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Supreme Court of Arkansas.
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00-333
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344 Ark. 461, 40
S.W.3d 784, 2001.AR.0002186< http://www.versuslaw.com>
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April 19, 2001
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SANDRA PALMER, APPELLANT,
V.
ARKANSAS COUNCIL ON ECONOMIC
EDUCATION, RPL MANAGEMENT RESOURCES, INC., JIM GLENN, SONYA SCHMIDT, AND
POLLY JACKSON, APPELLEES.
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SYLLABUS BY THE COURT
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1. Judgment — summary judgment — standard of review. — In reviewing
summary-judgment appeals, the supreme court need only decide if granting
of summary judgment was appropriate based on whether 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. |
[344 Ark Page 462]
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2. Judgment — summary judgment — when proper. — 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; 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; 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.
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| [9] |
3. Contracts — employment at will — termination without cause. — When
an employee's employment is for an indefinite term, either party may
terminate the relationship without cause or at will.
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| [10] |
4. Contracts — employment at will — reliance on personnel manual or
employment agreement. — Where an at-will employee who is employed for an
indefinite term relies on a personnel manual or employment agreement that
expressly states that he or she cannot be discharged except for cause, the
employee may not be arbitrarily discharged in violation of such a
provision.
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| [11] |
5. Contracts — employment at will — exceptions. — Arkansas law
recognizes at least four exceptions to the at-will doctrine, excluding
implied contracts and estoppel; these exceptions are: (1) cases in which
the employee is discharged for refusing to violate a criminal statute; (2)
cases in which the employee is discharged for exercising a statutory
right; (3) cases in which the employee is discharged for complying with a
statutory duty; and (4) cases in which employees are discharged in
violation of general public policy of the state.
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| [12] |
6. Contracts — employment at will — public-policy exception. — An
employer should not have an absolute and unfettered right to terminate an
employee for an act done for the good of the public; therefore, 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; this
is a limited exception to the employment-at-will doctrine; it is not meant
to protect merely private or proprietary interests; in finding a violation
of public policy, it is generally recognized that the public policy of a
state is found in its constitution and statutes.
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| [13] |
7. Estoppel — collateral estoppel — elements. — Collateral estoppel,
or issue preclusion, bars relitigation of issues of law or fact previously
litigated by the parties; when an issue of fact or law is actually
litigated and determined by a valid and final judgment and the
determination is essential to the judgment, the determination is |
[344 Ark Page 463]
conclusive in a subsequent action between the parties;
the elements of collateral estoppel are: (1) the issue sought to be
precluded must be the same as that involved in the prior litigation; (2)
the issue must have been actually litigated; (3) it must have been
determined by a valid and final judgment; and (4) the determination must
have been essential to the judgment; a federal-court judgment may preclude
relitigation of issues in state court.
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| [14] |
8. Estoppel — appellant precluded under doctrine of collateral
estoppel from rearguing issue — appellee not public employer. — Where the
Eighth Circuit had already decided that appellee Council was not an agency
or instrumentality of the State, appellant was precluded under the
doctrine of collateral estoppel from rearguing the issue of whether the
Council was an agency of the State, and consequently a "public employer";
because the Council was not a "public employer," the argument that
appellant was entitled to the protection of Ark. Code Ann. § 21-3-203
(Repl. 1996) failed.
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| [15] |
9. Contracts — termination of at-will employee — appellant failed to
prove public-policy violation. — Where appellant failed to offer statutory
authority to show that her dispute was based upon a violation of the
public policy of Arkansas because there were no state statutes that
prohibited an entity from combining state and private funds, appellant
failed to demonstrate that she was wrongfully discharged because of her
opposition to commingling state and private funds.
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| [16] |
10. Torts — nature & elements — interference with contractual
rights. — Under Arkansas law, a malicious and wilful interference with
contractual rights and relationships of another has been recognized as an
actionable tort.
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11. Torts — claim of tortious interference — necessary elements. — In
order to establish a claim for tortious interference with a contract, a
plaintiff must establish (1) the existence of a valid contractual
relationship; (2) knowledge of the relationship on the part of the third
party; (3) intentional and improper interference by that third party
inducing or causing a breach or termination of the relationship; and (4)
resulting damage to the plaintiff.
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| [18] |
12. Contracts — successful claim for interference with contractual
relation — allegations & proof. — A successful claim for interference
with a contractual relation must allege and prove that a third person did
not enter into or failed to continue a contractual relationship with the
claimant as a result of unauthorized conduct of the
defendant.
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| [19] |
13. Contracts — action for tortious interference — employees of
council were not third parties. — An action for tortious interference with
a contractual relationship is based upon a |
[344 Ark Page 464]
defendant's conduct toward a third party; here, it was
undisputed that the Director, Chairman, and Assistant Director were
employees of the Council and were not third parties for the purposes of
appellant's tortious-interference claim.
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14. Contracts — tortious interference — party to contract & agents
cannot be held liable for. — A party to a contract, and its agents acting
in the scope of their authority, cannot be liable for interfering with the
party's own contract.
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| [21] |
15. Contracts — action for tortious interference — employees of
Council were not third parties. — Where the consulting firm acted as an
agent for the Council, the firm could not be held liable for interfering
with an employment relationship between appellant and the Council because
it was an agent acting at the request of and on behalf of the
Council.
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| [22] |
16. Torts — tort of outrage — liability. — Liability has been found
under the tort of outrage only where 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.
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17. Torts — tort of outrage — necessary elements. — Four elements 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
defendant were the cause of 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; the trial court must determine as a
matter of law whether the conduct may reasonably be regarded as so
outrageous as to permit recovery; merely describing conduct as outrageous
does not make it so.
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18. Torts — tort of outrage — appellant failed to state claim. —
Appellant failed to state a claim for the tort of outrage where she merely
alleged that she had disagreed with the Director and Chairman over use of
the Council's funds, that she had been improperly written up for
performance problems, that she had been improperly placed on probation,
and that she had been wrongfully terminated; appellant failed to show the
Council's intent to inflict emotional distress, and her allegations did
not meet the strict requirements for a claim for tort of outrage in an
employment-termination situation; in order for appellant to have
prevailed, she must have proven that her emotional distress was much more
severe, that such conduct was "extreme and outrageous," was |
[344 Ark Page 465]
"beyond all possible bounds of decency," and was
"utterly intolerable in a civilized community"; the allegations made by
appellant did not meet these requirements.
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APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, CV 98-2785, HON. CHRIS
PIAZZA, JUDGE, AFFIRMED.
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Eichenbaum, Liles & Hester, P.A., by: James H. Penick, III, for
appellant.
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Cross, Gunter, Witherspoon & Galchus, P.C., by: Dona S. Galchus
and Abraham W. Bogoslavsky, for appellees.
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Wright, Lindsey & Jennings, by: Bettina E. Brownstein and William
Stuart Jackson, for appellee Rpl Management Resources, Inc.
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The opinion of the court was delivered by: Ray Thornton, Associate
Justice
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Appellant, Sandra B. Palmer, was employed with the Arkansas Council on
Economic Education ("Council") from October 11, 1965 until October 3,
1995, when she was terminated at fifty-four years of age by the Council's
acting chairman, Jim Glenn ("Chairman"), and its executive director, Sonya
Schmidt ("Director"), with the approval of the assistant director, Polly
Jackson ("Jackson"). The appellees include the Council, Chairman,
Director, Jackson, and RPL Management Resources, Inc. ("RPL"), a human
resources consulting firm hired by the Council. Upon termination,
appellant brought an action against the Council for age discrimination
under the Arkansas Public Employer Age Discrimination Act, Ark. Code Ann.
§§ 21-3-201 to 21-3-205 (Repl. 1996). She also asserted common-law claims
of wrongful discharge, tortious interference with employment relations,
and the tort of outrage against all appellees. The trial court granted
appellees' summary-judgment motion, and we affirm.
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I. Background
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On October 11, 1965, appellant began working for the Council as an
at-will employee and held the position of secretary. She eventually was
promoted to administrative assistant for the Council. Appellant's duties
and responsibilities as the Council's administrative assistant included
maintaining the Council's financial records, including certificates of
deposit, depositing funds, handling various accounts, and working with the
Council's accountants to prepare financial statements. Appellant also
prepared mailings for workshops |
[344 Ark Page 466]
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and performed other related administrative tasks. During her
thirty-year career before July of 1995, appellant was never disciplined
for failing to properly perform any of her duties.
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The Council is chartered with the State of Arkansas as a private,
nonprofit corporation that was formed for the purpose of promoting
economic education in elementary and secondary schools in Arkansas. The
Council's five employees are paid by the Council rather than through the
state payroll, and its employees are not entitled to state benefits. The
Arkansas Department of Education ("ADE") exercises no control over the
Council's employees, and the Director of the Council is responsible for
hiring and firing its employees.
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The Council's operations are subsidized through the use of the State's
postal services and telephone services, and beginning in 1979, the Council
leased space in the Arch Ford Education Building. The Council's yearly
funding included a $200,000 state grant from the Department of Education's
budget and from workshops that are conducted at state universities. The
Council also receives funding through local businesses and individuals.
The Council's annual revenues for 1995 aggregated
$455,047.63.
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The Council's Director assumed her position on July 5, 1995. During
the Director's first staff meeting, appellant challenged the Director for
disallowing a day off of work for appellant's beauty shop appointment. On
August 3, 1995, appellant confronted Jackson about a memo written several
years earlier concerning appellant's work performance. Jackson became
upset over this confrontation and threatened to resign. During this time,
appellant also voiced her concerns to the Chairman and the Director over
their decision to deposit the Council's state and private funds into one
bank account.
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On August 4, 1995, the Director placed appellant on probation, citing
her for insubordination, specifically "lack of respect," "no[t] buying
into [the] new office culture," and "[lack of] mutual trust — no hidden
agendas." Before August 4, 1995, the Chairman retained the services of a
human resources consultant, R. Landerville ("Landerville") at RPL. On
August 9, 1995, Landerville came to Little Rock to assist the Council in a
review of its personnel policies, job descriptions, and general office
procedures. On August 16, 1995, the Chairman and the Director specifically
discussed with Landerville their employment problem with appellant.
Landerville suggested various ways to handle appellant's |
[344 Ark Page 467]
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performance problems, and on August 25, 1995, appellant was removed
from her probationary status.
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After removing appellant from probation, the Director again
encountered problems with appellant and informed the Chairman and
Landerville that appellant undermined her authority, that she no longer
trusted appellant, and that she did not feel comfortable being away from
the office when appellant was there. On September 6, 1995, the Director
recommended to the Chairman that the Council terminate appellant's
employment. The Chairman again asked for Landerville's advice, and a memo
documenting appellant's performance was edited by the Director, the
Chairman, and Landerville. Appellant was then terminated on October 3,
1995.
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Following her termination, appellant filed a charge of age
discrimination with the Equal Employment Opportunity Commission ("EEOC").
The EEOC issued a right-to-sue letter and found that the Council did not
have the requisite number of employees for jurisdiction under the Age
Discrimination in Employment Act ("ADEA"), pursuant to 29 U.S.C. § 621-634
(1994 and Supp. 1995, 1996, 1997, 1998). After receiving the right-to-sue
letter, appellant brought suit in federal court against the Council, the
ADE, and the State of Arkansas. The United States District Court for the
Eastern District of Arkansas granted the Council's motion to dismiss.
Appellant appealed the decision to the Eighth Circuit Court of Appeals,
and the case was affirmed. On appeal, the Eighth Circuit upheld the
district court's ruling that the Council was not an agency or
instrumentality of the State of Arkansas.
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Appellant filed the present lawsuit in state court, alleging that the
Council had violated the Arkansas Public Employer Age Discrimination Act,
Ark. Code Ann. §§ 21-3-201 to 21-3-205. Further, appellant alleged that
the Director, Chairman, Jackson, and RPL interfered with a business
relationship, and committed the tort of outrage. The Second Division of
Pulaski County Circuit Court granted appellees' motion for summary
judgment. From this order, appellant brings her appeal.
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II. Standard of review
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[1, 2] Our standard of review for summary-judgment appeals was set
forth in Crockett v. Essex Home, Inc., 341 Ark. 558, 19 S.W.3d 585 (2000),
where we stated: |
[344 Ark Page 468]
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In these cases, we 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.
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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.
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Crockett, supra (quoting Milam v. Bank of Cabot, 327 Ark. 256, 937
S.W.2d 653 (1997)) (citations omitted); see also Ark.R.Civ.P.
56.
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III. Wrongful-discharge claims
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[3] Our well-established rule is that when an employee's 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). We modified the employment-at-will doctrine to provide
that where an at-will employee (one employed for an indefinite term)
relies on a personnel manual or employment agreement that expressly states
that he or she cannot be discharged except for cause, the employee may not
be arbitrarily discharged in violation of such a provision.
Id.
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| [50] |
[4-6] In Sterling, supra, we stated:
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[W]e have no hesitancy in concluding that Arkansas law would recognize
at least four exceptions to the at-will doctrine, excluding implied
contracts and estoppel. These are: (1) cases in which the employee is
discharged for refusing to violate a criminal statute; (2) |
[344 Ark Page 469]
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cases in which the employee is discharged for exercising a statutory
right; (3) cases in which the employee is discharged for complying with a
statutory duty; and (4) cases in which employees are discharged in
violation of the general public policy of the state.
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| [53] |
Id. In Sterling, supra, we recognized the public-policy exception to
the employment-at-will doctrine when we stated:
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| [54] |
A[n] employer should not have an absolute and unfettered right to
terminate an employee for an act done for the good of the public.
Therefore, we hold 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. This is a limited exception
to the employment-at-will doctrine. It is not meant to protect merely
private or proprietary interests.
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| [55] |
Id. (citations omitted). In finding a violation of public policy, we
have stated that "it is generally recognized that the public policy of a
state is found in its constitution and statutes." Id.
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| [56] |
Appellant contends that two areas of public policy under the Arkansas
Age Discrimination Act and the Fiscal Responsibility Act support her
claims for wrongful discharge. As her first allegation for wrongful
discharge, appellant contends that the trial court erred in determining
that the Council is not a "public employer" under the Arkansas Age
Discrimination Act. She argues that the Council is a public employer, and
therefore, the Council should be subject to the public policy against age
discrimination as set forth in Ark. Code Ann. § 21-3-203, which prohibits
a public employer from discriminating against an employee on the basis of
his or her age. The statute provides:
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| [57] |
(a) It shall be unlawful for a public employer:
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| [58] |
(1) To fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment because of
the individual's age[.]
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| [59] |
Id.
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| [60] |
In making its ruling, the trial court relied upon Palmer v. Arkansas
Council on Economic Education, 154 F.3d 892 (1998), where the Eighth
Circuit held that the Council was a private employer within the definition
of the Age Discrimination in Employment |
[344 Ark Page 470]
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Act ("ADEA") under 29 U.S.C. § 621-634. Palmer, supra. In answering
the question, the court first addressed the issue whether the Council fit
under the definition of employer under the act:
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(b) The term "employer" means a person engaged in an industry
affecting commerce who has twenty or more employees. . . . The term also
means (1) any agent of such a person, and (2) a State or political
subdivision of a State and any agency or instrumentality of a State or a
political subdivision of a state . . . [.]
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| [63] |
Id.
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| [64] |
[7] Because the Council did not have the requisite number of employees
to qualify as an employer under the first part of the definition, the
court then determined whether the Council qualified as "an agency or
instrumentality of the ADE or the State of Arkansas." Id. Citing federal
case law, the court held that the Council was neither an agency nor an
instrumentality of ADE or the State of Arkansas. Id. The Eighth Circuit
stated:
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| [65] |
The facts of this case show that the ACEE is a private employer. The
ACEE's employees do not share in the ADE's or state's employee pension
funds, and they are not subject to a common civil service employment or
grievance policy. While Palmer has shown that the ACEE's creation included
the involvement of people closely tied to the ADE, she has not shown that
either the State of Arkansas or the ADE ever controlled the terms of
employment for the ACEE's employees. Although the ADE provides significant
funding for the ACEE, the ADE does so with the expectation of receiving
value from the ACEE. The fact that the ADE and State of Arkansas rely on
the ACEE to provide services to Arkansas' citizens does not transform the
ACEE into an agency of the ADE or State of Arkansas under the
ADEA.
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| [66] |
Id.
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| [67] |
We are called upon to decide the same issue in this case. Under the
Arkansas Age Discrimination Act, a threshold question is whether the
Council qualifies as an agency of the State. Arkansas Code Annotated §
21-3-201 states:
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| [68] |
For the purposes of this subchapter, unless the context otherwise
requires, "public employer" shall mean any agency, department, board,
commission, bureau, council, institution, or other entity of the state
supported by appropriation of state or federal funds, or |
[344 Ark Page 471]
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| [69] |
any county or municipality or other political subdivision of this
state. "Public employer" specifically includes public universities,
colleges, and public school districts.
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| [70] |
Id.
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| [71] |
Because the Eighth Circuit has already decided the issue whether the
Council is an agency or instrumentality of the State, we first consider
whether our review of the same issue in a dispute between the same parties
is barred from appellate review under the doctrine of collateral estoppel.
Collateral estoppel, or issue preclusion, bars relitigation of issues of
law or fact previously litigated by the parties. Fairchild v. Norris, 317
Ark. 166, 876 S.W.2d 588 (1994). When an issue of fact or law is actually
litigated and determined by a valid and final judgment and the
determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties. Id. The elements of
collateral estoppel are: (1) the issue sought to be precluded must be the
same as that involved in the prior litigation; (2) the issue must have
been actually litigated; (3) it must have been determined by a valid and
final judgment; and (4) the determination must have been essential to the
judgment. Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). A federal
court judgment may preclude relitigation of issues in state court. Scogin
v. Tex-Ark Joist Co., 281 Ark. 175, 662 S.W.2d 819 (1984).
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| [72] |
[8] We conclude that appellant is precluded under the doctrine of
collateral estoppel from rearguing the issue whether the Council is an
agency of the State, and consequently a "public employer." Fairchild v.
Norris, 314 Ark. 221, 861 S.W.2d 111 (1993) (per curiam) (holding that
appellant cannot reassert the issue on appeal and is precluded from doing
so under the doctrine of collateral estoppel). It follows that because the
Council is not a "public employer," the argument that appellant is
entitled to the protection of Ark. Code Ann. § 21-3-203 must
fail.
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| [73] |
As her second allegation for wrongful discharge, appellant argues that
she was wrongfully discharged from her employment with the Council as a
matter of public policy because she voiced her concern over the Council's
placing both state and private funds in the same bank account.
Specifically, appellant argued that the commingling of the funds is
prohibited by the public policy of fiscal responsibility. In support of
her argument, appellant cites the Fiscal Responsibility Act and general
state accounting laws found at Ark. Code Ann. §§ 19-1-601 to 19-1-612
(Repl. 1998), Ark. Code Ann. §§ 19-4-101 to 19-4-2202 (Repl. 1998 and
Supp. 1999), Ark. |
[344 Ark Page 472]
|
| [74] |
Code Ann. §§ 21-5-101 to 21-5-107 (Repl. 1996 and Supp. 1999), and
Ark. Code Ann. §§ 21-5-201 to 21-5-219 (Repl. 1996 and Supp.
1999).
|
| [75] |
We have stated 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
under Counce, supra, but that such public policy must be outlined in our
statutes. Appellant voiced her concern in a staff meeting over commingling
state and private funds in the same bank account. She later
testified:
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| [76] |
There was talk at a staff meeting of depositing the state and private
funds into the same account at a staff meeting. . . . I tried to explain
why we had never done that — because state grant money was subject to
audit at any time . . . . [The Chairman] thought we should have one
checkbook and put the monies together. I suggested to [him] to check with
Senator Keet and Senator Russ because they would know where it was written
and how it came about. I was terminated before I knew what
happened.
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| [77] |
[9] In order to support her argument, appellant must offer statutory
authority to show that her dispute with the Chairman is based upon a
violation of the public policy of Arkansas. Based upon our standard of
review in evaluating an order granting summary judgment under Crockett,
supra, we cannot say that appellant has demonstrated a genuine issue of
material fact by meeting proof with proof. Here, the argument fails
because there are no state statutes, including those statutes cited by
appellant, that prohibit an entity from combining state and private funds.
Appellant conceded this point during her deposition. Because appellant has
not demonstrated that she was wrongfully discharged because of her
opposition to commingling state and private funds, we affirm on this
point.
|
| [78] |
IV. Tortious interference
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| [79] |
[10-12] For her next point on appeal, appellant argues that the
Director, Chairman, Jackson, and RPL tortiously interfered with her
business relationship with the Council. Under Arkansas law, a malicious
and wilful interference with contractual rights and relationships of
another has been recognized as an actionable tort. Mason v. Funderburk,
247 Ark. 521, 446 S.W.2d 543 (1969). In order to establish a claim for
tortious interference with a contract, a |
[344 Ark Page 473]
|
| [80] |
plaintiff must establish (1) the existence of a valid contractual
relationship; (2) knowledge of the relationship on the part of the third
party; (3) intentional and improper interference by that third party
inducing or causing a breach or termination of the relationship; and (4)
resulting damage to the plaintiff. See Mason v. Wal-Mart Stores, Inc., 333
Ark. 3, 969 S.W.2d 160 (1998). We have also said that a successful claim
for interference with a contractual relation must allege and prove that a
third person did not enter into or failed to continue a contractual
relationship with the claimant as a result of the unauthorized conduct of
the defendant. Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635
(1989).
|
| [81] |
[13] An action for tortious interference with a contractual
relationship is based upon a defendant's conduct toward a third party. See
Mason, supra. Here, it is undisputed that the Director, Chairman, and
Jackson are employees of the Council and are not third parties for the
purposes of appellant's tortious interference claim.
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| [82] |
[14] Appellant also contends that RPL was a third party that
tortiously interfered with her business relationship with the Council. We
then must determine whether RPL is a third party. It is well settled that
a party to a contract, and its agents acting in the scope of their
authority, cannot be liable for interfering with the party's own contract.
St. Joseph's Regional Health Center v. Munos, 326 Ark. 605, 934 S.W.2d 192
(1996) (agent acting within the scope of his authority on behalf of a
contracting party was not a separate third party capable of tortious
interference).
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| [83] |
[15] In the present case, the employment relationship was between
appellant and the Council. However, Landerville, on behalf of RPL, acted
as agent in the scope of his capacity as advisor to the Council on
personnel matters. Landerville and RPL were hired by the Council, and
provided consulting services to the Council. They were not third parties,
but throughout the period beginning in August, 1995, the Council sought
advice and consultation from RPL. It is clear that RPL acted as an agent
for the Council. Therefore, RPL cannot be held liable for interfering with
an employment relationship between appellant and the Council because it
was an agent acting at the request of and on behalf of the Council.
Accordingly, we affirm on this point. |
[344 Ark Page 474]
|
| [84] |
V. Tort of outrage
|
| [85] |
[16] As her third point on appeal, appellant alleges that appellees
committed the tort of outrage with respect to her termination from the
Council. We first recognized a cause of action for the tort of outrage in
an employment setting in M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596
S.W.2d 681 (1980). In Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263
(1982), we cited the Restatement (Second) of Torts § 46 Cmt. d (1965),
with approval when we stated, "Liability 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." Id. Under
the framework set forth in Counce, supra, we have outlined four elements
that are necessary to establish liability for the tort of
outrage:
|
| [86] |
1. The actor intended to inflict emotional distress or knew or should
have known that emotional distress was the likely result of his
conduct;
|
| [87] |
2. The conduct was "extreme and outrageous," was "beyond all possible
bounds of decency," and was "utterly intolerable in a civilized
community";
|
| [88] |
3. The actions of the defendant were the cause of the plaintiff's
distress; and
|
| [89] |
4. The emotional distress sustained by the plaintiff was so severe
that no reasonable [person] could be expected to endure it.
|
| [90] |
Dietsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). The trial
court must determine as a matter of law whether the conduct may reasonably
be regarded as so outrageous as to permit recovery. Id. Merely describing
conduct as outrageous does not make it so. Id.
|
| [91] |
[17, 18] Applying these well-established principles to the present
case, it is clear that appellant fails to state a claim for the tort of
outrage. Appellant merely alleges that she disagreed with the Director and
the Chairman over the use of the Council's funds. She also alleges that
she was improperly written up for performance problems, that she was
improperly placed on probation, and that she was wrongfully terminated.
Appellant fails to show the Council's intent to inflict emotional
distress, and her allegations do not meet the strict requirements in
Dietsch, supra for a claim for tort of |
[344 Ark Page 475]
|
| [92] |
outrage in an employment termination situation. In order for appellant
to prevail on this claim, she must have proven that her emotional distress
was much more severe, that such conduct was "extreme and outrageous," was
"beyond all possible bounds of decency," and was "utterly intolerable in a
civilized community." Id. The allegation made by appellant does not meet
the requirements of Dietsch, supra.
|
| [93] |
Accordingly, we affirm the trial court's grant of summary
judgment.
|
| [94] |
Affirmed.
|
| [95] |
GLAZE, J., concurs in part; dissents in part.
|
| [96] |
Imber, J., not participating.
|
| [97] |
Tom Glaze, Justice, concurring in part; dissenting in part. I concur
with most of the majority court's decision, but I disagree with the
court's holding that the doctrine of collateral estoppel applies to bar
appellant Sandra Palmer's arguing whether appellee Arkansas Council on
Economic Education is a "public employee" as described under Ark. Code
Ann. § 21-3-201 (Repl. 1996) of the Arkansas Public Employee Age
Discrimination Act.
|
| [98] |
In Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209
(1977), we stated the following rule on collateral estoppel when identical
cases have been filed in federal district court and state
court:
|
| [99] |
Federal district courts and state courts are separate jurisdictions.
Identical cases between the same parties can be pending in each court at
the same time. (Citation omitted.) It is the same situation as if
identical cases between the same parties were pending in different states.
In such a situation, the first forum to dispose of the case by trial
enters a judgment that is binding on the parties.
|
| [100] |
See also National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1
S.W.3d 443 (1999); Scogin v. Tex-Ark Joist Co., 281 Ark. 175, 662 S.W.2d
819 (1984).
|
| [101] |
Here, the majority court misapplies the foregoing rule. The parties to
the litigation were first in the federal courts where the Eighth Circuit
ultimately held the Council was a "private employer" within the definition
of the federal Age Discrimination |
[344 Ark Page 476]
|
| [102] |
in Employment Act (ADEA). Palmer v. Arkansas Council on Econ. Educ.,
154 F.3d 892 (8th Cir. 1998). The ADEA, at 29 U.S.C.A. § 630(b), defines
"employer" as follows:
|
| [103] |
. . . means a person engaged in an industry affecting commerce who has
twenty or more employees . . . . The term also means (1) any agent of such
a person, and (2) a state or political subdivision of a state and any
agency or instrumentality of a state or a political subdivision of a state
. . . .
|
| [104] |
Citing the federal case of Schaefer v. Transportation Media, Inc., 859
F.2d 1251 (7th Cir. 1988), the Eighth Circuit Court held that, to show
that a defendant institution is an agency of a state or political
subdivision of a state for ADEA purposes, a plaintiff must show that the
state or political subdivision had some supervisory control over the
plaintiff. (Emphasis added.)
|
| [105] |
The instant case involves the Arkansas Age Discrimination Act, not the
ADEA, and for purposes of this state Act, a "public employer" is defined
as an agency, . . . counsel, . . . or other entity of the state supported
by appropriation of state or federal funds, or any county of municipality
or other political subdivision of this state. "Public employer"
specifically includes public universities, colleges, and public school
districts.
|
| [106] |
As can be readily seen, the term "employer" differs by definition and
significance depending upon whether one is interpreting and applying
either the ADEA or the state Age Discrimination Act. In short, Palmer's
suit in the federal courts is clearly not identical to the one Palmer now
brings in the state courts involving a different act. Consequently, those
federal decisions do not answer whether the council is, or is not, a
public employer under the state Act, and collateral estoppel does not
prevent Palmer from attempting to invoke that state Act. That specific
legal issue is not addressed in this appeal.
|
| [107] |
While Palmer, in my opinion, is not precluded from arguing the Council
is a public employer under the Arkansas Age Discrimination Act, she does
not show how this might allow her a right of action under the state Act.
As the trial court found in its order, granting the Council summary
judgment, Palmer has failed to demonstrate where the language of that Act
gives her a private right of action. |
[344 Ark Page 477]
|
| [108] |
Nonetheless, Palmer asserts she has shown the Council is a public
employer as defined under the Act because the Council's budget is
comprised of over 55% in monies from the Arkansas Department of Education,
and because it also receives indirect subsidiaries through lease
arrangements. In addition, she argues that evidence was presented which by
inference showed the Council terminated Palmer because of her age. *fn1 As a result, Palmer maintains she has an action for
wrongful discharge because she was discharged in violation of the public
policy of this state. That public policy, Palmer submits, is reflected by
the terms set out in Ark. Code Ann. § 21-3-203(a)(i), which in relevant
part reads: "It shall be unlawful for a public employer . . . to discharge
any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment because of the individual's age."
|
| [109] |
Arkansas recognizes at least four exceptions to the at-will doctrine,
excluding implied contracts and estoppel. These are: (1) cases in which
the employee is discharged for refusing to violate a criminal statute; (2)
cases in which the employee is discharged for exercising a statutory
right; (3) cases in which the employee is discharged for complying with a
statutory duty; and (4) cases in which employees are discharged in
violation of the general public policy of the state. (Emphasis added.)
Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). Our
court has stated that it is generally recognized that the public policy of
a state is found in its constitution and statutes. Id. In Sterling Drug,
we held:
|
| [110] |
[A]n employer should not have an absolute and unfettered right to
terminate an employee for an act done for the good of the public.
Therefore, we hold 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. This is a limited exception
to the employment-at-will doctrine. It is not meant to protect merely
private or proprietary interests.
|
| [111] |
Although I agree with the majority opinion that the trial court was
correct in granting the Council and the other appellees summary judgment
regarding the claims of tortious interference and |
[344 Ark Page 478]
|
| [112] |
tort of outrage, I cannot agree that Palmer has failed to show
material fact issues exist for a jury determination as to whether she was
wrongfully discharged.
|
| |
|
| |
Opinion Footnotes |
| |
|
| [113] |
*fn1 For example, appellee RPL issued a letter to the
Council's chairman and director stating that before the Council could
terminate an employee for age, it should insure the employee be given an
opportunity to salvage her retirement and related benefits. RPL also
stated that if Palmer filed a claim, she would likely
win.
|