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Jones v. State, Dept. of Corrections (12/16/2005) sp-5969
Jones v. State, Dept. of Corrections (12/16/2005) sp-5969
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RAYMOND V. JONES,
| ) |
|
| ) Supreme Court No. S-
10743 |
|
Appellant, | ) |
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| ) Superior Court
No. |
|
v. | ) 3AN-99-8633
CI |
|
| ) |
|
STATE OF ALASKA, | ) O P I N I O
N |
|
DEPARTMENT OF | ) |
|
CORRECTIONS, | ) [No. 5969 - December
16, 2005] |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon L.
Gleason, Judge.
Appearances: James Alan Wendt, Law Offices
of James Alan Wendt, Anchorage, for
Appellant. Jason T. Mogel, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
CARPENETI, Justice, concurring.
FABE, Justice, dissenting.
I. INTRODUCTION
Floyd Ainsworth, a correctional officer, wrote a
racially and sexually offensive memorandum terminating inmate
Raymond Joness job as a prison barber. Jones sued Ainsworth and
the Alaska Department of Corrections (collectively, the state),
claiming intentional infliction of emotional distress (IIED) and
unlawful termination from his prison-barber job because of race
or sex, in violation of the Alaska Human Rights Act. The
superior court dismissed Joness IIED claim on summary judgment
but allowed his human-rights-act claim to proceed to trial.
Before trial, the state made an offer of judgment to Jones, which
he refused. At trial, the court instructed the jury that Jones
could only claim emotional damages for emotional distress
suffered after his termination occurred. The jury found that
Jones had been unlawfully terminated, but awarded him only a
small amount of damages, specifying that its award was for
emotional distress. The court awarded costs and attorneys fees
to the state, finding that its pretrial offer of judgment
exceeded the jurys verdict. Jones appeals, claiming that the
superior court erred in dismissing his IIED claim, in instructing
the jury on the scope of Joness right to recover emotional
damages, and in awarding attorneys fees to the state. We affirm,
concluding that Jones has failed to show prejudice from any error
in dismissing his IIED claim, that the jury was properly
instructed on Joness right to emotional damages, and that the
court properly awarded the state costs and fees for prevailing on
its offer of judgment.
II. FACTS AND PROCEEDINGS
Raymond Jones, an African American, was an inmate
assigned to Spring Creek Correctional Center. He worked as a
barber, cutting other inmates hair for a nominal salary.
Correctional Officer Floyd Ainsworth was Joness supervisor.
On August 4, 1997, Ainsworth gave Jones the following
memo:
This memorandum is to inform you, that you
have been fired as an APS barber/rec worker.
You are a lop, lame, sissy, cake-boy, and
your girl is a mud-duck. You are in fact a
no talented bum. You listen to Vanilla Ice,
in your 1975 AMC Pacer, and thats just not
cool. In fact one of the brothers [sic] told
me that you were white, and just had a really
good tan. Maybe the kitchen is looking for a
new pots and pans man!
Jones interpreted this memo as containing sexual and racial slurs
and as being intended to terminate his employment.1 He stopped
reporting for work and kept the memo in his possession but did
not report it. The memo was discovered by correctional officers
after Joness transfer to Wildwood Correctional Center in July
1998. Its discovery triggered a departmental investigation into
Ainsworths conduct and eventually led to his termination.
Jones later sued the state, alleging that the August 4
memorandum had intentionally inflicted emotional distress and had
violated the Alaska Human Rights Act2 by terminating Joness
employment as a prison barber for racial and sexual reasons.3
The state moved for summary judgment on Joness claims.
Regarding the IIED claim, which required proof of outrageous
conduct and serious emotional harm, the state argued that Joness
claim was deficient because the August 4 memo was at most an
insult, rather than an outrageous act, and because Joness general
assertion that the memo had caused him to feel anxious and upset
would not support a finding of serious emotional harm. In
response, Jones insisted that racial and sexual indignities such
as those cast at Mr. Jones are not mere insults, annoyances or
trivialities. He also offered to present additional evidence
concerning the seriousness of his emotional injuries.
After hearing oral argument on the summary judgment
motion, the superior court dismissed Joness IIED claim, finding
that he had failed to offer any evidence of severe emotional
distress. However, the court denied the states motion for
summary judgment on Joness human-rights-act claim, finding
sufficient evidence to warrant a trial on whether the memo
wrongfully terminated Joness employment as a prison barber
because of sex or race.
Before trial the state made Jones a $12,000 offer of
judgment. Jones rejected the offer and the case proceeded to
jury trial on the human-rights-act claim. At the conclusion of
the trial, over Joness objection, the court instructed the jury
that Jones is not entitled to emotional damages that he is
claiming occurred before he received the memorandum from Floyd
Ainsworth, and that the jury could only consider emotional
damages that may have occurred after Mr. Jones received the
memorandum.
The jury returned a special verdict finding that the
August memorandum had violated the human rights act by
terminating Joness employment for impermissible racial or sexual
reasons. But the verdict found that this violation had caused
Jones to suffer only one kind of compensable injury emotional
suffering; and it awarded him just $3,900 in emotional damages.
Because its pretrial offer of judgment exceeded the
jurys verdict, the state moved for an award of costs and
attorneys fees. Jones filed a competing claim, seeking costs and
fees as the prevailing party. The court declared the state to be
the prevailing party by reason of its pretrial offer of judgment
and awarded it $16,902 in costs and attorneys fees. Jones
appeals.
III. DISCUSSION
A. Joness IIED Claim
The elements of the tort of IIED require that the
defendant intentionally or recklessly engage in extreme or
outrageous behavior causing severe emotional distress or bodily
harm to the plaintiff.4 Before submitting an IIED claim to the
jury, the trial judge must determine whether the severity of the
emotional distress and the conduct of the offending party warrant
a claim of [IIED].5 If this threshold test is conducted at the
time of summary judgment, the court must afford the plaintiff all
favorable factual inferences.6
The superior court considered Joness evidence and
granted summary judgment for the state. Without making a finding
as to whether the memorandum amounted to extreme or outrageous
conduct, the court decided that Jones has failed to establish
that there is a genuine issue of material fact as to whether
there was severe emotional distress. . . . There doesnt appear
to be any assertion that there was distress as a result of Mr.
Ainsworth giving the memo to Mr. Jones.
Jones contends that because he presented sufficient
evidence to establish severe distress, the superior court
improperly granted summary judgment against him on his IIED
claim. Jones urges us to re-examine the evidence before the
trial court at summary judgment, maintaining that he was subject
to racial and sexual insults that would normally result in
fisticuffs in a prison environment . . . and he testified under
oath regarding his fear. Arguing from cases in which we have
previously recognized that a wrongful discharge may give rise to
an intentional infliction of emotional distress claim, Jones
insists that the distress inflicted by Ainsworths memorandum
should be deemed sufficient to survive summary judgment.
But even if Jones presented enough evidence of serious
emotional distress to prevent the superior court from dismissing
his IIED claim on summary judgment, Joness argument would still
be unavailing unless Jones further showed that the courts
erroneous ruling caused actual prejudice.7 Here, the state
asserts that any error was harmless because the jurys award for
emotional damages on Joness human-rights-act claim covered all
the emotional damages that Jones could have received on his IIED
claim.8
Our cases show that improperly dismissing a claim will
be harmless error when the claimant manages to recover the same
damages by pursuing an alternative theory. In Bohna v. Hughes,
Thorsness, Gantz, Powell & Brundin, we held that the plaintiff
had not suffered prejudice from dismissal of his fiduciary fraud
claim, because he was able to present the same evidence and seek
punitive damages under his surviving claims.9 Under this rule,
if the jury verdict on Joness human-rights-act claim compensated
Jones for all the damages he would have been entitled to recover
on his claim for IIED, then he suffered no actual prejudice, even
assuming that his IIED claim was erroneously dismissed before
trial.
We have recognized that damages allowed under the
Alaska Human Rights Act, which prohibits discriminatory acts by
the state,10 are essentially tort damages, thus authoriz[ing] the
courts to compensate a plaintiff for the injury caused by the
defendants wrongful breach.11 Accordingly, when a plaintiff
proves a violation under the act, actual damages are available
for mental anguish.12 Here, Joness human-rights-act claim
specifically alleged that Ainsworths August 4 memorandum
terminated his prison job and that the termination violated the
act because the memo was motivated by impermissible
considerations of race and sex. The jury expressly found these
allegations to be true and awarded monetary damages for his
emotional anguish; indeed, the only money the jury awarded was
for the emotional damages that Jones experienced because of the
August 4 memo.
Like his human-rights-act claim, Joness IIED claim was
based on the August 4 memo. In accusing Ainsworth of
intentionally inflicting emotional distress, Joness complaint
focused solely on the emotional damages he actually suffered as a
result of receiving the memo.13 Specifically, Joness complaint
alleged that the state was liable for IIED because [t]he
memorandum notifying Raymond Jones of his employment termination
was racially and sexually offensive. Nothing in Joness
subsequent summary judgment pleadings or his counsels oral
arguments on the states summary judgment motion remotely
suggested that his IIED claim was grounded on conduct preceding
the August 4 incident.
In his opposition to summary judgment, Jones claimed
that a single event of racial and/or sexual insult Ainsworths
memo sufficed to bring his IIED claim to the jury. He explained
that his human-rights-act claim was likewise based on his
discriminatory termination, the los[s] of his barber job. At the
oral argument on the summary judgment motion, Joness counsel
stated, Regarding the Alaska Human Rights Act . . . it seems to
hinge on whether or not Mr. Jones lost his job as a barber as a
result of or at the same time as delivery of this memorandum.
And he explained that Joness IIED claim was premised on [t]he one
incident with the derogatory, insulting and somewhat intimidating
memo.
Although Joness deposition did include a brief
description of a separate incident in which Ainsworth apparently
threatened Jones with a broomstick, Jones failed to cite,
discuss, or otherwise call the superior courts attention to that
incident as having any potential bearing on his IIED claim.
Instead, as already mentioned, he limited his summary judgment
arguments concerning that claim to Ainsworths August 4 memo and
the emotional distress ensuing from that memo. Nor did Jones
ever voice any broader theory of his IIED claim as a potential
reason for reconsideration.
Considering the manner in which Jones framed and
presented his IIED claim to the superior court, we find no sound
basis to construe the claim as seeking any emotional damages
beyond those that the jury actually considered in deciding his
human-rights-act claim: the emotional damages attributable to
Ainsworths August 4 memo. Although the summary judgment record
included some evidence of pre-termination conduct by Ainsworth
the broomstick incident that arguably might have allowed Jones
to expand his IIED claim, Joness failure to assert this broader
theory of IIED below precludes us from considering it in our
harmless error analysis here.
Under these circumstances, we must accept Joness theory
of IIED as he actually asserted it in arguing his case on summary
judgment, not as he might have reshaped the theory had his claim
eventually proceeded to trial.14 Moreover, even if the more
expansive view of Joness IIED claim could properly be raised for
the first time on appeal, we would still decline to consider it
because Jones has not raised it in his briefing. Jones does
refer to the broomstick incident briefly in the section of his
argument discussing his human-rights-act claim a separate issue
that we address below. But he does not argue this evidence or
even mention it in his argument challenging the dismissal of his
claim for IIED. Joness opening brief makes no effort to show how
his IIED claim might have encompassed a broader range of
emotional damages than the damages that the jury could have
awarded on his claim for violating the Human Rights Act. Even
though the state expressly argues in its appellees brief that
dismissal of Joness IIED claim amounted to harmless error, Joness
reply brief makes no attempt to explain why he would have been
entitled to claim additional emotional damages for his IIED
claim.
In short, both below and on appeal, Jones has
consistently chosen to focus his IIED claim on a single incident
of intentionally inflicted emotional harm: the August 4
memorandum that effectively terminated his prison employment. In
his arguments addressing that claim, he has never asserted or
argued that he based his IIED claim on any other intentional and
outrageous act. Nor has he ever claimed or suggested a right to
recover IIED damages suffered because of another incident.15 This
same incident, and its resulting injuries, formed the crux of his
claim under the Alaska Human Rights Act as well. Since Jones
sought the same emotional distress damages on both claims, the
claims overlapped. The special verdict rendered under the act
establishes that Jones was in fact compensated for the emotional
injuries underlying both claims.
Even if any error occurred in dismissing his IIED
claim, then, the error appears to be harmless.
B. Jury Instruction No. 14.5
Over Joness objection, the superior court gave
Instruction No. 14.5 to the jury:
Mr. Jones is not entitled to emotional
damages that he is claiming occurred before
he received the memorandum from Floyd
Ainsworth dated August 4, 1997. If you find
that Mr. Jones was terminated by the
memorandum you may only consider emotional
damages that may have occurred after Mr.
Jones received the memorandum.
Jones argues on appeal that this instruction misconstrued the
law: that his claim under the act allowed him to recover for
emotional damages caused by Ainsworth before the August 4 memo
that terminated Joness employment.16 We disagree.
The Human Rights Act enabled Jones to recover damages
from the state for any denial of funds, services, goods,
facilities, advantages, or privileges because of race, religion,
sex, color, or national origin.17 Here, Jones alleged, and the
jury found, that the state had violated the act because of
Ainsworths August 4 memo, which effectively terminated Joness job
as a prison barber based on impermissible considerations of race
and sex. As the superior court properly reasoned in deciding to
give the challenged jury instruction, the plain terms of the act
only allowed Jones to recover those damages occurring because of
the August 4 memo:
[T]he damages have to stem from the act
itself that forms the underlying basis of the
complaint. And the underlying basis of the
complaint, the cause of action, is the
termination and the damages that would come
after that, not preceding it.
Moreover, Instruction No. 14.5s express prohibition of
an award for emotional damages occurring before Jones was
terminated accords with other, more general, instructions
received by the jury. For example, Instruction No. 9 advised the
jury that Jones could be awarded damages for emotional distress
from the date of any violation of his rights to the date of
trial.18 And under Jury Instruction No. 4, the specific violation
Jones needed to prove to establish a violation of his rights was
his termination from the prison job by Ainsworths racially and
sexually motivated memo.19 Jones did not object to these
instructions below and does not challenge them now. Because
these instructions defined Joness right to recover emotional
damages in essentially the same way as Instruction No. 14.5,
albeit less explicitly, we see no reason to conclude that the
jury would have reached a different verdict, even if the superior
court had yielded to Joness objections and denied the states
request to give Instruction No. 14.5.20 We thus find no merit in
Joness challenge to this instruction.
C. Attorneys Fees
Under Alaska Civil Rule 68, a party may make an offer
of judgment [a]t any time more than 10 days before the trial
begins.21 If the judgment that a single offeree achieves is at
least five percent less favorable to the offeree than the offer,
the offeree shall pay all costs as allowed under the Civil Rules
and shall pay [a percentage of the] reasonable actual attorney
fees incurred by the offeror from the date the offer was made.22
Here, Jones declined the states pretrial offer of
judgment for $12,000 inclusive of all prejudgment interest, costs
and attorney[]s fees. After the jury awarded Jones $3,900, the
state moved for costs and fees under Rule 68. Upon comparing the
offer to the judgment, the trial court granted the states motion,
finding that the offer was sufficient to entitle the state to
costs and attorneys fees even with prejudgment interest,
attorneys fees under Alaska Civil Rule 82 and allowable costs
added to the judgment.23 The state claimed Rule 68 fees of
$24,089.60. From this amount the court offset Joness recovery,
yielding a net judgment for the state of $16,902.60.
Jones appeals this award, arguing that his total
judgment should have been more favorable than the states offer.
Jones advances three theories to support his claim. Jones first
suggests that the states offer of judgment was deficient because
the state extended the offer nearly two and a half years after
the filing of Appellants complaint. But Rule 68(b) allows an
offer of judgment to be made more than 10 days before the trial
begins. The states offer complied with the rules requirement.
Jones next asserts that, as a successful civil rights
plaintiff, he was entitled to recover his actual fees under 42
U.S.C. 1988(b), a federal provision authorizing courts to award
prevailing civil rights plaintiffs their reasonable attorneys
fees. But Jones pursued his claim under Alaskas Human Rights
Act, which has no comparable provision. In Moody-Herrera v.
State, Department of Natural Resources, we held that Civil Rule
82 applies to civil rights plaintiffs who sue under Alaskas act.24
We declined to incorporate the federal model in our rules, noting
that awards of attorneys fees under our rules follow[] a
fundamentally different principle.25 Moody-Herrera controls our
decision here.
Finally, Jones claims that, in determining whether his
total award exceeded the states offer, the court should have
calculated his fees on an enhanced basis, using the factors
listed in Civil Rule 82(b)(3). But Jones does not discuss how
these factors apply to his case and fails to explain why the
superior courts calculation of his fees was manifestly
unreasonable.26
We thus find no reason to disturb the superior courts
award of costs and fees.
IV. CONCLUSION
We AFFIRM the superior courts judgment.
CARPENETI, Justice, concurring.
I agree with todays opinion upholding summary judgment
in favor of the state on Joness claim of intentional infliction
of emotional distress (IIED), but I disagree with the courts
reasoning in reaching this conclusion. I would affirm Judge
Gleasons opinion because it was correctly decided, and therefore
would find it unnecessary to undertake a harmless error analysis.
Todays opinion, assuming error on the part of the trial
court, addresses first whether any error was harmless.1 But
[h]armless-error analysis is triggered only after the reviewing
court discovers that an error has been committed.2 For that
reason, I turn first to the question whether the superior court
erred in granting summary judgment to the state on Joness IIED
claim.
We have established that in order to recover for
intentional infliction of emotional distress a plaintiff has a
high burden of proof. To establish a prima facie case, a
plaintiff must demonstrate that (1) the conduct is extreme and
outrageous, (2) the conduct is intentional or reckless, (3) the
conduct causes emotional distress, and (4) the distress is
severe.3 In commenting on the first required showing, we have
stated that a court may find liability for IIED only when the
conduct has been 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. 4 As to the third and fourth requirements that the
conduct cause severe emotional distress we have defined severe
emotional distress as distress of such substantial quality or
enduring quantity that no reasonable person in a civilized
society should be expected to endure it. 5
The superior court held that Jones presented no
evidence of severe distress, and the record amply shows that the
courts conclusion was not an abuse of discretion.6 Joness
opposition to summary judgment failed to discuss any distress
suffered by Jones that resulted from Ainsworths letter, much less
claim that Jones suffered severe emotional distress. The dissent
cites nine pieces of evidence that it says support Joness IIED
claim.7 However, only one Joness deposition testimony8 even
goes to the issue whether Jones actually suffered distress.9 And
that testimony does not support the conclusion that he suffered
severe emotional distress. At his deposition, when he was asked
whether he suffered any consequences as a result of Ainsworths
letter, here is what Jones said about the level of his emotional
distress:
I just got yeah, basically, wouldnt
ever do the things I liked to do, cut hair.
You know thats what I like doing is cutting
hair, I wasnt able to cut hair, you know what
I mean.
I feared all the time because I didnt
know what the next step was going to be
because [Ainsworth] was still there. I didnt
know if, you know every time I hear the doors
open or keys, it still bugs me, it bugs me
today, you know because I never know what is
going to happen.
This quotation is the only evidence of actual emotional distress
in the entire record. This sort of vague, generalized fear or
annoyance is insufficient to satisfy the threshold showing
required by IIED;10 if it were otherwise, then the showing is a
mere formality that will always be met. At oral argument on
summary judgment in the superior court, Joness counsel conceded
that he had not put forth an affidavit or any other independent
or expert evidence supporting Joness distress from the Ainsworth
letter. Rather, counsel alluded generally to this one quotation,
and added the unavailing fact that Jones had pleaded severe
emotional distress in his complaint. Because Jones did not
present any evidence that, as a result of Ainsworths action, he
had suffered the kind of severe emotional distress that no
reasonable person could be expected to endure, the superior court
correctly denied summary judgment on Joness IIED claim.
The dissent fails to discuss the trial courts
conclusion that Jones did not raise a genuine issue of material
fact as to whether he suffered severe emotional distress11 an
evidentiary showing that our case law demands, as noted above.
Instead, the dissent looks at the defendants action (not its
effect on the plaintiff) and relies on United States v.
Balistreri12 for the proposition that [t]he more inherently
degrading or humiliating the defendants action is, the more
reasonable it is to infer that a person would suffer humiliation
or distress from that action.13 But a plaintiff must still
present some evidence of severe emotional distress, and Jones did
not. Moreover, while it is true that the court in Balistreri
characterized the evidence there as somewhat general and
conclusory and minimal,14 the evidence there was much stronger
than the evidence in Joness case. Each of several plaintiffs in
Balistreri testified to being upset, humiliated, embarrassed or
shamed.15 Individual plaintiffs testified to being nauseous,
embarrassed, and ashamed,16 hurt and disappointed,17 and damaged
in their relationship with her husband, children, and other
family members;18 indeed, one characterized it as one of the
worst things that had happened to him.19
It is instructive to compare a later case that relied
on Balistreri, from the same Seventh Circuit, for an indication
of how that court treats the requirement of a showing of actual
emotional distress. In Alston v. King,20 the court found that
several of the plaintiffs claims of distress which were more
serious than Joness claims of distress21 were insufficient
standing alone to support emotional distress damages. (It was
only when the court added consideration of additional facts,
including that the plaintiff was escorted to his office by a
police officer and made to clean out his desk while employees
were gathered around, and some were crying, others were
befuddled, and still others were mocking or laughing at him22
that the court found a sufficient basis for emotional distress
damages.) The plaintiffs distress that the Seventh Circuit found
insufficient was as follows:
Alston nevertheless argues that . . . he
submitted sufficient evidence of damages to
avoid judgment as a matter of law. The
evidence relating to emotional distress that
was admitted at trial was sparse. We have
Alstons bare testimony that . . . he suffered
humiliation, embarrassment, stress [and]
rejection [and became] depressed, that he had
a tendency to abuse alcohol, and that it
materially affected the quality of his
relationship with the woman he was dating and
that he was no longer engaged to her.[23]
Comparing this evidence from Alston which the Seventh
Circuit characterized as sparse and would have found as
insufficient without more to avoid a contrary judgment as a
matter of law24 with the evidence in the present case leads to
the conclusion that Judge Gleason properly granted summary
judgment to the state. Jones said only that he was no longer
able to cut hair, he feared all the time, and it still bugs me
today. The allegations of emotional distress in Alston were
substantially more serious, including humiliation, embarrassment,
stress, rejection, and depression, leading to alcohol abuse and
impinging on relations with others. Yet that evidence standing
alone was insufficient to meet the severe injury test, even when
considering the rule that racial discrimination, which was
involved in Alston, is the type of action that one could
reasonably expect to lead to emotional distress. Judge Gleason
did not abuse her discretion in determining that Jones did not
present evidence of severe emotional distress sufficient to avoid
summary judgment.
The dissent also discusses emotional distress arising
from a rat comment allegedly made by Officer Gilliam. The
superior court refused to consider any distress resulting from
this comment on procedural grounds.25 But even assuming that the
rat comment is within the scope of Joness appeal, Jones has not
offered any specific evidence of distress resulting from it.
Jones places his reliance on the expert testimony of Ernest C.
Weber, a corrections and prison consultant who never met Jones.
Mr. Weber opined that being called a rat in prison is a serious
matter and that it could have caused him severe mental anguish.
(Emphasis added.) While this is undoubtedly true, Mr. Webers
testimony has little bearing on whether Jones actually suffered
emotional distress or produced evidence that he did. In
contrast, it appears that Joness deposition testimony deviates
from Mr. Webers general prediction. Joness testimony was that
being called a rat was serious,
because for me if I was in a real, you know,
somewhere that people didnt know me, if I was
like in a federal prison, for him to say what
he said could have jeopardized my life, you
know. And you cant go calling people rats
and stuff like that in a maximum security
prison and thats coming from a guard, thats
your life, in other prisons, but maybe not in
Alaska, but thats the way I look at it.
And people that knew me, know that Im
not no rat and they know Im not that type of
person. But Im saying if I was in any other
place, that could have caused my life in
Seward, you know, if you would have got the
right person hearing this.
(Emphases added.) His testimony went on to suggest that all
people who heard the rat comment were his friends, and that they
would never have believed the charge. In fact, Jones agreed that
[t]hey knew that this was a bunch of bullshit. The only harm
suggested by Jones was [j]ust the anxiety caused by knowing that
the comment could have had negative consequences. While we do
not demand that a threshold showing of severe emotional distress
include concrete medical evidence,26 we do require that the
allegation be supported by the record. Here, Mr. Webers
conjecture regarding the possible consequences of the rat comment
was contradicted by Joness own testimony of what actually
happened.
Because the record supports the superior courts
conclusion that Jones failed to offer evidence of severe
emotional distress, I would affirm the grant of summary judgment
on the merits. Judge Gleason did not abuse her discretion in
determining that Jones did not meet his threshold requirement of
producing evidence that he had suffered severe emotional
distress; accordingly, her decision to grant summary judgment to
the state on the IIED claim was correct. For this reason I agree
to affirm her decision.
FABE, Justice, dissenting.
The court resolves this appeal through a harmless error
analysis, without addressing the propriety of the superior
courts dismissal of Joness intentional infliction of emotional
distress (IIED) claim. Because I believe that Jones presented
sufficient evidence to satisfy the threshold requirements for an
IIED claim, I would hold that the superior court erroneously
dismissed this claim on summary judgment. And because Joness
remaining claim for wrongful termination under the Alaska Human
Rights Act failed to compensate him for all damages sought under
the IIED claim, I disagree with the courts conclusion that no
prejudice resulted from dismissal of the IIED claim. I would
therefore reverse the superior courts dismissal of Joness IIED
claim and remand the case for a new trial on that claim.
I. The Superior Court Erred in Dismissing Joness IIED Claim on
Summary Judgment.
Although the trial court should make a threshold
determination whether the severity of the emotional distress and
the conduct of the offending party warrant a claim of IIED,1
Jones raised genuine issues of material fact as to both the
outrageous nature of Ainsworths conduct and the probability that
he suffered severe emotional distress. He accomplished this by
presenting to the superior court the following evidence in his
opposition to summary judgment:
(1) A copy of Ainsworths termination memo, which
contains racial and sexual slurs;2
(2) Joness deposition testimony that about a month
after they started working together in the barbershop, Ainsworth
intentionally mess[ed] with [Jones] . . . to make it hard for
[Jones] to try to keep that job;
(3) Joness deposition testimony that Ainsworth
threatened him with a broomstick, brandishing the handle when
Ainsworth was alone with Jones in the barbershop and threatening
to do bodily harm to Jones with the stick;
(4) Joness deposition testimony that after receiving
the August 4 memorandum, Jones was in fea[r] all the time because
[he] didnt know what the next step was going to be because
[Ainsworth] was still there and that he felt fearful every time
[he] hear[d] the doors open or the keys . . . because [he] never
kn[ew] what [was] going to happen;
(5) Joness deposition testimony that he was labeled a
rat by correctional staff in retaliation for causing trouble for
Ainsworth about the memo;
(6) An affidavit and expert report of Ernest C. Weber,
a corrections and prison consultant with over thirty years of
experience in the field, explaining the significance of the
context of Ainsworths conduct, the dependence of prisoners on
staff for their safety and well being, and the importance of
minor things that are so simple to us who are free [that] become
greatly magnified to those who are incarcerated;
(7) Webers opinion that [i]f staff indicate that they
are out to get them [prisoners] can then develop an extreme fear
for their safety;
(8) Webers opinion that if a prisoner contemplates
reporting inappropriate guard conduct, he must consider the
possibility of being labeled a rat. Weber added: I cannot
overstate the seriousness of an inmate being labeled a rat in an
institutional correction environment. This label could and often
does place the individual in very real danger during
incarceration.
(9) Webers opinion that the racial and sexual
harassment that Jones was subjected to could have caused him
severe mental anguish and could have placed him in a position to
be subject to serious physical harm.
Although the courts opinion does not reach the
question, the concurrence concludes that Jones presented
insufficient evidence of severe distress to avoid summary
judgment on his IIED claim, basing this view on Joness purported
failure to present evidence regarding the effect of Ainsworths
actions on him.3 But on a summary judgment motion, [t]he non-
moving party is entitled to have the record reviewed in the light
most favorable to it and to have all reasonable inferences drawn
in its favor.4 And as the concurring opinion recognizes, Jones
testified that he feared all the time because I didnt know what
the next step was going to be because [Ainsworth] was still
there. I didnt know if . . . every time I hear the doors open or
keys, it still bugs me, it bugs me today . . . because I never
know what is going to happen.5 Jones also described in detail
Ainsworths systematic harassment and discrimination. Ainsworths
described conduct was so extreme and outrageous that standing
alone it permits an inference of distress. A number of federal
decisions have recognized that inferences of emotional distress
may be drawn from conduct in the context of discrimination
claims.6 As the Seventh Circuit explained: The more inherently
degrading or humiliating the defendants action is, the more
reasonable it is to infer that a person would suffer humiliation
or distress from that action; consequently, somewhat more
conclusory evidence of emotional distress will be acceptable to
support an award for emotional distress.7 The Balistrieri court
went on to conclude that even though the testimony offered was
somewhat general and conclusory and even minimal, it was
sufficient to support an emotional distress award.8
Similarly, the Ninth Circuit concluded that it was
proper to award damages for humiliation and distress to a husband
and wife who suffered discrimination in their search for rental
office space, where there was no testimony from the husband about
his emotional distress.9 That court concluded that the husbands
humiliation could be inferred from the surrounding circumstances
of not being able to rent office space because he was African-
American.10 And in Hobson v. Brennan, the court relied on
decisions of the D.C. Circuit to conclude that an absence of
direct testimony about distress will not defeat a claim for
compensatory damages.11 The court in Hobson explained that [t]he
defendants construction of the term testimony. . . is overly
narrow [because it] overlook[s] the [D.C. Circuit] Court of
Appeals further statement that in appropriate circumstances . . .
emotional distress may be inferred from the circumstances. 12
The Hobson court reasoned that in a case involving an intrusive
investigation by the FBI [t]estimony about something so obvious
[as the plaintiffs emotional distress] would have been redundant
and possibly viewed by the jury as so self-serving as to be
counter productive.13
Moreover, the Seventh Circuit has recognized that
racial discrimination, which is one of the relics of slavery is
the type of action that one could reasonably expect to humiliate
or cause emotional distress to a person.14 No reasonable person
could be expected to endure the degrading racial and sexual slurs
and routine threats allegedly made by Ainsworth without suffering
severe emotional distress. And [t]he jury is in the best
position to evaluate both the humiliation inherent in the
circumstances and the witnesss explanation of his injury. . . .
[A] jury may glean as much if not more about a witnesss emotional
state from the witnesss demeanor than from his attempts to
explain the nature of his injury in words.15
Although the concurrence places great reliance on the
Seventh Circuits decision in Alston v. King,16 Alstons emotional
distress claim arose from a municipal employers failure to
provide him with the pretermination hearing required by his
employment contract.17 In my view, the conduct underlying Joness
claims of emotional distress degrading racial and sexual slurs
and continuing threats made by a jail guard to a prisoner under
his control is significantly more serious than the conduct
underlying Alstons claims, where Alston was taken back to his
desk and forced to clean out his desk in the presence of his
coworkers, without any explanation, while some coworkers cried
and others laughed and mocked him.18 Yet, in Alston, the court
found that despite scant evidence of emotional distress,
testimony about the sequence of events at the office was
sufficient to raise a jury issue of emotional distress damages
related to the denial of procedural due process.19 The court
concluded: In other words, there was enough evidence [from which]
to infer that the humiliation [Alston] experienced was
attributable to the summary nature of the proceedings, rather
than to the termination itself. Alston therefore presented
sufficient evidence of damages to withstand judgment as a matter
of law.20
Thus, in certain cases, severe emotional distress may
be inferred from the circumstances underlying the plaintiffs
claim. The outrageousness of Ainsworths discriminatory and
threatening conduct permits such an inference of severe emotional
distress and raises a genuine issue of material fact. It is thus
my view that the evidence submitted by Jones on the issues of
outrageousness and severe emotional distress was sufficient to
survive the States motion for summary judgment.
II. The Erroneous Dismissal of the IIED Claim Was Not Harmless
Error.
Under the harmless error test, [t]he members of this
court must necessarily put themselves, as nearly as possible, in
the position of the jury in order to determine whether, as
reasonable [people], the error committed probably affected their
verdict. 21 If the jury had been permitted to consider Joness
IIED claim, it could have weighed the nature and extent of
harassment that Jones suffered throughout his period of
employment under Ainsworth, rather than just the distress
suffered from the time of termination. And if the IIED claim had
remained, the jury could have compensated Jones for the emotional
distress he suffered due to threatening behavior by a
correctional officer who had power over him, in addition to the
emotional distress associated with being terminated. Thus,
dismissal of this claim cannot be viewed as harmless error.
The superior court limited the recovery of emotional
distress damages to those resulting from Joness termination based
on racial or sexual discrimination, in violation of the Human
Rights Act. Before closing arguments, the superior court gave
preliminary instructions, including an instruction that told the
jury that it could award Jones damages to compensate him only for
emotional distress caused by racially motivated termination: If
you find that Mr. Joness rights under the Alaska Human Rights Act
were violated, you may award him a fair amount to compensate for
emotional distress caused by that injury. The court defined the
Human Rights Act violation as termination motivated by racial or
sexual discrimination. Thus, the jurys award of non-economic
damages was to compensate Jones only for the emotional distress
he suffered due to his termination for discriminatory reasons.
But Jones also testified that he interpreted Ainsworths
memo as a threat and that it caused him to be afraid. And Joness
corrections expert confirmed that mere receipt of such a memo
would have had a profound effect on the individual who was
incarcerated, due to the extraordinary authority that
correctional employees have over inmates. Moreover, Jones
claimed that Ainsworths memo was just the culmination of an
abusive relationship. Jones testified that Ainsworth had made
earlier comments that frightened him, and he described an
incident during which Ainsworth made an unprovoked threat to hit
Jones with a broom handle and actually picked up the broom as if
to carry out the threat.
Because of the courts earlier dismissal of the IIED
claim, the State was successful in its argument to limit
emotional distress damages to those resulting from the
termination via the memo. And the State convinced the court to
give Instruction 14.5, which stated that Mr. Jones is not
entitled to emotional damages that he is claiming occurred before
he received the memorandum from Floyd Ainsworth dated August 4,
1997. Because the jury was expressly prevented from compensating
Jones for his distress resulting from Ainsworths course of
conduct before the termination, the courts assertion that
Instruction No. 14.5 did not preclude the jurys consideration of
Ainsworths earlier course of conduct in making its emotional
distress award is inaccurate.22
I also believe that the court is incorrect in
concluding that Jones inadequately preserved in the trial court
his claim to emotional distress damages for Ainsworths pre-
termination conduct by failing to object to instructions that
limited the scope of his claims or failing to argue the point in
his opposition to summary judgment and at trial. Joness counsel
objected at trial to the States argument for an instruction that
would limit Joness emotional distress damages to those suffered
after Jones received the memo:
MR. MOGEL: Your Honor, I believe Im
entitled to an instruction that Mr. Jones is
not entitled to any economic damages for the
time before he received the memorandum.
MR. VERMONT: No, emotional distress.
MR. MOGEL: No[ ] emotional distress
damages for the time before he received the
memorandum. The claim in this case is that
he was terminated and any distress, any
emotional distress would have to stem from
that termination.
THE COURT: Mr. Wendt?
MR. WENDT: I disagree. Its true he was
terminated and the termination according to
the complaint happened once. But, Your
Honor, the termination is the culmination of
what had occurred for months before that.
And as such, the activity before termination
is part of the termination. . . . This is
the actions of Floyd Ainsworth who was his
supervisor who terminated him and the actions
occurred before the termination and after the
termination, and emotional distress Mr. Jones
suffered as a result of Floyd Ainsworths
actions was culminated on August the 4th. I
dont feel the need to be limited to the date
of culmination of those actions when the
actions took place over a period of time.
(Emphasis added.)
Before finalizing its jury instructions, the superior
court ruled against Jones on this point, concluding that
the damages have to stem from the act itself
that forms the underlying basis of the
complaint. And the underlying basis of the
complaint, the cause of action, is the
termination and the damages would come after
that, not preceding it.
When the trial court clarified that its ruling was based on its
assumption that the Human Rights Act termination claim only
allowed damages from the date of termination, Joness counsel
responded I do object to that.
Later, when the superior court decided on the specific
language of the instruction that would implement its ruling,
Instruction 14.5, Jones objected to it for the previous reasons
stated, referring to his earlier argument regarding the States
request for an instruction limiting the damages to those
resulting from the termination. The superior court ruled that it
would give Instruction 14.5, subject to the underlying objection,
referring to Joness earlier argument that his emotional distress
damages should not be limited to those arising after receipt of
the memo.
Each time the subject of this limitation of damages
arose, Joness counsel was clear in his objection, and the trial
court understood his continuing and underlying objection to the
limitation on damages. At the time that the trial court decided
to give Instruction No. 9 and the other preliminary instructions
generally describing the claims to the jury, the State had not
yet made its request to limit emotional distress damages.
Certainly, there was ample opportunity for the trial court to
correct the final instructions that were given to the jury after
closing arguments. Instead, Instruction 14.5 was inserted over
Joness objection. Thus, it seems unfair for the court to
conclude that Jones failed to preserve properly his argument that
he was entitled to emotional distress damages beyond those
related to the termination memo.
Moreover, as Jones explains in his reply brief on
appeal, had he been permitted to pursue his IIED claim he would
have been able to present more evidence . . . at trial as well as
argu[e] more forcefully to the jury. Jones was not required in
his opposition to summary judgment on the IIED claim to develop
fully the basis for his claim for damages arising from Ainsworths
alleged intentional infliction of emotional distress; he was only
required to raise a genuine issue of material fact. And once the
IIED claim was dismissed at the summary judgment stage, Jones
likely felt constrained in his ability to present evidence
outside the scope of the termination incident. As the court
recognizes, the remaining Human Rights Act claim restricted Jones
to evidence and argument on damages that directly and naturally
resulted from the injury in question his termination.23 Thus,
once the IIED claim was dismissed from the case, Jones was
required to alter the structure and presentation of his case in
order to conform to that ruling. It thus hardly seems right to
fault Jones for focusing his presentation in the trial court on
the emotional distress damages he suffered as a result of the
August 4 termination memo.
Because I believe that the superior court erred in
granting summary judgment on the IIED claim, and because Jones
testified that he suffered emotional distress independent of that
resulting from the racially motivated termination, I am unable to
agree that the error in dismissing the IIED claim was harmless.
I would reverse and remand for a new trial on the IIED claim. I
therefore respectfully dissent.
_______________________________
1 Jones offered the following interpretation of the memo:
A sissy and cake-boy are each common
offensive terms for homosexual. . . . A mud-
duck is an offensive [term] for an individual
who engages in anal intercourse though
Plaintiff is of the belief that this is
simply a reference to the attractiveness of
his girlfriend. . . . Vanilla Ice was a white
entertainer who had adopted a superficial and
stereotypical black persona in his
performances and who was widely denounced by
the african-american community as a charlatan
and opportunist. The accusation of really
being white with a really good tan was
another racial affront attacking Mr. Joness
own racial and cultural identity through
demeaning characterization. . . . The
reference to driving a 1975 AMC Pacer is a
suggestion that Mr. Jones is worthy of only
the least desirable of material objects while
the suggestion that he seek employment as a
pots and pans man is an insulting
characterization of african-americans as
worthy of only menial jobs.
2 See AS 18.80.255.
3 Jones advanced several other claims that are not at
issue here and thus require no discussion.
4 Richardson v. Fairbanks N. Star Borough, 705 P.2d 454,
456 (Alaska 1985).
5 Id.
6 Lincoln v. Interior Regl Hous. Auth., 30 P.3d 582, 589
(Alaska 2001).
7 See Alaska R. Civ. P. 61; Dobos v. Ingersoll, 9 P.3d
1020, 1024 (Alaska 2000) (holding that under the harmless error
test, burden is on appellant to show prejudice).
8 It is well settled that the trial courts choice of a
particular legal theory does not define the scope of our
appellate review and that we may uphold the trial courts judgment
on any legal theory supported by the record even one that the
trial court expressly rejects. We have often relied on this rule
to resolve appeals on the most efficient available ground. See
Alaska Trademark Shellfish, LLC v. State, 91 P.3d 953, 956-57 &
n.11 (Alaska 2004) (citing cases).
9 828 P.2d 745, 760 (Alaska 1992).
10 AS 18.80.255 reads, in relevant part:
It is unlawful for the state or any of its
political subdivisions
(1) to refuse, withhold from, or deny to a
person any local, state, or federal funds,
services, goods, facilities, advantages, or
privileges because of race, religion, sex,
color, or national origin.
11 Loomis Electronic Protection, Inc. v. Schaefer, 549
P.2d 1341, 1344 (Alaska 1976) (quoting Curtis v. Loether, 415
U.S. 189, 194-96 (1974)).
12 Johnson v. Alaska State Dept of Fish & Game, 836 P.2d
896, 915 (Alaska 1991) ([R]ecovery of compensatory damages for
mental anguish [is for] all those damages directly and naturally
resulting, in the ordinary course of events, from the injury in
question. ) (quoting Mitchell v. Seaboard Sys. R.R., 883 F.2d
451, 453 (6th Cir. 1989)).
13 Joness IIED claim did not include a claim for punitive
damages.
14 Cf. Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska
2004) (Neither the trial court nor the movants should be required
to guess whether factual evidence might support defenses that are
not identified or relied on.).
15 The dissent criticizes this opinion as seeming to fault
Jones for focusing his presentation in the trial court on the
emotional distress damages he suffered as a result of the
August 4 termination memo. Dissenting Op. at 37. But we ascribe
no fault to Jones; we simply base our decision on the arguments
that he has chosen to advance on this point.
16 We exercise de novo review in considering challenges to
a trial courts rulings on jury instructions. Johns Heating Serv.
v. Lamb, 46 P.3d 1024, 1030 (Alaska 2002).
17 AS 18.80.255(1).
18 Jury Instruction No. 9 provided:
Mr. Jones also makes a claim for past
emotional distress. If you find that Mr.
Joness rights under the Alaska Human Rights
Act were violated, you may award him a fair
amount to compensate for emotional distress
caused by that injury.
Such an award should fairly compensate
Mr. Jones for actual emotional distress from
the date of any violation of his rights to
the date of trial[.]
19 According to Instruction No. 4, [t]o establish that his
rights were violated under that Act, Jones had to prove:
(1) . . . that he was terminated from his
position as a barber in connection with the
memorandum . . . given to him by Floyd
Ainsworth; and
(2) . . . that racial or sexual
discrimination was a motivating factor in the
decision to terminate his employment.
20 Furthermore, we note that Instruction No. 14.5 did not
completely bar Jones from relying on evidence of Ainsworths
hostile or menacing pre-termination conduct toward Jones. To the
extent that this pre-termination conduct might have made Jones
more vulnerable to emotional distress, thus heightening or
prolonging the distress that he suffered because of the August 4
memo, the pre-termination conduct would have been relevant. In
our view, Instruction No. 14.5 would not have precluded its
consideration.
21 Alaska R. Civ. P. 68(a).
22 Id. at (b). The percentage of fees to be paid under
the rule is determined by a sliding scale that varies depending
on how far in advance of trial the offer was made. Id.
23 See Steiner v. Farnsworth, 601 P.2d 266, 270 n.4
(Alaska 1979) (describing proper method for comparing offer of
judgment to offerees judgment).
24 967 P.2d 79, 89-90 (Alaska 1998).
25 Id.
26 On issues involving enhancement of fees under Rule
82(b)(3), we review only to determine if the trial courts
decision was manifestly unreasonable. Glamann v. Kirk, 29 P.3d
255, 265-66 (Alaska 2001) (citations omitted). Here, although
Jones did submit a conclusory discussion of the enhancement
factors to the superior court, that discussion provides no
meaningful basis for concluding that the superior courts award of
fees was manifestly unreasonable.
1 Slip Op. at 6-7.
2 Lockhart v. Fretwell, 506 U.S. 364, 370 n.2 (1993)
(emphasis in original). See also Wyatt v. State, 981 P.2d 109,
112 (Alaska 1999) (If the trial court erred in its ruling, we
then determine whether the error was harmless. (Emphasis
added.)). While we do not consistently utilize this approach,
see, e.g., Cummins, Inc. v. Nelson, 115 P.3d 536, 546-47 (Alaska
2005), I believe that where the trial court clearly has not
erred, such as here, we should eschew harmless error analysis.
3 McGrew v. State, Dept of Health & Soc. Servs., 106 P.3d
319, 324 (Alaska 2005) (quoting Lincoln v. Interior Regl Hous.
Auth., 30 P.3d 582, 589 (Alaska 2001)). Regarding these
elements, the trial court must make a threshold determination
whether the severity of the emotional distress and the conduct of
the offending party warrant a claim. Id. at 325 (quoting
Lincoln, 30 P.3d at 589). We review these threshold findings for
an abuse of discretion. Id.
4 Lybrand v. Trask, 31 P.3d 801, 803 (Alaska 2001)
(quoting Odom v. Fairbanks Meml Hosp., 999 P.2d 123, 133 (Alaska
2000)).
5 Fyffe v. Wright, 93 P.3d 444, 456 (Alaska 2004)
(quoting Teamsters Local 959 v. Wells, 749 P.2d 349, 359 n.14
(Alaska 1988)). This definition of severe emotional distress
accords with the Second Restatement. See Restatement (Second) of
Torts 46, cmt. j (1965).
6 We review the superior courts decision as to whether a
plaintiff met the threshold burden of showing severe emotional
distress under the abuse of discretion standard. Lincoln, 30
P.2d at 589.
7 Dissenting Op. at 26-28.
8 Id. at 27.
9 The other pieces of evidence deal either with actions
that Ainsworth allegedly took against Jones, not the effect of
those actions on Jones (points 1, 2, 3, and 5), or an experts
opinion that Ainsworths actions could have caused an adverse
effect on Jones (points 6, 7, 8, and 9). See below for more
discussion of this experts opinion.
10 We have held that examples of severe emotional distress
include neuroses, psychoses, chronic depression, phobia and
shock. However, temporary fright, disappointment or regret does
not suffice under this standard. Chizmar v. Mackie, 896 P.2d
196, 204-05 (Alaska 1995) (quoting Lejeune v. Rayne Branch Hosp.,
556 So. 2d 559, 570 (La. 1990)).
11 At the argument on summary judgment, Judge Gleason
asked counsel for Jones what evidence had been produced that
Jones suffered severe emotional distress. Counsel responded that
Joness deposition testimony certainly indicated that he suffered
emotional distress. When the court asked for the part of the
deposition counsel was referring to, counsel was unable to locate
it, but stated, It is absolutely true that Mr. Jones did not go
into detail regarding the emotional distress but he testified
that it certainly disturbed him. Judge Gleason followed with,
But nothing to indicate that he was severely emotionally
distressed? to which counsel conceded, Well, . . . the word
severely didnt come out of Mr. Joness mouth.
In announcing her findings on whether plaintiff met his
burden of producing some evidence of severe emotional distress,
Judge Gleason found that plaintiff has failed to establish that
there is a genuine issue of material fact as to whether there was
severe emotional distress.
12 981 F.2d 916 (7th Cir. 1982), cert. denied 510 U.S. 812
(1993).
13 Id. at 932. On this issue whether the outrageousness
or maliciousness of the defendants action may substitute for the
lack of showing of severe emotional distress on the plaintiffs
part we have said:
It has not been enough that the defendant has
acted with an intent which is tortious or
even criminal, or that he has intended to
inflict emotional distress, or even that his
conduct has been characterized by malice, or
a degree of aggravation which would entitle
the plaintiff to punitive damages for another
tort. Liability has been found only where
the conduct has been 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. The
liability clearly does not extend to mere
insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.
Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1289 (Alaska 2001)
(emphasis added), (quoting Rest. (Second) of Torts 46(1) cmt. d
(1965)).
14 981 F.2d at 933.
15 Id. at 931.
16 Id.
17 Id.
18 Id.
19 Id.
20 231 F.3d 383 (7th Cir. 2000).
21 The dissent places great weight on the seriousness of
the defendants acts, arguing that Ainsworths acts in the present
case were significantly more serious than the defendants acts in
Alston v. Bird. Dissenting Op. at 32. But this suggests a false
equivalence between the plaintiffs claims of emotional distress
with the defendants acts that allegedly caused the distress. No
doubt Ainsworths acts may fairly be described as extreme, but
Joness actual claims of emotional distress resulting from those
acts cannot accurately be so described. The law requires that
the distress suffered must be extreme before the action lies.
22 231 F.2d at 389.
23 Id. at 387. The court noted that on cross-examination
Alston acknowledged that he was not abusing alcohol, had never
sought counseling, and first became engaged to the woman in
question a year after his termination. Id. at 388.
24 Id. at 387.
25 Officer Gilliam had been earlier dismissed from the
case, and the court reasoned that it could not hold the state
vicariously liable for the acts of an employee who had not first
been held liable for the underlying conduct. That conclusion
seems correct to me.
26 See Richardson v. Fairbanks N. Star Borough, 705 P.2d
454, 457 n.6 (Alaska 1985) (expert medical testimony is most
effective method of demonstrating severe distress, but it is not
exclusive method).
1 Richardson v. Fairbanks N. Star Borough, 705 P.2d 454,
456 (Alaska 1985); see also Lincoln v. Interior Regl Hous. Auth.,
30 P.3d 582 (Alaska 2001) (holding failure of the trial court to
make threshold decision about outrageousness of conduct required
remand of IIED claim for that determination).
2 We have previously held that an isolated incident . . .
may . . . be sufficiently egregious to satisfy the outrageousness
threshold. Lybrand v. Trask, 31 P.3d 801, 805 n.8 (Alaska 2001).
3 Concurring Op. at 19 n.9.
4 Holland v. Union Co. of California, 993 P.2d 1026, 1029
(Alaska 1999).
5 Concurring Op. at 19.
6 See, e.g., United States v. Balistrieri, 981 F.2d 916,
932 (7th Cir. 1992), cert. denied, 510 U.S. 812 (1993) (inference
of distress permissible in housing discrimination case); Secy,
U.S. Dept of Housing & Urban Dev. ex rel. Herron v. Blackwell,
908 F.2d 864, 872-73 (11th Cir. 1990) (damages from emotional
distress may be inferred from circumstances as well as proved by
testimony); Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d
548, 552-53 (9th Cir. 1980) (same); see also Hobson v. Wilson,
737 F.2d 1, 61-62 & n.173 (D.C. Cir. 1984), cert. denied, 470
U.S. 1084 (1985), overruled in part on other grounds by
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163 (1993) (identifying emotional
distress as an interest protected by common law tort rules, and
declining to hold that some quantum of compensable emotional
distress may not be inferred from the circumstances and remanding
the issue for consideration by a jury of whether the conduct
justified such distress where the conduct included violations of
the First Amendment); Doe v. District of Columbia, 697 F.2d 1115,
1124 n.24 (D.C. Cir. 1983) (observing that under certain
circumstances infliction of emotional distress may be inferred
from the circumstances of the violation, particularly in the
context of substantive rights such as the Eighth Amendment, even
though such inferences may not be permissible in the procedural
due process context as the United States Supreme Court held in
Carey v. Piphus, 435 U.S. 247 (1978)).
7 Balistrieri, 981 F.2d at 932.
8 Id. at 933.
9 Phiffer, 648 F.2d at 552-53.
10 Id. at 550, 553; see also Johnson v. Hale, 940 F.2d
1192, 1193 (9th Cir. 1991) (citing Phiffer for proposition that
damages may be awarded for humiliation and emotional distress
established by testimony or inferred from the circumstances).
11 646 F. Supp. 884, 890 (D. D.C. 1986) (quoting Hobson v.
Wilson, 737 F.2d at 61 n.173 (citing Doe, 697 F.2d at 1124 n.24).
12 Hobson v. Brennan, 646 F. Supp. at 890.
13 Id.
14 See Balistrieri, 981 F.2d at 932 (quoting Seaton v. Sky
Realty Co., 491 F.2d 634, 636 (7th Cir. 1974) (upholding a
damages award based on racial indignity where the only direct
evidence of emotional distress was testimony that I was
humiliated. I was intimidated, not only as a person but as a
man. He stripped me of my right as a father to my kids)); see
also Webner v. Titan Distrib., Inc., 267 F.3d 828, 836 (8th Cir.
2001) (explaining that a plaintiffs own testimony may provide
ample evidence when heard in combination with the circumstances
surrounding the plaintiffs termination where the plaintiff was
terminated because of his disability); Krueger v. Cuomo, 115 F.3d
487, 492 (7th Cir. 1997) (noting that [i]t demands little in the
way of either empathy or imagination to appreciate the
predicament of a woman who is harassed in full view of her
children . . . . and concluding that an inference of distress is
permitted with minimal direct evidence apart from her testimony).
15 Balistrieri, 981 F.2d at 933; see also Wahi v. N. Trust
Corp., 2002 WL 31133205, at *7 (N.D. Ill. 2002) (testimony alone
is sufficient to support an award of damages); Kronstedt v.
Equifax, 2001 WL 34124783, at *13 (W.D. Wis. 2001) (concluding
that evaluation of emotional distress claim stemming from release
of inaccurate and derogatory credit information on credit report
is best left to the jury); Pumphrey v. Stephen Homes, Inc., 1994
WL 150947, at *7 (D. Md.1994) (testimony alone sufficient to
support award).
16 231 F.3d 383 (7th Cir. 2000).
17 231 F.3d at 386-87.
18 Id. at 389.
19 Id. at 389.
20 Id.
p p. at 13, n.20.oll, 9 P.3d 1020, 1024 (Alaska 2000)
(quoting Alyeska Pipeline Serv. Co. v. OKelley, 645 P.2d 767, 773
(Alaska 1982)).
22 Slip Op. at 13, n.20.
23 Slip Op. at 12; see Johnson v. Alaska State Dept of
Fish & Game, 836 P.2d 896, 915 (Alaska 1991).
