Javansalehi v. BF & Associates, Inc. et al
Filing
35
OPINION & ORDER: Defendants' Motion for Partial Summary Judgment 19 is Granted in Part and Denied in Part, and Plaintiff's fourth through tenth enumerated causes of action are Dismissed. Signed on 10/31/11 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LESLIE JAV ANSALEHI,
Plaintiff,
3: 1O-CV -850-PK
OPINION AND
ORDER
v.
BF & ASSOCIATES, INC., BABAK
FALLAZADEH, and MOHAMMEDREZALOTFI,
Defendants.
PAPAK, Magistrate Judge:
Plaintiff Leslie Javansalehi (OIJavansaheli Ol ) filed this action against BF & Associates, Inc.,
Costco Wholesale Corporation, Babak Fallazadeh, and Mohammed-Reza Lotti on July 20, 2010.
Javansalehi voluntarily dismissed Costco as a defendant on September 7, 2010.
BF & Associates, doing business as Atlas Imports, employed lavansalehi as a sales
representative at a Hillsboro, Oregon, retail location from approximately Janumy 10, 2009,
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through May 26,2009. Javansalehi's husband, Abad Javansalehi ("Abad") was also an employee
ofBF & Associates ("Atlas"), as was her son (and Ahad's stepson) Josh Sumrell. Fallazadeh is
(and at all material times was) the principal and owner/manager of Atlas, and Lotfi is (and at all
material times was) an employee of Atlas. By and through her complaint, Javansalehi brings
eleven separate causes of action arising out of the tennination of her employment by Atlas and
out of the tenns and conditions of her employment prior to her tennination. Specifically,
J avansalehi alleges Atlas~ liability for wrongful discharge in violation of Oregon common law,
Atlas' and Fallazadeh's liability for failure to pay overtime in violation of the federal Fair Labor
Standards Act (29 U.S.c. § 216(b», failure to pay Javansalehi final wages due and owing
following the termination of her employment within the time specified for doing so under Or.
Rev. Stat. 652.140(1), 'retaliation for complaining about wage discrimination in violation of Or.
Rev. Stat. 652.355, retaliation in response to whistle-blowing activity in violation of Or. Rev.
Stat. 659A.199, family relationship discrimination in violation of Or. Rev. Stat. 659A.309, and
retaliation for opposing unlawful practices in violation of Or. Rev. Stat. 559A.030(1)(f), Atlas',
Fallazadeh's, and Lotfi's liability for aiding and abetting discrimination and/or retaliation in
violation of 659A.030(1 )(g), intentional interference with prospective economic relations while
acting within the scope of their employment duties and/or as Javansalehi's employer,> and
, At oral argument on the motion now before the court, the parties indicated that they
have settled Javansalehi's claim under Or. Rev. Stat. 652.140(1).
2 At oral argument on the motion now before the court, counsel for Javansalehi indicated
that Javansalehi has abandoned her claim for intentional interference with prospective economic
relations in its entirety.
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defamation/ and Fallazadeh's and Lotfi's liability for intentional interference with existing
economic relations while acting outside the scope of their employment duties. 4 This court has
federal question jurisdiction over Javansalehi's FLSA overtime claim pursuant to 28 D,S.C. §
1331, and supplemental jurisdiction over her state-law claims pursuant to 28 D.S.C. § 1367.
Now before the court is defendants' motion (#19) for patiial summary judgment as to nine
of Javansalehi's eleven claims. By and through their motion, defendants seek summaty
adjudication of Javansalehi's three retaliation claims (brought under Or. Rev. Stat. 652.355,
659A.199, and 659A.030(1)(f)), family relationship discrimination claim (brought under Or.
Rev. Stat. 659A.309), aiding and abetting claim (brought under Or. Rev. Stat. 659A.030(1)(g)),
common-law wrongful discharge claim, two common-law intentional interference claims, and
common-law defamation claim. I have considered the motions, all of the pleadings on file, and
oral argument on behalf of the patiies. For the reasons set forth below, defendants' motion is
granted in part and denied in part as discussed below.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions" answers to
intelTogatories, 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 patiy is entitled to a judgment as a
matter oflaw." Fed. R. Civ. P. 56(c). Summaty judgment is not proper if material factual issues
3 At oral argument on the motion now before the court, counsel for Javansalehi indicated
that Javansalehi has abandoned her claim for defamation to the extent alleged against Atlas and
Fallazadeh.
At oral argument on the motion now before the COUti, counsel for Javansalehi indicated
that J avansalehi has abandoned her claim for intentional interference with existing economic
relations to the extent alleged against Fallazadeh.
4
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exist for trial. See, e.g., Celolex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.
1995), cert. denied, 116 S.Ct. 1261 (1996). In evaluating a motion for summaty judgment, the
district comls 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 Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
FACTUAL BACKGROUND'
Atlas is in the business of selling handmade imp011ed rugs at retail. A significant portion
of Atlas' business is conducted in stores located within retail establishments operated by former
defendant Costco. Atlas' Hillsboro location, where Javansalehi was employed, is such a store.
In September 2007, Atlas hired Ahad, Javansalehi's husband, as the sales manager at
Atlas' Hillsboro location. "Sales manager" was, according to Fallazadeh's testimony, the
"highest-ranking employee" position in that location at that time. Shortly thereafter, Atlas hired
Lotfi and Sumrell (Javansalehi's son) to work under Ahad in the Hillsboro location.
In or around December 2008 or January 2009, Atlas moved Sumrell from his position in
the Hillsboro location to a "roadshow" position, which required him to travel to Costco locations
lacking a permanent Atlas presence and to spend one to two weeks selling rugs out of each such
location. Effective approximately Januaty 10,2009, Atlas hired Javansalehi to fill the sales
position left vacant by Sumrell's depatlure from the Hillsboro location. Defendants offer
, Except where otherwise indicated, the following recitation constitutes my construal of
the evidentiary record in light of the legal standard governing motions for summaty judgment
under Federal Civil Procedure Rule 56.
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Fallazadeh's uncontrovelied testimony that Fallazadeh was aware of Javansalehi's marital
relationship to Ahad at the time he made the decision to hire her. Atlas initially required
Javansalehi to work six days per week at the Hillsboro location, at a monthly salary of $4,000.
Defendants offer Fallazadeh's testimony that, shortly after Javansalehi's hire, he began to
suspect that Javansalehi and Ahad were colluding to reduce the number of hours each spent
working in the Hillsboro location, while drawing pay from Atlas as though each were working
the full number of hours Atlas required. Fallazadeh emphasizes that, because Atlas' business
model assumed a low volume of high-profit sales, it was essential that salespeople be ready and
available at all times to serve customers on those relatively infrequent occasions when customers
entered the store. Fallazadeh testifies that Atlas' delivery employees would repOli the
Javansalehis' unanticipated absence from the store when deliveries were made, and that when
Fallazadeh would call Ahad's mobile phone to ask questions about inventOly, Ahad would
frequently claim to be unable to answer the question because he was serving a customer, and
would only call back to respond 30 to 45 minutes later (that is, after the lapse of sufficient time to
pelmit travel to the Hillsboro store). Defendants take the position that Ahad's proffered
explanation for the need to call back is inherently implausible, in that a salesman generally will
not take a phone call while serving a customer, but rather will usually wait until the customer has
been served before taking or retuming calls.
On a weekend day some time in the first three months of2009, Fallazadeh made a
"surprise visit" to the Hillsboro location, and found that Ahad was absent despite being scheduled
to work. Javansalehi called Ahad and advised him that Fallazadeh was in the store. While
Fallazadeh waited for Ahad to retum, Fallazadeh observed Javansalehi serving customers.
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Defendants offer Fallazadeh's testimony that his observation of Javansalehi's sales methods
established that she was not a "qualified" salesperson and that she was "bad" at selling rugs.
Some time thereafter, Fallazadeh asked Lotfi to "keep an eye on the Javansalehis' attendance"
and to report to him if they continued to miss work.
According to Fallazadeh's testimony, it was Atlas' practice to offer health insurance to
those of its employees employed on a full-time basis, after they had worked for the company for
three months. In or around April 2009, after Javansalehi had been working for Atlas for
approximately three months, Javansalehi complained to Ahad that Atlas was not providing her
with health benefits. Ahad subsequently brought the complaint to Ahad's attention. According
to Fallazadeh's testimony, Fallazadeh had at that time already made a decision to reduce
Javansalehi's work schedule to four days pel' week - making her ineligible for health insurance
benefits - but had not yet either implemented the decision or communicated it to Javansalehi. It
appears undisputed that Fallazadeh so advised Ahad at that time. Atlas subsequently reduced
J avansalehi's work schedule to four days per week, and declined to provide her with health
insurance benefits.
At some unspecified time during the tenure of Javansalehi's employment by Atlas,
Javansalehi had a discussion with Lotfi regarding the fact that Lotfi (like Javansalehi) was not
paid overtime. Javansalehi told Lotfi that his pay stubs constituted evidence that Atlas was
violating federal wage and hour law by failing to pay Lotfi overtime. Javansalehi subsequently
reported having had that conversation with Lotfi to her husband, Ahad, and to no other person.
Ahad wamed Javansalehi not to press the matter fut1her and not to tell anyone else that the
conversation had taken place. Neither Ahad nor Lotfi reported the conversation to any other
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person, and Fallazadeh did not learn that the conversation had taken place until after this action
had been filed.
In late May 2009, Lotfi reported to Fallazadeh that the Javansalehis were both absent
from the workplace despite being scheduled to work. Lotfi further advised Fallazadeh at that
same time of his opinion that Javansalehi was a poor salesperson. At or around that time,
Fallazadeh made the decision to telminate both Javansalehis' employment. It appears undisputed
that the last day either of the Javansalehis worked for Atlas was May 26,2009.
It is undisputed that neither Javansalehi nor Ahad filed any complaint or grievance with
any state or federal agency regarding terms or conditions of employment at Atlas prior to the date
this action was initiated: It is fmiher undisputed that Atlas continues to employ Sumrell, and
that Sumrell was employed as acting manager of the Hillsboro location for a period of time
following Javansalehi's and Ahad's telminations.
ANALYSIS
Javansalehi's claims, in the order in which they are enumerated in Javansalehi's
complaint, are as follows:
(1)
failure to pay oveliime in violation of29 U.S.C. § 216(b) (alleged against
Atlas and Fallazadeh);
(2)
failure to make timely payment of final wages in violation of Or. Rev.
Stat. 652.140(1) (alleged against Atlas and Fallazadeh; at oral argument
the pmiies reported that they have settled this claim);
(3)
retaliation for complaining about wage discrimination in violation of Or.
Rev. Stat. 652.355 (alleged against Atlas alld Fallazadeh);
Ahad filed an action in state comi against the defendants in this action at approximately
the same time that Javansalehi filed this action in state court. The pmiies have advised the court
that Ahad's state-court action is pending at this time.
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(4)
retaliation in response to whistle-blowing activity in violation of Or. Rev.
Stat. 659A.l99 (alleged against Atlas and Fallazadeh);
(5)
family relationship discrimination in violation of Or. Rev. Stat. 659A.309
(alleged against Atlas and Fallazadeh);
(6)
retaliation for opposing unlawful practices in violation of Or. Rev. Stat.
659A.030(1)(f) (alleged against Atlas and Fallazadeh);
(7)
aiding and abetting discrimination andlor retaliation in violation of
659A.030(1)(g) (originally alleged against Atlas, Fallazadeh, and Lotfi; the
pm1ies report that Javansalehi has voluntarily withdrawn the claim to the
extent alleged against Atlas and Fallazadeh);
(8)
common-law wrongful discharge (alleged against Atlas only);
(9)
intentional interference with prospective economic relations while acting
within the scope of their employment duties andlor as Javansalehi's
employer (alleged against Atlas, Fallazadeh, and Lotfi; at oral argument,
Javansalehi advised the court that she has voluntarily withdrawn this
claim);
(10)
intentional interference with existing economic relations while acting
outside the scope of their employment duties (originally alleged against
Fallazadeh and Lotfi; the parties report that Javansalehi has voluntm'ily
withdrawn this claim to the extent alleged against Fallazadeh); and
(11)
defamation (originally alleged against Atlas, Fallazadeh, and Lotfi; the
parties report that Javansalehi has voluntarily withdrawn this claim to the
extent alleged against Atlas and Fallazadeh).
As noted above, defendants now move for summmy judgment as to Javansalehi's third through
eleventh enumerated causes of action only.
I.
Javansalehi's Third Cause of Action (Wage-Claim Retaliation)
Oregon law provides that employers may not discharge or otherwise discriminate against
employees for, among other things, making a wage claim (wage-claim retaliation):
(1)
An employer may not discharge 01' in any other manner discriminate
against an employee because:
Page 8 - OPINION AND ORDER
(a)
(b)
The employee has caused to be instituted any proceedings under or
related to ORS 652.310 to 652.414.
(c)
(2)
The employee has made a wage claim or discussed, inquired about
or consulted an attomey or agency about a wage claim.
The employee has testified or is about to testify in any such
proceedings.
A violation ofthis section is an unlawful employment practice under ORS
chapter 659A. A person unlawfully discriminated against under this
section may file a complaint under ORS 659A.820 with the Commissioner
of the Bureau of Labor and Industries.
Or. Rev. Stat. 652.355. The Oregon Court of Appeals has noted that Or. Rev. Stat. 652.320(7)
defines a wage claim for purposes of Section 355 as "an employee's claim against an employer
for compensation for the employee's own personal services ... ," including a claim for "wages,
compensation, damages or civil penalties provided by law to employees in connection with a
claim for unpaid wages." Perri v. Certified Languages In!'l, LLC, 187 Or. App. 76, 88-89
(2003), quoting Or. Rev. Stat. 652.320(7). The Perri court went on to specify that:
"Compensation" means "payment for value received or service rendered."
Webster's Third New Int'l Dictionmy 463 (unabridged ed 1993) (emphasis added).
That definition, which employs a past tense verb, suggests that compensation
is payment for work prcviously performed. That interpretation of the term
"compensation" also is consistent with the second clause of the subsection. Under
that clause, in addition to "wages" and "compensation," a claimant may recover
damages and civil penalties. He or she may do so, however, only "in connection
with a claim for unpaid wages." (Emphasis added.) Thus, although the second
clause of ORS 652.320([7]) permits recovelY of mnounts that are not themselves
compensation for work, to the extent that those amounts are available in the
context of a wage claim, the use of the past tense ("unpaid wages") again indicates
that the wagecIaim must pertain to work previously performed.
Id. at 89 (bolded emphasis supplied; footnote omitted).
In her complaint, Javansalehi premised her claim for wage-claim retaliation solely on her
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conversation with Lotfi regarding Lotfi's entitlement to overtime compensation and Atlas' failure
to pay such compensation to Lotfi. As defendants argue in their moving papers, Javansalehi's
statements to Lotfi cannot have constituted protected activity under Section 355, because the
subject of those statements was compensation due to Lotfi for his services to Atlas, and not
compensation due to Javansalehi for her "own personal services." Id. at 88. As a clear matter of
Oregon law, Javansalehi's cause of action for wage-claim retaliation therefore cannot survive
summaty judgment to the extent premised on Javansalehi's conversation with Lotfi. See id. at
88-89.
In opposition to defendants' patlial summaty judgment motion, Javansalehi for the first
time adopted the position that her cause of action for wage-claim retaliation is premised, not on
her conversation with Lotfi, but rather on her complaint to Ahad, subsequently conveyed to
Fallazadeh by Ahad, regarding Atlas' failure to provide Javansalehi with health insurance
benefits," a factual predicate not referenced in any manner in Javansalehi's pleading. Defendants
argue that the court should decline to consider Javansalehi's newly articulated factual predicate,
citing Coleman v. Quaker Oats, 232 F.3d 1271, 1291-1293 (9th Cir. 2000) for the proposition
that a plaintiff will not ordinarily be permitted to escape summary judgment by adducing a new
and un-pled theOlY ofliability in opposition to a dispositive motion.
Javansalehi assells that, at the time defendants contacted her to comply with their
obligation under Local Rule 7-1 (a) to meet and confer with her regarding their partial summaty
judgment motion, she advised defendants of her intention to proceed with her three retaliation
claims on the theOlY that all three claims were premised on Ahad's conversation with Fallazadeh
regarding Javansalehi's entitlement to health insurance benefits. Indeed, Javansalehi purpolls to
assign error to defendants' purpOlled "failure" to address the newly asselled factual basis of her
claims in their moving papers. Javansalehi provides no explanation for her own failure to amend
her pleading during the discovelY phase ofthese proceedings to conform to her revised position
regat·ding the factual predicate of her retaliation claims'.
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I agree with the defendants both that Coleman stands for the stated proposition and that
Javansalehi was dilatory in failing to seek leave to amend her pleading to conform to her new
understanding of the fachml predicate underlying her claim at or prior to the close of discovery,
butT disagree with the defendants that, under Coleman, I am required to exclude from
consideration Javansalehi's newly espoused theory of her case. The Coleman court was
confronted with a plaintiff who pled a discrimination claim premised on a theOlY of disparate
treatment, and subsequently opposed summmy judgment by adducing evidence tending to
support a claim premised on disparate impact, a wholly novel legal theOlY ofliability. See id.
Here, Javansalehi's newly articulated "theOly" is not, as in Coleman, a novel theOlY of liability,
but rather a novel factual predicate tending to support the same legal theOlY of defendants'
liability as was pled in her complaint. The courts of the Ninth Circuit treat novel, un-pled factual
predicates markedly differently from novel legal theories. For example, in William Inglis & Sons
Baking Co. v. Itt Con!'1 Baking Co., 668 F.2d 1014 (9th Cir. 1981), the Ninth Circuit affirmed the
decision of the district court below to consider evidence and argument constituting a novel, unpled factual predicate underlying the plaintiffs conspiracy claim adduced for the first time in
opposition to summary judgment. See William Inglis, 668 F.2d at 1052-1054. In reaching that
holding, the court noted that "[t]he district court could have considered [the plaintiffs opposition
papers] as a motion to amend the [plaintiffs pleading] to add an additional conspiracy claim
pursuant to Fed.R.Civ.P. 15(a)." Id. at 1053, n. 70.
Amendments for the purpose of adding new claims are clearly permitted by Rule
15 and may be introduced and considered during the pendency of a motion for
summary judgment. 6 Moore's Federal Practice P56.l0 (2d ed. 1976). "Indeed at
times it will be feasible to treat the pleading as though it were amended to
conform to the facts set f0l1h in the affidavits." Id. at 56-171.
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Motions to amend the pleadings "out of time" are addressed to the discretion of
the court, but "leave shall be freely given when justice so requires." Fed.R.Civ.P.
15(a). See Jacobson v. Rose, 592 F.2d 515, 519 (9th Cir. 1978), cert. denied, 442
U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979). Although several factors may be
relevant in determining whether leave to amend should be granted, see Foman V.
Davis, 371 U.S. 178, 182,83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the most important
is whether amendment would result in undue prejudice to the opposing party,
Howey v. United States, 481 F.2d 1187, 1190 (9th Cil'. 1973).
Id The court noted that the William Inglis defendant had thoroughly explored the un-pled factual
predicate in discovery and that amendment of the plaintiffs pleading to state a claim based on
that predicate would not have prejudiced the defendant. See id at 1053-1054. On that basis, the
court held that the district court's consideration ofthe claim as though premised on the un-pled
factual predicate had been proper. See id. at 1054.
Moreover, Federal Civil Procedure Rule ·15(b) makes clear that the parties may amend
their pleadings not merely at the summmy judgment stage of proceedings but even during the
course of trial:
If, at trial, a party objects that evidence is not within the issues raised in the
pleadings, the court may pelmit the pleadings to be amended. The comi should
freely pelmit an amendment when doing so will aid in presenting the merits and
the objecting party fails to satisfY the court that the evidence would prejudice that
pmiy's action or defense on the merits. The court may grant a continuance to
enable the objecting pmiy to meet the evidence.
Fed. R. Civ. P. 15(b)(1). Prior to trial, as noted by the William Inglis court, where the time for
amendment as of right is passed, the courts "should freely give leave [to amend a party's
pleading] when justice so requires." Fed. R. Civ. P. 15(a)(2). Whether justice so requires is left
to the discretion of the district courts, "which may deny leave to amend due to 'undue delay, bad
faith or dilatOlY motive on the pmi of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing pmiy by virtue of allowance of
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the amendment, [and] futility of amendment.''' Leadsinger, Inc. v. BMG Music Publg, 512 FJd
522,532 (9th Cir. 2008), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). "While all these
factors are relevant, the crucial factor is the resulting prejudice to the opposing patiy." Howey v.
United States, 481 F.2d 1187, 1190 (9th Cir. 1973). Moreover, it is clear that "[t]he mere fact
that an amendment is offered late in the case is ... not enough to bar it." Id. at 1191, nJ.
I am persuaded that, here, justice will be better served by pelmitting Javansalehi to
present the soundest available factual basis for her retaliation claims, including her cause of
action for wage-claim retaliation, before the merits of her claims are decided, so long as
defendants have made no showing that to permit the amendment would cause them undue
prejudice or that Javansalehi's dilatOlY conduct was the product of bad faith. Because defendants
have made no such showing, I construe Javansalehi's pleading as if appropriately amended to set
fOlih, as the factual basis underlying her cause of action for wage-claim retaliation, her complaint
to Ahad regarding Atlas' failure to provide her with health benefits (and Ahad's subsequent
conversation with Fallazadeh regarding Javansalehi's complaint). In light of that construal, I find
that it is appropriate to consider Javansalehi's newly espoused theOlY of her case in resolving the
defendants' motion.
Defendants argue that, in the event the court elects to consider lavansalehi's wage-claim
retaliation cause of action as though premised on the newly atiiculated factual predicate, the
cause of action must nevertheless fail as a matter oflaw because to constitute protected activity
under Section 355, a wage claim must be made in connection with compensation for "work
previously performed" rather than with anticipated compensation, Perri, 187 Or. App. at 89, and
here the subject of Javansalehi's complaint was (purpOliedly) not an accrued entitlement to health
Page 13 - OPINION AND ORDER
insurance benefits but rather the date upon which such entitlement would accrue in the future. I
note that, although defendants have offered evidence suggesting the truth of their position that
Ahad's inquity to Fallazadeh was forward- rather than backward-looking, Javansalehi has offered
her declaration that her complaint, and Ahad's subsequent conversation with Fallazadeh, took
place after she had already worked for Atlas for the three-month period requisite to entitlement to
health insurance benefits.s Because this disputed question of fact is material to lavansalehi's
cause of action for wage-claim retaliation, defendants are not entitled to summmy judgment as a
matter oflaw in connection with lavansalehi's third enumerated cause of action.
In light of lavansalehi's failure to provide defendants with notice of her newly developed
theOlY of the case prior to the close of discovelY, the parties m'e advised that I will consider
favorably any defense motion to re-open discovelY, to extend some or all case deadlines
(including the date for which trial has been set), or to renew defendants' motion for summary
adjudication of lavansalehi's cause of action for wage-claim retaliation.
8 I disagree with the defendants' argument that lavansalehi's declaration constitutes a
"sham affidavit" by virtue of contradicting her own prior swom deposition testimony. See Van
Asdale v. Inf'l Game Tech., 577 F.3d 989,998 (9th Cir. 2009). While it is true that lavansalehi
testified in deposition that her conduct that caused Fallazadeh's alleged retaliation was her
conversation with Lotfi regarding his entitlement to oveliime compensation, and that she did not
know of anything else that might have caused the retaliation, such testimony does not clearly
contradict her subsequent declaration that the retaliation was caused by her complaint, conveyed
to Fallazadeh through Ahad, regarding her own entitlement to health insurance benefits. The
inconsistency between the two positions can be readily explained by postulating that, at the time
of her deposition, lavansalehi failed to recall Ahad's conversation with Fallazadeh or failed to
consider that Ahad's conversation might have triggered a retaliatOlY response. Moreover, it
appem's undisputed that the subject conversation took place, although there is a dispute as to
when it did so, suggesting that invocation of the sham affidavit rule would be inappropriate here.
See id. at 998-999.
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II.
Javansalehi's Fourth Cause of Action (Whistle-Blower Retaliation)
Under Oregon law, employers are prohibited from discharging or otherwise
discriminating against employees for repoliing the employers' unlawful conduct (whistle-blower
retaliation):
(1)
It is an unlawful employment practice for an employer to discharge,
demote, suspend or in any manner discriminate or retaliate against an
employee with regard to promotion, compensation or other terms,
conditions or privileges of employment for the reason that the employee
has in good faith reported infOlmation that the employee believes is
evidence of a violation of a state or federal law, rule or regulation.
(2)
The remedies provided by this chapter are in addition to any common law
remedy or other remedy that may be available to an employee for the
conduct constituting a violation of this section.
Or. Rev. Stat. 659A.l99.
As was the case in connection with Javansalehi's third cause of action (for wage-claim
retaliation), Javansalehi pled her cause of action for whistle-blower retaliation as solely premised
on her conversation with Lotti regarding Lotti's entitlement to oveliime compensation. It is
undisputed that Javansalehi did not report Atlas' purpOlied failure to pay Lotti oveliime to any
agency with authority to enforce applicable wage and hour law or to any person employed by
Atlas with authority to modifY or amend the manner of Lotti's compensation. As such, the
conversation cannot have constituted a report of unlawful activity constituting protected conduct
under Section 199. In addition, there is no evidence of record to suggest that Fallazadeh knew
about Javansalehi's discussion with Lotti at the time he caused Atlas to effect Javansalehi's
telmination, and it is clear that a claim for retaliation will not lie where the decisionmaker has no
actual knowledge of the adversely affected employee's protected conduct. It is therefore clear
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that Javansalehi's whistle-blower retaliation claim cannot, as a matter of law, survive summary
judgment to the extent premised on Javansalehi's conversation with Lotfi.
However, also as was the case in connection with Javansalehi's third cause of action, in
opposition to defendants' dispositive motion Javansalehi for the first time espoused the position
that her cause of action for whistle-blower retaliation is premised, not on her conversation with
Lotfi, but rather on her complaint to Ahad, as subsequently conveyed to Fallazadeh by Ahad,
regarding Atlas' failure to provide Javansalehi with health insurance benefits. As discussed
above, in the absence of any showing that appropriate amendment of Javansalehi's pleading
would unduly prejudice the defendants, or that Javansalehi's dilatoriness in failing to amend her
pleading at or prior to the close of discovelY was motivated by bad faith, Javansalehi's newly
adduced evidence and argument may properly be considered in resolving the defendants' motion.
See Fed. R. Civ. P. 15(a)(2); see also, e.g., William Inglis, 668 F.2d at 1052-1054.
Defendants argue that, in the event the court elects to consider J avansalehi's whistleblower retaliation cause of action as though premised on the newly articulated factual predicate,
the cause of action must fail as a matter of law because to constitute protected activity under
Section 199, the employee must have "in good faith reported information that the employee
believes is evidence of a violation of a state or federal law, rule or regulation," Or. Rev. Stat.
659A.199, and here Javansalehi has failed to offer evidence of her good faith beliefthat the
failure to provide her with health benefits was in violation of applicable law. Defendants are
correct: there is nothing in the evidentimy record from which a trier of fact could reasonably
conclude that Javansalehi believed she had a right to health insurance benefits under state or .
federal law. 1n the absence of such evidence, Javansalehi's claim necessm'ily fails to the extent
Page 16 - OPINION AND ORDER
premised on lavansalehi's complaint regarding Atlas' failure to provide her with health insurance
benefits. Moreover, although no Oregon COUtts have yet had occasion to construe Section 199 in
a published opinion, in light of the plain language ofthe statute I find it unlikely that, in enacting
Section 199, the Oregon courts intended to create a cause of action for whistle-blower retaliation
premised on an employee's conduct in making a wage claim directly to the employer. Making a
wage claim is already protected activity under Or. Rev. Stat. 652.355, and it would strain the
plain meaning of the statutory language to interpret a claim of(mtitlement to compensation for
services rendered as a report of "information that the employee believes is evidence of a violation
of a state or federal law, rule or regulation." In any event, 1avansalehi's failure to offer evidence
that her complaint constituted a report of infol1nation she in good faith believed constituted
evidence of an unlawful practice is fatal to her claim to the extent premised on her health
insurance complaint.
At oral argument in connection with lavansalehi's whistle-blower retaliation claim,
counsel for lavansalehi for the first time announced lavansalehi's reliance on a second novel, unpled factual predicate. Counsel asserted that the whistle-blower retaliation claim could be
construed as premised on lavansalehi's complaint to Ahad "that it was not right" that Atlas
should reduce her work schedule from six days to four days per week. Because this last proposed
factual predicate was announced for the first time at oral argument, defendants have had no
opportunity, such as they had in connection with the novel predicate first proposed in
lavansalehi's opposition papers, to offer evidence 01' argument regarding prejudice or bad faith.
Nevertheless, assuming arguendo that, under Federal Civil Procedure Rule 15(a)(2) and William
Inglis, supra, it would be appropriate to permit lavansalehi to go forward with her claim as
Page 17 - OPINION AND ORDER
though premised on her most recently advanced factual predicate, the claim clearly fails as a
matter of law to the extent so premised: there is no evidence of record that Fallazadeh had
knowledge of Javansalehi's complaint regarding the reduction in her hours at the time he
terminated her employment. Although Javansalehi asselis that her claim can survive because
Ahad's knowledge of Javansalehi's complaint must be imputed to Fallazadeh on an agency
theory, it is illogical to posit that Fallazadeh could have been motivated to retaliate against
Javansalehi on the sole basis of imputed knowledge. As discussed above, a claim of retaliation
will not lie in the absence of evidence that the decisionmaker had actual knowledge of the
conduct alleged to have motivated the decisionmaker's decision. Even if Javansalehi were
permitted to go forward on the basis of her second new theory, her claim would therefore fail as a
matter of law on that basis as well.
Because, for the foregoing reasons, Javansalehi cannot as a matter of law prevail on her
claim for whistle-blower retaliation, defendants are entitled to summary judgment in connection
with Javansalehi's foulih enumerated cause of action.
III.
Javansalehi's Fifth Cause of Action (Family-Relationship Discrimination)
Oregon law prohibits employers from discharging or otherwise discriminating against any
employee on the sole basis of that employee's familial relationship to another employee (familyrelationship discrimination):
(1)
Except as provided in subsection (2) of this section, it is an unlawful
employment practice for an employer solely because another member of
an individual's family works or has worked for that employer to:
(a)
Refuse to hire or employ an individual;
(b)
Bar or discharge from employment an individual; or
Page 18 7 OPINION AND ORDER
(c)
(2)
Discriminate against an individual in compensation or in terms,
conditions or privileges of employment.
An employer is not required to hire or employ and is not prohibited from
batTing or discharging an individual if such action:
(a)
(b)
Would constitute a violation of the conditions of eligibility for
receipt by the employer of financial assistance from the
govemment of this state or the United States;
(c)
Would place the individual in a position of exercising supervisory,
appointment or grievance adjustment authority over a member of
the individual's family or in a position of being subject to such
authority which a member of the individual's family exercises; or
(d)
(3)
Would constitute a violation of any law of this state or of the
United States, or any lU1e promulgated pursuant thereto, with
which the employer is required to comply;
Would cause the employer to disregard a bona fide occupational
requirement reasonably necessary to the normal operation of the
employer's business.
As used in this section, "member of an individual's family" means the
wife, husband, son, daughter, mother, father, brother, brother-in-law,
sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law,
father-in-law, aunt, uncle, niece, nephew, stepparent or stepchild of the
individual.
Or. Rev. Stat. 659A.309 (emphasis supplied).
I note that, in her complaint, Javansa1ehi alleged that Lotfi's statement to Fallazadeh that
Javansa1ehi was a poor salesperson was a causal factor in Fallazadeh's decision to terminate her
employment. It is well established that "a statement in a complaint may serve as a judicial
admission." Sicor Ltd v. Cetus Corp., 51 F.3d 848, 859 (9th Cir. 1995), citing American Title
Ins. Co. v.Lacelall' Corp., 861 F.2d 224,226 (9th Cir. 1988). Effectively, then, Javansa1ehi has
judicially admitted that Fallazadeh's decision to telTninate her employment was not "solely"
Page 19 - OPINION AND ORDER
motivated by her familial relationship to Ahad. Moreover, the record contains no evidence that
Fallazadeh harbored any animus against Javansalehi on the basis of her family relationship to
Ahad,." and no evidence disputing Fallazadeh's testimony that he made the decision to terminate
Javansalehi due to his belief that she had been unexcusedly absent from the workplace. to
Defendants are therefore entitled to summary judgment as to Javansalehi's fifth cause of action.
IV.
Javansalehi's Sixth Cause of Action (Unlawful-Practice-Opposition Retaliation)
Oregon law prohibits employers from discharging or otherwise discriminating against any
employee for opposing any unlawful practice (unlawful-practice-opposition retaliation):
Javansalehi's theory that her termination was solely motivated by familial relationship
to Ahad seems in any event highly implausible in light of the undisputed fact that Atlas
continued (and still continues) to employ Ahad's stepson Sumrell following the Javansalehis'
termination, and indeed placed him in charge of the Hillsboro location for a period of time
following his parents' depatture from Atlas' employ. Fallazadeh's continued employment of a
member of Ahad's family suggests, although it does not conclusively establish, that Fallazadeh
was motivated at least in part by some causal factor in addition to Javansalehi's status as a
member of Ahad's family when he decided to effect her telmination.
9
Javansalehi's position is implausible for the additional reason that the same actor,
Fallazadeh, made within a shOlt period time both the decision to hire and the decision to fire
Javansalehi, at all material times with full awareness of her relationship to Ahad. See Coghlan v.
Am. Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) ("where the same actor is
responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur
within a short period of time, a strong inference arises that there was no discriminatOlY action"),
quoting Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-271 (9th Cir. 1996). However, in
light of the possibility that Fallazadeh could have developed an animus against Ahad during the
ShOlt period of time between the two decisions, the same-actor inference is likewise nondispositive here.
Javansalehi argues that evidence of family-relationship animus as a factor motivating
the termination decision may be gleaned from the pUl'POlted fact that Fallazadeh proffers Ahads
absences from work as an explanation for both Javansalehis' telmination. However,
Javansalehi's argument is unpersuasive in that it ignores the gravamen of Fallazadeh's objection
to the Javansalehis' conduct, which was that the Javansalehis were colluding to cover for one
another's absences from the workplace.
to
Page 20 - OPINION AND ORDER
(1)
It is an unlawful employment practice:
***
(f)
For any person to discharge, expel or otherwise discriminate
against any other person because that other person has opposed any
unlawful practice, or because that other person has filed a
complaint, testified or assisted in any proceeding under this chapter
or has attempted to do so.
Or. Rev. Stat. 659A.030(1).
As was the case in connection with Javansalehi's third and fourth causes of action (for
wage-claim retaliation and whistle-blower retaliation), Javansalehi pled her cause of action for
unlawful-practice-opposition retaliation as solely premised on her conversation with Lotfi
regarding Lotfi's entitlement to ovel1ime compensation. It is undisputed that J avansalehi did not
express disapproval of Atlas' purp011ed failure to pay Lotfi overtime to any agency in any manner
to any person with authority to enforce applicable wage and hour law, or to any person employed
by Atlas with authority to modify or amend the manner of Lotfi's compensation, nor did she
cause her purported disapproval of such failure otherwise to come to the attention of any such
person. As such, the conversation cannot have constituted protected opposition to an unlawful
practice under Section 030(1 )(f), and her cause of action for unlawful-practice-opposition
retaliation cannot survive summary judgment to the extent premised thereon.
However, also as was the case in connection with Javansalehi's third and f0U11h causes of
action, in opposition to defendants' dispositive motion Javansalehi for the first time adopted the
position that her cause of action for unlawful-practice-opposition retaliation is premised, not on
her conversation with Lotfi, but rather on her complaint to Ahad regarding Atlas' failure to
provide her with health insurance benefits, and Ahad's subsequent communication of her
Page 21 - OPINION AND ORDER
complaint to FaIIazadeh. As discussed above, in the absence of evidence either that it would
prejudice defendants to permit Javansalehi to proceed on the basis of the novel factual predicate
or that Javansalehi's dilatOlY failure to seek leave to amend her pleading prior to summary
judgment was motivated by bad faith, it is appropriate to consider Javansalehi's newly adduced
evidence and argument in resolving the defendants' motion. See Fed. R. Civ. P. 15(a)(2); see
also, e.g., William Inglis, 668 F.2d at 1052-1054. However, the cause of action still necessarily
fails as a matter of law, because Javansalehi's complaint to her husband cannot be construed as
constituting opposition to an unlawful practice.
Additionally, as was the case in connection with Javansaehi's fourth cause of action, at
oral argument in connection with Javansalehi's cause of action for unlawful-practice-opposition
retaliation, counsel for Javansalehi for the first time announced Javansalehi's reliance on the
novel, un-pled, and un-briefed factual predicate of Javansalehi's complaint to Ahad "that it was
not right" that Atlas should reduce her work schedule from six days to four days per week. As
discussed above, even on the arguendo assumption that, under Federal Civil Procedure Rule
15(a)(2) and William Inglis, supra, it would be appropriate to permit Javansalehi to go forward
with her claim as though premised on her most recently advanced factual predicate, the claim
clearly fails as a matter of law to the extent so premised because there is no evidence of record
that any person brought Javansalehi's purpolied complaint regarding the reduction in her work
schedule to FaIIazadeh's attention, and a retaliation claim will not lie where the person making
the decision to effect allegedly retaliatory action lacked actual knowledge that the alleged
protected activity took place.
Because, for the foregoing reasons, J avansalehi cannot as a matter of law prevail on her
Page 22 - OPINION AND ORDER
claim for unlawful-practice-opposition retaliation, defendants are entitled to summaty judgment
in connection with Javansalehi's sixth enumerated cause of action.
V.
Javansalehi's Seventh Cause of Action (Aiding and Abetting Discrimination or
Retaliation)
Oregon law creates a cause of action against persons who materially aid or abet an
employer in any practice unlawful under Chapter 659A of the Oregon Revised Statutes:
(I)
It is an unlawful employment practice:
***
(g)
For any person, whether an employer or an employee, to aid, abet,
incite, compel or coerce the doing of any of the acts forbidden
under this chapter or to attempt to do so.
Or. Rev. Stat. 659A.030(l). According to the allegations of her complaint, Javansalehi's aiding
and abetting claim is premised on all three defendants' purported role in facilitating the conduct
complained of in Javansalehi's fourth, fifth, and sixth causes of action. However, the parties
have advised the court that Javansalehi has abandoned the claim to the extent alleged against
Atlas and Fallazadeh, and intends to proceed on the claim only to the extent alleged against Lotfi.
Because, for the reasons discussed above, the predicate Chapter 659A discrimination and
retaliation claims cannot survive defendants' dispositive motion as a matter of law, the aiding and
abetting claim necessarily fails as well. There can be no cause of action under Section 030(1)(g)
in the absence of a viable predicate Chapter 659A claim. Moreover, Javansalehi has in any event
offered no evidence that Lotfi engaged in any conduct that could be construed as aiding or
abetting the conduct complained of in Javansalehi's 659A claims. Defendants are therefore
entitled to summaty judgment as to Javansalehi's seventh cause of action.
Page 23 - OPINION AND ORDER
VI.
Jllvansalehi's Eighth Cause of Action (Common-Law Wrongful Discharge)
The tort of wrongful discharge was established in Oregon "to serve as a narrow exception
to the at-will employment doctrine in certain limited circumstances where the courts have
detel1nined that the reasons for the discharge are so contrary to public policy that a remedy is
necessaty in order to deter such conduct." Draper v. Astoria Sch. Dist. No. IC, 995 F. Supp.
1122,1127 (D. Or. 1998), citing Walsh v. Consolo Freightways, Inc., 278 Or. 347, 351-52,
(1977); Sheets
V.
Knight, 308 Or. 220, 230-31, 779 P.2d 1000 (1989). "The elements ofa
wrongful discharge claim are simple: there must be a discharge, and that discharge must be
wrongful." MOllstachetti
V.
Oregon, 319 Or. 319, 325, 877 P.2d 66 (1994). Under Oregon law,
two circumstances lead to wrongful discharge: "(1) discharge for exercising a job-related right of
important public interest, and (2) dischat'ge for complying with a public duty." Draper, 995 F.
Supp. at 1127, citing Sheets, 308 Or. at 230-31). Exatnples of "exercising a job-related right"
include "filing a workers' compensation claim" and "resisting sexual harassment." Id. (citations
omitted). Generally, Oregon courts will not "recognize an additional common law remedy for
wrongful discharge ... if existing remedies adequately protect the employment related right."
Carlson v. Crater Lake Lumber Co., 103 Or. App. 190, 193,796 P.2d 1216 (1990). Here,
Javansalehi expressly brings her wrongful discharge claim on the grounds that she was
terminated for resisting and being subject to family relationship discrimination, and/or for
reporting information Javansalehi believed to be evidence of unlawful activity.
Javansalehi argues that the statutOlY remedies provided for family-relationship
discrimination under Or. Rev. Stat. 659A.309 and for rep0l1ing or opposing unlawful practices
under Or. Rev. Stat. 659A.030(1)(:I) and/or 659A.199 are inadequate because the only remedies
Page 24 - OPINION AND ORDER
available under those statutes are back pay, attomey fees, and injunctive relief, including but not
limited to reinstatement, see Or. Rev. Stat. 659A.885(1). I agree with Javansalehi that, because
Section 885(1) does not authorize award of compensatory damages other than back pay, the
common-law tort of wrongful discharge is not displaced by the statutory causes of action
available under Sections 309, 030(1)(f), and 199. See, e.g., Reddy v. Cascade Gen., Inc., 227 Or.
App. 559, 571 (2009) ("under Oregon law, an available statutory remedy is deemed adequate so
as to displace a plaintiff's common-law wrongful discharge claim only if the statute provides for
such legal as well as equitable remedies as are needed to make the plaintiff whole, including
damages that will compensate the plaintiff for ... personal injmies ... " (citations, intemal
quotation marks, and internal modifications omitted».
Javansalehi's wrongful discharge claim nevertheless fails as a matter of law. To the
extent premised on the theory that Javansalehi was ternlinated for resisting family-relationship
discrimination, the claim fails because Javansalehi has adduced no evidence from which a trier of
fact could reasonably conclude that she engaged in any conduct that could be construed as
resistance to such discrimination. Indeed, the only clear allegation of conduct constituting
family-relationship discrimination in Javansalehi's complaint is her termination itself, and she
can hardly have been terminated for having resisted telmination. Moreover, as noted above,
there is no evidence of record that J avansalehi complained to any person regarding the terms or
conditions of employment at Atlas other than by and through Ahad's conversation with
Fallazadeh regarding Javansalehi's future entitlement to health insmance benefits.
To the extent Javansalehi's wrongful discharge claim is expressly premised on the theory
that she was terminated for being subject to family relationship discrimination, it necessarily fails
Page 25 - OPINION AND ORDER
because being "subject to" unlawful discrimination is cognizable neither as the affilmative
exercise of a "job-related right of important public interest" nor as compliance with a "public
duty." In addition, as noted above, Atlas did not violate Oregon's proscription of familyrelationship discrimination when it effected Javansalehi's termination, as Javansalehi has
judicially admitted.
Finally, the Oregon courts do not recognize a cause of action for common-law wrongful
discharge arising out of termination in retaliation for repol1ing unlawful conduct unless the repOli
is made "to an[] entity or person with authority to take action to enforce the statutory duties that"
the subsequently telminated employee contends were violated. Roberts v. Or. Mut. Ins. Co., 242
Or. App. 474,481 (2011) (citations omitted). As noted above, Javansalehi asserts only that she
"repolted" the failure to pay Lotti oveltime compensation to Lotti himself, who patently lacked
authority to take action to enforce federal labor law, and offers no evidence that she "repol1ed"
any other unlawful conduct to any other person. In consequence, Javansalehi may not state a
claim for wrongful discharge premised on reporting unlawful conduct.
For the foregoing reasons, defendants are entitled to summary judgment as to
Javansalehi's eighth cause of action, for common-law wrongful discharge.
VII.
Javansalehi's Ninth Cause of Action (Intentional Interference with Prospective
Economic Relations)
By and through her ninth enumerated cause of action as stated in her complaint,
J avansalehi alleges all defendants' liability for interference with her prospective economic
relationships with potential employers following the telmination of her employment by Atlas.
However, as noted above, Javansalehi has now advised the COUlt that she does not intend to
Page 26 - OPINION AND ORDER
pursue this claim. I fUliher note that the evidentiary record contains no evidence that any
defendant engaged in any conduct that could be construed as interference with any prospective
employment relationship Javansalehi may have pursued or contemplated. Defendants are
therefore entitled to summmy judgment as to Javansalehi's ninth cause of action.
VIII. Javansalehi's Tenth Cause of Action (Intentional Interference with Existing
Economic Relations)
By and through her tenth enumerated cause of action as stated in her complaint,
Javansalehi alleges Fallazadeh's and Lotti's liability for interference with her existing economic
relationship with Atlas following the termination of her employment by Atlas, such interference
allegedly taking place outside the scope of their employment duties. As noted above, however,
Javansalehi has advised the comi that she does not intend to pursue this claim to the extent
alleged against Fallazadeh. I further note that Javansalehi has offered no evidence from which a
trier of fact could reasonably conclude that Fallazadeh's decision to telminate Javansalehi's
employment was reached outside the scope of Fallazadeh's role as Atlas' principal. I therefore
construe Javansalehi's claim of intentional interference with existing economic relations as
alleged against Lotti only, on the theory that Lotti interfered with her employment relationship
when he expressed his opinion to Fallazadeh that Javansalehi was a poor salesperson.
Javansalehi expressly alleges that Lotti acted outside the scope of his employment duties when
he made the complained-of statement.
Under Oregon law:
To state a claim for intentional interference with economic relations, a plaintiff
must allege: (1) the existence of a professional or business relationship; (2)
intentional interference with that relationship; (3) by a third party; (4)
accomplished through improper means or for an improper purpose; (5) a causal
Page 27 - OPINION AND ORDER
effect between the interference and damage to the economic relations; and (6)
damages.
Northwest Natural Gas Co. v. Chase Gardens, Inc., 328 Or. 487, 498 (1999), citing McGanty v.
Staudenraus, 321 Or. 532, 535 (1995). Moreover, the Oregon courts have specified that
"[d]eliberate interference alone does not give rise to tort liability." Id That is:
a claim [of liability for intentional interference with contractnal or other economic
relations] is made out when interference resulting in injury to another is wrongful
by some measure beyond the fact of the interference itself. Defendant's liability
may arise from improper motives or from the use of improper means. They may
be wrongful by reason of a statute or other regulation, or a recognized rule of
common law, or perhaps an established standard of a trade or profession.
Top Service Body Shop v. Allstate Ins. Co., 283 Or. 201, 209-10 (1973). The Northwest Natural
Gas court similarly held that:
To be entitled to reach a jUly, a plaintiff must not only prove that defendant
intentionally interfered with h[er] business relationship but also that defendant had
a duty of non-interference; i.e., that [it] interfered for an improper purpose rather
than for a legitimate one, or that defendant used improper means which resulted in
injury to plaintiff. Therefore, a case is made out which entitles plaintiffto go to a
jury only when interference resulting in injUly to another is wrongful by some
measure beyond the fact of the interference itself.
Northwest Natural Gas, 328 Or. at 498 (citations, internal quotation marks omitted). The court
fut1her explained that:
II]f liability in tort is to be based on an actor's purpose, then the purpose
must be to inflict injury on the plaintiff" as such." And, ifliability in tort is
based on an actor's means, then the means must violate some objective,
identifiable standard, such as a statnte or other regulation, or a recognized rule of
common law, or, perhaps, an established standard of a trade or profession.
Id (citations omitted; emphasis supplied). Under Oregon law, therefore, a third patty's
interference with another party's economic relations is not improperly motivated when its
purpose is the pursuit ofthe third patty's own interests. See, e.g., Eustel'lnan v. Northwest
Page 28 - OPINION AND ORDER
Permanenle, P.c., 204 Or. App. 224, 238 (2006) ("not improper" for a corporate party's actions
to be motivated to maximize its profits); Top Service, 283 Or. at 212 (not improper for a pmty to
be motivated to pursue its own business purposes "as it saw them").
As to the requirement that the intentional interference be effected by a "third party" to the
employment relationship, the Oregon courts have clearly stated that "when an employee acts
within the scope of employment, that employee is not a third pmty to a contract between the
employer and another for the purpose of the tort of intentional interference with economic
relations." McGanty v. Siaudenraus, 321 Or. 532, 543 (1995).
Three requirements must be met to conclude that an employee was acting within
the scope of employment. These requirements traditionally have been stated as:
(1) whether the act occurred substantially within the time and space limits
authorized by the employment; (2) whether the employee was motivated, at least
pmtially, by a purpose to serve the employer; and (3) whether the act is of a kind
which the employee was hired to perform.
Chesterman v. Barman, 305 01'. 439, 442 (1988) (citations omitted).
Assuming arguendo that Javansalehi can satisfY all other elements of her cause of action,
the intentional interference claim fails as a matter of law because the evidentiary record contains
no evidence from which a trier of fact could reasonably conclude that Lotfi was motivated to
injure Javansalehi "as such," as opposed to being motivated to fmiher either Atlas' interests or his
own. Indeed, it is Javansalehi's position that Lotfi was motivated to discredit her in Fallazadeh's
eyes because he wanted her job. In support of this position, Javansalehi points to Lotfi's own
deposition testimony that he requested a sales job at some time following the termination of
Javansalehi's employment. However, even if this evidence is constmed arguendo as clearly
supporting Javansalehi's conclusion regarding Lotfi's motives, the motive to further his own
Page 29 - OPINION AND ORDER
interests is simply not wrongful for purposes of an intentional interference claim, see Eusterman,
204 Or. App. at 238; Top Service, 283 Or. at 212, and no other evidence of record supports the
conclusion that Lotti was solely motivated to cause Javansalehi injUlY. The only other evidence
of record bearing on Lotti's motives is his own affidavit that he was motivated to make the
complained-of statement "because ... Fallazadeh had asked [him1to be [Fallazadeh's1eyes and
ears in the Hillsboro location" and because Fallazadeh had "asked [him1about [Javansalehi's1
work habits .... " Defendants are therefore entitled to summary judgment as to Javansalehi's
tenth cause of action.
IX.
Javansalehi's Eleventh Cause of Action (Defamation)
Javansalehi originally pled her defamation claim against both Fallazadeh and Lotti, but
has now expressed her intent to abandon the claim to the extent alleged against Fallazadeh. This
is appropriate, because the record contains no evidence that Fallazadeh made any defamatOlY
statement regarding Javansalehi at any material time.
To the extent alleged against Lotti, Javansalehi's defamation claim as set forth in her
complaint appears to be premised solely on Lotti's statement to Fallazadeh that Javansalehi was a
poor salesperson. Defendants identify celtain remarks Lotti is alleged to have made to Sumrell
as additional potential bases for Javansalehi's claim, but as defendants cOlTectly note, Javansalehi
has conceded that her reputation suffered no injUly in consequence of Lotti's statements to
Sumrell, thereby conceding that the statements were non-defamatOlY. In addition, Javansalehi
offers no argument that her claim is premised in any degree on the remarks to SUlme11. I
therefore construe the defamation claim as premised solely on Lotti's statement to Fallazadeh
regarding Javansalehi's work performance.
Page 30 - OPINION AND ORDER
In Oregon, "[t]he elements of a claim for defamation are: (1) the making of a defamatory
statement; (2) publication of the defamatory material; and (3) a resulting special harm, unless the
statement is defamatory per se and therefore gives rise to presumptive special harm." Nat'l
Union Fire Ins. Co. v. Starplex Corp., 220 Or. App. 560, 584 (Or. Ct. App. 2008), citing L&D,
171 Or. App. at 22. "A defamatory statement is one that would subject another to hatred,
contempt or ridicule or tend to diminish the esteem, respect, goodwill or confidence in which the
other is held or to excite adverse, derogatolY or unpleasant feelings or opinions against the
other." Id (intemal quotation marks and modifications omitted), quoting Marleau v. Truck
Insurance Exchange, 333 Or. 82, 94 (2001), quoting Reesman v. Highfill, 327 Or. 597,603
(1998).
"Spoken words, i.e., slander, are actionable per se in Oregon if, among other categories of
statements, they are words tending to injure the plaintiff in his or her profession or business. Id,
quoting Marleau, 333 Or. at 95. "Such words must cast aspersions on the plaintiffs ability to
perforrri essential functions, or must assert that the plaintiff lacks a characteristic necessary to
successful performance of his or her job." Id at 585, citing L&D, 171 Or. App. at 25-26. By
contrast, defamation by written publication, or libel, "is defamatOlY per se" without regard to its
content. Bockv. Zittenfield, 66 Or. App. 97, 101 (Or. Ct. App. 1983), quoting Newton v. Family
Federal Say. & Loan Asso., 48 Or. App. 373, 376 (Or. Ct. App. 1980), citing Hinkle v.
Alexander, 244 Or. 267, 272 (1966).
The Oregon courts recognize that an otherwise defamatOlY statement may be subject to a
privilege exepting its maker Jiom tort liability:
There are two forms of privilege that may apply in a defamation action; a
Page 31 - OPINION AND ORDER
defamatOlY statement may be either "absolutely privileged" or "qualifiedly
privileged." An "absolute privilege" bars a claim for defamation. See Moore v.
West Lawn Mem'l Park, 266 Ore. 244,249,512 P.2d 1344 (1973) ("when
defamatOlY matter is absolutely privileged no cause of action exists"). By
contrast, a "qualified 'privilege'" "does not bar the action, but requires [the]
piaintiff to prove that the defendant" abused the privileged occasion, in order to
recover from the defendant. Bank of Oregon v. Independent News, 298 Ore. 434,
437,693 P.2d 35, cert den 474 U.S. 826, 88 1. Ed. 2d 69,106 S. Ct. 84 (1985).
WaUulis v. DymolVski, 323 Or. 337, 347-348 (1996). The so-called "qualified privilege" applies
to a statement where:
(1) it was made to protect the interests of defendants; (2) it was made to protect
the interests of plaintiffs employer; or (3) it was on a subject of mutual concem to
defendants and the persons to whom the statement was made.
Id. at 350, quoting Wattenburg v. United Medical Lab., 269 Or. 377, 380 (1974). The WaUulis
court expressly recognized that "[a] defamatory work-related statement made by an employee to
that employee's supervisor concerning another employee's work performance falls into either the
second or third categOlY delineated by the COUli in Waftenburg. Such a statement could be made
to protect the interests of the employer, or it could be on a subject -- such as workplace halmony
-- of mutual concem to the defamer and the supervisor to whom the statement was made." Id at
350-351.
To overcome the qualified privilege, a defamation plaintiff must establish that "the
individual making the defamatOlY statement either lacked objectively reasonable grounds for the
statement or did not, in fact, believe the statement to be hue," or that the statement itself "was
uttered for a motive umelated to the purpose of the privilege." kfuresan v. Philadelphia
Romanian Pentecostal Church, 154 Or. App. 465, 472 (1998) (citations omitted).
Here, because Lotfi's statement concemed Javansalehi's job performance, so that damages
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are presumed, and because it is undisputed that the statement was "published" to Fallazadeh,
Javansalehi's defamation claim will survive defendants' dispositive motion unless Lotfi's
statement was subject to the qualified privilege. Javansalehi concedes that the qualified privilege
would ordinarily protect an employee's statements to his employer regarding another employee's
work performance, but argues that the record creates a question of fact as to whether Lotfi's
statement falls outside the scope of the privilege as having been made without any objective
basis, or for a motive unrelated either to Atlas' interests or to Fallazadeh's and Lotifi's shared
employment- and/or workplace-related interests.
In support of her theory that Lotfi lacked any objective basis for making the complained-
of statement, Javansalehi relies solely on the undisputed fact that, at the time he made the
statement regarding Javansalehi's performance as a salesperson, Lotfi was not himself a qualified
salesperson. However, without more, Lotfi's lack of personal experience as a salesperson is not
sufficient to create a question of material fact as to whether he had or lacked an objective basis
for his statement. It is undisputed that Lotfi had daily opportunities to observe Javansalehi
making or failing to make sales to customers, and nothing in the phrase "objectively reasonable
grounds" requires that a speaker be qualified as an expert in the area pronounced upon.
Javansalehi offers no evidence to suggest that her sales performance as observed by Lotfi was
consistently exemplary.
In support of her theory that Lotfi was motivated to make the complained-of statement for
reasons unrelated either to Atlas' interests qua Javansalehi's employer or to Lotfi's and
Fallazadeh's shared interest in Atlas' success, Javansalehi notes that defendants have offered
Lotfi's affidavit that he made the statement "because ... Fallazadeh had asked [him] to be
Page 33 - OPINION AND ORDER
[Fallazadeh's] eyes and ears in the Hillsboro location" and because Fallazadeh had "asked [him]
about [Javansalehi's] work habits.... " Javansalehi argues that a material fact is raised as to the
accuracy ofLotfi's affidavit because, in response to a question whether Fallazadeh had discussed
"other" job performance issues regarding Javanasalehi with Lotfi (that is, issues other than those
Fallazadeh had already acknowledged discussing with Lotfi), Fallazadeh stated "It's not [Lotfi's]
position to tell [Fallazadeh] anybody's job performance .... " Javansalehi fuliher argues that a
material question is raised on the basis of Lotfi's deposition testimony that, at some time after
Javansalehi's termination, Lotfi requested a job in sales. In addition, Javansalehi offers her
declaration testimony that" [a]lmost immediately" after Atlas hired her, she felt that "Lotfi was
displaying animosity towards [her] for taking the sales position."
I agree with Javansalehi that her proffered evidence is sufficient, albeit by a thin margin,
to create a question of fact as to whether Lotfi was motivated to discredit Javansalehi solely selfinterestedly - because he wanted her job - rather than at least in part to promote Atlas' success 01'
to improve operations within the workplace. In consequence, I conclude that there is a material
question of disputed fact as to whether Lotfi so abused the qualified privilege as to remove his
statement from its protections. Defendants are therefore not entitled on the current evidentiary
record to summaty judgment as to Javansalehi's eleventh enumerated cause of action.
CONCLUSION
For the reasons set forth above, defendants' motion (#19) for patiial summaty judgment is
//1
/1/
//1
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granted in part and denied in part, and Javansalehi's fourth through tenth enumerated causes of
action are dismissed.
c
,
Dated this 31st day of October, 2011.
Honorable Paul Papak
United States Magistrate Judge
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