*1 (Robert H. Bogdan, Charles Hollis A. BOUIE, brief), Kullman, Plaintiff-Appellee, v. Inman, on the Warren
Bee, Downing Banta, Orleans, La., & New defendants-appellants. AUTOZONE, INC., a Delaware Granberg, Albuquerque, N.M., Steven corporation, and Dan Pontiff-appellee. ^or Defendants-Appellants. No. 90-2194. HOLLOWAY, Before: SETH and TACHA, Judges. Circuit Appeals, United States Court of Tenth Circuit. SETH, Judge. Circuit March brought against Warren Bouie this suit AutoZone, employer (Auto-
his former Inc. Zone) supervisor and his former Dan Go- asserting mez five causes of action based on by racial discrimination AutoZone. However, only cause of action at issue appeal on is Bouie’s claim for intentionаl or reckless infliction of emotional distress un- jury der New Mexico A law. awarded $16,120 compensatory damages $150,000 punitive damages on the claim.
Appellants argue AutoZone and Gomez legal that the district court committed er- by concluding ror that reasonable minds might differ on whether the conduct at issue was as that term is de- error, fined under law. This claim, Appellants improper led to the denial summary judgment, of their motions for verdict, judgment directed notwith- alternative, standing the In the verdict. Appellants contend that award remittitur or excessive warranted a new trial. For the reasons that follow find we that AutoZone and Gomez were n.o.v., and, therefore, judgment entitled to we reverse. reviewing Appellants’ the denial of
motions, consider the facts in- we and the light ferences from those facts in the non-moving party favorable —War- ren Bouie. See Zimmerman v. First Fed. Ass’n, Sav. and Loan (10th Cir.1988). an male. He is African-American Shack,
was hired
Auto
AutoZone’s
predecessor,
parts
on October
1986 as a
Albuquer-
salesman at one of Auto Shack’s
que
applied
job,
stores. When he
for the
*2
However, during cross-ex-
Weedameyer.
experience
years
five
Bouie had
to
he stated
he never talked
amination
that
parts.
of auto
sale
slurs.
Bouie about the racial
corporation duly
is a
AutoZone
Delaware
testify
to
The second
of Bouie
coworker
to do business
and authorized
licensed
He
at AutoZone
Ralph Mora.
worked
company specializes in was
Mexico. The
in 1986-1987 as an assistant
for ten months
parts.
of auto
the sale
manager. Mora testified
manager and as a
Hispanic
is a
Appellant, Dan
to Bouie as a
that Gomez twice referred
this
in Alabama when
resided
male who
to
point stated “he had
“nigger” and at one
as both
Gomez worked
filed.
lawsuit was
lazy-ass niggеr, no matter
get rid of that
area advis-
manager and
an AutoZone store
get the
NAACP
he
whole
region
while Bouie
or in the New
testimony,
During his direct
him.”
after
In this
company.
employed with
was
occasions
that on
or three
Mora stated
two
authority over
supervisory
he had
capacity
he told Bouie about Gomez’s statements.
employment at AutoZone
Bouie.
however,
cross-examination,
he stated
On
He
fired for
just
year.
under a
was
lasted
Mora testified
that he told Bouie once.
appeal.
to this
a stated cause unrelated
he
Bouie
he told him because
believed
that
employees
that
Bouie heard from
employee and
to warn
good
wanted
was
to him as
had referred
several times
Gomez
of Gomez. Mora even-
him to be careful
“lazy-assed nigger,” and that
“nigger” or
company
he
de-
tually left the
after
was
fire
he
not afraid to
stated
was
Gomez
by
moted
Gomez.
by Gomez
“niggers.” These racial slurs
Ferriera,
employee,
testified
A third
Rod
employees formed
and other AutoZone
“nigger”
often used the word
that Gomez
infliction
for reckless
basis of Bouie’s claim
referring
only once
but
when
and are the focus of
emotional distress
to fire Bouie
After
it had been dеcided
made
appeal. The slurs were never
(October 1987),
he over-
testified
Ferriera
nor
presence
Bouie
in his
directly to
nor
nigger,
got
state: “We
that
heard Gomez
hearing.
within
gone.”
also testified
nigger’s
Ferriera
they
testified that
Coworkers of Bouie
said.
he
told
what Gomez
never
racial slurs
had heard Gomez use
when
manag-
parts
sales
Ferriera worked as
Bouie,
only African-Ameri-
referring to
demoted.
er until he was
Albuquerque
working in the
AutoZone
can
testify
was Law-
The final coworker
witness,
Ortega,
One
Frank
stores.
AutoZone was to
job
Akard. His
rence
months in
about five
worked
AutoZone
Albuquerque stores as-
travel between
manager and as a
an assistant
1987 as
inexperienced employees
sisting younger
Ortega
that both Go-
manager.
testified
He
parts business.
worked
the auto
manager, Gary
mez
Wee-
district
During this
AutoZone until June
referring
dameyer, used racial slurs when
time,
he heard Gomez use
he testified that
Bouie,
Weedameyer
and he
testified
referring to Bouie
“nigger” when
the word
need to take care of
told him “[w]e
times,
also
more.” He
“several
ten or
nigger.” Ortega
stated that Gomez
also
may be
say
people
“some
heard Gomez
occasions that “Warren
told him on several
Ak-
I’m not.”
niggеr,
to fire a
but
afraid
And,
nigger.
you
lazy,
lazy
he
was
was a
that he
about
ard testified
told
know, he
needed —he [Gomez]
[Gomez]
to alert him that
once or
twice
him.” The witness
get
rid of
wanted
get him.
was out to
Gomez
him to have Bouie
stated that Gomez told
Bouie,
stacking
During
oil rather
the cross-examination
busy
do
work such
Akard told him
sales,
he
that Mora and
position
confirmed
working
than
“nigger.”
him as a
Ortega
ultimate-
that Gomez referred to
which he was hired.
however,
acknowledged,
that Gomez
He testified that he Bouie
ly
by
fired
Gomez.
“nigger.”
directly
him a
of Bouie because
never
called
appearing on
behalf
stared at
that Gomez often
by
he
a mistake
not re- Bouie stated
he realized
him as “Hoss” or
by
him and referred to
porting the racial
made Gomez
”
Heyen
rather than
his first name or Mr.
found.’
States,
“Bud”
v. United
objected
(10th Cir.1991)
Bouie. When Bouie
use
(quoting Zim
stopped.
“Hoss” and “Bud” Gomez
merman v. First
’n,
Fed. Sav. & Loan Ass
(10th Cir.1988)).
knowledge
Bouie testified that the
*3
Gomez, minority,
refer to him as a
would
mentioned,
As
Bouie testified that
“nigger” caused Bouie to withdraw into
directly
Gomez never
referred to him as a
himself,
appetite,
sleep.
lose his
and lose
“nigger.” Gomez did call Bouie directly
began
question
He also
and
distrust
“Bud,”
“Hoss” and
but Bouie testified that
people.
Bouie told some of his co-
equate
meaning
he did not
a racial
to these
by
workers that he
hurt
Gomez’s
only
terms.
learned of Gomez’s use
not,
and actions. Bouie did
words
how- of the racial slurs secondhand from
two
ever,
seek medical attention miss work.
coemployees.
his
He also did not mention the racial slurs in
party
single
Neither
cites a
state or fed-
separate
given
three
statements
recovery
eral case where
under the tort of
Equal Employment Opportunity Commis-
intentional or reckless infliction of emotion-
sion.
al distress has been
for
allowed
racial slurs
discharge,
After his
Bouie filed a five-
repeated by
party
which are
a third
to a
in
against
count suit
district court
Auto- plaintiff.
Appellee argues
While
that some
jurisdiction
Zone and Gomez. The court’s
Stone,
of the slurs in Dominguez v.
over the federal claims was based on 28
N.M.
638 P.2d
(App.1981),
were
1331, 1343,
U.S.C.
and 42 U.S.C.
§§
made behind closed doors and later re-
pendent jurisdic-
2000e.
court had
peated to
plaintiff, Dominguez
is dis-
alleged:
tion
claims.
over
state
tinguishable
present
from the
facts be-
1981; (2)
of 42
violation
U.S.C. §
cause direct slurs were also made.
Rights
violation of Title VII of the Civil
Instead, mentioned,
some of the wit-
Act; (3)
contract; (4)
intentiоnal
breach
words,
nesses who heard the
testified that
negligent
and
infliction of emotional dis-
they described the remarks made about
tress;
negligent
fraudulent and
place.
Bouie to
at another time and
misrepresentation.
The district
court
Some witnesses who also heard the words
granted AutoZone and Gomez’s motion for
repeat
did not
them to Bouie. The reason
one, three,
summary judgment on causes
difference is not indicated.
five; however,
the court found suffi-
appeal
On this
we must hold that the
disputed
cient
material facts to allow the
provided
evidence
no basis for
cause of
Titlе
and intentional
VII
infliction of emo-
action for
conduct under New
tional distress claims to be tried. Both
or under
Mexico case
Mexico statutes
simultaneously although
claims were tried
(or
elsewhere).
law case law
This is for the
only the infliction of emotional distress
reason that the racial slurs relied on were
jury.
count was submitted to the
The Title
defendants,
plaintiff by
not made to the
by
VII claim was dismissed
presence,
hearing.
nor
nor within his
subject
appeal.
not the
of this
legal
There is no
for the
conclusion
basis
Our review focuses on the district
by
trial court that secondhand
Appellants’
court’s denial of
motion for di
statements are
There are no
actionable.
judgment
rected verdict and
notwithstand
sug-
by
decisions New Mexico courts which
ing the verdict. Both motions are reviewed
doctrine,
gest
nothing
such a
and there is
applying
de novo
the same standard used
Torts,
(Second)
Guilfoyle
the district court. See
v. Mis
cite, to
which the New Mexico courts often
souri,
Co.,
Kansas & Texas R.R.
812 F.2d
support such a conclusion.
(10th Cir.1987).
“The district
in denying
‘only
emphasis
opinions
court errs
the motion
if
With
points
way
requirement
but one
and is
the textbooks on the
of a
susceptible
“high degree
probability
to no reasonable infеrences
that emotional
follow,”
supporting
party
jury
whom the
see Salazar v.
distress
(D.N.M.
judgment
and for
n.o.v. on Bouie’s
F.Supp. 1403
diet
Furr’s
1986),
and Restatement
claim.
here as an ele
must be added
there
high degree
probability
ment thereof the
repeated.
that the slurs would
I turn first to the record evidence. The
time, place,
The circumstances
underlying question
is whether the
are not
quoted
of the
listeners
properly could have reached a verdict
give some measure as to
described
nonmoving party. E.g., Raja
favor
they were made
a loose
or not
Corp.,
Allied
la v.
pre-
could
“confidence” which
definition of
—
*4
Cir.1990),
denied,
U.S. -,
cert.
“high degree
probability”
of
vent
(1991).
S.Ct.
place, as in the parts Albuquerque automotive stores ship, any circumstances. or under Bouie, October 1986.1 who had almost five judgment IT that the IS ORDERED experience delivering years of and sell- District Court for the the United States parts, assigned ing auto was first to work REVERSED, is District of New Mexico salesperson as a full-time at an Auto Shack entry judg- the case REMANDED for store located on Central Avenue. The Appellants. ment n.o.v. Mora, manager, Ralph then-assistant store Jr., “good employee” Bouie as a déscribed HOLLOWAY, Judge, dissenting: Circuit “always who on time” was “reliable” respectfully I dissent. good and who was “real with customers” question Our is whether the evidence knowledgable parts the auto about presented at Warren Bouie business. II R. 100-02. Bouie testified parameters recognized by trial is within though he hired to sell mer- that even was New Mexico for the tort of spent working chandise he much of his or reckless inflic- conduct and intentional pulling “sweeping time outdoors weeds I respectfully tion of emotional distress. in the the front the store or back disagree majority opinion with the because stacking store oil.” Id. at 198. presented I evidence that was believe Bouie early Bouie December was sufficient, under the New Mexico deci- transferred to an Auto store located Shack 46 of the Restatement sional law and § Albuquerque. on Fourth Street Frank Torts, which the New Mexico Ortega began recalled that when he work- embraced, for the district courts have ing in mid- did, Fourth Street location jury, as he to submit April manager the store was com- of reckless in- pendent Bouie’s state claim plaining job performance. Bouie’s about fliction of emotional and to leave Ortega, manager, then the assistant store standing. Ac- jury’s verdict for I recalled that he worked with Bouie for cordingly, I would affirm because am correctly problem three the district court denied or four weeks and “had no convinced motions for a directed ver- with him.” II R. 71-72. the defendants’ AutoZone, Inc., firm, employment in interest to with the the stores is the successor were During at 3. named Auto Shack. Id. Auto Shack. R.Doc. Ortega supervisors said two of his used mez using was racial slurs about Bouie. complaining slurs course to Mora testified repeated that he Gomez’ ra- Ortega about Bouie. testified that the cial Bouiе. said Mora manager, Gary district Weedameyer, com- he Bouie on told one occasion he “that was plained to him about during a discus- referred to as nigger, lazy-ass nigger, Ortega’s sion related to promotion to store and be careful of Mr. Gomez.” Id. at 120- manager, stating, “We need to take care of nigger.” II time, R. Ortega 73. At Akard, Sr., Lawrence T. who attending helped administrative train training in newer Auto Shack Ortega employees, Phoenix. said replied he that he testified that problems had not he any had heard Gomez refer to Bouie “nig- as a Ortega quoted Weedamayer ger” as saying, on pоssibly 10 or more occasions. II may “We problem take care of that you R. 161-62. Akard said Gomez “made the you get before back.” Ortega recalled remark several times that he going hearing defendant first manage- get rid this nigger, and ‘some people ment advisor, trainee and later the area may be afraid to fire a nigger, but I’m ” refer to “nigger” Bouie as a “lazy nig- not.’ at 162. Akard testified that he *5 ger” on at least three or four occasions. reported to Bouie “several times” that Id. at Ortega 81.2 said he did not Gomez making was slurs, racial including report to Bouie that Gomez had used the the “nigger.” word Id. (em- 175-76 Id. racial slurs. phasis added). Akard said he told Bouie on May 1987, In Bouie was transferred back one or two occasions that “Mr. Gomez had to the Central Mora, Avenue store. problem people, black and he was manager, store said began when he get him, out to there was no doubt about process of requesting Bouie, a raise for it.” 162. Weedameyer “go told him to ahead and do addition, In Bouie testified that he heard paperwork, but make sure that I had a reports from co-workers “at least once ev- real low score in order him not to get a ery other week” that using Gomez was rаise.” II R. 104. said Mora he followed racial to slurs II Bouie. Weedameyer’s describe R. 200-01 instructions concerning the (emphasis added).3 requested Bouie said raise. after hear- ing report first felt “very, very he bad Mora recalled that on about two occa- inside,” on the and sleep lost night. that sions, Gomez referred to Bouie “nig- as a Id. at 201. Bouie testified also that he ger.” 105-06, II R. quoted 117. Mora Id.; became withdrawn and felt ashamed. having Gomez as stated get that “he had to Ill R. 19. Bouie said he could under- not rid of lazy-ass nigger, that no matter why stand member another minority get he would the whole NAACP group him, use what, after slurs no mattеr racial going he was to —Gomez—would against get him him. II out.” R. 201. Bouie said he 105. Mora said did that Gomez him “in many physician, told so consult a psychiatrist, words ... that or so- get I had to him out.” Mora cial was the worker about his “hurt and shame.” first report co-worker to to Bouie that Go- Ill R. 14-15. Ortega quoted making Gomez as to May with racial slurs from Mora in 1987. Ill R. the effect that 13-14. Bouie said about two weeks later he lazy, And, lazy Warren was you nigger. he awas report a similar received from Akard. Id. at 16. him_ get ... know he wanted to rid of Bouie said that in June about a third co- [T]hose were some of the comments he that worker, Ricks, reported to him that Gomez was me, plus made you that keep make sure referring to him with racial slurs. Id. at 18. know, you busy, just busy work ... felt said Bouie he not recall could dates that ing selling Warren should be instead of stack- upon reported which co-workers to him that oil, they doing which what had him him, referring used racial slurs. lot of the time working. when I first started all, Bouie that he “several” received II R. 75. testified reports each the co-workers. Id. from
3. Bouie probably recalled that he received report first referring that Gomez was to him plaintiff to a slurs, although reported Auto to a third transfer Following his emotional her causing him or severe October fired in store, Bouie was Shack 46 un- not actionable are Ferriera, tes- salesperson, Another 1987.4 pres- immediate plaintiff’s less made dismissed was after soon that tified hearing. ence a statement make Gomez he overheard that got nigger, that, “We the effect adopted the courts have Mexico The New 141, 152. R. II gone.” nigger’s Newberry See terminology of exact 424, 773 N.M. Stores, v. Allied Bouie's much of disputed defendants The (1989); Dominguez P.2d he trial, denied Gomez At evidence. (App. Stone, 638 P.2d N.M. Bouie. referring to when racial used sup 46 does not 1981). language of testimony some was There Ill R. reading re restrictive majority’s port the per- required personnel were all sales Sec presence.5 physical immediate quiring assigned. that Bouie tasks form terms liability in broad 46(1) imposes tion However, the defen- at 251-52. E.g., id. conduct, in merely cre- extreme testimony contradictory dants’ intentionally conduct, that cluding verbal points and on these issues factual ated dis emotional recklessly severe causes version. accepted apparently 46(2) requirement imposes Section tress. that Go- ample evidence there Thus only presence of physical used occasions numerous mez on at” “directed actionable case of about epithets extreme party. a third relayed to repeatedly were these slurs law, Decisional Wee- proof that was also the There *6 not, my judg- in does jurisdictions, the other manager, used the district dameyer, presence re- ment, immediate impose an recog- Thus, within the slur about Trujillo in example, For quirement. tort, there was parameters nized 963, 408, 969 P.2d 683 Puro, 101 N.M. circum- slurs in repetition of the reckless plaintiff stat- that a held it was (App.1984), to Bouie of them reporting where stances the of adequate cause action an ed expected. That reasonably be could in Mexi- adopted as principles happened § over thing very the that the sub- the noted court co. There tort. proof of the over, the completing as alleged was of action of the cause stance follows:
II intentionally alleged defendant Plaintiff plaintiff's false statements included the holds that majority The to records; failed that defendant hospital action cause of for a no “provided basis call telephone records in his office note because “the outrageous conduct” defen- and that plaintiff; from received plain- made to the were not relied on receipt of denying falsely, dant testified defendants, presence, in his nor by the tiff alleged Although the telephone call. p. 877. supra hearing.” See nor within review medical swearing before false conclusion because agree with I cannot subject cannot by defendant recklessly commission such assumes that incorrectly it at a third directed conduct is subject Where such firing was the for Bouie’s 4. The reason claim, liability if he action, subject to person, is Title VII the actor another cause emo- appeal. recklessly intentionally causes severe issue in this or is not at distress tional provides: Section 46 person’s immedi- (a) of such to a member Causing Severe Outrageous Conduct § time, present whether family is who ate Distress by Emotional harm, bodily or results such distress or not outrageous con- extreme One who present (b) any person who is to recklessly severe intentionally causes duct bodily time, results distress if such subject is to another to emotional distress harm. distress, and if liability emotional for such 71-72 § it, for results from bodily to the other harm (1965). bodily harm. such (NMSA liability defendant to civil that the transactions were directly contrary 41-5-20(E) (Repl.Pamp.1982)), plain- wishes, to her and that he convinced the allegation plaintiff’s tiffs defendant’s husband to misrepresent false intentional entry hospital facts to her. gist of the cause of records is preclude a mo- sufficient action was conduct in the absence plain- tion to dismiss on this claim. tiff, but under circumstances in which she added). P.2d at 969 (emphasis was the party likely to suffer emo- tional as she was found to Trujillo Obviously, plaintiff have had to done. entry learn of the hospital into the records reading either by it subsequently Again, in Chuy v. Philadelphia Eagles
having the repeated him, contents caus- Club, Football (3d F.2d ing the Thus, emotional distress. New Cir.1979), statements made in the absence imposes presence no immediate re- plaintiff were held actionable. A quirement for a claim intentional inflic- physician made statements press tion of emotional distress. plaintiff that the was suffering potential- Although it was decided under Colorado ly disease, fatal though even he was aware law, opinion our in Malandris v. Merrill that this was untrue. Dissemination of the Pierce, Lynch, Fenner & Smith 703 falsehood in this manner upheld as a Cir.1981), cert. de cause of action under the principles of nied, 824, 104 464 U.S. S.Ct. 78 L.Ed.2d 46. The Third Circuit stated: “[R]eek- (1983), pertinent is respect less causing emotional distress presence or direct contact between renders an actor as liable as if he had acted plaintiff defendant and required at 1275. The court not- intentionally.” such a tort under In Malandris, ed that “the natural probable conse- after discussing a Third opinion, Circuit we quences making the statement were that stated that: “The absence plaintiff it would become to Chuy known and that during the tortious conduct was irrele such awareness would cause him emotional vant in that just case as it is here. at 1275 (footnote distress.” omitted). situations the party was the There, here, reckless conduct in the ab- *7 likely to suffer emotional distress victim, sence of the causing but emo- upon learning of the defendant’s actions.” tional pro- within the area of at 1166 (emphasis added) (citing Re tection of 46. § (Second) statement 15, illus. 46§ 16). rejected We presence requirement Lastly, I note that one of the decisions Malandris, saying that cannot “[w]e the of drafters 46 of the Restatement § agree with the defendant that the absence Obadiak, upon, relied Bielitski v. 61 of direct (the contact between Barron ac 494, 495, D.L.R. 497 (Sask.K.B.1921) (Can.), executive) count plaintiff precludes and the pertinent. is most The case is cited the liability in these rather circum- unusual (Second) Restatement Torts Appendix of stances_” page at The 48. drafters found that the In Malandris case there was came within principles evidence that the of 46. § the account plaintiff executive had The avoided consult- there recovered for distress ing the plaintiff making before resulting unautho- the quotation from indirect of a rized transactions in account, her knowing speaker’s statements.6 Bielitski, sought 6. In damages a woman from a appeal two of the issues in Bouie’s the —whether man who circulated a false rumor her son may that defendant be held liable for state- verbal hangеd 495, had himself. 61 D.L.R. repeated indirectly ments and whether state- the The of mother the man rumored be dead ments were reckless. In article seminal fourth-hand, story heard directly the from describing tort, development the Judge of the the plaintiff defendant. The claimed Magruder that the wrote that court decided Biel- upon hearing that the rumor she “suffered a itski had concluded the that must "defendant violent shock and became ill.” Id. report have the intended to reach the mother.” I the view drafters’ Bielitski-type reference to Magruder, Calvert Mental Distur- Emotional liability as relevant Torts, because the 1033, cаse illustrates bance in the Law 49 Harv.L.Rev. of 882 Restate- (quoting (D.N.M.1986) 1403, 1411 deci- Mexico New the of basis theOn h), and cmt. Torts 46 (Second) of § ment they em- 46 which wording of sions, the distress, Domin- emotional severe I caused applying § cases
brace, other the (quoting Restatement 427 P.2d at guez, 638 an immediate firmly convinced am addition, j). 46 cmt. (Second) of Torts § so not mandated requirement presence com- the establish plaintiff must here. plaintiff recovery by bar as to reck- was intentional plained presented persuaded Ill I am less. satisfy all sufficient that was evidence deci Mexico New recognize that requiremеnts.7 these situation a factual covered have not sions circumstances, applying courts In such Mexico New like this. precisely judg ex- potentially recognized, our best 46(1) to make upon have called arewe conduct, courts ethnic slurs Mexico outrageous the New as to how treme and ment disparage- includ ethnic upon information forms of verbal rule, based would authority over decisions, of oth have persons decisions who ment court ing “state relationship. general decisions, employment and the in an plaintiff states, federal er In Domin- Armijo v. P.2d authority.” 638 Dominguez, trend weight and Apрeals (10th Court Mexico guez, 407 Cam, 843 F.2d Ex Kitch, nature the ethnic v. also, e.g., Delano considered Cir.1988); see plaintiff and Cir.1981) (explain made about (10th comments 990, 996 of author- position in a con one fact that “when court decisions state intermediate ing allegedly another ity over court supreme state trolling unless comments, con- abusive denied, jokes 456 U.S. otherwise), cert. decide the claim impetus to (1982); gives added duct 72 L.Ed.2d 946, 102 S.Ct. relationship be- behavior, Corp., Bechtel City Aurora significant being parties tween Cir.1979) (explaining dicta 382, 386 liability determining whether deci court analogous state holdings in factor Dominguez, impоsed.” should persuasive). may be sions changed) (quoting (emphasis P.2d at framework under the I believe Corp., Zellerbach v. Crown Contreras decisions, as well existing New (1977)); 1173, 1176 P.2d Wash.2d properly submitted judge the trial as § Torts see also jury. claim to the on Re- e, at 74 [hereinafter 46 cmt. impor- plays an a trial Under § actionable conduct (explaining statement] minimum screening actions tant role posi- the actor’s from abuse may arise bringing an sufficiency. A legal plaintiff). authority over tion *8 that as a must establish 46 under action § in persons evidence presented find reasonably could jury law a matter of in his authority over рosition ex- (1) “so conduct: alleged repeatedly employment had recov- permit outrageous as and treme employees, him to other Inc., slurs about Furr’s, F.Supp. 629 v. Salazar ery,” be must outrageous; the conduct and treme Magruder’s article (1936). Judge noted 1047 reckless; (3) emo must cause it intentional 46. Restatement § the comments cited in distress; d., (1965). must the distress at 73 (Second) § 46 cmt. tional of Torts Eagles Football Philadelphia which cases in Chuy v. illustrates also severe.” Bielitski Cir.1979), 1265, (3d courts, cited of intentional Club, 1273 in absence 595 conduct, liability basis of imposed Lynch, on the have v. Merrill approval Malandris in wanton, "wilful, its 1152, in reсkless Pierce, that is 1158 conduct Smith & Fenner degree high disregard a known denied, deliberate 104 Cir.1981), U.S. 464 cert. al., Page et W. Keeton distress. mental (1983). Though risk” 99 78 L.Ed.2d S.Ct. 12, at § Torts Law on the decisions, and Keeton Prosser state Mexico in the New found 1984). (5th ed. & n. 65 closely § 46. follows of the elements ment elements covered these here instructions a standard under analyzed the case I have charge. objections to the had no the defendants of an action elements essential of the statement R. IV “(1) be ex- 46(1): the conduct must § recognized situation I Dominguez. The must dissent from the denial of that recovery about Bouie were even mоre to Bouie. outrageous extreme and than the state-
ments at in Dominguez. upon issue Based
Dominguez fitting and other com- cases
fortably principles, within §
hold that the judge district decided correct-
ly spoken that the racial slurs about Bouie superiors of his two at work could rea-
sonably be found to be extreme and out- L., minor; L., YVONNE rageous conduct, Demond jury a mi as did. Under nor, By Through guardian their guidelines “[wjhere ad reasonable § friend, litem Kemp LEWIS, and next may jury minds differ the must decide Plaintiffs-Appellants, whether the conduct ‘is so character, degree, and so extreme in as to go beyond possible all decency, bounds of NEW MEXICO DEPARTMENT OF HU regarded atrocious, and to be and utter- SERVICES; MAN Vigil, Juan R. indi ” ly intolerable community.’ civilized vidually Secretary and as former Salazar, F.Supp. at 1411 (quoting Re- Department New Mexico of Human d). statement 46 cmt. Services; Kerley, individually Thomas
The commentary explains County as Director of the San Juan the “distress must justi- be reasonable Social Services Division of the New fied under Department the circumstances.” Restate- Services; Mexico of Human Judy Stolz, ment j, addition, cmt. individually and as Social nature of Worker for the San defendant’s “is Juan Social Servic important itself Depart es Division of the Mexico evidence that the distress Services; Doe; has existed.” ment of Human It is reasonable to find John Doe, employees Jane African-American, an unknown of Child repeatedly Haven, Inc.; Doe, II; Doe, object made the John of such extreme racial James II, employees slurs, unknown conjunction of the New with an effort Department Services, Human prompt his or her job, dismissal from a Defendants-Appellees. result, would suffer mental distress. As a I am convinced that the trial had an No. 90-2196. adequate basis deciding jury that a Appeals, United States Court question existed as to whether Tenth Circuit. mental distress was severe. March
The district court submitted the evidence solely theory under the that one supervisors, Gomez, of Bouie’s recklessly
inflicted upon (list- distress him. IV R. 41
ing court’s jury). instructions to The com-
mentary to 46 explains that the term
“recklessness” means inis
“deliberate disregard high of a degree of
probability that the emotional distress will i;
follow.” Restatement 46 cmt. see also (definition reckless). sum, the record demonstrates that a showing
sufficient clearly recovery
Bouie for himby Mex-
ico law and the Accordingly, Restatement.