Opinion
CV 03-023-BR.
April 6, 2004
RALPH E. WISER Lake Oswego, OR, Attorneys for Plaintiff.
CRAIG A. CRISPIN Crispin Employment Lawyers, Portland, OR, Attorneys for Plaintiff.
THOMAS E. McDERMOTT EDWARD T. TYLICKI, Portland, OR, Attorneys for Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant May Trucking Company's Motion for Partial Summary Judgment (#28).
Plaintiff Mike Marshall brought this action against May Trucking Company, his former employer. Plaintiff alleges Defendant unlawfully discharged Plaintiff because he filed a claim with the Oregon Bureau of Labor and Industries (BOLI) for statutory overtime wages and cooperated with an investigation of terrorist activities.
In Plaintiff's Second Amended Complaint, he alleges the following claims: 1) discharge in violation of Or. Rev. Stat. § 659A.230 (discrimination for initiating or aiding in criminal or civil proceedings), 2) wrongful discharge in violation of public policy for cooperating with investigation of terrorist activities, 3) discharge in violation of Or. Rev. Stat. § 652.355 (prohibition of discrimination because of wage claim), 4) wrongful discharge, 5) intentional infliction of emotional distress, 6) retaliation in violation of 29 U.S.C. § 215, and 7) failure to pay overtime wages in violation of 29 U.S.C. § 207 (maximum hours).
Defendant moves the Court for partial summary judgment on Plaintiff's Second, Fourth, and Fifth Claims. Plaintiff, however, has withdrawn his Fifth claim for intentional infliction of emotional distress.
For the reasons that follow, the Court GRANTS Defendant's Motion as to Plaintiff's Second and Fifth claims and DENIES Defendant's Motion as to Plaintiff's Fourth claim.
FACTS
Beginning in May 2000, Plaintiff was employed as a night dispatcher for Defendant. Plaintiff asserts he began raising questions with his supervisor about his entitlement to overtime compensation as soon as he was hired, and he approached BOLI in August 2001 "to ask them for their input on this issue." Decl. of Craig Crispin, Ex. B at 7.
On September 11, 2001, terrorists attacked the World Trade Center in New York City. Following the attack, law enforcement officials began investigations into potential terrorist attacks though a Joint Terrorism Task Force. Agents of the Federal Bureau of Investigation, acting as part of the Joint Terrorism Task Force, contacted Plaintiff by telephone and requested information from Defendant's files about drivers employed by Defendant. Plaintiff downloaded information from Defendant's computer regarding "Middle Eastern drivers" and faxed the documents to a United States Marshal. Aff. of Thomas E. McDermott, Ex. 101.
According to Plaintiff, he provided information nightly to state police officers regarding drivers who had "an accident or perhaps under the influence" even before he was contacted by federal agents. Decl. of Craig Crispin, Ex. B at 4.
On December 14, 2001, Plaintiff was called to work early. Plaintiff met with John Turner, his supervisor, and Mike Olson, Human Resources Director. Plaintiff was handed a letter of termination signed by Dave Jostad, Senior Vice President, which provided in part:
This letter will confirm our office conversation with you on this date.
On May 24, 2000, you signed an acknowledgment that you received and read a copy of the May Trucking Company Employee Handbook. A copy of your signed acknowledgment is attached. That acknowledgment also stated that you agreed to abide by all Company policies, and that you understood that the handbook governed your conduct.
The Employee Handbook sets forth May Trucking Company policies. The handbook explicitly prohibits the disclosure of information on employees. The section entitled Confidentiality," page 8, (attached) states, "You may not disclose confidential information about May Trucking Company, its customers or its employees to any person outside May Trucking Company without a business reason, regardless of where or how you acquired the information." It further states:
Any information you have regarding current and former May Trucking Company employees is not to be disclosed to anyone. Only Human Resources Department employees are authorized to respond to employment and credit inquiries. All such inquiries are to be referred to the Human Resources Department for a response. Legal requests for information, such as subpoenas, are to be referred to the Legal Department for response. May Trucking Company will respond to employment and credit inquiries on current and former employees according to Human Resource Department and Legal Department guidelines.
* * *
Approximately seven to ten days ago, you answered a phone call from U.S. Marshal Shaun Means. He requested personal, confidential information on , one of May Trucking Company's drivers, as part of a Joint Terrorism Task Force investigation. Specifically, he asked for Mr. 's commercial driver's license number, his home address, and his present location.
Instead of referring that request to the appropriate department as required by Company policy, you took it upon yourself to research and download highly confidential business and personal information from the Company computer system, and to disburse that information (without authorization) to a third party.
* * *
At the same time, you elected to release similar unsolicited confidential and personal information on twenty-six other drivers with Middle-Eastern sounding names, all as selected by you. This was completed without our knowledge or consent.
* * *
When confronted, you acknowledged having completed these unauthorized actions. In total, you disclosed forty-eight pages of confidential information without authorization.
May Trucking Company policy explicitly required you to forward the request for information on Mr. to the Legal Department, or the Human Resources Department. Had you followed established procedures and done this, you would have discovered that senior management was already working directly with federal authorities.
Your failure to forward the specific request for information, constitutes an egregious violation of Company policy. Your disclosure of confidential information on twenty-seven drivers violated Company policy prohibiting such disclosures. Your use of Company equipment to research, download, print, and fax information also constitutes misuse of Company property. We regard your violations of Company confidentiality policies, based solely on the race, color, religion, or national origin of these twenty-six people, as a particularly malicious form of harassment.
Please accept this letter as formal notice that your employment with May Trucking Company is being terminated immediately for the reasons specified above. Enclosed is our check number 407397 representing payment in full of all earned wages yet unpaid. . . .
Aff. of Thomas E. McDermott, Ex. 102 at 1-3.
Plaintiff asked whether Defendant would delay his termination due to the upcoming Christmas holiday. Defendant denied Plaintiff's request, and Plaintiff left the premises.
STANDARDS
Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e).
An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Guidroz-Brault v. Missouri Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir. 2001) (internal quotation marks omitted). All reasonable inferences from the facts in the record must be drawn in favor of the nonmoving party. Hensley v. Northwest Permanente P.C. Ret. Plan Trust, 258 F.3d 986, 999 (9th Cir. 2001).
The substantive law governing a claim or a defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Arpin, 261 F.3d at 919.
COMMON LAW WRONGFUL DISCHARGE
Plaintiff asserts two claims for wrongful discharge against Defendant.
Under Oregon law, an employer may discharge an employee at any time for any reason unless doing so violates a contractual, statutory, or constitutional requirement. Patton v. J.C. Penney Co., 301 Or. 117, 120, 719 P.2d 854 (1986). The tort of wrongful discharge is a narrow exception to this general rule. See Sheets v. Knight, 308 Or. 220, 230-31, 779 P.2d 1000 (1989). The tort of wrongful discharge was not intended to be a tort of general application but rather an interstitial tort to provide a remedy when the conduct in question was unacceptable and no other remedy was available. Draper v. Astoria Sch. Dist. No. 1C, 995 F. Supp. 1122, 1128 (D. Or. 1998) (citing Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 351-52, 563 P.2d 1205 (1977)).
Plaintiff's Second Claim
In his Second Claim, Plaintiff alleges he was wrongfully discharged in substantial part for his cooperation with the investigation in which he was "acting in accordance with an important societal obligation and public policy in seeking to protect the United States and its citizens against potential violence, terrorist and/or criminal activities." Second Am. Compl. at 3 (attached as Ex. B to Notice of Removal of Action).
Defendant contends Plaintiff's Second Claim for wrongful discharge fails as a matter of law. Defendant asserts the generalized public policy of encouraging cooperation with a criminal investigation does not impose an affirmative duty on Plaintiff to disclose confidential business records in response to a telephone inquiry from a United States Marshal. Defendant argues Plaintiff does not identify any statute or constitutional provision directly connected to his public-policy claim. In any event, Defendant maintains it discharged Plaintiff for disclosing Defendant's confidential information.
According to Plaintiff, however, he has identified a public interest sufficiently significant to support a claim for common law wrongful discharge. Specifically, Plaintiff points to Or. Rev. Stat. § 659A.230, which identifies as an unlawful employment practice an employer's retaliation against an employee for cooperation with law enforcement. In addition, Plaintiff points to the important public policy of cooperation with law enforcement and to Article I, Section 15, Constitution of Oregon, which provides "Laws for the punishment of crime shall be founded on these principles: protection of society, personal responsibility, accountability for one's actions and reformation."
Oregon courts have recognized two circumstances that give rise to the common law tort of wrongful discharge: (1) discharge for exercising a job-related right of important public interest and (2) discharge for complying with a public duty. Examples of the first category include discharge for filing a worker's compensation claim, Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978), and resisting sexual harassment by a supervisor, Holien v. Sears, Roebuck Co., 298 Or. 76, 689 P.2d 1292 (1984). Examples of the second category include discharge for serving on jury duty, Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); for reporting patient abuse at a nursing home, McQuary v. Bel Air Convalescent Home, Inc., 69 Or. App. 107, 684 P.2d 21 (1984); and for refusing to sign a false report regarding a fellow employee's work-related conduct, Delaney v. Taco Time Int'l, Inc., 297 Or. 10, 681 P.2d 114 (1984). Plaintiff contends his claim falls under the second category because his cooperation with federal law enforcement agents constitutes a public duty supported by an important public policy.
To determine whether there is a public duty that has been frustrated by Defendant's alleged conduct, the task of the court is to "find a public policy, not to create one." Dunwoody v. Handskill Corp., 185 Or. App. 605, 616, 60 P.3d 1135 (2003) (citing Babick v. Oregon Arena Corp., 333 Or. 401, 409, 40 P.3d 1059 (2002)). The court looks for evidence of such a duty in constitutional and statutory provisions as well as in the case law of this and other jurisdictions. Dunwoody, 185 Or. App. at 605.
In Babick, the defendant discharged an entire group of security guards after some of them arrested concert patrons who were "engaging in assaultive behavior and illegal drug and alcohol possession." 160 Or. App. 140, 980 P.2d 1147 (1999). The plaintiffs brought a wrongful discharge action in which they alleged their employer fired all of the security officers in retaliation for the lawful enforcement acts of certain security officers at the concert. The plaintiffs alleged wrongful discharge on the theory that they had been discharged for fulfilling an important societal duty; i.e., arresting lawbreakers. Plaintiffs did not persuade the trial court, which granted the defendant's motion to dismiss the wrongful discharge claim.
Although the Oregon Court of Appeals reversed the trial court's decision, the Oregon Supreme Court ultimately agreed with the trial court. The Oregon Supreme Court found Oregon Revised Statute chapters 131 to 170, which reflect a public policy against crime and in favor of community safety, were "far too general to support plaintiffs' `public duty' theory." 333 Or. at 409. The Oregon Supreme Court examined each of the statutory provisions relied on by the Oregon Court of Appeals and concluded: "[W]e find no support in the statutes that have been brought to our attention (and upon which the Court of Appeals relied) for a conclusion that some substantial public duty requires the kinds of acts that allegedly triggered plaintiffs' discharge." Id. at 410. See generally Dunwoody, 185 Or. App. 605, 60 P.3d 1135 (2003) (an employee's compliance with a subpoena in a criminal case is a public duty that will support a claim for wrongful discharge).
The Oregon Court of Appeals accepted the argument of the plaintiffs who participated in the arrests and found the public-duty exception to the at-will rule governed because the plaintiffs were discharged for making lawful arrests. 160 Or. App. at 149. The court found evidence that Oregonians value a safe and orderly community and share a common concern with reliable and effective law enforcement by citizen officers in "ORS chapters 131 to 170 (the Oregon Penal Code); ORS 181.870, et seq. (regulating licensing and training of private security personnel); ORS 133.220(3) (permitting private citizens to make arrests); and ORS 133.225(2) (permitting persons to use physical force in making an arrest)." 333 Or. at 408.
Considering the facts in this case in the light most favorable to Plaintiff, the Court notes federal agents contacted Plaintiff and advised him that they needed information in connection with an investigation of possible or potential terrorist and/or criminal activity involving Defendant's truck drivers. Plaintiff cooperated with the investigation by providing confidential business information without complying with company policy. Defendant then discharged Plaintiff for disclosing confidential information without forwarding the request for information to the proper personnel as required by company policy.
Plaintiff does not point to any constitutional or statutory provision that created a public duty requiring him to provide confidential information without complying with company policy or that obligated him to act against company policy. The important public policy of encouraging cooperation with criminal investigations does not impose an affirmative duty on Plaintiff to disclose confidential business records without complying with company policy.
The Court, therefore, holds Defendant is entitled to summary judgment on Plaintiff's Second Claim.
Fourth Claim
In his fourth claim, Plaintiff alleges he was wrongfully discharged because he filed a claim for statutory overtime wages and/or in substantial part because he cooperated with the investigation of terrorist activities.
Defendant contends it is entitled to summary judgment on Plaintiff's claim that he was wrongfully discharged for filing a claim for statutory overtime wages because Plaintiff has an adequate statutory remedy pursuant to Or. Rev. Stat. § 652.355. Defendant relies on Carlson v. Crater Lake Lumber Co., 103 Or. App. 190, 796 P.2d 1216 (1990), in which the Oregon Court of Appeals held Or. Rev. Stat. § 652.355 provides an adequate statutory remedy for a claim of wrongful discharge in retaliation for filing a wage claim and precludes an additional remedy of common law wrongful discharge.
Plaintiff contends Or. Rev. Stat. § 652.380(1) expressly allows other remedies for wrongful discharge in retaliation for filing a wage claim in addition to the statutory remedy in Or. Rev. Stat. § 652.355. In any event, Plaintiff also asserts Or. Rev. Stat. § 652.355 does not provide an adequate statutory remedy because it does not provide the full range of remedies available under the common law, including punitive damages. Plaintiff argues, therefore, this Court should follow the decision in Nash v. Resources, Inc., No. CV 96-16543-RE, 1997 WL 594472 (D. Or. Apr. 2, 1997) in which the federal district court declined to follow the Oregon Court of Appeals in Carlson and concluded the Oregon legislature "expressed its intention" in Or. Rev. Stat. § 652.380(1) "that Or. Rev. Stat. § 652.355 be cumulative to other remedies" such as common law wrongful discharge. Nash, 1997 WL 594472, at *2.
The Court notes the statute also has no provision for noneconomic damages such as pain and suffering arising from mental distress.
In Draper v. Astoria Sch. Dist. No. 1C, the court reviewed the development of the tort of wrongful discharge in the decisions of the State of Oregon appellate courts. 995 F. Supp. at 1129-31. The court noted "the Oregon courts have continued to chart an erratic course, sometimes focusing on the adequacy of the remedy, and other times focusing on the legislative intent to abrogate all other remedies." Id. at 1129. The court concluded:
Given the stated purpose of this tort in Oregon, and given that it was created to establish only a narrow exception to the employment-at-will doctrine, this court concludes that a claim for common law wrongful discharge is not available in Oregon if (1) an existing remedy adequately protects the public interest in question, or (2) the legislature has intentionally abrogated the common law remedies by establishing an exclusive remedy (regardless of whether the courts perceive that remedy to be adequate). This court will follow that view until the Oregon Supreme Court clarifies the governing standards.Id. at 1130-31.
In Draper, the initial inquiry set forth by the court is whether the statutory remedy in Or. Rev. Stat. § 652.355 adequately protects the public interest in question. Plaintiff contends this statutory remedy is not adequate for purposes of his Fourth Claim because the statute does not provide the full range of damages available under common law wrongful discharge; i.e., the statute does not authorize punitive damages. As the Court has noted, the statute also has no provision for noneconomic compensatory damages.
According to Defendant, the legislative choice to include the right to attorneys' fees, which is not provided under the common law remedy, and to omit the right to punitive damages, which is provided under the common law remedy, does not support a conclusion that the statutory remedy is inadequate to protect the societal interests at stake.
The tort of wrongful discharge is not available in Oregon if an existing remedy adequately protects the public interest in question. Walsh, 278 Or. at 351-52. In Holien v. Sears, Roebuck Co., 298 Or. 76, 97 (1984), the Oregon Supreme Court held the plaintiff was entitled to maintain an action for common law wrongful discharge in addition to her statutory remedies. The court concluded former Or. Rev. Stat. § 659.121 and Title VII did not provide an adequate remedy for retaliatory discharge for resistance to sexual harassment. The court explained:
As to the issue of adequacy of state and federal remedies, ORS 659.121 and Title VII fail to capture the personal nature of the injury done to a wrongfully discharged employee as an individual and the remedies provided by statute fail to appreciate the relevant dimensions of the problem. Reinstatement, back pay and injunctions vindicate the rights of the victimized group without compensating the plaintiff for such personal injuries as anguish, physical symptoms of stress and sense of degradation and the cost of psychiatric care.298 Or. at 97.
Or. Rev. Stat. § 652.355 provides in part: "No employer shall discharge . . . any employee because . . . [t]he employee has made a wage claim. . . ." The statute provides for remedies of "actual damages or $200, whichever is greater" and provides the court may award reasonable attorneys' fees, costs, and disbursements to the prevailing party. Or. Rev. Stat. § 652.355(2). Or. Rev. Stat. § 652.355 also provides a remedy for an employee who contends he was discharged for filing a wage claim. The elements of this statutory claim are identical to the elements of a common law wrongful discharge claim, but the statutory remedy is limited to out-of-pocket damages and, by omitting any provision for noneconomic compensatory damages, does not take into account the personal impact of the loss of a job.
The focus of the court's analysis in Holien was the personal nature of the injury ( i.e., the financial and emotional consequences of the loss of employment) rather than the personal nature of the employer's conduct ( i.e., sexual harassment). An employee fired for resisting violations of the wage laws may suffer anguish, loss of self-esteem, and physical symptoms of stress no less serious than an employee fired for resisting the sexual advances of a fellow employee. This Court concludes Or. Rev. Stat. § 652.355 does not provide an adequate remedy to protect the public interest by adequately compensating an employee who is discharged by an employer in retaliation for filing a wage claim.
The second inquiry set forth by the Draper court is whether "the legislature has intentionally abrogated the common law remedies by establishing an exclusive remedy (regardless of whether the courts perceive that remedy to be adequate)." 995 F. Supp. at 1131. The district court in Nash found the legislature explicitly stated the opposite intention in Or. Rev. Stat. § 652.380(1); i.e., to establish a nonexclusive remedy in Or. Rev. Stat. § 652.355 rather than to abrogate any common law remedy. 1997 WL 594472, at *2. The statutory language of Or. Rev. Stat. § 652.380(1) expressly contemplates other statutory remedies may not be adequate in all circumstances and, when appropriate, other remedies should be available to supplement the statutory remedy. The Court does not find any language in Or. Rev. Stat. § 652.355(2) that indicates the legislature has intentionally abrogated the common law remedies by establishing an exclusive statutory remedy.
On this record, therefore, the Court holds Plaintiff is entitled to maintain a common law claim for wrongful discharge in addition to a claim for statutory overtime wages. Accordingly, the Court denies Defendant's motion for summary judgment on Plaintiff's Fourth Claim.
CONCLUSION
For these reasons, Defendants' Motion for Summary Judgment (#28) is GRANTED as to Plaintiff's Second and Fifth claims and DENIED as to Plaintiff's Fourth Claim.
IT IS SO ORDERED.