Memo 2

To: Merryn DeBenedetti From: Zach Timmons Date: November 7, 2010 Re: Bellvue Square Associates, Case No. 00572-35 Bellvue Square Associates has contacted our office regarding a claim brought against them by Mr. Guillermo Del Toro. Mr. Del Toro filed a claim against Bellvue Square Associates in King County Superior Court for the tort of outrage, stemming from several issues occurring in the duration of his employment with our client. You have asked me to determine whether the court would grant a motion for summary judgement filed by Bellvue Square Associates to dismiss Mr. Del Toro’s claim for outrage. Bellvue Square Associates employed Mr. Del Toro as a security guard in their facilities from April 10, 2009 to August 27, 2009. During the scope of their employment, Mr. Del Toro claims that he was subjected to discriminatory comments by his co-workers which led to severe emotional distress. In his Complaint for Damages, Mr. Del Toro lists several discriminatory statements made by fellow Bellvue Square Associates employees which he claims are the basis for his claim of outrage. Pl.‘s Compl. for Damages ¶ 15. He lists several of his co-workers, Nora Helmer, Tom Stoppard, and Ned Alleyn, as those who instigated such discriminatory statements. Mr. Del Toro claims that from the original time he was hired, he was treated differently by his supervisors than his fellow employees were. Specifically, he states that he did not receive his security guard badge until May 2, 2009, which interfered with his ability to carry out his job. Mr. Del Toro’s Complaint for Damages also lists several specific discriminatory statements by his co-workers. He claims that his co-worker Ms. Nora Helmer asked him “should you even be here?” after he arrived early for work, and that she told him that he should not be working that day. In addition to this statement he accuses Ms. Helmer, on more than one occasion, of calling him a “loser”, a “slacker”, and “lazy”. He claims that another co-worker, Mr. Ned Alleyn, told him more than once that “[He] should slap [Mr. Del Toro]”. Mr. Del Toro also states that co-worker Tom Stoppard told him that he should be kept on the first floor of the facility, in the “south”. Pl.’s Compl. for Damages ¶ 15. In response to the comments Mr. Del Toro received from his co-workers, he filed an internal complaint e-mail to Mr. Harold Pinter, head human resources manager for Bellvue Square Associates. In the complaint, Mr. Del Toro states that he “felt [that his co-workers] comments were directed at me due to my race and were harassing... I do not appreciate this, and I want it to stop.” Pl.’s Compl. for Damages ¶ 11. In response to the internal complaint, Mr. Del Toro alleges that Mr. Pinter wrote and distributed a company-wide memorandum. This memorandum said in part that “No company employee is allowed to make derogatory comments or remarks regarding any employee’s race or ethnic descent because those individuals were sensitive to such remarks.” Pl.’s Compl. for Damages ¶ 13. Mr. Del Toro felt targeted in this memorandum because he was the only non-white individual employed at the time by Bellvue Square Associates. Several days after the response memorandum was issued, Mr. Del Toro was accused of stealing a magazine and drinking coffee on duty. Mr. Del Toro claims that this accusation was false and was based on a negative reaction by his co-workers to Mr. Pinter’s company-wide memorandum. Shortly after this incident, on August 27, 2009, Mr. Del Toro was fired by his direct supervisor, Mr. Samuel Beckett, for official reasons of repeated tardiness and violation of company food and drink policy. Mr. Del Toro believes that he was fired for other reasons and alleges that “his employment was terminated relatively close to the time that a new employee, who was a Caucasian male with white skin color and nonmember of protected class, began working”. Pl.’s Compl. for Damages ¶ 19. Mr. Del Toro asserts that as a result of how he was treated by Bellvue Square Associates, he suffered headaches, panic, and depression, as well as an increase of his already high blood pressure. Deposition of Guillermo Del Toro (“Del Toro Dep.”) 12:1-15, January 24, 2010. However, he later refused to release his medical records, claiming that such records are “private information” and that he is “not willing to disclose that unless there is a stipulated protection order between the parties for that information and that it will not be shared with other third parties”. Del Toro Dep. 13: 1-23. Mr. Del Toro claims damages from the court on the cause of action of Intentional Infliction of Emotional Distress (Outrage). He also claims damages on the cause of action of a hostile work environment. He requests relief from the court, asking that they “[award] damages to Plaintiff in an amount to be determined at trial; [award] to Plaintiff reasonable attorney’s fees and costs; [award] to Plaintiff pre- and post-judgement interest; and [grant] such other and further relief as the Court may deem just and proper”. Pl.’s Compl. for Damages ¶ 28. Mr. Del Toro also demands a trial by jury. You have requested me not to research the cause of action of a hostile work environment. Thus, I will focus my discussion of Mr. Del Toro’s first cause of action, his Outrage claim, and analyze whether the court is likely to grant a motion for summary judgement to dismiss the claim. Issue Statement: Whether the court will grant a summary judgement to dismiss Mr. Del Toro’s case for the tort of outrage when: (1) Mr. Del Toro claims he was discriminated and verbally abused by his co-workers; (2) Mr. Del Toro claims he was falsely accused by his co-workers of violating company policy; (3) Mr. Del Toro claims he was intimidated and ignored by his employers upon filing an internal complaint; (4) Mr. Del Toro claims headaches and increased high blood pressure, panic, and depression, but is unwilling to release his medical records? Brief Answer: Discussion: The tort of outrage is described in Section 46 of the Second Restatement of Torts. Section 46(1) states that: 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 to the other results from it, for such bodily harm. In order for plaintiff to recover damages in the tort of outrage, Washington courts have required the plaintiff to prove: Extreme and outrageous conduct Intentional or reckless infliction of emotional distress; and Actual result to the plaintiff of severe emotional distress. (Birklid v. Boeing) In the complaint, Mr. Del Toro lists his residence as within the jurisdiction of the Superior Court of King County. He asserts that Bellvue Square Associates is a Washington Corporation that does business in King County, and therefore venue is proper in King County “because King County is where a substantial part of the events which gave rise to the claims at issue have occurred.” Pl.’s Compl. for Damages ¶ 2. Bellvue Square Associates has admitted in its response that it is a Washington corporation doing business in King County, Washington. However, they deny the allegation about Mr. Del Toro’s residence because “defendant is without specific knowledge concerning Plaintiff’s place of residence”. Answer to Pl’.s Compl. for Damages ¶ 1. Summary judgement in this case is viewed as proper if, “viewing all facts and reasonable inferences in the light most favorable to the nonmoving party, no genuine material fact issue exists and the movant is entitled to judgement as a matter of law”. (CR 56(c)). For the purposes of our motion to file a summary judgement against Mr. Del Toro, Mr. Del Toro “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits... must set forth specific facts showing that there is a genuine issue for trial.” (CR 56(e)). If Mr. Del Toro does not respond to our Motion for Summary Judgement with affidavits showing specific facts of genuine issue for trial, summary judgement may be entered against him. 1. Extreme and Outrageous Conduct Mr. Del Toro alleges that “the verbal assaults and other conduct of the Defendant and Defendant’s employees constitute extreme and outrageous conduct.” Pl.’s Compl. for Damages ¶ 21. Comment D of Section 46 of the Second Restatement of Torts describes what is meant by “extreme and outrageous conduct” for the purposes of the tort of outrage: “It has not been enough that the defendant... has intended to inflict emotional distress... 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... The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities... plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language...” Restatement (Second) of Torts, §46 cmt. d (1993). Although Comment D makes clear that unkind or inconsiderate conduct may not in itself be seen as conduct “so extreme in degree as to go beyond all possible bounds of decency,” Id. Comment E goes on to explain the expanded liability that such conduct may create if made by someone in a position of authority over the plaintiff: “The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests... Even in such cases, however, the actor has not been held liable for mere insults, indignities, or annoyances that are not extreme or outrageous.” Restatement (Second) of Torts, §46 cmt. e (1993). In addition, Comment F of Section 46 of the Second Restatement of Torts discusses peculiar susceptibility to emotional distress. Comment F states, in part: “The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.” Restatement (Second) of Torts, §46 cmt. f (1993). The case of Contreras v. Crown Zellerbach Corporation provides a similar fact pattern, in which the Washington Supreme Court ruled that Outrage liability may be found when “[defendant’s] agents knew or should have known that [plaintiff], by reason of his nationality and background as a Mexican-American, was particularly susceptible to emotional distress from defendant’s conduct.” Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 737, 565 P.2d 1173. In this case, Mr. Contreras sued the defendant corporation for the tort of outrage “by reason of facts of intimidation, demotions, humiliation and public exposure to scorn and ridicule.” Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 736, 565 P.2d 1173. The plaintiff, a Mexican-American, alleged that while under employment from the defendant corporation, he was the victim of “racial jokes, slurs and comments... by agents and employees of the defendant corporation on the job site and during working hours.” Id. Mr. Contreras also alleged that he was falsely accused of stealing property owned by the defendant corporation, and that as a result of these untrue statements, he was unable to obtain permanent employment where he lived, and he and his wife were held to public ridicule. In addition, Mr. Contreras asserts that the conduct perpetrated against him, and the subsequent inability to obtain future employment, “made him unable to pay his bills and ruined an otherwise excellent credit rating.” Id. at *737. He argues that the refusal of his superiors to provide him with a work environment free from discrimination, as well as his susceptibility to racial comments as a result of his status, adds weight to his claim that such behavior should be categorized as extreme and outrageous. In this case, the Supreme Court of Washington reversed a dismissal from the Washington Superior Court, claiming that “appellant’s claim that he was subjected to intentional or reckless conduct on the part of respondent which was beyond all reasonable bounds of decency... is within the parameters of the tort of outrage as defined by our cases and the Restatement (Second) of Torts §46(1).” Id. at *742. In another analogous case, Robel v. RoundUp Corporation, the Washington Supreme Court found that inaction by employers to prevent harassment by co-workers could be considered sufficiently outrageous to provoke liability. Robel v. RoundUp Corp., 148 Wash.2d 35, 52, 59 P.3d 611. The plaintiff of this case, Linda Robel, was at employee at a Fred Meyer grocery store, a subsidiary of RoundUp Corporation. Robel brought claims for outrage based on the conduct of her co-workers and the inaction of her supervisors to address the situation. Robel asserts that, after she was hired by Fred Meyer in May of 1995, she suffered a workplace injury in July 1996 that resulted in a filing of a workers compensation claim. In response to her injury, she was assigned to a display table offering food samples to customers. In response to her reassignment of duties, some of Robel’s co-workers “‘laughed’ and ‘acted out a slip and fall’, [a reference to Robel’s workplace injury, and]... they ‘audibly called [Robel] a ‘bitch’ and ‘cunt’.” Id. at *40. In addition, Robel’s co-workers “also ‘told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.” Id. Upon reporting the incidents described to her union representative, a meeting was set up by her supervisor in which her co-workers were informed that “future harassment could result in termination.” Id. Later, as a result of continued harassment from Robel’s co-workers, a single employee was terminated. However, this action was not taken until after Robel had secured a two-week work release from her doctor, and Robel never returned to employment with Fred Meyer. Id. Upon exiting the trial court, the Court of Appeals ruled that as a matter of law, Robel’s claim for outrage should not go to the trier of fact. However, the Supreme Court disagreed, concluding that “reasonable persons could deem the employer’s conduct... sufficiently outrageous to trigger liability.” Id. at *51. The court added that “Perhaps the language directed at Robel could be dismissed as merely ‘rough’ and ‘insulting’... but we believe that reasonable minds could conclude that, in light of the severity and context of the conduct, it was ‘beyond all possible bounds of decency... atrocious, and utterly intolerable in a civilized community.” Id. at *52. In a third analogous case, Strong v. Terrell, the Washington Court of Appeals found that there was no genuine issue of material supporting Strong’s outrage claim because “the record does not support [plaintiff’s] accusation that [defendant’s] verbal insults exceeded ‘all possible bounds of decency’”. Strong v. Terrell, 147 Wash.App. 376, 386, 195 P.3d 977. In this case, the plaintiff, Gina Strong, sued her supervisor for what she claims was verbal abuse by “daily... screaming at her and criticizing her work in a sarcastic, unprofessional manner.” Id. at *380. The court explains that this verbal abuse consisted of her supervisor “pointedly [telling] ‘blonde jokes’, and [making] fun of her by ridiculing her with remarks about her personal life, including disparaging the house she purchased, her husband’s employment, and telling her that her son was going to find out she was a ‘bum’ mother because she had placed him in therapy.” Id. Strong asserted that such comments “caused her to vomit and to have anxiety attacks, depression, and heart palpitations.” Id. The court later stated, however, that “Strong concedes that, viewed in a ‘vacuum,’ some of Terrell’s misconduct ‘may not seem to rise above the status of a petty insult or trivial indignity.” Id. at *386. Unlike the rulings in Contreras v. Crown Zellerbach Corp. and Robel v. Round-Up, the Washington Court of Appeals found that unkind actions and words spoken by Plaintiff’s supervisor [were] not enough to establish a cause of action for the tort of outrage. The Supreme Court thus agreed with the trial court that, “as a matter of law, there was no genuine issue of material fact supporting Strong’s outrage claim and that summary judgement was proper on this record.” Id. With respect to our case, Mr. Del Toro will likely assert that conduct against him is similar to the facts in Contreras v. Crown Zellerbach Corp. and Robel v. Round-Up. Mr. Del Toro will likely argue that, similar to the facts in Contreras, he was subjected to “continuous humiliation and embarrassment by reason of racial jokes, slurs and comments made in his presence by agents and employees of the defendant corporation on the job site and during working hours”. Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 736, 565 P.2d 1173. Mr. Del Toro will also likely argue, again similar to the facts of Contreras, that the supervisors responsible for ensuring a work environment safe from extreme and outrageous conduct failed to control their employee’s actions. Mr. Del Toro may point to the Contreras court’s ruling that employer’s “failure to control their employees and accord him a place to work free from racial discrimination, slurs, comments and pressure may add additional weight to his claim.” Id. at *741. With respect to the facts of Robel v. RoundUp Corporation, Mr. Del Toro will probably attempt to draw the comparison between the responses to the internal complaints of Fred Meyer and Bellvue Square Associates. Mr. Del Toro will likely argue that Fred Meyer, who fired an employee as a result of employee’s improper conduct, was denied summary judgement by the Supreme Court of Washington. He will assert that it is then necessary to deny a motion of summary judgement to Bellvue Square Associates, who not only refused to fire any of Mr. Del Toro’s co-workers as a result of their alleged conduct, but who also fired Mr. Del Toro within a short time of his filing an internal complaint with the company. Mr. Del Toro will also likely assert that his status as a the only Hispanic in an otherwise Caucasian working environment constitutes a ‘peculiar susceptibility to emotional distress, by reason of some physical or mental condition or peculiarity’. Restatement (Second) of Torts, §46 cmt. f (1993). Mr. Del Toro may note the court’s ruling in Contreras that “plaintiff’s own susceptibility to racial slurs and other discriminatory conduct is a question for the trier of fact, and cannot be determined on demurrer.” Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 741, 565 P.2d 1173. In response to the arguments presented by Mr. Del Toro, Bellvue Square Associates will want to draw some factual separations between our case, the Contreras case, and the Robel case. In addition, Bellvue Square Associates will want to emphasize the similarities between the facts in Strong and the facts of our case. With respect to the Contreras case, there are many factual differences that may impact the way the court interprets extreme and outrageous conduct. In Contreras, the plaintiff not only had his previously excellent credit ruined, he also was not able to seek further employment in the area as a result of his reputation being damaged by false accusations. This contrasts greatly to Mr. Del Toro’s claim, as he admits in his deposition that he has been rehired as a security officer and is currently making $11 per hour. Del Toro Dep. 5:7. Likewise, there is no evidence to suggest that Mr. Del Toro’s credit ratings were negatively affected as a result of the incidents in question. In addition, there are discrepancies between the facts in Robel and the facts in our case that may persuade the courts that Bellvue Square Associates’ conduct was not extreme and outrageous. Unlike Mr. Del Toro, who will likely claim that being Hispanic in a mainly Caucasian working environment constitutes peculiar susceptability to emotional distress, Robel had an actual physical condition that required her to miss work. It is worth noting that in the illustrations of Comment F of Section 46 of the Restatement (Second) of Torts, while race is never mentioned, medical conditions are discussed. Bellvue Square Associates will want to make the argument that Section F was designed to apply to people in situations like Robel’s, rather than people in the position of Mr. Del Toro. Lastly, Bellvue Square Associates will want to emphasize the similarities between Strong and Mr. Del Toro’s case. Similar to the allegations in Mr. Del Toro’s case, Strong was subjected on a daily basis to demeaning and belittling conduct that targeted her due to her status as a woman. In addition, these comments were not made by her co-workers, but rather by her supervisor himself. Also, Strong asserted that said comments resulted in negative medical conditions such as vomiting, anxiety, depression, and heart palpitations. Despite these accusations, however, the court ruled against strong in summary judgement, stating that “the record does not support Strong’s assertion that [defendant’s] verbal insults exceeded ‘all possible bounds of decency’ measured against an objective standard of reasonableness.” Strong v. Terrell, 147 Wash.App. 376, 386, 195 P.3d 977. The court will likely conclude that even if all of the facts are given in a light most favorable to Mr. Del Toro, he will not meet the standard of ‘extreme and outrageous conduct’ sufficient to warrant liability. Admittedly, this is a close case in which seemingly similar facts may be interpreted by two separate courts to come to two different conclusions. However, it seems rather clear that the conduct which Mr. Del Toro complains about is closer to the conditions of Strong than the conditions of Contreras or Robel. 2. Intentional or Reckless Infliction of Emotional Distress The second element required to prove the tort of outrage is an intentional or reckless infliction of emotional distress. Comment I of Section 46 of the Restatement (Second) of Torts describes this element: “The [element of intention and recklessness] applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly... in deliberate disregard of a high degree of probability that the emotional distress will follow.” Restatement (Second) of Torts, §46 cmt. i (1993). The Washington Supreme Court illustrates this concept in Dicomes v. State, where it holds that a private deliverance of a termination letter, followed by responses to media inquiries regarding the termination, does not meet the elements of the tort of outrage. Dicomes v. State, 113 Wash.2d 612, 631, 782 P.2d 1002. This case stems from the alleged wrongful discharge of Ms. Dicomes, a state employee who was, as a function of her job, in charge of communicating budgeting decisions for Washington State’s Department of (Medical) Licensing (DOL). Id. at *615. In the process of her job capacity, she discovered an unexplained surplus of funds that had not been included in the department’s budget. Upon informing her superiors that she would bring the surplus to the attention of the Washington Medical Disciplinary Board (MDB), she was instructed by her superiors that she “didn’t want to do that to herself.” Id. Ms. Dicomes chose to ignore her superiors’ warnings, informing the MDB about the surplus funds. Within two working days of this incident, her supervisors conducted a “management study”. The findings of the study subsequently resulted in Ms. Dicomes termination. Ms. Dicomes filed suit and claimed, among other charges, an intentional infliction of emotional distress. For purposes of the motion of summary judgement, both the trial and the appeals court “assumed that plaintiff was discharged because she released information regarding her employer’s alleged wrongful or illegal conduct.” Id. at *616. Nevertheless, the court found that the tort of outrage was not met. The court states that “Here, [Department of Licensing] discharged plaintiff by privately delivering a termination letter, and briefly responding to media inquiries regarding the dismissal”. Id. at *630. The court later notes that “as the nonmoving party on summary judgement, [Ms. Dicomes] cannot rest on the mere allegations of her pleadings; she must set forth specific facts showing that there is a genuine issue of material fact.” Id. at *631. Thus, even though the court assumes that the discharge of Ms. Dicomes was retaliatory in nature, it does not find any genuine issue of material fact that supports the assertion that the DOL met the requirements for intentional or reckless infliction of emotional distress toward Ms. Dicomes. In Contreras v. Crown Zellerbach Corp., however, the court did find the element of intent of outrage resulting from the maliciousness and the knowledge of falsity of the untrue accusations made against the plaintiff, which resulted in his inability to find gainful employment. Unlike the Dicomes case, where the plaintiff was unable to establish genuine issue of material fact that any defaming or demeaning act was intentionally or recklessly taken, the Contreras case does find material fact to support such assertions. The Contreras court articulates that “Some of the statements made by respondent’s agents and employees were made maliciously or with knowledge of their falsity or when they should have known the statements were false... [Plaintiff’s] failure to find full-time employment is a direct and proximate result of... slander and racial actions.” Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 736, 565 P.2d 1173. Mr. Del Toro will argue that, like in Contreras, his termination was a direct result of the untrue accusations of his co-workers, who knew that their accusations against him were false. Mr. Del Toro will also argue that the intent of his co-workers was to terminate his employment, causing damage to his reputation and severe emotional distress. Although there are many similarities between Mr. Del Toro’s accusations and the Contreras case, Bellvue Square Associates will want to emphasize to the court the major difference between the two cases regarding intentionality. In the Contreras case, where intent was found, the court found a genuine issue of material fact confirming that accusations made against Contreras were knowingly false. Mr. Del Toro, however, similar to Dicomes, has no genuine issue of material fact confirming the falsity of accusations made against him. For Mr. Del Toro, evidence points to the contrary: he was fired for official reasons of “excessive and repeated tardiness”, and he even admits to being tardy for work “on several occasions” in his deposition. Pl.’s Compl. for Damages ¶ 7; Del Toro Dep. 6:16-18. The court is likely to decide that the element of intentional or reckless infliction of emotional distress is not met. The reasoning of the court’s finding will likely be that Mr. Del Toro, as the non-moving party, was unable to provide a genuine issue of material fact to support the accusation that he was fired as a result of accusations that were knowingly false. 3. Actual Result to the Plaintiff of Severe Emotional Distress The third element required to prove the tort of outrage is an actual result to the plaintiff of severe emotional distress. Comment J of Section 46 of the Restatement (Second) of Torts describes severe emotional distress, in part, as follows: “Emotional distress... includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment anger, chagrin, disappointment, worry, and nausea... The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed.” Restatement (Second) of Torts, §46 cmt. j (1993). A relevant case involving this element is Kloepfel v. Bokor, in which the Washington Supreme Court ruled that the tort of outrage did not require an objective symptoms and a medical diagnosis. Kloepfel v. Bokor, 149 Wash.2d 192, 203, 66 P.3d 630. In this case, the plaintiff, Judy Kloepfel, brought action against the defendant, her former roommate, for outrage, claiming that the defendant, Bokor, threatened to kill her and her dating partner, that he repeatedly called her at her home and at work, that he repeatedly drove by her house including during the night, and that his actions prevented her from carrying on a dating relationship. In addition, Bokor admitted to repeatedly violating multiple restraining orders placed against him from the time period ranging from August 1997 to October 2000. Id. at *193. In order to avoid Bokor, Kloepfel was forced to begin spending weekends away from her house. The Washington Supreme Court rejected defendant’s argument that the tort of outrage required proof of severe emotional distress by objective symptomology and a medical diagnosis. Id. at *202. In response to this case, Mr. Del Toro will likely argue that no objective symptomology is required for him to assert an actual result to the plaintiff of severe emotional distress. Mr. Del Toro’s will assert that his claims of headaches, panic, depression, and increased blood pressure are sufficient under the circumstances to establish this element without any medical records required. Bellvue Square Associates, however, will want to point to several instances in Kloepfel v. Bokor that explain why no objective symptomology is required. In Kloepfel, plaintiff was reasonably in fear for her life after defendant threatened to kill her and repeatedly threatened her and her dating partner. The court explains in Kloepfel that “no rational person could endure the constant harassment suffered by Kloepfel without suffering severe emotional distress.” Kloepfel v. Bokor, 149 Wash.2d 192, 202, 66 P.3d 630. This statement by the court echoes Comment J of Section 46 of the Restatement (Second) of Torts. The question that Bellvue Square Associates will want to place to the court is whether any reasonable person could be expected to endure the treatment that Mr. Del Toro alleges. If the court can expect any reasonable person to endure the conduct that Mr. Del Toro alleges, it will therefore likely rule that Mr. Del Toro does not meet the element of actual result to the plaintiff of severe emotional distress. Given the facts of Kloepfel compared to the facts of Mr. Del Toro’s claims, the court will likely rule against Mr. Del Toro on this element. Conclusion: The court will likely grant a Motion for Summary Judgement if filed by Bellvue Square Associates. With regards to the first element of extreme and outrageous conduct, the court will likely find that the conduct alleged by Mr. Del Toro, even if viewed in a light most favorable to the plaintiff, does not “go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts, §46 cmt. d (1993).. Thus the court is likely to reject Mr. Del Toro’s claims based on the first element of the tort of outrage. With regards to the second element of With regards to the third element of actual result to the plaintiff of severe emotional distress, the court will likely rule that the conduct Mr. Del Toro alleges is not “so severe that no reasonable man could be expected to endure it.” Restatement (Second) of Torts, §46 cmt. j (1993). Thus the court is likely to reject Mr. Del Toro’s claims based on the third element of the tort of outrage. Recommendation is that Bellvue Square Associates files a Motion for Summary Judgement against Mr. Del Toro.