Meagher v. Lamb-Weston, Inc.

• Decision Date: 01 June 1993
• Docket Number: No. CV 92-216-JE.,CV 92-216-JE.
• Citation: 839 F. Supp. 1403
• Parties: Ronda K. MEAGHER and Elizabeth Moore, Plaintiffs, v. LAMB-WESTON, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Oregon

839 F. Supp. 1403

Ronda K. MEAGHER and Elizabeth Moore, Plaintiffs, v. LAMB-WESTON, INC., a Delaware corporation, Defendant.

No. CV 92-216-JE.

United States District Court, D. Oregon.

February 16, 1993.

Opinion on Reconsideration June 1, 1993.

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Richard C. Busse, Portland, OR, for plaintiffs.

Gordon L. Osaka and Janet C. Knapp, Portland, OR, for defendant.

OPINION

PANNER, District Judge.

Magistrate Judge Jelderks filed his Findings and Recommendation on November 2, 1992. The magistrate recommended I deny defendant's motion for partial summary judgment on plaintiff's claim for intentional infliction of emotional distress ("IIED"), but grant defendant's motion to strike plaintiff's demand for punitive damages on the IIED claim. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R.Civ.P. 72(b). Plaintiff has timely objected. When either party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo review of that portion of the Magistrate's report. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The district court must also review de novo the legal principles in the entire report, not just the part objected to. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983).

I decline to adopt the Magistrate's Findings and Recommendation. Instead, I grant defendant's motion for partial summary judgment on the IIED claim. The demand for punitive damages is now moot.

BACKGROUND

Plaintiffs Meagher and Moore were employees of defendant's food processing facility in Hermiston. Both commenced working for defendant in 1973. Meagher resigned in July, 1992. Moore is still employed there. Roger Krug was employed by defendant since 1970, first at its Quincy plant and later at its Connell and Richland facilities. Throughout his employment at Lamb-Weston, Krug displayed a penchant for telling off-color jokes, commenting on the attributes of female employees or his own perceived sexual prowess, engaging in offensive gestures and touching, and otherwise conducting himself inappropriately. Though defendant apparently never received a formal written complaint regarding Krug, a number of oral complaints were made. Krug's behavior was fairly common knowledge, as was his nickname, "Roger Crude."

On a number of occasions Krug's superiors admonished him about this behavior. Sometimes Krug briefly toned down his act, but the improvement was ephemeral. Although defendant was arguably aware of Krug's propensities, it nonetheless promoted him in 1989 to operations manager at the Hermiston facility where plaintiffs were employed. Upon arriving in Hermiston, Krug resumed his inappropriate behavior. Krug's antics are detailed at great length in Plaintiff's Objections, so there is no need to repeat them here. Meagher complained to some of her superiors, but Krug's behavior continued. This lawsuit followed.

STANDARDS

The court should grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). If the moving party shows there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steel-workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989).

The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The court should resolve reasonable doubts about the existence of a material factual issue against the moving party. Id. at 631. The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. Id. at 630-31.

DISCUSSION

Intentional Infliction of Emotional Distress:

To state a claim for IIED, the plaintiff must show (1) defendant intended to inflict severe emotional distress on plaintiff, (2) defendant's acts were the cause of plaintiff's severe emotional distress, and (3) defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct. Sheets v. Knight, 308 Or. 220, 236, 779 P.2d 1000 (1989).

1. Intent to Inflict Severe Emotional Distress on Plaintiff:

Plaintiff's detail dozens of alleged incidents involving Krug, but their knowledge of those incidents is mostly based on hearsay accounts provided by other employees. Many of the incidents didn't even occur at the Hermiston plant where plaintiffs were employed. Krug's conduct towards others may be relevant from the standpoint of demonstrating intent to cause extreme distress, or to show management was aware of his antics. However, only the conduct plaintiffs experienced is actionable. See Christofferson v. Church of Scientology, 57 Or.App. 203, 215 n. 9, 644 P.2d 577 (1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 439, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).

The "fingers through her hair" remark is the only incident plaintiff Moore recalls in which Krug directed an off-color joke, vulgar word, or any other offensive conduct at her in particular. Moore Dep. at 42. The only conduct explicitly directed at plaintiff Meagher was a disparaging remark about her legs, and an allegedly defamatory comment made outside her presence.¹

Meagher or Moore were also present during occasions when Krug told offensive jokes, used vulgar words, pinched an employee's buttocks, wore the infamous potato tie, and showed Tom Wamsley an obscene illustration. Even assuming Krug was aware of plaintiffs' presence and was directing his conduct towards them, the evidence does not support an inference that Krug intended to inflict severe emotional distress on plaintiffs.

Lack of foresight, indifference to possible distress, and even gross negligence are not enough to establish a claim for IIED under Oregon law. See Hall v. The May Department Stores, 292 Or. 131, 135, 637 P.2d 126 (1981). Nor is it enough that defendant intentionally acted in a way that causes such distress. Patton v. J.C. Penney Co., 301 Or. 117, 122, 719 P.2d 854 (1986). The key focus in IIED cases is not on the result, but on the purpose and the means used to achieve it. Id. at 123, 719 P.2d 854. Krug's antics were obnoxious and immature, but did not evidence an intent to inflict severe emotional distress. At worst a jury might find Krug's antics were intended to make the listener uncomfortable.

Plaintiffs argue that since defendant was aware of Krug's propensity for inappropriate conduct, and promoted him anyhow, defendant must have intended for Krug to act in this manner. Defendant should have confronted the situation more aggressively than it did, but that by itself cannot support a finding that defendant intended for Krug to sexually harass female employees, or to inflict severe emotional distress on them.

Plaintiffs also contend Krug and/or defendant need only have acted with "knowledge" or "reckless disregard" for the emotional distress that might be inflicted upon plaintiffs. Although earlier cases suggested recklessness might suffice in an employment situation, that dictum has since been partially disavowed. See Franklin v. Portland Community College, 100 Or.App. 465, 470 n. 1, 787 P.2d 489 (1990). Assuming the employer-employee relationship warrants application of a lower mental state requirement, the employer must have acted with "knowledge" of the consequences, i.e. substantial certainty, not just "reckless disregard for the consequences." Id.²

Plaintiffs cannot establish Krug or defendant knew plaintiffs would suffer severe emotional distress. Although Moore occasionally told Krug she thought a joke was "gross," she never asked him to stop telling stories. "It was probably just as easy for me to get up and leave ... because the other gals that wanted to hear it stayed there." Moore Dep. at 34. Likewise, Meagher concedes she never confronted Krug about his behavior. Meagher Dep. at 111.

In plaintiffs' favor, there is evidence that over the years several people had spoken to Krug about his behavior. Michael Henderson warned Krug to be careful because his sexual jokes could get him charged with sexual harassment someday. Krug told Henderson not to worry because people know when I'm joking. Henderson Dep. at 6, 10. Trudy Johnson told Krug point-blank that she did not appreciate his behavior towards her. Thereafter, Krug left her alone. Trudy Johnson Interview. Thus plaintiffs may be able to show Krug was aware his behavior might offend people. That falls far short of showing Krug or defendant knew it was substantially certain his behavior would inflict severe emotional distress upon employees.

Plaintiffs suggest Krug "knew" Meagher would suffer extreme distress as a result of his actions towards other women because Krug knew Meagher would be the individual to hear complaints from other employees due to her position within the company. Meagher Aff. ¶ 2. Plaintiffs' theory of liability would create a cause of action on behalf of anyone who predictably learns second-hand about an outrageous incident. That is not the law.

Plaintiffs also contend an act directed at any female employee was an act directed at plaintiffs because Krug's conduct created a "sexually hostile working environment." Plaintiffs' expert asserts women may suffer emotional distress on account of sexual harassment directed at other women,...