Opinion
Civil No. 04-6326-TC.
November 18, 2004
ORDER
Plaintiff brings this action against his former employer after he was terminated for violating the former employer's sexual harassment policy. Plaintiff asserts claims for breach of contract, promissory estoppel, negligence and defamation. Jurisdiction is based on diversity of citizenship.
Presently before the court is defendant's motion (#3) to dismiss the negligence and defamation claims.
STANDARDS
Pursuant to Fed.R.Civ.P. 12(b), a claim may be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989) (quotingConley v. Gibson, 355 U.S. 41, 45-46 (1957)). In making this determination, this Court accepts all allegations of material fact as true and construes the allegations in the light most favorable to the nonmoving party. Id.DISCUSSION
NegligencePlaintiff alleges that defendant was negligent in terminating plaintiff without thoroughly and carefully investigating the harassment charges against him. Defendant correctly contends that there is no Title VII liability for a negligent investigation, but plaintiff's claim is for negligence under state law. As set forth in Vice v. Conoco, Inc., 150 F.3d 1286, 1292 (10th Cir. 1998), the majority of state jurisdictions which have considered whether to impose liability for negligence in the context of employment terminations have declined to do so. However, Oregon has not addressed the issue and plaintiff has cited two federal court cases applying Oregon law that appear to indicate that the claim is not necessarily precluded. See Rice v. Comtrek Manufacturing of Oregon, Inc., 766 F. Supp. 1544, 1549 (D. Or. 1990); Burnett v. Ross Stores, Inc., 857 F. Supp. 1434, 1440 (D. Or. 1994). Unlike some of the cases defendant has cited, the present action includes allegations that could possibly implicate plaintiff's ability to show that defendant had a duty to investigate thoroughly based on a contract or a relationship. Plaintiff asserts certain provisions of defendant's employee handbook in his breach of contract and other claims and Paragraph 11 of the Complaint alleges that "[t]hroughout plaintiff's employment [defendant] intended that plaintiff would remain employed with [defendant] and would not be terminated provided his performance was satisfactory and provided he complied with the [defendant's] employment policies." Exh. B attached to Notice of Removal (#1).
Accepting all allegations of material fact as true and construing the allegations in the light most favorable to the nonmoving party, it does not appear beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. It may well be that the claim is dismissed at a later stage or that ultimately the matter needs to be certified to the Oregon Supreme Court, but at this point in the proceedings this part of the negligence claim remains. Defamation
Plaintiff also alleges that defendant was negligent in failing to provide plaintiff with a harassment free workplace and in failing to provide plaintiff equal treatment and equal employment opportunities. Defendant contends that plaintiff does not and cannot adequately assert these claims and that plaintiff is really just reasserting his negligent investigation claim. Plaintiff has not disputed this contention. As such, these parts of the negligence claim are dismissed. Similarly, plaintiff does not dispute defendant's persuasive argument that the part of plaintiff's negligence claim based on defamation cannot be brought as negligence and this part of the negligence claim is dismissed.
Plaintiff alleges that subsequent to his termination he applied for employment with various employers and he felt compelled to disclose that he had been terminated by defendant for violating the company's sexual harassment policy and that he received no further contact from those employers. In a case where plaintiff alleged she was compelled to disclose the contents of a letter from her former employer to prospective employers, Judge King refused to recognize the common law tort of compelled publication after he determined that the Oregon Supreme Court would not recognize the tort if faced with the question today. Volm v. Legacy Health System, Inc., 237 F. Supp. 2d 1166, 1179 (D. Or. 2002). This court agrees with Judge King's conclusion and this claim is dismissed.
CONCLUSION
Defendant's motion (#3) to dismiss is allowed to the extent three parts of the negligence claim and the defamation claim are dismissed. The part of the negligence claim based on the investigation remains at this time.