Lathrope-Olson v. Oregon Dept. of Transp.

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: De MUNIZ
• Citation: Lathrope-Olson v. Oregon Dept. of Transp., 876 P.2d 345, 128 Or.App. 405 (Or. App. 1994)
• Decision Date: 08 June 1994
• Docket Number: LATHROPE-OLSO,A
• Parties: Coletteppellant, v. OREGON DEPARTMENT OF TRANSPORTATION, a department of the government of the State of Oregon, Respondent. 91C 11774; CA A78941.

Page 345

876 P.2d 345

128 Or.App. 405

Colette LATHROPE-OLSON, Appellant, v. OREGON DEPARTMENT OF TRANSPORTATION, a department of the government of the State of Oregon, Respondent.

91C 11774; CA A78941.

Court of Appeals of Oregon.

Argued and Submitted March 30, 1994.

Decided June 8, 1994.

James F. Evans, Portland, argued the cause and filed the briefs for appellant.

John T. Bagg, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

De MUNIZ, Judge.

In this action for intentional infliction of emotional distress, ¹ plaintiff appeals a summary judgment in favor of defendant employer. ORCP 47. We reverse.

Although plaintiff's complaint is not a model of clarity, we understand it to allege that in 1990, while plaintiff was assigned to an Oregon Department of Transportation (ODOT) highway crew, the crew chief, Daily, and other male employees subjected plaintiff to repeated sexual harassment and threats of physical injury.

We review the record in the light most favorable to plaintiff, the party opposing summary judgment. Jones-Clark v. Severe, 118 Or.App. 270, 272, 846 P.2d 1197 (1993). ² The evidence shows that, while plaintiff, who is part Native American, was on the job, Daily regularly referred to her as a "squaw." Daily also told her that "a squaw was supposed to walk behind her man" and that "all women were good for was between their legs." On other occasions, while out on highway projects, Daily threatened to push plaintiff into the path of oncoming vehicles. In addition, Daily and other employees repeatedly locked plaintiff out of the crew van when it was raining or snowing and no other shelter was near. As a result of her work environment, plaintiff suffered emotional distress for which she sought counseling and, ultimately, filed this action.

A claim for intentional infliction of emotional distress requires pleading and proof that: (1) defendant intended to inflict severe emotional distress on plaintiff; (2) defendant's conduct did, in fact, cause plaintiff to suffer severe emotional distress; and (3) defendant's conduct involved some extraordinary transgression of the bounds of socially tolerable conduct. Madani v. Kendall Ford, Inc., supra n. 1, 312 Or. at 203, 818 P.2d 930. ODOT argues that, although the speech and conduct directed at plaintiff was "perhaps oppressive, insensitive, rude and annoying," none of those actions are socially intolerable or establish an intent to inflict emotional distress. See Patton v. J.C. Penney Co., 301 Or. 117, 719 P.2d 854 (1986). The trial court gave no reasons for its decision to grant ODOT's motion for summary judgment on plaintiff's claim.

The determination of whether conduct is socially intolerable is, for the most part, a fact-specific inquiry. Accordingly, we review the alleged conduct on a case-by-case basis, considering the totality of the circumstances involved, to determine whether it constitutes an "extraordinary transgression of the bounds of socially tolerable conduct." Franklin v. PCC, 100 Or.App. 465, 471, 787 P.2d 489 (1990).

In Franklin v. PCC, supra, the plaintiff alleged that his supervisor had issued false reprimands, shoved him, locked him in an office, suggested that he apply elsewhere for employment and called the plaintiff, who was an African American male, "boy." We held that "the pleaded facts, when considered as a whole, describe an extraordinary transgression of the bounds of socially tolerable conduct." 100 Or.App. at 472, 787 P.2d 489.

Plaintiff's evidence, if accepted as true, establishes that Daily directed overtly racist and sexual comments to plaintiff and engaged in other acts of...