Supervisor's public query about workers ‘sleeping together’ did not support tort claim against her
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Thursday, March 17, 2016

Supervisor's public query about workers ‘sleeping together’ did not support tort claim against her

By Brandi O. Brown, J.D. Affirming the dismissal of an employee’s tortious interference claim against her former supervisor, the Seventh Circuit ruled that the only act by the supervisor made outside of the scope of her employment could not supply the illegal act required for the claim under Indiana law. Although the supervisor's public statement at a sales conference asking if the employee and a male associate were “sleeping together in the same room” because they arrived at the same time was “bizarre” or inappropriate, it was not an illegal act so the tortious interference claim failed (Pierce v. Zoetis, Inc., March 15, 2016, Rovner, I.). Told to "stroke" male egos. From the outset, the employee had concerns about her supervisor. For example, during her training, after a male instructor told her to "sex it up" when making her sales pitch, the supervisor responded to the employee’s complaint by calling the instructor an "arrogant dickhead" and saying the employee should “just hang in there.” She also told the employee to "stroke" the ego of male associates. The supervisor also allegedly yelled at the employee and used profanity. About a year after the employee started, the supervisor embarrassed her by querying, in front of a room full of people, whether she and the male associate walking in at the same time were “sleeping together in the same room” because they were “always together!” Complained, quotas increased, then fired. The employee complained to HR, which initiated an investigation. Soon thereafter, the employee's sales quotas were adjusted upward substantially compared to other employees. She attributed this increase to her complaint. In July, she took time off for surgery, during which the investigation concluded. She was told the supervisor would be disciplined. She returned to work in November and was fired three weeks later for failing to meet her increased sales goals. Claims dismissed. She filed suit against the employer and the supervisor alleging wrongful discharge and tortious interference with a business relationship. The court dismissed both claims. Among other conclusions, the court found that as to the tortious interference claim against the supervisor, most of the alleged behavior fell within the scope of the supervisor's duties and could not form the basis of the claim. It also concluded that the employee failed to allege the necessary illegal action on the part of the supervisor. The employee appealed only as to the tort claim against her supervisor. Need an illegal act. On appeal, apparently conceding that acts within the scope of the supervisor’s duties could not support her claim, the employee focused instead on the comment made at the sales conference. While that would fall outside of the scope of the supervisor's duties, it was still not an illegal act. Under Levee v. Beeching, a decision from the Court of Appeals of Indiana, illegal conduct was an essential element of the claim. The Levee court had ruled out defamation as an illegal act that could provide the basis for a tortious interference claim, so the employee was thwarted in that regard. In the alternative, she argued that the supervisor had committed a tort of injurious falsehood. While the appeals court was skeptical that Indiana courts would recognize injurious falsehood as an underlying illegal act when it had declined to recognize defamation as such, it nevertheless considered, and rejected, the employee's argument. Not an injurious falsehood. The supervisor's statements did not constitute an injurious falsehood. Although there was "limited discussion" of the tort under Indiana law, it was nevertheless clear that its distinction from defamation was that it was "intended to protect economic as opposed to reputational interests." Although the employee asserted that the supervisor's "loud, false, and injurious statements" at the conference damaged her “current and prospective business relationships with everyone” present, her complaint did not contain facts sufficient to lead to a reasonable expectation that she could support that argument with evidence. The comment itself was not related to her products or sales. Moreover, her complaint failed to identify any pecuniary harm from the statement. Although she alleged that her team members laughed, the audience did not include those to whom she needed to sell medicines. "More fundamentally," the court explained the statement "had no bearing on" the termination decision, so there was no logical connection between the statement and the harm suffered by the employee.

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