Richardson v. East River Electric Power Cooperative, Inc.

know how the other nation has acted we I until is final? believe we should its decision run, appeal give until the tíme for has or

wait opportunity to appellate court the rule appealed. if

upon the issue Wouldn’t it be granted comity if and the tribal

ridiculous we

appellate court for one or more of reversed 1-1-25, reasons contained in SDCL such judgment in the trial court

as the order fraudulently strongly obtained? I be- give we should the court of last resort

lieve opportunity speak for the nation be- jump gun grant comity.

fore we setting

issue is moot here but we are a bad

precedent for our trial courts. Sooner or

later one of these tribal court decisions is granted

going to be reversed after we have

comity. hope I it than is later sooner. RICHARDSON,

Bobbi Plaintiff Appellant,

EAST RIVER ELECTRIC POWER CO

OPERATIVE, INC., Jeffrey L. Nel

son, Appellees. Defendants and

No. 18634.

Supreme Court of South Dakota.

Considered on Briefs Oct. 1994. 3,May

Decided 1995.

Rehearing Denied June Evans, Davenport,

Lori Purcell Fossen of Smith, Falls, plaintiff Hurwitz & Sioux for appellant. Jackson, Day, Lynn, William F. Jr. of Lebrun, Falls, appellee, Shultz and Sioux for East River Elec. Protsch, Howard, appellee,

Vincent J. Nelson.

WUEST, Retired Justice. employed by

Bobbi Richardson had been Cooperative, East River Electric Power Inc. (East River) July since October 1985. terminated. brought Richardson action her for- termination, employer claiming wrongful mer distress, negligent infliction of emotional intentional infliction of emotional distress. sought compensatory puni- damages against tive both East River and its general manager, Jeffrey L. Nelson. East summary judg- River and Nelson moved for employee-at-will ment on based Richardson’s granted circuit status. The court the defen- appeals. dants’ motion and Richardson affirm. brought giving ardson the lawsuit rise to this

FACTS appeal. employee of East Richardson was an Bobbi In December

River’s since October ANALYSIS AND CONCLUSION members of East River’s board di- typewritten anonymous rectors received a granted The trial court defendants’ River, accusing managers of East letter summary judgment motion for on the basis Nelson, un- including of various defendant and, employee-at-will that Richardson was an practices asking and lawful and unethical such, any as at could be terminated time 1992, May investigate. to In a second board summary judg a motion for River. On letter, anonymous in nature to the similar ment, the trial court must fol consider the first, of was received some the board lowing: members. This second letter was also sent evidence must be viewed most favor- [T]he agencies, including to outside some Wash- ably non-moving party; to the the movant 1992, Nelson, ington, general D.C. June proof clearly has the burden of to show River, spoke group manager at East to a of genuine is no of there issue material eighty employees about East River about the judgment fact and that he is as entitled during regular company meeting letters a law; summary judgment not matter is requested employees any and knowl- trial; for non- substitute belief edge authorship of their to come forward. moving party prevail will at trial not not is group gave Two from this infor- appropriate granting an for the mo- basis him mation to Nelson which led to believe sham, tion on issues not shown to be frivo- plaintiff Richardson had authored the first lous, unsubstantiated; summary judg- letter. remedy an and ment is extreme should 20, 1992, July Richardson’s immediate only

On truth awarded when the is clear supervisor was informed of Nelson’s inten- touching upon doubts the exis- reasonable tion to confront that afternoon genuine Richardson tence of a issue of material fact indicating and advise her he had information should be resolved the movant. anonymous she had written the first letter. 898, McDougall, Tibke v. 479 N.W.2d 904 supervisor planned give knew Nelson (S.D.1992); Pickering Pickering, v. 434 opportunity resign or be Richardson the (S.D.1989); 758, 760 15-6- N.W.2d SDCL Richardson, day, terminated. Later that her 56(c). summary appeal On from a motion for Nelson, supervisor, immediate and another only judgment, to determine our task is manager met in East River’s conference genuine whether a of material fact ex issue room. Nelson told Richardson he had credi- correctly ap ists and whether the law was ble evidence that she wrote the letter but he summary plied. judgment of a is Affirmance did not tell her what that evidence was. She any sup if which proper there exists basis denied that she was the author but indicated ruling v. ports the of the trial court. Garrett identity person. she knew the of that Nelson (S.D. BankWest, Inc., 833, 459 N.W.2d 837 gave opportunity then Richardson the to re- 1990); Pickering, at 434 N.W.2d 760. We so, sign. he When she did not do informed summary judgment grant will affirm a her she was terminated effective immediate- only if no issues of materi there are ly. supervisor escorted her Her immediate questions legal al fact and the have been to her office where she cleaned out her desk correctly v. Citibank decided. Butterfield and left that afternoon. N.A., 857, S.D., “ ‘Summary judgment generally is not feasi appealed her termination un- appeals negligence cases because the standard policy. der East River’s ble applied to reasonable man must be appeal pending, While her was East River conflicting testimony.... It is when position. advertised her vacant When denied, men can appeal she the evidence is such that reasonable Richardson claims conclusion from facts and infer sought counseling attention to draw but one and medical they become a matter of law psychological physical ef- ences that alleviate the ” Thereafter, rarely.’ v. Prairie Trammell of her Rich- this occurs fects termination. (S.D. Co., 460, quires grounds a detailed list of exclusive States Ins. 1991) Ry. (quoting .discharge mandatory specific N. Wilson Great as well as a (1968)) 207, 212-13, procedure. Policy S.D. omitted). (citations Employment, pro- No. Termination of II, B, 2, vides Section five extreme of- employment-at- Dakota’s South fenses which will result immediate termi- 60-4-4. will doctrine is codified SDCL B, II, provides: nation. “There Section provides: The statute are other circumstances under which em- employment having specified An no term ployee may be terminated.” This section be terminated the will either provides further these other circumstances other, party on notice to the unless other- must be consistent with the handbook’s em- provided by wise statute. 515) ployee (Policy discipline policy No. 1983, adopted excep- In this court a narrow discipline that termination will be the of last Osterkamp in tion to that doctrine v. Alkota II, B, acknowledges 4 resort. Section that (S.D.1983). Inc., Mfg., may “other reasons for termination arise Osterkamp, employee an we held that hand- nothing from time to time which have to do employ- book could constitute a contract of behavior,” employee citing reductions in employer specifically agrees ment where the positions. Policy force or elimination of No. discharge employees only.” to “for cause II, A, Employee Discipline, pro- Section agreement an Where such exists the hand- disciplinary vides detailed list of causes for employer book and an fails to abide its language in action. The this section makes discharging employee, terms in an that em- clear the list is not exclusive: “Causes for ployee wrongful has a cause of action for disciplinary which in- action can be taken discharge employment of based on breach of following clude but are not limited to the agreement. Osterkamp We defined the Clearly, items.” exception providing in later cases as two handbook, provides which a non-exclusive list possible ways handbook could grounds disciplinary for termination and only” agreement: create a “for cause (which termination), pre- actions includes First, agreement may such an be found “just only” agreement cludes a cause under explicitly provides, where the handbook Osterkamp exception the second to the at- comparable language, the same or will doctrine. discharge only.’ can occur ‘for cause Sec- ond, only’ agreement may a ‘for cause Additionally, Policy point we implied where the handbook contains III, B, Employee Discipline, No. Section grounds detailed list of exclusive for em- proof employ for further Richardson’s and, ployee discipline discharge or a man- ee status at East River was at-will. This datory specific procedure which the provisions section states the notice employer agrees prior any to follow policy apply: will not employee’s termination. disciplinary when the cause for action is Butterfield, 437 N.W.2d at Breen v. appropriate determined all levels of Dakota Gear & Joint Inc. 433 N.W.2d management including Manag- the General language The handbook er not to be cause for termination accord- clearly employer’s must indicate the intention ing Policy [listing specific, but not statutory power to surrender his under termination], grounds exclusive for but is SDCL 60-4-4 to terminate an at sufficiently of a require serious nature to Butterfield, will. imposition some or all the Disci- argues that the detailed plinary Actions described section IV of provisions of East-River’s hand policy administering this without [no- regarding disciplinary book and termination procedures (empha- tice] described [above] “just procedures implied only” agree cause added). sis exception ment under the second to Oster- kamp, removing employment-at-will disciplinary her from actions described section agree. status. Osterkamp policy We do not re- IV of the include termination. We ing authority. noted in Bass determina- River’s em- We paragraph of East believe of an intentional provides sufficient discre- tion of the first element ployee handbook action, including action, managers to take tion to the infliction of emotional distress wheth- prior employee without of an conduct was extreme and er the defendant’s notice, appro- they action is when feel such initially outrageous, is the court. under these priate. note termination 322; Tibke, 479 N.W.2d at ap- when “all occur circumstances (Second) § of Torts 907. Restatement including management propriate levels (1965) provides: h cmt. Manager” agreement are in as to the General determine, in It is for the court to the first Rich- disciplinary action to be taken. When instance, whether the defendant’s conduct terminated, employment was ardson’s reasonably regarded may as so extreme supervisor, supervisor, his and the immediate permit recovery, outrageous as to present in the confer- general manager were necessarily whether it is so. Where rea- constitutes “all room. We believe this ence differ, jury, men it is for the sonable including management appropriate levels court, subject to the control of the to de- required by Manager” as the General whether, case, particular in the termine managerial discretion to policy. River’s This sufficiently the conduct has been extreme employee precludes terminate an East River liability. outrageous to result in and, “just only” agreement absent cause previously Id. have cited this Restate- agreement, Richardson’s such approval. See Reeves v. ment section 277; Osterkamp, 332 N.W.2d was at-will. Reiman, (S.D.1994); Tibke, 78 523 N.W.2d (language in Butterfield, 437 N.W.2d at 859 Knudsen, 898; Wangen v. 428 479 N.W.2d permitting termination Citibank’s handbook (S.D.1988); Murray, 242 Ruane v. N.W.2d appropriate “in without notice Brooks, (S.D.1986); Ruple v. 380 N.W.2d 362 employee’s instances” was held to reflect 652 We have also 352 N.W.2d employer’s and the reservation at-will status infliction of emotional dis- noted intentional employees whenever right to terminate its resulting in reckless conduct tress includes appropriate). it determined termination 322; distress. 507 N.W.2d emotional conclusion, nothing explicit find either we Ass’n, Valley Hosp. 491 Petersen v. Sioux employee hand- implied in East River’s (S.D.1992) (Petersen II); 467, 469 N.W.2d by East an intention River book reveals at 246. Wangen, 428 N.W.2d statutory power its to terminate to surrender employee under SDCL 60-4-4. definition of the Dakota’s South argument, that her Richardson’s second tort, extreme and outra first element of discharge question was a of fact for wrongful conduct, exceeding all geous as “conduct consider, light trial fails society usually by decent bounds tolerated affirmance, decision, of her court’s and our especially nature calculated and which is of a reason for employment status. The at-will cause, cause, of a mental distress and does discharge is not material to the Richardson’s Tibke, kind,” very well settled. serious is of the issue this case. resolution Intern., (quoting at 907 Groseth 479 N.W.2d question of law and not question, which is Tenneco, Inc., 159, 169 410 N.W.2d Inc. v. fact, employ- is Richardson’s one of whether (S.D.1987) (Groseth I); citing Ruple, 352 at-will under ment with East River was Bottling Wright v. Cola N.W.2d Coca agree with the trial SDCL 60-4-4. We Prosser, (S.D.1987); 608 W. that Richardson was an court’s determination (4th § Torts Handbook of the Law of employee. at-wfll Ed.1971)). ‘outrageous,’ “For conduct to be degree go as to extreme in it must be so Finally, argues that her cause decency, and to beyond possible bounds of all infliction of emotional of action for intentional atrocious, utterly intoler regarded as dismissed as a should not have been distress Tibke, community.” Rest, able a civilized Happy Bass v. matter of law and cites omitted).1 (citation (S.D.1993) Inc., N.W.2d at 907 support- as 507 N.W.2d 317 element, defendant’s conduct must comment d states the Regarding the Restatement this first summary judgments language, We have affirmed obscene fired and evicted this tort where the first element of was not and her husband with seven hours’ notice for met, initially noting this determination is employee’s paying someone to shovel $26 the court. Nelson v. WEB Water Dev. See back); injured show after she Petersen v. (S.D.1993) (em Ass’n, Inc., 507 N.W.2d 691 Ass’n., Valley Hosp. Sioux 486 N.W.2d 516 expiration ployee prior to terminated his (S.D.1992) (Petersen I) II, and Petersen three-year employment following contract (employer’s knowledge N.W.2d 467 of em public meeting at which motion was made to ployee’s specific fear of confrontation and his employee’s job perfor terminate him and failure to warn her of a confrontational-type therein); Speck mance was discussed v. Fed. meeting presented jury question regarding Omaha, (S.D. Land Bank 494 N.W.2d 628 conduct); Rapids reckless French v. Dell 1993) (debtors’ intentional infliction of emo Inc., (S.D. Hosp., Comm. 432 N.W.2d 285 tional distress claim bank which fore 1988) (employer fired based on specific closed on debtors’ land failed to cite complaints perfor medical staff about his facts which would constitute extreme and mance, after was hired without the conduct); Tibke, outrageous 479 N.W.2d 898 originally required academic credentials (members and directors of horse club termi job after announcement had been rewritten plaintiffs membership); nated club Mackin credentials); to accommodate his lesser Carter, (S.D.1990) tosh 451 N.W.2d 285 Wangen, (employer and em (parents plaintiffs’ girlfriend report son’s ployer’s corporate gave employee counselor his regarding ed conversations with them regarding entering ultimatum in-patient alco thoughts unhappiness of suicide and at home hol despite treatment center or fired their Services); Department of Social Groseth knowledge psychi was under Intern’l, Tenneco, Inc., Inc. v. taking prescribed atric care and medication (S.D.1989) (Groseth II) (parent company Ruane, depression); agreement sold franchise without notice to (landlord’s knowledge psychiatric of tenant’s dealer). equipment farm problems, his sexual advances and subse hand, On the other we have reversed sum- quent presented jury harassment of her mary judgments where we determined the question regarding tort); first element of this first element was not met and remanded for (obscene Ruple, phone 352 N.W.2d 652 calls trial those eases where there existed suffi- outrageous constituted extreme and conduct question present cient to jury. the issue to a where knowledge plaintiff caller had had Reeves, (defendant See 523 N.W.2d 78 recently endured trauma at work and been plaintiff, walked while she was nude and fired). inebriated, down the hall in front of class- present In the case we do not find suffi- placed mates and her on in floor or bed with cient evidence the male, first element was met. though another even defendant knew The discussion which led to Ms. Richardson’s sexually the other male had a transmittable place disease); private termination took in a Kjerstad Publications, confer- v. Ravellette Inc., (S.D.1994) herself, ence room at East River with her (employer N.W.2d 419 supervisor, immediate peered general manager, the into hole in restroom wall while three restroom); Bass, manager and one other employees being present. female used raised, (employer N.W.2d 317 There is no evidence that pay prom- refused to voices were used, profanity ised wages, benefits and or that Ms. refused Richardson was given opportunity sufficient time not allega- off for husband’s to rebut the problems, health give Following discussion, forced to tions her. em- ployer gas ride to station Ms. before she would Richardson was to escorted her office having be allowed to take supervisor husband heart her gath- immediate where she pains hospital, spoke to using personal to belongings ered her and left the outrageous, enough upon

be extreme and legal rights permissible and it is not way, one's in a that the defendant has intended to inflict emo- though “even he is well aware that such insis- g provides tional distress. Comment that one is tence is certain to cause emotional distress." doing insisting never liable when no more than civilized, July if not 1992. Dur- building. The conduct until her on was pleasant Richardson. employment, job performance for Ms. particularly ing her employ- person that a whose recognize We by performance as was excellent evidenced likely by discharge will ment is terminated just prior conducted months review two to nothing find in conduct upset, but we the her termination. to the level of the defendants that rises Employee River’s Manual East constituted Likewise, outrageous conduct.2 extreme or agreed in which River a contract East claim of reviewed Ms. Richardson’s we have procedures prior follow certain to terminat- and negligent infliction of distress emotional right ing employees, and to surrender its claim. support no evidence find pro- will. “Where a terminate affirm the trial court on all issues. ambiguous, vision of a contract is evidence introduced what must be to determine C.J., MILLER, concurs. parties were and such evi- intentions KONENKAMP, JJ., and AMUNDSON question creates a of fact which dence must part part. in in concur dissent Summary judg- ... be resolved only if are ment will be affirmed there no SABERS, J., dissents. legal issues of fact and the genuine material GILBERTSON, J., having been a not correctly questions have decided.” been case of the Court at the time this member N.A, S.D., Citibank Butterfield submitted, participate. did not (S.D.1989) (citations 857, 858 omit- AMUNDSON, (concurring part in Justice ted). Here, there issues of ma- are dissenting part). legal questions fact and the have been terial incorrectly cited. join majority, I concur with but Justice dissent on the distress Sabers’ emotional Osterkamp v. Alkota In accordance damage punitive issues. (S.D.1983), Inc., Mfg., 332 N.W.2d 275 Employee provides, River’s Manual KONENKAMP, (concurring in Justice comparable discharge language, the same or dissenting part part). only.” occur “for cause join majority affirming I the dis- Employee Manual contains a section entitled negligent inflic- missal of the and intentional Employee Relations.” Section “Series 500— punitive dam- tion of emotional distress and II(K) provides: policy number agree age claims. On the hand I with other probation- employees New are considered employee that manual Justice Sabers the (12) in their ary for the first months only cause” and so to twelve created a “for contract join may position. employees I the New be dis- that extent dissent. any with or cause at time missed without SABERS, (dissenting). Justice period pro- and during probationary the employees AND THE and 1. TO THE LAW moted transferred CONTRARY MANUAL, original posi- THE TRI- EMPLOYEE’S or to their demoted reduced added.) AL GRANTED SUMMARY (Emphasis COURT with cause. tion TERMI- JUDGMENT UPHOLDING nor Richardson neither a new a Bobbi was NATION, RE- BASED ON SOLELY obviously employee. had probationary She TALIATION FOR AN ANONYMOUS longer there than twelve months. been LETTER, PROOF OF AU- WITHOUT Therefore, or reduced she could be demoted THORSHIP, AN EXCEL- AGAINST position only cause. original with to her LENTLY RATED NONPROBATION- ARY EMPLOYEE. is inter- Employee If East River’s Manual employees may preted regular to mean that permanent as a Bobbi worked II(K) cause, Section 1985 be terminated without employee of East River from October claim), history, of the actual employment nor factor into an examination 2. Neither Richardson's (the outrageous. thoughts element or intent second must Nelson's which be extreme conduct distress intentional infliction of emotional of an policy regular presented If 501 becomes senseless. em- issue was on an intentional inflic- cause, ployees could be terminated without tion of emotional distress claim in connection proba- there would no difference between claim, wrongful a even tionary regular employees and no reason though the court found the could point probationary employees out Similarly, be fired at will. the evidence could with or be terminated without cause. light viewed in the most favorable to Rich- agreed employees presents question East River has ardson a of fact on the only. be demoted for cause Termination is negligent intentional infliction of emo- and/or the ultimate demotion. Because East River tional distress claims. agreed only, has to demote for cause it can The evidence shows that until she was only. Any likewise terminate for cause other terminated, Bobbi Richardson had been a construction no makes sense. long-time, faithful and dedicated East River provision A similar was contained the employee. Jeff Nelson terminated Richard- handbook Petersen v. Sioux Val- relying son on the word of an who Association, ley Hospital 486 N.W.2d 516 possible was herself considered a author of (S.D.1992) (Petersen I). However, this court anonymous Further, letter. the evidence provision by noted that the followed in the record shows that some of the infor- stating disclaimer that the handbook was not top mation the letter was known a contract of and a further accusing employ- East River officials and the explicitly “Employ- statement which stated: ee. The evidence also shows that Richard- ment can be terminated or letter, employer any son was never asked if she wrote the any time reason.” (Emphasis original). Id. long and was not told until after her termi- River’s Manual contains no finalized, such disclaimer nation had been what evidence had explicitly language. terminable-at-will presented against Finally, been her. Rich- II(K) Therefore, import the clear of Section writing ardson denies the letter. Taken in a regular employees may is that be terminated light most favorable to Richardson these only. for cause present facts issue as to whether East reasonable, River and Nelson’s acts were manager, June of Nelson, meeting approximate- foreseeably Jeff called a whether Richardson would be af- ly fected, and asked for physically mentally information both such regarding authorship anonymous acts. letter. At meeting, Nelson stated that Intentional infliction of emotional distress “layed night thinking ways he awake at includes resulting reckless conduct in emo-

retaliate” the author. tional distress. 507 N.W.2d at circumstance, Under these ma Valley Hospital, Petersen v. Sioux terial issue of identity fact arises as to the (S.D.1992) (Petersen II). anonymous the author of the letter. East obligation River genu has to show that no indicated, “layed As Nelson admitted he ine Dept. issues of material fact exist. night at thinking ways awake bed Thiewes, (S.D. 1, Rev. v. 448 N.W.2d 2-3 retaliate” the author of the letter. 1989). They have failed in their burden of argues that “retaliate” means “to proof Secondly, to do this. to eliminate the revenge” take hardly and that it can fact, issue of material East River argued revenge that one can take uninten- prove had to that Bobbi Richardson wrote tionally. Richardson further claims that Mr. They the letter. have also faded to do this. revenge wrong Nelson took his per- on the son. questions appro- These and other are 2. THE TRIAL COURT INCORRECTLY I, priate jury. for a Petersen 486 N.W.2d at GRANTED SUMMARY JUDGMENT 519-20; Wright v. Bottling Coca Cola AS TO EMOTIONAL DISTRESS AND 414 N.W.2d 609-10 PUNITIVE DAMAGE CLAIMS. Rest, Inc., Happy Applying Bass v. the information in the N.W.2d record to (S.D.1993), Bass, this court held that a Wangen N.W.2d v. Knud- (S.D.1988) symptomatic “depression and other dence of son, 428 N.W.2d distress.”). 519-20, Wangen, N.W.2d I, reasonable emotional Petersen (evidence differ, when of emotional distress consist- and the evidence at 248 minds could pres- depression). In each of favorably to Richardson of treatment for most ed viewed cases, negligent and inten- evidence so on there was “sufficient jury questions these ents distress. on wheth- of emotional minds could differ tional infliction reasonable from emotional dis- [plaintiff] er suffered con- damages Finally, “[pjunitive Bobbi Richardson tress.” Id. at 248-49. inflic- with intentional in connection sidered “emotional dam- testified that she suffered Bass, 507 distress.” tion of emotional a beyond and that she had seen ages belief’ argues Finally, Richardson at 324. pre- physician and received counselor and tried, accused, convicted that she her scription in connection with medication commit, not all wrong she did sentenced for resulting from her termination. mental state ninety minutes. space of about on Clearly, reasonable minds could differ not argues that Richardson did River suffered emotional dis- whether Richardson to warrant enough emotional distress suffer Therefore, go case should to the tress. However, jury. case to a presenting her jury. that Rich- precedent indicates Dakota South e.g., jury. go should See ardson’s claim I, (only at 519 evidence

Petersen plaintiffs affidavit emotional distress was surrounding termi-

stating circumstances up- her to be “nervous

nation caused (evi-

set.”); n. 22 N.W.2d at 323 consisted of evi- of emotional distress

dence

Case Details

Case Name: Richardson v. East River Electric Power Cooperative, Inc.

Court Name: South Dakota Supreme Court

Date Published: May 3, 1995

Citation: 531 N.W.2d 23

Docket Number: 18634

Court Abbreviation: S.D.