Patton v. J.C. Penney Co., Inc.

• Decision Date: 11 March 1986
• Parties: , 122 L.R.R.M. (BNA) 2445, 43 Empl. Prac. Dec. P 37,117, 54 USLW 2643, 105 Lab.Cas. P 55,650 David PATTON, Petitioner on review/Respondent on review, v. J.C. PENNEY CO., INC., a Delaware corporation; Wallace McKay; and Richard Chapin, Respondents on review/Petitioners on review. CC 83-11-221/CA A33254/SC S32302, SC S32300.
• Court: Oregon Supreme Court

Page 854

719 P.2d 854

301 Or. 117, 122 L.R.R.M. (BNA) 2445,

43 Empl. Prac. Dec. P 37,117, 54 USLW 2643,

105 Lab.Cas. P 55,650

David PATTON, Petitioner on review/Respondent on review, v. J.C. PENNEY CO., INC., a Delaware corporation; Wallace

McKay; and Richard Chapin, Respondents on

review/Petitioners on review.

CC 83-11-221/CA A33254/SC S32302, SC S32300.

Supreme Court of Oregon.

Argued and Submitted March 11, 1986.

Decided May

20, 1986.

James J. Roberson, Lake Oswego, argued the cause for petitioner/respondent on review Patton, and filed the petition and a reply to the amicus curiae brief.

Jeffrey M. Batchelor, of Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland, argued the cause for respondents/petitioners on review J.C. Penney Co., et al. With him on the petition was Richard F. Liebman, Portland.

Susan P. Graber and Eileen Drake, of Stoel, Rives, Boley, Fraser & Wyse, Portland, filed a brief amicus curiae on behalf of Tektronix, Inc.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

JONES, Judge.

David Patton filed suit against J.C. Penney Co. and two supervisors, McKay and Chapin, alleging both "wrongful discharge" from employment and "outrageous conduct." ¹ The trial court granted defendants' motion to dismiss for failure to state a claim on both counts.

Plaintiff then appealed to the Court of Appeals. That court affirmed the dismissal of the wrongful discharge claim, but reversed on the intentional infliction of severe emotional distress claim, sending it back for trial in the circuit court. 75 Or.App. 638, 707 P.2d 1256 (1985). In addressing the wrongful discharge claim, the Court of Appeals acknowledged that there are exceptions to the general rule that an employer may discharge an employe at any time and for any reason, but the court found that plaintiff's claim did not qualify under any exception to the general rule.

On the intentional infliction of severe emotional distress claim, the Court of Appeals concluded that a jury could find from the facts pled that "defendants exceeded the bounds of social toleration when they terminated plaintiff's employment, and that they acted with a reckless disregard of the predictable effects of their actions on plaintiff." We conclude that plaintiff has no claim under either theory.

This case comes to us on the pleadings, which allege the following facts:

Defendant J.C. Penney Co. hired plaintiff in 1969. Plaintiff worked in Eugene until 1980 when he was transferred to Portland where he worked as a merchandising manager. In 1981, the store manager, defendant McKay, told plaintiff to break off a social relationship with a female co-employe. Plaintiff responded by telling McKay that he did not socialize with the co-employe at work and that he intended to continue seeing her on his own time. Apparently, the social relationship did not interfere with plaintiff's performance at work, for during this time he earned several awards for "Merchant of the Month" and one for "Merchant of the Year."

McKay later, while interrogating other employes about whether plaintiff had broken off the relationship, made statements to the effect that if plaintiff wanted to keep working he had to discontinue the relationship. Although no written or unwritten policy, rule or regulation proscribed socializing between employes, other employes told plaintiff that McKay disfavored plaintiff's fraternization with the female co-employe. Nevertheless, plaintiff continued seeing the co-employe. When McKay warned plaintiff in late 1981 that his job performance was unsatisfactory and that he would be fired if there was no improvement, plaintiff asked for a transfer to another department. McKay denied the request. In February 1982, McKay terminated plaintiff's employment for unsatisfactory job performance. The district manager, defendant Chapin, approved the termination.

WRONGFUL DISCHARGE

Generally an employer may discharge an employe at any time and for any reason, absent a contractual, statutory or constitutional requirement. Simpson v. Western Graphics, 293 Or. 96, 99, 643 P.2d 1276 (1982); Nees v. Hocks, 272 Or. 210, 216, 536 P.2d 512 (1975). Termination of employment ordinarily does not create a tortious cause of action. Nees, 272 Or. at 216, 536 P.2d 512. We have set forth exceptions to the general rule which are discussed in a series of cases.

In Nees v. Hocks, supra, the employer fired the employe for disregarding its wishes that the employe ask to be excused from jury duty. In fact, the employe told the court clerk that she would like to serve on jury duty. This court held that the jury system and jury duty are important American institutions and citizen obligations: "If an employer were permitted with impunity to discharge an employe for fulfilling her obligation to jury duty, the jury system would be adversely affected. The will of the community would be thwarted." 272 Or. at 219, 536 P.2d 512. Defendant could thus be held liable for discharging plaintiff for serving on the jury.

In Delaney v. Taco Time Int'l., 297 Or. 10, 681 P.2d 114 (1984), this court held that an employer could be held liable for discharging an employe who refused to sign a false and potentially defamatory statement about a former co-employe. The court found that Article I, section 10, of the Oregon Constitution, recognizes an obligation on members of society not to defame others. Therefore, the court said that the defendant could not discharge plaintiff for fulfilling a societal obligation. 297 Or. at 17, 681 P.2d 114.

A wrongful discharge claim may also exist when an employe is fired for pursuing private statutory rights directly relating to the employe's status or role as an employe. Holien v. Sears, Roebuck and Co., 298 Or. 76, 90, 689 P.2d 1292 (1984). In Holien, the court found plaintiff's allegations that she was fired for resisting sexual harassment sufficient to state a claim because on-the-job sexual harassment by supervisors is forbidden by state and federal law. See also Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978) (employe who alleged that he had been discharged for filing workers' compensation claim allowed to bring a tort claim because statutes forbidding discrimination against employe who files workers' compensation claim constitute legislative recognition of an important public policy and the discharge frustrated that substantial public interest).

We have rejected wrongful discharge claims under a third category where the law provides other remedies than a common law remedy for wrongful discharge. For example, in Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1977), this court found that an additional tort remedy for wrongful discharge was unnecessary when an employee was discharged for complaining about a safety violation for which there were statutory remedies.

Plaintiff does not allege that his discharge was for pursuing statutory rights related to his status as an employe. Nor does plaintiff allege interference with an interest of public importance equal or analogous to serving on a jury or avoiding false, defamatory remarks. Plaintiff claims that certain of his "fundamental, inalienable human rights were compromised, put on the auction block, and made the subject of an illicit barter in that he was forced to forego these rights or to purchase them with his job." He claims that the employer invaded his personal right of privacy and that the employer could not fire him for pursuing a private right. But these claims blur "rights" against governmental infringement with "rights" against a private employer. Plaintiff's acts were voluntary and no state or federal law mandates or prohibits discrimination on that account. It may seem harsh that an employer can fire an employe because of dislike of the employe's personal lifestyle, but because the plaintiff cannot show that the actions fit under an exception to the general rule, plaintiff is subject to the traditional doctrine of "fire at will."

The Court of Appeals is affirmed on this issue.

INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS

Count II of plaintiff's allegations demonstrates that he is attempting to plead the emerging tort of intentional infliction of severe emotional distress, which consists of several elements. First, ordinarily a plaintiff must allege that a defendant intended to inflict severe mental or emotional distress. It is not enough that he intentionally acted in a way that causes such distress. Second, a defendant's act must in fact cause a plaintiff severe mental or emotional distress. Third, a defendant's actions must consist of "some extraordinary transgression of the bounds of socially tolerable conduct" or the actions must exceed "any reasonable limit of social toleration." Hall v. The May Dept. Stores, 292 Or. 131, 135, 137, 637 P.2d 126 (1981).

Summarizing plaintiff's pleadings, we observe that plaintiff alleged:

(1) Defendants intended to inflict severe emotional distress on plaintiff.

(2) The acts did cause severe emotional distress.

(3) The impermissible act that constituted "extraordinary transgression of the bounds of socially tolerable conduct" was McKay's dismissal of the plaintiff because he asserted his private right to associate with a female co-employe.

Thus, the pleadings are technically sufficient if the underlying act exceeds the bounds of socially tolerable conduct.

Even if defendant fired plaintiff for refusing to break off a relationship with a co-employe and this was intended to, and in fact did, inflict severe emotional distress, the act of firing is not beyond the bounds of socially acceptable behavior. We have just held that the act of discharging the plaintiff because his supervisor did not approve of plaintiff's private relationship with a co-employe is not actionable on a theory of wrongful discharge.

Of course, the fact that an act is lawful does not mean that it is not actionable if the...