No. 89-207 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

THOMAS P. DOOHAN, 

Plaintiff and Respondent, 

-vBIGFORK SCHOOL DISTRICT NO. 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 m 
Justice R. C. McDonough delivered the Opinion of the Court. 

This case is an appeal from a judgment against Bigfork School 

District No. 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 

depriving the respondent, Thomas P. Doohan, of his 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. 

The parties raise several issues which we restate as follows: 

As to School District No. 38: 

I. Did the District Court err in giving Instruction No. 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 substantial evidence support the jury's verdict that 

Cochrane and Chrysler inflicted emotional distress on Doohan? 

VI. Are Cochrane and Chrysler entitled to immunity under 3 

2 
2-9-111, MCA? 

Doohan raises an issue on cross-appeal: 

VII. Did the filing of the Notice of Appeal divest the 

District Court of jurisdiction to decide Doohan's application 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 intolerable working conditions, he suffered severe mental 

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 force him 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, communication with the media, communication with 
the public, School Board members1 communication with each other 

privately, and various private communications with Doohan. 

Defendants introduced evidence that conflicted substantially 

with Doohan1s evidence regarding the same incidents. More 

specific facts will be discussed as necessary. 

I and 11. 

We will discuss the first two issues together. First, the 

defendant School District argues that Instruction No. 12 provides 

an inadequate definition of the requirements of due process and 

essentially directed a verdict on the § 1983 claim in Doohan's 

favor. Instruction No. 12 provided: 

INSTRUCTION NO. 12 

Under the United States Constitution and the federal 

statute I [the court] previously referred to, the 

Plaintiff is claiming he has been deprived of property 

and liberty I1without due process of law." To be deprived 

of onels property and liberty I1without due process of 

lawf1 means 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 acted within the limits of 

their lawful authority under state law, then the 

Defendants could not have deprived the Plaintiff of any 

right I1without due process of law. l1 

Under Montana law, the Trustees may terminate the 

services of a superintendent of Schools only at the 

expiration of his term, and only if they give him written 

notice of the termination prior to February 1 of 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. 
In this case, Mr. Doohan, the Plaintiff, has claimed 

that the Defendant Board of Trustees has constructively 

discharged him from his position as Superintendent 

without giving him a hearing, and that their actions have 

deprived him of his constitutionally protected rights to 

property and liberty. 

If you find that the Defendant Board constructively 

discharged the Plaintiff without notice and hearing you 

may find the Plaintiff was deprived of the due process 

of law. (Emphasis in original.) 

This instruction was fashioned by the court from the court's own 

language, several of the plaintiff's instructions, and the first 

paragraph of the defendant's Proposed Instruction No. 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: 

Due process may be defined as notice and 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, the manner in which this was done, the reasons 

for doing it, the available alternatives to the procedure 

that was followed, the protection implicit in the office 

of the functionary whose conduct is challenged and the 

balance of the hurt complained of and good accomplished. 

Defendant's definition of due process is taken directly from the 

United States Supreme Court decision in Anti-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. 

While we agree with the trial judge's assessment of this definition 
as better suited for judicial opinions than jury instructions, 

nevertheless it is a better definition of due process 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 the many 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), 407 U.S. 67, 81, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 570. 

Generally, "some kind 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, the very nature of a constructive discharge in many 

cases precludes the giving of notice and hearing on the subject 
employee'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, Instruction No. 12 implies that the foregoing 

is correct. It instructed that the Trustees could terminate Doohan 

prior to the expiration of his contract only after a hearing on the 

reasons for dismissal and a finding of just cause. Furthermore, 

instructed that Doohan alleged that the Trustees "constructivelv 

discharsed him from his position as Superintendent without 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. (Emphasis added.) 

The instruction essentially directed a verdict for Doohan on his 

§ 1983 claim because it incorrectly focused on the idea of 

constructive discharge "without a hearing1', 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 is not supported by 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 

7 
terminated; generally no notice or hearing is in any way involved 

in that type of a termination. These elements were contained in 

the court's Instruction No. 10: 

INSTRUCTION NO. 10 

Plaintiff has asserted a claim for constructive 

wrongful discharge against the School Board and against 

Defendants Chrysler and Cochrane as individuals. 

The doctrine of constructive discharge applies where 

facts are present showing harassment, intimidation, 

coercion or other aggravating conduct on the employer's 

part which renders working 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 a prudent person to believe his tenure had 

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 instruction was 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 Hannifin v. 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 (9th Cir. 1982). Snell involved a federal law claim 

of constructive discharge in an employment discrimination case 

under Title VII of the Civil Rights Act of 1974, 42 U. S. C. 5 2000e. 

Many such Title VII employment discrimination cases are accompanied 

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 (10th Cir.1985), 777 F.2d 567, Satterwhite v. Smith (9th Cir. 

1984), 744 F.2d 1380, Nolan, supra, (9th Cir.1982), 686 F.2d 806, 

Bourque v. Powell Manufacturing Co. (5th Cir. 1980) , 617 F. 2d 61, 

Young v. Southwestern Savings and Loan Association (5th Cir.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 involved therein as if it had formally discharged 

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 conditions would have been so difficult 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 specifically rejected arguments that 

an employee has to prove that it was the employer's intent to force 
the employee to resign in Title VII discrimination cases. 

While Title VII employment discrimination cases under 42 

U. S.C. 5 2000e may involve similar issues and are often accompanied 

by claims under 42 U.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 Title VII 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 courts have required an individual 

asserting a constructive discharge claim to establish 

that the defendant forced a discharge in order to avoid 

a pretermination 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 resignation by duress or coercion, 

see Stone v. University of Maryland Medical System, 855 

F.2d 167 (4th Cir.1988) ; and still others appear to adopt 

the Title VII standard, see, e.q., ~reenberq v. ~metko, 

840 F.2d 467, 475 (7th Cir. 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 

Fowler v. Carrollton Public Librarv, supra, is the better-reasoned 

one. There, the court analyzed 5 1983 claims based on constructive 

discharge in light of the general principles governing 1983 
claims 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 Circuitls reasoning: 

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 constitutional procedural due process 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 Fourteenth Amendment. . . . The 

Court cited with approval Justice Powell's concurrence 

in Parratt, [Parratt v. Taylor (1981), 451 U.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, can best be corrected in other ways.I1 Bishop 

v. Wood, 426 U.S. 341, 350, 96 S.Ct. 2074, 2080, 48 

L.Ed. 2d 684 (1976) (emphasis added. ) 

No issue of intent arises in a Loudermill case, 

because the employee . . . has been actually terminated 

without resort to constitutionally required procedures. 

The employer must have consciously ignored procedural due 

process. . . . [Hlowever, constructive discharge may 

often result as an unintended consequence from the course 

of interpersonal relations among employees and 

supervisors. Indeed, that was very likely the case here, 

for to the extent that Fowler demonstrated unbearable 

working conditions in the library, there was nevertheless 

no evidence that Mj aaland and Fowler I s 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 due process case constitutes a 5 1983 claim 

only if it amounts to forced discharse to avoid affording 

pretermination procedures. (Emphasis added.) 

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 in a Title VII employment 

discrimination claim, under 42 U.S.C. 82000e. In those cases, 

harassment motivated by the discrimination proscribed in the 

statute automatically establishes the Itcritical nexus1' 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 

additional proof of the employer's subjective intent to deprive the 

employee of his due process hearing. 

In this regard, evidence that the Trustees in this case 
withdrew their request 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 

Trustees actual intent concerning the alleged on-the-job harassment 

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 establish a deprivation of that constitutional 

right, Doohan first had to prove that the School District 

constructively discharged him. ~dditionally, he had to prove that 

such discharge was intentionally carried out with the purpose of 

depriving Doohan of his right to notice and a hearing. The Court Is 

instructions failed to require this additional proof. The jury was 

not correctly instructed concerning the requirements of due process 

in this case nor was it properly instructed on the type of conduct 

required for liability in a 5 1983 case. The giving of Instruction 

No. 12 was reversible error. 

Because we have determined that the giving of Instruction No. 

12 was error, we decline to determine the defendant's third issue 
regarding 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 the plaintiff have an opportunity to present 

proof of his 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 court may not be bound in advance to a record which was not 

in existence at the time the decision was rendered. . . . If the 

prior decision of the supreme court does not expressly pass on the 

sufficiency of the evidence, the district court is free to consider 

a motion for directed verdict as if there had been no prior 

proceedings.I1 OIBrien v. Great Northern Ry. Co. (1966), 148 Mont. 

429, 441, 421 P.2d 710, 716. In as much as Doohan1s 5 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 decision held that government officials are immune from 

civil liability as long as their conduct does not violate clearly 

established law. In pertinent part, Harlow provides: 
If the law at that time was not clearly established, an 

official could not reasonably be 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, since a reasonably competent public 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 I1clearly establishedI1 law only if it 

had affirmatively discharged Doohan and Doohan had alleged that 

it had wrongfully discharged him. Constructive discharge, 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 

termination procedure. Furthermore, if a jury finds that 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 is 
otherwise subject to suit in a state court and where such a defense 

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. 

The defendants Cochrane and Chrysler contend that the record 

lacks substantial evidence to support the jury's verdict that they 

intentionally inflicted emotional distress 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 Chrysler pled as a defense to the alleged 

infliction. It stated: 

INSTRUCTION NO. 19 

Plaintiff has asserted a claim for the intentional 

infliction of emotional distress upon the Plaintiff by 

Defendants Chrysler and Cochrane. One who by extreme and 

outrageous conduct intentionally causes severe emotional 

distress to another is subject to liability for such 

emotional distress, and if bodily harm to the other 

results from it, for such bodily harm. In order for you 

to find these two Defendants intentionally inflicted 

emotional distress upon the Plaintiff, you must find that 

their behavior, in their relationship with the Plaintiff, 

was so outrageous in character, and so extreme in degree, 

as to go beyond all possible bounds of decency, and to 

be regarded as atrocious, and utterly intolerable in a 

civilized community. 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 is defined as emotional distress such 

that no reasonable man could be expected to endure it. 

I further instruct you 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 can you find 

liability based upon such Defendants1 insistence 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. Frigon v. orriso on-Maierle, Inc. 

(1988), 233 Mont. 113, 123-124, 760 P.2d 57, 63-64. We have not, 

however, rejected outright the validity of such a cause of action. 

Rather, we simply have not addressed a factual situation that may 

give rise to liability for such a tort under the standard set forth 

in 5 46 of the Restatement (Second) of Torts: 

One who by extreme and outrageous conduct intentionally 

or recklessly causes severe emotional distress to another 

is subject to 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: 
The cases thus far decided have 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, or even that his conduct has been 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 to be regarded as atrocious, and utterly intolerable 

in a civilized community. Generally, the case is one in 

which the recitation of the facts to an average member 

of the community would arouse his resentment against the 

actor, and lead him to exclaim, 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 the meantime plaintiffs must necessarily be 

expected and required to be 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 left through which irascible tempers 

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 

campaign designed to oust him from his position as Superintendent. 

Doohan alleges that prior to this campaign, the record indicates 

that he had performed exceptionally well and received good 

evaluations during his first year as Superintendent, and was coping 

well with the normal positive stresses that the job entailed. 

Doohan alleges that Cochrane and Chrysler then began their 

campaign seeking to undermine his credibility and effectiveness by 

directing the attention of the School Board, the media and the 
communitytowards certain events characterizing Doohan unfavorably. 

He alleges that they attempted to manipulate the media and they 

utilized every opportunity to characterize events so as to cast 

doubt on Doohants professional abilities and moral character. 

Doohan alleges that Chrysler and Cochrane worked with others 

outside of School Board meetings to circumvent Doohan1s authority 

and to lay something in the nature of an ambush during meetings. 

Chrysler and Cochrane allegedly continued their campaign in the 

face of Doohan1s deteriorating mental and physical condition of 

which they were allegedly aware. The evidence Doohan contends 

constitutes extreme and outrageous conduct by Cochrane and 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 Chryslerls wife had already applied---so that 

he could carry out a campaign against Doohan for not recommending 

the creation of the position 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 Doohan1s wishes to which the 

principal, with Doohants support, objected and eventually prevented 

Chrysler from doing. 

3) Chrysler issued a memorandum critical of Doohan the 

19 
morning after a school meeting during which Doohan became 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. Doohan purchased the computer 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 for purchasing the computer without consulting the 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 actively urged 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 Chris Hagar 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 insinuating 
that Doohan was 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 concocted a 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 lounge verified that Doohan had called Hagar an 'IS .O. B. 

Cochrane thereby concluded to the Board that Doohan was lying 

regarding the incident at a time when Doohan was absent and unable 

to respond to such a serious charge. 

3) Doohan asserts that when he entered the meeting Cochrane 
criticized him for failing to communicate effectively with Hagar, 

shook his finger at Doohan and told him to straighten out his 

relationship with Hagar Ifor else.'' Doohan also criticizes Cochrane 

because he allegedly urged the Board to inappropriately issue a 

public memorandum suggesting that Doohan was responsible for the 

lack of communication between Hagar and himself, when in reality 

the problem was Hagar's fault. 

4) Cochrane stated that there was a 'Icloud of mysteryI1 

surrounding the apparent disappearance of the original of Doohan's 

contract. The absence of the original was discovered when 

uncertainty arose as to whether the Board had agreed to give 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 the meaning of the I1totally open and factual1' comment which 

Doohan alleges was 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's attendance was 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 berated 
him for not doing so. Doohan insinuates that this escalated the 

motive underlying Cochranets campaign to oust Doohan, just as the 

school nurse position incident increased Chryslerls motive to 

undermine him. 

8) Doohan asserts that Cochrane was instrumental in preparing 

and conducting a survey of School District residents. He alleges 

that the questions were designed and the results later manipulated 

to reflect badly upon Doohan's performance as Superintendent, and 

to imply that Doohan was the reason for the failure of the voters 

to pass the school mill 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 concerning distribution and the wording 

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 favorable to Doohan, the prevailing 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 Cochranels alleged 

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 support 
a 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 

establish a prima facie case of intentional infliction of emotional 

distress. In ruling on the defendantsg motions for directed 

verdict, the trial judge stated that "there was 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 for mental 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 

among people. The law intervenes only where the distress 

inflicted is so severe that no reasonable person could 

be expected to endure it. . . . The distress must be reasonable and justified under 

the circumstances, and there is no liability where the 
plaintiff has suffered exaggerated and unreasonable 

emotional distress, unless it results from a peculiarly 

susceptibility to such distress of which the actor has 

knowledse. . . . (Emphasis added.) 

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 Doohan1s past struggle with substance abuse or any resulting 

peculiarity in Doohan1s personality 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 I1beyond all 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 

I1substantial invasion 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 

recognize this tort, we have at least decided some situations where 

we will not. Philip R. Morrow, 770 P.2d 864. We add the situation 

here to that list. We conclude that the District Court erred when 

it denied the defendants1 motions for directed verdict on Doohan's 
intentional 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 

trustee Chrysler. There the jury found that Chrysler 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 infliction of 

emotional distress requires a showing of actual damages. A finding 

of $1.00 in actual damages--in essence an award of nominal damages- 

-is inconsistent with the finding that defendant Chrysler inflicted 

''severe emotional distressl1 upon Doohan. Such distress by its very 

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 infliction of emotional distress. The jury 

found no liability against the individual defendants for 

constructive discharge and, as we have determined, Doohan failed 
to state a prima 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 Doohants application 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 

27 
Justice Fred J. Weber dissents as follows: 

My review of the record in a light most favorable to Mr. 

Doohan demonstrates that he presented a compelling factual case in 

support of his claims. In addition, I disagree that the defendants 

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 is not universally recognized and it was 

not argued in the parties1 briefs. I do not agree that it is a 

workable rule. I find it inappropriate to retroactively apply such 

a new standard. 

When the challenged jury instruction, Instruction No. 12, is 

read as a whole and considered with the other instructions given, 

it does not misrepresent the law. The instructions as given 

required that the plaintiff prove the key elements of constructive 

discharge and provided that the defendants could not be held liable 

if they acted within limits of their lawful authority. I would not 

recommend the use of Instruction No. 12 in a constructive discharge 

case because it contained various comments which were not essential 

in the absence of an issue as to notice or hearing. However, I 

would conclude that there was no reversible error in the giving of 

Instruction No. 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 the 
defendants1 acts reached the threshold level of l~outrageousness.~ 

Mr. Doohan presented evidence of many events demonstrating 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, when we view all of the evidence in the light 

most favorable to Mr. Doohan, as we are required to do, there is 

clearly sufficient evidence to support the verdict against both Mr. 

Cochrane and Mr. Chrysler. Our review is of the cold record which 

is a poor foundation on which to evaluate testimony here and 

conclude it was not woutrageous.~ The record clearly demonstrates 

that the acts of Mr. Chrysler and Mr. Cochrane caused serious 

emotional distress for Mr. Doohan. 

I would affirm the judgment of the ~istrict Court. 

Justices John C. Sheehy and William E. Hunt, Sr., concur in 

the foregoing dissent. ,, ''1