author: NEWBLATT, District Judge.

text:
    Jack Colin WAGNER, Plaintiff, v. GENESEE COUNTY BOARD OF COMMISSIONERS, Genesee County Friend of the Court Robert W. Standal, Sr., Barry Joseph, Gary Vincent-Casner, John Doe and Richard Roe, Defendants.
    No. 83-CV-8220-FL.
    United States District Court, E.D. Michigan, S.D.
    April 23, 1985.

      Roger J. McClow, Southfield, Mich., for plaintiff.
    Patrick Kirby, Flint, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

NEWBLATT, District Judge.

Having reviewed Magistrate Marc L. Goldman’s Report and Recommendation concerning the motion to dismiss in this matter, the Court accepts and adopts the Report, with the exception of Section III, as its Memorandum Opinion herein.

The Report and Recommendation suggests that defendants’ motion to dismiss be granted as to Counts I, II, and III, but denied as to Count IV. Plaintiff objects to Sections II and III of the Report, and defendant Robert Standal, Friend of the Court disagrees with Section IV.

The Court concurs with the Magistrate’s characterization of the behavior of the individual defendants in procuring the writ of attachment. Although their investigatory skills may have been poor, the individual defendants were performing a judicial, and not an investigatory, function when they sought plaintiff’s arrest. Therefore, their actions were properly cloaked by absolute quasi-judicial immunity. As the Magistrate thoughtfully explained, the facts of McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982), are inapposite to those in this case.

The Court adopts the Magistrate’s analysis in Section II.

Without addressing the merits of the Magistrate’s analysis of the issue of state tort immunity in Section III of his Report, the Court finds that the Magistrate unnecessarily decided a pendent issue over which he had no independent basis for jurisdiction, the constitutional claims having been dismissed as against the individual defendants. Mid-State Food Dealers v. City of Durand, 525 F.Supp. 387 (E.D.Mich.1981). Counts I and II shall be remanded to the state court. Reconsideration of the question of governmental immunity on remand is particularly appropriate in light of the Michigan Supreme Court’s recent decisions on governmental tort immunity.

The Court also agrees with the Magistrate’s conclusion that plaintiff is not suing the Friend of the Court, but Robert Standal in his official capacity as Genesee County Friend of the Court. The United States Supreme Court reached a similar result after the Magistrate issued his report. Brandon v. Holt, — U.S. -, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). The Magistrate’s assessment of the immunity issue is persuasive. A state judge’s determination that the Friend of the Court is not a county agency for purposes of disclosure under the Freedom of Information Act has little bearing on the issue whether the policies of the Friend of the Court are those of the county for purposes of 42 U.S.C. § 1983 liability. To the extent that Standal may also have been sued in his individual capacity, those claims must be dismissed pursuant to Section II of the Magistrate’s Report.

For the reasons just stated, the Court accepts the Magistrate’s Report and Recommendation, except for Section III, and adopts the Magistrate’s findings and conclusions. The entire Report, attached hereto, is incorporated by reference. Therefore, defendants’ motion to dismiss is GRANTED in part and DENIED in part. Counts I and II are REMANDED to the Genesee County Circuit Court; Count III is DISMISSED; and Count IV shall be read as a claim against Robert Standal in his official capacity as Genesee County Friend of the Court.

IT IS SO ORDERED.

MAGISTRATE’S REPORT AND RECOMMENDATION

December 5, 1984

On April 19, 1983, plaintiff, Jack Colin Wagner, instituted this action in Genesee County Circuit Court seeking money damages from the Genesee County Board of Commissioners and certain employees of the Office of the Genesee County Friend of the Court in connection with his arrest and incarceration on a writ of attachment issued based upon his alleged failure to pay child support. Included in the complaint was the claim that the defendants’ actions violated the Civil Right Act of 1871, 42 U.S.C. § 1983, as well as state claims alleging false imprisonment and malicious prosecution. Defendants removed the matter to this Court on May 18, 1983. 28 U.S.C. § 1441. Presently before the Court is the motion of the individual defendants and the Genesee County Friend of the Court, in his official capacity, for dismissal.

The essential facts of this case are not in dispute. On December 17, 1975, the Honorable Thomas L. Yeotis, Circuit Judge for the County of Genesee, State of Michigan, signed a filiation order finding that plaintiff was the father of one Amie Jo Mitchell, and ordering that he pay child support in the amount of twenty dollars ($20.00) per week. The child support payments were required to be made to the Genesee County Friend of the Court for distribution to the proper recipients.. The complaint alleges that in early 1976, plaintiff became engaged to Brenda Mitchell, the mother of Amie Jo Mitchell, and as a result of the engagement, ceased making support payments in April of 1976. Plaintiff and Brenda Mitchell were married in July, 1976 and have lived together as husband and wife since that time.

Plaintiff claims that prior and subsequent to his marriage to Brenda Mitchell, he was in constant contact with unknown employees of the Friend of the Court. He states that he informed these employees that he was engaged to and later married to the mother of the child. He further claims that he was informed by one unknown employee of the Friend of the Court, defendant John Doe, that the marriage would resolve any problems concerning child support.

In 1981, plaintiff was informed, in a letter from the Friend of the Court, that he was several thousand dollars in arrears in child support payments. Plaintiff claims he contacted a second unknown representative of the Friend of the Court (defendant Richard Roe) and informed him that he had been married to the mother of the child since 1976. Defendant Roe allegedly took the information and stated that he would “straighten everything out.”

In 1982, plaintiff again received a letter from the Friend of the Court stating that he owed $6,000.00 in child support payments. Plaintiff contacted defendant Gary Vincent-Casner, an employee of the Gene-see County Friend of the Court, and again provided the information concerning his marriage. Plaintiff alleges that defendant Vincent-Casner informed him that the matter would be investigated and at a later time, assured plaintiff that he would not be arrested. Nonetheless, on August 12, 1982, defendant Robert Standal, the Gene-see County Friend of the Court prepared a “Petition and Order for Attachment” seeking the arrest of plaintiff for failure to pay child support, alleging accumulated arrear-ages of over $6,000.00. The Order of Attachment was signed by Judge Yeotis. Pursuant to the Order of Attachment, plaintiff was arrested on September 1,1982 and incarcerated overnight in the Tuscola County Jail. The next morning he was transported to the Genesee County Jail where an unknown individual appeared with an order, signed by Judge Harry McAra, ordering plaintiff’s release and foregoing all arrearages except for $271.50.

Plaintiff alleges that the Office of the Friend of the Court and the individual defendants were aware of these facts and nonetheless maliciously, recklessly and or negligently withheld them, thereby causing the Circuit Judge to issue the writ of attachment. He further alleges that the defendants, acting under color of state law, acted in a manner which denied him his liberty without due process. Moreover, plaintiff claims that the Office of the Friend of the Court in Genesee County and the Genesee County Board of Commissioners implemented and engaged in an unconstitutional policy which resulted in the arrest of individuals allegedly in arrears in support payments without notice and hearing, in violation of the due process clause of the Fourteenth Amendment to the Constitution. The individual defendants have filed a motion to dismiss both the state and federal claims, contending that they are entitled to absolute quasi-judicial immunity. Robert Standal, in his official capacity as Genesee County Friend of the Court, has also filed a motion to dismiss on the basis of quasi-judicial immunity.

II.

No immunities are expressly recognized in the Civil Rights Act of 1871. 42 U.S.C. § 1983. However, the Supreme Court has concluded that an immunity that was “well established at common law at the time § 1983 was enacted and ... [is] compatible with the purposes of the Civil Rights Act,” will be recognized under the Act. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980). Utilizing this analysis, the Court has held that judges are absolutely immune from suit under § 1983 under the longstanding rule of judicial immunity. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1872).

The Supreme Court has also recognized a quasi-judicial absolute immunity for other non-judicial officers whose official duties constitute “integral parts of the judicial process.” Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Thus, prosecutors have been accorded a quasi-judicial immunity for initiating and conducting a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Similarly, certain federal agency officials were accorded absolute quasi-judicial immunity in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) because “[t]he decision to initiate administrative proceedings against an individual or corporation is very much like the prosecutor’s decision to or move forward with a criminal prosecution.” 438 U.S. at 515, 98 S.Ct. at 2915. Various United States Courts of Appeals have held that absolute quasi-judicial immunity applies to other officials whose activities are intimately related to the judicial process. Walden v. Wishengrad, 745 F.2d 149 (2d Cir.1984) (Attorney for Department of Social Services); Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984) (employees of State Department of Social Services); Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980) (commissioners appointed by Court to hold partition sale); Burkes v. Callion, 433 F.2d 318 (9th Cir.1970), cert. denied, 403 U.S. 908, 91 S.Ct. 2217, 29 L.Ed.2d 685 (probation officers). See also, Annot., 44 A.L.R.Fed. 225 (1979). In doing so, the Courts have followed the well established rule that “immunity analysis rests on functional categories, not on the status of the defendant.” Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). Whether particular office holders have quasi-judicial immunity in their acts depends on an analysis of the activities in which they were engaged and the relationship of those activities to the judicial process. Ashbrook v. Hoffman, supra, 617 F.2d at 476. The need for absolute immunity must be closely scrutinized before the Court will find that a government official is protected from liability by an impenetrable shield. Walden v. Wishengrad, supra, 745 F.2d at 152. An examination of the functions of the Friend of the Court is thus in order to determine whether its employees enjoy a quasi-judicial absolute immunity.

The Friend of the Court is currently considered an employee of the Circuit Court, performing its duties under the “discretion and supervision of the chief judge.” M.C. L.A. § 552.503. -Its primary duties include interviewing the parties in a divorce proceeding, making recommendations as to custody, visitation, and child support, and aiding the Court in enforcing all orders regarding those matters. M.C.L.A. § 552.-501 et seq. At the time of the events which gave rise to this law suit, the Friend of the Court was appointed by the Governor upon the recommendation of the Circuit Judges of the County. M.C.L.A. § 552.251 et seq., repealed by P.A.1982, No. 294, § 33, Eff, July 1, 1983. However, the function of the office was the same. As defined by the statute, the purpose of the office, in part, was:

... enforcing payments of all delinquent payments duly ordered and decreed by said circuit courts for the support, maintenance and education of dependent minor children_ M.C.L.A. § 552.251 (repealed).

Among the statutory duties of the Friend of the Court under the repealed statute was:

To bring into court when necessary by citation or otherwise all persons who are delinquent in making said payments.... M.C.L.A. § 552.252 (now repealed).

The Friend of the Court was compensated for his work from the general fund of the county. M.C.L.A. § 552.251 (repealed). The Michigan General Court Rules provide that “the friend of the court shall assume responsibility for initiating and, carrying on proceedings to enforce all support, visitation, and custody orders and judgments.” GCR 1963, 727.3. In this case, the Friend of the Court petitioned the Court for an order of attachment pursuant to M.C.L.A. § 552.152, which provides that:

When any decree or order shall stipulate payments to be made to the clerk of the court, or to the friend of the court, and any of such payments shall be in default, the party prejudiced may make a motion before such court ... and the court may forthwith issue an attachment to arrest the party in default_

The authority for the Friend of the Court to pursue this remedy is found in GCR 1963, 727.4 (1983). That court rule outlines the procedures for bringing individuals delinquent in support payments before the Court. Subparagraph Five (5) of that provision provides that, at any time, the Friend of the Court may petition for an order of immediate arrest, GCR 1963, 727.4(5). The issue in this case is whether the Friend of the Court employees in their individual capacities are entitled to absolute quasi-judicial immunity for wrongfully or negligently electing to seek an order of attachment.

The issue of whether the employees of the office of the Friend of the Court, as constituted under Michigan law, are entitled to quasi-judicial immunity has been considered by the United States Court of Appeals for the Sixth Circuit as well as the Courts of this judicial district. In Johnson v. Granholm, 662 F.2d 449 (6th Cir.1981), cert. denied, 457 U.S. 1120, 102 S.Ct. 2933, 73 L.Ed.2d 1332 (1982), the Court examined the Michigan statutes which prescribe the duties and responsibilities of the Friend of the Court and concluded that employees of the office of the Friend of the Court were absolutely immune from suit under § 1983. Similar results were reached by Judge James Harvey in Aker v. Thomms, No. 77-40114 (E.D.Mi. Nov. 28, 1978) and by Judge Stewart Newblatt in Pope v. Rodgers, Nos. 82-40286, 82-40287, 82-40312 (E.D.Mi. Oct. 8, 1982). Thus, it is clear that the individual employees of the Friend of the Court, when acting within the scope of their quasi-judicial capacities, are entitled to absolute quasi-judicial immunity. Plaintiff contends, however, that defendants were performing a prosecutorial enforcement function, which was investigatory in nature, and are therefore not entitled to absolute quasi-judicial immunity. This contention is meritless, both factually and legally.

It is well established that a prosecutor is entitled to absolute immunity for initiating and conducting a criminal proceeding. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In Imbler, however, the Supreme Court left open the question of whether absolute immunity would be available to a prosecutor acting in his administrative or investigative capacity. Subsequent Circuit Court decisions have accorded a prosecutor only a good faith qualified immunity for administrative and/or investigative acts. See, e.g., Ryland v. Shapiro, 708 F.2d 967 (5th Cir.1983); McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982); Mancini v. Lester, 630 F.2d 990 (3d Cir.1980).

In support of his contention that the Friend of the Court’s office was acting in a prosecutorial investigative manner when it petitioned for plaintiffs arrest, plaintiff relies on the opinion of the United States Court of Appeals for the District of Columbia in McSurely v. McClellan, supra and contends that the act of seeking a warrant for an arrest (like petitioning for an order of attachment) falls outside the scope of absolute prosecutorial immunity. The facts of McSurely are inapposite to those presented in this case, and therefore reliance on McSurely is misplaced. In McSurely, the defendant prosecutor had participated in public meetings for the purpose of preventing plaintiff from exercising his First Amendment rights/ participated in a raid upon plaintiffs home, illegally seized some documents, and prepared search and arrest warrants. The preparation of an arrest warrant was but the culmination of a series of illegal investigative acts of the prosecutor. The Court found that he was entitled only to a qualified immunity for those illegal investigative acts.

It is clear, however, that a. prosecutor is entitled to absolute immunity from suit under § 1983 where his only wrongful act was causing the arrest of the accused. In Macko v. Bryon, 641 F.2d 447 (6th Cir.1981), an action was brought against a prosecutor under 42 U.S.C. § 1983 for maliciously causing plaintiff to be indicted and arrested. The Court rejected plaintiffs contention that these were investigative acts and held that a prosecutor was entitled to absolute immunity under Imbler v. Pachtman, supra. Similarly, in Lerwill v. Joslin, 712 F.2d 435 (10th Cir.1983), the Court held that a prosecutor was absolutely immune from suit under § 1983 for seeking an arrest warrant. “Both before and after Imbler, a prosecutor’s absolute immunity has extended to his procurement of an arrest warrant.” 712 F.2d at 437. See also Siano v. Justices of Massachusetts, 698 F.2d 52 (1st Cir.1983), cert. denied, 104 S.Ct. 80; Norton v. Liddel, 620 F.2d 1375 (10th Cir.1980). Therefore, even if the function of the Friend of the Court employees is equated to those of a prosecutor rather than an arm of the judiciary, absolute quasi-judicial immunity nonetheless is applicable.

It may also be argued that a judicial officer, like the Friend of the Court, is not entitled to quasi-judicial immunity for pros-ecutorial acts under Sevier v. Turner, 742 F.2d 262 (6th Cir.1984). In Sevier, the Court held that a Juvenile Court Judge, a Juvenile Court referee, and an employee of the Department of Human Services were not entitled to absolute immunity for initiating civil contempt proceedings to extract “purge payments” from fathers who were behind in child support payments, where portions of the “purge payments” were used to pay the salaries of the defendants. The Court concluded that initiating accusatory proceedings was a prosecutorial act not normally performed by a judicial officer, and that absolute judicial immunity was inapplicable. Id. at 271-272. See also, Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir.1980), cert. dismissed, 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491.

I suggest, however, that Sevier should be limited to its specific and peculiar facts. The Supreme Court has determined that absolute quasi-judicial immunity will apply to officials who need to be protected from subsequent suit for exercising discretion in their official capacity. Thus, prosecutors were accorded absolute immunity for deciding to initiate criminal proceedings because a qualified immunity would hamper the effectiveness of the prosecutor. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Similarly, the Court accorded absolute immunity to agency officials in deciding to initiate administrative proceedings because the officials were “performing certain functions analogous to those of a prosecutor.” Butz v. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894, 2915, 57 L.Ed.2d 895 (1978). “We believe that agency officials must make the decision to move forward with an administrative proceeding free from intimidation or harassment.” 438 U.S. at 516, 98 S.Ct. at 2915.

In Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984), employees of the Michigan Department of Social Services wrongfully initiated proceedings to remove a child from his parents’ home. The Court held that the defendants were entitled to absolute immunity under Briscoe, Butz and Im-bler because “they must be able to perform the necessary tasks to achieve this goal [of protecting children] without worry of intimidation and harassment from dissatisfied parents.” 732 F.2d at 1458. See also, Walden v. Wishengrad, supra.

In this case, the employees of the Friend of the Court acted within the scope of their statutory functions in seeking an order of attachment for non-payment of child support. They were clearly performing their statutory duty to enforce child support payments in a manner which was specifically authorized by statute. While plaintiff’s allegations, if assumed to be true, indicate extreme negligence and malfeasance on the part of the employees of the office, there can be no question that the defendants were not acting in a “clear absence of all jurisdiction.” Stump v. Sparkman, supra 435 U.S. at 357, 98 S.Ct. at 1105. Sevier v. Turner, supra, 742 F.2d at 271. Their actions were within their jurisdiction and can only be described as an integral part of the judicial process in the enforcement of Court orders concerning child support payments. Error or negligence in performing these acts will not strip the defendants of that immunity. Like the defendants in Kurzawa, supra and Walden, supra, the Friend of the Court and its employees must be allowed to perform this duty “without the worry of intimidation and harassment.” Similarly, the act of petitioning for the writ of attachment cannot be characterized as administrative or investigatory. The filing of the writ and request for a warrant were judicial in nature. I, therefore, suggest that the individual defendants are entitled to absolute quasi-judicial immunity. Accordingly, I respectfully recommend that the individual defendants motion to dismiss the claim under 42 U.S.C. § 1983 contained in Count Three of the complaint be granted.

III.

The individual defendants have also moved this Court to dismiss Count One and Count Two of the complaint. Count One alleges a state tort claim for false arrest and false imprisonment. Count Two of the complaint alleges a state tort claim for malicious prosecution. Having already determined in Part II of this report that the individual defendants were acting within the scope of their statutory functions and in a quasi-judicial capacity, it is the opinion of the undersigned that the individual defendants are immune from liability under state law. Belt v. Ritter, 385 Mich. 402, 189 N.W.2d 221 (1971); Davis v. Eddie, 130 Mich.App. 284, 343 N.W.2d 11 (1983); Bloss v. Williams, 15 Mich.App. 228, 166 N.W.2d 520 (1968); Walker v. Cahalan, 542 F.2d 681, 684-85 (6th Cir.1976); Link v. Greyhound Corp., 288 F.Supp. 898-900 (E.D.Mi.1968). Accordingly, it is respectfully recommended that Counts One and Two of the complaint be dismissed.

IV.

Defendant has further moved for dismissal on behalf of the Friend of the Court in his official capacity, based upon absolute quasi-judicial immunity. In response, plaintiff claims that dismissal would be inappropriate with respect to Robert Standal in his official capacity as Friend of the Court. In doing so, plaintiff characterizes the Office of the Friend of the Court, as well as the position of Friend of the Court as a local government unit. Based upon that characterization, plaintiff claims that the Friend of the Court is not entitled to either absolute or qualified immunity under the Supreme Court decisions in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) and Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). These two cases stand for the propositions that local governmental units are included as “persons” under the Civil Rights Act and that they are not entitled to claim qualified immunity as a defense in an action under 42 U.S.C. § 1983.

Initially, plaintiffs contention that the Office of the Friend of the Court is a local government unit which is subject to suit cannot withstand close scrutiny. As noted, the Friend of the Court is a statutorally created office. At the time of this incident, Mr. Standal had been appointed to the office by the governor and was compensated through the general fund of the County for which he served. His functions and duties were well defined by statute and his expenses were derived from the general budget of the county. I suggest that the Friend of the Court is not an entity subject to suit under the Civil Rights Act as it is nothing more than an agency of a municipal government unit. Hancock v. Washtenaw County Prosecutor’s Office, 548 F.Supp. 1255 (E.D.Mi.1982), Ragusa v. Police Dept., 530 F.Supp. 814 (N.D.Ill.1981).

It must further be pointed out that it is unclear whether the Office of the Friend of the Court for Genesee County was named as a defendant in this action. In naming Robert Standal in the complaint, plaintiff uses the term, “Genesee County Friend of the Court Robert W. Standal, Sr.”. Whether the phrasing was meant to be descriptive or a designation that Mr. Standal was being sued in his official capacity is unclear. However, Count IV of the complaint alleges that Standal and the Genesee County Board of Commissioners instituted a policy and practice of arresting individuals in arrears in child support without first providing those persons the fundamental due process rights of notice and hearing (Par. 40 — complaint). This language is indicative of an intention on the part of plaintiff to seek damages against Mr. Standal for acts committed within the parameters of his appointed office. I, therefore, suggest that with respect to Count IV, the allegation of unconstitutional official policies and acts are sufficient to conclude that Mr. Standal is being sued in his official capacity as the Friend of the Court. It is therefore necessary to determine the capacity of Mr. Stan-dal to be sued under § 1983 and what immunities, if any, apply.

Plaintiff correctly argues that under Mo-nell and Owen, there is no qualified immunity for municipal officials acting in their official capacity. An action for damages against a county official in his official capacity is in essence an action against the County. Since under Owen the county would not have a good faith immunity defense, neither would a county official sued in his official capacity. Calkins v. Blum, 675 F.2d 44, 45 fn. 2 (2d Cir.1982); Universal Amusement Co. v. Hofheinz, 646 F.2d 996 (5th Cir.1981); Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir.1980); Monell v. Dept. of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978); Alexander v. Polk, 572 F.Supp. 605 (Pa.1983). As the applicability of immunity principles to an individual sued in his official capacity is dependent upon the availability of immunity as a defense for the government entity, in order to determine whether Mr. Standal, as a county official, is immune from suit in his official capacity, it is necessary to determine whether a government entity may assert absolute immunity from liability to a claim brought under the Civil Rights Act.

In Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the Supreme Court held that a municipality has no good faith qualified immunity from liability under the Civil Rights Act for its constitutional violations and may not assert the good faith of its officers as a defense to such liability. This holding was predicated upon an analysis of the statute, its legislative history and considerations of public policy. While an extended discussion of the historical background of the Civil Rights Act is not necessary here, it is sufficient to note that the Court found that the doctrine of municipal immunity was not so firmly rooted in common law so as to presume that Congress intended that such immunity would continue to exist in light of the expansive language of the Civil Rights Act. Id., at 638-650, 100 S.Ct. at 1409-1415.

More importantly, the Court further found that public policy did not warrant providing a good faith qualified immunity to municipalities. The Court recognized that the Civil Rights Act was designed to provide protection to those wronged by the misuse of power of those acting under the authority of state law. The injustice of permitting local governments to escape liability for injuries it had caused led the Court to reject even a qualified immunity for local government units. Id. at 651, 100 S.Ct. at 1415. Also influencing the Court in its decision was the existence of qualified immunity for agents of the governmental unit. See, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Allowing the municipality to also assert a good faith defense would leave victims of municipal malfeasance remediless. The threat of imposition of damages upon the government while providing good faith immunity for the individual was seen as a way to protect all societal interests. Compensation would be provided to those victims who had suffered actual wrongs, the offending official would be protected from personal liability when acting in good faith, thereby not inhibiting him or her from the competent performance of duty, and the threat of damages would act as a deterrent to those in policymaking positions to institute rules and programs “to minimize the likelihood of unintentional infringements on constitutional rights.” Id., 445 U.S. at 651-652, 100 S.Ct. at 1415-1416. Moreover, in light of the Court’s decision in Monell, supra, the public would only be forced to pay the costs of only those injuries inflicted by the execution of a government policy or custom. Thus, the Court reasoned, the arguments in favor of good faith immunity for local government units were far outweighed by the need to provide a method of redress for victims of grievous governmental policies.

Owen, however, does not specifically answer the question posed in this case for we are not concerned with the issue of good faith qualified immunity but with acts taken by individuals who are absolutely immune from liability. Despite the focus in Owen on qualified good faith immunity, the majority of courts which have considered the issue of municipal absolute immunity have held that local government units do not enjoy such immunity from liability even when their agents, in an individual capacity, have been found to be absolutely immune.

In the context of civil rights actions brought pursuant to local legislative action, primarily involving zoning regulations, a number of courts have assumed that a municipality would remain liable under Mo-nell and Owen even if the individual defendants were found to be absolutely immune due to their legislative function. See, Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.1981); Bruce v. Riddle, 631 F.2d 272 (4th Cir.1980); Gorman Towers v. Bogoslavsky, 626 F.2d 607, 613, fn. 8 (8th Cir.1980). Searington Corp. v. Village of North Hills, 575 F.Supp. 1295, 1297-1298 (E.D.N.Y.1981); Tolbert v. County of Nelson, 527 F.Supp. 836, 838-839 (W.D.Va.1981); Heiar v. Crawford County, Wis., 558 F.Supp. 1175, 1180-1181 fn. 12 (W.D.Wis.1983); Goldberg v. Village of Spring Valley, 538 F.Supp. 646, 650 (S.D.N.Y.1982); Dusanenko v. Maloney, 560 F.Supp. 822, 827-828 (S.D.N.Y.1983).

The cases which consider absolute quasi-judicial immunity are fewer in number but the analysis utilized by the Courts has been the same. In Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir.1984), a prisoner brought an action which included claims under 42 U.S.C. § 1983 against two assistant district attorneys and the county for which they were employed. In this case, the district attorneys had seized plaintiff’s mobile home and possessions contained therein as part of a murder investigation. The mobile home was released as evidence two weeks after it was seized. Following plaintiff’s conviction on the murder charge, he brought an action alleging that his civil rights were violated by the moving of his mobile home which resulted in some damage as well as the loss of some personal possessions which he claimed were exculpatory in nature.

The Court found that the assistant district attorney who had ordered seizure of the mobile home was acting in a quasi-judicial capacity and therefore was entitled to absolute immunity. However, with respect to the county, the Court stated:

Although local governments cannot be held liable under § 1983 on a theory of respondent superior, they can be held liable for constitutional deprivations caused by their policies and customs. [Monell v. New York Dept. of Social Services]. They enjoy no immunity under § 1983 for damages. [Owen v. City of Independence] 723 F.2d at 681. (Emphasis added).

Finding no inference in the pleadings that such a policy existed, the Court affirmed the lower court’s grant of summary judgment for the defendant county. However, the expansive reading of Owen is significant for purpose of the matter currently before the Court. See also, Huemmer v. Mayor and City Council, 632 F.2d 371, 372 (4th Cir.1980).

In Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.1983), the plaintiffs, former liquor licensees, brought an action against a village, local legislators, and local judicial officers under 42 U.S.C. § 1983 for acts causing suspension of their licenses and subsequent legislative action which resulted in loss of those licenses. On appeal from the district court’s grant of summary judgment to all defendants, the Court found that the local officials who were acting in a legislative or judicial capacity were entitled to absolute immunity from liability. 704 F.2d at 951-53. However, with respect to the village itself, the Court noted that the complaint stated that the alleged unconstitutional acts were orchestrated at the highest level of government of the village and were accordingly a policy of the village. Noting that, if true, the village would be liable, the Court commented upon the claimed absolute immunity of the village:

The official acts of municipal policy makers are acts of the municipality for purposes of section 1982 liability. See, Schneider v. City of Atlanta, 628 F.2d 915, 920 (5th Cir.1980); Black v. Stephens, 662 F.2d 181, 191 (3d Cir.1981). And the municipality’s liability for such acts extends to acts for which the policy-making officials themselves might enjoy absolute immunity because the acts were legislative or judicial in character. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), so held with regard to the qualified immunity of municipal officers for their executive acts and we cannot see why there should be a different result here just because these officers’ immunity is absolute rather than qualified. The rationale of Owen, that holding the municipality liable creates incentives to avoid illegal behavior without at the same time over-deterring individuals by the threat of crushing personal liability, 445 U.S. at 655-57, 100 S.Ct. at 1417-18, applies with as much force to legislative and judicial as to executive officers..
Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), which holds that persons who conspire with a judge in violation of section 1983 cannot claim the judge’s absolute immunity from suit, supports this reading of Owen. “In terms of undermining a judge’s independence and his judicial performance, the concern that his conduct will be examined in a collateral proceeding ... in which he cannot be held liable for damages and which he need not defend, is not of the same order of magnitude as the prospects of being a defendant in a damages action...”. 449 U.S. at 31, 101 S.Ct. at 188. An action against the municipality is just such a “collateral proceeding.” 704 F.2d at 953-54.

On the other hand, at least two district courts have opined that a municipal governmental unit is absolutely immune from liability for acts performed by employees who are acting in a quasi-judicial capacity and who, accordingly, are entitled to absolute immunity. Armstead v. Town of Harrison, 579 F.Supp. 777 (S.D.N.Y.1984); Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983).

In Armstead, the Court held that a municipality may assert the absolute immunity of its prosecutorial employees acting within the scope of their responsibilities. In doing so, the Court found that the issue was not controlled by Owen. While recognizing that a number of Courts of Appeals had held otherwise, albeit not in the context of a prosecuting official, the Court stated that the costs to the public from frivolous claims of malicious prosecution would far outweigh the minimal deterrent effect on actual misconduct. 579 F.Supp. at 782. It must be noted, however, that the Court in Armstead had found earlier in its opinion that the acts of the prosecutor had not been shown to be under color of some official policy of the town. Monell v. City Dept. of Social Services, supra. Accordingly, the alternative finding of absolute immunity for the municipality must be considered dicta.

Whelehan v. County of Monroe, supra, presents a factual pattern which most closely resembles that presented in the instant case. This was an action against numerous employees of the Monroe County Sheriff’s Department and Department of Social Services, as well as “the County under 42 U.S.C. § 1983 for alleged unconstitutional acts arising from official policies of the defendant County. The action arose during an investigation into allegations that plaintiff had sexually abused his child. After finding that the individual employees of the department of Social Services were entitled to absolute “prosecutorial” immunity under Imbler v. Pachtman, supra, and that the claim against the County should be dismissed since the complaint did not sufficiently allege that the complained of acts were part of an official policy or custom, the Court, acknowledging that its comments were obiter dictum, examined the Owen decision with respect to absolute immunity. The Court found that Owen only applied to good faith qualified immunity and that the question of whether absolute immunity should be extended to municipalities was an open question. Recognizing that the Supreme Court’s historical analysis of municipal immunity undercut the argument that the County would have been immune at common law at the time the Act was passed, the Court rested its decision on the public policy implications of exposing municipalities to liability for acts of its prosecutorial officials. Relying on Imbler v. Pachtman, supra, the Court concluded that the danger of inhibiting prose-cutorial officials in the exercise of their public decision making and the absence of any effective deterrence in imposing municipal liability far outweighed any benefit which could be derived from imposing liability on municipalities for the acts of those officials. 558 F.Supp. at 1106-1108.

Even though Owen does not talk specifically in terms of absolute immunity, I suggest that the rationale underlying the decision is as applicable in the context of absolute immunity as in the context of good faith qualified immunity. Accepting the conclusion that there exists no historical tradition of immunity for municipal corporations, the legislative purpose behind the Civil Rights Act and public policy considerations which were examined in Owen are equally applicable in an analysis of municipal absolute immunity. If the act’s purpose is to provide protection to those persons wronged by the misuse of power exercised under state law, Owen, 445 U.S. at 650, 100 S.Ct. at 1415, it clearly would result in a frustration of that purpose to deny a remedy to those who were, in fact, injured. Moreover, as was found in Owen with respect to good faith qualified immunity, those dangers expressed in Scheuer v. Rhodes, supra, upon which the doctrines of official immunity rest, would not be implicated by extending that holding to those cases in which absolute immunity is raised. First, as in Owen, no public official would be personally responsible to pay a damage award. And, as Owen recognized, there is nothing unjust in requiring a municipality to compensate an individual for the wrongs it has committed. The second danger expressed in Scheuer, that of deterring an official’s willingness to execute his office, is similarly not seriously implicated in that the threat of employee liability will not necessarily deter the exercise of judgment and may, in fact, promote more reasoned and careful decision making. Owen, 445 U.S. at 655-656, 100 S.Ct. at 1417-1418.

Those dangers expressed by the Courts in Armstead and Whelehan are not sufficiently compelling to persuade this writer that societal interests militates toward a policy providing that municipalities be accorded absolute immunity for the wrongful acts of its officials who are acting in judicial or quasi-judicial capacities. While it is true that extending Owen cases involving prosecutorial decision making will increase litigation costs for municipalities, that cost is far outweighed by the need to provide redress for actual wrongs committed under authority of state law.

Moreover, the inability of an individual to recover on a respondent superior theory is an important safeguard for municipalities which sufficiently protects them from unfounded claims of liability. In order to impose liability on the local governmental units, a plaintiff would be required to identify the offending policy, show that the policy in fact caused the wrong alleged, and connect the policy to the government entity. Monell v. Department of Social Services, supra; Pembaur, M.D. v. City of Cincinnati, 746 F.2d 337, 341 (6th Cir.1984), Rowland v. Mad River School District, 730 F.2d 444, 451 (6th Cir.1984). This is a factor not considered by the Courts in Armstead and Whelehan which severely undercuts their cost-benefit analysis. The requirement that a plaintiff show that he was injured as a result of an act which was committed as a result of official policies protects the municipality from an unfounded imposition of damages, yet satisfies the need to insure that the victim of an abuse of governmental authority is compensated for his injury. This principle of equitable loss spreading is clearly as applicable to an action such as this as to an action like that presented in Owen.

In this case, plaintiff claims that there existed a policy and custom of Genesee County instituted by defendant Robert Standal in his official capacity as Genesee County Friend of the Court, which resulted in a loss of liberty without notice or hearing in violation of the due process clause of the Fourteenth Amendment. If it is shown that such a policy existed; that Robert Standal was an individual whose acts represented official policy, and that execution of this policy resulted in a violation of plaintiffs civil rights, some compensation should be available to him. The principles articulated in Owen clearly support this conclusion. Accordingly, I suggest that the defense of quasi-judicial absolute immunity is not available to either the county nor Mr. Standal, in his official capacity, and respectfully recommend that the Court deny defendants’ motion to dismiss as to Robert Standal in his official capacity of Genesee County Friend of the Court.

Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, parties are hereby notified that within 10 days after being served with a copy of this recommendation they may serve and file specific, written objections to the proposed findings and recommendations. Further, either party may respond to another party’s objections within 10 days after being served with a copy thereof.

      . In his response to the motion to dismiss, plaintiff complains that he was denied his right to prior notice and a hearing before he was arrested and deprived of his liberty on the basis of erroneous information. Although plaintiff now stresses that he is, in fact, suing on defendants’ failure to properly investigate, he fails to show what constitutional right was violated by poor investigation.

      . Defendants appended to their objections to the Magistrate’s Report a copy of a state court opinion analyzing the status of the Friend of the Court with respect to disclosure under the Freedom of Information Act. This was in support of their contention that the Friend of the Court is a sort of judicial officer entitled to quasi-judicial immunity for acts performed within the scope of his official authority.

      . Section III of the incorporated Report, although not adopted, is included to make this memorandum opinion and order intelligible.


source: Caselaw Access Project

author: GLEN M. WILLIAMS, District Judge.

license: Public Domain

text:
    Rose Marie MEIERER, Plaintiff, v. E.I. DUPONT DE NEMOURS AND COMPANY, Defendant.
    Civ. A. No. 82-2050-8.
    United States District Court, D. South Carolina, Charleston Division.
    April 24, 1985.

      Alan D. Toporek, Arthur Howe, Charleston, S.C., for plaintiff.
    Gardner G. Coürson, Greenville, S.C., for defendant.
   MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This case is before the court on defendant’s motion for judgment notwithstanding the verdict (N.O.V.), or, alternatively, for a new trial. The complaint alleges that defendant’s actions against the plaintiff during her employment and subsequent firing constituted slander, wrongful termination of employment and outrageous conduct. Pursuant to a pretrial motion, this court, by Judge Sol Blatt, Jr., dismissed the claims of outrageous conduct occurring pri- or to her being fired on the ground that recovery was barred by the state’s workman’s compensation statutes. At the conclusion of the plaintiff’s evidence, the court granted a motion for directed verdict on the slander claim of unauthorized practice of medicine.

Two questions were submitted to the jury by way of interrogatories. The jury found in favor of defendant on the issue of whether it had slandered the plaintiff by accusing her of stealing documents from the plant and found in favor of the plaintiff as to whether the defendant’s firing the plaintiff was accompanied by outrageous conduct. The jury awarded the plaintiff $500,000 compensatory damages and $500,-000 punitive damages. For reasons set forth in this memorandum opinion, a judgment n.o.v. is granted to the defendant. Pinal judgment is entered for the defendant and this case is stricken from the docket.

I.

RELEVANT STANDARD

The standard for determining the appropriateness of a judgment n.o.v. is the standard for determining the appropriateness of a directed verdict. The trial court must consider the evidence in the light most favorable to the plaintiff, resolving conflicts in the evidence in her favor and drawing all possible conclusions and inferences in her behalf. Krotkoff v. Goucher College, 585 F.2d 675, 677 (4th Cir.1978). In so doing, the court may not weigh the evidence, determine the credibility of the witnesses or substitute its judgment for that of the jury. Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047, 1055 (4th Cir.1976), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976). However, the court must review all evidence in the case, not just the evidence favorable to the plaintiff, in making its determination and if the court cannot find that the plaintiff has met her burden of producing rationally probative evidence which makes the necessary inference substantially probable, it should exercise its ultimate jury control device of judgment n.o.v. Lovelace v. Sherwin-Williams Company, 681 F.2d 230, 242 (4th Cir.1982).

MATERIAL FACTS

The plaintiff was hired as an occupational health nurse at DuPont’s Cooper River Plant in Berkeley County, South Carolina in August, 1980. Shortly after her employment by DuPont and well before December of 1980 plaintiff came in conflict with management because of her concern about the number of employees who presented themselves to the Medical Department with symptoms of rash or skin disorder.

Her immediate supervisor, Dr. Livingston, head of the Medical Department, returned from a rack-up meeting which had been attended by Mr. Sill, the plant manager, Mr. Johnson, the personnel director and Mr. Wiseman, the executive director, among others, and informed her that management was upset because she was documenting and reporting dermatitis cases. Plaintiff persisted in her practice of reporting these cases and was appropriately reprimanded by Mr. Johnson. She was called to his office on several occasions and was advised that she was upsetting employees, making people nervous and creating a problem in the Medical Department.

During this same period, there were conflicts between Dr. Livingston and his superiors at DuPont. He was criticized by his superiors. Mrs. Meierer testified that, during that period, he devoted most of his time to reading magazines and other forms of recreation rather than doing his work. Eventually, about December 10 or 11, Mr. Johnson called a meeting of the Medical Department. Present at the meeting in addition to Johnson, who was responsible for the administrative supervision of the Medical Department, were Dr. Livingston, who was head of the department, Mrs. Meierer (the fulltime nurse), Rhonda Ferris (a part-time nurse), and a secretary. Although Dr. Livingston was primarily singled out for criticism, there was also criticism of Mrs. Meierer. Mr. Johnson accused her of practicing medicine by going beyond the bounds of nursing, making inappropriate referrals, upsetting employees and frightening employees. In particular, he chastised her for referring the plant manager, Mr. Sill, to a doctor without a referral from Dr. Livingston. At this meeting, Mrs. Meierer showed, or attempted to show, Mr. Johnson the letter of referral and that it was indeed signed by Dr. Livingston.

There is voluminous testimony about various people who came to the Medical Department between December, 1980 and March, 1981. The testimony describes conflicts which occurred between them and Mrs. Meierer, between Mrs. Meierer and Dr. Livingston and numerous instances when Mr. Johnson criticized Mrs. Meierer for her conduct. As a result of an incident involving a patient named Dorothy Vencill, on March 17,1981 Mrs. Meierer was placed on probation by written notice which states as follows:

After frequent discussions with you regarding the interpersonal relationship between employees, their treating physician, and the Medical Section, you have continued to have problems in this area. An example of this problem is a letter we received from a local physician describing such an event. You are being placed on probation today. You must show immediate and sustained improvement in your performance if you are to remain an employee here. I will do whatever I can to help you reach a satisfactory level of performance, and will give you monthly follow-up so that you and I will know the extent of your progress. Any repeat of the above, or similar incidences, will result in your immediate termination.

Transcript, Volume I at page 204. This document was signed by Dr. Livingston.

Dorothy Vencill Jones testified in this case that during the latter part of 1981, she was having a problem of vaginal warts and was being treated by a dermatologist, Dr. Kenneth Warwick, in Charleston. She was seen by Mrs. Meierer at the Medical Department during this time. She testified that Mrs. Meierer told her that she had herpes and should not be seeing a dermatologist, but a gynecologist. Mrs. Jones stated that she reported this to Dr. Warwick on her next visit. Later in the Spring when she returned to the Medical Department, she was again seen by Mrs. Meierer; she was still bothered by the same problem, but at that time, she had blood in her urine. Mrs. Meierer told her that she should see another doctor because she might have a kidney infection. She discussed this again with Dr. Warwick, who was very upset about the interference with his patient. Mrs. Meierer’s testimony about the incidents was in direct conflict with that of Mrs. Jones.

The monthly follow-up of the probation of Mrs. Meierer, dated April 20, 1981, read as follows:

Your performance for the past month has been unsatisfactory. You again became involved in the exact kinds of activities that resulted in your being placed on probation. Challenging and suggesting to an employee that a physician’s judgment on medical matters was in error. Undermining a physician’s influence with an employee and implying that the doctor is not competent. You have been asked repeatedly not to conduct yourself as described above. A repeat of the situations described above will result in your immediate termination.

Transcript, Volume I at page 206.

Mrs. Meierer admitted knowing that the references in this April follow-up referred to an incident involving Bob Hamon, who testified that he went to the Medical Department on April 13, 1981 to get a second opinion about whether he should have a knee operation. He saw Dr. Livingston who advised him that if he was getting along all right, he should avoid having knee surgery. After leaving Dr. Livingston’s office, he was approached by Mrs. Meierer who told him, in essence, that she was amazed that the doctor would give him any such advice. She expressed the opinion that he should go back and have a talk with his doctor, then go ahead and have the operation. He reported this to his supervisor and was very upset and confused about getting such conflicting advice in the Medical Department. Mrs. Meierer characterized the Bob Hamon incident as follows, “[i]t was a repetition of the same trumped-up, false charges that were introduced in the previous letter, sir.” Id. She further testified that she was denied the opportunity to disprove this accusation by not being permitted to contact Mr. Hamon.

During this general period of time, Mrs. Meierer consulted her attorneys and, sometime after the April incident, she was referred to a psychiatrist, Dr. John Andrew Ouzts, III. The psychiatrist testified that on May 7, 1981, he began his treatment of Mrs. Meierer. At that time, she “was unable to explain the story of what was happening to her very clearly. She was very upset and disorganized, but eventually I pieced together that she felt under a great deal of pressure at work because she felt that she had very high standards for her own conduct. Very idealistic orientation ... she felt in conflict with management there.” Transcript, Volume II at page 66. He went on to say that at that time, she “seemed so disorganized, and I was concerned she might be psychotic.” Id. at page 67. The next time he saw her was at 10 o’clock on the morning of May 19.

At that time, Dr. Outzs thought that she had “a severe anxiety reaction, for instance, some sort of paranoid psychotic phenomenon.” Id. at page 68. Dr. Outzs testified by pretrial deposition that he made a decision to hospitalize Mrs. Meierer on May 19, but at trial, he was not sure of the date. Actually, she was hospitalized on May 20. He observed that at the time of her hospitalization she was more anxious than she had been when he first saw her. He recalled also that she wanted to be released from the hospital so that she could go back to DuPont “because she felt that this was going to be her termination interview.” Id. at page 70. She further told him that she “wanted to clarify where she stood with regards to her job.” Id. The doctor thought that was a good idea and that, if indeed she was going to be fired, it would be better for her to go ahead and be fired and have it behind her-so he could begin treatment of her. He testified further that she did go back and was, in fact, fired. Then she returned to the hospital where she remained until June 3.

At the time of Mrs. Meierer’s release from the hospital, the doctor diagnosed her problem as an anxiety reaction and depressive neurosis. It was his opinion that “they both derive very directly from the conflict that she was having in the work situation.” Id. at page 74. When asked about her prognosis, Dr. Outzs testified that her ability to return to work as a nurse “will depend upon whether or not this jury decides that she was doing what she was supposed to be doing. I think that if she gets some recognition of the fact that she was performing in good conscience, doing a good professional job, she will feel immediately more comfortable about going back to work.” Id. at page 81.

After seeing Dr. Outzs on the morning of May 19, Mrs. Meierer was driven to work by her daughter. When she left work that afternoon, she was unable to get a ride home. She was in the parking lot of the plant when she was offered a ride by a former co-worker, Cindy White, who was at that time involved in a lawsuit with DuPont. Mrs. Meierer was seen in the company of Cindy White by company personnel. When she returned to work on May 20, she was directed by Dr. Livingston to report to Mr. Johnson’s office. Mr. Johnson proceeded to question her about her removing medical records from the plant, associating with a former employee and conspiring against DuPont. She testified that Mr. Johnson was very upset, pounded his fist, screamed and yelled; he ordered her to give him her pass, adding that he did not want thieves involved in the plant. He then ordered her out of the plant and followed her down the hallway, accusing her in the presence of other people of stealing documents from the plant. He followed her down into the Medical Department where he ordered her to clear her desk off and get out of the area. Finally he escorted her to the front of the plant where she went out into the parking lot.

Sometime prior to this, Mrs. Meierer had filed a grievance against Mr. Johnson which was scheduled to be heard by Mr. Sill, the plant manager. Before leaving the office on May 20, she was informed by Mr. Sill’s secretary that he was away but that he had an appointment to see her the following Friday. This is the reason that Mrs. Meierer advised her psychiatrist that she wanted to leave the hospital and go back to the plant to find out whether she was fired. She secreted an electronic device on her person and wore it into the meeting with Mr. Sill on May 22.

Mr. Sill advised her that he had set up the meeting with the intention of passing on her grievance. He apparently was then unaware of the incident which had occurred between her and Mr. Johnson. He testified that he had not fully made up his mind whether he would fire Mrs. Meierer or what he would do. He further testified that he hoped she would agree that she had made some mistakes, that she would try to do better and might be continued in her employment. The tape recording supports his testimony.

Made without the knowledge of Mr. Sill, the tape, reveals that he had a very frank discussion with Mrs. Meierer about her problems and that she denied any wrongdoing. He advised her that he had talked to numerous people throughout the plant who had made complaints against her. His ultimate decision, made with no apparent rancor and in a very calm manner, was to give her an opportunity to resign. When she refused, she was terminated.

ADMISSIBILITY OF EVIDENCE

It was contended by the defendant prior to trial, and a continuing objection was made, that evidence of anything which occurred between Mrs. Meierer and her fellow employees or supervisors prior to her actual firing should be excluded from the evidence. This was based upon Judge Blatt’s ruling that the sole remedy for any outrageous conduct which occurred prior to the discharge from employment was by way of workman's compensation. This court ruled, and adheres to its ruling, that evidence of the conduct of the parties prior to the time of the actual firing is relevant for several reasons. First, there was a dispute about when Mrs. Meierer was terminated. The official record shows that her employment terminated on May 20, which is the date when she had the confrontation with Mr. Johnson, the personnel manager. She also contended that, in the latter part of 1980, management had decided to terminate her and had begun a course of conduct to get rid of her because she was interested in dermatitis cases. Second, the evidence of conduct between the parties was admissible to properly explain why her final termination occurred on May 22, 1981 and to aid the court and the jury in determining whether the conduct at that time was justified by the matters that had previously occurred. Third, to determine the mental condition of the plaintiff, it was necessary to know the course of conduct which had occurred between the parties. In many, if not most, instances of severe mental problems, the cause is not a single isolated event but a series of acts resulting in a gradual mental deterioration. In this case the plaintiffs mental problems began before her firing. Finally, evidence of what occurred prior to the firing is essential to determine whether the defendant intended to inflict emotional distress. It is usually necessary to consider prior surrounding circumstances in order to determine the intentional nature of the final act.

II

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In South Carolina, it is clearly established that “an employment at will may be terminated at any time by either party for any reason or for no reason at all.” Hudson v. Zenith Engraving Co., Inc., 273 S.C. 766, 769, 259 S.E.2d 812, 813 (1979). The rule traces its origins to the nineteenth century; it was first embraced as the law in South Carolina in 1936. Ludwick v. This Minute of Carolina, Inc., 321 S.E.2d 618, 620 (S.C.App.1984). In Todd v. South Carolina Farm Bureau Mutual Insurance Co., 276 S.C. 284, 278 S.E.2d 607 (1981), the Supreme Court of South Carolina allowed an employee to maintain an independent cause of action against his employer for the tort of outrage or intentional infliction of emotional distress committed in connection with a firing. Ludwick at 621.

The tort of intentional infliction of emotional distress was first given formal expression in Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981). In essence, the Ford court adopted the formula established in Restatement of Torts 2d, § 46. Ford requires the following four elements to establish-the tort of intentional infliction of emotional distress:

(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or was substantially certain that such distress would result from his conduct, (2) the conduct was so ‘extreme and outrageous’ as to exceed ‘all possible bounds of decency’ and must be regarded as ‘atrocious, and utterly intolerable in a civilized community,’ (3) the actions of the defendants caused the plaintiff’s emotional distress; and (4) the emotional distress suffered by the plaintiff was ‘severe’ so that ‘no reasonable man could be expected to endure it.’

Id. at 162, 276 S.E.2d at 778 (citations deleted).

It is to be noted that, while Ford did not specifically state that the tort of intentional infliction of emotional distress was applicable in an employer-employee relationship, Todd definitely implies that the employer-employee relationship is one in which the tort is applicable. 278 S.E.2d at 609. In subsequent proceedings before the Court of Appeals, it was argued by the plaintiff that the tort was for the jury to define and determine whether the acts of the defendants were so outrageous as to establish liability for infliction of severe distress. Todd v. South Carolina Farm Bureau Mutual Insurance Co., 321 S.E.2d 602, 609 (S.C.App.1984). The Court of Appeals specifically ruled that “[i]t is for the court to determine in the first instance whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, .... ” Id. The court pointed out that, where the trial judge had overruled a motion for a directed verdict, permitted the case to go to the jury and later overturned the jury verdict, he had not usurped the jury’s function. Id.

At the time of this trial, no reported case by a South Carolina appellate court clearly applied the legal principles of intentional infliction of emotional distress to a factual situation. Therefore, this court felt that the jury should first decide the issue under the instructions of the court. Todd, decided since the trial of this case, is particularly significant to this court because it provides insight into the thinking of the Court of Appeals of South Carolina as to the factual situations which constitute outrageous conduct, not only in Todd, but also in cases from other jurisdictions. For that reason, this court is now in a better position to interpret the law of South Carolina.

WAS THE DEFENDANT’S CONDUCT IN THIS CASE “OUTRAGEOUS”?

As previously stated, one of the elements of the tort of outrage is whether the emotional distress was intentionally inflicted by outrageous conduct. Ford, 276 S.C. at 162, 276 S.E.2d at 778. “It is the legal responsibility of the court to determine whether, on the evidence before it, the defendant’s conduct may reasonably constitute outrageous conduct.” Todd, 321 S.E.2d at 609. In Restatement of Torts, § 46, (Supplement 1948), the tort was defined in the following manner:

One who, without privilege to do so, intentionally caused severe emotional distress to another is liable (á) for such emotional distress, and (b) for bodily harm resulting from it.

This was known as the privilege test and was later replaced by what is known as the outrageous test. A need was perceived for boundaries to limit liability for intentional infliction of emotional distress. Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956). It can easily be observed that the boundaries have been narrowed by the change in the definition. The Court of Appeals has pointed out that judges must be very careful in determining the boundaries of intentional infliction of emotional distress. 321 S.E.2d at 311-12. Restatement of Torts 2d provides guidelines limiting the scope of intentional infliction of emotional distress: (1) the conduct must be “extreme and outrageous,” exceeding “all bounds of decency,” “atrocious,” and “utterly intolerable;” (2) abusive conduct by defendant in actual or apparent authority over a plaintiff or with power to affect the plaintiff’s interest may give rise to a characterization of the conduct as outrageous; (3) conduct may be outrageous because defendant acts with knowledge that the plaintiff is peculiarly susceptible to emotional distress. 321 S.E.2d at 610.

From the conduct toward the plaintiff in this case, it is obvious that the second guideline has been met because there was interplay between the plaintiff and those in actual or apparent authority over her, Dr. Livingston and Mr. Johnson. There is no evidence, however, that anyone acted with knowledge that the plaintiff was peculiarly susceptible to emotional distress. For example, it was not known that she had emotional problems before she came to the Cooper River Plant, nor was it known that she was consulting attorneys and a psychiatrist while she was employed and working at the Cooper River Plant. Ultimately, however, the question is whether the conduct was extreme and outrageous, whether it exceeded all bounds of decency, was atrocious and utterly intolerable. The evidence will be analyzed from this viewpoint.

The court cannot ignore extensive evidence presented by workers at the Cooper River Plant who went to the Medical Department, became upset and reported to their superiors the treatment afforded them by Mrs. Meierer. It is not necessary to discuss all such evidence, but in order to explain the case and the conflicts which arose, it is necessary to review some of the testimony. Mary Allen, a 25-year DuPont employee, testified that she went to the Medical Department in the fall of 1980. She had just had breast surgery and reported to Medical, as she was required to do when returning to work after having been laid off. Mrs. Meierer expressed no concern for her but proceeded to chastise her because she had not contacted the Medical Department while she was off from work; Mrs. Meierer’s conduct left her crying. She reported this matter to her husband and to her superiors. When she later returned to the Medical Department for an annual physical, Mrs. Meierer told her that she had protein in her urine that could lead to a brain tumor; this was also reported to her supervisor.

Wanda Spann, a black woman, testified that she went to Medical to inform them of her plans to have an abortion because she was unmarried and pregnant. Mrs. Meier-er told her to get married and have the baby anyway. After Ms. Spann left the office, Mrs. Meierer followed her into the receiving area where she said that Spann would be a murderer if she had the abortion. Ms. Spann reported this to her supervisor, Gene Head, and did not return to Medical. This testimony was corroborated by Mr. Head, who testified about his actions upon learning of the treatment of Ms. Spann.

C. Tommy Grayson, Jr., a control equipment technician with DuPont, testified that he went to the Medical Department in the fall of 1980 to see Mrs. Meierer. While he was waiting for her, he picked up his file folder and was reading it. When she came in, she grabbed the file folder from him and hit him over the head. Mrs. Meierer took his blood pressure which showed to be 130/94, told him that he was a prime candidate for heart failure or circulatory problems and recommended that he see a specialist. She diagnosed his having poor circulation in his extremities and being susceptible to frostbite if he went into any kind of a cold climate. She also told him to have a treadmill/electrocardiogram (EKG). After leaving Mrs. Meierer, Mr. Grayson was upset and contacted his mother who was a receptionist for a group of doctors. His mother advised him not to get upset until he had had other tests. Mr. Grayson testified that he was upset and reported the incident to his superiors.

Carol Lloyd, an office assistant at the Cooper River Plant, testified that she became pregnant in December of 1980 and had a conversation with Mrs. Meierer about her pregnancy. Mrs. Lloyd was at that time a single white woman. Mrs. Meierer insisted that she get married, telling her that, while it was okay for black girls to run around pregnant and not married, “it wasn’t right for whites to go around that way.” Transcript, Volume II at page 185. Mrs. Lloyd reported this incident to her supervisor, Jim Parker. The testimony of James Richard Parker, the store supervisor, supports that of Mrs. Lloyd. He further testified concerning an incident on December 29,1980, when he went to the Medical Department experiencing chest pains. He was examined by Dr. Livingston who had him lie down and took his blood pressure. Mrs. Meierer was present at the time and insisted to Dr. Livingston that he should immediately give Mr. Parker an EKG. Later, as he was walking down the hall to have an EKG, she told him that the doctor was wrong in not first giving him an EKG, but that the doctor wasn’t qualified to interpret an EKG anyway. She added that only she and a part-time nurse were capable of interpreting an EKG. Dr. Livingston later gave the EKG, gave him his records and made an appointment for an examination by another doctor. Mr. Parker stated that he was very concerned that day because Mrs. Meierer was arguing with the doctor while he was concerned that he was going to die.

On September 23, 1980 the record shows that Harman I. Shade was seen in the Medical Department. He was an environmental engineer and testified that he went to the Department on that date because he had a migraine headache. Mrs. Meierer looked at his fingernails and told him that they didn’t look right. He thought they looked the same way they always looked. She advised him that he had a circulation problem and told him she felt that he should have a CAT scan or brain scan. She further told him that she was a diagnostician and was trained to diagnose problems. Later, Mrs. Meierer again saw him, in Medical and, after asking if he had seen a doctor about his previous problems, told him that he had better not put it off any longer because he could have a brain tumor. She also advised him to stop running, which was his hobby. Later, Mr. Shade had the tests and again appeared before Mrs. Meierer. When he told her that he had had a stress test and a radioactive tracer, she advised him that those were not enough and he needed a CAT scan.

Riddle Perry, Jr., an employee of the Cooper River Plant, testified that he went to the Medical Department on October 23, 1980 and had a conversation with Mrs. Mei-erer. At that time, he had a numbness in his left foot. Mrs. Meierer made no mention of his seeing Dr. Livingston, but proceeded to examine him and diagnosed his having Raynaud’s disease. She then told him that he should go and see a doctor. She told him that his feet looked like they had been dead for a long time. He testified that he was shocked and that this caused him to distrust the Medical Department.

Phyllis Jean Driscoll, a former employee of DuPont, testified that she went to the Medical Department on November 17, 1980 because she had cut her hand on a rusty nail and she was concerned about whether she needed to have another tetanus shot. Mrs. Meierer told her that she couldn’t have tetanus from merely being cut with a rusty nail, that she would have had to have been around some farm animals or perhaps horse manure. Mrs. Driscoll told her that she had been where there was dog manure in the back yard and Mrs. Meierer told her that that wasn’t enough; it had to be a farm animal. Mrs. Meierer asked her if she insisted on having a tetanus shot. When the patient insisted, she gave the shot but lectured her about the fact that she might get a rash, and if she did, it could cause death. Mrs. Driscoll said that this upset her; she reported it to Ray Johnson, a co-worker, and together they reported it to her supervisor, Ed George.

Eugene Cox, a DuPont employee for twenty-three years, went to the Medical Department on March 5, 1981 with a rash and itching on his right hand. He had previously seen a doctor who had diagnosed his problem as being related to the soap he was using. His personal physician had advised him to use a cream; for the past two years, he had been going to the Medical Department to get the cream. When he went to the Medical Department in 1981, he saw Mrs. Meierer who advised him that he should see a dermatologist. She refused to give him any cream; he was very upset over this because he did not work near any chemicals in the plant and felt irritated and frustrated by the advice that had been given by Mrs. Meierer. He reported the incident to Jack Buchanan, the supervisor of Industrial Relations.

Donald L. Chief, a DuPont employee, testified that he was a mechanical technician and that he went to the Medical Department in April, 1981 for an annual check-up. While Mrs. Meierer was taking his blood pressure, she reached into his pocket and questioned him about smoking cigarettes. She told him that smoking was causing his high blood pressure. When he went back to the shop, he informed his supervisor of what had happened.

Laura Jones, a supervisor at the Cooper River Plant, testified that Bubba Terrell, one of the employees she supervised, reported to her on one occasion that he had been to Medical and had seen Mrs. Meierer, who told him that he had “symptoms of epilepsy.” He was not given any medical slip and Miss Jones did not know whether she should keep him from performing work which an epileptic should not be doing. She consulted her superior, Dave Shellman, a supervisor, who referred her to Harvey Sewell in the Personnel Department. They decided that she should talk to Mrs. Meier-er personally. She asked Mrs. Meierer whether Mr. Terrell should be climbing to heights of forty feet, which he was required to do. Mrs. Meierer told her that she was trained as a diagnostician and that, in her opinion, the headaches were symptoms of epilepsy. Consequently, she restricted Mr. Terrell to ground-level employment. Miss Jones also testified regarding what was reported to her by Mary Allen. She had also reported that incident to Harvey Sewell in the Personnel Department.

While all of the foregoing testimony was disputed by Mrs. Meierer, either by outright denial, by contradiction, or by an explanation which gave an entirely different version of the event, this case does not rest upon the credibility of these witnesses as opposed to the testimony of Mrs. Meierer. However, an understanding of their testimony is important when it comes to judging the actions of Mrs. Meierer’s superiors at the Cooper River Plant in the disciplinary actions which they took against her and in the final act of dismissal. Accepting Mrs. Meierer’s version of these events, it cannot be said that the actions of the supervisory personnel in placing Mrs. Meierer on probation in March, and in later warning her of her continued repetition of the acts in April, in any way constituted outrageous conduct. As a matter of fact, DuPont was affording to Mrs. Meierer more due process than was required by law. DuPont had the right to fire her without any reason at all. Thus, even if the probation were adjudged improper, it could not be considered an act of outrageous conduct.

This brings us to the incident of May 20, when Mr. Johnson, the personnel manager, ordered Mrs. Meierer to leave the plant after she had reported to work. While Mr. Johnson and other witnesses give an entirely different version of what occurred, the court accepts the version given by Mrs. Meierer for the purpose of ruling in this case. In essence, Mr. Johnson yelled and screamed, even pounded his fist and told Mrs. Meierer that he did not want thieves in the plant. He ordered her out of the plant and in the presence of other persons, accused her of stealing documents from the plant and ordered her off the premises. In Todd, 321 S.E.2d at p. 13, it is stated as follows:

The tort of outrage was designed not as a replacement for the existing tort action. Rather, it was conceived as a remedy for tortious conduct where no remedy previously existed. Here, an action for defamation, which is the usual remedy to be employed against one who has published falsehoods, is available to Todd.

In the instant case, the court submitted to the jury the issue of whether the plaintiff was slandered by the remarks of Personnel Manager Johnson on that occasion. The interrogatory to the jury asked, “Do you find by a preponderance of the evidence that DuPont slandered plaintiff by accusing her of stealing medical files of employees from the Medical Department?” The answer to this question was, “No.” The jury either believed Mr. Johnson’s testimony and his version of what occurred on May 20 or they believed that, when he accused Mrs. Meierer of stealing documents from the plant, his accusation was true. In either case, the jury has found that the tort of slander was not committed by Mr. Johnson.

The evidence does not show that Mrs. Meierer became disabled because of anything that Mr. Johnson did. The only notation that Dr. Outzs made about Mrs. Meier-er when she came to the hospital on May 20 was that she was more anxious than she had been when he had first seen her. He went on to state that she wanted to be released from the hospital so she could return to the plant to see if she was fired. There was no severe emotional injury as a result of anything that Mr. Johnson did because Mrs. Meierer was able to leave the hospital and return to DuPont. It is most significant that in the taped interview two days later with Mr. Sill, Mrs. Meierer made no mention of the Johnson episode. Any permanent and severe mental condition of the plaintiff, according to Dr. Ouzts came from her firing which lowered her self-esteem. For this reason, the court must look to what happened at the time of Mrs. Mei-erer’s interview with the plant manager to determine whether there was any kind of outrageous conduct.

When reviewing the conversation between Mrs. Meierer and the plant manager, Mr. Sill, it is important to bear in mind that, while Mrs. Meierer knew that the conversation was being recorded and was able to make her statements self-serving, Mr. Sill did not know that the conversation was being recorded. Mr. Sill began this conversation by explaining to Mrs. Meierer that he had set up the appointment on May 22, 1981 because she had filed a grievance against Mr. Johnson and he wanted to respond to it. Mrs. Meierer. began by demanding a copy of the letter from a local doctor to Dr. Livingston, which was mentioned in the written notice of probation given to her in March. Mr. Sill explained to her that she was not named in the letter, that it was a record to be kept in the department, and that the threat was not against her but against DuPont because of her actions. After considerable discussion as to whether she should have a copy of the doctor’s letter, Mr. Sill finally agreed that she could copy it and the following conversation ensued:

Sill You can copy it. I don’t know what you’re going to do with your copy.
Meierer I just wanted to know what he said specifically. You know. You go in there and — . I was being placed on probation and he doesn’t care that the fact that the statements are all erroneous. That he used — everything he used [sic], that he described to me were totally misinterpreted, drawn out of context, magnified and everything else. In most cases not by the employees but by their supervisors. I have tried — (interruption)
Sill I know that’s the way you feel.
Meierer I know that. Do you think that’s fair? Do you think I’m wrong?
Sill I think that you’re wrong. Yes I do. I talked to quite a number of people and I find the great preponderance don’t agree with your version of it.
Meierer And what people did you speak to?
Sill Well—
Meierer This is exactly what he has given me. All vague statements and vague accusations. If he had something specific, than I would like to hear it. I can answer to the statements, can’t I? Can’t I answer those statements?
Sill No, because then we’re going to get into the fact of whether or not the details and the details are not important. The important thing, for you the important thing is the conclusion I’ve come to — for whatever reason.
Meierer That’s true.
Sill And that conclusion is that most people don’t agree with your version of what’s occurring.
Meierer In what respect? Do you know?
Sill They don’t substantiate the circumstances or the conclusions — that you’re being harassed, for example. It’s a very difficult thing to draw the conclusion or to get anybody to say, Yes [sic] I think Rose Marie is being harassed.
Meierer No one said that. Not one person. _
Sill And that includes some that you suggested I talk with. I guess the best, the best point of view of the situation is that there’s a difference in purpose, a visualized difference in mission and we’ve got some people who’re trying to do their best but they think this is the right way to do it, other people who are trying to do their best and think this is the right way to do it and they are doing it their way. That’s the most favorable point of view that I’ve gotten. The conflict is creating chaos around here.
Meierer I’d like to know which people you spoke to that wouldn’t support me.
Sill I know and I know if I told you, I know what you would do.
Meierer What? With the truth? If I—
Sill You would call them and intimidate them.
Meierer How would I intimidate them?
Sill I don’t know about_
Meierer See. The employee with the knee. I talked to the doctor about him after Marvin accused me of gross insubordination because I talked to the employee. Well, I talked to Dr. Livingstone about it and I said Dr. Livingstone that is not what transpired. And it is not the truth. I said I cannot sit back and let someone accuse me of such an idiotic statement that I said that the doctor implied — that the doctor did not know what he was doing— that it was the stupidest thing I’d ever heard. And that is exactly what Marvin told me that this employee was in a tirade that I said it’s the stupidest thing I have ever heard because doctor said he didn’t need this — knee surgery. When the employee came to me he looked at me, he asked for some aspirin and I said why didn’t you get it from doctor? He said well I didn’t see doctor about the aspirin. I saw the doctor about my knee and doctor told me that I didn’t need the knee surgery anymore. And I asked him if he was scheduled for surgery. Then he — I said well let me know what the doctor says. He looked at me quizzically and like what do you mean, what do you think? And I didn’t say a word. I didn’t say anything against Dr. Livingstone. I didn’t say anything against his doctor. I just shrugged my shoulders implying I don’t know and don’t ask me. And I didn’t say anything else to the employee.
Sill The employee left confused.
Meierer Because I didn’t say yes, Dr. Livingstone’s right; you don’t need knee surgery — when obviously there was no improvement. I don’t know anything about his knee. How can I make a decision. Because I have been accused of saying something in the past I deliberately wouldn’t even open my mouth. Your employee — either because I couldn’t say the doctor is right assumed that I felt doctor was wrong. I didn’t make a statement or a stand about anything and that’s how it got downstairs. However, he conjured it up in his mind and how his supervisor responded to that and by the time it got to Jack Buchanan it was a totally—
Sill I know your version. You told me.
Meierer All right.
Sill But it’s a version I can’t corroborate.
Meierer The employee doesn’t say, doesn’t agree with that. That’s funny I have a witness who heard the employee say something different then. So what does that mean? Who’s [sic] point are you listening to?
Sill Those are the difficulties.
Meierer Who’s [sic] word do you listen to?
Sill_
Meierer I guess we do.
Sill When I get into these_ — and I’ve never been into anything where there is so much black and white. Nothing agrees. Everything, everything — .

Joint Exhibit 1 at pages 6-10.

After further lengthy discussion between Mrs. Meierer and Mr. Sill, he finally got around to the purpose of the meeting. He related to Mrs. Meierer that he had brought her into this meeting to tell her three things: first, that she was not to have a copy of the doctor’s letter because he wanted that incident to be closed and because he was the party in jeopardy, not Mrs. Meierer, second, that he wanted to explain to her what the steps of probation were and that this meeting was a followup, and, third, that he had come to the conclusion “that the versions of the way you perceive things happening, that I have had a great deal of difficulty in finding people who agree with that and I can find many people who don’t agree with it. Therefore, my position is not in support of your position or view.” Id. at pages 17-18. Mr. Sill then went on to explain to Mrs. Meierer that he was in a position of having to judge a contest in which two sides were arguing back and forth, that there seemed to be no end to it and, therefore, no forward progress. Id.

The following conversation then occurred between Mrs. Meierer and Mr. Sill:

Meierer Well, if I’m supposed to get a fair hearing from you, then why don’t we be honest with each other?
Sill I’m being honest with you. And I’ve told you that I’m not going to discuss the details of who said what because each person that I talked with I talked with in strictest confidence and I gave them my personal guarantee that I wouldn’t reveal what they said or who I talked to. And I intend to keep that. What each individual said is not as important because the details don’t necessarily all agree, [static]
Meierer And that is that, I’m not going to take a bunch of lies being said about me. That’s what I’m not accepting.
Sill You are not going to accept a bunch of things that you perceive as lies.
Meierer I know what I said. I know what I said and I know what I did. And if there’s a distortion that comes from it, it is not the truth.
Sill You’re not going to accept anything that you perceive as lying.
Meierer Only because I know what I said — and I have a sane mind and it functions.

Id. at pages 20-21.

Finally, Mr. Sill began to conclude the interview by stating to Mrs. Meierer as follows:

I think it’s in our best interests to terminate the relationship. I think that all we’re going to do, it’s never going to get better. I think it’s a stressful relationship for you and for me — not helping anybody else here, the best thing to do is I think what we’ve got, we’ve got some talents that won’t mesh into a team — I don’t find the talents necessarily faulty but I find the people don’t get along.

Id. at pages 30-31. Mrs. Meierer asked him if he was terminating the doctor too and Mr. Sill answered “no.” Mr. Sill then gave her the opportunity to resign, asking whether she would prefer to resign or be fired. When she insisted that she was not going to resign, he told her that he then had no choice but for them to go down to the doctor’s office for her employment to be terminated. Id.

This court has reviewed the taped conversation numerous times and, having heard the tones of the voices, the court is of the opinion that, if the firing of Mrs. Meierer was done in an outrageous manner, then every firing that occurs would be considered outrageous. Mr. Sill spoke in a very calm and conciliatory manner; he apparently arrived at his decision with great reluctance. In essence, he told Mrs. Meier-er that he was not necessarily finding anything wrong with her, but that he found her to be in conflict with other people in the plant. One side told one story, another side told another story and he had to find some way to end the conflict. He may have fired the wrong person, but it is not within the province of the court to second-guess.

It is the duty of the court only to decide whether this conduct was such as should not go on in a civilized society, whether the firing was done in an outrageous manner. The court concludes that it was not, that this was an ordinary industrial employee firing. Mrs. Meierer’s problem occurred not because of outrageous conduct but because the firing, in and of itself, lowered her self-esteem. She wanted to vindicate her position that the things she had done were right and the actions of management were wrong. This is not a case that should be compensated under the tort of outrageous conduct. The court therefore finds as a matter of law that DuPont did not intentionally inflict emotional distress by outrageous conduct upon the plaintiff. Accordingly, an order will be entered granting judgment to the defendant.