Opinion
Case No. 99-1572-AS
June 12, 2001
OPINION AND ORDER
Magistrate Judge Donald C. Ashmanskas filed Amended Findings and Recommendations on May 15, 2001, in the above entitled case (#48). The matter is now before me pursuant to 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), cert. denied, 455 U.S. 920 (1982).
Judge Ashmanskas has also filed a Findings and Recommendation (#44) identical to the Amended Findings and Recommendation (#48), with the exception of the parties' names. This opinion and order applies equally to both Findings and Recommendations (#44, #48).
Plaintiff has timely filed objections. I have, therefore, given de novo review of Magistrate Judge Ashmanskas' rulings. The facts are not repeated herein, as Judge Ashmanskas' presentation of the facts has not been challenged. Plaintiff objects to Judge Ashmanskas' recommended ruling that plaintiff's intentional infliction of emotional distress (IIED) claim be dismissed. Neither party objects to any other recommended rulings. I find that plaintiff has raised questions of fact as to whether he suffered severe emotional distress, and that AMF could be held vicariously liable for this intentional tort. Accordingly, I DECLINE to adopt Judge Ashmanskas' Findings and Recommendation (#44, #48) with respect to plaintiff's IIED claim.
DISCUSSION
To state a claim for IIED, a plaintiff must show the following: (1) defendant intended to inflict severe emotional distress on the plaintiff; (2) defendant's acts were the cause of plaintiff's severe emotional distress; and (3) defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable behavior. McGanty v. Staudenraus, 321 Or. 532, 543 (1995). In order to prevail, a plaintiff must show they suffered emotional distress as a result of defendant's conduct and that this distress was severe. Kraemer v. Harding, 159 Or. App. 90, 111 (1999).
A. Severe Emotional Distress
In Kraemer, the court affirmed the trial court's denial of the defendants' motion for a directed verdict on the plaintiff's IIED claim where the plaintiff testified he felt depressed, his physician diagnosed him with depression and placed him on an antidepressant, and the plaintiff's psychiatrist indicated that the stress at work was the major contributing cause of plaintiff's disorder. Id. at 111-112. Moreover, the alleged conduct lasted from February 1993 to August 1994. Id. The court found based on its duration and intensity, the jury could have inferred the plaintiff's distress was severe. Id.
In Rockhill v. Pollard, 259 Or. 54, 63 (1971), the court found the trial court erred in granting a non-suit as to the plaintiff's IIED claim where the plaintiff testified that as a result of the defendant's behavior she became nervous and had to take tranquilizers, that her nervousness caused her sleeplessness and loss of appetite over a considerable period of time, and further where the plaintiff's testimony was corroborated by her husband. The court noted it is the distress that must be severe, not the physical manifestations, and further that mental distress would have to be more than mild and transitory in order to cause these symptoms over a two-year period. Id.
In Barrington v. Sandberg, 164 Or. App. 292, 297-98 (1999), the court found a jury question as to the plaintiff's IIED claim where the plaintiff, in the process of describing the allegedly distressing conduct, became increasingly upset, started crying, and eventually vomited and began counseling. The court found that while the plaintiff had not demonstrated emotional distress prior to this time, the plaintiff had raised a jury question whether she suffered severe emotional distress once she began describing the conduct, as described herein.
In Miller v. D.F.Zee's, 31 F. Supp.2d 792 (D.Or. 1998), the court found a genuine issue of material fact as to the plaintiffs' IIED claims where: one plaintiff alleged she experienced vomiting before and after work, difficultly sleeping, nightmares, loss of appetite, lost weight, and irritability with her children; another plaintiff alleged she felt embarrassed, belittled, threatened, humiliated, demoralized, and anxious, leading her to seek out medical treatment and become quiet, withdrawn, afraid to go to work, afraid to work in environments with male employees, and she experienced anxiety attacks; and the third plaintiff alleged she cried at work, had difficulty sleeping, lost weight, vomited, and suffered stress, anxiety, and embarrassment.
Judge Ashmanskas recommended granting defendants' motion for summary judgment as to plaintiff's IIED claim because plaintiff failed to put forth facts establishing he suffered severe emotional distress because of defendant Kost's behavior. Kost's alleged conduct began in March 1998, and continued until his resignation in September 1998. Plaintiff testified that he would like to see a psychologist, but cannot afford one, and that he developed hives many times during and after his employment with defendant, and has submitted his chronology of events, in which plaintiff notes that he wishes he were white because of his experience with defendant, he has been going through, and continues to experience, "major boughts of depression," he is short with people and sometimes refuses to talk to people on the phone, and has had nightmares. (Russell Aff. Ex. A, p. 159, 176; Ex. E p. 3).
The evidence put forward by plaintiff is similar to that put forth by the plaintiffs in the cases discussed above. Plaintiff put forth evidence that he continues to suffer depression and nightmares as a result of Kost's conduct which began March 1998. (Russell Aff. Ex. E). Given the duration and intensity of the alleged distress, plaintiff has raised a jury question as to whether he suffered severe emotional distress. Moreover, Kost's comments, which raised a question of fact as to whether plaintiff suffered a hostile work environment, could rationally be found to have been intended to inflict intentional distress, and to have transgressed the bounds of that which is socially tolerable. The record supports a finding that plaintiff has raised a jury question as to his IIED claim.
B. Vicarious Liability
An employer is liable for an employee's tortious conduct if the employee acted within the scope of employment. Mains v. Morrow, Inc., 128 Or. App. 625, 631 (1994). To determine whether an employee was acting in the scope of employment, the court must make three inquiries: (1) whether the act occurred substantially within the time and space limits authorized by the employment; (2) whether the employee was motivated, at least in part, by a purpose to serve the employer; and (3) whether the act is the kind which the employee was hired to perform. Id.
The focus is not on whether Kost acted in AMF's interest or whether Kost was hired to harass plaintiff. The focus is whether the acts complained of resulted from or were an outgrowth of the exercise of Kost's employment duties. Harris v. Pameco, 170 Or. App. 164, 173 (1999) (citing Fearing v. Bucher, 328 Or. 367 (1999) and Lourim v. Swensen, 328 Or. 380 (1999)). In Harris, the court found the trial court erred in directing a verdict in favor of the defendant on the IIED claim on the theory of vicarious liability where the supervisor's conduct of expressing greetings or good-byes by saying "hugs and kisses" was part of his supervisory style and this, in connection with his touching the plaintiff, were an outgrowth of the exercise of his employment duties. In Fearing, the court held that a jury could reasonably infer that the priest's conduct in cultivating a trust relationship with the plaintiff was motivated, at least in part, by a desire to further the interests of the Archdiocese, that the conduct was of a kind that the priest was hired to perform, and that the conduct led to the sexual assaults. Fearing, 328 Or. at 375. Similarly, in Lourim, the court found that a jury could reasonably infer that the sexual assaults were the culmination of a progressive series of actions that involved the ordinary and authorized duties of a Boy Scout leader. Lourim, 328 Or. at 386.
Here, a number of plaintiff's allegations involve Kost's supervisory duties. Plaintiff alleges Kost discriminated against him on the basis of race, or made racial remarks, when he denied plaintiff time off, responded to plaintiff's complaints about the broken air conditioner, or referred to the Michael Jordan display at the bowling alley. As in the cases discussed above, a reasonable jury could infer that the racial harassment was an outgrowth of the exercise of Kost's employment duties. Accordingly, AMF may be held vicariously liable for Kost's conduct.
CONCLUSION
Accordingly, I DECLINE to adopt Magistrate Judge Ashmanskas' Findings and Recommendation (#44), filed April 12, 2001, and the Amended Findings and Recommendation (#48), filed May 15, 2001, with respect to plaintiff's IIED claim. Defendants' motion for summary judgment (#19) is DENIED with respect to all of plaintiff's claims. IT IS SO ORDERED.