, 33, 875 P.2d 1327, 1338 (App.1994).

Mintz argues that Broomfield v. Lundell, 159 Ariz. 349, 767 P.2d 697 (App.1988), supports her argument because that case, after finding that ACRA "clearly established a public policy against employment discrimination," held that ACRA "does not preempt a tort action for wrongful discharge." Id. at 357, 767 P.2d at 705. As noted by Burris, however, to hold that ACRA does not preempt a tort action is quite different from holding that it creates a tort action. Burris, 179 Ariz. at 43, 875 P.2d at 1348.

The tort of wrongful discharge was not created by ACRA, see Bernstein v. Aetna Life and Casualty, 843 F.2d 359, 365 (9th Cir.1988); it existed before Wagenseller and independently of ACRA. See Fleming v. Pima County, 141 Ariz. 149, 153-54, 685 P.2d 1301, 1305-06 (1984) (tort of wrongful discharge protects both at-will and non-at-will employees). The tort of wrongful failure-to-promote does not presently exist, and nothing in ACRA, Wagenseller or Broomfield provides reason or authority for creating it.

We know of no court that recognizes the tort of wrongful failure-to-promote. Zimmerman v. Buchheit of Sparta, Inc., 245 Ill.App.3d 679, 615 N.E.2d 791, 615 N.E.2d 791 (1993), recognized the tort of retaliatory demotion, but that case was reversed by the Illinois Supreme Court. See Zimmerman v. Buchheit of Sparta, Inc., 164 Ill.2d 29, 206 Ill.Dec. 625, 645 N.E.2d 877 (1994); see also Ludwig v. C & A Wallcoverings, Inc., 960 F.2d 40 (7th Cir.1992) (Illinois tort of wrongful discharge does not include retaliatory demotion); Hindo v. University of Health Sciences/Chicago Medical Sch., 237 Ill.App.3d 453, 178 Ill.Dec. 207, 604 N.E.2d 463 (1992) (no cause of action for retaliatory demotion).

Mintz argues that Broomfield observed that ACRA's administrative and judicial remedies for employment discrimination may, at times, be inadequate. Broomfield, 159 Ariz. at 357, 767 P.2d at 705. That fact may be of assistance in deciding whether ACRA preempted the existing tort of wrongful discharge, but it is not of assistance in determining whether there is an existing tort action for wrongful failure-to-promote. We agree with the trial court that the tort of wrongful failure-to-promote does not exist and that any remedies for this conduct are therefore statutory. See A.R.S. §§ 41-1463(B) (Supp.1994), 41-1464(A) (1992), 41-1481 (Supp.1994).

As a policy reason for not creating the tort of wrongful failure-to-promote, we reiterate the concerns expressed in Ludwig:

Recognizing a retaliation tort for actions short of termination could subject employers to torrents of unwarranted and vexatious suits filed by disgruntled employees at every juncture in the employment process. And why stop at demotions? If, as Ludwig argues, a demotion raises the same policy concerns as a termination, so too would transfers, alterations in job duties, and perhaps even disciplinary proceedings. The potential for expansion of this type of litigation is enormous.

960 F.2d at 43; see also Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, 401 (1988) ("The expansion of tort remedies in the employment context has potentially enormous consequences for the stability of the business community.").

B. Intentional Infliction of Emotional Distress

The elements of this cause of action are:

[F]irst, the conduct by the defendant must be "extreme" and "outrageous"; second, the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct; and third, severe emotional distress must indeed occur as a result of defendant's conduct.

Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987) (emphasis in original) (citing RESTATEMENT (SECOND) OF TORTS § 46(1) (1965)). The trial court must determine whether the acts complained of are sufficiently extreme and outrageous to state a claim for relief. Patton v. First Fed. Sav. & Loan Ass'n of Phoenix, 118 Ariz. 473, 476, 578 P.2d 152, 155 (1978). A plaintiff must show that the defendant's acts were "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." Cluff v. Farmers Ins. Exchange, 10 Ariz.App. 560, 562, 460 P.2d 666, 668 (1969) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d). Only when reasonable minds could differ in determining whether conduct is sufficiently extreme or outrageous does the issue go to...