Schram v. Albertson's, Inc.

• Decision Date: 19 February 1997
• Parties: Jeanie SCHRAM, Appellant, v. ALBERTSON'S, INC.; David Cooper; and Theodore (Ted) Sturgill, Respondents. 9411-07604; CA A91574.
• Court: Oregon Court of Appeals

Page 483

934 P.2d 483

146 Or.App. 415

Jeanie SCHRAM, Appellant, v. ALBERTSON'S, INC.; David Cooper; and Theodore (Ted) Sturgill, Respondents.

9411-07604; CA A91574.

Court of Appeals of Oregon.

Argued and Submitted Dec. 3, 1996.

Decided Feb. 19, 1997.

Charles J. Merten, Beaverton, argued the cause and filed the briefs, for appellant.

Corbett Gordon, Portland, argued the cause for respondent Albertson's, Inc. With her on the brief was Corbett Gordon & Associates.

Barbee B. Lyon, Portland, argued the cause, for respondent David Cooper. With him on the brief were Peter H. Koehler, Jr., and Tonkon, Torp, Galen, Marmaduke & Booth.

Ralph F. Rayburn, Portland, argued the cause and filed the brief, for respondent Theodore Sturgill.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

EDMONDS, Judge.

Plaintiff appeals from summary judgment in favor of defendants Albertson's, Sturgill, and Cooper on plaintiff's claims of unlawful employment discrimination under ORS 659.030, common law wrongful discharge, and intentional interference with an employment relationship. Summary judgment is appropriate if the moving party can show that the pleadings, depositions and affidavits raise no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ORCP 47C; Jones v. General Motors Corp., 139 Or.App. 244, 911 P.2d 1243, rev. allowed 323 Or. 483, 918 P.2d 847 (1996). In deciding whether summary judgment is appropriate, plaintiff is entitled to have all reasonable inferences drawn in her favor. Stoeger v. Burlington Northern Railroad Co., 323 Or. 569, 572, 919 P.2d 39 (1996). We reverse and remand as to all claims against Albertson's and as to the claims for intentional interference with an employment relationship against Sturgill and Cooper; otherwise, we affirm.

BACKGROUND AND FACTUAL INFORMATION

Plaintiff was the first woman hired by Albertson's as a dispatcher in any of its nine distribution and transportation centers around the country. Dispatchers supervise Albertson's truck drivers and are the lowest level of management within the transportation department. Plaintiff began working in September 1992 and left her employment in December 1993. Cooper was the transportation superintendent at the Portland site and plaintiff's immediate supervisor. Cooper was supervised by Sturgill, who was the manager of the transportation department. Sturgill reported to the center's general manager, Frank Riddle. Riddle and Sturgill hired plaintiff. The other individual who plays a prominent role in this case is Jeff Harum. Harum was terminated by Albertson's for sexually harassing plaintiff in October 1993. In describing the facts of this case, we have separated them into two categories: (1) the treatment of plaintiff before Harum's termination, and (2) the treatment of plaintiff after Harum's termination.

(1) When the evidence is viewed in the light most favorable to plaintiff, it shows the following: Harum was a friend of Sturgill and Cooper. Defendants do not dispute that Harum sexually harassed plaintiff before he was terminated. Plaintiff reported Harum's abuse to Cooper and Sturgill many times but, according to plaintiff, they ignored her. Also, plaintiff offered evidence that Cooper embarrassed her in front of a driver by making a joke about a "whore show" and dismissed her objection to the joke by accusing her of being "sentimental." Additionally, Cooper was present when Harum called plaintiff a "fucking cunt" and took no action.

Sturgill was present on more than one occasion while Harum was harassing plaintiff. According to plaintiff, Sturgill took no action to stop Harum's conduct and encouraged him by siding with him against plaintiff. Sturgill was also present when Cooper laughed at the clothes that plaintiff was wearing and said she "looked like fucking Peter Pan with bows." Again, Sturgill did not admonish Cooper. When plaintiff complained, Sturgill summarily dismissed her reports of harassment by both Harum and Cooper and told her that she was "allowing her emotions to get in the way of her job."

Plaintiff offered other evidence that Sturgill denigrated her work performance by saying she was "cute" but was not doing her job. He once cursed at her for wearing jeans on a Saturday, telling her they were too tight and caused "men's balls to swell up just like grapes." He told plaintiff to forget her "dream" of becoming a transportation manager at Albertson's because Albertson's does not "have women transportation managers, and we are not about to start."

In September 1993, plaintiff complained about Harum's treatment of her to the personnel manager in Portland. He encouraged plaintiff to report the matter to Riddle. She followed his advice and Harum was suspended and later terminated.

(2) After Harum was terminated, plaintiff claims that Sturgill and Cooper began to act in a retaliatory manner towards her. She offered evidence that she was constantly criticized by them for things that had not generated criticism while Harum was there. There is evidence that Cooper ranted, raved, screamed, yelled, and swore at her. Sturgill also required only plaintiff and not the male dispatchers to arrive 15 minutes early for their shift.

Also, there is evidence that other employees noticed that after Harum was terminated, Sturgill's and Cooper's treatment of plaintiff worsened. Roger Priest, a driver for Albertson's, states in his affidavit: "After Jeff Harem [sic ] was terminated, Defendants Sturgill and Cooper became much more hostile toward plaintiff, and spoke of her in much more negative ways." Also, plaintiff testified in her deposition that another driver, Jeff Siefert, told her "I've noticed ever since Jeff's been gone that you've had a lot harder time." ¹ Plaintiff also testified in her deposition that Steve Belliveau, during a conversation with her, expressed a belief that she was targeted for different treatment after Harum was fired.

On December 8, 1993, plaintiff arrived at work and saw a note to call Cooper about a mistake she had made regarding delivery of certain sundries to the Seattle stores. Plaintiff and Cooper spoke over the telephone and got into a disagreement. Cooper became furious and started swearing at plaintiff. Plaintiff became upset and started crying. Because plaintiff had to dispatch a driver immediately, she told Cooper that she had to go and hung up the telephone. Cooper called back, even more angry that plaintiff had hung up on him, and screamed at plaintiff to "get [her] ass in the office an hour early tomorrow" so that he and Sturgill could meet with her. Plaintiff then left work and had no further contact with Albertson's or any of its employees.

THE PLEADINGS

In November 1994, plaintiff filed a complaint alleging: (1) that Albertson's, Sturgill, and Cooper had sexually harassed and discriminated against her in violation of ORS 659.030; (2) that she had been constructively discharged on December 8, 1993, because Sturgill and Cooper, "acting in the course and scope of their employment," retaliated against her for reporting Harum's sexual harassment; and (3) that Sturgill and Cooper had intentionally interfered with her employment relationship with Albertson's. Defendants moved for summary judgment, and the trial court entered summary judgment for all defendants on all claims. Plaintiff then filed this appeal.

THE ORS 659.030 CLAIMS

We first address whether the trial court properly granted summary judgment to Albertson's on plaintiff's claims of gender discrimination and sexual harassment under ORS 659.030. Albertson's argued to the trial court that summary judgment was proper because plaintiff did not present any evidence that Riddle was aware of the discrimination by Cooper or Sturgill. Plaintiff countered that Albertson's was on notice about the discrimination because corporate managers (Cooper and Sturgill) were participants in the discrimination. Albertson's responded that Cooper's and Sturgill's knowledge does not matter because they are not management level employees. The trial court held that our decision in Mains v. II Morrow, Inc., 128 Or.App. 625, 635, 877 P.2d 88 (1994), required plaintiff to present facts "sufficient for a reasonable juror to conclude that defendant Albertson's knew or should have known of the specific conduct complained of in this case" and that plaintiff had presented no evidence to preclude summary judgment.

The trial court's ruling on the required level of knowledge is not correct as to all of the allegations of unlawful employment practices made by plaintiff under the statute. ORS 659.010(6) defines an "employer" as

"any person, * * * who in this state, directly or through an agent engages or utilizes the personal service of one or more employees reserving the right to control the means by which such service is or will be performed."

Thus, for purposes of discrimination by an "employer" under ORS 659.030, the act of an agent, who acts within his or her scope of authority in a discriminatory fashion, constitutes an act of the employer.

One of the allegations of discrimination against Albertson's is that it paid her a lower wage than similarly-situated male employees. Another allegation is that Albertson's required her to report to work 15 minutes earlier than anyone else on her shift because of her sex. Those are the kinds of allegations that require no proof of a particular level of scienter other than that the discriminatory decisions are made by someone who has the authority to make those kinds of decisions on behalf of the employer. It is inferable from plaintiff's evidence that decisions about the amount of wages and other working conditions, such as when to report to work, were made by individuals to whom Albertson's had given that kind of authority. Under the statute, those decisions are imputed to Albertson's.

Our decision in Mains is not to the contrary. In that case, the plaintiff...