Delivery Worker Gets Trial for Race-Based Emotional Distress Claim

By Joanne Deschenaux May 22, 2020
packages at front door

A black employee who alleged that his supervisor referred to him using a racial epithet, laughed at him in front of other workers and tried to get him fired by falsely reporting that he had failed to report to work could take his claim of intentional infliction of emotional distress to trial, a California appeals court ruled.

The trial court was incorrect, the appellate court said, in dismissing the claim at an early point in the proceedings after concluding that, even if the employee's claims were true, the supervisor's actions were not "outrageous" enough to show intentional infliction of emotional distress.

The worker had been hired by United Parcel Service (UPS) for temporary employment as a seasonal "driver's helper." He claimed his supervising driver referred to him by using a racial slur and laughed at him in front of other employees. He also claimed that, in an attempt to get him fired, the supervisor falsely reported that he had not reported to work or called in. The employee filed a lawsuit, alleging intentional infliction of emotional distress, among other claims. 

The trial court dismissed the action before trial, and the employee appealed. The appellate court reversed the dismissal of the emotional distress claim, ruling that it should continue to trial.

Claim Should Go to Jury

A cause of action for intentional infliction of emotional distress exists when:

  • The defendant engaged in extreme and outrageous conduct intending to cause emotional distress or with reckless disregard to the probability that the conduct would cause emotional distress.
  • The plaintiff suffered severe or extreme emotional distress.
  • The defendant's conduct caused the plaintiff's emotional distress.

A defendant's conduct is outrageous when it exceeds what is tolerated in a civilized society or when it goes beyond all reasonable bounds of decency. Outrageous conduct does not include annoyances, hurt feelings, insults, rough language or bad manners that a reasonable person is expected to endure.

Applying this definition, the appellate court concluded that a rational juror could find that UPS engaged in extreme and outrageous conduct. The California Supreme Court has held that an intentional infliction of emotional distress claim can be based on the use of racial epithets, particularly where the person using the racial slurs stands in a position of authority over the plaintiff, as was alleged here.

Although mere insulting language, without more, ordinarily would not constitute extreme outrage, it may meet the required standard, depending on the circumstances. The appeals court said it is up to the jury to decide in any particular case whether the conduct has been sufficiently extreme and outrageous to result in liability.

Spikener v. United Parcel Service Inc., Calif. Ct. App., No. A154689 (March 24, 2020).

Professional Pointer: The court here is not saying that the employer's conduct was outrageous enough to show intentional infliction of emotional distress but only that a jury should decide whether the conduct was sufficiently outrageous.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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