Patton v. J. C. Penney Co. ( 1985 )

VAN HOOMISSEN, J.

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 21A.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 P2d 545 (1983); See Turrini v. Gulick, 16 Or App 167, 169, 517 P2d 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 plaintiffs 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. Plaintiffs 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 P2d 1276 (1982); Nees v. Hocks, 272 Or 210, 216, 536 P2d 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 P2d 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 P2d 25 (1959).

The second exception concerns termination for pursuing a statutory right directly related to the plaintiffs role as an employe. In Brown v. Transcon Lines, 284 Or 597, 588 P2d 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 protectable public policy. See Holien v. Sears Roebuck and Co., 298 Or 76, 689 P2d 1292 (1984); McQuary v. Bel Air Convalescent Home, Inc., 69 Or App 107, 684 P2d 21 (1984); compare Campbell v. Ford Industries, Inc., 274 Or 243, 546 P2d 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 P2d 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 US 438, 92 S Ct 1029, 31 L Ed 2d 349 (1972), and Loving v. Virginia, 388 US 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 plaintiffs 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 P2d 126 (1981).

In Bodewig v. K-Mart, Inc., 54 Or App 480, 635 P2d 657 (1981), rev den 292 Or 450 (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.

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 P2d 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.

Taking plaintiffs 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 demonstrable adverse effect on his job performance. His termination notice indicated, however, that he was terminated for unsatisfactory job performance. That could affect his future employability. When he terminated plaintiff, McKay knew that plaintiff would forfeit his retirement benefits that had accrued after 12 years of employment.

We conclude that a jury could find that defendants exceeded the bounds of social toleration when they terminated plaintiffs employment and that they acted with a reckless disregard of the predictable effects of their action on plaintiff. Bodewig v. K-Mart, Inc., supra. The trial court erred in dismissing plaintiffs outrageous conduct claim.

Affirmed as to plaintiffs wrongful termination claim; reversed as to plaintiffs outrageous conduct claim; and remanded.

1 The order first appealed from indicated that the defendants’ motion to dismiss plaintiffs amended complaint was granted. We dismissed the appeal, because that order was not a final judgment. A judgment was then entered, and this appeal was filed. However, that judgment indicates that defendants’ motion for summary judgment was granted and the action dismissed. The record does not disclose that defendants ever moved for summary judgment. We assume that the trial court meant only to repeat its earlier action in granting defendants’ motion to dismiss.

2 Plaintiff also argues that the court in Delaney implied a third exception to the employment-at-will doctrine where the termination frustrates some important social interest but no adequate alternative remedy exists. See Walsh v. Consolidated Freightways, supra. We disagree.

3 In Brockmeyer v. Dun & Bradstreet, 113 Wis 2d 561, 335 NW2d 834 (1983), the Wisconsin Supreme Court denied a cause of action for wrongful termination to an at will employe who was terminated, in part, for socializing with a co-worker. The court stated:

“A plaintiff-employee alleging a wrongful discharge has the burden of proving that the dismissal violates a clear mandate of public policy. Unless the employee can identify a specific declaration of public policy, no cause of action has been stated. The determination of whether the public policy asserted is a well-defined and fundamental one is an issue of law and is to be made by the trial court. Once the plaintiff has demonstrated that the conduct that caused the discharge was consistent with a clear and compelling public policy, the burden of proof then shifts to the defendant employer to prove that the dismissal was for just cause.

“We believe that the adoption of a narrowly circumscribed public policy exception properly balances the interests of employees, employers and the public. Employee job security interests are safeguarded against employer actions that undermine fundamental policy preferences. Employers retain sufficient flexibility to make needed personnel decisions in order to adapt to changing economic conditions. Society also benefits from our holding in a number of ways. A more stable job market is achieved. Well-established public policies are advanced. Finally, the public is protected against frivolous lawsuits since courts will be able to screen cases on motions to dismiss for failure to state a claim or for summary judgment if the discharged employee cannot allege a clear expression of public policy.” 335 NW2d at 840.

See Stoats v. Ohio Nat'l. Life Ins.,_F Supp_(118 LRRM 3242) (WD Pa 1985); Rogers v. Int’l Bus. Machines, 500 F Supp 867 (WD Pa 1980); Crosier v. United Parcel Service, Inc., 150 Cal App 3d 1132, 198 Cal Rptr 361 (1983).

4 Defendants rely on Pakos v. Clark, 253 Or 113, 453 P2d 682 (1969) and Christofferson v. Church of Scientology, 57 Or App 203, 644 P2d 577, rev den 293 Or 456 (1982). Those cases do not involve the special relationship shown here.