*1 part part, May and remanded reversed affirmed Argued and submitted Penney’s reconsideration denied C. and J. reconsideration October Patton’s 545) 11, 1986 (300 February 6, 1985, petitions review allowed both December PATTON, Appellant, al, CO., et INC. PENNEY J. C. Respondents. A33254) (83-11-221; CA P2d 1256 Oswego, James argued Roberson, J. Lake the cause and appellant. filed the briefs for Jeffrey argued M. Batchelor, Portland, the cause for respondents. With him on brief Liebman, Richard F. Spears, Lubersky, Campbell, Bledsoe, Anderson & *2 Young, Portland. Presiding Judge, Gillette,
Before and Van Hoomissen and Judges. Newman,
VAN HOOMISSEN, J. concurring
Gillette, part; J.,P. dissеnting part. in in HOOMISSEN, J. VAN out- discharge and an action is This dismissing judgment a appeals Plaintiff conduct. rageous 21A.1 The ORCP claim. to state failure complaint his under construed complaint, whether is issue dispositive true, states a facts are well-pleaded assumption that McDonald, Paddack See law. question ais That claim. Gulick, Turrini (1983); See 672, 661 P2d 667, Or in (1974); We affirm den 1230, rev P2d 167, 169, 517 App remand. and part in reverse part, in Penney Co. J.C. defendant hired there years two last 1980. His until Eugene in He 1969. worked transferred then He manager. merchandising aas merchandising aas to work he continued Portland, where his he employment, his Throughout manager. received 1981, In he satisfactory manner. duties store, he earned award Year” of the “Merchant Janu- October, award Month” of the “Merchant also came December, he In November ary, 1982. award. earning that close Penney’s J.C. McKay, 1981, defendant October, *3 rela- a social discontinue to plaintiff told manager, store general no Penney has J.C. co-worker. female
tionship with told Plaintiff employes. among socializing prohibiting policy at work co-worker with the socialize not he did McKay that relationship. Plaintiff continue intended to he that within department another to transferred the co-worker McKay asked connected. not was he with which store off the had broken plaintiff if co-workers other if necessary that was that to them He intimated relationship. was That information working. to continue wanted plaintiff McKay. co-workers, but by his plаintiff to given In late co-worker. seeing the continued was performance his job that plaintiff 1981, McKay warned to dismiss motion defendants’ that the appealed indicated first The order appeal, that because granted. dismissed We complaint was plaintiffs amended entered, appeal was filed. then judgment judgment. A was final was not order summary judgment was for motion defendants’ However, judgment that indicates that ever that defendants not disclose does The record dismissed. granted thе action repeat only its meant to court the trial summary judgment. assume We for moved dismiss. to motion granting defendants’ action earlier unsatisfactory and that he would be terminated if there was no improvement. request Plaintiffs for a transfer to another February, McKay store was denied. In terminated plaintiff unsatisfactory job performance. for Defendant Chapin, Penney’s manager, approved J.C. district the termi- plaintiff nation. After terminated, he was and the co-worker plaintiff, mаrried. At the he time terminated plaintiff responsible support knew that for of three children. assigns
Plaintiff first as error the dismissal of his argues claim for termination. He that defendants infringed importance justify interests of sufficient societal to exception general an for brought rule that no action can be terminating employe. argue an at will Defendants pleaded any showing has not facts constitutional or statutory and, thus, violation has not shown an interest of importance justify sufficient sоcietal a cause of action in tort.
Generally,
statutory
in the absence of a contractual,
requirement,
employer
or
may discharge
constitutional
an
an
employe
Simpson
any
at
time and
reason,
or no reason at all.
Graphics,
v. Western
96, 99,
1087
the com-
held
Court
that
Supreme
claim. The
compensation
659.410, which makes
claim, because ORS
a
plaint stated
com-
files a
who
workers’
employe
an
against
discrimination
practice, constitutes
employment
claim an unlawful
pеnsation
public
protectable
and
important
of an
recognition
legislative
Co.,
76,
Or
689
and
298
Roebuck
v.
Holien
Sears
policy. See
Inc.,
Home,
Bel Air Convalescent
(1984); McQuary v.
P2d 1292
v.
Campbell
Ford
(1984); compare
107,
21
684 P2d
App
Or
69
(1976) (employe
243,
P2d 141
Industries,
Inc.,
546
corporate
inspect
statutory right
exercising
action).
to state cause
failed
records
Supreme
Int’l,
supra,
Taco Time
Delaney v.
In
no action will
some
that
circumstances
explained
under
Court
social
important
аn
frustrates
though termination
lie even
administrative
adequate
employe has an
interest,
because
society.
Walsh
See
the interest
protects
remedy that
P2d 1205
Freightways, 278
Consolidated
co-worker, he was
socializing with
that
Plaintiff concedes
obligation
a societal
performance
not engaged
by a statute.
protected
is
regard
in that
his conduct
that
by constitutional
however,
protected
he is
argues,
He
that,
defendants
when
and association and
privaсy
rights to
Although he
rights.2
those
him,
they violated
terminated
constitutionally
dating is
in social
his interest
argues that
interest, he cites no
associational
privacy and
protected
Baird,
on Eisenstadt
relies instead
He
authority
point.
(1972),
Loving v.
1029, 31 L Ed 2d
438, 92 CtS
405 US
(1967), cases
1817,
We importance public of such ferencе with interest apply.3 should not at will employment general concerning rule Delaney implied exception to the a third argues that the court also important social frustrates some where termination employment-at-will doctrine v. Consolidated See Walsh remedy adequate exists. no alternative interest but Freightways, supra. We disagree. Bradstreet, Brockmeyer 2d 335 NW2d v. Dun & 113 Wis to an at termination Supreme cause of action denied a Court Wisconsin
643 The trial was court correct in dismissing plaintiffs wrongful termination claim.
Plaintiff next assigns as error the dismissal of his
claim for outrageous
argues
conduct. He
that the
pleaded
facts
show that defendants
intended to inflict emotional distress on
him.
argue
Defendants
that a
jury
reasonable
could
find
the
that
conduct here was intolerable social behavior. See Hall
v. May
Stores,
The
Dept.
131, 137,
Or
(1981).
292
In Bodewig K-Mart, v. Inc., 54 App 480, Or 635 P2d rev den 292 (1981), 657 Or 450 we determined that an employer and an employe stand in a special relationship fоr purposes of the tort of outrageous conduct.4 We stated: employer “An has authority even more over employe, an
who, by the nature of the relationship, subject is to the direction employer and control of the may and be reason, or no agreement absent restricting that authority. Clearly, relationship that is not an length arm’s one employe terminated, will part, who was socializing with a co-worker. court stated: plaintiff-employee “A alleging wrongful discharge a proving has the burden of that the public dismissal policy. violates a clear mandate of employee the Unless identify specific can public policy, declaration of no cause of action has been
stated. The
public policy
determination of whether the
asserted
ais well-defined
and fundamental one is an
issue of law and is to be made
the trial court. Once
plaintiff
the
has demonstrated that the
discharge
that
conduct
caused the
consistent with
compelling public
a clear
policy,
and
proof
of
burden
then
employer
prove
shifts to the defendant
just
that the dismissal was for
cause.
adoption
“We
narrowly
believe that
of a
public policy
circumscribed
exception properly
employees,
balances the
employers
interests
public.
of
and the
Employee job security
safeguarded against
interests are
employer actions that
policy preferences.
undermine
Employers
fundamental
flexibility
retain sufficient
personnel
to make
adapt
needed
changing
decisions
order to
economic
Society
conditions.
holding
also
ways.
benefits from our
in a number
A
of
more
job
stable
public
market
is
policies
achieved. Well-established
are advanced.
Finally,
public
protected
against
is
frivolous lawsuits since courts will be able
to screen cases on motions to
summary
dismiss for failure to state a claim or for
judgment
discharged emplоyee
if
allege
expression
public
cannot
a clear
policy.” 335
at
NW2d
840.
Ins.,_F
See Stoats v. Ohio
Supp_(118
3242)(WD
Nat'l.
LRRM
Pa
Life
1985);Rogers
Machines,
Supp
v.
(WD 1980);
Int’l Bus.
F500
867
Pa
Crosier United
Service, Inc.,
App
1132, 198
(1983).
Parcel
150 Cal
Rptr
3d
Cal
361
rely
Clark,
Defendants
(1969)
on Pakos v.
Or
Taking plaintiffs a must discontinue he told that plaintiff that shows record it was though co-worker, even a relationship with social of the none and violated work away from conducted terminate refused plaintiff When policies. employer’s s plaintiff questioned angry, manager became his relationship, them that relationship, intimated about co-workers сontinued relationship job his if lose would plaintiff Plaintiff, an fact. of plaintiff directly inform did solely terminated allegedly employe, exemplary otherwise no that had social to discontinue refusing His performance. job on his effect adverse demonstrable he was terminated however, that indicated, notice termination his affect That could performance. unsatisfactory job plaintiff, terminated he When employability. future benefits retirement forfeit would knew employmеnt. years after had accrued could find that defendants jury We conclude that they terminated exceeded the bounds of social toleration when they and that acted with a reckless employment plaintiffs plaintiff. of their disregard predictable of the effects action on K-Mart, Inc., Bodewig supra. The trial court erred in claim. plaintiffs outrageous conduct dismissing claim; plaintiffs wrongful Affirmed as to termination claim; plaintiffs outrageous reversed as to conduct remandеd.
GILLETTE, J., dissenting P. concurring part; part. fully disposition
I
in the court’s
join
However,
termination claim.
I decline to
join
disposition
outrageous
claim,
of the
conduct
because I do not
Stores,
required by
May
feel that it is
Hall v. The
Dept.
There is no
shorthand method of outlin-
ing the tort of “outrageous conduct” or “intentional
infliction
of mental suffering”
tort
that “is still in the process of
—a
developing
this state.”
v. Church
Scien-
Christofferson
tology,
App 203, 209,
644 P2d
rev den
“Plaintiffs claim rests
aon tort
which Professor
synthesized
allowing
William Prosser
recovery
Prosser,
from scattered cases
variety
settings.
for mental distress in a
of factual
*7
Suffering:
Intentional
Mental
A New
Infliction of
Tort,
(1939); White,
37 Mich L Rev
see
874
Tort Law in
(1980).
America 102-106
In such an effort to describe diver-
tort,
gent
patterns
easy
factual
single
as instances of a
it is not
to define the elements of the tort so as to fit all cases. As
article, however,
appears
and later
given
frоm the
in
title
it
Prosser’s
46,
in
embraced
the Restatement of Torts
‘Con-
§
(1948
Only,’
Supp
duct Intended to Cause Emotional Distress
612-616),
theory
plaintiffs
belongs among
of
claim
torts,
torts. Like
it is marked
the elements
intentional
of a defendant’s
act that causes the
most
mind,
state
the character
the defendant’s
of
of
plaintiffs injury,
plaintiffs
the nature of
injury,
and under some circumstances the
Erwin,
plaintiff and defendant. See Brewer v.
287 Or
between
435, 454-458,
(1979).
“In the
the element of defendant’s ‘intent’
purpose to inflict
from a calculated
mental or emotional
hostility,
impersonal
personal
distress because of
or
some
purpose
in
like the debt collection methods Turman v. Central
Bureau,
Inc.,
443,
(1977),
Billing
P2d 1382
practical jokes
in
through the mindless ‘amusement’ of
leading case of
Wilkinson v.
Downton,
[1897]
Q.B.
57,
to
encompass
painful
intent to do the
also the
act with knowl-
distress,
grave
edge that it will cause
when the defendant’s
plaintiff
responsibil-
position in
involves some
relation to
itself,
ity
aside from the tort
as this court found
cаse of
away
physician
seeking
help.
victims
who turned
accident
Pollard,
(1971).
Rockhill v.
259 Or
“In articulate what actionable crudely ordinary aggressive, run overbear- conduct from the of behavior, ing, ill-tempered Restatement or Prosser and the adjectives ‘outrageous’ like and ‘extreme.’ These are turned to art; phrases All not words of other words or could serve as well. gradation designed only express the outer end of some are impropriety disapproval. and social No more can be or scale of conveyеd by defining epithet by at one another.” 292 Or 134. tort, the court in Hall turned to defining
After the facts before it: application of law to Rummell, “The crux claim is that defendant Co., security Meier & accused as director of Frank money prosecution stealing and threatened her with imprisonment designed frighten her and make a manner example employees, made the for other that Rummell her an *8 guilt regardless of his actual belief as to her or accusation put subsequently under sur- and that she was innocence opportunity to sell merchandise veillance and was denied the eventually quit job.” successfully so that she had to her at 139. however, care conducting analysis, great its the court took of the cognizable part between those matters distinguish pertinent: and those matters that were not
tort
alleged
that defendants’ conduct
“[Plaintiff
part
against plaintiff
in
because their accusations
actionable
prepared
were based on certаin charts Rummell had
to show
frequency
register shortages
with which cash
corres-
ponded
by particular employee.]
register
with the use of that
particularly
jury
We focus
on whether the
find that
could
attempted
frighten plaintiff
Rummell
to threaten and
as a
though
deliberate tactic even
convincing
he knew that he did not have
part.
evidence of misconduct on her
Two other
charges
by plaintiff
independent
made
have no
force
charting system
establish this tort. Asserted weaknеsses
point
would not be in
divorced
its
use as a
intentional
from
psychological
suspected
instrument
with
confrontations
Also,
concerning
employees.
plaintiff’s
the decisions
work
assignments subsequent
episode
to the
were not the kind of
encompassed by
(Emphasis
acts
supplied.)
this tort.”
This is a case. The issue is whether the well- pled plaintiffs facts in make claim for complaint out a alleged, intentional infliction of emotional distress. Plaintiff pertinent part: “VIII McKay Defendant “On or about October instructed Plaintiff that Plaintiff was to discontinue a social relationship co-employee of the with a certain female store; Penney advised Clackamas Town Center co- McKay that he did not socialize with this Defendant however, hours, employee during Plaintiff assеrted business carry this co- on a social with intentions Penney away employee of business hours and outside store; angry Defendant was made and resentful toward Plaintiff this assertion.” majority agree holds —and I discharging —that supervisor approve him because his did not *9 relationship co-employe theory with a is not actionable on a wrongful discharge. self-evident, then, It would seem (in directing plaintiff to discontinue the lieu of him) permissibly actionable, firing must not be either. I conclude in paragraph the events recited VIII are not actionable.
“X McKay “Defendant after the communication to Plaintiff hereof, alleged Paragraph frequently VIII asked Plaintiffs co-employeesif socializing Plaintiff was still with this female co-employee socializing and when told that Plaintiff was still her, McKay with Defendant wouldcomment to the effect that employed if Plaintiff wished to remain he wouldbreak off the relationship; reported inquiries duly these and comments were Plaintiff, McKay’s as was Defendant intention.” was said paragraph applies equally What about VIII here.
“XI right “Plaintiff continued to assert his to socialize with co-employee away this outside the business hours and store, McKay increasingly and Defendant thus became angry and resentful toward Plaintiff.” suppose McKay, One would so. once embarked on his churlish course, likely Still, only was not allegations desist. those McKay’s impermissible establish state of mind. conduct is No alleged.
“XII employment during “At no time Plaintiffs Defen- with Pеnney any policy, dant was there written or unwritten rule or regulation proscribing intra-company and intra-store frater- employees. nization between
“XIII performance exceptionally “Although job Plaintiffs McKay eventually, very part good, late Defendant job performance warned Plaintiff that Plaintiffs shown, unsatisfactory improvement if was not Plaintiff would be terminated.”
The lack of policy written on intra-company fraterniza- tion is not pertinent if plaintiff, as at will employе, an could be fired on any basis at all. To turn this lack of policy written into allegation supporting an outrageous conduct claim sub- stantially destroys the at will doctrine. Similarly, calling plaintiff a poor worker when he was good one better not be actionable these An at circumstances. employe will may be terminated for any reason, even one that would seem wholly unsupportable to fair minded persons. How can merely threatening do that which is not actionable if done rise give to a cause of action?
“XIV “Although requested a transfer to another Pen- ney store, part of an effort to avoid further confrontation with Defendant McKay preserve and to employment his interest Penney Co., with the request was wrongfully and maliciously denied McKay, Defendant or about February 1, 1982, McKay, Defendant acting within scope employment Plaintiff; dismissed the basis for this given by dismissal as Defendant was unsatisfactory *10 job performance.” The employer did not hаve to retain or transfer this employe.
“XVIII “At the time of Plaintiffs wrongful discharge from employment Penney, with Plaintiff supporting a 15-year- sister, old two minor spouse children and a from whom he was separated pending dissolution of the marriage; Defendant McKay was aware of all these circumstances.
“XIX type “Positions of the for which qualified Plaintiff was and comparable with salaries and benefits virtually non- existent in economy to one who was years after twelve discharged for unsatisfactory job performance, as Defendant McKay knew.” It may very well be that these allegations, like those
paragraph XI, help to requisite establish the mental state of They defendants. may also help to establish the element of emotional They distress. not, do however, allege any other conduct, i.e., a separate method of infliction of distress, this aside from the (and aforementioned permissible) firing.
“XX Manager discharge to District his protested “Plaintiff fully circum- being aware Chapin, who Defendant herein, adopted authorized approved, and alleged as stances conduct; Chapin District Mckay’s Defendant Defendant power to discretionary authority and the Manager had the McKay’s of Plaintiff. dismissal Defendant reverse
“XXI Penney’s agents, Defendants of Defendant “The actions in retaliation malice and with Chapin, were done and intended rights and were of his valued assertion for Plaintiffs distress.” upon severe emotional to inflict not the effect, intent establish allegations these Again, alleged by only acts The conduct. necessary impermissible (1) telling outrageous conduct are complaint to constitute consequences or face girlfriend stop seeing acts are not If those consequences. (2) imposing the them turns what is it that termination, actionable as tort? into another degree of the be the
The answer cannot may upset be. for that the reasons upset employe’s —whatever face Many quite upset. are jobs their people who lose Most them, it worry but loss job consequences serious a violation that, without in this state always the law has been here, reasons implicated public policy separate of some subject employe are not at will of an discharge that rule today turns decision scrutiny. majority’s judicial agree. I cannot its head. rude, alleged behavior McKay’s summary, I find its best are those and mean —and churlish boorish, tyrannical, to be however, outrageous find it not, do points. I to do permitted should be jury I do not believe extreme, and so. *11 dissent. respectfully
I