Pearson v. U.S. Bank Corp.

Full title: BRENT PEARSON, Plaintiff, v. U.S. BANK CORPORATION, Defendant

Court: United States District Court, D. Oregon

Date published: Aug 18, 2004

Civil No. 04-3026-CO (D. Or. Aug. 18, 2004)

Opinion

Civil No. 04-3026-CO.

August 18, 2004

FINDINGS AND RECOMMENDATION

JOHN COONEY, Magistrate Judge

In plaintiff's second amended complaint, plaintiff alleges claims for intentional infliction of mental distress and ERISA violation and damages. Plaintiff seeks noneconomic and economic damages, and costs and attorney's fees. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). Before the court is defendant's motion to dismiss brought pursuant to Federal Rules of Civil Procedure 12(b)(6) (#6),¹ which plaintiff opposes.

1 In response to defendant's motion to dismiss, plaintiff filed his second amended complaint. Defendant has informed the Court that its motion is moot as to the claim for breach of contract and the wage claim, but that its motion should be directed to plaintiff's claim for intentional infliction of emotional distress included in the second amended complaint.

I. FACTS

The following paragraphs paraphrase pertinent allegations contained in plaintiff's second amended complaint:

At all material times, plaintiff was an employee of defendant from May 30, 1997, through December 2, 2002, when he was terminated "for cause."

Beginning in 2001, plaintiff was branch manager for defendant. In 2001, defendant undertook a promotional campaign to acquire new clients. Plaintiff's goals for the campaign were set exceedingly high so that plaintiff and his branch could not realistically achieve those goals. When plaintiff did not meet the goals of the campaign, he was presented with a "toilet" in front of other managers and co-workers in a spring meeting.

Beginning in 2001, and continuing as a continuous course of conduct until his termination, plaintiff was subjected to negative reviews and criticism that were not justified and not true, including: accusations that plaintiff was dishonest regarding a subordinate who took home bank files and regarding dealings with dissatisfied bank clients, when defendant knew those accusations were not true or well founded; accusations that plaintiff was failing to file reports in a timely and satisfactory manner when defendant knew those accusations were not true or well founded and not standard operating policy; and accusations that plaintiff was not performing his job position in a satisfactory manner when defendant knew those accusations were not true or well founded and not standard operating policy.

"The accusations and actions were outrageous, intentional and were calculated to inflict emotional distress on Plaintiff. Such conduct exceeds the bounds of social toleration." (Second Am. Compl. ¶ 6(e) at 3.) Defendant's conduct and accusations were intentional or made with reckless indifference to the truth of the matter.

II. LEGAL STANDARD

Federal courts require notice pleading. A pleading must give fair notice and state the elements of the claim plainly and succinctly, showing the party is entitled to relief. Lynn v. Sheet Metal Workers' Int'l Ass'n, 804 F.2d 1472, 1478 (9th Cir. 1986), dismissal denied, 487 U.S. 1215 (1988), aff'd, 488 U.S. 347 (1989). The court accepts plaintiff's material allegations in the complaint as true and construes them in the light most favorable to plaintiff. Abramson v. Brownstein, 897 F.2d 389, 391 (9^th Cir. 1990). Dismissal under Federal Rules of Civil Procedure 12(b)(6) is proper where the claim lacks either a cognizable legal theory or lacks sufficient facts to state a legally cognizable claim. SmileCare Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 782 (9^th Cir. 1996); Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9^th Cir. 1988). A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of a claim.Abramson, 897 F.2d at 391.

Federal Rules of Civil Procedure Rule 8(a) requires that a complaint set forth a short and plain statement of the grounds for the court's jurisdiction, a short and plain statement of the claim, and a demand for judgment for the relief plaintiff seeks. Rule 8(e) provides in part that each allegation in a pleading "shall be simple, concise, and direct." Rule 8 does not require extensive or technically precise pleadings, but does require the presentation of factual allegations with sufficient clarity and certainty to enable defendant to determine the basis of plaintiff's claim and to formulate a responsive pleading.Edwards v. N. Am. Rockwell Corp., 291 F. Supp. 199, 211 (C.D. Cal. 1968). The purpose of the rule is to give defendant fair notice of what plaintiff's claim is and the grounds upon which it rests. Velasquez v. Senko, 643 F. Supp. 1172 (N.D. Cal. 1986), appeal dismissed, 813 F.2d 1509 (9th Cir. 1987). If allegations are vague, indefinite, and conclusory, defendant cannot determine the basis of the claim, and has not received fair notice of the grounds upon which the claim rests. Id.

III. DISCUSSION

To recover on a claim for intentional infliction of emotional distress, plaintiff must plead and prove facts to show that: (1) defendant intended to inflict severe emotional distress on plaintiff, or knew that such distress was certain, or substantially certain, to result from the conduct; (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 conduct.McGanty v. Staudenraus, 321 Or. 532, 543, 544-51 (1995).

Defendant contends that plaintiff does not allege that defendant's conduct rises to the level of conduct that is beyond the bounds of social toleration. Plaintiff responds that the cases cited by defendant may be important at trial, but are not relevant at this stage of the proceedings. Plaintiff contends that he is required only to allege enough details to provide defendant with a fair idea of the basis of the complaint and the legal grounds claimed for recovery. He asserts that he has met all pleading requirements for federal code pleading.

Whether the conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct is a question of law for the court. Harris v. Pameco Co., 170 Or. App. 164, 171 (2000). "In considering whether the defendant's acts were an extraordinary transgression, the court will examine the purpose of the conduct and the means used to achieve the result. Not only must the conduct be deliberate, the means of inflicting the harm must be extraordinary." Shay v. Paulson, 131 Or. App. 270, 273 (1994) (citations omitted). "The conduct must be 'so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Montgomery v. J.R. Simplot Co., 916 F. Supp. 1033, 1041 (D. Or. 1994), aff'd, 76 F.3d 387 (9^th Cir. 1996) (quoting Christofferson v. Church of Scientology, 57 Or. App. 203, 211 (1982)). A plaintiff cannot recover for "the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life. The conduct must be 'so offensive as to be outrageous,' 'outrageous in the extreme.'" Shay, 131 Or. App. at 273 (citation omitted).

Accusations of theft or coercive and intimidating interviews of employees to compel them to admit wrongdoing, with little or no evidence of wrongdoing or knowledge of no wrongdoing, and encouragement or threats of arrest or prosecution, has been found to transgress the bounds of socially tolerable conduct. Hall v. May Dept. Stores Co., 292 Or. 131, 141-42 (1981), abrogated on another ground by McGanty v. Staudenraus, 321 Or. 532 (1995);Woods v. First Am. Title Ins. Co. of Or., Inc., 102 Or. App. 343, 348, on reconsideration, 103 Or. App. 100 (1990) (false accusations of criminal or fraudulent conduct in front of third party and subjection to unwarranted criminal investigation);Buckel v. Nunn, 133 Or. App. 399, 404-05 (1995); Smithson v. Nordstrom, Inc., 63 Or. App. 423, 425-27 (1983). However, calling employees liars and accusing them of sabotaging the office accompanied by firing, and threatening physical violence against a pregnant employee is "insulting, rude, boorish, tyrannical, churlish, and mean," but does not exceed the bounds of socially tolerable conduct. Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or. App. 234, 239 (1992);see Travis v. Knappenberger, No. CIV. 00-393-HU, 2000 WL 1853084 (D. Or. Dec. 13, 2000) (allegations of imposition of extremely burdensome volumes of work; repeated and severe unfounded accusations of impropriety, incompetence, or misconduct; imposition of heightened level of inspection and supervision over work performance and work product; and setting of unreasonable and impossible deadlines for production of work found insufficient to state claim for intentional infliction of emotional distress). Insults, abuse, indignities, threats, ill temper, and other offensive words and unbecoming behavior resulting from day-to-day life ordinarily does not result in liability for damages. Hall, 292 Or. at 135; Pakos v. Clark, 253 Or. 113, 123-32 (1969) (and authorities cited); Brewer v. Erwin, 287 Or. 435, 457 (1979), abrogated on another ground by McGanty v. Staudenraus, 321 Or. 532 (1995).

Here, the court finds that plaintiff's allegations do not rise to the requisite level of extreme conduct which the courts have found exceeds the bounds of social toleration. Accordingly, plaintiff's claim for intentional infliction of emotional distress should be dismissed.

Plaintiff requests leave to amend to allege further facts if the court grants defendant's motion to dismiss. Plaintiff has had three opportunities to plead sufficient facts to state a claim for relief. Although plaintiff requests leave to amend, he does not offer any additional facts in his response which he contends would be sufficient to state a claim. For these reasons, plaintiff's request for leave to amend should be denied.

IV. RECOMMENDATION

Based on the foregoing, it is recommended that defendant's motion to dismiss (#6) plaintiff's claim for intentional infliction of emotional distress alleged in the second amended complaint be granted, and plaintiff's request for leave to amend be denied.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.