Petty v. Rogue Federal Credit Union

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before JOSEPH; RIGGS
• Citation: Petty v. Rogue Federal Credit Union, 809 P.2d 121, 106 Or.App. 538 (Or. App. 1991)
• Decision Date: 20 June 1991
• Docket Number: J-3
• Parties: Lourdes PETTY, Respondent, v. ROGUE FEDERAL CREDIT UNION, a federally chartered credit union, and Charles Baggett, aka Chuck Baggett, Appellants. 87-672-; CA A61269.

Page 121

809 P.2d 121

106 Or.App. 538

Lourdes PETTY, Respondent, v. ROGUE FEDERAL CREDIT UNION, a federally chartered credit union, and Charles Baggett, aka Chuck Baggett, Appellants.

87-672-J-3; CA A61269.

Court of Appeals of Oregon.

Argued and Submitted May 4, 1990.

Decided April 10, 1991.

Reconsiderations Denied May 15,

and June 20, 1991.

Timothy C. Gerking, Medford, argued the cause, for appellants. With him on the briefs, was Brophy, Wilson, Duhaime, Mills, Schmor & Gerking, Medford.

William G. Carter, Medford, argued the cause and filed the brief, for respondent.

Before JOSEPH, C.J., and RIGGS and EDMONDS, JJ.

RIGGS, Judge.

Plaintiff brought this claim against her former employer and supervisor for intentional infliction of emotional distress and against her supervisor only with respect to intentional interference with an economic relationship. ¹ Defendants appeal the judgment entered on the jury verdict for plaintiff. We reverse.

Plaintiff, a native of Mexico, worked for Jackson County Federal Employees Federal Credit Union (Jackson) from 1967 until it merged with Rogue Federal Credit Union (Rogue) in 1982. She continued to work for Rogue until November 3, 1986. Jackson was a small credit union, and plaintiff was one of only two employees. In the other employee's absence, plaintiff was in complete charge of the office. Plaintiff performed those duties satisfactorily. She received generally favorable performance evaluations throughout her employment with Jackson and also during her employment with Rogue, until 1986. Rogue was a larger credit union than Jackson and had branch offices and various departments. In 1983, plaintiff's supervisors at Rogue perceived that she was having difficulty communicating effectively with customers on the telephone, due to her accent. Rogue created a file clerk position for her in order to prevent her from having to communicate with customers. Sometime after the merger with Rogue, fellow employees heard Rogue's executive vice president make derogatory comments about plaintiff's ethnic background and physical size.

In 1984, defendant Baggett became plaintiff's immediate supervisor. He evaluated her performance in 1985 and indicated that she met the standards in every category. In 1986, Rogue opened a new branch office and transferred plaintiff to it. The file clerk position was eliminated, because the files were divided among the branches and there was not enough filing at any one branch to support a full-time file clerk. Other behind-the-scenes employees were also reassigned to positions that involved dealing with customers of the credit union. Plaintiff was transferred to the new branch as a telephone receptionist. Baggett knew that plaintiff had difficulty communicating with people, especially over the telephone, and that the new position would be very difficult for her. Her previous supervisor felt that being in the new position would almost guarantee her failure.

Immediately after the transfer, plaintiff began experiencing difficulties, especially relating to customer complaints that she was hard to understand because of her accent. She had six to eight meetings with Baggett regarding her job performance between February and August, 1986. Most of the meetings focused on her communication problems. On August 5, Baggett gave plaintiff a 90-day warning notice and told her that, if she did not improve her job performance by the end of that time, she would be terminated. She was given the option to improve her performance, quit or be fired. Baggett did not offer suggestions for how to improve nor did he set up a work plan to help with her performance problems. There were no further meetings, and she was terminated on November 3, 1986.

Plaintiff brought this action for intentional infliction of emotional distress and interference with an economic relationship. The jury returned a verdict for plaintiff on both claims. Defendants assert five assignments of error. Because of our disposition on the other assignments, we do not address the first or fifth.

Defendants assign error to the trial court's denial of their motions for directed verdict on both claims. ² We review the evidence in the light most favorable to plaintiff and will not reverse the denial of a motion for directed verdict unless there is no evidence from which the jury could have found the necessary facts. Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984).

To make out a claim for intentional infliction of emotional distress, a plaintiff must prove

"that (1) defendant intended to inflict severe emotional distress on plaintiff, (2) defendant's acts did in fact cause plaintiff to suffer severe emotional distress, and (3) defendant's acts consisted of 'some extraordinary transgression of the bounds of socially tolerable conduct.' " Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 626, 733 P.2d 430 (1987) (quoting Hall v. The May Dept. Stores, 292 Or. 131, 135, 637 P.2d 126 (1981)).

Defendants argue that their conduct did not transgress the bounds of socially tolerable conduct, because it was not "outrageous in the extreme." See Patton v. J.C. Penney Co., 301 Or. 117, 124, 719 P.2d 854 (1986). In considering the outrageousness of the conduct, we look at the purpose of the conduct and the means used to achieve the result. 301 Or. at 123, 719 P.2d 854.

Plaintiff presented evidence that she had been a competent employee of Rogue and its predecessor for 19 years. The job was a very important part of her life, and she had no other financial resources. Defendants knew that plaintiff had difficulty communicating with customers because of her accent, and they created a file clerk position for her to shield her from customer contact. After the merger with Rogue, its vice president made derogatory comments about plaintiff's ethnic background and physical size.

Despite defendants' knowledge of plaintiff's communication problems, they intentionally assigned her to a position as "number one telephone receptionist," which meant that her primary responsibility was to communicate with customers, either by telephone or in person, even though there were other jobs not involving customer contact that she could have performed. They knew that the assignment would almost guarantee her failure. They began keeping a "close record" of complaints about her. Numerous complaints were documented. Plaintiff was called to Baggett's office on several occasions and told that she was not performing satisfactorily, primarily because of her accent. Neither Baggett nor any other employee gave any suggestions for how she could improve the situation. Plaintiff took the initiative to take an English as a Second Language class in the hope of improving her language skills. Her requests to be moved to a position that did not involve the areas in which she was having problems were denied. Finally, defendants fired her.

Ordinarily, "[t]he act of discharging an employee * * * will not constitute conduct outrageous enough to support a claim for intentional infliction of emotional distress." Madani v. Kendall Ford, Inc., 102 Or.App. 478, 482, 794 P.2d 1250, rev. allowed 310 Or. 475, 799 P.2d 646 (1990). The evidence, viewed in the light most favorable to plaintiff, is that, after plaintiff had performed competently for 19 years, defendants intentionally assigned her to a position in which, because of her accent, she would almost certainly fail and that they supervised her excessively and were overly zealous in documenting complaints. We said in Snyder v. Sunshine Dairy, 87 Or.App. 215, 218, 742 P.2d 57 (1987), that excessive supervision and unjustified reprimands cannot amount to an extraordinary transgression of the bounds of socially tolerable conduct. Similarly, assigning plaintiff to a position...