McCool v. Hillhaven Corporation

777 P.2d 1013, 97 Or. App. 536
CourtCourt of Appeals of Oregon
DecidedJuly 19, 1989
DocketA8610-06577; CA A48072
StatusPublished
Cited by14 cases

This text of 777 P.2d 1013 (McCool v. Hillhaven Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCool v. Hillhaven Corporation, 777 P.2d 1013, 97 Or. App. 536 (Or. Ct. App. 1989).

Opinions

[538]*538WARREN, J.

Plaintiff appeals the dismissal of her common law claims for wrongful discharge and “outrageous conduct.” The trial court held that her amended complaint fails to state ultimate facts sufficient to constitute a claim.

In her wrongful discharge claim, plaintiff alleges, as relevant, that she is a licensed occupational therapist employed by defendant Park Royal Convalescent Center (Park Royal); that Park Royal is subject to OAR chapter 333; that from July 7 to July 15, 1986, defendant’s administrator, Duffy, undertook changes in the treatment of patients under plaintiffs supervision that were “outside the rules and guidelines initiated by plaintiff, in contravention of such rules, and in violation of established policies and procedures of Park Royal Convalescent Center requiring such policies [sic] changes to be in writing and of the laws and state regulations and guidelines relative to convalescent patients”; that on July 14, 1986, plaintiff tendered her resignation to Duffy, “setting forth the fact that the program amendments initiated by defendant Duffy, without approval of plaintiff, violated the written contract between plaintiff and Park Royal Convalescent Center relative to her area of responsibility, the laws of Oregon with respect to convalescent patients and the standards of practice of the American Occupational Therapy Association, thereby jeopardized the patients, the convalescent center and plaintiffs professional standing”; that on or about July 9,1986, plaintiff had registered for a seminar to be conducted in Bend on July 16 and 17; that on July 14, the date when plaintiff gave notice of resignation, Duffy approved plaintiffs attendance at the conference, knowing that the conference had been cancelled; and that plaintiff was not aware that the conference had been cancelled.

Plaintiff further alleged that she was ill on July 16; that on July 17, she travelled to Bend to attend the conference, at which time she learned that it had been cancelled; that on July 17, Duffy notified plaintiff that she was fired, effective July 15, on the ground that she had “engaged in the commission of felony or theft, in connection with work in a fraudulent scheme to obtain salary from the defendant corporation by enrolling in classes which had been cancelled”; that the real reason for the discharge was retaliation for plaintiffs [539]*539insistence that the laws of Oregon be complied with; that, in the course of firing plaintiff, defendant falsely represented to others that plaintiff was dishonest, untrustworthy, a thief and incompetent, knowing that plaintiff would, as a result, be unable to work in her professional field thereafter; that, as a result, plaintiff has suffered extreme emotional pain in the form of fear, anxiety, anger, humiliation, embarrassment, depression and confusion; and that she has incurred wage loss in the sum of $4,788.

Plaintiffs claim of “outrageous conduct” incorporates all of the allegations of the wrongful discharge claim and also alleges that, by permitting plaintiff to travel to Bend to attend a conference that it knew had been cancelled and thereafter terminating plaintiff for her attendance and characterizing her conduct as theft or dishonesty, defendants intended to and did damage her in her profession and intended to and did inflict upon her extreme emotional distress.

1. Defendants argued to the trial court that the common law wrongful discharge claim should be dismissed, because plaintiffs exclusive remedy is under ORS 659.035.1 Plaintiff did not pursue her remedies under ORS 659.035(2), but she contends that the statutory remedies are not exclusive and that she has a common law claim for wrongful discharge. The trial court dismissed the claim without stating its reasons. We reject defendants’ contention that the statutory remedy is exclusive.

Plaintiff contends that she was discharged in retaliation for fulfilling the societal obligation of reporting violations of state law. In McQuary v. Bel Air Convalescent Home, Inc., [540]*54069 Or App 107, 684 P2d 21, rev den 298 Or 37 (1984), we held that an employe who was discharged for threatening to report alleged nursing home care patient mistreatment to an appropriate state agency had a common law action for wrongful discharge. We noted at that time, however, that

“[t]he legislature has decided the precise issue in this case for future terminations. In 1981, it adopted ORS 659.035(1), which makes it an unlawful employment practice for an employer to ‘discharge, demote, suspend or in any manner discriminate or retaliate against an employe’ in the terms and conditions of the employe’s employment ‘for the reason that the employe has in good, faith reported possible violations of ORS chapter 441 or of ORS 443.400 to 443.455.’ ” 69 Or App at 112. (Emphasis in original.)

Defendant contends that the statutory remedy is now adequate and exclusive. See Walsh v. Consolidated Freightways, 278 Or 347, 563 P2d 1205 (1977). There is no indication that, when it enacted ORS 659.035(1), the legislature was aware of or intended to abrogate any common law right of action that an employe might have against an employer for a retaliatory discharge. We will not read such a limitation into the statute without its containing a clear statement to that effect. We also conclude that the statutory remedy is inadequate. As the Supreme Court stated in Holien v. Sears, Roebuck and Co., 298 Or 76, 689 P2d 1292 (1984):

“As to the issue of adequacy of state * * * remedies, ORS 659.121 * * * fail[s] to capture the personal nature of the injury done to a wrongfully discharged employe as an individual and the remedies provided by the statutes fail to appreciate the relevant dimensions of the problem. Reinstatement, back pay, and injunctions vindicate the rights of the victimized group without compensating the plaintiff for such personal injuries as anguish, physical symptoms of stress, a sense of degradation, and the cost of psychiatric care. Legal as well as equitable remedies are needed to make the plaintiff whole.” 298 Or at 97.

The same rationale applies here. The trial court erred in dismissing plaintiffs claim for wrongful discharge on the ground that the statutory remedy is exclusive.

2-4. The complaint alleges that plaintiff resigned. It does not allege that her resignation was forced or otherwise involuntary. The complaint further alleges that, after plaintiff [541]*541resigned, she was discharged. Defendant argues, on appeal for the first time, that the complaint fails to state a claim for wrongful discharge, because it alleges only that plaintiff quit voluntarily and, therefore, was not discharged.

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McCool v. Hillhaven Corporation
777 P.2d 1013 (Court of Appeals of Oregon, 1989)

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Bluebook (online)
777 P.2d 1013, 97 Or. App. 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccool-v-hillhaven-corporation-orctapp-1989.