Speak Not of the Dead

Submitted by Gene Howington, Guest Blogger

Cecelia Ingraham had a daughter.  Her name was Tatiana.  In 2003, her then teen-aged daughter was diagnosed with leukemia.  After a brief period of remission, the cancer returned.  An opportunistic infection claimed Tatiana’s life in 2005.  Tatiana was an only child.

Cecelia Ingraham had a job.  It was in New Jersey.  She worked for Ortho-McNeil Pharmaceutical for 12 years as an administrative assistant in the marketing department.  At this job, she had a cubicle.  In this space, Cecelia kept mementos of her daughter not unlike any grieving parent might; pictures and a pair of ballet slippers.  On this job, like any job, not all discussions are about business matters.  In the course of meandering discussions, Cecelia sometimes talked about her deceased daughter not unlike any grieving parent might.  In the spectrum of trauma human beings can face, “what’s the worst trauma” is a zero sum game, but in that spectrum there are certainly forms of trauma that are uniquely painful due to their nature.  In that regard, for a parent to lose a child is a unique trauma.  It leaves an emotional scar that for most never fully goes away.

About a year and a half after Tatiana’s death, Carl DeStefanis, Director of Marketing, at the urging of Human Resources, had a discussion with Cecelia Ingraham “to convey complaints [Human Resources] had received about plaintiff’s conduct and interaction with co-workers. Several of those complaints were unrelated to Tatiana, but administrative staff in the department had also remarked about plaintiff’s tendency to speak to them about Tatiana’s tragic passing. The co-workers said they sympathized with plaintiff, but they felt uncomfortable and at a loss for ‘what else that we can say that we have not said already.’  The co-workers said they tended to avoid contact with plaintiff and to take work or questions elsewhere.” DeStefanis told Cecelia Ingraham that she needed to remove the pictures and ballet shoes of her deceased daughter from her cubicle and that she could “no longer speak of her daughter because she is dead” and should act as if her daughter “did not exist”.

Distraught, Cecelia left work that day and did not return.  Over the next few days, she began to have sudden heart palpitations that required surgery.  After the surgery and some recovery time, Cecelia Ingraham resigned her position at Ortho-McNeil Pharmaceutical.  She then filed suit for Intentional Infliction of Emotional Distress (IIED) against Ortho-McNeil Pharmaceutical, their parent company Johnson & Johnson, and Carl DeStefanis.  What happened next might be seen by some people as adding insult to injury.  Her case was dismissed.  But was it a result of bad law or a failure in basic empathy?

The trial court granted a summary judgment dismissing Ingraham’s case and the appellate court agreed.  As a matter of common law, there is no reversible error on the part of either ruling of the trial court or the appellate court.  I think there was, however, a failure in basic empathy and a fallacious double standard applied because this happened in a business environment.

There are four elements to the tort of Intentional Infliction of Emotional Distress (IIED) used by the New Jersey court as defined by

Buckley v. Trenton Saving Fund Society, 111 N.J. 355 (1988):

(1) the defendant must act intentionally (or recklessly);

(2) the defendant’s conduct must be extreme and outrageous;

(3) the conduct must be the proximate cause of the emotional distress; and

(4) the emotional distress suffered by plaintiff must be so severe that no reasonable person could be expected to endure it.

The defendants did not contest the third and forth elements of the tort, but rather focused on the first two: intentional or reckless action that was extreme and outrageous.

Judge Victor Ashrafi in the appellate judgment said, “There is no question that any reasonable employer should know that telling a grieving mother not to talk about her deceased daughter might cause emotional distress but a severe reaction was not a risk that one should predict.”  Note the language choice of “should” versus the alternative of “could”.  There is no psychological trauma comparable to a parent losing a child.  I disagree with this part of the judgment.  Not only could a reasonable employer expect that a severe reaction was a foreseeable risk, they should have as well, especially when the telling a grieving mother not to talk about her deceased daughter was presented in the form of an HR generated rebuke.  While DeStefanis’ conduct may not have been an intentional attempt to inflict emotional distress, it can certainly be characterized as reckless.  Not every employee issue should be addressed in the “Human Resources” framework.  Some should simply be addressed in the “Human” framework.

Had DeStefanis handled this issue in a less formal and more humane fashion, Ingraham might not have had the distress and subsequent heart palpitations nor felt compelled to resign her position.  To me this is a perfect example of the utter failure that “Human Resources” often drives in an organization.  In their efforts to micromanage every aspect of employee interaction, they created a situation of formal rebuke that exacerbated the problem.  “Human Resources” is an oxymoron.  Telling Ingraham to remove the memorabilia and pretend her daughter didn’t exist was psychologically stupid.    You take a situation with an already distressed person and then make them feel like they are under attack.  There is no “Human Resources” way to handle this that didn’t end badly even if severe emotional distress hadn’t been caused.  You would still have an employee who would have felt attacked and victimized by their employer when they were down.  This situation was an organizational and managerial failure even if legal action hadn’t been the result.  What would be the informal and humane way to have addressed this issue?  Take the woman to lunch or for coffee – a neutral non-threatening environment.  Take a witness, preferably someone who is friends with or sympathetic toward her distress.  Over lunch/coffee, bring up the subject tactfully, acknowledging first the validity of the nature of their distress and explain that while you are empathetic and understand that perhaps there are issues with other employees developing.  State the nature of the issue(s) in a non-accusatory manner and solicit the distressed person for input on the solution.  Validate the person and their situation and make them part of the solution and do you know what you’ll get?  A happier and more loyal employee who feels like they are understood and appreciated.

Was the action extreme and outrageous?  The standard applied was that the conduct must “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.” Buckley, supra, 111 N.J. at 366.  The court refers to this as an “elevated threshold”.  While it makes the tort of IIED often difficult to prove, it does serve a purpose in separating claims where someone is simply offended from claims where someone is legitimately victimized.  Was the action resulting in the present case extreme and outrageous?  No.  Callous and cruel perhaps, but not extreme and outrageous.  Although I disagreed in part with the ruling as to reckless action, the court ruled properly in this case that the elements of the tort were not fully met. This case was not a failure of law.  The law did the best it could with the tools it had as applied to the facts as presented.

This case does however illustrate that somethings or situations can be inhumane and cruel without being illegal.  As the Japanese novelist Kofu says, “Empathy is not merely the basic principle of artistic creation. It is also the only path by which one can reach the truth about life and society.”  The path to truth here illustrates a basic failure in empathy both in business organization and managerial style.  But does it reveal a deeper problem with American society?  A systemic lack of empathy?  Does our modern, money driven, media driven society encourage treating people first like a resource instead of first like a human?  Are we becoming desensitized to callous and cruel behavior if it “gets the job done”?  If that is the trending behavior, what do you think we as a society should do to remedy the situation?

Source(s): Huffington Post, Appellate Opinion CECELIA MAVICA INGRAHAM v. ORTHO-McNEIL PHARMACEUTICAL, JOHNSON & JOHNSON, and CARL DeSTEFANIS

~Submitted by Gene Howington, Guest Blogger

26 thoughts on “Speak Not of the Dead

  1. When I first saw this story, my first reaction was, “…they did WHAT?”

    It is clear from reading the basic story, but then digging into the background, that the employer created an hostile work environment. No compassion, no empathy, but rather deliberate cruelty. Whether this was borne out of ignorance on how to handle a grieving parent, or just some kind of bizarre vindictiveness is beyond my power to grasp.

    It is one thing to tell a parent to remove photographs, but then to tell her to forget her child ever lived is morbid. As the parent of a dead child, not to mention a grandchild, and a boss had told me that, I am afraid their next action would have been picking their teeth up off the floor. Parents of dead kids tend to be kind of touchy that way. I have written on the subject of making the workplace safer. We read of cases where an employee comes to the workplace and hoses the place down with a semi-automatic rifle. I have worked on such cases. In almost every case it is the result of a supervisor acting in a callous and inhumane way toward an employee. These events do not take place in a vacuum.

    I have been reading legal decisions most of my adult life, and have difficulty sorting out the logical and legal gymnastics the Court used in finding for the defendant in this case. I read Gene’s analysis of the use of “should” and “could” and will spend some time today ruminating about that subtle distinction.

    Let us wish Cecelia Ingraham well and hope that she has found employment–among human beings this time.

  2. Does our modern, money driven, media driven society encourage treating people first like a resource instead of first like a human?

    Yes. Labor is seen as just another commodity. A corporation deals with the “human needs” of its workers in the same way as it deals with product fragility, shelf life or reliability. Marx called it “estranged labor”:

    “In fact, the proposition that man’s species-nature is estranged from him means that one man is estranged from the other, as each of them is from man’s essential nature.

    The estrangement of man, and in fact every relationship in which man [stands] to himself, is realized and expressed only in the relationship in which a man stands to other men.

    Hence within the relationship of estranged labor each man views the other in accordance with the standard and the relationship in which he finds himself as a worker.”

    Are we becoming desensitized to callous and cruel behavior if it “gets the job done”?

    Of course we are becoming inured to the absurdities and cruelties foisted on workers by companies. Hell, given the seemingly plastic nature of our collective national character evidenced by an acceptance of the idea that corporations can be considered as having personhood, it is any wonder that behaviors like water-boarding can come to be expressed as an “enhanced interrogation technique”?

    If that is the trending behavior, what do you think we as a society should do to remedy the situation?

    Resist the commodification propaganda at every turn, including accepting judgments like those presented in this article as plausible simply because they suit the technical framework of the legal abstractions. It is all too easy to forget that the map is not the land. And it is also all too easy to allow the map makers to petition for a redesign the lay of the land to suit the needs of the map.

    Man and machine.

  3. I can see it from both sides…It is a hard call…not all are prepared to step up when the situation arise…It is not until you felt the pain that you can truly understand or have empathy…this unfortunately is an Emotional Recovery….

    As Was pointed out in order to have recovery in a the Court of Law..all of the elements must be in place in order to maintain a cause of action…Ok, so they got the case dismissed because and element is lacking….Legal Recovery…

    I wonder if she had taken the FMLA would things have turned out differently for her?

    Good thought provoking post…

  4. A great effort Gene. As I read the story the question playing at the back of my mind was where was her supervisor in all of this? Is it possible too that the supervisor was the initial complainer, but did not want to personally face his employee? As someone who spent years directly supervising people situations like this constantly arise. It is the duty of the supervisor/manager to intervene if there are problems with a particular employee and if that causes discomfort to other employees.

    Human workplaces unfortunately are similar to schools in that there are always people whose very presence make those around them feel uncomfortable. Sometimes it is the fault of the person and in many other instances it is merely the dynamics of humans in groups and their tendency to form “in crowds” and “out crowds”.

    At one point as a manager I had a group of some trusted employees seek a meeting with me. Their complaint was that my secretary had bad breath and they felt I should talk to her about it. I was stunned. My secretary’s bad breath was something I was unaware of in the time we worked together. It might have been there but it never made an impression on me. I looked all those complainers in my office in their eyes and said in a comforting voice “Let me handle it”. I never did a thing about it and the complaint never surfaced, nor was my secretary ever aware of her workmates feelings. That was a quite trivial situation, compared with this, but I relate it to underscore the pettiness that goes on in offices and all joint human endeavor.

    I can’t imagine the grief and pain that this woman experienced, or is still going through. One of the ways human’s deal with grief is to talk about with others and receive comfort through that interaction and from their sympathy. While I realize that after a period of time this maker have begun to seem like a “broken record” to some of her co-workers, the HR solution was callously employed and callously implemented. The direct supervisor’s role was usurped, perhaps a relief to that person and instead a message was delivered that was inadvertently cruel.

    Perhaps at one point in time and/or place the relationships between workers was one of harmony, but I doubt it. Some of us are cruel, some callous and some unable to be compassionate towards any but themselves. Then too, many humans when faced with another’s unbearable loss, cringe as they try to push away their own fears and avoid the pain that empathy can bring. I don’t know the facts of the case, but I of course accepts Gene’s take on the legal issues. I don’t know what we can do to deal with this callousness among humanity, because I think that in some, perhaps a good percentage, these are innate feelings. With all the civilized evolution with which humans pride themselves, for many of us the mind of the super-predator remains from
    many years past. From a predatory perspective all other humans are seen tools to be used, or discarded, dependent upon our own personal advantage. I find it sickening, yet until we can evolve further, it is the nature of some of us.

  5. Mike,

    I think our challenge as a society is to evolve beyond our biologically driven selfishness to realize the success of ourselves and our families depends on the success of the society as a whole. While empathy may be painful, every bit of that pain that is shared is pain that is lessened (for the grieving and for society as a whole – the sharing of pain is not a zero-sum game…). Showing compassion – even a little – to a fellow human being when there’s nothing in it for you might not be in your Darwinian interest as an individual organism, but when a society raises its children to show compassion for each other, the benefit to the entire society is incalculable.

  6. “From a predatory perspective all other humans are seen tools to be used, or discarded, dependent upon our own personal advantage. I find it sickening, yet until we can evolve further, it is the nature of some of us.”

    Everyone can understand, I think, that the relative rare expression of the gene for the “alpha” individual in social/pack animals is a good and necessary thing. The alpha individual seems to lack empathy for the welfare of others and the resulting “sociopathic” behavior can be used to regulate, lead and protect the group as whole.

    Humans though can extend the actions of this otherwise rare expression into larger abstract devices like institutions and corporations. These institutions can then act as evolutionary filters which wind up magnifying the natural occurrence of the alpha gene expression and leveraging it to a place where it actually becomes destructive to the group welfare.

    The process keeps selecting for more and more sociopathic behaviors until we wind up with all sorts of institutions, including the political ones responsible for setting the rules and expectations of the game, populated by more and more sociopathic alphas.

  7. It seems to me this woman was in need of counseling or a support group. It is a little much to use co-workers as your therapist. The human resources guy should have gotten her into a program and given her some time off with pay to help her.

    Her co-workers were not trained to help her nor were they responsible for her. Where was her family in all of this?

    American society has always been like this and worse. What do you think happened to our pioneer ancestors? Their children were lucky to live through childhood. They moved on and most didnt dwell on it for years. The dead are dead, the living need to move forward. Feeling sorry for someone is not a good thing and one can only feel true empathy if one has undergone the same sort of trauma.

    You should not use the death of a loved one to ruin your life, your loved one would not want it to be so.

    I dont think I would take lessons on empathy from a race of people who did what the Japanese did to the Chinese and other peoples during and prior to WWII.

  8. “I think our challenge as a society is to evolve beyond our biologically driven selfishness to realize the success of ourselves and our families depends on the success of the society as a whole.”

    Kevin,

    I couldn’t agree with you more.

    “The process keeps selecting for more and more sociopathic behaviors until we wind up with all sorts of institutions, including the political ones responsible for setting the rules and expectations of the game, populated by more and more sociopathic alphas.”

    Culheath,

    Perfectly put, I fully agree.

    “You should not use the death of a loved one to ruin your life, your loved one would not want it to be so.”

    Roco,
    Good advice from afar. May you never have to personally have the experience.

    “I dont think I would take lessons on empathy from a race of people who did what the Japanese did to the Chinese and other peoples during and prior to WWII.”

    We are all one race, with different ethnic divisions, skin colors and features. Humanity as a whole has literally committed millions upon millions of atrocities upon other humans throughout our history. No Nation or ethnicity escapes opprobrium.

  9. Slarti:

    “While empathy may be painful, every bit of that pain that is shared is pain that is lessened (for the grieving and for society as a whole – the sharing of pain is not a zero-sum game…). ”

    I totally disagree, your pain is your own and only time and reflection lesson it. No matter how many times someone “unloads” they still carry the pain of a tragic event. There is no “collective” consciousness or brain.

    You can certainly lend a sympathetic ear but individuals bear the pain themselves until they resolve to move on.

  10. Mike:

    it isnt advice from afar. And yes we are all human beings, but some seem to be more human than others. The level of atrocities committed by the Japanese during and prior to WWII was horrendous. Every bit as bad or worse than the Germans. I wouldnt take lessons on empathy from the Germans either.

  11. Come on, Roco, you talk like our government hasn’t made us all torturers…

    The safety net failed this woman (and I agree that a sending the woman to counseling would have been a reasonable response – in a sane society, she would have been getting free counseling since her child’s death) and society is poorer for it. Why do you accept this kind of inefficiency in your society? With single-payer health care and a greater awareness of PTSD (in my opinion it is unreasonable for anyone to expect that a parent who loses a child will NOT suffer PTSD…) this woman would probably still be gainfully employed – why are you okay with wasting that resource and why do you think that a “human resources” department which needlessly deplete’s the company’s human resources shouldn’t be sacked in its entirety just for the sake of efficiency?

  12. Roco,

    I couldn’t disagree more strongly about pain, but I think this is one of those things that we’ll probably have to agree to disagree about. When you share pain it makes it a little bit better – at least that’s always been my experience…

  13. Slarti:

    If I owned that company and knew about that woman’s tragedy, I would have sent her to counseling and paid her salary while she was there and had her job waiting for her when she got back. But that is me and I dont own that company.

    As far as human resources? Those departments are a waste of money and were created to cover all of the regulations dealing with employees. The money saved could have been used to help this woman.

    So I agree with you but just have a difference of opinion as to the mechanism.

  14. Slarti:

    it makes it a little better while you are talking about it, but it does not reduce it in the middle of the night when you are alone.

  15. While all people are created equal, not all people are equally created . . . including the functionality of their brains including their mirror neurons.

    Roco,

    If you don’t see that living in a country that is engaged in both torture and systematically providing protection for the war criminals who ordered it while criticizing the past actions of the Japanese and German governments is the very height of hypocrisy, then not only do you lack empathy but apparently the rationality to see the contradiction in your condemnation.

  16. “The level of atrocities committed by the Japanese during and prior to WWII was horrendous. Every bit as bad or worse than the Germans. I wouldnt take lessons on empathy from the Germans either.”

    Roco,

    Obviously i’m not a fan of the Germans and the Japanese atrocities in the Pacific were horrible. However, the history of atrocity falls almost equally on all ethnicities and nationalities. Our My Lai slaughter in Viet Nam was not atypical, nor are those atrocities committed in Iraq and Afghanistan.
    The Brits weren’t exactly gentle imperialists, nor the Spanish, nor the
    Belgians, Dutch, Russians Chinese, etc. It is unfortunately a human trait, when in war, to convince ones troops of the enemy being somehow less than human, since it makes the act of killing easier. Once you see your opponent as less than human, then all atrocities become acceptable.

  17. “There is no “collective” consciousness or brain.”

    I could not possibly disagree with that statement more.
    What is “human” does not arise from the mere coordinated collection of cells or genetically directed neural net survival responses in each individual. It arises from the metadata which only occurs BETWEEN individuals. In turn that metadata (memes, if you like) such as language and cultural information evolve over time as certainly as species do and become as much of the “organic whole” of the species capable of it as any other aspect of the genetic.

    “No man is an island” is not just a metaphor, it describes the inherent principle which defines what we mean by human.

    There is no such thing as stand alone empathy, it only comes into existence via social/pack animal interplays.

    Expressions of empathy such as the “good listener” situation can indeed serve to ameliorate pain just as the stroking of one distressed Bonobo by another can afford comfort.

  18. I took a class in grief counseling when I was in my late twenties. My brother, one year younger than I, had died in a freakish accident. He was my best friend and constant companion. I did not take the class for myself but because my parents were falling apart and I wanted to find some constructive manner in which to help them come to terms with his death and their future without him. The class was extremely helpful both in finding ways to help myself and my parents.

    One of the many helpful suggestions was to call my brother by his name when talking with my parents. It is a simple thing but oddly not something that people know to do … in fact, people tend to stay away from mentioning the deceased name to his or her friends and loved ones. Yet, naming them provides great comfort to the grieving as it portrays the thought that their loved one has not “disappeared” and still exists in the thoughts of others. It seems like a small thing but to the grieving it is huge.

    Ortho-McNeil Pharmaceutical needs to send their entire HR department to such a class. Their employees are going to continue to suffer the death of loved ones and there are several humane ways to help employees continue to perform their jobs while dealing with their loss.

    As for Carl DeStefanis … the court may have refused to play umpire but the rest of society won’t.

  19. culheath:

    no man is an island is fine for somethings but I dont feel your pain, you feel your pain. I can listen or offer a hug or advice but that is it, you have to bear it and resolve it for yourself in the final analysis. You have to move on, the “collective”/society does not wait for you.

    While it is true humans are social animals they are not a tribe of monkeys or a pack of wolves.

  20. “While it is true humans are social animals they are not a tribe of monkeys or a pack of wolves.”

    Roco,

    Are you completely devoid of understanding the humor and irony of your statement?

  21. “But was it a result of bad law or a failure in basic empathy?”

    Neither. The employer could have handled things with perhaps a touch more tact, but I have worked with people who WOULD NOT SHUT UP about the “defining tragedy” in their lives no matter how many warnings and I can tell you, it really gets old after even a few weeks. After a year and a half I’m sure any empathy I’d feel for a person who had gone through even the most unspeakable of tragedies would have long ago evaporated and transformed into utter rage.

    Her employers are assholes. So is she, for inflicting her pain on all her co-workers without respite or resolution day after day. No winners here, save perhaps for her long-suffering co-workers.

  22. (I have to respond with my reaction to the comments to the article about the weatherman who died in the hot tub. If the lack of empathy shown there is any indication there is no question that we have become “callous and cruel”.)

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