Opinion
Civil No. 00-849-AS
July 19, 2001
FINDINGS AND RECOMMENDATION
Presently before the court is defendant Wal-Mart Stores, Inc.'s ("Defendant"), motion for summary judgment against plaintiff Marian Baron's ("Plaintiff") claims for wrongful discharge and battery. Plaintiff's complaint asserted additional claims for interference with employment relationship, and sex discrimination under federal and state law. Plaintiff conceded these claims in her opposition memorandum and also conceded, for the purposes of the summary judgment only, her claim for assault.
BACKGROUND
Defendant hired Plaintiff in October 1995. In 1998, Eloy Baca, Defendant's operations manager for the district in which Plaintiff worked, approved Plaintiff's designation as a "Rising Star." As a "Rising Star," Plaintiff, who was an assistant manager, was eligible for promotion to manager in the next two to four years.
In August 1998, Plaintiff attended a training session in Dallas, Texas. During a speech by Wal-Mart President, Don Soloquest, Baca noticed that Plaintiff had leaned her head back on her chair and closed her eyes for three to five minutes. Baca, thinking that Plaintiff had fallen asleep, reached over with his note pad and either tapped or slapped Plaintiff to wake her up. Plaintiff sat up and opened her eyes.
Plaintiff was very upset after the incident and avoided Baca for the rest of the trip. Approximately one week after she returned from Texas, Plaintiff asked to speak with Baca and asked Ann Jankovich, another employee, to be a witness to the discussion. Plaintiff told Baca that she thought what happened in Dallas, Texas, was totally unacceptable and disrespectful, and that Baca owed her an apology. Baca responded "I don't owe you anything, you were sleeping." Plaintiff did not deny that she was asleep but stated that hitting was not appropriate in any event. When Baca refused to apologize, Plaintiff indicated that she would take the matter up with Baca's boss. Baca picked up the telephone to call his boss and then asked Plaintiff, "Don't you think you are making more out of this than is necessary?" Plaintiff and Baca ultimately resolved the matter by agreeing that Baca wouldn't hit and that Plaintiff would pay attention when someone was speaking. Thereafter, Plaintiff and Baca were pleasant to each other and would exchange hello's when they saw each other in a store.
In December 1998, Baca and his son visited the store where Plaintiff was working. Plaintiff was the only manager in the store and the store was busy with the pre-Christmas rush. Baca became upset when he had to stand in a check-out line for an extended period of time and, according to Plaintiff, yelled "Damn it, Baron, damn it, what are you doing about these lines." Plaintiff was upset that Baca would treat her that way in front of a store full of customers and employees. Plaintiff mentioned the incident to the store manager, Lanny Finley, when he returned. Finley told Plaintiff that she needed to stop getting on Baca about certain things, that he does things like that and it was no big deal and that she was just "pissing him off."
Baca evaluated Plaintiff in the spring of 1999. The only negative aspect of the evaluation was that Baca expressed some concern that Plaintiff's employees did not trust her and that she should work on communication skills. Baca indicated that he planned to do a survey before Plaintiff was considered for a promotion. There is no evidence that this survey ever occurred although Plaintiff herself performed a face-to-face oral survey of employees which did not substantiate Baca's concerns.
In September 1999, Defendant's corporate office engaged in an internal audit of its phone lines to determine whether corporate employees had been improperly using the company phones. As a result, Baca began an audit of the stores under his control and discovered that both Plaintiff and Lanny Finley had been using the store phones to make personal long distance phone calls during their work hours. Baca, Paula Brethower, a store manager, and Heather Alexander, the district's loss prevention supervisor, met with Plaintiff and advised her that she had been violating company policy by making personal long distance phone calls on store phones. Plaintiff did not deny that she used the phones in this manner or that such use was against Defendant's policy. Instead, she argued that she had been making the calls in front of managers for four years and that no one had ever said anything to her about it before. Plaintiff was asked to add up the amount of money attributable to her calls and was required to reimburse Defendant for that amount. She was also assessed a "decision day", which is supposed to entail the employee staying home with pay on their next scheduled work day to write up a plan of action. Instead, Brethower told Plaintiff that she was going to be required to come in on her next day off and teach an orientation class on Defendant's policies and procedures. Plaintiff did not attend the orientation class and there is no indication that Plaintiff ever took a "decision day".
The evidence shows that Lanny Finley was also disciplined to some degree for personal use of the company phones but there is no indication that he was required to repay Defendant for the calls or that he was assessed a "decision day". Finley did advise all of the managers at a Friday morning meeting that no one should make any more long distance phones calls because "they are watching it now."
Shortly thereafter, Plaintiff contacted Defendant's Resource for Living department to voice her complaints that everyone, including managers, used company phones for personal calls, and that she didn't think she should be the only one to get a "decision day" for violation of the policy. Additionally, Plaintiff reported, for the first time, that Baca hit her at the Texas meeting more than a year before. She indicated that she wanted to work things out but Sean Evans, Defendant's regional personnel manager, recommended moving Plaintiff out of Baca's district, giving her a new start and eliminating any mention of a "decision day" from her personnel file.
Three weeks later, Evans contacted Plaintiff and informed her that they had investigated her report that Baca hit her and determined that it was an appropriate tap and not a hit. He advised her that she would not be transferred but would remain assigned to the same district.
On September 29, 1999, Steve Wright, a sales associate at Plaintiff's store, reported to Jeff Turk, a department manager at Plaintiff's store, that he had seen Plaintiff smoking a three-inch pipe in her car in the parking lot. Turk reported the incident to Brenda Price, who in turn reported the incident to Baca. Additionally, Price indicated to Baca that Plaintiff's eyes were bloodshot, that she wasn't answering any of her calls, was in a weird state of mind and was acting funny around the store. Baca told Price to get statements from each of the individuals witnessing Plaintiff's behavior and called Sean Evans, the regional personnel manager, for advice. Shortly thereafter, Heather Alexander contacted Baca to discuss the status of the investigation.
Early the next morning, Alexander called Defendant's drug and alcohol hot line and summarized the testimony against Plaintiff. The counselor, who was a representative of Defendant's corporate office, told Alexander that she had reasonable suspicion to send Plaintiff for a drug test. Alexander and Brethower then called Plaintiff into Brethower's office, advised her that they had reason to believe that she was under the influence of drugs and alcohol, and asked her to submit to a drug test. At first, Plaintiff was very willing to submit to a drug test but then changed her mind after she made a telephone call. Alexander explained that refusal to submit to a drug test was grounds for immediate termination without rehire. Plaintiff's indicated that she understood the consequences of her refusal. Plaintiff was terminated as of that moment and was escorted from the store after she collected her personal items.
It is unclear where the accusation about alcohol use came from but the evidence shows that a number of employees had reported to Finley and Baca that Plaintiff was using alcohol during work hours based on the smell of alcohol on Plaintiff's breath. Baca had two discussions with Plaintiff in 1998 about drinking during work hours, once before the Texas trip and Plaintiff's designation as a "Rising Star" and once after.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
DISCUSSION
Three of Defendant's original arguments remain before the court. Defendant contends that Plaintiff is unable to support her wrongful discharge claim because she has failed to establish: 1) that protesting the tap/slap implicates either a private statutory right or an important public duty; or 2) a causal relationship between the protesting of the tap/slap and her discharge. Additionally, Defendant claims that the lack of evidence that Baca intended to do violence and personal injury to Plaintiff defeats her battery claim.
First Claim for Relief — Wrongful Discharge
Under Oregon law, absent a contractual, statutory, or constitutional requirement to the contrary, employment is at will. Carlson v. Crater Lake Lumber Co., 103 Or. App. 190, 193 (1990) (citing Patton v. J.C. Penney, 301 Or. 117, 120 (1986)). Oregon courts recognize two exceptions to this general rule: where an employee is discharged for either (1) fulfilling an important societal obligation, or (2) exercising an employment related right of important public interest. Id. (citing Holien v. Sears, Roebuck Co., 298 Or. 76, 86 (1984)). To establish a wrongful discharge claim, a plaintiff must show a "causal connection" between the protected activity and her termination. Shockey v. City of Portland, 313 Or. 414, 422 (1992); Estes v. Lewis and Clark College, 152 Or. App. 372, 381 (1998).
Here, despite Baca's concern over Plaintiff's drinking, the two had a good relationship prior to the tap/slap incident. In fact, Baca approved of Plaintiff's designation as a "Rising Star" and supported her attending the training session in Dallas, Texas. Within a week after the incident, Plaintiff approached Baca and requested an apology. While Baca would not apologize, Plaintiff testified that she and Baca resolved the dispute and that they continued to be cordial to each other.
The December incident in which Baca allegedly screamed and swore at Plaintiff in front of a store full of customers and employees was inappropriate but not necessarily related to the tap/slap incident. Plaintiff indicated in her notes that when she explained to Finley what had happened, Finley responded that Baca does things like that and that she should let it go. The fact that Baca regularly engaged in similar behavior establishes that Plaintiff was not singled out ased on the tap/slap incident.
Baca's statement in February that he planned to perform a survey to determine whether Plaintiff had the trust of her employee's was totally appropriate in the setting of an evaluation, especially where similar communication concerns had been raised in conversations prior to the tap/slap incident. Additionally, the evidence supports a conclusion that Baca never performed the survey and that the statement had no effect on Plaintiff's employment status.
An incident that did affect Plaintiff's employment status was the "coaching" and write up for Plaintiff's improper use of company telephones. However, there is no evidence that Baca imposed such discipline as a result of the tap/slap incident. Baca engaged in the audit of the telephone records only after Defendant's home office engaged in a similar audit and discovered improper use by employees in the corporate office. It was reasonable for Baca to initiate a similar audit and there was no evidence that Baca knew such audit would reveal that Plaintiff was using the store phones improperly. The fact that Baca disciplined both Plaintiff and Finley again suggests that Plaintiff was not singled out. And while Plaintiff complains that she was the only one given a "decision day", which she never complied with, Plaintiff failed to present evidence that her discipline differed from that assessed against Finley in any way.
Finally, it is clear that Baca was not involved in the decision to ask Plaintiff to submit to a drug and alcohol test or to terminate Plaintiff when she refused to take such test. Baca's participation in the termination event was to field telephone calls from Price and Alexander and to contact Evans to make sure that the appropriate procedures were being followed. The determination that Alexander had sufficient evidence to require Plaintiff to submit to a drug test was made by a representative from the corporate office. There is no evidence that the corporate representative was aware of the tap/slap incident or that such incident played any part in the determination that Defendant had reasonable suspicion of Plaintiff's drug use. The decision to terminate Plaintiff once she refused to submit to the drug test was mandatory. Even if Alexander or Brethower had some discretion in terminating Plaintiff, there is no evidence that either individual had any knowledge of the tap/slap incident.
The court agrees that Plaintiff has failed to establish that her protesting the tap/slap was a substantial factor in her termination. Summary judgment is appropriate on Plaintiff's claim for wrongful discharge.
Second Claim for Relief — Battery
Under Oregon law, a battery is defined as a voluntary act that causes intentionally harmful or offensive contact with another. Cook v. Kinzua Pine Mills Co., 207 Or. 34, 48-49, 293 P.2d 717 (1956). It is not necessary that the contact cause actual physical harm provided the physical contact is offensive or insulting. Bakker v. Baza'r, Inc., 275 Or. 245, 249, 551 P.2d 1269 (1976).
There is a genuine issue of material fact with regard to the circumstances surrounding the tap/slap incident. Plaintiff states that Baca forcefully slapped her across the chest with his note pad. Baca testified that he merely tapped Plaintiff gently on the shoulder with his note pad. Both parties have additional testimony which supports their version of events. While Baca testified that he only intended to wake Plaintiff up with the tap, the evidence presented by Plaintiff puts Baca's intent at issue. The intent of a party in engaging in an act is generally inferred from the circumstances surrounding the act. Where those circumstances are in dispute, the intent of the acting party are also in dispute. Defendants are not entitled to summary judgment on Plaintiff's claim for battery.
CONCLUSION
Defendants motion (#14) for summary judgment should be GRANTED with regard to Plaintiff's First, Third, Fourth and Fifth Claims for Relief and should be DENIED with regard to Plaintiff's Second Claim for Relief for Battery.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due August 3, 2001. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than August 17, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.