In Agarwal v. Johnson (1979) 25 Cal. 3d 932, 160 Cal. Rptr. 141, 603 P.2d 58, plaintiff alleged intentional infliction of emotional distress in an employment context based upon his supervisor's use of racial epithets against him and recommendation that his employment be terminated for reasons that were untrue. The court noted that "behavior may be considered outrageous if a defendant: (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress." (Id. at p. 946.) Plaintiff obtained a judgment for defamation and intentional infliction of emotional distress based on evidence that defendants humiliated him with a racial epithet and recommended that he be terminated from his job for reasons that were untrue. On appeal to the California Supreme Court, defendants introduced a certified copy of a federal district court judgment dismissing plaintiff's suit against them for racial discrimination (under title VII of the Civil Rights Act of 1964), and contended plaintiff was barred from recovery under the doctrine of res judicata. (42 U.S.C. 2000e; Agarwal, supra, at pp. 938, 947.) The Agarwal court rejected the claim, ruling that "the significant factor is the harm suffered; that the same facts are involved in both suits is not conclusive." ( Id. at p. 954.) The high court concluded the federal court's dismissal of plaintiff's civil rights suit was not res judicata, since "defamation and intentional infliction of emotional distress are specifically recognized as potentially available causes of action under state law." ( Id. at pp. 954-955.) In Agarwal v. Johnson, the issue was whether the jury was correctly instructed on an employer's liability for punitive damages based on the acts of its employee. The Supreme Court concluded that the jury was correctly instructed on liability predicated on vicarious liability under the doctrine of respondeat superior. (Agarwal, supra, 25 Cal.3d at p. 949.) "It does not follow, however, that an instruction on vicarious liability must subsume the applicable law on damages. A court is not required to embody all the law that may be gleaned from the instructions read together as a whole in any one instruction [citations], nor was Agarwal, as the party requesting the challenged instruction, required to do so. Rather, 'In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.' " (Agarwal, at pp. 950-951.) The California Supreme Court explained that in identifying a primary right "the significant factor is the harm suffered; not that the same facts are involved in both suits." The plaintiff in Agarwal was the victim of racial discrimination by his employer. He sued on the same facts in state court for defamation and intentional infliction of emotional distress and in federal court for racial discrimination in violation of Title VII of the 1964 Civil Rights Act. He won in the state trial court but, while the defendants' appeal from that judgment was pending in the California Supreme Court, he lost in the federal trial court. Defendants moved the Supreme Court to dismiss the action on the ground of res judicata. The court denied the motion. It reasoned: "While the federal action was based on the same underlying facts as the instant case, it does not follow that the federal judgment is res judicata. . . ."Title VII vests employees with independent federal statutory rights against discriminatory employment practices. It does not supplant state remedies. Accordingly, 'Since monetary damages under Title VII are limited to recovery of back pay, alternate causes of action under state law may be particularly important where the discriminatee might recover damages other than back pay.' . . . Defamation and intentional infliction of emotional distress are specifically recognized as potentially available causes of action under state law." (Agarwal v. Johnson, 25 Cal.3d at pages 954-955.) The Court concluded that causes of action for defamation and intentional infliction of emotional distress under state law were separate from the cause of action for discrimination in violation of a federal labor statute, even though the federal and state claims arose from the same set of operative facts. (Agarwal, supra, 25 Cal.3d at p. 954.) The federal labor statute prohibiting discrimination limited the plaintiff's recovery of monetary damages to back wages, while the state claims for defamation and infliction of emotional distress allowed recovery for injuries that were distinct from lost pay. (Id. at p. 955.) Based on the difference in the injuries sought to be remedied in the two lawsuits, the court concluded each lawsuit involved a different primary right.