Subbe-Hirt v. Baccigalupi

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

8-28-1996

Subbe-Hirt v. Baccigalupi

Precedential or Non-Precedential:

Docket 95-5786

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation

"Subbe-Hirt v. Baccigalupi" (1996). 1996 Decisions. Paper 93.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/93

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5786

ELAINE J. SUBBE-HIRT,

Appellant

v.

ROBERT BACCIGALUPI; PRUDENTIAL INSURANCE COMPANY,

Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civ. No. 91-02813)

Argued June 4, 1996

Before: COWEN, NYGAARD, AND LEWIS, Circuit Judges

(Opinion Filed August 28, l996)

Donald J. Maizysm, Esq.

(Argued)

Karas, Kilstein, Hirschklau,

Feitlin & Youngman

9-10 Saddle River Road

Fair Lawn, New Jersey 07410

Attorney for Appellant

M. Elaine Jacoby, Esq.

T. Gary Mitchell, Esq.

(Argued)

Hill Wallack

202 Carnegie Center

Princeton, New Jersey 08543

Attorneys for Appellees

__________

OPINION OF THE COURT

__________

Nygaard, Circuit Judge.

I.

Appellant Elaine Subbe-Hirt brought this action against her

former employer, Prudential Insurance Company, and Robert

Baccigalupi, her former supervisor at Prudential, presenting

several claims arising out of her employment with Prudential.

The district court granted summary judgment in favor of the

defendants on Subbe-Hirt's claim for intentional infliction of

emotional distress. It held alternatively that her claim was

barred by the exclusive remedy provided by the New Jersey

Worker's Compensation Act and that, in any event, the claim would

fail on its merits because defendants' conduct was not

sufficiently outrageous under New Jersey law. Subbe-Hirt appeals

from that ruling.

II.

The district court applied a "substantially certain"

standard to appellant's claim for intentional infliction of

emotional distress; it then found that defendant's conduct did

not meet the threshold level sufficient to support a cause of

action for an intentional tort, thereby avoiding the exclusivity

provisions of the New Jersey Workers' Compensation Act. This was

incorrect as a matter of law.

The district court viewed the applicable legal standard as

follows:

In order for an employee to bring an action against his

or her employer based upon an "intentional wrong",

thereby escaping the exclusivity of the WCA, the worker

must prove that the employer's actions were

"substantially certain" to cause the alleged harm.

The New Jersey Supreme Court, however, has required only that a

plaintiff show deliberate intention to avoid the exclusive remedy

provided by the Compensation Act. See Millison v. E.I. du Pont

de Nemours & Co., 501 A.2d 505, 514 (N.J. 1985). The Millisoncourt cited

the Restatement (Second) of Torts § 8A to elucidate

its definition of intent, opining in a parenthetical reference

that the "meaning of intent is that actor desires to cause

consequences of his act or is substantially certain that such

consequences will result from his actions." Id. at 514 (emphasis

added).

Although the Millison court did adopt a "substantial

certainty" standard, the district court failed to apply the full

Millison test, under which deliberate intent can be proven by

either: 1) a desire to cause the consequences of an act; or 2)

substantial certainty that those consequences will result.

Proving that the defendant desired to cause consequences of

its act is both the most direct and usually the most difficult

way to show deliberate intent to harm. The Millison court,

although focusing on substantial certainty, did not reject this

more direct means of proving deliberate intention:

It may help to perceive "substantial certainty" not so

much as a substantive test itself nor as a substitute

for a subjective desire to injure, as a specie of

evidence that will satisfy the requirement . . . that

"deliberate intention" be shown.

Id. at 514 (citation omitted); accord New Jersey Mfrs. Ins. Co.

v. Joseph Oat Corp., 670 A.2d 1071, 1074 (N.J.Super. 1995) (the

Millison court "did no more than explain that such deliberate

intent to injure can be proved not only by evidence of actual

subjective intent to injure, but also by circumstances where

injury is a substantial or virtual certainty"); Hambsch v.

Harrsch, 606 A.2d 879, 883 (N.J. Super. 1991) ("Millison and its

offspring have skillfully devised a standard based upon either a

'substantial certainty' to injure or the defendant's actual

subjective intent to injure."); Bustamante v. Tuliano, 591 A.2d

694, 699 (N.J. Super. 1991) ("The bar will fall only in the face

of proof of a subjective intent to injure or a substantial

certainty that injury will occur."). Because the district court

erroneously applied only a substantial certainty test and

because, as we explain infra, the record contains sufficient

evidence of direct intent to injure, we hold that the Act does

not bar appellant's intentional infliction claim.

III.

Subbe-Hirt contends that the district court also committed

legal error by basing its summary judgment on a conclusion that

defendants' conduct was not sufficiently outrageous to support a

claim for intentional infliction of emotional distress. On this

allegation of error we have but two issues to decide: 1) whether

Robert Baccigalupi intended to inflict emotional distress upon

Elaine Subbe-Hirt; and 2) whether the evidence supports

appellant's contention that Baccigalupi succeeded in inflicting

that distress. We answer both questions in the affirmative and

hold that the record in this case exceeds a threshold showing of

outrageous behavior sufficient to preclude summary judgment.

A.

The present record, when viewed in the light most favorable

to Subbe-Hirt, shows that Robert Baccigalupi unquestionably

intended to inflict emotional distress upon Elaine Subbe-Hirt.

According to sales manager Mark Parisi, Baccigalupi "would berate

[Subbe-Hirt] or talk about getting her." Indeed, Baccigalupi

stated, "I'm going to get her."

Moreover, according to the deposition testimony of Parisi

and sales manager Robert LaNicca, Baccigalupi stated, in the

presence of other managers and on more than one occasion, that he

"was going to trim her bush;" a blatantly sexist metaphor to

brag of how Baccigalupi would handle females in general and

Subbe-Hirt in particular. According to sales manager David

Meyer, "when it was brought to R. Baccigalupi's attention that

[Subbe-Hirt] was soon going to be returning from disability, R.

Baccigalupi quickly remarked, 'Well, don't worry about her. I'm

going to trim her bush.'" When asked by counsel to explain what

he understood Baccigalupi's remark to mean, Meyer testified, "I

understood it that he was going to lay into her quite hard and

put her in her place." LaNicca said that on another occasion

Baccigalupi stated, "Let's bring Elaine in here on Friday and

we'll trim her bush." Parisi understood that phrase to mean:

That he was going to come down on her, whatever his

particular style was, forcing her to either go out on

disability or leave the company or to cease the union

activity. . . . [This] is, unfortunately with

Prudential, is an avenue that agents take when they

can't take the -- you know, when management pressure

goes up, and that's what [Baccigalupi] might use that

for."

Likewise, Robert King, a district agent, said:

There came a point in time where it was almost

embarrassing for many of us to watch a woman being -- .

. . it was pretty much obvious that Elaine wouldn't and

couldn't bear up under the general atmosphere . . . --

her time was expiring. . . . We talked amongst

ourselves that, you know, this was a critical stage . .

. . There was a persecution going of myself and

Elaine, and Elaine in particular. . . . [Baccigalupi

said] more or less than [sic] she was history and that

if I intended to continue that I would -- I should

leave things go as they are going.

Baccigalupi's intent to inflict emotional distress can be

further seen in his total lack of any vestige of compassion for

any woman in the office. On one occasion Meyer told Baccigalupi

that he "couldn't continue performing 'root canal' on women

agents on his staff because they broke down in tears." At that

point, Baccigalupi simply selected a woman agent to abuse as a

demonstration, saying "Well, don't worry. I'll show you how to

handle it." Appellant describes this contrived encounter as

follows:

He then called one of the women agents in for a review,

and started the 'root canal' and the intimidation on

her until she broke down and started crying. R.

Baccigalupi kept tearing and pressing into her and when

it was over and she had left the office, he was holding

out his suspender straps as if to say, "this is how you

handle it; don't let their emotions get in your way."

Indeed, Baccigalupi admitted his intent when he said to Subbe-

Hirt, "do you know who Joan of Arc is, read between the lines, do

you know why I'm looking at your work so closely, do you think I

do this to everyone?"

We have no difficulty in concluding that a reasonable jury

could find from this evidence that Baccigalupi intended that his

conduct subject Elaine Subbe-Hirt to emotional distress, and will

turn next to whether Baccigalupi's conduct had its intended

effect, and whether that effect was sufficient as a matter of law

to state a claim of intentional infliction.

B.

1.

The district court erred when it held that Subbe-Hirt did

not allege, nor did the record on summary judgment show, conduct

sufficiently outrageous to state a claim that Baccigalupi had

intentionally inflicted emotional distress upon her. In Buckley

v. Trenton Sav. Fund Soc'y, 544 A.2d 857, 863-64 (N.J. 1988) the

New Jersey Supreme Court applied the view of the Restatement

(Second) of Torts § 46 to the tort of intentional infliction.

The district court was therefore correct that, under New Jersey

law, intentional infliction of emotional distress comprehends

conduct "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."

Restatement (Second) of Torts § 46 comment d. We disagree,

however, with the district court's conclusion that Baccigalupi's

conduct was not sufficiently outrageous, and are led inexorably

to the conclusion that summary judgment should have been denied.

2.

Elaine Subbe-Hirt began working for Prudential Insurance

Company as an insurance salesperson in 1984. Initially, she

reported to a sales manager, who reported to defendant Robert

Baccigalupi, the District Manager for the office. When the sales

manager to whom she reported left the company, Subbe-Hirt found

herself reporting directly to Baccigalupi.

Baccigalupi created a predatory tactic he descriptively

termed "root canal," which he used to control older agents such

as Subbe-Hirt. Baccigalupi instructed his sales managers how to

perform this verbal attack "operation." According to sales

manager Meyer, Baccigalupi "came up with the concept of root

canal as a way to intimidate and basically destroy these people

to the point of submission or of just getting the hell out of the

business." Meyer related at his deposition that Baccigalupi

picked the term "root canal"

specifically because it was made to be a very

uncomfortable, pain-producing, anxiety-producing

procedure that you would keep going deeper and deeper

until you struck a nerve, which would either end up in

the agent submitting, or reaching the point of anxiety

where they just couldn't stand any job any longer.

According to Meyer, at Thursday management meetings, sales

managers would role play with each other how to deal with

"problem agents:"

. . . Bob LaNicca had brought up that he was having

problems dealing with [Subbe-Hirt]. And then

[Baccigalupi] would role play with Bob LaNicca how to

perform root canal on Elaine to harass, intimidate her

into submitting to management's requests.

LaNicca's deposition indicates that Subbe-Hirt was "brought

in more often than others for performance reviews," which was

Baccigalupi's opportunity for using his root canal procedure on

her. According to Subbe-Hirt, Baccigalupi "held [her] in the

office twice as long as anyone else."

Baccigalupi was relentless in his contumely against Subbe-

Hirt. To begin with, according to Meyer and Parisi, Baccigalupi

replaced females' given names, and other polite nouns such as

"lady" and "woman," with the term "cunt," to depersonalize and

deride the women in the office. He would also taunt Subbe-Hirt

by asking if she "knew the word heretic" and threaten her "by

asking if she knew who Joan of Arc was." Moreover, he would ask

Subbe-Hirt for her resignation almost every time she was in the

office. Baccigalupi even went so far as to have an unsigned

resignation on his desk; we would then ask Subbe-Hirt "why don't

you sign it; if you don't want to sign it, go on disability."

In his meetings with Subbe-Hirt, Baccigalupi would "grill"

her on work she submitted, asking "why did you do this, what did

you do here, what was said here?" If he was not "satisfied" with

her answer, he would call Subbe-Hirt's clients in front of her

and say "Elaine says this; what do you say?"

Baccigalupi's conduct had a devastating consequence. After

one meeting with Baccigalupi, Subbe-Hirt "literally blacked out

behind the wheel and hit a tractor trailer just from stress and

emotion[,]" suffering severe injuries that required eight days of

hospitalization. This incident forced Subbe-Hirt to take

temporary disability leave; indeed, her treating psychiatrist has

opined that she remains totally disabled with post traumatic

stress disorder triggered by Baccigalupi's badgering and

intimidation.

Baccigalupi was on notice that such an incident was a

distinct possibility. Before the collision, Subbe-Hirt had

consulted with her family doctor because of stress. The doctor

wrote a letter which Subbe-Hirt showed to Baccigalupi before the

incident, asking that it be placed in her personnel file. It

stated:

Elaine Subbe[-Hirt] is currently under my care for

tension syndrome. It is my opinion, that she is

capable of working a regular forty hour week at her

present position. However, she should not be subject

[sic] to any undue stress or work load at this time.

When Subbe-Hirt requested that the letter be placed in her

personnel file, Baccigalupi refused, his exact words being:

"I'll decide what goes in your personnel file." According to the

evidence, "Mr. Baccigalupi handed it back to [her] and said he

didn't see that letter, and he never wanted to see it again and

he wouldn't put it in [her] file." From this evidence, a jury

could well-conclude that, in his attempt to drive Subbe-Hirt out

of Prudential, Baccigalupi targeted her now-documented weakness,

of which he was fully cognizant. Such specific targeting of an

individual's weak point is itself a classic form of "outrageous"

conduct under Restatement § 46, comment f, which provides:

The extreme and outrageous character of the conduct may

arise from the actor's knowledge that the other is

peculiarly susceptible to emotional distress, by reason

of some physical and mental condition or peculiarity.

The conduct may be heartless, flagrant, and outrageous

when the actor proceeds in the face of such knowledge,

where it would not be so if he did not know.

We conclude that the record is sufficient to support a

finding that Baccigalupi essentially set out to put Subbe-Hirt

under unnecessary stress to force her out of the company, all the

while knowing that her physician had stated specifically that her

condition required her to avoid such stress. We hold that the

evidence described above is more than sufficient to withstand

defendants' motion for summary judgment.

IV.

The allegations about Baccigalupi's uncivil conduct, and the

record before us display a pattern of ill behavior and

concomitant distress sufficient to preclude summary judgment. We

will reverse the summary judgment and remand the cause to the

district court for further proceedings.

Subbe-Hirt v. Baccigalupi

No. 95-5786

COWEN, Circuit Judge, dissenting.

The decision of the district court dismissing the

appellant-plaintiff's claim for intentional infliction of

emotional distress should be affirmed for two separate and

distinct reasons: the claim is clearly within the exclusivity

provision of New Jersey Worker's Compensation Act (the "WCA" or

the "Act") and not saved from the Act by the exception which

permits claims for intentional wrongs. In addition, the conduct

allegedly engaged in by the defendant clearly was not so

outrageous so as to meet the minimal requirements under New

Jersey law for a cause of action for intentional infliction of

emotional distress.

I.

New Jersey Worker's Compensation Law

The New Jersey Worker's Compensation Act provides an

automatic addition to any employment contract entered into in the

state, unless the parties at the time of the employment contract

expressly disclaim that the WCA be part of the employment

agreement. N.J.S.A. 34: 15-8. Under the Act employees are

barred from pursuing remedies against their employer or the

employer's agent relating to injuries received by reason of the

employment relationship, other than a worker's compensation claim

under the Act. The pertinent provisions of the WCA, as relevant

to this matter, states:

If an injury or death is compensable under

this article, a person shall not be liable to

anyone at common law or otherwise on account

of such injury or death for any act or

omission occurring while such person was in

the same employ as the person injured or

killed, except for intentional wrong.

N.J.S.A. 34:15-8 (emphasis added).

All claims by employees who suffered injury or illness by reason

of their employment must be made pursuant to the administrative

procedure set forth in the Worker's Compensation Act. The sole

exception which the Legislature carved out allowing an employee

to sue the employer at law, and bypass the administrative

framework of the Worker's Compensation Act, is if the claim arose

by reason of an "intentional wrong." Id.

The law in New Jersey is well-settled. To invoke this

narrow exception to the Worker's Compensation Act, the employee

must prove that the action of the employer was substantially

certain to cause the harm. Millison v. E.I. DuPont DeNemours &

Co., 101 N.J. 161, 177 (1985), aff'd 115 N.J. 252 (1989). The

New Jersey courts have been careful to explain that for an action

to be "substantially certain" to be the cause of an injury or

illness, the individual bringing about the injury must be found

to have known with "virtual certainty" that the act would produce

the injury. Bustamante v. Tuliano, 248 N.J. Super. 492, 498

(App. Div. 1991).

Even when considering all inferences which can

reasonably be drawn from the pleadings and plaintiff's

affidavits, the district court correctly concluded that the claim

did not approach the narrow intentional wrong exception which is

necessary under the Act for an employee to sue an employer at law

for a work related illness.

In order to find refuge from the exclusivity provision

of the Worker's Compensation Act, an employee suffering from

emotional distress and disability arising from employment cannot

avoid the administrative provisions of the Worker's Compensation

Act by simply characterizing as "intentional" the employer's acts

which caused the illness. Even crediting plaintiff's

allegations, and acknowledging that the conduct of her supervisor

and employer was offensive and uncalled for, such conduct did not

constitute an exception to the exclusivity provision of the

Worker's Compensation Act.

The New Jersey Legislature never envisaged that the

intentional wrong exception would encompass the normal and even

extreme comments which arise in an employment relationship. To

hold, as the majority does today, that criticism and harsh

statements concerning work practices, competence and ability of

an employee are sufficient to constitute intentional wrongs

within the meaning of the Worker's Compensation Act is to be

insensitive to the realities of the workplace. The majority

fails to reckon with true employment reality. The workplace

often is a hard-driving environment. Competitive imperatives may

call for clear, sometimes insulting language, and one's immediate

supervisor will often be perceived as crude, impersonal and

insulting. The workplace is not afternoon tea or a day at the

beach. We should not, and the New Jersey Legislature never

envisaged that courts would, censor the language or dialogue in

the workplace.

The district court analyzed the parameters of the

intentional wrong exception and correctly concluded that

plaintiff's allegations reflect that Baccigalupi engaged in

conduct which was consistent with behavior or practices sometimes

engaged in as part of the business environment or employment

relationship. The majority may not like the employer's words or

conduct, and I agree that the words were uncouth and gross. But,

like it or not, these are the words which the employer chose, and

such is the opinion of some employers of their employees. We

should not be in the business of scripting dialogue in the

workplace.

Plaintiff relies heavily on Cremen v. Harrah's Marina

Hotel Casino, 680 F. Supp. 150 (D.N.J. 1980). Cremen is clearly

distinguishable from this matter. The plaintiff in Cremen was

raped by her supervisor who continued to physically abuse her

with physical as well as mental encounters. The Cremen court

correctly concluded that such assaults were not part of the

landscape in any work environment and that the emotional distress

which resulted from the conduct was outside of the Worker's

Compensation Act. The plaintiff's case before us in its totality

is based solely on words. Words not even spoken to her. Words

that she claims made her sick and should not have been used to

describe her performance in the work environment or characterize

her as an employee. Plaintiff's allegations are a far cry from

Cremen. She can cite no other New Jersey case in which the

"intentional wrong exception" was found to apply to support her

position.

The plaintiff has failed to allege facts which would

take the admittedly harsh language out of the work environment.

All of the remarks leveled by plaintiff's supervisor were

directed to her work performance and all of his comments concern

the employment relationship. Not one of the alleged "intentional

wrongs" are removed from the proper subject of an employer's

evaluation and opinions concerning work performance or job

competence. While we as individuals may have our view as to the

proper language that should transpire at a work site, it does not

lie in the province of the judiciary to instruct employers on

proper etiquette or set ourselves up as the super-Emily Post of

the workplace.

II.

Separate and apart from the allegations of the

plaintiff not qualifying as an "intentional wrong," the facts of

the case as alleged by the plaintiff fall short of the New Jersey

cause of action of intentional infliction of emotional distress.

The New Jersey Supreme Court has defined this tort as requiring

conduct "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."

Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988).

The conduct of the perpetrator of such a tort must be by its

nature "so severe that no reasonable man could be expected to

endure it." Id.

Conduct which the New Jersey courts have found to meet

this extremely high level of uncivilized conduct are such matters

as a doctor knowingly and untruthfully advising parents that

their child had cancer, Hume v. Bayer, 178 N.J. Super. 310, 317-

19 (Law Div. 1981); a hospital unable to locate the body of a

dead baby for three weeks, Muniz v. United Hospitals Medical

Center, 153 N.J. Super. 79 (App. Div. 1977). The federal court

has recognized the extreme difficulty of establishing such a

claim in a mere employment relationship when the conduct alleged

does not exceed the employer/employee relationship. See Fregara

v. Jet Aviation Business Jets, 764 F. Supp. 940, 956 (D.N.J.

1991); Alm v. Marriot Corp., No. 90-3648 WL 313897 (D.N.J. Nov.

6, 1991); Borecki v. Eastern Intern. Management Corp., 694 F.

Supp. 47 (D.N.J. 1988). After Buckley, it has been recognized

that "New Jersey has prescribed a heavy burden for one alleging

intentional infliction of emotional distress." Obendorfer v.

Gitano Group, Inc., 838 F. Supp. 950 (D.N.J. 1993).

The New Jersey Supreme Court has made it abundantly

clear in Buckley, that when a claim is made for intentional

infliction of emotional distress, the trial court must clearly

exercise a gatekeeping rule: "the court decides whether as a

matter of law such emotional distress can be found, and the jury

decides whether it has in fact been proved.) Id. at 367. It is

the obligation of the trial court to determine in the first

instance whether the plaintiff has set forth conduct which is

sufficiently extreme such that a jury could reasonably conclude

that outrageous conduct permits it to award damages. Contrary to

the opinion of the majority, the district court did not overstep

its role with respect to the claim of intentional infliction of

emotional distress since the trial court is mandated under New

Jersey law to determine in the first instance "whether reasonable

minds could conclude that that alleged conduct has met

[outrageous] standard." See Obendorfer v. Gitano Group, Inc.,

838 F. Supp. at 955; Borecki v. Eastern Intern. Management Corp.,

694 F. Supp. at 61.

The district court correctly performed its function by

determining that under New Jersey law the facts alleged as a

matter of law failed to reach the elevated and high standard

required for the cause of action of intentional infliction of

emotional distress. The district court recognized that

Baccigalupi's statements, if credited, were "inexcusable" and

"offensive," but did not rise to the level of outrageous and

unacceptable in a civilized society. Plaintiff's claims boil

down to an assertion that her supervisor's choice of words

required her to put up with "more than the normal pressure of a

job." Being subject to "more than normal pressure" at work is a

long distance from conduct that is "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." Even plaintiff had a difficult time

labeling Baccigalupi's actions as anything beyond harmless

threats, intimidation, and ridicule. Admittedly, the words

allegedly spoken by Baccigalupi were strong and even harsh at

times, but they were merely words. There is no proof, nor even

an allegation, that Baccigalupi even touched her or that he set

in motion any physical or other instrumentality to bring about an

injury or illness.

III.

The majority is to be lauded in its desire to upgrade

the repartee of the workplace and to be offended by language

which it deems inappropriate. But the workplace is not the dance

of a minuet and employers are not nursemaids. As judges we will

rue the day we sat in judgment of the propriety of speech which

should transpire in the workplace between an employer and his

employee. I respectfully dissent.