Holien v. Sears, Roebuck and Co.
| Decision Date | 23 October 1984 |
| Citation | 689 P.2d 1292,298 Or. 76 |
| Parties | , 117 L.R.R.M. (BNA) 2853, 36 Fair Empl.Prac.Cas. (BNA) 137, 35 Empl. Prac. Dec. P 34,801, 53 USLW 2249, 105 Lab.Cas. P 55,605 Gale A. HOLIEN (Stewart), Respondent on review, v. SEARS, ROEBUCK AND CO., a foreign corporation, Petitioner on review, and Paul Blasko, an individual, Defendant-Respondent. TC A7905-02100; CA A22566; SC S30513. |
| Court | Oregon Supreme Court |
Mildred J. Carmack, Portland, argued the cause for petitioner on review. With her on the petition and brief were Mark H. Wagner and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.
Timothy J. Vanagas, Gresham, argued the cause and filed the briefs for respondent on review. With him on the response to the petition was John J. Pefley, Gresham.
No appearance for defendant-respondent Paul Blasko.
Elden M. Rosenthal, of Rosenthal & Greene, P.C., Portland, filed a brief amicus curiae on behalf of the American Civil Liberties Union of Oregon.
Cynthia L. Barrett, of Fellows & McCarthy, Portland, filed a brief amicus curiae on behalf of the Oregon Women's Political Caucus.
Charles J. Merten, of Merten & Fink, Portland, filed a brief amicus curiae on behalf of the Oregon Trial Lawyers Association.
David W. Morthland, of Miller, Nash, Wiener, Hager & Carlsen, Portland, filed a brief amici curiae on behalf of Louisiana-Pacific Corporation; School District No. 1, Multnomah County, Oregon; U.S. Bancorp; and Willamette Industries, Inc.
Richard A. Braman, City Atty., Portland, filed a brief amicus curiae on behalf of the City of Portland.
Paula B. Weiss, of Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland, filed a brief amici curiae on behalf of Oregon Small Business Advocates; Oregon National Federation of Independent Business; Oregon Association of Hospitals; Oregon Bankers Association; Pacific Coast Association of Pulp and Paper Manufactures; Food Employers, Inc.; Oregon Retail Council; National Electrical Contractors Association; Portland Chamber of Commerce; Associated Oregon Industries; Tektronix, Inc.; Metropolitan Hospitals, Inc.; Northwest Natural Gas Company; Weyerhaeuser Company; Freightliner Corporation; Southern Pacific Transportation; Consolidated Metco, Inc.; Fleetwood Enterprises, Inc.; Consolidated Freightways; Fred Meyer, Inc.; and The Oregonian Publishing Company.
Henry H. Drummonds, of Kulongoski, Heid, Durham & Drummonds, Portland, filed a brief amici curiae on behalf of Oregon AFL-CIO and Oregon Education Association.
Larry K. Amburgey, David H. Wilson, Jr., and Amy Segel, of Bullard, Korshoj, Smith & Jernstedt, P.C., Portland, filed a brief amici curiae on behalf of Agripac, Inc.; AT & T Technologies, Inc.; Bingham Willamette Company; Champion International Corporation; Mid-Columbia Medical Center; Nike, Inc.; Northwest Packers Industrial Association; Omark Industries; The Oregon Bank; Oregon Savings and Loan League; Oregon Trucking Association; Pacific Fruit & Produce Co.; Pacific Northwest Tell Telephone Company; Pacific Western Bank; Pay Less Drug Stores Northwest, Inc.; Portland General Electric Company; Standard Insurance Company; Stayton Canning Company; Sun Studs, Inc.; Timber Operators Council, Inc.; Tradewell Stores, Inc.; United Grocers; and West Coast Grocery Company.
In this case, plaintiff sued for damages for employment discrimination under ORS 659.030(1) and 659.121(1)), and also sought damages for the common law tort of wrongful discharge. Plaintiff appeals from a judgment for defendants. The trial court found no liability or damages under the statutory claim and granted defendant Sears, Roebuck and Co. (Sears) a summary judgment on the claim alleging common law wrongful discharge. The Court of Appeals, 66 Or.App. 911, 677 P.2d 704, reversed and remanded the case for retrial on the common law wrongful discharge claim. Defendant Sears petitions this court to review and reverse the decision of the Court of Appeals.
The complaint alleged three separate "causes of action": The first claim alleged employment discrimination under ORS 659.030(1) and 659.121(1); the second alleged common law wrongful discharge; and the third, not involved in this appeal, alleged intentional infliction of emotional distress. The first two claims were based on essentially the same allegations of fact, except that the second claim alleged that defendants acted maliciously.
The complaint alleged that plaintiff was an employe of defendant Sears and her supervisor was defendant Blasko. From approximately May 3 to June 6, 1978, defendant Blasko was alleged to have engaged in acts of sexual advances and harassment directed toward plaintiff. Plaintiff claims that her termination was tortious because it was "motivated solely because plaintiff would not submit to [her supervisor's] sexual advances and sexual harassment," and because plaintiff was "fulfilling her right to be gainfully employed without being subject to said sexual advances and sexual harassment." Plaintiff alleges that because she resisted her supervisor's sexual advances she was given poor evaluations, was denied pay raises and was finally discharged. All three claims were submitted to a jury, which returned its separate verdict on each of the three claims. The verdict on the first claim was:
"1. Did defendants engage in statutory employment discrimination against plaintiff as alleged in plaintiff's first claim for relief which was the proximate cause of damage to plaintiff?
Answer: 'Yes' or 'No'
(a) Defendant Sears No
(b) Defendant Blasko Yes
On the second (common law) claim:
"1. Did defendants wrongfully discharge the plaintiff from employment as alleged in plaintiff's second claim for relief which was the proximate cause of damage to plaintiff?
Answer: 'Yes' or 'No'
(a) Defendant Sears Yes
(b) Defendant Blasko No
On the third claim:
"1. Did defendants engage in the intentional infliction of emotional distress as alleged in plaintiff's third claim for relief which was the proximate cause of injury to plaintiff?
Answer: 'Yes' or 'No'
(a) Defendant Sears No
(b) Defendant Blasko No
Following the verdict, the trial court found in favor of both defendants on the first claim. The trial court stated in its written findings:
Judgment was then granted in favor of defendants on the first and third claims and for plaintiff on the second claim against defendant Sears. Defendant Sears moved for judgment notwithstanding the verdict or, alternatively, a new trial on the second claim under ORCP 63. The motion for a new trial was allowed because of an improper jury poll. 1 Sears then moved for summary judgment on the second claim pursuant to ORCP 47, and that motion was granted. As a result, a final judgment was entered in favor of both defendants on all claims.
Plaintiff's main contention is that the trial court erred when it granted Sears a summary judgment on the second claim after the motion for a new trial had been granted. In support of the motion for summary judgment, Sears argued that there is no common law action for wrongful discharge when there is a statutory remedy for discrimination in employment.
This court's decision in Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975), provided the first exception to the general "at-will" rule of employment. The employment "at-will" concept is premised upon the idea that an employer and the employe are both free to terminate the employment relationship at any time and for any cause, unless expressly prohibited by contract or statute. However, in Nees, this court acknowledged a basic public policy exception to the harshness of the "at-will" rule by stating:
"* * * [T]here can be circumstances in which an employer discharges an employee for such a socially undesirable motive that the employer must respond in damages for any injury done * * *." 272 Or. at 218, 536 P.2d 512.
In Nees, we held that an employe who had been discharged for serving on a jury could recover on a common law tort theory because such a discharge constituted a "socially undesirable motive." We noted that the...
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...provisions, Oregon law generally permits an employer to discharge an employee at any time and for any reason. Holien v. Sears, Roebuck & Co., 298 Or. 76, 83, 689 P.2d 1292 (1984). A narrow exception applies for those circumstances in which strict enforcement of this "at-will rule" would be ......
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