Wiggin and Dana's Labor and Employment Practice Group Wins Victory for Walgreen Eastern Co.

April 21, 2004
Daily Labor Report, April 9, 2004
Refusal to Pay Overtime Did Not Amount To Negligent Infliction of Emotional Distress

A pharmacist who claimed his employer's refusal to pay overtime created an intolerable working environment, causing him to resign involuntarily, found no sympathy from a federal judge in Connecticut, who March 25 dismissed the charge against Walgreen's drugstore chain (Walsh v. Walgreen Eastern Co., D. Conn., No. 3:03CV1609, 3/25/04).
The threshold to prove negligent infliction of emotional distress is "extremely high," requiring a showing that the employer's conduct was "humiliating, extreme, or outrageous," according to Judge Warren W. Eginton of the U.S. District Court for the District of Connecticut. The conduct complained of by the pharmacist in his case against Walgreen Eastern Co. did not "rise to the required level of unreasonableness," the court said.
Gregory Walsh, a state-licensed pharmacist in Connecticut, was employed by Walgreen's between March 1987 and February 2003. Walsh argued that he was forced to resign due to an intolerable working environment caused by Walgreen's failure to pay him overtime.
Specifically, Walsh was seeking time-and-a-half for 123 hours of overtime worked in a five-and-a-half year period. Walgreen, however, protested that Walsh was a salaried employee who was compensated fairly.

'Relatively New' Claim
In considering Walsh's allegations, Judge Eginton observed that "a claim of negligent infliction of emotional distress as an independent tort is relatively new to Connecticut law." Because "emotional distress in the workplace is not uncommon, courts have viewed the application" of such claims "with some alarm," Eginton said.

He pointed out that the Connecticut Supreme Court, in its 1980 decision Sheets v. Teddy's Frosted Foods, 427 A.2d 385, 115 LRRM 4626, warned that "courts should not lightly intervene to impair the exercise of management discretion or to foment unwarranted litigation."
Wrongful employment actions by themselves are not enough to sustain a claim for negligent infliction of emotional distress, the district court said. Rather, "the threshold to prove negligent infliction of emotional distress is such that the employer's conduct must be unreasonable in the manner in which the employer carries out the employment action, and to be unreasonable, the conduct must be humiliating, extreme, or outrageous." Walsh's conduct claim does not rise to this level, according to the court.
The court also dismissed Walsh's charge that he was constructively discharged in violation of the state public policy exemption to the at-will employment doctrine. "Construing the allegations of the complaint favorably to Walsh, and accepting them as true, the court is at a loss to understand why Walsh waited 5 1/2 years to take action on his overtime pay concerns, instead of contacting the state and/or federal agency that regulates this issue," Eginton said.
"The court does not find that the failure of Walgreen to pay Walsh time and a half pay for overtime worked reaches the level of a public policy issue," the judge explained