Bustamento v. TuckerBustamento v. Tucker
Plaintiff filed this tort action for intentional infliction of emotional distress against her employer, supervisor, union representative, and co-worker in February 1988, alleging that her co-worker had subjected her to almost daily incidents of sexual harassment over a two-year period; that her supervisor and union representative had not only failed to curtail or stop such harassment, but also had condoned and encouraged it; and that her employer, despite its awareness of her complaints, had failed to take any responsible аctions to eradicate such harassment. The district court sustained defendants’ exception of prescription and dismissed plaintiff‘s suit. On plaintiff‘s appeal, the court of appeal, in an unpublished opinion, affirmed. 592 So.2d 514 (La.App. 2d Cir.1992). We granted plaintiff‘s application for writs, 598 So.2d 343 (La.1992), and now reverse in part and remand.
I.
The pleadings and evidence in the record disclose the following facts. In January 1985, Deretha Bustamento went to work as a janitor for Johnson Controls, Inc., a vehicle seat manufacturing company located in Shreveport, Louisiana. Shortly thereafter, J.D. Tucker, a forklift operator at the plant, began a pattern of harassing Ms. Bustamento during working hours at the workplace. Tucker‘s harassment allegedly persisted on an almost daily basis over a two year period, and was so severe that it often reduced Ms. Bustamento to tears and eventually rendered her emotionally distraught.
According to Ms. Bustamento, Tucker‘s harassment over the course of this two year span was both verbal and physical. Verbally, he repeatedly cursed at her; made improper sexual comments, innuendos and advances at her; invaded her privacy by questioning her regarding her marital affairs and sexual relationship with her husband; and threatened her with physical violence, including to rape her, to run her out of the plant, and to run over her with his forklift. Physically, he used his forklift to terrorize her: driving it at her, attempting to run over her with it, and pinning her against the walls of the plant and against stacks of pallets with it. On one occasion, he slapped her on the buttocks. Corroborating
During the two year period, Ms. Bustamento complained to management at Johnson Controls and consulted several attorneys regarding the harassment. In 1985, Ms. Bustamento consulted an attorney who advised her of her rights and wrote a letter to Johnson Controls regarding the alleged sexual harassment. A memorandum dated February 16, 1986, documents Ms. Bustamento‘s complaints to her supervisor, Marc Iott. This memorandum reflects that on this occasion, Iott instructed Tucker “that he was not to curse at Deretha and should not do anything to make her feel threatened.” Also, on this occasion, Iott warned Tucker that any further harassment would place his job in jeopardy. This memorandum further reflects that Tucker had a poor track record and had previously been warned.
The next complaint reflected in the record was made on February 27, 1987. On that date, Ms. Bustamento, accompanied by Ms. Fefel, went to Iott again complaining of Tucker‘s harassment. On this occasion, Iott informed her to immediately notify him of any further harassment. Ms. Fefel testified that on or about that same day she drove Ms. Bustamento, who was too upset to drive herself, to the office of attorney Laurie Lyons. Because of Ms. Bustamento‘s visibly shaken condition at the time of their consultation, Ms. Lyons referred Ms. Bustamento to a psychiatrist. According to Ms. Bustamento, the psychiatrist diagnosed her as being on the verge of a nervous brеakdown.
The final complaint was made on March 3, 1987. On that date, Ms. Bustamento went into an emotional state over something Tucker allegedly did to her that morning at the New Plant.1 No one (not even Ms. Bustamento; her attorney, Ms. Lyons; or her co-worker, Ms. Fefel) could recall the details of this incident. Nonetheless, Ms. Bustamento responded to this incident by calling her attorney, Ms. Lyons, and requesting that Ms. Lyons come to the New Plant to meet with Iott. On that particular day, Ms. Lyons’ workload was especially stacked up as she had just had a baby. Nonetheless, precipitated by plaintiff‘s frantic call, Ms. Lyons dropped what she was doing—something she testified that she rarely does for a client unless something important is going on—and went to the New Plant for the purpоse of putting an end to the on-going harassment.
While the parties bitterly dispute what, if anything, occurred at the New Plant on March 3rd, the record reflects the following. Ms. Bustamento directly testified that Tucker cursed her at the New Plant and that she was certain it was something Tucker did that precipitated her call to Ms. Lyons. While Iott testified that Ms. Bustamento indicated to him in the March 3rd meeting that nothing occurred that morning, Ms. Lyons testified that she was certain that she would have recalled her client having made such a statement because she would have been angered to learn that her immediate presence was not required at the plant on that date. Iott conceded that during the March 3rd meeting, Ms. Lyons informed him that the harassment was ongoing. Tuckеr testified that on the next day, March 4, 1987, Iott admonished him and warned him that if his wrongful conduct did not cease, he would be fired; this warning is documented in a memorandum of the same date. And, it is undisputed that after the March 3rd meeting, Tucker‘s conduct ceased.
II.
On February 29, 1988, Ms. Bustamento filed this suit, seeking to recover for the severe emotional distress she suffered as a
After an evidentiary hearing, the district court maintained the exceptions, dismissing рlaintiff‘s action. In its written reasons for judgment, the district court capsulized the relevant events occurring inside the prescriptive period and concluded that, for prescription purposes, the critical date was March 3, 1987.
Bustamento filed her original petition on February 29, 1988. She has stipulated that no tortious act occurred after March 3, 1987. Thus, if a tortious act was to have occurred within the year prior to filing suit, it must have occurred on March 1, 2 or 3, 1987. Bustamento did not even work on Saturday, February 28, 1987, or Sunday, March 1, 1987. While she worked a full day on March 2, 1987, Bustamento was only at the plant from 6:00 a.m. until Noon on March 3, 1987, that being the day Bustamento called her attorney, Laurie Lyons (“Lyons“) (at 10:00 a.m.), to come to the plant. Bustamento further testified that there was only one day during the pertinent period on which she complains of Tucker‘s conduct, this being March 3, 1987, the date Lyons visited the plant.
The district court framed the issues as two-fold: first, whether a tort had occurred within the one-year prescriptive period; and second, if so, whether the continuing tort doctrine applies to the facts of this case. Based on plaintiff‘s testimony, the district court found that all the complained of tortious conduct occurred at the Old Plant, and thus outside the prescriptive period, with the possible exception of plaintiff‘s claim of a “cussing” on March 3rd at the New Plant.4 The district court further found that “[w]hile the vile and profane acts complained of by plaintiff would certainly constitute a cause оf action against one or more of the defendants, defendants have shown by a preponderance of the evidence that no harassment or acts of abuse took place within one year of filing suit[, that is, on March 3].” Based on this conclusion and its belief that a prerequisite for invoking the continuing tort doctrine is the occurrence of at least one act of tortious conduct within the year immediately preceding filing suit, the district court pretermitted consideration of the second issue of whether the continuing tort doctrine applies.
The court of appeal affirmed in an unpublished opinion. The court began by separately addressing the issue of whether plaintiff‘s claim against the union representative, Hall, wаs prescribed. Answering this question in the affirmative, the court reasoned that “[n]o witness testified of any tortious conduct by Mr. Hall within the one-year period prior to the filing of the plaintiff‘s suit. Therefore, the claims against defendant Hall are clearly prescribed, and the trial court properly dismissed him from the suit.” We agree and affirm this finding.5
Not every verbal encounter can be converted into a tort. One of the elements required for recovery for intentional infliction of emotional distress is that the conduct be outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. White v. Monsanto, 585 So.2d 1205 (La.1991). Without knowing exactly what, if anything, Mr. Tucker allegedly said to the plaintiff, it would be impossible to determine whether a tort occurred on March 3, 1987 which could have interrupted prescription.
Despite the court‘s conclusion that Ms. Bustamento‘s claim had prеscribed because no tort occurred within the one-year window, the court nonetheless addressed the applicability of the continuing tort doctrine. The court noted that in South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531 (La.1982), this court held that for the continuing tort doctrine to apply both the tortious conduct and the resulting damages must be continuous. Classifying the complained of conduct in this case as discontinuous, consisting of intermittent incidents, the court of appeal found the continuing tort doctrine inapplicable. In finding the continuing tort doctrine inapplicable, the court of appeal compared the complained of conduct in this case to the continuous conduct in South Central Bell, supra, a property damage case; and to the discontinuous conduct in Laughlin v. Breaux, 515 So.2d 480 (La.App. 1st Cir.1987), a sexual assault and battery case; and Crosby v. Keys, 590 So.2d 601 (La.App. 2d Cir.1991), writ denied, 593 So.2d 373 (La.1992), a sexual abuse case:
We find that the tortious conduct claimed by the plaintiff is similar to the physical and verbal abuse in Laughlin and the sexual abuse in Crosby in that it involved separate, if frequent, incidents. Each act gave rise to a cause of action. This conduct cannot be described as continuous within the meaning of South Central Bell Telephone Company, supra. Consequently, we find that the continuing tort doctrine is inapplicable to the facts of this case.
Thus, the court of appeal found that Ms. Bustamento‘s claim as to the remaining defendants was prescribed. For the reasons detailed below, we find that Ms. Bustamento‘s claim as to the remaining defendants has not prescribed.
III.
The sole issue before us is whether Ms. Bustamento‘s action for intentional infliction of emotional distress resulting from sexual harassment over a two-year span is barred by
Ms. Bustamento bases her claim upon the tort of intentional infliction of emotional distress. To establish this tort, the plaintiff must show outrageous conduct by the defendant causing serious emotional harm to the plaintiff. White v. Monsanto Co., 585 So.2d 1205 (La.1991) (adopting Restatement (Second) of Torts § 46).6 In White, supra, we acknowledged that this tort could occur in the workplace environment, although the brief, spontaneous conduct there did not rise to the level of being tortious. Indeed, we noted that “[r]ecognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time.” 585 So.2d at 1210.
The rationale underlying our generalization in White, supra, regarding repeated conduct is that conduct which, viewed as an isolated incident, would not be outrageous or would not be likely to cause serious damage, can become such when repeated over a period of time. See Restatement (Second) of Torts § 46, Comment (j) (noting that both the intensity and the duration of the distress are factors to be considered in determining whether a pattern of conduct is actionable). This has been characterized as a sliding scale approaсh under which even relatively “mild” harassment may become tortious if continued over a substantial time period. Montgomery, Sexual Harassment in the Workplace: A Practitioner‘s Guide To Tort Actions, 10 Golden Gate U.L.Rev. 879, 890 (1980).
Ms. Bustamento alleges just such a case. She alleges that defendant Tucker engaged in a pattern of on-going, repeated harassment which gradually caused her serious emotional injury. It would be entirely inconsistent to say that such cumulative, continuous acts constitute a tort, but that prescription runs from the date of each distinct act. Indeed, it would be most difficult to pin-point the specific moment in time when such continuous conduct became sufficiently outrageous, and such continuing damages rose to the level of severity, to become actionable and thus to commence the running of prescription.7 Thus, we find Tucker‘s alleged actions constitute a pattern of conduct analogous to the continuing
Consistent with our finding here is the First Circuit‘s holding in Brown v. Vaughn, 589 So.2d 63 (La.App. 1st Cir. 1991). In Brown, supra, the court was presented with an almost identical issue. There, the alleged sexual harassment consisted of statements or advances of a sexual nature directed аt the plaintiff, Ms. Brown, by her supervisor, Vaughn. Ms. Brown alleged five specific incidents of sexual harassment, only one of which occurred within the applicable one-year prescriptive period. Finding that each of the alleged incidents constituted “separate and independent tortious acts,” the district court found Ms. Brown‘s claim, insofar as it was based on conduct outside the prescriptive period, was barred. Reversing, the First Circuit found that Ms. Brown‘s claim was based on the entire course of harassment. In reaching this conclusion, the court engaged in a detailed analysis of the nature of Ms. Brown‘s cause of action. As we find the Brown court‘s analysis cogent and well-reasoned, we summarize it in detail below.
Ms. Brown‘s claim was based upon
The type of conduct constituting such [hostile environment] harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.... Every act of harassment, although reprehensible, does not necessarily
give rise to a hostile environment claim. To be actionable, the harassment must be sufficiently severe or pervasive as to alter the conditions of the victim‘s employment and create an abusive, hostile environment. Meritor, [477 U.S. at 63-66] 106 S.Ct. at 2404-5. In general, hostile environment harassment is characterized by multiple and varied incidents of offensive conduct which have the cumulative effect of creating a hostile working environment for the employee thus victimized. See Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir.1986).
Based on its analysis of the nature of Ms. Brown‘s hostile environment claim, the court concluded that the trial court‘s characterization of each of the five alleged incidents of sexual harassment as a separate tort was erroneous, reasoning that “it was the pattern of harassment and the cоmbination of these incidents that gave rise to plaintiffs’ claim for harassment.” Id. Continuing, the court stated that “these incidents, with one or two possible exceptions, were [not] of sufficient severity to separately comprise an independent claim for harassment, whereas taken together, they may be of sufficient severity and pervasiveness to establish such a claim.” Id.
The First Circuit in Brown, supra, also distinguished its jurisprudence, Laughlin, supra, on which the district court (as did the court of appeal in this case) relied in support of its finding that each of the alleged incidents of sexual harassment was a separate tort:
In Laughlin, this panel held that although several different incidents of physical abuse combined to produce the plaintiff‘s Battered Woman‘s Syndrome, each instance of physical abusе constituted a separate assault and battery giving rise to a separate cause of action, so that prescription ran as to each assault and battery from the time of its occurrence. Laughlin, 515 So.2d at 482. The present case is clearly distinguishable in view of our conclusion that each of the alleged incidents of Vaughn‘s misconduct, in contrast to Laughlin where each assault and battery was clearly a separate tort, did not constitute a separate cause of action for harassment, but rather, that it was the pattern of harassment which gave rise to plaintiffs’ hostile environment claim.
589 So.2d at 65. Thus, the First Circuit held that Ms. Brown‘s claim filed within a year of the last incident was timely as to her entire claim for sexual harassment.
As in Brown, supra, we find the court of appeal‘s reliance on Laughlin, supra,12 to find each incident of harassment alleged by Ms. Bustamento constitutes a separate tort is misplaced. The complained of conduct in Laughlin, supra, consisted of separate and distinct acts, each of which gave rise to immediately apparent damages, resulting in the accrual of a separate cause of action when they occurred. In contrast, here, as in Brown, supra, it is the cumulation of acts and conduct, and the resulting cumulation of damages, that transforms the individual incidents of harassment into an actionable tort. We, therefore, find the court of appeal‘s holding that each of the alleged incidents constituted a separate tort erroneous.
Waltman v. International Paper Co., 875 F.2d 468 (5th Cir.1989), cited by Ms. Bustаmento, likewise lends support to our finding. Waltman, supra, was a sexual harassment suit under Title VII in which pendent claims were asserted for, among other things, intentional infliction of emotional distress and violation of
Significantly, the Waltman court noted that hostile environment claims are often based on continuing violations because “[i]n a hostile environment, аn individual feels constantly threatened even in the absence of constant harassment.” 875 F.2d at 476. A logical corollary is that once a pattern of harassment has created a psychologically offensive work environment, the status quo of such continuous wrongful conduct can be based on the harasser‘s mere presence. This notion of a harasser‘s mere presence being actionable was expressly recognized in Ellison v. Brady, 924 F.2d 872 (9th Cir.1991). There,
Summarizing the above precepts, we find that in an action for intentional infliction of emotional distress resulting from sexual harassment, when the acts or conduct are continuous on an almost daily basis, by the same actor, of the same nature, and the conduct becomes tortious and actionable because of its continuous, cumulative, synergistic nature, then prescription does not commence until the last act occurs or the conduct is abated.
IV.
Having found that prescription did not commence to run on Ms. Bustamento‘s claim until the continuous conduct abated, we must now determine the date on which such abatement occurred. Before addressing the factual issue of when the conduct abated, however, we refute defendants’ procedural contention that the lower courts erred in failing to place the burden of proof on this factual issue on Ms. Bustamento. In support of this contention, defendants cite the principle that when the petition on its face reveals the plaintiff‘s claim has prescribed, the burden of proving a suspension or an interruption of prescription is on the plaintiff. Defendants’ reliance on this principle is misplaced. When, as here, the plaintiff‘s petition alleges a continuous course of conduct that did not cease to exist until within the year preceding the filing of the suit, the plaintiff‘s action is not prescribed on the face of the petition; hence, the burden of proof is on the defendant or the party pleading prescription to establish the facts necessary to sustain the plea. Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724 (La.1973); Strata v. Patin, 545 So.2d 1180, 1189 (La. App. 4th Cir.), cert. denied, 550 So.2d 618 (La.1989); See also Chaney v. State Through Dept. of Health and Human Resources, 432 So.2d 256, 259-60 (La.1983) (applying similar rule regarding date on which it was alleged plaintiff acquired knowledge of tortious act).
On the merits of this issue, Ms. Bustamento contends that the continuous conduct did not abate until after the March 3rd meeting at the New Plant, which marked the point at which Tucker‘s harassment ceased. Conversely, defendants, supported by the court of apрeal, contend that they have met their burden of proof by establishing that no tortious act occurred within the prescriptive period. More particularly, defendants contend that Ms. Bustamento‘s harassment claim is prescribed since the only alleged conduct within the one-year window was an unamplified cursing incident. Defendants cite jurisprudence to the effect that such an unamplified cursing is not actionable. See White, supra; Roshto v. Bajon, 335 So.2d 486 (La.App. 1st Cir. 1976). Agreeing with defendants, the lower courts found that even assuming such a cursing incident occurred, the incident would not have been actionable.
The problem with defendants’ contention, and the lower courts’ holdings, is that they overlook the continuing nature of the complained of conduct and fail to consider the March 3rd inсident in the context in which it occurred: an allegedly hostile work environment created by a continuing course of conduct. They also overlook that it is the
While each incident alleged by Ms. Bustamento may not necessarily be classified as “outrageous,” when her allegations are viewed properly as a whole,16 consisting of а continuing flow of related acts, by the same actor, stretching across a two-year span, the cumulative effect of them could serve to render such actions “outrageous” and actionable under White, supra. Moreover, the last act, just as previous acts of harassment, does not have to be in and of itself actionable, but rather need only be an act in furtherance of the continuing pattern of harassment so as to indicate that the harassment has not abated. See Franklin v. Arkansas Fuel Oil Co., 218 La. 987, 51 So.2d 600, 603 (1951); See also Wilson v. Hartzman, 373 So.2d 204 (La. App. 4th Cir.), writ refused, 376 So.2d 961 (La.1979).
Without resolving the conflicting testimony regarding the events at the New Plant on March 3, 1987, we find that the evidence preponderates that something occurred on that date in furtherance of the on-going harassment, albeit perhaps only a cursing. Our finding that something occurred is evidenced by the following chain of events on that date. First, both Ms. Bustamento and Tucker were at work that morning at the New Plant. Second, something occurred that morning which sent Ms. Bustamento into an emotional state and precipitated Ms. Bustamento calling her attorney. Third, that phone call precipitated the attorney, whose work was stacked up that day, to rush out to the plant. Fourth, a meeting took place that date among Ms. Bustamento, her attorney, and Iott. Fifth, on the next day, Tucker was admonished both orally and in writing. Finally, after that meeting Tucker‘s conduct ceased. Our finding that something occurred is further supported by Ms. Bustamento‘s direct testimony that Tucker cursed her at the New Plant, as well as by the district court‘s apparent acceptance that a cursing occurred.
Based on the above, we find that the alleged on-going harassment that ultimately caused Ms. Bustamento serious emotional injury continued through March 3rd and did not abate until after the meeting at the New Plant on that date, which was less than one year before this suit was filed. Thus, the one-year prescriptive period had not run, and this suit was timely.
IV.
For the reasons assigned, the judgment of the district court as affirmed by the court of appeal is affirmed in part insofar as it sustained the exception of prescription and dismissed the plaintiff‘s suit against the defendant Jeff Hall, but is reversed insofar as it maintained the exception of prescription and dismissed the plaintiff‘s suit against the remaining defendants. As to the remаining defendants, the exception of prescription is overruled, and the case is remanded to the district court for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Notes
Louisiana decisions draw a distinction between damages caused by continuous, and those caused by discontinuous, operating causes. When the operating cause of the injury is continuous, giving rise to successive damages, prescription begins to run from the day the damage was completed and the owner acquired, or should have acquired, knowledge of the damage. See South Central Bell Telephone Co. v. Texaco, 418 So.2d 531 (La.1982), and cases cited therein. When the operating cause of the injury is discontinuous, there is a multiplicity of causes of action and of corresponding prescriptive periods. Prescription is completed as tо each injury, and the corresponding action is barred, upon the passage of one year from the day the owner acquired, or should have acquired, knowledge of the damage. See A.N. Yiannopoulos, Predial Servitudes, § 63 (1982).
Official Revision Comment (c) to