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McManus v. Auchincloss

Court of Appeals of Oregon

June 17, 2015

Edward F. McMANUS, III, Plaintiff-Appellant,
James Lee AUCHINCLOSS, Defendant-Respondent

Argued and Submitted June 10, 2014.

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102765L9. Jackson County Circuit Court. Ronald D. Grensky, Judge.

G. Jefferson Campbell, Jr., argued the cause for appellant. With him on the briefs was G. Jefferson Campbell, Jr., P.C.

Brett A. Baumann argued the cause for respondent. With him on the brief was Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.


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[271 Or.App. 767] EGAN, J.

Plaintiff appeals a limited judgment granting summary judgment in favor of defendant, his former employer, on plaintiff's claims of wrongful discharge, intentional infliction of emotional distress (IIED), and conversion. Defendant discharged plaintiff from employment as his personal assistant when plaintiff--after complaining to defendant about defendant's possession and display of child pornography--reported defendant to the police and assisted the police with their investigation. Plaintiff argues that the trial court erred in granting summary judgment on his common-law wrongful discharge claim, because defendant terminated him for fulfilling an important public duty, which is an exception to the at-will employment rule. Defendant responds that that exception does not protect plaintiff, because no statute, rule, or constitutional provision establishes an important public policy that encourages domestic workers to report the crimes of their employers and, consequently, we may not conclude that plaintiff was fulfilling an important public duty when he did so. Plaintiff also argues that the court erred in granting defendant summary judgment on his claims for IIED and conversion. On each of those issues, we agree with plaintiff.[1] Accordingly, we reverse and remand.

On appeal, we will affirm the trial court's grant of summary judgment if we agree that " there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001). When reviewing a trial court's grant of summary judgment, we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party--in this case, plaintiff. Shelter Products v. Steelwood Construction, 257 Or.App. 382, 384, 307 P.3d 449 (2013).


Defendant hired plaintiff to live and work in his home as a full-time personal assistant in exchange for a [271 Or.App. 768] monthly salary and room and board. Plaintiff's job duties included cooking, serving meals, housecleaning, laundry, pet care, yard work, grocery shopping, and organizing defendant's personal affairs--a task that included reviewing defendant's e-mail and sorting " spam" e-mail from more important e-mail.

While reviewing defendant's e-mail, plaintiff opened an e-mail sent to defendant from a man that plaintiff knew to be a recent acquaintance of defendant's. Because the e-mail contained no text and only a single hyperlink to a Russian website, plaintiff clicked the link to determine if the e-mail was spam. The link brought plaintiff to a child-pornography website. Plaintiff informed defendant, who replied that his friends " liked little boys, and so do I."

Plaintiff attests in his affidavit that, in the weeks following the e-mail, he frequently encountered sexual depictions of children in the course of his routine tasks. Plaintiff had regularly served defendant breakfast in bed; however, following the e-mail, plaintiff noticed that, while waiting to be served breakfast, defendant began assembling digital slideshows of nude underage boys engaged in sex acts. When plaintiff served defendant his breakfast, defendant would turn the computer

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screen toward him and request that he view the images. Defendant also began displaying images of child pornography on a monitor in the living room or on his laptop computer for himself or a small group of friends while plaintiff performed his work duties in the same area of the home. While performing his job duties, plaintiff encountered defendant and a group of men transferring pictures of young boys, which they had just taken at a local 4th of July parade, from a digital camera to a laptop computer while ranking the children as " 'hot' or 'not hot.'" During that incident, it was apparent to plaintiff that the men were receiving sexual gratification from the exchange. Plaintiff also encountered a second alarming e-mail, which contained photographs of young, toddler-aged boys recently taken by one of defendant's acquaintances. Some of those photographs were shot in such a way as to peer up the legs of the boys' shorts. Defendant also received packages delivered to the residence that plaintiff discovered contained child pornography. Moreover, plaintiff's affidavit alleges [271 Or.App. 769] that he was repeatedly shocked by these images and, on one occasion, he was deeply embarrassed after he and a friend, who was visiting the residence, walked through the living room where defendant was viewing a " highly disturbing" slideshow containing images of nude boys set to patriotic music.

Before the employment relationship at issue began, defendant was aware that plaintiff was the victim of childhood sexual abuse. In the weeks following the initial e-mail, plaintiff told defendant that defendant's collection and display of child pornography in the home was particularly upsetting to him because of his childhood trauma, and that he had begun to experience flashbacks to those events. Additionally, plaintiff told defendant that he was alarmed by the fact that the internet account used by defendant was in plaintiff's name and he feared that he might become caught up in defendant's criminal activities. Defendant responded by explaining that the images he possessed were artistic and beautiful and that the children depicted were having fun and making money. When plaintiff's complaints and requests that defendant stop his activities became more strident, defendant responded that plaintiff was his employee and, as such, defendant was " HWMBO" --a term he coined and began to use frequently to assert his authority that meant " he who must be obeyed."

Several weeks after first encountering the e-mail that contained a link to a child-pornography website, plaintiff gathered all of the child pornography he could find in defendant's home and took it to his attorney. Plaintiff's attorney sent an e-mail to defendant demanding that defendant stop sending and receiving child pornography at his residence and threatening to report those activities to the police if defendant persisted. Defendant continued to send and receive child pornography at the residence, and plaintiff reported defendant's activities to the police. Some weeks later, while defendant was out of state on vacation, police executed a search warrant at defendant's home. Plaintiff assisted the police in the execution of the warrant and later testified to the grand jury that indicted defendant on criminal charges. When defendant returned to Oregon, police arrested him at the airport.

[271 Or.App. 770] Following his arrest, defendant learned that plaintiff had assisted the police. Consequently, defendant discharged plaintiff and physically moved him out of the residence. Defendant hired new personal assistants, who prevented plaintiff from retrieving several possessions from the residence when he returned to do so, stating that defendant had barred plaintiff from the property. Plaintiff's attorney sent a letter to defendant demanding the return of plaintiff's possessions, but defendant did not return them. Defendant ultimately pleaded guilty and was convicted of encouraging child sexual abuse in the first degree, ORS 163.684.


A. Common-law wrongful discharge

As indicated, the trial court granted summary judgment in favor of defendant on plaintiff's claim for commonlaw wrongful discharge. The trial court concluded that plaintiff could not prevail under the public-duty exception to at-will employment because he could not prove one element of his common-law

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wrongful discharge claim, namely the public duty element. The court reached that conclusion based on the statutory definition of employee in ORS 659A.001(3)[2] because it excludes domestic service workers.

On appeal, plaintiff does not dispute that he worked in the domestic service of defendant. Instead, he argues that that statutory definition does not apply to his wrongful discharge claim because he brought his claim under the important-public-duty exception, not the private-employee-whistleblower statute.[3] Defendant responds that, even if the statutory definition of " employee" contained in ORS 659A.001(3) does not apply to plaintiff's claim, no source of public policy demonstrates the existence of an important public duty for a domestic service worker to report to the police an employer's possession and display of child pornography. We conclude that the legislature has expressed an [271 Or.App. 771] important public duty for all employees, including domestic service workers, to report their good-faith belief that their employers ...

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