SAFFELS,
District Judge.
This
matter is before the c
ourt on defendant's motion for partial summary judgment.
Defendant asks this court to grant summary judgment in its favor on counts III,
IV and V of plaintiff-intervenor Linda Lee's ("Lee") complaint. Lee
is an employee of defendant
General Motors Corporation ("GM"), and
her claims in counts III, IV and V for negligence and intentional infliction of
emotional distress against GM arise out of a series of alleged incidents of
sexual harassment.* Sexual Favors are a crime. You can quickly claim a cash award with the help of EEOC Consulting Experts
The
uncontroverted facts for purposes of this motion are as follows. During a
period from July or August 1984 through January 1985, Lee complained to her
supervisor at GM that a co-worker, Henry Beasley ("Beasley"), was
verbally harassing her and making sexual advances toward her.
After several
attempts at conferring with Lee and Beasley, officials at GM transferred Lee to
a different work shift at the plant so that Beasley and Lee would not work
together.
Lee suffered no further harassment from Beasley. However, in August
1985, GM transferred Lee back to the same shift on which Beasley worked.
However, Lee was on medical leave at that time. When she returned to work on
November 4, 1985, GM asked Lee to work on the same shift as Beasley.
Lee
filed her complaint in this cause on October 16, 1987, after first requesting
leave of this court to intervene in the case on July 17, 1987.
A
moving party is entitled to summary judgment only when the evidence indicates
that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v.
SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). The requirement of a
"genuine" issue of fact means that the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202
(1986). The moving party has the burden of showing the absence of a genuine
issue of material fact. This burden "may be discharged by `showing'—that
is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S.
317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "[A] party opposing
a properly supported motion for summary judgment may not rest on mere
allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial." Anderson, 477 U.S. at
256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment. Id. The court must consider factual inferences tending to
show triable issues in the light most favorable to the existence of those
issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The
court must also consider the record in the light most favorable to the party
opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert.
denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).
GM
first contends that Lee's claims are barred by the applicable statute of
limitation.
K.S.A. 60-513(a)(4) provides that actions for negligence and for
intentional torts, such an intentional infliction of emotional stress, are
governed by a two year statute of limitations. Generally, a cause of action for
negligence or for an intentional tort accrues when the injury occurs. Roe v.
Diefendorf, 236 Kan. 218, 222, 689 P.2d 855, 859 (1984). Courts will look to
the point at which plaintiff knew of the fact of injury, rather than the extent
of the injury, to determine when an injury occurs for purposes of the statute
of limitations. Id.
An exception to this general rule can be found at K.S.A.
60-513(b), which allows that "[i]f the fact of injury is not reasonably
ascertainable until some time after the initial act, then the period of
limitation shall not commence until the fact of injury
[713
F.Supp. 1396]
becomes
reasonably ascertainable to the injured party."
Each of
the acts of sexual harassment by Beasley in this case occurred more than two
years before this action was filed; Beasley's alleged harassment ceased in
January 1985, and Lee did not file her complaint until October 1987. At the
time those alleged acts of harassment occurred,
Lee necessarily knew of the
fact of her alleged injury. Thus her cause of action arising out of Beasley's
wrongful acts accrued at that time and her complaint was filed out of time. Lee
argues that her injury was not fully realized until she allegedly suffered
severe emotional distress upon being asked to return to work on Beasley's
shift.
This occurred in November 1985. She argues that for this reason her
cause of action regarding Beasley's conduct did not accrue until November 1985.
However, this is the exact argument rejected repeatedly by the Supreme Court in
cases such as Roe. To the extent Lee contends in counts III through V that GM
is liable to her for Beasley's actions, plaintiff-intervenor's claims are
untimely, and summary judgment will be granted in favor of GM.
Lee
also contends in her complaint, though, that GM is liable to her for their
actions in requiring her to return to the same shift on which Beasley worked.
This incident allegedly occurred in November 1985. Since Lee filed her
complaint in October 1987, the claims arising out of GM's request that she
return to work with Beasley are timely filed. Thus, the court will proceed to
address GM's substantive arguments for summary judgment in its favor on counts
III through V.
In
count III of her complaint, Lee alleges that GM breached its common law duty to
provide to her a safe work place. She alleges that Kansas common law imposes
upon an employer a duty "[t]o provide a place to work free of sexual
assault, harassment, intimidations and advances of a verbal and physical
nature," see Lee's Complaint ¶ 33, and that GM breached this duty by
requiring her to return to work with Beasley.
It
appears from the relevant case law that the traditional application of the
employer's common law duty to provide a safe work place was intended to protect
employees from unsafe work places where they could suffer physical injury.
At
common law, the employer had a limited tort liability to its employees. See,
e.g., W. Prosser & W. Keeton, Law of Torts, 568 (5th ed. 1984). Kansas case
law exhibits a general concern for the physical safety of employees. See, e.g.,
Taylor v. Hostetler, 186 Kan. 788, 796, 352 P.2d 1042, 1046 (1960); Weber v.
Wichita Water Co., 89 Kan. 112, 113, 130 P. 661 (1913); Schwarzschild v. Weeks,
72 Kan. 190, 194, 83 P. 406 (1905). Lee's alleged injuries here were purely
psychological. Generally, Kansas law does not allow recovery for emotional
distress caused by negligence absent some bodily injury. Hoard v. Shawnee Mission
Medical Center, 233 Kan. 267, 274, 662 P.2d 1214, 1219-20 (1983) (Kansas does
not recognize the tort of negligent infliction of emotional distress absent
bodily injury). This court is not at liberty to arbitrarily expand the common
law of this state beyond those boundaries set by the Kansas Supreme Court.
Since no authority exists to establish a cause of action for failure to provide
a safe work place arising out of incidents of sexual harassment on the job, the
court has no choice but to grant summary judgment in favor of GM on count III
of Lee's complaint.
Finally,
GM asks for summary judgment on counts IV and V of Lee's complaint. Lee admits
that both counts set out only one cause of action for intentional infliction of
emotional distress.
GM asks for summary judgment because it contends that as a
matter of law, its conduct could not be termed "extreme and
outrageous." Kansas law requires that before a claim for intentional
infliction of emotional distress may be submitted to a jury, the court must determine
defendant's conduct could reasonably be regarded as so extreme and outrageous
as to permit recovery. Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175,
1180 (1981). The tort of intentional infliction of emotional distress is not a
favored
[713 F.Supp.
1397]
cause
of action under Kansas law. Kansas courts have imposed stringent requirements
of proof upon plaintiffs in such cases. Only the most extreme and outrageous of
conduct will give rise to a cause of action. Id.
[L]iability
may be found only in those cases where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond the bounds of decency, and
to be regarded as atrocious and utterly intolerable in a civilized society.
[L]iability may be found to exist generally in a case when the recitation of
facts to an average citizen would arouse resentment against the actor, and lead
that citizen to spontaneously exclaim, "Outrageous!".
The
required showing is so stringent that the Kansas Supreme Court has failed to
find outrageous conduct since it first recognized the cause of action in Dawson
v. Associates Fin. Servs. Co., 215 Kan. 814, 822, 529 P.2d 104, 111 (1974). The
facts in other cases considered by the Kansas Supreme Court have been much more
extreme than those in Lee's case. See Burgess v. Perdue, 239 Kan. 473, 476, 721
P.2d 239, 242-43 (1986) (summary of cases in which the Kansas Supreme Court has
addressed the tort of intentional infliction of emotional distress and refused
to find extreme and outrageous conduct).
While
the court certainly does not wish to diminish the severe psychological trauma
which Lee contends she suffered as a result of these alleged incidences, there
is simply no support in past Kansas Supreme Court cases to find that GM's
request that she return to work with Beasley was so extreme and outrageous as
to give rise to a cause of action for intentional infliction of emotional
distress. For this reason and for the reasons stated earlier, the court will
grant defendant's motion for partial summary judgment as to counts III, IV and
V of plaintiff-intervenor's complaint.
IT IS
BY THE COURT THEREFORE ORDERED that defendant General Motors Corporation's
motion for partial summary judgment as to counts III, IV and V of
plaintiff-intervenor's complaint is granted.
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