                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-1996

Subbe-Hirt v. Baccigalupi
Precedential or Non-Precedential:

Docket 95-5786




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Recommended Citation
"Subbe-Hirt v. Baccigalupi" (1996). 1996 Decisions. Paper 93.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/93


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         UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                  No. 95-5786


              ELAINE J. SUBBE-HIRT,

                                 Appellant

                        v.

ROBERT BACCIGALUPI; PRUDENTIAL INSURANCE COMPANY,

                                 Appellees



 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE DISTRICT OF NEW JERSEY
             (D.C. Civ. No. 91-02813)


               Argued June 4, 1996

Before: COWEN, NYGAARD, AND LEWIS, Circuit Judges

         (Opinion Filed August 28, l996)


                             Donald J. Maizysm, Esq.
                             (Argued)
                             Karas, Kilstein, Hirschklau,
                             Feitlin & Youngman
                             9-10 Saddle River Road
                             Fair Lawn, New Jersey 07410

                             Attorney for Appellant

                             M. Elaine Jacoby, Esq.
                             T. Gary Mitchell, Esq.
                             (Argued)
                             Hill Wallack
                             202 Carnegie Center
                             Princeton, New Jersey 08543

                             Attorneys for Appellees

                    __________

               OPINION OF THE COURT
                    __________
Nygaard, Circuit Judge.

                                I.
     Appellant Elaine Subbe-Hirt brought this action against her
former employer, Prudential Insurance Company, and Robert
Baccigalupi, her former supervisor at Prudential, presenting
several claims arising out of her employment with Prudential.
The district court granted summary judgment in favor of the
defendants on Subbe-Hirt's claim for intentional infliction of
emotional distress. It held alternatively that her claim was
barred by the exclusive remedy provided by the New Jersey
Worker's Compensation Act and that, in any event, the claim would
fail on its merits because defendants' conduct was not
sufficiently outrageous under New Jersey law. Subbe-Hirt appeals
from that ruling.
                               II.
     The district court applied a "substantially certain"
standard to appellant's claim for intentional infliction of
emotional distress; it then found that defendant's conduct did
not meet the threshold level sufficient to support a cause of
action for an intentional tort, thereby avoiding the exclusivity
provisions of the New Jersey Workers' Compensation Act. This was
incorrect as a matter of law.
     The district court viewed the applicable legal standard as
follows:
     In order for an employee to bring an action against his
     or her employer based upon an "intentional wrong",
     thereby escaping the exclusivity of the WCA, the worker
     must prove that the employer's actions were
     "substantially certain" to cause the alleged harm.

The New Jersey Supreme Court, however, has required only that a
plaintiff show deliberate intention to avoid the exclusive remedy
provided by the Compensation Act. See Millison v. E.I. du Pont
de Nemours & Co., 501 A.2d 505, 514 (N.J. 1985). The Millisoncourt cited
the Restatement (Second) of Torts § 8A to elucidate
its definition of intent, opining in a parenthetical reference
that the "meaning of intent is that actor desires to cause
consequences of his act or is substantially certain that such
consequences will result from his actions." Id. at 514 (emphasis
added).
     Although the Millison court did adopt a "substantial
certainty" standard, the district court failed to apply the full
Millison test, under which deliberate intent can be proven by
either: 1) a desire to cause the consequences of an act; or 2)
substantial certainty that those consequences will result.
     Proving that the defendant desired to cause consequences of
its act is both the most direct and usually the most difficult
way to show deliberate intent to harm. The Millison court,
although focusing on substantial certainty, did not reject this
more direct means of proving deliberate intention:
     It may help to perceive "substantial certainty" not so
     much as a substantive test itself nor as a substitute
     for a subjective desire to injure, as a specie of
     evidence that will satisfy the requirement . . . that
     "deliberate intention" be shown.

Id. at 514 (citation omitted); accord New Jersey Mfrs. Ins. Co.
v. Joseph Oat Corp., 670 A.2d 1071, 1074 (N.J.Super. 1995) (the
Millison court "did no more than explain that such deliberate
intent to injure can be proved not only by evidence of actual
subjective intent to injure, but also by circumstances where
injury is a substantial or virtual certainty"); Hambsch v.
Harrsch, 606 A.2d 879, 883 (N.J. Super. 1991) ("Millison and its
offspring have skillfully devised a standard based upon either a
'substantial certainty' to injure or the defendant's actual
subjective intent to injure."); Bustamante v. Tuliano, 591 A.2d
694, 699 (N.J. Super. 1991) ("The bar will fall only in the face
of proof of a subjective intent to injure or a substantial
certainty that injury will occur."). Because the district court
erroneously applied only a substantial certainty test and
because, as we explain infra, the record contains sufficient
evidence of direct intent to injure, we hold that the Act does
not bar appellant's intentional infliction claim.
                                III.
     Subbe-Hirt contends that the district court also committed
legal error by basing its summary judgment on a conclusion that
defendants' conduct was not sufficiently outrageous to support a
claim for intentional infliction of emotional distress. On this
allegation of error we have but two issues to decide: 1) whether
Robert Baccigalupi intended to inflict emotional distress upon
Elaine Subbe-Hirt; and 2) whether the evidence supports
appellant's contention that Baccigalupi succeeded in inflicting
that distress. We answer both questions in the affirmative and
hold that the record in this case exceeds a threshold showing of
outrageous behavior sufficient to preclude summary judgment.
                                 A.
     The present record, when viewed in the light most favorable
to Subbe-Hirt, shows that Robert Baccigalupi unquestionably
intended to inflict emotional distress upon Elaine Subbe-Hirt.
According to sales manager Mark Parisi, Baccigalupi "would berate
[Subbe-Hirt] or talk about getting her." Indeed, Baccigalupi
stated, "I'm going to get her."
     Moreover, according to the deposition testimony of Parisi
and sales manager Robert LaNicca, Baccigalupi stated, in the
presence of other managers and on more than one occasion, that he
"was going to trim her bush;" a blatantly sexist metaphor to
brag of how Baccigalupi would handle females in general and
Subbe-Hirt in particular. According to sales manager David
Meyer, "when it was brought to R. Baccigalupi's attention that
[Subbe-Hirt] was soon going to be returning from disability, R.
Baccigalupi quickly remarked, 'Well, don't worry about her. I'm
going to trim her bush.'" When asked by counsel to explain what
he understood Baccigalupi's remark to mean, Meyer testified, "I
understood it that he was going to lay into her quite hard and
put her in her place." LaNicca said that on another occasion
Baccigalupi stated, "Let's bring Elaine in here on Friday and
we'll trim her bush." Parisi understood that phrase to mean:

     That he was going to come down on her, whatever his
     particular style was, forcing her to either go out on
     disability or leave the company or to cease the union
     activity. . . . [This] is, unfortunately with
     Prudential, is an avenue that agents take when they
     can't take the -- you know, when management pressure
     goes up, and that's what [Baccigalupi] might use that
     for."
Likewise, Robert King, a district agent, said:

     There came a point in time where it was almost
     embarrassing for many of us to watch a woman being -- .
     . . it was pretty much obvious that Elaine wouldn't and
     couldn't bear up under the general atmosphere . . . --
     her time was expiring. . . . We talked amongst
     ourselves that, you know, this was a critical stage . .
     . . There was a persecution going of myself and
     Elaine, and Elaine in particular. . . . [Baccigalupi
     said] more or less than [sic] she was history and that
     if I intended to continue that I would -- I should
     leave things go as they are going.
     Baccigalupi's intent to inflict emotional distress can be
further seen in his total lack of any vestige of compassion for
any woman in the office. On one occasion Meyer told Baccigalupi
that he "couldn't continue performing 'root canal' on women
agents on his staff because they broke down in tears." At that
point, Baccigalupi simply selected a woman agent to abuse as a
demonstration, saying "Well, don't worry. I'll show you how to
handle it." Appellant describes this contrived encounter as
follows:
     He then called one of the women agents in for a review,
     and started the 'root canal' and the intimidation on
     her until she broke down and started crying. R.
     Baccigalupi kept tearing and pressing into her and when
     it was over and she had left the office, he was holding
     out his suspender straps as if to say, "this is how you
     handle it; don't let their emotions get in your way."
Indeed, Baccigalupi admitted his intent when he said to Subbe-
Hirt, "do you know who Joan of Arc is, read between the lines, do
you know why I'm looking at your work so closely, do you think I
do this to everyone?"
     We have no difficulty in concluding that a reasonable jury
could find from this evidence that Baccigalupi intended that his
conduct subject Elaine Subbe-Hirt to emotional distress, and will
turn next to whether Baccigalupi's conduct had its intended
effect, and whether that effect was sufficient as a matter of law
to state a claim of intentional infliction.
                                B.
                                1.
     The district court erred when it held that Subbe-Hirt did
not allege, nor did the record on summary judgment show, conduct
sufficiently outrageous to state a claim that Baccigalupi had
intentionally inflicted emotional distress upon her. In Buckley
v. Trenton Sav. Fund Soc'y, 544 A.2d 857, 863-64 (N.J. 1988) the
New Jersey Supreme Court applied the view of the Restatement
(Second) of Torts § 46 to the tort of intentional infliction.
The district court was therefore correct that, under New Jersey
law, intentional infliction of emotional distress comprehends
conduct "so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community."
Restatement (Second) of Torts § 46 comment d. We disagree,
however, with the district court's conclusion that Baccigalupi's
conduct was not sufficiently outrageous, and are led inexorably
to the conclusion that summary judgment should have been denied.
                                2.
     Elaine Subbe-Hirt began working for Prudential Insurance
Company as an insurance salesperson in 1984. Initially, she
reported to a sales manager, who reported to defendant Robert
Baccigalupi, the District Manager for the office. When the sales
manager to whom she reported left the company, Subbe-Hirt found
herself reporting directly to Baccigalupi.
     Baccigalupi created a predatory tactic he descriptively
termed "root canal," which he used to control older agents such
as Subbe-Hirt. Baccigalupi instructed his sales managers how to
perform this verbal attack "operation." According to sales
manager Meyer, Baccigalupi "came up with the concept of root
canal as a way to intimidate and basically destroy these people
to the point of submission or of just getting the hell out of the
business." Meyer related at his deposition that Baccigalupi
picked the term "root canal"
     specifically because it was made to be a very
     uncomfortable, pain-producing, anxiety-producing
     procedure that you would keep going deeper and deeper
     until you struck a nerve, which would either end up in
     the agent submitting, or reaching the point of anxiety
     where they just couldn't stand any job any longer.
     According to Meyer, at Thursday management meetings, sales
managers would role play with each other how to deal with
"problem agents:"

     . . . Bob LaNicca had brought up that he was having
     problems dealing with [Subbe-Hirt]. And then
     [Baccigalupi] would role play with Bob LaNicca how to
     perform root canal on Elaine to harass, intimidate her
     into submitting to management's requests.

     LaNicca's deposition indicates that Subbe-Hirt was "brought
in more often than others for performance reviews," which was
Baccigalupi's opportunity for using his root canal procedure on
her. According to Subbe-Hirt, Baccigalupi "held [her] in the
office twice as long as anyone else."
     Baccigalupi was relentless in his contumely against Subbe-
Hirt. To begin with, according to Meyer and Parisi, Baccigalupi
replaced females' given names, and other polite nouns such as
"lady" and "woman," with the term "cunt," to depersonalize and
deride the women in the office. He would also taunt Subbe-Hirt
by asking if she "knew the word heretic" and threaten her "by
asking if she knew who Joan of Arc was." Moreover, he would ask
Subbe-Hirt for her resignation almost every time she was in the
office. Baccigalupi even went so far as to have an unsigned
resignation on his desk; we would then ask Subbe-Hirt "why don't
you sign it; if you don't want to sign it, go on disability."
     In his meetings with Subbe-Hirt, Baccigalupi would "grill"
her on work she submitted, asking "why did you do this, what did
you do here, what was said here?" If he was not "satisfied" with
her answer, he would call Subbe-Hirt's clients in front of her
and say "Elaine says this; what do you say?"
     Baccigalupi's conduct had a devastating consequence. After
one meeting with Baccigalupi, Subbe-Hirt "literally blacked out
behind the wheel and hit a tractor trailer just from stress and
emotion[,]" suffering severe injuries that required eight days of
hospitalization. This incident forced Subbe-Hirt to take
temporary disability leave; indeed, her treating psychiatrist has
opined that she remains totally disabled with post traumatic
stress disorder triggered by Baccigalupi's badgering and
intimidation.
     Baccigalupi was on notice that such an incident was a
distinct possibility. Before the collision, Subbe-Hirt had
consulted with her family doctor because of stress. The doctor
wrote a letter which Subbe-Hirt showed to Baccigalupi before the
incident, asking that it be placed in her personnel file. It
stated:
     Elaine Subbe[-Hirt] is currently under my care for
     tension syndrome. It is my opinion, that she is
     capable of working a regular forty hour week at her
     present position. However, she should not be subject
     [sic] to any undue stress or work load at this time.

     When Subbe-Hirt requested that the letter be placed in her
personnel file, Baccigalupi refused, his exact words being:
"I'll decide what goes in your personnel file." According to the
evidence, "Mr. Baccigalupi handed it back to [her] and said he
didn't see that letter, and he never wanted to see it again and
he wouldn't put it in [her] file." From this evidence, a jury
could well-conclude that, in his attempt to drive Subbe-Hirt out
of Prudential, Baccigalupi targeted her now-documented weakness,
of which he was fully cognizant. Such specific targeting of an
individual's weak point is itself a classic form of "outrageous"
conduct under Restatement § 46, comment f, which provides:

     The extreme and outrageous character of the conduct may
     arise from the actor's knowledge that the other is
     peculiarly susceptible to emotional distress, by reason
     of some physical and mental condition or peculiarity.
     The conduct may be heartless, flagrant, and outrageous
     when the actor proceeds in the face of such knowledge,
     where it would not be so if he did not know.
     We conclude that the record is sufficient to support a
finding that Baccigalupi essentially set out to put Subbe-Hirt
under unnecessary stress to force her out of the company, all the
while knowing that her physician had stated specifically that her
condition required her to avoid such stress. We hold that the
evidence described above is more than sufficient to withstand
defendants' motion for summary judgment.
                               IV.
     The allegations about Baccigalupi's uncivil conduct, and the
record before us display a pattern of ill behavior and
concomitant distress sufficient to preclude summary judgment. We
will reverse the summary judgment and remand the cause to the
district court for further proceedings.




Subbe-Hirt v. Baccigalupi
No. 95-5786

COWEN, Circuit Judge, dissenting.

         The decision of the district court dismissing the
appellant-plaintiff's claim for intentional infliction of
emotional distress should be affirmed for two separate and
distinct reasons: the claim is clearly within the exclusivity
provision of New Jersey Worker's Compensation Act (the "WCA" or
the "Act") and not saved from the Act by the exception which
permits claims for intentional wrongs. In addition, the conduct
allegedly engaged in by the defendant clearly was not so
outrageous so as to meet the minimal requirements under New
Jersey law for a cause of action for intentional infliction of
emotional distress.

                                I.
               New Jersey Worker's Compensation Law
         The New Jersey Worker's Compensation Act provides an
automatic addition to any employment contract entered into in the
state, unless the parties at the time of the employment contract
expressly disclaim that the WCA be part of the employment
agreement. N.J.S.A. 34: 15-8. Under the Act employees are
barred from pursuing remedies against their employer or the
employer's agent relating to injuries received by reason of the
employment relationship, other than a worker's compensation claim
under the Act. The pertinent provisions of the WCA, as relevant
to this matter, states:

         If an injury or death is compensable under
         this article, a person shall not be liable to
         anyone at common law or otherwise on account
         of such injury or death for any act or
         omission occurring while such person was in
         the same employ as the person injured or
         killed, except for intentional wrong.

N.J.S.A. 34:15-8 (emphasis added).

All claims by employees who suffered injury or illness by reason
of their employment must be made pursuant to the administrative
procedure set forth in the Worker's Compensation Act. The sole
exception which the Legislature carved out allowing an employee
to sue the employer at law, and bypass the administrative
framework of the Worker's Compensation Act, is if the claim arose
by reason of an "intentional wrong." Id.
         The law in New Jersey is well-settled. To invoke this
narrow exception to the Worker's Compensation Act, the employee
must prove that the action of the employer was substantially
certain to cause the harm. Millison v. E.I. DuPont DeNemours &
Co., 101 N.J. 161, 177 (1985), aff'd 115 N.J. 252 (1989). The
New Jersey courts have been careful to explain that for an action
to be "substantially certain" to be the cause of an injury or
illness, the individual bringing about the injury must be found
to have known with "virtual certainty" that the act would produce
the injury. Bustamante v. Tuliano, 248 N.J. Super. 492, 498
(App. Div. 1991).
         Even when considering all inferences which can
reasonably be drawn from the pleadings and plaintiff's
affidavits, the district court correctly concluded that the claim
did not approach the narrow intentional wrong exception which is
necessary under the Act for an employee to sue an employer at law
for a work related illness.
         In order to find refuge from the exclusivity provision
of the Worker's Compensation Act, an employee suffering from
emotional distress and disability arising from employment cannot
avoid the administrative provisions of the Worker's Compensation
Act by simply characterizing as "intentional" the employer's acts
which caused the illness. Even crediting plaintiff's
allegations, and acknowledging that the conduct of her supervisor
and employer was offensive and uncalled for, such conduct did not
constitute an exception to the exclusivity provision of the
Worker's Compensation Act.
         The New Jersey Legislature never envisaged that the
intentional wrong exception would encompass the normal and even
extreme comments which arise in an employment relationship. To
hold, as the majority does today, that criticism and harsh
statements concerning work practices, competence and ability of
an employee are sufficient to constitute intentional wrongs
within the meaning of the Worker's Compensation Act is to be
insensitive to the realities of the workplace. The majority
fails to reckon with true employment reality. The workplace
often is a hard-driving environment. Competitive imperatives may
call for clear, sometimes insulting language, and one's immediate
supervisor will often be perceived as crude, impersonal and
insulting. The workplace is not afternoon tea or a day at the
beach. We should not, and the New Jersey Legislature never
envisaged that courts would, censor the language or dialogue in
the workplace.
         The district court analyzed the parameters of the
intentional wrong exception and correctly concluded that
plaintiff's allegations reflect that Baccigalupi engaged in
conduct which was consistent with behavior or practices sometimes
engaged in as part of the business environment or employment
relationship. The majority may not like the employer's words or
conduct, and I agree that the words were uncouth and gross. But,
like it or not, these are the words which the employer chose, and
such is the opinion of some employers of their employees. We
should not be in the business of scripting dialogue in the
workplace.
         Plaintiff relies heavily on Cremen v. Harrah's Marina
Hotel Casino, 680 F. Supp. 150 (D.N.J. 1980). Cremen is clearly
distinguishable from this matter. The plaintiff in Cremen was
raped by her supervisor who continued to physically abuse her
with physical as well as mental encounters. The Cremen court
correctly concluded that such assaults were not part of the
landscape in any work environment and that the emotional distress
which resulted from the conduct was outside of the Worker's
Compensation Act. The plaintiff's case before us in its totality
is based solely on words. Words not even spoken to her. Words
that she claims made her sick and should not have been used to
describe her performance in the work environment or characterize
her as an employee. Plaintiff's allegations are a far cry from
Cremen. She can cite no other New Jersey case in which the
"intentional wrong exception" was found to apply to support her
position.
         The plaintiff has failed to allege facts which would
take the admittedly harsh language out of the work environment.
All of the remarks leveled by plaintiff's supervisor were
directed to her work performance and all of his comments concern
the employment relationship. Not one of the alleged "intentional
wrongs" are removed from the proper subject of an employer's
evaluation and opinions concerning work performance or job
competence. While we as individuals may have our view as to the
proper language that should transpire at a work site, it does not
lie in the province of the judiciary to instruct employers on
proper etiquette or set ourselves up as the super-Emily Post of
the workplace.

                               II.
         Separate and apart from the allegations of the
plaintiff not qualifying as an "intentional wrong," the facts of
the case as alleged by the plaintiff fall short of the New Jersey
cause of action of intentional infliction of emotional distress.
The New Jersey Supreme Court has defined this tort as requiring
conduct "so outrageous in character and so extreme in degree as
to go beyond all possible bounds of decency, and to be regarded
as atrocious and utterly intolerable in a civilized community."
Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988).
The conduct of the perpetrator of such a tort must be by its
nature "so severe that no reasonable man could be expected to
endure it." Id.
         Conduct which the New Jersey courts have found to meet
this extremely high level of uncivilized conduct are such matters
as a doctor knowingly and untruthfully advising parents that
their child had cancer, Hume v. Bayer, 178 N.J. Super. 310, 317-
19 (Law Div. 1981); a hospital unable to locate the body of a
dead baby for three weeks, Muniz v. United Hospitals Medical
Center, 153 N.J. Super. 79 (App. Div. 1977). The federal court
has recognized the extreme difficulty of establishing such a
claim in a mere employment relationship when the conduct alleged
does not exceed the employer/employee relationship. See Fregara
v. Jet Aviation Business Jets, 764 F. Supp. 940, 956 (D.N.J.
1991); Alm v. Marriot Corp., No. 90-3648 WL 313897 (D.N.J. Nov.
6, 1991); Borecki v. Eastern Intern. Management Corp., 694 F.
Supp. 47 (D.N.J. 1988). After Buckley, it has been recognized
that "New Jersey has prescribed a heavy burden for one alleging
intentional infliction of emotional distress." Obendorfer v.
Gitano Group, Inc., 838 F. Supp. 950 (D.N.J. 1993).
         The New Jersey Supreme Court has made it abundantly
clear in Buckley, that when a claim is made for intentional
infliction of emotional distress, the trial court must clearly
exercise a gatekeeping rule: "the court decides whether as a
matter of law such emotional distress can be found, and the jury
decides whether it has in fact been proved.) Id. at 367. It is
the obligation of the trial court to determine in the first
instance whether the plaintiff has set forth conduct which is
sufficiently extreme such that a jury could reasonably conclude
that outrageous conduct permits it to award damages. Contrary to
the opinion of the majority, the district court did not overstep
its role with respect to the claim of intentional infliction of
emotional distress since the trial court is mandated under New
Jersey law to determine in the first instance "whether reasonable
minds could conclude that that alleged conduct has met
[outrageous] standard." See Obendorfer v. Gitano Group, Inc.,
838 F. Supp. at 955; Borecki v. Eastern Intern. Management Corp.,
694 F. Supp. at 61.
         The district court correctly performed its function by
determining that under New Jersey law the facts alleged as a
matter of law failed to reach the elevated and high standard
required for the cause of action of intentional infliction of
emotional distress. The district court recognized that
Baccigalupi's statements, if credited, were "inexcusable" and
"offensive," but did not rise to the level of outrageous and
unacceptable in a civilized society. Plaintiff's claims boil
down to an assertion that her supervisor's choice of words
required her to put up with "more than the normal pressure of a
job." Being subject to "more than normal pressure" at work is a
long distance from conduct that is "so outrageous in character
and so extreme in degree as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community." Even plaintiff had a difficult time
labeling Baccigalupi's actions as anything beyond harmless
threats, intimidation, and ridicule. Admittedly, the words
allegedly spoken by Baccigalupi were strong and even harsh at
times, but they were merely words. There is no proof, nor even
an allegation, that Baccigalupi even touched her or that he set
in motion any physical or other instrumentality to bring about an
injury or illness.

                               III.
         The majority is to be lauded in its desire to upgrade
the repartee of the workplace and to be offended by language
which it deems inappropriate. But the workplace is not the dance
of a minuet and employers are not nursemaids. As judges we will
rue the day we sat in judgment of the propriety of speech which
should transpire in the workplace between an employer and his
employee. I respectfully dissent.
