Important Win Against Employer For Inflicting Serious Emotional Distress

Unfortunately, lots of people are abused at work. Most of the time, there's no case. The law simply does not permit people to sue their bosses just because they're mean, and that makes sense.

But every once in awhile, the abuse is so severe and outrageous, that it constitutes a claim for intentional infliction of emotional distress.

It's not often that these claims are recognized, but  just recently one employee claimed victory in  Rothwell v. Nine Miles School District , a case that truly meets the definition of outrageous.

Here's what happened in the case. 

Debbie Rothwell was employed as a custodian for Nine Miles Falls School District for eight years. Her latest assignment was at Lakeside High School near Spokane.

One day Rothwell was called  and asked to report to her shift early. When she arrived, she found out that a student had committed suicide in the main entrance of the high school by shooting himself in the head.

Rothwell was ordered by the Superintendent to clean up the mess. When she heard the name of the suicide victim, whom she knew personally, she became extremely upset and left for 30 minutes to compose herself.

She came back and was then ordered to go through classrooms to look for bombs. The school principal accompanied her.

After she finished the bomb search, she was ordered again to clean up the suicide scene. In the midst of it,  she found a book bag. Not knowing it belonged to the victim, she began removing its contents but was then told by the police to to drop the bag and go home.

When Rothwell returned, she watched the bomb squad detonate a pipe from the book bag she had picked up and dropped earlier.  She also learned that another bomb had been detonated on the football field while she was at home. Understandably, these events shocked and frightened her.

Rothwell remained at the scene and cleaned all night long.  She was told to "make it look as if nothing had happened at the school."

According to the opinion in the case:

At approximately 2:00 a.m., Ms Rothwell resumed cleaning the suicide scene inside the school. Ms. Rothwell complied with Superinendent Green's directions to clean and dump everything at the scene, which included needles, plastic gloves, brain matter, bone bits, and blood.

She finished cleaning at approximately 4:15 a.m.  By that time, she was emotionally distraught and physically ill.

For several days thereafter, students and others brought candles and cards to the scene of the suicide. Ms. Rothwell was ordered to clean up those items each night, which was extremely emotionally disturbing to her.

As a result of these events, Rothwell became sick from post traumatic stress disorder ("PTSD").  She filed a lawsuit against Nine Miles School District and the Superintendent  for intentional and negligent infliction of emotional distress, claiming that she "suffered physical and emotional distress as a proximate result " of the District's and Superintendent's actions.

The District filed a motion asking the trial court to throw out the case on the grounds that it was barred by Washington's  workers' compensation statute.

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What's Going on with Male on Male Sexual Harassment?

Why are we reading so much about male on male sexual harassment lately? 

Just last week the New York Times reported that Knicks basketball player, Ed Curry, was accused of sexual harassment by his former driver. On the same day, the ABA Journal reported  a story about a Nixon Peabody lawyer who sued for discrimination stating that he was  was regularly taunted, ridiculed, and subjected to partner's and co-workers  homophobic statements and comments about oral sex during his time at the law firm.

 A few days earlier, the 6th Circuit Court of Appeals decided, in Patterson v. Hudson Area Schools, that a school district could be held liable for its failure to stop the harassment of one of its students who was  taunted and victimized by name calling (ie. "queer " "fagot"  "pig")  and pushing  and shoving over a period of years all which escalated into an episode of sexual assault in the locker room.

Is male on male sexual harassment on the rise?  Are men more willing to report the harassment? Was male on male sexual harassment reported but were the courts unwilling to recognize it?

I tried one of the first male on male sexual harassment cases in the country in 1998 -- Hampel v. Food Ingredients Specialties, Inc. . The plaintiff Laszlo Hampel worked at FIS- Nestle in Solon, Ohio  in the production line as a cook.  In short,  the case involved one disgusting outburst of sexual provocation by my client's supervisor,  followed by reporting of the incident, a failure to act on the part of the company to take prompt, remedial action (required under the law) continued harassment by the supervisor, and homicidal behavior on the part of my client. These kinds of cases were simply unheard of ten years ago. 

Shortly before the trial, my father asked my what kind of case I was working on.  When I told him he responded,  "I wouldn't give you five dollars for that case. Why didn't he just punch him in the nose."  While my father's reaction certainly concerned me, fortunately the jury did not see it that way and awarded $1.6 million dollars the majority of which constituted punitive damages.

The case was of course appealed. The  Ohio Supreme Court  decision in Hampel   recognized male on male sexual harassment as a valid claim in line with Oncale v Sundowner Offshore Services, Inc   a case recently decided by the  United States Supreme Court. Interestingly though,  it  held that there  was no sexual harassment in our case, a decision which to this day I completely fail to understand no matter how many times I read it.  Fortunately for Mr. Hampel, the Court affirmed the verdict in sustaining the claim for intentional infliction of emotional distress.

So I come back to, how come we practice for over twenty five years and we see little to no cases of male on male sexual harassment and then we see three in  in one week? Does it have  anything to do with my father's "why doesn't he just punch him in the nose" method of resolving the problem?

Let's assume that employees out there are simply more aware of their rights and courts are more enlightened.

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