Franklin v. Portland Community College , 100 Or. App. 465 ( 1990 )

GRABER, P. J.

Plaintiff appeals a judgment dismissing his claims for intentional interference with an economic relationship and intentional infliction of emotional distress. He assigns as error that the trial court granted defendants’ motions to dismiss the first amended complaint for failure to state claims. ORCP 21A(8). We affirm the dismissal of the first claim but reverse and remand on the second.

Because plaintiff refused to replead after the trial court dismissed his first amended complaint, we presume that he has stated his case as strongly as the facts permit. Eldridge v. Eastmoreland General Hospital, 88 Or App 547, 550, 746 P2d 735 (1987), aff’d on other grounds 307 Or 500, 769 P2d 775 (1989). Plaintiff, a black man, alleged that he is, and has been since 1984, “a full-time permanent employee” of defendant Portland Community College (PCC). Defendant Hankins is also a PCC employee and was plaintiffs supervisor during the relevant period. On October 17, 1985, plaintiff filed a grievance against Hankins, which was settled in February, 1986. From October 17, 1985, through January 10, 1988, Hankins engaged in “a continuing pattern of discrimination and retaliation” toward plaintiff, including these acts: issuing false reprimands, shoving him, using the racial epithet “boy,” failing to recommend training, attempting to lock him in Han-kins’ office, and suggesting that he apply for a job at another employer. Plaintiff alleged that Hankins’ conduct caused him to take time off work because of stress, resulting in his use of a total of 280.5 hours of paid sick leave.

We first consider plaintiffs claim for intentional interference with an economic relationship, which he asserted only against Hankins. To state a claim, plaintiff must allege facts that, if proven, would establish these elements:

“Either the pursuit of an improper objective of harming plaintiff or the use of wrongful means that in fact cause injury to plaintiff’s contractual or business relationships may give rise to a tort claim for those injuries.” Lewis v. Oregon Beauty Supply Co., 302 Or 616, 621, 733 P2d 430 (1987), quoting Top Service Body Shop v. Allstate Ins. Co., 283 Or 201, 205, 582 P2d 1365 (1978). (Emphasis supplied.)

Plaintiff argues that the “lost ‘sick days’ constitute a tangible interference with plaintiffs employment contract resulting from Defendant Hankins’ conduct.” Hankins counters that plaintiff did not “allege any injury to his employment contract,” because he did not allege that Hankins’ conduct even indirectly “prevented him from receiving any benefit of his contract with PCC.” We agree with Hankins. Plaintiff has not pleaded the requisite injury to his economic relationship.

Plaintiff relies on Mooney v. Johnson Cattle, 291 Or 709, 634 P2d 1333 (1981), in arguing that he has pleaded a sufficient injury. The Supreme Court held that a plaintiff may, under appropriate circumstances, recover damages for mental or emotional distress in a claim for intentional interference with an economic relationship. 291 Or at 717-20. However, in order to obtain damages of any kind, the plaintiff must still plead and prove all elements of the tort claim, including injury to the relationship. 291 Or at 717-18. In Mooney, the defendants caused a third party actually to breach its contract with the plaintiff. 291 Or at 711.

In American Sanitary Service v. Walker, 276 Or 389, 554 P2d 1010 (1976), the Supreme Court stated that it is not necessary for a plaintiff to prove a breach of the contract to establish the elements of the tort. The court noted that

“[t]he right to recover damages suffered as a result of a defendant’s intentional interference with plaintiffs business interest has been recognized in this jurisdiction where defendant’s wrongful actions have rendered plaintiffs obligations more onerous or prevented plaintiff from realizing the full benefit of his contract with a third party.” 276 Or at 393. (Citations omitted.)

See also Restatement (Second) Torts, § 766A (1979). The court held that the plaintiff had stated a claim when it pleaded and proved that the defendant, a competing waste disposal service, knowingly and intentionally moved the plaintiffs collection boxes and serviced the plaintiffs exclusive franchise area, charging less than the plaintiff was permitted to charge under its franchise agreement. 276 Or at 394-95. By those actions, the defendant had “made the relationship under the contract more difficult, less valuable and less profitable for plaintiff to perform[,]” 276 Or at 394, thereby diminishing the amount that the plaintiff was to receive from customers.

Here, plaintiff did not allege that PCC breached an employment contract with him, nor did he allege that Hankins made plaintiffs contractual obligations more onerous or prevented him from realizing the full benefit of his contract. Plaintiff alleged that Hankins’ conduct caused him stress for which he had to take time off, resulting in his use of accrued sick leave. However, he did not allege that Hankins’ actions or plaintiffs resulting stress and use of sick leave caused PCC to withhold or reduce any benefits of the employment contract. As far as his pleadings show, plaintiff’s employment contract continued unchanged, and he received all the benefits to which he was entitled. Therefore, he did not allege an interference with his employment relationship and did not state a claim.

We turn to plaintiffs claim against PCC and Han-kins for intentional infliction of emotional distress, which he mislabelled as a claim for “outrageous conduct.” Patton v. J. C. Penney Co., 301 Or 117, 119 n 1, 719 P2d 854 (1986). In order to state a claim:

“First, ordinarily a plaintiff must allege that a defendant intended to inflict severe mental or emotional distress. It is not enough that [the defendant] 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 extaordinary transgression of the bounds of socially tolerable conduct’ or the actions must exceed ‘any reasonable limit of social toleration.’ ” Patton v. J. C. Penney Co., supra, 301 Or at 122, quoting Hall v. The May Dept. Stores, 292 Or 131, 135, 137, 637 P2d 126 (1981).

Plaintiff realleged the facts pleaded in his claim for intentional interference with an economic relationship. In addition, he alleged that “Hankins was an agent and employee of PCC acting within the scope of his employment.”

Defendants argue that plaintiff failed to plead the elements of “intent and conduct that is an ‘extraordinary transgression of the bounds of socially tolerable’ behavior.” With respect to intent, plaintiff responds, citing Hall v. The May Dept. Stores, supra, that “an employer and an employe stand in a special relationship for purposes of the tort.” Therefore, he says, it was enough for him to allege that defendants acted “with a reckless disregard of the predictable effect on plaintiff.” We need not address plaintiffs argument that employment creates a special relationship that lowers the requisite level of intent, because he pleaded facts sufficient to establish that Hankins specifically intended to cause him severe emotional distress and that he acted within the scope of his agency for PCC in doing so.¹

In Palmer v. Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988), the plaintiff brought an action against a former employer for employment discrimination, ORS 659.030, and for intentional infliction of emotional distress. We held that the plaintiff had alleged facts sufficient to support an inference that her supervisor specifically intended to harm her, by pleading that her “supervisor engaged in a course of harassment of plaintiff verbally and through notes, including notes with abusive and sexually explicit wording.”² 92 Or App 472. Similarly, here, plaintiff alleged that “Hankins engaged in a continuing pattern of discrimination and retaliation against plaintiff’ by verbally and physically harassing him several times. He also alleged that Hankins intended to “severely demean and insult plaintiff.” If proven, those facts are enough to establish that Hankins had the specific intent to cause plaintiff emotional distress. The complaint need not contain the “magic words” of “specific intent,” if the pleaded facts fairly permit an inference of specific intent. See Palmer v. Bi-Mart Company, supra, 92 Or App at 475.

Defendants also argue that Hankins’ conduct involved nothing more than “excessive supervision and unjustified reprimands!,]” along with the use of a racial epithet, which do not amount to an “extraordinary transgression of the bounds of socially tolerable conduct.” See Patton v. J. C. Penney Co., supra, 301 Or at 122. In Snyder v. Sunshine Dairy, 87 Or App 215, 218, 742 P2d 57 (1987), we held that “excessive supervision and unjustified reprimands, even if proved, cannot amount” to the “extraordinary transgression” required to meet this element of the tort. Plaintiffs allegations that Han-kins issued false reprimands, improperly denied training, and recommended to plaintiff that he leave his employment at PCC are not sufficient, without more, to meet this element. See also Hall v. The May Dept. Stores, supra, 292 Or at 139.³ However, plaintiff did plead more; he alleged racially motivated verbal and physical abuse and alleged that all of Han-kins’ acts were part of a “continuing pattern of discrimination and retaliation.”

The Supreme Court has analyzed the conduct element of the tort on a case-by-case basis, focusing on the means used to inflict the emotional distress. See, e.g., Patton v. J. C. Penney Co., supra, 301 Or at 123-24. Although we have found no Oregon authority on the use of a racial epithet in this context, several courts in other jurisdictions have suggested that the use of a racial epithet may constitute more than merely insulting language, see Hall v. The May Dept. Stores, supra, 292 Or at 135, and have held that it is a factor in establishing that a defendant’s conduct was extreme and outrageous. See Agarwal v. Johnson, 25 Cal 3d 932, 947, 160 Cal Rptr 141, 603 P2d 58 (1979); Alcorn v. Anbro Engineering, Inc., 2 Cal 3d 493, 498-99, 86 Cal Rptr 88, 468 P2d 216 (1970); Contreras v. Crown Zellerbach, 88 Wash 2d 735, 741-42, 565 P2d 1173 (1977). Moreover, plaintiff pleaded why the racial epithet “boy” is especially offensive to a black man and pleaded that Hankins intended to “severely demean and insult” him by using it. See Pakos v. Clark, 253 Or 113, 126-28, 453 P2d 682 (1969); Fitzpatrick v. Robbins, 51 Or App 597, 602, 626 P2d 910, rev den 291 Or 151 (1981). He also alleged that Hankins shoved him and attempted to lock him in a room. Physical acts such as those are factors in establishing the conduct element of the tort. See Brewer v. Erwin, 287 Or 435, 458-59, 600 P2d 398 (1979). The pleaded facts, when considered as a whole, describe an “extraordinary transgression of the bounds of socially tolerable conduct.” See Patton v. J. C. Penney Co., supra, 301 Or at 122.⁴

Reversed and remanded on the claim for intentional infliction of emotional distress; otherwise affirmed.

1 In Sheets v. Knight, 308 Or 220, 779 P2d 1000 (1989), the plaintiff sued a former employer for intentional infliction of emotional distress. The court held that plaintiff did not state a claim, because he did not allege that the defendant “acted with the specific intent to inflict severe emotional distress.” 308 Or at 236. (Emphasis supplied.)

The dissent asserts that employment is a “special relationship” and that “plaintiff may prove the intent element of his claim for intentional infliction of emotional distress by showing that Hankins intentionally engaged in conduct with reckless disregard for the consequences of his conduct on plaintiff." 100 Or App at 474. (Emphasis supplied.) Even as to a “special relationship,” however, the dissent understates the required proof. Hall v. The May Dept. Stores, supra, 292 Or at 135, on which the dissent relies, held that the intent in such cases is “the intent to do the painful act with knowledge that it will cause grave distress.” (Emphasis supplied.) To the extent that our earlier formulation differed, it no longer applies.

2 In Palmer, we construed ORS 656.156(2), which provides that, if a worker is injured because of “the deliberate intention of the employer of the worker to produce such injury,” the worker may bring an action “for damages over the amount payable under [the workers’ compensation] statutes.” The concept of specific intent to cause emotional distress is consistent with the concept of specific intent to injure under ORS 656.156(2). Compare Sheets v. Knight, supra n 1, 308 Or at 236, with Lusk v. Monaco Motor Homes, Inc., 97 Or App 182, 188, 775 P2d 891 (1989).

3 In Hall, the Supreme Court suggested that a plaintiffs status as an employee may provide a greater degree of protection when the court is determining whether the employer’s conduct is “outrageous.” 292 Or at 142. However, the court has also stated several times in the same context that in many respects “employment remains an arms [sic] length * * * relationship.” Patton v. J. C. Penney Co., supra, 301 Or at 123; Hall v. The May Dept. Stores, supra, 292 Or at 141. Even in the employment context, a plaintiff must allege extreme conduct to state a claim for intentional infliction of severe emotional distress. See Patton v. J. C. Penney Co., supra, 301 Or at 123-24; Trout v. Umatilla Co. School Dist., 77 Or App 95, 102-03, 712 P2d 814 (1985), rev den 300 Or 704 (1986).

4 Plaintiff sufficiently pleaded the remaining element of severe emotional distress. He alleged that Hankins’ conduct resulted in stress that lasted for over two years and that the stress was so severe that it caused him to take substantial time off from work. See Bodewig v. K-Mart, Inc., 54 Or App 480, 488, 635 P2d 657 (1981), rev den 292 Or 450 (1982).