COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59071, 59072 THOMAS SCACCO, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION UNITED PARCEL SERVICE, INC. : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1991 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case Nos. 110485 & 115181 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: JAMES L. DEESE, ESQ. MARK V. WEBBER, ESQ. MILLER & TOLARO CO., L.P.A. GOLDFARB & RESNICK The Rockefeller Bldg., #700 The Illuminating Building 614 Superior Avenue, N.W. 55 Public Square, Suite 1800 Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 1 - DYKE, J.: The plaintiffs, Thomas and Cheryl Scacco, appeal the order of summary judgment entered in favor of defendants the United Parcel Service, Inc. (hereinafter UPS), and UPS supervisors Mike Mick and Ernie Brown. Plaintiff Thomas Scacco a former employee of UPS had sued the parties jointly and severally and alleged intentional infliction of emotional distress. Plaintiff Cheryl Scacco asserted a claim for loss of consortium as a result of the defendants' intentional infliction of emotional distress upon her husband. On appeal, plaintiffs contend that the trial court erred in finding that there was no genuine issue as to any material fact regarding plaintiffs' claims. Upon our review of the evidence presented in this case, as viewed in a light most favorable to plaintiffs, we conclude that the trial court did not err in granting summary judgment in favor of the defendants. Therefore the judgment of the trial court is affirmed. We recognize initially that an employee may state a separate tort cause of action against an employer for intentional infliction of emotional distress. Russ v. TRW, Inc. (1991), 59 Ohio St. 3d 42. In Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369, syllabus, the Supreme Court recognized an independent cause of action for intentional infliction of emotional distress and held: - 2 - One who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (Bartow v. Smith, 149 Ohio St. 301 [37 O.O. 10], overruled.) In defining the term "extreme & outrageous" the court in Yeager relied upon Restatement of the Law 2d, Torts (1965), 71, Section 46 comment d, which states: *** It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'. (Emphasis added.) Id. at 374-375. This comment further stated that liability does not extend to "mere insults, indignities, threats, annoyances, petty aggressions, or other trivialities," because plaintiffs are expected to be "hardened to a certain amount of rough language and to occasional acts that are indefinitely inconsiderate and unkind." Id. at 375. A plaintiff must prove all of the following elements to sustain a claim for the intentional infliction of emotional distress: - 3 - (1) That the defendant either intended to cause the plaintiff emotional distress or that he knew or should have know that his actions would cause the plaintiff emotional distress; (2) That the defendant's conduct was "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." 1 Restatement of the Law 2d, Torts (l965) 73, Section 46, Comment d; Yeager, supra, at 375. (3) That the defendant's conduct was the proximate cause of the plaintiff's psychic injury; and (4) That the resultant emotional distress was serious, such that a "reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances ***." Paugh v. Hanks (1983), 6 Ohio St. 3d, 72. *** (further citations omitted.) See Uebelacker v. Unicom Systems, Inc. (1988), 48 Ohio App. 3d 268, 275-276. See, also, Russ, supra. In order to withstand defendants' motion for summary judgment, plaintiffs had to produce evidence of all of the elements of their emotional distress claim. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, paragraph three of the syllabus. On October 31, 1984, after a long disability,/1\ plaintiff, Thomas Scacco returned to his job as a package car driver /1\ Plaintiff, on January 20, 1981, injured himself while working for UPS when he slipped and fell down some steps at Henry Furnace Company on January 20, 1981. - 4 - (delivery man) for UPS. Plaintiff alleged in his complaint that because of his physical limitations, UPS, upon his return, no longer wanted him and set upon a course of harassment in order to cause plaintiff to quit his job. Plaintiff alleged that when he returned to work he was under medical restrictions to work at a slower pace and alleged that UPS was aware of these limitations. Plaintiff alleged that UPS' course of harassment conducted by and through its supervisory personnel, defendants Mike Mick and Ernie Brown, included: frequent and severe verbal abuse; frequent threats of firing; repeated public ridicule and; accusations that plaintiff had faked his injuries, all made knowing with substantial certainty that plaintiff would suffer serious emotional harm. Plaintiff further alleged that on or about May 22, 1985 Defendant Mike Mick, in his supervisory capacity, rode with plaintiff in plaintiff's delivery vehicle, during which time plaintiff alleges Mick harassed, threatened, ridiculed and verbally abused him, with the full knowledge of UPS, and with the intent of causing plaintiff severe emotional distress. On that day plaintiff alleged he was experiencing pain and requested he be taken to a hospital. Plaintiff stated Mike Mick refused his request, knowing that his refusal would result in physical and emotional pain to the plaintiff. Plaintiff claims that as a direct and proximate result of defendant's harassment, ridicule, threats and verbal abuse that occurred that day, plaintiff - 5 - suffered a nervous breakdown and other bodily injury. Plaintiff claims that his allegations concerning UPS' "outrageous" behavior are substantiated by his deposition testimony and further, his claims of resulting serious emotional distress are supported by evidence from Thomas O. Hoover, Ph. D., Psychologist. The evidence in the present case showed that at all times during the period of his disability, plaintiff was paid worker's compensation by UPS. Additionally, UPS hired a rehabilitation consulting firm, Industrial Rehabilitation Associates to assist plaintiff in his recovery from his disabling injury. From 1982- 1984, plaintiff received rehabilitation counseling from Elaine Cicora, a rehabilitation specialist employed by Industrial Rehabilitation Associates. Plaintiff also received physical therapy as part of his rehabilitation, the cost of which UPS paid. The record further shows that plaintiff returned to work at UPS on or about October 31, 1984 with the permission of his doctor, Dr. Stern/2\ /2\ Plaintiff repeatedly contends that he returned to work pursuant to restrictions imposed by Dr. Stern. Plaintiff claims Dr. Stern instructed him to work at his own pace and rest if he felt it necessary. In his brief in opposition to defendant's motion for summary judgment it stated that, this "fact" was made clear in plaintiff's affidavit as well as deposition testimony. Reviewing plaintiff's affidavit we find no mention made of Dr. Stern's alleged limiting instruction. Further, the only evidence that remains is plaintiff's inadmissable hearsay statements made - 6 - With his final return to work in October, 1984, UPS entered into an incentive contract with him. The incentive contract was an agreement among the Industrial Commission, UPS and plaintiff which allowed plaintiff to return to his job at full pay, but under initially reduced productivity demands. The contract provided that plaintiff was to gradually ease into a 100% work schedule over a six week period commencing with a work schedule of 50% the first week, 60% the second, increasing 10% each week culminating in 100% effectiveness the week of December 6, 1984./3\ During this period of time defendant, UPS, at their expense, provided plaintiff membership in a health club and a lumbar support to attach to the seat of his delivery vehicle for his comfort while driving. UPS also had its nurse ride with plaintiff on two occasions to discuss safety concerns and ideas that would improve plaintiff's comfort. Pursuant to the terms of the incentive contract, plaintiff was to be functioning at 100% by the week of December 6, 1984. After that time, he was to do a full days work in eight hours. during deposition that he returned with restrictions. /3\ Plaintiff contends on appeal that his evidence showed that his signature appearing on the incentive contract was forged. The record clearly shows by plaintiff's own testimony however, that plaintiff had been read the terms of the contract and knew he was coming back to work under an incentive contract. When asked at deposition whether he authorized anybody to sign his name on the contract, he responded, "not that I recall." There is no evidence therefore which contradicts Elaine Cicora's testimony that she signed the contract for plaintiff after discussing its terms with plaintiff and receiving his agreement. - 7 - The record shows that after December 6, 1984 plaintiff was doing a full day's work but not within the required eight hour time frame. Plaintiff in his deposition stated that after he returned to work he was constantly told by UPS supervisors he wasn't following standard UPS procedures, that he was pushed, and that he had to endure constant trips into a supervisor's office where he was criticized for poor performance and accused of faking his injuries and sabotaging a vehicle. Plaintiff stated that supervisors rode with him and constantly criticized his performance. On May 22, 1984, six months after plaintiff was to be at 100%, plaintiff was still not delivering his packages in eight hours and the record shows that Mike Mick travelled with him that day in order to instruct plaintiff on proper delivery methods in an effort to improve plaintiff's time. Throughout the day, Mick repeatedly instructed plaintiff on the procedures he was to follow. The record shows that at approximately 3:00 p.m., that day, plaintiff delivered a package to a residence. As plaintiff stood recording on his clipboard, Mick told plaintiff he was not following standard UPS procedures and that he was to walk towards the vehicle while recording. Plaintiff indicated his leg was bothering him and he wanted to go to the hospital. Mick told plaintiff he was simply prolonging the day and only after the remaining stops were delivered would Mick take plaintiff to the hospital. According to Mick, plaintiff then ran towards Mick, - 8 - took out a knife and lunged at Mick several times. According to Mick, plaintiff then lay down in the grass and wept./4\ Plaintiff was eventually taken to a hospital, but was not admitted./5\ Assuming the truth of these allegations, we find it was apparent that defendant was merely exercising its legitimate right to criticize and correct its employee. See Boyd Boggs, Jr., et al. v. Avon Products (1990), 56 Ohio App. 3d 67. Compare to Schrader v. McGonigal (March 20, 1990), Clark Co. App. No. 2584 unreported (tag team questioning by supervisors and repeated references to termination insufficient to show "extreme" and "outrageous" conduct); Voisard v. Noble (February 23, 1990), Auglaize Co. App. No. 2-88-21, unreported (allegations by employer of substandard job performance not sufficient to show "outrageous" conduct); Webb v. Ohio Casualty Insurance Co. (April 16, 1990), Butler Co. App. No. CA 89-07-109, unreported (frequent harsh unfair criticism of plaintiff's job performance within company's right to criticize plaintiff's performance and insist upon improvement. Actions not characterized as "outrageous".) We note that in his deposition, plaintiff admitted that criticism directed towards him stemmed from the enforcement of /4\ Plaintiff claimed to have no recollection of the attack. The attack on Mick resulted in plaintiff's eventual discharge from UPS. /5\ Plaintiff in his complaint stated that the May 22nd incident led to a nervous breakdown. Plaintiff's deposition testimony, however, indicates he never suffered a nervous breakdown. Further, there is no medical evidence substantiating this claim. - 9 - UPS' standard procedures. The record shows that UPS expected no more of plaintiff than its other drivers and that other drivers were also subjected to having a supervisor ride with them in order to improve performance. The court in Brannon v. Brown County General Hospital (March 31, 1988), Brown App. No. CA-87- 11-016, unreported, stated that "even if a contractual right to be free from verbal and emotional abuse existed during employment, it would have to recognize an employer's legitimate right to criticize and correct its employee's work as well as the power to demote or discharge its employees." Plaintiff relies upon Foster v. McDevitt (1986), 31 Ohio App. 3d 237 in which the Court of Appeals held that although an employer could not be held liable for emotional distress caused by its termination, it could be held liable for emotional distress caused by its pretermination conduct provided that it was extreme and outrageous. "In Foster, the evidence revealed Foster's supervisor knew he had a heart condition. Yet she subjected him to extremely demeaning treatment, reduced his responsibilities, lowered his pay and forced him to do hard labor. She told others she didn't know how a real man would take the abuse she gave Foster and that she was going to force him to quit. Eventually she forced Foster to do an unreasonably difficult physical task and threatened to fire anyone who attempted to assist Foster. Foster then suffered heart problems and was hospitalized. His supervisor sent a message telling him - 10 - if he was not back to work in two days he would be fired. He did not return in that time and he was fired. Subsequently he died of a heart attack." Boyd Boggs, Jr., supra, at 16." UPS' conduct is not comparable to the conduct described in Foster. Instead, the record shows UPS acted in an exemplary manner in attempting to rehabilitate plaintiff physically and mentally and in allowing him to return under an incentive contract. These facts, coupled with a UPS sponsored membership in a health club, a special device purchased at UPS' cost for plaintiff's seat, and a nurse that temporarily assisted plaintiff, distinguish UPS' conduct from Foster. Further, plaintiff's claims of "outrageous" conduct stem from UPS' legitimate right to criticize substandard performance. As plaintiffs failed to establish the existence of outrageous conduct, an essential element of their cause, the court properly awarded summary judgment to defendants. Celotex Corp. v. Catrett (1986), 477 U.S. 317; Hodgkinson v. Dunlop Tire & Rubber Co. (1987), 38 Ohio App. 3d 101. "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, supra, at 322-323; Hodgkinson, supra, at - 11 - 102. See, also, Debose v. City of Cleveland (July 26, 1990), Cuyahoga App. No. 59025, unreported./6\ II THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS WITHOUT FIRST HAVING RULED UPON PLAINTIFFS MOTION TO COMPEL DISCOVERY. In their second assignment of error, plaintiffs allege that the trial court committed error in not ruling on their motion to compel. Plaintiffs allege their timely requests for relevant documents were ignored by defendants and the trial court should therefore have ruled on their request to compel production. A motion not ruled upon by the trial court is deemed denied and thus our analysis turns on whether the trial court abused its discretion in denying the motion. See Solon v. Solon Baptist Temple (1982), 8 Ohio App. 3d 347; Stegawski v. Cleveland Anesthesia Group, (1987), 37 Ohio App. 3d 78. In the present case, we agree with plaintiffs that the request was irrelevant. The documents plaintiffs sought had no bearing on the issues of the case. Records pertaining to productivity were irrelevant as plaintiffs have never disputed that plaintiff's productivity was unacceptable. Further records relating to UPS' safety policies are irrelevant as there is no evidence of any unsafe acts. Lastly, plaintiffs claim that /6\ As a result of the failure to prove an essential element of the tort, the claim for loss of consortium must fail as a derivative of the primary cause of action. See Messmore v. Monarch Machine Tool Co. (1983), 11 Ohio App. 3d 67, 68-69. - 12 - documents regarding other employees' claims against UPS are relevant because defendants in their motion for summary judgment stated the company was "blameless" and a "model". It is clear from the record that UPS' statements were in response to Plaintiff Thomas Scacco claims and not indicative of treatment of all their employees. The claim of intentional infliction of emotional distress is a personal claim and the employer's relationships with others is irrelevant. The assignment of error is without merit. III THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN NOT GIVING PLAINTIFFS LEAVE TO CONDUCT ADDITIONAL DISCOVERY AND OBTAIN ADDITIONAL EVIDENCE. The trial court also implicitly denied plaintiffs' motion filed pursuant to Civ. R. 56(F), to stay summary judgment. Such rulings are reversible only if the trial court abused its discretion. Gates Mills Investment Co. v. Pepper Pike (1978), 59 Ohio App. 2d 155, 169. In the present case more than three years elapsed between the filing of the complaint and the filing of the motion for summary judgment. Substantial discovery had been conducted during that time period. Plaintiffs did not file the request until after briefing on the summary judgment was complete. Civ. R. 56(F) requires that a party moving for a stay state, by affidavit, sufficient reasons why it cannot presently state affidavit facts essential to justify its opposition to the motion - 13 - for summary judgment. In Whiteleather v. Yosowitz (1983), 10 Ohio App. 3d 272 the court also suggested that a party moving under Civ. R. 56(F) propose a reasonable interval during which rebuttal materials will be presented. The record shows in the present case that plaintiffs' counsel's affidavit attached to the request for stay failed to establish an interval and failed to state facts essential to justify why the opposition to the summary judgment could not be presented timely. We cannot say the trial court abused its discretion in denying plaintiffs' motion for stay. This assignment of error is overruled. Judgment Affirmed. - 14 - It is ordered that appellees recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. J.F. CORRIGAN, J., AND HARPER, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .