Eisenman v. National Associates, Inc., NW
Filing
31
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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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
________________________________
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15
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Alex Golubitsky
CASE DUSTERHOFF LLP
9800 SW Beaverton-Hillsdale Hwy
Suite 200
Beaverton, OR 97005
18
Attorney for Plaintiff
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20
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22
23
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Tanith L. Balaban
Christopher E. Hawk
GORDON & REES LLP
121 SW Morrison Street
Suite 1575
Portland, OR 97204
Attorneys for Defendant
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26
27
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1 - 10-774 MEMORANDUM OPINION AND ORDER
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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