Opinion
No. CV-04-1210-PCT-LOA.
February 21, 2007
ORDER
This order addresses solely whether Plaintiffs' claims of intentional inflection of emotional distress ("IIED"), alleged in Count Six of the Third Amended Complaint, survive Defendants' Motion for Summary Judgment on Plaintiffs' Intentional Infliction of Emotional Distress Claim (Count VI) (docket # 353), filed on June 30, 2006. Because these tort claims are not matters governed by the U.S. Constitution or federal law, the district court must apply Arizona substantive law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938).
Oral argument on the IIED claims was scheduled for November 28, 2006. Instead of hearing oral argument on this date and as a result of Plaintiffs' procedural defects, the Court conducted an informal conference with counsel and gave Plaintiffs a very limited second opportunity to comply with LRCiv 56.1(b) and address their deficient Statement of Facts. Both sides were also permitted to provide additional briefing on legal issues solely related to IIED claims under Arizona law. Plaintiffs thereafter failed to timely file a supplemental citation to the record so the Court will now "rul[e] upon the pending dispositive motions with the mindset that if Plaintiffs have not specifically cited where in the record such factual allegation exists, it must not exist." (docket # 394 at 3) Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1031 (9th Cir. 2001) ("The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found."); Albrechtsen v. Board of Regents of University of Wisconsin System, 309 F.3d 433, 436 (7th Cir. 2002) ("`Judges are not like pigs, hunting for truffles in' the record.") (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
LRCiv 56.1(b) provides, in part, that "for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed. . . ."
Those issues are (1) the appropriate Arizona statute of limitations on a claim of intentional infliction of emotional distress, and (2) whether only expert testimony, e.g., a physician or psychologist, may create a question of fact that a plaintiff sustained emotional distress caused by a defendant's conduct and, if not, whether a party or other non-expert witness may appropriately testify regarding personal opinions, observations, personal experiences, such as, commonly-known symptoms of emotional distress, such as, nightmares, caused by a defendant's conduct and/or failure to act when required to do so. (docket # 394)
Orders filed on December 21, 2006 and January 9, 2007. (docket # 396 and # 403)
Oral argument would not aid the Court's decisional process. Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999). After considering all briefing including the supplemental briefing, the parties' Statements of Facts, relevant Arizona and other persuasive case law, the Court concludes that no genuine disputes of material fact exist whether Defendants are liable to any of the Plaintiffs for IIED and, therefore, Defendants are entitled to summary judgment on all IIED claims as a matter of law.
FACTUAL BACKGROUND
The Court incorporates by this reference the relevant factual discussion set forth in the Court's November 2, 2006 order. Although possibly relevant to other claims, the facts identified herein are identified for purposes of the IIED claims only.
This sexual harassment lawsuit was filed on June 14, 2004 by twenty-one (21) women (collectively "Plaintiffs") who currently work or worked at the Home Depot store # 452 ("Home Depot" or "the store") in Prescott, Arizona, alleging that they were subjected to a hostile work environment by Home Depot, its male store manager and two assistant male store managers, and five male co-employees in violation of Title VII of the Civil Rights Act of 1964 ("the Act"). (docket # 1 and # 47) Plaintiffs claim that Home Depot, its three managers, and several co-employees "exposed [Plaintiffs] to systematic and continuous [inappropriate] sexual references, innuendos, jokes, demonstrations[,] verbal and physical abuse by male employees, including being exposed on a regular basis to explicit and graphic sexual references, demonstrations and sexually suggestive and provocative language." (docket # 47 at 5) Plaintiffs contend that they were thereby subjected to a "hostile work environment, as defined by the Act, because of their gender." (Id. at 6) Plaintiffs further claim that after they reported the inappropriate behavior to the store's managers and asked that it be stopped, Defendants failed "to intervene, take corrective action against the offending male employees, and otherwise protect [Plaintiffs] from continued harassment." (Id.) Plaintiffs assert that the harassment began shortly before the store opened to the public in December, 1997, and continued to March 23, 2005, when Plaintiffs filed their Third Amended Complaint.
Richard Nelson, Dave Musen, Alan Dempsey, Kenny Anderson and Bob Radcliff were initially named as defendants but were dismissed from this lawsuit by stipulation on July 14, 2005. (docket # 108) Phyllis Herchenroeder, a plaintiff, was also dismissed by stipulation on January 21, 2005. (docket # 29)
The Court will not address the Defendants' liability, if any, for any third-party, non-employee (customer) sexual harassment to Plaintiffs as such claims have not been alleged in the Third Party Complaint.
Count Six, the IIED claim, alleges that "over many years," Defendants "knew or should have known that the Individual Defendants' conduct was repulsive, shocking and harassing," that such conduct "was extreme and outrageous, [that] Defendants intended to cause emotional distress or recklessly disregarded the likelihood that Plaintiffs would be distressed from their conduct, and that Defendants' conduct did cause severe emotional distress." (docket #47, ¶¶ 78 — 80) Defendants' Motion and Reply (docket # 371) on the IIED claims go through the record with factual specificity as to each of the twenty-one Plaintiffs. Plaintiffs' Response (docket # 362) does likewise. The Court has reviewed and considered each Plaintiff's IIED claim individually in light of the parties' allegations and briefing.
Plaintiffs contend that during some of the time Plaintiffs allege they were subjected to extreme and outrageous conduct, the Prescott Home Depot was subject to a consent decree ("Butler Decree"). In an action entitled Butler, et al. v. Home Depot, Inc., Civil Action No. C94-4335 SI, brought in the United States District Court for the Northern District of California, allegations were made that Home Depot engaged in a pattern or practice of sexual harassment discrimination on the basis of gender. (Plaintiffs' Statement of Facts ("PSOF") ¶ 69) The Decree, entered on January 14, 1998, outlined several corrective measures and preventative steps that Home Depot's Western Region stores were required to make. (PSOF ¶ 70; Exhibit ("Exh.") 22) The California District Court directed that the provisions of the Butler Decree remain in effect for five years after its effective date, ending on January 14, 2003, which was later shortened to January 14, 2002. (PSOF ¶ 71) The Decree included provisions for the prevention of sexual harassment at all the Home Depot stores in the western region of the United States which included provisions that Home Depot shall provide to each of its officers, directors, and associates in the West Coast Division a copy of the Notice and Summary of Consent Decree, explaining the Company's duties and obligations under the Butler Decree, (PSOF ¶ 74), and that Home Depot shall provide progress reports to designated counsel concerning Home Depot's compliance with the Decree's requirements. (PSOF ¶ 75)
Plaintiffs contend that from December 1997 until January 2002, while the provisions of the Butler Decree were in force, Plaintiffs complained of sexual harassment, both verbally and in writing, primarily to male supervisors, including Store Managers Dave Musen, his successor, Defendant Felix Pareja, and other assistant store managers. (PSOF ¶ 24; docket # 362 at 4) Moreover, Plaintiffs assert that the Prescott Home Depot had no person who served in any human resource capacity for the first two months of operation (January to March 1998), and did not have a human resource manager ("HRM") until January 2002, four years after the store opened. (PSOF ¶ 25) Notwithstanding the lack of an HRM for four years after its opening, the Prescott Home Depot assigned employees to assume the responsibility for human resource-type functions from March 1998 to January 2002. (PSOF ¶ 26) Plaintiffs allege they regularly complained to the Prescott Home Depot's human resource administrators/managers; however, the sexual harassment did not cease, and, in many instances according to Plaintiffs, intensified after Plaintiffs complained about it. (PSOF ¶ 27) Plaintiffs also provide some evidence that Defendant John Johnson, an Assistant Store Manager, and Priscilla Ingolia ("Ingolia"), who both assumed HRM responsibilities at different times, never received the training or a copy of the Butler Decree required by the Decree itself. (docket # 362 at 8-10) Plaintiffs contend that Ingolia was promoted to the position of Human Resource Manager in approximately January, 2002. (PSOF ¶ 61; Exh. 42 at 82:22-25)
Also pertinent to Plaintiffs' IIED claims, according to Plaintiffs, is that the Prescott Home Depot had, at all relevant times, various policies and procedures governing employee conduct in the workplace, including: 1) an Harassment and Discrimination Policy; 2) a Respect Policy; and 3) a Code of Conduct. (PSOF ¶ 91) Plaintiffs claim that Home Depot's collective policies and procedures on harassment, discrimination, respect, and other areas governing conduct by associates and managers are contained in the Guide distributed to new associates at the time of hire. (PSOF ¶ 92) (docket # 362 at 11)
Defendants' Motion for Summary Judgment on Count Six contends "that none of the alleged acts [of sexual harassment] rise to the level of `extreme,' `outrageous,' `atrocious,' or `utterly intolerable in a civilized community' — the standard that Arizona law demands for an [IIED] claim." (docket # 353 at 21) The Motion discusses the individual factual allegations and claims for each Plaintiff and argues that the specific conduct alleged for each Plaintiff does not reach the level of extreme and outrageous behavior necessary to create liability under Arizona law and/or that each Plaintiff did not suffer the requisite degree of severe emotional distress required under Arizona law to sustain an IIED claim. (Id. at 21, 24)
SUMMARY JUDGMENT
This Court sufficiently identified the controlling standard and case law on summary judgment in its November 2, 2006 order which will not be entirely duplicated herein. Particularly worth repeating, however, is the following.
The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), FRCvP; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356 (1986); Brinson v. Lind Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). However, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor." Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). In evaluating the evidence submitted by both parties, all evidence and inferences to be drawn therefrom must be construed in the light most favorable to the nonmoving party. T.W. Elec. Services v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630-31 (9th Cir. 1987).
Whatever facts which may establish a genuine issue of fact mustboth be in the district court's file and set forth in the opposing pleadings and statement of facts. Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1029 (9th Cir. 2001). The trial court:
may determine whether there is a genuine issue of fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers. Though the court has discretion in appropriate circumstances to consider other materials, it need not do so. The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.Id. at 1031 (emphasis added).
Additionally, on a motion for summary judgment, the trial court is not permitted to weigh the evidence, pass upon credibility, or speculate as to the ultimate findings of fact. Pepper Tanner, Inc. v. Shamrock Broadcasting, Inc., 563 F.2d 391, 393 (9th Cir. 1977). Moreover, in considering a motion for summary judgment on a diversity action, the district court looks to the relevant state substantive law. Anderson, 477 U.S. at 248. The parties agree that the IIED claims are governed by Arizona substantive law.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
A claim for intentional infliction of emotional distress, also called the "Tort of Outrage," requires proof of three elements: "first, the conduct of the defendant must be extreme and outrageous; second, the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct; and third, severe emotional distress must indeed occur as a result of defendant's conduct." Citizen Publishing Co. v. Miller, 210 Ariz. 513, 516, 115 P.3d 107, 110 (Ariz. 2005) (citing Ford v. Revlon, 153 Ariz. 38, 43, 734 P.2d 580, 585 (Ariz. 1987) (upholding jury verdict for the plaintiff where defendant employer's failure to address plaintiff's repeated complaints of physical assault and sexual harassment led plaintiff to attempt suicide) (citing Restatement (Second) of Torts § 46 (1965)).
1. Extreme and Outrageous Conduct
Under the first element, a plaintiff "may recover for [IIED] only where the defendant's acts are `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.'" Patton v. First Fed. Sav. Loan Ass'n of Phoenix, 578 P.2d 152, 155 (Ariz. 1978) (quoting Cluff v. Farmers Ins. Exch., 10 Ariz.App. 560, 460 P.2d 666, 668 (1969), overruled on other grounds, Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781, 784 (1989); Ford v. Revlon, 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987); Johnson v. McDonald, 197 Ariz. 155, 160, 3 P.3d 1075, 1080 (Ariz. 1999).
In Arizona, "conduct necessary to sustain an [IIED] claim falls at the very extreme edge of possible conduct." Watts v. Golden Age Nursing Home, 127 Ariz. 255, 258, 619 P.2d 1032, 1035 (Ariz. 1980) (upholding directed verdict where the defendant nursing home failed to notify the plaintiff that her husband was terminally ill). An IIED "claim cannot arise out of conduct which merely hurts one's feelings." Cluff, 10 Ariz.App. at 562, 460 P.2d at 668. "Even if a defendant's conduct is unjustifiable, it does not necessarily rise to the level of `atrocious' and `beyond all possible bounds of decency' that would cause an average member of the community to believe it is `outrageous.'" Nelson v. Phoenix Resort Corp., 181 Ariz. 188, 199, 888 P.2d 1375, 1386 (Ariz.Ct.App. 1994); Lucchesi v. Frederic N. Stimmel, M.D., 149 Ariz. 76, 716 P.2d 1013 (Ariz. 1986) (holding that doctor's alleged misconduct leading to the decapitation of a baby during a high-risk delivery created a jury question on an IIED claim). "`Generally, [an IIED claim] is one in which the recitation of facts to an average member of the community would arouse his [or her] resentment against the actor, and lead him [or her] to exclaim `Outrageous!'" Cluff, 10 Ariz. App. at 562, 460 P.2d at 668 (citing Restatement (Second) Torts Section 46, comment (d) (1965)). A plaintiff bears the burden of proving that a defendant's conduct was extreme and outrageous and caused plaintiff severe emotional distress; however, in Arizona physical injury need not occur. Pankratz v. Willis, 155 Ariz. 8, 744 P.2d 1182 (Ariz.Ct.App. 1987); Nelson, 181 Ariz. at 199, 888 P.2d at 1386.
Not every instance of sexual harassment, even if actionable under Title VII, rises to the level of intentional infliction of emotional distress. Stingley v. Arizona, 796 F. Supp. 424, 431 (D. Ariz. 1992). "[Title VII] discrimination occurs at a much lower threshold of inappropriate conduct than the threshold required for the tort of intentional infliction of emotional distress. Thus, the fact that there is a Title VII hostile environment does not necessarily support a claim of [IIED]." Id. at 431. The Arizona Supreme Court in Ford, however, stated in dicta that "[IIED] is often based upon claims of sexual harassment," citing 1 L. Larson, Employment Discrimination § 41.67(b), at 8-148 (1984), 734 P.2d at 585, but at a later time the Arizona Court of Appeals concurred with the Third Circuit that "[i]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 554, 905 P.2d 559, 563 (1995) (citing Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir. 1988), cert. denied, 498 U.S. 811 (1990).
Citing comment h to the Restatement (Second) of Torts § 46, the Arizona Supreme Court in Lucchesi stated:
It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable [persons] may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.Lucchesi, 149 Ariz. at 79, 716 P.2d at 1016 (emphasis in original). The trial court, therefore, acts as society's conscience to determine whether alleged acts "can be considered as extreme and outrageous conduct in order to state a claim for relief." Cluff, 10 Ariz.App. at 562, 460 at 668.
Recent employment discrimination cases decided in the United States District Court for the District of Arizona are persuasive on whether the alleged conduct meets the high criteria for the first element: whether the alleged conduct was "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" to warrant a jury trial. Stingley, 796 F. Supp. at 424 (male co-workers calling plaintiff the nickname "I.B.T.," an abbreviation for "itty bitty titties"; co-employee allegedly physically poking at plaintiff's buttock twice with a plastic fork, explaining that he was checking to see if "the meat was done"; and on one occasion, a male coworker walking up behind plaintiff and snapping her bra were insufficient to create a jury question on IIED claim especially when plaintiff complained to her employer and the offenders were terminated, demoted and reprimanded); also see Tempesta v. Motorola, Inc., 92 F.Supp.2d 973, 986-87 (D.Ariz. 1999); Mosakowski v. PSS World Med., Inc., 329 F.Supp.2d 1112, 1131 (D.Ariz. 2003); Coffin v. Safeway, Inc., 323 F. Supp.2d 997, 1007 (D. Ariz. 2004) (refusing to dismiss an IIED claim based on sexual harassment because plaintiff met minimum pleading requirements); Higby v. Newby, No. CV-03-0899-PHX-SMM, 2006 WL 359862 (D. Ariz. February 15, 2006) (co-employee's alleged conduct included sexual comments to plaintiff that he wanted to grab her breasts and put his face between them, shake his head back and forth, and make a noise; actually grabbing plaintiff and pulling her down onto his lap in the employee lounge; and on a different occasion, grabbing plaintiff from behind under her breasts, lifting her up and rubbing his penis against her buttocks for 40 seconds created a question of fact on extreme and outrageous conduct but because plaintiff did not show that she suffered "severe" emotional distress, summary judgment was granted on the IIED claim); Walls v. Sonora Behavioral Health Hosp., No. CV-05-201-TUC-CKJ, 2006 WL 1127148 (D. Ariz. 2006) (complaint stated IIED claim with allegations that co-employee's/offender's conduct included asking plaintiff to have sex with him in his "fuck-mobile" in the parking lot of the employer's premises; touching plaintiff's shoulder suggestively, telling her "Let me touch you" after plaintiff complained of his behavior; licking his tongue suggestively while looking at plaintiff; allegedly sexually assaulting plaintiff's daughter, also a co-employee, at a time when the offender allegedly knew plaintiff's other daughter was hospitalized and later died and plaintiff was emotionally vulnerable).
Summary judgment on this plaintiff's IIED claim was ultimately granted (CV-03-0470-PHX-NVW) by the newly-assigned district judge on August 26, 2006. Finding that the co-employee's offensive conduct did not rise to the level of egregious conduct that Arizona courts have found sufficient to submit an IIED claim to a jury, even though the district judge explained that the allegations were sufficient to survive a motion to dismiss in 2004. See, 323 F. Supp.2d 997 (D. Ariz. 2004). Judgment was entered against plaintiff on August 26, 2006.
2. Severe Emotional Distress
In considering the third prong of an IIED claim — that a plaintiff suffered "severe emotional distress" — terms that are not not readily capable of precise legal definition, Arizona courts apply a case-by-case analysis. Lucchesi, 716 P.2d at 1016. "A line of demarcation should be drawn between conduct likely to cause mere `emotional distress' and that causing `severe emotional distress.'" Midas Muffler Shop v. Ellison, 650 P.2d 496, 501 (Ariz.App. 1982). "Crying, being stressed and upset, and having headaches [are] not enough to establish severe harm." E.E.O.C. v. GLC Restaurants, Inc., 2006 WL 3052224 at*9 (D. Ariz. 2006) (citing Spratt v. Northern Automotive Corp., 958 F.Supp. 456, 461 (D.Ariz. 1996)). "Nor is difficulty sleeping sufficient." Id. (citing Midas Muffler Shop, 650 P.2d at 501). "Shock, stress, moodiness, and estrangement from friends and coworkers [are] not severe" enough emotional distress to warrant an IIED claim. Id. (citing Bodett v. Coxcom, 366 F.3d 736, 747 (9th Cir. 2004). "In contrast, anxiety that results in physical symptoms such as high blood pressure, chest pains, fatigue, and dizziness constitute severe emotional distress." Id. (citing Ford, 734 P.2d at 583). Anger and depression coupled with physical ailments such as headaches and hemorrhoids as a result of losing contact with one's child have also been found to constitute severe emotional distress. Id. (citing Pankratz, 744 P.2d at 1191).
In E.E.O.C. v. GLC Restaurants, Inc., the district judge was confronted with four minors who suffered from various symptoms that they related to the adult co-employee/offender's workplace conduct: depression, anxiety, dreams of the offender touching them, sleeping and eating problems, medical treatment for depression, prescriptions for anti-depressants and sleeping pills, recommendations to consult a counselor or psychiatrist, distrust of men, and physical symptoms, such as, bloody nose, and vomiting four or five times. The district judge found that "Plaintiffs' emotional effects approach the line of demarcation between emotional distress and severe emotional distress, but they do not cross it." GLC Restaurants, Inc., 2006 WL 3052224 at *9. Summary judgment was granted against all four Plaintiffs on their IIED claim because the Plaintiffs failed to create a question of fact on the third prong.
3. The Statute of Limitations on an Arizona IIED Claim
The Arizona statute of limitations for a personal injury action is two years, commencing on the date the action accrues. A.R.S. § 12-542(1). Arizona courts have concluded that the two-year limitations period found in A.R.S. § 12-542 applies to IIED claims. Hansen v. Stoll, 130 Ariz. 454, 460, 636 P.2d 1236, 1242 (Ariz.Ct.App. 1981); Orr v. Bank of America, 285 F.3d 764, 780-81 (9th Cir. 2002).
As an affirmative defense, a statute of limitations defense may be waived if not plead affirmatively. Ashton v. Glaze, 95 F.2d 427 (9th Cir. 1938); Rule 8(c), FED.R.CIV.P.; Sparks v. Republic National Life Ins. Co., 132 Ariz. 529, 541, 647 P.2d 1127, 1139 (1982), cert. denied 459 U.S. 1070 (1982). Defendants' Answers have sufficiently raised this defense: "Some or all of Plaintiffs' claims are barred by the applicable statute of limitations." (docket # 67, # 71, # 73, and # 74)
The purpose of the statute of limitations is to "protect defendants and the courts from litigation of stale claims in which `plaintiffs have slept on their rights and evidence may have been lost or witnesses' memories faded.'" Nolde v. Frankie, 192 Ariz. 276, 279, 964 P.2d 477, 480 (1998) ( en banc) (quoting Brooks v. Southern Pac. Co., 105 Ariz. 442, 444, 466 P.2d 736, 738 (1970)). However, to prevent defendants from using the statute of limitations as "a shield for inequity," Arizona courts recognize certain equitable exceptions to the statute of limitations when necessary to prevent injustice. Nolde, 192 Ariz. 276, 279, 964 P.2d 477, 480 (internal citations omitted). Examples of equitable exceptions include estoppel by inducement which applies when a defendant induces a plaintiff to forbear filing suit, id. at 280, 481, a defendant's fraudulent concealment of the cause of action and any legal disability of the plaintiff. Hosagai v. Kadota, 145 Ariz. 227, 700 P.2d 1327 (1985).
Plaintiffs' Memorandum of Law (docket # 398), filed December 21, 2006, raises an interesting issue whether an IIED claim is a "continuing tort" so that the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases, citing, among others, Anderson v. State, 88 Haw. 241, 965 P.2d 783, 790 (App. 1998); also see Curtis v. Firth, 123 Idaho 598, 850 P.2d 749, 754 (1993) (a claim for IIED was a continuing tort for purposes of a statute of limitations).
No Arizona appellate court to date has directly addressed whether an IIED claim is a continuing tort and, if so, what effect such tort would have on conduct occurring outside the two-year limitations period. Nevertheless, in a sexual abuse case entitled Floyd v. Donahue, 186 Ariz. 409, 923 P.2d 875 (Ct.App. 1996), the Arizona Court of Appeals stated in dicta that it would "agree that under certain conditions a tort is continuous, and in such cases the limitations period does not commence until the date of the last tortious act,"(citing Garcia v. Sumrall, 58 Ariz. 526, 533, 121 P.2d 640, 643 (1942) (a case involving trespass to property)). However, the Floyd court determined that the continuing tort rule did not apply in that case because each claimed act was a separate assault causing separate as well as cumulative injury.
The Court will not engage in the unnecessary analysis whether an IIED claim is a continuing tort under Arizona law because its ruling herein on other well-settled issues of law is dispositive and this issue was not sufficiently raised and argued by the parties in their moving and responsive briefing.
In this case, neither side initially addressed in their briefing the statute of limitations applicable to Plaintiffs' IIED claims. Because some of the Plaintiffs' allegations are based on conduct dating back to 1997 but suit was not filed until June 14, 2004, there appears to be a statute of limitations issue on some of Plaintiffs' IIED claims. The Court, therefore, ordered the parties to submit limited simultaneous supplemental briefing on this issue discussing the applicable statute of limitations but only as to Plaintiffs Betty Ann St. George, Robbin Billingsley, Dawn Hixenbaugh, Diane Wickline, Janet Reavis, and Abbey Bromley. The Court now concludes that it is not necessary to conduct a limitations analysis on these Plaintiffs' IIED claims because its ruling herein on other well-settled issues under Arizona law is dispositive.
DISCUSSION
The Court has painstakingly examined the alleged conduct of all Defendants vis a vis each Plaintiff and concludes that all Plaintiffs except six, viz., Betty Ann St. George, Robbin Billingsley, Dawn Hixenbaugh, Diane Wickline, Janet Reavis, and Abbey Bromley, have not created a colorable question of fact whether the conduct of Defendants, either jointly or collectively, was "`so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and [is] regarded as atrocious and utterly intolerable in a civilized community.'" Patton, 578 P.2d at 155. Even in the presence of the Butler decree, the conduct, if true as alleged by the other Plaintiffs, was certainly rude, sophomoric, crude, disrespectful and even deplorable or criminal in nature. The alleged conduct did not, however, fall within "that quite narrow range of `extreme and outrageous' conduct needed to establish a claim of emotional distress." Watts, 619 P.2d at 1035. As to Plaintiffs Betty Ann St. George, Robbin Billingsley, Dawn Hixenbaugh, Diane Wickline, Janet Reavis, and Abbey Bromley, the Court will examine the third prong (whether these Plaintiffs suffered severe emotional distress) in more detail in the context of their individual complaints and symptoms.
The Court is not suggesting that by identifying these individual Plaintiffs, their counsel has created a question of fact for jury determination on the first prong of outrageous and extreme conduct. Rather, when managing a case with twenty-one Plaintiffs, the Court finds it more efficient and better use of the Court's limited time to examine the third prong to determine if these individual Plaintiffs satisfy the third prong before a more in-depth analysis is completed on the first. The absence of any of the three IIED elements is fatal to such a claim.
1. Betty Ann St. George
Plaintiff Betty Ann St. George claims that throughout her six-year employment at the Prescott Home Depot, she was frequently called "rude" and derogatory names, such as, "big mouth," "fat-ass," and "bitch" by male associates Richard Nelson and Steve Machek, who would also "flip [her] off" or "grab his crotch[.]" (PSOF ¶ 145; Exh. 2, St.George deposition, at 133:18-21) St.George testified that employee Richard Nelson spit at her but the record cited by Plaintiff St.George is not clear on the frequency that the spitting occurred. (PSOF ¶ 146; Exh. 2 at 138:13-16.) St.George claims that she repeatedly reported to management throughout her employment that male associates and male managers were making "lewd gestures" and "sexual gestures," including, but not limited to "masturbation gestures," "grabbing their genitals," and "tongue in fingers gestures," directed at herself, other female associates and female customers, but, she claims, her complaints were ignored by management. (PSOF ¶ 147; Exh. 3, St.George deposition at 272:1-24, 275:9-20; Exh. 24, Part 6, called "BSG Exhibit C — Defendant Felix Pareja," pp. 1-14; docket # 367) St.George claims that she would "walk away" as the store manager's (Pareja's) response was to laugh and state "you work in a warehouse, what do you want." (PSOF ¶ 147; Exh. 3, St. George deposition, at 272:21-25, 275:9-20, St. George Binder, Section C-Pareja, pp. 1-14).
St.George began her employment with the Prescott Home Depot on December 29, 1997, (PSOF ¶ 134; docket # 363), and was terminated on December 16, 2003. (PSOF ¶ 143)
"at least, once or twice a week." (Exh. 2, St. George deposition, at 136:13-14.
The Court's review of the record cited by St.George's counsel failed to reveal where St.George was called "cunt," a most-degrading word for a woman. It is not found in the record where St.George's counsel cites it for factual support. Thus, the Court assumes it does not exist in the record. The record does, however, support that Richard Nelson called other women names like: "`that cunt', `that bitch,' `that slut,' `that whore.' That's how Richard talks about women that he's not sleeping with that week. . . ." (Exh. 3, St.George deposition, 226:10-19)
From March 2003 forward, Richard Nelson "did the same thing to me in that time period as the same thing he did from the day I started working with this guy. If he's upset with you, and he walks by you, and he flips you off or he mouths the word `bitch' or grabs his crotch — it's an ongoing thing, everyday, all-the-time thing with Richard." (PSOF ¶ 145; Exh. 2, at 136:22-137:11) The Court is not directed to any other male associate calling St. George these vulgarities.
"[Steve Machek] called — his favorite thing for me was `big mouth,' `fat ass,' `bitch." Always telling me to keep my nose out of his business if I wanted to keep my fucking job. Those are Steve Machek's words." (Exh. 2 at 133:18-21)
If Nelson's spit landed, or nearly landed, on Plaintiff's person, the spitting may be considered a Class 3 misdemeanor assault under Arizona law. See, A.R.S. § 13-1203A)(3) and (B); State v. Mathews, 130 Ariz. 46, 633 P.2d 1039 (Ariz.App. 1981) (faking a striking blow at a police officer constitutes aggravated assault since "touching" does not require person-to-person contact).
St. George testified that she believes that "Richard Nelson should have been fired the first time he spit at me." (PSOF; Exh 1C at 253:18-21) This implies it occurred on more than one occasion.
The record cited by St.George's counsel does not support this allegation.
Id.
Id.
Id.
This cited reference in the record supports Pareja saying to St.George, "Where you born blonde?" (Exh. 2 at 275:12-13)
Supra, n. 17.
The Court has unsuccessfully tried to find where in these 14 unnumbered pages this factual allegation exists. Thus, for purposes of this Order, the Court assumes it does not exist.
St.George claims she was physically threatened by Richard Nelson in the Home Depot break room in mid-2000 when he told her to "shut the fuck up bitch, I'll beat the shit out of you." This comment was directed at St.George after she heard Nelson discussing that his former wife had charged him with disorderly conduct and domestic violence. Nelson allegedly stated in reference to his former wife that "[i]nstead of just beating the shit out of her, I should have just killed the fucking cunt." St.George claims that she immediately reported this to Pareja, who simply replied "I do not have time for this now," (PSOF ¶ 148; St. George Binder, section C-Pareja, pp. 6-7.), or "Were you born blond?" (Exh.3, 275:9-13) St.George claims that after she was called derogatory names by some of the male co-employees and reported them to other managers, such as, Musen, Pareja, Johnson and Ingolia, she was repeatedly told "we'll take care of it, just leave them alone," or simply told "what's you're problem with Richard and Steve, you are always back here complaining about them," inferring that St.George was the instigator instead of the victim. (PSOF § 149; St. George deposition (Exh. 2) at 138:13-15, St. George Binder, Section C-Pareja 1-14, Section D-Machek, pp. 1-10, Section E-Johnson, pp. 1-10, Section Fingolia, pp. 1-6, and Section G-Musen, pp. 1-5.)
Supra, n. 17. Elsewhere, however, the record supports St.George's claim that Richard Nelson said to her: "Well, fuck you, I wasn't talking to you." (Exh. 3, St.George deposition, 227:3-12)
Infra. n. 26 at p. 17.
This is apparently contained in notes made by, and referred to during, St.George's deposition and is actually found at Exh. 4, BSG Exhibit C at 17. Even though the pages are not numbered by Plaintiffs' counsel as he represents, the Court was able to locate an incident allegedly in early, 2000, when St.George went to Pareja to complain about the poor treatment of Janet Revis who was in tears, and Pareja allegedly "physically `pushed' [St. George] out [of his office], saying `I don't want to hear any of your shit' and slammed the office door." (docket # 367-6 at 17) (Emphasis in original)
Supra. n. 17.
St.George's claims IIED conduct include the following: that she was physically threatened by Richard Nelson, a non-Defendant, in the Home Depot break room in mid-2000 when Nelson told St.George to "shut the fuck up bitch, I'll beat the shit out of you," (PSOF ¶ 148, docket # 363); that she was often told "fuck you," or "fuck you, bitch," and "flipped off" by Richard Nelson and Defendant/Assistant Store Manager, Steve Machek, (Id. at ¶ 149); that when these incidents were reported to other managers such as Musen, Pareja, Johnson and Ingolia, she was repeatedly told "we'll take care of it, just leave them alone," or simply told "what's you're problem with Richard and Steve, you are always back here complaining about them." (Id.)
St.George claims she "suffered physically from headaches, anxiety, stress related illnesses, weight fluctuations, sleeplessness and nervousness for the previous nine years that she attributes to working under the conditions at the Prescott Home Depot." (PSOF ¶ 154; docket # 363 at 30) Although several years have passed since her termination from Home Depot in December, 2003, St.George claimed at her deposition that she still feels anxious and nervous, that her heart "races" when she "bumps into" Pareja, Machek, or Nelson around town, because of the potential for confrontation. She has, on more than one occasion, encountered one of the named defendants at WalMart, Costco, Harkins Theaters, Hastings and other Prescott establishments because Prescott is a very small community, and has been the target of "dirty looks," "stares" and has been "flipped off" by Nelson. She claims she experienced "night-mares" regarding Pareja and Machek harming her and her son. During the time period when she was employed with Home Depot from 1997 through 2003, St.George claims she suffered from nervous tension, high levels of anxiety, panic-attacks, depression, sleeplessness, weight fluctuations due to stress, headaches, and a constant feeling of "walking on eggshells." (PSOF ¶ 154; Exh. 3, St. George dep. at 227:23-232:4)
Plaintiffs' counsel's failure to comply with LRCiv 56.1(b) by providing for each fact in a separately numbered paragraph where that fact finds support in the record has made writing this Order extremely more difficult and time consuming. Additionally, simply referring to, for example "See St. George dep. at 227:23-232:4" (PSOF ¶ 154) without any reference to an exhibit number has significantly contributed to the Court's challenge of finding support in the record for Plaintiffs' claims.
Supra., n. 17. Nothing in this portion of St.George's deposition, cited by Plaintiffs' counsel, supports these claims of symptoms related emotional distress.
Defendants' Reply contends that St.George's "entire response dealing with her IIED claim fails to provide even one example, supported by admissible evidence, of any named Defendant engaging in extreme or outrageous conduct directed at her." (docket # 371 at 39) Defendants argue that St.George's Response "is completely void of any admissible evidence that she experienced severe emotional distress as a result of such actions." (Id.) Defendants claim that because St. George's "attributes'" her various ailments to Home Depot is insufficient, standing alone, to meet the prima facie test at the summary judgment stage." (Id.) While less than clear, Defendants seemingly argue that expert testimony is necessary to opine that Defendants' conduct is what caused St.George's emotional distress.
The Court's November 30, 2006 Order gave the parties an opportunity to address another legal issue: whether only expert testimony, e.g., a physician or psychologist, may create a question of fact that a plaintiff sustained emotional distress caused by a defendant's conduct and, if not, whether a party or other non-expert witness may appropriately testify regarding personal opinions, observations, personal experiences, such as, commonly-known symptoms of emotional distress, such as, nightmares, caused by a defendant's conduct and/or failure to act when required to do so.
Plaintiffs elected not to address the issue at all in their Memorandum. (docket # 398) Defendants' Memorandum of Law on IIED Claims cites case law from other state courts and a distinguishable Rhode Island district court case which "require expert testimony to substantiate claims of severe emotional distress." (docket # 400 at 6-8) While the result may be the same, Defendants' reliance on state law regarding the admissibility of evidence in this case is misplaced.
The Federal Rules of Evidence govern the admissibility of evidence in diversity cases, except in the rare circumstance where a state rule of evidence is "`intimately bound up' with the rights and obligations being asserted ." Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir. 1995) (quoting Erie R.R. Co. v. Tompkins, 304 U.S. at 78); Feldman v. Allstate Ins. Co., 322 F.3d 660 (9th Cir. 2003) ("Pursuant to Erie and its progeny, federal courts sitting in diversity apply state substantive law and federal procedural law."). With respect to the IIED issues presently before the Court, no state evidentiary rule supplants the federal rules and, therefore, the Federal Rules of Evidence control this case.
"Causation is generally a question of fact for the jury unless the proof is insufficient to raise a reasonable inference that the act complained of was the proximate cause of the injury." Lies v. Farrell Lines, Inc., 641 F.2d 765, 770 (9th Cir. 1981). Nevertheless, the Ninth Circuit has held that expert medical testimony establishing a causal link must be presented when drawing a particular conclusion that requires specialized knowledge. In Claar v. Burlington Northern Railroad Co., 29 F.3d 499 (9th Cir. 1994), the plaintiffs alleged that they suffered from a variety of ailments stemming from their exposure to various chemicals while working at defendants' shop. Id. at 499. Some of these ailments included "dyscalculia" (poor arithmetic ability) and "spelling dispraxia" (poor spelling ability). Id. at 502.
The Claar court found that the plaintiffs' injuries in that case were not the type where a juror would be qualified to determine whether the railroad's negligence played a part in causing the injuries. Id. Therefore, the court determined that expert testimony was "necessary to establish even that small quantum of causation required by FELA." Id.
The Claar court approvingly cited Moody v. Maine Central Railroad Co., 823 F.2d 693 (1st Cir. 1987), wherein the plaintiff sought to prove that harassment by his employer caused him emotional distress which led to fatigue and angina attacks. 29 F.3d at 504. The Moody court held that in the absence of expert medical testimony linking the plaintiff's workplace harassment with his physical injury, no triable issue existed on causation and granted summary judgment for the railroad, noting that "plaintiff alleg[ed] a condition . . . manifested only by subjective pain and allegedly arising from a series of work related pressures, and not from any traumatic `accident' or event that jurors, as a matter of everyday experience, could causally connect with the injury alleged." Moody, 823 F.2d at 696. Citing 4 F. Harper, F. James, O. Gray, The Law of Torts § 20.2 (2d ed. 1986), the Moody court stated that "[e]xpert evidence is often required to establish the causal connection between the accident and some item of physical or mental injury unless the connection is a kind that would be obvious to laymen, such as a broken leg from being struck by an automobile." Id.; contra, Passantino v. Johnson Johnson Consumer Products, Inc., 212 F.3d 493, 513 (9th Cir. 2000) (without calling a medical expert, plaintiff's testimony, corroborated by her husband's and sister's testimony, that she experienced substantial anxiety, rashes, stomach problems, and other symptoms due to defendant's Title VII retaliation were sufficient to support verdict on emotional distress damages); Williams v. Trader Publishing Company, 218 F.3d 481, 486 (5th Cir. 2000) (plaintiff's testimony of sleep loss, beginning smoking and severe weight loss due to defendant's wrongful discharge sufficient to support jury's determination of compensatory damages).
Again, the Court will not engage in the unnecessary analysis whether expert testimony is necessary for Plaintiffs to establish a prima facie case because its ruling herein on other well-settled issues is dispositive and this issue was not sufficiently raised and argued by the parties in their moving and responsive briefing.
Defendants urge that the summary judgment be granted.
2. Robbin Billingsley
Plaintiff Robbin Billingsley claims she "suffers from weight gain, stress, headaches, depression, and anxiety." (docket # 362 at 41; PSOF ¶ 168) Apparently at her deposition, Billingsley "broke down" and tried to put into words how she feels when Defendants apparently got a "kick" out of seeing the women employees react emotionally to their conduct. (Id.)
Defendants contend, among others, that Billingsley "failed to provide any admissible evidence that these symptoms constitutes `severe emotional distress' as required in IIED claims. . . ." (docket # 371 at 42)
3. Dawn Hixenbaugh
Plaintiff Hixenbaugh testified that she reached the point that she felt "sick to her stomach when pulling into the Prescott Home Depot parking lot." (docket # 362 at 44; PSOF ¶ 177) She expressed feelings of being "drained" and "hopeless, feeling like she had put in almost 15 years into this company and did not like the idea of having to `start over again' somewhere else." (Id.) Plaintiff Hixenbaugh testified that she spent everything she had to get the transfer to the Prescott Home Depot, hoping to get a "fresh start" from her negative experiences at the Cave Creek Home Depot in Phoenix, where she worked for eight years. After the Butler case settled, she believed "things would change" but she eventually realized while working at the Prescott Home Depot when she experienced the same inappropriate behavior that Home Depot is "a boys club" and it "would never change."
Defendants' Reply argues that Plaintiff Hixenbaugh's "disappointment in being able to `start over' at Store # 452 and how she feels `sick to her stomach when pulling into the Prescott Home Depot[,]" are "subjective feelings [which] do nothing to support her claim of IIED against the Defendants." (docket # 371 at 35) "Moreover, her reference to the Butler/Frank case is not only irrelevant, but [is] also not supported by her PSOF 177." (Id.)
Defendants' irrelevance objection to the Butler case on the IIED claim is overruled.
4. Diane Wickline
Plaintiff Wickline, a cashier, testified that she used a chair on occasion to sit down due to numbness in her legs. (docket # 362 and # 366; PSOF ¶ 283; Exh. 15 at 168) Wickline testified that she has fallen at work several times due to weakness in her legs. (PSOF ¶ 283; Exh. 15 at p. 165) She claims that Ingolia was aware that Wickline had a medical need related to her legs and that a copy of Wickline's doctor's note was in her personnel file. Wickline complained in her call to the Alert Line that Pareja knew of her medical condition. Plaintiff claims that Defendant Pareja told Wickline's Department Supervisor, Chris Hostas, to "throw away that chair" and that Pareja threw away Wickline's chair on three different occasions, despite her physician's note for use of the chair. (docket # 362; PSOF ¶ 285; Exh. 15 at p. 168) Wickline was so upset about having Pareja removing her chair and yelling at her for having a chair that Wickline contacted the Alert Line to complain about Pareja's conduct.
Although using tabs with every Plaintiff's name on the chamber's hard copy is helpful, Plaintiffs' counsel's failure to provide an exhibits index or identify an exhibit number for each exhibit referenced in their Statement of Facts for each Plaintiff added significantly more time for the Court to find the support in the record, assuming it was found or existed.
Much of what Plaintiff Wickline claims Ingolia knew or what may have been in her file is not where Plaintiffs' counsel directs that it is in the record.
Apparently, unrelated to the chair issue, in October, 2004, Wickline accidentally bumped into a yucca plant in the garden department and it stuck her in the arm. (PSOF ¶ 285; Exh. 15, p. 113) After seeing the Home Depot physician, she was directed to wear a sling while at work. (Id. at 114) The next day, her supervisor, Chris Hostas, saw the sling and asked what happened? Wickline testified that she said, "Oh, a yucca plant stuck me and the doctor said I'm allergic to it." Wickline testified that Hostas then said: "Oh, now we can call you `bitch prick,' you know." (Id.) Wickline testified that she said "Thanks a lot," became upset by the remark, walked away and cried. Wickline testified she reported it to Priscilla Ingolia who responded, "[it's] only a joke." (Id. at 115)
Defendants argue that Plaintiff Wickline "makes no attempt to offer any admissible evidence that she suffered severe emotional distress over [the Defendants'] alleged actions." (docket # 371 at 12)
5. Janet Reavis
Plaintiff Reavis claims that when she complained to Store Manager Felix Pareja about former Prescott Home Depot male associate Bob Kitzman "rubbing himself up against [Reavis] from behind and touching [Reavis'] breasts," "running his hands through my hair and started massaging [Reavis'] shoulders," Pareja stated to Reavis "whaa, whaa, whaa" and Pareja "physically pushed" Reavis out of his office and "slammed the door shut." (docket # 362 at 72; PSOF ¶ 297; Exh. 17 at Vol. I, p. 107 — 108) Plaintiff Reavis further testified that "the next day" "Kitzman was suddenly transferred into the computer room to work side by side with Reavis in a room that is approximately 6' x 15', and the door [was] always locked." In the computer room, Reavis alleges that Kitzman continued to inappropriately touch Reavis. (PSOF ¶ 306; Exh. 17, Vol. I, at 110 — 111) Although she doesn't recall the date the first incident occurred, Reavis acknowledged that Kitzman voluntarily left the Prescott Home Depot on January 17, 2001 and she hasn't seen him since then. (Id. at p. 112:21-23) Reavis claims she "felt scared and threatened by this action on Pareja's part." She resigned from the Prescott Home Depot on or about April, 2004.
No details are provided the Court as to how many times Reavis was inappropriately touched, over what period of time, what Reavis said or did to discourage or avoid Kitzman's inappropriate conduct. The Court will not use speculation to assist Plaintiff Reavis to meet her burden of proof.
At the end of PSOF ¶ 303, Plaintiffs' counsel cites "(See Reavis dep. Volume II, at 131:12-132:2.)" for the specific support of Plaintiff Reavis' claim of emotional distress. Unfortunately for Plaintiff Reavis, this specific citation to the record does not provide any support for these symptoms of emotional distress. Although not required to do so, the Court spent significant time reading portions of Reavis' two deposition transcripts in an attempt to overcome this deficiency and to find this factual support but no such support was found. The Court treats this factual allegation as non-existent in the record. (docket # 396; Carmen, 237 F.3d at 1031) Even if the Court were to find these specific factual allegations in the record to support Plaintiff Reavis' claim of emotional distress, feelings of being "scared and threatened" without more are insufficient to meet Arizona's high threshold for a viable claim of severe emotional distress.
Plaintiff's Statement of Facts erroneously cites "See Reavis dep. [Vol. I] at 24:3-6" (docket # 363 at 66:24-25) for Reavis' employment termination date. This citation is only support for Reavis' hire date of January 5th, 1998.
Like their arguments against Plaintiff Wickline's IIED claim, Defendants claim that "Reavis offers absolutely no evidence that she suffered any severe emotional distress as a result of any of the individually named defendants' conduct, or of any action taken by Home Depot." (docket #371 at 22)
6. Abbey Bromley
Plaintiff Bromley testified that she once told co-plaintiff, Joni Kirchner, that when she comes to work "`I just feel like I stand here and I'm getting raped.' I can't stand it anymore. I got brutally raped a year before I started working [at the Prescott Home Depot]. I know what that feels like, and that's how I feel everyday I walk into this store and, you know, since Richard [Nelson] has been gone, I feel so much better. I feel like I've never been around so many sick people in my life." (docket # 362 at 77; Plaintiffs' Exh. 19, 51:6-18) Plaintiffs' counsel fails, however, to identify the "extreme and outrageous conduct" that causes Bromley to have these feelings. It certainly isn't where counsel says that it is. (docket # 362 at 77-78 cited as " Abbey Bromley's Allegations of Intentional Infliction of Emotional Distress ")
Plaintiff Bromley's citation to the record in Plaintiffs' Statement of Facts, viz., PSOF 314; Plaintiffs' Exh. 19, Bromley dep. Volume I, at 51:9-17, 118:20-120:12, 121:12-123:25, 143:15-25, does not support all the symptoms of emotional distress alleged in Plaintiffs' Response. (docket # 363 at 72-73) Defendants point this deficiency out in footnote 47 of their Reply. (docket # 371 at 29 n. 47) Bromley's cited deposition supports the following claims of emotional distress: 1) that Mr. Machek made "threats" to others that Bromley "had better watch [her] job," (Exh. 19, Bromley dep. Volume I, at 119:18-23); 2) "the yelling incident" by Defendant Pareja, (Id. at 120:9-12); 3) that Bromley is suffering from "migraine headaches" which she acknowledged she has had "since childhood" but they have "gotten worse" by working at the Prescott Home Depot, (Id. at 121:12-23 and 143:15-19); 4) that Bromley claims that "[e]very day I go home crying" and "I can't sleep." (Id. at 122:4-7); 5) that while she and her husband have not separated nor have they sought marriage counseling, Bromley testified her marriage has suffered from "[j]ust the tension, emotional pain" because my husband "sees me crying." (Id. at 122: 13-123:1); 6) that she "feel[s] humiliation" and she was "scared of retaliation" upon return to work after she gave her deposition. (Id. at 123:9-18); and, 7) that she is "nervous," "angry" and feels "like I'm being raped ever time I walk into the [Home Depot] building." (Id. at 143:20-25)
Defendants counter that Bromley "cannot produce any admissible evidence of extreme and outrageous conduct against any of the named Defendants. With this critical evidence missing, and with no admissible evidence that her `stress headaches' were caused by any of the actions of the Defendants, Bromley's claim of IIED against all of the named Defendants should be dismissed." (docket # 371 at 29 — 30).
CONCLUSION
The Court concludes that none of the twenty-one Plaintiffs meet both the high thresholds for extreme and outrageous conduct and severe emotional distress required under Arizona law to create a jury question. While the IIED claims of Plaintiffs Reavis and Bromley, like the four minor plaintiffs in GLC Restaurants, Inc., may "approach the line of demarcation between emotional distress and severe emotional distress, but they do not cross it." GLC Restaurants, Inc., 2006 WL 3052224 at *9. Defendants are entitled to summary judgement of Plaintiffs' IIED claims.
Accordingly,
IT IS ORDERED that Defendants' Motion for Summary Judgment on Plaintiffs' Intentional Infliction of Emotional Distress Claim (Count VI) (docket # 353) is hereby GRANTED. All Plaintiffs' Intentional Infliction of Emotional Distress claims are hereby DISMISSED with prejudice.