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Jun 17, 2021

NY Grave Digger’s Intentional Distress Claim Fails

A New York appellate court affirmed a trial court’s order granting an employer’s motion for summary judgment in a case in which a former employee—a grave digger—contended he had sustained emotional distress injuries because he was sometimes required, as part of his duties, to step on caskets during the burial process [Zaborowski v. Roman Catholic Diocese of Brooklyn, 2021 N.Y. App. Div. LEXIS 3939 (3d Dept. June 16, 2021)]. The appellate court agreed that the plaintiff had failed to allege sufficient facts showing how the employer had engaged in conduct intentionally directed at causing harm to the plaintiff.

Background

In 2013, the plaintiff filed a civil action against the defendants to recover damages allegedly sustained during his employment as a grave digger at the St. Charles Cemetery, asserting causes of action to recover damages for intentional infliction of emotional distress and constructive discharge from employment. In relevant part, the plaintiff alleged that he was compelled by the defendants, over his objections, to step on caskets during the burial process. As a result, he contended he had sustained serious psychological injuries and was eventually compelled to resign due to the intolerable work conditions. In February 2019, the trial court granted defendants’ motion for summary judgment. Plaintiff appealed.

Intentional Injury/Constructive Discharge

On appeal, the court acknowledged that an intentional tort may give rise to a cause of action outside of the ambit of the Workers’ Compensation Law, but the court also stressed that the complaint must allege an intentional or deliberate act by the employer directed at causing harm to particular employee. Similarly, in order to maintain a cause of action alleging constructive discharge, a plaintiff must show that his or her employer deliberately made working conditions so intolerable that he or she was forced into involuntary resignation. The court added that the constructive discharge test is not met if the employee is simply dissatisfied with his job assignments.

Stepping on Caskets

The court said that here, the defendants established, prima facie, that in order to remove the materials used to lower the casket into the grave, it was sometimes necessary for the grave diggers to step onto the caskets, and that all grave diggers were required to do so when necessary. The plaintiff offered no evidence to the contrary. Accordingly, the trial court properly granted the defendants’ motion in the absence of any triable issues of fact regarding whether the defendants engaged in conduct intentionally directed at causing harm to the plaintiff, or whether the defendants deliberately made the plaintiff’s working conditions intolerable.