Whelan v. Albertson's, Inc.
129 Or. App. 501, 879 P.2d 888, 1994 Ore. App. LEXIS 1195 (1994)
Rule of Law:
An employer can be vicariously liable for a supervisor’s intentional torts, such as intentional infliction of emotional distress and intentional interference with contract, if the supervisor's conduct was within the temporal and spatial limits of employment, motivated in part by a desire to serve the employer, and related to the employee's duties; and conduct, particularly repeated, sexually-charged harassment in the workplace, can constitute an 'extraordinary transgression of the bounds of socially tolerable conduct' for intentional infliction of emotional distress.
Facts:
- Plaintiff was a security guard employed by American Protective Services (APS) and assigned to work at an Albertson’s store, where he reported to store manager Flemming and was responsible for discouraging drug dealing and ejecting disruptive people.
- Soon after Plaintiff began working at Albertson’s, Flemming and another employee, Schedin, began repeatedly referring to Plaintiff as “Serge” (after an effeminate film character) and a “queer,” and imitating his allegedly effeminate characteristics, often in front of other employees.
- Plaintiff repeatedly told Flemming and Schedin that he was not homosexual and found their conduct offensive, but they continued their ridicule, leading other employees and customers to believe he was homosexual.
- Flemming, in the presence of customers, asked Plaintiff if he had “fucked” a woman he dated and publicly instructed a cashier to refer to Plaintiff as “Serge” over the public address system, causing Plaintiff concern about vulnerability to violence from store clientele.
- Schedin, angered by Plaintiff, verbally abused him with vulgarities including “asshole” and “queer” in front of customers, employees, and Flemming, who did not intervene.
- Schedin later confronted Plaintiff, called him a “fucking queer asshole,” and shoved him hard in the chest with both hands; when Plaintiff called for Flemming’s help, Flemming asked Schedin what he wanted, and Schedin responded he didn't want the plaintiff around him, leading Flemming to order Plaintiff to stay away from Schedin.
- The behavior of Flemming and Schedin stripped Plaintiff of the authority needed to control the store’s clientele.
- Plaintiff complained in writing to Flemming’s supervisor, but the verbal harassment continued for two more shifts, after which APS removed Plaintiff from his assignment at Albertson’s.
Procedural Posture:
- Plaintiff filed claims for intentional infliction of emotional distress, interference with contractual relations, battery, civil intimidation, and negligence against defendants Flemming, Albertson’s, Inc., and Schedin.
- The trial court (court of first instance) granted judgment pursuant to ORCP 21A(8), dismissing plaintiff's claims against Flemming and Albertson's.
- Plaintiff appealed the dismissal of his claims for intentional infliction of emotional distress and negligence against Flemming and Albertson's, and the claim for interference with contractual relations against Flemming.
- Plaintiff also appealed the dismissal of claims asserting Albertson’s was vicariously liable for Schedin’s battery and civil intimidation.
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Issue:
Does a complaint properly state a claim for (1) intentional infliction of emotional distress against a supervisor where the supervisor engaged in repeated, sexually-charged verbal harassment and public humiliation of a subordinate; (2) intentional interference with contract against the supervisor for making the subordinate's job performance so onerous that he was removed from his assignment; and (3) vicarious liability against the employer for the supervisor's intentional torts when the supervisor's acts were alleged to be within the scope of employment?
Opinions:
Majority - Riggs, J.
Yes, a complaint properly states a claim for intentional infliction of emotional distress against a supervisor, for intentional interference with contract against the supervisor, and for vicarious liability against the employer for the supervisor's intentional torts. The court held that a reasonable jury could find Flemming’s repeated, sexually-charged insults, public humiliation, and failure to intervene in Schedin's assault, all in the context of plaintiff’s security guard duties, constituted an “extraordinary transgression of the bounds of socially tolerable conduct” necessary for intentional infliction of emotional distress, citing Sheets v. Knight, Lathrope-Olson v. Dept. of Transportation, and Pakos v. Clark. The court also found plaintiff adequately pleaded that Flemming maliciously interfered with his contract with APS by making his performance at Albertson’s so onerous that APS transferred him, thus stating a claim for intentional interference with contract under Top Service Body Shop v. Allstate and Franklin v. PCC. However, the court affirmed dismissal of the negligence claims against both Flemming and Albertson’s, finding no special relationship or special status that would impose a duty to protect plaintiff from third-party actions under Buchler v. Oregon Corrections Div. and the Restatement (Second) of Torts. Finally, the court ruled that plaintiff sufficiently pleaded vicarious liability against Albertson’s for Flemming’s intentional infliction of emotional distress and intentional interference with contract, because plaintiff alleged Flemming’s acts occurred within the temporal and spatial limits of employment and were motivated, at least in part, by a desire to serve Albertson’s (e.g., to increase supervisory effectiveness or improve morale), aligning with Chesterman v. Barmon. The court affirmed the dismissal of vicarious liability for Schedin's acts, finding an insufficient connection between Schedin's harassment and his assigned duties.
Analysis:
This case significantly clarifies the high threshold for intentional infliction of emotional distress (IIED) in the workplace, emphasizing that repeated, sexually-charged, and publicly demeaning harassment, especially by a supervisor, can meet the 'socially intolerable' standard. It also provides crucial guidance on the scope of vicarious liability, asserting that an employer can be held responsible for a supervisor's intentional torts if those acts, even if malicious, are partially motivated by a perceived benefit to the employer and fall within the general scope of employment duties. The distinction between a supervisor's actions and a co-worker's actions for vicarious liability highlights the importance of the 'motive to serve the employer' element, which can be harder to demonstrate for non-supervisory employees' torts.
