Federal Court (Wisconsin) Allows IIED Claim to Move Forward; Exclusivity Did Not Apply Since Plaintiff Was On Administrative Leave

Construing Wisconsin’s exclusive remedy defense, a federal district court recently refused to dismiss a civil action filed by a former principal against a school district alleging, among other things, intentional infliction of emotional distress, slander/libel, and civil conspiracy (the civil action was originally filed in state court, but removed by defendants) [Bostwick v. Watertown Unified Sch. Dist., 2013 U.S. Dist. LEXIS 170827 (Dec. 4, 2013)]. The district court declined to dismiss based on its finding that although the alleged wrongs against plaintiff arose out of his employment, they did not occur “in the course of the employment” under Wisconsin law since plaintiff was on administrative leave at the time many of the actions were allegedly taken against him. 

Plaintiff, a principal for 10 years with the school district, was placed on administrative leave and eventually fired pursuant to what he claimed was a trumped-up investigation designed to drive him into resignation or retirement. During his tenure with the school district, plaintiff’s contract was renewed five times. Plaintiff claimed that after a change in district superintendents, however, he began to have difficulties with his supervisors, that two school officials advised him that they were investigating him for alleged age and sex discrimination against older female staff members, and that the officials presented him with a retirement agreement and threatened him by indicating that if he did not sign it they would keep investigating, and that the end result which would likely be his termination. Plaintiff indicated that denied engaging in any misconduct. Plaintiff alleged that he later learned that a secret investigation against him had begun late in 2011. At one point, plaintiff received a 27-page document entitled “Findings of Fact & Conclusions” detailing 42 things which he had allegedly done wrong over the course of his tenure at his school. None of these issues were registered as formal complaints, and most of them had never been brought to the attention of the plaintiff or anyone in administration or human resources. Thirty-two of the 42 issues had nothing to do with age or sex discrimination. He was subsequently placed on administrative leave.

Plaintiff also contended that he was being harassed on the basis of his age by attempts to force him into retirement, that the school board violated its own policy and, instead of conducting a hearing within thirty days, engaged a third party to conduct an investigation.

Defendants argued that plaintiff’s claims for intentional infliction of emotional distress, slander/libel, and civil conspiracy were barred by the exclusive remedy provision of Wisconsin’s Worker’s Compensation Act, Wis. Stat. § 102.03(2).

Plaintiff countered that the Act did not apply because he was injured while he was away from work on administrative leave; in other words, he was not “performing service growing out of and incidental to his … employment” at the time he was injured by the defendants’ conduct [§ 102.03(1)(c)]. The district court agreed, observing that an injury arises in the course of employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while he or she is fulfilling his or her duties or engaged in doing something thereto (citing Larson’s Workers’ Compensation Law, treatise on workers’ compensation law).

The court also noted that Wisconsin courts had not adopted Professor Larson’s “quantum theory” of work connection, under which the weakness of the course of employment factor can be made up by the strength of the arising out of employment factor [Larson § 29.01] and that while some jurisdictions viewed the two concepts–(1) arising out of and (2) in the course of“ the employment ” as a whole to define the injury-employment connection,” the district court was obliged to follow Wisconsin law. Accordingly, the course of employment requirement could not be ignored. The court concluded that construing plaintiff’s allegations in the light most favorable to him, the Court was unable to conclude that any or all of his injuries coincided with a time during which he was acting in the course of employment.