Petersen v. Sioux Valley Hosp. Ass'n, 17570

• Citation: 125 Lab.Cas.P 57,486 N.W.2d 516
• Decision Date: 22 May 1992
• Docket Number: No. 17570,17570
• Parties: 125 Lab.Cas. P 57,383, 7 Indiv.Empl.Rts.Cas. 1562 Nalonni PETERSEN, Plaintiff and Appellant, v. SIOUX VALLEY HOSPITAL ASSOCIATION, Defendant and Appellee.
• Court: Supreme Court of South Dakota

Page 516

486 N.W.2d 516

125 Lab.Cas. P 57,383, 7 Indiv.Empl.Rts.Cas.

1562

Nalonni PETERSEN, Plaintiff and Appellant, v. SIOUX VALLEY HOSPITAL ASSOCIATION, Defendant and Appellee.

No. 17570.

Supreme Court of South Dakota.

Argued Jan. 14, 1992.

Decided April 22, 1992.

Rehearing Granted May 22, 1992.

Rita Haverly Allen, Hagen, Wilka, Schreier & Archer, P.C., Sioux Falls, for plaintiff and appellant.

Michael L. Luce, Roberto A. Lange, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee.

SABERS, Justice.

Employee appeals from summary judgment on her claims for (1) intentional infliction of emotional distress and (2) wrongful termination. We reverse and remand on (1) and affirm on (2).

FACTS

Nalonni Petersen (Petersen) was employed by Sioux Valley Hospital Association (Hospital) in August of 1984. She worked as a technician in a nursing department, but was transferred to the pharmacy department in 1985. Petersen worked as a Technician I in that department until her termination in 1988. Her duties included packaging pharmaceuticals, filling carts with pharmaceuticals and making runs throughout the hospital with the carts. Additionally, Petersen was periodically responsible for entering pharmacy credits and charges on the computer.

When she first began working and again in October of 1984, Petersen signed a statement of understanding, which states in part:

I understand that if my work proves unsatisfactory during the first six (6) months of employment, the hospital reserves the right to discontinue my services at any time without notice.

. . . . .

I understand and agree to all the above statements and have received an Employee Personnel Handbook.

Petersen received an employee handbook which provided that procedures were subject to change. The handbook was changed twice during Petersen's employment. The version in effect during 1988 states in part:

The employee handbook and its provisions are designed to serve only as a guide to the hospitals policies and rules and not as a contract of employment. Employment can be terminated by the employee or the employer at any time for any reason.

(emphasis added). The handbook also provided: "Employees may be dismissed for any conduct or performance that is deemed contrary to the best interests of the hospital."

In July of 1988, Gary Karel (Karel), director of the pharmacy department, called Petersen to his office. Karel informed her that complaints had been made against her by fellow employees. Petersen felt these complaints were precipitated by two people--Lynette Chase (Chase) and Pam Cox (Cox). The complaints were that Petersen was not doing her share of the work, leaving work early and missing work altogether. Petersen claims that all of her leaving and absences stem from approved holidays, snow days, illness/medical problems, or ill children. According to her, all of these absences were either pre-approved or not criticized. Karel suggested that she talk with Chase and Cox concerning her medical problems (severe headaches, strep throat and other illnesses) and to attempt to settle any difficulties. However, Petersen expressed her fear and reluctance of discussing these matters in a group setting, and Karel noted this in his report. An incident report was prepared as part of this meeting which was read and signed by Petersen.

Petersen was called to several more meetings. On each occasion, her medical problems and absenteeism were discussed. However, despite Karel's advice, Petersen did not talk with Chase about her medical problems. Relations between Petersen and several of her co-workers did not improve. As a result, Karel called a meeting at which Petersen, Cindy Haenfler (supervisor), Brian Kaatz (neutral party), Chase, and Kathy Sideras (co-worker) were present. Petersen claims that she was not informed of the nature of the meeting prior to its start. Chase and Sideras both aired grievances against Petersen, as she did against them.

Relations did not improve following this September 7 meeting. Petersen is alleged to have hung up twice on Chase while attempting to transfer calls for her and failed to complete her computer work prior to leaving on one occasion. From the time Karel first confronted Petersen with her absenteeism in July, she missed work five times--three times in August and twice in September.

On September 20, 1988, Karel showed Petersen her termination notice. The notice listed three reasons for termination: (1) Petersen's continued inability to get along with Chase; (2) Petersen's failure to enter credits and charges on the computer on September 23, 1988, and (3) habitual absenteeism. Following this notice, Petersen followed the Hospital grievance procedure, but her termination was upheld.

Petersen claims she suffered severe emotional distress as a result of Karel's conduct. She sued Hospital for (1) intentional infliction of emotional distress and (2) wrongful termination. One year prior to trial, the court granted summary judgment on the intentional infliction of emotional distress claim in favor of Hospital. Following Petersen's testimony at trial on the wrongful termination claim, the court granted summary judgment for Hospital stating that Petersen could not claim a version of the facts more favorable than her own testimony. Petersen appeals, claiming the court erred in granting summary judgment in favor of Hospital on both issues and in (3) refusing to allow her to present evidence at trial of previous employee evaluations.

Summary Judgment.

Petersen claims the court erred by granting Hospital summary judgment on the wrongful termination claim and on the intentional infliction of emotional distress claim.

Summary judgment is proper only where 'there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.'

Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D.1991) (quoting Breen v. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221, 223 (S.D.1988)). "The evidence must be viewed most favorable to the non-moving party and reasonable doubts should be resolved against the moving party." Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 164 (S.D.1987).

1. Intentional Infliction of Emotional Distress Claim.

The elements of intentional infliction of emotional distress are:

(1) An act by defendant amounting to extreme and outrageous conduct;

(2) intent on the part of defendant to cause plaintiff severe emotional distress;

(3) the defendant's conduct was the cause in-fact of plaintiff's injuries; and

(4) the plaintiff suffered an extreme disabling emotional response to defendant's conduct.

Groseth, 410 N.W.2d at 169 (emphasis original). In Wangen v. Kuudson, 428 N.W.2d 242 (S.D.1988), we modified the above test and stated:

Section 46(1) of the Restatement (Second) of Torts, which this court has previously cited with approval provides in part that "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress is subject to liability for such emotional distress...." (Emphasis supplied.) Liability may attach where a defendant engages in "reckless" conduct, conduct which constitutes a deliberate disregard of a high degree of probability that the emotional distress will follow. Restatement (Second) of Torts Sec. 46, comment (i). The actions of defendants sufficiently demonstrate a reckless disregard of a high probability that Wangen would suffer emotional distress. Under these circumstances, Wangen was only required to show that defendants intentionally or recklessly acted in a manner which would create an unreasonable risk of harm to him, and that they knew or had reason to know of facts which would lead a reasonable man to realize that such actions would create the harm that occurred.

Id. at 248 (citations omitted); see also, Ruane v. Murray, 380 N.W.2d 362 (S.D.1986); Ruple v. Brooks, 352 N.W.2d 652 (S.D.1984). In French v. Dell Rapids Community Hosp., 432 N.W.2d 285, 289 (S.D.1988), where we reversed summary judgment for hospital on intentional infliction of emotional distress, we stated:

It is for the trial court to determine, in the first instance, whether a defendant's conduct may be reasonably regarded as so extreme and outrageous so as to permit recovery, or whether it is necessarily so. When reasonable minds may differ, it is for the jury to determine whether the conduct has been sufficiently extreme and outrageous to result in liability.

Id. (citations omitted).

Petersen based her claim of intentional infliction of emotional distress against Hospital on the conduct of Karel. She alleged that Karel was extreme, outrageous and unreasonable by: calling her to his office on approximately 10 occasions to discuss the complaints and her absenteeism; confronting her in an abrupt and accusatory manner; refusing to disclose the names of her co-workers who complained; raising the death of her child as a possible explanation for her behavior; encouraging her to disclose her medical problems with her co-workers in hopes of ending strife; sending her to the personnel department regarding the personality conflicts with her co-workers; arranging the September meeting with Chase and others without informing her; and by allowing them to confront her directly with their complaints. Petersen states by affidavit that these conversations were extremely stressful to her, making her very nervous and upset.

Hospital urges this Court to use all of Petersen's testimony, including trial testimony, when reviewing the trial court's summary judgment ruling on her claim of intentional infliction of emotional distress. It is true that a party cannot claim a version of the facts more favorable to her claim than her own testimony. Trammell, 473 N.W.2d at 463; Waddell v. Dewey County Bank, 471 N.W.2d 591, 595 n. 3 (S.D.1991); Miller v. Stevens, 63 S.D. 10, 256 N.W. 152, 155 (1934). However, Petersen has not yet testified on...