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.
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