Opinion
Civil No. 03-817-HA.
June 21, 2004
Richard C. Busse, Matthew B. Duckworth, Busse Hunt, Portland, Oregon, Attorneys for Plaintiff.
Corbett Gordon, Joseph Haddad, Fisher Phillips, LLP, Portland, Oregon, Attorneys for Defendant.
OPINION AND ORDER
Plaintiff alleges two claims against defendant: (1) defamation and (2) intentional infliction of emotional distress (IIED). On June 14, 2004, the court heard oral argument on defendant's Motion for Summary Judgment (Doc. #21). For the following reasons, defendant's motion is granted.
FACTUAL BACKGROUND
Plaintiff began working for defendant in September 2001. In November 2002, plaintiff became manager at one of defendant's stores. On November 8, 2002, Candace Camp (Camp), a regional human resources manager for defendant, issued a memorandum regarding defendant's company policies and procedures. The memorandum stated in part that no employee was allowed to work "off the clock." This meant that no employee was permitted to perform unpaid work. Plaintiff signed and returned a copy of the memorandum in acknowledgment and acceptance of defendant's policies.
In December 2002, plaintiff discovered that his assistant manager, Jeffrey Clark (Clark), had not scanned several items that were being purchased by another employee. When plaintiff and Bob York (York), the district manager, confronted Clark and informed him that he would be suspended pending an investigation, Clark allegedly stated, "This is not fair. I've worked my butt off for this company and I even came and worked off the clock." Pl. Dep. at 85:13-18. Plaintiff told York that this was the first time that he had heard of Clark working off the clock. At some point, however, plaintiff advised York that Clark had been present in the store while not "on the clock." Id. at 87:4-13. York told plaintiff to pay Clark for the time Clark claimed he was in the store working. Plaintiff objected, but adjusted Clark's time to reflect fifteen hours of unpaid work to which Clark claimed he was entitled.
York then left a voice-mail message for Camp stating that plaintiff had knowingly allowed Clark to work off the clock. York allegedly stated that plaintiff had admitted that he had allowed Clark to work off the clock. Plaintiff denies making such an admission. Camp copied this voice-mail message to the regional manager, Gary Waschow (Waschow). Camp then consulted with defendant's human resources director, David McDearmon (McDearmon). McDearmon told Camp that plaintiff should be terminated for allowing Clark to work off the clock in violation of defendant's policies.
On December 31, 2002, defendant terminated plaintiff. York informed two company managers, Dennis Voight (Voight) and Bob Sievers (Sievers), that plaintiff was terminated because plaintiff had allegedly allowed an employee to work off the clock.
Plaintiff requested an investigation. Camp consulted with Patricia Doss (Doss), an employee relations manager, and allegedly repeated to Doss what York had told her. Doss requested statements from York, Clark, and Cara Douglass (Douglass), a former manager at the store. Doss upheld defendant's decision to terminate plaintiff.
STANDARDS
Summary judgment is required when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). That burden may be met by showing that there is an absence of evidence to support the nonmoving party's case. Id. at 325. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify facts which show a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Id. at 249.
The court must view the evidence in the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (citation omitted). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Texas Partners v. Conrock Co., 685 F.2d 1116, 1119 (9th Cir. 1982). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Jewel Companies, Inc. v. Pay Less Drug Stores N.W., Inc., 741 F.2d 1555, 1566-67 (9th Cir. 1984). However, if all reasonable inferences are drawn in favor of the non-moving party and the evidence is merely colorable or not significantly probative, summary judgment is appropriate. Anderson, 477 U.S. 242 at 249-50.
DISCUSSION
Plaintiff alleges that defendant defamed him by publishing and republishing to others false and defamatory statements about plaintiff. Specifically, plaintiff alleges he was defamed when defendant told others that plaintiff had knowingly allowed an employee under his supervision to work off the clock in violation of company policies and labor laws. Plaintiff also alleges that defendant's conduct was done intentionally to cause plaintiff to suffer severe emotional distress.
1. Defamation
To state a claim for defamation, the plaintiff must state facts sufficient to establish that the defendant published to a third person a defamatory statement about the plaintiff. Wallulis v. Dymowski, 918 P.2d 755, 758 (Or. 1996). A statement is defamatory if it would subject the plaintiff to hatred, contempt, ridicule, or otherwise tend to diminish the esteem and respect in which the plaintiff is held. Marleau v. Truck Ins. Exch., 37 P.3d 148 (Or. 2001). The court determines whether a statement is capable of a defamatory meaning; the finder of fact determines whether the statement was actually defamatory. Beecher v. Montgomery Ward Co., Inc., 517 P.2d 667, 669 (Or. 1973) (citations omitted). A statement is published for the purpose of a defamation claim when a defamatory communication is uttered from one employee to another employee concerning the job performance of a third employee. Lansford v. Georgetown Manor, Inc., 84 P.3d 1105, 1111 (Or.App. 2004) (citations omitted).
Statements regarding a plaintiff's dishonesty or unfitness to perform employment duties are actionable per se and the plaintiff is not required to show that the publication of the statement caused economic damage. See Muresan v. Philadelphia Romanian Pentecostal Church, 962 P.2d 711, 716 (Or.App. 1998); Bonner v. Griggs, 783 P.2d 36, 37 (Or.App. 1989).
Plaintiff alleges that defendant published defamatory statements to defendant's managers indicating that plaintiff had knowingly allowed Clark to work off the clock and either acknowledged that it had occurred or admitted that he knew at the time it was occurring. Plaintiff claims that York told Camp that plaintiff had admitted that he had knowingly allowed Clark to work off the clock. York communicated this message to Camp via voice-mail and the statement was republished when the voice-mail was copied to Waschow. Camp then repeated the statement to McDearmon and Doss. After plaintiff's termination, York allegedly told Doss that plaintiff had admitted that Clark had worked off the clock. York also allegedly told Voight and Sievers that plaintiff was terminated because he had allowed an employee to work off the clock.
The parties dispute whether York's statements were true. However, the court need not address this issue because the court finds that the defense of qualified immunity exists to bar plaintiff's claim.
In defense to an action for defamation, Oregon recognizes two forms of privilege: qualified and absolute. The defense of qualified privilege requires an affirmative showing by the plaintiff that the allegedly defamatory statement was false and made with actual malice. Summers v. Binns, 10 P.3d 294, 297 (Or.App. 2000). On the other hand, the defense of absolute privilege is a complete bar to recovery regardless of the declarant's state of mind. Id.
A qualified privilege to make a defamatory statement arises when it is made to protect the interests of the plaintiff's employer or it is on a subject of mutual concern to the defendant and to those to whom it is made. Vanderselt v. Pope, 963 P.2d 130, 136 (Or.App. 1998) (citation omitted). This kind of privilege, however, is not absolute and may be lost if the publisher abuses the occasion which gave rise to the privilege. Walsh v. Consol. Freightways, Inc., 563 P.2d 1205, 1210-11 (Or. 1977). Once a privilege has been asserted, the plaintiff has the burden of proving that the privilege has been abused. Id. at 1211.
A qualified privilege may be lost if: (1) the publisher does not believe that the statement is true or lacks reasonable grounds to believe that the statement is true; (2) if the statement is published for a purpose other than that for which the particular privilege was given; (3) if the statement is published to someone not reasonably believed to be necessary to accomplish the purpose; or (4) if the publication involves defamatory information not reasonably believed to be necessary to accomplish the purpose. Shafroth v. Baker, 553 P.2d 1046, 1049 (Or. 1976).
Plaintiff has failed to show that defendant abused the qualified privilege. The evidence instead establishes that the communications between defendant's employees regarding plaintiff's termination were limited in nature and made exclusively amongst defendant's managers. Plaintiff has also failed to show that any of defendant's managers spoke to anyone outside of the company regarding plaintiff's termination or that any allegedly defamatory statements were made for a purpose other than investigating plaintiff's misconduct.
Employers have a legitimate interest in free communications on matters related to work, especially when investigating suspected wrongdoing by an employee. Wallulis, 918 P.2d at 762. Plaintiff has failed to present any evidence that defendant's managers made any communication to anyone for the purpose of embarrassing plaintiff, for harming his reputation, or for any other malicious reason. The conversations between York, Camp, McDearmon, Doss, Waschow, and Sievers were made in furtherance of defendant's investigation into plaintiff's alleged violation of company policies. York communicated with those company representatives who had a legitimate interest in learning about the alleged misconduct of plaintiff. Accordingly, the communications between defendant's managers were made to protect defendant's interests and were on a subject of mutual concern to the speaker and the listener. See id.; see also DeLong v. Yu Enter., Inc., 47 P.3d 8, 10 (Or. 2002). As such, the communications were privileged.
2. Intentional Infliction of Emotional Distress (IIED)
To state a claim for IIED, a plaintiff must plead that: (1) the defendant intentionally inflicted emotional distress on the plaintiff; (2) the defendant's actions were the cause of the plaintiff's emotional distress; and (3) the defendant's actions constituted an extraordinary transgression of the bounds of socially tolerable conduct. Babick v. Oregon Arena Corp., 40 P.3d 1059, 1063-64 (Or. 2002) (citations omitted). This tort does not provide recovery for behavior that is merely rude, insulting, or tyrannical. Watte v. Edgar Maeyens, 828 P.2d 479, 481 (Or.App. 1992).
Plaintiff bases his claim of IIED on allegations that York told him to correct Clark's time to reflect the amount of unpaid work to which Clark asserted that he was entitled. After plaintiff did so, York took this as evidence that plaintiff knew that Clark had worked off the clock and reported to other managers that plaintiff had admitted to violating company policies in an attempt to terminate plaintiff. Even if true, these allegations are insufficient grounds to support a claim for IIED. Plaintiff has presented no evidence that defendant, by engaging in the act of terminating plaintiff or by requiring plaintiff to calculate additional compensation for Clark, intended or knew with substantial certainty that such conduct would cause plaintiff severe emotional distress.
Moreover, plaintiff has failed to set forth evidence that defendant's conduct exceeded the bounds of socially tolerable conduct. The burden is on plaintiff to present evidence that defendant inflicted the sort of emotional distress that is so severe that no reasonable person in plaintiff's position could be expected to endure it. See Hetfeld v. Bostwick, 901 P.2d 986, 987-88 (Or.App. 1995). Oregon cases that have allowed claims for IIED to proceed typically involve acts of psychological and physical intimidation, racism, or sexual harassment. See, e.g., Kraemer v. Harding, 976 P.2d 1160 (Or.App. 1999); Wheeler v. Marathon Printing, Inc., 974 P.2d 207 (Or.App. 1998); Mains v. II Morrow, Inc., 877 P.2d 88 (Or.App. 1994); Lathrope-Olson v. Oregon Dep't of Transp., 876 P.2d 345 (Or.App. 1994). Defendant's act of terminating an employee, even if wrongfully motivated, as presented here does not transgress the bounds of socially tolerable behavior. Madani v. Kendall Ford, Inc., 818 P.2d 930, 933-34 (Or. 1991). Even construing the facts in the light most favorable to plaintiff, defendant's actions do not constitute sufficiently outrageous conduct to support his IIED claim.
CONCLUSION
For the foregoing reasons, defendant's Motion for Summary Judgment (Doc. #21) is GRANTED. In addition, defendant's Motion to Strike (Doc. #39) is denied as moot.
This case is DISMISSED.
IT IS SO ORDERED.