Opinion
Case No. 04-6033-HO.
June 8, 2004
ORDER
Plaintiff brings this action pursuant to the Federal Tort Claims Act (FTCA) alleging intentional infliction of emotional distress (IIED). The government moves to dismiss (#6).
ALLEGATIONS
Plaintiff is a practicing dentist under a personal service contract with defendant Department of Agriculture at the Angell Job Corps Center in Lincoln county, Oregon. Defendant provides plaintiff with a place to practice dentistry at the Wellness Center at the facility. Patricia Briggs, R.N. is the health service manager for the facility and is the administrator of the Wellness Center and inspector of plaintiff's service contract compliance.
In 2001, Briggs authorized other staff of the Wellness Center to use space of the dental clinic whenever they believed that they needed additional space. Plaintiff complained of the increased use of the clinic for non-dental activities citing concerns over x-ray exposure, shortage of work space, inefficiency, and sanitation. No action was taken on plaintiff's complaint.
Plaintiff wrote a formal letter of complaint to the deputy director/contracting officer after observing five non-dental staff using the clinic during hours of operation. The director requested other staff to cease unnecessary use of the dental clinic. The request was ignored and Briggs and other non-dental staff increased use of the dental clinic including as a short cut to the administrative building and as a break room.
Plaintiff notified Briggs that the storage and consumption of food in the clinic was a violation of sanitary and Occupational Safety and Health (OSHA) regulations. Plaintiff further complained to Briggs when the remnants of a staff party were left in the clinic. Briggs told plaintiff that OSHA regulations do not apply to non-dental staff and admonished plaintiff to "lighten up . . . what difference does it make."
On May 21, 2002, medical staff employee Milt Newport approached plaintiff in the clinic while plaintiff was on duty. Newport told plaintiff that he needed space to do paper work. Plaintiff told Newport to wait until plaintiff had left the clinic, or find another place to do his work. Plaintiff further told Newport to ask management to provide him with a suitable work space for the next day. Newport left and minutes later Briggs entered the clinic.
Briggs was angry and told plaintiff that Newport could use the clinic whenever he wished. Plaintiff responded that they should discuss the matter with her supervisor the following day, said "good evening," and attempted to leave. Briggs stepped into the doorway and physically blocked plaintiff. Plaintiff attempted to leave several more times but Briggs blocked him each time. Briggs told plaintiff that he could discuss dental clinic issues only with her and not her supervisor. Briggs further stated that it had taken her nine years to reach her current level of power and would not abide any attempt by plaintiff to undermine her authority. In addition, Briggs stated that she did not want plaintiff to work at the center and asked "why do you work here?" Briggs informed plaintiff that the medical staff disliked him because he had requested they stay out while the clinic was in operation. She stated that another employee could eat lunch in the clinic whenever she wanted. After ten minutes, Briggs moved aside and allowed plaintiff to leave.
From April 17, 2002, through June 26, 2002, defendant intentionally caused plaintiff to suffer extreme emotional distress by means of conduct which has been outrageous in the extreme and beyond the bounds of socially tolerable conduct to plaintiff's noneconomic damage of $15,000.
DISCUSSION
Defendant moves to dismiss contending the court lacks subject matter jurisdiction and that plaintiff fails to allege facts sufficient to state a claim for relief.
A. Jurisdiction Under the FTCA
The FTCA provides a limited waiver of the sovereign immunity of the United States for torts committed by federal employees acting within the scope of their employment. See Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). Under the FTCA, the United States may be held civilly liable for the torts of its employees "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. However, the FTCA's waiver of immunity is limited by a number of statutory exceptions. See 28 U.S.C. § 2680. If plaintiff's cause of action falls within one of these exceptions, then the federal courts lack subject matter jurisdiction to hear his claim. See Donahue v. United States Dept. of Justice, 751 F. Supp. 45, 47 (S.D.N.Y. 1990). In this case, the government asserts that plaintiff's IIED claim is excepted under section 2280 because the conduct on which the claim is based can be characterized as an "assault" or "false imprisonment."
Plaintiff's initial complaint in this case alleged a claim for false imprisonment based upon the May 21, 2002 incident in which Briggs prevented plaintiff from leaving the clinic. Plaintiff amended the complaint to eliminate the claim. Plaintiff asserts he also brought the false imprisonment claim administratively which the United States denied.
The waiver pursuant to the FTCA does not apply to "[a]ny claim arising out of assault [or] false imprisonment . . . [p]rovided, that, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of [the FTCA] shall apply to any claim arising out of assault [or] false imprisonment." 28 U.S.C. § 2680(h). The Ninth Circuit has analyzed conduct alleged in a claim for IIED inSheehan v. United States, 896 F.2d 1168, 1172, amended on other grounds 917 F.2d 424 (9th Cir. 1990):
[the] inquiry [focuses] on the conduct upon which plaintiff's claim is based. Regardless of the plaintiff's characterization of the cause of action, § 2680(h) bars suit for claims based on conduct which constitutes one of the excepted torts, and bars suit for no other claims.
Thus the issue in this case is whether the conduct upon which plaintiff rests her claim for intentional infliction of emotional distress constitutes an assault as that tort is traditionally defined. If it does, then the claim is barred by § 2680(h) because Congress excluded governmental liability for assaults committed by government employees. Such a claim is barred even though the conduct may also constitute a tort other than assault; to hold otherwise would permit evasion of the substance of the exclusion of liability for assaultive conduct. If, however, the aspect of the conduct upon which plaintiff relies did not constitute an assault, suit is not barred even though another aspect of that conduct may have been assaultive.
The government contends that the IIED claim necessarily is based on conduct that constitutes false imprisonment.
A "false imprisonment" occurs when there is an unlawful restraint of one's freedom of movement. The restraint need not be for more than a brief time, so long as the person being confined is aware of the confinement. See Lukas v. J.C. Penney Co., 233 Or. 345, 353 (1963).
To establish such a claim, "(1) [the] defendant must confine [the] plaintiff; (2) [the] defendant must intend the act that causes the confinement; (3) [the] plaintiff must be aware of the confinement; and (4) the confinement must be unlawful." Hiber v. Creditors Collection Service, 154 Or. App. 408, 413, rev. den. 327 Or. 621 (1998). It is not necessary that the party causing the imprisonment use violence or force or even touch the body of the imprisoned person. Christ v. McDonald, 152 Or. 494, 501 (1935). Rather, "[f]alse imprisonment consists in the unlawful restraint against his will of an individual's personal liberty or freedom of locomotion. The gist of false imprisonment is unlawful detention." Id.
Here plaintiff has alleged that Briggs repeatedly and intentionally blocked his attempts to leave the clinic for about ten minutes. That plaintiff was aware of the confinement can be inferred from the allegations. The allegations indicate that Briggs did not have the lawful authority to confine plaintiff to the clinic. Thus, it appears that the alleged conduct that gives rise to plaintiff's IIED claim also gives rise to a false imprisonment claim. Therefore, the court lacks jurisdiction to entertain a claim based on such conduct because the United States has not waived its sovereign immunity with respect to claims for false imprisonment. Stripped of the allegations concerning confinement, plaintiff's allegations of distress inducing conduct do not rise to the outrageous level required for an IIED claim. Moreover, even with the allegations that Briggs blocked plaintiff, the allegations fall short in alleging the IIED claim.
B. IIED
To prevail on an intentional infliction of emotional distress claim, plaintiff must demonstrate that (1) defendant intended to inflict severe emotional distress, (2) defendant's acts were the cause of plaintiff's severe emotional distress, and (3) defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct. McGanty v. Staudenraus, 321 Or. 532, 543 (1995).
The intent element of IIED is satisfied not only where the actor desires to inflict severe emotional distress, but also where he knows that such distress is certain, or substantially certain to result from his conduct. McGanty, 321 Or. at 550.
The Oregon Supreme Court has noted that the duty to refrain from abusive behavior in the employment relationship comes close to that of the physician toward a patient. Hall v. The May Department Stores Co., 292 Or. 131, 138 (1981). Thus, the employment relationship may impose a more demanding obligation to refrain from inflicting mental and emotional distress. See id. The consideration of the relationship between the alleged tortfeasor and the alleged victim is relevant to the inquiry regarding the conduct element. See Rockhill v. Pollard, 259 Or. 54, 63 (1971).
It is for the trial court to determine, in the first instance, whether a defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. If the minds of reasonable men would not differ on the subject, the court is obliged to grant summary judgment. Pakos v. Clark, 253 Or. 113, 132 (1969).
Various factors bear upon the offensiveness of the conduct, including whether a special relationship exists between the defendant and the plaintiff, such as that of physician-patient, counselor-client, or common carrier-passenger. Williams v. Tri-County Metropolitan Transportation District of Oregon, 153 Or. App. 686, 689-90 (1998); Erickson v. Christenson, 99 Or. App. 104, 107, rev dismissed 311 Or. 266 (1991). Other factors include whether the conduct was undertaken for an ulterior purpose or to take advantage of an unusually vulnerable individual. See Checkley v. Boyd, 170 Or. App. 721 (2000). The setting in which the allegedly outrageous conduct occurs — for example, in a public venue or within the employment context — also can bear on the degree of offensiveness of the conduct. See, e.g., Hall, 292 Or. at 137; Trout v. Umatilla Co. School Dist., 77 Or. App. 95, 102 (1985).
"Oregon cases which have allowed claims for intentional infliction of emotional distress to proceed typically involve acts of psychological and physical intimidation, racism, or sexual harassment." Garrison v. Alaska Airlines, Inc., Civil No. 98-433-KI, Opinion by Judge King dated June 17, 1999, p. 8.
The mere fact that an employer overworks employees, makes unreasonable demands upon them, and is otherwise less than a model employer does not by itself constitute an extraordinary transgression of the bounds of socially tolerable conduct under Oregon law. Cf Madani v. Kendall Ford Co., 312 Or. 198, 203-06 (1991) (terminating employee for refusing to pull down his pants); Patton v. J.C. Penney Co., 301 Or. 117, 124 (1986) (employee terminated because he refused to stop dating co-worker); Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or. App. 234, 237 (1992) (employer threw a tantrum, screamed and yelled at his employees, accused them of being liars and saboteurs, then fired them all);Snyder v. Sunshine Dairy, 87 Or. App. 215, 218 (1987) (inconsistent and excessive supervision, unjustified reprimands, threats of termination, requiring the employee to perform menial tasks). See also Wells v. Thomas, 569 F. Supp. 426, 433 (EDPa 1983) (placing plaintiff in newly created position without responsibilities, taking away her private office, reassigning her secretary, allowing her phone calls to go unanswered, giving her poor performance evaluations for the first time in 25 years, and terminating her); Beidler v. W.R. Grace, Inc., 461 F.SUPP 1013 (EDPa 1978), aff'd 609 F.2d 500 (3rd Cir. 1979) (plaintiff excluded from meetings necessary to perform his job, found papers constantly rearranged on his desk to annoy him, informed he would be given a new assistant without consultation, learned from rumors that his job was in jeopardy, and evaded by his superior who intimated that the new assistant would be replacing him).
Here, the alleged conduct may be rude or boorish and demonstrate less than a model supervisor, but it does not rise to the level of outrageous conduct required by the Oregon courts to allege an IIED claim. Accordingly, the motion to dismiss is granted.