Opinion
Case No. 8:01CV3273
June 13, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment (Filing No. 21) and the Motion in Limine (Filing No. 32) filed by the Defendant, Agriliance, L.L.C. ("Agriliance"). Evidence was submitted in support of and in opposition to the Motion for Summary Judgment. (Filing Nos. 22, 25.) Briefs have been submitted regarding the Motion for Summary Judgment. Agriliance submitted its brief in support of the Motion in Limine, and the response time has not yet elapsed for this motion.
FACTUAL BACKGROUND
Agriliance operates a retail facility in Ewing, Nebraska, selling fertilizer and other products to local farmers. (Filing No. 34, ¶ B(4).) The Plaintiff, Ronald Stearns, began his employment as a floater operator at the Ewing facility in April 1997. ( Id., ¶ 5.) Dennis Funk was the manager of the Ewing location as well as Stearns' direct supervisor. ( Id., ¶ B(6); Filing No. 1, ¶ 4.) Stearns never signed an employment contract with Agriliance. (Filing No. 25, Ex. 2, Stearns Dep., 219:3-23). The application for employment, completed and signed by Stearns, provided:
"Stearns Dep." refers to the Deposition of Ronald Stearns. Excerpts of the deposition appear as Exhibit 2 to both Filing Nos. 22 and 25. Further references to the Stearns Deposition refer to Exhibit 2 to Filing No. 22.
I understand that nothing in this employment application or in the granting of an interview is intended to create an employment contract between [Agriliance], and me for either employment or for the providing of any benefit. No promises regarding employment have been made to me and I understand that no such promise or guarantee is binding upon [Agriliance], unless made in writing. If an employment relationship is established, I understand that I have the right to terminate my employment at any time, for any reason, and that [Agriliance] retains a similar right.
(Filing No. 22, Ex. 3.)
Stearns' Relationship with Bob and Corey Chipps before October 2000
Bob Chipps ("Chipps"or "Bob Chipps") has worked for Agriliance or a predecessor entity at the Ewing location for more than twenty-five years. According to Stearns, Chipps is a sixty-two-year-old "skinny small man." (Stearns Dep., 74:22-75:2; Filing No. 22, Ex. 1, Funk Aff., ¶ 4.) Ronald Stearns is forty-six years old, and he stands five feet ten inches tall and weighs about 205 pounds. (Stearns Dep., 75:2-8.) Stearns was not physically afraid of Chipps, but he stated that Chipps had a bad temper. (Stearns Dep., 75:9-12.) Funk considered Chipps a diligent employee. (Funk Aff., ¶ 5.)
"Funk Aff." refers to the Affidavit of Dennis Funk that appears as Exhibit 1 to Filing No. 22.
Stearns complained that during a four-month period prior to January 1999, Bob Chipps: repeatedly turned his back on Stearns when Stearns walked in the door in the morning; on several occasions got up from the break table and left as soon as Stearns sat down; received orders from Funk and then changed them to suit his own desires; and received jobs from Funk, picked everyone but Stearns to help on those jobs, and then complained to Funk that Stearns was lazy and did not do his job. (Stearns Dep., 69:4-70:21, 71:18-72:9.)
In January 1999, Stearns confronted Chipps about his behavior, targeting Chipps' treatment of Stearns during the last four months. (Stearns Dep., 66:6-7; 67:18-21.) Chipps told Stearns that his behavior was illustrative of "who he was." (Stearns Dep., 67:23-24.)
Funk spoke with Stearns a few times before October 2000 regarding problems between Stearns and Chipps. Funk also received complaints from Chipps about Stearns. Funk attributed the problems to a personality conflict, and he counseled Stearns and Chipps to get along and work together. (Funk Aff., ¶¶ 6-7.)
Stearns testified about an incident that occurred in February 2000. Stearns, Bob Chipps, and Corey Chipps ("Corey Chipps") were going to cut the frame of a truck and place a liquid tank on the truck. Bob Chipps marked the place for the cut with chalk, Stearns suggested the cut should be six inches farther back, and Bob Chipps called Stearns a "smart ass new employee." Bob Chipps proceeded to throw the square, chalk, and a couple of wrenches "in [Stearns's] vicinity." Although he did not hit Stearns with any of the objects, Bob Chipps stomped out of the area and clocked out for the day. (Stearns Dep., 72:16-73:21.)
Corey Chipps is Bob Chipps' son.
Stearns admitted that he was never purposely struck by either Bob or Corey Chipps. (Stearns Dep., 100:16-101:14.) However, Sterns complained that Bob Chipps "pushed" him aside "a few times." (Stearns Dep., 103:13-14.) Stearns stated that Chipps "was always bullying his way around the shop." (Stearns Dep., 104:20-21.)
Stearns had no complaints about Corey Chipps' behavior before October 2000. (Stearns Dep., 75:13-18.) In fact, before October 2000, Stearns ate out with Corey Chipps and also helped him move furniture. The two men even had drunk beer and hunted mushrooms together. (Stearns Dep., 76:4-17.) After mid-October 2000, Funk did not receive any more complaints from Stearns about Bob Chipps. (Funk Aff., ¶¶ 6, 7.) Stearns never had any problems with other co-workers. (Stearns Dep., 98:21-99:4.)
Conversations with Funk Regarding a Pay Raise and the Chipps Problem
In September 2000, Stearns interviewed for a road maintenance crew job with the Nebraska Department of Roads ("NDOR"). (Stearns Dep., 15:9-11, 17:7-15.) The NDOR offered Stearns the job at the rate of $8.067 per hour. (Stearns Dep., 18:11-20:23.) Stearns was then making $8.70 per hour with Agriliance. (Stearns Dep., 14:15-17.) In early October 2000, Stearns gave Funk his two-week notice so that he could take the job at the NDOR. (Stearns Dep., 14:9-11; 23:12-16.) Stearns testified that Funk asked if he could do anything to persuade Stearns to stay at Agriliance. Stearns said he did not believe there was, but that Funk could have a couple of days to come up with something. (Stearns Dep., 24:5-16.) During this conversation, Stearns mentioned no specific problems with Bob or Corey Chipps. (Stearns Dep., 28:10-17.)
One week later, Stearns approached Funk. Stearns told Funk that he had taken the NDOR job and, if Funk had anything to say, he should say it. (Stearns Dep., 29:1-12.) According to Stearns, he again approached Funk a few days later. Stearns stated that Funk told him that all he could do to help Stearns was to allow an additional $0.40 per hour pay raise and "handle the Bob Chipps problem, even if it meant firing [Bob Chipps]." (Stearns Dep., 29:13-15; 30:20-31:15.) Stearns recalled Funk telling him that Funk hoped "that [Stearns] would consider this offer." (Stearns Dep., 33:1-2.) Stearns stated that, according to Funk, although the raise would be retroactive to October 1, 2000, Stearns would not receive retroactive payment until after January 1, 2001. (Stearns Dep., 36:25-37:19.) Stearns told Funk that he "didn't think that was good enough" and "[t]hat [he] would probably still take the State job, but that [he] would think it over" for a "couple of days." (Stearns Dep., 33:13-25.)
Two or three days later, Stearns "stuck" his head into Funk's office while Funk was on the phone and simply said: "I guess I'm going to stay." (Stearns Dep., 34:8-13.) Funk did not say anything to Stearns. (Stearns Dep., 34:24-35:1.)
Sometime after February 14, 2001, Stearns approached Funk because he had not yet received a raise. (Stearns Dep., 39:15-40:5.) Stearns stated that Funk said the paperwork was "foul[ed]-up." (Stearns Dep., 40:21-41:3.) In early March 2001, Stearns stated that he again approached Funk asking about his raise, and Funk responded that Stearns should not get so "worked up." Stearns claims that Funk said he should not have told Stearns about a raise because all Stearns did was "bug" him. Stearns also testified that Funk promised that the raise would come in a couple of weeks. (Stearns Dep., 41:22-24; 43:4-19.)
Stearns stated that he received a $0.35 raise in March 2001. With the raise, Stearns earned $9.05 per hour. (Stearns Dep., 46:7-18.) In mid-March, 2001, Stearns again approached Funk. Stearns complained that the expected $0.40 raise turned into only a $0.35 raise, and also that Stearns never received any retroactive payment. Stearns claimed that Funk told him then that he would not receive any retroactive payment. (Stearns Dep., 44:1-21.)
Stearns' Relationship with Bob and Corey Chipps after October 2000
Stearns complained about specific incidents involving allegedly harassing conduct by Bob and Corey Chipps after October 2000. For example, Stearns stated that in December 2000, Stearns "bolted two flange irons in [the] spreader box that guard the belt," a job that took him all morning. When Bob Chipps saw the work Stearns finished, he unbolted the bolts, threw the irons on the ground, and said the work was not done right. (Stearns Dep., 48:8-21.)
Another incident involved an old chemical dike that Stearns tore out. After tearing out the dike, Stearns filled the hole with dirt and leveled the whole area. Afterwards, Stearns stated that someone dumped two loads of dirt on the leveled area. Stearns stated that his co-worker, Jerry Ferguson, told him that Bob Chipps dumped the dirt. (Stearns Dep., 49:5-50:17.)
In March 2001, Stearns testified that Ferguson told him that Bob Chipps would make sure that Corey Chipps was more productive at work than Stearns. Bob Chipps reportedly said he would do this by helping Corey Chipps, as opposed to Stearns. (Stearns Dep., 52:5-53:1.)
Stearns stated that, in April 2001, Corey Chipps insinuated to Funk that Stearns was not pulling his weight at work and was lazy, although Corey Chipps did not use Stearns' name. Stearns told Bob Chipps he did not like being called "lazy," and testified that Bob Chipps "got in [Stearns'] face and wanted to know if [he] wanted to do anything more about it." (Stearns Dep., 56:3-57:21.)
After Stearns spoke with Funk in October 2000 regarding the alleged promise of a pay raise and change in working conditions, Stearns did not complain to Funk again about Bob or Corey Chipps. (Stearns Dep., 82:21-25; Funk Aff., ¶ 7.)
Final Weeks at Agriliance
On August 21, 2001, Stearns went to the emergency room complaining of chest and arm pain after working at Agriliance. (Stearns Dep., 191:11-15.) A stress test was performed, and the results were negative. (Stearns Dep., 196:9-16.) Stearns returned to work either that same afternoon or the next day. (Stearns Dep., 196:22-197:6.)
Possibly the following day, Ferguson approached Stearns and asked him to help load a pile of junk pieces of metal, scrap iron, and pieces of tin and wood onto a truck. Stearns agreed. (Stearns Dep., 197:9-199:16.) Another co-worker, Pete Cunningham, was willing to help, but Funk declined Cunningham's offer. (Stearns Dep., 198:13-22.) Stearns worked a full day on this task, never complaining to Funk. (Stearns Dep., 200:4-14.)
Stearns testified that the next day, Cunningham told him that Funk had assigned the two of them to unload the scrap metal from the truck, thereby undoing the job they did the previous day. (Stearns Dep., 202:10-203:19; 216:17-217:3.) Stearns helped Cunningham for about fifteen minutes. (Stearns Dep., 203:20-24.) However, Stearns began to sweat and experience pain in his left arm, and he could not finish the job. (Stearns Dep., 204:2-6.) Stearns never told Funk before helping Cunningham that he did not feel well. Only after Stearns began sweating and experiencing pain in his left arm did Stearns tell Funk he needed to go home, which he did. (Stearns Dep., 205:3-17.)
On or about August 24, 2001, Stearns had two or three stress tests and a heart catheterization procedure. The tests revealed that his heart "looked fine." (Stearns Dep., 123:8-124:24; 183:20-184:19.) Stearns underwent no further cardiac testing. (Stearns Dep., 124:25-125:2.) Stearns also had gallbladder tests, which were also negative. (Stearns Dep., 122:8-16.) Stearns has not had any medical treatment or taken any prescription medicines since he left Agriliance. While at Agriliance, Stearns took medications only for hay fever and after a knee surgery. (Stearns Dep., 125:6-12.) Stearns never saw a psychologist or a psychiatrist for any reason relating to the claims asserted in this case, and he never sought medical treatment for emotional distress. (Stearns Dep., 120:2-8.)
On or about September 4, 2001, Stearns submitted a letter of resignation to Agriliance. (Filing No. 34, ¶ B(7).) Between the time Stearns turned down the NDOR offer of employment and the time he resigned from Agriliance, he did not seek other employment. (Stearns Dep., 189:20-190:6.)
Procedural Background
On or about September 17, 2001, Stearns filed his Petition with the District Court of Holt County, Nebraska. (Filing No. 1.) On October 26, 2001, the action was removed to this Court. Stearns asserts the following state law claims: promissory estoppel; breach of an employment contract; and intentional infliction of emotional distress. (Filing No. 1.) The Defendant filed its Motion for Summary Judgment (Filing No. 21) and Motion in Limine (Filing No. 32).
DISCUSSION Summary Judgment Standard
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. Oct. 18, 2002). However, summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 322 (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. (citations omitted). In addition, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, `the dispute must be outcome determinative under prevailing law.'" Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)).
Finally, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). Nevertheless, if testimony has been irrefutably contradicted by documentary evidence, or the testimony is otherwise inherently incredible, it need not be credited even for purposes of a motion for summary judgment. Walker v. Peters, 863 F. Supp. 671, 672-73 (N.D.Ill. 1994).
ANALYSIS Promissory Estoppel
In order to state a cause of action for promissory estoppel, Stearns must prove: 1) a definite promise by Agriliance; 2) that he was, in fact, induced to act by the promise; 3) that his actions were detrimental to him; and 4) that justice requires that Agriliance reimburse Stearns for damages. Goff-Hamel v. Obstetricians Gynecologists, P.C., 588 N.W.2d 798, 804-05 (Neb. 1999); Clark v. Kellogg Co., 205 F.3d 1079, 1083 (8th Cir. 2000) (highlighting the requirement of a definite promise for the assertion of a promissory estoppel claim in the at-will employment context).
Stearns argues that: 1) Agriliance offered him a $0.40 pay raise; 2) he relied on this promise in not taking the NDOR job; 3) his reliance was detrimental in that he received a nonretroactive raise of only $0.35, and the Chipps situation remained unchanged; and 4) justice requires that he be reimbursed for damages.
Agriliance argues that Stearns cannot satisfy the second and third elements of the test.
Second Element — Whether Stearns Was Induced to Act
"A cause of action for promissory estoppel is based upon a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee which does in fact induce such action or forbearance." Goff-Hamel, 588 N.W.2d at 804. Reliance must be "reasonable and foreseeable." Id. at 801. Stearns received an offer of employment from the NDOR for $0.63 per hour less than what he was then earning at Agriliance. Stearns stated that Funk told him the best he could provide was an additional $0.40 per hour, and that Funk would handle the "Bob Chipps problem." Stearns replied that he "didn't think that was good enough," he "would probably still take" the NDOR job, but he would "think it over" for a couple of days. A couple days later, while Funk was on the phone, Stearns merely "stuck" his head into Funk's office, said "I guess I'm going to stay." Funk did not interrupt his telephone conversation to respond to Stearns' announcement, and Stearns did not wait to discuss the matter further with Funk. Funk and Stearns never discussed any expectation of a raise or promises made by Funk about the Chipps situation.
The facts do not show that show that Stearns relied on Funk's statements in declining the NDOR's employment offer. The NDOR would have paid less than he already earned at Agriliance before any pay raise. Stearns had already told Funk that a $0.40 raise and handling the "Chipps problem" would probably not be sufficient. When he "stuck" his head in Funk's office to say he "guessed" he would stay at Agriliance, he did not wait until Funk was off the telephone to discuss the matter further. Stearns did not state that he decided to stay based on Funk's statements regarding more pay and a change in working conditions. The evidence does not demonstrate reliance on Funk's statements in declining the NDOR job.
Therefore, Stearns failed to show that he was induced to remain at Agriliance by the offer of a pay raise and handling of the "Chipps problem."
Third Element — Detriment
Stearns' action in foregoing the NDOR's offer of employment was not detrimental to him. If Stearns had accepted the NDOR job, he would have taken a pay cut of more than $0.60 per hour compared to what he was earning with Agriliance prior to any raise. Stearns argues that the benefit package with the NDOR was better than Agriliance's and that subsequent raises within one year would have raised his salary above $9.00 per hour. Thus, Stearns argues that the compensation with the NDOR would have been higher. However, Stearns offered no specific evidence regarding the expected benefit package or pay raises:
Okay. Did you know anything at that time about how the benefits with the Department of Roads would have compared with Agriliance benefits?
A: Yes, I did.
Q: Okay. Tell me about that.
A: Well, it's been a long time ago. At the time, I thought they were better. Their benefits with the State are usually always better.
Q: All right. Any specifics you can tell me on that?
A: 401K, it seemed like it was better than Agriliance's. Their health insurance, I believe, was better. Their merit raises, ability to — to to improve yourself at the job site was a lot better. They was going to give me a 50-cent raise, I believe, in — in 60 days when they found out if I could run their equipment, and Ray said that probably in another six months another 50-cent raise. So I was going to be making approximately $1 more within — within a year.
. . . .
Q: Okay. What can you tell me about the 401K plan? What do you think was better than the one at the State?
A: You know, I — I don't recollect at this time. Back then, I had read it over good, but it's been long ago enough now I can't — I can't repeat that to you.
Q: Do you have any documentation on that?
A: . . . . I threw the papers away.
. . . .
Q: Okay. And as far as the health insurance or the merit raise information, do you have anything in writing on that from the State?
A: No, I don't.
Q: What about the health insurance? Is there any more you can remember about that as far as why you thought that might be a little better?
A: I believe it had a lower deductible.
Q: Okay. And do you know how much lower it would have been?
A: No. I'm sorry. I don't recollect — I don't recollect that at the time.
(Stearns Dep., 21:2-23:10.)
Therefore, Stearns offered no evidence that the benefits with the NDOR would have increased the value of his total earnings package above what he had with Agriliance. Moreover, potential raises at the NDOR would have been based on performance, and therefore were not guaranteed. Stearns did not show that he would have earned more with the NDOR than with Agriliance.
Stearns also argues that continuing to subject himself to the behavior of Bob Chipps was detrimental to his well-being, resulting in medically documented problems while he was at Agriliance involving stress and his heart. However, the record fails to reflect that Stearns sought any medical or psychological treatment due to his problems with Bob Chipps. The record reflects that when Stearns did seek medical testing, the results were consistently negative. The evidence also shows that Stearns did not take any pertinent medications while at Agriliance. The evidence shows no medical or psychological damage due to Chipps' conduct. To the contrary, Stearns stated that he made no complaints at all about Bob or Corey Chipps after October 2000. Therefore, Stearns' decision to forego the NDOR employment opportunity was not detrimental and cannot support a claim of promissory estoppel. Breach of Employment Contract
Under Nebraska law, Stearns bears the burden of proving the existence of a contract and all the facts essential to the cause of action. Walpus v. Milwaukee Elec. Tool Corp., 532 N.W.2d 316, 321 (Neb. 1995). An employee's at-will status may be modified by contractual terms created by oral representations. Hamersky v. Nicholson Supply Co., 517 N.W.2d 382, 385 (Neb. 1994). However, these modifying contractual terms "`must meet the requirements for formation of a unilateral contract. . . . In other words, the language must constitute an offer definite in form which is communicated to the employee, and the offer must be accepted and consideration furnished for its enforceability.'" Pfister v. Bryan Mem'l Hosp., 874 F. Supp. 993, 997 (D.Neb. 1995) (quoting Hillie v. Mutual of Omaha Ins. Co., 512 N.W.2d 358, 361 (Neb. 1994)). Salary is one essential term of an employment contract. McBride v. City of McCook, 321 N.W.2d 905, 906 (Neb. 1982). Courts view oral contracts with "`grave suspicion.'" The establishment of an oral contract requires clear evidence showing a meeting of the minds upon the new term of the contract sought to be established. Gutierrez v. Gutierrez, 557 N.W.2d 44, 54 (Neb. 1996) (quoting Yates v. Grosh, 328 N.W.2d 200, 202 (1982)).
Finally, an employee's retention of employment constitutes acceptance of the offer of a unilateral contract. By continuing to stay on the job though free to leave, the employee supplies the necessary consideration for the job. See, e.g., Pfister, 874 F. Supp. at 997.
Stearns was not hired under an employment contract, and his employment application clearly stated that his employment was at-will. (Filing No. 2, Ex. 3, at 3.) By March 2001, it was clear that Agriliance would offer Stearns a $0.35 raise and not a $0.40-cent raise, and that the raise would not be retroactive. Agriliance held the power to modify the terms of Stearns' at-will employment in this manner. Stearns was free to reject those terms and resign his employment. However, he accepted the terms of a $0.35 raise without retroactivity by continuing to work for Agriliance once he was aware of the new employment terms.
Therefore, the Court finds that Stearns has not proved the establishment of an oral contract for a $0.40 cent retroactive pay increase and further that Stearns accepted the new terms of his employment, the nonretroactive $0.35 pay increase. Stearns has not met his burden of proof with regard to his breach of contract claim.
Intentional Infliction of Emotional Distress Nebraska Workers' Compensation Act
Agriliance argues that the Nebraska Workers' Compensation Act ("Act") is an employee's exclusive remedy against an employer for an injury arising out of and in the course of employment. Therefore, Agriliance reasoned that Stearns' intentional infliction of emotional distress claim should be dismissed. Defendant's Brief in Support of Its Motion for Summary Judgment at 13-14.
However, the Act provides:
When personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor from his or her employer if the employee was not willfully negligent at the time of receiving such injury.
Neb. Rev. Stat. § 48-101 (Reissue 1998) (emphasis added).
The Court finds that Agriliance has not shown that the incidents that allegedly occurred to Stearns at Agriliance qualify as "accident[s] or occupational disease." Therefore, the Court declines to further address this argument.
Prima Facie Case
To recover for intentional infliction of emotional distress, Stearns must prove the following:
(1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.
Brandon ex rel. Estate of Brandon v. County of Richardson, 624 N.W.2d 604, 620-21 (Neb. 2001).
Regarding the second factor of the prima facie case, it is a matter of law whether Agriliance's conduct may reasonably be regarded as "extreme" and "outrageous." Riggs v. County of Banner, 159 F. Supp.2d 1158, 1172 (D.Neb. 2001). Only when reasonable minds may differ, does a fact finder determine whether the conduct in a particular case is sufficiently "extreme" and "outrageous." Id. This determination is made objectively, based on all of the facts and circumstances of a particular case. In determining whether conduct falls into this category, the relevant factors include: the relationship between the parties; and the susceptibility of the plaintiff to emotional distress. Id. "`Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities that result from living in society do not rise to the level of extreme and outrageous conduct.'" Id. However, conduct that would normally be considered merely rude or abusive might be considered "outrageous" when a defendant knows that the plaintiff is particularly susceptible to emotional distress. Id. (quoting Brandon, 624 N.W.2d at 621).
Previously, conduct such as being followed home after work, name-calling, physical threats, threatening telephone calls at home, various forms of property damage, and having dog feces spread on the clothes of one's locker was found not to be "extreme" or "outrageous." Foreman v. AS Mid-America, Inc., 586 N.W.2d 290, 297, 306 (Neb. 1998).
Stearns claims that he endured rude conduct, some pushing, verbal abuse, and having his work undone. Such conduct is not as offensive as the conduct considered in Foreman. Stearns' argument that the conduct surrounding the flatbed incident is outrageous and extreme is not convincing. Stearns did not initially notify his supervisor about any medical condition or other reason why he could not perform the work, and he did not complain of pain until after he completed the work. Stearns returned to work almost immediately without any medical diagnosis, restrictions or medication.
Therefore, the Court finds that the conduct complained of does not meet the standard of "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency."
Regarding the third factor of the prima facie case, liability arises only for the intentional infliction of "severe" emotional distress. Severity is a question of law; and whether it occurred in a particular case is a question of fact. Although extreme and outrageous conduct and severe emotional distress are separate elements of the cause of action, the two elements are related. Extreme and outrageous conduct is important evidence of severe emotional distress. Brandon, 624 N.W.2d at 624. To be considered "severe," the emotional distress must be "` medically diagnosable and must be of sufficient severity that it is medically significant.'" Riggs, 159 F. Supp.2d at 1172 (quoting Sell v. Mary Lanning Mem'l Hosp. Ass'n, 498 N.W.2d 522, 525 (Neb. 1993)). Moreover, "`[w]here the character of an alleged injury is not objective, the cause and extent of the injury must be established by expert medical testimony.'" Id. (quoting Turek v. Saint Elizabeth Cmty. Health Ctr., 488 N.W.2d 567, 573 (Neb. 1992)).
For example, in Riggs, the Court found that Riggs failed to prove the element of severe emotional distress where Riggs did not receive medical treatment for his alleged mental anguish. Riggs' testimony that he experienced an "`icky feeling'" and nervousness was insufficient. Id. at 1172-73.
In Stearns' case, he underwent medical testing for possible heart and gallbladder disorders. However, all of Stearns' tests were negative. Stearns did not seek other medical or psychological treatment for his alleged emotional distress. Finally, Stearns did not take, either before or after his employment with Agriliance, medications relating directly or indirectly to his alleged emotional distress.
Like Riggs, Stearns has not proved that the alleged conduct at Agriliance caused "severe" emotional distress. Because Stearns failed to prove the second and third factors of his prima facie case, his claim of intentional infliction of emotional distress must fail.
CONCLUSION
For the reasons discussed, the Court will grant the Motion for Summary Judgment filed by the Defendant, Agriliance, L.L.C. The Court will deny the Defendant's Motion in Limine as moot.
JUDGMENT
In accordance with the Memorandum and Order issued on this date,
IT IS ORDERED:
1. The Motion for Summary Judgment filed by the Defendant, Agriliance, L.L.C. (Filing No. 21) is granted;
Judgment is entered for the Defendant and against the Plaintiff; and
3. The Defendant's Motion in Limine (Filing No. 32) is denied as moot.