United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge
David Harris filed the initial complaint in this diversity
action on August 21, 2017, asserting claims for intentional
infliction of emotional distress and defamation against his
former employer, defendant UBH of Oregon, LLC
("UBH"). He simultaneously moved to proceed in
forma pauperis. Upon examination of plaintiff s affidavit, I
found that plaintiff was unable to afford the costs of this
action and granted plaintiffs motion. However, after
reviewing the complaint under the standards set out in, 28
U.S.C. § 1915(e)(2)(B)(ii), I concluded that the
complaint did not contain enough factual content to support
either of plaintiffs claims. I dismissed but granted
plaintiff leave to amend the complaint to include additional
facts. I now review the Amended Complaint in order to see if
it states a claim for relief.
federal court, a complaint must contain a "short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed. R, Civ. P. 8(a)(2). That
pleading standard "does not require 'detailed
factual allegations, ' but it demands more than an
accusation." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell All Corp. v. Twombfy, 550
U.S. 544, 555 (2007)), To state a claim for relief, the
plaintiff must plead "factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id.
formerly worked as a therapist for UBH. He alleges that on
August 18, 2015, his clinical supervisor, Shanna Branham,
placed him on administrative leave after a patient accused
plaintiff of "vague verbal misconduct . . . during group
therapy." Am. Compl. ¶ 3. Branham sent plaintiff
two text messages on August 20 telling him to return to work
the next day. When he returned to work, she fired him.
Branham told plaintiff his termination was based, at least in
part, on his being "late to work too often[.]"
Id. ¶ 20. It is not clear from the Amended
Complaint whether that was UBH's only stated reason for
the termination or whether UBH also concluded that the
patient's complaint was founded.
alleges that, while he was on administrative leave, Branham
intentionally published false defamatory statements about
plaintiff "to the CEO of CHH as well as to other senior
administrative personnel and to human resources."
Id. ¶ 13. The only allegedly defamatory
statement plaintiff identifies with specificity is the
statement that plaintiff was late for work too often,
Plaintiff suggests that the other defamatory statements could
be obtained through the discovery process.
alleges that frivolous complaints against UBH employees were
exceedingly common; that Branham knew the complaint against
plaintiff was frivolous because the complaining patient was
detoxing from drug use, had a mental illness, and suffered
from severe hearing loss; that a contemporaneous, much more
serious complaint against another UBH employee (that the
employee had groped a patient) was never investigated; and
that the same UBH employee told plaintiff UBH had not placed
a therapist on administrative leave in the preceding six to
seven years. He also denies that he had a punctuality
problem. In response to the statements regarding his
tardiness, plaintiff asserts that he had been told during
training that salaried personnel could clock in at any time
during the day; there was no requirement to clock in upon
arrival at work.
posits an alternative theory for his termination. He says
that UBH held weekly meetings for therapists at noon on
Tuesdays. Plaintiff told Branham when he began working at UBH
that he had duties as a lector at noon mass at St.
Michael's Catholic Church on Tuesdays, and that he could
attend the meetings only once a month. Plaintiff alleges that
Branham told him the meetings were "more important than
[his] religious obligations" and that the Catholic faith
was "just a tradition." Id. ¶ 7.
Plaintiff alleges that Branham resented plaintiff for missing
the Tuesday meetings and was searching for an excuse to fire
him; the patient complaint and his time card records, he
contends, provided that excuse.
Intentional Infliction of Emotional Distress
first claim is for intentional infliction of emotional
distress. Under Oregon law, to state such a claim, a
plaintiff "must plead that (1) the defendant intended to
inflict severe emotional distress on the plaintiff, (2) the
defendant's acts were the cause of plaintiffs severe
emotional distress, and (3) the defendant's acts
constituted an extraordinary transgression of the bounds of
socially tolerable conduct, " McGanty v.
Staudenraus, 901 P.2d 841, 849 (Or. 1995) (citing
Sheets v. Knight, 779 P.2d 1000, 1010 (Or. 1989)).
The Oregon Court of Appeals has explained that a claim for
intentional infliction of emotional distress requires
"conduct that is outrageous in the extreme. Conduct that
is merely rude, boorish, tyrannical, churlish and mean does
not satisfy that standard, nor do insults, harsh or
intimidating words, or rude behavior ordinarily result in
liability even when intended to cause distress."
Watte v. Edgar Maeyens, Jr., M.D., P.C., 828 P.2d
479, 481 (Or. Ct. App. 1992) (citations and quotation marks
omitted). The conduct must be so severe "that no
reasonable person in plaintiffs position could be expected to
endure it." Wilson v. Dollar Tree Stores, Inc.,
2004 WL 1381209, *4 (D. Or. June 21, 2004). "Oregon
cases that have allowed claims for IIED to proceed typically
involve acts of psychological and physical intimidation,
racism, or sexual harassment." Id.
prior dismissal order, I concluded that the complaint met the
first two requirements by adequately alleging intent and
causation, but failed to allege conduct amounting to an
"extraordinary transgression of the bounds of socially
tolerable conduct." McGanty, 901 P.2d at 849.
The amendments to the complaint do not cure that deficiency.
Plaintiff asserts that Branham sent the texts "not to be
merely rude, but to inflict as much emotional distress upon
Plaintiff as she could for being Catholic and worshiping his
faith." Am. Compl. ¶ 11. But plaintiff does not
allege that the text messages actually said anything about
plaintiffs religion. Even if they were part of a plot to fire
plaintiff because he was Catholic, the two text messages-
which apparently only directed plaintiff to return to
work-simply "do not sink to the actionable level"
with respect to a claim for intentional infliction of
emotional distress. Watte, 828 P.2d at 481.
Similarly, even if Branham lied to management about