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Workplace Bullying

A number of States, including Massachusetts, have REJECTED anti-bullying laws. However there may be an action for "Assault" (Assault refers to the threat of violence caused by an immediate show of force. Battery is the crime that represents the unlawful physical contact).

Interesting Headline:

In a 4-1 decision, the Indiana Supreme Court upheld a $325,000 verdict against a cardiovascular surgeon accused of being a "workplace bully." Raess v. Doescher, No. 49S02-0710-CV-424, Indiana Supreme Court (April 8, 2008).

Facts: Very different portrayal of the incident

Joseph Doescher was a hospital operating room perfusionist (operates the heart/lung machine during open heart surgery). He alleged that Dr. Daniel Raess, a cardiovascular surgeon, aggressively charged him "with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him." Doescher testified that he backed up against the wall and put his hands up, fearing that Raess was going to hit him.

Dr. Raess testified that he threatened Doescher with his job and walked away.

Doescher's legal claims were;

Intentional infliction of Emotional Distress and Assault

The trial strategy was to present Raess as a classic "workplace bully." The Jury found for Raess on the intentional infliction of emotional distress claim, but for Doescher on the assault claim and awarded him $325,000.00.

On appeal, the Indiana Court of Appeals reversed and remanded the case because the trial judge allowed the testimony of a "bullying expert," Dr. Gary Namie, and failed to give a jury instruction requested by Raess that "workplace bullying" was not an issue in this case and that there was no basis in the law for such a claim.

Indiana Supreme Court

In reinstating the verdict in favor of Doescher on the Assault charge, the Indiana Supreme Court addressed two issues relating to "workplace bullying"; namely, whether it was in error to 1) admit the testimony of Dr. Gary Namie; as a workplace bullying expert, and 2) refuse to submit Raess' proposed jury instruction.

1. The admission of Dr. Namie's testimony: The Court refused to decide this issue because it found the question of Dr. Namie's qualifications had not been preserved at trial for the appeal. Justices Frank Sullivan, Jr. and Theodore Boehm disagreed with the majority on this issue, although Justice Sullivan concluded that, even if Dr. Namie's testimony had been erroneously admitted, it was a harmless error. In concluding that the issue had been preserved and it was an error to permit Dr. Namie's testimony, Justice Boehm stated in dissent: Dr. Namie, by his own testimony is not a clinical psychologist and is not qualified to testify as to how workplace bullying affected the plaintiff, and he did not testify on that subject. This is testimony characterizing an event, but offering no assistance to interpret or understand it. Without any context, the "workplace bullying" label is nothing more than highly prejudicial name-calling of no help to the jury.

2. In defending the trial judge's decision to exclude Raess' "workplace bullying instruction," the Court found the instruction was inconsistent with the law. In language that will likely be utilized in other "bullying" cases, the Court said:

"The tendered instruction advanced two concepts: (a) that "workplace bullying" was not an issue in the case, and (b) that the Jury need not determine whether the defendant was a "workplace bully" to decide the case. As to the first concept, we disagree. In determining whether the defendant assaulted the plaintiff or committed intentional infliction of emotional distress, the behavior of the defendant was very much an issue."

"The phrase "workplace bullying," like other general terms used to characterize a person's behavior, is an entirely appropriate consideration in determining the issues before the jury. As evidenced by the trial court's questions to counsel during pre-trial proceedings, workplace bullying could "be considered a form of intentional infliction of emotional distress."

The Court also noted that, "Although the trial judge refused Raess' proposed instruction, he allowed him to argue that workplace bullying was not an issue in the case".

Because the Court side-stepped whether Dr. Namie's testimony concerning workplace bullying was properly admissible, the application of Raess may be limited.

This case does certainly reinforce the importance of training Managers in the proper handling of employee performance issues in the workplace.

The difference in the portrayal of the events in this case, cost the defendant $325k plus substantial legal costs. An expensive lesson!!

Consult your HRO HR Training Division for guidance and support in relation to Manager Training.

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