Kovacs v. Bauer

*593 Patricia Ann Blackmon, Judge. Plaintiff-appellant, Melissa A. Kovacs, appeals a summary judgment granted in favor of defendant-appellees, A.D.T. Security Systems MidSouth, Inc. (“A.D.T.”) and Barry Kinney, and assigns the following error for our review: “The trial court erred in granting summary judgment on plaintiff-appellant’s claim for intentional infliction of emotional distress.” Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court. The apposite facts follow. Melissa Kovacs was employed by A.D.T. on March 18, 1992. In August 1992, she gave birth to her son and took maternity leave. As a result of her delivery, she developed a recto-vaginal fístula. After her return to work, she was advised by her physician, Dr. Henry Eisenberg, that her condition would require surgery. On December 11, 1992, Kovacs provided A.D.T. with written notice that she would be away from work from January 11, 1993 through March 1, 1993 due to the need for surgery and recovery time. She also provided A.D.T. with a “Disability Certificate” signed by her doctor. After surgery, Kovacs’s physician provided an “Attending Physician Report” to A.D.T. advising them that Kovacs was experiencing “delayed healing,” and she may “return to work on March 1, 1993 (not before this date).” On January 22,1993, Kovacs received a letter from Barry Kinney, the Regional General Manager of A.D.T., Cleveland Office. He requested that she have a second-opinion examination with a physician selected by A.D.T. and informed her that her benefits would be withheld pending the examination. Kovacs was upset by A.D.T.’s request for a second opinion because her treating physician had informed her that a pelvic or rectal examination would interrupt the healing process and could possibly cause a recurrence of the recto-vaginal fistula. She contacted her physician, who again advised her not to undergo a pelvic or rectal examination during her recovery period. On February 8, 1993, Kovacs met with Kinney and Christine Bruce. Kinney had approved Kovacs’s disability leave prior to this meeting, but did not inform her of his decision. During the meeting, Kovacs informed Kinney that her doctor had advised against an examination during her recovery period because it could cause problems with her recto-vaginal fistula. Kinney told Kovacs he believed she was “conning” the company because there was some confusion as to her return-to-work date. Kinney also advised Kovacs that her disability benefits would be in jeopardy if she did not have the second-opinion examination. Kovacs requested they keep the disability benefits so long as she did not have to undergo the second-opinion examination, but Kinney told her that was not an option. Jeff *594 Geer, with the Human Resources department of A.D.T., confirmed Kinney’s right to require a second-opinion examination. Believing she did not have a choice and because she feared she would lose her job, Kovacs went to the second-opinion examination with Joseph Bauer, M.D. against the advice of her physician. After the second-opinion examination, Dr. Bauer confirmed the recommended recovery period, and Kovacs did suffer a recurrence of her recto-vaginal fistula, which required additional surgery. Ko-vacs subsequently resigned from her employment with A.D.T. Melissa and Christopher Kovacs filed a complaint against A.D.T., Barry Kinney, Christine Bruce, Jeff Geer, and Joseph Bauer. In her amended complaint, she alleged that Kinney, Bruce, and Geer, while acting in the course and scope of their employment, intentionally caused her physical and emotional injury. She also alleged medical malpractice against Bauer. A.D.T., Kinney, Bruce, and Geer moved for summary judgment. The Kovacs dismissed their cause of action against Bruce and Geer and filed a brief in opposition to A.D.T.’s and Kinney’s motions for summary judgment. The trial court granted summary judgment in favor of A.D.T., Kinney, Bruce, and Geer and stated as follows: “Accepting as true all that Ms. Kovacs alleges, she has not set forth facts which show an intent to injure her physically or tó cause her extreme emotional distress. At best she has shown an intent to deny her disability benefits and to test whether she placed a greater priority on financial benefits than on possible injury to her health. At all times, Ms. Kovacs retained the right and the power not to have the second examination. She retained also the possibility of utilizing her personal physician more aggressively to argue against the second examination or to develop a safer way to satisfy the request of Kinney and Geer for a second opinion.” In her sole assignment of error, Melissa Kovacs appeals summary judgment in favor of A.D.T. and Barry Kinney and argues that the trial court erred in granting summary judgment on her claim of intentional infliction of emotional distress. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, which is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides that before summary judgment may be granted it must be determined that “(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. *595 Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265, 278; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801-802. Doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-140. Under Civ.R. 56(E) “a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial.” Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424, 629 N.E.2d 513, 515. A claim for intentional infliction of emotional distress requires proof of the following four elements: “1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor’s conduct was so extreme and outrageous as to go “beyond all possible bounds of decency’ and was such that it can be considered as ‘utterly intolerable in a civilized community,’ Restatement of Torts 2d (1965) 73, Section 46, comment d; 3) that the actor’s actions were the proximate cause of plaintiffs psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that ‘no reasonable man could be expected to endure it,’ Restatement of Torts 2d 77, Section 46, comment j.” Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103. See, also, Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359, 366, 588 N.E.2d 280, 284. “To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. Where the risk is great and the probability increases that particular consequences may follow, the employer’s conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk— something short of substantial certainty — is not intent.” Hines v. Ctr. for Human Serv. (June 16, 1988), Cuyahoga App. No. 54021, unreported, 1988 WL 86733. See, also, Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. *596 In this case, the trial court weighed Melissa Kovacs’s evidence and determined the truth of that evidence. The evidence, the court said, at best showed an intent by her employer to deny her disability benefits and to test whether she gave a greater priority to financial benefits than to her health. As to her health, the trial court blamed her and concluded that she had the power to refuse the examination, an examination the trial court concluded she should have aggressively argued against by utilizing her personal physician, or she should have found a safer way to satisfy her employers’ request for a second opinion. This is not the trial court’s role on summary judgment. Summary judgment requires the trial court to determine whether there is a genuine issue for trial. Likewise, on review, we undertake that same responsibility. Here, we conclude that there is a genuine issue for trial as to whether Kovacs’s employer intentionally inflicted emotional distress on her. In the tort of intentional infliction of emotional distress there are four factual elements at issue: whether Kinney knew or should have known that his actions would result in serious emotional distress, whether his conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such as to be utterly intolerable in a civilized society, whether the actor’s action proximately caused the plaintiffs psychic injury, and whether the plaintiffs mental anguish is serious and of a nature that no reasonable person could be expected to endure. In resolving the intent question, we must decide if reasonable minds could differ as to whether Kinney knew or should have known that Kovacs would suffer serious emotional distress from his actions. The tort of intentional infliction of emotional distress does not require proof of specific intent or the use of a strict intent standard. Potter v. Troy (1992), 78 Ohio App.3d 372, 382, 604 N.E.2d 828, 834; see, also, Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 575 N.E.2d 428. Therefore, where the plaintiff sets forth sufficient evidence as to whether the defendant’s conduct was intentional, a question of fact for the jury is created. Id. In this case, Kinney told Kovacs that declining benefits in order to forgo a second-opinion examination was “not an option.” From this statement, it was reasonable for Kovacs to infer she might lose her job if she did not submit to the examination. Kinney required a second opinion because he did not believe that her condition would require three months off in addition to her maternity leave. The employer’s requirement of a second examination became a serious dilemma for Melissa Kovacs because her physician had warned that a second examination would result in recurrence of the condition. Ultimately, Kovacs agreed to the second-opinion examination because she was afraid of losing her job. As a result *597 of that examination, she suffered a recurrence of her fistula and had'to undergo additional surgery. Kinney’s actions, leading an employee to believe that her job was at stake if she did not submit to an examination, was sufficient to cause reasonable minds to differ as to whether Kinney knew or should have known such actions would cause emotional distress. Emotional distress would naturally exist if one has to choose between one’s health and one’s job. Accordingly, the issue of intent raises a question for the trier of fact. We now turn to the question of extreme and outrageous conduct. An employer’s conduct has been found to be éxtreme and outrageous where an employee is required to do something reprehensible and is compelled by the employer’s implied threat of retribution. Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 647 N.E.2d 507 (where sexual relationship compelled by employer was sufficient evidence of extreme and outrageous conduct). See, also, Clifton v. Van Dresser Corp. (1991), 73 Ohio App.3d 202, 209, 596 N.E.2d 1075, 1079 (informing a person the day before cancer surgery that her medical insurance would be canceled the day after surgery when coverage for the surgery had already been obtained was extreme and outrageous conduct). As to whether Kinney’s action was outrageous or extreme we need only look to the record. Kinney knew he had granted Kovacs’s disability leave; yet he concealed this from her. He led her to believe her benefits were in jeopardy. When she offered to forgo the benefits so as not to undergo the examination, he informed her that forgoing her benefits was not an option. Melissa Kovacs in response submitted to the examination because she inferred that her job, as well as her benefits, was in jeopardy. Under the circumstances, this was a reasonable inference. After reviewing the facts, we find it was reprehensible for Kinney to compel Kovacs to undergo an examination he knew to be harmful to her. Furthermore, when Kinney’s reprehensible demand is considered in view of his prior approval of Kovacs’s request for leave, there was no justification for his actions. Consequently, reasonable minds could differ as to whether Kinney’s actions constituted outrageous or extreme behavior. There is no question that Melissa Kovacs took the examination at the urging of Kinney and agonized over making the choice. Accordingly, reasonable minds could differ as to whether Kinney’s actions proximately caused the recurrence of her recto-vaginal fistula and the mental anguish which was attendant to the injury. Therefore, whether Kovacs suffered mental anguish was a question for the trier of fact. *598 The final question of fact is whether Kovacs’s mental anguish was serious and of a nature that no reasonable person could be expected to endure. “[SJerious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.” Paugh v. Hanks (1983), 6 Ohio St.3d 72, 78, 6 OBR 114, 119, 451 N.E.2d 759, 765. Here, Melissa Kovacs was required to choose between her job and her health, a serious dilemma in these times. Circumstances which a reasonable person would be unable to cope with exist in this case. Kovacs underwent a difficult pregnancy, followed by surgery to repair a recto-vaginal fistula. Upon her request for additional sick leave, she was compelled to submit to a second-opinion examination during her recovery period. Kovacs was placed in a position where severe physical injury was imminent if she submitted. Kovacs was told she did not have “an option”; she submitted to the examination and suffered further physical injury as well as mental anguish. No reasonable person should be expected to cope with having to test the importance of his job by submitting to an examination which is likely to cause serious physical injury. Accordingly, under the circumstances of this case, there was sufficient evidence on which reasonable minds could differ as to whether Kovacs suffered from serious emotional distress. The trial court reduced this case to a harmless test of Kinney’s intent to determine if Kovacs placed greater priority on financial benefits than on possible injury to her health, even though Kinney’s actions clearly we^e sufficient to demonstrate extreme and outrageous conduct. Ultimately, it is the jury’s responsibility as trier of fact to determine whether Kinney’s test was harmless or whether he caused harm to Melissa Kovacs. Construing all the evidence most strongly in favor of Kovacs, we find there are genuine issues of material fact as to whether Kinney’s actions, as a manager for A.D.T., constituted an intentional infliction of emotional distress. Accordingly, we conclude that summary judgment was incorrect, and this cause is remanded for trial. The judgment of the trial court is reversed, and the cause is remanded. Judgment reversed and cause remanded. Spellacy, C.J., concurs. Porter, J., dissents.