Gearhart v. Employment Division

783 P.2d 536, 99 Or. App. 601, 1989 WL 150359

• Court: Court of Appeals of Oregon
• Decided: December 13, 1989
• Docket: 16-86-01912; CA A45060
• Status: Published

Opinions

ROSSMAN, J.

Plaintiff appeals a judgment for defendants. We affirm.

Plaintiff was a hearings officer for Employment Division from November, 1976, until April, 1984, when she was discharged for “insubordinate behavior, failure to afford a fair hearing, and lack of professional conduct.” She then brought this action for wrongful discharge and intentional infliction of emotional distress. After she presented her evidence, defendants moved to dismiss both of her claims under ORCP 54B(2).¹ The trial court granted defendants’ motion and entered a judgment which, because it did not recite that it was with prejudice, is an adjudication without prejudice. ORCP 54B(4). Although that judgment leaves plaintiff free to allege the same cause of action in a new proceeding, the rights of the parties in this action have been determined, and the judgment is final and appealable. ORCP 67A; ORS 19.010.

We must first determine the scope of our review of a judgment of dismissal without prejudice under ORCP 54B. Our cases discussing dismissals with prejudice make it clear that, without written findings entered pursuant to ORCP 62, there is no basis on which to determine how and why the trial court concluded that a terminal judgment was appropriate at the close of plaintiffs case. Norbeck and Norbeck, 96 Or App 345, 772 P2d 954 (1989); Greenwood Forest Products, Inc. v. Sapp, 84 Or App 120, 125, 733 P2d 110, rev den 303 Or 454 (1987); Joseph v. Cohen, 61 Or App 559, 563, 658 P2d 544 (1983). Written findings are not required if the dismissal is without prejudice, and their absence precludes review for whether the evidence supports findings or whether the trial court correctly applied the law to the facts. See Norbeck and Norbeck, supra, 96 Or App at 348.²

ORCP 54B(2), together with ORCP 60, eliminated the motion for nonsuit under former ORS 18.210 to ORS 18.260. Castro and Castro, 51 Or App 707, 710, 626 P2d 950 (1981). Under those statutes, involuntary nonsuits were appealable, see Steenson v. Robinson, 236 Or 414, 416, 385 P2d 738, 389 P2d 27 (1964), and reviewable as to whether the plaintiff had established a prima facie case. See Lavigne v. Portland Traction Co., 179 Or 221, 170 P2d 709 (1946). The dismissal here is akin to the former involuntary nonsuit. Plaintiff presented her evidence and defendant moved to dismiss on the ground that, on the facts and the law, the plaintiff has shown no right to relief. ORCP 54B(2).³ We conclude that review of that determination, if the judgment is without prejudice, is limited to whether plaintiff had established a prima facie case.⁴

Plaintiffs first claim was that she was wrongfully discharged for fulfilling an important societal function. Nees v. Hocks, 272 Or 210, 536 P2d 512 (1975). She argues that she was terminated for providing due process to parties in unemployment insurance hearings. She contends that defendants interfered with her obligation to do so by issuing directives which ordered her to decide questions of law in certain ways and that she was obliged not to follow the directives. Therefore, when defendants terminated her for insubordinate behavior for refusing to follow the directives, the discharge was against the law.

Plaintiffs evidence did not establish a prima facie case of wrongful discharge. The directives which plaintiff refused to follow concerned so-called “.265/.290” issues, involving the authority of authorized representatives under ORS 657.265 and of the administrator under ORS 657.290 to amend initial decisions regarding benefits. Referees, the administrator and the Employment Appeals Board had taken different positions. Defendant Menegat issued a memorandum directing referees to turn over the cases where those statutes appeared to be involved to senior referees. That memo, and the other directives plaintiff introduced, were concerned with the procedure by which the agency would handle the cases.

Plaintiffs evidence did not show that defendants removed the issues from her because of her legal position. The directives established a general procedure by which the agency would process certain issues. They did not direct her in how to decide the issues nor did the directives exclude only her from considering them. Plaintiff did not show that the directives prevented parties from ever having the issues considered, thereby denying them due process. Plaintiff failed to show that she was discharged for fulfilling an important societal function.⁵

Plaintiff also failed to make a prima facie case on her claim for intentional infliction of emotional distress. Before her termination, defendants discussed her alleged unprofessional conduct in hearings and tried to work with her to correct the problems. That is not conduct which is outrageous or beyond the limits of social tolerance, which a plaintiff must show in order to support a claim. See Hall v. The May Dept. Stores, 292 Or 131, 637 P2d 126 (1981).

Affirmed.

1 ORCP 54B(2) states:

“After the plaintiff in an action tried by the court without a jury has completed the presentation of plaintiffs evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a judgment of dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment of dismissal against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment of dismissal with prejudice against the plaintiff, the court shall make findings as provided in Rule 62.”

2 There is no ground for a remand for entry of findings. Neither party assigns error to the entry of the judgment without prejudice or asserts that failure of the judgment to state that it was with prejudice was a clerical error which should be corrected.

3 For example, former ORS 18.230(1) provided, in part:

“A judgment of nonsuit may be given:

«* * * * *

“(c) On motion of the defendant, * * * upon a trial without a jury when the evidence is not sufficient to establish a prima facie case for plaintiff.”

4 The scope of review of an involuntary dismissal under the analogous federal rule, FRCP 41(b) is whether a prima facie case was made. See Riegel Fiber Corp. v. Anderson Gin Co., 512 F2d 784, 792 (5th Cir 1975).

5 At some hearings, plaintiff also brought up issues of overpayments under ORS 657.310 and ORS 675.315 when those issues were not before her. Hearing rights of the parties were not prejudiced by the directives instructing plaintiff not to consider issues which were not properly before her.

1 Although the majority does not specifically say that it views the evidence in the light most favorable to plaintiff, it must be doing so to determine whether plaintiff has established a prima facie case. Defendant contends, logically, that he has obtained a judgment in his favor and, therefore, the evidence should be viewed in a light most favorable to him.