This article is an excerpt from the 1995 Employment Law Handbook, published by the
Minnesota Trial Lawyers Association.

TABLE OF CONTENTS

INTRODUCTION .............................

I. PUBLIC POLICY SUPPORTS THE EXISTENCE OF
INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS AS AN INDEPENDENT TORT .......

II. ANALYSIS OF THE ELEMENTS OF INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS UNDER
MINNESOTA LAW ......................

A. Extreme and Outrageous Conduct ........

B. Intentional or Reckless Conduct ..........

C. The Employer's Conduct Must

Cause Plaintiffs Distress ..............

D. Plaintiffs Distress Must be Severe ........

III. THE STANDARD FOR SUMMARY JUDGMENT . . .

IV. THE APPLICABLE STATUTE OF LIMITATIONS . .

V. SPECIFIC APPLICATIONS OF THE DOCTRINE . . .
A. Sexual Harassment Claims .............

B. Retaliatory Conduct .................

C. Accusations of Dishonesty .............

D Other Public Policy Claims ............

CONCLUSION ..............................

INTRODUCTION

Although plaintiffs frequently allege intentional infliction of
emotional distress in employment law disputes, very few succeed in
demonstrating conduct in the employment setting sufficient to satisfy the
high standard established by courts. The frequent inclusion of a claim for
intentional infliction of emotional distress has yielded much case law
delineating and analyzing the elements necessary to establish such a claim.
Unfortunately for plaintiffs, the vast majority of this precedent is
unfavorable. Recent decisions, however, indicate that intentional infliction
claims predicated upon certain facts may enjoy greater success in the future.

I. PUBLIC POLICY SUPPORTS THE EXISTENCE OF
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
AS AN INDEPENDENT TORT.

The Minnesota Supreme Court first recognized the existence of
a separate tort for intentional infliction of emotional distress in Hubbard v.
United Press International. Inc.. 330 N.W.2d 428 (Minn. 1983).
Hubbard's analysis began with the acknowledgment that tort claims seeking
damages for emotional distress "generally have not been favored in
Minnesota." Id. at 437. Despite the supreme court's concern that
recognition of this tort could result in speculative or fictitious claims, the
court concluded that it was "appropriate" to recognize intentional infliction
of emotional distress as an independent tort. Id at 438. In so doing,
however, Hubbard cautioned that "[t]he operation of this tort is sharply
limited to cases involving particularly egregious facts." Id. at 439.

Since Hubbard. the existence of intentional infliction of emotional
distress as an independent tort has been widely recognized. Indeed, the
supreme court has subsequently acknowledged that strong public policy
reasons support the existence of this tort:

Minnesota has a strong interest in
protecting its citizens from outrageous
emotional abuse because the emotional
health and well-being of its citizens is
vital, not only to a stable economy, but
to a civilized culture.

Pikop v. Burlington Northern R.R. Co., 390 N.W.2d 743, 753 (Minn.
1986), cert. denied. 480 U.S. 951 (1987).

II. ANALYSIS OF THE ELEMENTS OF INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS UNDER
MINNESOTA LAW.

In order to prevail on an intentional infliction claim, four elements
must exist: (1) the conduct must be extreme and outrageous; (2) the
conduct must be intentional or reckless; (3) it must cause emotional distress;

and (4) the distress must be severe. Hubbard. 330 N.W.2d at 438-39.
Hubbard expressly adopted these elements from the Second Restatement of
Torts, § 46. See id.

A. Extreme and Outrageous Conduct.

A plaintiff can demonstrate extreme and outrageous conduct only where
behavior is "so atrocious that it passes the bounds of decency and is utterly
intolerable to the civilized community." Hubbard. 330 N.W.2d at 439
(citations omitted). Plaintiffs alleging intentional infliction of emotional
distress probably have more difficulty proving this element than any of the
other elements. Certain factors, however, may make it easier to satisfy this
element.

1. Actions directed at plaintiffs personally.

It is well recognized that an employer's conduct may provide a
sufficient basis for an intentional infliction of emotional distress claim.
Glass v. IDS Financial Services. 778 F. Supp. 1029, 1073 (D. Minn.
1991). Numerous cases, however, have dismissed intentional infliction of
emotional distress claims where the employer's action was based primarily
upon adjustment or termination of the employment relationship. For
instance, an employer's disciplining and criticizing employees does not, in
itself, constitute sufficiently egregious conduct. Corum v. Farm Credit
Services, 628 F. Supp. 707, 719 (D. Minn. 1986). Similarly, an abrupt
discharge, without warning, does not satisfy the extreme and outrageous
conduct requirement. Id. Thus, absent abusive or unusual circumstances,
a plaintiff will not prevail where a claim arose out of the terms and
conditions of the employment relationship. A plaintiff may prove more
successful, however, where an employer's actions are directed at theplaintiff
personally rather than arising from the employment relationship.

2. The existence of a fiduciary relationship.

Some courts have found that the authoritative position of employers
entitles employees to greater protection from emotional distress. See. e.g..
Vinson v. Linn-Mar Community Sch. Dist.. 360 N.W.2d 108, 118 (Iowa
1984). In Glass, although the court recognized that abuse of a position of
authority may give rise to an intentional infliction of emotional distress
claim, the court held that Minnesota law does not hold employers to a
higher standard merely because of their fiduciary relationship. Glass, 778
F. Supp. at 1073-74. Because no Minnesota appellate court has directly
addressed this question despite numerous opportunities to do so, it is
doubtful that Minnesota courts will apply such a heightened scrutiny in the
employment context.

3. The susceptible plaintiff.

Under Minnesota law, an employer may be liable for intentional
infliction of emotional distress if the employer engages in extreme and
outrageous conduct with knowledge that the injured party is particularly
susceptible to suffering unreasonably severe distress. Bohdan v. All tool
Mfg. Co.. 411 N.W.2d 902, 908 (Minn. App. 1987), pet. for rev. denied
(Minn. Nov. 13, 1987); see also Restatement (Second) of Torts § 46,
Comment f. Even if severe emotional distress exists, however, the
employer may escape liability if the employer did not have knowledge of
the particular susceptibility or if the distress did not result from the
particular susceptibility. Bohdan. 411 N.W.2d at 908.

4. The use of cumulative evidence.

Plaintiffs may be able to show sufficiently outrageous conduct by
alleging a series of acts that are insufficient when considered alone, but are
deemed sufficient when considered cumulatively. See. e.g.. Boyle v.
Wenk. 392 N.E.2d 1053, 1055-56 (Mass. 1979). In Hubbard. the plaintiff
attempted to make such a showing. The court did not reject the possibility
of using cumulative evidence, but determined that the plaintiffs allegations,
even when considered cumulatively, did not constitute extreme and
outrageous conduct by the employer. Id. at 439-40. Nevertheless, Hubbard
indicates that a plaintiff may be able to prevail on such a cumulative
evidence theory under certain circumstances.

5. The inaction of employers.

An employer's inaction, as well as action, may provide a basis for
an intentional infliction claim. For instance, where an employer fails to
properly control the known, sexually harassing behavior of an employee,
the employer's conduct may be deemed sufficiently outrageous. See. e.g..
Baker v. Weyerhaeuser Co.. 903 F.2d 1342, 1347 (10th Cir. 1990).

B. Intentional or Reckless Conduct.

Negligence on the part of an employer is not actionable under this
doctrine. Instead, the employer must have either intended the conduct,
performed the conduct in a reckless manner reasonably foreseen that
emotional distress would likely result. Restatement (Second) of Torts, § 46,
Comment i.

Conduct that is considered extreme and outrageous will almost
surely have been done either intentionally or recklessly. Nevertheless, this
element may prevent a plaintiff from prevailing on an intentional infliction
claim. For instance, in order for a plaintiff to prevail, the conduct must be
"directed at" the plaintiff and the defendant must know of the plaintiffs
presence so that the mental effect upon the plaintiff can be anticipated by
the defendant. Domfeld v. Oberg. 503 N.W.2d 115, 119-20 (Minn. 1993).
In the absence of such a showing, the defendant's conduct is neither
intentional nor reckless. Id.

C. The Employer's Conduct Must Cause PlaintifFs
Distress.

The causation requirement is rather straightforward: an employer
is liable only for that emotional distress that results from its own conduct.
As such, an employee who has suffered emotional distress from events
unrelated to the employment relationship cannot impute such distress to the
employer's conduct. Thus, an employer may avoid liability by
demonstrating that the employee's distress was due to factors unrelated to
wrongful conduct on the part of the employer (unless the plaintiff is within
the susceptible plaintiff exception discussed above).
Hubbard demonstrates how a court could use the causation
requirement to deny recovery. Hubbard's claims were based, in part, upon
discrimination on the basis of an alcoholism disability. 330 N.W.2d at 430.
Although the Supreme Court did not address the causation requirement, it
implied that Hubbard had not satisfied this element. Id_ at 439. If the
court had addressed this element, it may have held that Hubbard's emotional
distress stemmed from his alcohol problems rather than the employer's
conduct.

D. Plaintiffs Distress Must be Severe.

The fourth element is met only where "the distress inflicted is so
severe that no reasonable [person] could be expected to endure it."
Hubbard. 330 N.W.2d at 439; Restatement (Second) of Torts § 46 comment
j (1965). Further, a plaintiffs allegations must be specific. Mere
allegations of mental, emotional, and physical distress are insufficient to
withstand summary judgment. Bohdan. 411 N.W.2d at 908.

Although plaintiffs must prove that they suffered severe distress,
courts have upheld claims based on an almost-infinite variety of symptoms.
See 1 Paul H. Tobias, Litigating Wrongful Discharge Claims § 6.08 (1992).
As such, courts tend to focus less upon the actual type of distress claimed
and more upon whether the plaintiff can produce objective evidence that the
distress was severe. In undertaking this analysis, courts will consider the
intensity and duration of the distress. Bohdan. 411 N.W.2d at 908.

1. The distress must be greater than that
commonly suffered.

Hubbard determined that distress is not severe unless the plaintiff
suffered symptoms different than that suffered by any employee who
experiences an employer's criticism. Hubbard. 330 N.W.2d at 440.
Subsequent decisions addressing claims by employees also have emphasized
the need to demonstrate injuries different from those suffered by similarly-
situated employees. Thus, if the plaintiffs distress is of the type people
commonly encounter and endure in their lives, the claim should not even be
submitted to a jury. Lee v. Metropolitan Airport Comm'n. 428 N.W.2d
815, 823 (Minn. App. 1988); Caffertv v. Garcia's of Scottsdale. Inc.. 375
N.W.2d 850, 853 (Minn. App. 1985). Unfortunately, this analysis may
result in successful intentional infliction claims only for those plaintiffs who

are "particularly susceptible. "

2. Plaintiffs must present objective evidence of
distress.

In Hubbard. the court abolished the rule that physical injury is a
prerequisite to recovery. 330 N.W.2d at 438. Nevertheless, the necessity
of physical manifestations of the emotional distress still exists, at least in
practice. Indeed, Hubbard itself noted the need to "carefully scrutinize"
claims of emotional distress where there is no evidence of a
contemporaneous physical injury. Id. at 440 n.9. The court then rejected
the plaintiffs claim where he had never missed work, never filed a claim
for workers' compensation, and never saw a doctor. Id. at 440.

Thus, although a physical injury is not an element of an intentional
infliction claim, a showing of physical injury serves as evidence of severe
emotional distress. M.H. v. Cantas Family Servs.. 488 N.W.2d 282, 290
(Minn. 1992). Under this standard, conduct that irritates, insults, threatens,
and angers a person so that it exacerbates a preexiting condition is sufficient
to present a question for the jury. See Venes v. Professional Service
Bureau. 353 N.W.2d 671, 673 (Minn. App. 1984).

ffl. THE STANDARD FOR SUMMARY JUDGMENT.

In order to prevail on an intentional infliction claim, a plaintiff has an
arduous task. Hubbard and its progeny have undoubtedly erected a difficult
barrier for plaintiffs who have suffered emotional distress at the hands of
their employers. Perhaps the most difficult procedural step is surviving the
inevitable motion for summary judgment.

The plaintiff bears the initial burden of producing sufficient
evidence from which a jury "might reasonably return a verdict in the
nonmoving party's favor." Hubbard. 330 N.W.2d at 439; see also Jeffers
v. Convoy Co.. 636 F. Supp. 1337, 1343 (D. Minn. 1986); Bohdan. 411
N.W.2d at 908; Ekiund v. Vincent Brass & Aluminum Co.. 351 N.W.2d
371, 379 (Minn. App. 1984), pet. for rev. denied (Minn. Nov. 1, 1984).
Whether a defendant's behavior may reasonably be considered so extreme
and outrageous as to permit recovery is, initially, a question for the court.

Restatement (Second) of Torts § 46, comment h (1965). In order to defeat
an employer's motion for summary judgment, a plaintiff therefore must
demonstrate facts, considered in the light most favorable to the nonmoving
party, that meet the high legal thresholds enunciated in Hubbard. Hubbard.
330 N.W.2d at 439.

After the plaintiff meets his or her burden of production, whether
an employer's conduct is extreme and outrageous and whether a plaintiffs
distress is severe are ultimately questions of fact reserved for the jury.
Cafferty. 375 N.W.2d at 853. In Caffertv. the court emphasized the
distinction between the plaintiffs initial and ultimate burdens, stating that
"it is for the court to determine whether, on the evidence, severe emotional
distress can be found; it is for the jury to determine whether, on the
evidence, it has in fact existed." Id. (emphasis in original).

IV. THE APPLICABLE STATUTE OF LIMITATIONS.

The statute of limitations for claims of intentional infliction of
emotional distress falls within Minn. Stat. § 541.07(1), which applies a two-
year statute of limitations to actions for intentional personal injuries.
Christenson v. Argonaut Ins. Co.. 380 N.W.2d 515, 518 (Minn. App.
1986). Thus, practitioners must beware that the six-year limitations period
for negligent personal injuries, provided in Minn. Stat. § 541.05, does not
apply to intentional infliction of emotional distress claims.

V. SPECIFIC APPLICATIONS OF THE DOCTRINE.

As with any area of the law, plaintiffs are more likely to prevail
where they can produce favorable cases with similar fact patterns.
Intentional infliction claims involving conduct relating to sexual harassment,
retaliatory conduct, and theft accusation have generally proven more
successful than intentional infliction claims involving other work-related
conduct.

A. Sexual Harassment Claims.

Several recent decisions have allowed intentional infliction claims
to go to the jury where the claims were predicated upon sexual harassment.
For instance, the Minnesota Court of Appeals recently held that

claims of assault, sexual harassment and
retaliation raise a presumption of
willful or intentional conduct.

Whether the conduct was sufficiently
outrageous or [the] distress so severe as
to permit recovery is a question of fact
that may not be dismissed on
summary judgment.

Orth v. College of St. Catherine. 1995 WL 333875 (Minn. App. June 6,
1995) (citation omitted) (emphasis supplied). Similarly, in Schiele v.
Charles Vogel Mfg. Co.. 787 F. Supp. 1541, 1555 (D. Minn. 1992), the
court denied the employer's motion for summary judgment where the
employee had alleged intentional infliction based upon incidents of sexual
harassment. These holdings indicate that it may become easier to prevail
on intentional infliction claims predicated upon sexual harassment. See
Minn. Stat. § 363.12 (stating Minnesota's strong public policy against
discrimination).

Numerous commentators have endorsed such decisions: "[s]exual
harassment on the job is undoubtedly an intentional infliction of emotional
distress." See. e.g.. Prosser & Keeton, The Law of Torts at 18 (Supp.
1988). Decisions from other jurisdictions are in accord. See, e.g.. Davis
v. U.S. Steel Corp.. 779 F.2d 209, 211 (4th Cir. 1988) (management-level
employee failed to take any action against sexual harasser of plaintiff); Ford
v. Revlon. Inc.. 734 P.2d 580, 585 (Ariz. 1987) (employer repeatedly
ignored plaintiffs complaints of sexual harassment).

B. Retaliatory Conduct.

Where an employer retaliates against an employee, courts may be
more willing to impose liability for intentional infliction of emotional
distress. See Orth v. College of St. Catherine. 1995 WL 333875 (Minn.
App. June 6, 1995); see also Moffett v. Gene B. Glick Co.. 621 F. Supp.
244, 284-85 (N.D. Ind. 1985) (after plaintiff filed harassment charge
against her employer based on the conduct of her subordinates, employer
fired her); Carsner v. Freightliner Corp.. 688 P.2d 398, 403 (Or. App.
1984) (employee alleged he was discharged after he complained about job
safety practices), pet. for rev. denied (Or. Dec. 11, 1984); Milton v.
Illinois Bell Tel. Co.. 427 N.E.2d 829, 832-339 (111. App. 1981) (coercion

imposed upon plaintiff to falsify work reports and retaliation suffered due
to plaintiffs refusal to do so).

C. Accusations of Dishonesty.

Courts have also recognized intentional infliction as a potential
cause of action where an employer wrongfully accuses an employee of
dishonesty. See, e.g.. Blong v. Snvder. 361 N.W.2d 312, 315-17 (Iowa
App. 1984) (employee was accused of falsifying a time card, described as
"stealing" by the employer, was subjected to verbal abuse and was fired);

Agis v. Howard Johnson Co.. 355 N.E.2d 315, 317-19 (Mass. 1976)
(employees were summarily fired in alphabetical order until someone
confessed to theft).

D. Other Public Policy Claims.

Finally, several recent decisions have recognized that certain
conduct that violates statutorily-recognized public policy would, almost as
a matter of definition, be utterly intolerable to the civilized community, thus
giving rise to potential liability for intentional infliction of emotional
distress. See Smith v. Honevwell. Inc.. No. 792177 (Henn. Cty. Dist. Ct.
Sept. 8, 1987) (alleged violations of United States' export laws); but see
Jeffers. 636 F. Supp. at 1343 (employer's request that an employee take a
polygraph test was not sufficiently egregious under Minnesota law even
though the employer knew its actions were illegal).

CONCLUSION

Although Minnesota has affirmatively recognized the tort of
intentional infliction of emotional distress, few plaintiffs have proven
successful in demonstrating that an employer's conduct was sufficiently
extreme and outrageous and that the plaintiff suffered sufficiently severe
emotional distress. Nevertheless, several recent decisions indicate that
intentional infliction claims may prove more successful if predicated on
certain facts.