Wheeler v. Marathon Printing, Inc.
| Decision Date | 25 November 1998 |
| Citation | 974 P.2d 207,157 Or.App. 290 |
| Parties | , 14 NDLR P 12 Edward WHEELER, Respondent, v. MARATHON PRINTING, INC., and Gary Wilkinson, Appellants. 9501-00698; CA A93256. |
| Court | Oregon Court of Appeals |
Robert M. Hildum argued the cause for appellants. With him on the briefs were Brian J. Sunderland, Clackamas, Ridgway K. Foley, Jr., and Greene & Markley, Portland.
Benjamin Rosenthal, argued the cause for respondent. With him on the brief was B. Carlton Grew, Portland.
Before HASELTON, Presiding Judge, and De MUNIZ * and LINDER, Judges.
Defendants Marathon Printing, Inc. (Marathon) and Gary Wilkinson, plaintiff's employer and coemployee, appeal. They assert, inter alia, that the trial court erred in denying their directed verdict motions against plaintiff's claims for unlawful discrimination on the basis of a mental disability, ORS 659.425, and intentional infliction of emotional distress, and in denying their motions to dismiss plaintiff's punitive damage allegations on those claims as being impermissibly based on expression. Or Const, Art I, § 8; Wheeler v. Green, 286 Or. 99, 117-19, 593 P.2d 777 (1979). We reverse the judgment against Marathon for intentional infliction of emotional distress, but otherwise affirm.
Viewing the evidence and reasonable inferences in the light most favorable to plaintiff, 1 the record discloses the following facts: Defendant Marathon is a printing company located in Portland, which specializes in printing numbered racing bibs for foot races. Marathon's owner, Ken Zirk, started the company in 1989 and, at that time, hired plaintiff as a press operator. From February 1989 to August 1993, plaintiff worked at Marathon under Zirk's supervision. During that time, plaintiff worked with defendant Wilkinson who was also a press operator. While employed at Marathon, plaintiff, who was valued because of his ability to operate two presses simultaneously, received annual merit-based raises and bonuses.
Marathon is a relatively small company, with fewer than 10 employees. The physical layout of the Marathon facility included a front office, the "shop" where plaintiff, Zirk, Wilkinson, and the other press operators worked, the shipping area which was adjacent to the shop, but separated by a partition, and the "prep" department--typesetting and camera--which was located on a separate floor. At all material times, plaintiff worked in the shop, operating two Chief 15 presses which were located side-by-side and adjacent to Wilkinson's workstation. Zirk also operated a Chief 15 press; however, his press was located across the shop and out of the line of vision from plaintiff's and Wilkinson's workstations.
In the fall of 1991, the work environment at the Marathon facility, and plaintiff's ability to perform his job in that environment, began deteriorating. That deterioration was precipitated by a comment by Wilkinson that if plaintiff would give him a "blow job," Wilkinson would "owe" him two. Wilkinson claimed that that comment was a joke. However, plaintiff, who had been sexually molested as a child and had sought counseling to aid him in dealing with issues of sexual orientation, did not understand it as a "joke." Instead, plaintiff was devastated by the comment and sought additional counseling.
Nonetheless, plaintiff and Wilkinson continued to work side-by-side. Wilkinson continued his harassment, calling plaintiff a "zit nose faggot" and "flipping him off" between four and 10 times a day for several months. Finally, in November 1992, plaintiff could not deal with Wilkinson's behavior any longer and asked Wilkinson not to speak to him and to leave him alone. A month later, when the harassment had not stopped, plaintiff told Zirk about Wilkinson's conduct and asked him to make Wilkinson stop. Zirk responded that plaintiff should "try to get along" with Wilkinson. Zirk did not speak to Wilkinson about the harassment at that time.
Wilkinson's harassment continued unabated. In January 1993, plaintiff's car was "keyed" while parked at work. 2 That same night, plaintiff's car was damaged by a brick while it was parked at his home. The next day, plaintiff's car again was "keyed" while parked at work, and plaintiff found a picture of a dog in the camera area which had his name written under it. Wilkinson knew plaintiff's car, knew where plaintiff lived, and had a work schedule similar to plaintiff's.
At the same time, plaintiff's mental health deteriorated: He broke down and cried when discussing work with family and friends; he lost considerable weight; and he was unable to sleep. On several occasions, plaintiff was unable to complete his shifts because of Wilkinson's harassment.
On February 4, 1993, plaintiff again asked Zirk to stop the harassment. Zirk responded that plaintiff needed to "work out" the problem with Wilkinson. Plaintiff replied that he would quit if the harassment did not stop, and Zirk simply told him to "put it in writing."
That night plaintiff attempted suicide. He did so, he later explained, because he could no longer cope with the harassment, because his work was everything to him, and because he believed Zirk had betrayed him through his nonresponsiveness.
While hospitalized following the suicide attempt, plaintiff was diagnosed with major depression and prescribed an antidepressant. Thereafter, plaintiff again sought counseling, and, despite his earlier threat to quit, returned to work four days after the suicide attempt. Plaintiff requested a workers' compensation claim form and informed Zirk that his attempted suicide was due to Wilkinson's harassment and that he was taking medication. Plaintiff also asked Zirk to make changes in the work environment to minimize plaintiff's contact with Wilkinson. Specifically, plaintiff suggested that: (1) his workstation--the two Chief 15 presses--be moved away from Wilkinson's workstation; or (2) he be moved to another job either in the upstairs "prep" department or in the shipping area; or (3) he and another coworker be allowed to work a graveyard shift. Zirk denied each of these requests with little explanation, except to indicate that plaintiff was too valuable on the presses to move to another position.
Zirk eventually discussed plaintiff's allegations with Wilkinson and told Wilkinson that if he did not stop, he would be fired. When Wilkinson denied any harassment, Zirk did not press the matter further.
Wilkinson was aware of plaintiff's suicide attempt. Indeed, he gave another coworker a note that stated that he thought plaintiff needed "professional help." Nonetheless, and despite Zirk's warning, Wilkinson continued to harass plaintiff.
In April 1993, having no success in changing the conditions at work, plaintiff had his counselor, Wahlstrom, write to Zirk, expressing his concerns about the impact of the harassment and work environment on plaintiff's mental health. Although Zirk understood, or at least believed that plaintiff was, in fact, depressed and that plaintiff's work had deteriorated during the time plaintiff had complained of the harassment, he still did not act on plaintiff's requests to minimize his contact with Wilkinson. 3
Instead, to exculpate himself, Zirk made a videotape, in which he referred to the letter he received from Wahlstrom as accusing him of "not tak[ing] any corrective action" against Wilkinson's harassment and then asked Wilkinson a series of questions about Wilkinson's alleged harassment. Wilkinson denied those allegations but, in so doing, referred to plaintiff as "mental," "delusional," "out of his mind," and "paranoid."
In the spring and summer of 1993, the harassment continued, with plaintiff and Wilkinson continuing to work side-by-side, and Wilkinson calling plaintiff a "zit nose faggot" and pointing to his nose with his middle finger several times a day. Finally, in August, plaintiff walked off of the job when Wilkinson called him "a crazy lunatic faggot" and Zirk again refused to do anything. Zirk was relieved that plaintiff walked off the job--he was "ready for him to go."
In January 1995, plaintiff brought this action against Marathon and Wilkinson. With respect to Marathon, plaintiff alleged claims for: (1) disability-related employment discrimination in violation of ORS 659.425, including specifications of "hostile work environment" and "failure to make reasonable accommodation"; (2) constructive discharge; and (3) intentional infliction of emotional distress (IIED), including separate counts asserting direct and vicarious liability. With respect to Wilkinson, plaintiff asserted claims for IIED or, in the alternative, intentional interference with economic relations. Plaintiff sought punitive damages against both Marathon and Wilkinson.
The case was tried to a jury, which returned a special verdict. Because the substance of the special verdict is critical to a clear understanding of defendants' assignments of error and our treatment of those assignments, we reproduce the jury's responses in toto:
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