Opinion
Civil No. 00-0100-AS
April 24, 2001
FINDINGS AND RECOMMENDATION
Defendant, Safeway Inc. ("Defendant"), moves for summary judgment on plaintiff Kathleen Klar's ("Plaintiff") sole claim for relief for wrongful discharge. Defendant contends that Plaintiff is unable to establish that she was constructively discharged or she engaged in a protected activity and that her wrongful discharge claim is preempted by the terms of the parties' collective bargaining agreement.
BACKGROUND
Under the law of this district, the court is required to view the facts in the light most favorable to the nonmoving party when considering a motion for summary judgment. The summary set forth describes the evidence in such a manner. The areas where Defendant's evidence differs on irrelevant matters has not been noted. The areas where Defendant has presented conflicting evidence on material issues are explained in a footnote.
Defendant initially hired Plaintiff in December 1996. Plaintiff voluntarily resigned in May 1999 but was rehired in July 1999 as a part-time checker. Plaintiff returned to work for Defendant with the expectation that she would qualify for and be accepted in the management training program.
Plaintiff had over 20 years experience working in package stores that sell alcoholic beverages. In July or early August, Plaintiff became suspicious when three Asian males attempted to purchase alcohol. Plaintiff asked for identification and, initially, the customers indicated that they did not have any. Plaintiff then called her supervisor, Maria Owens, for assistance. By the time Owens arrived, one individual provided identification showing he was over twenty-one years old. Owens told Plaintiff to complete the sale. Plaintiff was concerned that the two individuals without identification would ultimately consume some of the alcohol and advised Owens that the sale was illegal and in violation of the guidelines taught by the Oregon Liquor Control Commission. Owens advised Plaintiff that she felt that, under the circumstances, the sale of the alcohol to the individual with identification was appropriate and directed Plaintiff to complete the sale. Plaintiff continued to argue with Owens in front of the customers but eventually completed the sale, even though she felt it was illegal. Owens then asked Plaintiff to her office where she advised Plaintiff that it was inappropriate to question her supervisors in front of the customers. Thereafter, Plaintiff continued to work with Owens without any problems.
On October 7, 1999, Plaintiff was given her performance review completed by Owens. Owens rated Plaintiff "exceptional" in personal contact, product knowledge and quality of work; "good" in helpfulness, problem solving, teamwork, dependability, productivity and adaptability; and "needs improvement" in communication and absenteeism.
The comments under "problem solving" read:
Kathleen seeks the best possible solution considers co. policy what she's been taught. Remember to also support your managers when an exception has been made discuss event away from the customer. Do not question mgmt in front of customer.
The comments under "communication" stated:
Need to be professional comm. with other employees in a positive way. Could be perceived as not wanting to be a team player. Be sensitive how you act with others.
Overall, Plaintiff received a good rating. Her strengths were identified as "superior service, overall standards, adaptability" and"communication" was listed as the sole area for improvement. Under "Goals/Objectives," Owens wrote:
Keep up the outstanding service performance. Help the store achieve gain sharing in qtr 4. Nothing less than an 8! Maintain your excellent qualities and challenge yourself on communicating with your coworkers.
On October 8, 1999, the morning after she received her review, Plaintiff handed her resignation to Arthur Galego, the store manager. In her resignation letter, Plaintiff states "I feel Maria acted in a vindictive and mean spirited man[ner] because of one incident." Plaintiff was upset that she received one "4" rating on her review and stated that after receiving the review "circumstances became intolerable." The final sentence of the letter advised that "[t]his is to be considered one weeks notice for my continued employment."
Galego briefly questioned Plaintiff about the alcohol incident. Owens, who was present at the meeting, apologized to Plaintiff and admitted that she should have handled the situation differently. Galego told Plaintiff that he wanted her to continue working at the store. He encouraged her to continue to try for the management program, noting that her test scores were extremely high. Plaintiff said she appreciated his comments and that she would still have to consider the management program and would get back to him. She also continued to express concern that she had done something illegal. Galego agreed to investigate the alcohol incident some more and would call Plaintiff once he had obtained additional information. Galego retained the resignation later despite his encouragement to Plaintiff to rethink her resignation based on a representation from Plaintiff that she was "pretty definite in her decision."
Shortly after the meeting with Plaintiff, Galego was advised that Plaintiff had telephoned Mark DiGregorio, Galego's supervisor, and left him a message in which she reported the alcohol incident and felt that she was forced to break the law. She also advised DiGregorio that she was calling the Oregon Liquor Control Commission to inform them of the incident. Plaintiff contacted the Oregon Liquor Control Commission and posed a hypothetical similar to the alcohol incident to see if the sale was illegal. She did not identify Defendant as the store involved in the incident.
Galego stated that Plaintiff told him at the meeting that she had called the Oregon Liquor Control Commission to see if she was correct in her understanding of the law.
In the early evening of October 8, 1999, Galego telephoned Plaintiff at home. He told Plaintiff that her telephone calls to DiGregorio and the Oregon Liquor Control Commission were inappropriate, that things had "gone way out of control," and that Plaintiff was no longer eligible for a management position.
Galego stated that he did not remember making the phone call and that he did not tell Plaintiff that her phone calls to DiGregorio and the Oregon Liquor Control Commission affected her application for the management program in any way.
Plaintiff filed this action in state court on December 28, 1999. Defendant removed the action to this court on January 21, 2000.
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
Plaintiff's sole claim for relief is for wrongful discharge. To establish a prima facie case of wrongful discharge, plaintiff must establish that: (1) her resignation amounted to constructive discharge and (2) the discharge was wrongful. To meet the first element, plaintiff must 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 v. Staudenraus, 321 Or. 532, 557 (1995) (footnotes and citations omitted).
With regard to the second element, 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. Patton v. J.C. Penney Co., 301 Or. 117, 120 (1986). Two exceptions exist. The first is when an employee is discharged for fulfilling a societal obligation. Nees v. Hocks, 272 Or. 210 (1975) (employee discharged for serving on jury duty); Delaney v. Taco Time Int'l, 297 Or. 10, (1984) (discharged for refusing to sign a false and arguably tortuous statement). The second is when the plaintiff is discharged for pursuing private statutory rights related directly to the employee's role as an employee and of important public interest. Brown v. Transcon Lines, 284 Or. 597 (1978) (discharged for filing a workers compensation claim).
Plaintiff states in her deposition that after she received her review on October 7, 1999, her working conditions became so intolerable that she was forced to resign. A single incident in which an employee receives a review which is not up to her expectations does not create an intolerable working environment. While Plaintiff may have felt that the review was not warranted, a reasonable employee would not have resigned her position based solely on the review. Plaintiff was rated "Good" overall and was complimented on her performance throughout the review. The only negative comments related to the alcohol incident, which both Owens and Plaintiff felt strongly about. However, Plaintiff herself stated that she had put the incident behind her as had no other problems with Owens during the remainder of her employment with Defendants. The positive tenor of the review and the brief period of time between Plaintiff's receiving her review and her decision to resign her position prevents the court from finding that intolerable working conditions existed prior to Plaintiff's resignation.
Also, Plaintiff is unable to establish that Defendant intended to force Plaintiff out of her employment. To the contrary, Plaintiff stated that Galego explained that the performance review was not negative and encouraged Plaintiff to reconsider her resignation and remain in Defendant's employ. It is evident that Defendant valued Plaintiff as an employee and wanted her to remain an employee.
Plaintiff argues that while the performance review was the catalyst for her letter of resignation, she didn't really decide to resign until after Galego called her to let her know that he was upset that she had contacted his supervisor and the Oregon Liquor Control Commission to report the alcohol incident and that she would no longer be considered for the management program. The court finds that this conversation occurred after Plaintiff had resigned and, therefore, cannot support Plaintiff's claim for wrongful discharge.
Plaintiff offered her resignation and, despite encouragement from Galego, did not rescind her resignation before she left Galego's office on the morning of October 8, 1999. Plaintiff unequivocally offered her resignation and Defendant accepted it. Plaintiff's feeling that she had the option to withdraw her resignation in the future does not alter the fact that her resignation became effective the morning of October 8, 1999, subject only to her one-week notice.
Even assuming that Plaintiff's resignation was not effective until after Galego informed Plaintiff that she was no longer a viable candidate for the management program, Plaintiff has failed to establish the intense, ongoing activities necessary to prove intolerable working conditions. Plaintiff received a favorable review that she disagreed with. The next morning, she contacted DiGregorio to inform him of the alcohol sale and the Oregon Liquor Control Commission to see if she was correct in her assessment that the alcohol sale was illegal. After that, Galego indicated to her that the management program was no longer an option. However, there is no evidence that Galego ever told Plaintiff that Defendant was no longer interested in her as an employee or that she wouldn't be able to get her job back if she reconsidered her resignation. Plaintiff quit because she was only working for Defendant to qualify for the managment program. When that program was not available, she was no longer interested in working for Defendant.
Whether a constructive discharge exists must be examined under the totality of the circumstances and the test applied is an objective one, that is whether a reasonable person in plaintiff's position would have felt forced to resign. Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990). For the most part, the issue of whether working conditions have risen to an "intolerable level" is a factual question for the jury. Id. However, a single "isolated" incident may fail as a matter of law to support a claim of constructive discharge. Id. Generally, courts look for evidence of either "aggravating circumstances" or a "continuous pattern of discriminatory treatment," to support a constructive discharge claim. Id.
The performance review and the elimination of the management training position occurred within a two day period. While Plaintiff may well have been justifiably upset by both, the two incidents do not establish either aggravating circumstances or a continuous pattern of discriminatory treatment. Additionally, there is no evidence Defendant did not consider Plaintiff a valuable employee and did not still want Plaintiff to reconsider her resignation and return to her part-time checker position.
Plaintiff has failed to present evidence to support her claim that she was subjected to a intolerable work environment and that Defendant knowingly created the environment in the intent of forcing Plaintiff to resign. Plaintiff has failed to establish her claim for wrongful discharge and Defendant is entitled to summary judgment.
CONCLUSION
Defendant's motion (#24) for summary judgment should be GRANTED.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due May 9, 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 May 23, 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.