[A pdf of the appeals-court decision can be seen here. Slight edit done 9/24/12; another, important edit done 10/1/12, between asterisks; another edit 10/3/12, also between asterisks. 10/5/12: the "cite" for this case is Ingraham v. Ortho McNeil Pharma, 422 N.J. Super. 12 (2011). ]
Subsections in this entry:
The facts at the trial level of the case
The plaintiff’s argument about “power dynamics” falls flat
How “egregious” does distress-making workplace behavior need to be?
A case involving anti-Semitic remarks, against a Gentile
This appellate court decision within the New Jersey court system may show, I think, the limitations of the justice system to deal with certain kinds of workplaces. Indeed, we can adduce many anecdotal examples of lawyers’ (and judges’) not seeming to know how the real world works. But when it comes to dealing with how some workplaces pose worse problems (in terms of culture, the type of power employed there, etc.) than do others, and the legal system responds by citing legal strictures that prevent a case from going to trial before a jury—even when an appellate court notes in its finding that a jury may be sympathetic with a plaintiff—this suggests that the justice system is flawed, or perhaps “constitutionally” unapt to deal with the more complex types of problems in the work world.
I would suggest that a medical-media firm’s sense of self-importance, paranoia, and self-delusion about its mission, etc., tend to make it different from other workplaces, and therefore it would be willfully ignorant or naïve to consider such a company as about the same as any other workplace in terms of cultural bad attitudes there (or the potential for same under corporate stress).
But let’s look at Ingraham v. Ortho-McNeil et al. to see how a New Jersey appellate court dealt with a plaintiff’s appeal in seeking to collect damages for “intentional infliction of emotional distress” when a manager pressed her to remove decorations from her work cubicle that attested to her daughter’s early death.
The facts at the trial level of the case
Cecelia Mavica Ingraham was an administrative assistant in a marketing department at the Raritan facility of the pharmaceutical company Ortho-McNeil, whose school-age daughter had died from leukemia. Undergoing a long grieving process, she kept a display celebrating her daughter in her cubicle, including photographs and her daughter’s ballet shoes. She also spoke along the lines of her grief with coworkers…but coworkers apparently felt uneasy with this after a while, and some complained to a human resources manager. This manager in turn spoke to Carl DeStefanis, a manager in Ingraham’s department with whom she did not have close work relations, about their concerns.
DeStefanis eventually talked to Ingraham about these issues, in a half-hour talk in his office that included his requirement that she remove the slippers and pictures, and that if she felt a need to talk about her daughter in the future, she should do it with him in his office behind closed doors. She left his office upset, and shortly after, had a health crisis that resulted in, among other things, angioplasty. She resigned from her job and later filed a lawsuit against Ortho-McNeil, parent company Johnson & Johnson, and DeStefanis, alleging violation of the New Jersey Law Against Discrimination (LAD), “constructive discharge,” and intentional infliction of emotional distress. A full course of discovery was pursued, then the defendants made a motion for summary judgment (MSJ), meaning, in this instance, dismissal of the suit. In a stipulation as part of her response to this, Ingraham agreed to dismissal of all claims/counts except for intentional infliction of emotional distress. The trial court granted the defendants’ MSJ on the emotional-distress count. Ingraham appealed.
Some passages from the appeals-court transcript, which is public property, are worth reviewing.
Ingraham was employed by the company from 1994 to 2006 (12 years). “Plaintiff’s immediate supervisors reported to defendant Carl DeStefanis, the director of the [marketing] department. Plaintiff had infrequent contact with DeStefanis, [quotes are apparently from the trial court transcript] ‘usually a simple “Hello, how are you” type of interaction.’
“In 2003, plaintiff’s only child, Tatiana, then in her third year of high school, was diagnosed with acute lymphocytic leukemia. Tatiana was an excellent student with bright prospects. She was a member of the National Honor Society, National Latin Society, and National Art Society. She was accepted to Cornell University and planned to study biology as a pre-med student. She had also studied at the New Jersey School of Ballet, but was unable to continue dancing when her illness occurred. After several months in remission, Tatiana relapsed in April 2005. She developed an incurable infection and…passed away in May 2005. Her high school graduated her posthumously with top honors.
“Plaintiff’s mourning was deep and enduring. To honor the memory of her daughter, plaintiff kept pictures of Tatiana and her ballet slippers displayed in her cubicle at work.
“About one-and-a-half years after Tatiana’s death, a human resources manager at Ortho-McNeill [sic], [person’s name], met with DeStefanis to convey complaints she had received about plaintiff’s conduct and interaction with co-workers. Several of those complaints were unrelated to Tatiana, but administrative staff in the department had also remarked about plaintiff’s tendency to speak to them about Tatiana’s tragic passing. The co-workers said they sympathized with plaintiff, but they felt uncomfortable and at a loss for ‘what else that we can say that we have not said already.’ The co-workers said they tended to avoid contact with plaintiff and to take work or questions elsewhere. [Previously named H.R. staffer] suggested that DeStefanis talk to plaintiff to get her side of the complaints and to discuss her initiating conversations about Tatiana and its [sic] effect on her co-workers. DeStefanis agreed to speak with plaintiff.
“On Friday, November 17, 2006, DeStefanis met with plaintiff at four o’clock in the afternoon. They were alone in a human resources conference room. Once seated, DeStefanis told plaintiff he had several complaints concerning her speaking of her daughter and displaying pictures, and that the pictures needed to be removed. Upon hearing this, plaintiff became very upset. She testified in deposition that she started shaking. Plaintiff said to DeStefanis that she did not understand, and DeStefanis repeated that there were complaints about plaintiff’s pictures and her daughter’s ballet slippers, and they had to be taken down from her cubicle.
“Plaintiff protested that she works with highly educated people and did not understand that they could not tolerate pictures of her daughter or the fact that she [Ingraham] was a depressed, grieving mother. DeStefanis said again that the pictures had to be taken down because it [sic] was a disruption in the workplace, and people were avoiding her. DeStefanis also said that plaintiff could ‘no longer speak of [her] daughter because she is dead.’ Plaintiff felt hysterical. She told DeStefanis that ‘Tatiana was a very beautiful human being and everyone that met her was honored and blessed.’ She asked if DeStefanis was telling her to ‘act [as] if she did not exist.’ DeStefanis answered ‘yes.’
“Plaintiff was in shock and disbelief. She asked DeStefanis who was complaining, but he would not give names. She asked if the problem was her work performance, and he replied it was not. DeStefanis then said: ‘If you have the need or urge to talk about her[,] you can come into my office and speak of her behind closed doors.’
“In addition to the discussion about Tatiana, DeStefanis asked plaintiff about the unrelated complaints reported to him, and plaintiff denied that the incidents were as described, or she otherwise explained her version of the incidents.
“The conversation ended in a half hour or less, but to plaintiff it seemed to have lasted ‘forever.’ Plaintiff’s phone rang, her husband calling to see where she was, and she left the meeting. Plaintiff perceived DeStefanis as having been ‘cold’ but not angry. She also did not feel angry; rather, she was ‘extremely distraught and upset’ and ‘outraged’ and ‘hurt.’ [footnote indicated, but omitted here]
“Plaintiff left work that afternoon ‘crying’ and ‘sobbing.’ She never returned. Over the next few days, she went to her cardiologist for heart palpitations and subsequently was treated with an angioplasty procedure and medication. She took short-term disability leave and eventually resigned from her job.
“Plaintiff filed a three-count complaint in Middlesex County in April 2008. The complaint alleged violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 [underscore omitted, italics added], intentional infliction of emotional distress, and constructive discharge. The parties engaged in a full course of discovery. Defendants moved for summary judgment in October 2010. In response, plaintiff stipulated to dismissal of her LAD and constructive discharge claims and opposed only defendants’ motion for summary judgment on her claim for intentional infliction of emotional distress. After hearing oral argument, the trial court granted defendants’ motion and dismissed that remaining count. This appeal followed.” (pp. 2-6)
The opinion went on to describe necessary components to a finding of intentional infliction of emotional distress: “First, plaintiff must prove that defendant acted intentionally or recklessly. … Defendant must intend ‘both to do the act and to produce emotional distress.’ … A defendant may also be liable when he ‘acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.’” (p. 7; references to cite are omitted)
I won’t focus on the specifics of how the appeals court built up its argument, but will look more at the conclusion and some important points that the court embraced to support it, including in regard to some key aspects of Ingraham’s position.
The plaintiff’s argument about “power dynamics” falls flat
The plaintiff, Ingraham, argued, as the judge said in his opinion, “that the ‘power dynamics of the workplace’ lessen plaintiff’s burden in demonstrating extreme and outrageous conduct that satisfies the threshold for intentional infliction of emotional distress” (p. 11). Perhaps the plaintiff did not argue this point well enough, with facts and/or an interpretation of what they mean in this kind of situation—to persuasively show that a pharmaceutical-company workplace is different in terms of some of the power issues there (though I’m not sure that Ingraham was so specific about this aspect; I only know details of the case from the appeals-court decision). This is true not least (in my opinion) because the dynamics devolve from the huge financial implications of what is produced there.
Obviously the appellate court did not buy Ingraham’s argument about the “power dynamics.” It wrote, with opinion delivered by Justice Victor Ashrafi, “The employer-employee relationship is no more special and conducive to emotional distress than, for example, a doctor-patient relationship, the relationship of a decedent’s family to a funeral home, the tense relationship of a precarious tenancy where homes might be lost, or the relationship of a husband and wife in a hostile divorce” (p. 12; that’s some variety of examples, huh?).
“Indeed,” the opinion goes on, “the workplace has too many personal conflicts and too much behavior that might be perceived as uncivil for the courts to be used as the umpire for all but the most extreme workplace disputes. We have previously said that conduct in the workplace will rarely be so egregious as to give rise to a claim of intentional infliction of emotional distress” (p. 12).
The opinion later concludes, “…although plaintiff’s version of the meeting [between her and a manager, where the latter demanded she remove her signs of her deceased daughter] would allow the jury to view DeStefanis [the manager at issue] as insensitive and perhaps negligent [sic] of plaintiff’s vulnerability in her continuing bereavement, the conduct described does not meet the requisite standard to support a claim of intentional infliction of emotional distress. The trial court correctly determined that plaintiff could not prove the second essential element of her cause of action” (p. 15). *(Pardon me for being in error in my recent addition on "the second essential element of her cause of action." It turns out the second element, from the opinion at p. 7, is "Second, plaintiff must prove that defendant's conduct was 'extreme and outrageous.' The conduct must be '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.' ")*
How “egregious” does distress-making workplace behavior need to be?
What type of behavior would be sufficiently egregious to allow a plaintiff to go to trial to collect damages? The appeals-court opinion says, “Like Taylor, but unlike this case, the employers’ sexually harassing conduct in Leang, supra…and Wigginton, supra…was also characterized by outrageous acts otherwise prohibited by the LAD [New Jersey’s Law Against Discrimination] and other anti-discrimination laws” (p. 13; underscores removed, italics added; cites omitted).
The judge then refers to a case in which, a summary says, “damages are recoverable for emotional distress arising out of claim of discrimination under the LAD where the distress does not rise to the level of severity required for the separate tort [cause of action] of intentional infliction of emotional distress” (p. 13).
What kind of sexually harassing behavior was an adequate basis for finding in favor of a plaintiff in Leang (which case I mentioned above)? “…[A] supervisor and two co-workers at a military facility surrounding the plaintiff and making comments and gestures to suggest that she was to perform a sexual act on the supervisor while the others watched, followed by a threatening telephone call implying that the Mafia would become involved if the plaintiff pursued the investigation [sic]…” (p. 9).
That does sound pretty nasty.
I could allude to a specific example from my own life, with many colorful details, to show how some instances of workplace “high-handedness” may accord with the Leang case surprisingly closely, yet still may fall a little short of what would lead a court to apply sanctions. But let’s wait on that.
One thing should be noted, however—at least from my experience. Just because someone brings up an issue of workplace misuse of power, some kind of tortious conduct on the part of management, or the like, doesn’t mean that everyone (in the “victim” seat) would feel the same way about the same kind or instance of phenomena, or that people (“victims”) happen to complain about the same kinds or levels of abusiveness across the history of a company, or across companies or industries. Often, this is because workers are letting such abusiveness “slide” quite a lot, to be practical, to keep their head down and not make waves, to keep their jobs.
And in my own case, for every workplace issue in this vein I might bring to light, there are several others of (somewhat) lesser egregiousness that I let pass. You pick and choose your fights. You realize that a lot of particular fights on this sort of thing, on their respective merits, would be an uphill battle at best. And my experience in workplaces in New Jersey—compared to, say, when I had fine work experiences in Washington, D.C., or in Arlington, Virginia—is that New Jersey is an especially tough jungle for workplace abusiveness, mismanagement, “assault,” and so on.
Moreover, lawyers won’t always help you with this (because they are, at bottom, businesspeople who assess what risks they will take on, they are not “doctors” who are obliged to help everyone who is “harmed”). You are on your own. And amid all this, you sometimes ask yourself, When do I draw the line? When do I say, “Enough’s enough!”? When do I try to hold some individuals to account, to say nothing of what use the case may serve within the “case law” realm where it becomes a sort of reference point for future legal cases filed by others?
A case involving anti-Semitic remarks, against a Gentile
Here is an example, concerning someone else’s case. Within the past year, a lawsuit was filed against a company in Sussex County, N.J., by a plaintiff who alleged that a supervisor and/or another coworker made anti-Semitic slurs about him. He sought legal relief under an approach utilizing hate-speech laws. Yet the plaintiff is not Jewish. Does this sound weird?
Not to me. First of all, the attorney who filed the case for the plaintiff, Robert Scirocco, has seemed, from what I’ve gleaned, to have long had a reputation for dealing with certain kinds of tougher workplace issues. He was suggested to me in 1995 by a work supervisor when I worked at a branch of MetLife, concerning some legal matter of mine that had nothing to do with MetLife. She, the supervisor, said he had done well by her. Turned out, I didn’t use him then.
More recently, when I’ve seen his Web site, I find he seems to focus mainly on pretty standard workplace cases, which in New Jersey (at least) mostly comprise New Jersey Law Against Discrimination (LAD) cases and whistle-blower cases. (I have never communicated with Mr. Scirocco directly, though I have written to him for various reasons, including other than seeking representation, without his responding. Herewith, in the interests of discretion, I don’t vouch for him, nor does he for me, beyond what I write here.)
You could say that, to judge at least from the recent anti-Semitic remarks case, he would take on some of the workplace cases that are subtler, and weirder, than an average LAD or whistle-blower case. I am interested to see how this one concerning the Gentile alleging anti-Semitic slurs turns out. Why? Well, when I worked at a publishing firm in the mid-1990s, I also was subjected to anti-Semitic remarks.
This was one of the weirder instances of workplace “abusiveness” I’ve experienced over a 30+-year work life. I was among a set of temps on a high-pressure, tedious project. Generally, when young people in such situations have some “bug up their ass” about me—in the publishing realm, bitterly hyper-competitive and “identity-focused” issues are not uncommon—and if they are apt to sum me up as being a member of some ethnic group, it is usually Jewish. I always take this as a negative, because it is typically done in a jumping-to-conclusions way, and is hinted to me in a not entirely friendly manner. And in general, if people really want to “nail what type” I am, if they were honest about it, they could (in a way not showing their agenda to “get what I am”) ask sincere, respectful questions and get solid answers. If the best they can do is jump to the conclusion that I’m Jewish, it is not done with unadulterated respect for me (or for Jews).
In the mid-1990s instance I’m discussing, the remarks against Jews—made in weirdly “creative” passing remarks among several people—seemed a way of “commenting on me” for a while, as if to release or express “pressure” or annoyance…then, when I revealed something (not expressly to counter this “anti-Jewish” array of remarks) that showed my ethnic background included German not Jewish, then the spray of ethnically-oriented remarks by the coworker weasels became anti-German, not anti-Jewish. Overall, that was such a weird set of behaviors that it became an important segment of my long memoir The Temps, an early version of which I copyrighted in 1998.
Did I complain to the company’s human resources department about this specific, ethnically oriented set of behaviors? Not on that specific set, I think, but I did (for some specific purpose) “complain” to, or at least consult with, H.R. on other things among the coworkers, some of which were distinctly worse in some ways. Ultimately, H.R. showed pretty clearly there was only so much it could do, and (in effect) that I would have to put up with some of the subtle, deviant, insulting behavior. (This would accord with a similarly “cavalier” attitude I would find at at least one other large workplace I was at, in later years.) In the mid-1990s instance, certainly I did not see fit to file a lawsuit alleging violation of hate-speech laws. We didn’t even have those laws then, I think.
So when I hear of the Scirocco-shepherded lawsuit, I am definitely intrigued. Let’s see how far it goes. I am not sure it will go too far; but when it comes to deviant workplace behaviors, whether deeply insulting, sexually provocative, “distress-inflicting,” and other types, there can always be hope, can’t there?
