Babick v. Oregon Arena Corp.

Decision Date22 February 2002
Citation333 Or. 401,40 P.3d 1059
PartiesKenneth BABICK, Gary Moore, and Jack K. Minzey, Jr., and others similarly situated, Petitioners on Review/Respondents on Review, v. OREGON ARENA CORPORATION, an Oregon Corporation, Respondent on Review/Petitioner on Review.
CourtOregon Supreme Court

William B. Aitchison, of Aitchison & Vick Inc., Portland, argued the cause for petitioners on review/respondents on review. Megan E. Glor, of Swanson, Thomas & Coon, Portland, filed the brief. John R. Faust, Jr., Portland, argued the cause and filed the brief for respondent on review/petitioner on review. With him on the brief were Karen O'Kasey, Thomas M. Triplett, and Schwabe, Williamson & Wyatt, P.C.

Stephen L. Brischetto, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.2

GILLETTE, J.

The issue in this civil action is whether plaintiffs, at-will employees who worked for defendant as security guards at a concert arena, stated claims for relief for wrongful discharge and intentional infliction of severe emotional distress. The Court of Appeals ruled that certain of the plaintiffs had stated claims for relief with respect to both torts. Babick v. Oregon Arena Corp., 160 Or.App. 140, 980 P.2d 1147 (1999). For the reasons that follow, we reverse the decision of the Court of Appeals with respect to those plaintiffs' wrongful discharge claim, but otherwise affirm.

We take the following statement of facts from the lead opinion in the Court of Appeals:

"Defendant owns the Memorial Coliseum, a large entertainment forum in Portland. Defendant hired plaintiffs to provide security and medical assistance at music concerts and other entertainment events held there. As part of their employment, plaintiffs received training from defendant to carry out their functions as security officers. That training included instruction on `radio procedures, * * * defensive tactics, the use of force, action to be taken in cases of suspected drug possession and the possession of alcohol by minors, [and] arrest protocol * * *.' One night, some of those security officers were working at a music concert performed by the group known as Phish. At that concert, certain security officers arrested, or attempted to arrest, some members of the audience for engaging in assaultive behavior and illegal drug and alcohol possession. The arrests were consistent with the training they had received from defendant and were otherwise lawful under Oregon law. About a week later, defendant discharged the entire group of security officers, including those who were at the concert but did not make any arrests and those who were employed as security officers at the time but did not work at that concert. Defendant fired all the security officers in retaliation for the lawful law enforcement actions of some security officers at the Phish concert."

160 Or.App. at 142-43, 980 P.2d 1147.

After they were fired, plaintiffs brought the present action against defendant, alleging wrongful discharge (on the theory that they had been discharged for fulfilling an important societal duty, i.e., arresting lawbreakers) and intentional infliction of severe emotional distress (on the theory that, in terminating their employment, defendant intended to and did cause them severe emotional distress). Defendant moved to dismiss under ORCP 21 A(8), and the trial court granted that motion. With the court's leave, plaintiffs then submitted an amended complaint that supplemented the factual allegations that pertained to the intentional infliction of severe emotional distress claim. Specifically, plaintiffs alleged:

"11.
"Defendant, through its agents and employees, did the following during and after the November 24 Phish concert:
"a. publicly berated plaintiffs for taking or attempting to take law enforcement action at the November 24 Phish concert consistent with Oregon law and defendant's prior instruction;

"b. interfered with plaintiffs' efforts to take law enforcement action at the November 24 Phish concert by releasing intoxicated and violent concertgoers who had been detained by plaintiffs, thereby undermining plaintiffs in the performance of their security duties and presenting a threat of imminent physical harm to plaintiffs;

"d.[3] berated plaintiffs for taking law enforcement action and for defending themselves against Phish employees and agents and employees and agents of the concert promot[e]r who physically attacked plaintiffs and interfered with plaintiffs' performance of their security activities during and immediately after the November 24 Phish concert;
"e. "humiliated plaintiffs by publicly announcing after the November 24 Phish concert that plaintiffs' law enforcement actions would be a `marketing disaster' for defendant; and
"f. after learning plaintiffs had to defend themselves from physical injury against Phish and promot[e]r representatives during the November 24 Phish concert, condoned the actions of Phish employees and agents and employees and agents of the concert promot[e]r by threatening to terminate and actually terminating plaintiffs' employment.
"12.
"The aforementioned acts by defendants constitute an extraordinary transgression of the bounds of socially tolerable conduct. In so acting, defendant OAC intended to and did inflict severe emotional distress on plaintiffs. As plaintiffs' employer, defendant had a duty to refrain from subjecting plaintiff to severe emotional distress."

The trial court concluded that the amended complaint also failed to state a claim and again dismissed, this time without leave to replead.

Plaintiffs appealed, and a divided panel of the Court of Appeals reversed in part. The Court of Appeals held that, with respect to the plaintiffs who participated in the arrests at the Phish concert, the complaint stated a claim for wrongful discharge, on a theory that those plaintiffs were terminated for fulfilling a public duty. 160 Or.App. at 149, 980 P.2d 1147. However, the court affirmed the dismissal of the wrongful discharge claims with respect to those plaintiffs who did not participate in the arrests, concluding that the complaint alleged that those plaintiffs had been discharged because of their association with the other plaintiffs, a reason that cannot support a wrongful discharge claim. Id. The Court of Appeals also held that the complaint stated a claim for intentional infliction of severe emotional distress because plaintiffs' allegation in the amended complaint that defendant had subjected them to a threat of imminent danger (by releasing detainees) qualified as an allegation of "socially intolerable" conduct. Id. at 150, 980 P.2d 1147.

Defendant petitioned for review of the Court of Appeals' decision insofar as it holds that, with respect to the plaintiffs who did participate in the arrests, the complaint states viable claims for wrongful discharge and intentional infliction of severe emotional distress. Plaintiffs also petitioned for review, challenging the Court of Appeals' decision to uphold the dismissal with respect to those plaintiffs who did not participate in the arrests. We allowed both petitions.

In reviewing a dismissal under ORCP 21 A(8), we accept all well-pleaded allegations of the complaint as true and give plaintiffs the benefit of all favorable inferences that may be drawn from the facts alleged. Scovill v. City of Astoria, 324 Or. 159, 164, 921 P.2d 1312 (1996). Our task is to determine only whether those allegations, so construed, are sufficient to constitute a claim. Id.

WRONGFUL DISCHARGE

Although this court repeatedly has affirmed the general validity of the at-will employment rule,4 it has acknowledged that a discharge of an at-will employee nonetheless may be deemed "wrongful" (and, therefore, actionable) under certain circumstances. Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978)

(employee unlawfully discharged for filing workers' compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int'l, 297 Or. 10, 681 P.2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (employee discharged for serving on jury).

Plaintiffs have pleaded this case as a "public duty," not a "job-related right," case. The Court of Appeals accepted plaintiffs' argument that the "public duty" exception to the at-will rule is implicated by plaintiffs' allegation that they were discharged for making lawful arrests. The court first noted (correctly) that it must "find a public duty, not create one," using constitutional and statutory provisions and case law. Babick, 160 Or.App. at 144, 980 P.2d 1147. The Court of Appeals then held that, for purposes of the "public duty" theory of wrongful discharge,

"it is not necessary that a statute specifically obligate an employee to act in the way that precipitated the discharge. * * * Rather, a public duty may arise from evidence of a `substantial public policy that would * * * be "thwarted" if an employer were allowed to discharge its employee without liability.'"

Id. (quoting Banaitis v. Mitsubishi Bank, Ltd., 129 Or.App. 371, 376, 879 P.2d 1288 (1994)

).

Applying that standard to the present case, the Court of Appeals examined the statutes that plaintiffs had identified as relevant: ORS chapters 131 to 170 (the Oregon Penal Code); ORS 181.870 et seq. (regulating licensing and training of private security personnel); ORS 133.220(3) (permitting private citizens to make arrests); and ORS 133.225(2) (permitting persons to use physical force in making an arrest). The Court of Appeals found...

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