Wheeler v. Marathon Printing, Inc.
157 Or.App. 290, 16 I.E.R. Cas. (BNA) 1177, 974 P.2d 207 (1998)
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Rule of Law:
An employer's passive failure to remedy a hostile work environment created by a co-worker does not constitute conduct sufficiently extreme and outrageous to support a direct claim for intentional infliction of emotional distress, although such inaction can support a claim for statutory disability discrimination.
Facts:
- Plaintiff worked as a press operator for Marathon Printing, Inc. (Marathon) alongside co-worker Gary Wilkinson.
- In the fall of 1991, Wilkinson began harassing the plaintiff with sexually explicit propositions, derogatory slurs related to his perceived sexual orientation, and obscene gestures.
- In December 1992, the plaintiff reported the ongoing harassment to Marathon's owner, Ken Zirk, who told him to 'try to get along' with Wilkinson but took no action.
- In January 1993, the plaintiff's car was vandalized twice at work and once at his home.
- On February 4, 1993, after Zirk again refused to intervene, the plaintiff attempted suicide and was subsequently hospitalized and diagnosed with major depression.
- Upon returning to work, the plaintiff informed Zirk of his diagnosis and requested reasonable accommodations to minimize contact with Wilkinson, such as moving his workstation, changing departments, or working a different shift, all of which Zirk denied.
- Wilkinson's harassment, which now included taunts about the plaintiff's mental state, continued with Zirk's knowledge.
- In August 1993, after Wilkinson called him 'a crazy lunatic faggot' and Zirk again refused to intervene, the plaintiff quit his job.
Procedural Posture:
- Plaintiff initiated an action against Marathon Printing, Inc., and Gary Wilkinson in an Oregon state trial court.
- The plaintiff asserted claims for disability discrimination and intentional infliction of emotional distress (IIED) against Marathon, and IIED against Wilkinson.
- Following a trial, a jury returned a special verdict finding Marathon liable for disability discrimination (both failure to accommodate and hostile environment) and for IIED.
- The jury also found Wilkinson liable for IIED.
- The jury awarded compensatory and punitive damages against both defendants on the various claims, and the trial court entered a judgment on the verdict.
- Defendants Marathon Printing, Inc., and Gary Wilkinson (appellants) appealed the judgment to the Court of Appeals of Oregon.
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Issue:
Does an employer's mere failure to act to stop a co-worker from harassing an employee constitute conduct that is sufficiently extreme and outrageous to support a direct claim against the employer for intentional infliction of emotional distress?
Opinions:
Majority - Haselton, P. J.
No. An employer's mere non-responsiveness to claims of workplace harassment is insufficient to support direct liability for intentional infliction of emotional distress (IIED). Relying on the precedent set in Lewis v. Oregon Beauty Supply Co., the court held that conduct supporting an IIED claim must be an extraordinary transgression of the bounds of socially tolerable conduct, such as 'cold-blooded oppressive browbeating.' Marathon's liability was based on its passive 'allowance' of Wilkinson's harassment, which, while sufficient to establish liability for statutory disability discrimination (both for creating a hostile work environment and for failure to accommodate), does not rise to the level of outrageousness required for IIED. In contrast, the judgment for IIED against the co-worker, Wilkinson, was affirmed because his campaign of torment, which included both expressive harassment and non-expressive criminal acts like vandalism, was deemed 'extraordinarily vicious and intolerable.' Similarly, the punitive damages against both Marathon (for discrimination) and Wilkinson (for IIED) were upheld because they were properly based on non-expressive conduct—Marathon's failure to act and Wilkinson's vandalism—which is not protected by constitutional free speech provisions.
Analysis:
This decision clarifies the high threshold for holding an employer directly liable for intentional infliction of emotional distress based on inaction. It draws a critical distinction between liability under anti-discrimination statutes, where an employer's failure to act can be the central basis for a claim, and the common law tort of IIED, which requires affirmative, outrageous conduct by the defendant. The case establishes that while an employer's failure to stop harassment is legally wrongful and can lead to significant liability for discrimination, it generally will not expose the employer to a separate, direct claim for IIED. This provides a degree of protection for employers from IIED claims based on poor management, while preserving robust remedies for employees under statutory law.
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