Court Reinstates Employee’s Claims of Alleged Waterboarding, Mustache-Drawing

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UtahOn November 23, the Utah Supreme Court reversed the dismissal of Chad Hudgens' claims against his former employer, Prosper, Inc., and his former supervisor. The court did not reach the merits, holding simply that the lower court should have let Hudgens amend his complaint, but it did summarize the allegations. Basically, Hudgens alleges that Prosper encouraged the use of, let's say, "enhanced employee motivational techniques," specifically, waterboarding.

Hudgens alleged that at the time of the incident, his supervisor was already known for what the court called "questionable management practices":

Specifically, when an employee did not meet performance goals, [the supervisor] would draw a mustache on the employee using permanent marker or he would remove the employee's chair. Additionally, he would patrol the employees' work area with a wooden paddle, which he would use to strike desks and tabletops.

Emphasis added. I know we are supposed to be coddling the younger employees these days, but when exactly did it become a "questionable management practice" to draw a mustache on someone or go around threatening employees with a cricket bat? 

(Oh, I see. Always? Okay. I need to make a couple changes to my self-evaluation, if that's still possible.)

Given that history, it is a little puzzling that Hudgens stepped forward when this same supervisor "asked for volunteers for a new motivational exercise." But volunteer he did, whereupon the supervisor led the team to the top of a nearby hill and ordered Hudgens to lie down. Other team members were ordered to hold his arms and legs, which, disturbingly, they did, while the supervisor slowly poured water over his nose and mouth, a practice "commonly known as 'waterboarding.'" Afterward, the supervisor "instructed team members that they should work as hard at making sales as Mr. Hudgens had worked at trying to breathe."

Mr. Hudgens subsequently claimed he had a problem with this, and filed a complaint. Prosper moved to dismiss, arguing that Hudgens' exclusive remedy was workers' compensation. Although there is an exception for certain intentional acts — and presumably torture would be among them — Prosper argued the complaint did not allege "the necessary mental state" on the part of the supervisor. The court, astoundingly, agreed, saying that the purpose of the exercise had been "to motivate [the] team members, not to injure Mr. Hudgens."

Again, the high court ruled only that Hudgens had a right to amend, and that the lower court should have let him do that if it really thought he had not alleged that the person waterboarding him acted with "the necessary mental state." But it also noted that it had very recently decided another case involving the intentional-act exception and said the lower court might want to take that into account on remand. It also suggested that the court had confused the question of motive with that of intent — that is, the question was whether there had been an intent to injure Hudgens by waterboarding him, not what the waterboarder's motive might have been. The lower court should take that hint.

These courts were assuming the' allegations were true, as they are required to do when considering a motion to dismiss. If they were true, this workplace would be officially worse than that of the prior record-holder, whose policies of motivational spanking and forced diaper-wearing resulted in a $1.7 million award in 2006.