Opinion
1:97cv145-C
February 9, 1998
MEMORANDUM OF DECISION
THIS MATTER is before the court upon defendant's Motion for Summary Judgment. The court has considered carefully the respective arguments of counsel and determined that defendant is entitled to the relief it seeks. As for plaintiff, although the court does not condone the juvenile acts of her coworkers, she has not made a showing of gender-based harassment in her workplace that was condoned, even tacitly, by defendant. Indeed, the record is undisputed that defendant took prompt and effective remedial steps to provide plaintiff with a workplace free of harassment.
FINDINGS AND CONCLUSIONS
I. Factual Background
The following facts are not in dispute. Defendant is an "employer," as that term is defined by Title VII. At its pulp mill located in Canton, North Carolina, it is engaged in its business of producing paper and paper products. In March 1984, plaintiff was hired as a Vacancy Replacement in the "Production Control Department" of defendant's Canton mill, and she worked in that department until October 1987. She then bid into a temporary position in the "Shipping Department," where she remained for five months before bidding bid into the "Wood Yard" in March 1988 as a Vacancy Replacement. Plaintiffs complaint covers eight isolated incidents between the years of 1988 and 1995.
While at the Wood Yard, plaintiff steadily advanced to become a Senior Raw Materials Coordinator in March 1995. She received positive performance appraisals from her immediate supervisor, Wayne King ("King"), who was the Wood Yard Superintendent, and Bob Cicale ("Cicale"), who was the Department Manager. Consistent with the high marks she received from her superiors, her annual salary increased nearly fifty percent in the years within which she claims harassment.
Although the Wood Yard was staffed primarily by male employees, plaintiffs coworkers and peers included five women — Anita Carpenter, Pat Ingle, Vera Mason, Joy McKinney (Thomas), and Ann Riddle. Those coworkers have submitted affidavits indicating that during their careers with defendant, they have not been treated unfairly based on their gender and have not experienced, witnessed, or heard anything sexually offensive directed at them or anyone else, including plaintiff. Plaintiff has submitted no evidence that would contradict those affidavits. Her coworkers testified, and plaintiff admitted, that she is a moody person, with an unpredictable temper, who physically attacked one of her female coworkers and intimidated her male coworkers.
Equally important as the allegations plaintiff has made are those she has not. She does not contend
(1) that anyone in defendant's management ever sexually harassed her or intentionally tried to harm her; or
(2) that her coworkers ever touched her inappropriately, asked her for sexual favors, asked her out on a date, or made her the target of profane or vulgar language during the time she worked for defendant.
Instead, plaintiff contends that she was the victim of inconsiderate treatment on eight separate occasions between 1988 and July 1995. Because there is no nexus between the first seven (which are time barred) and the eighth, the first seven will be discussed briefly and the eighth explored more fully.
Plaintiff contends that the first seven incidents (none of which was timely raised with the EEOC) should be considered by this court under a continuing-violation theory. She cannot prevail on such a theory, however, because she has failed to demonstrate (1) a close connection between the eighth (timely) act and the first seven (untimely) acts; (2) a frequently recurring violation of her rights; (3) an unawareness of her duty to assert her rights; and (4) an actual violation of the law within the requisite time period. Hill v. ATT Technologies. Inc., 731 F.2d 175 (4th Cir. 1984); Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir. 1983).
A. Incident #1: Restrooms in the Old Scalehouse (1988-89)
In 1988, plaintiff requested that defendant designate one of its two unisex restrooms in the Wood Yard as a "women's" room and fit the door leading into it with a lock. Defendant responded by having a sign labeled "women" hung outside one of the restrooms and having a latching device installed on that restroom's door. Later that year, plaintiff alleges, the sign was removed and someone locked the door to that restroom from the inside. Plaintiff has no idea whether that prank was perpetrated by a male or female coworker. Her female coworkers did not experience problems with that restroom, and she failed to make any complaint until 1989, at which time defendant promptly redesignated the facility for women, changed the lock, and offered plaintiff a key. After those remedial steps, the problem did not recur. Plaintiff has admitted that she knew at that time that she could file a charge of discrimination based upon the incident.
B. Incident #2: The Drawing (1988-1993)
Sometime in 1988 or 1989, plaintiff observed a drawing labeled as depicting her and coworker Ann Riddle speaking to one another with a caption reading, "`[A]nd keep an eye out for Wayne.' he pinches!" Plaintiff understood the drawing referenced her supervisor, Wayne King, and that it accused him (and not her) of engaging in unacceptable sexual behavior. Riddle laughed at the drawing, but plaintiff took offense at the picture and reported it to her foreman, Rase Bohannon ("Bohannon"). Plaintiff contends Bohannon walked over to the Scalehouse to investigate the drawing and laughed when he saw it. She then announced, "You guys — I could get everyone in here for sexual harassment."
Stanley Henson ("Henson"), a coworker, then admitted that he was responsible, in part, for the drawing. Bohannon immediately called Henson and plaintiff into his office, he and Henson apologized to plaintiff, plaintiff accepted their apologies, and plaintiff apologized to Henson for accusing him of sexual harassment.
Following that incident, Henson avoided talking to plaintiff because he was worried that she would again accuse him of harassment. When plaintiff reported Henson's behavior to King in 1990, King met with the pair, explained Henson's concern to plaintiff, and assured plaintiff that Henson's reluctance to talk with her would not interfere with her work performance. When, in 1993, plaintiff again informed King that she was having communication problems with Henson, King met with the pair and helped them resolve their dispute fully. Plaintiff never filed an internal complaint accusing Henson of sexual harassment, and she admits that she has not encountered any problems with Henson since March 1993.
C. Incident #3: Smoking in the Old Scalehouse (1989)
Plaintiff contends that beginning in 1989, defendant failed to enforce adequately its nosmoking policy in the Old Scalehouse. Although she claims that failure was to her detriment, she admits it was not based upon her gender and that two of the smokers who ignored the policy were women.
D. Incident #4: The List of Telephone Numbers (1992)
Three years later, in July 1992, plaintiff observed a list of vulgar words co-worker Alan Davis ("Davis") left among a pile of papers on the desk he shared with her.
It is undisputed that Davis compiled the list earlier in the day after he learned that seven-letter dirty word combinations occasionally followed a 1-800 prefix. Davis intended to take the list home to show his wife, but forgot to do so and left it at work. Plaintiff admits her name does not appear anywhere on the list.
Upon finding the list, plaintiff phoned Debbie Patsky ("Patsky"), a friend and member of defendant's Human Resource Department, at Patsky' home. Patsky asked plaintiff if she wanted to file a complaint against Davis; plaintiff declined to do so. Within an hour of plaintiffs discovery, DaviE realized that he had left the list at work, returned and retrieved the list from plaintiff, and apologized to her for leaving it behind.
The next day, plaintiff informed King that Davis had left a list of "vulgar phone numbers" at work the previous evening. Plaintiff declined to elaborate or show King a copy of the list, and it is undisputed that King had no idea what plaintiff was talking about. King nonetheless counseled Davis to refrain from offending plaintiff, and Davis again apologized to plaintiff. Plaintiff admits that she encountered no subsequent gender-related problems with Davis. Plaintiff believed the list was sexually harassing when she first saw it, yet she chose not to file an EEOC charge of discrimination until 1996.
E. Incident #5: The Note (1993)
One year later, plaintiff observed a note on the Old Scalehouse bulletin board which read: "Some people have such a boring life that they have to mind everybody else's business but their own!" Plaintiff admits that the note was neither gender-related nor vulgar and that it paraphrases a statement coworker Vera Mason made to her two days earlier in the midst of an argument.
Plaintiff contends that she felt sexually harassed by the note when she saw it, yet she failed to inform either defendant's Human Resource Department or the EEOC of this event until 1996 — after she left defendant's employ.
F. Incident #6: The Team Meeting (1994)
In 1994, plaintiff attended a team meeting in which she was criticized by her male and female coworkers for gossiping about Vera Mason and Joy McKinney. Plaintiff admits that the criticism she received during the meeting was not motivated by her gender. She also admits that she knowingly failed to file a timely charge of discrimination with the EEOC over this incident even though she believed she could have done so.
G. Incident #7: The Floor Waxing Episode (April 1995)
In April of the following year, plaintiff volunteered to wax the Old Scalehouse floor. Before starting, she locked the front door and placed a sign out front informing her coworkers to enter the Scalehouse through the back door. Terry Cope ("Cope"), one of plaintiffs male coworkers, attempted to enter the Scalehouse to use the restroom, shook the locked front door, yelled "let me in," and then walked to the rear entrance of the building.
Upon seeing plaintiff, Cope said, "My wife doesn't treat me this way at home and you're not going to treat me this way down here." When Cope exited the restroom, he noticed plaintiff was upset and informed her that he was only joking with her. After unsuccessfully attempting to console plaintiff Cope informed her that she was too sensitive and that if she couldn't take a joke, he wouldn't talk to her anymore. Plaintiff believed then, as she does now, that Cope sexually harassed her, yet she failed to report this incident to either defendant's Human Resources Department or the EEOC for 15 months.
H. Incident #8: Plaintiff's Last Day of Work (July 1995)
Fifteen months later, on the evening of July 16, 1995, plaintiff walked over to the railroad switching shack in the Wood Yard to ask coworkers James Fretwell ("Fretwell") and Doug Massey ("Massey") why they had not switched the tracks for the last train car. Fretwell responded that plaintif should "get her butt back" to the Old Scalehouse and that she, like male coworkers Gene Britt and Greg Bridges, was trying "to run everyone else's business except (her) own." Plaintiff acknowledges that Fretwell's comment was not gender-related. She then claims Massey said, "Why don't you just bid out from down here? You need to find a job that's for women. This is no place for you in the Wood Yard."
Later that evening, plaintiff phoned Massey to inform him that he had hurt her feelings. Massey reassured plaintiff that he was only kidding and that he "wouldn't hurt her feelings for anything."
On July 31, plaintiff met with Jeff Getson ("Getson"), defendant's Manager of Human Resources and Organizational Development, to discuss the July 16 incident. At the conclusion of their meeting, Getson informed plaintiff that defendant would investigate her complaint immediately. Getson then interviewed King and instructed Jim Froehlich ("Froehlich"), Employee Relations Manager, to investigate the incident thoroughly.
Froehlich (1) interviewed McDowell, Fretwell, and Massey in the presence of King, Cicale and the union president; (2) informed McDowell, Fretwell and Massey that defendant would not tolerate harassment; and (3) discussed his findings and conclusions with Getson. On August 31, 1997, Getson met again with plaintiff and informed her that, even though defendant's investigation revealed that she had not been sexually harassed, it was clear that she was not getting along with her coworkers. Getson then offered plaintiff a one-month, paid leave of absence and presented her with two options upon her return: (1) rejoin her crew, with defendant's assurance that it would not tolerate any problems caused by her coworkers; or (2) bid into another job of her choosing. Plaintiff accepted the leave time and indicated that she would bid for a new position when she returned to work in October.
Despite Cicale's and Getson's urgings for plaintiff to return, she directed her attorneys to resign on her behalf on October 11, 1995. Two weeks later, defendant offered plaintiff a job in its Accounting Department. Plaintiff understood that this position was offered to her on an unconditional basis, that it entailed no loss of pay, and that she was qualified for the job. She admits that the job was more desirable than the one she held in the Wood Yard and would have placed her far from her former coworkers. Plaintiff rejected the offer, however, and asserted that the position would be temporary and she would be forced to bid for another position within six months. Another position was also offered to, but rejected by, plaintiff. It was a permanent secretarial job, located in a different part of the mill, for which she was qualified, and with a salary equal to that of her job in the Wood Yard. In the two and one-half years since she left active service at defendant's Canton mill in July 1995, plaintiff has applied for only seven jobs. She was offered, but refused, four of them. Plaintiff admits that she is not actively searching for work and spends much of her days at home surfing the Internet. Her job search is not hampered by any medical condition. She describes herself as being in excellent health, and states that she has not experienced any symptoms of depression since December 1995 — one month after she resigned. In her responsive memorandum, she says she is seeking compensation for "loss of earning potential," but not for past or future wages.
II. Summary Judgment Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242 (1986). By reviewing substantive law, the court may determine what matters constitute material facts. Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendant's Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
III. Discussion
A. Jurisdiction
This matter arises under Title VII of the Civil Rights Act of 1964, as amended — 42, United States Code, Sections 2000e, et seq. Plaintiff claims that she was sexually harassed by coworkers and was constructively discharged from her employment with defendant. She timely filed a charge of discrimination with the Equal Employment Opportunity Commission as to the eighth incident, but failed to file a timely charge as to the preceding seven. This court has jurisdiction over plaintiffs claims. 28 U.S.C. § 1343; 42 U.S.C. § 2000e(5)(f)(3).
In addition to claims made pursuant to the laws of the United States, plaintiff has claimed intentional infliction of emotional distress, which is governed by the laws of the State of North Carolina. This court's jurisdiction over that claim is pursuant to statutory supplemental jurisdiction, which provides that a federal court's original jurisdiction extends to nonfederal claims when the federal question is substantial and the claims asserted could be brought in one proceeding. In United Mine Workers v. Gibbs, 383 U.S. 715, 727 (1966), the Supreme Court found:
[If] considered without regard to their federal or state character, a plaintiffs claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in the federal courts to hear the whole.
Inasmuch as it appears that plaintiffs state-law claim arises from the same transactions or occurrences upon which her federal claim is based, the issues are properly joined in this action.
B. Title VII
1. Introduction
Title VII has created two recognized causes of action — quid-pro-quo harassment and hostile work environment claims. The respective burdens in the two types of sexual harassment claims may be met with direct evidence, introduction of statements, or circumstantial evidence which is relevant and probative. Moore v. City of Charlotte, 754 F.2d 1100 (4th Cir.), cert. denied, 472 U.S. 1021 (1985). As discussed supra, plaintiffs burden is to show that there is a genuine issue of material fact warranting trial.
2. Quid-Pro-Quo Harassment Quid-pro-quo harassment is not alleged herein and, therefore, will be discussed only briefly. It is defined as "harassment in which a supervisor demands sexual consideration in exchange for job benefits,"Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983), see also Spencer v. General Electric Co., 894 F.2d 651, 658 (4th Cir. 1990); and consists of conditioning employment benefits on the employee's submitting to the sexual advances or threatening adverse employment actions if the employee does not submit see Tomkins v. Public Serv. Elec. Gas Co., 568 F.2d 1044 (3d Cir. 1977). "Benefits" may include the taking of adverse employment action against an employee who refuses to submit to the supervisors sexual advances. Sparks v. Pilot Freight Carriers. Inc., 830 F.2d 1554 (11th Cir. 1987).
3. Hostile Work Environment
In order to maintain a claim of hostile work environment, it is required that four specific elements be shown:
(1) that the conduct was unwelcome, (2) that the harassment was based on sex, (3) that the harassment was sufficiently pervasive or severe to create an abusive working environment, and (4) that some basis exists for imputing liability to the employer.Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989), vacated in part, 1989 U.S. App. LEXIS 13074 (4th Cir. 1989), vacated 900 F.2d 27 (4th Cir. 1990). The "notice" requirement can be rebuttec by the employer directly or through evidence which shows the employer took prompt remedial action. Id. "Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace." Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 117 S.Ct. 70 (1996). Rather, its purpose is to protect a "reasonable person" from an environment in which abuse is sufficiently severe or pervasive as to alter the conditions of his or her employment. Id. at 753 (citing Harris v. Forklift Svs. Inc., 510 U.S. 17, 19 (1993) and Menitor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 67 (1986)). Each element will be discussed below in the context of a prima facie case.
4. A Prima Fade Case
a. Unwelcome Conduct
In her allegation concerning the eighth incident, plaintiff has shown that coworker Fretwell made an unkind remark in which he told her to get her "butt" back to her work station and to mind her own business, and that coworker Massey said, unkindly, that the Wood Yard was no place for womei and that she should bid out to another job. Plaintiff has shown unwelcome conduct as to those statements.
b. Based on Sex
Plaintiff admits that the statements by Fretwell were not based on gender, but has shown that Massey's comments were. Only Massey's statements, therefore, survive the second element.
c. Pervasiveness
As the Court of Appeals for the Fourth Circuit has held: "Whether . . . harassment was sufficiently severe or pervasive is quintessentially a question of fact." Paroline v. Unisys Corp., supra, at 105. Acknowledging plaintiffs contention that prior incidents would support a showing of pervasiveness even if incident eight were the only event to be considered substantively, the court will assume pervasiveness for the limited purpose of ruling on the pending motion.
d. Basis for Imputing Liability to the Corporate Defendant
Assuming that plaintiff has shown unwelcome, pervasive conduct based upon gender, liability cannot attach to defendant under Title VII unless plaintiff also proves that defendant, upon learning o plaintiffs work environment, took no effective action to correct the situation. Spicer v. Commonwealth of Virginia, 66 F.3d 705, 710 (4th Cir. 1995). Even if incidents four, five, six, and seven were considered, they were not reported to defendant's Human Resources Department until 1995. See Cross v. Alabama Dept. of Mental Health Mental Retardation, 49 F.3d 1490, 1506 reh'g denied, 59 F.3d 1248 (11th Cir. 1995); see also Nash v. Electrospace Sys., 9 F.3d 401, 404 (5th Cir. 1993) (holding that an employer has no reason to know of alleged harassment until an employee reports it).
As discussed at length above, defendant took prompt, remedial action on the few occasions plaintiff did complain about her workplace conflicts. Plaintiff has admitted that the response of the Human Resources Department to the first incident was exemplary. When plaintiff informed King that she could not get Henson to speak to her, King met with the pair twice and ultimately helped them to resolve their differences fully. As to incident three — the smoking in a nondesignated area, which the court finds wholly irrelevant to plaintiffs claim — defendant's management placed "no smoking" signs on the doors to the Scalehouse and requested that employees abide by that policy. When informed of the "vulgar telephone numbers," King orally reprimanded Davis, Davis apologized for his mistake, and plaintiff admits that she never encountered another gender-related problem with Davis.
As to incident eight, it is undisputed that upon learning of plaintiffs encounter with Fretwell and Massey, defendant's Human Resources Department took the following action:
(1) interviewed the alleged harassers and their supervisors;
(2) met again with plaintiff to assure her that she could return to her job without fear of being bothered by her coworkers; and
(3) in the alternative, offered to transfer plaintiff to a vacant position of her choosing or into the Accounting Department.
Indeed, plaintiff responded by accepting paid leave for a month and indicating to defendant that she would take the transfer.
The court does not doubt that plaintiff believed, in good faith, that she had been the victim of sexual harassment in the workplace. The undisputed facts, when viewed in light of relevant case law tell a different story. Title VII is, perhaps, the most important legislation of this century, for it attempts to level the workplace playing field by creating an action for unlawful and reprehensible prejudice. It, however, does not guarantee any employee — male or female, black or white — that, otherwise, they will have a pleasant and civil workplace. This court has no jurisdiction over unpleasantness and incivility unless its origin or result is unlawful discrimination.
While plaintiff makes clear in her brief that she does not believe defendant did enough, the undisputed factual record reveals to this court that defendant did everything within its power to stop the conduct plaintiff found offensive and to provide her with other employment opportunities. That plaintiff did not avail herself of those opportunities for positions she admits were more desirable is a pity and a waste, inasmuch as she was well qualified and motivated to do excellent work. "[L]iability must cease" when an employer's remedial response results in the cessation of alleged harassment. Spicer, supra, at 711.
C. Constructive Discharge
Under Section 623(a)(1), an employee must have been discharged by the employer in order to state a claim. Only where there is an adverse employment action by the employer will there be a protection afforded under federal law; however, an employee may claim constructive discharge when "an employer deliberately makes an employee's working conditions intolerable and thereby forces hin [or her] to quit his [o]r her job."Holsey v. Armour Co., 743 F.2d 199, 209 (4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985).
A Title VII claim of constructive discharge has two elements — "deliberateness of the employer's action, and intolerability of the working conditions." Bristow v. Daily Press. Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986). A claim of constructive discharge is not founded upon a failure to remove the accused summarily or create a new position to appease the accuser. To allow otherwise would be to mandate the immediate discharge or demotion of employees who are accused of sexual misconduct. As raised by Judge Wilkinson in his dissent in Paroline:
The workplace becomes the world of the accuser where the slightest hesitancy in discharging the target of an accusation may lead the accuser to quit and later hold the Company liable for constructive discharge . . . . The accused also has an interest, however, in not losing a job or reputation on the basis of an accusation that turns out to be mistaken or downright false. The rule of law must reflect some equation of interests in a controversy.Paroline v. Unisys Corp., supra, at 115.
Actions are deliberate where they are "intended by the employer as an effort to force the employee to quit." EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 672 (4th Cir. 1983), rev'd on other grounds, 467 U.S. 867 (1984). Plaintiff has presented no evidence that the actions of defendant were intended to force her resignation. To the contrary, the evidence indicates overwhelmingly that defendant took great pains to keep plaintiff on board, including offering her more desirable work in locations remote from the Wood Yard. A belief by an employee that an employer's remedial steps will be inadequate does not, per se, give rise to a claim for constructive discharge because "the law does not permit an employee's subjective perceptions to govern a claim of constructive discharge." Bristow v. Daily Press. Inc., supra, at 1255. Intent may be inferred where a plaintiff can show a failure to act in the face of intolerable conditions which are known to the employer. Holsey v. Armour Co., supra, at 209. The undisputed evidence reveals that defendant did act and that plaintiff was not subjected to intolerable conditions. Working conditions are intolerable where a "reasonable person," in the employee's position, would have felt compelled to resign. Bristow v. Daily Press. Inc., supra, at 1255. Plaintiffs only evidence that working conditions were intolerable is her own subjective perception that the steps taken by her employer were inadequate. By resigning in anticipation that the steps would be inadequate, plaintiff never gave the remedial measures an opportunity to work.
D. Intentional Infliction of Emotional Distress:
Defendant has also moved for summary judgment on plaintiffs state-law claim of intentional infliction of emotional distress. The elements of the tort are "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488, disc. rev. denied, 317 N.C. 334 (1986). "It is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery." Id., at 490.
For purposes of ruling on defendant's motion, the court has resolved any disputed facts in plaintiffs favor. Even if the court were to consider all eight incidents, they do not "exceed all bounds of decency,"West v. King's Dep't Stores Inc., 365 S.E.2d 621, 625 (N.C. 1988), and cannot be "regarded as atrocious, and utterly intolerable in a civilized community.'" Wagoner v. Elkin City School Bd. of Educ., 440 S.E.2d 119, 123 (N.C.Ct.App. 1994) (citation omitted). Plaintiff has testified that no manager employed by defendant ever attempted to intentionally harm her in any way. She also admits that she is in "excellent health" and has not experienced any depression attributable to defendant since one month after she resigned. Waddle v. Sparks, 414 S.E.2d 22, 27 (N.C. 1992). Finally, there is no evidence that plaintiffs normal activities were adversely affected.
As a matter of law, neither the acts alleged by plaintiff nor her resulting emotional distress and physical ailments (if any) rises to a level which would support her claim. In Hogan, wherein a defendant threatened plaintiff with bodily injury and advanced on her with a knife after she refused his sexual advances, the appellate court found that plaintiff had stated a cause of action and that defendant's conduct was "beyond the `bounds usually tolerated by decent society.'" Hogan v. Forsyti Country Club Co., supra, at 491. While the conduct alleged herein could be construed as juvenile and inappropriate in any work environment, there is no evidence that defendant crossed the line drawn by Hogan.
Plaintiff has not presented evidence that what happened at defendant's Canton mill was outrageous and has faltered in showing that her reactions were severe or extreme. In Hogan, that plaintiff presented evidence that she developed ulceration — a condition evincing emotional distress and having a long-term physical detriment.
Although the conduct of which plaintiff complains cannot be tolerated in a civilized workplace and should be dealt with exactingly, if proven, the evidence presented does not reveal conduct that would, as a matter of law, give rise to such a sweeping cause of action. The cause of action for intentional infliction of emotional distress is a last resort for calling to task (1) those who engage in primitive and uncivilized behavior in an attempt to impose their prurient will on others or (2) those in positions of authority and responsibility who allow such conduct to occur or continue. If courts were to permit such claims, absent a showing of conduct which exceeded bounds of common decency, the cause of action would be rendered meaningless. Inasmuch as plaintiff cannot meet the standards set forth in Hogan, judgment must be entered for defendant as to plaintiffs claim of intentional infliction of emotional distress.
A judgment granting defendant's Motion for Summary Judgment and dismissing all of plaintiffs claims with prejudice will be entered simultaneously herewith.
This Memorandum of Decision is entered in response to defendant's Motion for Summary Judgment.
This 9th day of February 1998.