PROVO A judge agreed to dismiss the case of a man who claimed he was "waterboarded" by his boss as a motivational exercise.
However, Chad Hudgens and his attorney, Sean Egan, say they plan to re-file, addressing some of the technical issues that led to the dismissal.
"We were both disappointed, but both of us are upbeat and optimistic that we will be able to address the court's concern and press the claim," Egan said.
Hudgens previously worked for Prosper Inc., a Provo-based motivational coaching and self-help provider, but quit soon after a training exercise on May 29, 2007.
Hudgens said that he volunteered for the exercise, not knowing he would be held down while his supervisor, Joshua Christopherson, poured water on his mouth and nose, then compared his struggle to the effort he wanted to see from employees making sales.
Fourth District Court Judge Gary Stott ruled that Prosper Inc.'s and Christopherson's motion to dismiss the case should be granted because this type of claim should have been handled under the Worker's Compensation Act, rather than through the courts.
A narrow exemption allows for legal action if the plaintiff can prove deliberate intent to injure or be malicious which wasn't proven, Stott said.
"From the court's perspective, Christopherson undoubtedly exhibited poor judgment to take the actions that led to this case," Stott wrote in a ruling released in late July. "Indeed, plaintiff asserts that the express purpose of Christopherson's abuse and intimidating conduct was to motivate team members, not to injure plaintiff."
Prosper's main attorney was out of town and messages left for his co-worker were not immediately returned Monday.
Stott also ruled that although Hudgens said he felt he had to leave Prosper because of the emotionally distressing atmosphere within the company, that did not constitute a wrongful termination in violation of public policy.
Although there is no specific public policy against waterboarding for motivational exercises, Egan compared the act to hazing, which is addressed legislatively.
Stott shot down the hazing argument, saying that Hudgens was not a member or potential member of a school team, nor was the action for initiation, admission into or affiliation with, an organization, according to the ruling.
The case was dismissed without prejudice, meaning that Egan can try again to bring the case before the judge. He said he plans to file a motion for leave to amend and a potential amended complaint.
If the judge allows such amendments, the case could be heard again."I think part of our concern has been that Prosper's behavior be reviewed by a jury," Egan said. "I think that's part of the vindication that Chad is seeking from the process the opportunity to have a jury say, this was wrong or not."