Conkel v. Reed Inst.

HANS CONKEL, Plaintiff, v. THE REED INSTITUTE dba REED COLLEGE, Defendant.

3:19-cv-01113-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

November 26, 2019

OPINION AND ORDER

SCOTT H. HUNT

Busse & Hunt

621 S.W. Morrison St., Suite 521

Portland, OR 97205

(503) 248-0504

Attorneys for Plaintiff

PAULA A. BARRAN

SHAYDA Z. LE

Barran Liebman LLP

601 S. W. Second Ave., Suite 2300

Portland, OR 97204

(503) 228-0500

Attorneys for Defendant

BROWN, Senior Judge.

This matter comes before the Court on the Motion (#7) to Dismiss and Motion for A More Definite Statement filed by Defendant The Reed Institute dba Reed College. The Court concludes the record is sufficiently developed, and, therefore, oral argument is not required to resolve this Motion.

For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's Motion as indicated below.

BACKGROUND

The following facts are taken from Plaintiff's Amended Complaint (#3), and the Court accepts them as true for purposes of this Motion.

Plaintiff Hans Conkel was employed by Defendant as a locksmith on Defendant's campus. Plaintiff is a Christian and openly shares his faith with others at Reed College. Plaintiff came into regular contact with students during the course of his duties and became aware of "practices and conduct" by Defendant and its students that Plaintiff believed were violations of the law. Specifically, Plaintiff references sexual assaults of students and cover-up efforts by Defendant's administration, unlawful drug use by students and/or employees; employee thefts, racial and religious discrimination against employees, performance of electrical work by unlicensed employees, and discrimination against students with disabilities. Plaintiffreported the alleged illegal conduct to Defendant's administration.

According to Plaintiff, after he reported these matters Defendant retaliated against him by placing restrictions on him that prevented him from interacting with students on and off campus. Plaintiff, however, continued to be approached by current and former students who sought his help. Plaintiff alleges Defendant objected to Plaintiff sharing his religious beliefs with others and that Defendant intended to prevent Plaintiff from living in accordance with his religious beliefs. In any event, Plaintiff continued to report illegal activities to Defendant. Plaintiff alleges in Fall 2017 he was disciplined for making these reports.

On August 22, 2018, Plaintiff filed a complaint with the Oregon Bureau of Labor and Industries (BOLI) alleging employment discrimination based on his religion and retaliation for having reported the illegal conduct.

On August 23, 2018, Plaintiff asked Lorraine Arvin, Defendant's Vice President, to arrange a meeting with Defendant's president so Plaintiff could report a student who had been sexually assaulted and was being pressured by schoolofficials to drop her complaint. Arvin denied Plaintiff's request.

On August 27, 2018, Defendant terminated Plaintiff's employment.

On September 5, 2019, Plaintiff filed a Complaint in this Court against Defendant. Plaintiff alleges the following claims:

(1) retaliation in violation of Oregon Revised Statutes § 659A.199 for reporting a violation of law;

(2) retaliation in violation of Oregon Revised Statutes § 659A.030(1)(f) for filing a complaint with BOLI;

(3) religious discrimination in violation of 42 U.S.C. § 2000e-2(a);

(4) religious discrimination in violation of Oregon Revised Statute § 659A.030; and

(5) intentional infliction of severe emotional distress (IIED).

On September 27, 2019, Defendant filed a Motion to Dismiss and to Make More Definite and Certain.

STANDARDS

I. Motion to Dismiss

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) a complaint must contain sufficient factual matter, accepted as true, to "state a claim for relief that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 545 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.S. at 546). When a complaint is based on facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). See also Bell Atlantic, 550 U.S. at 555-56. The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).

The pleading standard under Federal Rule of Civil Procedure8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). See also Federal Rule of Civil Procedure 8(a)(2). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (citing Twombly, 550 U.S. at 555). A complaint also does not suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557.

"In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)(citing Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1204 (C.D. Cal. 2004)).

II. Motion for More Definite Statement

Federal Rule of Civil Procedure 12(e) provides "a party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." The court may, in the exercise of its discretion, require a more definite statement when the complaint is soambiguous that the defendant cannot ascertain the nature of the claim or claims being asserted. See Cellars v. Pac. Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999).

"Motions for a more definite statement[, however,] are viewed with disfavor and are rarely granted." Holdner v. Coba, No. 09-cv-00979, 2010 WL 678112, at *1 (D. Or. Feb. 25, 2010)(citing Cellars v. Pac. Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999). As one court observed, "Rule 12(e) motions attack the intelligibility of the complaint, not the lack of detail, and are properly denied where the complaint notifies the defendant of the substance of the claims asserted." Id. (citing Presido Group, LLC v. GMAC Mortg., LLC, No. 08-5298, 2008 WL 3992765, at *1 (W.D. Wash, Aug. 25, 2008)(citations omitted)). Thus, when evaluating a motion under Rule 12(e), the proper test is to determine "whether the complaint provides the defendant with a sufficient basis to frame his responsive pleadings." Id. (citing Federal Sav. and Loan Ins. Corp. v. Musacchio, 695 F. Supp. 1053, 1060 (N.D. Cal. 1988)).

DISCUSSION

I. Defendant's Motion to Dismiss Plaintiff's IIED Claim.

Defendant contends Plaintiff has not pleaded sufficientfacts to support an IIED claim, and, therefore, the Court should dismiss the claim.

A. Standards

To establish a claim for intentional infliction of emotional distress under Oregon law the plaintiff must establish the following elements:

(1) the defendant intended to inflict severe emotional distress on the plaintiff; (2) defendant's acts were the cause of plaintiff's severe emotional distress; and (3) defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.

Dawson v. Entek Int'l, 630 F.3d 928, 941 (9th Cir. 2011). "Whether conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct is a question of law." Harris v. Pameco Corp., 170 Or. App. 164, 171 (2000). This determination is made on a case-by-case basis after considering the totality of the circumstances. Delaney v. Clifton, 180 Or. App. 119, 130 (2002).

"It is the defendant's acts, rather than [the defendant's] motives, that must be outrageous." Rush v. Or. Steel Mills, No. 06-1701-AS, 2007 WL 2417386, at *3 (D. Or. Aug. 17, 2007)(citing Madani v. Kendall Ford, Inc., 312 Or. 198, 204 (1991)). The conduct must be "so outrageous in character, andso extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." House v. Hicks, 218 Or. App. 348, 358 (2008)(quoting Restatement (Second) of Torts § 46 comment d). Insults, harsh or intimidating words, and rude behavior do not ordinarily result in liability. Lewis v. Or. Beauty Supply Co., 302 Or. 616, 628 (1987). Employer conduct that is "rude, boorish, tyrannical, churlish, and mean" is similarly not actionable. Bourgo v. Canby Sch. Dist., 167 F. Supp. 2d 1173, 1184 (D. Or. 2001)(citing MacCrone v. Edwards Ctr., Inc., 160 Or. App. 91, 100 (1999)). An employer-employee relationship, however, "imposes on the defendant a greater obligation to refrain from subjecting the victim to abuse." House, 218 Or. App. at 360 (quoting McGanty v. Staudenraus, 321 Or. 532, 547-48 (1995)). Nevertheless, Oregon courts are reluctant to impose IIED liability on employers. Madani v. Kendall Ford Co., 312 Or. 198, 205-06 (1991), abrogated on other grounds by McGanty, 321 Or. 532 (1995).

B. Analysis

Plaintiff alleges the way Defendant treated him (a) was designed to inflict severe emotional distress and/or(b) was done with the knowledge that it was substantially certain to cause Plaintiff emotional distress. Plaintiff alleges Defendant's treatment included

yelling, berating and/or belittling Plaintiff for helping students and/or former students; verbally attacking

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