About two years ago, in a sudden maneuver, eight executives walked out on their former employer en masse to start Acme, a new, non-union company they could call their own. Their business plan included locating the entrepreneurial venture in an economically depressed county. Their thinking was that this would give them their choice of only the best workers in the area. But life doesn’t always work out that way. The wrinkles, they soon discovered, were the county’s low population density and that most of the people living there are well beyond their prime working years. After two years of operation, the privately held firm remains relatively small, both in physical size and bottom-line results.
Donny Brouke, one of the gang of eight, is in charge of manufacturing operations and he spends most of his time on the plant floor attending to problems as they arise.
Eighteen months ago, Donny recognized the need to have a full-time production coordinator to help keep things moving smoothly. The results of running classified ads in the newspapers in the three closest towns for six weeks straight netted a total of three responses. Faced with this dearth of interested talent, Donny based his hiring decision on one candidate’s previous experience in a similar job five years ago, as well as the glowing recommendation from her former employer. Thus it was that Bette Noare became Donny’s new hired hand.
Bette wasted no time in mastering the intricacies of the Acme production system. She even introduced some of her own innovations to simplify the paperwork that represented the Acme work process. Under her auspices, things ran fairly smoothly, but not always. Nevertheless, it’s a job she took quite seriously despite the stress that comes with the territory.
It’s obvious when Bette’s stress level rises because she vents her feelings quite openly. For example, it’s not uncommon for her to initiate loud arguments with peers and supervisors. Her favorite target is Donny, whom she shouts at and cusses out -- and does it toe-to-toe. She has been known to file false police reports about Donny, and she regularly threatens to take legal action against both Donny and Acme.
These fits always give Donny a mega-jolt of adrenaline, which he dissipates by going outside to walk around the building until he calms down. It was during one such stroll that he got himself embroiled in an incident with three pedestrians taking a shortcut across the Acme parking lot. The hubbub attracted the attention of several Acme employees, including Bette. One of the pedestrians called the police and Donny was arrested and taken away.
At the criminal trial that ensued, Bette testified against Donny. When all was said and done, Donny was convicted of a petty misdemeanor, but wasn’t incarcerated.
A few months later, after one of her major snits, Bette sued Acme and Donny over a smorgasbord of issues. Her claims included sexual harassment, failure to pay earned wages, breach of contract, violation of the whistle-blower statute and several other acts of wrongdoing on Acme’s part.
Fed up with this kind of work environment, Donny countersued claiming, among other things, that Bette intentionally inflicted severe emotional distress on him. Then, about a month later, Donny fired Bette with cause, claiming that she couldn’t work well with other employees and that her job performance was subpar.
How could this situation have been avoided?
An attorney says:
Bette is what one of my former colleagues always labeled as “high-strung.” This type of employee often is highly skilled and conscientious but requires careful handling to avoid the pitfalls Donny experienced. Actually, it sounds like Donny is pretty high-strung himself. Together, the two are like oil and water.
At the outset, Bette’s conduct when stressed out -- initiating loud arguments with peers and supervisors -- is totally inappropriate. Perhaps Donny should have cast his net wider in trying to fill the coordinator job. Having made the hiring mistake, Donny could have taken one of two routes to solve the Bette problem. First, he could have given Bette warnings about her inappropriate conduct and ultimately terminated her had she failed to shape up. Second, he could have directed Bette to counseling, an employee assistance program counselor, or recommended a job coach.
Perhaps eliminating Bette’s inappropriate conduct would have solved the problem of Donny’s equally inappropriate conduct. As one of the business owners, Donny’s out-of-control behavior is particularly dangerous to the fledgling enterprise. Conduct, such as sexual harassment, committed by an owner of the company virtually always results in the employer being held liable for that conduct.
As for both Bette’s and Donny’s lawsuits, there is not much evidence that either is meritorious. There’s no evidence here that Donny harassed Bette because of her sex or engaged in any inappropriate sexual conduct toward her. Donny may have been unhappy that Bette testified against him in the criminal trial, but there’s no evidence that he took any action against her because of that testimony, and there’s little to support a whistle-blower claim.
As for Donny’s suit, courts generally hold that to support a claim of intentional infliction of severe emotional distress, one must engage in conduct that goes beyond the bounds of all possible decency. Again, there is little evidence of that type of conduct on Bette’s part.
Perhaps the real solution for Acme is to provide its employees with some type of diversity training so they learn to deal with individuals of different work styles and emotional sensitivity.
Julie Badel, partner