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?


~Submitted by Gene Howington, Guest Blogger

26 thoughts on “Speak Not of the Dead

  1. 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.

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


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

  3. “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.

  4. (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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