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

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: VAN HOOMISSEN
• Citation: Patton v. J.C. Penney Co., Inc., 707 P.2d 1256, 75 Or.App. 638 (Or. App. 1985)
• Decision Date: 06 December 1985
• Docket Number: No. 83-11-221,83-11-221
• Parties: , 120 L.R.R.M. (BNA) 3131, 54 USLW 2292 David PATTON, Appellant, v. J.C. PENNEY CO., INC., a Delaware corporation; Wallace McKay; and Richard Chapin, Respondents. ; CA A33254.

Page 1256

707 P.2d 1256

75 Or.App. 638, 120 L.R.R.M. (BNA) 3131,

54 USLW 2292

David PATTON, Appellant, v. J.C. PENNEY CO., INC., a Delaware corporation; Wallace McKay; and Richard Chapin, Respondents.

No. 83-11-221; CA A33254.

Court of Appeals of Oregon.

Argued and Submitted May 15, 1985.

Decided Oct. 9, 1985.

Reconsideration Denied Dec. 6, 1985.

James J. Roberson, Lake Oswego, argued the cause and filed the briefs for appellant.

Jeffrey M. Batchelor, Portland, argued the cause for respondents. With him on the brief were Richard F. Liebman, and Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland.

Before GILLETTE, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

VAN HOOMISSEN, Judge.

This is an action for wrongful discharge and outrageous conduct. Plaintiff appeals from a judgment dismissing his complaint for failure to state a claim. ORCP 21 A. ¹ The dispositive issue is whether the complaint, construed under the assumption that the well-pleaded facts are true, states a claim. That is a question of law. See Paddack v. McDonald, 294 Or. 667, 672, 661 P.2d 545 (1983); See Turrini v. Gulick, 16 Or.App. 167, 169, 517 P.2d 1230, rev. den. (1974); we affirm in part, reverse in part and remand.

Plaintiff was hired by defendant J.C. Penney Co. in 1969. He worked in Eugene until 1980. His last two years there were as a merchandising manager. He was then transferred to Portland, where he continued to work as a merchandising manager. Throughout his employment, he discharged his duties in a satisfactory manner. In 1981, he received the "Merchant of the Year" award in his store, and he earned the "Merchant of the Month" award in October, 1981, and January, 1982. In November and December, 1981, he also came close to earning that award.

In October, 1981, defendant McKay, J.C. Penney's store manager, told plaintiff to discontinue a social relationship with a female co-worker. J.C. Penney has no general policy prohibiting socializing among employes. Plaintiff told McKay that he did not socialize with the co-worker at work and that he intended to continue the relationship. Plaintiff had the co-worker transferred to another department within the store with which he was not connected. McKay asked plaintiff's other co-workers if plaintiff had broken off the relationship. He intimated to them that that was necessary if plaintiff wanted to continue working. That information was given to plaintiff by his co-workers, but not by McKay.

Plaintiff continued seeing the co-worker. In late 1981, McKay warned plaintiff that his job performance was unsatisfactory and that he would be terminated if there was no improvement. Plaintiff's request for a transfer to another store was denied. In February, 1982, McKay terminated plaintiff for unsatisfactory job performance. Defendant Chapin, J.C. Penney's district manager, approved the termination. After he was terminated, plaintiff and the co-worker were married. At the time he terminated plaintiff, McKay knew that plaintiff was responsible for the support of three children.

Plaintiff first assigns as error the dismissal of his claim for wrongful termination. He argues that defendants infringed interests of sufficient societal importance to justify an exception to the general rule that no action can be brought for terminating an at will employe. Defendants argue that plaintiff has not pleaded facts showing any constitutional or statutory violation and, thus, has not shown an interest of sufficient societal importance to justify a cause of action in tort.

Generally, in the absence of a contractual, statutory or constitutional requirement, an employer may discharge an employe at any time and for any reason, or no reason at all. 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).

There are public policy exceptions to this general rule. The first concerns termination for fulfilling a societal obligation so that the termination thwarts an important public interest. In Nees v. Hocks, supra, an employe was discharged for serving on a jury. The Supreme Court held that the employer was liable in damages for discharging the plaintiff because she served on the jury. In Delaney v. Taco Time Int'l, 297 Or. 10, 17, 681 P.2d 114 (1984), a restaurant manager was terminated for refusing to sign a libelous and false statement of reasons for the discharge of another employe. The Supreme Court found that people have an obligation, rooted in the Oregon Constitution, not to defame others. Delaney v. Taco Time Int'l, supra; see Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959).

The second exception concerns termination for pursuing a statutory right directly related to the plaintiff's role as an employe. In Brown v. Transcon Lines, 284 Or. 597, 588 P.2d [75 Or.App. 642] 1087 (1978), an employe was discharged for filing a workers' compensation claim. The Supreme Court held that the complaint stated a claim, because ORS 659.410, which makes discrimination against an employe who files a workers' compensation claim an unlawful employment practice, constitutes legislative recognition of an important and protectablepublic policy. See Holien v. Sears Roebuck and Co., 298 Or. 76, 689 P.2d 1292 (1984); McQuary v. Bel Air Convalescent Home, Inc., 69 Or.App. 107, 684 P.2d 21 (1984); compare Campbell v. Ford Industries, Inc., 274 Or. 243, 546 P.2d 141 (1976) (employe discharged for exercising statutory right to inspect corporate records failed to state cause of action).

In Delaney v. Taco Time Int'l, supra, the Supreme Court explained that under some circumstances no action will lie even though termination frustrates an important social interest, because the employe has an adequate administrative remedy that protects the interest of society. See Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1977). Plaintiff concedes that in socializing with a co-worker, he was not engaged in the performance of a societal obligation and that his conduct in that regard is not protected by a statute. He argues, however, that he is protected by constitutional rights to privacy and association and that, when defendants terminated him, they violated those rights. ² Although he argues that his interest in social dating is a constitutionally protected privacy and associational interest, he cites no authority on point. He relies instead on Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), cases which involve state action restricting marriage and the decision whether to bear children. Plaintiff does not allege any state action in this case.

We conclude that plaintiff has failed to allege interference with an interest of such public importance that the general rule concerning employment at will should not apply. ³ The trial court was correct in dismissing plaintiff's wrongful termination claim.

Plaintiff next assigns as error the dismissal of his claim for outrageous conduct. He argues that the facts pleaded show that defendants intended to inflict emotional distress on him. Defendants argue that a reasonable jury could not find that the conduct here was intolerable social behavior. See Hall v. The May Dept. Stores, 292 Or. 131, 137, 637 P.2d 126 (1981).

In Bodewig v. K-Mart, Inc., 54 Or.App. 480, 635 P.2d 657 (1981), rev. den. 292 Or. 450, 644 P.2d 1128 (1982), we determined that an employer and an employe stand in a special relationship for purposes of the tort of outrageous conduct. ⁴ We stated:

"An employer has even more authority over an employe, who, by the nature of the relationship, is subject to the direction and control of the employer and may be discharged for any or no reason, absent an agreement restricting that authority. Clearly, that relationship is not an arm's length one between strangers. Accordingly, we conclude that the relationship between plaintiff and K-Mart was a special relationship, based on which liability may be imposed if K-Mart's conduct, though not deliberately aimed at causing emotional distress, was such that a jury might find it to be beyond the limits of social toleration and reckless of the conduct's predictable effects on plaintiff." Bodewig v. K-Mart, Inc., supra, 54 Or.App. at 486, 635 P.2d 657.

We held that the trial court erred in granting summary judgment for the defendants. We concluded that issues of fact were presented concerning whether the defendant's manager's conduct, i.e., subjecting plaintiff to a strip search to satisfy an unreasonable customer who had mistakenly accused her of stealing, exceeded the bounds of social toleration and was in reckless disregard of its predictable effects on plaintiff. See Brewer v. Erwin, 287 Or. 435, 600 P.2d 398 (1979).

In Hall v. The May Dept. Stores, supra, the Supreme Court held that the plaintiff, a sales clerk, had stated a claim for outrageous conduct when she was unjustifiably accused of stealing and was told that she would go to prison if she did not confess. The court held that a jury could infer that the "method of interrogation was an extraordinary transgression of contemporary standards of civilized conduct toward an employee." 292 Or. at 141, 637 P.2d 126.

Taking plaintiff's well-pleaded facts as true, the record shows that plaintiff was told that he must discontinue a social relationship with a co-worker, even though it was conducted away from work and violated none of the employer's policies. When plaintiff refused to terminate the relationship, his manager became angry, questioned plaintiff's co-workers about the relationship, intimated to them that plaintiff would lose his job if the relationship continued and did not directly inform plaintiff of this fact. Plaintiff, an otherwise exemplary employe, allegedly was terminated solely for refusing to discontinue a social relationship that had no...