Jarrard v. United Parcel Service, Inc.
Jarrard v. United Parcel Service, Inc.
Opinion of the Court
Based on psychic injury caused by a harsh and ill-timed job evaluation, Michael Jarrard sued his employer United Parcel Service, Inc. (“UPS”) for intentional infliction of emotional distress and was joined by his wife who asserted a derivative claim for loss of consortium.
Construed in favor of the plaintiff, the evidence showed that on his first day back from six weeks of medical leave,
Even though the evaluating UPS supervisor knew that the leave had been for psychiatric care, and even though during the interview Jarrard repeatedly begged in tears that the evaluation be postponed because of his mental weakness, the supervisor insisted, on penalty of termination and with a smirk, that Jarrard remain and receive the full oral review of the written evaluation, which took about 20 minutes. The supervisor questioned his loyalty and integrity. As a result of the oral review, Jarrard experienced a complete mental breakdown
Pretermitting the issue (not raised below) whether this claim was exclusively the province of the Workers’ Compensation Act,
The second element of extreme and outrageous conduct is the issue here. Biven Software v. Newman
Comments made within the context of one’s employment may be horrifying or traumatizing, but are generally considered a common vicissitude of ordinary life. Liability for intentional infliction of emotional distress has been 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.8
Peoples v. Guthrie
“[P]erformance evaluations are a recognized aspect of any employment,”
The law is clear that performance evaluations critical of an employee do not fall into the outrageous category even though (i) given in crude and obscene language,
The Jarrards focus much of their argument on evidence of malicious motives of UPS to retaliate for former conflicts between Jarrard and UPS management about demotions, transfers, and following through on company promises. This pertains, however, to the first element of the tort (acting intentionally or recklessly) and does not address the second element of whether the conduct was itself extreme and outrageous. Citing the Restatement (Second) of Torts,
It has not been enough that the 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 aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been [extreme and outrageous].22
The Jarrards quite correctly point out that in determining whether conduct is extreme and outrageous a court should also consider (i) the existence of a relationship in which one person has control over another such as an employer-employee relationship and (ii) whether the defendant knew of the victim’s particular susceptibility to emotional distress.
Nevertheless, there is a caveat to these factors: “[i]t must be emphasized that major outrage in the language or conduct complained of is essential to the tort.”
The cases cited by the Jarrards are distinguishable. There is something innately outrageous with telling an employee to not testify against the company or she will lose her job and then enforcing
On the other hand, there is nothing inherently outrageous with subjecting an employee to a straightforward if harsh evaluation of his job performance,
Based on these cases, a single brutal evaluation cannot rise to the “outrageous” level even though the employee is experiencing emotional problems at the time of the evaluation and the employer is aware of such.
Despite the severity of Jarrard’s damages, we are constrained to hold that the trial court correctly granted summary judgment in favor of UPS.
Judgment affirmed.
Jarrard also asserted a count under the Anericans with Disabilities Act, 42 USC § 12101 et seq., but he has not appealed the entry of summary judgment on this count.
See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991); United Parcel Suc. v. Moore, 238 Ga. App. 376, 377 (519 SE2d 15) (1999).
Jarrard’s treating psychiatrist certified him to return to work as “medically stable” with no restrictions.
Rating guidelines defined each ranking: zero — must improve before next evaluation; one — needs a lot of improvement; two — needs some improvement; three — meets nearly all expectations; four — meets all expectations; five — meets all expectations, exceeds most; six — exceeds all expectations.
Cf. Hennly v. Richardson, 264 Ga. 355-356 (1) (444 SE2d 317) (1994).
(Citations and punctuation omitted.) Moore, supra, 238 Ga. App. at 377; see Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985).
222 Ga. App. 112, 113-114 (1) (473 SE2d 527) (1996).
(Citations and punctuation omitted.) Id. See Moore, supra, 238 Ga. App. at 377.
199 Ga. App. 119, 121 (2) (404 SE2d 442) (1991).
(Citations and punctuation omitted; emphasis in original.) Id. See Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 225 (369 SE2d 541) (1988).
Wiggins v. Browning, Civil Action No. 6:94-1552-3AK, 1994 U. S. Dist. LEXIS 20229, slip op. at 14 (D. S.C. 1994).
Clark v. Coats & Clark, Inc., 990 F2d 1217, 1229 (11th Cir. 1993); see ITT Rayonier, Inc. v. McLaney, 204 Ga. App. 762, 764 (1) (420 SE2d 610) (1992) (“at-will employment can be terminated for any or no reason [and thus] gives rise to no claim for the intentional infliction of emotional distress”) (citations and punctuation omitted); Borden v. Johnson, 196 Ga. App. 288, 290-291 (2) (395 SE2d 628) (1990).
(Citations omitted.) Moore, supra, 238 Ga. App. at 378.
ITT Rayonier, supra, 204 Ga. App. at 763 (1), 765 (2) (crude, obscene, and profane language); see Cooler v. Baker, 204 Ga. App. 787, 788 (1) (420 SE2d 649) (1992) (alleged foul and abusive language); Bridges, supra, 176 Ga. App. at 231 (1) (could have been more tactful).
See Douglas v. Dabney S. Lancaster &c. College, 990 FSupp. 447, 465 (D) (3) (W.D. Va. 1997).
Biven Software, supra, 222 Ga. App. at 114 (1); Johnson v. Savannah College of Art &c., 218 Ga. App. 66, 67 (460 SE2d 308) (1995) (employee was betrayed, belittled, maligned, humiliated, and saddened); Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992) (employer threatened and intimidated employee about his emotional condition in a manner that embarrassed and humiliated him).
See Clark v. City of Zebulon, 156 FRD 684, 698 (3) (a) (N.D. Ga. 1993) (terminated just before Christmas).
Sossenko v. Michelin Tire Corp., 172 Ga. App. 771 (324 SE2d 593) (1984) (retaliation for reporting manufacturing defects); see Odem v. Pace Academy, 235 Ga. App. 648, 655 (2) (510 SE2d 326) (1998); cf. Biven Software, supra, 222 Ga. App. at 114 (1) (supervisor acted out of jealousy).
Peoples, supra, 199 Ga. App. at 121 (2); see ITT Rayonier, supra, 204 Ga. App. at 763 (1); cf. Mundy v. Southern Bell Tel. &c. Co., 676 F2d 503, 504 (11th Cir. 1982) (inaccurate and unsupported negative evaluation); Avallone v. Wilmington Med. Center, 553 FSupp. 931, 938 (V) (D. Del. 1982) (false negative job evaluation).
(Citations and punctuation omitted.) Bowers, supra, 204 Ga. App. at 618 (2); see Odem, supra, 235 Ga. App. at 654-655 (2); cf. Peoples, supra, 199 Ga. App. at 121 (2) (it is not enough that defendant’s conduct was wilful and wanton); Moses, supra, 187 Ga. App. at 225 (it is not enough that defendant’s conduct is intentional or that it is wilful and wanton).
See Bridges, supra, 176 Ga. App. at 230 (1).
(Citation and punctuation omitted.) Id. See Gordon v. Frost, 193 Ga. App. 517, 522 (1) (388 SE2d 362) (1989).
See Harris v. Leader, 231 Ga. App. 709, 712 (1) (b) (499 SE2d 374) (1998) (psychiatrist who expresses personal sexual fantasies to client not liable despite his knowledge of her susceptibility to emotional distress); Bowers, supra, 204 Ga. App. at 616, 618 (even though employer knew of employee’s depression and severe claustrophobia and intentionally harassed and belittled him until he broke down and was admitted to a psychiatric clinic, no liability for intentional infliction of mental distress); Bridges, supra, 176 Ga. App. at 231 (1) (even though employer knew of employee’s low emotional threshold brought on by her multiple sclerosis, no liability for insensitive and tactless demands for polygraph and for termination based on her refusal to cooperate).
See Yarbray, supra, 261 Ga. at 706 (2).
See Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996); Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 168-169 (1) (381 SE2d 303) (1989).
Anderson v. Chatham, 190 Ga. App. 559, 566-567 (8). (379 SE2d 793) (1989).
See Gordon, supra, 193 Ga. App. at 519-520 (1).
See generally Lively v. McDaniel, 240 Ga. App. 132, 134 (2) (522 SE2d 711) (1999) (“Defamatory or derogatory remarks regarding one’s employment generally do not rise to this level.”) (citations omitted); Hendrix v. Phillips, 207 Ga. App. 394, 396 (1) (428 SE2d 91) (1993); Sossenko, supra, 172 Ga. App. at 772.
See City of Zebulon, supra, 156 FRD at 698 (3) (a).
But is there ever a good time for an employee to undergo an unfavorable performance review?
See Bridges, supra, 176 Ga. App. at 231 (1) (employer could have been more tactful and sensitive).
See Peoples, supra, 199 Ga. App. at 121 (2).
See ITT Rayonier, supra, 204 Ga. App. at 764 (1).
See Peoples, supra, 199 Ga. App. at 121 (2).
Accord Bowers, supra, 204 Ga. App. at 618 (depression); Bridges, supra, 176 Ga. App. at 231 (1) (lower emotional threshold caused by multiple sclerosis); cf. Bute v. Schuller Intl., 998 FSupp. 1473, 1478 (II) (C) (N.D. Ga. 1998) (refusal to allow employee to return to work following back surgery is not egregious or outrageous).
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