Eisenman v. National Associates, Inc., NW, No. 3:2010cv00774 - Document 31 (D. Or. 2011)
Court Description: Memorandum Opinion and Order on Defendant's Motion for Summary Judgment. Nationals motion for summary judgment, 20 is granted in part and denied in part. Signed on 6/17/2011 by Magistrate Judge Dennis J. Hubel. (See formal Memorandum Opinion and Order, 21-pages) (ecp)
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Eisenman v. National Associates, Inc., NW Doc. 31 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION 6 7 8 DAVID EISENMAN, 9 Plaintiff, 10 vs. 11 NATIONAL ASSOCIATES, INC., NW, a foreign corporation, 12 Defendant. ) ) ) No. 03:10-cv-00774-HU ) ) ) MEMORANDUM OPINION AND ORDER ) ON DEFENDANT’S MOTION ) FOR SUMMARY JUDGMENT ) ) 13 ________________________________ 14 15 16 17 Alex Golubitsky CASE DUSTERHOFF LLP 9800 SW Beaverton-Hillsdale Hwy Suite 200 Beaverton, OR 97005 18 Attorney for Plaintiff 19 20 21 22 23 24 Tanith L. Balaban Christopher E. Hawk GORDON & REES LLP 121 SW Morrison Street Suite 1575 Portland, OR 97204 Attorneys for Defendant 25 26 27 28 1 - 10-774 MEMORANDUM OPINION AND ORDER Dockets.Justia.com 1 HUBEL, United States Magistrate Judge: 2 The plaintiff David Eisenman brings this action against his 3 former employer, the defendant 4 (“National”), 5 intentional infliction of emotional distress (“IIED”). 6 filed the case in Multnomah County Circuit Court, and National 7 removed the case to this court on July 6, 2010, on the basis of 8 diversity jurisdiction. 9 granted leave to amend his complaint, and his Second Amended asserting claims National for Associates, wrongful See Dkt. #1. Inc., termination, NW and Eisenman Eisenman subsequently was 10 Complaint was filed December 30, 2010. Dkt. #16. 11 consented to jurisdiction and the entry of final judgment by a 12 United States Magistrate Judge, in accordance with Federal Rule of 13 Civil Procedure 73(b). 14 The parties have Dkt. #9. The matter before the court is National’s motion for summary 15 judgment. Dkt. #20. The motion is supported by a brief, Dkt. #21, 16 and the Declaration of Christopher E. Hawk (“Hawk Decl.”), Dkt. 17 #22. 18 response 19 (“Golubitsky Decl.”), Dkt. #26-1. National has filed a reply, Dkt. 20 #27, supported by a second Declaration of Christopher E. Hawk, Dkt. 21 #28. 22 court has considered the parties’ briefs and declarations, and the 23 oral arguments of counsel, and for the reasons discussed below, the 24 motion is granted in part and denied in part. Eisenman has responded to the motion, Dkt. #26, and his is supported by the Declaration of Alex Golubitsky The motion came on for oral argument on June 8, 2011. The 25 BACKGROUND FACTS 26 27 28 There are few undisputed facts. National Investment Managers, Inc., 2 - 10-774 MEMORANDUM OPINION AND ORDER National, a subsidiary of describes itself as “a 1 consulting, design, and administration firm for retirement plans 2 such as pensions, 401(k) programs, and profit sharing plans for the 3 Pacific Northwest business community.” 4 first began his employment with National on February 1, 1980. 5 left the company on April 19, 1985, and then returned to work for 6 the company on November 8, 1989, as an Analyst in the company’s 7 Seattle, Washington, office. 8 Beaverton, Oregon, office in December 1991. 9 Decl. 1, Ex. 2. 10 Dkt. #21, p. 2. Eisenman He He transferred to the company’s See Dkt. #22, Hawks The parties’ difficulties began sometime in late 2009 and 11 early 2010, when National underwent a management change. 12 this point that the parties’ versions of the facts diverge, at 13 least 14 National claims 15 procedures governing its employees and their conduct, but prior to 16 the management change, those policies and procedures had been 17 enforced very loosely at the Beaverton office where Eisenman 18 worked. 19 and procedures, but more importantly a decision to enforce the 20 policies and procedures the Beaverton office had been ignoring.” 21 Dkt. #21, p. 3. 22 causing “friction and unhappiness with his coworkers, within the 23 office, and with his immediate supervisor.” with regard it to Eisenman’s always had in wrongful place termination certain It is at claim. policies and With the management change came “some changes to policies National claims Eisenman resisted the changes, Id., p. 4. 24 According to National, despite its efforts to work with 25 Eisenman “on his poor performance,” he continued to be insubor- 26 dinate and to act inappropriately, including causing an employee to 27 cry, causing staff to structure their work so they did not have to 28 work with him, causing other analysts to complain about his work, 3 - 10-774 MEMORANDUM OPINION AND ORDER 1 and changing other analysts’ work without justification. 2 National has submitted a declaration of Gail Whitcomb, a co-worker 3 of 4 Eisenman’s resistance to change in the organization and ongoing 5 failure to comply with new procedures. 6 was so abrasive to other staff members that “one employee was 7 brought to tears by him,” and after the employee became pregnant, 8 “people in the office were so concerned about the amount of stress 9 [Eisenman] was causing her that a workaround was created so her Eisenman’s for eight years, in which Whitcomb Id. describes Whitcomb states Eisenman 10 interactions with [him] would be limited.” 11 #22, Es. 4, p. 2. 12 Whitcomb Declr., Dkt. National cites the following as an example of its claim that 13 Eisenman 14 procedures. According to National, Eisenman violated the company’s 15 policy requiring him to call his supervisor if he was sick and 16 would 17 reprimanded for failing to follow the policy, and he “apologized 18 and said that he would comply with the policy in the future.” 19 pp. 4-5. 20 same policy again” a week later. be failed absent to comply from with work. the company’s National claims policies Eisenman and was Id., Nevertheless, National claims, Eisenman “violated the Id., p. 5. 21 National further claims Eisenman “displayed the same obstinate 22 tendencies when National Associates requested a reasonable defer- 23 ment of his jury duty based on a lack of manpower - he threw up 24 roadblocks, lied to his employer about whether he had received a 25 response from the Court, and brought up issues that had nothing to 26 do with National Associates’ request.” Id., p. 4. 27 National asserts it “determined that after nine months of 28 counseling [Eisenman] on his performance that he was unwilling to 4 - 10-774 MEMORANDUM OPINION AND ORDER 1 work within 2 terminated his employment on May 13, 2010.” 3 the Virtually new every structure one of of National National’s Associates and it assertions is Id. factual 4 vigorously disputed by Eisenman. 5 formance issues with his work prior to his termination, and the 6 only person who complained about his work was Debbie Smith, who, 7 along with Martin Smith, “came in to start running the company.” 8 Dkt. No. 26, pp. 1-3; see Dkt. #26-1, Golubitsky Decl., Ex. 2.* 9 The record indicates Debbie Smith testified in her deposition that 10 Eisenman “seemed to understand the business, he seemed to have a 11 strong rapport with his clients, to have a genuine desire to do a 12 good job and to be responsive to his clients’ needs,” and to the 13 best of her knowledge, “he did his work well.” 14 #22, Ex. 3, pp. 13-14. 15 depositions of co-workers Steve Resnikoff and Cindy Chance who 16 testified the quality of Eisenman’s work was excellent, and he got 17 along well with co-workers. 18 He contends there were no per- Smith Depo., Dkt. Eisenman has submitted excerpts from the See Dkt. #26-1, Exs. 1 & 2. Concerning the contention that he failed to follow company 19 policy regarding notification of illness, Eisenman claims he 20 complied with his understanding of the policy and his long-term 21 procedure, which was calling in and telling the receptionist when 22 23 24 25 26 27 28 * The deposition excerpts attached as exhibits to the Golubitsky Declaration are extremely difficult to follow. The excerpts apparently are arranged in the order in which the respective pages were referenced in the brief, rather than in sequentially-numbered page order. Because the plaintiff’s brief refers only to the deposition page and line numbers, and not the exhibit page numbers, the court has had to spend an inordinate amount of time locating the plaintiff’s references. The far better practice would be to submit deposition excerpts with the pages in sequential order. 5 - 10-774 MEMORANDUM OPINION AND ORDER 1 he was ill. He asserts that other employees also followed this 2 procedure, and they found the new policies difficult to understand. 3 Dkt. #26, pp. 2-5. Eisenman contends National “cannot point to one 4 individual who knew of this policy [that he allegedly violated] 5 including Debbie Smith, as she stated that the policy was, in fact, 6 what [Eisenman] did, only to subsequently state that the policy was 7 something different.” Id., p. 5. 8 National’s employee handbook specifies that when an employee 9 will be late to or absent from work, the employee “should notify 10 their supervisor as soon as possible in advance of the anticipated 11 tardiness or absence.” 12 procedure normally followed in the Beaverton office prior to the 13 management change was for employees to call the receptionist if 14 they were sick and would be absent from work. 15 record indicates that on April 30, 2010, he called the receptionist 16 to report that he was ill and would not be at work that day. 17 Debbie Smith later called him at home, noting that neither she nor 18 Eisenman’s supervisor had received a phone call from Eisenman 19 regarding his absence. 20 the new policy which was to notify the supervisor “no later than 21 one hour after [the employee’s] regular starting time and on each 22 subsequent day of illness[.]” 23 Dkt. #26-1, p. 42. Eisenman claims the The evidence of Smith noted employees had been advised of Dkt. #22, Ex. 18, p. 2. Eisenman sent Smith an email on May 2, 2010, apologizing for 24 not following the new procedure. 25 he had called in sick since the new procedure was implemented, and 26 he did not have a copy of the procedure at home. When he called 27 the receptionist, “take 28 notifying the appropriate parties.” she He stated it was the first time had indicated she would care of Id., Ex. 10, p. 1 (email from 6 - 10-774 MEMORANDUM OPINION AND ORDER 1 Eisenman to Smith). He further stated, “In the future, I will 2 follow the calling-in procedure exactly.” 3 2010, Eisenman sent an email to his supervisor, Smith, and all 4 personnel at the Beaverton office, stating he had a doctor’s 5 appointment at 2:30 and would “be back in the office afterwards if 6 it [didn’t] last too long.” Id., Ex. 11. 7 believed he had followed the procedure correctly by notifying 8 everyone in advance of his absence for the doctor’s appointment. 9 Dkt. #26-1, Eisenman Depo., p. 169. Id., p. 2. On May 10, Eisenman testified he National continues to assert 10 Eisenman failed to follow the correct procedure even after being 11 warned. See Dkt. #22, Ex. 11 (handwritten note on Eisenman’s email 12 regarding 13 procedure again after warning on 4/30/10.”). 14 the doctor’s appointment stating, “Did not follow The circumstances surrounding the events that occurred after 15 Eisenman received a jury summons also are disputed. 16 2010, a jury summons was issued to Eisenman from the Multnomah 17 County Circuit Court, directing him to report for jury duty on 18 April 21, 2010. 19 having Eisenman away from his job during that time period was going 20 to prove difficult for National. 21 drafted 22 Multnomah County Court, requesting that Eisenman’s jury duty be 23 deferred. 24 presented to Eisenman, he requested changes to the letter which 25 were made, Eisenman signed the letter, and National sent it to the 26 court to request the deferral. 27 received a postcard from the court excusing him from jury duty. 28 See id., Ex. 16. a See Hawk Decl., Ex. 12. letter for On March 24, For a number of reasons, See Dkt. #21, pp. 5-6. Eisenman’s signature, addressed National to the According to National, a draft of the letter was See Dkt. #22, Ex. 15. Eisenman National claims that “instead of informing his 7 - 10-774 MEMORANDUM OPINION AND ORDER 1 employer that his jury service had been deferred, [Eisenman] 2 contacted the Multnomah County Court and said that he would like to 3 serve despite the Court’s excusal.” 4 further claims that when Eisenman was asked if he had heard from 5 the court regarding his jury status, Eisenman lied and said he had 6 not had any contact from the court. 7 learned that Eisenman had lied during discovery in this case, and 8 if it had discovered the lie earlier, “it would have been grounds 9 for immediate termination.” 10 Dkt. #21, p. 6. Id. National National asserts it only Id. Eisenman testified in his deposition that he did not, in fact, 11 lie to his employer. He claims he contacted the court and 12 explained that he “had misgivings about the letter,” and would 13 still like to serve, if possible. 14 court responded that he could still serve, and he was “not excused 15 from jury duty.” 16 Debbie Smith about the jury summons, stating he had “followed up” 17 with the court regarding his juror status, and “[t]hey told [him] 18 to report on April 21, 2010 . . . at 8 a.m.” and he was “not 19 excused from jury duty.” 20 Debbie and Martin Smith queried whether the court normally would 21 respond to a deferral request in writing, Eisenman stated, “Maybe 22 something will arrive today or tomorrow. 23 coordinator by phone. 24 follow the directions I received from her. 25 afoul of the Court.” 26 explained that he “thought the court was going to send [him] 27 another thing saying - confirming that [his] jury duty was going to 28 happen. Id. Dkt. #26, p. 5. He claims the He engaged in email correspondence with Dkt. #22, Hawk Decl., Ex. 8, p. 7. When I spoke to the jury room In the absence of written notice, I will Id., p. 5. I don’t want to run In his deposition, Eisenman That’s . . . what [he] meant about ‘Maybe something will 8 - 10-774 MEMORANDUM OPINION AND ORDER 1 arrive today or tomorrow.’” 2 Depo., pp. 123-24). 3 tortured.” 4 Dkt. #26, p. 5 (quoting Eisenman National argues Eisenman’s “reasoning is Dkt. #27, p. 3. Eisenman asserts that National omitted key facts in its 5 statement of the case in its motion. 6 was 7 Consultant, so “he was laterally moved back to a Senior Analyst 8 position where National Associates felt [he] would be better suited 9 to his skill-set and strengths and would no longer be in a position “not working out” in his National indicated Eisenman position as a Client Service 10 to make coworkers cry or work around him.” 11 Eisenman claims National omitted the fact that he “was never given 12 a caseload in this new position, and therefore could not have 13 performed satisfactorily in this role, as he never had files to 14 work on.” 15 [him] up for failure in his work responsibilities by not giving him 16 any work responsibilities.” Id. National replies that these facts 17 are irrelevant and immaterial because Eisenman was terminated “for 18 insubordination, not for his workload.” 19 asserts that a “genuine issue of material fact exists as to whether 20 [he] was in fact insubordinate.” 21 rather than being terminated for insubordination, he was terminated 22 “as a result of [his] refusal to lie to avoid jury duty.” 23 #16, Second Amended Complaint, ¶ 12. Dkt. #26, p. 6. Dkt. #21, p. 5. Thus, Eisenman claims, National “set Dkt. #27, p. 3. Dkt. #26, p. 7. Eisenman He claims that Dkt. 24 Many of the facts surrounding Eisenman’s IIED claim also are 25 disputed. Eisenman alleges that on approximately October 13, 2009, 26 he was confronted by his former supervisor, Lynn Wakem, “about a 27 rumor that Lynn Wakem was engaging in an extra-marital affair with 28 a subordinate.” Id., ¶ 20. Wakem apparently believed that 9 - 10-774 MEMORANDUM OPINION AND ORDER 1 Eisenman and two 2 Dkt. #21, p. 7. 3 [Eisenman’s] 4 spreading these rumors.” 5 claims Wakem threatened to fire him “if these rumors were shared 6 with Debbie and Martin Smith, Director of Operations and President, 7 respectively, of [National.]” 8 alleges that at the time of the confrontation, Wakem was aware 9 “that desk Debbie and with other employees were spreading the rumor. During the confrontation, Wakem “leaned over and threatened [him] Dkt. #21, p. 7. with termination Eisenman specifically Dkt. #16, ¶ 21. Martin Smith employees in were for going to be conducting 10 interviews 11 Mr. Wakem and these rumors the following day.” 12 claims Wakem intended to cause him severe emotional distress “in 13 order to intimidate [him] from disclosing the existence of these 14 rumors,” and the intimidation caused him to “suffer[] from stress- 15 related 16 problems, fear of returning to work and insomnia.” anxiety, heightened [National’s] Eisenman further blood pressure, office Id. regarding Eisenman gastrointestinal Id., ¶¶ 22-23. 17 National notes there was no physical contact between Wakem and 18 Eisenman during the confrontation, and Eisenman acknowledged in his 19 deposition that National did not direct Wakem to confront Eisenman 20 or to threaten him. 21 immediately 22 Eisenman and the other two employees “that their jobs were not in 23 jeopardy, conducted a thorough investigation of the matter, and 24 removed Mr. Wakem from any supervisory authority over [Eisenman] 25 and the other two employees.” 26 Wakem quit his job on February 20, 2010, Eisenman “continued to 27 complain about Mr. Wakem up until the day of his termination.” upon Dkt. #21, p. 7. learning of the Id. National contends that confrontation, it informed National claims that although 28 10 - 10-774 MEMORANDUM OPINION AND ORDER Id. 1 National argues Wakem was not acting within the scope of his 2 employment at the time of the confrontation, and Eisenman has 3 presented no evidence that would allow a jury to find National 4 vicariously liable for Wakem’s conduct. 5 and not the court, should determine whether Wakem was acting within 6 the scope of his employment at the time of the confrontation. Eisenman argues the jury, 7 SUMMARY JUDGMENT STANDARDS 8 9 Summary judgment should be granted “if the movant shows that 10 there is no genuine dispute as to any material fact and the movant 11 is entitled to judgment as a matter of law.” 12 56(c)(2). 13 “must not weigh the evidence or determine the truth of the matter 14 but only determine whether there is a genuine issue for trial.” 15 Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002) 16 (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th 17 Cir. 1996)). Fed. R. Civ. P. In considering a motion for summary judgment, the court 18 The Ninth Circuit Court of Appeals has described “the shifting 19 burden of proof governing motions for summary judgment” as follows: 20 The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case. Id. at 325, 106 S. Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S. Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 21 22 23 24 25 26 27 28 11 - 10-774 MEMORANDUM OPINION AND ORDER 1 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The non-moving party must do more than show there is some “metaphysical doubt” as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 528 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s favor. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In determining whether a jury could reasonably render a verdict in the non-moving party’s favor, all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct. 2505. 2 3 4 5 6 7 8 9 10 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th 11 Cir. 2010). DISCUSSION 12 A. 13 14 1. Wrongful Termination Claim Burden of proof 15 National argues Eisenman’s wrongful discharge claim is subject 16 to the burden-shifting analysis of McDonnell Douglas Corp. v. 17 Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 18 Dkt. #21, p. 9. 19 are a type of retaliation claim, are subject to the McDonnell 20 Douglas burden-shifting framework, and this framework applies to 21 claims under both state and federal law.” 22 support of this claim, National cites Hedum v. Starbucks Corp., 546 23 F. Supp. 2d 1017 (D. Or. 2008) (Mosman, J.), and Williams v. 24 Federal Express Corp., 211 F. Supp. 2d 1257, 1265-66 (D. Or. 2002) 25 (Jones, J.). 26 McDonnell See National asserts that “wrongful discharge claims Dkt. #27, p. 4. In The issue is not as clear as National suggests. Douglas expressly applies to “the order and 27 allocation of proof in a private, non-class action challenging 28 employment discrimination.” Id., 411 U.S. at 800, 93 S. Ct. at 12 - 10-774 MEMORANDUM OPINION AND ORDER 1 1823 (emphasis added). 2 employer 3 compensation discrimination, and wrongful discharge.” 4 F. Supp. 2d at 1018. 5 Douglas 6 discrimination claims brought under Title VII and to state law 7 discrimination claims litigated in federal court.” 8 F. Supp. 2d at 1022 (emphasis added; citation omitted). 9 discussing the plaintiff’s common-law wrongful discharge claim, 10 Judge Mosman noted, “As with Mr. Hedum’s other claims, federal 11 courts apply 12 analysis to Oregon wrongful discharge claims.” Id., 546 F. Supp.2d 13 at 14 wrongful 15 Starbucks’s allegedly discriminatory practices,” and the court 16 found the plaintiff had “made out a prima facie case that she was 17 fired 18 crimination[.]” 19 found 20 discharge claim only to her claims of religious discrimination and 21 retaliation.” 1027 “for In Hedum, the plaintiff sued her former religious (citing in that framework “applies three-part McDonnell Williams, discharge retaliation, claim retaliation for supra). was her to Hedum, 546 However, “based “Complaint on resistance clearly both federal Id., 546 In Douglas burden-shifting the her to Id., 546 F. Supp. 2d at 1028. Hedum’s workers’ Judge Mosman observed that the McDonnell burden-shifting the discrimination, plaintiff’s resistance religious to dis- The court further link[ed] her wrongful Id. 22 Similarly, in Williams, the plaintiff’s wrongful discharge 23 claim was based on his claim that he was fired for complaining 24 about discriminatory treatment. 25 1259. The plaintiff has cited no cases where the McDonnell Douglas 26 framework has been applied to a common law wrongful discharge claim 27 that did not involve allegations of discrimination. 28 decision as to whether McDonnell Douglas applies does not need to See Williams, 211 F. Supp. 2d at 13 - 10-774 MEMORANDUM OPINION AND ORDER However, the 1 be made at this juncture. Whether the initial burden is on 2 National to identify “portions of the record on file which demon- 3 strate the absence of any genuine issue of material fact,” Hutton 4 v. Jackson County, No. 09-3090-CL, slip op., 2010 WL 4906205, at *3 5 (D. Or. Nov. 23, 2010) (Clarke, MJ), or on Eisenman to make out a 6 prima facie case as required by McDonnell Douglas, the result here 7 would be the same: National’s motion for summary judgment on 8 Eisenman’s wrongful discharge claim fails under either analysis. 9 10 11 2. Discussion Eisenman claims he was terminated “as a result of [his] 12 refusal to lie to avoid jury duty.” Dkt. #16, ¶ 12. He argues 13 termination of an employee for attending jury duty is a violation 14 of Oregon law, which provides, “‘An employer shall not discharge or 15 threaten to discharge, intimidate, or coerce any employee by reason 16 of the employee’s service or scheduled service as a juror on a 17 grand jury, trial jury or jury of inquest.’” 18 (quoting Or. Rev. Stat. § 10.090(1)). Dkt. #26, p. 8 19 National asserts that under Oregon law, it could discharge 20 Eisenman at any time, for any reason, “unless doing so violate[d] 21 a contractual, statutory, or constitutional requirement.” 22 #21, p. 8 (citing Babick v. Oregon Arena Corp., 333 Or. 401, 407, 23 40 P.3d 1059, 1061-62 (2002), in turn citing Patton v. J.C. Penney 24 Co., 301 Or. 117, 120, 719 P.2d 854, 856 (1986)). 25 recognizes that “[t]he tort of wrongful discharge is a narrow 26 exception to this general rule.” 27 observed that the protected societal interest in being able to 28 assemble juries “falls within one of the narrow exceptions the Id. Dkt. National Indeed, I previously have 14 - 10-774 MEMORANDUM OPINION AND ORDER 1 Oregon Supreme Court has identified to at-will employment in 2 Oregon: termination for fulfilling societal obligations.” Halbasch 3 v. Med-Data, Inc., No. CV 98-882, 1999 WL 1080702, at *3 (D. Or. 4 Aug. 4, 1999) (Hubel, MJ). 5 (“Oregon recognizes the common-law tort of wrongful discharge as a 6 narrow exception to the at-will employment doctrine.”) (citing 7 Sheets v. Knight, 308 Or. 220, 230-31 (1989)). See Hutton, 2010 WL 4906205, at *10 8 On this record, whether Eisenman was discharged for attending 9 jury duty, as he claims, or for insubordination, as National 10 claims, is a material issue of disputed fact. 11 that Eisenman has failed to “show any causal link between his 12 protected activity and his termination.” 13 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 14 2002)). 15 adverse 16 activity,’ causation can be inferred from timing alone.” Williams, 17 211 F. Supp. 2d at 1265 (quoting Villiarimo v. Aloha Island Air, 18 Inc., 281 F.3d 1054, 1065 (9th Cir. 2002); and citing Miller v. 19 Fairchild Indus., 885 F.2d 498, 505 (9th Cir. 1989) “(prima facie 20 case of causation was established when discharges occurred forty- 21 two and fifty-nine days after EEOC hearings)”). 22 National complains Dkt. #21, p. 10 (citing However, “[t]he Ninth Circuit has held that where ‘an employment action follows on the heels of protected Eisenman’s discharge occurred less than a month after his jury 23 service. Considering the facts in the light most favorable to 24 Eisenman, as the nonmoving party, the court finds he has alleged a 25 causal link between the protected activity and his termination. 26 Further, the record is rife with disputed issues of material fact 27 that preclude summary judgment for National on Eisenman’s wrongful 28 discharge claim. 15 - 10-774 MEMORANDUM OPINION AND ORDER B. 1 2 IIED Claim Eisenman asserts two bases for his IIED claim. He claims the 3 incident in which Lynn Wakem threatened him caused him “great 4 stress,” resulting in “stress-related anxiety, heightened blood 5 pressure, gastrointestinal problems, fear of returning to work and 6 insomnia[.]” 7 additionally distressed” when he was terminated “for participating 8 in jury duty.” 9 fails for two reasons; i.e., lack of evidence to support the claim, 10 and because the claim “is barred by the workers’ compensation 11 exclusivity provision.” 12 13 14 15 16 17 18 19 Dkt. #16, Id., ¶ 26. ¶ 23. He further claims he “was National argues Eisenman’s IIED claim Dkt. #21, p. 13. In Mayorga v. Costco Wholesale Corp., the Ninth Circuit Court of Appeals, applying Oregon law, observed: To succeed on a claim for intentional infliction of emotional distress, a plaintiff must prove: “(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant’s acts were the cause of the plaintiff’s severe emotional distress, and (3) the defendant’s acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.” McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841, 849 (1995) (internal quotation marks and citation omitted). 20 21 Mayorga, 302 Fed. Appx. 748, 749 (9th Cir. 2008); accord Grimmett 22 v. Knife River Corp.-Northwest, No. CV-10-241, slip op., 2011 WL 23 841149 (D. Or. Mar. 8, 2011) (Hubel, MJ); see House v. Hicks, 218 24 Or. App. 348, 357-58, 179 P.3d 730, 736 (2008) (IIED plaintiff must 25 prove that defendant “intended to cause plaintiff severe emotional 26 distress or knew with substantial certainty that their conduct 27 would cause such distress”; that defendant’s conduct was “outra- 28 geous . . . i.e., conduct extraordinarily beyond the bounds of 16 - 10-774 MEMORANDUM OPINION AND ORDER 1 socially tolerable behavior”; and that defendant’s “conduct in fact 2 caused plaintiff severe emotional distress”) (citing McGanty v. 3 Staudenraus, 321 Or. 532, 543, 550, 901 P.2d 841 (1995)). 4 trial court plays a gatekeeper role in evaluating the viability of 5 an IIED claim by assessing the allegedly tortious conduct to 6 determine whether it goes beyond the farthest reaches of socially 7 tolerable behavior and creates a jury question on liability.’” 8 Ballard v. Tri-County Metro. Transp. Dist. of Oregon, No. 09-873, 9 slip op., 2011 WL 1337090 (D. Or. Apr. 7, 2011) (Papak, MJ) 10 (quoting House, 218 Or. App. at 358, 179 P.3d at 736; and citing 11 Pakos v. Clark, 253 Or. 113, 453 P.2d 682, 691 (1969) “(‘It was for 12 the trial court to determine, in the first instance, whether the 13 defendants’ conduct may reasonably be regarded as so extreme and 14 outrageous as to permit recovery.’)”). “‘A 15 For conduct to be sufficiently “extreme and outrageous” to 16 support a claim for IIED, the conduct must be “‘so outrageous in 17 character, and so extreme in degree, as to go beyond all possible 18 bounds of decency, and to be regarded as atrocious, and utterly 19 intolerable in a civilized community.’” 20 358-60, 179 P.3d at 737-39 (quoting Restatement (Second) of Torts, 21 § 46, comment d). 22 this level “is a fact-specific inquiry, to be considered on a case- 23 by-case basis, based on the totality of the circumstances.” 24 However, although the inquiry is fact-specific, the question of 25 whether the defendant’s conduct exceeded “the farthest reaches of 26 socially tolerable behavior” is, initially, “a question of law.” 27 Houston v. County of Wash., 2008 WL 474380, at *15 (D. Or. Feb. 19, 28 2008) (citation omitted). House, 218 Or. App. at The determination of whether conduct rises to 17 - 10-774 MEMORANDUM OPINION AND ORDER Id. 1 The relationship between the parties is important in 2 evaluating the allegedly distressing conduct. 3 existence 4 ‘special 5 whether the conduct is ‘extraordinary[.]’” 6 Univ., No. CV-00-61, 2001 WL 34043744, at *16 (D. Or. Apr. 18, 7 2001) (Hubel, MJ) (citing MacCrone v. Edwards Center, Inc., 160 Or. 8 App. 91, 100, 980 P.2d 1156, 1162 (1999)). 9 Wakem was in a supervisory position over Eisenman at the time the of the For example, “[t]he employee-employer relationship relationship’ that may be considered constitutes a in determining Dolman v. Willamette It is undisputed that 10 incident occurred. 11 Wakem was acting in the scope of his employment at the time of the 12 confrontation. 13 liable for Wakem’s actions, I find the facts alleged would not 14 permit a jury to conclude that Wakem’s conduct was sufficiently 15 outrageous to support Eisenman’s IIED claim. 16 merely ‘rude, boorish, tyrannical, churlish and mean’ does not 17 satisfy the standard, . . . nor do ‘insults, harsh or intimidating 18 words, or rude behavior ordinarily . . . result in liability even 19 when intended to cause distress.’” 20 M.D., P.C., 112 Or. App. 234, 238, 828 P.2d 479, 481 (1992) 21 (quoting Patton, supra, and Hall v. The May Department Stores, 292 22 Or. 131, 135, 637 P.2d 126, 129 (1981)). 23 Although However, the parties disagree as to whether Even if National were found to be vicariously Wakem’s behavior may “Conduct that is Watte v. Edgar Maeyens, Jr., have been distasteful and 24 inappropriate, it was not sufficiently egregious to result in 25 liability. 26 2004 WL 1857099 (D. Or. Aug. 18, 2004) (presenting plaintiff with 27 toilet in front of other managers and co-workers, falsely accusing 28 plaintiff of dishonesty, and making unfounded accusations against See, e.g., Pearson v. U.S. Bank Corp., No. 04-3026, 18 - 10-774 MEMORANDUM OPINION AND ORDER 1 plaintiff for unsatisfactory work performance held not to “rise to 2 the requisite level of extreme conduct which the courts have found 3 exceeds the bounds of social toleration”); Clemente v. State, 227 4 Or. App. 434, 443, 206 P.3d 249, 255 (2009) (affirming dismissal of 5 IIED claim, noting: “At most, [plaintiff] was subjected to an 6 insensitive, mean-spirited supervisor who might have engaged in 7 gender-based, discriminatory treatment, but . . . that treatment by 8 itself did not amount to ‘aggravated acts of persecution that a 9 jury could find beyond all tolerable bounds of civilized 10 behavior.’”) (quoting Hall v. The May Dept. Stores, 292 Or. 131, 11 139, 637 P.2d 126, 131 (1981); emphasis in original); Hetfeld v 12 Bostwick, 136 Or. App. 305, 901 P.2d 986 (1995) (no claim for IIED 13 where defendant-mother and her new husband engaged in course of 14 conduct designed to cause estrangement of plaintiff-father from his 15 children); Shay v. Paulson, 131 Or. App. 270, 884 P.2d 870 (1994) 16 (no claim for IIED where defendant allegedly forged plaintiff’s 17 name on magazine order form); Watte v. Edgar Maeyens, Jr., M.D., 18 P.C., 112 Or. App. 234, 828 P.2d 479 (1992) (in the course of 19 terminating plaintiffs, defendant allegedly directed them to hold 20 hands with two co-workers, demanded surrender of their keys, “paced 21 tensely in front of them with clenched hands, accused them of being 22 liars and saboteurs, . . . and rashly ordered them off the 23 premises”; 24 toleration). conduct found not to exceed bounds of social 25 Eisenman further alleges he “was additionally distressed when 26 [National] terminated [his] employment for participating in jury 27 duty.” Dkt. #16, ¶ 26. 28 allege a sufficient Even if true, Eisenman has failed to nexus between 19 - 10-774 MEMORANDUM OPINION AND ORDER his termination “for 1 participating in jury duty” and his IIED allegation. The record 2 contains no evidence that National intended to inflict severe 3 emotional distress on Eisenman. 4 point at oral argument, acknowledging that the IIED claim based on 5 National’s termination of Eisenman is not “a credible theory.” Eisenman’s counsel conceded this 6 In any event, Eisenman has failed to show National’s action in 7 terminating him was the cause of his severe emotional distress, or 8 that National’s actions underlying his termination were suffi- 9 ciently egregious to sustain an IIED claim. As the court explained 10 in Madani v. Kendall Ford, Inc., 312 Or. 198, 818 P.2d 930 (1991), 11 abrogated on other grounds by McGanty v. Staudenraus, 321 Or. 532, 12 910 P.2d 841 (1995): 13 An employee who has been discharged can state a claim for intentional infliction of emotional distress if the employer committed abusive acts in the course of the firing. Here, however, plaintiff does not allege that the method of firing him was anything other than ordinary. He simply complains of the alleged reason why he was discharged. An employee also can recover if the underlying acts preceding the firing were an extraordinary transgression of the bounds of socially tolerable conduct and if those acts caused the severe distress. Again, that is not this case. The pleadings allege that plaintiff was distressed only by being fired. 14 15 16 17 18 19 20 21 Madani, 312 Or. at 205-06, 818 P.2d at 934. 22 “‘[T]he tort [of IIED] does not provide recovery for the kind 23 of temporary annoyance or injured feelings that can result from 24 friction and rudeness among people in day-to-day life even when the 25 intentional 26 qualifies 27 (quoting Hall, 292 Or. at 135, 637 P.2d at 129)). 28 the actions of National and its employees, including Wakem, were conduct for causing liability.’” plaintiff’s Dolman, 2001 20 - 10-774 MEMORANDUM OPINION AND ORDER distress WL otherwise 34043744, at *16 I conclude that 1 not, as a matter of law, the type of “extraordinary transgression 2 of the bounds of socially tolerable conduct” that would support 3 Eisenman’s IIED claim. 4 summary judgment on the IIED claim, and I grant the motion on this 5 claim. Having so found, I do not need to reach National’s argument 6 that Eisenman’s IIED claim is precluded by the workers’ compensa- 7 tion exclusivity provision. Accordingly, National is entitled to 8 CONCLUSION 9 10 11 12 13 National’s motion for summary judgment, Dkt. #20, is granted in part and denied in part, as stated above. IT IS SO ORDERED. Dated this 17th day of June, 2011. 14 15 /s/ Dennis James Hubel Dennis James Hubel Unites States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 21 - 10-774 MEMORANDUM OPINION AND ORDER
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