Opinion
No. CV-00-61-HU
April 18, 2001
Kevin T. Lafky Salem, Oregon Attorney for Plaintiff.
Robert Lane Carey, Caroline Marnock Carey BARRAN LIEBMAN LLP Portland, Oregon Attorneys for Defendant Willamette University.
Carl R. Amala HARRIS, WYATT AMALA Salem, Oregon Attorney for Defendant Matthew Reeves.
OPINION ORDER
Plaintiff Timi Reid Dolman, a former employee of defendant Willamette University, brings this action against Willamette and defendant Matthew Reeves, a former student at Willamette. Plaintiff brings federal and state sexual harassment claims as well as wrongful discharge and intentional infliction of emotional distress claims, against Willamette. She brings an intentional infliction of emotional distress claim against Reeves. Each defendant separately moves for summary judgment. I grant Willamette's motion for summary judgment and grant in part and deny in part Reeves's motion for summary judgment.
BACKGROUND
Plaintiff began working for Willamette as an Area Coordinator in July 1997. As an Area Coordinator, plaintiff was responsible for overseeing several residence halls, assisting students living on the east side of the campus, and conducting student discipline hearings for alleged violations of Willamette's standards of conduct. Plaintiff lived on campus in a student residence hall with her husband, who was then a law student at Willamette.
Plaintiff first met Reeves on September 15, 1997, when she met with him regarding an allegation that he had possessed marijuana. At the time, he took responsibility for possessing the marijuana. He did nothing inappropriate during that meeting. She next met with Reeves, and his roommate Ben Johnson, on October 3, 1997, regarding an allegation that they had possessed alcohol in their room. Reeves and Johnson lived in a substance-free residence hall. During the meeting, Johnson spoke most of the time and Reeves said very little. Reeves did not yell at plaintiff or threaten her in any fashion.
On October 9, 1997, plaintiff and another Area Coordinator, Cathy Hackney, met separately with Reeves and Johnson. Plaintiff held Reeves responsible for possessing marijuana and having alcohol in his room. During the meeting, Reeves raised his voice and argued that plaintiff did not have enough information to hold him responsible for allegedly having alcohol in his room. Plaintiff told Reeves that the preponderance of the evidence indicated that he was responsible. She also told him that he was being transferred to another dormitory. Reeves protested, but plaintiff held firm. Reeves walked out of the room, walked by the window where the meeting had taken place, and glared at plaintiff. Plaintiff's recommendations were affirmed on appeal.
Plaintiff did not see Reeves again in 1997. But, on December 21, 1997, sometime between 1:00 a.m. and 7:00 a.m., someone vandalized the area outside plaintiff's apartment in Matthews Hall. Someone put Cheese Whiz and ranch dressing on the door, placed carnations in a beer bottle, and wrote the words "[t]his grave represents your gravesite," "die," "fucking bitch," and "I'm going to rape and kill you," on a message board hanging near her door. Plaintiff called the campus safety office approximately twenty minutes after discovering the vandalism.
Soon after her call, campus safety officers arrived, interviewed plaintiff, and began collecting evidence. Campus safety also called Salem Police who arrived within the hour. A maintenance crew cleaned the carpets and area outside her room within two hours.
Plaintiff told both campus safety and Salem Police that she suspected Reeves. During her deposition, plaintiff testified that "[t]he moment I opened up the door to the apartment I had suspicion." Dolman Depo. at pp. 64-65. When asked who she suspected, she responded "Mr. Reeves." Id. at p. 65. She then testified that she was "99 percent certain" that Reeves was the "culprit." Id. She stated that there were no other persons that she thought might be responsible for the vandalism. Id. In her affidavit, plaintiff states that she gave campus safety the names of Reeves and Johnson as potential suspects. Dolman Affid. at ¶ 4. She reiterated her suspicions to the Salem Police. Id. at ¶ 6. At the time the incident occurred, students at Willamette had finished final exams and were not on campus. Upon Reeves's return to campus in January 1998, Willamette served a "no contact" order upon Reeves. The order, in the form of a January 15, 1998 letter from Director of Campus Safety Ross Stout, prohibited Reeves from having any personal interaction, written communication, or any contact through a third party, with plaintiff. Pltf's Concise Stmt of Facts at ¶ 16. Additionally, he was prohibited from entering the Office of Residence Life without an appointment, or entering Matthews Hall without prior approval from the Office of Residence Life. Id. Plaintiff was pleased with the order. Dolman Depo. at p. 88. Plaintiff also acknowledged that campus safety officers were responsible for Reeves's confession. Id. at p. 229.
With no formal reply by Reeves to plaintiff's concise statement of facts, plaintiff's assertions of fact in her concise statement are deemed admitted. See L.R. 56.1(f).
Willamette provided security escorts on campus, paid for counseling services, provided a second furnished apartment, and gave plaintiff unlimited time off, with no loss in pay and benefits.
When plaintiff met with Salem Police on December 21, 1997, one of the officers suggested she look into filing a restraining order. Plaintiff filed an Oregon Uniform Stalking Complaint on January 21, 1998. Exh. D to Reeves's Memo. The Complaint appears to have been served on Reeves that same day. Id. The bottom half of the form is entitled Oregon Uniform Stalking Citation. Id. It sets a hearing date of January 26, 1998, and indicates service on Reeves by a Salem Police Officer. Id. It requires Reeves to establish, at the hearing, why the court should not enter a stalking protective order for unlimited duration. Id. The form indicates that contact that alarms or coerces plaintiff may violate the law. Id. Definition of "contact" is indicated on the reverse side of the form which is not included as an exhibit in the record. Id.
Reeves appeared at the January 26, 1998 hearing and plaintiff obtained a temporary "no stalking" order from Marion County Circuit Court. Exh. F to Reeves's Memo. A further hearing was set for February 25, 1998. Willamette paid for all of plaintiff's personal legal fees for obtaining the no stalking order.
On January 22, 1998, after Willamette's January 15, 1998 no contact order, and after the no stalking complaint was served, but before the temporary no stalking order was issued on January 26, 1998, plaintiff was having lunch with her supervisor, several co-workers, and her husband in the Goudy Hall dining facility. Plaintiff saw Reeves there. In her deposition, she testified that Reeves "walked in and sat directly across from the table in which we were sitting." Dolman Depo. at p. 122. He appeared to join someone at the next table. Id. He did not have a tray or any food and was not eating at the table. Id.
Plaintiff did not engage Reeves in discussion or make eye contact with him. Id. at pp. 122-23. Plaintiff does not know if Reeves saw her. Id. at p. 123. Reeves testified in deposition that he thought he was already in the dining hall when plaintiff walked in. Reeves Depo. at p. 55. He admits he saw her. Id.
Plaintiff testified in deposition that the incident was upsetting to her because she had "just obtained a stalking protective order which had specific stipulations which [she] believed had been violated[.]" Dolman Depo. at p. 123. Plaintiff left the dining hall approximately twenty minutes after Reeves walked in. Id. She left before he did. Id. She contacted campus safety about the incident.
In her affidavit, plaintiff explains that her deposition testimony that she made no eye contact with Reeves in the dining hall is correct. Dolman Affid. at ¶ 9. However, she explains that because she was aware of his presence, she purposely avoided making eye contact with him. Id. She further states that because of "his intimidating behavior and the fact that he chose to sit so close to me, I became fearful for my well-being and contacted campus safety." Id.
Plaintiff reported the incident to Stout who called the Salem Police to have Reeves arrested. Plaintiff was satisfied with Willamette's response and felt her supervisor and the campus safety officer were "cooperative and helpful" regarding this incident.
On January 23, 1998, Willamette suspended Reeves because of the December 21, 1997 incident, effective immediately, for one semester, in a letter written by Dean of Residence Life and University Judicial Officer Jim Bauer. Pltf's Concise Stmt of Facts at ¶ 20; Exh. D to Dolman Affid. in Opp. to Willamette's Motion. During the suspension, Reeves was banned from campus unless he first obtained express permission from the Director of Campus Safety. Exh. D to Dolman Affid. in Opp. to Willamette's Motion. Reeves's readmission was conditioned on his attending an alcohol treatment program. Id. Additionally, Reeves was required to submit a written request seeking readmission, outlining his desire to return, what he learned in his time away, and what steps he had taken to insure that he would not violate student standards of conduct in the future. Id. Reeves was instructed that he was immediately to remove himself from campus. Id. The suspension letter also referred to a violation of the January 15, 1998 "no contact" letter when Reeves apparently entered Matthews Hall. Id.
Reeves appealed the suspension. The Standards of Conduct Committee (SCC) upheld it and suggested additional conditions for readmission: completion of anger management counseling, readmittance only as an off-campus student, refrain from drinking or being intoxicated while on campus, and continuation of restrictions of access or any "no contact" orders currently in place. Pltf's Concise Stmt of Facts at ¶ 23; Exh. G to Dolman Affid. in Opp. to Willamette's Motion. The SCC's decision was communicated to Reeves in a January 28, 1998 letter from Don Turner, Chairman of the SCC. Exh. G to Dolman Affid. in Opp. to Willamette's Motion.
Reeves apparently continued with his appeal. On January 30, 1998, Bauer wrote Reeves to inform him that pending his appeal, Reeves could attend classes, but that he was required to check into the campus safety office as his first arrival point on campus. Pltf's Concise Stmt of Facts at ¶ 22; Exh. F to Dolman Affid. in Opp. to Willamette's Motion. Campus safety would then escort Reeves to his first class and then to subsequent classes. Id. At the end of his daily classes, the campus safety officer was to escort him off campus. Exh. F to Dolman Affid. in Opp. to Willamette's Motion. Reeves was prohibited from returning to campus until his next scheduled class time. Id. Additionally, at some point in time, campus safety posted Reeves's picture in its office to inform officers of his appearance. Dolman Depo. at p. 139.
On February 6, 1998, Willamette's president affirmed the SCC's decision. Pltf's Concise Stmt of Facts at ¶ 24; Exh. H to Dolman Affid. in Opp. to Willamette's Motion. Plaintiff, however, wanted Reeves expelled, not suspended. Dolman Depo. at p. 93.
The next time plaintiff saw Reeves was at a February 1998 court hearing to determine whether the Goudy Hall encounter violated the terms of the no stalking order. Although at one point in her deposition plaintiff stated that she believed the court "found him in violation" of the stalking order, she later stated that she was aware that any charges against Reeves alleging that he violated the no stalking order with this incident were dismissed. Id. at pp. 130, 263.
Plaintiff initially testified in deposition that after seeing Reeves in court in February 1998, she did not see Reeves again until depositions in the instant case on May 22, 2000. Dolman Depo. at p. 130. However, she later testified in deposition that she next saw Reeves at another court hearing on May 7, 1998, in front of Judge Rhoades in Marion County Circuit Court. Id. at p. 267. Then she stated that after the May 7, 1998 court date, she did not see Reeves again until depositions on May 22, 2000. Id. at p. 271.
Although plaintiff did not see Reeves between February 1998 and May 2000, or perhaps May 1998 and May 2000, she includes in the record several incident reports and other documents indicating that Reeves returned to campus on more than one occasion. In her deposition, she describes one incident in 1999 in which Reeves was present in the Goudy dining hall during the "finals week brunch." Dolman Depo. at p. 132. Plaintiff admits she did not see Reeves and did not know he was there. Id. She concedes that it did not upset her when Reeves was in Goudy at that time because she did not know he was there and by the time she heard about it, he was gone. Id. Additionally, it appears that in response to this incident, Stout wrote Reeves to inform him that his presence at Goudy on the evening of December 15, 1998, violated the requirement that Reeves receive permission directly from Stout before entering Willamette's property, and violated the stalking order issued by Marion County Circuit Court which prohibited his presence in Goudy except from 1:00 to 2:00 p.m. on weekdays. Ptlf's Concise Stmt of Facts at ¶ 34; Exh. Q to Dolman Affid. in Opp. to Willamette's Motion. Stout reminded Reeves that he was restricted from entering Willamette property for any reason and that doing so again, without Stout's express permission, would result in his immediate arrest for trespass. Exh. Q to Dolman Affid. in Opp. to Willamette's Motion.
Plaintiff later states that it occurred in 1998. Dolman Depo. at p. 137. Documents about the incident make it clear that it was 1998. See Exh. Q to Dolman Affid. in Opp. to Willamette's Motion.
Other incidents documented in the record include:
(1) On January 19, 1998, a resident assistant witnessed Reeves asking to be let into Matthews Hall. Pltf's Concise Stmt of Facts at ¶ 25; Exh. J to Dolman Affid. in Opp. to Willamette's Motion. The exhibit is incomplete, however, and thus it is unclear if he ever entered Matthews Hall. The no contact order appears to prohibit Reeves from entering Matthews Hall, not merely being outside of it.
(2) on January 21, 1998, a resident assistant twice witnessed Reeves inside Matthews Hall where plaintiff resided. Pltf's Concise Stmt of Facts at ¶ 26; Exhs. K and L to Dolman Affid. in Opp. to Willamette's Motion. This was in violation of the no contact order.
(3) On January 22, 1998, plaintiff witnessed Reeves close to the entrance of her apartment. She diverted her course and entered through another residence hall to avoid him. Pltf's Concise Stmt of Facts at ¶ 28; Exh. N to Dolman Affid. in Opp. to Willamette's Motion. The incident report filed by plaintiff does not indicate that Reeves was actually in Matthews Hall, and thus, as with the January 19, 1998, incident, he may not have violated the no contact order.
(4) On February 3, 1998, a resident assistant witnessed Reeves on campus without an escort. Pltf's Concise Stmt of Facts at ¶ 29; Exh. O to Dolman Affid. in Opp. to Willamette's Motion.
(5) On February 4, 1998, a university employee witnessed Reeves on campus without the required escort. Pltf's Concise Stmt of Fact at ¶ 30; Exh. P to Dolman Affid. in Opp. to Willamette's Motion.
(6) Sometime after February 6, 1998, Reeves received permission to return to campus to collect items from a room. Dolman Depo. at p. 133. He apparently returned without an escort. Reeves Depo. at p. 64. Plaintiff was not informed at the time, but learned about it later. She was upset because her impression was that she was to be informed of Reeves's returns to campus so that she would not cross paths with him. Dolman Depo. at p. 136-37. The possibility of crossing paths with Reeves caused plaintiff concern. Id. at p. 137.
Finally, plaintiff documents Reeves's attempts at readmission. Reeves inquired about readmission to Willamette by writing a letter to Bauer in late March 1998. Reeves Depo. at pp. 58-60. Bauer testified in deposition that Reeves's application was not an official or proper readmission application because he was still suspended from Willamette when he wrote the letter. Bauer Depo. at p. 48-49. Bauer did not tell plaintiff about the letter. Id. at p. 53.
Five months later, Bauer told plaintiff that Reeves was considering applying for readmission. Id. at pp. 53-54. Plaintiff broke into tears upon learning of Reeves's possible application and expressed that Reeves's return would affect her job performance. Id. at pp. 54, 56. Although Bauer received the Reeves letter in March 1998, he did not do anything with it and only told plaintiff about it in August 1998 because he received a phone call from Reeves inquiring as to what he would have to do to come back to Willamette. Id. at pp. 53-55. Bauer told Reeves to look at the suspension letter and readmission criteria. Id. at p. 55.
A few days after meeting with Bauer, plaintiff learned that Reeves was not coming back to Willamette for fall semester 1998. Dolman Depo. at p. 56. Although she was concerned that Willamette could not promise her that Reeves would never again reapply or be considered for admission, she testified in deposition that she understood that it would be highly unlikely or extremely difficult for Reeves to regain admission to the school. Id. at pp. 142-43. Nonetheless, because of the possibility that Reeves might one day be readmitted to Willamette, and because Willamette had failed to expel Reeves, she felt her safety was in danger by remaining in her job. Dolman Affid. at ¶ 13; Dolman Depo. at pp. 15, 159. She resigned on January 8, 1999, and started a new job the next day. Dolman Depo. at pp. 15, 159.
STANDARDS
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing `the absence of a material and triable issue of fact,' `the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
DISCUSSION
I. Reeves's Motion for Summary Judgment
Reeves moves for summary judgment on the basis of the statute of limitations. Reeves argues that the only asserted basis for plaintiff's single claim against him, an intentional infliction of emotional distress (IIED) claim, is what occurred on December 21, 1997. Because the Complaint in this case was not filed until January 11, 2000, and the statute of limitations for an IIED claim is two years, Reeves argues that plaintiff's claim against him is untimely.
In the Complaint, plaintiff does not limit the basis of her IIED claim against Reeves to the acts of December 21, 1997. Rather, she pleads as follows:
On December 21, 1997, Reeves intentionally vandalized the front door to plaintiff's residence in an effort to intimidate plaintiff. By threatening to rape and kill plaintiff, Reeves intended to cause plaintiff emotional distress and suffer the highly unpleasant emotional reactions such as fright, grief, shame, anxiety, humiliation, embarrassment, disappointment, worry, and physical illness.
On several other occasions, as described in the paragraphs above, Reeves intentionally ignored Willamette's sanctions and violated plaintiff's stalking protective order in an effort to intimidate and frighten plaintiff. As a result of Reeves' intentional infliction of emotional distress, plaintiff sustained noneconomic damages in the amount of $250,000.
Compl. at ¶¶ 44, 45. Thus, while paragraph 44 relates only to the events of December 21, 1997, the next paragraph expands on the basis for the IIED claim. The "paragraphs above," referred to in paragraph 45, allege that despite the no contact order, Reeves was observed near plaintiff's residence, Reeves sat near plaintiff in the Goudy dining hall on January 22, 1998, Reeves was seen on campus without an escort on February 5, 1998, and that Reeves again entered campus without an escort on December 15, 1998. Id. at ¶¶ 17, 18, 23, 30.
Based on these allegations, plaintiff responds to Reeves's motion with two arguments: 1) Reeves's acts constitute a continuing tort, and 2) the application of the discovery rule results in plaintiff's claim not being ripe until students returned from holiday break because before that time, plaintiff could not have identified Reeves as the tortfeasor.
A. Motion to Strike
Reeves's reply brief is entitled "Defendant Matthew Reeves' Reply to Plaintiff's Response to Defendant Reeves' Motion for Summary Judgment." However, the first section is subtitled "Objections/Motions to Strike." Although Reeves should have separately filed his evidentiary objections as a separate motion, I consider the objections here without the benefit of a response argument by plaintiff because, as explained below, I reject Reeves's arguments.
The more fundamental problem with the "objections/motions to strike," is their almost entire lack of specificity. As a result, I will not address several of the arguments. First, Reeves states:
Defendant Reeves moves to strike "Plaintiff's Response to Defendant Reeves' Concise Statement of Material Facts and Plaintiff's Concise Statement of Material Facts" because it fails to comply with LR 56.1(b) and (c). Specifically, the plaintiff has failed to comply with LR 56.1(c)(1) and (2) in that the plaintiff either references facts which existed before the plaintiff first learned of defendant Reeves on September 15, 1997, or the plaintiff has set forth facts which are not material for the court to determine the validity of the statute of limitations defense asserted by defendant Reeves.
Reeves's Reply at p. 2. Plaintiff's fact statement is more than six pages long. It is not the Court's burden to ferret out the particular statements to which Reeves objects. Because Reeves fails to indicate which specific statements he challenges, I deny this objection.
Next, Reeves states:
Defendant Reeves also moves to strike all hearsay statements submitted by the plaintiff in her responsive pleadings, including statements set forth in the plaintiff's affidavit. FRCP 56(e) states, in part:
[quotation from Rule 56(e) re: affidavits need to be made on personal knowledge].
The plaintiff's affidavit fails to comply with FRCP 56(e) in that the plaintiff's affidavit does not affirmatively state that it is based upon personal knowledge, it sets forth alleged facts which would not be admissible in evidence, and it fails to show affirmatively that the plaintiff is competent to testify to the matters stated in the affidavit.
Id. Here, I agree with Reeves that plaintiff's affidavit does not affirmatively state that it is based on personal knowledge. But, it is clear that much of the testimony is based on personal knowledge because there are statements such as "I met with Defendant Reeves . . ." and "I contacted campus safety. . . ." Dolman Affid. at ¶¶ 2, 4. Again, without identification by Reeves of the specific statements Reeves believes are not based on personal knowledge and why, I reject the objections.
Reeves does identify two statements in the affidavit which he argues set forth alleged facts not admissible in evidence. First, Reeves argues that paragraph six contains speculation and hearsay regarding Willamette campus safety officers and Salem police officers. It states:
Upon arrival by officers from the Salem Police Department, I made a similar report and reiterated my suspicions regarding potential suspects. During their investigation, the officers indicated they were interested in preserving the threats located on my door's writer board. Besides the threats and vandalism, and corresponding vandalism located outside my residence hall, there was no evidence left behind that indicated who did it. Neither campus safety nor the Salem Police officers were able to ascertain the identity of the person who made the threats against me. While I had my suspicions, both the officers and I concluded that we would not immediately know who had written the threats since all the students had left campus for the holiday break.
Dolman Affid. at ¶ 6. It appears that Reeves is arguing that without revealing the basis for how the "officers indicated . . .," the statement is speculation, and, if a basis were revealed, it would be hearsay. But, I deny the objection as moot because I did not rely on the statement, or the other statements about campus safety or Salem Police contained in this paragraph, in resolving the motion for summary judgment.
The same problems arise with the next challenged paragraph:
On January 22, 1998, Defendant Reeves positioned himself at a table directly next to a table where I was eating lunch. I have reviewed my deposition testimony regarding this incident and I believe my statements were true and correct in that we did not look at each other or maintain eye contact. What was not explained about this incident, however, was the fact that I was aware of his presence and purposely avoided making eye contact with him. Both my colleagues and I realized that Defendant Reeves had looked over and stared at me on more than one occasion. Because of his intimidating behavior and the fact that he chose to sit so close to me, I became fearful for my well-being and contacted campus safety.
Dolman Affid. at ¶ 9. Here, Reeves's objection is that there is speculation and hearsay regarding the "colleagues" that were allegedly with plaintiff on January 22, 1998, during lunch in the cafeteria. Again, I reject the objection as moot because I have not relied on the challenged statement in resolving the summary judgment motion.
Finally, Reeves argues that
"Plaintiff's Memorandum of Points and Authorities in response to Defendant Reeves' Motion for Summary Judgment" contains statements of alleged fact which are not supported by admissible evidence. Additionally, Exhibits A through Q have not been authenticated in any manner and are hearsay.
Reeves's Reply at p. 3. Here, Reeves fails to identify specific "fact[s] which are not supported by admissible evidence." Plaintiff's memorandum is eight pages long. Without some specific identification of objectionable facts or statements, I deny these objections.
Exhibits A through Q are puzzling. They are attached to plaintiff's affidavit, but neither mentioned nor authenticated there. Some of them appear elsewhere in the record and are cited to, if relied on, in these other locations. Some concern facts which appear in plaintiff's concise statement of fact which Reeves did not reply to formally and these facts are therefore, deemed admitted. To the extent Exhibits A through Q are not in the record elsewhere or admitted factually elsewhere, they were not relied upon, except in one instance discussed in footnote 4. Thus, the motion to strike Exhibits A and C through Q is denied as moot. While the motion to strike Exhibit B is well taken, I deny it because even accepting the facts contained in that exhibit, plaintiff's argument based on those facts is unavailing. See Footnote 4.
B. Continuing Tort
Plaintiff argues that Reeves's continuing acts of harassment, after December 21, 1997, amount to a continuing tort because his actions contributed to plaintiff's overall sense of insecurity and emotional suffering. Because these post-December 21, 1997 events occurred within the two-year statutory time period beginning January 11, 1998, plaintiff argues that with the application of the continuing tort theory, she may base her claim on all of the events, including those of December 21, 1997.Although Oregon recognizes a continuing tort theory, it does not apply in all situations where a defendant has engaged in multiple acts.
As recently noted by the Oregon Court of Appeals, "[a] continuing tort is based on `the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct.'" Barrington v. Sandberg, 164 Or. App. 292, 296, 991 P.2d 1071, 1073 (1999) (quoting Davis v. Bostick, 282 Or. 667, 671, 580 P.2d 544 (1978)). Thus, where the evidence is that a plaintiff was harmed by each act in a series, the continuing tort theory does not apply. Id. at 297, 991 P.2d 1071, 991 P.2d at 1074 (citing Davis, 282 Or. at 674-75, 580 P.2d 544).
In contrast are cases such as Barrington where the plaintiff was not harmed by each incident in a series, but by the incidents as a whole. Id. at 297-98, 991 P.2d at 1074; see also Griffin v. Tri-County Metropolitan Transportation District, 112 Or. App. 575, 581-82, 831 P.2d 42, 46 (1992) (finding that each incident of a series did not by itself support a claim, but the incidents as a whole were a systematic pattern of conduct that led to a specific injury), rev'd in part on other grounds, 318 Or. 500, 870 P.2d 808 (1994).
Simpson v. Burrows, 90 F. Supp.2d 1108, 1125 (D.Or. 2000). In Simpson, I held that because the evidence established that each event (letters in that case), caused harm to the plaintiff's emotional well being, her business reputation, and her personal reputation, she could not rely on a continuing violation theory as a way to base her defamation claim on statements made before the statutory limitations period. Id. at 1125-26.
The same outcome is apparent here. While plaintiff contends that Reeves's actions after January 11, 1998, caused her emotional distress, the undisputed evidence on summary judgment demonstrates that plaintiff was harmed by each act, not just by the cumulative effect of a pattern or series of acts.
In her Complaint, plaintiff alleges that on December 21, 1997, she discovered the writing on her door and "felt very frightened and worried for her safety after discovering the scene at her front door." Compl. at ¶ 14. A timeline of events prepared by plaintiff includes an entry for December 21, 1997, which states that the night of December 21, 1997, plaintiff was "up all night, crying, scared to fall asleep in fear of my safety. I checked the doors constantly, the windows, and shut the blinds in fear that something else would happen." Exh. B to Reeves's Memo. at p. 2. In her affidavit, plaintiff states that upon discovering the vandalism and threats that occurred on December 21, 1997, she contacted campus safety and that she "was disturbed by the messages left on my door and embarrassed about the fact that my student staff learned about the threats on my door." Dolman Affid. at ¶ 4. She also states that "[a]s a result of Defendant Reeves' writing this violent material, I developed a significant, and well-founded fear of him. I lived in fear that he would attempt to carry out his threats." Id. at ¶ 7. Also, she began seeking attorneys to assist her with the protective stalking order after the holiday break, before any of the other alleged harassing incidents occurred.
Based on this evidence, the continuing tort theory does not apply. Plaintiff clearly suffered immediate distress, anguish, and embarrassment upon the events of December 21, 1997. Given the evidence, her argument that her distress resulted only from the cumulative effect of all of Reeves's acts, is without merit.
However, I do not grant Reeves's motion in full. As noted above, Reeves erroneously argues that the December 21, 1997 act is the only basis for the IIED claim. It is not. Plaintiff clearly alleges distress based on subsequent acts. Compl. at ¶ 45. Thus, plaintiff may maintain her claim against Reeves based on any acts occurring after January 11, 1998.
C. Discovery Rule
As an alternative to her continuing tort argument, plaintiff argues that the statute of limitations did not begin to run until after January 18, 1998, because that is when Reeves returned to campus and plaintiff was unable to discover, before that time, that Reeves committed the acts on December 21, 1997. In support of her argument, plaintiff notes that she named both Reeves and his roommate as possible suspects when speaking to campus safety officers and the Salem Police. Exh. B to Dolman Affid. She also states that while she suspected Reeves, no evidence left at the scene specifically pointed to him as the culprit. Dolman Affid. at ¶ 6.
In her memorandum, plaintiff asserts that after the December 21, 1997 incident, Reeves left for the holiday break and did not return until January 18, 1998. Pltf's Memo. at p. 5. She then states that "[a]t the time of committing the threatening acts against plaintiff, defendant's parents lived separate from one another in California and Texas. Defendant typically spent the holidays and school breaks with friends and family in California and Texas." Id. Although plaintiff relates these facts solely in the context of the discovery rule argument, they are suggestive of a tolling argument under Oregon Revised Statute § (O.R.S.) 12.150. That statute provides for the tolling of the statute of limitations if, when a cause of action accrues against any person, the person is out of the state and service cannot be made within the state, until the return of the person into the state. If, in fact, Reeves was out of state from December 21, 1997, until January 18, 1998, plaintiff may have a tolling argument under O.R.S. 12.150.
The problem, however, is that plaintiff's representations in her memorandum that Reeves was either in California or Texas during the period from December 21, 1997, to January 18, 1998, are not substantiated by the portion of the record plaintiff cites. Rather, the cited deposition testimony is as follows:
Q: During the summer of 1997, where did you live? Did you live at home in Redding?
A: I stayed part of the time in — I don't remember if it was in Memphis or in Austin. My mom had moved from Memphis, Tennessee to Austin, Texas during that summer. And then I stayed with friends in Redding.
Reeves Depo. at p. 24.
This testimony does not indicate (1) that Reeves's parents lived in California because he refers only to friends living in Redding, not family; (2) where Reeves was during the holiday break from December 21, 1997, to January 18, 1998, because it refers only to summer 1997; and (3) how Reeves "typically" spent holidays and school breaks because it refers only to summer 1997. Thus, even construing plaintiff's argument as one for tolling under O.R.S. 12.150, there is no support for any tolling under that statute on this record.
As indicated earlier, none of the exhibits submitted by plaintiff are authenticated. While, as mentioned above, I denied Reeves's objections to unauthenticated Exhibits A and C through Q as moot because I either did not rely on them or relied on other sources in the record for the facts contained in the challenged exhibits, there are no other sources for the precise facts found in Exhibit B which plaintiff relies on and which I have considered. I assume that at trial, plaintiff could authenticate the exhibit. However, even though I consider the facts contained in Exhibit B, there is no harm to Reeves by such consideration because ultimately, for the reasons explained in the body of the discussion, I conclude that the discovery rule is inapplicable here.
Generally, a cause of action does not accrue under the discovery rule until the claim has been discovered or, in the exercise of reasonable care, should have been discovered. Gaston v. Parsons, 318 Or. 247, 255-56, 864 P.2d 1319, 1323-24 (1994). Under the discovery rule, a plaintiff must have a reasonable opportunity to become aware of the following three elements before the statute of limitations will begin to run: (1) harm; (2) causation; and (3) tortious conduct. Id. Additionally, the discovery of "injury" includes discovering the identity of the tortfeasor. Id. at 252-53, 864 P.2d at 1322 (citing Adams v. Oregon State Police, 289 Or. 233, 239, 611 P.2d 1153 (1980)).
As recently explained by the Oregon Court of Appeals:
The discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of their claim. Actual knowledge that each element is present is not required. On the other hand, a mere suspicion is insufficient to begin the statute of limitations to run. We believe that a quantum of awareness between the two extremes is contemplated by the statute. Therefore, the statute of limitations begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.
We emphasize that this is an objective test. In most cases, the inquiry will concern what a plaintiff should have known in the exercise of reasonable care. In such cases, the relevant inquiry is how a reasonable person of ordinary prudence would have acted in the same or similar situation. Relevant to this analysis will be a plaintiff's failure to make a further inquiry if a reasonable person would have done so. The discovery rule does not protect those who sleep on their rights, but only those who, in exercising the diligence expected of a reasonable person, are unaware that they have suffered legally cognizable harm.
Greene v. Legacy Emanuel Hosp. Health Care Ctr., 165 Or. App. 543, 548, 997 P.2d 265, 267-68 (internal quotation omitted), rev. allowed, 330 Or. 470, 8 P.3d 220 (2000). Additionally, "[p]recisely when a person reasonably should have known that the harm suffered was caused by another's negligence generally presents a question of fact." Hoeck v. Schwabe, Williamson Wyatt, 149 Or. App. 607, 612, 945 P.2d 534, 537 (1997). "Still, in some cases, the facts may be such that no triable issue exists as to when a plaintiff knew or should have known that the defendant caused the harm suffered, and, in those cases, the matter may be resolved as a matter of law." Id.
During deposition, plaintiff testified that "[t]he moment I opened the door to the apartment" on December 21, 1997, she suspected Reeves. Dolman Depo. at pp. 64-65. She also stated in her timeline that she "knew within 30 seconds of walking out of my door who did it." Exh. B to Reeves's Memo. at p. 2. She further testified in deposition that she was "99 percent certain" on December 21, 1997, that Reeves was the individual who had written on her message board. Dolman Depo. at p. 65. Additionally, although it is undisputed that she identified both Reeves and his roommate to campus safety and Salem Police, she testified that she did not think there were "any other folks" besides Reeves who might be responsible. Id.
Given this, Reeves argues that the discovery rule should not apply because the facts show that plaintiff immediately identified Reeves as one of two culprits and furthermore, that plaintiff believed Reeves was the person who actually did it. I agree.
While plaintiff named two suspects, her deposition testimony and the statement in her timeline clearly show that she believed, from the first instance, that Reeves was the culprit. This is not a case where we need to identify when plaintiff "should have known." Rather, she knew, and was in fact "99 percent" sure on the day the act occurred, that Reeves did it. As noted above, while mere suspicion is not enough to trigger the start of the statute of limitations, actual knowledge is not required. The evidence shows that, as of December 21, 1997, plaintiff was aware of a substantial probability that Reeves committed the acts. Thus, the discovery rule does not apply to make a cause of action based on the events of December 21, 1997, timely. However, as indicated above, because plaintiff alleges emotional distress caused by later, timely, events, Reeves's motion is granted in part and denied in part.
II. Willamette's Motion for Summary Judgment
The claims against Willamette are sexual harassment claims under Title VII, 42 U.S.C. § 2000e-2000e-17, and Oregon Revised Statute § (O.R.S.) 659.030, wrongful discharge, and intentional infliction of emotional distress. Willamette moves for summary judgment on all claims.
A. Sexual Harassment Claims
Plaintiff alleges that Reeves's actions constituted sexual harassment amounting to a hostile environment, and that Willamette's actions in addressing the situation were inadequate. Willamette makes three separate arguments against the sexual harassment claims: timeliness, no evidence of motivation because of gender, and prompt and effective remedial action.
These arguments raise various legal issues including:
(1) In calculating the last occurrence of the alleged unlawful employment practice in a hostile environment sexual harassment claim, where the claim against the employer is based on its alleged failure to effectively remedy the situation, are the acts of the harasser examined or the acts of the employer?
(2) Does filing a complaint with the Equal Employment Opportunity Commission (EEOC) act as a simultaneous filing with the Oregon Bureau of Labor and Industries, triggering the 300-day timeline, if the box requesting that the EEOC action be considered filed with both the EEOC and the applicable state agency, is not checked?
(3) Does the conduct constituting the harassment have to be sexual or is it sufficient that it would not have been done if the plaintiff had been a man?
(4) Are the post-December 21, 1997 acts by Reeves considered sexual harassment when there are no express sexual threats, but when, by his mere presence, there is an implication that he may be carrying out the previously made sexual threat? I need not resolve these issues, however, because, for the reasons explained below, I conclude that Willamette provided prompt and effective remedial action and thus, it is not liable on the sexual harassment claims.
Once an employer knows or should know of harassment, "a remedial obligation kicks in." Star v. West, 237 F.3d 1036, 1038 (9th Cir. 2001) (internal quotation omitted). The employer is liable for the hostile work environment unless the employer takes "adequate remedial measures in order to avoid liability." Id. (internal quotation omitted). "The employer's actions should be reasonably calculated to end the harassment." Id. (internal quotation omitted). "What is important is whether the employer's actions, however labeled, are adequate to remedy the situation." Id. at 1039. The employer has "considerable discretion" in its choice of remedial action. Intlekofer v. Turnage, 973 F.2d 773, 778 (9th Cir. 1992).
As noted above, Willamette took the following actions in response to the events of December 21, 1997:
(1) campus safety officers responded promptly to plaintiff's call the morning of December 21, 1997;
(2) campus safety officers promptly called Salem Police;
(3) Willamette issued a "no contact" order on January 15, 1998, to Reeves during the investigation;
(4) Willamette interviewed Reeves upon his return to campus after the holiday break and obtained his confession;
(5) Willamette immediately began student conduct proceedings that led to Reeves's suspension and a no trespass order from Willamette;
(6) Willamette paid plaintiff's personal legal fees for obtaining a no stalking order;
(7) Willamette provided plaintiff with security escorts on campus;
(8) Willamette paid for professional counseling for plaintiff;
(9) Willamette gave plaintiff as much leave time as needed, without any loss in sick leave, pay, or other benefits;
(10) Willamette provided a second furnished apartment for plaintiff and her husband;
(11) Willamette told plaintiff when Reeves called in August 1998, inquiring about possible readmission to Willamette; and
(12) Willamette wrote Reeves in December 1998, threatening to have him arrested for trespass if he returned to campus again without first obtaining express permission from Willamette. Indeed, following Reeves's suspension, he has never formally applied for readmission, and currently attends a different university.
Based on these facts, Willamette argues that its actions were prompt, remedial, and effective in that after his suspension was final, Reeves did not again bother plaintiff. The only time after February 6, 1998, when the suspension and no trespass order were final, that he was seen on campus in violation of the order, was in December 1998, at a campus brunch in Goudy Hall. Plaintiff was not in attendance and did not know he was there.
In response, plaintiff argues that Willamette should have expelled Reeves and that its failure to do so renders it liable. Plaintiff suggests that by suspending Reeves instead of expelling him, Willamette communicated to plaintiff that her concerns were invalid and that Willamette was not interested in protecting her. Because of the suspension, plaintiff argues, Reeves was able to consider applying for readmission, which also demonstrates Willamette's ineffectiveness at stopping the harassment.
The parties agree that Willamette could have expelled Reeves. There is even evidence that Bauer stepped in and prevented the SCC from expelling Reeves instead of suspending him. See Ross Day Affid. at ¶¶ 7, 8. But, given the employer's "considerable discretion" in determining the appropriate remedy, plaintiff is not in a position to second guess the sanctions if they were indeed effective, as these have been.
Plaintiff concedes that expulsion rather than suspension would have had no greater impact on Reeves's ability to re-enter campus property. The only distinction between the two sanctions is the impact on Reeves's ability to reapply to the school. The evidence is undisputed, however, that Reeves never did formally reapply. Rather, in spring 1998, he sent a letter inquiring about readmission, and later, presumably in August 1998, he made a telephone call with the same inquiry. There is no evidence that he formally reapplied, that Willamette accepted his reapplication, or that he engaged in any harassing conduct after such a readmission.
The undisputed evidence leads to only one reasonable conclusion: Willamette acted promptly and effectively to stop the harassment. While the possibility that Reeves could someday be readmitted to the school was obviously upsetting to plaintiff, without Willamette actually having readmitted Reeves, there can be no dispute that the suspension was effective in ending the harassment. See Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1483 (9th Cir. 1997) (summary judgment for employer on issue of employer liability affirmed even though harasser never "officially disciplined or reprimanded for his actions" but where he was "ordered to have no further contact with" the plaintiff, was moved to a different work site, and was forced to turn in his key to his previous work site).
Thus, given that no reasonable juror could conclude that Willamette's actions were not prompt and effective, I grant summary judgment to Willamette on the Title VII claim. Because Oregon follows the analysis developed for federal Title VII claims, it is appropriate to grant summary judgment to Willamette on the Oregon sexual harassment claim as well. See, e.g., Fred Meyer, Inc. v. Bureau of Labor and Indus., 152 Or. App. 302, 310, 954 P.2d 804, 808 (1998) (federal decisions under Title VII generally are instructive); Ballinger v. Klamath Pac. Corp., 135 Or. App. 438, 451, 898 P.2d 232, 239 (1995) (portions of O.R.S. 659.030 patterned after Title VII); see also Harris v. Pameco Corp., 170 Or. App. 164, 178, 12 P.3d 524, 533 (2000) (O.R.S. 659.030 claim properly dismissed upon showing that employer promptly investigated the plaintiff's allegations and then took remedial action).
B. Wrongful Discharge
Plaintiff's next claim is for constructive wrongful discharge. The leading Oregon case, McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841 (1995), fully explains the required elements. "To allege a claim of wrongful discharge there must be a discharge, and that discharge must be wrongful." Id. at 551, 901 P.2d at 853 (internal quotation omitted); see also Stupek v. Wyle Labs. Corp., 327 Or. 433, 438, 963 P.2d 678, 681 (1998) ("[t]he legal injury in a wrongful discharge-claim is the discharge. . . . Thus, there is no claim until the discharge occurs.") (citation omitted).
A discharge can either be actual or constructive. McGanty, 321 Or. at 551, 901 P.2d at 853. To establish a constructive discharge, plaintiff must show that
(1) the employer intentionally created or intentionally maintained specified working condition(s); (2) those working conditions were so intolerable that a reasonable person in the employee's position would have resigned because of them; (3) the employer desired to cause the employee to leave employment as a result of those working conditions or knew that the employee was certain, or substantially certain, to leave employment as a result of those working conditions; and (4) the employee did leave the employment as a result of those working conditions.
Id. (footnotes omitted).
Willamette makes three arguments against the constructive wrongful discharge claim: (1) plaintiff fails to show that her claim is based on anything other than her status as woman which does not support a wrongful discharge claim; (2) the claim is precluded because Title VII provides an adequate statutory remedy; and (3) she resigned and was not discharged, either actually or constructively. Because I agree with Willamette as to its third argument, I do not address the other two.
The judges of this Court, including myself, have consistently concluded that Title VII does not provide an adequate remedy.
Plaintiff does not argue that she was actually discharged, but rather, that she was constructively discharged as a result of Willamette's failure to expel Reeves. I agree with plaintiff that Willamette's failure to expel Reeves, which then created the possibility that he could be readmitted, was an intentionally created or intentionally maintained working condition.
Next, as to the second element, plaintiff must show that the working conditions were so intolerable that a reasonable person in her position would have resigned. At the time plaintiff resigned, Reeves had been suspended indefinitely with numerous conditions for readmission and with no guarantee of readmission even if he satisfied those conditions. Additionally, plaintiff understood that his chances of being readmitted at any time in the future, were remote.
Furthermore, Willamette had moved plaintiff and her husband to a different apartment, had paid for attorney's fees associated with the stalking order, had paid for counseling, had provided campus security to plaintiff, and had given her unlimited time off with no loss in pay. When Willamette learned that Reeves had been on campus in December 1998, it sent him a letter threatening to have him arrested for trespass if he did it again. Based on these undisputed facts, no reasonable juror could conclude that the working conditions were so intolerable that a reasonable person in plaintiff's position would have resigned because of them.
Alternatively, based on the above-recited facts, I conclude that plaintiff cannot succeed on the third element of the claim. In light of all that Willamette did in response to the incident, no reasonable juror could conclude that Willamette desired that plaintiff resign, or knew with substantial certainty that she would. Willamette's failure to expel Reeves rather than suspend him is not significant enough to create a genuine issue of fact precluding summary judgment. See Celotex, 477 U.S. at 324 (nonmoving party must present significant probative evidence establishing material fact). As a result, Willamette is entitled to summary judgment on the wrongful discharge claim.
C. IIED
To state an IIED claim, plaintiff must show that Willamette intended to inflict severe emotional distress, Willamette's acts were the cause of plaintiff's severe emotional distress, and that Willamette's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct. McGanty, 321 Or. at 563, 901 P.2d at 849.
Willamette argues for summary judgment on this claim for three reasons: (1) there is no evidence that Willamette intended to inflict emotional distress on plaintiff; (2) the conduct alleged is not outrageous enough to support the tort; and (3) plaintiff cannot establish causation given the other significant stresses in her personal life. Because I agree with Willamette as to its second argument, I do not address the other two.
Under Oregon law, conduct that is merely "rude, boorish, tyrannical, churlish, and mean" does not support an IIED claim. Patton v. J.C. Penney Co., 301 Or. 117, 124, 719 P.2d 854, 858 (1986). "[T]he tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life even when the intentional conduct causing plaintiff's distress otherwise qualifies for liability." Hall v. The May Dep't Stores Co., 292 Or. 131, 135, 637 P.2d 126, 129 (1981); see also Watte v. Maeyends, 112 Or. App. 234, 237, 828 P.2d 479 (1992) (no claim where employer threw a tantrum, screaming and yelling at his employees, accused them of being liars and saboteurs, then fired them all); Madani v. Kendall Ford, Inc., 312 Or. 198, 205-06, 818 P.2d 930, 934 (1991) (no claim where employee terminated for refusing to pull down pants).
Here, the basis of plaintiff's claim is that Willamette failed to take steps that would have foreclosed the possibility that Reeves would be readmitted. While the existence of the employee-employer relationship constitutes a "special relationship" that may be considered in determining whether the conduct is "extraordinary," see MacCrone v. Edwards Center, Inc., 160 Or. App. 91, 100, 980 P.2d 1156, 1162 (1999), I conclude that without evidence showing that Willamette actually readmitted Reeves, Willamette's acts, were not, as a matter of law, an "extraordinary transgression of the bounds of socially tolerable conduct." Willamette is entitled to summary judgment on the IIED claim.
CONCLUSION
Defendant Reeves's motion for summary judgment (#18) is granted in part and denied in part. Defendant Willamette University's motion for summary judgment (#23) is granted in its entirety.
IT IS SO ORDERED.