Lovers, Fighters, and Nappers — Oh, My!

May 14, 2010 - by: Jaclyn West 2 COMMENTS

Litigation Value: Up to $50,000 — or maybe more — to settle Toby’s claim for intentional infliction of emotional distress; $3,000 to train the employees again on what is and what is not appropriate office behavior (especially with regard to office romance); more fodder for Erin’s sexual harassment case; and some individual legal fees for Dwight and Angela.

Whew! The employees over at Dunder Mifflin/Sabre have been busy. So busy, in fact, that it’s hard to name anyone who was actually on good behavior last night. (Except for maybe Andy. He was certainly inserting himself inappropriately into Michael’s personal life, but his heart was in the right place. In most workplaces, though, it’s generally not a good idea to force your boss to confront his married girlfriend’s spouse. Even if you introduce your boss as “my associate, Sheldon.”)

To start with the most extreme: Last night was not a good night to be Toby. In response to Toby’s well-intentioned placement of radon “ant traps” around the office, Michael proclaimed in front of the entire staff that if he was in a room with Hitler, bin Laden, and Toby, and he had only two bullets, he would shoot Toby twice. This led Dwight to explain and illustrate in vivid detail, using other employees as actors (and forcing Toby to play “Toby”), how Michael could shoot all three of them with only one bullet (see clip below). Do I even need to say it? Coupled with the years of bullying, Michael’s outrageous behavior in the cold open certainly supports an intentional infliction of emotional distress claim.

Although harassment based on personal dislike is generally not actionable under Title VII or state and local employment discrimination laws, Michael does not get off Scott-free in his treatment of Toby. Workplace bullying and threats of violence, even if not based on race, sex, or another protected category, are serious problems that can lead to potentially major liability for an employer. Employees can bring tort actions, such as assault, battery, and intentional infliction of emotional distress (IIED), in response to bullying.

To support an action for IIED, for instance, Toby would need to prove that Michael and Dwight’s conduct was intentional or reckless, that a reasonable person would consider the conduct extreme or outrageous, and that the conduct caused Toby’s emotional distress. Lining Toby up with two employees playing “Hitler” and “bin Laden” and miming shooting all three through the throat is pretty extreme and outrageous in my book. If Toby actually felt in fear of bodily harm, and believed that Michael had the capacity to harm him, he could also add a tort claim for assault to his lawsuit. Add last night’s behavior to the history of outright cruelty Michael has displayed toward Toby and . . . well . . . let’s just say Gabe could be having an unpleasant conversation with Jo before too long.

Michael’s behavior toward Toby may have been the most extreme, but the employees weren’t exactly angels last night, either. We saw Jim and Pam sleeping on the job (understandable, but still not good) with Darryl’s help. Ryan propositioned Erin for a threesome — and that’s not the first time he has addressed sexually harassing behavior toward the reception desk. Then there was Dwight and Angela using company time and facilities to negotiate the dissolution of their “parenting contract.” And, of course, there’s the ultimate resolution they came to: “prostitution” on company premises. At least Sabre would probably not have to worry about a claim for any emotional distress that Jim and Pam may experience as a result of listening to Dwight and Angela’s “alternative dispute resolution.” After all, Jim and Pam really shouldn’t have been napping in the warehouse anyway.

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1 Joe
15:04:37, 18/05/10

Where does Michael’s hatred of Toby come from? It’s kind of like how dogs freak out at vacuum cleaners.

2 Jaclyn West
18:19:18, 22/05/10

Joe, I’m not entirely sure why Michael hates Toby so much! My theory is that it stems from the fact that Michael considers Toby to be super lame – kind of like the teacher’s pet who tattles on the class clown. Toby, as HR, is constantly trying to tone Michael down and Michael consequently views Toby as his arch-nemesis. Holly, of course, is a different story – because she’s pretty. So Michael overlooks the fact that she’s HR.

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