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Forced to Help Cover Up the Boss’ Affair: Can You Sue a Former Employer for Causing You “Emotional Distress”


Unfortunately, it is not uncommon for people to experience emotional stress, or even trauma, in the workplace because of a poor relationship with their boss. But can such distress form the basis of a valid legal claim against an employer? Put another way, in situations like these, can you sue your former boss for inflicting “emotional distress” on you?

California Appeals Court Tosses $88,000 Award to Ex-VP Over Allegations Against Company Owner

A recent unpublished decision from the California Fourth District Court of Appeal, Marmorino v. Moore, sheds some light on these questions. The plaintiff in this case worked as a vice president at a company owned by the defendant. According to the plaintiff, the defendant required her to “engage in a variety of acts to facilitate” the defendant’s affair with a photographer retained by the company. The plaintiff said the defendant later fired her “without explanation.”

The plaintiff subsequently sued the defendant, alleging employment discrimination, retaliation, and harassment. Additionally, the plaintiff sought damages for “intentional and negligent infliction of emotional distress.” The harassment allegations centered on the defendant’s alleged use of the plaintiff to facilitate her extramarital affair. In effect, the plaintiff said she felt she had no choice but to help her boss or risk getting fired.

The case proceeded to a jury trial. In the end, the jury returned a mixed verdict. It found for the defendant on the harassment and hostile work environment allegations. But, it also awarded the plaintiff $88,000 in noneconomic damages on her emotional distress claim. (Separately, the jury ordered the company to pay the plaintiff $312,000 for breach of contract.)

The defendant appealed the $88,000 award. Before the Fourth District, it argued that it was inappropriate to award damages for emotional distress without some underlying act of negligence. The Court of Appeal agreed and reversed that portion of the jury’s verdict.

The Fourth District explained that under California law, there is no independent cause of action for “negligent infliction of emotional distress” unless there is an assumption of duty by the defenda.t The plaintiff must therefore prove that the defendant “assumed a duty”–either by law or through the existence of a “special relationship”–with respect to the plaintiff’s emotional condition in order to state a cause of action.

In this case, however, the court found the plaintiff never argued the existence of any such legal duty or special relationship, and in this context, the court found that the employer-employee relationship was not considered a “special relationship.”If the jury had ruled in the plaintiff’s favor on her harassment or hostile work environment claims, that could have supported an award of damages for emotional distress, but the Fourth District said the jury could not award damages solely for the emotional distress caused by the defendant in this case.

Get Advice for Dealing with a Stressful or Hostile Work Environment

If you are in a stressful working environment caused by a toxic relationship with your boss, it is important to seek outside legal advice as soon as possible. Contact an experienced California employment law attorney who can help you review your potential legal options.


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* Cathleen Scott is licensed to practice in Florida only.

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