McNeil v. Case W. Res. Univ. , 105 Ohio App. 3d 588 ( 1995 )

I respectfully dissent from the majority's decision regarding plaintiff's claim for intentional infliction of emotional distress, because plaintiff met its burden of establishing the essential elements of a prima facie case.

First, plaintiff has alleged that defendant had a written policy of terminating employees at age seventy and never revoked this policy. Defendant has not denied that it adopted such a policy. Nor has defendant denied that it never officially revoked this written policy, which was in clear violation of the law since 1987.¹ For a university to retain in its formal personnel manual a policy in violation of the law for years is evidence of outrageous behavior to every employee including McNeil.

In addition, plaintiff has, in affidavit form, made specific allegations concerning harassment by co-workers and supervisors at work. This harassment was in the form of threats of violence and statements urging McNeil to retire. Her son stated that because of such threats, he had to pick up his mother each night from work. Even in today's hardened society, threatening an elderly woman with violence is outrageous. Additionally, affidavits allege McNeil's supervisors repeatedly urged her to retire. Defendant's witnesses deny these claims, and defendant has offered alternative explanations of the circumstances detailed by plaintiff regarding the threat of violence. Plaintiff, however, is not required to rebut those alternative explanations or to bear the burden of persuasion regarding the threats or admonitions to retire. Taken as a whole, plaintiff has presented a prima facie case of age discrimination which meets the test of outrageous behavior under an intentional tort. The resolution of this factual dispute is a matter for the jury to decide.

Second, I am not persuaded that the defendant has shown there is no question of fact as to whether McNeil suffered severe emotional distress from the alleged outrageous behavior. The majority concedes that "defendant's acts may have caused McNeil stress." More crucial, however, is that McNeil's doctor met the threshold test for this case. Plaintiff's expert concluded to a reasonable degree of medical certainty that the psychological stress McNeil experienced at work, as described in her daughter's answers to interrogatories, precipitated her death.

I appreciate that plaintiff will have considerable difficulty bearing the burden of persuasion linking the general stresses McNeil's children reported, and which the doctor relied upon, to the immediate cause of her death. To deny proximate cause on this basis, however, would require testimony from an expert stating that her death could not result from those general stressors. The defense, however, did not provide any expert's opinion to contradict plaintiff's. The unchallenged testimony of plaintiff's expert thus provides sufficient evidence of causation for a prima facie case of intentional tort. His credibility is not a matter for this court to determine. Rather, this court must decide defendants' motion for summary judgment by viewing the evidence in a light most favorable to the nonmoving party. Moreover, tort law does not require that defendant's actions be the only cause of McNeil's death.Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585,575 N.E.2d 828.

Convinced that plaintiff has established the elements of a claim of intentional infliction of emotional distress sufficient to defeat a motion for summary judgment, I would reverse the trial court's decision granting summary judgment in favor of the defendant.

¹ Defendant claims, rather, that it never implemented such a policy, although defendant provides no evidence that its supervisory staff were instructed to reject the written policy.