Doe v. Denny's, Inc.

EDMONDS, J.

Plaintiff appeals from summary judgment on her claims for unlawful employment practices under ORS 659.425. ORCP 47. She also raises an issue concerning the discovery of a document. ORCP 36. We affirm.

Plaintiff worked as a server at a restaurant owned by defendant Denny’s, Inc. Defendant Jacobs is the restaurant’s manager, and defendant Hibbard was plaintiffs immediate supervisor. Shortly after she began working at Denny’s, plaintiff told Hibbard that she is HIV positive. The following events occurred thereafter, according to plaintiffs complaint:

“5.

“Shortly after Plaintiffs third week of employment, Hibbard called her into his office and advised her that a customer had complained because he knew Plaintiff and knew of her HIV status. Hibbard stated that the customer threatened to advise other patrons at the restaurant that there was an employee who was HIV-positive and advised Hibbard that the complaining person would not be patronizing the establishment so long as Plaintiff worked there.

“6.

“Shortly thereafter, Hibbard called Plaintiff into his office and advised her that he could not fire her, and that he didn’t want to because she was a good worker. However, defendant Hibbard also advised Plaintiff that it would destroy their business if she continued to work there and that he had been instructed to take care of the problem. Subsequently, Hibbard and/or Jacobs advised the Plaintiff that she would be laid off, on the pretext that the restaurant was over-staffed, and that Defendants did not need Plaintiff as an employee. Plaintiff was advised that this was done solely as a method of avoiding use of the term ‘fired’ in reference to the termination of her employment due to the fact that she was HIV-positive.

“7.

“After the plaintiff was laid off, a new employee was hired to take her place within a short period of time thereafter.” (Emphasis supplied.)

On appeal, plaintiff argues that for purposes of summary judgment, she pled and proved under ORS 659.425 either a claim of wrongful discharge or that defendants discriminated against her because she is HIV positive. We view the facts in the light most favorable to plaintiff, the nonmoving party, drawing all inferences in her favor. Wallulis v. Dymowski, 323 Or 337, 340, 918 P2d 755 (1996).

At summary judgment, plaintiff was unable to produce evidence that she had been fired because of her HIV status. According to plaintiff, she felt it “necessary for me to inform somebody of my status.” She approached Hibbard in the break room when they were alone and confided to him that she was HIV positive. “He [Hibbard] didn’t want the employees to know, and I didn’t want the employees to know.”

Hibbard testified that during the first conversation, plaintiff said that if her condition caused any problems, she would resign. Hibbard responded by saying that he would have to consult with the district manager about the ramifications of her condition. When asked if anything else was said during the first conversation, plaintiff said, “Not that I remember.”

When plaintiff came to work some time later, Hibbard asked her to come into his office. According to plaintiff, Hibbard explained that a “regular customer” had complained and that the customer had said, “that they were going to tell other potential customers of my status, and that they were not going to patronize the establishment again.” Plaintiff testified,

“A And then he turned and he looked at me and I just — He said that he couldn’t fire me, he couldn’t lay me off, and that was when I offered to resign.

“Q You said he couldn’t fire you?

“A He couldn’t fire me, he couldn’t lay me off, and he said, You know that. * * *

«í{í ‡ * * ‡

“A * * * I didn’t know what I was going to do, what to say. And I had told him I didn’t want to be the cause of any conflict. And he said it would destroy his business later on, is what he said.

“Q Okay.

“A And he said he basically was going to leave it up to me to decide what I was going to do. * * *

******

“Q What did you say?

“A I just told him I would resign or quit. And I told him I’d have to talk to my case worker first and find out what she was going to say. I told him because I couldn’t just up and quit or resign without consulting her, without trying to get my benefits back.”

After the conversation with Hibbard, plaintiff talked with her case worker and her boyfriend, who also told her that she could not be fired because of her HIV status. Ultimately, she and Hibbard reached an agreement to treat her resignation as a layoff, and she received a letter of reference from defendants that described her resignation in that fashion.¹

Plaintiff argues that defendants’ conduct violated ORS 659.425 in two ways. First, she contends that a constructive discharge for discriminatoiy reasons occurred under ORS 659.425(1) and that “the issue for the jury to decide is whether or not the plaintiff resigned due to unacceptable or intolerable working conditions under the test in Bratcher v. Sky Chefs, Inc., 308 Or 501, 506-07, 783 P2d 4 (1989).” In Bratcher, the court held that the constructive discharge of an at-will employee because of unacceptable working conditions could be tortious if the employer deliberately created or maintained the working conditions with the intention of forcing the employee to leave the employment and the employee left the employment because of the working conditions. The tort of wrongful discharge exists apart from the provisions of ORS 649.425(1) which prohibits the employment practice of discharging disabled persons because of their disability. Thus, plaintiffs argument as framed involves two distinct issues: (1) Whether she was constructively discharged, and (2) whether the discharge violated ORS 659.425(1).² Alternatively, she argues that a jury could find that the revealing of the information to plaintiff about the customer’s complaint was discriminatory in violation of the statute because it was motivated by the hope that plaintiff would be induced to resign.³

We turn to the language of the statute. ORS 659.425(1) makes it an unlawful employment practice for any employer to discriminate in the “terms, conditions or privileges of employment” because an individual has a physical or mental impairment that does not prevent the performance of the work involved or because the individual is regarded as having a physical or mental impairment. Plaintiff is physically impaired in that she is HIV positive. Defendants do not argue that her condition prevents her from performing the duties of a server. Rather, they argue that they did not discriminate against plaintiff in any term, condition or privilege of her employment.

We agree with defendants. It is uncontroverted that the conditions of plaintiffs employment were no different after the conversation with Hibbard than before it was held. In its reach to find a violation of ORS 659.425, the dissent posits that the holding of a meeting with plaintiff and the making of “a subject that he [Hibbard] could not legally use to evaluate plaintiffs work performance the focus of the meeting” was the action that violated the statute. 146 Or App at 70. Obviously, holding a meeting with an employee to discuss the report of a customer that concerned the employee cannot be an unlawful employment practice under the statute. If a violation occurred, it must have occurred because of the content of the conversation between Hibbard and plaintiff as set out previously in this opinion.

First, the dissent mischaracterizes the import of the evidence. No evaluation of plaintiffs past work performance occurred during the meeting. Rather, Hibbard simply reported the customer’s statements to plaintiff, told her about his concern about the effect of her condition on business and assured her that he could not fire or lay her off because of her condition. He made it clear that her employment continued and that it was left to her to decide whether she should do anything in response to the customer’s statements. The only evidence is that plaintiff brought up the subject of resigning and did resign only after she discussed the matter with her boyfriend and her caseworker, who also told her that she could not be fired because of her HIV condition. Moreover, there is no contention that Hibbard subjected her to ridicule or verbal abuse during the conversation. Also, he did not threaten to expose her physical condition to others so as to subject her to future ridicule or abuse by other employees or customers if she continued in his employ. The dissent’s argument that Hibbard put verbal pressure on plaintiff during the meeting to resign is pure conjecture, as is her assertion that defendants would discriminate against her in the future. There is no evidentiary basis to support either contention.⁴

At the heart of the dissent’s position is the belief that the statute prohibited Hibbard from raising the subject matter of her condition with plaintiff in the manner described by her testimony and that the statute required defendants to take some affirmative action on behalf of plaintiff. The subject matter of the conversation did not change the terms or conditions of plaintiff’s employment. Defendants did not fire plaintiff, change her work hours, pay her less money or deprive her of a benefit or privilege that other employees had under their employment relationships. Moreover, there is no evidence that any employee or customer of defendants had harassed plaintiff because of her condition prior to the meeting, or had acted in some other way that had affected her work environment in a manner that imposed a duty on defendants to undertake preventive or remedial measures. Nor is there evidence that plaintiff requested that defendants undertake such an action.

The dissent states that the conversation violated OAR 839-06-250, which provides in part that the attitude of the public may not be considered by the employer in evaluating the person’s ability to perform the work involved. That assertion adds content to Hibbard’s statements that did not occur. He made no evaluation of plaintiff’s ability to perform her work based on her condition because of customer perception. He did not tell her that he believed that her condition impaired her ability to work and that she should quit, or something akin to those kinds of remarks. As reported by plaintiff, Hibbard simply told her about the customer’s complaint, gave his opinion as to what effect the complaint could have on Denny’s business and said that he could not fire her because of her condition.

Actionable discrimination under the statute requires that an employee be treated differently in the work place because of a physical condition in a manner proscribed by the statute. Hibbard’s statement, made during a private conversation with plaintiff, that the customer’s statements about plaintiffs condition could destroy Denny’s business did not change anything concerning the terms or conditions of her employment. Even if the jury could properly infer from Hibbard’s statements and demeanor that defendants hoped that plaintiff would resign, that hope was not expressed in any inducement or threat that changed a term, condition or privilege of her employment. In sum, defendants said and did nothing that violated the statute. The terms and conditions of plaintiffs employment were the same before, during and after the conversation. Similarly, plaintiffs theory of constructive discharge also fails because there is no evidence of any intolerable “conditions” of employment that forced her to resign. Summary judgment on both claims was granted properly.

Finally, plaintiff assigns as error the trial court’s denial of her motion to compel discovery. When his deposition was taken, Jacobs testified that he prepared a report for his employer sometime previously and that in preparation for his deposition, he had reviewed the report within a day or two of the deposition. Plaintiff requested production of the report and subsequently filed a motion to compel production. ORCP 36 B(3) governs pretrial discovery. In substance, it provides that a party may obtain discovery of documents and tangible things prepared in anticipation of litigation for trial only on a showing that the party seeking discovery has substantial need of the materials in the preparation of that party’s case and is unable, without undue hardship, to obtain a substantial equivalent of the materials by other means. We review the trial court’s decision for an abuse of discretion. Farmers Insurance v. Hansen, 46 Or App 377, 611 P2d 696 (1980).

Plaintiff argues that the trial court never exercised its discretion in this instance. Defendants respond that plaintiff made no showing that she had substantial need of the report in the preparation of her case or that she was unable without undue hardship to obtain a substantial equivalent of the materials by other means. We disagree with plaintiff’s assertion that the trial court never exercised its discretion. In fact, the trial court denied the motion to compel on the ground that the document was “work product.” In that light, it was incumbent on plaintiff to demonstrate that the document fell within an exception to the prohibitions against discovery of work products. There is no basis on this record from which to conclude that the trial court abused its discretion in concluding that plaintiff had not met that burden. The trial court did not err when it denied plaintiffs motion to compel and when it granted summary judgment.

Affirmed.

1 The letter said, in part:

“To whom it may concern:

“I am pleased to have the opportunity to give [plaintiff] a reference. In the restaurant profession we see a lot of people come and go, some have the ability for the service industry and others do not. [Plaintiff] has that ability, but due to over staffing on our part, we were forced to lay her off.

“I feel that [plaintiff] would be an asset to any company for several reasons: She always greets customers with a warm and friendly smile. She handles complaints in a quickly [sic] and satisfying fashion, and she is always willing to help other employees, making her a wonderful team player.”

2 We decided similar issues in Wooten v. Viking Distributing Co., Inc., 136 Or App 56, 899 P2d 1219 (1995), utilizing the elements of the tort of wrongful discharge as one component of the analysis.

3 Plaintiff argues that:

“Defendants admit that plaintiffs HIV-positive status was perceived as a problem by them due to public and employee perceptions that would result in plaintiff being “shunned” or “harassed” and due to fears on their part that, because of their perceptions their business would be adversely affected. Thus, defendants’ purpose in revealing this information to plaintiff was discriminatory * * *. Defendants admit that plaintiff was informed that her disability was a problem for defendants because of perceived public perception of that disability. Defendants admit that the motivation for revealing this information was so that she would resign from the position, which she did.” (Emphasis in original; citation to deposition omitted.)

4 In her affidavit in contravention of defendants’ motion for summary judgment, plaintiff does not contend that Hibbard verbally pressured her. Rather, her affidavit expresses her subjective reaction to Hibbard’s statements: “When Mr. Hibbard told me that the business of the restaurant would suffer if I continued to work there, but that he could not fire me, I felt that under these circumstances, the working conditions at Denny’s were intolerable and if I continued to work there, I would be subjected to humiliation and abuse because of my HIV status. At no time, did Mr. Hibbard ever encourage me to continue to work at Denny’s. At no time, did Mr. Hibbard ever indicate to me that attempts would be made to shield me from this type of abuse or that other alternatives were available that would allow me to continue to work at Denny’s.”