The opinion
Judge McGee
concurring in part and dissenting in part.
I agree with the majority that plaintiffs claims for bad faith, unfair or deceptive trade practices, and civil conspiracy fall within the exclusive jurisdiction of the Industrial Commission. I respectfully disagree that the trial court erred in granting judgment on the pleadings as to plaintiffs claim for intentional infliction of emotional distress under the facts alleged by plaintiff.
To properly state a claim for intentional infliction of emotional distress, a plaintiff must allege that (1) the defendant engaged in extreme and outrageous conduct and (2) such conduct was intended to cause, and in fact did cause, severe emotional distress. See Dickens v. Puryear, 302 N.C. 437, 447 , 276 S.E.2d 325, 332 (1981). Plaintiff has alleged a claim of intentional infliction of emotional distress specifically asserting that defendants “created the videotape and sent it to *800 Dr. Sypher intentionally, which conduct was extreme and outrageous, with the intent to cause emotional distress to [plaintiff].”
“The determination of whether the conduct alleged” is sufficiently “extreme and outrageous enough to support such an action is a question of law for the trial judge.” Lenins v. K-Mart Corp., 98 N.C. App. 590, 599 , 391 S.E.2d 843, 848 (1990) (citation omitted). Conduct is extreme and outrageous when it 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.’ ” Briggs v. Rosenthal, 73 N.C. App. 672, 677 , 327 S.E.2d 308, 311 (1985) (quoting Restatement (Second) of Torts, § 46 cmt. d (1965)).
In this case, plaintiff essentially alleges that defendants prepared a videotape purporting to demonstrate the functions of plaintiffs job which failed to show all áspects of his job and allegedly omitted some of the job functions plaintiff contended were the cause of his injury. Defendants sent the videotape to plaintiffs physician, who reviewed the tape and changed his opinion that plaintiffs condition was job-related. While such alleged conduct might well be most objectionable, defendants’ actions “may not be reasonably regarded as exceeding all bounds usually tolerated by a decent society so as to satisfy the first element of the tort, requiring a showing of extreme and outrageous conduct.” Shreve v. Duke Power Co., 85 N.C. App. 253, 257 , 354 S.E.2d 357, 360 (1987) (citing Hogan v. Forsyth Country Club Co., 79 N.C. 483 , 340 S.E.2d 116 (1986)).
Plaintiffs claim for intentional infliction of emotional distress should be dismissed because the conduct alleged under this cause of action, even if true, does not rise to the level of behavior our courts previously have required. Assuming the allegations in plaintiff’s claim to be true, these actions do not exceed all bounds usually tolerated by decent society. Our courts have appropriately held that allegations of actions by a defendant that rose to the level of “extreme and outrageous” conduct are actionable. See, e.g., Hogan, 79 N.C. App. at 494 , 340 S.E.2d at 123 (sexual advances and harassment and threats of bodily injury sufficient to maintain claim for intentional infliction of emotional distress). However, in other employment actions, our courts have been reluctant to find intentional infliction of emotional distress claims actionable. See, e.g., Haburjak v. Prudential Bache Securities, Inc., 759 F. Supp. 293 (W.D.N.C. 1991); Mullís v. The Pantry, Inc., 93 N.C. App. 591 , 378 S.E.2d 578 (1989); McKnight v. Simpson’s Beauty Supply, Inc., 86 N.C. App. 451 , 358 S.E.2d 107 *801 (1987). But see Brown v. Burlington Industries, Inc., 93 N.C. App. 431 , 378 S.E.2d 232 (1989). The tort of intentional infliction of emotional distress is reserved for conduct that is “ ‘utterly intolerable in a civilized community.’ ” Hogan, 79 N.C. App. at 493-94 , 340 S.E.2d at 123 (citation omitted). Our Court in Hogan dismissed one plaintiff’s claim for intentional infliction of emotional distress despite the fact that she alleged her manager refused her request for pregnancy leave, directed her to carry heavy objects weighing more than ten pounds, cursed at her, and refused her request to leave work to visit a hospital. See id. at 494, 340 S.E.2d at 123 (characterizing such alleged conduct as “unjustified under the circumstances” but not “ ‘extreme and outrageous’ as to give rise to a claim for intentional infliction of emotional distress”).
Like other cases in which our courts have found the alleged conduct fell short of establishing the tort, defendants’ alleged actions do not rise to the level of conduct required to establish a claim of intentional infliction of emotional distress and as a matter of law, are insufficient to state such a cause of action. See, e.g., Buser v. Southern Foodservice, Inc., 73 F. Supp. 2d 556 (M.D.N.C. 1999) (termination of employee who refused to return to work from leave under Family and Medical Leave Act not “extreme and outrageous” conduct); Pardasani v. Rack Room Shoes Inc., 912 F. Supp. 187 (M.D.N.C. 1996) (conduct not “extreme and outrageous” when the plaintiff alleged that he was given poor performance evaluations, denied promotions available to others, excluded from training, and finally terminated from his employment); Dickens, 302 N.C. 437 , 276 S.E.2d 325 (physical abuse not sufficient); Lorbacher v. Housing Authority of the City of Raleigh, 127 N.C. App. 663 , 493 S.E.2d 74 (1997) (alleged discharge for the purposes of deflecting responsibility for certain deaths and for retaliation of First Amendment rights not “extreme and outrageous” conduct); Poston v. Poston, 112 N.C. App. 849 , 436 S.E.2d 854 (1993) (adultery not extreme and outrageous conduct); Wilson v. Bellamy, 105 N.C. App. 446 , 414 S.E.2d 347 (1992) (some evidence of sexual battery, standing alone, not “atrocious”). The totality of defendants’ actions simply is not comparable to cases in which our courts have imposed liability for intentional infliction of emotional distress. For example, defendants’ actions did not involve physical abuse as in Dickens , sexual harassment as in Hogan and Brown, or threats, obscene gestures, and cursing as in Wilson. The conduct that sustained claims in those cases far exceeds in outrageousness the conduct experienced by plaintiff in this case. Accordingly, to the extent that plaintiff’s complaint does not identify conduct that can be con *802 sidered extreme and outrageous, he has not alleged a claim for intentional infliction of emotional distress; therefore, the trial court did not err in entering judgment in favor of defendants.
I respectfully disagree and dissent in part.