Griffin By and Through Stanley v. Tri-County Metropolitan Transp. Dist. of Oregon

• Jurisdiction: Oregon
• Citation: Griffin By and Through Stanley v. Tri-County Metropolitan Transp. Dist. of Oregon, 831 P.2d 42, 112 Or.App. 575 (Or. App. 1992)
• Docket Number: TRI-COUNTY
• Parties: , 3 NDLR P 49 Joe GRIFFIN, By and Through Doug STANLEY, Personal Representative of the Estate of Joe Griffin, Deceased, Plaintiff-Respondent--Cross-Appellant, v.METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, an Oregon municipal corporation, Defendant-Appellant--Cross-Respondent, and James Cowen and Donald Denson, Defendants-Cross-Respondents. * A8902-01014; CA A64191.
• Court: Oregon Court of Appeals
• Decision Date: 22 April 1992

Page 42

831 P.2d 42

112 Or.App. 575, 3 NDLR P 49

Joe GRIFFIN, By and Through Doug STANLEY, Personal Representative of the Estate of Joe GriffinDeceased, Plaintiff-Respondent--Cross-Appellant, v.TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON an Oregon municipal corporationDefendant-Appellant--Cross-Respondent and James Cowen and Donald Denson, Defendants-Cross-Respondents.^*

A8902-01014; CA A64191.

Court of Appeals of Oregon.

Argued and Submitted July 8, 1991.

Decided April 22, 1992.

Jeffrey M. Batchelor, Portland, argued the cause for appellant--cross-respondent and cross-respondents.With him on the briefs were Edwin A. Harnden, Richard N. Van Cleave, Thomas W. Sondag and Lane Powell Spears Lubersky, Portland.

Thomas A. Balmer, Portland, argued the cause for respondent--cross-appellant.On the brief were Lori Irish Bauman, Janice R. Wilson, Daniel H. Skerritt and Ater Wynne Hewitt Dodson & Skerritt, Portland.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

Tri-County Metropolitan Transportation District(Tri-Met) appeals from a judgment awarding plaintiff damages on his claim of discrimination on account of a physical impairment in violation of ORS 659.425(1).¹We affirm.

We recite the facts in plaintiff's favor.Or.Const. Art. VII(amended)§ 3;Jorritsma v. Farmers' Feed & Supply, 272 Or. 499, 502, 538 P.2d 61(1975).

Tri-Met hired plaintiff as a bus driver in 1976.He became a dispatcher in 1982 and remained in that position until 1989, when his employment ended.In 1985, he was diagnosed as HIV positive.²Early in 1987he informed his supervisor, Denson, about the HIV diagnosis and asked Denson to keep the information confidential, which Denson agreed to do.

However, in September 1987, Chambers, Denson's supervisor, received an anonymous letter saying that plaintiff had AIDS.Chambers met with plaintiff and told him that, if he could not work regularly, he could not be employed by Tri-Met.Later, Denson demanded that plaintiff provide medical information releases for all of his physicians and that he provide information regarding his medications.Denson threatened to suspend plaintiff without pay until he complied with the demands.

In October, 1987, plaintiff arranged a meeting with Dr. Loveless, his physician, Tri-Met's labor relations manager, Tri-Met's legal counsel, plaintiff's attorney, the president of plaintiff's union, Denson, Chambers and plaintiff.At the meeting, Loveless described HIV disease and plaintiff's prognosis.He explained that stress could exacerbate plaintiff's illness and that it was important that plaintiff maintain his daily routine of medical appointments, working out and attending support groups.His evening work schedule accommodated those activities.

Four days after the meeting with Loveless, Denson requested that plaintiff change shifts.Because shifts are assigned according to seniority and are not dictated by Tri-Met, plaintiff refused.Plaintiff views that as the beginning of the harassment that continued for the remainder of his Tri-Met employment.His work was more closely scrutinized than that of the other dispatchers.He was not allowed to use the restroom without supervisory permission, he was pestered about his use of the sick leave to which he was entitled and he was unnecessarily criticized.

In May, 1988, plaintiff sent a computer message to other dispatchers.The message read, "Did you hear the Chief [Denson] has herpes?He got it while kissing [someone's] * * * never mind."³When Denson read the message, he demanded that plaintiff be fired.Plaintiff was terminated, but an arbitrator reinstated him.He returned to work on November 14, 1988.After plaintiff's return, Chambers promulgated a policy that prohibited personal computer messages on Tri-Met's computer system.Plaintiff was aware of the new policy when, on November 22, 1988, he sent a message asking where his fellow dispatchers had been 25 years earlier, when President Kennedy was assassinated.

On November 30, 1988, Denson learned of the Kennedy message and discussed the matter with plaintiff.When plaintiff requested the presence of a union representative, Denson ordered him to appear the next day in Chambers' office.Plaintiff assumed that that meant that he would be fired.He worked the remainder of his shift and called his psychiatrist, Dr. Gregory, who advised him to stop working, because the stress was making him ill.Plaintiff never resumed working at Tri-Met and eventually filed this action.

Before trial, Tri-Met moved to strike eight of the allegations in plaintiff's second amended complaint on the ground that the facts occurred more than 180 days before plaintiff had given Tri-Met the claim notice required by the Oregon Tort Claims Act (OCTA).ORS 30.260 et seq.The court granted Tri-Met's motion.⁴Trial was set for December 28, 1989.Gregory was scheduled to be out of the state on that date.Plaintiff served notice on Tri-Met of his intent to perpetuate Gregory's testimony by deposition.⁵Tri-Met did not object, ⁶ and Gregory's deposition was taken.Trial was later reset to January 16, 1990.After the trial had been reset, Tri-Met subpoenaed Gregory and his records relating to his treatment of plaintiff.Plaintiff moved to quash the subpoena.The court quashed the subpoena but stated that either party could subsequently request that Gregory be compelled to testify.⁷

Tri-Met assigns error to the denial of its motion to exclude evidence of conduct that occurred more than 180 days before plaintiff gave notice under the Oregon Tort Claims Act OTCA.In addition, Tri-Met asserts that, even if admission of that evidence was proper as tending to prove discriminatory intent, the court nevertheless erred by not giving an instruction limiting the jury's consideration of it.Plaintiff, in a related cross-assignment of error, argues that the court erred in striking his allegations of Tri-Met's conduct that occurred before January, 1988, and, consequently, the evidence supporting those allegations was admissible without limitation.We consider the cross-assignment first.

We accept as true all well-pleaded allegations and any facts that might conceivably prove those allegations.Doyle v. Oregon Bank, 94 Or.App. 230, 232, 764 P.2d 1379(1988), rev. den., 307 Or. 571, 771 P.2d 1021(1989).Plaintiff was required to give Tri-Met notice of his claim.⁸Five of the allegations stricken from plaintiff's second amended complaint were based on occurrences in May, 1988.Tri-Met stipulated that proper notice was given on July 6, 1988.Therefore, those allegations and the evidence supporting them were properly before the jury.⁹We therefore need only consider the allegations and evidence of the three events that occurred before January 6, 1988.

Plaintiff argues that the allegations should not have been stricken from his second amended complaint, because they were part of a continuing tort.¹⁰The allegations are:

"During and after October 1987, Tri-Met, through its General Manager, James Cowen, and its supervisors, including Defendant Denson, took actions to deliberately place extraneous stress on plaintiff in his work environment, including:

" * * * * *

"c.On November 12, 1987, reprimanding plaintiff and threatening to discharge him for using the sick leave to which he was entitled;

"d.On October 15, 1987, demanding that plaintiff provide letters of consent to his doctors so that Tri-Met could privately investigate plaintiff's health;

"e.On October 10, 1987, threatening plaintiff with suspension if he did not provide a list of medications prescribed for his illness * * *."

Oregon cases have used a continuing tort analysis to allow claims that would otherwise be time-barred.SeeShives v. Chamberlain, 168 Or. 676, 126 P.2d 28(1942).The cases arose in a variety of fact patterns and do not readily produce a single rule.SeeAdams v. Oregon State Police, 289 Or. 233, 611 P.2d 1153(1980);Holdner v. Columbia County, 51 Or.App. 605, 627 P.2d 4(1981).However, in Davis v. Bostick, 282 Or. 667, 580 P.2d 544(1978), the court stated concisely the concept of continuing tort:

"[A]t the heart of the continuing tort idea is the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct."282 Or. at 671, 580 P.2d 544.

In Davis, the defendant's physical and mental abuse of the plaintiff were continuous in the sense that, all together, the abuse was a course of conduct.However, the court held that, because the defendant's acts were discreet and egregious in nature, each abusive act was separately actionable and not merely an element of a single tort.Here, the October and November, 1987 acts, although separate incidents, are not the type of discrete, permanent events that would likely support separate actions for wrongful discrimination.Instead, they can be reasonably construed as elements of a systematic pattern of conduct, aimed at causing plaintiff's eventual termination.The allegations should not have been stricken.Accordingly, plaintiff was entitled to have the evidence supporting the allegations admitted without limitation, not solely for the purpose of proving discriminatory intent.Because plaintiff's cross-assignment is well taken, Tri-Met's claims that the court erred in admitting the evidence and by failing to give an instruction limiting the jury's consideration of the evidence are without merit.

Tri-Met also assigns error to the quashing of its subpoena compelling the appearance of Gregory.The court's ruling on Tri-Met's initial motion expressly provided that either party could later request that Gregory be compelled to testify.Tri-Met contends that this colloquy renewed its motion to compel his appearance:

The Court: "That creates a problem in my mind.In the treating doctor's file, you have reports from other physicians.Now, if we turn the clock back, and Gregory...