Opinion
Case No. 1:98-CV-807
Date October 4, 1999
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Dkt #32) is GRANTED.
IT IS FURTHER ORDERED that JUDGMENT be entered in favor of the Defendants.
OPINION
The Plaintiffs, Bonnie Wetter and Cynthia Quigley, brought this action against their former employer, Munson Home Health and Munson Home Care, alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") (Count I) and Michigan's Elliot Larson Civil Rights Act (Count II); retaliation for filing a complaint with the EEOC in violation of the ADEA and Michigan law (Count III); and intentional infliction of emotional distress (Count IV). Before the Court is the Defendants' motion for summary judgment as to all counts of the complaint. For the reasons contained herein, Defendants' motion is granted.
I
Quigley and Wetter were employed as nurses by the Defendants. Both are over 40 years old.
Munson Home Care (MHC), is a wholly owned subsidiary of Munson Home Health (MHH). MHC nurses provide skilled home and hospice care to the community in five districts.
Hereinafter, the Defendants will collectively be referred to as "Munson."
This action has its origin in a disciplinary action taken against the Plaintiffs as a result of record keeping errors.
All MHC staff are required to fill out a Daily Visit Activity (DVA) form for every day they work. The patient's name, patient activity, the amount of time spent on the visit and the mileage involved in driving to the patient's home are listed on the DVA. The DVA serves as a timecard record and the information is entered into a computer system that generates invoices to the various insurance companies. The nurse attaches the nursing notes to the DVA and submits the DVA and the attached nursing notes to Munson. Upon submission, Munson medical records clerks review the DVA and the nursing notes for accuracy.
Quigley submitted a DVA for September 30, 1997, without a corresponding nurses note. The error arose because Quigley had written down the wrong name of the patient rather than the one she had seen on September 30, 1997.
On October 8, 1997, Wetter, like Quigley, submitted a DVA without a corresponding nurses note. Wetter made the error because she had written down the name of a patient she had seen the day before.
Munson does not contend that either of these errors were anything but inadvertent accidents. However, Munson maintains that record keeping is extremely important because of its large Medicare practice and the concomitant governmental scrutiny of those invoices. Munson argues that record keeping errors are an adequate basis for imposing discipline. It is undisputed that both Plaintiffs were good employees without prior discipline problems. On November 11, 1997, Munson disciplined the Plaintiffs separately with a written reprimand for record keeping errors.
Munson calls it a "Counseling Note."
Munson's employee policy provides in relevant part:
Corrective Action. Except in a case where the employee's supervisor concludes the circumstances warrant discharge, a three step progressive corrective action procedure may be used in an effort to give employees advance notice of unacceptable performance and an opportunity to correct problems. Under this approach, a written reprimand will be issued to an employee who is being disciplined. If an employee at any time has three (3) active written reprimands, the employee's employment will be terminated.
Pls' Mtn in Opp'n, Exh. 1, Employee Handbook, Section 50.1.
The counseling documentation for both Quigley and Wetter each stated that they had failed to submit a nurses note. The Counseling Notes then referred to section 50.2 of the Employee Handbook as follows: "Falsifying Medicare or any MHH record including a timekeeping, charting, billing form, mileage or application for employment form. Actions which would constitute a criminal offense and could adversely affect MHH operations or reputation." Finally, the Counseling Note stated that "DVAs must be accurate and correct prior to submission. . . . If this performance is not corrected and is repeated, termination will occur." The written documentation was placed in Quigley and Wetter's files.
Pls' Mtn in Opp'n, Quigley's Munson Counseling Documentation and Wetter's Munson Counseling Documentation Exhibits. Wetter testified in her deposition that the reference to falsifying medical records and the reference to criminal acts was later removed. Defs' Mtn for SJ, Exh. J, Wetter Dep. at 66.
The Plaintiffs aver that record keeping errors are routine and are not the basis for written reprimands. Specifically, they allege that other, younger employees routinely make such errors and are not administered written reprimands. In addition, they proffer as evidence of discriminatory intent Wetter's deposition testimony that "at a meeting in June 1996, she heard Janet Wolf, Munson's Vice President, say that "[o]ne of [the] biggest problems is that we have so many older nurses with longevity." Wetter further alleges that Wolf commented that this was "one of the biggest expenses" and something had to be done about it.
Defs' Mtn for SJ, Exh. J. Wetter Dep. at 43.
In December 1997, the Plaintiffs filed an age discrimination complaint with the EEOC alleging that they were treated differently than younger individuals who have made record keeping errors.
Although the EEOC did not formally notify Munson that a complaint had been filed until January 1998, the Plaintiffs contend that they "were outspoken about having complained about discriminatory treatment." They allege that in retaliation for filing a complaint, Munson created "an intolerable work environment" for them. Specifically, the Complaint alleges that Munson: assigned Wetter to make patient visits that were so inconvenient that they made no sense; verbally reprimanded Wetter for changing the schedule despite having prior approval from her supervisor; required Quigley to perform services she was uncomfortable with; and made false statements about the Plaintiffs to the EEOC.
Pls' Mtn in Opp'n at 5.
Amended Compl. ¶ 14.
Amended Compl. ¶ 13.
Wetter avers that by mid-December 1997 she was subjected to "constant harassment and fault-finding at Munson" and that she concluded that "Munson was planning to terminate her." Wetter claims that, as a result, she shifted her focus from going part-time at Munson in order to spend more time in Detroit with her ex-husband to looking for full-time employment in Detroit. Wetter's letter of resignation dated February 12, 1999, informed Munson that she was resigning effective March 16, 1999. Wetter contends that Munson constructively terminated her because she had no alternative but to resign and move to the Detroit area to seek new employment. Quigley remained an employee but maintains that she "suffered great emotional distress in the process." On July 26, 1999, Munson terminated Quigley because she disclosed in a July 8, 1999, deposition in this action that she had tape recorded conversations with her manager and assistant manager without their knowledge or consent. The Termination of Employment form stated that Quigley had acknowledged that she had tape recorded certain conversations and that "according to MHH employee handbook policy § 47.1 courteous, professionalism and respect towards other employees is expected behavior. Because your action . . . is deceptive, dishonest and disrespectful and irrevocably destroyed any type of employee-employer working relationship, your employment is terminated immediately." Quigley contends that she taped conversations because it was "necessary to combat discriminatory treatment by her supervisors."
Pls' Mtn in Opp'n at 3.
Pls' Mtn in Opp'n at 3; Wetter Decl. at ¶ 19.
Defs' Mtn for SJ, Exh. J, Wetter Dep. at 219-220.
Amended Comp. ¶ 14.
Amended Comp. ¶ 14.
Pls' Mtn in Opp'n, Quigley's Munson Termination of Employment form dated July 26, 1999.
Pls' Mtn in Opp'n at 5; Quigley Decl. ¶ 22.
The Plaintiffs filed this action in September 1998. The Complaint alleges disparate treatment based on age and that Munson's reasons for the alleged disparate treatment are pretextual, retaliation including constructive discharge of Wetter and termination of Quigley because the Plaintiffs filed an EEOC complaint and emotional distress. This motion followed.
On August 10, 1999, the Plaintiffs filed an amended complaint (Dkt #28) to add Quigley's termination. Amended Compl. ¶ 14A.
II
Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If Defendants carry their burden of showing there is an absence of evidence to support a claim then Plaintiff must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). The mere existence of a scintilla of evidence in support of Plaintiff's position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for Plaintiff. Id. See generally, Street v. J.C. Bradford Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).
III
Munson first argues that the Plaintiffs have failed to establish a prima facie case of age discrimination because they did not suffer any adverse employment action.
The Plaintiffs allege age discrimination under the ADEA and Michigan's Elliott Larsen Civil Rights Act. The state law claim is governed by the same analysis as the ADEA claim. Simpson v. Midland-Ross Corp., 823 F.2d 937 (6th Cir. 1987).
The ADEA prohibits employers from discriminating against individuals in their employment on the basis of age. Under McDonnell Douglas, a plaintiff can establish a prima facie case of age discrimination by showing by a preponderance of the evidence that: (1) she was a member of the protected class (age forty to seventy); (2) she was subjected to an adverse employment action; (3) she was qualified for the position; and (4) she was treated worse than a younger person. Barnhart v. Pickrel, Schaeffer Ebeling Co., 12 F.3d 1382, 1390 (6th Cir. 1993); Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1180 (6th Cir. 1983). Once established, this creates a presumption that the employer unlawfully discriminated against the employee. Manger v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994). The burden then shifts to the defendant to articulate some legitimate reason for the employment action. Id. at 1082; Barnhart, 12 F.3d at 1390. If an employer is able to articulate a legitimate, nondiscriminatory reason for its decision, the presumption raised by the prima facie case is rebutted and drops from the case. Ang v. Proctor Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991). The burden shifts back to the plaintiff who, in order to avoid summary judgment, must prove by a preponderance of the evidence that the proffered reason was not the actual reason for dismissal but rather a pretext for age discrimination. Barnhart, 12 F.3d at 1390. To make a submissible case on the credibility of the employer's explanation, the plaintiff is "required to show by a preponderance of the evidence either that: (1) the proffered reasons had no basis in fact, (2) the proffered reasons did not actually motivate his discharge, or (3) they were insufficient to motivate discharge." Manzer, 29 F.3d at 1084.
Munson argues that the written Counseling Note was not an adverse employment action. Munson admits that the written reprimand had the potential of affecting the Plaintiffs' employment because it could have served as the foundation for future corrective action including termination.
The Supreme Court in Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998) considered the concept of tangible employment action in claims of race, sex, age, and national origin discrimination. The Court stated that a tangible employment action "constitutes a significant change in the employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits." Id. at 2268.
Sixth Circuit precedent indicates that an adverse employment action must involve some change in salary, work hours or responsibility. While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that "an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996).
In Crady v. Liberty National Bank Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993), the Seventh Circuit explained the requirements for establishing a materially adverse employment action in the context of an age discrimination case:
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.
The Sixth Circuit adopted the Crady factors in Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886 (6th Cir. 1996) which addressed a claim under the Americans with Disabilities Act. In Kocsis, the Sixth Circuit held that a transfer was not an adverse employment action because the employee "enjoyed the same (or a greater) rate of pay and benefits, and her duties were not materially modified. . . . [and there was] no evidence that she lost any prestige in her position because of her working conditions or her title change." Kocsis, 97 F.3d at 886-87. See also Primes v. Reno, ___ F.3d ___, 1999 WL 705550, at *3 (6th Cir. Sept. 13, 1999) (plaintiff's mid-range, performance evaluation of "fully successful" — is not the type of adverse employment action contemplated by Title VII. "If every low evaluation or other action by an employer that makes an employee unhappy or resentful were considered an adverse action, Title VII would be triggered by supervisor criticism or even facial expressions indicating displeasure."); Hollins v. Atlantic Co. Inc., ___ F.3d ___, 1999 WL 615487, at *8 (6th Cir. Aug. 13, 1999) (affirming the district court that plaintiff's lowered ratings do not establish an adverse employment action) and Yates v. Avco, 819 F.2d 630, 638 (6th Cir. 1987) (plaintiff did not suffer adverse employment action, where demotion was in response to request for a transfer away from a harassing supervisor, salary and benefits were not reduced, and employee was assured that she would receive the next available position at higher grade). Other courts of appeal similarly have construed the requirements of an adverse employment action. E.g., Sweeney v. West, 149 F.3d 550, 557 (7th Cir. 1998) (if negative performance evaluation were deemed actionable as "retaliation, it would "send a message to employers that the slightest nudge or admonition . . . can be the subject of a federal lawsuit"); Montadon v. Farmland Industries, Inc., 116 F.3d 355, 359 (8th Cir. 1997) (lower performance evaluation not used as basis for any action against employee not "adverse employment action"); Rabinovitz v. Pena, 89 F.3d 482, 488-89 (7th Cir. 1996) (low performance evaluation and consequent ineligibility for discretionary bonus not actionable adverse employment action); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994) (same).
A few district courts have recognized, under certain circumstances, a written reprimand as an adverse employment action. See Vargas v. Puerto Rican-American Ins. Co., 52 F. Supp.2d 305, 312 (D.P.R. 1999) (memorandum to an employee from human resources director that he had committed sexual harassment and warning that he could be fired if he did not change his conduct was a sufficiently severe disciplinary measure to constitute an adverse employment action); Unrein v. Payless Shoesource, Inc., 51 F. Supp. d 1195, 1211 (D.Kan. 1999) (district court recognized a written reprimand given to a female former employee by a male manager as an adverse employment action for purposes of employee's Title VII retaliation claim); Johnson v. DiMario, 14 F. Supp.2d 107, 100 (D.D.C. 1998) ("the written reprimand which was placed in plaintiff's file was an adverse action, sufficient to establish a prima facie case of retaliation."); Fowler v. Sunrise Carpet Indus., Inc., 911 F. Supp. 1560, 1583 (N.D.Ga. 1996) (written reprimands make the future loss of tangible benefits more likely and may qualify as an adverse employment action); Gold v. Gallaudet College, 630 F. Supp. 1176, 1187 (D.D.C. 1986) (The Court was "willing to accept" plaintiff's written reprimand was an adverse employment action in Title VII retaliation case).
The Court concludes that the Plaintiffs have not experienced an adverse action. Even if the Court were to assume that an adverse employment action had occurred, the Plaintiffs' age discrimination claim still fails.
Assuming that the Plaintiffs have stated a prima facie case, the burden shifts to Munson to articulate a legitimate nondiscriminatory reason for its conduct. An employer may take an adverse action for any reason — fair or unfair — so long as the action is not motivated by an age-based discriminatory animus. Munson explains that it disciplined the Plaintiffs because they violated record keeping requirements, a fact which they do not deny. An employee's work violations constitute a legitimate, nondiscriminatory reason for adverse employment decisions. Walborn v. Erie County Care Facility, 150 F.3d 584, 589 (6th Cir. 1998). Munson further asserts that discipline was warranted because the Plaintiffs failed to explain and correct the error promptly, causing the record keeping clerks to contact the Plaintiffs' supervisor, Michael Rudzik, for follow-up, and because Munson was tightening up its procedures because of increased governmental oversight of records. Christopher Layne, a records clerk, testified in his deposition that he left a voice mail message advising the Plaintiffs that documentation was missing but that he did not get a response. He then contacted Rudzik to pursue the matter. Layne also testified that if an issue was resolved between he and the nurse right away, he did not contact a supervisor. Both Rudzik and Cleo Silver, a Director, stated that beginning in 1997, Munson responded to increased governmental scrutiny by demanding more accurate record-keeping from its employees by enforcing its policies.
Defs' Mtn for SJ, Exh. H, Christopher Layne Affidavit ¶ 7.
Defs' Mtn for SJ, Exh. C, Cleo Silver Affidavit ¶ 4.
Once Munson articulates legitimate and nondiscriminatory reasons for the allegedly adverse action, the burden shifts back to the Plaintiffs to demonstrate that Munson's proffered reasons are merely a pretext for unlawful age discrimination — in other words, that those reasons are unworthy of credence, or that Munson was more likely motivated by a discriminatory reason. The Plaintiffs have failed to meet this burden.
The Plaintiffs offer two statements by Wolf as evidence of discriminatory intent. Wetter testified in her deposition as follows:
I don't remember [Janet Wolf's] exact words, but the gist of it was that in checking to see where the costs were in Home Care, that one of the biggest problems were [sic] that because there were so many older nurses that had longevity, that something had to be done about that, that that was one of the biggest expenses.
Defs' Mtn for SJ, Exh. J, Wetter Dep. at 43.
Quigley testified that she did not hear Wolf's comment but learned of it through Wetter.
Although the Plaintiffs apparently believe that Wolf's reference to longevity is a reference to age, the context of the comment reveals that she was concerned about expenses and was aware that nurses with seniority cost more. There is no evidence nor any allegation that nurses' salaries are tied to age.
Even if Wolf meant to take action based on nurses, seniority and salary, this does not violate the ADEA: "Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily age based.'" Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993); see also Allen v. Diebold, Inc., 33 F.3d 674, 677 (6th Cir. 1994) ("[P]laintiffs must allege that Diebold discriminated against them because they were old, not because they were expensive.").
Wetter also testified in her deposition that in her meeting with Wolf about her reprimand, Wetter asked Wolf "why [she] was being treated differently." Wetter testified that Wolf replied "by saying, you mean instead of someone who really deserves it and we both know who they are." When Wetter was asked what she thought Wolf was talking about, Wetter surmised that "I thought she was talking about some of the other nurses, particularly some of the younger nurses who made numerous errors." There is no evidence whatsoever that Wolf ever mentioned or referenced younger nurses. There is only Wetter's speculation that this is what Wolf was implying.
Defs' Mtn for SJ, Exh. J, Wetter Dep. at 91.
Viewed in the light most favorable to the Plaintiffs, Wolf's statements, taken in context as they must be, provide no inference of age discrimination. The Plaintiffs have failed to establish that Munson's reasons were pretextual, having presented no "direct, circumstantial or statistical evidence tending to indicate that [Munson] singled out [them] for [discipline] for impermissible reasons." Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990). Summary judgment is granted as to counts I and II, the age discrimination claims.
IV
Munson next argues that it is entitled to summary judgment on the Plaintiffs, retaliation claim because they have failed to demonstrate that they experienced any adverse employment action and have failed to demonstrate a causal connection between the protected activity and the alleged retaliatory conduct.
In order to establish a prima facie case of retaliation, the plaintiffs must show that: (1) they were engaged in protected activity; (2) Munson was aware that they were engaged in such protected activity; (3) that they were subject to adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse employment action. Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.), cert. denied, 498 U.S. 894 (1990) Zanders v. National R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990) (requiring plaintiff to produce evidence "sufficient to raise the inference that her protected activity was the likely reason for the adverse action").
In her affidavit, Wetter alleges that she received "numerous voice mail messages accusing her of not turning paperwork in on time." She thereafter began making copies of her paperwork. Her 1997 evaluation rated her as "Below Expectations" in the area of "Completes and Submits Visit documentation following established policy" because of the DVA documentation error. Wetter contends that in one weekend in February 1998, she was given a "schedule that was totally outrageous and inconsistent with normal scheduling policies" in that she was deprived of a full day's pay for both days." She made a change in the schedule and was required to explain her actions. Wetter claims that she was targeted by Munson for "unwarranted discipline," "accusations of dishonesty," and "threats of termination" and that she could no longer function effectively. Wetter argues that the Defendants' discriminatory treatment forced her to resign. She explains by the time she "sent out resumes in mid-December 1997," management was making [her] work life unbearable." In order to prevail on this claim, Wetter would have to show that the defendants intentionally made working conditions so intolerable that a reasonable person in her position would feel compelled to resign. Yates, 819 F.2d at 636-37; Easter v. Jeep Corp., 750 F.2d 520, 522-23 (6th Cir. 1984). Wetter's perception of her situation is judged objectively. Henry v. Lennox Industries, Inc., 768 F.2d 746, 752 n. 3 (6th Cir. 1985). Proof of discrimination alone is not a sufficient predicate for a finding of constructive discharge; there must be other aggravating factors. Yates, 819 F.2d at 637.
Pls' Mtn in Opp'n, Wetter Decl. ¶ 13.
Pls' Mtn in Opp'n, Wetter Decl. ¶ 14.
Pls' Mtn in Opp'n, Wetter Decl. ¶ 15.
Pls' Mtn in Opp'n, Wetter Decl. ¶ 15.
Pls' Mtn in Opp'n, Wetter Decl. ¶ 19.
Although Wetter asserts that she was harassed and criticized after she filed the EEOC complaint, she offers no specific evidence. Nothing in the record indicates that Wetter's pay was cut, her responsibilities changed or that she was required to perform demeaning tasks. Wetter fails to identify any conduct by Munson that reasonably could be construed as so intolerable that a reasonable person would feel compelled to resign. Furthermore, no reasonable juror could conclude that a causal connection exists between any of the incidents Wetter alleges and the protected activity of filing an EEOC complaint.
Pls' Mtn in Opp'n at 2.
Quigley contends that in retaliation for filing an EEOC complaint, Munson: (1) issued her a written counseling memorandum in April 1998 because the patient's Medicare certification had run out; and (2) rated her as "Below Expectations" in the area of "Completes and Submits Visit documentation following established policy" in her 1997 evaluation because of the DVA documentation error. She also alleges that she was counseled for not handling a procedure Munson believed she was competent to handle. In May 1998, Quigley called into the office to see if there was work available and was told that a patient with a feeding tube was available. Quigley replied that she had not done the procedure before and would only do it with another nurse. In her deposition, Quigley testified that she was subsequently notified that "Jody Collinson, Michael Rudzik, Cleo Silver and Sandy Miller wanted to talk to [her] about the incident." She asked Rudzik, her supervisor, why so many people needed to be there. The meeting was changed to involve only Quigley and Collinson. Quigley testified that she considered the fact that "the manager never called [her] back" to inform her of this change to be retaliatory. She also stated that Collinson requested a performance improvement plan from her because Munson had considered her competent to handle the visit.
Pls' Mtn in Opp'n, Wetter Decl. ¶ 14.
Defs' Mtn for SJ, Exh. K, Quigley Dep. at 122.
Defs' Mtn for SJ, Exh. K, Quigley Dep. at 122.
Defs' Mtn for SJ, Exh. K, Quigley Dep. at 124-25.
Quigley similarly is unable to demonstrate adverse employment action. Rudzik testified in her deposition that anytime a counseling memorandum was issued, that area would be given a Needs Improvement in the performance evaluation. In addition, the other nurse involved in the certification situation was also issued a Counseling Note. Quigley was terminated because she admitted to secretly tape recording conversations with her supervisors. Munson's concern that such conduct would undermine the work environment and generate tension was reasonable. Moreover, aside from Quigley's unsupported testimony, the record contains absolutely no evidence of any causal connection between the filing of charges with the EEOC and any adverse action by the Munson. Accordingly, summary judgment is granted as to the Plaintiffs' retaliation claim.
Defs' Mtn for SJ, Exh. A, Rudzik Dep. at 100.
Defs' Mtn for SJ, Exh. K, Quigley Dep. at 135.
V
Count IV of the complaint alleges intentional infliction of emotional distress. This claim is without merit.
Although the Michigan Supreme Court has not yet recognized the tort of intentional infliction of emotional distress, Roberts v. Auto-Owners Ins. Co., 422 Mich. 594 (1985), the Michigan Court of Appeals has recognized such a tort, and the Sixth Circuit "has assumed that the Michigan Supreme Court would do so too under appropriate circumstances and have therefore permitted such claims to proceed." Andrews v. Prudential Securities Inc., 160 F.3d 304, 309 (6th Cir. 1998)
To establish a prima facie case of intentional infliction of emotional distress, a plaintiff must establish four elements: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts, 422 Mich. at 602-03; Cebulski v. Belleville, 156 Mich. App. 190, 193-94 (1986). The outrageous conduct requirement is satisfied only by 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." Liability arises, moreover, only "where the distress inflicted is so severe that no reasonable man could be expected to endure it." Andrews, 160 F.3d at 309. Accepting as true the factual allegations in the complaint, Munson's conduct simply does not rise to this level. Summary judgment is granted as to the intentional infliction of emotional distress claim.
An order consistent with this opinion will be entered.