In Blackmore v. Fossner Timepieces Clock Shop, Inc., No. 159279/2021, 2022 WL 912138 (N.Y. Sup Ct, New York County Mar. 29, 2022), the court, inter alia, dismissed plaintiff’s claim for intentional infliction of emotional distress, arising (in sum) from smoking, and alleged sexist and racist comments, in the workplace.
This case illustrates the incredibly high bar one must meet in order to sufficiently allege the tort of “intentional infliction of emotional distress,” and that even “offensive” or “obnoxious” comments and conduct is not necessarily sufficient.
Plaintiff alleged, among other things:
(1) while noting how tan his skin was, Fossner stated “Look, I’m Black Lives Matter”;
(2) referring to the COVID-19 pandemic, he said that China and the United Arab Emirates “should be sent to Mars”;
(3) while describing having undergone a recent neurological exam which tested his arm and hand motor function, Fossner pantomimed reaching out to pinch his wife’s nipples;
(4) as jazz played in the store, Fossner stated that “jazz is for colored people”;
(5) observing that toiler paper in the store was running low, Fossner stated that they should wipe with their hands instead;
(6) after a phone call with his wife, Fossner called her a “fucking bitch” and “fucking whore”;
(7) after another phone call with his wife, he said “screw my wife”;
(8) Morris asked plaintiff to speak to her female co-worker “woman to woman” about her diet and skincare;
*2 (9) Morris used the term “mulatto” to describe the grandchildren of an associate;
(10) Fossner stated that he wished his wife was dead and that she could drag herself around like a “miserable bitch” after she had injured her foot; and
(11) Fossner screamed at his wife on the phone, calling her a “fucking bitch.”
In applying the law to the facts, the court explained:
Even construing plaintiff’s allegations as true, Fossner’s conduct in continuing to smoke in the workplace despite her protests, and yelling at and terminating her for complaining about it does not constitute extreme and outrageous conduct, even though boorish, overbearing, and obnoxious. (See eg, Drimer v Zionist Org. of Am., 194 AD3d 641 [1st Dept 2021] [allegations that defendants engaged in pattern of harassment and abusive conduct directed at plaintiff in context of his employment with them, which caused plaintiff to suffer anxiety and stress and led to cardiac event, insufficiently outrageous to state claim for intentional infliction]; see also Loch Sheldrake Breach and Tennis Inc. v Akulich, 141 AD3d 809 [3d Dept 2016], lv dismissed 28 NY3d 1104 [2016] [allegations that defendants engaged in intentional campaign to insult, demean, threaten and injure plaintiff, including screaming and yelling at her, not sufficiently outrageous and extreme conduct]).
Also insufficiently outrageous are Fossner and Morris’s racist and sexist comments and Fossner’s misogynistic references to his wife, especially as plaintiff does not allege that defendants referred to her or her coworker by any racist or sexist terms. (See Clayton v Best Buy Co., Inc., 48 AD3d 277 [1st Dept 2008] [allegations that various employees made sexual and inappropriate remarks to plaintiff did not constitute conduct sufficiently outrageous]; Herlihy v Metro. Museum of Art, 214 AD2d 250, 263 [1st Dept 1995] [while use of ethnic slurs “clearly reprehensible,” it did not sustain cause of action for intentional infliction of emotional distress, limited to “only the most egregious of acts”]).
While defendants’ comments were offensive and obnoxious, they do not rise to the level required to sustain the claim. (See eg, Suarez v Bakalchuk, 66 AD3d 419 [1st Dept 2009] [use of vulgar language on discharge form, while “extremely offensive and bizarre,” insufficient]; Stauber v New York City Tr. Auth., 10 AD3d 280 [1st Dept 2004] [allegations that defendant was rude to plaintiff and often used profanity did not constitute extreme and outrageous conduct]).
Furthermore, the court dismissed plaintiff’s claim negligence claim, since “workers’ compensation is her sole remedy for such claims.”