Opinion
3:19-cv-00850-AC
12-07-2021
RAYMOND MAXWELL UPCHURCH, Plaintiff, v. MULTNOMAH UNIVERSITY and JAKE COBURN, an individual, Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, United States Magistrate Judge.
Introduction
Plaintiff Raymond Maxwell Upchurch (“Upchurch”) brings this lawsuit against defendants Multnomah University (“MU”) and Jake Coburn (“Coburn”). Upchurch alleges MU violated his rights under the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and that Coburn injured him through the intentional infliction of emotional distress. Coburn now moves for partial dismissal of Upchurch's Fourth Amended Complaint (“Complaint”) for failure to state a claim upon which relief can be granted. The court has subject matter jurisdiction under 28 U.S.C. §§ 1332(a) and 1367. Venue is proper under 28 U.S.C. § 1391(b)(2). For the reasons discussed below, Coburn's motion should be DENIED.
Factual Background
Upchurch is a resident of Sacramento, California. (Pl.'s Fourth Am. Compl., ECF No. 69 ¶ 4) (“Compl.” or “Complaint”.) MU is a domestic non-profit corporation, formed in the State of Oregon. (Id ¶ 5.) Coburn is an employee of MU. (Id. ¶ 6.) Upchurch was enrolled as a student at MU from August, 2016, through February, 2019. (Id. ¶¶ 7, 66.) Upchurch reported to Coburn as an employee of MU's athletic department for a period of time beginning prior to December 18, 2018. (Id. ¶¶ 40, 50.)
Upchurch, who is Black, alleges that beginning in June, 2017, he suffered from a pattern of race-based discrimination and abuse on the part of MU, and that MU's actions caused him significant emotional and psychological injury. (Id. ¶¶ 11, 24, 82, 85.) Upchurch alleges racist comments and retributive behavior by his basketball coach, institutional discrimination and “tokenizing” in connection with Upchurch's work with MU's Student Government Association, and race-based, selective enforcement of MU's student conduct code. (Id. ¶¶ 74-82.)
In December, 2018, MU disciplined Upchurch for alcohol possession under its student conduct code. (Id. ¶¶ 25-31.) MU imposed sanctions on Upchurch that included mandatory counseling. (Id. ¶ 37.) In his letter of finding, Upchurch's counselor found Upchurch suffered from major depressive disorder, “likely the result of an anxious attachment style.” (Id. ¶¶ 38.)
The court notes that the nature of “anxious attachment style” is not discussed in the pleadings or Upchurch alleges that after he moved in with him, Coburn “bombarded [him] and his friends with racist and sexist remarks.” (Id. ¶ 59.) As a result, on February 13, 2019, Upchurch telephoned his father “in a panic” and asked to withdraw from MU and return home. (Id. ¶ 66). Upchurch's counselor supported the request, stating that he “would need extensive therapy to in the DSM-V, but that it apparently concerns individuals that “are hypersensitive to rejection and show compulsive care- and attention-seeking behavior.” Nicolas Lorenzini & Peter Fonagy, Attachment and Personality Disorders: A Short Review, FOCUS, Spring 2013, at 155, 155.
As part of its sanctions against Upchurch, MU also required that Upchurch “select a school employee as a mentor.” (Id. ¶ 50.) Upchurch selected Coburn because he “knew and trusted [him] through working for him in MU's Athletic Department.” (Id.)
During the 2018-19 winter break, Upchurch's room was vandalized. (Id. ¶ 45.) Upchurch became “violently ill” with symptoms that included abdominal pain, vomiting, and loss of appetite and concentration. (Id. ¶ 47.) The illness caused Upchurch to “make multiple hospital visits for testing” and also caused him to miss classes. (Id.)
At the recommendation of his counselor, sometime on or about February 7, 2019, Upchurch's parents met with MU to request that Upchurch be permitted to reside off campus. (Id. ¶¶ 51-53.) According to Upchurch, MU allowed the move reluctantly and only after “acknowledg[ing] MU's institutional failures dealing with racial diversity, the ‘traumas' its policies and procedures visited upon [him], the ‘cowardice' that prevented many of them from better protecting Plaintiff and the ‘hurt' its processes visited upon [him].” (Id. ¶ 52-55.) Seeking a “safe haven to rest, heal and complete his education, ” Upchurch opted to stay with Coburn, his school-appointed mentor. (Id. ¶ 56.) Upchurch paid Coburn $600 in rent. (Id.) process and overcome his experiences at MU.” (Id. ¶¶ 68-69). Upchurch withdrew his enrollment at MU and returned to California. (Id. ¶ 70.)
Upchurch lists four specific incidents as examples of Coburn's conduct. Each of these occurred during the brief time Upchurch lived with Coburn, starting sometime on or after February 7, 2019 (the date Upchurch's parents met with MU about moving off campus), and ending sometime after February 13, 2019 (the date Upchurch telephoned his father asking to leave). (Id. ¶¶ 53, 66.) Those allegations are repeated verbatim below:
59. Defendant Coburn bombarded Plaintiff and his friends with racist and sexist remarks. For example, as soon as Plaintiff moved in, Defendant Coburn told Plaintiff that he often called his black Labrador “Nigger” when he gets drunk. Then Defendant Coburn asked Plaintiff whether that would offend him.
60. Although Plaintiff considered the first time Defendant Coburn made this statement as a joke, after moving in “it was clear to [Plaintiff] that it was no longer just a joke and that this was just a way that [Defendant Coburn] spoke.”
61. For example, Defendant Coburn remarked to Plaintiff's houseguest about “staying pure” by only being intimate with “white” partners.
62. For example, when Plaintiff was invited to share a cigar between Defendant Coburn and another individual, Defendant Coburn interjected and told Plaintiff to not “put his nigger lips on his cigar.”
63. For example, Defendant Coburn remarked to Plaintiff that it was okay for Plaintiff's girlfriend to spend time in the apartment as long as “she got to cook and clean like every other one.”(Id. ¶¶ 59-63.)
Upchurch alleges that each of the four incidents targeted him directly and on the basis of his race. (Id. ¶¶ 64, 83.) Upchurch further alleges that Coburn provided and allowed alcohol, drugs, and “opposite sex interactions, ” in contravention of MU policy. (Id. ¶ 65.) Upchurch claims that Coburn used “intimidation, control, substances, and the staff/student power differential” against Upchurch in order to “secure [his] silence.” (Id. ¶ 64.)
Upchurch alleges that Coburn's conduct resulted in emotional and psychological injury and subsequent harmful consequences. (Id. ¶ 114-119.) Upchurch claims that Coburn's actions caused him “symptoms of Other-Specified Trauma and Stressor Related Disorder with comorbid major Depressive Disorder.” (Id. ¶ 114) (internal quotations omitted). Upchurch also claims that Coburn's conduct caused him ongoing “humiliation, embarrassment, anxiety, depression, sleeplessness, loss of enjoyment of life, and mental anguish.” (Id. ¶ 116.) Finally, Upchurch asserts that Coburn's conduct forced his withdrawal from MU, resulting in further economic and psychological damages. (Id. ¶¶ 116-118.) Upchurch seeks economic and equitable relief, compensatory damages, punitive damages, attorneys' fees, and costs.
Procedural Background
Upchurch's Third Amended Complaint (“TAC”) alleged that Coburn engaged in racebased discrimination in renting real property in violation of OR. REV. STAT. § 659A.421(2)(c). Upchurch v. Multnomah Univ., No. 3:19-CV-00850-AC, 2021 WL 954847 (D. Or. Feb. 16, 2021), report and recommendation adopted, No. 3:19-CV-850-AC, 2021 WL 952277 (D. Or. Mar. 12, 2021). At the recommendation of this court, the district judge dismissed the TAC, as it related to Coburn, for failure to state a claim upon which relief can be granted but granted leave to amend. Id. In his Fourth Amended Complaint, the subject of the instant motion, Upchurch has replaced the housing discrimination claim with a claim for Intentional Infliction of Emotional Distress. (Compl. ¶ 109 et seq.) \ \ \ \ \
Legal Standard
A complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The complaint must contain sufficient factual allegations to show entitlement to relief, but a perfectly pleaded legal theory is not required. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (“Having informed [Defendant] of the factual basis for their complaint, [Plaintiffs were] required to do no more to stave off threshold dismissal for want of an adequate statement of their claim.”). The complaint must state a claim plausibly enough that “it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
A party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When considering a motion to dismiss, the court seeks to determine whether the claims are plausible on their face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). The court accepts all alleged facts as true and construes the pleadings in the light most favorable to the nonmoving party. Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019).
To survive a motion to dismiss, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The complaint need not contain “detailed factual allegations, ” but it must include more than unsupported accusations of injury or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; Starr, 652 F.3d at 1216 (“allegations in a complaint . . . may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”) The plausibility requirement does not require probability-a claim may proceed even if the plaintiff is unlikely to succeed on the merits. Twombly, 550 U.S. at 556. Mere possibility is not sufficient to state a claim, though; facts that are no more than simply consistent with liability do not form a claim that is plausible. Iqbal. 556 U.S. at 678.
Leave to amend should be given freely when justice so requires unless the court determines the pleading “[cannot] not possibly be cured by the allegation of other facts.” FED R. CIV. P. 15(a)(2); Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). However, the court “need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006).
Discussion
To state a claim for intentional infliction of emotional distress (“IIED”) in Oregon, a plaintiff must show that “(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.” Mullen v. Meredith Corp., 271 Or.App. 698, 713 (2015). Oregon's definition of the tort is in turn derived from the definition presented in RESTATEMENT (SECOND) OF TORTS § 46 (1965) (“Section 46”). McGanty v. Staudenraus, 321 Or. 532, 544 (1995); see also Pakos v. Clark, 253 Or. 113, 122 (1969). Oregon has not expressly adopted Section 46 with respect to IIED; however, Oregon courts often look to Section 46 and its comments for guidance when interpreting the tort. See e.g. Delaney v. Clifton, 180 Or.App. 119, 125 (2002) (applying Section 46 to torts directed at third parties), House v. Hicks, 218 Or.App. 348, 358 (2008) (drawing guidance from Section 46 comments d, g, and h in evaluating the viablity of an IIED claim), Babick v. Oregon Arena Corp., 333 Or. 401, 412 (2002) (reaffirming its adoption of comments a and b with respect to the intent element).
Upchurch alleges that Coburn acted intentionally and “knew with substantial certainty” that his conduct would cause Upchurch severe emotional distress. (Compl. ¶¶ 110-11.) Upchurch also alleges that Coburn's conduct caused symptoms of “Other-Specified Trauma and Stressor Related Disorder with comorbid Major Depressive Disorder, ” and that those symptoms continue to require medical treatment. These allegations satisfy the intent and causation elements, respectively, and Coburn does not challenge either of these allegations in his motion. The court finds the allegations plausible; allegations that significant mental health conditions resulted from a defendant's conduct and require medical care satisfy the first two elements of an IIED claim.
The third IIED element-whether the actions were extraordinarily outside the bounds of social acceptability-is often dispositive. House, 218 Or.App. at 358 (“Because proof of intent is often indirect and evidence of psychic harm is usually self-serving, proof of this tort largely turns on . . . whether a defendant's conduct is sufficiently outrageous.”). On this element the court plays a gatekeeper role by determining in the first instance whether actions stated in a claim might rise to the level of outrageousness demanded for an IIED claim. Id. Where the court determines that reasonable people might differ, “it is for the jury, subject to the control of the court, to determine whether . . . the conduct has been sufficiently extreme and outrageous as to result in liability.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46 comment h (1965)).
The bar for extraordinary departure from social acceptability is set very high. IIED is not available where the actions complained of are “merely rude, boorish, tyrannical, churlish, [or] mean.” Beck v. City of Portland, Or., No. CV-10-434-HU, 2010 WL 4638892, at *8 (D. Or. Nov. 5, 2010). “The tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life.” Hetfeld v. Bostwick, 136 Or.App. 305, 308 (1995). The conduct must be “outrageous in the extreme.” Id.; see also RESTATEMENT (SECOND) OF TORTS § 46, comment d (“Liability has been found only where the conduct has been so outrageous in character, and 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.”)
Whether a defendant's actions rise to the required level of outrageousness is necessarily fact-specific. Clemente v. State, 227 Or.App. 434, 442 (2009). Courts consider the totality of the circumstances based on the facts presented, including any aggravating factors. House, 218 Or.App. at 358. Aggravating factors include ulterior motives on the part of the defendant, intent to take advantage of a plaintiff in a vulnerable state, and the setting in which the conduct occurs. Id. at 360. In particular, Oregon courts have given substantial weight to IIED claims that involve special relationships-that is, relationships where the defendant's legal relationship with the plaintiff created a heightened duty of care. Id. (“a ‘special relationship' between the parties has played a role in every case in this state involving a successful claim of IIED, a factor that has remained generally true in more recent cases.”) (internal quotations and brackets omitted).
Coburn argues that his remarks, while admittedly not condoned by society, nonetheless do not constitute anything sufficiently extraordinary as to constitute IIED. If the incidents were considered in isolation the court might agree, but the court cannot consider the incidents in isolation. The court must also consider the specific circumstances surrounding the alleged misconduct, including any aggravating factors.
I. Special Relationships
When evaluating IIED claims, “[t]he most important [contextual] factor is whether a special relationship exists between a plaintiff and a defendant[.] A defendant's relationship to the plaintiff may be one that ‘imposes on the defendant a greater obligation to refrain from subjecting the victim to abuse, fright, or shock than would be true in arm's length encounters among strangers.” House, 218 Or.App. at 360 (quoting McGanty, 321 Or. at 547-48). Examples of special relationships include “employer-employee, physician-patient, counselor-client, landlordtenant, debtor-creditor or government officer-citizen.” House, 218 Or.App. at 360 .
Coburn claims that no such special relationship is alleged in the Complaint. (Def's. Mot. to Dismiss, ECF No. 73 at 7) (“Def's. Mot.”) The court finds the contrary here: Upchurch has plausibly alleged multiple special relationships.
A. Landlord-Tenant Relationship
A landlord-tenant relationship is one of the relationships Oregon courts have identified as an example of a “special relationship” for IIED purposes. House, 218 Or. App at 360; see also Boffoli v. Swalko, No. 3:16-CV-01463-YY, 2018 WL 1701884, at *9 (D. Or. Jan. 22, 2018), report and recommendation adopted, No. 3:16-CV-01463-YY, 2018 WL 1585745 (D. Or. Mar. 30, 2018) (Landlord-tenant relationship was a basis for negligent infliction of emotional distress). Coburn contends that this court has already addressed the question of a landlord-tenant relationship between the parties when, in recommending dismissal of Upchurch's Third Amended Complaint, the court characterized Upchurch and Coburn as “roommates living in a shared space.” (Def.'s Mot. at 7.); see also Upchurch, 2021 WL 954847 at *5.
Coburn misconstrues this court's finding. In his TAC, Upchurch alleged racial discrimination in renting of real property, in violation of OR. REV. STAT. § 659A.421(2)(c). (Id. *1) In the absence of a controlling authority for interpreting the Oregon statute, this court turned to federal case law interpreting the similarly structured Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., for guidance. (Id. at *3.) The court applied the Ninth Circuit's construction of the FHA and found that Upchurch and Coburn were living in a shared space, but only for purposes of federal and state housing discrimination laws. Id. at *5; see also Fair Hous. Council of San Fernando Valley v. Roommate.Com, LLC, 521 F.3d 1157, 1220-22 (9th Cir. 2008). The court did not make any determination of the legal relationship formed between Upchurch and Coburn when Upchurch moved in, and Roommate.com is not relevant to that question.
Accepting all alleged facts as true, the Complaint supports a reasonable inference that a landlord-tenant relationship existed for purposes of an IIED claim. Upchurch moved into Coburn's dwelling. (Compl. ¶ 56.) Though Upchurch alleges no additional facts as to the conditions of the arrangement, such as the expected term, what rights Upchurch had to the property, or whether there was an expectation of monthly payment, Upchurch does state that he paid Coburn $600 in rent. (Id.) These facts are sufficient to suggest consideration given on at least an implied contract of housing. The court therefore infers that a landlord-tenant relationship existed between Coburn and Upchurch.
B. Employer-Employee Relationship
Another class of special relationships that Oregon courts have recognized in IIED claims is the employer-employee relationship. This relationship has served as the basis of several successful IIED cases in Oregon. See e.g. Schoen v. Freightliner LLC, 224 Or.App. 613 (2008) (treatment of injured worker); Babick, 333 Or. at 413 (exposing workers to threat of imminent physical harm); Lathrope-Olson v. Oregon Dept. of Transp., 128 Or.App. 405, 408 (1994) (overtly racist comments and other psychological and physical intimidation directed at employee).
In opposition to the instant motion, Upchurch argues an employer-employee relationship existed between Coburn and himself. (Pl.'s Resp. to Mot. to Dismiss, ECF No. 76 at 6.) (“Pl.'s Resp.”) In reply, Coburn asserts the complaint never mentions Upchurch's employment and argues that “it is not a reasonable inference to conclude based on the allegations in the Fourth Amended Complaint that Plaintiff had been employed in MU's athletic department, or that Coburn was his supervisor.” (Def.'s Reply, ECF No. 77 at 2.) (“Def's. Reply)
Coburn is incorrect. In the Complaint, Upchurch alleges he “knew and trusted [Coburn] through working for him in MU's Athletic Department.” (Compl. ¶ 50.) This factual assertion clearly points to Coburn's supervision of Upchurch - “through working for him” - and to the employment occurring “in MU's Athletic Department.” (Id.) The court agrees that the pleading is factually thin on this point. Upchurch does not allege any details of his employment. At this stage of the litigation, however, Upchurch's pleadings are sufficient for the court to infer an employer-employee relationship.
C. Mentor-Mentee Relationship
Upchurch points to a “mentor/mentee” relationship as an additional special relationship. (Id.) Coburn responds that Upchurch cites no authority that has considered a mentor/mentee relationship as a special relationship in an IIED claim. (Def.'s Reply at 3.) Coburn further argues that Upchurch has not alleged a factual basis or any supporting authority for ascribing a heightened duty of care on Coburn based on his status as a mandated mentor.
Coburn is correct that no Oregon case or other case authority specifically enumerats a mentor/mentee relationship as among the special relationships that are considered aggravating for IIED claims, but no specific authority is necessary. Though Oregon courts commonly list established classes of special relationships when discussing IIED, they consistently use illustrative, not limitative, language when doing so. See e.g. House, 218 Or.App. at 360 (“The most important factor is whether a special relationship exists between a plaintiff and a defendant, such as an employer-employee, physician-patient, counselor-client, landlord-tenant, debtor-creditor or government officer-citizen, that shapes the interpersonal dynamics of the parties.”) (emphasis added). This court is not constrained by non-limitative lists articulated in past decisions. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”).
For purposes of an IIED claim, a special relationship is one that legally imposes a heightened duty of care on the Defendant. House, 218 Or.App. at 365 (“courts are more likely to categorize conduct as outrageous when it is undertaken by the dominant party in a legal relationship.”). Oregon courts have explained that a special relationship exists when the weaker party relinquishes control over a matter entrusted to the stronger party; the stronger party is authorized to exercise independent judgment over the matter for the benefit of the weaker party; and the nature of the relationship either is or resembles a traditional relationship that imposes “a duty on parties to conduct themselves reasonably, so as to protect the other parties to the relationship.” Bell v. Pub. Emps. Ret. Bd., 239 Or.App. 239, 249-50 (2010); see also Austin v. Univ. of Oregon, 205 F.Supp.3d 1214, 1230 (D. Or. 2016), aff'd, 925 F.3d 1133 (9th Cir. 2019) (applying the Bell test to IIED claims).
Upchurch satisfies the test articulated in Bell. Upchurch alleges that the sanctions MU imposed required him to seek counseling with a school counselor and to “select a school employee as a mentor.” (Compl. ¶¶ 35, 50.) It is reasonable to infer from those facts both that the sanctions required Upchurch to relinquish some control over matters related to his enrollment and that Coburn was simultaneously entrusted with some amount of responsibility for-and judgment over-those matters. It is also reasonable to infer that these mandates, despite being a part of the disciplinary process, were ultimately imposed for the benefit of Upchurch and his education. The facts suggest Coburn was acting on behalf of MU in an educational capacity, with the purpose of correcting the sanctioned behavior and helping Upchurch adjust to and cope with the MU environment. In this way the relationship resembles both traditional teacher/student and counselor/student relationships. The court finds it reasonable to infer that the mandatory nature of the mentorship and the circumstances of its creation imposed on Coburn a heightened duty to refrain from abusive or shocking behavior.
Upchurch does not allege any further factual information as to the nature of the relationship and the expectations it placed on Coburn and/or Upchurch. For example, Upchurch does not indicate how often (or even whether) the two were expected to (or did) meet in the context of the mentorship or to what extent Coburn was made aware of the circumstances surrounding his new responsibility. At this stage, however, Upchurch has plausibly alleged that the officially mandated mentorship arrangement created a special relationship for purposes of his IIED claim.
D. Other Relationships
In opposing the motion to dismiss, Upchurch points to “multiple special relationships existing between Defendant Coburn and Plaintiff.” (Pl.'s Resp. at 7.) In addition to the relationships already discussed, Upchurch points to “staff/student, [and] adult/minor” special relationships. (Id.)
The court need not determine whether an “adult/minor” relationship is a special relationship for purposes of an IIED claim, or whether such a relationship existed, because Upchurch has alleged neither his age nor that he was legally a minor at the time. Similarly, though Upchurch has pleaded that he was a student, and that Coburn is and was an employee of MU, he provides no basis for this court to conclude that those two facts by themselves provide a nexus for establishing a legal relationship (other than the mentor-mentee relationship discussed above). The court finds no basis for recognizing these alleged special relationships.
II. Plaintiff's Vulnerable Person Status.
In addition to the presence of multiple special relationships, Upchurch argues that he was particularly vulnerable to abusive attacks because of the depressive symptoms he had already been experiencing. (Pl.'s Resp. at 7.) Coburn argues that the Complaint does not support Upchurch's vulnerability as an aggravating factor because “there is no allegation Coburn made such comments with an alternative motive or to take advantage of Upchurch.” (Def.'s Mot. at 8.)
Coburn is correct that Oregon courts consistently consider conduct “undertaken for an ulterior purpose or to take advantage of an unusually vulnerable individual” as a factor in IIED cases. Rosenthal v. Erven, 172 Or.App. 20, 24 (2001). The court is unaware, however, of any Oregon authority limiting the vulnerable plaintiff theory to cases where evidence either of an ulterior motive or of manipulation is present. As discussed above, Oregon courts typically use illustrative language when explaining the IIED factors. The Restatement, to which Oregon courts frequently cite with approval, suggests that “[t]he extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress[.]” RESTATEMENT (SECOND) OF TORTS § 46 comment f. The court finds persuasive that a plaintiff's vulnerability, by itself, is relevant to the IIED analysis.
Upchurch argues that he was especially vulnerable to emotional injury because of the diagnosed psychological injuries he was suffering from at the time. (Pl.'s Resp. at 5.) Upchurch's counselor diagnosed Upchurch with major depressive disorder on December 10, 2018, eight days before the date he was ordered to select a school employee for a mentor. The court finds this diagnosis sufficient to establish Upchurch's fragile state at the time he moved in with Coburn.
Upchurch further argues that Coburn was aware of his diagnosis and of his fragile state. While Upchurch did not allege this fact in the Complaint, the circumstances of the mentorship here support a reasonable inference that Coburn had some knowledge of Upchurch's distress, even if Coburn had no specific knowledge of diagnoses or access to privileged medical information.
Upchurch argues that Coburn used his knowledge of Upchurch's vulnerable condition to “foster his belief in his inherent superiority.” (Pl.'s Resp. at 7.) On this point Upchurch's argument fails for want of support from the Complaint: he alleges Coburn's racist comments were directed at him because of his race (Compl. ¶ 83), but the Complaint neither alleges nor provides any factual support for inferring Coburn did so out of a supremacist motivation. Accordingly, the court finds that Upchurch's vulnerability is an aggravating factor but that he has not successfully alleged any ulterior motive or other manipulation.
III. Setting
Upchurch argues the setting of the incidents also is an aggravating factor because the comments were made in front of his friends. (Pl.'s Resp. at 7; Compl. ¶ 64.) Coburn argues the setting cannot favor Upchurch because the comments were not made in a public setting, but instead occurred in their private home. (Def.'s Mot. at 8.) Coburn further notes that the Complaint alleges only two of the comments were made in the presence of someone else. (Id.)
Coburn points to Oregon cases which found a viable IIED claim in a public setting, mostly in employment settings, and argues that the facts at issue here are not similar. (Id.) As Coburn notes, however, Oregon courts are explicit that IIED is evaluated on a fact-specific, case-by-case basis. (Def.'s Mot. at 6) (quoting House, 218 Or.App. at 358-59); see also Rosenthal, 172 Or.App. at 24 (“The setting in which the allegedly outrageous conduct occurs-for example, in a public venue or within the employment context-also can bear on the degree of offensiveness of the conduct.”) (emphasis added). Coburn offers no authority limiting IIED claims to settings where the public is present, but only to authorities that have found that setting significant when presented with a given set of facts. An example does not create a rule.
While Coburn is correct that the facts of this case do not resemble House or other IIED cases arising out of an employment context, he overlooks the special importance of being safe in one's own home. In an employment setting, an employer's verbal assaults might generally be more injurious (and thus more tortious) when carried out in public because those attacks might humiliate or degrade the employee in the same environment and in front of the same people with whom the employee must conduct the business of the organization. In other words, the public nature of the employment setting is an aggravating factor. By contrast, although a home is not, by its nature, a public setting, it is a place where one should be able to expect the highest level of safety. See e.g. Beliveau v. Caras, 873 F.Supp. 1393, 1398 (C.D. Cal. 1995) (noting that sexual harassment in a discrimination claim was especially blameworthy when plaintiff was “in her own home, where she should feel (and be) less vulnerable, and [by] one whose very role was to provide that safe environment.”).
Upchurch moved in with Coburn because he was seeking “a safe haven to rest, heal and complete his education.” (Compl. ¶ 56.) The court finds plausible that injuries caused by racist slurs and threats of intimidation could have been amplified by their occurrence in a place Upchurch was retreating to for safety. This effect is enhanced because Coburn, as discussed above, was not merely Upchurch's roommate but also his landlord. Accordingly, the court finds the setting of the conduct is an aggravating factor.
IV. Verbal Abuse and Threats of Intimidation
Oregon courts have allowed IIED claims to proceed where the conduct in question was primarily verbal in nature, though successful IIED claims generally allege some form of additional psychological or physical abuse. See Whelan v. Albertson's, Inc., 129 Or.App. 501, 505-06 (1994) (repeated racist and sexist taunts combined with other acts of psychological and physical intimidation); Lathrope-Olson, 128 Or.App. at 407 (1994) (sexist and racist comments plus intimidating threats in front of coworkers). Successful IIED claims in Oregon often involve psychological and physical intimidation, racism, or sexual harassment. Johnston v. Pet's Rx, Inc., No. CIV. 06-1566-KI, 2007 WL 2746918, at *15 (D. Or. Sept. 19, 2007). Racial slurs can themselves be factors in the totality of socially intolerable behavior, especially when the behavior is repetitive. See Whelan, 129 Or.App. at 505.
Upchurch alleges Coburn “bombarded” him with racist remarks. Compl. ¶¶ 58-59. Though the Complaint lists only four specific examples, the remarks occurred seemingly in just over a week's time and were severe in nature. Though no Oregon court has considered the oppressive force of the “N-word” in a modern context, the Ninth Circuit has recognized the particularly injurious nature of the slur, noting that it is “evocative of lynchings and racial hierarchy” and “exacerbating . . . in evaluating the severity of . . . racial hostility.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) (“It is beyond question that the use of the [‘N-word'] is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination. This word is “perhaps the most offensive and inflammatory racial slur in English, . . . a word expressive of racial hatred and bigotry.”) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir., 2001)). The court finds that in the context they were uttered, a reasonable jury could find Coburn's comments socially intolerable, especially in a changing social climate. See Spaziano v. Fla., 468 U.S. 447, 486-87 (1984) (Stevens, J., Conc.) (“Juries-comprised as they are of a fair cross section of the community-are more representative institutions than is the judiciary; they reflect more accurately the composition and experiences of the community as a whole, and inevitably make decisions based on community values more reliably, than can that segment of the community that is selected for service on the bench.”).
In addition to his allegations of racist verbal abuse, Upchurch alleges that Coburn attempted to prevent him from speaking up through the use of “intimidation, control, substances, and the staff/student power differential.” Compl. ¶ 64. Intimidating words are not by themselves actionable as an IIED claim, but acts of intimidation, especially when racially motivated, can be. See Lathrope-Olson, 128 Or.App. at 408 (“[Defendant] directed overtly racist and sexual comments to plaintiff and engaged in other acts of psychological and physical intimidation. Such overt acts of racism and sexual harassment are not simply rude and boorish, but are more properly characterized as the kind of conduct that a jury could find was intended to inflict deep, stigmatizing and psychic wounds on another person.”) Upchurch's allegation of intimidation is a factual allegation the court must accept as true on a motion to dismiss, and coercing a victim of abuse into silence is something a reasonable jury could find is intended to cause an emotional injury. Though the complaint lacks detail, the court finds that this allegation is sufficient to support Upchurch's IIED claim.
V. Summary
The question for the court is whether a reasonable jury could find that Coburn's actions, as pleaded by Upchurch, exceeded “the farthest reaches of socially tolerable behavior” in light of the aggravating factors presented. Richardson v. Nw. Christian Univ., 242 F.Supp.3d 1132, 1154 (D. Or. 2017). The court finds that it could.
Conclusion
For the foregoing reasons, Coburn's motion to dismiss (ECF No. 73) should be DENIED. \ \ \ \ \ \ \ \ \ \
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.