The joke's on who?

Michael: Pam, could you come in here for a sec? Justve a seat, I was going to call you in anyway. Um, as you know there is going to be downsizing, and you have made my life so much easier in that I am going to have to let you go first.

Pam: What? Why?

Michael: Why? Well, theft, and stealing.

Pam: Stealing?

Michael: Mmhmm.

Pam: What am I supposed to have stolen?

Michael: Post-It notes

Michael: Post-It notes

In Season 1, Episode 1, of The Office, Michael "fires" Pam, as a prank. As a district manager, Michael had the power to fire people -- he fired at least one of the Stamford employees, just after the man quit (something we'll come back to). But could he have fired Pam as a prank and made it stick?

All fifty of the United States consider most people in the workplace to be "at will" employees, meaning that the employee can leave at any time for any reason (no two weeks' notice required!) and the employer can fire the employee at any time -- within certain limits.

Pennsylvania courts have reiterated that Pennsylvania has only limited exceptions to the "at will" doctrine. Harrison v. Health Network Labs, 232 A. 3d 674 (PA S. Ct. 2020). Those limitations are generally statutory restrictions, judicially-created notions of public policy, and contractual provisions. Socko v. Mid-Atlantic Sys. of CPA, Inc., 633 Pa. 555, 567, 126 A.3d 1266. That is to say: if Congress or the Pennsylvania legislature passed a law limiting the ability to fire an employee, or if a court declared that public policy meant an employee could not be fired, or if the employee has a contract with the employer that limits the circumstances under which they can be fired, then those things would limit the "at will" doctrine.

Pam doesn't have a contract with Dunder Mifflin, and there appears to be no Pennsylvania statute prohibiting firing employees as a joke, so the question is whether courts have declared as a matter of public policy that bosses can't give you a pink slip as a prank. To meet that test, Pam would have to show that there is a "clear public policy" that was implicated by her joke firing, and prove also that upholding that public policy required the court to limit the employer's "at will" rights. Rothrock v. Rothrock Motor Sales, Inc., 584 Pa. 297, 305, 883 A.2d 511, 516 (PA S. Ct. 2005). In Pennsylvania, that usually means things that are expressed in the statutes already -- most "public policy" exceptions courts have granted have been to prevent the firing of employees who applied for workers' compensation, or unemployment, or who were "whistleblowers." (Although that latter protection is not necessarily as broad as it sounds; in one case, an employee who complained about a doctor's practice of letting students perform surgery was not allowed to claim whistleblower protection when the college fired her.) Riggio v. Burns, 711 A.2d 497, 498.

So it seems like Pam would be out of luck. But of course, Michael did not actually fire her: he revealed to her after she got upset by the joke that he was only kidding. So would Pam have some legal recourse there?

Pennsylvania allows employees to sue employers for "intentional infliction of emotional distress." In the case of Gray v. Huntzinger, 147 A.3d 924, an employee was called into his boss' office about a customer complaint. The employee was first told he was being suspended pending an investigation, but when the employee began to question that, the supervisor fired him. The employee then left the supervisor's office, but the supervisor followed him out and bumped into the employee. The employee sued for assault, battery, and intentional infliction of emotional distress, saying he had had to call an ambulance due to the conflict stressing him out and causing him to suffer a flare-up of Crohn's disease.

The jury found that the employer had not assaulted or battered Gray, but awarded a total of $67,500 in compensatory and punitive damages for intentional infliction of emotional distress. The appellate court reversed the verdict, holding that an employee had to establish objective injury by presenting medical evidence. (Interestingly, Pennsylvania is less strict when the tort is negligent infliction of emotional distress.) The requirement of "objective" evidence comes primarily from courts' longstanding suspicions of purely emotional injury.

When the first claims of emotional distress injuries began making their way through the court system, judges worried that allowing purely emotional injury would lead to fraudulent claims. Consider this quote:

Therefore, the logical result of the respondent's concession would seem to be, not only that no recovery can be had for mere fright, but also that none can be had for injuries which are the direct consequences of it.

If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest upon mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and if so, whether they were caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy.

Mitchell v. Rochester Railway Co., 151 N.Y. 107, 110 (N.Y. 1896). By then, Ireland had recognized a tort that was essentially intentional infliction of emotional distress; a year later the English courts would recognize that tort, as well.

It took the United States considerably longer. Although some courts began covertly awarding emotional distress damages by linking them to some form of predicate act, the tort was not formally recognized in the original compilation of torts, the Restatement of Torts published in 1934; it was added in a supplement in 1948.

(There are, of course, exceptions to the exceptions: the idea that every law has an exception, and every exception has its own exception, can be considered a metalaw of sorts. One of those exceptions was in the remarkable case of a couple who sued for undefined ill treatment they suffered on a ship while they traveled. The Court allowed the claim to proceed, noting, in the flowery language of the times which we are poorer for having lost:

In respect to a case like that before the court, a suit by passengers (a husband, wife, and family) against the master of the ship, for continued, wanton cruelty, and ill treatment, it is certainly entitled to be listened to with attention.

The authority of a master at sea is necessarily summary, and often absolute. For the time he exercises the rights of sovereign control; and obedience to his will and even to his caprices, becomes almost indispensable. If he chooses to perform his duties, or to exert his office in a harsh, intemperate, or oppressive manner, he can seldom be resisted by physical or moral force; and therefore in a limited sense, he may be said to hold the lives and personal welfare of all on board in a great measure under his arbitrary discretion.

He is nevertheless responsible to the law'; and if he is guilty of gross abuse and oppression, I hope it will never be found, that courts of justice are slow in visiting him, in the shape of damages, with an appropriate punishment In respect to passengers, the case of the master is one of peculiar responsibility and delicacy. Their contract with him is not for mere ship room, and personal existence, on board; but for reasonable food, comforts, necessaries, and kindness. It is a stipulation, not for toleration merely, but for respectful treatment, for that decency of demeanor, which constitutes the charm of social life, for that attention, which mitigates evils without reluctance, and that promptitude, which administers aid to distress.

In respect to females, it proceeds yet farther, it includes an implied stipulation against general obscenity, that immodesty of approach, which borders on lasciviousness, and against that wanton disregard of the feelings, which aggravates every evil, and endeavors by the excitement of terror, and cool malignancy of conduct, to inflict torture upon susceptible minds: What can be more disreputable, and at the same time more distressing, than habitual obscenity, harsh threats, and immodest conduct, to delicate and inoffensive females? What can be more oppressive than to confine them to their cabins by threats of personal insult or injury? What more aggravating than a malicious tyranny, which denies them every reasonable request, and seeks revenge by withholding suitable food and the common means of relief, in cases of sea-sickness and ill health?

Chamberlain v. Chandler, 5 F. Cas. 413, 3 Mason 242 (1823)(I broke what was one long paragraph into several for the ease of readers. While judges' language was in the past extravagant, that was in marked counterpoint to their willingness to use punctuation.) A Georgian court noted that "Wounding a man's feelings is as much actual damage as breaking his limbs." Head v. Georgia Pacific Railway Co., 7 S.E. 217, 218 (1887).

Despite America's general disdain for the underclass, and especially for those who are too poor to promptly pay their bills, it is often the proletariat that helps develop the law, as demonstrated by Clark v. Associated Retail Credit Men, 105 F.2d 62 (D.D.C. 1939). There, a business man sued for emotional harm caused by three collection letters he received over a debt of $61.80 (or about $1,200 in today's dollars). The letters threatened the businessman's credit standing and asserted he would be sued. The Court held, nearly 40 years before Congress got around to passing the Fair Debt Collection Practices Act, that debt collectors could be sued for such things:

The law does not, and doubtless should not, impose a general duty of care to avoid causing mental distress. For the sake of reasonable freedom of action, in our own interest and that of society, we need the privilege of being careless whether we inflict mental distress on our neighbors. It is perhaps less clear that we need the privilege of distressing them intentionally and without excuse.

Even then, though, the Court was hesitant to allow everything to be subject to a lawsuit:

Yet there is, and probably should be, no general principle that mental distress purposely caused is actionable unless justified. Such a principle would raise awkward questions of de minimis and of excuse. "He intentionally hurt my feelings" does not yet sound in tort, though it may in a more civilized time.

The Court recognized that however you paint it, emotional distress had been allowed in prior cases:

But the law has long given redress, in some circumstances, for intended mental harm without more. For centuries it has permitted recovery, under the name of assault, for intentionally-induced fear of a contact either harmful or offensive. In such cases the plaintiff has not been required to show that the fear produced physical consequences.

Even with that early development, states were slow to pick up the ball and run with it. Oklahoma did not adopt the tort until 1978. (Breeden v. League Services Corp., 573 P.2d 137). Texas took another 15 years to do so. (Twyman v. Twyman, 855 S.W.2d 619).

But back to Pam: how would she fare in her emotional distress suit? Let's assume she could get the required objective medical evidence of her distress that Pennsylvania requires. It's hard to see how a doctor could "objectively" find emotional distress, but let's assume that. The news for Pam is good: Courts have actually long held that people can be liable for harm caused by pranks.

In Wilkinson v. Downton, 2 QB 57, an English court in 1861 awarded 100 pounds (only $4,511 in today's dollars) as damages to a wife who suffered "a shock to her nervous system" as a result of a prank by the defendant: Downton had "joked" to Mrs. Wilkerson that her husband had broken both his legs in an accident and was at a pub lying down.

But more recently, courts haven't been as understanding. In Mason v. Wyeth, 183 Fed. Appx. 353 (4th Cir. 2006), the Court found that office pranks didn't rise to the level of intentional infliction of emotional distress. The pranks there sound a lot like The Office:

One such prank involved Samford sneaking up behind the other employees to startle them, either by pinching or poking them, making hissing or loud noises, or blowing air on their hands with an air hose.Another involved Samford placing a toy rat in places where the employees would encounter it.

It is undisputed that the pranks and tricks were not limited to those played by Samford on Mason. On the contrary, Samford played the same or similar pranks on nearly every employee in the Department. Mason also admits participating in the prank-playing environment. For example, Mason admitted that he made everybody laugh by "mooning" traffic on Interstate 95 from the Wyeth parking lot on one occasion. He admitted placing a dead bug on top of a candy bar on Jones's desk to startle him, and he admitted startling Jones on another occasion by putting a rubber snake in his breakfast bag. According to Mason, Samford witnessed the latter incident, got the snake from Mason, and put it in Jones's sandwich box to startle him again. On yet another occasion, Mason attempted to pry open the door of a bathroom stall occupied by Jones. Mason testified that he was unsuccessful, but Jones realized that it was "me …trying to tease him," "caught me laughing and got me [the] next day."

Other court cases seem to agree that the more pranks people play the less successful an employee will be in suing when one goes awry. "Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected," said the Court in Leonbruno v. Champlain Silk Mills, 128 N.E. 711 (1920).

Notwithstanding, pranks that go too far still remain actionable. Noting the Leonbruno case, a court held that police officers who participated in a "prank" involving fake-arresting an employee after she completed his probationary period might be liable for violating her civil rights:

Fuerschbach was working at a ticket counter crowded with customers when the two uniformed and armed police officers approached her. One of the officers ordered Fuerschbach to go with him to answer some questions, and proceeded to escort her to the end of the ticket counter. Once there, the other officer informed Fuerschbach that during the course of performing her background check, the City Aviation Department discovered an outstanding warrant for her arrest. The officers asked Fuerschbach if she had ever been arrested before, and she replied that she had not. When she began to explain that there must have been some mistake, and that there were no outstanding warrants, the officers interrupted her and demanded that she take off her badges and turn them in. Fuerschbach complied and handed her badges to Tapia, who was standing close by. Hoppe and Martinez then asked if Fuerschbach had anyone to "bail her out," and she responded tearfully that she hoped Tapia would. After asking for a tissue to dry her tears, Fuerschbach asked if the arrest were a joke. Both officers refused to respond. Instead, Hoppe asked if Fuerschbach had any unpaid traffic citations.

The officers then placed Fuerschbach's hands behind her back and handcuffed her tightly. A crowd of employees and customers formed to watch the unfolding arrest. One of the officers said to Fuerschbach, "we don't want to embarrass you anymore so we'll take you to the elevator so we don't have to walk in front of all those people." Fuerschbach continued to cry. The officers led Fuerschbach in handcuffs fifteen feet to the elevator, at which point someone jumped out and yelled, "congratulations for being off probation." The officers removed the handcuffs and people began to clap. Fuerschbach, however, continued to cry. Later that day, she was found in the break room weeping and was sent home. As a result of her distress, Fuerschbach began seeing a psychologist for treatment. The psychologist diagnosed Fuerschbach as suffering from post-traumatic stress disorder ("PTSD").

Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197 (10th Cir. 2006).

So while Pam wasn't actually fired, and couldn't have sued if she was, she might have a claim against Michael and Dunder Mifflin for the "joke,"-- but she might find it hard to get satisfaction.*

*That's what she said.