Chapter 16 - § 16.3 • INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

• Jurisdiction: Colorado

§ 16.3 • INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The tort claim of intentional infliction of emotional distress is synonymous with the claim of outrageous conduct. Outrageous conduct claims typically arise from the manner in which an adverse employment action is taken, or the circumstances under which it occurs, rather than the act itself. See Grandchamp v. United Air Lines, Inc., 854 F.2d 381, 385 (10th Cir. 1988).

It is important to note that a person is not immune from liability from a claim for outrageous conduct simply because that conduct involves exercising a legal right. Thus, an employer who may have the right to terminate an at-will employee nonetheless may be subject to liability if its actions are outrageous in carrying out that goal.

However, in practice, the fact patterns that will support claims of outrageous conduct are quite rare. In most cases, "the plaintiff believes that the defendant's conduct has been outrageous. Most lawsuits also cause the plaintiff (and often the defendant) emotional stress. Yet very few fact situations give rise to a cognizable claim for intentional infliction of emotional distress." Rawson v. Sears Roebuck & Co., 530 F. Supp. 776, 780 (D. Colo. 1982).

§ 16.3.1—Elements Of The Claim

The Colorado Supreme Court adopted the tort of intentional infliction of emotional distress in Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970). Ms. Rugg brought suit against a debt collection company and its manager for severely harassing her and embarrassing her at her place of work. In reversing the trial court's dismissal of the complaint, the court for the first time recognized the validity of a claim for outrageous conduct.

The Rugg court adopted the definition of this action found in the Restatement (Second) of Torts § 46 (1965). Under this definition, if a person "by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another," that person is liable for the emotional distress and any resulting bodily harm. Rugg, 476 P.2d at 756. Exemplary damages may also be awarded. C.R.S. § 13-21-102(1).

The court emphasized, however, that the conduct must truly be extreme and outrageous, providing for liability only if:

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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous."

476 P.2d at 756 (citations omitted); see also Churchey v. Adolph Coors Co., 759 P.2d 1336, 1349-51 (Colo. 1988). In order to be liable under the tort of outrageous conduct, a defendant's conduct must be more than just "unreasonable, unkind, and unfair; it must truly offend community notions of acceptable conduct." Grandchamp, 854 F.2d at 383.

In Colorado, courts typically recognize claims of intentional infliction of emotional distress only when there has been a pattern of outrageous conduct, rather than an isolated incident. Rawson, 530 F. Supp. at 780. In Rawson, the court reviewed the line of outrageous conduct claims since Rugg, and concluded that

claims for intentional infliction of emotional distress will normally only be cognizable in cases where the defendant has engaged in a pattern of conduct that either has [sic] intended to cause or recklessly did cause severe emotional distress. While it is possible for a single, isolated activity to be a sufficient basis for a cause of action, it only will be so where a public or quasipublic official has severely abused his discretion or a private individual has blatantly and severely harassed another.

Id. at 780 (emphasis added). Thus, when the conduct in question involves a series of incidents or a history of malicious behavior toward the defendant, courts are far more likely to find the conduct outrageous. See Meiter v. Cavanaugh, 580 P.2d 399, 401 (Colo. App. 1978). Courts are directed to evaluate the totality of the circumstances in determining whether a plaintiff has stated a cause of action for outrageous conduct. Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292 (Colo. App. 1982).

Government Employers

In Smith v. Board of Education of School District Fremont RE-1, the court affirmed that because a government actor enjoys qualified immunity under the Colorado Governmental Immunity Act (CGIA), C.R.S. § 24-10-118, in addition to the traditional elements of outrageous conduct, a plaintiff must also show that the conduct was "willful and wanton." 83 P.3d 1157, 1167 (Colo. App. 2003). In such situations, while a defendant has the burden of proving the affirmative defense of governmental immunity, to overcome the immunity, the plaintiff must prove that the defendant's action was willful and wanton. Id.; see also Duong v. County of Arapahoe, 837 P.2d 226 (Colo. App. 1992) (dismissal of tort claims on basis of sovereign immunity proper because plaintiffs presented no evidence of willful and wanton conduct).

To be found willful and wanton, conduct must be more than merely negligent, "it must exhibit a conscious disregard for the danger." Martinez v. Estate of Bleck, 2016 CO 58, ¶ 32. If dismissal is sought on the basis of sovereign immunity, the trial court must make the factual determination of whether the conduct was willful and wanton prior to trial. Id. at ¶ 27.

In Maestas v. Lujan, the plaintiff's successful outrageous conduct claim against her supervisor at the Colorado Department of Revenue was reversed insofar as it relied on the application of the continuing violation doctrine and was remanded to determine whether the plaintiff complied with the CGIA notice provisions. 351 F.3d 1001 (10th Cir. 2003). The court noted that an employee with a tort claim against a public entity "must file a written notice of the claim within one hundred eighty days after the date of the discovery of the injury" and that failure to file a notice within this time frame is an "absolute bar to suit." Id. Moreover, the court held, in accordance with the Colorado Supreme Court's decision in Gallagher v. Board of Trustees for University of Northern Colorado, 54 P.3d 386, 393 (Colo. 2003), that the continuing violation doctrine cannot be used to remedy an untimely filing under the CGIA. Id.

In Arabalo v. City of Denver, 2013 WL 10871817 (D. Colo. Aug. 26, 2013), aff'd, 625 F. App'x 851, 854 (10th Cir. 2015), the plaintiff claimed that certain statements made by a Denver Sheriff's Department employee during an internal investigation constituted outrageous conduct and defamation, among other things. The plaintiff argued that the statements were not made during the performance of the employee's duties or within the scope of his employment, and therefore the notice of claim requirements of the CGIA did not apply. Specifically, the court addressed whether statements made during an Internal Affairs Bureau interview regarding sexual harassment complaints, accusing the plaintiff of embezzling funds from a third-party foundation, were made during the performance of the individual defendant's duties and within the scope of his employment. The court easily concluded that the individual defendant's participation in the investigation was within the scope of his employment, but struggled with whether the individual defendant's embezzlement accusations "so deviated from the stated purpose of the interview — investigation of complaints of sex discrimination — that he was no longer within the scope of his employment when making those allegations." Ultimately, the court determined that the individual defendant was obligated under the law to report his concerns about potential illegal conduct, even, arguably, off-duty conduct, by the plaintiff; and, therefore, his accusations were made during the performance of his duties and within the scope of his employment. The court then dismissed the plaintiff's outrageous conduct claim for failure to comply with the notice-of-claim requirements of the CGIA.

§ 16.3.2—Applicability To The Employment Relationship

It is clear that in Colorado, a claim for the intentional infliction of emotional distress can arise out of the employment relationship. See Churchey, 759 P.2d at 1350; Grandchamp, 854 F.2d at 384-85; see generally Annotation, Liability of Employer, Supervisor, or Manager for Intentionally or Recklessly Causing Employee Emotional Distress, 52 A.L.R. 4th 853 (1987). There are very limited circumstances, however, that will support a claim of outrageous conduct in the workplace, and Colorado courts have been reluctant to sustain such a claim.

This chapter will now explore the Colorado decisions that have addressed the claim of outrageous conduct in the employment setting. It is important to review these cases to gain insight into the particular types of workplace conduct that could lead to liability under this claim. First, the chapter will discuss cases in which outrageous conduct was found. More significantly, it will address the numerous Colorado cases that have found in favor of the defendant on claims of intentional infliction of emotional distress.

Cases Where Outrageous Conduct Was Found

Although there are relatively few employment cases in Colorado in which claims for outrageous conduct were sustained, a brief review will prove instructive.

Abusive Investigation Techniques

In Ellis v. Buckley, a terminated employee alleged that a polygraph examiner engaged in outrageous conduct during and after a test. 790 P.2d 875, 876-77 (Colo. App. 1989). The 20-year-old plaintiff stated that the examiner interrogated her in a small room for two hours without informing her that she could leave, and continued questioning her and accusing her of theft despite her crying, denials, and exemplary record. Id. The court found that these facts were sufficient to state a claim for outrageous conduct. Id. at...