In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2565

JAMES H. HOLBROOK,

Plaintiff-Appellant,

v.

LOBDELL-EMERY MANUFACTURING
COMPANY,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 98 C 16--S. Hugh Dillin, Judge.


Argued April 4, 2000--Decided July 6, 2000



  Before COFFEY, ROVNER, and DIANE P. WOOD, Circuit
Judges.

  ROVNER, Circuit Judge. James H. Holbrook sued
his employer, Lobdell-Emery Manufacturing
Company, for intentional infliction of emotional
distress ("IIED"), violations of his civil rights
under the United States and Indiana
Constitutions, and disability discrimination. The
district court granted summary judgment in favor
of Lobdell-Emery on the IIED claim and dismissed
Holbrook’s other claims because he abandoned
them. Holbrook appeals only the summary judgment
ruling on the IIED claim. Because Holbrook cannot
show that his employer intended to harm him, a
requirement under Indiana law, we affirm.

I.

  The district court granted summary judgment in
favor of Lobdell-Emery and therefore we must
construe the facts as favorably to Holbrook as
the record will permit. See Rager v. Dade
Behring, Inc., 210 F.3d 776, 777 (7th Cir. 2000).
Holbrook began working for Lobdell-Emery in 1990
at its Indiana plant. In 1993, he was
hospitalized for depression and psychosis. When
he returned to work, his co-workers and
supervisors began to harass him about his
hospitalization. Three supervisors criticized the
quality and speed of his work, and one made a
sexual remark to him about a female co-worker. A
superintendent called Holbrook "homo," "mother
fucker," "fag," and "queer." On a number of
occasions, co-workers told Holbrook he was
"crazy" and "not right in the head." They
referred to his hospitalization as time he spent
in the "nut house" and the "mental ward."
Holbrook’s co-workers also harassed him by hiding
his tools, spot gluing his toolbox, and setting
fire to a rag in Holbrook’s back pocket. The
company itself refused to allow Holbrook to work
overtime on one occasion, and also denied his bid
to move to a new job position. After Holbrook was
involved in a fist fight with another employee,
Lobdell-Emery terminated him. Holbrook filed a
grievance with his union, but the union declined
to pursue it, finding that the discharge was
appropriate.

  Holbrook sued Lobdell-Emery for violations of
his civil rights in terminating his employment,
for discrimination against him based on his
emotional and mental illness, and for intentional
infliction of emotional distress. Lobdell-Emery
moved for summary judgment. Holbrook did not
address his civil rights claim or his disability
discrimination claim in responding to the motion,
and the district court dismissed those claims as
abandoned. The district court found that the
remaining IIED claim was not preempted by the
Indiana Workers’ Compensation Act because
Holbrook sought recovery only for emotional and
not physical injuries, and because his injuries
did not arise from an accident. The district
court granted summary judgment in favor of
Lobdell-Emery, however, because Holbrook could
not show that the employer itself committed the
tort and that the employer intended the injury or
actually knew the injury would occur, showings
required by Indiana law. Alternatively, the
district court granted summary judgment because
the acts alleged by Holbrook were not extreme or
outrageous enough to come within the purview of
the IIED tort. Although the district court agreed
these acts were "unthoughtful and boorish," as
well as "unkind, cruel and disheartening," it
found these were not the sort of acts the tort
was created to remedy. Holbrook appeals.
II.

  On appeal, Holbrook challenges only the district
court’s finding that the acts alleged were not so
outrageous in character that they meet the
standard for IIED. He contends that because these
supervisors and co-workers knew Holbrook was
mentally ill, and indeed tormented him because he
was mentally ill, he has raised a question of
material fact for the jury as to whether the acts
alleged go beyond all possible bounds of decency,
as required by Indiana case law. According to
Holbrook, only a jury may decide whether the acts
alleged meet the standard of extreme and
outrageous conduct. Holbrook does not address at
all the district court’s primary holding that he
has no evidence supporting a finding that
Lobdell-Emery itself or its alter ego committed
these acts and intended the harm that came to
Holbrook.

  The Indiana supreme court first recognized the
tort of intentional infliction of emotional
distress in 1991, adopting the Restatement
(Second) of Torts view: "The definition of the
tort of intentional infliction of emotional
distress is that ’one who by extreme and
outrageous conduct intentionally or recklessly
causes severe emotional distress to another is
subject to liability for such distress.’"
Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991)
(quoting Restatement (Second) of Torts, sec. 46).
In 1994, the court took up the issue of whether
the Workers’ Compensation Act ("WCA") preempted
intentional tort claims against employers by
employees. Because the WCA covered injuries that
occurred "by accident," the court held that
intentional torts, those that occurred when
neither the injured party nor the employer
intended the result, are not within the WCA’s
coverage, and thus are not preempted by the WCA.
Baker v. Westinghouse Electric Corp., 637 N.E.2d
1271, 1274 (Ind. 1994).

  In order to prove that the employer intended
the harm, the court held that a showing of mere
negligence was insufficient, even if the
negligence could be characterized as reckless or
wanton. Baker, 637 N.E.2d at 1275. Rather, the
employee is required to prove that the employer
deliberately intended to inflict an injury or had
actual knowledge that an injury is certain to
occur. Id. The court also emphasized that it is
the employer itself that must have intended the
injury, rejecting a respondeat superior analysis.
Thus, an intentional tort committed by a
supervisor, manager or foreman could subject that
individual to tort liability but would not
necessarily expose the employer to liability.
Baker, 637 N.E.2d at 1275. In order to impute
tortious intent to an employer that is a legal
entity or artificial person, the employee must
show either that "(1) the corporation is the
tortfeasor’s alter ego, or (2) the corporation
has substituted its will for that of the
individual who committed the tortious acts."
Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d
1282, 1287 (Ind. 1994). The court held that to
prevail under the alter ego theory, the employee
must show that both ownership and control of the
corporation are in the tortfeasor’s hands. Id. To
succeed under the other theory, the employee must
show that the individual who committed the tort
was acting pursuant to a policy or decision made
through the corporation’s regular decision-making
channels by those with authority to do so. Id.
The employee’s injury must be shown to be the
intended product of the policy or decision at
issue if the plaintiff is to prevail. Id. See
also Foshee v. Shoney’s Inc., 637 N.E.2d 1277,
1281 (Ind. 1994) (before an injury can be said to
have been intended by the employer and thus not
by accident, the employee must show that the tort
was committed by the employer or the employer’s
alter ego, and the employer must have intended
the injury or actually known that the injury was
certain to occur).

  Holbrook cannot meet these stringent standards.
He does not argue that the supervisors and co-
workers who harassed him owned or controlled the
corporation. He does not assert that the persons
who injured him were acting pursuant to a
decision or policy made through Lobdell-Emery’s
regular decision-making channels by persons
authorized to do so. He merely contends that
Lobdell-Emery knew of the situation and did
nothing to stop it. The case law we have cited
reveals a much higher standard for liability than
mere negligence, however, and Holbrook’s claim
against his employer therefore fails under
Indiana law. Holbrook attributes only a few
actions to the corporation itself, namely
refusing to allow him to work overtime on one
occasion and denying his bid to move to a new
position on another occasion. Even if these acts
were committed by the employer with the intent to
cause Holbrook emotional injury, these acts do
not meet the standard for extreme and outrageous
conduct set forth by comments to sec. 46 of the
Restatement. Those comments, cited favorably by
the Indiana Court of Appeals, define extreme and
outrageous conduct as that which is so extreme in
degree and outrageous in character as to go
beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in
a civilized community. See Gable v. Curtis, 673
N.E.2d 805, 809-10 (Ind. Ct. App. 1996) (citing
the Restatement (Second) of Torts sec. 46,
comment d). It is not enough that the defendant
acted with intent that is tortious, or malicious,
or even criminal. "Generally, the case is one in
which the recitation of the facts to an average
member of the community would arouse his
resentment against the actor, and lead him to
exclaim, ’Outrageous!’" Id. The refusal of
overtime and the denial of a position change
clearly do not meet the standard.

  We render no opinion, however, on whether the
other acts committed by Holbrook’s co-workers and
supervisors meet the standard for extreme and
outrageous conduct. Had Holbrook sued the
individuals who actually committed these acts,
rather than his employer, the result may have
been different. It is not difficult to imagine
that a jury would exclaim "Outrageous!" upon
hearing that Holbrook’s co-workers taunted him
and set him on fire knowing that he had recently
been released from a hospital where he was being
treated for severe depression and psychosis. We
join the district court’s assessment that
verbally and physically assaulting a mentally
disabled man is cruel and inexcusable. Because he
sued his employer rather than his co-workers,
however, the district court was correct to grant
summary judgment in favor of Lobdell-Emery under
Indiana law.

AFFIRMED.
