Wolfe v. Ron Wilson Center for Effective Living, Inc., No. 3:2010cv00296 - Document 24 (D. Or. 2010)

Court Description: ORDER: Opinion & Order Granting in Part Denying in Part Motion to Dismiss 10 . Signed on November 8, 2010 by Magistrate Judge Dennis J. Hubel. (hubel2, )

Download PDF

Wolfe v. Ron Wilson Center for Effective Living, Inc. Doc. 24 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 PORTLAND DIVISION 12 13 14 15 16 17 JENNIFER WOLF, ) ) Plaintiff, ) ) v. ) ) RON WILSON CENTER FOR ) EFFECTIVE LIVING, INC., an ) Oregon non-profit corporation,) ) Defendant. ) ) No. CV-10-296-HU OPINION & ORDER 18 19 20 21 Kevin T. Lafky LAFKY & LAFKY 429 Court Street NE Salem, Oregon 97301 22 Jon Weiner 189 Liberty Street, NE, Suite 200 Salem, Oregon 97301 23 Attorneys for Plaintiff 24 26 Ronald G. Guerra JORDAN SCHRADER RAMIS PC Attorneys at Law Two Centerpointe Drive, 6th Floor Lake Oswego, Oregon 97035 27 Attorneys for Defendant 25 28 / / / 1 - OPINION & ORDER Dockets.Justia.com 1 HUBEL, Magistrate Judge: 2 Plaintiff Jennifer Wolf brings this employment-related action 3 against her former employer, defendant Ron Wilson Center for 4 Effective 5 plaintiff's claims for failure to state a claim. Living, Inc. Defendant moves to dismiss three of 6 Both parties have consented to entry of final judgment by a 7 Magistrate Judge in accordance with Federal Rule of Civil Procedure 8 73 and 28 U.S.C. § 636(c). 9 in part. I grant the motion in part and deny it 10 11 BACKGROUND The facts are taken from the Complaint. Defendant is a non- 12 profit corporation which operates various facilities providing 13 services to 14 residential care. 15 defendant as support staff in defendant's "supportive living" 16 department, from February 22, 2007, until December 30, 2009. 17 at ¶ 7. 18 care facilities and generally worked full time. adults with developmental Compl. at ¶ 6. disabilities, including Plaintiff was employed by Id. She was assigned to one or more of defendant's residential Id. at ¶ 7. 19 In 2008, plaintiff took medical leave protected by the Family 20 and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, and Oregon's 21 Family Leave Act (OFLA), Oregon Revised Statutes §§ (O.R.S.) 22 659A.150-659A.186, due to a broken ankle. 23 ended on or about November 17, 2008. 24 Id. at ¶ 9. That leave Id. When plaintiff returned to work on November 17, 2008, she was 25 not reinstated to her job. 26 sharply reduced. Id. at ¶ 10. Her work hours were Id. 27 In response to what plaintiff believed to be a violation of 28 her rights under FMLA and OFLA, plaintiff retained an attorney who 2 - OPINION & ORDER 1 contacted defendant about the alleged violation. 2 January 2009, plaintiff and defendant resolved plaintiff's claim 3 for the FMLA and OFLA violations arising from plaintiff's 2008 4 medical leave. 5 Id. at ¶ 11. In Id. at ¶ 12. On or about March 17, 2009, plaintiff commenced a second 6 medical leave protected by FMLA and OFLA related to her pregnancy. 7 Id. at ¶ 13. 8 at ¶ 13. 9 Defendant terminated her on December 30, 2009. Id. Based on these facts, plaintiff brings the following claims: 10 (1) Interference with FMLA rights, in which plaintiff contends 11 that defendant discharged her in retaliation for taking medical 12 leave to which she was entitled, and in retaliation for exercising 13 her right to reinstatement under FMLA; she further alleges that 14 defendant opposed her attempts to obtain unemployment benefits in 15 retaliation for taking medical leave to which she was entitled 16 under 17 reinstatement under FMLA; Id. at ¶¶ 15-18; 18 FMLA (2) and in retaliation for exercising her right to Retaliation for engaging in protected FMLA activity, in 19 which 20 protected by FMLA, and opposed conduct made unlawful under FMLA 21 when she opposed violation of her FMLA right to reinstatement; 22 defendant allegedly retaliated against her for engaging in this 23 protected activity, both when defendant fired her and when it 24 opposed her attempt to obtain unemployment benefits; Id. at ¶¶ 19- 25 21; 26 plaintiff (3) contends that she requested and took leave Violation of OFLA in which, based on the prior alleged 27 facts, plaintiff 28 retaliation for taking medical leave to which she was entitled 3 - OPINION & ORDER contends that defendant terminated her in 1 under OFLA and for opposing defendant's violation of her rights as 2 well as opposing her application for unemployment benefits; Id. at 3 ¶¶ 22-24; 4 (4) Common law wrongful discharge, in which plaintiff 5 contends she was discharged for exercising job-related rights that 6 reflect an important public policy; Id. at ¶¶ 25-27; 7 (5) Reckless infliction of emotional distress, in which 8 plaintiff alleges she had an employee-employer relationship with 9 defendant, that defendant recklessly engaged in the previously 10 alleged acts causing severe mental or emotional distress in various 11 forms, and that defendant's actions constituted an extraordinary 12 transgression of the bounds of socially tolerable conduct and 13 exceeded any reasonable limit of social toleration; Id. at ¶¶ 28- 14 31; and 15 (6) Intentional infliction of emotional distress, in which 16 plaintiff alleges 17 conduct would cause severe mental or emotional distress or acted 18 despite a high degree of probability that the mental or emotional 19 distress would result, that defendant's conduct in fact caused 20 plaintiff severe mental or emotional distress from the various 21 foreseeable 22 defendant's conduct was an extraordinary transgression of the 23 bounds of socially tolerable conduct or exceeded any reasonable 24 limit of social toleration. highly 25 26 that defendant unpleasant knew the emotional previously reactions, alleged and that Id. at ¶¶ 32-35. STANDARDS On a motion to dismiss, the court must review the sufficiency 27 of the complaint. 28 All allegations of material fact are taken as true and construed in 4 - OPINION & ORDER Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 1 the light most favorable to the nonmoving party. 2 Ass'n, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1120 3 (9th Cir. 2002). 4 allegations as truthful. 5 (9th Cir. 1992). 6 American Family However, the court need not accept conclusory Holden v Hagopian, 978 F.2d 1115, 1121 A motion to dismiss under Rule 12(b)(6) will be granted only 7 if plaintiff alleges the "grounds" of his "entitlement to relief" 8 with nothing "more than labels and conclusions and a formulaic 9 recitation of the elements of a cause of action[.]" Bell Atlantic 10 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation 11 omitted). 12 relief above the speculative level, . . . on the assumption that 13 all the allegations in the complaint are true (even if doubtful in 14 fact)[.]" Id. at 1965 (citations and internal quotations omitted). 15 To survive a motion to dismiss, the complaint "must contain 16 sufficient factual matter, accepted as true, to state a claim to 17 relief 18 plaintiff pleads factual content that allows the court to draw the 19 reasonable 20 misconduct alleged." 21 (2009) (internal quotation and citation omitted). 22 "only a complaint that states a plausible claim for relief survives 23 a motion to dismiss." 24 "well-pleaded facts" which "permit the court to infer more than the 25 mere possibility of misconduct." "Factual allegations must be enough to raise a right to that is plausible inference 26 that on its the face[,]" defendant meaning is liable "when for the the Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 Id. at 1950. Additionally, The complaint must contain Id. DISCUSSION 27 Defendant moves to dismiss the three non-statutory claims of 28 wrongful discharge, reckless infliction of emotional distress, and 5 - OPINION & ORDER 1 intentional infliction of emotional distress. 2 I. 3 Wrongful Discharge Defendant moves to dismiss this claim on the basis that 4 plaintiff has adequate statutory remedies under FMLA and OFLA. 5 Many cases from this Court recognize that under Oregon law, there 6 is no right to a common law wrongful discharge claim if existing 7 statutory remedies adequately protect the employment-related right. 8 E.g., Whitley v. City of Portland, 654 F. Supp. 2d 1194, 1224 (D. 9 Or. 2009). Thus, generally, if an adequate statutory remedy 10 exists, a common law wrongful discharge claim based on the same 11 conduct is precluded. 12 Enters., No. CV-07-1641-AC, 2009 WL 136019, at *16 (D. Or. Jan. 20, 13 2009). Reid v. Evergreen Aviation Ground Logistics 14 Defendant argues that plaintiff's wrongful discharge claim is 15 precluded by FMLA and OFLA because the statutory relief provided by 16 those statutes is as broad as the relief provided by the common law 17 wrongful discharge claim. 18 Defendant's position is not supported by other cases from this 19 Court. Most recently, Judge Papak, in a Findings & Recommendation 20 adopted by Judge Brown, noted that under FMLA, a plaintiff is not 21 entitled to emotional distress damages and that the lack of such 22 damages "makes the statutory remedy inadequate because it fails to 23 'capture the personal nature of the injury done to a wrongfully 24 discharged employee as an individual.'" 25 Inc., No. CV-09-405-PK, 2010 WL 2720730, at *13-14 (D. Or. July 7, 26 2010) (quoting Earnest v. Georgia-Pacific Corp., No. CV-07-1559-KI, 27 2008 WL 5111104, at *9 (D. Or. Nov. 25, 2008)). 28 plaintiff was seeking emotional distress damages, Judge Papak 6 - OPINION & ORDER Maxwell v. Kelly Servs, Thus, because the 1 allowed the plaintiff to pursue a wrongful termination claim 2 arising from the allegations that her former employer terminated 3 her employment in retaliation for taking family medical leave, or 4 for demanding reinstatement following her leave. Id. at *14. 5 In Earnest, the case relied on by Judge Papak, Judge King in 6 turn relied on an earlier case by Judge Ashmanskas to conclude that 7 the lack of emotional distress damages under FMLA and OFLA made the 8 statutory remedies inadequate. 9 (citing Rush v. Oregon Steel Mills, No. CV-06-1701-AS, 2007 WL Earnest, 2008 WL 5111104, at *9 10 2417386 (D. Or. Aug. 17, 2007)). Judge King agreed with the 11 analysis in Rush and adopted it as his own. Id. 12 Defendant argues that no court has ever specifically held that 13 a statute must provide for every single kind of remedy that would 14 be available at common law and that in fact, the Oregon Court of 15 Appeals 16 prohibiting worker's compensation retaliation, to be exclusive 17 because the legislature's adoption of "virtually all remedies that 18 would have been available at common law lead us to conclude that it 19 intended the statutory remedy to be exclusive." 20 Louisiana-Pacific Corp., 103 Or. App 563, 567, 798 P.2d 697, 699 21 (1990). 22 "virtually all" remedies that would have been available under 23 common law, that is sufficient to preclude her wrongful discharge 24 claim. 25 found the statutory remedy under O.R.S. 659.410(1), Farrimond v. Here, defendant argues, because FMLA and OFLA provide At the relevant time, the statute at issue in Farrimond capped 26 punitive damages at $2,500. 27 The statute still entitled the plaintiff to a jury trial, to obtain 28 equitable remedies of injunction and reinstatement with back pay, 7 - OPINION & ORDER Id. at 567 n.4, 798 P.2d at 699 n.4. 1 and to obtain compensatory and punitive damages (up to the limit). 2 Id. at 567, 798 P.2d at 699. 3 all" the remedies available at common law. 4 Notably, the statute Thus, the statute provided "virtually at issue in Farrimond allowed the 5 plaintiff to recover emotional distress damages, which, as the 6 cases from this Court note, "capture the personal nature of the 7 injury." Thus, Farrimond is easily distinguishable. 8 I agree with the other judges in this Court and conclude that 9 because FMLA and OFLA do not allow for emotional distress damages, 10 which is a component of the damages plaintiff seeks in this case, 11 her common law wrongful discharge claim is not precluded. 12 deny the motion to dismiss this claim. 13 II. 14 Thus, I Reckless Infliction of Emotional Distress (RIED) Defendant moves to dismiss this claim contending that Oregon 15 courts do not recognize it. In Davis v. Pacific Saw & Knife Co., 16 No. CV-08-676-HU, 2008 WL 4319981, at *3 (D. Or. Sept. 16, 2008), 17 I held that "[t]here is no cognizable claim under Oregon law for 18 reckless infliction of emotional distress." Id. (citing Snead v. 19 Metropolitan Property and Cas. Co., 909 F. Supp. 775, 779 (D. Or. 20 1996)). 21 Opinions issued by other judges in this Court have recognized 22 a narrow set of circumstances in which a RIED claim is, in fact, 23 cognizable. 24 25 26 27 28 Judge Aiken recently explained that: Oregon law allows recovery of damages for reckless infliction of emotional distress under three specific circumstances. See, e.g., Navarette v. Nike, Inc., No. 05-1827, 2007 WL 221865, at *4 (D. Or. Jan. 26, 2007) (discussing when damages may be recovered for RIED in Oregon). First, a plaintiff may recover under RIED when accompanied by physical injury. Drake v. Mut. of Enumclaw Ins. Co., 167 Or. App. 475, 487, n. 3, 1 P.3d 1065 (2000). Second, "Oregon allows recovery for 8 - OPINION & ORDER 1 2 3 4 5 6 7 8 emotional distress without accompanying physical injury under narrow circumstances, including when a defendant's conduct infringes on a plaintiff's legally protected interest." Rathgeber v. Hemenway, Inc., 335 Or. 404, 414, 69 P.3d 710 (2003). Third, a plaintiff may recover under either reckless or negligent infliction of emotional distress in circumstances where there is a duty to protect against psychological harm. See Id. (discussing duty to protect from emotional harm in malpractice context) (citing Curtis v. MRI Imaging Servs., 327 Or. 9, 14-15, 956 P.2d 960 (1998)); Simons v. Beard, 188 Or. App. 370, 376, 381-82, 72 P.3d 96 (2003); Shin v. Sunriver Preparatory Sch., Inc., 199 Or. App. 352, 368-69, 111 P.3d 762 (2005) (school owed a heightened duty of care to student to protect from negligently inflicted emotional harm). 9 Dawson v. Entek Int'l, 662 F. Supp. 2d 1277 (D. Or. 2009). 10 Here, plaintiff fails to identify her theory of recovery for 11 the RIED claim. There is no allegation of physical injury. The 12 Complaint alleges no "legally protected interest." Moreover, cases 13 discussing RIED claims in Oregon, such as Rathgeber, Drake, and 14 Hammond v. Central Lane Commc'ns Ctr., 312 Or. 17, 816 P.2d 593 15 (2003) do not provide guidance for interpreting "legally protected 16 interest," and so, do not discuss the required type of such an 17 interest or any limits on such an interest. In fact, while these 18 three cases note the existence of the "legally protected interest" 19 prong of a RIED claim, none found a basis to support it. 20 Furthermore, I agree with Judge Ashmanskas's discussion in 21 Navarette that "[i]n the wake of McGanty [v. Staudenraus, 321 Or. 22 532, 901 P.2d 841 (1995)], a special relationship between the 23 parties, such as employer-employee, is no longer a basis upon which 24 recovery may be had for RIED." Navarette, 2007 WL 221865, at *3. 25 Finally, there is no allegation of a duty to protect against 26 psychological harm. 27 A RIED claim without physical injury is allowed under a very 28 9 - OPINION & ORDER 1 particular set of facts and is recognized only in very narrow 2 circumstances. 3 this claim are do not state a recognized basis for the claim. 4 grant defendant's motion as to the RIED claim. 5 III. The facts as asserted by plaintiff in support of I Intentional Infliction of Emotional Distress (IIED) 6 Defendant moves to dismiss this claim on the basis that 7 plaintiff fails to establish that defendant's acts constitute an 8 extraordinary transgression of the bounds of socially tolerable 9 conduct. 10 To sustain an IIED claim, plaintiff must show that defendant 11 intended to inflict severe emotional distress, that defendant's 12 acts were the cause of plaintiff's severe emotional distress, and 13 that defendant's acts constituted an extraordinary transgression of 14 the bounds of socially tolerable conduct. McGanty, 321 Or. at 563, 15 901 P.2d at 849; see also Babick v. Oregon Arena Corp., 333 Or. 16 401, 411, 40 P.3d 1059, 1063 (2002) (to state an IIED claim under 17 Oregon law, plaintiff must prove, inter alia, that defendants' 18 actions "constituted an extraordinary transgression of the bounds 19 of socially tolerable conduct.") (internal quotation omitted). 20 Conduct that is merely "rude, boorish, tyrannical, churlish, 21 and mean" does not support an IIED claim. 22 Co., 301 Or. 117, 124, 719 P.2d 854, 858 (1986). 23 not provide recovery for the kind of temporary annoyance or injured 24 feelings that can result from friction and rudeness among people in 25 day-to-day conduct causing 26 plaintiff's distress otherwise qualifies for liability." Hall v. 27 The May Dep't Stores Co., 292 Or. 131, 135, 637 P.2d 126, 129 28 (1981); see also Watte v. Maeyens, 112 Or. App. 234, 237, 828 P.2d life even 10 - OPINION & ORDER when the Patton v. J.C. Penney intentional "[T]he tort does 1 479, 480-81 (1992) (no claim where employer threw a tantrum, 2 screamed and yelled at his employees, accused them of being liars 3 and saboteurs, then fired them all); Madani v. Kendall Ford, Inc., 4 312 Or. 198, 205-06, 818 P.2d 930, 934 (1991) (no claim where 5 employee terminated for refusing to pull down pants). 6 7 8 In a 2008 case, the Oregon Court of Appeals explained the following parameters of the tort: 10 A trial court plays a gatekeeper role in evaluating the viability of an IIED claim by assessing the allegedly tortious conduct to determine whether it goes beyond the farthest reaches of socially tolerable behavior and creates a jury question on liability. . . . 11 * * * 12 The classification of conduct as "extreme and outrageous" depends on both the character and degree of the conduct. As explained in the Restatement at § 46 comment d: 9 13 14 15 16 17 "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." 20 Whether conduct is an extraordinary transgression is a fact-specific inquiry, to be considered on a case-by-case basis, based on the totality of the circumstances. We consider whether the offensiveness of the conduct exceeds any reasonable limit of social toleration, which is a judgment of social standards rather than of specific occurrences. 21 House v. Hicks, 218 Or. App. 348, 358-60, 179 P.3d 730, 737-39 22 (2008) (internal quotations and citations omitted), rev denied, 345 23 Or. 381 (2008). 18 19 24 Plaintiff argues that the following allegations meet the 25 standard: (1) she was discharged in retaliation for taking medical 26 leave to which she was entitled under FMLA, and in retaliation for 27 exercising her right to reinstatement under FMLA; (2) defendant 28 opposed her attempts to obtain unemployment benefits in retaliation 11 - OPINION & ORDER 1 for taking medical leave to which she was entitled under FMLA, and 2 in retaliation for exercising her right to reinstatement under 3 FMLA; and (3) 4 and was subject to retaliation as a result of the exercise of her 5 rights that led to that settlement. 6 Plaintiff she settled a previous FMLA dispute with defendant argues that her allegations show "long-term" 7 discriminatory and retaliatory conduct that continued beyond the 8 date of plaintiff's discharge and included not only an attempt to 9 deprive her of her livelihood, but also an attempt to deprive her 10 of the unemployment benefits she needed to survive. 11 notes, defendant did so with the full knowledge that she was a new 12 mother, just back from OFLA and FMLA protected leave, and in the 13 context of what she alleges is a recognized "special" employer- 14 employee relationship. 15 state a claim for IIED because these are special circumstances 16 which amount to more than "they discharged me because of my 17 protected status." 18 Moreover, she Plaintiff contends that these allegations McGanty made clear that the employer-employee relationship was 19 not relevant to the intent element of an IIED claim. 20 Or. at 547-48, 901 P.2d at 850-51. 21 argument, post-McGanty cases indicate that the employer-employee 22 relationship is relevant to the element of the claim examining the 23 level of conduct necessary to sustain the tort. 24 State, 227 Or. App. 434, 442, 206 P.3d 249, 255 (2009) ("the courts 25 are more likely to consider behavior outrageous if it is inflicted 26 on the more vulnerable partner in a 'special relationship' such as 27 employer-employee."); House, 218 Or. App. at 360, 179 P.3d at 737 28 (noting that "precedents identify several contextual factors that 12 - OPINION & ORDER McGanty, 321 But, as plaintiff noted at oral E.g., Clemente v. 1 guide 2 outrageous[,]" the most important of which is "whether a special 3 relationship exists between a plaintiff and a defendant, such as an 4 employer-employee[.]"). 5 the court's classification of conduct as extreme and Nonetheless, it remains that Oregon courts have been "very 6 hesitant 7 settings, even in the face of serious employer misconduct." 8 Robinson v. U.S. Bancorp, No. CV-99-1723-ST, 2000 WL 435468, at *8 9 (D. Or. Apr. 20, 2000). 10 11 12 13 14 15 16 17 18 19 20 21 22 to impose liability for IIED claims in employment As the Clemente court explained: In every case in which this court or the [Oregon] Supreme Court has allowed an IIED claim asserted in the context of an employment relationship to proceed to a jury, the employer engaged in conduct that was not only aggravating, insensitive, petty, irritating, perhaps unlawful, . . . and mean-it also contained some further and more serious aspect. In some cases, the employer engaged in, or credibly threatened to engage in, unwanted physical contact of a sexual or violent nature. E.g., Lathrope-Olson, 128 Or. App. at 407-08, 876 P.2d 345; Franklin v. PCC, 100 Or. App. 465, 471-72, 787 P.2d 489 (1990). Employers in other cases repeatedly used derogatory racial, gender, or ethnic slurs, usually accompanied by some other aggravating circumstance. E.g., Whelan v. Albertson's, Inc., 129 Or. App. 501, 504-06, 879 P.2d 888 (1994); Franklin, 100 Or. App. at 471-72, 787 P.2d 489. In yet other situations, the employer exposed the plaintiff to actual physical danger. E.g., Babick, 333 Or. at 413-14, 40 P.3d 1059; MacCrone v. Edwards Center, Inc., 160 Or. App. 91, 100-01, 980 P.2d 1156 (1999), vacated on other grounds, 332 Or. 41, 22 P.3d 758 (2001). In Schoen v. Freightliner LLC, 224 Or. App. 613, 615-20, 629, 199 P.3d 332 (2008), the employer repeatedly subjected the plaintiff to verbal abuse, forced her to do work from which she was medically exempted, and forced her to engage in illegal conduct. 23 Clemente, 227 Or. App. at 442-43, 206 P.3d at 255 (footnote 24 omitted). 25 Here, the allegations fail to establish that any such 26 extraordinarily outrageous aggravating factors occurred. Plaintiff 27 was not verbally, sexually, or physically abused or harassed. There 28 13 - OPINION & ORDER 1 was no name-calling. She was not exposed to violence. She was not 2 repeatedly and viciously ridiculed. 3 Complaint, she was subjected to repeated discriminatory treatment, 4 retaliation, and post-discharge retaliation in the form of the 5 challenge to her application for unemployment benefits. 6 the context of an employment relationship, these allegations are 7 insufficient. Instead, according to the Even in I grant the motion to dismiss the IIED claim. 8 CONCLUSION 9 Defendant's motion to dismiss [10] is granted as to the RIED 10 and IIED claims, and is denied as to the wrongful discharge claim. 11 IT IS SO ORDERED. 12 Dated this 8th day of November , 2010. 13 14 15 /s/ Dennis James Hubel Dennis James Hubel United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 14 - OPINION & ORDER

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.