No. 89-207 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

THOMAS P. DOOHAN, Plaintiff and Respondent,

-vBIGFORK SCHOOL DISTRICTNO. 38, BIGFORK, MT., DR. ROBERT W. BOWMAN, ROBERT CHRYSLER, ALBERT COCHRANE, ROBERT BOESE, LLOYD MAGNALL, JOSEPH POTOCZNY, RONALD MARTIN, EDWIN ANDERSON, and CHARLES MASON, Trustees thereof, the following Bigfork School ~istrict No. 38 Board Members 

# cds&& QF OUPREI~E 

### .. in their individual capacity;ROBERT CHRYSLER STA+~ OF @ON~A~ and ALBERT COCHRANE, Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Gordon R. Bennett, Judge presiding.

COUNSEL OF RECORD: For Appellant: Stephen C. Berg; Warden, Christensen, Johnson & Berg; Kalispell, Montana For Respondent: Chris P. Christensen, Kalispell, Montana John K. Addy; Matovich, Addy & Keller; Billings, Montana For Amicus: Catherine Swift; Montana School Boards Assn.; Helena, Montana

Heard: November 1, 1989 Submitted: October 18, 1990

Filed: Decided: February 5, 1991 mJustice 

### R. C. McDonough delivered the Opinion of the Court.

This case is an appeal from a judgment against Bigfork School DistrictNo. 38 (School District) and Trustees Robert Chrysler and Albert Cochrane individually, following a trial in the Eleventh Judicial District, Flathead County, Montana. The jury fixed damages of $87,583.33 against the School District for unlawfully deprivingtherespondent,ThomasP. Doohan,ofhis constitutionally protected right to continued employment as a school district superintendent. The jury found defendant School Board Trustees Robert Chrysler and Albert Cochrane each individually liable for intentional infliction of emotional distress and fixed damages in the amount of $1 against Chrysler and $12,500 against Cochrane. We reverse and remand for new trial. Theparties raise several issueswhichwe restate as follows: As to School District No. 38: I. Did the District Court err in giving InstructionNo. 12? 11. Did Doohan properly state a claim for deprivation of a property right under 42 U.S.C. 5 1983? 111. Does substantial evidence support the jury verdict against the School District? IV. Is the School District immune from liability for civil damages under 42 U.S.C. 5 1983? As to School Trustees Robert Chrysler and Albert Cochrane: V. Does substantialevidence support the jury'sverdict that Cochrane and Chrysler inflicted emotional distress on Doohan? 

### VI. Are Cochrane and Chrysler entitled to immunity under 3 22-9-111, MCA? Doohan raises an issue on cross-appeal: VII. Did the filing of the Notice of Appeal divest the District Court of jurisdictionto decide Doohan'sapplication for attorney fees pursuant to 42 U.S.C. 

### 5 1983? Doohan was the Superintendent of School District No. 38 in Bigfork, Montana from July 1, 1983, to June 6, 1985,when he took

a medical disability retirement. Chrysler was a trustee of the School Board when Doohan began work and Cochrane was appointed to the Board in May of 1984. Doohan alleged that the School Board collectively and Cochrane and Chrysler individually made his working conditions intolerable. Doohan alleged that, as a result of these intolerableworking conditions,he suffered severemental distress and physical illness which forced him into a medical disability retirement. Further, Doohan alleged that Cochrane and Chrysler engaged in a concerted effort to forcehim out of his job and that their actions constituted an intentional infliction of emotional distress upon him. During the eight-day trial, Doohan introduced evidence,both testimonial and documentary, relating to numerous specific instances of conduct by the School Board and Chrysler and Cochrane. These instances began in August of 1983 and occurred frequently, oftentimes each month, until June 6, 1985. Testimony related to the appellants' conduct during open School Board meetings, executive School Board sessions, communication with school personnel, communicationwith themedia, communicationwiththe public, School Board members1 communication with each other privately, and various private communicationswith Doohan. Defendants introduced evidence that conflicted substantially with Doohan1s evidence regarding the same incidents. More specific factswill be discussed as necessary. I and 11. We will discuss the first two issues together. First, the defendant School District argues that InstructionNo. 12 provides an inadequate definition of the requirements of due process and essentially directed a verdict on the § 1983 claim in Doohan's favor. InstructionNo. 12 provided: INSTRUCTIONNO. 12 Under theUnited States Constitutionand the federal statute I [the court] previously referred to, the Plaintiff is claiming he has been deprived of property and liberty I1without dueprocess of law." To be deprived of onelsproperty and liberty I1withoutdue process of lawf1means to be deprived of such rights without authority of the law. Before you can determine, then, whether or not the Plaintiff was deprived by the Defendants of his property and liberty "without due process of law,I1 you must first determine from a preponderance of the evidence in the case whether the Defendants committed the acts alleged, and, if so, whether the Defendants acted under circumstances within or without the bounds of their lawful authority under state law. If the Defendants actedwithin the limits of their lawful authority under state law, then the Defendants could not have deprived the Plaintiff of any right I1withoutdue process of law.l1 Under Montana law, the Trustees may terminate the services of a superintendent of Schools only at the expiration ofhis term,and only if theygivehimwritten notice of the terminationprior to February 1of the last year of his contract. The Trustees also have an implied right to terminate the Superintendent prior to the expiration date in the contract only if they give him a hearing on the reasons for the dismissal and find that there is just cause to dismiss him.Inthis case,Mr. Doohan,thePlaintiff,has claimed that the Defendant Board of Trustees has constructively discharged him from his position as Superintendent withoutgiving him ahearing,and that theiractions have deprived him ofhis constitutionally protected rights to property and liberty. Ifyou find that the Defendant Board constructively discharged the Plaintiffwithout notice and hearing you may find the Plaintiff was deprived of the due process of law. (Emphasisin original.)

This instructionwas fashioned by the court from the court's own language, several of the plaintiff's instructions, and the first paragraph of thedefendant's Proposed InstructionNo. 14,which is identical to the first paragraph of ~nstruction 12 above. Defendant's proposed instruction No. 14, contained the following language in its second paragraph,which was omitted by the Court: Dueprocessmay bedefinedasnoticeand opportunity for hearing appropriate to the nature of the case. It is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those entrusted with the unfolding of the process. Among the considerations that must enter into the judgment is the precise nature of the interest that has been adversely affected, themanner inwhich thiswas done, the reasons fordoing it,theavailable alternativesto theprocedure that was followed,theprotection implicit in the office of the functionary whose conduct is challenged and the balance of thehurt complained of and good accomplished.

Defendant's definition of due process is taken directly from the United States Supreme Court decision inAnti-Fascist Committee v. McGrath (1951), 341 U.S. 123, 162-163, 71 S.Ct. 624, 643-644, 95 L.Ed. 817, 849, as cited in Montana Power Co. 

### v. Public Service commission (1983), 206 Mont. 359, 367-368, 671 P.2d 604, 609. Whilewe agreewith thetrial judge's assessmentof thisdefinitionas better suited for judicial opinions than jury instructions, nevertheless it is a better definition of dueprocess than the one given in Instruction No. 12. However, we sympathize with the presiding judge in this case for guidelines are sparse in this evolving field of the law. Instruction No. 12 briefly defines lvwithout due process of law" as 'Iwithout authority of the This definition is conclusory, its inaccuracy is evident in themany cases that have held that a particular law or statute violates the due process requirement of the 14th Amendment. Rather, as the defendant's proposed instruction notes, "[tlhe fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner. It' Mathews v. Eldridge (1976), 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32; Fuentes v. Shevin (1972), 407U.S. 67, 81, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 570. Generally, "somekind of a hearingv8 is ordinarily a constitutional requirement for due process purposes before a public employee who has a property interest in his job may be terminated. Cleveland Board of Education 

### v. Loudermill (1985), 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494, 504. And as noted by Justice Frankfurter in the language used in the defendant's proposed instruction, the notice and hearing required are not inflexible; rather they should be "appropriate to the nature of the case."

### See Anti-Fascist Com., supra. Obviously,thevery natureof a constructive discharge inmany cases precludes the giving of notice and hearing on the subjectemployee's discharge. This does not, as we shall discuss later, always lead to the conclusion in every case that a constructive discharge in the context of public employment also gives rise to

a claim for deprivation of a constitutional right under 42 U.S.C. 

### 5 1983. But here, InstructionNo. 12 implies that the foregoing is correct. It instructedthat theTrustees could terminate Doohan prior to theexpiration ofhis contract only after ahearing on the reasons for dismissal and a finding of just cause. Furthermore, instructedthatDoohanallegedthattheTrustees "constructivelv discharsed him from his position as Superintendentwithout siving him a hearinq." The instruction then provided: If you find that the Defendant Board constructively discharsed the Plaintiff without notice and hearinq you may find the Plaintiff was deprived of the due process of law. (Emphasisadded.) The instruction essentially directed a verdict for Doohan on his § 1983 claim because it incorrectly focused on the idea of constructive discharge "withoutahearing1',and tells the jury that it may find that Doohan was deprived of due process if they find such. However, there was no issue as to giving notice or hearing in this case--both parties agreed that there had been neither notice or hearing. Nor is lack of notice and hearing unusual in

a constructive discharge claim. Nevertheless, once the jury found

a constructive discharge, they were directed to find a violation of plaintiff's due process rights. This isnot supportedby the law. Under the law of this case, the elements of constructive discharge required facts sufficient to logically lead a prudent person to believe his tenure had been 7terminated;generally no notice or hearing is in any way involved in that type of a termination. These elements were contained in the court's InstructionNo. 10:

INSTRUCTIONNO. 10 Plaintiff has asserted a claim for constructive wrongful discharge against the School Board and against Defendants Chrysler and Cochrane as individuals. Thedoctrine of constructive discharge applies where facts are present showing harassment, intimidation, coercion or other aggravating conduct on the employer's part which rendersworking conditions intolerable. The fact of discharge does not depend upon the use of formal words of firing. The test is whether sufficient words or actions by the employer would logically lead aprudentperson tobelieve his tenurehad been terminated. Because defendants did not object to this instruction, we will not discuss it at length. However, we do point out that while the wording of the second paragraph reflects the definition of constructive discharge given in Snell v. Montana Dakota Utilities Co. (1982), 198 Mont. 56, 65, 643 P.2d 841, 846, the wording of the third paragraph of this instructionwas rejected in Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113,119, 760 P.2d 57, 61, because it actually applies to cases alleging actual discharge. See Hannifinv. Retail Clerks Intll Ass'n. (1973), 162 Mont. 170,

Our decision in Snell pointed out that a determination of constructive discharge depends on the totality of the circumstances, and must be supported by more than an employee's subjective judgment that working conditions are intolerable. Snell, 643 P.2d at 846, citing Nolan v. Cleland (N.D.Ca1.1979),482 F.Supp. 668, 672; aff'd in part, rev'd in part, 686 F.2d 806, 812-813 (9thCir. 1982). Snell involved a federal law claim of constructive discharge in an employment discrimination case underTitleVII of theCivil Rights Act of 1974,42U.S. C. 5 2000e. Many suchTitleVII employment discrimination casesareaccompanied by due process claims under 42 U.S.C. 5 1983. See e.s., Hervey

v. City of Little Rock (8th Cir.1986), 787 F.2d 1223, Bailey v. Kirk (10thCir.1985), 777 F.2d 567, Satterwhitev. Smith (9thCir. 1984), 744 F.2d 1380,Nolan, supra, (9thCir.1982), 686 F.2d 806, Bourque v. Powell Manufacturing Co. (5th Cir.1980)

### , 617 F.2d 61, Young v. Southwestern Savingsand LoanAssociation (5thCir.1975), 509 F.2d 140, 144. In Nolan the Ninth Circuit recognized the standard for constructive discharge in Title VII employment discrimination cases adopted by the Fifth Circuit in Younq: The general rule is that if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involvedthereinas if it had formallydischarged the aggrieved employee. Nolan, 688 F.2d at 812-813; citing Younq, 509 F.2d at 144. The Fifth Circuit later clarified Younq and adopted an objective standard, stating that a constructive discharge exists when "working conditionswould havebeen sodifficult or unpleasant that

a reasonable person in the employee's shoes would have felt compelled to resign." 

### See Bourque v. Powell Manufacturins Co. 617 F.2d at 65. The Boursue court specificallyrejected arguments that an employeehas toprove that itwas the employer'sintent to forcethe employee to resign in TitleVII discrimination cases. While Title VII employment discrimination cases under 42 U.S.C. 

### 5 2000emay involve similar issuesand are often accompanied by claimsunder 42U.S.C. 

### 5 1983, such claims are not analogous to § 1983 claims based solely on deprivation of due process where a constructive discharge is alleged as the basis of the claim. Failure to recognize the distinctions between a straight § 1983 action based on constructive discharge and TitleVII constructive discharge has led to confusion among the circuits in adopting an appropriate standard for the straight 

### 5 1983 action: The elements required to establish a constructive discharge claim under the due process clause are not entirely clear. Some courtshave required an individual asserting a constructive discharge claim to establish that the defendant forced a discharge in order to avoid apretermination hearing, see,e.s., Fowler

### v. Carrollton Public Librarv, 799 F.2d 976 (5th ~ir.),reh. denied, 803 F.2d 717 (1986); others have required that the plaintiff show that the employer either obtained the plaintiff's resignation through misrepresentations or deceit or forced the resignationby duress or coercion, see Stonev. University of Maryland Medical System, 855 F.2d 167 (4th Cir.1988) ;and still others appear toadopt the TitleVII standard,

## see, e.q., ~reenberq v. ~metko, 840 F.2d 467, 475 (7thCir. 1988). Desper v. Montgomery County (E.D.Pa.1990), 727 F.Supp. 959, 964. Other jurisdictions apparently hold that a 5 1983 claim can never be based on an allegation of constructive discharge. See, e.q., Beard v. Baum (Alaska 1990), 796 P.2d 1344, 1350. We think that the position adopted by the Fifth Circuit in Fowlerv. Carrollton Public Librarv, supra, is thebetter-reasoned

one. There, the court analyzed 5 1983 claimsbased on constructive discharge in light of the general principles governing 1983claims set forth by the United States Supreme Court in Loudermill and Daniels v. Williams (1986), 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662. We quote at length the Fifth Circuitlsreasoning: The Loudermill rule does not 

### a fortiori apply to cases of alleged constructive discharge. A pretermination hearing is just not feasible when the gist of the employee's claim is that he was forced to resign by unbearable working conditions. More significantly,the lack of a pretermination hearing does not necessarily create a constitutionalprocedural dueprocess violation when that deficiency was an unintended or fortuitous consequence of harassment at work. In Daniels v. Williams [citation omitted] the Supreme Court recently held that negligent conduct does not implicate the Due Process Clause of the FourteenthAmendment. 

# . . 

# . The Court cited with approval Justice Powell's concurrence in Parratt, [Parrattv. Taylor (1981), 451U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 4201 urging that the word "deprivet1 in the Due Process Clause connotes more than a negligent act and that the doors of the federal court house should not be l1open

# . . . where there has been no affirmative abuse of power." Daniels 106 S.Ct. at 664- 65, citing Parratt, 101 S.Ct. at 1919-20. Discussing a public employee dismissal case, the Court cautioned, "In the absence of any claim that the public employer 

### was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action 

# . . . if erroneous, canbest be corrected in otherways.I1 Bishop v. Wood, 426 U.S. 341, 350, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684 (1976) (emphasisadded.) No issue of intent arises in a Loudermill case, because the employee 

# . . . has been actually terminated without resort to constitutionallyrequired procedures. Theemployer must have consciously ignoredproceduraldue process. 

# . . . [Hlowever, constructive discharge may oftenresultas anunintended consequence fromthecourse of interpersonal relations among employees and supervisors. Indeed,thatwasvery likelythe casehere, for to the extent that Fowler demonstrated unbearable working conditions inthe library,therewasnevertheless no evidence that Mjaaland and FowlerIs coworkers purposefully sought to force her to resign or purposefully planned to avoid the City's posttermination hearing procedure. Without proof of that critical nexus between the conduct complained of and the constitutional risht beins asserted, we find no general procedural due process protection against harassment at work.

# ... From the forgoing discussion, it appears that the district court erroneously submitted actual and constructive discharge as theories of 

### 5 1983 recovery in the same jury interrogatory. Constructive discharge in a procedural dueprocess case constitutes a 5 1983 claim only if it amountsto forceddischarsetoavoid affording pretermination procedures. (Emphasisadded.) Fowler, 799 F.2d at 980-981. We adopt the rationale of the Fifth Circuit and hold that a valid procedural due process claim based on constructive discharge requires employer conduct motivated by

a desire to avoid subjecting its actions to the scrutiny of a termination related hearing. We also note, as did the Fowler court, that our holding here does not affect the viability of the objective constructive discharge standard inaTitleVII employment discrimination claim, under 42 U.S.C. 82000e. In those cases, harassment motivated by the discrimination proscribed in the statuteautomatically establishesthe Itcriticalnexus1' between the conduct complained-of and the employee's constitutional right. Fowler, 799 F.2d at 980-981. Thus, not only was it error in this case for the District Court to give an incomplete instruction on the definition of due process and essentially direct a verdict for the plaintiff, the court also erred in instructing the jury that it could find a deprivation of due process if it merely found a constructive discharge under the traditional objective test. Under the law we adopt here a 8 1983 claim based on harassment at work requires additionalproof of the employer's subjective intenttodeprive the employee of his due process hearing. In this regard, evidence that the Trustees in this casewithdrew theirrequest for Doohan's resignation--allegedly for the purpose of investigating the due process requirements to ensure compliance therewith--would be material to the issue of the Trusteesactual intent concerningtheallegedon-the-jobharassment of Doohan. If the jury finds that the Trustees were sincere in their concerns about termination law, it cannot find that the Trustees deprived Doohan of due process of the law. If, on the other hand a jury finds that the Board is merely attempting to disguise its intentional attempts to deprive Doohan of his job

### and his right to a hearing on his discharge then Doohan has a cognizable claim under 5 1983. It was imperative that Instruction No. 12 told the jury specifically what Doohan had to prove to satisfy each element of the 5 1983 claim. To establishadeprivationof that constitutional right, Doohan first had to prove that the School District constructively dischargedhim. ~dditionally, hehad to prove that such discharge was intentionally carried out with the purpose of depriving Doohan of his right tonotice and ahearing. The CourtIs instructions failed torequire thisadditionalproof. The jury was not correctly instructedconcerningtherequirements ofdueprocess in this case norwas itproperly instructed on the type of conduct required for liability in a 5 1983 case. Thegiving of Instruction No. 12 was reversible error.

Becausewe have determined that thegiving of InstructionNo. 12 was error, we decline to determine the defendant's third issueregarding sufficiency of the evidence to support the verdict against the School District. Because we are essentially adopting

a new standard for 5 1983 claims based on constructive discharge,

we think it fair that theplaintiff have an opportunity to present proof ofhis 

### 5 1983 claim under the Fowler standard at a new trial. Therefore, we decline to rule on the sufficiency of the evidence based on a record developed under a different standard. "The supreme courtmay not be bound in advance to a recordwhich was not in existence at the time the decisionwas rendered. 

# . 

# . . If the prior decision of the supremecourt does not expressly pass on the sufficiency of the evidence,thedistrict court is free to consider

a motion for directed verdict as if there had been no prior proceedings.I1 OIBrienv. Great NorthernRy. Co. (1966),148 Mont. 429, 441, 421 P.2d 710, 716. In asmuch as Doohan1s5 1983 claim will be re-tried under the new standard, the defendants will have an opportunity to raise the issue of the sufficiency of the evidence supporting the 5 1983 claim at an appropriate time.

# a, e.s., Zeke's Distributing Co. v. Brown Forman Corp. (1989), 239 Mont. 272, 279-280, 779 P.2d 908, 913. IV. Appellants argue that the School District is immune from damages under the U.S. Supreme Court's decision in Harlow v. Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. The Harlow decisionheld thatgovernment officials are immune from civil liability as long as their conduct does not violate clearly established law. Inpertinent part, Harlow provides:If the law at that time was not clearly established,an official could not reasonablybe expected to anticipate subsequent legal developments, nor could he fairly be said to I1knoww that the law forbade conduct not previously identified as unlawful. 

# . . . If the law was clearly established, the immunity defense ordinarily should fail,sinceareasonably competentpublic official should know the law governing his conduct. Harlow 102 S.Ct. at 2738. Appellants argue that the law applicable to the School Board's conduct in relation to terminating a superintendent is not clearly established. However 5 20-4-401, MCA, plainly delineates how a school board must terminate a superintendent. The District Court correctly presumed the Board to have knowledge of this statute and appellants do not argue otherwise. According to appellants the termination process required by 5 20-4-401,MCA,would be the I1clearlyestablishedI1law only if it had affirmatively discharged Doohan and Doohan had alleged that ithadwrongfully dischargedhim. Constructivedischarge, however, is a form of wrongful discharge. Thus, if the School Board constructively discharged Doohan, then it did so in violation 5 20-4-401, MCA, which the Board knew outlined the required terminationprocedure. Furthermore, if a jury findsthat the Board constructively discharged Doohan with the purpose of depriving Doohan of the procedures prescribed in 5 20-4-401, MCA, the Board obviously cannot claim immunity based on ignorance of the procedures it was purposefully avoiding. Moreover, a state law defense of sovereign immunity under 5 2-9-111, MCA, is not available in a 5 1983 suit where a defendant school board isotherwise subject to suit in a state court andwhere such adefense would not be available had the action been brought in a federal forum. Howlett 

### v. Rose (1990), 

### - U.S.-, 

## , 110 S.Ct. 2430, 2442-2445, 110 L.Ed.2d 332, 352-356. Thus, the immunity afforded by § 2-9-111, MCA, does not apply to causes of action granted by the federal constitution such as the Civil Rights Act, 42 U.S.C. § 1983. We hold that the School District is not entitled to immunity from damages under 42 U.S.C. 5 1983.

Thedefendants Cochraneand Chrysler contend that the record lacks substantial evidence to support the jury's verdict that they intentionallyinflicted emotionaldistress on Doohan. Instruction No. 19 as given by the District Court covered the elements of the intentional infliction of emotional distress and also the scope of the immunity Cochrane and Chryslerpled as adefense to the alleged infliction. It stated:

INSTRUCTIONNO. 19 Plaintiff has asserted a claim for the intentional infliction of emotional distress upon the Plaintiff by Defendants Chrysler and Cochrane. One whoby extreme and outrageousconduct intentionallycauses severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for suchbodily harm. In order foryou to find these two Defendants intentionally inflicted emotional distress upon the Plaintiff,youmust find that theirbehavior, intheirrelationship with the Plaintiff, was sooutrageous in character,and so extreme indegree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. The liability does not extend to mere insults, indignities, threats, annoyances, petty oppression and other trivialities. Emotional distress is defined as mental suffering,anguish, mental or nervous shock or the like. Severe emotional distress isdefined as emotional distress such that no reasonableman could be expected to endure it. 

### I further instructyou that if you find the conduct of Defendants Chrysler and Cochrane, in their dealings with the Plaintiff,arose from their lawful discharge of official duties associated with the introduction or consideration of legislation or action by the Board of Trustees, acting on behalf of the School District, then you cannot find these Defendants intentionally inflicted emotional distress upon the Plaintiff. Nor canyou find liabilitybased upon suchDefendants1insistence upon his legal rights in a permissible manner even though he is well aware that such insistence is certain to cause emotional distress.

The defendants did not object to this instruction at trial. They now contend on appeal that the record does not contain substantial credible evidence to support the verdict of the intentional infliction of emotional distress. In addition they contend that under 5 2-9-111,MCA, they were immunized from liability. This Court has not yet dealt with a case which merits recognition of a separate cause of action for the intentional infliction of emotional distress. Frigonv. 

### orriso on-Maierle, Inc. (1988), 233 Mont. 113, 123-124, 760 P.2d 57, 63-64. We have not, however, rejected outright thevalidity of such a cause of action. Rather, we simply have not addressed a factual situation that may give rise to liability for sucha tort under the standard set forth in 5 46 of the Restatement (Second) of Torts: One who by extreme and outrageous conduct intentionally orrecklesslycauses severeemotionaldistresstoanother is subjectto liability for such emotional distress,and if bodily harm results from it, such bodily harm. Comment lidw to 5 46 explains the nature of the conduct necessary to impose liability:Thecasesthus fardecidedhave found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress,oreven thathisconducthasbeen characterized by llmalice,ll or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and tobe regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arousehis resentment against the actor, and lead him to exclaim, l~Outrageous!" The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in themeantimeplaintiffsmust necessarily be expected and required tobe hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be leftthrough which irascibletempers may blow off relatively harmless steam. Restatement (Second) of Torts 546 (1965), comment d. Doohan introduced evidence tending to show that Chrysler and Cochrane, over a period of eight months to a year, engaged in a campaigndesigned to oust him fromhis position as Superintendent. Doohan alleges that prior to this campaign, the record indicates that he had performed exceptionally well and received good evaluations duringhis firstyearas Superintendent,andwas coping well with the normal positive stresses that the job entailed. Doohan alleges that Cochrane and Chrysler then began their campaign seekingtoundermine his credibility and effectivenessby directing the attention of the School Board, the media and thecommunitytowardscertain eventscharacterizingDoohanunfavorably. He alleges that they attempted to manipulate the media and they utilized every opportunity to characterize events so as to cast doubt on Doohantsprofessional abilities and moral character. Doohan alleges that Chrysler and Cochrane worked with others outside of School Board meetings to circumvent Doohan1sauthority and to lay something in the nature of an ambush during meetings. Chrysler and Cochrane allegedly continued their campaign in the face of Doohan1sdeteriorating mental and physical condition of which they were allegedly aware. The evidence Doohan contends constitutes extremeand outrageousconductby Cochraneand Chrysler includes the following:

ROBERT CHRYSLER 1) Doohan insinuates that Chrysler changed his mind about retiring as a Trustee after Doohan determined that there were not enough funds in the school budget to support a school nurse program---for which Chryslerlswife had already applied---so that he could carry out a campaign against Doohan for not recommending the creation of theposition and the hiring of Mrs. Chrysler.
2 Doohan and Chrysler disagreed regarding Chrysler's assertion that it is a Trustee's duty to periodically observe classes although not for the purpose of evaluation. Chrysler attempted to observe a class against Doohan1swishes to which the principal, withDoohantssupport,objectedand eventuallyprevented Chrysler from doing. 3) Chrysler issued a memorandum critical of Doohan the 19morning after a schoolmeeting during which Doohanbecame angry at a school employee, threw down his pencil in disgust and publicly criticized the employee. 4) Doohan was authorized by the Board to investigate and purchase a computer. Doohanpurchased thecomputer pursuant to the lowest bid with only consulting one Board member for approval, allegedly because it was a time limited offer that required immediate action. At a School Board meeting Chrysler criticized Doohan forpurchasing thecomputer without consultingthe Board and for allegedly not investigating the compatibility of the software with the appropriate state agency. Doohan alleges that Chrysler would not accept any answer from him as a valid reason for his sudden purchase and attempted to undermine Doohan by insinuating that Doohan was attempting to conceal his failure to investigate software compatibility from the Board. 5) Doohan alleges that Chrysler coordinated a November 26, 1984 School Board meeting agenda in advance and activelyurged the Board 

### to listen to totally inappropriate criticism of a superintendent by an elementary school principal in executive session. Chrysler also allegedly encouraged elementary school principal ChrisHagar to request this executive session to discuss the Board's evaluation of him when such an evaluation would properly be performed by Doohan. 6 Doohan asserts that Chrysler gave him a marginal evaluation after the end of the second evaluation period and refused to disclose to Doohan the basis of a comment insinuatingthat Doohanwas not "totally open and factual." 7) Chrysler supposedly refused to permit Doohan to observe or participate in the tallying of the results of questionnaires which ultimately concluded that the local mill levy did not pass because the voters were dissatisfied with the school administration. 8) Doohan recommended that the School Board not join the Montana School Board Association. Chrysler sent Doohan1s memorandum setting forth the reasoning behind his recommendation to the association requesting an opinion thereon. 9) Doohan contends that Chrysler concocteda story regarding

a threatening telephone call Doohan supposedly made to Chrysler after a discussion concerning wages for a new secretary position. ALBERT COCHRANE 1) Doohan alleges that Cochrane had prior knowledge of and probably participated in the preparation of the November 26th meeting agenda with Chrysler. 2 Doohan alleges that Cochrane also brought out in the Board meeting that he had independently investigated charges brought by Hagar regarding an incident in the teacher's lounge and related to the Board that an individual present in the teacher's loungeverified that Doohanhad called Hagar an 'IS .O.B. Cochrane thereby concluded to the Board that Doohan was lying regarding the incident at a timewhen Doohanwas absent and unable to respond to such a serious charge. 3) Doohan asserts that when he entered the meeting Cochranecriticized him for failing to communicate effectively with Hagar, shook his finger at Doohan and told him to straighten out his relationshipwith Hagar Iforelse.'' Doohanalso criticizesCochrane because he allegedly urged the Board to inappropriately issue a public memorandum suggesting that Doohan was responsible for the lack of communicationbetween Hagar and himself,when in reality the problem was Hagar's fault. 4) Cochrane stated that there was a 'Icloud of mysteryI1 surroundingtheapparentdisappearance of the original of Doohan's contract. The absence of the original was discovered when uncertainty arose as towhether the Board had agreed togive Doohan

a one or two year contract. Doohan alleges that this comment was meant to insinuate that Doohan was somehow responsible for the contract's disappearance. 5) Cochrane also gave Doohan a marginal evaluation at the close of the second evaluation period and refused to disclose to Doohan themeaning of the I1totallyopen and factual1' commentwhich Doohan allegeswas an accusation that he was a liar. 6) When Doohan announced he would hold a faculty morale session,Cochrane allegedly insisted on attending despite Doohan1s explanation that Cochrane'sattendancewas inappropriate and would be disruptive. After much disagreement on this issue Cochrane eventually did not attend. 7) When Cochrane's son Tim was caught in possession of alcohol at school, Doohan alleges that Cochrane attempted to persuade Doohan to impose a lesser penalty on Tim and then beratedhim for not doing so. Doohan insinuates that this escalated the motive underlying Cochranetscampaign to oust Doohan, just as the school nurse position incident increased Chryslerlsmotive to undermine him. 8) DoohanassertsthatCochranewas instrumental inpreparing and conducting a survey of School District residents. He alleges that the questionswere designed and the results latermanipulated to reflect badly upon Doohan's performance as Superintendent, and to imply that Doohanwas the reason for the failure of the voters to pass the schoolmill levy. Doohan alleges that the survey was not scientifically valid and that Cochrane intentionally disregarded a number of suggestions on survey methodology made by High School Principal Zepp concerningdistributionand thewording of questions. Doohan also asserts that Cochrane arranged Doohan1s absence as a chaperon for a group of students visiting Washington, D.C. so that he would be away from Bigfork and unable to protest at the time the survey was conducted and the results were published. In reviewing the evidence,we are required to consider it in

a light most favorableto Doohan, theprevailing party. Nelson 

### v. Fairmont Hotsprings Resort, Inc. (1988), 234 Mont. 452, 455, 763 P.2d 1135, 1137. We note that the record discloses substantial conflict in the evidence regarding Chrysler and Cochranelsalleged campaign of harassment. The jury apparently resolved these conflicts in favor of Doohan. Even so, it is a question of law whether a plaintiff has introduced sufficient evidence to supporta prima facie case for intentional infliction of emotional distress. Philip 

### R. Morrow, Inc. v. FBS Ins. Montana-Hoiness Labar, Inc. (1989), 236 Mont. 394, 403, 770 P.2d 859, 864. As unfortunate as the apparent consequences to Doohan's health that allegedly arose from his tenure at Bigfork may be, when the evidence is considered as a whole and in the light most favorable to Doohan, the alleged actions of Chrysler and Cochrane still fail to approach the threshold level of ggoutrageousness~~ necessary to establishaprima faciecaseof intentional inflictionof emotional distress. In ruling on the defendantsg motions for directed verdict, the trial judge stated that "therewas copious evidence that the Plaintiff was under acute emotional distress." Indeed, the record does demonstrate that Doohan suffered mental distress or symptoms commonly related to mental distress. However, the record also indicates that Doohan suffered from medical and psychological problems prior to his employment in Bigfork. Thus whether the symptoms he suffered were entirely a result of the Trustees' conduct is unclear. Moreover, we do not live in an "eggshell societytt in which every harm gives rise to a right of action formental distress. First Bank Billings

### v. Clark (1989), 236 Mont. 195, 206, 771 P.2d 84, 91. As the commentators to the Restatement note: Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living amongpeople. The law intervenesonlywhere thedistress inflicted is so severe that no reasonable person could be expected to endure it. 

# . . 

# . Thedistress must be reasonableand justified under the circumstances, and there is no liability where theplaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiarly susceptibility to such distress of which the actor has knowledse. 

# . . . (Emphasisadded.) Restatement (Second) of Torts 5 46 (1965), comment j. In this regard, Doohan presented the testimony of a psychologist who concluded that Doohan suffered from 

### a personality disorder that

arose from his being a recovering alcoholic. This disorder allegedly caused Doohan to over extend himself in order to gain approval of others and be viewed as an extraordinary individual, and consequently made him particularly sensitive to criticism. However, there is no evidence in the record that the Board knew about Doohan1spast strugglewith substance abuse or any resulting peculiarity in Doohan1spersonality that would make him unusually susceptible to their alleged attacks. As we held in Philip R. Morrow, no facts here demonstrate extreme and outrageous conduct going I1beyondall possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.11 Restatement (Second) of Torts § 46 (1965), comment d; Philip R. Morrow, 770 P.2d at 864, Frison, 760 P.2d at 64. Nor has Doohan presented facts showing a I1substantialinvasion of a legally protected interest.If Johnson

v. Supersave Markets, Inc. (1984), 211 Mont. 465, 473, 686 P.2d 209, 213. While we have yet to decide under what facts we will recognizethis tort,wehave at leastdecided some situationswhere

we will not. PhilipR. Morrow, 770 P.2d 864. We add the situation here to that list. We conclude that the District Court erred when it denied thedefendants1motions for directed verdict on Doohan'sintentional infliction of emotional distress claims. We also note that there is an inconsistency in the jury's

answer to interrogatory 2(a) in the special verdict form regarding trusteeChrysler. There the jury found thatChrysler intentionally inflicted emotional distress upon Doohan and awarded $ 1.00 as damages. One element of a prima facie case for intentional infliction of emotional distress is that the plaintiff actually suffer severe emotional distress. See Prosser and Keeton on Torts 12, pp. 63-64 (5th Ed. 1984), see also Clark 771 P.2d at 91. Thus, unlike other intentional torts against the person--such as assault,battery, 'or false imprisonment--intentional inflictionof emotional distress requiresa showing of actualdamages. A finding of $1.00 inactual damages--in essence an award of nominaldamages- -is inconsistent with the findingthatdefendant Chrysler inflicted ''severeemotionaldistressl1upon Doohan. Suchdistressby itsvery nature must manifest itself as actual damage, and certainly if llseveren it would amount to substantially more than $1.00. VI

# . Finally, Cochrane and Chrysler argue that they are entitled to immunity under 3 2-9-111, MCA, and as instructed in Instruction No. 19,quoted earlier. However,we need not determine this issue. Doohan brought two state law claims against the individual defendants Chrysler and Cochrane, one for constructive discharge and one for intentional inflictionof emotional distress. The jury found no liability against the individual defendants for constructive discharge and, as we have determined, Doohan failedto state aprima facie case for intentional infliction of emotional distress against Chrysler and Cochrane. Thus, all that remains to be determined at retrial is Doohan's 5 1983 claim against the remaining defendant,the School District, under the law we have set forth in this opinion. Under our holding on Issue 111, immunity does not apply to the School Board on this claim. Howlet, supra, 110 S.Ct. at 2442-2445. VII. Finally,the issue raised by Doohan on cross appeal---whether the filing of the Notice of Appeal divested the District Court of jurisdiction to decide Doohantsapplication for attorney fees pursuant to 42 U.S.C. 5 1988---is rendered moot by our remand of this case for retrial of Doohan's claim under 42 U.S.C. 5 1983. REVERSED and REMANDED for further proceedings consistent with this opinion.

We Concur:

I

Justices 27Justice Fred J. Weber dissents as follows: My review of the record in a light most favorable to Mr. Doohan demonstrates thathepresented a compelling factual case in supportof his claims. Inaddition, Idisagree thatthedefendants presented valid legal grounds for reversal. In its ruling reversing the judgment on the constructive discharge claim, the majority adopts and retroactively applies a
new standard which has been adopted in the Fifth Circuit of the federal courts. That rule isnot universally recognizedand it was not argued in the parties1briefs. I do not agree that it is a workable rule. I find it inappropriatetoretroactivelyapply such

a new standard. When the challenged jury instruction, InstructionNo. 12, is read as a whole and consideredwith the other instructions given, it does not misrepresent the law. The instructions as given required that theplaintiff prove thekey elements of constructive discharge andprovided thatthedefendantscouldnotbeheld liable if they actedwithin limits of their lawfulauthority. Iwould not recommendtheuse of InstructionNo. 12 ina constructive discharge

casebecause itcontainedvarious comments whichwerenot essential in the absence of an issue as to notice or hearing. However, I would conclude that therewas no reversible error in the giving of InstructionNo. 12. I further conclude that the record supports the courtls action in submitting the issue of intentional infliction of emotional distress to the jury, because the evidence of thedefendants1acts reached the threshold level of l~outrageousness.~ Mr. Doohanpresented evidence ofmany eventsdemonstrating that the conduct on the part of Mr. Cochrane and Mr. Chrysler was intentional in nature, and sufficient to demonstrate a basis for the jury's verdict in his favor. While the defendants presented conflicting evidence, whenweview all of the evidence inthe light most favorable to Mr. Doohan, as we are required to do, there is clearly sufficientevidence to supporttheverdict againstbothMr. Cochrane and Mr. Chrysler. Our review is of the cold record which is a poor foundation on which to evaluate testimony here and conclude itwas not woutrageous.~The record clearly demonstrates that the acts of Mr. Chrysler and Mr. Cochrane caused serious emotional distress for Mr. Doohan. Iwould affirm the judgment of the ~istrict Court.

Justices John C. Sheehy and William 

### E. Hunt, Sr., concur in the foregoing dissent.

,, ''1