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Arkansas Supreme Court
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No. 02-713
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352 Ark. 548, 103
S.W.3d 671, 2003.AR.0000467 <http://www.versuslaw.com>
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April 17, 2003
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BECKY ISLAND, APPELLANT,
v.
BUENA VISTA RESORT AND GEORGE
BOGDANOV, APPELLEES,
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APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT, NO. CR-2000-590-IV, HON.
TOM SMITHERMAN, JUDGE, AFFIRMED IN PART; REVERSED AND REMANDED IN
PART.
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The opinion of the court was delivered by: Ray Thornton, Associate
Justice
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On September 6, 2000, appellant, Becky Island, filed a complaint
against appellees, Buena Vista Resort and George Bogdanov. In her
complaint, appellant asserted that she was an employee of Buena Vista
Resort and that Bogdanov was the owner of Buena Vista Resort [BVR]. The
complaint further alleged that during her employment with Buena Vista
Resort, Bogdanov approached her and propositioned her for sex. The
complaint also alleged that Bogdanov had made lewd comments to appellant
on several occasions. Finally, the complaint alleged that when appellant
rejected Bogdanov's sexual advances, she was treated poorly, and
eventually terminated from her job.
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Based on the factual allegations, appellant asserted three causes of
actions. First, she alleged that appellee Bogdanov's behavior violated the
Arkansas Civil Rights Act. Next, she argued that appellees' actions were
outrageous and caused her to suffer severe emotional distress. Finally,
she asserted that she was wrongfully discharged in violation of the public
policy of the State of Arkansas.
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On January 30, 2002, appellees filed a motion seeking summary
judgment. An affidavit from Bogdanov was attached to their motion. In his
affidavit, Bogdanov stated that the reason appellant was terminated was
because he was going to give her job to his son. He also denied that he
had solicited appellant for sex or treated her differently during her
employment. In support of their motion for summary judgment, appellees
also attached appellant's claim for unemployment benefits in which
appellant stated that she was separated from her job because "[Bogdanov]
brought [his] son back to run [the] business." Finally, appellees attached
appellant's deposition testimony to their motion for summary
judgment.
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Appellees also filed a brief in support of their motion for summary
judgment. In their brief, they argued that appellant admitted that she was
terminated for reasons other than rebuffing Bogdanov's sexual advances.
They asserted that appellant admitted that she was terminated: (1) because
Bogdanov's son was going to take her job; or (2) because her friend
allegedly took some pears from Bogdanov's pear tree.
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Additionally, appellees argued that appellant's claim under the
Arkansas Civil Rights Act "must fail." They argued that "the Act protects
persons against discrimination based on their status, it establishes
certain protected classes, specifically, race, religion, national origin,
gender, and disability. However, as has been shown, the termination of the
plaintiff had nothing to do with her gender, but instead to a gender
neutral reason."
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Appellees also asserted that they were entitled to summary judgment on
appellant's "tort of outrage" cause of action. They argued that Bogdanov's
behavior did not rise to the level of outrageous and that appellant did
not suffer severe emotional distress.
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On February 19, 2002, appellant responded to appellees' motion for
summary judgment. Appellant asserted that there were outstanding factual
issues and that therefore summary judgment was not proper. Specifically,
she argued that the jury should be permitted to determine the reason for
her termination. She also asserted that she had established: (1) a
violation of the Arkansas Civil Rights Act; (2) a cause of action for the
tort of outrage; and (3) a cause of action for wrongful discharge.
Attached to her response were copies of her deposition, Bogdanov's
deposition, an affidavit from Mary Caldwell, and appellees' answers to
interrogatories.
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In a brief in support of her response to appellees' motion for summary
judgment, appellant argued that there were outstanding factual disputes
that must be resolved by a jury. First, she argued that a jury must
determine whether Bogdanov's behavior constituted sexual harassment in
violation of the Arkansas Civil Rights Act. Next, she argued that the jury
should determine whether appellant was terminated for rebuffing Bogdanov's
sexual advances. Finally, she argued that a jury should determine whether
Bogdanov's actions supported a claim for outrage.
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In a response to appellant's response, appellees argued that sexual
harassment is not covered by the Arkansas Civil Rights Act and that the
trial court could not look to federal Title VII cases when considering
appellant's cause of action under that Act. Appellant countered this
assertion.
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On March 5, 2002, a hearing was held on appellees' motion for summary
judgment. On April 16, 2002, the trial court issued its findings of fact
and conclusions of law. The trial court found that there were no genuine
issues of fact, and granted appellees' motion for summary judgment. The
trial court also found as a matter of law that appellant was terminated
because Bogdanov wanted to rehire his son. Next, the trial court concluded
that because appellant's termination was not based on her gender, she
failed to establish a cause of action pursuant to the Arkansas Civil
Rights Act. Additionally, the trial court found that appellees were
entitled to summary judgment on the wrongful-termination cause of action
because appellant was an at-will employee, and as such, could be
terminated at any time. Finally, the trial court found that appellees'
actions did not support a claim of outrage.
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It is from this order that appellant appeals. We conclude that there
are unresolved questions of fact relating to appellant's civil- rights
claim and wrongful-termination claim, and remand the matter for
development of those issues.
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In Palmer v. Council on Economic Education, 344 Ark. 461, 40 S.W.3d
784 (2001), we outlined the rules governing motions for summary judgment.
We wrote:
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[W]e need only decide if the granting of summary judgment was
appropriate based on whether the evidentiary items presented by the moving
party in support of the motion left a material question of fact
unanswered. The burden of sustaining a motion for summary judgment is
always the responsibility of the moving party. All proof submitted must be
viewed in a light most favorable to the party resisting the motion, and
any doubts and inferences must be resolved against the moving party. Our
rule states, and we have acknowledged, that summary judgment is proper
when a claiming party fails to show that there is a genuine issue as to a
material fact and when the moving party is entitled to summary judgment as
a matter of law.
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Once a moving party establishes a prima facie entitlement to summary
judgment by affidavits or other supporting documents or depositions, the
opposing party must demonstrate a genuine issue of material fact by
meeting proof with proof. Furthermore, the moving party may present
pleadings, depositions, answers to interrogatories, admissions on file,
and affidavits, if any, to support the burden of showing entitlement to
summary judgment as a matter of law. Id. (Citing Crockett v. Essex Home.
Inc., 341 Ark. 558, 19 S.W.3d 585 (2000)). Additionally, in Flentje v.
First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000), we
noted:
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[W]e will not engage in a "sufficiency of the evidence" determination.
We have ceased referring to summary judgment as a drastic remedy. We now
regard it simply as one of the tools in a trial court's efficiency
arsenal; however, we only approve the granting of the motion when the
state of the evidence as portrayed by the pleadings, affidavits, discovery
responses, and admission on file is such that the nonmoving party is not
entitled to a day in court, i.e., when there is not any genuine remaining
issue of fact and the moving party is entitled to judgment as a matter of
law. Id. However, when there is no material dispute as to the facts, the
court will determine whether "reasonable minds" could draw "reasonable"
inconsistent hypotheses to render summary judgment inappropriate. In other
words, when the facts are not at issue but possible inferences therefrom
are, the court will consider whether those inferences can be reasonably
drawn from the undisputed facts and whether reasonable minds might differ
on those hypotheses. Flentje, supra.
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Guided by our rules governing the granting of summary judgment, we
turn to appellant's first point on appeal. Appellant argues that the trial
court erred when it determined that the Arkansas Civil Rights Act does not
provide protection from workplace sexual harassment as a matter of law.
The Arkansas Civil Rights Act, originally enacted in 1993, and codified at
Ark Code Ann. 16-123-101 et seq., provides citizens of this State legal
redress for civil-rights violations of State constitutional or statutory
provisions, hate offenses, and discrimination offenses.
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We have not had an opportunity to determine whether workplace sexual
harassment is covered under the Arkansas Civil Rights Act. However, the
express language of the Act appears to forbid such behavior. Specifically,
Ark. Code Ann. § 16-123-107 (Supp. 2001) provides:
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(a) The right of an otherwise qualified person to be free from
discrimination because of race, religion, national origin, gender, or the
presence of any sensory, mental, or physical disability is recognized as
and declared to be a civil right. This right shall include, but not be
limited to:
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(1) The right to obtain and hold employment without discrimination.
Id. This language may be interpreted as prohibiting discrimination such as
workplace sexual harassment. However, because the Arkansas Civil Rights
Act does not include language specifically prohibiting "work- place sexual
harassment," we look to the federal courts for guidance. We have explained
that our state courts may look to federal decisions for persuasive
authority when considering claims under the Arkansas Civil Rights Act. See
Faulkner v. Arkansas Children's Hospital, 347 Ark. 941, 69 S.W.3d 393
(2002); Rudd v. Pulaski County Special School District, 341 Ark. 794, 20
S.W.3d 310 (2000); Flentje, supra.
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Additionally, we note that the Arkansas Civil Rights Act expressly
instructs us to look to federal civil-rights law when interpreting the
Act. Specifically, Ark. Code Ann. § 16-123-105 (Supp. 2001) states: (c)
When construing this section, a court may look for guidance to state and
federal decisions interpreting the federal Civil Rights Act of 1871, as
amended and codified in 42 U.S.C. § 1983, as in effect on January 1, 1993,
which decisions and act shall have persuasive authority only. Ark. Code
Ann. § 16-123-105.
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Because we have not had an opportunity to consider this issue, and
because the Arkansas Civil Rights Act instructs us to look to federal
civil-rights law when interpreting the Act, we look now to Title VII and
federal cases interpreting Title VII for guidance on sexual-harassment
claims brought pursuant to the Arkansas Civil Rights Act. The federal
courts have recognized a cause of action for sexual harassment under the
following Title VII language:
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It shall be an unlawful employment practice for an employer -- (1) to
fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin. 42 U.S.C. §
2000e-2(a)(1).
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In Henderson v. Simmons Foods Inc., 217 F.3d 612 ( 8th Cir. 2000), the
Eighth Circuit Court of Appeals reviewed a sexual-harassment claim filed
pursuant to the Arkansas Civil Rights Act. The Court of Appeals noted
"claims premised under the Arkansas Civil Rights Act of 1993 are analyzed
in the same manner as Title VII claims. See Ark. Code Ann. §
16-123-103(c)." Henderson, supra. Based upon its interpretation of our
law, the Court of Appeals applied Title VII case law to Ms. Henderson's
claim and determined that her employer had violated the Arkansas Civil
Rights Act.
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There are two distinct sexual-harassment claims which may be brought
pursuant to Title VII. See Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986); Smith v. Foote's Dixie Dandy, Inc., 941 F. Supp. 807 (E.D. Ark.
1995). A worker may claim that she was subjected to sexual harassment due
to a hostile work environment or a worker may claim that she was subjected
to sexual harassment based on quid pro quo.
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The plaintiff in Henderson, supra, argued that she suffered sexual
harassment due to exposure to a hostile work environment. The Court of
Appeals explained that "Title VII forbids sexual harassment in the
workplace and imposes liability upon employers who tolerate a hostile work
environment." There are five elements that must be present to establish a
hostile work environment sexual-harassment claim pursuant to Title VII.
Henderson, supra. Specifically,
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[A] plaintiff asserting a hostile work environment claim must show (1)
membership in a protected group or class, (2) unwelcome sexual harassment
(3) based upon gender (4) resulting in an effect on a term, condition, or
privilege of employment, and (5) that the employer knew or should have
known about the harassment and failed to take proper remedial action. See
Staton v. Maries County, 868 F.2d 996, 998 (8th Cir. 1989). In addition,
the plaintiff must show that the sexual harassment created an environment
that was both objectively and subjectively abusive. See Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993). Henderson, supra.
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In Smith v. Foote's Dixie Dandy, Inc., supra, a case from the Arkansas
Eastern District Federal Court in which a sexual-harassment claim was
brought pursuant to the Arkansas Civil Rights Act and Title VII, the
District Court explained:
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For a plaintiff [t]o make a prima facie case of quid pro quo
harassment, [she] must show that (1) she was a member of a protected
class; (2) she was subjected to unwelcome sexual harassment in the form of
sexual advances or requests for sexual favors; (3) the harassment was
based on sex; and (4) her submission to the unwelcome advances was an
express or implied condition for receiving job benefits or her refusal to
submit resulted in a tangible job detriment. Id. (Citing Cram v. Lamson
& Sessions Co., 49 F.3d 466 (8th Cir.1995) (internal citations
omitted).
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After reviewing the foregoing case law, we are persuaded that the
trial court erred in determining that the Arkansas Civil Rights Act is not
applicable to workplace sexual harassment.
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Next, we must consider whether an issue of fact remains unresolved as
to whether appellant was subjected to workplace sexual harassment. In the
case now before us, appellant alleged in her complaint that "defendants'
[Bogdanov's] behavior violated the plaintiff's rights in the workplace
which are protected under the Arkansas Civil Rights Act." In support of
this claim, appellant offered evidence of numerous facts. Appellant
alleged that Bogdanov, who was her supervisor and owner of the business,
offered to suspend her rent if she would have sex with him once a week.
Appellant further alleged that Bogdanov asked if he could touch her
breasts. She asserted that Bogdanov would also tell appellant about his
sex life in "graphic detail" and that Bogdanov offered to purchase a car
for her in exchange for sexual favors. Appellant also alleged that
Bogdanov would frequently ask her to meet him at a hotel to engage in
sexual activities. Appellant further alleged that Bogdanov made crude
sexual comments to her while she was working. Finally, appellant alleged
that when she firmly rebuffed Bogdanov, he treated her with disdain and
she was terminated shortly thereafter.
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In an affidavit attached to appellees' motion for summary judgment,
appellee Bogdanov responded to appellant's allegations. He stated that he
"never solicited sex from [appellant]. I never did anything more than
comment favorably on her appearance."
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In response to Bogdanov's denial, appellant offered Bogdanov's
deposition. The following questions and answers from the deposition are
relevant:
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Q: [appellant's attorney] Did you ever offer her [appellant] money for
sex?
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A. [Bogdanov] I don't remember that I say that.
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Q. Is it possible that you did?
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A: I don't think, because I'm not a person that can have
money.
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Q: Did you ever ask her to have sex with you?
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A: I don't remember.
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Q: What I'm asking you Mr. Bogdanov is if Ms. Island testifies to the
fact that you did ask her to have sex with you, are you able to dispute
that or will you dispute that?
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A: I don't remember say that.
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Q: Did you ever have conversations with her about your sex life with
your wife?
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A: I don't remember.
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In addition to the deposition testimony, appellant offered the
affidavit of Mary Caldwell, a former employee of Buena Vista Resort, in
support of her sexual-harassment claim. In her affidavit, Ms. Caldwell
stated:
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Mr. Bogdanov began making some inappropriate sexual comments to me.
Then, after a while, he took his actions a step further and began trying
to touch and/or kiss me. Mr. Bogdanov offered me money to have sexual
relations with him. This occurred on numerous occasions. He repeatedly
asked me for sexual favors, and I always told him no. After I would reject
him, however, he would become very angry with me. After a while, however,
he would begin talking to me again and would start his sexual propositions
all over again. It was an endless cycle. Mr. Bogdanov made comments about
my body, including my breasts. He even made sexual comments about him and
his wife's sexual relationship. Mr. Bogdanov would sit in the office and
tell inappropriate nasty jokes.
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Mr. Bogdanov tried to kiss me on more than one occasion, and I had to
tell him no, which resulted in him becoming very angry with me. After I
bought my new vehicle, a Toyota 4-Runner, Mr. Bogdanov offered to pay for
it if I would have sex with him every week. I declined
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Other employees told [me] that Mr. Bogdanov acted in the same manner
towards them. It was a very bad environment to work in, and the worst part
was that there was no one to report his behavior to. Since he was the
owner, there was no way to stop the harassment.
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After reviewing the foregoing depositions and affidavits, we conclude
that there is a genuine issue of material fact which remains to be
resolved. Specifically, we conclude that the issue of whether Bogdanov's
actions constituted sexual harassment in violation of the Arkansas Civil
Rights Act raises questions of fact. His actions must be evaluated and a
question of fact remains whether appellant was subjected to sexual
harassment because she was working in a hostile working environment. There
are also disputed facts that must be resolved before determining whether
appellant was subjected to sexual harassment by offers of quid pro quo.
Because we conclude that there are unresolved factual issues, we reverse
the trial court and remand this case for further development of those
issues.
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Before leaving this point, we note that appellees argue that because
they are able to give a non-gender-based reason for appellant's
termination, she is precluded from pursuing a sexual-harassment claim
under the Arkansas Civil Rights Act. Appellees' contention is misplaced. A
review of the elements that must be established to present a valid sexual-
harassment claim do not require the termination of the harassed employee.
In fact, an employee who is the subject of sexual harassment sometimes
remains an employee after the harassment. A lack of termination, or a
non-gender-based reason for the employee's termination, does not
extinguish a harassed employee's cause of action. Accordingly, we conclude
that the possible existence of a non-gender based reason for appellant's
termination is not determinative of her sexual-harassment
claim.
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In her second point on appeal, appellant argues that the trial court
erred in granting appellees summary judgment as a matter of law on
appellant's claim for wrongful discharge. Specifically, she argues that
although she was an employee-at-will, her termination for an alleged
refusal to engage in sex for compensation violated public policy, and as
such, constituted wrongful discharge.
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We have repeatedly held that when an employee's contract of employment
is for an indefinite term, either party may terminate the relationship
without cause or at will. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743
S.W.2d 380 (1988). However, we have also noted that an at-will employee
cannot be terminated if he or she is fired in violation of a
well-established public policy of the State, but such public policy must
be outlined in our statutes. Palmer, supra. Finally, we have explained
that an at-will employee has a cause of action for wrongful discharge if
he or she is fired in violation of a well-established public policy of the
State. Sterling Drug, supra.
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Considering the foregoing rules of law, we turn now to the case sub
judice. In this case, appellant argues that summary judgment was not
proper because there was a genuine issue of fact as to the reason for her
termination. In her complaint, appellant alleged that "the defendants
wrongfully discharged the plaintiff in violation of the public policy of
Arkansas." In support of her contention, appellant asserted that "during
the first week of September of 1999, the plaintiff had finally had enough
[of unwanted sexual advances] and yelled at him [Bogdanov] to never speak
dirty to her again. The defendant was caught off guard and said something
in a foreign language and walked off. On September 9, 1999, the plaintiff
was terminated from employment." The complaint further explains that prior
to confronting appellant in September of 1999, Bogdanov had sexually
propositioned her on several occasions. She alleged that Bogdanov offered
to give her money to purchase a car and that Bogdanov offered to suspend
her rent in exchange for sexual favors.
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In an affidavit attached to their motion for summary judgment,
Bogdanov stated that "I told the plaintiff that she was being terminated
so that Sosh could return and run the business." Appellees also attached a
notice from the Employment Security Department to their motion for summary
judgment. In this notice, appellant states that she was terminated because
"[appellee] brought [his] son back to run the business."
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In appellant's deposition, which was attached to appellees' motion for
summary judgment, she testified that appellee told her that she was being
terminated so that Bogdanov's son Sosh could take her job. However, in her
deposition, she also testified about the day that she confronted Bogdanov
and stated that shortly thereafter she was terminated.
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After reviewing the evidence, we conclude that there is a material
question of fact that must be resolved. Specifically, we conclude that a
factual issue of whether appellant was terminated in retaliation for
rebuffing Bogdanov's sexual advances or whether she was terminated so that
Bogdanov's son could take appellant's job remains to be
resolved.
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We further conclude that the public policy of the State of Arkansas
prohibits the termination of at-will employees based on retaliation for
rejecting solicitations to engage in sex in exchange for compensation.
This position was fully discussed in Lucas v. Brown & Root, 736 F.2d
1202 (8th Cir. 1984), a case which we cited in Sterling Drug, Inc., supra.
In Lucas, the Eighth Circuit Court of Appeals was asked to review
plaintiff's wrongful discharge claim which had been dismissed pursuant to
Arkansas law. Ms. Lucas alleged that her supervisor had sexually
propositioned her, and that when she rejected him, her employment was
wrongfully terminated. Ms. Lucas's claim was brought pursuant to a breach
of contract claim. After reviewing Ms. Lucas's claim, the Court of Appeals
acknowledged our long-standing doctrine of employment-at-will. The Court
of Appeals also explained that we recognized several exceptions to the
basic rule that an employee-at-will can be terminated for any reason. The
Eighth Circuit stated: The decisions of the Supreme Court of Arkansas
establish two propositions: (1) that employees whose contracts are for no
fixed term may ordinarily be discharged, just as they may ordinarily quit,
for any reason or for no reason; and (2) that there are exceptions to this
rule, coming into play when the reason alleged to be the basis for a
discharge is so repugnant to the general good as to deserve the label
"against public policy." Id. After reviewing the public-policy exception
to the at-will- employment doctrine, the Court of Appeals concluded that
it was against the public policy of the State of Arkansas to terminate an
employee for refusing to submit to sexual advances. The Court of Appeals
continued: On this appeal we sit as just another court of the State of
Arkansas, applying not our own private views of public policy (though no
judge ever completely leaves them behind, because no person can), but the
public policy of Arkansas as it has in the past been declared by the
Supreme Court of the State and as we think it will be declared by that
Court in the future. What we know of the shared moral values of the people
of Arkansas and the considerable clues to be found in positive law point
alike to the conclusion that this complaint does state a claim.
Prostitution is a crime denounced by statute. It is defined as follows:A
person commits prostitution if in return for, or in expectation of a fee,
he engages in or agrees or offers to engage in sexual activity with any
other person. Ark. Stat. Ann. §§ 41-3002(1) (Supp.1983). It is at once
apparent that the shoe fits. A woman invited to trade herself for a job is
in effect being asked to become a prostitute. If this were a criminal
prosecution, it might be argued that a job is not a "fee" within the
meaning of this statute, and a court, applying the maxim that criminal
statutes are to be strictly construed, might agree, holding that "fee"
means only money, and not other things of value. But in this civil action
no such narrow interpretation is required or appropriate. A wage-paying
job is logically and morally indistinguishable from the payment of cash.
Indeed, it necessarily involves the payment of cash. Lucas, supra. Having
concluded that the alleged wrongful termination violated public policy,
the Court of Appeals held: Plaintiff should not be penalized for refusing
to do what the law forbids. And if she can prove that this is in fact what
happened, and that her employer is responsible for it, she can recover
damages for breach of contract. For it is an implied term of every
contract of employment that neither party be required to do what the law
forbids. Id. See also Sterling Drug, supra (discussing Lucas and its
holding).
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We find the reasoning in Lucas very persuasive, and have no hesitancy
in following the Eighth Circuit's lead in holding that the public policy
of the State of Arkansas is violated when an at-will employee is
terminated for rejecting a solicitation to engage in prostitution.
Accordingly, without expressing an opinion as to the reason for
appellant's termination, we hold that if she was terminated for refusing
Bogdanov's sexual propositions, appellant has a valid cause of action for
wrongful termination.
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| [64] |
In her third point on appeal, appellant argues that the trial court
erred in granting appellees summary judgment on her tort of outrage claim.
We have recognized a cause of action for the tort of outrage in an
employment setting. See M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596
S.W.2d 681 (1980). We have explained that liability [for the tort of
outrage] has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. Palmer, supra. (Citing the Restatement (Second) of
Torts § 46 Cmt. d (1965)).
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| [65] |
There are four elements that are necessary to establish liability for
the tort of outrage: (1) the actor intended to inflict emotional distress
or knew or should have known that emotional distress was the likely result
of his conduct; (2) the conduct was extreme and outrageous, was beyond all
possible bounds of decency, and was utterly intolerable in a civilized
community; (3) the actions of the defendant were the cause of the
plaintiff's distress; and (4) the emotional distress sustained by the
plaintiff was so severe that no reasonable person could be expected to
endure it. Faulkner v. Arkansas Children's Hosp., 347 Ark. 941, 69 S.W.3d
393 (2002).
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In the case now before us, appellant's allegations of outrage stem
from appellee Bogdanov's sexual advances. As previously discussed,
appellant's complaint alleged that Bogdanov engaged in the following
behavior: (1) offering to suspend appellant's rent and/or to give
appellant money for the purchase of a new automobile in exchange for sex;
(2) asking to touch appellant's breasts; (3) telling appellant about his
sexual relationship with his wife in "graphic detail;" (4) making "sexual
comments" to appellant about her body; (5) asking appellant to find women
to have sex with him; and (6) asking appellant to meet him at hotels to
engage in sexual activities. In her complaint, appellant also alleged that
"as a result of the defendant's behavior [she] did suffer severe emotional
distress."
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In their answer to appellant's complaint, appellees denied all of
appellant's allegations. Additionally, in his affidavit attached to
appellees' motion for summary judgment, appellee Bogdanov stated "the
allegations against me by the plaintiff are untrue. I never solicited sex
from her. I never did anything more than comment favorably on her
appearance."
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In her deposition testimony, appellant reiterated all allegations of
Bogdanov's unwanted sexual advances and stated that based on her
termination, she was "depressed." In appellee Bogdanov's deposition
testimony, he denied some of appellant's allegations and stated that he
could not remember whether he had engaged in any of her other allegations.
Finally, an affidavit offered by Mary Caldwell corroborated appellant's
allegations of Bogdanov's improper sexual advances towards employees of
Buena Vista Resort.
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After reviewing the evidence, the trial court found: Considering the
allegations of the plaintiff as true, the alleged emotional distress of
the plaintiff was not severe so as to support a claim of outrage. The
plaintiff did not state or allege any peculiar susceptibility to emotional
distress on her part, and the effect on the plaintiff from the alleged
conduct of the defendant, according to her deposition testimony was
inconsequential. In particular, the plaintiff testified that the defendant
sometimes treated her poorly for a short period of time after an incident,
but otherwise the relationship was unaffected.
|
| [70] |
While it is clear that the allegations of Bogdanov's behavior are
egregious, it appears that appellant has failed to offer proof that she
suffered damages or emotional distress so severe that no reasonable person
could be expected to endure it.
|
| [71] |
We have concluded that the factually disputed issue whether appellant
was fired for refusal to engage in sex for compensation gives rise to a
claim for wrongful discharge that will withstand a motion for summary
judgment, and that appellant's showing of sexual harassment prohibited by
the Arkansas Civil Rights Act was sufficient to withstand a motion for
summary judgment. However, appellant does not show, by affidavit or other
proof, that she has suffered damages or emotional distress so severe that
no reasonable person could endure it. In fact, it appears that she did
endure the alleged harassment for several years before she firmly rejected
his alleged advances and yelled at him "to never speak dirty to [me]
again." We conclude that appellant has not offered proof showing that as a
result of Bogdanov's behavior she suffered that level of damages or
emotional distress sufficient to sustain an action for the tort of
outrage. Accordingly, we affirm the trial court on this
issue.
|
| [72] |
In appellant's final point on appeal, she argues that the trial court
"clearly erred when it accepted as true all of the facts set forth by Mr.
Bogdanov and BVR, and totally ignored the facts set forth by Ms. Island."
This argument appears to be repeating arguments raised in appellant's
previous points on appeal. Having concluded that summary judgment was not
proper on two of appellant's causes of action, we agree with appellant's
contention. Specifically, we hold that because there are unresolved fact
questions the trial court erred when it granted appellees' motion for
summary judgment.
|
| [73] |
We conclude that allowing appellant her day in court for the
consideration of factual issues relating to her allegations of a violation
of our civil-rights act, and a violation of our public policy against
wrongful discharge for refusing to breach a statutory prohibition against
prostitution is required to resolve the disputed facts remaining in this
case. Therefore, we remand this case to the trial court for development of
those issues.
|
| [74] |
Affirmed in part; reversed and remanded in part.
|
| [75] |
Corbin, J., not participating.
|
