Sheets v. Knight

759 P.2d 307, 92 Or. App. 539

• Court: Court of Appeals of Oregon
• Decided: August 17, 1988
• Docket: 23-331; CA A41675
• Status: Published

Opinions

WARREN, P. J.

Plaintiff pled three claims for relief: breach of contract, wrongful discharge and violation of the Public Meetings Law, ORS 192.610 to ORS 192.690. Defendants moved to dismiss for failure to state a claim and for judgment on the pleadings. ORCP 21A(8) and ORCP 21B. The trial court granted the motions with regard to the wrongful discharge and violation of the Public Meetings Law claims and entered judgment. It also granted plaintiffs motion for voluntary dismissal without prejudice on the breach of contract claim. ORCP 54A(2). Plaintiff challenges only the dismissal of his wrongful discharge claim but also assigns as error the court’s denial of his motion for leave to amend the complaint to allege the torts of intentional interference with a contractual relationship and intentional infliction of emotional distress.¹

Plaintiff was employed by defendant county for more than 14 years as a building inspéctor. He alleged that he was forced to resign by defendants Knight, Williams and Woodward in their capacities as county commissioners because of his knowledge of “improper activities” on the part of the commissioners and their predecessors. Alternatively, he asserted that he was forced to resign either as a result of personal and political considerations, rather than inadequate performance of his duties, or as a result of vindictiveness on the part of Woodward.

On appeal, plaintiff contends in the first assignment of error that his wrongful discharge claim expressly alleged three separate causes of action: wrongful discharge, breach of contract not to discharge for other than good cause and tortious breach of the covenant of good faith and fair dealing implied in employment contracts. He raises several issues, in particular that there was an “implied in fact” contract between him and the county to discharge him only for good cause and that we should recognize the breach of the “implied-in-law” covenant of good faith and fair dealing as a separate ground of recovery in wrongful discharge cases.

All of plaintiffs arguments assume that his resignation amounts to a discharge, which is the essential element of the tort of wrongful discharge. We do not agree with that assumption.

Oregon case law on wrongful discharge has not applied the doctrine of constructive discharge. We referred to it in dictum in a case involving the tort of intentional interference with economic relations. Lewis v. Oregon Beauty Supply Co., 77 Or App 663, 714 P2d 618 (1986), aff’d in part, rev’d in part 302 Or 616, 733 P2d 430 (1987). We said:

“Although this is not a wrongful discharge case, we find [a Maryland court] analysis of the constructive discharge issue persuasive. We conclude that the concept of constructive discharge is recognized in Oregon.” 77 Or App at 668.

The Supreme Court affirmed in part and reversed in part. It held that discharge is not a necessary element of the tort of intentional interference, thus making our discussion of constructive discharge unnecessary. 302 Or at 622. The only Oregon authority regarding a forced resignation is Martin v. Gauld Co., 96 Or 635, 190 P 717 (1920), which holds that the legal effect of an offer to resign which is accepted is a resignation, even if the resignation was at the employer’s request and was made merely for the sake of appearances. 96 Or at 639-40.² Although Martin is a contract rather than a tort case, it also arises out of the wrongful termination of an employment contract, and it is controlling until the Supreme Court says otherwise.

Even if constructive discharge is the law in Oregon, plaintiff failed to plead it sufficiently. The concept arose in federal labor and discrimination cases. Its elements vary in jurisdictions that recognize it. In general, a plaintiff must prove that the employer made the employe’s working conditions so intolerable as to force an involuntary resignation. In addition, some jurisdictions require proof that the employer’s deliberate actions were taken with the intent to force a resignation; others employ a less stringent standard of the “reasonable employe,” which requires only a showing that a reasonable person in the employe’s position would feel compelled to resign. See Lewis v. Oregon Beauty Supply Co., supra, 77 Or App at 668-69.

Plaintiffs second amended complaint states that he was informed that, if he did not resign, defendants would dismiss him. It does not, however, allege that the conditions to which plaintiff was subjected were intolerable or that he resigned under duress. The threat of dismissal, without more, is insufficient to constitute constructive discharge.

We hold that, because plaintiff resigned, even if the resignation might have been at defendants’ request, he has not stated a cause of action for wrongful discharge and his claim was properly dismissed. We need not address his other arguments, many of which relate properly only to the breach of contract action that be voluntarily dismissed.

3. Plaintiff also assigns as error the trial court’s denial of his motion to amend the complaint on the morning of trial to allege intentional interference with the employment relationship and intentional infliction of emotional distress. The trial judge concluded that the complaint pled new theories as to which defendants were without adequate notice to prepare a defense. Our review is limited to abuse of discretion. See Contractors, Inc. v. Form-Eze Systems, Inc., 68 Or App 124, 129, 681 P2d 148, rev den 297 Or 824 (1984). We find none.

Affirmed.

1 Defendants argue that the judgment is not appealable. It disposes of all claims; therefore, it is the final determination of the rights of the parties in the action and as such is appealable. ORS 19.010.

2 Other jurisdictions have considered the issue. Wilkinson v. Trust Company of Georgia Associates, 128 Ga App 473, 197 SE2d 146 (1973), holds that, even if an employe resigned under pressure at his employer’s request, it did not amount to a discharge, and Fredericks v. Georgia-Pacific Corporation, 331 F Supp 422 (D Pa 1971), appeal dismissed 474 F2d 1338 (1972), holds that a forced resignation is not synonymous with a discharge. Cf. Humana, Inc. v. Fairchild, 603 SW2d 918 (Ky App 1980) (an employe could sue for wrongful termination of employment contract notwithstanding that employe resigned, where employe alleged that he resigned under duress when threatened that, if he did not resign, bad references would be given to any future employer).