Gordon v. Kleinfelder West, Inc., No. 3:2011cv00245 - Document 59 (D. Or. 2012)

Court Description: MEMORANDUM OPINION AND ORDER: Kleinfelder's motion for summary judgment on Gordon's IIED claim is granted, and both parties' motions for summary judgment are denied as to all other claims and counterclaims. (In re Motions 24 and 25 .) Signed on 3/5/12 by Magistrate Judge Dennis J. Hubel. (kb)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF OREGON 3 PORTLAND DIVISION 4 5 JOHN ALLEN GORDON, 6 7 ) ) ) No. 03:11-CV-00245-HU ) ) ) ) MEMORANDUM OPINION AND ORDER ) ON CROSS-MOTIONS FOR ) SUMMARY JUDGMENT ) Plaintiff, v. 8 KLEINFELDER WEST, INC., 9 Defendant. 10 11 12 Daniel C. Lorenz 521 S.W. Clay 13 Portland, OR 97201 14 Attorney for Plaintiff 15 16 Joanna R. Brody Scott Oberg Oborne 17 Jackson Lewlis LLP 1001 S.W. 5th Avenue, Suite 1205 18 Portland, OR 97204 19 Attorneys for Defendant 20 21 22 HUBEL, Magistrate Judge: 23 The plaintiff John Allen Gordon brings this case against the 24 defendant Kleinfelder West, Inc. ( Kleinfelder ) for damages 25 arising from Gordon s termination by Kleinfelder on February 2, 26 2010, and events occurring immediately thereafter. The case is 27 before the court on motions for summary judgment filed by both 28 parties. Gordon seeks partial summary judgment on the issue of 1 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 liability as to two of his claims against Kleinfelder; i.e., his 2 Third Claim for Relief, for malicious prosecution, and his Fourth 3 Claim for Relief, for conversion.1 Dkt. #24; see Dkt. #1-1. He 4 also seeks summary judgment on all four of Kleinfelder s Counter5 claims, which seek damages for conversion, breach of contract, 6 violation of Oregon s Uniform Trade Secrets Act, and defamation. 7 See Dkt. #23, Kleinfelder s Amended Answer and Counterclaims. 8 Kleinfelder seeks summary judgment on all of Gordon s claims 9 against it, or alternatively, partial summary judgment on all 10 claims as to which no genuine issues of material fact exist. 11 BACKGROUND FACTS 12 13 There are few undisputed facts. Kleinfelder is a nationally- 14 based science, architecture, and engineering consulting firm. Dkt. 15 #26, ECF p. 7 (citing Dkt. #29, Izen Decl. ¶ 2). In approximately 16 April a of 2008, Kleinfelder hired Gordon as Civil Design 17 Specialist, which required Gordon to perform civil site design and 18 plan development. Id. (citing Izen Decl. ¶ 4). According to 19 Gordon, one of the inducements for Kleinfelder to hire him was his 20 personal portfolio of CAD drawings that he could use in performing 21 his job. Dkt. #24-2, Gordon Decl. ¶ 2; Dkt. #41, Gordon Decl. 22 ( Gordon Decl. #2") ¶ 2. At the request of his then-supervisor, 23 Jay Beeks, Gordon put his CAD drawings onto the D drive on his 24 office computer. Id.; Gordon Decl. #2 ¶ 2. 25 26 1 Gordon also moved for summary judgment on his First Claim for Relief, for defamation, but he abandoned his motion for summary 28 judgment on this claim in his reply brief. See Dkt. #56, p. 2. 27 2 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 During his tenure at Kleinfelder, a significant amount of 2 Gordon s time was spent working on a wind power development project 3 (the EverPower Project ) for 4 EverPower Wind Holdings, Inc. one of Kleinfelder s clients, Dkt. #26, ECF p. 7 & n.1 (citing 5 Dkt. #27, Att. 1, Deposition of John Gordon ( Gordon Depo ), 6 p. 153). Beginning in January 2010, Peter Stroud, a Principal 7 Engineering Geologist for Kleinfelder, became Project Manager for 8 the EverPower Project, and served as Gordon s direct supervisor. 9 Id. (citing Dkt. #34, Stroud Decl. ¶ 3). The EverPower Project 10 involved potentially repurposing a logging tract into a wind farm. 11 Id. (citing Dkt. #30, Loftis Decl. ¶ 3). As part of Gordon s work 12 on the EverPower Project, he participated in a feasibility study to 13 assess what types of vehicles could traverse the existing roadways 14 at the EverPower Project site. Gordon spent two days at the site 15 obtaining information about culvert locations and the general 16 condition of culverts in the logging tract. 17 Depo. pp. 149, 155-56, 161). Id. (citing Gordon A Kleinfelder drafter, Taran Kratz, 18 accompanied Gordon to the site on the second day. Id. (citing 19 Gordon Depo. pp. 161, 171). Gordon recorded about 100 culvert 20 locations and on a GPS 21 handwritten notes. device, also recorded field data in Dkt. #26, ECF p. 9 (citing Stroud Decl. ¶ 4; 22 Gordon Depo. pp. 330-31). His intention was to transfer the data 23 into Kleinfelder s CAD system to generate maps and diagrams for use 24 in connection with the EverPower 25 pp. 157, 164; Gordon Decl. ¶ 5. Project. See Gordon Depo. According to Gordon, the EverPower 26 Project could not be completed without this data. 27 ¶ 5. 28 3 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT Gordon Decl. 1 On February 2, 2010, Abraham Izen, who at that time was 2 Kleinfelder s Global Director of Renewable Energy, and Stroud, 3 Gordon s supervisor, met with Gordon and terminated his employment. 4 Dkt. #26, ECF p. 8 (citing Izen Decl. ¶ 7). The parties dispute 5 the reason for Gordon s termination. 6 Kleinfelder claims Gordon was terminated due to poor work 7 product, poor attitude, uncooperative behavior, and unwillingness 8 to accept appropriate supervision. Dkt. #26, ECF p. 8 (citing Izen 9 Decl. ¶ 6; Loftis Decl. ¶ 6, Ex. A). Izen claims he informed 10 Gordon that he was being terminated for poor work performance and 11 behavior, and he gave Gordon a Performance Improvement and 12 Corrective Action form . . . that specified that Gordon was being 13 terminated based on his unsatisfactory work performance and the 14 fact that Gordon was uncooperative, disrespectful, and combative 15 with his supervisors. Id., ¶ 7. According to Izen, Gordon 16 refused to sign the form, writing Not true next to the reasons 17 for his termination. Id.; see Dkt. #27-1, ECF p. 70, Performance 18 Improvement and Corrective Action form dated 1/29/2010 (Gordon 19 Depo. Ex. 13). Under Reason for action, the form indicates, 20 Unsatisfactory Work Performance - work is not completed in 21 accordance with the standards set by the company or the require22 ments of the position. Dkt. #27-1, ECF p. 70. Under Facts and 23 Events, the form indicates, Per attached documentation, [Gordon] 24 has been uncooperative, disrespectful and combative with senior 25 Kleinfelder staff. 26 and supervision. He has also been resistant to accountability Id. Next to each of these items is a hand- 27 written notation, Not true. Id. 28 4 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 Gordon claims he was told he was terminated as part of a 2 reduction in force. 3 connection with On a Separation Report completed by Izen in Gordon s termination, under Reason 4 Separation, Izen noted, Layoff/Reduction in Force. 5 ¶ 8; Dkt. #29-1, Separation Report. for Izen Decl. In his Declaration, Izen 6 states he made that notation so that Gordon would not have to 7 disclose his performance-based termination to prospective 8 employers, and also because he believed it would help Gordon 9 receive unemployment benefits. 10 Izen Decl. ¶ 8. At the end of the termination meeting, Gordon was instructed 11 to arrange to meet with Stroud after regular business hours to 12 retrieve his personal belongings from his office. 13 p. 9. Dkt. #26, ECF According to Kleinfelder, as Gordon left the termination 14 meeting, he showed Stroud a GPS device, stating it contained 100 15 culvert locations from the EverPower Project that had not been 16 saved onto Kleinfelder s computer yet.2 17 ¶ 4; Gordon Depo. pp. 330-31) Id. (citing Stroud Decl. Gordon also mentioned that he had 18 his original field notes in the trunk of his car, if Kleinfelder 19 wanted them. No action was taken at that time to transfer the GPS 20 data or to retrieve Gordon s handwritten field notes. Gordon Decl. 21 ¶ 3; Gordon Decl. #2 ¶ 5. 22 23 24 25 26 27 28 2 It is not clear from the parties briefs and the depositions whether Gordon had possession of the GPS unit containing the culvert locations at the time of the termination meeting, or it was in his car, or it actually was at Kleinfelder s offices but the data points just had not been entered on Kleinfelder s computer system yet. See, e.g., Dkt. #26, ECF p. 9; Dkt. #27-1, Gordon Depo., pp. 330-31, 347-48, 350; Dkt. #28-1, Stroud s notes from meeting with Gordon on February 3, 2010; Dkt. #28-3, Officer Defrain s report stating Izen told her he verified the GPS was not taken by Gordon. 5 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 Gordon called Stroud around 5:00 p.m. on February 3, 2010, to 2 arrange to retrieve his personal belongings. 3 (citing Stroud Decl. ¶ 5). Dkt. #26, ECF p. 10 When Gordon arrived at the office, 4 Stroud accompanied him into his former office. 5 Depo. p. 342; Stroud Decl. ¶ 5). Id. (citing Gordon The parties have conflicting 6 versions of what occurred during and subsequent to this meeting. 7 Gordon claims that while he was in his office, he picked up a 8 piece of paper, previously retrieved from a recycling bin, that 9 contained a portion of an old map - a section of a larger map that 10 had already been filed of record in Lewis County, Washington. 11 Dkt. #54-1, p. 33 (Gordon Depo. Ex. 14). See Gordon claims he had 12 written personal telephone numbers and information relating to a 13 child support matter on the document, and the document contained no 14 proprietary or confidential information. Gordon Decl. ¶¶ 4, 8. 15 Stroud claims the document Gordon picked up was a large, folded 16 EverPower Project map belonging to Kleinfelder, 17 believed contained proprietary information. 18 (citing Stroud Decl. ¶ 5). which Stroud Dkt. #26, ECF p. 10 Stroud told Gordon he could not take 19 the map because it was Kleinfelder s property, but Gordon refused 20 to relinquish the document, stating he needed the personal phone 21 numbers written on it. 22 ¶ 5). Dkt. #26, ECF p. 10 (citing Stroud Decl. A brief scuffle ensued during which Stroud attempted to 23 prevent Gordon from leaving the office with the document, but 24 Gordon was able to evade Stroud s attempt and he left the office 25 with the document. Gordon Decl. ¶ 1. Gordon claims Stroud 26 assaulted him, and threatened him with further assault. 27 Gordon Decl. #2, ¶ 6. Id.; Gordon also claims he was not allowed to 28 take his personal CAD drawings, some text files, and gaming screen 6 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 shots that he had placed on his D drive, as well as a personal 2 address book. He claims these items belong to him, not to 3 Kleinfelder, and they have never been returned to him. Gordon 4 Decl. ¶¶ 1, 2; Gordon Decl. #2 ¶ 7. 5 In addition, Gordon claims that while he was retrieving his 6 personal items, he again mentioned to Stroud that his field notes 7 were in the trunk of his car, if Kleinfelder wanted them, but 8 again, no one requested the information. Gordon Decl. ¶ 6. 9 Subsequently, in a letter dated February 11, 2010, Gordon made a 10 formal offer, through his attorney, to deliver the handwritten 11 field notes to Kleinfelder; however, according to Gordon, 12 Kleinfelder never requested the notes until it served Gordon with 13 a request for production of documents in this case. 14 Id. Gordon claims he never took any proprietary or confidential 15 information or data from Kleinfelder s premises, and the scrap of 16 the map he took with him had no intrinsic or monetary value to 17 Kleinfelder. Gordon Decl. ¶¶ 4, 14. He further claims he has 18 never used, shared, disseminated, or benefitted from any proprie19 tary information or trade secrets of Kleinfelder s. Id. ¶ 15. 20 Gordon also claims that during his employment, Izen and other 21 Kleinfelder employees created a hostile work environment in an 22 attempt to dissuade Gordon from continuing to work at Kleinfelder. 23 Gordon Decl. ¶ 3; Gordon Decl. #2 ¶¶ 8, 9. Gordon claims these 24 actions included publicly insulting him, demeaning his manhood, 25 publicly describing him as a pussy, and systematically harassing 26 him. 27 Id. Kleinfelder claims that on February 2 and 3, 2010, Gordon 28 asked three Kleinfelder employees to copy some Kleinfelder computer 7 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 files for him, but all three of the employees refused. Dkt. #26, 2 ECF p. 9 (citing Gordon Depo. pp. 333-37; Dkt. #31, Steel Decl., 3 ¶ 4; Dkt. #33, Wells Decl. ¶ 4; Izen Decl. ¶ 15). Gordon claims he 4 was only attempting to retrieve his personal computer files, and 5 not any of Kleinfelder s project files. 6 Gordon Decl. #2 ¶¶ 2, 3. On February 3, 2010, Gordon called the Beaverton Police 7 Department, and reported that Stroud had assaulted him while he was 8 removing his belongings from his former office. 9 Decl. ¶ 3. Dkt. #28, DeFrain On February 4, 2010, after meeting with several 10 Kleinfelder employees, the police refused to pursue the assault 11 charge based on a lack of supporting evidence. Id. ¶ 4. During 12 these interviews, Izen told the police that Gordon had taken a 13 Kleinfelder map which 14 proprietary information. was believed to contain confidential, Izen also told police that Gordon had 15 contacted several Kleinfelder employees in an attempt to obtain 16 confidential Kleinfelder computer files. Id. ¶ 5. The investi- 17 gating officer told Izen that if a police report were filed, the 18 police would assume responsibility for returning Gordon s personal 19 property to him, and for retrieving Kleinfelder s property from 20 Gordon and returning it to the company. 21 Id. ¶ 6. Kleinfelder filed a police report, accusing Gordon of stealing 22 a map valued at $3,200 - a statement Gordon asserts Kleinfelder 23 knew was false at the time it was made. 24 #24-1, ECF p. 4. Id. ¶ 7 & Att. 2; Dkt. On February 4, 2010, Kleinfelder was arrested on 25 criminal charges arising from the police report. Gordon Decl. ¶ 9; 26 DeFrain Decl. ¶¶ 10-11. 27 transported to the He was taken into custody, handcuffed, Washington County Jail, incarcerated, and 28 formally charged. Id. After further investigation, the Washington 8 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 County District Attorney declined to prosecute Gordon, and the 2 criminal charge was terminated. Gordon Decl. ¶ 10. Gordon claims 3 he incurred $2,500 in attorney s fees in connection with the 4 criminal matter. 5 Id. After Gordon s termination, he contacted David McClain at 6 EverPower, seeking employment with EverPower. Gordon Decl. #2 ¶ 4; 7 Dkt. #32, McClain Decl. ¶ 4. Gordon also offered to deliver his 8 field data regarding the EverPower Project directly to EverPower, 9 but McClain declined that request and told Gordon he should return 10 the field data to Kleinfelder. 11 ¶ 4. Gordon Decl. ¶ 8; McClain Decl. Gordon claims he was told by McClain that Kleinfelder was 12 asserting he had been terminated for cause, he was incompetent to 13 perform the duties and responsibilities of his position as an 14 engineer, and he had committed the crime of theft. McClain states 15 he was never told Gordon was not competent to perform the duties 16 and responsibilities of his position, that he had been or was going 17 to be arrested, or that he had been stealing valuable information. 18 McClain Decl. ¶ 6; see Dkt. #46, McClain Decl. ( McClain Decl. #2 ) 19 ¶ 4. Kleinfelder claims the only representation made was that 20 Gordon had been let go, which was true. Dkt. #26, ECF p. 14; see 21 McClain Decl. ¶ 5. 22 McClain acknowledges telling Gordon that Loftis had told him 23 Gordon had been terminated for cause, although McClain cannot 24 recall if that actually is what Loftis told him. 25 ¶ 7. McClain Decl. According to McClain, Loftis called him to advise him that 26 Gordon no longer worked at Kleinfelder. McClain states Loftis also 27 told him Gordon may have removed information from Kleinfelder 28 9 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 offices relating to the EverPower Project, and that the police 2 might be in contact with EverPower. Id. ¶ 5. 3 THE PARTIES CLAIMS IN THIS LAWSUIT 4 5 In his First Claim for Relief, Gordon claims Kleinfelder 6 defamed him, damaging his ability to obtain employment, and 7 rendering him sick, sore, nervous and upset. In his Second Claim 8 for Relief, Gordon claims Kleinfelder s actions caused him to be 9 deprived of his liberty and falsely imprisoned. In his Third 10 Claim for Relief, Gordon claims Kleinfelder s actions were wanton 11 and malicious, intending that [he would] be falsely accused and 12 prosecuted. In Gordon s Fourth Claim for Relief, he claims 13 Kleinfelder converted his personal property. 14 for Relief, Gordon claims 15 emotional distress on him. 16 Kleinfelder In his Fifth Claim intentionally inflicted See Dkt. #1-1. For its Counterclaims, Kleinfelder asserts Gordon converted 17 its proprietary information for his own purposes; he breached a 18 Confidentiality and Non-Solicitation Agreement entered into between 19 the parties as part of Gordon s employment; he removed a project 20 map containing trade secrets from Kleinfelder s offices, in 21 violation of Oregon s Uniform Trade Secrets Act; and he defamed 22 Kleinfelder to EverPower. See Dkt. #23. 23 SUMMARY JUDGMENT STANDARDS 24 25 Summary judgment should be granted if the movant shows that 26 there is no genuine dispute as to any material fact and the movant 27 is entitled to judgment as a matter of law. 28 56(c)(2). Fed. R. Civ. P. In considering a motion for summary judgment, the court 10 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 must not weigh the evidence or determine the truth of the matter 2 but only determine whether there is a genuine issue for trial. 3 Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002) 4 (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th 5 Cir. 1996)). 6 The Ninth Circuit Court of Appeals has described the shifting 7 burden of proof governing motions for summary judgment as follows: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party s case. Id. at 325, 106 S. Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S. Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The non-moving party must do more than show there is some metaphysical doubt as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 528 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party s favor. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In determining whether a jury could reasonably render a verdict in the non-moving party s favor, all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct. 2505. 25 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th 26 Cir. 2010). 27 28 11 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT DEFAMATION 1 2 Kleinfelder moves for summary judgment on Gordon s defamation 3 claim. Gordon moves for summary judgment on Kleinfelder s defama- 4 tion counterclaim. Gordon also moved for summary judgment on his 5 own defamation claim, but he conceded in his reply brief that 6 there is a triable issue of fact as to the motivation of defendant 7 in speaking with David McClain at Everpower, and the issue of 8 qualified privilege which relates to the motivation issue, as one 9 which needs to be considered by a jury. 10 Dkt. #56, p. 2. To prove defamation under Oregon law, 11 a plaintiff must show that the defendant made a defamatory statement about the plaintiff to a third person. Wallulis v. Dymowski, 323 Or. 337, 342-43, 918 P.2d 755[, 758] (1996). A defamatory statement is a false statement that would subject the plaintiff to hatred, contempt or ridicule . . . [or] tend to diminish the esteem, respect, goodwill or confidence in which [the plaintiff] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the plaintiff]. Farnsworth v. Hyde, 266 Or. 236, 238, 512 P.2d 1003[, 1004] (1973). . . . 12 13 14 15 16 17 18 Tubra v. Cooke, 233 Or. App. 339, 349, 225 P.3d 862, 867 (2010). 19 Oregon law recognizes two privilege defenses to a defamation 20 claim: a qualified privilege and an absolute privilege. An 21 absolute privilege is a complete bar to a plaintiff s claim. 22 However, absolute privilege applies only in a very narrow range of 23 circumstances, none of which is present here. A qualified 24 privilege, on the other hand, generally exists to protect three 25 kinds of statements: (1) those made to protect the defendant s 26 interests; (2) those made to protect the plaintiff s employer s 27 interests; or (3) those made on a subject of mutual concern to the 28 defendant and the persons to whom the statement was made. 12 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT DeLong 1 v. Yu Enterprises, Inc., 334 Or. 166, 170, 47 P.3d 8, 10 (2002) 2 (citing Wallulis v. Dymowski, 323 Or. 337, 350, 918 P.2d 755, 762 3 (1996), in turn citing Wattenburg v. United Medical Lab., 269 Or. 4 377, 380, 525 P.2d 113, 114 (1974)). To overcome a qualified 5 privilege, a plaintiff must prove that a defendant acted with 6 actual malice[.] Christianson v. State, 239 Or. App. 451, 459, 7 244 P.3d 904, 908 (2010) (quoting DeLong, 334 Or. at 170, 47 P.3d 8 at 10). It must be borne in mind . . . that it is for the court, 9 and not the jury, to decide where the line is to be drawn between 10 a protected and an unprotected defamatory publication. Post v. 11 Oregonian Pub. Co., 268 Or. 214, 222, 519 P.2d 1258, 1261 (1974). 12 The court begins with a determination as to whether Gordon s 13 allegations potentially state a claim for defamation. 14 claims that after his termination, Kleinfelder s Gordon employees 15 informed David McLain [sic] at EverPower that [Gordon] had been 16 terminated for cause and had been arrested for stealing from 17 Kleinfelder . . . [and] that [he] was not competent to perform the 18 duties and responsibilities of [his] position as an engineer[.] 19 Gordon Decl. ¶¶ 11, 13. Gordon claims these statements were false, 20 Kleinfelder knew they were false, and the statements engendered a 21 negative image of him that prevented him from finding suitable 22 employment. In his reply brief, Gordon characterizes his defama- 23 tion claim differently, asserting that the basis of the claim is 24 the false statements by [Kleinfelder] that [Gordon] had been 25 discharged for cause, imputing both an unfitness for his profession 26 and lack of integrity in the discharge of [his] employment and an 27 inability or incompetency to pursue his trade or profession as a 28 civil engineer, together with the indication that [Gordon] had 13 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 removed information from the Kleinfelder offices relating to the 2 Everpower project, implying the commission of a theft. Dkt. #40, 3 p. 2. 4 Thus, we have two allegedly defamatory statements: (1) that 5 Gordon was terminated for cause, and (2) that he removed, impliedly 6 or expressly without authorization, information from Kleinfelder s 7 offices relating to the EverPower project. Both of these alleged 8 statements are enmeshed with factual disputes. With regard to the 9 first, Gordon claims he was terminated due to a reduction in force, 10 pointing to the form he was given that lists reduction in force as 11 the reason for his termination. Kleinfelder claims Gordon was 12 terminated for cause, pointing to the termination forms that cite 13 performance-related reasons for the termination. The determination 14 as to why Gordon actually was fired depends largely on the credi15 bility of the witnesses - a determination distinctly within the 16 jury s purview. 17 However, Kleinfelder argues even if it communicated to 18 EverPower that Gordon had been fired for cause, Gordon s defamation 19 claim fails for several reasons. First, Kleinfelder claims such a 20 representation would have been true, because Gordon was fired for 21 cause. As noted above, the reason for Gordon s termination is a 22 disputed question of fact that precludes summary judgment on that 23 basis. Kleinfelder also argues such a representation, if made, was 24 privileged as a matter of law. Oregon law clearly recognizes that 25 a former employer has a qualified privilege to make defamatory 26 communication about the character or conduct of his employees to 27 present or prospective employers. Walsh v. Consolidated Freight- 28 ways, Inc., 278 Or. 347, 355, 563 P.2d 1205, 1210 (1977) (citing, 14 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 inter alia, 3 Restatement of Torts 247, § 595 & comment (h)). The 2 court finds that here, Kleinfelder s statements to EverPower - its 3 existing client on whose project Gordon had been working prior to 4 his termination - regarding the reason for Gordon s termination 5 were privileged. The burden of proving Kleinfelder abused the 6 qualified privilege rests upon Gordon. 7 563 P.2d at 1211. 8 with malice. 9 See Walsh, 278 Or. at 356, To do so, Gordon must prove Kleinfelder acted Christianson, supra. The qualified privilege of a former employer to defame a 10 former employee regarding the employee s character or conduct is a 11 shield that protects an employer from good faith communications to 12 a present or prospective employer; it is not a sword that allows 13 the former employer to knowingly lie. If the jury believes Gordon 14 was discharged due to a reduction in force, rather than for cause, 15 then the jury could conclude Loftis knowingly lied to McClain for 16 the purpose of damaging Gordon s reputation. Thus, the question of 17 malice also is fraught with factual disputes, precluding summary 18 judgment for Kleinfelder on Gordon s defamation claim. 19 As for the statement that Gordon had removed information from 20 Kleinfelder s offices relating to the EverPower Project, the 21 evidence indicates Loftis, Kleinfelder s Vice President and Global 22 Director of Renewable Energy, contacted McClain at EverPower to 23 tell him Gordon had been terminated. 24 Decl. ¶ 5. Loftis Decl. ¶ 8; McClain According to McClain, Loftis told him that he might be 25 contacted by the police because Gordon had removed information 26 relating to the EverPower Project from Kleinfelder s offices. Id. 27 McClain responded that he already had been contacted by Gordon, who 28 stated he was no longer working at Kleinfelder, but he was avail15 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 able to work directly for EverPower to finish 2 Project. Loftis Decl. ¶ 9; McClain Decl. ¶ 5. the EverPower Gordon told McClain 3 he had notes that would assist EverPower in completing the project, 4 and McClain told Gordon to return whatever EverPower information he 5 had to Kleinfelder. 6 McClain Decl. ¶ 4. As with Loftis s statement regarding the reason for Gordon s 7 termination, Loftis was passing along information to its client, 8 EverPower, that was on a subject of mutual concern to EverPower and 9 Kleinfelder. The statement, therefore, could be privileged - if it 10 was not made maliciously. Regardless of the reason for Gordon s 11 termination, what was the motivation for telling McClain that 12 Gordon had stolen documents? It is disputed that Gordon took 13 anything of value from Kleinfelder s offices. 14 field notes, the current record raises With regard to the the issue of whether 15 Kleinfelder had abandoned any claim to them, or at least had 16 forgotten about them until this litigation was underway. Even 17 after McClain told Loftis that Gordon had offered to give EverPower 18 the field notes, no one from Kleinfelder contacted Gordon to 19 request the field notes until they were requested during discovery 20 in this case. On these facts, a jury could conclude that 21 Kleinfelder s only motivation for telling McClain that Gordon had 22 stolen documents from Kleinfelder was malicious, intended to damage 23 Gordon s reputation and chill his attempts to gain employment. Too 24 many material factual 25 deciding this claim. issues exist to prevent the jury from Thus, Kleinfelder s motion for summary 26 judgment is denied with regard to Gordon s defamation claim, as 27 that claim relates to Kleinfelder s statements that Gordon was 28 fired for cause, and that Gordon had taken information relating 16 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 to the EverPower Project from Kleinfelder s offices and EverPower 2 might be contacted by the police. 3 Gordon makes another assertion of defamation in connection 4 with Kleinfelder s police report alleging Gordon had stolen a 5 project map with a value of $3,200. Significant factual questions 6 exist regarding what Gordon actually took with him, its value, and 7 Kleinfelder s motivation for filing the police report. Resolution 8 of these questions will affect the jury s decision as to whether 9 Izen acted maliciously in filing the police report. See DeLong, 10 334 Or. at 173-74, 47 P.3d at 12 (citizens statements to police 11 officers generally are subject to a qualified privilege, receiving 12 protection only if they were made in good faith, to discourage an 13 abuse of the privilege ; citing Van Vechten Veeder, Absolute 14 Immunity in Defamation, 9 Colum. L. Rev. 463, 480 (1909)). 15 Therefore, Kleinfelder s motion for summary judgment on Gordon s 16 defamation claim with regard to the police report is denied. 17 Turning to Kleinfelder s claim for defamation, the company 18 alleges that subsequent to his termination, Gordon falsely 19 informed Everpower that Kleinfelder had been overcharging Everpower 20 for work. Dkt. #23, p. 8, ¶ 9. In Gordon s deposition, he 21 testified he explained to David McClain that . . . Kleinfelder was 22 planning on trying to overcharge them for work that was already 23 included in the scope. . . . 24 p. 299). Dkt. #43-1, p. 16 (Gordon Depo. He also told McClain that Kleinfelder was planning on 25 charging [EverPower] for stuff, for items that are already included 26 in the budget and [he] told them they had burned the budget by 27 bringing in Paul Fisher. Id., p. 17 (Gordon Depo. p. 300). 28 Gordon told EverPower that Kleinfelder had burned the budget, and 17 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 was looking to charge EverPower more money for work that had 2 already been paid for. 3 Id., p. 19 (Gordon Depo. p. 306). Gordon argues these statements were true. It is axiomatic 4 that truth is a complete defense in a defamation case. Bahr v. 5 Statesman Journal Co., 51 Or. App. 177, 180, 624 P.2d 664, 666 6 (1981). Kleinfelder disputes the truth of Gordon s statements. 7 However, neither party has offered any evidence beyond these bald 8 assertions on this issue. As a result, the current record is 9 insufficient for the court to grant or deny summary judgment on 10 this issue, and Gordon s motion for summary judgment on 11 Kleinfelder s Fourth Counterclaim is denied. 12 MALICIOUS PROSECUTION 13 14 The elements of a malicious prosecution claim under Oregon law 15 are as follows: 16 17 18 19 (1) the institution or continuation of the original criminal proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in the plaintiff s favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceeding; and (6) injury or damage because of the prosecution. 20 21 Blandino v. Fischel, 179 Or. App. 185, 191, 39 P.3d 258, 261 (2002) 22 (quoting Rose (Betty) v. Whitbeck, 277 Or. 791, 795, 562 P.2d 188, 23 190, mod. on other grounds 278 Or. 463, 564 P.2d 671 (1977)). 24 Thus, to prevail on his claim for malicious prosecution, 25 Gordon must prove: (1) Kleinfelder instituted a criminal proceeding 26 against him; (2) the proceeding terminated in Gordon s favor; (3) 27 Kleinfelder did not have probable cause to institute the 28 proceeding; and (4) Kleinfelder acted with malice; i.e., a primary 18 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 purpose other than that of bringing [Gordon] to justice. Ledford 2 v. Gutoski, 121 Or. App. 226, 230, 855 P.2d 196, 198 (1993) (citing 3 Rogers v. Hill, 281 Or. 491, 497, 576 P.2d 328, 331-32 (1978); 4 Fleet v. May Dept. Stores, Inc., 262 Or. 592, 601, 500 P.2d 1054, 5 1059 (1972)). 6 In the context of a malicious prosecution claim, probable 7 cause refers to the subjective and objectively reasonable belief 8 that the defendant committed a crime. Blandino, 179 Or. App. at 9 191, 39 P.3d at 261 (citation omitted). The question of whether 10 Kleinfelder had probable cause to institute criminal proceedings 11 against Gordon is one of law. Fleet v. May Dept. Stores, Inc., 262 12 Or. 592, 601, 500 P.2d 1054, 1059 (1972) (citations omitted). 13 However, [w]here the facts under which the defendant acted are in 14 dispute, it is the function of the jury, not the court, to resolve 15 the dispute. Id. With regard to the question of malice, if the 16 facts surrounding the probable cause issue are in dispute, the jury 17 is entitled 18 malicious. to Id. consider whether the defendant s conduct was Cf. Gustafson v. Payless Drug Stores Northwest, 19 Inc., 269 Or. 354, 356-59, 525 P.2d 118, 120-21 (1974) (observing 20 that instructing on the issue of probable cause is very difficult 21 when the jury can find a number of different fact combinations, 22 and discussing possible procedures for trial). 23 Here, the facts are in dispute. Gordon claims Kleinfelder 24 knew he had taken nothing of value and no proprietary information. 25 Kleinfelder claims Izen believed Gordon had taken a proprietary 26 project map that would cost over $3,200 to recreate, and he 27 therefore had probable cause to file the police report. The jury 28 must resolve the factual dispute before the court can make a 19 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 determination as to probable cause. Therefore, both parties 2 motions for summary judgment on Gordon s malicious prosecution 3 claim are denied. 4 FALSE IMPRISONMENT 5 6 Gordon claims Kleinfelder caused his false imprisonment on two 7 separate occasions. The first occurred when Stroud allegedly 8 prevented Gordon from leaving his former office. 9 occurred when Gordon was arrested based on The second incomplete and 10 inaccurate information intentionally supplied to the Beaverton 11 Police Department by Kleinfelder. 12 Dkt. #40, p. 8. The Restatement (Second) of Torts, upon which the Oregon 13 Supreme Court has relied in false imprisonment cases, see, e.g., 14 Pearson v. Galvin, 253 Or. 331, 454 P.2d 638 (1969), provides: An 15 actor is subject to liability to another for false imprisonment if 16 (1) he acts intending to confine the other or a third person within 17 boundaries fixed by the actor, and (b) his act directly or 18 indirectly results in such a confinement of the other, and (c) the 19 other is conscious of the confinement 20 Restatement (Second) Torts § 35. or is harmed by it. The defendant must actually 21 confine the plaintiff, unlawfully restraining the plaintiff against 22 his will. Stone v. Finnerty, 182 Or. App. 452, 458, 50 P.3d 1179, 23 1184 (2002) (citations omitted). However, no particular length of 24 time is required to constitute false imprisonment; [t]he restraint 25 need not be for more than a brief time. Lukas v. J.C. Penney Co., 26 233 Or. 345, 353, 378 P.2d 717, 720 (1963) (citing Restatement 27 (Torts) § 35). 28 20 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 Taking Gordon s allegations as true for purposes of 2 Kleinfelder s summary judgment motion, Gordon has stated a claim 3 for false imprisonment in connection with Stroud s alleged actions 4 in preventing Gordon from leaving his former office. It is for the 5 jury to determine which version of the events - Gordon s or 6 Stroud s - to believe. See, e.g., State v. Hyde, 28 Or. App. 809, 7 813, 561 P.2d 659, 662 (1977) ( [I]t is for the jury, not the 8 court, to resolve conflicting evidence. ); see also, e.g., State v. 9 Guy, 229 Or. App. 611, 616, 212 P.3d 1265, 1268 (2009) ( It is well 10 established in Oregon that the determination of a witness s 11 credibility is the sole province of the trier of fact. ) (citations 12 omitted). Kleinfelder s motion for summary judgment is, therefore, 13 denied as to Gordon s false imprisonment claim as it relates to the 14 events that occurred in Gordon s former office. 15 Considering Gordon s claim relating to his arrest, the 16 Restatement provides, One who instigates or participates in the 17 unlawful confinement of another is subject to liability to the 18 other for false imprisonment. 19 Restatement (Second) Torts § 45A. In Pearson, the court considered what is necessary to make out 20 a substantive case of instigation. The court relied on a comment 21 to Restatement § 45A, which provides, in pertinent 22 follows: 23 24 25 26 27 Instigation consists of words or acts which direct, request, invite or encourage the false imprisonment itself. In the case of an arrest, it is the equivalent, in words or conduct, of Officer, arrest that man! It is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be 28 21 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT part, as 1 done about any arrest, without persuading or influencing them. 2 3 Pearson, 253 Or. at 335, 454 P.2d at 640 (quoting Restatement 4 (Second) Torts § 45A, comment c). Thus, to prevail on his claim 5 for false arrest, Gordon must show that Kleinfelder participated 6 by taking an active part in bringing about [his] arrest. Pearson 7 v. Galvin, 253 Or. 331, 337, 454 P.2d 638, 641 (1969). 8 Ordinarily, the filing of a police report alleging that a 9 crime has been committed would not be enough to hold Kleinfelder 10 liable for instigating Gordon s arrest and subjecting him to 11 false imprisonment. Oregon follows the widely accepted principle 12 that a person is not liable for false arrest if he or she merely 13 lays facts before a law enforcement or judicial officer who makes 14 the arrest on 15 discretion. the basis of the officer s own judgment and Harrell v. Costco, No. 08-cv-3092-PA, 2010 WL 16 331773, at *6 (D. Or. Jan. 27, 2010) (Panner, J.) (quoting Hiber v. 17 Creditors Coll. Serv., 15 Or. App. 408, 418 n.13, 961 P.2d 898, 904 18 n.13 (1998)). 19 However, if Kleinfelder acted maliciously, with some improper 20 purpose or motive, then Kleinfelder would be liable for instigating 21 Gordon s arrest. See, e.g., Brown v. Far West Fed. Sav. & Loan 22 Ass n, 66 Or. App. 387, 393, 674 P.2d 1183, 1186 (1984) ( public 23 policy will protect the victim of a crime who, in good faith and 24 without malice, identifies another as the perpetrator of the crime, 25 although that identification may, in fact, be mistaken. Emphasis 26 added.) (quoting Shires v. Cobb, 271 Or. 769, 772, 534 P.2d 188, 27 189 (1975)); cf. Hiber v. Creditors Coll. Serv. of Lincoln County, 28 Inc., 154 Or. App. 408, 414-15, 961 22 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT P.2d 898, 902 (1998) 1 ( Consistent with principles of joint and several liability for 2 torts generally, liability for false imprisonment extends not only 3 to the person who directly confines a plaintiff, but equally to one 4 who instigates the confinement by directing, requesting, inviting 5 or encouraging it. ) (citing Pearson v. Galvin, 253 Or. 331, 3356 37, 454 P.2d 638, 640-41 (1969)). This is a different standard 7 from acting erroneously but in good faith. 8 Again, the determination will come down to the credibility of 9 the witnesses regarding Kleinfelder s knowledge and motivation in 10 filing the police report claiming Gordon had stolen a map valued in 11 excess of $3,200. Kleinfelder s motion for summary judgment on 12 this issue is, therefore, denied. 13 CONVERSION 14 15 The parties each assert a conversion claim, Gordon for 16 personal property left in his office and on his office computer; 17 Kleinfelder for the project map it claims Gordon took from his 18 office, and the field notes and GPS data relating to the EverPower 19 Project. To state a claim for conversion under Oregon law, a 20 party must establish the intentional exercise of dominion or 21 control over a chattel that so seriously interferes with the right 22 of another to control it that the actor may justly be required to 23 pay the full value of the chattel. Mossberg. v. Univ. of Oregon, 24 240 Or. App. 490, 494, 247 P.3d 331, 334 (2011) (quoting Emmert v. 25 No Problem Harry, Inc., 222 Or. App. 151, 159-60, 192 P.3d 844, 850 26 (2008)). 27 Gordon claims Kleinfelder converted his personal CAD drawings, 28 certain text documents, and gaming screen shots that were on his 23 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 office computer, as well as his personal address book. Kleinfelder 2 argues Gordon cannot show that the company acted with the intent to 3 control his address book, and Gordon had no right to control the 4 data on his work 5 Kleinfelder[.] computer, which indisputably belonged to Dkt. #26, p. 20 (citing Naas v. Lucas, 86 Or. App. 6 406, 409, 739 P.2d 1051, 1052 (1987) ( Bad faith is not required; 7 the gravamen of the tort is the defendant s intent to exercise 8 control over 9 rights. ). the chattel inconsistently with the plaintiff s Kleinfelder asserts it has not been able to locate 10 Gordon s address book, and all of Gordon s personal property that 11 was located on Kleinfelder s premises was boxed up and given to the 12 Beaverton Police for delivery to Gordon. With regard to the 13 computer files at issue, Kleinfelder argues Gordon never owned 14 those files, which 15 Kleinfelder s use. constituted work product created for Kleinfelder points to its computer policy, 16 which was given to [Gordon] as part of his hire packet, in arguing 17 none of the data on Gordon s computer belonged to him. See Dkt. 18 #26, p. 21 (citing Dkt. #27-1, p. 77 - Ex. 21 to Gordon s Depo). 19 The company policy to which Kleinfelder refers is entitled 20 Use of Kleinfelder Business Equipment and Communication Systems. 21 In section 4.2, Use of Electronic Media, the policy states, in 22 pertinent part: 23 24 25 26 27 28 Kleinfelder provides equipment and systems to all employees to assist in performance of their job. These systems include, but are not limited to telephone, fax, e-mail, voice mail, computers, LAN/WAN, Internet access, Oracle, software, printers, and copiers. These systems are sole property of Kleinfelder, and access to them is provided for business purposes. . . . Employees have no privacy rights with regard to any information resident on Kleinfelder s computers and/or computer 24 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 networks. Kleinfelder reserves the right to access, intercept, review, and disclose the contents of all computer files and e-mail messages. 2 3 . . . 4 1. All messages, data, pictures, text, etc. composed upon, or sent on these systems are the property of Kleinfelder. They are not the private property of any employee. 5 6 7 Dkt. #27-1, p. 77 (emphasis added). 8 Kleinfelder further asserts that because all information 9 found on the computer belonged to Kleinfelder, subsequent to 10 [Gordon s] termination, Kleinfelder removed the information it 11 needed from [the] computer and then, pursuant to company policy, 12 reformatted the computer to be used by another employee. Any 13 information left on the work computer would have been erased. 14 Dkt. #26, p. 21 n.8 (citing Dkt. #Dkt. #29, Izen Decl. ¶ 23). 15 Further, Izen states that he instructed Kleinfelder s IT department 16 to work with Gordon in retrieving his personal files from his work 17 computer, and [he] remember[s] that the IT department burned 18 Gordon s personal files onto a DVD for him. Dkt. #29, ¶ 23. Izen 19 asserts Kleinfelder did not intentionally keep any of Gordon s 20 personal computer files. 21 Id. The Use of Electronic Media clause refers to information 22 composed upon, or sent on Kleinfelder s systems; the policy is 23 silent on the issue of an employee s personal computer files that 24 are stored on the company s computers. Gordon claims his 25 supervisor at the time he was hired asked him to download his 26 portfolio of CAD files onto the D drive of his work computer; he 27 complied; and those files have never been returned to him. He 28 further maintains that he left a personal address book in his 25 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 office, and Kleinfelder has refused to return the book to him. 2 Like many of the other issues in this case, resolution of this 3 claim comes down to a determination of whose version of the facts 4 is to be believed. Gordon has offered evidence sufficient to 5 create a genuine issue of fact for trial. The parties motions for 6 summary judgment are denied as to Gordon s conversion claim. 7 As for Kleinfelder s conversion counterclaim, Kleinfelder 8 claims Gordon converted its proprietary information for his own 9 purposes, including the project map Kleinfelder has accused Gordon 10 of stealing, and the field notes and GPS data in Gordon s 11 possession at the time of his termination. Gordon has offered 12 evidence to refute Kleinfelder s claim, including evidence that he 13 tendered the field notes to Kleinfelder both informally and by 14 letter from his attorney, and his repeated assertions that the 15 portion of a map he took from his former office contained no 16 proprietary data and had no intrinsic value. Indeed, in Gordon s 17 declaration, he identifies Dkt. #54-1, p. 33 (Gordon Depo. Ex. 14) 18 as that map. Kleinfelder has not identified any proprietary 19 information on that document, but seems to question whether the 20 exhibit is, in fact, what Gordon took with him. Again, the court 21 is faced with varying issues of material fact that must be decided 22 by the jury at trial. Gordon s motion for summary judgment on 23 Kleinfelder s conversion counterclaim claim is denied. 24 25 26 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Gordon alleges that the actions of three Kleinfelder employees 27 - Amie Weitz, Kellie Stratton, and Abe Izen - created a hostile 28 work environment that intentionally inflicted emotional distress on 26 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 Gordon, rendering him sick, sore, nervous and upset, and 2 interfer[ing] with his ability to seek and maintain gainful 3 employment[.] 4 p. 242). Dkt. #1-1, ¶ 13; Dkt. #27-1, p. 16 (Gordon Depo, Regarding Weitz, Gordon testified that she stormed 5 through the office trying to get people to say things about [him], 6 trying to get people to turn against [him]. It was her mission. 7 Dkt. #27-1, pp. 16-17 (Gordon Depo. pp. 242-43). He stated Weitz 8 was extremely rude to him, and she instigated arguments at every 9 opportunity. Id., p. 17 (Gordon Depo. p. 243). She had gossipy 10 type conversations with other employees, which he found very 11 upsetting. Id., p. 18 (Gordon Depo. p. 244). 12 claims Gordon Izen demeaned him and 13 comments to him that were overheard by others. made sexually-based He claims Izen made 14 statements about taking Gordon s man card on several occasions, 15 he called Gordon a pussy in front of other employees, and he 16 talked to Gordon like he was a five-year-old. See id., pp. 21-25 17 (Gordon Depo. pp. 261-63, 267, 281). 18 No testimony was elicited from Gordon during his deposition to 19 elaborate on his claim that Stratton contributed to the hostile 20 work environment. 21 In Mayorga v. Costco Wholesale Corp., the Ninth Circuit Court 22 of Appeals, applying Oregon law, observed: 23 24 25 26 27 To succeed on a claim for intentional infliction of emotional distress, a plaintiff must prove: (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant s acts were the cause of the plaintiff s severe emotional distress, and (3) the defendant s acts constituted an extraordinary transgression of the bounds of socially tolerable conduct. McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841, 849 28 27 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 (1995) (internal quotation marks and citation omitted). 2 3 Mayorga, 302 F. App x 748, 749 (9th Cir. 2008); accord Grimmett v. 4 Knife River Corp.-Northwest, No. CV-10-241, slip op., 2011 WL 5 841149 (D. Or. Mar. 8, 2011) (Hubel, MJ); see House v. Hicks, 218 6 Or. App. 348, 357-58, 179 P.3d 730, 736 (2008) (IIED plaintiff must 7 prove defendants intended to cause plaintiff severe emotional 8 distress or knew with substantial certainty that their conduct 9 would cause such distress ; their conduct was outrageous . . . 10 i.e., conduct extraordinarily beyond the bounds of socially 11 tolerable behavior ; and their conduct in fact caused plaintiff 12 severe emotional distress ) (citing McGanty v. Staudenraus, 321 Or. 13 532, 543, 550, 901 P.2d 841 (1995)). A trial court plays a 14 gatekeeper role in evaluating the viability of an IIED claim by 15 assessing the allegedly tortious conduct to determine whether it 16 goes beyond the farthest reaches of socially tolerable behavior and 17 creates a jury question on liability. Ballard v. Tri-County 18 Metro. Transp. Dist. of Oregon, No. 09-873, slip op., 2011 WL 19 1337090 (D. Or. Apr. 7, 2011) (Papak, MJ) (quoting House, 218 Or. 20 App. at 358, 179 P.3d at 736; and citing Pakos v. Clark, 253 Or. 21 113, 453 P.2d 682, 691 (1969) ( It was for the trial court to 22 determine, in the first instance, whether the defendants conduct 23 may reasonably be regarded as so extreme and outrageous as to 24 permit recovery. ) ). 25 For conduct to be sufficiently extreme and outrageous to 26 support a claim for IIED, the conduct must be so outrageous in 27 character, and so extreme in degree, as to go beyond all possible 28 bounds of decency, and to be regarded as atrocious, and utterly 28 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 intolerable in a civilized community. House, 218 Or. App. at 2 358-60, 179 P.3d at 737-39 (quoting Restatement (Second) of Torts, 3 § 46, comment d). The determination of whether conduct rises to 4 this level is a fact-specific inquiry, to be considered on a case5 by-case basis, based on the totality of the circumstances. Id. 6 However, although the inquiry is fact-specific, the question of 7 whether the defendant s conduct exceeded the farthest reaches of 8 socially tolerable behavior is, initially, a question of law. 9 Houston v. County of Wash., 2008 WL 474380, at *15 (D. Or. Feb. 19, 10 2008) (citation omitted). 11 On summary judgment, then, the court must assess whether, if 12 Kleinfelder s conduct as alleged by Gordon is proven at trial, that 13 conduct is sufficiently beyond the pale to state an IIED claim. 14 The court finds it is not. Taking Gordon s allegations as true, 15 the conduct of Kleinfelder s employees, while objectionable and 16 likely upsetting, did not rise to the level of the extreme and 17 outrageous conduct required to sustain an IIED claim. 18 observed on previous occasions: 19 20 21 22 23 24 25 26 27 Conduct that is merely rude, boorish, tyrannical, churlish, and mean does not support an IIED claim. Patton v. J.C. Penney Co., 301 Or. 117, 124, 719 P.2d 854, 858 (1986). [T]he tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life even when the intentional conduct causing plaintiff s distress otherwise qualifies for liability. Hall v. The May Dep t Stores Co., 292 Or. 131, 135, 637 P.2d 126, 129 (1981); see also Watte v. Maeyens, 112 Or. App. 234, 237, 828 P.2d 479, 480-81 (1992) (no claim where employer threw a tantrum, screamed and yelled at his employees, accused them of being liars and saboteurs, then fired them all); Madani v. Kendall Ford, Inc., 312 Or. 198, 205-06, 818 28 29 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT As I have 1 P.2d 930, 934 (1991) (no claim where employee terminated for refusing to pull down pants). 2 3 Wolf v. Ron Wilson Center for Effective Living, Inc., slip op., 4 2010 WL 4638888, at *5 (D. Or. Nov. 8, 2010). 5 Kleinfelder s motion for summary judgment on this claim is 6 granted. 7 BREACH OF CONTRACT 8 9 Gordon moves for summary judgment on Kleinfelder s counter- 10 claim for breach of contract. Kleinfelder claims Gordon breached 11 the company s Confidentiality and Non-Solicitation Agreement (the 12 Agreement ) by retaining Kleinfelder s confidential information 13 for his benefit or in a manner adverse to Kleinfelder s interests, 14 and by disparaging Kleinfelder and its employees. See Dkt. #3, 15 p. 9, ¶¶ 14-17; see Dkt. #43-1, pp. 60-63 (Gordon Depo. Ex. 4, 16 Employee Covenants Agreement, Confidentiality and Non-Solicita17 tion ). In Gordon s motion for summary judgment on this claim, he 18 states only that his Affidavit establishes that he made no such 19 breach, and [Kleinfelder] cannot contradict that assertion. Dkt. 20 #24-1, p. 5. 21 Gordon signed an Employee Covenants Agreement - Confiden- 22 tiality and Non-solicitation on April 15, 2008. 23 60-63 (the Agreement ). Dkt. #43-1, pp. The Confidentiality covenants are 24 applicable to the period of time an employee is working for 25 Kleinfelder, and for two years thereafter. The covenants require 26 employees to use Confidential Information only in the course of 27 performing their duties for Kleinfelder, and not for their 28 personal benefit, for the benefit of any other third party, or in 30 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 any manner adverse to the interests of [Kleinfelder], its clients 2 or its or their affiliates[.] 3 required to return all Id., ¶ 1(a). materials Employees also are containing or relating to 4 Confidential Information to [Kleinfelder] when his/her employment 5 relationship 6 demand. with [Kleinfelder] Id., ¶ 1(b). terminates or otherwise upon This includes not retaining copies of 7 correspondence, memoranda, reports, notebooks, drawings, photo8 graphs, databases, diskettes, or other documents or electronically 9 stored information of any kind relating in any way to the business, 10 potential business or affairs of [Kleinfelder], its clients or its 11 or their respective affiliates. Id. Exempted are copies of 12 reports an employee is required to maintain as part of his/her 13 professional registration. 14 Id. The Agreement defines Confidential Information as follows: 15 Confidential Information includes all trade secrets, know-how, technical, operating, financial, and other business information, specifically including but not limited to information regarding documentation, designs, inventions, improvements, methodology, concepts, records, files, memoranda, reports, plans, price lists, client and supplier information, product development and project procedures. Confidential Information does not include general skills, experience or information that is generally available to the public, other than information that has become generally available as a result of Employee s act or omission. 16 17 18 19 20 21 22 23 Id., ¶ 1. 24 Factual issues similar to those discussed above in this 25 opinion also exist regarding whether Gordon breached the confiden26 tiality covenants. The parties dispute whether Gordon took any 27 confidential information with him, or retained any confidential 28 31 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 information without Kleinfelder s consent, whether actual or 2 implied. 3 The Non-Disparagement section of the Agreement prohibits 4 employees, at any time (during or after Employee s employment with 5 [Kleinfelder]), from disparaging the reputation of [Kleinfelder], 6 its clients and its or their respective officers, directors, agents 7 or employees. 8 Gordon s Id. ¶ 4. motion 9 Agreement. 10 employment for Little discussion is required to resolve summary judgment on this clause of the Kleinfelder has offered evidence that Gordon solicited from EverPower, and made statements to EverPower 11 indicating Kleinfelder intended to overcharge EverPower for work. 12 Kleinfelder further claims Gordon made disparaging comments to 13 EverPower regarding Kleinfelder employee Paul Fisher. The parties 14 dispute the exact content of Gordon s statements, and the intent 15 and impact of those statements. 16 Taking Kleinfelder s allegations as true for purposes of 17 Gordon s summary judgment motion, the court finds Kleinfelder has 18 offered evidence sufficient to raise a genuine issue of fact for 19 trial as to whether Gordon breached the Agreement. Gordon s motion 20 for summary judgment on this claim is denied. 21 22 23 OREGON UNIFORM TRADE SECRETS ACT Gordon moves for summary judgment on Kleinfelder s counter- 24 claim asserting a violation of the Oregon Uniform Trade Secrets 25 Act, ORS § 646.461, et seq. Kleinfelder claims the project map 26 Gordon allegedly took from his former office, and information 27 Gordon disclosed to EverPower concerning Gordon s work on the 28 32 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT 1 EverPower Project, constituted trade secrets under the Act. Dkt. 2 #23, p. 10, ¶¶ 19-23. 3 The Act defines a trade secret as information, including a 4 drawing, cost data, customer list, formula, pattern, compilation, 5 program, device, method, technique or process that (a) [d]erives 6 independent economic value, actual or potential, from not being 7 generally known to the public or to other persons who can obtain 8 economic value from its disclosure or use; and (b) [i]s the subject 9 of efforts that are reasonable under the circumstances to maintain 10 its secrecy. ORS § 646.461(4). Kleinfelder claims it employed 11 reasonable measures to maintain the secrecy of the information 12 located on the project map and other trade secret information 13 wrongfully disclosed by [Gordon], and expressly instructed [Gordon] 14 not to remove the project map from [Kleinfelder s] offices. Dkt. 15 #23, p. 10, ¶ 21. 16 As discussed previously in this order, the parties dispute 17 whether Gordon misappropriated the project map or other informa18 tion, as well as whether the document Gordon took with him had any 19 independent economic value. In addition, Gordon claims the 20 document he took with him was a portion of a map that already had 21 been recorded in the public record. If that is the case, then the 22 document likely does not meet the definition of a trade secret 23 under the Act. See ORS § 646.461(4)(a) ( Trade secret . . . 24 [d]erives independent economic value, actual or potential, from not 25 being generally known to the public. . . . ). 26 The parties also dispute whether Gordon disclosed any infor- 27 mation to EverPower about the work it paid Kleinfelder to perform 28 that could be considered a trade secret. 33 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT These factual questions 1 present genuine issues for trial. While Kleinfelder s eventual 2 success on this claim is in doubt, I cannot say on this record how 3 the issues will be resolved by the finder of fact. As a result, 4 Gordon s motion for summary judgment on this counterclaim is 5 denied. 6 CONCLUSION 7 8 In summary, then, Kleinfelder s motion for summary judgment on 9 Gordon s IIED claim is granted, and both parties motions for 10 summary judgment are denied as to all other claims and 11 counterclaims. 12 IT IS SO ORDERED. 13 Dated this 5th day of March, 2012. 14 /s/ Dennis J. Hubel 15 _____________________________________ Dennis James Hubel Unites States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 34 - ORDER ON MOTIONS FOR SUMMARY JUDGMENT

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