Opinion
Case No. 03-1425-KI.
October 19, 2004
Kevin T. Lafky, Larry L. Linder, Lafky Lakfy, Salem, Oregon, Attorneys for Plaintiff.
Thomas S. Moore, Patricia N. Condon, Portland, Oregon, Attorneys for Defendant.
OPINION
After more than 25 years of experience, Willamina School District 30J ("District") dismissed plaintiff Gerald Spees, a teacher at Willamina Middle School, for the stated reason that his teaching license had been suspended. In this action, Spees alleges claims for age and sex discrimination, for wrongful discharge, for a violation of the Oregon Family Leave Act, and for the intentional infliction of emotional distress. Before the court is defendant's Motion for Summary Judgment (#18). For the reasons below, I grant the motion and dismiss all claims.
FACTS
Spees taught for the District at Willamina Middle School beginning in 1976. During his tenure, Kathleen Shelley was the principal from 1985 to 1992. Kathleen Long became the principal in April 2000. Spees had numerous run-ins with both Shelley and Long.
Shelley states that each year, some parents would insist that their children not be placed in Spees class or that they be removed from Spees' class. Shelley believes that Spees tended to get physical with students and that he teased the students too much. Spees also ignored the directive to teachers that they could not allow students to circumvent more formal discipline by doing push-ups or burpies. Shelley repeatedly told Spees not to be physical with students and not to make inappropriate or personal comments to students. She sent Spees four letters from 1986 to 1989, documenting his misconduct in specific instances. In Shelley's opinion, Spees never accepted responsibility for his actions.
An exercise that begins with the person standing, then squatting, then extending the legs back and doing a push-up, then returning to the standing position.
The first semester that Long was principal at the school in 2000, Jim Wilson, who scheduled classes, told Long that he had problems scheduling Spees' classes because so many parents asked that their children not be taught by Spees. It was not unusual for as many as five requests to be made each year. Long also received letters from three parents asking that their children not be taught by Spees.
On October 9, 2000, Long met with Spees to discuss an accusation from students that he told them a story about placing LSD in drinks of female college students when he was in college. Spees' version of this story is that he told the students that his roommate had done so, not him. On October 23, 2000, a teacher and a counselor complained to Long that they witnessed Spees bumping and yelling at a student. Long warned Spees about this incident.
In early December 2000, Long heard that Spees had physically accosted a student in the school hall. She reported the incident to the District Superintendent, who told her also to report the complaint to the Yamhill County Sheriff's Office, which she did. Long placed Spees on paid administrative leave on December 8, 2000, pending the investigation. On January 10, 2001, Long wrote Spees, concluding that despite many discussions and notices about physical contact with students and appropriate discipline, he had initiated inappropriate physical contact and inappropriate discipline with the student. She reprimanded Spees for his actions but allowed him to return to teaching under numerous directives, including having sessions with the District's employee assistance program about anger management and any other issues related to his behavior.
On February 23, 2001, Long conducted a routine written assessment of Spees and discussed it with him on March 13, 2001. The assessment noted several areas in which Spees needed to make improvements and warned him that he would be observed regularly for the remainder of the school year and if he did not adequately address the issues, Long would consider a Program of Assistance. Long is aware of no other District employee with Spees' inability to stay within the boundaries of appropriate discipline and behavior with students.
There are two additional letters in Spees' personnel file from 1990 and 1993 documenting other instances in which he was disciplined, in addition to formal yearly evaluations that warn Spees about the need to change his methods of disciplining and interacting with students. Spees generally believes that his interactions with students and disciplinary methods are suitable and, in the incidents in which he was formally disciplined, that he acted appropriately given the circumstances.
On March 21, 2001, the Superintendent received letters from Spees' doctor and his union representative, Pam Wilson, stating that Spees would take medical leave from April 2 until the end of the school year. When the Superintendent did not hear further, he wrote Spees on July 2, 2001, to ask if Spees would return to teaching in the fall. In late August 2001, Spees' doctor replied to a Fitness for Duty Questionnaire to state that Spees could not return to the middle school but could work in administration or at the high school. Spees did not have an administrator's license. There were no other job openings for which Spees was qualified so the Superintendent continued him on medical leave and wrote Spees on August 27, 2001, to tell Spees that his paid sick leave would expire on October 15, 2001. Neither Spees nor his doctor contacted the Superintendent further about Spees' medical leave or to release Spees to return to work.
On May 17, 2002, the Teacher Standards and Practices Commission ("TSPC") suspended Spees' teaching license for 90 days because of the October 2000 and December 2000 confrontation incidents. On June 10, 2002, the Superintendent told Spees that he was dismissing him because Spees' license had been suspended. In July 2002, the Willamina School Board voted to uphold Spees' dismissal because he did not hold a teaching license. During the Superintendent's tenure with the District, it never had a teacher other than Spees whose license was suspended by TSPC for inappropriate physical and verbal confrontation of students.
Katherine Mueller was assigned to take over Spees' duties for the 2002-03 school year, when she had approximately three years of teaching experience with the District. Mueller has a Bachelor of Science in Secondary Education and a Master of Arts in inter-disciplinary studies. She has never received warnings or reprimands from the District, has never been investigated by TSPC, and has never had her teaching license suspended.
While principal, Shelley never experienced or heard complaints about age or gender discrimination. No employee, including Spees, ever told Long that he believed he was discriminated against because of sex or age. Likewise, no one ever told the Superintendent that older teachers or male teachers were being encouraged or forced to resign or complained of harassment because of age or sex.
When asked how he was sexually harassed, Spees stated that Long went after him because of her personal prejudices, that Long did not allow him to do things, that whenever an incident arose, Long believed that he was guilty without even discussing it with him, and that female teachers were allowed to touch a student's shoulder but that he could not. Spees attributed Long's treatment of him to the fact that he is an older male. He then clarified that he did not feel sexually harassed but did feel sexually discriminated against.
Several other male teachers stated that they were hired to provide needed discipline in the school and that throughout their careers, problem children were assigned to their classes because they were male.
Pam Morris was President of the teachers union for many years and handled local grievances for more than 20 years. At the middle school, lunch duty for teachers was referred to as combat duty. When allegations were made against Spees stemming from his lunch duty, Morris told the administration that they put Spees into difficult situations. She took over lunch duty for Spees for a while so he would not be put into the situation. Morris does not believe that Shelley treated men as well as women. Morris is aware of a teacher who allowed his license to lapse. Rather than terminating him or her, the District put the teacher on unpaid leave until the license was reinstated. Morris is also aware that in the December 2000 incident, leading to the TSPC investigation, the teacher who allowed the student into the hall without authorization did not receive any form of reprimand.
Another teacher, Joyce Parmeter, observed Long at the weekly staff meetings. Parmeter saw Long say things rudely to both Spees and the other older male teachers, as well as showing signs of exasperation. Parmeter never witnessed Long speak rudely to a female teacher.
Teacher Angie Anderson also attended the staff meetings and believed that some of the topics raised by Long with Spees should have been discussed privately. Anderson was uncomfortable witnessing conversations about whether or not Spees had done something Long expected, his classroom management, specifics about his room or his teaching, and Long's displeasure with some of Spees' activities. Long would interrupt Spees and cut him off if she did not want to discuss a topic at that time. Anderson also witnessed Long's interactions with both males and females at the staff meetings when she would make comments to them, yell at them, and humiliate them. She did believe, however, that Long's abusive behavior was directed at men more often than at women. Likewise, it would be directed more often at older employees. Anderson thought that more of the older employees were not aware of the newer teaching practices which Long was trying to adopt. Anderson also thinks that Spees had quite a few problem students assigned to his class because he had high expectations for discipline.
Spees sent tort claim notices dated November 26, 2002, and December 12, 2002. Spees filed a complaint with BOLI on November 27, 2002, alleging he was dismissed because of age, gender, disability, and for taking medical leave. The BOLI complaint did not allege a hostile work environment. Spees filed the Complaint in this action on October 17, 2003. He alleges violations of Title VII, the Age Discrimination in Employment Act ("ADEA"), ORS Ch. 659A, the Oregon Family Leave Act ("OFLA"), and the torts of wrongful discharge and the intentional infliction of emotional distress.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 375 (1999).
DISCUSSION
I. Hostile Work Environment
Spees alleges several statutory claims of a hostile work environment against males and older employees. The District argues that the claims are untimely and, alternatively, that Spees cannot show a pattern of ongoing and persistent harassment sufficient to constitute a hostile work environment under either theory.
Spees contends that the fact that there was a gap in time between much of the conduct and his termination is inconsequential to the claims. He also notes that the gap in time was caused by his medical leave due to his reaction to the hostile work environment created by the District. Spees further argues that he was subjected to ongoing and persistent harassment prior to his leave when Long spoke to him rudely and disciplined him differently than she disciplined younger female teachers. In particular, Spees believes that Long harassed him during the investigation of the inappropriate touching of the student in December 2000 and decided to get rid of him before the investigation was completed.
Under Title VII, a person in a deferral state must file an administrative charge with the EEOC within 300 days of the last alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). The same is true under ADEA. 29 U.S.C. § 626(d). Under the state law, if the employee chooses not to file an administrative complaint, the civil action must be filed no later than one year after the occurrence of the alleged unlawful employment practice. ORS 659A.875(1).
The Supreme Court clarified the continuing violation doctrine in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002), and how it applies differently to discrete acts of discrimination than to hostile environment claims. Title VII precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period, even when they are related to acts alleged in timely filed charges. An employee may use prior acts as background evidence in support of a timely claim. Id. at 105, 113. "[C]onsideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period." Id. at 105. The court must determine whether the alleged acts are part of the same actionable hostile work environment, and if so, whether any act falls within the statutory time period. Id. at 120. In either discrete acts of discrimination or hostile work environment claims, the application of equitable doctrines such as tolling, estoppel, and laches, may either limit or toll the time period within which an employee must file a charge. Id. at 105.
Oregon courts borrowed the concept of the continuing violation doctrine as found in federal case law. See Dobie v. Liberty Homes, Inc., 53 Or. App. 366, 369, 632 P.2d 449 (1981) (failure to reinstate an injured worker).
Spees began his medical leave on April 2, 2001, and never returned to work. He filed a BOLI complaint on November 27, 2002, and filed this civil action on October 17, 2003. His argument mixes the disparate treatment claim, for his termination, and the harassment claims. Spees could not have been harassed after he left work on April 2, 2001. The record contains evidence of extremely limited contacts between the District administration and Spees once his leave began, and those contacts were not harassing. Thus, to timely allege Title VII and ADEA claims under Morgan, Spees needed to file his BOLI complaint within 300 days of April 2, 2001, and needed to file this civil action within one year from that date. He was late doing both. Consequently, I grant summary judgment against the sex and age harassment claims alleged under Title VII, ADEA, and ORS Ch. 659A.
II. Disparate Treatment Discrimination
Spees alleges that his termination was a result of sex and age discrimination. The District argues that Spees failed to establish a prima facie case. It contends that it terminated Spees because he was reprimanded numerous times over the years without changing his behavior, ultimately culminating in TSPC suspending his license. The District also notes that Spees' replacement, a younger woman, was better qualified than he and that the teacher who was not terminated for having a licensing problem was not similarly situated to Spees.
Spees argues that he only had isolated instances of discipline during his 26 year career teaching at the District. He contends that Shelley and Long also discriminated against other male employees and other older employees. Spees does not agree that his replacement is better qualified than he is, particularly considering his long experience. He also does not believe that his license suspension was the cause of his termination because another teacher had a licensing lapse and was retained.
To establish a prima facie case of age discrimination, a plaintiff must produce enough evidence at summary judgment for the trier of fact to infer the fact at issue. The elements are that plaintiff: (1) was a member of the protected class (age 40-70); (2) was performing the job in a satisfactory manner; (3) was discharged; and (4) replaced by a substantially younger employee with equal or inferior qualifications. Nidds v. Schindler Elevator Corporation, 113 F.3d 912, 917 (9th Cir. 1996) (emphasis in the original), cert. denied, 522 U.S. 950 (1997). The fourth element has been applied with flexibility. Id. (court erred by concluding that to establish a prima facie case, plaintiff was required to show that he was at least as qualified as his replacement).
Similarly, to prove a Title VII disparate treatment claim, a plaintiff must establish a prima facie case of discrimination. A prima facie case may be demonstrated by direct evidence of discriminatory intent or may be based on a presumption arising from factors set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Generally stated, the factors are: (1) membership in a protected class; (2) qualification for the job or satisfactory performance of the job; (3) an adverse employment decision; and (4) different treatment than those similarly situated outside of the protected class. McDonnell Douglas, 411 U.S. at 802.
The requisite degree of proof necessary to establish a prima facie case for a Title VII claim on summary judgment "is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis, 26 F.3d at 889. "The plaintiff need only offer evidence which `gives rise to an inference of unlawful discrimination.' . . . Establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Id. (citations omitted).
The standard for establishing a prima facie case of discrimination under Oregon law is identical to that used in federal law. Henderson v. Jantzen, Inc., 79 Or. App. 654, 657, 719 P.2d 1322 (expressly adopting formulation in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) as test for ORS Ch. 659 actions), rev. denied, 302 Or. 35 (1986). Oregon courts rejected the burden-shifting mechanism applicable to federal claims. Hardie v. Legacy Health System, 167 Or. App. 425, 434-38, 6 P.3d 531 (2000). The Ninth Circuit held, however, that in a diversity action under Oregon's disability discrimination statute, it would apply the McDonnell Douglas burden-shifting analysis rather than Oregon's rule because the burden-shifting analysis was federal procedural law. Snead v. Metropolitan Property Casualty Insurance Co., 237 F.3d 1080, 1090-93 (9th Cir.), cert. denied, 534 U.S. 888 (2001).
The District argues that Spees failed to establish a prima facie case for either sex or age discrimination because he was not satisfactorily performing his job. Spees argues that the isolated instances of discipline over his 26 year career are inadequate to show that he was not performing his job satisfactorily.
I must agree with the District. There is evidence that many parents would not allow their children to be in Spees' class. His file contains several disciplinary letters and several other yearly evaluations which admonish Spees for his methods of discipline and interaction with the students. The last straw was when the TSPC suspended Spees' license for 90 days because of misconduct. Spees' termination followed shortly thereafter. There is also no direct evidence of discrimination. I am mindful that the prima facie case is a very low hurdle for a plaintiff and is frequently conceded by a defendant. On this evidentiary record, however, I conclude that Spees has not raised a factual issue that he was performing his job satisfactorily and thus, has failed to establish a prima facie case.
I grant summary judgment against all age and sex discrimination disparate treatment claims under Title VII, ADEA, and ORS Ch. 659A.
III. Wrongful Discharge
Spees brings a claim for wrongful discharge, alleging that he was terminated in retaliation for complaining about sex and age discrimination. The District contends that there is no evidence that he complained of either and that it terminated Spees because of his license suspension.
Absent a contractual, statutory, or constitutional requirement, the general rule is that an employer may discharge an employee at any time and for any reason. Babick v. Oregon Arena Corp., 333 Or. 401, 407 n. 2, 40 P.3d 1059 (2002). Two exceptions exist. The first is when an employee is discharged for fulfilling an important public duty. Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (employee discharged for serving on jury duty); Delaney v. Taco Time Intl, 297 Or. 10, 681 P.2d 114 (1984) (discharged for refusing to sign a false and arguably tortious statement). The second is when the plaintiff is discharged for exercising a job-related right that reflects an important public policy.Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978) (discharged for filing a workers compensation claim but statutory remedy in place at the time was inadequate).
An employee has a claim for the common law tort of wrongful discharge if he is fired for pursuing a statutory right related to his role as an employee. Goodlette v. LTM, Inc., 128 Or. App. 62, 65, 874 P.2d 1354 (1994). Thus, there is no common law right of action for discharges that violate the statutory right against discrimination but the common law tort does cover discharges caused by an employee's resistance to discrimination.Id. at 64-65.
Spees contends that he opposed employment discrimination by having conversations with co-employees, by his interaction with Long, and by his testimony at TSPC where he expressly testified that he was discriminated against due to his age and sex. Spees also claims to have made it known that a different standard applied to male and female teachers concerning physical contact with students and disciplining students.
The evidentiary record, however, does not support Spees' argument. I see nothing in the deposition testimony or the declarations that Spees complained to Long that he was discriminated against because of his sex or age. On the contrary, Shelley, Long, and the Superintendent all deny that they heard such complaints from Spees or anybody else. The deposition testimony also does not cover the content of Spees' testimony at the TSPC hearing. Most importantly, I have not been provided with a transcript of the hearing. Thus, there is no evidence before me that Spees ever complained about discrimination. Accordingly, I grant summary judgment against the wrongful discharge claim.
IV. Oregon Family Leave Act
Spees brings a claim under OFLA, alleging that he was terminated for requesting leave under the act and that the District instituted a pre-dismissal process to terminate him while he was on leave.
The District argues that it did not violate OFLA. It notes that under OFLA, Spees was entitled to twelve weeks of leave. The District argues that even though it notified Spees that his paid leave would expire on October 15, 2001, he did not attempt to return to work, or to keep the District apprised of whether he was released to return to work, until July 2003 when he was notified of his termination.
Spees contends that the District acquiesced in allowing him extended medical leave and was thus required to reinstate him when he was ready to return to work. According to Spees, when the District granted him additional leave, it needed to tell him that he was required to return to work or his job would not be available.
I note that the theory which Spees discusses in his memo, a failure to reinstate, is not the retaliation theory that he alleged in his Complaint. I will, however, discuss both.
Although the OFLA statute itself does not provide for a retaliation claim, when read together with the applicable administrative rules, OFLA provides a civil remedy for retaliatory discharge for invoking the act. Yeager v. Providence Health System Oregon, 195 Or. App. 134, 139, ___ P.3d ___ (2004). In retaliation claims, Oregon courts require a causal connection between invoking the statutory provision and the subsequent termination. See Hardie v. Legacy Health System, 167 Or. App. 425, 433, 6 P.3d 531 (2000) (retaliation claim under state injured workers' law).
Spees began his medical leave, with the District's approval, on April 2, 2001. The Superintendent wrote Spees on July 2, 2001, to ask if he would return to teaching in the fall. In late August 2001, Spees' doctor replied to a Fitness for Duty Questionnaire to state that Spees could not return to the middle school but could work in administration or at the high school. Because there were no job openings for which Spees was qualified, the Superintendent continued him on medical leave and wrote Spees on August 27, 2001, to tell him that the paid sick leave would expire on October 15, 2001. Neither Spees nor his doctor contacted the Superintendent further about Spees' medical leave or to release Spees to return to work. Spees was not told he would be terminated until June 10, 2002.
The District did not terminate Spees when he asked for a medical leave or when his paid leave ended. Spees continued on an unpaid leave for another seven months before his termination. This gap is too long to support a retaliation claim without other evidence. See Clark County School District v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, (2001) (citing with approval cases holding that a three month period and a four month period were insufficient to establish causation for a prima facie case when there is no causation evidence beyond the temporal proximity). There is no evidence that the District ever admonished Spees for taking leave or even referred to the leave in any way except to inquire about his plans to return. Under OFLA, an employer may require an employee to report periodically on the employee's status and intention to return to work. ORS 659A.171(4)(b).
I conclude that Spees has failed to raise a factual issue that he was retaliated against for taking an OFLA leave.
I now turn to Spees' argument that the District violated OFLA by failing to reinstate him. I first note that there is no evidence that a job existed for which Spees was qualified at any time after his doctor released him for duty to particular types of positions. Spees cites no statutory authority for his argument that OFLA leaves can be extended past the twelve weeks provided by the act, and I find none. The statute states that "[a]fter returning to work after taking family leave . . . an eligible employee is entitled to be restored to the position of employment held by the employee when the leave commenced." ORS 659A.171(1). Likewise, the regulation states that ["a]n employer must restore an employee returning from OFLA leave" but does not provide for extending the leave past twelve weeks within a one-year period. OAR 839-009-0270; ORS 659A.162(1).
I conclude that Spees had no right under OFLA to return at a time of his choosing well past the statutory leave period. If Spees is contending that he should have been reinstated to a teaching position at the high school, I also conclude that he has no right under OFLA to return to a position other than the one from which he left, which still existed. Accordingly, I grant summary judgment against his OFLA claim.
V. Intentional Infliction of Emotional Distress
Spees alleges a claim for the intentional infliction of emotional distress based on the District's conduct toward him over the years. The District contends that Spees has not brought forward evidence of conduct outrageous enough to be tortious, in particular that there was no threat of physical harm and he was not forced to engage in unethical behavior.
The tort of intentional infliction of emotional distress contains the following elements:
(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841 (1995). Intent is defined to mean "where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct." Id. at 550 (emphasis omitted). The nature of the relationship between the parties affects the type of conduct that is considered actionable. Id. at 548.
"Conduct that is merely rude, boorish, tyrannical, churlish and mean [is insufficient to be actionable, and] . . . insults, harsh or intimidating words, or rude behavior ordinarily [do not] result in liability even when intended to cause distress." Watte v. Edgar Maeyens, Jr., 112 Or. App. 234, 239, 828 P.2d 479, 481 (1992) (quoting Hall v. The May Dept. Stores, 292 Or. 131, 135, 637 P.2d 126, 129 (1984)). In addition, 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. See Babick v. Oregon Arena Corp., 333 Or. 401, 413, 40 P.3d 1059 (2002) (defendant's release of intoxicated and violent concertgoers who had been detained by plaintiffs presented a threat of imminent physical harm that was presumed grave); Kraemer v. Harding, 159 Or. App. 90, 976 P.2d 1160 (1999) (continued accusations that a school bus driver was a child sex abuser after multiple investigations concluded that no inappropriate conduct occurred); Wheeler v. Marathon Printing, Inc., 157 Or. App. 290, 974 P.2d 207 (1998) (co-worker continued harassment including sexual remarks even after plaintiff attempted suicide); Lathrope-Olson v. Dept. of Transportation, 128 Or. App. 405, 408, 876 P.2d 345 (1994) (calling a Native American woman a squaw, telling her that a squaw was supposed to walk behind her man, stating that all women were good for was between their legs, locking her out of the work van in the rain and snow, and threatening to push her into the path of oncoming vehicles); Mains v. II Morrow, Inc., 128 Or. App. 625, 877 P.2d 88 (1994) (daily physical assaults and sexual comments by supervisor); Franklin v. Portland Community College, 100 Or. App. 465, 787 P.2d 489 (1990) (supervisor called an African-American male by the name "boy," issued false reprimands, shoved him, locked him in an office, and suggested that he apply elsewhere for employment).
This tort can be alleged if the employer committed abusive acts in the course of the firing or if the underlying acts preceding the firing were an extraordinary transgression of the bounds of socially tolerable conduct. The mere act of firing an employee, without more, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior. Madani v. Kendall Ford, Inc., 312 Or. 198, 204-05, 818 P.2d 930 (1991).
Whether conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct is a question of law.Harris v. Pameco Corp., 170 Or. App. 164, 171, 12 P.3d 524 (2000).
Spees points to the fact that he had to take medical leave because of the harassment that he suffered. He contends that this is enough to create a fact question requiring a jury to resolve this claim.
At best, Spees has presented evidence that he was supervised very closely by Shelley and Long, disciplined numerous times during his long tenure, spoken to rudely by Long in front of the other teachers, and eventually lost his license and was subsequently terminated. There is no evidence of psychological or physical intimidation, racism, or sexual or age harassment. His termination is not adequate grounds to support this tort. Likewise, Long's rudeness, insults, or harsh behavior, although not a model of professionalism, are not actionable. I conclude that Spees has failed to proffer evidence that the conduct aimed at him constituted an extraordinary transgression of the bounds of socially tolerable conduct. I grant summary judgment against the claim for the intentional infliction of emotional distress.
CONCLUSION
Defendant's Motion for Summary Judgment (#18) is granted. This action is dismissed with prejudice.