ORDER
THIS MATTER is bеfore the Court on Defendant’s motions for summary judgment on Defendant’s counterclaim and Plaintiff's complaint.
I. FACTUAL BACKGROUND.
The record in this case indicates that the dispute in this matter involves the termination of Plaintiff by Defendant. In February, 1988, Defendant extended an offer for Plaintiff to leave his position as a stock broker with Paine Webber in Charlotte, North Carolina to join its office in the same city. Defendant is a Delaware corporation with its principal place of business in New York. Plaintiff is and has been during the period of time relevant to this litigation a citizen of North Carolina.
As an enticement for Plaintiff to leave his position with Paine Webber, Defendant offered Plaintiff transition pay in the amount of 1155,924.0o. 1 This sum was paid to Plaintiff in a lump sum оn his first day of work (February 12, 1988) at Defendant's firm. Plaintiff signed a note on February 12, 1988 for the full amount of the payment. The note provides that Plaintiff was to repay the transition pay in equal installments over the course of four (4) years. Moreover, the note contains an acceleration clause with the effect of making the entire amount of the loan due immediately for, among other reasons, the termination of Plaintiff “for any reason whatsoever”. However, the employment agreement signed by Plaintiff also on February 12, 1988 contains language that seems to impose liability on Plaintiff to repay the note only in the event that termination was for cause.
Plaintiff worked for Defendant without complaint until September, 1989. On Seрtember 29, 1989, Defendant terminated Plaintiff from its employ. Defendant claimed that Plaintiff had been trading extensively in accounts for customers he knew had died well before he began such trading. When confronted with the accusations, Plaintiff claimed that Defendant’s operation department had opened the accounts and had full knowledge of his activities. Moreover, Plaintiff contended that the account of which he had been trading was of a customer that had recently died, and that the customer’s sister as executor of the customer’s estate had authorized the trading. Plaintiff further claimed that the accounts had made money for the customer’s estate and that no one had complained about his аctivities. Plaintiff contended that any error on his part in trading on those accounts was clerical in nature, and certainly not an offense amounting to termination for cause. After being discharged, Plaintiff has claimed that the real reason for the termination was that he discovered widespread insider trading was being conducted by employees of Defen
Defendant nonetheless fired Plaintiff. Defendant believed that Plaintiffs actions justified discharge for cause in that the actions were dishonest, a violation of regulatory rules, a violation of Defendant’s internal policy and detrimental to the conduct of Defendant’s business.
In response to his termination, Plaintiff filed the complaint and amended complaint in this action. Count I alleges that Plaintiff informed Defendant’s manager that insider trading was being conducted in its office, and that Plaintiff was discharged for this reason in violation of his employment agreement. Count II alleges that such retaliatory action is violative of North Carolina and federal public policy. Count III alleges that Defendant intentionally failed to file a form U-5 within thirty (30) days of Plaintiff’s termination in violation of regulations promulgated by the National Association of Securities Dealers (NASD). Count IV alleges that Defendant’s agents slandered and defamed Plaintiff’s reputation in conversations with his former customers. Count V alleges that Defendant’s actions amounted to the intentional infliction of emotional distress. And Count VI from the amended complaint alleges that Defendant withheld wages in the amount of $1,163.00 in violation of state law.
After answering the complaint, Defendant filed a counterclaim against Plaintiff. The counterclaim alleges that Plaintiff was obligated under the note to repay in full the transition pay when he was terminated. Defendant claims that Plaintiff is indebted to it in the amount of $116,943.00. 2
II. PROCEDURAL BACKGROUND.
The complaint in this matter, alleging five (5) causes of action, was filed on February 23, 1990 in the Mecklenburg County, North Carolina Superior Court. On March 13, 1990, Defendant filed a notice removing the matter to this Court based on the diversity of the parties’ citizenship. Through the random assignment of case procedure utilized by the Clerk’s office, the case was assigned to the Honorable James B. McMillan.
On March 19, 1990, Defendant filed its answer to Plaintiff’s complaint. Plaintiff, on April 9, 1990, filed a reply to Defendant’s counterclaim. On June 29, 1990, Plaintiff moved to amend the complaint to add a sixth claim. That motion was granted by Judge McMillan on July 19, 1990. On August 2, 1990, Defendant filed its answer to the amended complaint. In October, 1990, this matter was reassigned to the undersigned. Consequently, a superseding pretrial order was entered on October 22, 1990.
On June 1, 1990, Defendant filed a motion for summary judgment on its counterclaim. However, the motion was not briefed as required by the superseding pretrial order because Judge McMillan’s pretrial order did not contain such a requirement. Plaintiff, on June 27, 1990, filed a memorandum in opposition to Defendant’s motion for summary judgment on the counterclaim. After this matter had been reassigned to the undersigned, Defendant filed a document captioned “Defendant’s Reply in Support of Motion for Summary Judgment on Counterclaim”. In essence, the document was a brief in support of Defendant’s motion for summary judgment on the counterclaim. The undersigned, through the Clerk’s office, requested that the document be filed in order for Defendant to be in compliance with this Court’s requirement that all motions be briefed.
See
Pretrial Order, filed October 22, 1990, at par. 7 on page 3 (stating that every
Plaintiff on November 13, 1990 filed a motion to strike Defendant’s reply in support of its motion for summary judgment on the counterclaim. In support of the motion, Plaintiff cited to the undersigned’s pretrial order requirement that reply memorandum be submitted within 14 days (plus 3 days if service is made by mail) from the service of the preceding document. See Pretrial Order, dated October 22, 1990, at paragraph 12 on page 4. Because the reply was filed some four (4) months after Plaintiff’s response was filed, Plaintiff contends that Defendant violated the Court’s pretrial order and that striking the reply is justified.
On November 14, 1990, Defendant filed a response to Plaintiff’ motion to strike its reply brief. Defendant cited the language of paragraph 7 of the pretrial order which allows a party 14 days from the order being entered to bring the motion into compliance. Because the pretrial order was entered on October 22, 1990 and Plaintiff filed its reply/brief on November 5, 1990, Plaintiff argues that the reply (which should have been captioned as a brief) was timely filed. Plaintiff, on November 21, 1990, filed a reply to Defendant’s response to it motion to strike the reply brief, and Defendant on November 29, 1990 filed a surreply to that reply.
The Court believes that Defendant’s reply of November 5, 1990 was in essence a brief in support of its motion for summary judgment of the counterclaim. Accordingly, the reply/brief was timely filed. Moreover, the Court doubts the wisdom in deciding issues based on a hyрertechnical reading of the Court’s pretrial order rather than on the merits. Therefore, the Court will deny Plaintiff’s motion to strike the reply.
On December 7, 1990, Defendant filed a motion for summary judgment as to each of the six (6) causes of action in Plaintiff’s complaint and amended complaint. Defendant attached affidavits and deposition testimony in support of its motion. On December 21, 1990, Plaintiff filed a memorandum in opposition to Defendant’s motion for summary judgment. Plaintiff attached affidavits and deposition testimony in support of his memorandum in opposition. On January 2, 1991, Defendant filed a reply brief in support of its motion for summary judgment. Plaintiff on January 16, 1991 filed a surreply memorandum in opposition to Defendant’s motion for summary judgment. On Jаnuary 22, 1991, Defendant filed a second reply brief in support of its motion for summary judgment.
With the issues having been briefed ad nauseam, the Court believes that the motions for summary judgment are now ripe for disposition.
III. APPLICABLE LEGAL STANDARD FOR SUMMARY JUDGMENT.
Summary judgment is appropriate when the pleadings, responses to discovery, and the record reveal that no genuine issue of any material fact exists and that the moving party is entitled to judgment as a matter of law.
See
Rule 56(c) of the Federal Rules of Civil Procedure. The party moving for summary judgment has the initial burden of showing that no genuine issue of any material fact exists and that the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477
U.S. 317, 323,
IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIM.
In support of its motion for summary judgment on the counterclaim, Defendant contends that the note itself requires Plaintiff to pay the outstanding balance of the note if Plaintiff is terminated for any reason whatsoever. The relevant language from the note on page 1 provides in pertinent part:
... [TJhis Note, plus interest, shall at the option of P-B Securities become immediately due and payable without notice, protest, presentment, or demand upon the happening of any one of the following specified events of default:
(1) the termination, for any reason whatsoever, of the undersigned’s employment with P-B Securities ... (emphasis added).
Moreover, Plaintiff has admitted to signing, reading аnd understanding the terms of the note. See Defendant’s Request for Admissions numbers 11-15. Because there are no material issues in dispute as to Plaintiff’s obligation under the note, Defendant argues that summary judgment is appropriate.
In response, Plaintiff has cited to language from the employment agreement. The employment agreement, entered on February 12, 1988 (the same day as the note), provides in pertinent part:
5. Transitional Compensation. P-B Securities shall pay you total transitional compensation of ONE HUNDRED FIFTY-FIVE THOUSAND, NINE HUNDRED TWENTY-FOUR DOLLARS ($155,924.00) in four equal annual installments on February 12, 1989, 1990, 1991, and 1992.... Each such installment shall be subject to applicable withholding taxes on said amount and interest paid thereon and shall be paid to you provided that ... (b) you have not been terminated for causе as defined in paragraph 3(c) hereof.... If you resign for any reason before completing four years of employment or are terminated for cause, you will not be entitled to any unpaid amounts under this paragraph.... If you are terminated by P-B Securities without cause as defined herein, all unpaid installments (less withholding taxes) due to you hereunder shall be accelerated and any amounts owed by you to P-B Securities shall be accelerated ... (emphasis added).
The terms of the employment agreement indicate that Plaintiff is not liable for transitional pay if termination was without cause. In fact, had Defendant not paid the transitional compensation in a lump sum, it would owe Plaintiff the entire amount if Plaintiff was discharged without cause. Hence, it appears to the Court that the terms of the note and the employment agreement regarding the transitional payment are in conflict. Thus, both agreements must be construed together in determining what the parties intended.
See Lambe-Young, Inc. v. Austin,
Defendant in its brief in support of the motion for summary judgment on the counterclaim appears to concede thаt there might be a material issue in dispute regarding the terms of the agreement. Accordingly, for purposes of the motion, Defendant accedes that in order to be entitled to collect on its note it must show Plaintiff was discharged for cause. Defendant ar
The Court believes that genuine issues of material fact are in dispute regarding whether Plaintiff was terminated for cause. Defendant as the movant has the initial burden of proof.
Celotex Corp. v. Catrett,
Although it is not the most convincing evidence, the Court believes that Plaintiff has come forward with evidence that he learned of insider trading activities at Defendant’s Charlotte office; that Plaintiff confronted Defendant’s manager with his knowledge of the activities; and that Defendant’s manager appeared to acknowledge his awareness of such activity. The evidence of Plaintiff being terminated for “blowing the whistle” is supported by the closeness of time to the discharge and the conversation between Plaintiff and Defendant’s manager. Moreover, other unrelated lawsuits involving alleged insider trading by employees of Defendant are currently pending.
Even if Plaintiff has not presented sufficient evidence to survive the summary judgment motion based on the theory that he was terminated for his knowledge of the alleged insider trading activities, the Court nonetheless believes that genuine issues of material fact are in dispute regarding whether the instances of Plaintiff trading on the account of deceased persons amounts to activities that are defined in the employment agreement as giving rise to “for cause” terminable offenses. Plaintiff has presented evidence that Defendant’s operations department was aware and approved of the activities. Moreover, Plaintiff has presented evidence that the trading may have been a technical or clerical error instead of dishonesty. Finally, Plaintiff has presented еvidence that appears to indicate that he had the approval of the executor of the deceased customer’s estate to trade on the account.
While the Court does not necessarily believe that the evidence presented by Plaintiff is compelling, the Court does believe that it is the function of a jury as the fact finder to make the determination of whether the evidence is convincing. Accordingly, the Court will deny Defendant’s motion for summary judgment on its counterclaim.
V. DEPENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE COMPLAINT.
Defendant has moved for summary judgment on each of the six (6) counts pleaded by Plaintiff. The Court will address each count below.
A. Count I — Discharge in Violation of the Emyloyment Agreement.
In the first count of his complaint, Plaintiff contends that Defendant discharged him in retaliation for his discovery of insider trading by employees of Defendant. According to Plaintiff, such a termination was violative of his employment agreement with Defendant.
The agreement at paragraphs 3, 15, and 16 provides in pertinent part:
3. Term_ Your employment shall commence on the date hereof and will terminate on the earliest of the following ... (b) Written of oral notice of termination from either party to this Agreement to the other.
15. Duration of Emyloyment. This Agreement does not guarantee the Employee any particular term of employment. Emyloyee is emyloyed at will and may be terminated at any time with or without cause, (emphasis added).
16. Ayylicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
Defendant argues that the explicit terms of the agreement provided that Plaintiff was employed at will. Accordingly, Defen
The Cоurt believes that Plaintiff has failed to provide any evidence to contradict Defendant’s position that he was employed at will. Plaintiff certainly has not produced any evidence indicating that the parties did not bargain for something different than what the agreement says — that Plaintiff could be terminated at any time for any reason. Plaintiff’s arguments that Defendant violated public policy by discharging him are relevant to Count II alone. Plaintiff, in his memorandum of December 21, 1990 in opposition to Defendant’s motion for summary judgment, states at page 23 that the “[cjlaim for wrongful discharge in North Carolina sounds in tort”. Therefore, the arguments that Plaintiff was terminated for disclosing information related to insider trading is relevant for the tort cause of action in Count II.
Because Plaintiff has not produced any evidence to rebut the contention of Defendant that the agreement provided for at-will employment, Defendant’s motion for summary judgment on Count I will be granted.
B. Count II — Wrongful Discharge in Violation of Public Policy.
The employment at-will doctrine is firmly entrenched in North Carolina law. Recently, the North Carolina Supreme Court has enunciated an exception to the doctrine where a discharge is made in violation of public policy.
See Coman v. Thomas Manufacturing Co., Inc.,
In finding an exception to the employment at-will doctrine, the North Carolina Supreme Court relied on the North Carolina Court of Appeals case of
Sides v. Duke University,
The only North Carolina Court of Appeals case to significantly examine the scope of Coman has stated that:
The two North Carolina cases which have used public-policy grounds to find exceptions to the at-will doctrine have involved allegations of the employee’s being affirmatively instructed to violate the law. In each case, our courts focused on the potential harm to the public at large if those instructions were obeyed.
See McLaughlin v. Barclays American Corp.,
Similarly, the Fourth Circuit Court of Appeals in a recent case has also stated that the breadth of the
Coman
exception is presently unclear and will remain so until state courts have an opportunity to apply
Coman
to a variety of cases.
See Harrison v. Edison Brothers Apparel Stores, Inc.,
In the case at hand, Plaintiff argues that the exception should include instances where an employee refuses to perform an act prohibited by law or where an employee performs an act required by law.
See Hogan v. Forsyth Country Club,
This Court will not be the court to extend the
Coman
exception further. In one sense, the Court believes the broad language of
Coman
relating to “bad faith” is unfortunate and destined to lead to the inclusion of a wrongful discharge claim to virtually every employment termination lawsuit. The Court finds it implausible that the North Carolina Supreme Court, in enunciating a limited exception to the well entrenched employment at-will doctrine, intended to create a separate cause of action to almost every employment termination case. Just as the Fourth Circuit has done in
Harrison,
this Court will allow the state
C. Count III—Tardy Filing of NASD Form U-5.
In his complaint, Plaintiff contends in Count III that Defendant violated NASD rules by failing to file the form U-5 in a timely fashion. NASD regulation requires that members give notice through a form U-5 of a broker’s termination within thirty (30) days. A copy of the notice is also to be given to the terminated broker.
Defendant has introduced evidence through the affidavit of Bruce Karp that it filed Plaintiffs U-5 form on October 27, 1989. Thus, the form was filed within thirty (30) days of Plaintiffs termination date of September 29, 1989. Moreover, thе affi-ant stated that a copy of the form was sent to Plaintiff on the same date.
Plaintiff has introduced absolutely no evidence to counter the affidavit of Bruce Karp. In fact, Plaintiff failed to address Count III in the memorandum in opposition. Moreover, the Court does not believe that there is any basis in law for a cause of action based on the alleged violation of a NASD regulation.
See Jablon v. Dean Witter & Co.,
D. Count IV—Slander.
In support of his fourth claim, Plaintiff has introduced the affidavits of William Franck—a former customer of Plaintiff while he worked for Defendant— and Kenneth Hester—the accountant of Franck. 5 The affidavits indicate that after Plaintiff was terminated, Franck was contacted by Defendant’s broker Dick Jarman. Jarman represented to Franck that his account had been reassigned to him following the termination of Plaintiff. Jarman also inferred that this was not the first time Plaintiff had been terminated from a brokerage firm. Furthermore, Jarman created the impression that Plaintiff was involved in insider trading and that he had received “kickbacks” from Hester’s accounting firm.
Defendant argues that the slander claim cannot be imputed to it because Jar-man was not acting within the scope of his employment. In the alternative, Defendant contends that the comment was qualifiedly privileged.
The Court believes the question of whether the statement was in the scope of Jarman’s employment is a question of fаct that must be decided by the jury. It is disingenuous for Defendant to argue that it was not in Jarman’s job description to make slanderous statements. If the Court was to adopt this argument, a principal could never be held liable for its agents’
As to the argument that any statement by Jarman was qualified privilege, Defendant must demonstrate that the statements to former clients of Plaintiff were made in good faith in rendering investment advice.
See Stewart v. Nation-Wide Check Corp.,
Based on the reasons enunciated heretofore, the Court believes that there are genuine issues of material fact in dispute in regard to Count IY. Accordingly, summary judgment is not appropriate on this cause of action.
E. Count V—Intentional Infliction of Emotional Distress.
In support of his fifth cause of action, Plaintiff contends that Defendant terminated him with “[t]he purpose and intent of obtaining his client base which he developed over seven (7) years in the brokerage business to its own financial benefit and to his financial ruin.” See Plaintiff’s Memorandum in Opposition, filed December 21, 1990, at 32. Defendant’s actions has caused Plaintiff sleeplessness, nervousness, humiliation, and embarrassment. Moreover, Plaintiff claims that he has been clinically diagnosed and treated for anxiety. According to Plaintiff, the actions of Defendant constitute the tort of intentional infliction of emotional distress.
Defendant believes that Plaintiff has failed to establish that its behavior amounts to “extreme and outrageous conduct”. Moreover, Defendant has introduced Plaintiff’s deposition testimony which tends to indicate that Plaintiff’s emotional distress was a preexisting condition. For example, Plaintiff has admitted that he was treated for hypertension, obesity and stress nine months before his termination. See Haburjak Dep. at 49-50. Plaintiff has not sought professional or рastoral psychiatric treatment for emotional distress. Id. at 59-60. Moreover, Plaintiff admitted to being a “pack and a half” a day smoker which contributes to elevated blood pressure. Id. at 257-58.
In North Carolina, the elements of intentional infliction of emotional distress are as follows:
(1) Extreme and outrageous conduct
(2) which is intended to cause and does cause
(3) severe emotional distress to another.
See Trought v. Richardson,
In employment actions, North Carolina courts have been reluctant to find intentional infliction of emotional distress claims аctionable.
See generally Mullis v. The Pantry, Inc.,
The liability clearly does not extend to mere insult,
indignities, threats.... 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 or unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.
The Court does not believe that Defendant’s conduct in this case arises to the level of outrageousness found by North Carolina courts аmounting to liability under the tort. In
Brown v. Burlington Industries, Inc.,
At most in this case, Plaintiff lost his job which was governed by an employment agreement that provided for discharge without cause. While Defеndant’s actions in terminating Plaintiff may have been insensitive or inappropriate, the Court simply does not believe that Plaintiff has introduced credible evidence to indicate that Defendant’s conduct was extreme and outrageous. Therefore, the Court will grant Defendant’s motion for summary judgment on this claim.
F. Count VI — Wage Claim.
In his amended complaint, Plaintiff claims that Defendant failed to pay him $1,163.00 for wages due. Defendant in its answer to the complaint offered to pay the full amount claimed. However, Plaintiff has rejected that offer in lieu of attempting to convince the Court to award attorneys fees and to double the amount of the award as statutorily permitted.
The only argument offered by Defendant to dismiss this state cause of action is that there will be no independent basis of jurisdiction if the Court grants Defendant’s motion for summary judgment on the remaining claims. However, the Court has not dismissed all of the claims. Therefore, the Court does retain jurisdiction over this matter. Thus, summary judgment is not appropriate on Plaintiff’s sixth claim.
VI. ORDER OF THE COURT.
NOW, THEREFORE, IT IS ORDERED that:
(1) Plaintiff’s motion to strike Defendant’s reply in support of its motion for summary judgment on the counterclaim be, and hereby is, DENIED;
(2) Defendant’s motion for summary judgment on its counterclaim be, and hereby is, DENIED; and
(3) Defendant’s motion for summary judgment on Plaintiff’s complaint is GRANTED AS TO COUNTS I, II, III,and V, and is DENIED AS TO COUNTS IY AND YI.
JUDGMENT
In accordance with the Memorandum of Decision and Order entered simultaneously with this Judgment,
IT IS ORDERED, ADJUDGED AND DECREED that:
(1) Defendant’s motion for summary judgment be, and hereby is, GRANTED AS TO COUNTS I, II, III, and V;
(2) Defendant’s motion for summary judgment be, and hereby is, DENIED AS TO COUNTS IV and VI;
(3) Plaintiff’s complаint is hereby DISMISSED as to Counts I, II, III, and V; and
(4) Each party shall bear his and its own costs as to Counts I, II, III, and V.
Notes
. Transition pay is a normal inducement utilized in the brokerage business which is offered to lure established brokers and their clients away from other firms. Brokers are ordinarily compensated on a commission basis. When a broker switches firms, there are delays experienced due to transferring existing clients’ assets to the new firm, thereby reducing the broker’s normal commission income temporarily. The transition pay compensates for the temporary commission loss.
. Plaintiff states in his affidavit that he was told by Defendant's manager that he would be required to pay four (4) annual installments of $38,981.00 toward the transition pay. However, Plaintiff states that he was led to believe by Defendant's manager that it was customary for the loan to be forgiven at the rate of $38,981.00 per year. In support of this belief, Plaintiff states on his first year anniversary of employment at Defendant’s firm, Plaintiff issued to Defendant a check in the amount of $54,573.40 which represented principal of $38,931.00 and accrued interest of $15,592,40. Simultaneously, Defendant issued to Plaintiff a check in the gross amount of $54,573.40 minus deductions of $19,296.67 with a net amount of $35,276.73. Plaintiff claims that the net payment represents a forgiveness of the first year payment.
. As to Count I only, the Court believes New York law is applicable. This claim relates directly to the employment agreement. Both parties bargained in good faith for the agreement to be interpreted by New York. The Court (as is discussed infra.) believes that the remaining claims are tortious in nature and do not relate to a breach of the agreement. Accordingly, North Carolina law is applicable to those claims.
. Plaintiff does not claim that Defendant instructed him to violate the law or that his refusal to do so resulted in his termination. Moreover, Plaintiff admits that no one at Defendant's firm told him to withhold information or to disclose information he believed to be false. See Haburjak Dep. at 135-37. Rather, Plaintiff's sole claim is that he received no response from Defendant’s manager when he reported that insider trading was being conducted. See Habur-jak Dep. at 181-82. Had Plaintiff been affirmatively instructed to withhold information, the Court believes that he would have a cause of action on this claim. However, the evidence does not support such a scenario.
. Based on Plaintiff's attempt to impose a hyper-technical reading on the Court's pretrial order as discussed supra, in relation to Defendant’s reply/brief in support of its motion for summary judgment on the counterclaim, the Court is tempted to strike the affidavits of Franck and Hester. This Court has a long-standing rule of which Plaintiff's counsel should be well aware that prohibits filing faxed documents. The Franck affidavit and the affidavit of Hester (which corroborates Franck’s affidavit) are both faxed copies. However, the Court is more concerned with deciding issues based on the merits rather than expounding wasteful effort and resources in interpreting the pretrial order in the petty manner suggested by Plaintiff.
. In making this argument, Defendant relies on the following analogy. "It is one thing for a principal to foresee and expect that the agent’s negligent driving of the principal’s truck will leave the principal liable for an accident; it is quite another for a principal to foresee or expect that he will be liable for his agent’s self-originating, gratuitous slander of a fellow agent”. If the Court was to adopt Plaintiff's argument, the principal would never be held liable for an agent’s negligent driving of a truck because it is not in the agent’s job description to wreck the truck.
. The conduct included the supervisor brushing up against the employee; rubbing his penis against her buttocks; touching her buttocks; screaming profanities at her when she refused his advances; threatening her with bodily injury; and pulling a knife on her.
Obviously, the conduct in the Hogan case was substantially more outrageous than in this case.