Image provided by: University of Oregon Libraries; Eugene, OR
About Oregon daily emerald. (Eugene, Or.) 1920-2012 | View Entire Issue (Oct. 16, 2000)
DPS continued from page 1 and that her claim was invalid be cause the two-year statute of limita tions had passed by the time she filed Sept. 30,1999. “Lawlor contends that she did not intentionally deprive Conaway of any constitutional rights, but more to the point, this claim was not commenced within the time limited by statute,” Assistant Attor ney General David Landrum said in a filed rebuttal. Landrum, a legal expert in hu man resources cases, represented the University. “The allegations of comments by Lawlor and failure to accommodate by the University do not rise to the ac tionable level of behavior that trans gresses the bounds of socially tolera ble conduct,” Landrum said in his motion to have the case dismissed. Part of the settlement forbids Conaway from speaking to the me dia about the case. Peter Cogswell, a spokesman for the Oregon Depart ment of Justice, said Conaway also received a new University job and $15,000 as conditions of the settle ment. Cogswell said he wasn’t sure if the money in the settlement went beyond covering legal costs. Conaway now works in facilities services, and the University dis missed Lawlor ■about a year ago, University Vice Pre'sicfent Dan Williams said. Lawlor did not re turn phone messages asking for comment about the case. Despite the court’s finding that Lawlor’s comments could be con sidered socially acceptable, Williams said statements such as Lawlor’s have no place at the Uni versity. “It’s not acceptable for anyone, especially a supervisor over em ployees, to speak like that,” Williams said. “Just because some thing is not illegal doesn’t mean it’s acceptable.” He said the University has not been completely debriefed on what the case means, but said if her claim violated the Americans with Dis abilities Act, it could mean future changes for the department. Williams added he could not make specific comments, but said that there had been some “differ ence of opinions” and “conflict” in the department. He said he had heard reports of dissatisfied em ployees, but that in of itself does not • substantiate the allegations. “That doesn’t mean that particu I lar person’s point of view is cor rect,” he said about the charges. Reached by phone Sunday at his hotel in Chicago, University Presi dent Dave Frohnmayer said he had not seen any information on the case, but said people should not presume wrongdoing by the depart ment. He explained that often in cases such as Conaway’s, a judge will make the assumption that there were laws broken to settle the case without actually conducting an in vestigation into the claims. “Allegations aren’t facts,” he said. Contested environment Part of the contention in the de partment surrounds the promotion of an officer into a new lieutenant position and the reassignment of another lieutenant. Some officers claim that Marte Martinez, who was promoted to lieutenant after less than a year with the department, was put into the position illegally without a proper hiring period. Fitzpatrick adamant ly denied that claim. Martinez is on personal leave in definitely and could not be reached for comment. Williams and Fitz patrick refused to comment on the reasons of Martinez’s leave, citing confidentiality issues. Martinez’s position “was inter nally open for recruitment,” Fitz patrick said. He added a total of four officers applied as part of the nor mal hiring process. But Kim Maynard, who resigned from DPS about a month ago after five years as a patrol officer, disagreed. He said other applications were not ac cepted until he and fellow officer Ter ry Gaeta, who also resigned this sum mer after about five years in the department, complained that other officers didn’t have a chance to get the job. Both thought a veteran offi cer should be promoted instead of Martinez, who had less experience in the department. “We challenged the decision and went in for interviews, and the in terviews were a total sham,” May nard said. “That was basically the start of all of the more mature offi cers getting nailed for everything.” Maynard listed a variety of inci dents of alleged age discrimination, including last year when he said the department had officers complete a two-day defensive tactics training session. Maynard—who has physi cal disabilities from serving in Viet nam, but nothing that prevented him from doing his normal duties — said he and other officers were so sore from the first training session they couldn’t attend the second one a month later. “My back got so bad I couldn’t hardly walk, and so a month later they do it again,” he said. “Because I was injured they took away my asp [baton] and pepper spray. I was cer tified for those things. And then when I complained, the director wrote a letter afterward saying that they have the right.” Maynard said Fitzpatrick eventu ally promised to reschedule a train ing so he could have his pepper spray back, but that time was never set. Maynard also alleged that Lt. Joan Saylor made discriminatory com ments about his age when he ap plied to be on bike patrol. He claims she said, sarcastically, “Well, we don’t want Maynard to fall off and hurt himself.” Maynard said these and the inci dences were so embarrassing and harassing that he decided to mail his letter of resignation to the office instead of delivering it in person. “It was really humiliating.” he said. “It was flat-out harassment. I couldn’t go back into the office. You’re walking on eggshells there. Everybody is afraid to say anything now. “I’ve never seen such a hostile en vironment. The inmates are run ning the asylum.” But Fitzpatrick said the office is “absolutely not” a hostile environ ment where discrimination and ha rassment occurs. He added that, to the best of his knowledge, Maynard didn’t take advantage of resched uled tactics training times. “The environment is positive,” Fitzpatrick said. Standards of Conduct But for Maynard, the environ ment was not positive enough to keep him from resigning. He said the last straw for him was when the department recently drafted “21 Standards of Conduct” that officers must follow, including standard of fice guidelines for conduct and re strictions of drug and alcohol use. The policy is still in draft form, but it states that officers who break the rules can be reprimanded with “progressive disciplinary, up to and including termination.” Fitzpatrick said officers had a chance to read the draft and offer comments for revision, and he hopes to have a final copy in place as policy by Nov. 1. But he added he does not know if the punishment rules break current OPEU contract guidelines. All DPS employees are members Court decision on Conaway’s claim of “intentional infliction of emotional distress” in uregon, no statutory or common law claim exists for reckless infliction of emotional distress. In order to state a claim for intentional infliction of emotional distress, a plaintiff must plead; 1) the defendant intended to inflict severe emotional distress (I I ED) on the plaintiff, 2) the defendant’s acts were the cause of the plaintiff’s severe emotional dis tress, and 3) the defendant’s acts constituted an extraordinary transgression of the bounds of socially tolerable conduct. Whether particular conduct rises to the necessary level of social intolera bility is a fact-specific inquiry that re quiresa case-by-case examination of the circumstances as a whole. Whether a reasonable jury could find that the University’s or Lawlor’s con duct goes beyond the farthest reaches of socially tolerable behavior is a question of law for the court. The mo tivation of the University or Lawlor for any alleged action is not relevant to the question of whether the alleged action is sufficiently outrageous to make a claim. The actions themselves must be sufficiently outrageous. Extraordinary transgressions of the bounds of socially tolerable conduct do not include mere insults, indigni ties, threats, annoyances, petty op pression or other trivialities. Conduct that is merely rude, boorish, tyranni cal, churlish and mean does not ex ceed the bounds of social toleration. The essential distinction is between offensive and even emotionally hurt ful behavior that isa normal incident of daily life and behavior that goes Deyona tne oounas or what society would say reasonably must be en dured. The employment relationship between Conaway and the University of Oregon is not relevant to this in quiry, because it has no bearing on the level of intent required to state and prove the claim. Conaway alleges of the complaint that “defendant” denied her requests for reasonable accommodations of a disability, and referred to her as “lazy thing,” “lazy old woman,” and “a fucking [something or other],” but makes no other factual allegations of conduct or behavior by either the University or Lawlor. The two allega tions must be considered separately, because two separate lines of authori ty apply. A principal’s failure to respond to an employee’s complaint is insufficient to constitute a claim of IIED. There fore, Conaway’s allegation that the University of Oregon failed to accom modate her disability cannot form the basis of an IIED claim.... ...The crux of the issue is whether the behavior of Lawlor or the University could be considered commonplace friction and rudeness among people in day-to-day life, or whether a jury reasonably could find it offensive in some extraordinary way. Conaway’s allegations are less egregious than the allegations in Oregon cases where plaintiff failed tostatea claim for IIED. Defendants are entitled to judg ment as a matter of law, or in the al ternative Conaway’s sixth claim for re lief should be dismissed with prejudice. Source; Court documents—Pauline S. Conaway, plaintiff v. University of Oregon and Paige Lawlor, defendants of the union. The draft also includes a number of guidelines about officers and management. Violations include: “Consistently challenging legiti mate directions [from supervi sors],” “refusing to work reasonable amounts of overtime,” and “criticiz ing management decisions.” Maynard worried that the rules, which can be vague regarding what “reasonable overtime” and “legiti mate directions” mean, could be en acted without enough notice to oth er officers. Maynard said he isn’t certain how the atmosphere at DPS changed to what he called hostile, but said he doesn’t think Fitzpatrick is the problem at all. Fitzpatrick “is just out of the loop. He’s basically retired,” Maynard said. “The core of the problem is that management continues to op erate in an adversarial role toward its own employees rather than a supportive role.’’But Fitzpatrick clearly stated that he is still the one in control of DPS, a department in which “nobody is discriminated.” “There have been enhanced lev els of discipline since I arrived,” he said. “A lot of people have left for different reasons. I’d leave it for them to describe.” Emerald reporter Rebecca Newell con tributed to this report. THERE’S ALWAYS A REASON TO PICK UP THE ODE See what’s happening at the BEST university in the state.
