Sizer et al v. New England Financial et al

Filing 71

OPINION & ORDER: Defendants' Motion for Partial Summary Judgment 48 on McCormick's fraud and tortious interference claims is Granted as to the intentional interference claim but Denied as to the fraud claim, while Defendants' Motion in Limine 58 concerning McCormick's breach of contract damages is Granted. Signed on 5/9/12 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WILLIAM SIZER, SAMUEL
MCCORlvIICK and SHA WNA DAVIS,
Plaintiffs,
3: 10-cv-00553-PK
OPINION AND ORDER

v.

NEW ENGLAND LIFE INSURANCE
COMPANY, a corporation,
METROPOLITAN LIFE INSURANCE CO.,
a Delaware corporation, andMICHELLE
WARNES, an individual,
Defendants.
PAPAK, Judge:
Plaintiffs William Sizer, Shawna Davis, and Samuel McCormick filed this action in state
court against New England Life Insurance Company ("New England"), Metropolitan Life
Insurance Co. ("Metlife"), New England's parent company, and Michelle Wames, managing
patiner of New England's local branch office, arising out of their recruitment to become
independent contractor insurance agents with New England. Sizer and Davis have reported
settling their claims with defendants, leaving only McCormick's claims in dispute. (#70.)
McConnick alleges claims for breach of contract and fraud relating to defendants' alleged failure

Page 1 - OPINION AND ORDER

to promote him as promised to a Specialist position and for intentional interference with
economic relations relating to Warnes' role in preventing him from being rehired at MetLife.
Now before the court are defendants' joint motions for partial summary judgment on
McConnick's fraud and intentional interference claims (#48), and defendants' motion in limine
concerning damages on McCormick's breach of contract claim (#58). For the reasons described
below defendants' motion for partial summary judgment is granted in pmi and denied in part and
defendants' motion in limine is granted.

BACKGROUND l
In June 2008, Michelle Warnes, the managing pminer of New England's local branch,
became aware of McConnick through a recruiter. (D.'s Mot., #48, Warnes Dep., at 144-145).
Over the course of a number of meetings, Warnes offered him a position with New England as an
insurance agent. (Warnes Dep., at 145.) During their first meeting, on June 13,2008, Warnes
and McCOlmick talked about the life insurance Specialist position, although Warnes told
McCormick that New England did not usually hire an agent as a Specialist until after spending

The following recitation constitutes my construal of the evidentiary record in light of the
legal standard governing motions for summary judgment under Federal Civil Procedure Rule 56.
That is, in construing the record I view the evidence and all factual inferences drawn from the
underlying facts in the light most favorable to the non-moving party, for purposes of the motion
now before the court only. See, e.g., T. W. Electrical Service, Inc. v. Pacific Electrical
Contractors Asso., 809 F.2d 626, 630-631 (9th Cir. 1987)("[A]t summary judgment, the judge
must view the evidence in the light most favorable to the nonmoving patiy: if direct evidence
produced by the moving party conflicts with direct evidence produced by the nonmoving party,
the judge must assume the truth of the evidence set forth by the nonmoving pmiy with respect to
that fact. ... Inferences must also be drawn in the light most favorable to the nonmoving party.
Inferences may be drawn from underlying facts that are not in dispute, such as background or
contextual facts, ... and from underlying facts on which there is conflicting direct evidence but
which the judge must assume may be resolved at trial in favor of the nonmoving party. ")
(citations omitted).
I

Page 2 - OPINION AND ORDER

one year with the company.' (Warnes Dep., at 146.) A Specialist is ajob that requires
collaborating with management to support the firm's business in a particular area and assisting
other agents in selling particular types of insurance. (D.'s Motion, #48, Ex: 13) (job descliption).
Although there are several different types of Specialists, McCOlmick was interested in the
"Advanced Sales Specialist" position. Id During their first meeting and subsequent meetings in
June 2008, Warnes told McCormick he was "ideal" for that role based on his previous experience
with high net-worth individuals and indicated that McCormick was "kind oflocked up" for the
position. (McCormick Dep., at 120, 136.) McCormick perceived he and Warnes had reached an
agreement on the Specialist position. (McCOlmick Dep., at 108.) Based on conversations with
Warnes, McCormick believed the Specialist position was to start in Janumy 2009 and would
come with a $1,500 per month supplemental salmy and an 8% bonus on increased life insurance
commissions. Id at 127-128.
In a letter dated July 3, 2008, Warnes offered McCOlmick a position as an "agent" with
New England, but made no mention of the Specialist position. (D.'s Motion, #48, Ex. 11.)
When McCormick brought up the fact that the offer letter did not mention the Specialist position,
Warnes told McCOlmick that "it would be all taken care of ... in SL,{ months" and urged him to
trust her. (McCormick Dep., at 108.)

On July 14, 2008, after McCormick had already left his

prior position and was in the New England office working on due diligence reports, Warnes
again presented a copy of the offer letter not mentioning the Specialist position. Id at 114.
McCormick was velY upset and insisted on having something in writing assuring him that he

, Warnes testified that it was her own "policy" at New England not to hire an agent as a
Specialist unless he had been at the agency a year, although she was not sure whether New
England itself had such a policy. (Warnes Dep., at 217.)
Page 3 - OPINION AND ORDER

would receive the Specialist position, before signing on with New England. (108-109, 114, 121.)
In response, Warnes brought McCormick a copy ofthe job description for the Specialist position
and handwrote on the top of the front page ,,* to review with Sam Janumy '09 Advanced Market
Specialist." (McCormick Dep., at 119); (Do's Motion, #48, Ex. 13.) Warnes also signed and
dated the page. Id. McCormick was still not satisfied because the note said "review" and asked
Warnes what would guarantee him the Specialist position. Id. at 120. Warnes responded: "At
this time, right here, if you win the agent of the year award," indicating that the position was not
guaranteed otherwise. 3 Id. During that meeting on July 14, McCormick reluctantly agreed to
sign the offer letter. Id at 119.
Several writings described the at-will nature of McCormick's employment.
McCormick's offer letter stated that he would be an at-will employee. (Do's Motion, #48, Ex. 11)
("This letter is not a guarantee that you will be employed for any particular length of time.
Employment with New England Financial is at-will and can be terminated by either you or the
Company with or without cause."). McCormick's job application, signed on June 18,2008, also
described his position as that of an at-will independent contractor. (Do's Motion, #58, Ex. 6.)
Finally, McCormick's ODC agent contract, signed on June 25, 2008, provided that both
McCormick and Warnes reserved the right to telminate the contract "at any time at will and
without cause upon giving thirty (30) days' notice in writing." (D.'s Motion, #58, Ex. 7)
(~26(b)).

Despite these references to at-will employment, McCormick testified that Warnes
promised ifhe earned the Specialist position in January 2009, he would be guaranteed that

3

Warnes disputes that she ever made this statement.

Page 4 - OPINION AND ORDER

position for all of2009, and would be reviewed annually thereafter to determine whether he
would keep the position. (McCormick Dep., at 143-144.) McCormick also believed that his
ODC agent contract stated his agent appointment would last a year as well, although he testified
that such contracts in the industJy typically last for at least two years. Id at 144, 147. Finally,
McConnick assumed, based on his experience in the industry and the general industry practice,
that he would not be terminated so long as he met New England's minimum production
requirements, did not have compliance problems, made money for his company, and got along
with his coworkers. fd. at 146, 163.
In late November and early December 2008, McCormick was under considerable stress,
with his wife giving birth to their first baby and his sister dying within a period of a few days.
(D.'s Motion, #48, Ex. 200); (N1cCormick Dep., at 213-214.) In addition, McCormick was
competing to be the top producer for the year. (McCormick Dep., at 202.) Over the next several
weeks, McCormick had several strained interactions with various New England and MetLife
staff, the details of which are disputed."
On December 12, 2008, McCormick confronted Rhoda Laws, a clerk in the New
England office, for not overnighting a check to a client as he requested. (McCormick Decl., ~3);
(McCormick Dep., at 59.) McCormick was "velY assertive" when talking to Laws, speaking
firmly without yelling, and eventually resorted to having assistant manager Jon Lawry explain
the urgency of the situation to Laws. (McCormick Dep., at 60, 200-201.) Laws complained
about McCormick to Warnes that same day and later sent an email to Warnes describing how
McCormick raised his voice and got angry at her. (Warnes Dep., at 180); (D.'s Motion, #48, Ex.

4

I relate these events resolving all factual disputes in favor of McCormick.

Page 5 - OPINION AND ORDER

201.)
Around December 19,2008, McCormick clashed with Mary Torello, an underwriter at
MetLife, who refused to approve a vety large life insurance policy for a male client who had a
mass in his chest until she received results from a mammogram required by the client's doctor.
(McCOlmick Dep., at 205-208.) McCormick thought Torello's instance on seeing mammogram
results for a man was "ridiculous." (McCormick Dep., at 211.) McCormick emailed Torello
complaining that she "completely wasted ... my time" and "[blew] this very important case;"
McCormick insisted Torello provide "no more worthless answers" and accused Torello of
messing up his new newbom baby's Christmas. (D.'s Motion, #48, Ex. 20, at 4-5.) Torello's
manager complained to Warnes about McCormick, but Warnes did not reprimand McCormick
and instead upgraded him to a higher level of underwriter service. (D.'s Motion, #48, Ex. 202)
(McCormick Dep., at 203.) Around the same time, Wames and assistant manager Lawry
indicated that McCOlmick looked angty in the office, often snarling, glaring, or sighing loudly in
frustration, which made them concemed that McCormick would take his anger "to the next
level." (Warnes Decl., '1'1[6-7); (Lawry Dep., at 21,58,59-63.)
Sometime in the first several weeks

ofDecembel~

it is unclear exactly whether before or

after McCOlmick's incident with Laws- Wames told McCormick that she intended to review
him for the Specialist position a year after he joined New England, not in Janumy 2009 as she
originally stated. (McCormick Dep., at 165-167.)
Throughout this period of McCormick's strained interactions, Warnes never raised any
concems about McCOlmick's behavior with him directly. (Wames Dep., at 195.) Wames also
never told McCormick he needed to be more sensitive to co-workers. (McCormick Dep., at 214-

Page 6 - OPINION AND ORDER

215.) On December 23, 2008, she sent McCOlmick an email using a friendly tone saying she was
happy to have him as part of her team in 2009. (p.'s Resp., #54, Ex. 311.) Several times in
December, however, Wames states that she called Patti McClung, the MetLife HR contact
assigned to support New England, reporting her concems about feeling threatened by
McCormick.' (Warnes Dep., at 194-195.) Warnes also spoke with McLung between January 1
and January 15 conceming McCOlmick. (Wames Dep., at 203-206.) There are no notes or
records of any of those conversations between McClung and Wames, although on January 9,
2009, Warnes forwarded Law's description of her interaction with McCormick to McCLung.
(P.'s Resp., #54, Ex. 65, 310.)

In early January 2009,just before the 2009 kick-off meeting and awards banquet for
2008, as McCOlmick passed by Warnes' office, Wames told McCormick that the Specialist
position was "not going to work out" and apologized. 6 (McCormick Dep., at 164.) This made
McCormick velY angly and he walked away from Wames' office without saying anything else.?
Id McCormick testified that he attended part of the 2009 kick-off meeting, on Janumy 12,

, New England is a wholly owned subsidiary of MetLife and is controlled by MetLife
executives. (McCormick Dep., at 227); (Foxen Decl., ~5.) MetLife employees provide human
resources, legal and other corporate services to New England. (McClung Dep., at 86.)
Wames now states that she decided not to appoint McCormick as a Specialist because of
his recently surfaced anger issues and his failure to do much joint work with other agents to help
them increase their sales. (Warnes Decl., ~7.) Wames testified that she felt threatened by
McCormick and shared that fear with Lawry at the time. (Warnes Dep., at 194); (Lawry Dep., at
55,63.)
6

? Wames claims that McCormick slammed the door after storming out of her office.
Page 7 - OPINION AND ORDER

2009, but walked out because he was very upset over not getting the Specialist position. 8
(McCormick Dep., at 171.) McCormick skipped the awards banquet later that evening. Id. at
179. Around this time McCOlmick had met with MetLife managers Rick Cederberg and Leonard
Quiroz about the possibility of transferring from New England to MetLife. (Cederberg Decl.,
'113); (McCOlmick Dep, at 242-245.)
On January 14,2009, McCormick sent Warnes an agitated email requesting his year-end
sales totals and agent ranking, complaining that Warnes was keeping the rankings secret. 9 (D.'s
Motion, #48, Ex. 21.) Minutes later, Warnes emailed McClung that she would like to ternlinate
McCormick. Id. Later that day, McCormick notified Warnes that he would be seeking a transfer
to MetLife because of Warnes' misrepresentations about the Specialist position and her
patronizing attitude towards him. (D.'s Motion, #48, Ex. 22.) The next day, on January 15,
2009, Warnes spoke with McClung and David Warren, MetLife in-house counsel, concerning
potentially terminating McCOlmick. (Warnes Dep., at 228-229.) Warnes reiterated her concerns
about McCOlmick during that call, including his interactions with Laws and Torello. (McClug
Dep., at 48-49.) That same day, on January 15,2009, Warnes sent McCormick a letter notifYing
him that he was immediately suspended and would be terminated in 30 days, but containing no
explanation for his termination. (D.'s Motion, #48, Ex. 23.)
Over the next week, Warnes communicated with MetLife compliance analyst Doris Cole
to determine whether MetLife would designate McCormick ineligible for rehire. (D.'s Motion,

Warnes reported that McCormick paced in the back of the room, huffing and puffing,
and eventually stOlmed out, slamming the door behind him.
S

McCOlmick had, in fact, achieved the top agent designation for 2008. (McCormick
Dep., at 170.)
9

Page 8 - OPINION AND ORDER

#48, Ex. 203); (Warnes Dec!.,

~18).

MetLife policy requires that any time a company within the

MetLife enterprise, like New England, terminates an agent, a form must be filled out designating
whether the agent is eligible for rehire, inespective of whether the agent has applied for ajob
elsewhere in the company. (Cole Dec!.,

~3.)

On January 21, 2009, McLung recommended to

Warnes that McCormick be deemed ineligible for rehire and on January 23,2009, Cole
confirmed that she and MetLife counsel Warren had recommended that designation. (D.'s
Motion, #48, Exs. 203, 204). Apparently, this decision was made by an upper level HR manager,
Nam Patel, based on "comments shared" by McLung and Wanen. (P. 's Resp., #54, Ex. 29.) On
Janumy 28,2009, Warnes had her assistant fax the form designating McCormick as ineligible for
rehire to MetLife. (D.'s Motion, #48, Ex. 205.)
Even after learning that Warnes had tenninated McCormick, MetLife manager Cederberg
remained interested in rehiring McCormick. (Cederberg Dec!., ~9.) On Janumy 29,2009,
Cederberg started the process of trying to rehire McCormick, following MetLife's procedures for
rehires, one of which requires MetLife to seek information from the applicant's former managers
concerning the applicant's performance history and the reasons for separation. (Cederberg Dec!.,
~12)

(D. 's Motion, #48, Ex. 56.) The same day, Cederberg's supervisor Robin Lewis-Oglesby

called Warnes and learned "about his behavior." (D. 's Motion, #48, Ex. 208.) In a short
conversation, Warnes told Lewis-Ogelsby that she and McCormick had communication issues
and that McCormick exhibited unprofessional behavior to underwriters and staff, but did not
mention any specific names or incidents. (Warnes Dep., at 251-253.) Warnes responded to
Lewis-Oglesby's questions about why McCormick was terminated because Lewis-Oglesby was
"part of our company" and also considered to be Warnes' superior in the corporate hierarchy.
Page 9 - OPINION AND ORDER

(Warnes Dep., at 288.)
On January 30, 2009, Cederberg described the timing of McCormick's termination as
"suspect at best" and initiated a dialogue with Patel urging her to designate McCormick as
eligible for rehire. (D.'s Motion, #48, Ex. 207.) Patel told Cederberg that she had spoken with
McClung and Warren briefly and learned that they had "concerns" about McConnick, but
Cederberg pushed back, stating that Warnes "had a history of trying to hatm good people." ld
The next day, Februaty I, 2009, Cederberg wrote Patel and Lewis-Oglesby a long email detailing
a prior experience where Warnes tried to "ruin the career" of another representative who
requested a transfer. (P.'s Resp., #54, Ex. 29.) In response, Patel acknowledged that she
previously declined to allow McCOlmick to be rehired, but wanted to "discuss and revisit" the
issue in light of Cederberg's perspective. ld To that end, Patel convened a conference call on
Februaty 2,2009, with Cederberg, McClung, and WalTen. (Cederberg Decl., ~14.)
During the call, McClung and WalTen conveyed their impression of McCo=ick, gleaned
from interviews with Warnes and others. They said McCormick had an "explosive anger
problem, that he disrespected people in the office, that many of the people in the office were
afraid of [sic1their safety." (Cederberg Dep., at 59.) They also assured Cederberg that Warnes
decision to terminate McCOlmick was not in retaliation for his announcing his intention to leave,
but declined to share more details because of the confidential nature of the tennination. ld. at 59,
62. Patel told Cederberg that McCormick would not fit into the culture of Cederberg's office.

ld at 63. The three "strongly advised" Cederberg against rehiring McCormick and Cederberg
trusted their recommendation. ld Based on what he heard in the conference call, Cederberg
decided not to pursue rehiring McCOlmick. (Cederberg Dec!., ~16); (D.'s Motion, #48, Ex. 30.)
Page 10 - OPINION AND ORDER

LEGAL STANDARDS
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter oflaw." Fed.R.Civ.P.56(c). Summmy judgment is not proper if material factual issues
exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242,248 (1986); Warren v. City o/Carlsbad, 58 FJd 439,441 (9th Cir.
1995), cert. denied, 516 U.S. 1171 (1996). In evaluating a motion for summmy judgment, the

district courts of the United States must draw all reasonable inferences in favor of the nonmoving
party, and may neither make credibility determinations nor perform any weighing of the
evidence. See, e.g., Lytle v. Household 2vlfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). The substantive law governing a

claim or defense determines whether a fact is material. T. W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The court must view the inferences drawn

from the facts "in the light most favorable to the nonmoving party." Id. (citation omitted).

DISCUSSION
I.

Motions for Partial Summary Judgment
Based on defendants' alleged failure to promote him to the Specialist position,

McCormick asserts claims for breach of contract and fraud. McCormick also alleges a tortious
interference with business relationship claim based on defendants' alleged interference with his
attempt to apply for a position at MetLife after he was terminated by New England. Defendants
move for summary judgment only against McCOlmick's fraud and tortious interference claims.
Page 11 - OPINION AND ORDER

1.

Fraud

Defendants argue that McCormick cannot establish scienter, a necessary element of
common law fraud, because there is no evidence that Wames intended to deceive McCormick
when she allegedly promised to promote him to Specialist. To the contrary, defendants argue
that Wames changed her mind about promoting McCormick only after he exhibited a volatile
temper in late 2008. By contrast, McCormick contends that the court can infer Wames' initial
deceptive intent from her evasive behavior and lack of concem with McCOlmick's enatic
behavior. Overall, I agree with McCormick that even under the stringent proof standard for

scienter in Oregon fraud claims, he establishes a genuine issue of material fact on that element.
The elements of a claim for fraud under Oregon law are: "(1) a representation; (2) its
falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5)
his intent that it should be acted on by the person and in the manner reasonably contemplated; (6)
the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and
(9) his consequent and proximate injury." Webb v. Clark, 274 Or. 387, 391, 546 P.2d 1078

(1976); Johnsen v. }vIel-Ken ll;Jotors, 134 Or. App, 81, 89, 894 P.2d 540 (1995). A plaintiff must
establish each element of fraud by clear and convincing evidence. Riley Hill Gen. Contractor,

Inc. v. Tandy Corp., 303 01'.390,392,737 P.2d 595, 597 (1987) (en banc). The cOUli must
apply this standard when evaluating a motion for summary judgment on a fraud claim. See

Araujo v. Gen. Elec. Info. Servs., 82 F. Supp. 2d 1161, 1170 (D. Or. 2000)(citingAndersonv.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
To establish a defendant's fraudulent intent regarding a promise to act in the future, a
plaintiff must do more than show the eventual breach of that promise. Webb v. Clark, 274 Or.
Page 12 - OPINION AND ORDER

387,393 n. 2, 546 P.2d 1078 (1976) ("Fraud can never be predicated upon a promise to do
something in the future unless it is alleged and proven that, at the time of the making of the
promise, there was no present intention of pelformance or, altematively, that the promise was
made with reckless disregard as to whether the promissor could or could not perform. ");

Conzelmann v. Nw. Poultry & Dairy Prods. Co., 190 Or. 332, 352, 225 P.2d 757(1950) ("A
fraudulent intent not to perform a promise may not be inferred as existing at the time the promise
is made from the mere fact ofnonperfOimance."). Rather, a plaintiff must show "[oJther
circumstances of a substantial character . . . in addition to nonperformance before such
inference of wrongful intent may be drawn." Conzelmann, 190 Or. at 352. Because of the
plaintiffs burden to present clear and convincing evidence offraud, "[tJhe Courts will not
presume fraud when the transaction is equally susceptible to two explanations, one which is
consistent with fraudulent intent and the other with good faith and fair dealing." S. Seattle Auto

Auction Inc. v. W Cas. & Sur. Co., 41 Or. App. 707, 714,598 P.2d 1269 (1979) (citing Hurford
v. Harned, 6 Or. 362, 365 (1877)). In determining whether the circumstances compel an
inference of fraudulent intent, cOUlis consider the "totality" of defendants' conduct. Id. at 714.
Here, assuming factual disputes are resolved in McCOImick's favor, a reasonable jury
could find by clear and convincing evidence that Wames did not intend to promote McCormick
in January 2009 if he became the top producer. That is, although two plausible explanations can
be drawn from the facts assumed to be true on this motion, the inference offraudulent intent is
the more plausible, albeit only slightly.
On the one hand, the record plausibly suggests that Wames used the promise of the
Specialist position to appease McCormick initially without actually intending to award
Page 13 - OPINION AND ORDER

McConnick that position if he became the top producer in 2008. First, Wames resisted putting
anything in writing about the Specialist position, and even when McCOImick insisted, she
penned an ambiguous phrase on the Specialist job description, suggesting that she would
"review" McCOImick for the position in 2009. Moreover, both Wames' note to "review" him in
J anUal,), 2009 and her alleged promise to promote him then if he was the top producer conflict
with her general policy of waiting one year before hiring agents to the Specialist position.
Finally, Wames told McCOImick that he would have to trust her about the Specialist position,
even though she did not condone such informality regarding the other aspects of McCormick's
job offer, which were spelled out in his offer letter. All of this arises in the context ofWames
seeking to finalize her recruitment of McCormick, following a series of conversations over
several weeks where McConnick resisted officially committing to his position with New
England until Wames promised him a chance to become Specialist.
Additionally, several factors undercut Wames' proffered explanation for her later
decision not to promote McCormick. Wames did not speak to McCormick directly about his
anger or communication issues as they arose in December 2008, did not document any of her
calls discussing these issues with McClung, did not initiate any disciplinm')' action against
McCOImick, and did not cite his temper as a basis for withdrawing the promised promotion or
telminating McCOImick. Further, there is no evidence in the record documenting Wames'
concem that McCormick was not mentoring other agents, the other supposed justification for her
refusal to promote him.
Finally, Wames' shifting stances on promoting McCOImick provides additional
circumstantial evidence of her fraudulent intent. Initially, according to McCOImick's account,

Page 14 - OPINION AND ORDER

Wames wrote that she would "review" him for the Specialist position in six months, but orally
promised that she would promote him then ifhe became top producer. Next, Wames stated that
she would review McCormick for the position in a year, not six months. 10 Ultimately, Warnes
refused to consider McCormick for the promotion completely. In conjunction, the above facts
constitute "circumstances of a substantial character" other than Wames' non-perfonnance
sufficient for a jury to find the presence of scienter.
Of course, the record also plausibly suppolis the inference that Warnes initially intended
to promote McCormick ifhe became the top producer, but backed away from that promise
because ofMcCOlmick's behavior problems. Wames was in communication with her HR
representative in early January concerning McCormick's conduct. Some others in the office
shared her apprehension about McCormick's outbursts. And before McCormick's incidents in
the office, Warnes did not completely foreclose the possibility of promoting him; only after his
strained interactions with Laws and Torello did Wames tell McConnick definitively that he
would not receive the promotion. This inference, however, is somewhat less plausible, especially
because of Warnes' shifting explanations, first extending the timeline for McCormick's
promotion, and then denying it altogether.
Moreover, the cases relied upon by defendants not compel a different conclusion. First,
Araujo Armijo v. Gen. Elec. Info. Servs., 82 F. Supp. 2d 1161 (D. Or. 2000) involved a plaintiff

10 Since Warnes made this announcement sometime in early December 2008 and
McCormick had his first major clash with office staff on December 12, 2008, the record leaves
open the possibility that Warnes started backing away from promoting McCOlmick before the
beginning of the e11'atic conduct she now cites as the basis for her decision not to promote
McCormick.

Page 15 - OPINION AND ORDER

who interviewed for a job and whose future manager allegedly promised that he would be
considered for a regional manager position when it became vacant. 82 F.Supp. at 1170-1171.
Plaintiff took the job, but his manager did not allow him to compete for the promotion. Id On
summary judgment, plaintiff "contended" that he had established scienter because his manager
knew at the time of his interview that she could not promise plaintiff would be considered for the
regional manager position, since selection of that position occurred at the corporate level. Id at
1170. The Court ultimately detelmined that plaintiff had not shown clear and convincing
evidence of scienter because plaintiff admitted in deposition that he had no evidence his manager
or other individuals knew her representations were false when she made them. Id at 1171.
Because it is unclear from the Court's opinion whether plaintiff produced any evidence- as
opposed to mere argument- conceming the corporate selection of the regional manager position,
Aruajo only teaches that plaintiff provides insufficient evidence of scienter when he presents no
concrete evidence suggesting fraudulent intention at the time of a representation. This is an
unsurprising result. See, e.g., Commc'ns Group, Inc. v. GTE lvlobilnet oj Or. , 127 Or. App. 121,
127,871 P.2d 502 (1994) ("We are unaware of any evidence, and plaintiffs have directed us to
none, from which a reasonable trier of fact could conclude that defendants promised to offer
plaintiffs a contract, but never intended to perform the promise. ")
Second, defendants rely on Pelletier v. Pelletier, 29 Or. App. 717, 565 P.2d 388, 390
(1977), a domestic relations matter where the trial court granted ex-wife an order rescinding a
contract with her ex-husband purpOliing to release him from outstanding child suppOli payments,
based on the allegation that the release had been obtained fraudulently. Id. at 719-720. The ex-

Page 16 - OPINION AND ORDER

wife testified that she signed the release in reliance upon her ex-husband's promise that he would
pay her own debts of$2,000 and buy her an automobile. The Court of Appeals addressed the exhusband's argument that the record did not contain sufficient evidence to establish the husband's
fraudulent intent. Id. at 720-721. There, the Court observed that the only evidence conceivably
giving rise to an inference of fraudulent intent was ex-husband's testimony that he was not
capable of perfonning his promise at the time he made the promise. Id. at 721. The Court
concluded, without fmiher explanation, that "[t]aken alone that testimony is not sufficient to
satisfy wife's burden of establishing the requisite mental element by 'clear and convincing'
evidence." Id. Defendants speculate that the Court recognized the husband may well have
intended to fulfill his promise by earning sufficient funds at a later date. Here, however, the issue
is not whether defendant had sufficient ability to make good on her promise when it was made or
even at a later time, as it was in Pelletier. Rather, plaintiff seems to admit that even though
Warnes could have promoted him as promised, the evidence suggested that she never intended to
do so. Moreover, in Pelletier, the husband's testimony concerning his financial situation at the
time of the promise was the only evidence from which to infer fraudulent intent; here, there is
much more circumstantial evidence of Warnes' behavior around the time she made the promise
and when she broke it. Thus, I find Pelletier does not resolve the crucial issue in this case- what
quantum of circumstantial evidence is necessary to conclude that a reasonable jury could infer
defendant never intended to carry out a promise from the outset, despite having the capacity to do
so.
Plaintiff relies on Elizaga v. Kaiser Found. Hasps., Inc., 259 Or. 542, 487 P.2d 870,

Page 17 - OPINION AND ORDER

(1971) (en banc), a case which is more applicable to the present situation. There, the trial court
held the defendant hospital liable for fraudulently inducing the plaintiff, a surgeon in the
Philippines, to come to work for it by promising him a preceptorship that would permit him to
become licensed in America. Id. at 544. In reliance on that promise, plaintiff moved his family
to Oregon from the Philippines. Id. At the time it offered plaintiff the position, the hospital
knew, or had reason to know, that the Board of Medical Examiners would probably not allow it
to continue the preceptorship program, since the Board had granted a final extension to the
program after declaring the program was to be tenninated. Id. at 576. Indeed, the Board failed to
reauthorize the preceptorship and the hospital rescinded plaintiffs job offer. Id. The Court of
Appeals noted that defendant failed to disclose to plaintiffthat the preceptorship program would
probably end before plaintiff was due to begin work and persisted in that non-disclosure even
after leaming that plaintiff planned to come to Portland early in reliance on the job offer. Id. at
548. The Court held that a jury could decide that the hospital's misrepresentation produced by
the non-disclosure was done "in reckless disregard of the fact plaintiff was being misled." Id.
Plaintiff implies that this case and Elizaga are analogous because, in both, defendant
failed to disclose that a necessary pre-condition for plaintiff obtaining the desired position would
not occur. There, the hospital failed to reveal that the state Board would not renew the
preceptorship program, and here, Wames did not disclose that McCormick would not have been
with New England long enough in January 2009 to be eligible for the Specialist position
according to her policy. Defendant seeks to diminish the import ofWames' policy, suggesting
that it was, at best, a non-binding guideline that did not restrict her ability to promote an agent

Page 18 - OPINION AND ORDER

earlier, if circumstances warranted. However, the degree to which Warnes' own policy limited
her freedom to make certain employment decisions is an umesolved factual issue and I therefore
agree with plaintiff that the Court's reasoning in Elizaga is persuasive. For the purposes of this
motion, Warnes' failure to tell McCormick of her personal policy not to promote agents to
Specialist unless they had worked a year could allow a reasonable jUly to conclude that Warnes'
made her promise to McCormick in reckless disregard of the fact that he was being misled. See

Elizaga, 259 Or. at 548.
Admittedly, the present facts fall a bit short of those in some other Oregon cases not cited
by the patties where courts found the existence of evidence from which a jury could have
infe11'ed defendant never intended to keep a promise, despite having the capacity to do so. See

Donald H Hartvig, Inc. v. Clackamas Town Ctr. Assocs., 101 Or. App. 79, 84-85, 789 P.2d 679
(1990) (sufficient evidence of fraudulent intent existed when jUly could have found that
defendant shopping mall owner told children's store owner the mall's leasing plan called for only
one children's store in the mall to induce him to sign a lease, despite knowing the plan was
flexible and the mall management actually intended for there to be more than one children's
store); Hocks v. Hocks, 95 Or. App. 40, 44-45, 767 P.2d 1369 (1989) (sufficient evidence of
fraudulent intent existed where father frequently promised son an interest in the family business
if son worked at a low salaty and repeated that sentiment to others, yet simultaneously executed
two wills to the contraty, because father's unqualified assurances to son were knowingly false
and made to keep the son working for him). Nevertheless, these cases have the same flavor as
the present situation, involving a promise that is exaggerated to induce reliance and undercut by

Page 19 - OPINION AND ORDER

other unfavorable but undisclosed facts. Finally, the fact that Wames stood to gain from her
arguably fraudulent representation by securing McCormick's employment and his best efforts as
an insurance salesman in 2008 also bolster the strength of the evidence of fraudulent intent here.

Cf Commc'ns Group,

Inc. v. GTE lv/obi/net ojOr., 127 Or. App. 121,127,871 P.2d 502 (1994)

(observing that plaintiffs inability to show how defendants would benefit from fraud is
"notewOlihy" in detelmining whether a jury could find fraudulent intent.) Accordingly, summary
judgment on McCormick's fraud claim is denied.

B.

Intentional Interference

By contrast, defendants' summalY judgment motion on McCormick's intentional
interference 11 claim is well -taken because McCormick cannot establish the element requiring
defendants to be a third party to the prospective employment relationship between McCormick
md MetLife.
To prevail on a claim of intentional interference with economic relations, a plaintiff must
establish: 1) the existence of a valid prospective

01'

existing contract or business relationship; 2)

intentional interference with that relationship; 3) by a third paliy; 4) accomplished through
improper means or for an improper purpose; 5) a causal effect between the interference and the
hann to the relationship

01'

contract; and 6) damages. }vfcGanly v. Staudenral/s, 321 Or. 532,

535,901 P.2d 841 (1995) (en banc) (citations omitted). It is axiomatic that a plaintiff cannot
establish the third element if the alleged interferer is itself a pmiy to the prospective relationship.

11 Oregon cOUlis often refer to this claim as "intentional interference with economic
relations," but the parties describe it as tortious intelference with a business relationship. I use
the formulation fi'equently adopted by Oregon courts.

Page 20 - OPINION AND ORDER

}.lcGanty, 32101'. at 537 ("in addressing the third-party element ofthe tort, this COUlt has stated
the general principle that a party to a contract cannot be liable for interference with that
contract."). Indeed, "[t]he tort [of intentional interference with economic relations] serves as a
means of protecting contracting pmties against interference in their contracts from outside
pmties." Id. at 536 (emphasis in original); see also Wampler v. Palmerton, 250 Or. 65, 77, 439
P.2d 601 (1968) ("the interest protected by [this tort] is the interest of the plaintiff in not having
his [economic relationship] interfered with by intermeddling strangers") (emphasis added).
Here, plaintiff essentially concedes that summary judgment on this claim should be
granted as to both MetLife and Wames. Plaintiff admits that MetLife was the other pmty in
McCormick's prospective employment relationship. Moreover, plaintiff admits that Warnes
acted only within the scope of her employment with New England and therefore, as a matter of
law, she is not an independent entity from New England. See AIcGanty, 321 at 538. Thus, the
only remaining question for the COUlt to resolve is whether New England, a wholly owned
subsidiary of MetLife, is a "third pmty" to the prospective economic relationship between
McCormick and MetLife.
Whether a parent corporation and its wholly owned subsidiary can be third parties
capable of interfering in each others' economic relationships is an open question of Oregon law.

See Mentor Graphics Corp. v. Akar Armagan Ahnet, No. 98-811-AS, 1999 U.S. Dist. LEXIS
6051 (D. Or. Mar. 9, 1999). In Banaitis, the most recent Oregon case on the subject, plaintiff
was a vice president of BanCal, a company acquired by MBL, a Japanese financial institution.

Banaitis v. i.litsubishi Bank Ltd., 129 Or. App. 371, 373, 879 P.2d 1288 (1994). MBL acquired

Page 21 - OPINION AND ORDER

13 percent of BanCal stock directly and also acquired a holding company that held the rest of
BanCal's stock. Id After an MBL employee who was sent to manage BanCal falsely accused
plaintiff of misconduct and accelerated his voluntary departure from the company, depriving him
of pension benefits, plaintiff brought a claim for intentional interference with business relations
against MBL. Id at 374-375. The trial court denied defendants motion for a directed verdict on
the claim and the jury found for plaintiff. Id at 375. MBL appealed, arguing that because it
owned BanCal, it was effectively a party to the employment contract between plaintiff and
BanCal and therefore could not be liable for intentional interference between plaintiff and itself.

Id at 382. MBL apparently relied upon a disavowed and tersely reasoned Georgia district court
case, lviorast v. Lance, 631 F.Supp. 474 (N.D. Ga 1986), holding that a bank could not be
considered a third party when it allegedly interfered in the employment of the president of the
bank's wholly owned subsidiary, since the subsidiary was alleged to be directly controlled by the
bank's board of directors. Id at 383. The Oregon Court of Appeals expressly declined to decide
whether to adopt the rule from the Georgia decision because it was inapplicable in Banaitis,
where the evidence did not establish as a matter of law that MBL directly controlled BanCal. Id
The Court observed that MBL owned only 13 percent of BanCal stock and there was no
conclusive evidence on whether MBL controlled BanCal through its holding company; indeed,
MBL and BanCal testified that MBL did not control BanCal either directly or indirectly.
In ]yientor Graphics, Judge Askmanskas recognized the lack of dispositive Oregon law on
this issue and observed that other state courts were split on the topic, ultimately avoiding
articulating a governing rule by addressing the issue on procedural grounds. 1999 U.S. Dist.

Page 22 - OPINION AND ORDER

LEXIS 6051, at *8-9. There, Mentor Graphics and it's Singapore subsidiary brought a suit for a
declaratory judgment that the defendant, their employee, had been lawfully terminated. Plaintiffs
later moved to dismiss defendant's counterclaim of intentional interference with economic
relations. Without adopting a rule from any of the conflicting authority in various states, the
Court simply noted that the relationship between Mentor and its subsidimy "has yet to be fully
developed to determine how closely [Mentor and its subsidiary] are interconnected and whether
they share common economic interests," and denied their motion to dismiss. Id.
Given the lack of decisive Oregon case law, I make a reasonable detelmination about how
the Oregon Supreme Court would resolve this issue. See Aetna Casualty &Surety Co. v. Sheft,
989 F.2d 1105, 1108 (9th Cir. 1992). I am persuaded by defendants' very thorough analysis,
(D. 's Motion, #48, at 28-34), positing that the Oregon Supreme Court would also endorse a fact-

specific analysis and characterize a wholly owned subsidimy as a party - rather than a third
party- to the economic relationships of its parent company so long as the parent actually
controlled the activities of the subsidimy such that they acted as a single enterprise. This
approach is consistent with Banaitis and J\;ientor Graphics, each of which elevated the practical
analysis of control over a fOlmalistic analysis of ownership. See Bcmaitis, 129 Or.App. at 383
("Ownership of stock, by itself, is insufficient to establish actual control of a corporation.")
Here, plaintiff presents insufficient evidence to create a genuine question offact
conceming whether New England was independent from MetLife. Although the two are separate
legal entities organized under the laws of different states, all other evidence suggests MetLife
completely controlled New England in addition to owning it fOlmally. In handling McCormick's

Page 23 - OPINION AND ORDER

termination, Warnes sought assistance from MetLife-employed HR and legal staff. Warnes
followed MetLife policies in detelmining whether to designate McCOlmick as eligible for rehire
and defelTed to a MetLife HR manager's designation. When McCOlmick sought a position with
MetLife, both MetLife managers and Warnes treated McCOlmick as an internal re-hire, following
appropriate MetLife policies specific to such situations. Warnes answered questions about
McConnick's performance and termination posed by a MetLife manager as required under those
policies and because she perceived the MetLife manager to be her corporate superior. At the
broader corporate level, Warnes' manager was a vice president of sales who oversaw several
MetLife and New England agencies, and the top manager of New England's sales force reported
to a MetLife executive. (Foxen Decl., ~~2-5.) Moreover, in late 2009, MetLife closed the New
England agency in Portland fonneriy managed by Warnes and merged its remaining agents and
staff into the MetLife agency managed by Cederberg. Id at ~6. This overwhelming,
uncontradicted evidence demonstrates that New England and MetLife are part of the same
enterprise and that New England, as a matter of law, cannot be a third party to McConnick's
prospective employment relationship with MetLife. On this basis alone, summary judgment
must be granted for defendants.
Moreover, even if New England was a third party to the prospective relationship,
plaintiffs claim would still fail because Warnes (acting on behalf of New England) did not
directly interfere with McCormick's rehire effort. Instead, all her communications regarding
McCormick, except for her required phone conversation with MetLife manager Lewis-Oglesby,
occulTed in the context of her efforts to have McCormick tenninated, not to prevent his rehire.

Page 24 - OPINION AND ORDER

Plaintiff argues that Warnes intentionally interfered because MetLife HR and legal staff used the
knowledge they gained from her in assisting with McCormick's telmination to recommend
against his rehire. That argument simply demonstrates that the weakness of the nexus between
Warnes' alleged improper means and her interference. See Douglas ivied. Ctr., LLC v. iViercy

ivied. Ctr., 203 Or. App. 619, 636,125 P.3d 1281 (2006) (requiring "a direct connection between
the 'interference' and the 'improper means. "'). In the course of a proper termination, Warnes
provided MetLife with evidence about McCOlmick that MetLife later used, on its own accord, to
recommend against McCormick's rehire. Defendants' motion for summmy judgment on
McCOlmick's intentional interference with economic relations claim is therefore denied.

II.

Motion in Limine
Defendants also move for an in limine ruling capping potential damages on McCOlmick's

breach of contract claim. Specifically, defendants ask the court to rule that even assuming
defendants breached Warnes' promise to promote McCOlmick to the Specialist position,
McCOlmick's employment relationship with New England was strictly at-will, and therefore, his
potential damages are limited to the Specialist salmy he would have received up to the date of his
termination as a New England agent, but not beyond, amounting to $2,250.
McCormick does not now dispute that his insurance agent position was initially at-will.
Indeed, all the documents he signed- his application, GDC contract, and offer letter- clearly
indicate the at-will nature of his position. Plaintiffs arguments to overcome that at-will status
pertain to the Specialist position, and Warnes' promise regarding that position alone. I stmi from
the assumption that unless McCormick had an employment contract for the Specialist position

Page 25 - OPINION AND ORDER

specifying a fixed telm, it is presumed to be telminable at-will. See, e.g., Campbell v. Ford
Indus., Inc., 274 Or. 243, 249, 546 P.2d 141(1976).

Defendants first argue Wames never promised McCormick the Specialist position for a
fixed term. At most, defendants say, Wames promised McCormick that the Specialist position
would be reviewed annually, which creates only a contingent right to yearly reviews without
disturbing the at-will nature of the employment relationship. McCormick concurs that Wames
never explicitly offered him guaranteed employment as a Specialist for at least a year. He argues,
however, that such a guarantee must result as a matter of law because Wames' statement that
McCormick would be reviewed annually after achieving the Specialist position was tantamount
to a guarantee that the position would last at least one year and would be telminated thereafter
only for just cause. I disagree.
Under Oregon law, an employment contract promising some future action only confers a
contingent right to that benefit without disturbing the at-will nature of the employment
relationship. See Porter v. DBA, Inc., 180 Or. App. 207, 212, 42 P.3d 931,934 (2002) (rejecting
argument that employment contract providing for vesting of stock options at 18 months of
employment provided employee a fixed term of employment for 18 months, since even if
evidence extrinsic to the contract was considered, none indicated any negotiations for a fixed
telm); State ex reI. Roberts v. Pub. Fin. Co., 294 Or. 713,718-19,662 P.2d 330 (1983) (rejecting
argument that employee telminated before working one full year was still owed vacation pay
which vested on his anniversary, because employer's duty to grant vacation pay only arose if
employee remained employed, observing that employee "is attempting to change this at will

Page 26 - OPINION AND ORDER

contract into a one year employment contract.")
Similarly, an employer's reference to long-term employment or regularly recurring
benefits, like payment of annual bonuses, does not transform an at-will employment relationship
into one terminable only for cause. See Wooton v. Viking Distrib. Co., 136 Or. App. 56,60-61,

899 P.2d 1219 (1995) ("That plaintiff could remain in defendants' employ until retirement was,
like all at-will employment, dependent on whether 'all went well and if evelyone was pleased.'
Moreover, the provision by an employer of a retirement plan does not, as plaintiff suggests,
reasonably create the expectation that the employer promises a job to its employee until
retirement. Nor does the provision of annual bonuses, a profit -sharing plan or periodic praise
imply that a long-term contract has been formed. To conclude otherwise would vhiually destroy
the at-will employment doctrine or, conversely, force employers to eliminate many valuable
forms of compensation."). Finally, other courts outside of Oregon addressing exactly the issue
raised by McCormick have recognized that an employer's promise of recU1Ting yearly reviews
does not create a contract for employment for a fixed term. See, e.g., Sharf! v. Pioneer Fin.

Serv., Inc., No. 92 C 20034,1993 WL 87718, at *7 (N.D. Ill. Mar. 22,1993) ("A promise of
annual performance review does not transfOlID a contract terminable at will to one promising
10ng-tetID employment.").
Plaintiff seems to argue, without suppOliing authority, that Warnes' assurance of annual
reviews, and her promise of the Specialist position as a whole, is "ambiguous" or "illusory" if it
does not create an entitlement to a fixed tenll of employment. I disagree. Even accepting as true
that Warnes promised MCCOlIDick the Specialist position, to be reviewed annually, the resulting

Page 27 - OPINION AND ORDER

employment contract is not ambiguous, given the overriding presumption that all employment is
at-will. Fut1her, the promise is not illusory. Even without a promise of guaranteed employment,
plaintiff would have received something of value, namely, the oppOltunity to eam a higher salary
and commissions as a Specialist, so long as he retained that position. Accordingly, I find that
Wames' alleged promise to review McCormick for the Specialist position annually, ifhe eamed
the position in January 2009, did not affect the at-will nature of McCormick's employment with
New England.
Defendants also argue that, even assuming Wames orally promised McCormick the
Specialist position for a fixed telm, she lacked the actual or apparent authority to bind New
England with that promise. Defendants note that McCOlmick's ODC agent contract prohibits
change, waiver, or modification of the right to terminate at-will unless such a change is
memorialized in writing, signed by the Managing Partner (Wames) and a Senior Officer of New
England, and specifically designated as an amendment to the relevant provision of the ODC
agent contract. (D.'s Motion, #58, Ex. 7, at 6) (§26(b)). It is undisputed that there is no such
wl'iting attesting that McCormick's agent position was no longer at-will. Moreover, defendants
point to McCOlmick's admission that his allegedly promised Specialist position was
supplemental to and inextricably interconnected with his agent position, such that if he was
teTminated from his agent position, he could not remain in the Specialist position by itself.
(McCOlmick Dep., at 139-140.) Thus, defendants conclude that since McCormick's agent
position remained at-will, his Specialist position did as well. Defendants also contend that since
other general-purpose employment documents McCOlmick received explicitly described all

Page 28 - OPINION AND ORDER

employment at New England as terminable at-Will, Warnes' alleged promise of a fixed-term
Specialist position cannot abrogate these at-will disclaimers. I find that common law agency
principles suppOli defendants' position.
The Oregon Supreme COUli has stated: "For a principal to be bound by an agent's action,
the principal must take some affilmative step, either to grant the agent authority or to create the
appearance of authority. An agent's actions, standing alone and without some action by the
principal, cannot create authority to bind the principal." Taylor v. Ramsay-Gerding Constr. Co.,
345 Or. 403, 410, 196 P.3d 532 (Or. 2008) (en banc). It is clear, based on the GDC agent
contract, that Warnes lacked actual authority to orally modify the at-will status of McCOImick's
agent position. Similarly, there is no evidence whatsoever that New England affirmatively
granted Warnes the power to decouple the Specialist position from the agent position, such that
the agent position remained at-will while the Specialist position was for a fixed term of one year.
This leaves apparent authority as the only possible basis for Warnes' alleged oral promise to bind
New England.
Discussing the role of apparent authority in the employment context, the Ninth Circuit
explained that "[u]nder Oregon law, an employer may be held liable for contracts made by its
agent, if the employer has by words or conduct led third parties to believe that the agent has
authority and the third party actually believes the agent is authorized on the basis of the
employer's statements or conduct." Koepping v. Tri-County }vietro. Transp. Dist. of Or., 120
F.3d 998,1003 (9th Cir. 1997) (citing Filter v. City of Vernonia, 64 Or.App. 559, 563, 669 P.2d
350 (1983) and Wiggins v. Barrell & Assoc., Inc., 295 Or. 679, 669 P.2d 1132, 1144 (1983)).

Page 29 - OPINION AND ORDER

Thus, the question here is whether New England's words or conduct led McConnick to actually
believe that Warnes was authorized to orally modify his at-will status employment status in order
to guarantee him the Specialist position for a year. Although the issue of an agent's apparent
authority to bind its principal is a nonnally a question of fact for the jury, the court may decide it
as a matter of law where only one reasonable conclusion can be drawn from the facts. See

Stanfield v. Laccoarce, 284 Or. 651, 655, 588 P.2d 1271 (1978).
Here, only one reasonable conclusion can be taken from the facts: Warnes had no
apparent authority to offer McCormick any employment for a fixed term. The record suggests
that New England gave Warnes the actual authority to negotiate with agents, generally set the
terms of their employment, make offers of employment, and the like. Thus, one might be
tempted to presume that by giving Warnes actual authority to make certain hiring decisions, New
England also created apparent authority for Warnes to transfolm an agent's at-will employment
into employment for a fixed term. See Taylor, 345 Or. at 411 ("when a principal clothes an agent
with actual authority to perfOlm certain tasks, the principal might create apparent authority to
perform other, related tasks."). Yet the language of McCormick's GDC agent contract precludes
such an inference. McCormick is assumed to have read his employment contract, which he
signed. That contract unambiguously states that the right to terminate at-will can only be
modified by a writing signed by Wames and a New England Senior Officer. By including this
requirement into the agent contract, New England took an affilmative step to clarify the limits of
Warnes' authority to change the at-will status of employees.
Tfthe record included any evidence whatsoever casting doubt on New England's

Page 30 - OPINION AND ORDER

commitment to this limitation, I would be more inclined to leave this question to the jury. But I
find none. No New England corporate officer suggested Wames had this power. Wmnes never
represented that she had received approval from New England to give McCOlmick a fixed-telm
position, nor did she imply she would seek such approval in the future. No other agents
purported that Wames promised to modifY their at-will positions in a similar fashion. In sum, the
at-will disclaimer and no-oral-modification clause in McCormick's ODC agent contract
conclusively prevent New England from being bound by Wames' alleged promise to McCOlmick
of employment for a fixed telm.
I therefore grants defendants' motion in limine seeking a ruling that McCormick's
relationship with New England was at-will and that his breach of contract damages are capped at
$2,500, the Specialist salmy McCormick would have received from Janumy 2008 until his
termination on Februmy 14,2009.

II
II
II
II
II
II
II
II
II

Page 31 - OPINION AND ORDER

CONCLUSION

For the reasons stated above, defendants' motions for partial summary judgment on
McCOlmick's fraud and tortious interference claims (#48) is granted as to the intentional
interference claim but denied as to the fraud claim, while defendants' motion in limine
concerning McCormick's breach of contract damages (#58) is granted.
IT IS SO ORDERED.
Dated this

Gfd~ of May, 2012.

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'onorable Paul Papak
United States Magistrate Judge

Page 32 - OPINION AND ORDER

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