certain managers: Palumbo insisting she revise letters "up to eight times" and assigning "more important" work to others (Inc. 8), Gallagher asking her to type denials of her claims (Inc. 10), and Palumbo requiring her to fill in at several positions oil a single shift. (Inc. 27)
The remaining incidents appear to be personality conflicts with managers ranging from the trivial -- Palumbo's "whispering" about plaintiff and excluding her from conversations (Inc. 8), Birnbaum's inquiries regarding business at South Kearney (Inc. 14), a supervisor's allowing another employee to leave early (Inc. 50), and Wagner's sending certified letters to plaintiff's home during her vacation (Inc. 41) -- to incidents where managers allegedly used obscene language (Inc. 11, 21) laughed at plaintiff (Inc. 10), acted "belligerently towards plaintiff (Inc. 3, 44), or "humiliated" plaintiff in front of co-workers. (Inc. 20) But these incidents, however upsetting to plaintiff, amount to nothing more than personality conflicts and workplace disputes that frequently arise between managers and employees. To cast an employer into liability based on such conduct would be to undermine the unconscionable abuse standard which is designed specifically to prevent the tort of emotional distress from becoming the weapon of every disgruntled employee. See Buell, 480 U.S. at 566 n.13. Because the incidents described by plaintiff cannot be characterized as "'atrocious and utterly intolerable in a civilized community,'" they do not support her claim for emotional distress. See Murphy, 58 N.Y.2d at 303 (quoting Restatement (Second) of Torts § 46, cmt d (1965)).
Finally, plaintiff describes several incidents -- Borelli's "brushing close" to plaintiff (Inc. 21), Borelli and Gallagher's use of obscene language in the workplace (Inc. 11, 21), Birnbaum's picking on female employees (Inc. 13) and "hang-up" calls made to her home (Inc. 21) -- which she terms "sexual harassment." Notwithstanding plaintiff's characterization, the underlying facts as set forth in plaintiff's testimony show that these alleged incidents do not amount to outrageous or unconscionable conduct within the meaning of the cases that define infliction of emotional distress.
Regarding the incident of Borelli's "brushing close," plaintiff did not report the incident until the day Borelli attempted to enforce her suspension, months after the alleged brushing occurred, and although at the time she reported the incident she was ready to accuse Borelli of a litany of misdeeds, at her deposition the sexual advances became "hang-up calls" and "suggestive language" and the sexual harassment became a single incident of "brushing close" for one or two minutes. In fact, at her deposition, plaintiff could not decide whether the incident lasted a minute or two or whether as soon as she sensed someone "she moved away very quickly." (Dep. at 23) Regarding Borelli's "suggestive language," plaintiff could not recall the details of what he said nor how his language differed from the language used as a matter of course by other managers. (Dep. at 31-32)
Plaintiff also accused Gallagher of using obscene language. However, plaintiff conceded that Gallagher never used such language with her in private, never propositioned her, and that his use of such language was "lighthearted." (Dep. at 95)
Plaintiff maintains also that Birnbaum was "very condescending" and "picked on" female employees. (Dep. at 100-101, 106) But other than her assertion that Birnbaum would repeat information learned from plaintiff in conversations with other managers, hardly an unconscionable act, plaintiff does not describe any specific instances where Birnbaum's intimidating conduct was directed at her.
Finally, plaintiff accuses both Borelli and Birnbaum of making "hang-up" and "dirty" phone calls to her home. (Dep. at 26, 107-108) She bases this accusation on the fact that she received these calls at times when her relations with Borelli and Birnbaum were particularly strained. Plaintiff admitted, however, that because of the nature of the calls, she could not identify the caller. (Dep. at 108) "Although plaintiffs are entitled to the benefit of all reasonable doubt in determining whether a genuine issue of material fact exists, mere conjecture or speculation will not suffice to avoid summary judgment." Fox-Knapp, Inc. v. Employers Mut. Cas. Co., 725 F. Supp. 706, 708 (S.D.N.Y. 1989), aff'd, 893 F.2d 14 (2d Cir. 1989). On this record, the incidents plaintiff calls "sexual harassment" do not amount to unconscionable conduct by defendant.
On the whole, plaintiff has described a long but otherwise unexceptional list of disputes with Conrail management. Disagreements regarding the collective bargaining agreement, disputes over the propriety of invoking formal disciplinary procedures, personality conflicts between managers and employees and even outright manifestations of personal distaste for an employee do not constitute the type of unconscionable abuse or outrageous behavior for which tort law provides a remedy.
"Liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's [sic] feelings are hurt."
Kraus v. Consolidated Rail Corp., 723 F. Supp. 1073, 1089 (E.D. Pa. 1989) (quoting Restatement (Second) of Torts § 46, cmt. d (1965)); see Buell, 480 U.S. at 569 n.16 ("'The tort of intentional infliction of mental distress as described in § 46 of the Restatement . . . can be safely characterized as the general rule in the United States.'") (quoting Leithead v. American Colloid Co., 721 P.2d 1059, 1066 (Wyo. 1986)). Plaintiff's claims for emotional distress are dismissed.
Although as described by plaintiff, the incidents she labels as sexual harassment do not, on this record, support a claim of infliction of emotional distress, plaintiff may be able to discover and present additional evidence necessary to establish a claim of sexual harassment. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Because plaintiff has not proceeded on a sexual harassment theory to this point, she will be given an opportunity to amend her complaint to include a claim for sexual harassment, assuming without deciding that she has a good faith basis for doing so. Cf. Ross v. A.H. Robins Co., 607 F.2d 545, 549 (2d Cir. 1979), cert. denied, 446 U.S. 946, 64 L. Ed. 2d 802, 100 S. Ct. 2175 (1980).
Michael B. Mukasey,
Dated: New York, New York
August 25, 1992