Downs v. Waremart, Inc.

• Decision Date: 23 January 1996
• Docket Number: C-11646
• Citation: 137 Or.App. 119,903 P.2d 888
• Parties: , 10 IER Cases 1817 Linda DOWNS, Appellant, v. WAREMART, INC., an Idaho corporation, Respondent. 92; CA A84549.
• Court: Oregon Court of Appeals

Page 888

903 P.2d 888

137 Or.App. 119, 10 IER Cases 1817

Linda DOWNS, Appellant, v. WAREMART, INC., an Idaho corporation, Respondent.

92C-11646; CA A84549.

Court of Appeals of Oregon.

Argued and Submitted May 18, 1995.

Decided Sept. 27, 1995.

Review Allowed Jan. 23, 1996.

[137 Or.App. 120-A] William D. Stark, Salem, argued the cause and filed the brief for appellant.

[137 Or.App. 120-B] William H. Walters, Portland, argued the cause for respondent. With him on the brief was Thomas C. Sand and Miller, Nash, Wiener, Hager & Carlsen.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ. HASELTON, Judge.

Plaintiff, Linda Downs, appeals from a judgment dismissing an array of claims that arose from defendant Waremart's termination of her employment as a manager at one of its stores. We affirm in part and reverse in part.

Viewed most favorably to plaintiff, the material facts are as follows: Plaintiff began working for defendant in 1985. From November 1990 until March 1992, when she was terminated, plaintiff was the video department manager at defendant's store 19 in Salem. During that time, the video department handled at least $100,000 in cash per week. Several times during plaintiff's tenure as manager before March 1992, her department's cash receipts were "short," i.e., recorded sales exceeded the actual amount of money in the registers. However, the disparities were relatively small (the record discloses nothing in excess of $50), and plaintiff was not personally implicated.

In late January 1992, plaintiff attended a company training program that dealt, in part, with sexual harassment. During the program, defendant's president stated that the company had a strong policy against managers dating checkers and that "anybody that's doing this is walking on thin ice." At that time, DeWitt, an assistant manager at store 19, was dating Fowlds, a checker at store 20, and Atkinson, another assistant manager at store 19, was dating Wolford, a checker at store 19. DeWitt, Atkinson, Fowlds, and Wolford were all social friends of Erekson, the manager of store 19. Shortly after the training program, plaintiff confronted Dewitt and Wolford about their breaches of the anti-fraternization policy. Thereafter, DeWitt acted coldly toward plaintiff. In late February 1992, a co-employee overheard DeWitt telling Erekson that plaintiff "was starting to become a problem." When DeWitt and Erekson perceived that they had been overheard, "they turned away and got quiet."

On the afternoon of March 2, 1992, plaintiff and two other video department employees, Leavitt and Rowe, were working behind the video department counter. While Rowe was selling money orders to customers, Leavitt started to prepare a baggie containing $1,400 for deposit in the store safe, which was located in the video department. Plaintiff was standing somewhere behind Leavitt. Before Leavitt dropped the money into the safe, Leavitt turned to help Rowe with money orders, leaving the money on the counter. When Leavitt finished helping Rowe, she discovered that the money was gone. Instead of becoming alarmed, Leavitt simply assumed that she had already dropped the money into the safe.

Later that night, another video department employee, Harper, discovered a baggie containing $1,400 in the bottom of a video department trash can that Harper was emptying. Harper told Leavitt of her discovery, and Leavitt instructed her to drop the money in the safe. Instead, Harper insisted that they inform an assistant manager about the money. The assistant manager then informed Erekson of the situation. In the meantime, Leavitt counted her till and discovered that the money Harper found was the same money that she thought she had dropped into the safe earlier in the day.

Erekson called defendant's president and told him that he suspected that plaintiff had hidden the cash in the trash can and intended to steal it. Erekson explained that he suspected plaintiff because she had instituted a trash policy in the video department, which prohibited evening shift employees from taking trash to the outside dumpster. ¹ Instead, as a general practice, plaintiff would take out the previous night's trash when she arrived at work in the morning. Erekson told defendant's president that he believed plaintiff planned to steal the money when she took the trash to the dumpster the next day. The president told Erekson to call the police, and he did.

Deputy Januc of the Marion County Sheriff's Department went to the store that evening. After interviewing Leavitt, who denied having placed the money in the trash, Januc told Erekson that he did not consider her a suspect. Erekson then suggested that the money be put back into the trash can and that the police observe plaintiff's actions when she arrived at the store the next day. Januc agreed and arranged to have another officer, Detective Stai, present to conduct the surveillance.

The next morning, as Stai watched, plaintiff arrived at work, went to the video department, and picked up a bag of trash to take to the dumpster. However, plaintiff picked up a different trash bag than the one containing the money. On her way to the dumpster, plaintiff went briefly into the women's restroom, taking the trash bag with her. She then went outside and placed the bag in the dumpster. On her way back into the store, Stai confronted plaintiff, identified himself, and asked if she would accompany him to the office to answer some questions. ² Plaintiff replied that she would.

Stai, Erekson, and plaintiff then went into Erekson's office. Before Stai began questioning plaintiff, Erekson informed him that plaintiff had not taken the trash bag containing the money. Nonetheless, Stai informed plaintiff of her Miranda rights and began questioning her in Erekson's presence. Plaintiff, who was visibly nervous, denied having any involvement with the missing money. At some point during the interrogation, Stai asked Erekson if he should continue the questioning, and Erekson responded affirmatively. When Stai questioned plaintiff about a prior arrest that occurred 20 years earlier, plaintiff asked to have an attorney present. At that point, Stai stopped the interrogation, and plaintiff returned to the video department, where she called an attorney.

After plaintiff left, Stai told Erekson that he believed that plaintiff had attempted to steal the $1,400 and that "it was too bad there was a mixup on the garbage can." However, Stai's incident report expressed no opinion as to plaintiff's culpability. Later that morning, Erekson called plaintiff into his office and said, "In light of your calling a lawyer, you're terminated." Erekson subsequently printed on the company computer system that plaintiff had been fired for "dishonesty, mishandling of company funds, and performing acts which constitute a violation of the law, and tend to bring discredit to the company or harm employee morale" and showed plaintiff a printout. ³ Plaintiff was never prosecuted for attempted theft. After plaintiff's termination, Atkinson, the assistant manager, told Miller, one of defendant's employees, that plaintiff had been fired for stealing. Wolford, the checker, also told Wentz, a video department customer who asked about plaintiff's absence, that she "hated plaintiff" and was "glad she was gone" and that plaintiff had been fired for theft.

Plaintiff brought this action, alleging claims for wrongful discharge, breach of the implied covenant of good faith and fair dealing, breach of contract, defamation, "compelled self-publication" defamation, ⁴ intentional infliction of emotional distress, and invasion of privacy. Defendant moved to dismiss several of the claims for failure to state ultimate facts constituting claims under ORCP 21A(8). In addition to asserting pleading defects under state law, defendant argued that plaintiff's employment was governed by a collective bargaining agreement and that, therefore, section 301 of the Labor Management Relations Act (LMRA), 29 USC § 185(a), preempted all but her defamation claims. The trial court rejected defendant's preemption argument but granted, pursuant to state law, defendant's motion to dismiss plaintiff's claims for wrongful discharge, invasion of privacy, and compelled self-publication defamation for failure to state a claim.

Defendant then moved for summary judgment against plaintiff's claims for breach of the implied covenant of good faith and fair dealing, breach of contract, defamation, and intentional infliction of emotional distress. Again, defendant asserted preemption under LMRA section 301 in addition to state law theories. Before filing her response to that motion, plaintiff moved to amend her complaint to include a claim for wrongful discharge based on the theory that she had been impermissibly fired in retaliation for her attempts to enforce the store anti-sexual harassment policy against fellow managers. The trial court denied plaintiff's motion to amend and granted defendant's motion for summary judgment:

"I think it boils down to the issues that the defense has raised; and that is, one, is there a collective bargaining agreement and can the court determine as a matter of law that there is. And I--I am disinclined to do that if I don't have to. But the alternative I think is as argued by the defense, you've either got a collective bargaining agreement or you don't. If you don't have a collective bargaining agreement, the evidence I think is undisputed you've got an at will employment relationship, and that means you can terminate it.

" * * * * *

"[I]t's the trial judge's responsibility to make a determination as to whether or not the conduct would be cognizable as outrageous enough to justify a separate cause of action. I do not feel that there's evidence in this case to support that kind of a conclusion. And for that reason, I don't think that as a matter of law that there is an intentional infliction claim in this case...