Employee Emotional Distress Lawsuits in Minnesota

How do emotional distress claims show up in a former employee’s lawsuit?

Emotional distress reaches an employer by two routes. The employee can plead a stand-alone tort, intentional or negligent infliction of emotional distress, or can ask for emotional distress damages as part of another claim, such as discrimination, retaliation, or defamation, or seek the “any and all damages recoverable at law” that the whistleblower statute allows. The second route often carries more risk.

The Minnesota Supreme Court first recognized intentional infliction of emotional distress as an independent cause of action in Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. 1983), a case brought by a fired employee, and in the same opinion set a demanding standard of proof.

Statutory claims work differently. Under Minn. Stat. § 363A.33, subd. 8, a court that finds discrimination “shall order the respondent to pay an aggrieved party who has suffered discrimination compensatory damages, including mental anguish or suffering, in an amount up to three times the actual damages sustained.” Mental anguish there is part of the remedy for discrimination, not a separate tort the employee must prove. When you read a new complaint, sort each distress allegation into one of these two routes before responding to the wrongful termination allegation.

What must a former employee prove for intentional infliction of emotional distress?

A Minnesota employee claiming intentional infliction of emotional distress must prove four elements: “(1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe.” All four are required.

The Minnesota Supreme Court set out those elements in Hubbard and reaffirmed them in Langeslag v. KYMN Inc., 664 N.W.2d 860 (Minn. 2003). In both cases, the court found the conduct element unmet. Conduct qualifies only if it is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community,” and the court in Hubbard stated that “The operation of this tort is sharply limited to cases involving particularly egregious facts.”

The standard applies in both directions. In Langeslag, the employer’s owner was the one claiming distress: he counterclaimed against his former salesperson and won a $535,000 jury verdict. The Minnesota Supreme Court reversed the award. The same high bar that protects you against a former employee’s claim also defeats an owner’s claim against a difficult employee.

Why does ordinary discipline or a firing rarely count as extreme and outrageous?

The outrageousness element looks at the employer’s conduct. Performance criticism, warnings, and a request to resign were not extreme and outrageous in Hubbard, even if intended to harass.

In Hubbard, the court described the employer’s conduct as “employment discipline and of both written and verbal criticism of Hubbard’s job performance,” including a resignation request and a vice president’s note accusing the employee of having “chickened out” of an assignment. Those acts “may even have been intended to harass, but they do not, even when considered cumulatively, constitute extreme and outrageous conduct.” In Langeslag, where the employee’s conduct toward the owner was at issue, the court held that her repeated threats to sue were not outrageous, and of her police reports about the owner it said: “Even assuming these reports were false and Langeslag knew it, this conduct does not rise to the level of outrage.” It called three years in which she “frequently shouted at Eddy, used vulgar language and invaded his personal space” conduct that “is bizarre, unprofessional, and more than an everyday workplace argument,” and still not enough.

Schimming v. Equity Services of St. Paul, Inc., No. A11-1573 (Minn. Ct. App. Apr. 23, 2012), a nonprecedential Minnesota Court of Appeals decision, shows a related pattern: a firing for a stated reason, a lawsuit with five theories, and summary judgment for the employer, with the intentional infliction claim failing because the nurse did not show severe distress. Risk rises with conduct beyond the decision itself; an accusation made without investigation, for example, cost the employer its defamation privilege in Wirig, covered in the whistleblower and defamation section. A termination meeting run by script keeps the record to the decision itself.

What are the rules for negligent infliction of emotional distress against an employer?

A negligent infliction claim requires the employee to show three things beyond ordinary negligence: that the employee “(1) was within a zone of danger of physical impact; (2) reasonably feared for her own safety; and (3) suffered severe emotional distress with attendant physical manifestations.” A firing rarely puts anyone in physical danger.

Those elements come from K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995), where the court explained that it “has limited the zone of danger analysis to encompass plaintiffs who have been in some actual personal physical danger caused by defendant’s negligence.” The court restated them in Engler v. Illinois Farmers Insurance Co., 706 N.W.2d 764 (Minn. 2005), holding that “the plaintiff must still satisfy the three elements of a claim for negligent infliction of emotional distress.”

Hubbard described the general rule in Minnesota as allowing mental distress damages only with “a contemporaneous physical injury, or in cases involving the invasion of a legal right which by its very nature is likely to provoke a severe emotional disturbance,” and quoted earlier law allowing recovery for “a direct invasion of the plaintiff’s rights such as that constituting slander, libel, malicious prosecution, seduction, or other like willful, wanton, or malicious misconduct.” Schimming, a nonprecedential decision quoting an earlier Court of Appeals case, treats a direct invasion of rights such as defamation as an exception to the zone-of-danger rule, so a negligent infliction count paired with a defamation count relies on that exception. In Schimming, the court applied a further limit: “whether pleading the zone of danger or its exception, plaintiff must show physical manifestations of the distress.” The fired nurse there alleged no physical injury, and the claim failed.

How much proof of severe distress does a Minnesota court require?

For the emotional distress torts, the employee must prove distress “so severe that no reasonable man could be expected to endure it.” In Hubbard, the employee’s own testimony about depression and physical symptoms failed that test where medical evidence was “conspicuously absent from the record.” In Langeslag, where the owner claimed distress, the court held that “testimony from the individual making the claim and inconclusive medical records are not sufficient to establish a causal connection between the conduct and the emotional distress.”

In Hubbard, the employee testified to depression, vomiting, a rash, and high blood pressure, but he “never missed work” and “Medical evidence as to Hubbard’s injuries is conspicuously absent from the record.” The court found the injury did “not exceed that of any employee who experiences an employer’s criticism or reproof concerning job performance.” In Langeslag, the court rejected distress proof built on the claimant’s own testimony and inconclusive medical records, and stated: “The appropriate method of proving the severity and causation of emotional distress is through medical testimony.”

Schimming shows the same test at the summary judgment stage. The district court found that the complaint “offered nothing more than evidence of therapy, depression, anxiety, and financial difficulties typical for a person who recently lost her job,” and the Court of Appeals agreed that “these averments do not satisfy the heavy burden of demonstrating severe emotional distress.” Losing a job is distressing for anyone; the tort requires more than that ordinary distress.

How do emotional distress damages work under the Minnesota Human Rights Act?

Under the MHRA, mental anguish is a category of compensatory damages for discrimination, and the Minnesota Court of Appeals has held that it need not meet the torts’ severity bar. The court “shall order” compensatory damages, “including mental anguish or suffering, in an amount up to three times the actual damages sustained,” and in a case decided by a jury, the jury sets the amount.

The full text of Minn. Stat. § 363A.33, subd. 8 adds that “In any case under this chapter that is decided by a jury, the jury shall determine the amount of all damages to be awarded.” The Minnesota Court of Appeals stated in Gillson v. State Department of Natural Resources, 492 N.W.2d 835 (Minn. Ct. App. 1992) that recoverable pain and suffering does not have to “be severe or accompanied by physical injury” and that “A trial court can award damages based on subjective testimony.” (The court still reversed that award and ordered a new trial on damages because the trial court had broken its own pretrial ruling.)

The Act reaches very small employers: “"Employer" means a person who has one or more employees” (Minn. Stat. § 363A.03, subd. 16). It also covers reprisal, which “includes, but is not limited to, any form of intimidation, retaliation, or harassment” (Minn. Stat. § 363A.15). The federal counterpart, Title VII, caps the combined total of compensatory damages for “emotional pain, suffering, inconvenience, mental anguish” and other listed losses, plus punitive damages, at $50,000 for employers with more than 14 and fewer than 101 employees, rising to $300,000 (42 U.S.C. § 1981a(b)(3)). The MHRA subdivision states no dollar ceiling on compensatory damages. For the claims themselves, see Minnesota Human Rights Act claims and Minnesota’s retaliation statutes.

How do whistleblower and defamation claims add to a former employee’s damages?

A whistleblower claim and a defamation claim each give a former employee a separate route to damages. The whistleblower statute allows “any and all damages recoverable at law,” and defamation is among the “direct invasion” examples in the rule Hubbard quoted.

Under Minn. Stat. § 181.932, subd. 1, an employer may not discharge or otherwise retaliate against an employee because the employee, “in good faith, reports a violation, suspected violation, or planned violation of any federal or state law or common law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.” Under Minn. Stat. § 181.935, paragraph (a), an injured employee “may bring a civil action to recover any and all damages recoverable at law, together with costs and disbursements, including reasonable attorney’s fees.”

Defamation turns on what you said about the employee and how you learned it. In Wirig v. Kinney Shoe Corp., 461 N.W.2d 374 (Minn. 1990), a manager accused a cashier of theft at an all-employee meeting. The court held that “an employer who takes no steps to investigate but relies entirely on accusations either made by employees who may be biased or on secondhand hearsay with no identification of sources” lacks the reasonable grounds needed for a qualified privilege, and it reinstated a jury award that included “$3,000 for emotional distress.” In Schimming, by contrast, the employer’s statement was qualifiedly privileged and the employee showed no ill will. One document is protected by statute: when an involuntarily terminated employee asks in writing for the reason, “within 15 working days following such termination,” the employer must respond within ten working days and state “the truthful reason for the termination” (Minn. Stat. § 181.933, subd. 1), and “No communication of the statement furnished by the employer to the employee under subdivision 1 may be made the subject of any action for libel, slander, or defamation by the employee against the employer” (subd. 2). See workplace defamation and termination notice requirements.

When can a former employee add punitive damages to an emotional distress claim?

Not at the start. Minnesota requires a court’s permission first: “Upon commencement of a civil action, the complaint must not seek punitive damages.” The employee must later move to amend, with affidavits, and the court grants the motion only on prima facie evidence supporting it.

That rule is Minn. Stat. § 549.191: “if the court finds prima facie evidence in support of the motion, the court shall grant the moving party permission to amend the pleadings to claim punitive damages.” The standard at trial is higher. Under Minn. Stat. § 549.20, subd. 1, “Punitive damages shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.” The MHRA applies the same statute: on top of compensatory damages of up to three times the actual damages, the court “may also order the respondent to pay an aggrieved party punitive damages pursuant to section 549.20” (Minn. Stat. § 363A.33, subd. 8). A separate paragraph of that subdivision caps punitive damages at $25,000 where a political subdivision is the respondent, and lets them be apportioned if there are two or more respondents; it does not apply to a private employer.

For a company, who acted matters. Section 549.20, subd. 2 allows punitive damages against an employer for an agent’s act only in listed situations, including where “the agent was employed in a managerial capacity with authority to establish policy and make planning level decisions for the principal and was acting in the scope of that employment.” That clause turns on the agent’s managerial capacity and authority to set policy, so the identity of the decision-maker matters. The motion to amend is where the employee must first file affidavits showing the factual basis for punitive damages, so it is worth contesting.

How should an employer defend the emotional distress part of the case?

The strongest defense tests every element early. In the decisions on this page, the stand-alone torts were decided as a matter of law: Hubbard and Langeslag were reversed after jury verdicts, and Schimming ended at summary judgment. The next steps confine the damages claim and keep overlapping theories from producing overlapping awards.

A working sequence, drawn from these decisions:

1. Separate the claims. List which counts are stand-alone torts and which seek distress damages inside a statutory or defamation claim, because the proof standards differ.
2. Hold the employee to the tort elements. Press for the conduct the employee calls outrageous and for evidence of physical manifestations or medical support, then move for summary judgment where the record lacks them, as the employer did in Schimming.
3. Decide the mental-examination and records questions deliberately. In Gillson, a Human Rights Act case seeking mental anguish damages, the court held that “A sexual harassment plaintiff does not automatically place her mental condition in issue,” and noted the employer “may renew their motion for an adverse mental examination.” Of the trial court’s pretrial order on that question, the court said: “The parties were entitled to rely upon that ruling.” Records are governed by Minn. R. Civ. P. 35.03 and 35.04: a party who “voluntarily places in controversy the physical, mental, or blood condition of that party” thereby “waives any privilege,” and “within 14 days of a written request by any other party” must “furnish to the requesting party copies of all medical reports” and “provide written authority signed by the party of whom request is made to permit the inspection of all hospital and other medical records.”
4. Block double counting. In Wirig, the Minnesota Supreme Court held: “Although we decide parallel actions can be maintained, we do not uphold double recovery for the same harm.”
5. Consider a formal offer. In Schimming, after summary judgment dismissed the employee’s claims, the employer offered under Minn. R. Civ. P. 68 to dismiss its own counterclaims if she dismissed hers; she declined, a jury found conversion on the employer’s counterclaim, and the district court concluded that “pursuant to rule 68, respondent was entitled to costs and disbursements.” Under current Rule 68.01(b), “An offer does not have the consequences provided in Rules 68.02 and 68.03 unless it expressly refers to Rule 68.”

What makes a release cover emotional distress claims in Minnesota?

A release signed at separation can resolve emotional distress claims, but an MHRA release, unless it is “given in settlement of a claim filed with the department or with another administrative agency or judicial body,” can be rescinded for a short period after signing, and it cannot waive future claims. The employee “shall be informed in writing of the right to rescind the waiver or release.”

Under Minn. Stat. § 363A.31, subd. 2, a release of MHRA claims arising from past or current conduct “may be rescinded within 15 calendar days of its execution, except that a waiver or release given in settlement of a claim filed with the department or with another administrative agency or judicial body is valid and final upon execution.” “To be effective, the rescission must be in writing and delivered to the waived or released party by hand, electronically with the receiving party’s consent, or by mail within the 15-day period.” Subdivision 1 makes void any waiver that “purports to waive claims arising out of acts or practices which occur after the execution of the waiver or release.”

Federal law adds its own conditions for age claims: an individual “may not waive any right or claim under this chapter unless the waiver is knowing and voluntary,” and under 29 U.S.C. § 626(f)(1), the employee must be given “a period of at least 21 days within which to consider the agreement,” and the agreement must provide that “for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement.” For a waiver requested “in connection with an exit incentive or other employment termination program offered to a group or class of employees,” the employee must be given “a period of at least 45 days within which to consider the agreement,” and these periods are among the conditions paragraph (1) requires “at a minimum.”

For a waiver in settlement of an age charge filed with the Equal Employment Opportunity Commission, or an age lawsuit already filed, paragraph (2) requires, among other conditions, that “the individual is given a reasonable period of time within which to consider the settlement agreement.”

A settlement payment timed after the rescission and revocation periods run keeps the release final before the money moves. The mechanics are covered in drafting a Minnesota severance agreement, and the tax side in how severance and settlement payments are taxed.

What should a Minnesota employer take from these decisions?

Most emotional distress claims against Minnesota employers turn on the claim they ride with. The stand-alone torts carry a high bar that the Minnesota Supreme Court has enforced for four decades, and the firings and discipline in the decisions above did not clear it. Human Rights Act claims, including reprisal, can carry mental anguish damages without that severity showing, and whistleblower and defamation claims bring their own damages routes, so the defense effort belongs there: an investigation before any accusation, a documented reason for the decision, and a release that meets the MHRA rescission rule. For more on these claims, see the employment law page. If a former employee’s complaint claims emotional distress, email me at aaron@aaronhall.com with the complaint and a short description of the separation.