§29.11 Wrongful Discharge
Library | Torts (OSBar) (2012 Ed.) |
§29.11-1 Introduction
Employment-at-will has long been the defining concept underlying the relationship between employers and employees. The general rule has been that an employer may discharge an employee at any time and for any reason, absent a contractual, statutory, or constitutional restriction. Simpson v. Western Graphics Corp., 293 Or 96, 99, 643 P2d 1276 (1982); Nees v. Hocks, 272 Or 210, 216, 536 P2d 512 (1975). Termination of employment traditionally did not create a tortious cause of action. Nees, 272 Or at 216. Delaney v. Taco Time Intern., Inc., 297 Or 10, 14, 681 P2d 114 (1984).
In the wake of legal scholarship criticizing the employment-at-will doctrine as unduly harsh on employees and inconsistent with the economic realities of the American workplace, courts in Oregon and other jurisdictions have, since the 1960s, recognized exceptions to this general rule by sustaining a common-law tort claim for wrongful discharge. See Robert C. Bird, Rethinking Wrongful Discharge: A Continuum Approach, 73 U Cinn L Rev 517, 520 (2004).
The Oregon Supreme Court first recognized the tort of wrongful discharge in Nees v. Hocks, 272 Or 210, 536 P2d 512 (1975). Wrongful discharge is an interstitial tort, applicable in cases in which an employer has discharged an employee for a socially undesirable motive and the employee would otherwise be left without a remedy. Nees, 272 Or at 218. Oregon courts have recognized claims for wrongful discharge in two types of situations: (1) an employee was discharged for performing an important public duty or (2) an employee was discharged for exercising an employment-related right of important public interest. Babick v. Oregon Arena Corp., 333 Or 401, 407, 40 P3d 1059 (2002).
§29.11-2 Who Is Covered?
§29.11-2(a) Employers Defined
Both public and private employers may be liable for wrongful discharge. Exceptions for certain claims against public employers may exist when an agency such as the Employment Relations Board has exclusive jurisdiction over a particular claim. Certain claims against private employers may also be preempted by federal labor laws. See §29.11-10(a).
CAVEAT: If the claim is against a public employer, a written notice of tort claims must be sent to the public body within 180 days of the occurrence, usually the date the employee learns of the termination. ORS 30.275(2)(b). The filing of an administrative complaint with the Oregon Bureau of Labor and Industries or a grievance neither satisfies the notice requirement nor extends the time for serving this notice.
§29.11-2(b) Employees Defined
In Schram v. Albertson's Inc., 146 Or App 415, 426-427, 934 P2d 483 (1997), the court determined that "[t]he employment relationship is a necessary element of the tort [of wrongful discharge] and establishes the duty of the employer on behalf of the employee not to violate the established public policy." See also Cantua v. Creager, 169 Or App 81, 91, 7 P3d 693 (2000) (upholding dismissal of the plaintiff's wrongful discharge claim based upon conclusion that the plaintiff had failed to offer sufficient evidence that she was an employee and not an independent contractor). Whether an individual is an employee or an independent contractor depends on the degree to which the defendant company had the right to control the plaintiff in the performance of his work. Cantua, 169 Or App at 91-92.
§29.11-2(c) Individual Supervisors Not Liable
The Oregon Court of Appeals has rejected a claim for wrongful discharge against a supervisor in his individual capacity. The court reasoned that only an employer can discharge an employee, therefore when a supervisor acts to terminate an employee she is acting solely in a representative capacity. Schram v. Albertson's Inc., 146 Or App 415, 427, 934 P2d 483 (1997); see also Hutton v. Jackson County, No. 09-3090-CL, 2010 WL 4906205, 2010 US Dist LEXIS 123379 (D Or Nov 23, 2010) (claim of wrongful discharge may only be brought against the plaintiff's employer); Sniadoski v. Unimart of Portland, Inc., No. 93-1051-MA, 1993 WL 797438, 1993 US Dist LEXIS 21165 (D Or 1993) (granting the supervisor-defendant's motion to dismiss the plaintiff's wrongful discharge claim on the ground that a claim for wrongful constructive discharge lies only against the employer).
§29.11-3 What Constitutes a Discharge?
In every claim for wrongful discharge, there must be "a discharge" and that discharge must be shown to be "wrongful." Moustachetti v. State, 319 Or 319, 325, 877 P2d 66 (1994), superseded by statute on other grounds, 139 Or App 244 (1996). The plaintiff's discharge may be actual (e.g., the employer says "You're fired") or constructive (e.g., the employer intentionally makes the employee miserable, causing the employee to quit). McGanty v. Staudenraus, 321 Or 532, 557, 901 P2d 841 (1995); Sheets v. Knight, 308 Or 220, 227, 779 P2d 1000 (1989); Carlson v. Crater Lake Lumber Co., 103 Or App 190, 796 P2d 1216 (1990), modified, 105 Or App 314 (1991). In the first instance, when an employer affirmatively terminates an individual's employment, the only issue is whether the decision was "wrongful." Sections 29.11-4 to 29.11-4(c)(2) address this second element of the tort of wrongful discharge. However, when the discharge comes about due to the plaintiff's resignation, the plaintiff must first prove that the separation constituted a "constructive discharge." Such a discharge is not a separate cause of action but, instead, a wrongful discharge that was "constructive," or indirect, rather than direct. McGanty, 321 Or at 552 (quoting Bratcher v. Sky Chefs, Inc., 308 Or 501, 503-504, 783 P2d 4 (1989)). (Note that Bratcher was partially overruled by McGanty regarding the employer's intent required to establish a constructive discharge. McGanty, 321 Or at 555.)
§29.11-3(a) Constructive Discharge
The Oregon courts have identified two types of constructive discharge. The first type is when the employee is unconditionally told "resign today or be fired." See Sheets v. Knight, 308 Or 220, 226-227, 779 P2d 1000 (1989). If the employee resigns following this ultimatum, the employer has made the decision to terminate the employment relationship. The employee "merely selects the manner in which the employer's will is accomplished." Sheets, 308 Or at 227.
The second type of constructive discharge occurs when the plaintiff's resignation stems from unacceptable or intolerable working conditions. See McGanty v. Staudenraus, 321 Or 532, 555-556, 901 P2d 841 (1995). See also Carlson v. Crater Lake Lumber Co., 103 Or App 190, 194, 796 P2d 1216 (1990), modified, 105 Or App 314 (1991); Swanson v. Eagle Crest Partners, Ltd., 105 Or App 506, 509, 805 P2d 727 (1991); Seitz v. State By and Through Albina Human Resources Center, 100 Or App 665, 674-676, 788 P2d 1004 (1990).
In McGanty the court said that to establish a constructive discharge, a plaintiff must allege and prove 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.
McGanty, 321 Or at 557 (footnotes omitted).
In outlining the elements for constructive discharge, the court in McGanty relied on the Restatement's definition of intent. Restatement (Second) of Torts §8A comment b (1965) (if an actor "knows that the consequences [of the act] are certain, or substantially certain, to result from [the] act, and still goes ahead, [the actor] is treated by the law as if [the actor] had in fact desired to produce the result"). This approach retreats from the approach outlined in Bratcher v. Sky Chefs, Inc., 308 Or 501, 783 P2d 4 (1989), overruled, 321 Or 532 (1995). In that case, the court had required the plaintiff to show that the employer's intended purpose was to force the plaintiff to leave the job. Therefore, it is unnecessary for a plaintiff seeking to establish a constructive discharge to allege or prove a specific intent on the part of the employer to force the plaintiff to resign. Dalby v. Sisters of Providence in Oregon, 125 Or App 149, 153-154, 865 P2d 391 (1993).
Whether the plaintiff's resignation constitutes a constructive discharge is a question of fact. See Carlson, 105 Or App at 317; Sheets, 308 Or at 227. Although previous courts had vacillated on the issue of whether a subjective test or an objective test should be applied in determining whether an employee's work conditions were sufficiently intolerable to support a finding of constructive discharge, see Bratcher, 308 Or at 506, the court in McGanty established that an objective test will be used in making this determination. A plaintiff employee must show that a reasonable person in the employee's position would have resigned because of the allegedly unacceptable work conditions. McGanty, 321 Or at 556-557.
Consistent with the doctrine of respondeat superior, an employer may be held responsible for constructive discharge when the intolerable or unacceptable conditions were intentionally created by a supervisor acting within the course and scope of employment. Carlson, 105 Or App at 316-317. The court of appeals reaffirmed this conclusion in Ballinger v. Klamath Pacific Corp., 135 Or App 438, 454, 898 P2d 232 (1995) (trial court erred in failing to consider supervisor's intent, in addition to intent of corporation, for which corporation could be held liable). See also Mains v. II Morrow, Inc., 128 Or App 625, 629, 877 P2d 88 (1994) (holding that employer could be liable for constructive discharge under doctrine of respondeat superior if employee...
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