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phenomenon of "workplace bullying" and the need for status-blind hostile work environment protection, The
Georgetown Law Journal, Mar 2000 by Yamada, David C
135. See RESTATEMENT (SECOND) or TORTS sec46 cmt. f (1965) (stating that outrageousness may arise out of the actor's knowledge of plaintiffs peculiar susceptibility to emotional distress.
A more appropriate application of this provision can be found in Kroger v. Willgruber, 920 S.W.2d 61, 67 (Ry. 1996, where the Kentucky Supreme Court found that the defendant's prior knowledge of the plaintiff's "precarious emotional health" was properly considered by the jury in determining that the defendant's conduct was outrageous.
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136. The Holloman decision appears to be the result of a distorted reading of a previous Arkansas Supreme Court case, Tandy v. Bone, 678 5.W.2d 312 (Ark. 1984. Tandy involved an employee who was refused permission to take prescribed tranquilizers during the course of a day-long interrogation by store security personnel about internal theft. See id. ai 315. There, the court found that the employer's behavior could be considered outrageous only if it had prior notice of the employee's condition. See id. at 317.
In contrast to Holloman, Tandy appears to be a case in which prior notice is relevant to a finding of outrageousness. The court in Tandy suggests that the complained-of behavior, on its face, is not outrageous, but prior knowledge of the employee's condition could make it so. Holloman suggests it is wholly unnecessary to look at prior knowledge, for a trier of fact could easily find that Dr. Keadle's behavior, standing alone, was outrageous. There simply is no comparison between the day-long behavior in Tandy and the ongoing pattern of abuse lasting some two years in Holloman.
The Arkansas court also misclassified the Holloman case within the taxonomy of workplace lIED cases. Although, as the court recognized, Holloman "was not discharged, nor [did) she claim that she was constructively discharged," it aligned this case with other decisions in which unsuccessful plaintiffs had alleged lIED solely or primarily because they were discharged. Holloman, 931 S.W.2d at 413; see also text accompanying notes 188-90 (discussing why termination itself does not constitute outrageous conduct): In doing so, the court severely marginalized the abusive behavior that had occurred over a long period of time.
137. See, e.g., Polk v. Inroads/St. Louis, Inc., 951 S.W.2d 646 (Mo. App. 1997) (reinstating claim where plaintiff was subjected to "a calculated plan to cause . . . emotional harm" after she exposed misrepresentations by her supervisor); Vasarhelyi v. New Sch. for Soc. Research, 230 A.D.2d 658 (N.Y.
App. Div. 1996) (finding severe and outrageous conduct where employer subjected plaintiff to harassing and humiliating behavior after she questioned propriety of university president's internal financial dealings).
138. 230 A.2d 658 (N.Y App. Div. 1996).
139. See id, at 659.
140. Id. at 659-60.
141. See id, at 661-62.
142. See, e.g., Jeremiah v. Yanke Mach. Shop, Inc., 953 P:2d 992. 998-99 (Idaho 1998) (finding dismissal appropriate where, despite demeaning and obscene behavior, evidence that plaintiff was "seriously frustrated" did not constitute severe emotional distress); Priest v. TFH-EB, 711 N.E.2d 1070 (Ohio Ct. App. 1998) (finding that plaintiff's testimony that she felt humiliated and degraded was insufficient to establish severe emotional distress): McNeil v. Case V4'. Reserve Univ., 664 N.E.2d 973, 977 (Ohio Ct. App. 1995) (finding the plaintiffs claims that she was upset; angry, and experienced fear, anxiety, and distress were insufficient to establish severe emotional distress).
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