Opinion
Civ. No. 04-3026-CO.
September 21, 2004
ORDER
Plaintiff filed suit alleging violations of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq., and a state law claim for intentional infliction of emotional distress. On August 18, 2004, United States Magistrate Judge Cooney issued his Findings and Recommendation that plaintiff's claim for intentional infliction of emotional distress (IIED) be dismissed. The matter is now before me. See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b).
When either party objects to any portion of a magistrate judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge's report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Petitioner has filed timely objections to the Findings and Recommendation. I have, therefore, given de novo review of Magistrate Judge Cooney's rulings. I find no error.
I agree that plaintiff fails to establish that the alleged actions imputed to defendant were "an extraordinary transgression of the bounds of socially tolerable conduct." McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841, 849 (1995) (quoting Sheets v. Knight, 308 Or. 220, 236, 779 P.2d 1000, 1010 (1989)). It is well established that the tort of IIED "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." Hetfeld v. Bostwick, 136 Or. App. 305, 308, 901 P.2d 986 (1995). Rather, the conduct must be "outrageous in the extreme." Id. (citation omitted).
Plaintiff alleges that he was presented a "toilet" in front of other managers and co-workers for failing to meet unrealistic promotional goals, that he was subjected to unjustified, negative reviews and criticism, and that he was wrongly accused of dishonesty and unsatisfactory performance of his job. Publicly ridiculing and unjustly criticizing an employee may unprofessional, offensive, and crude, and certainly not behavior that should be condoned as effective management tactics. However, such conduct does not rise to the level of IIED as a matter of law. See Babick v. Oregon Arena Corp., 333 Or. 401, 413, 40 P.3d 1059 (2002) (allegations that defendant exposed plaintiffs to "threat of imminent physical harm" may be "outside the bounds of socially tolerable behavior" and sufficient to state IIED claim); Richer v. Poisson, 137 Or. App. 157, 160-61, 903 P.2d 932 (1995) (allegations that defendant painted graffiti on plaintiffs' windows, harassed them by telephone and harassed their customers by making obscene gestures, described "offensive conduct that may be outrageous in the extreme"); Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or. App. 234, 239, 828 P.2d 479 (1992) (accusing employees of being liars and saboteurs did not support claim for IIED); Woods v. First American Title Ins. Co., 102 Or. App. 343, 348, 794 P.2d 454, on recon., 104 Or. App. 100, 798 P.2d 1121 (1990) (plaintiff's allegations that employer accused her of being a liar, a thief, and a fraud and persuaded a police officer to harass her on the basis of those accusations stated a claim for IIED); Snyder v. Sunshine Dairy, 87 Or. App. 215, 217-18, 742 P.2d 57 (1987) (allegations that employer publicly ridiculed plaintiff and unjustly criticized work performance did not "amount to an `extraordinary transgression of the bounds of socially tolerable conduct.') (citations omitted).
Therefore, plaintiff fails to state a claim for IIED, and this claim is dismissed.
CONCLUSION
For the reasons set forth, IT IS HEREBY ORDERED that Magistrate Judge Cooney's Findings and Recommendation filed August 18, 2004, is ADOPTED. Defendant's Motion to Dismiss (doc. 6) is GRANTED, and plaintiff's claim for intentional infliction of emotional distress is DISMISSED.
IT IS SO ORDERED.