FILED: October 4, 2000

MARK STEVEN HARRIS,

Appellant,

v.

PAMECO CORPORATION,
a Delaware corporation,
dba Pameco-Aire,
and WALLY GEORGE,

Respondents.

Appeal from Circuit Court, Multnomah County.

Stephen Gallagher, Judge for Judgment.

Ellen Rosenblum, Judge for Supplemental Judgment.

Argued and submitted January 27, 2000.

Adam Dean argued the cause for appellant. On the briefs were Des Connall, Shannon K. Connall, and Des & Shannon Connall, LLP.

Corbett Gordon argued the cause for respondent Pameco Corporation. With her on the brief were Richard R. Meneghello, and Corbett Gordon & Associates, P.C.

Robert Lane Carey argued the cause for respondent Wally George. With him on the brief was Barran Liebman, LLP.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

EDMONDS, P. J.

Judgment for defendants on plaintiff's claims for battery, intentional infliction of emotional distress and discrimination under ORS 659.030(1)(f) reversed and remanded; otherwise affirmed.

EDMONDS, P. J.

Plaintiff appeals from a judgment entered after the trial court granted directed verdicts in defendants' favor at the close of plaintiff's case and at the close of all the evidence on certain claims in his amended complaint. ORCP 60. He assigns error to the trial court's dismissal of his claims for battery, intentional infliction of emotional distress, negligence and employment discrimination under ORS 659.030(1)(b). The directed verdicts were appropriate only if defendants were entitled to judgment as a matter of law. Lindstrand v. Transamerica Title Ins. Co., 127 Or App 693, 695, 874 P2d 82 (1994). We reverse, in part.

In determining whether the trial court erred, we view the evidence in the light most favorable to plaintiff and extend to him the benefit of every reasonable inference that could be drawn from the evidence. Foster v. Schnell Refrigeration Co., 280 Or 411, 414, 571 P2d 497 (1977). In that light, we state the facts. Plaintiff worked for defendant Pameco as a branch manager. Defendant Wally George supervised plaintiff as part of George's duties as regional manager for Pameco. Plaintiff and George interacted on a regular basis at plaintiff's workplace and at off-site Pameco meetings. George had an intimidating supervisory style. He often expressed anger by raising his voice, throwing his hands in the air and threatening employees with termination. At the same time, he would express greetings or goodbyes to his employees by saying "hugs and kisses" and would often touch the male employees by rubbing their necks or putting his arm around them.

At some point before the alleged conduct at issue in this case, plaintiff discussed with George his views on homosexuality. He testified that he made it clear to George that he believed "that the act of homosexuality * * * is not something that's conducive to good family values nor good morals within our society, and * * * that the act of * * * homosexuality deteriorates a society[.]" In January 1993, plaintiff and George attended a Pameco meeting in Las Vegas. One night after an awards ceremony, George threw his arm around plaintiff as they walked through the casino. Plaintiff testified that this contact left him with mixed feelings. The next morning, plaintiff went to George's room at George's invitation. George answered the door in boxer shorts. Five to ten minutes into the conversation, George got into bed and pulled the sheets up over his stomach and asked plaintiff why plaintiff "didn't * * * just get in bed." Plaintiff testified that he left immediately, feeling confused. After arriving home, he spoke to family members about the incident.

In the following months, George touched plaintiff while at work on several other occasions. On one occasion, plaintiff described:

"I was standing with a few managers outside the office and Mr. George put his arm--he came out of his office, put his arm around me, and we turned, and he said, I want to talk to you.

"And he was up close to me and he was massaging my neck as we were walking toward the back door of the warehouse. And we got back to the back door of the warehouse, and I nudged him and I said, come on, Wally, and I kind of moved to a--you know, we were side by side and then I kind of moved to the side to talk to him face to face.

"And as we were walking through the warehouse, I was close enough to him that when I turned to him and he turned to me talking to me, our faces were very close."

Plaintiff testified that he found the incident offensive because defendant "was holding me like I would hold my wife." Another contact occurred at plaintiff's desk when George sat down next to plaintiff so that their knees were, or were almost touching. Plaintiff testified and demonstrated to the jury how "[George] took his hand and he placed it on the inside of my left leg with his palm about on my--you know where that round thing is on your knee? His palm was right there and his fingers were up my thigh." Plaintiff moved his knee quickly away because he found the touch offensive, and he testified that the incident angered him. In mid-August 1993, plaintiff and George met to discuss the sales numbers for plaintiff's branch. George responded to plaintiff's report by telling plaintiff: "Well, if you do over $350,000, I'll give you a big wet kiss and tongue."

Plaintiff testified that he became depressed as a result of George's conduct. (1) He contacted some organizations that he thought could answer his questions about the incidents. Later, this exchange took place in February 1994 at another company meeting. Plaintiff testified:

"[A]s I passed by Mr. George * * * Mr. George said, 'How are you doing?' And I said, 'Fine, how are you doing?' And he said, 'Well, I have got a bad cold.['] And I said, 'Well, I better not get too close.' And he said to me, 'Does that mean I cannot invite you to my bed?'"

In May 1994, plaintiff filed this action related to the above conduct against George and Pameco after his employment had ended with Pameco. Plaintiff's amended complaint contains six claims for relief, some of which involve claims against Pameco and George individually and others which involve allegations as to both defendants. In his first claim, plaintiff alleges that George committed a battery by touching him on the shoulder, neck and thigh. In his second and third claims, plaintiff alleges that George intentionally inflicted emotional distress on him by subjecting him to sexual advances, comments and conduct. In his first, second and third claims, plaintiff also alleges that Pameco committed battery and intentionally inflicted emotional distress on him. The trial court directed verdicts on all of those claims at the close of plaintiff's case. In his fourth claim plaintiff alleges that he was wrongfully discharged under the common law because Pameco terminated him in retaliation for complaining about George's sexual harassment. The jury returned a verdict for Pameco on that claim, and plaintiff does not assign the jury's verdict as error on appeal. In his fifth claim, plaintiff alleges that Pameco was negligent in several particulars, including "in creating, encouraging and maintaining an intimidating and hostile work environment[.]" The trial court directed a verdict on all of the other allegations of negligence at the close of plaintiff's case and on that specific allegation at the close of all the evidence in favor of Pameco. Lastly, plaintiff's amended complaint alleges that Pameco discriminated against plaintiff in violation of ORS 659.030(1)(b) and 659.030(1)(f). The gravamen of those claims are that the company, knowing of George's sexual harassment, failed to take remedial steps and/or discharged plaintiff for complaining about George's conduct. At the close of plaintiff's case, the trial court granted Pameco's motion for a directed verdict on plaintiff's claim under ORS 659.030(1)(b). Likewise, at the close of all the evidence, the trial court granted Pameco's motion for a directed verdict on plaintiff's claim under ORS 659.030(1)(f). After trial, the court awarded costs to both defendants and attorney fees to Pameco.

On appeal, plaintiff makes nine separate assignments of error. Two of those assignments refer to the trial court's grant of directed verdicts on plaintiff's claims for battery and intentional infliction of emotional distress (IIED) against George. Two other assignments refer to the trial court's grant of directed verdicts on those same claims against Pameco. In addition, plaintiff assigns as error the dismissal of his negligence claim as well as the dismissal of his claim for discrimination under ORS 659.030. The remaining assignments of error relate to the trial court's awards of costs and attorney fees. Because of our disposition on the other assignments, those awards are vacated, and we do not reach the parties' arguments about them.

The trial court directed verdicts on the battery and IIED claims because

"a reasonable jury made up of individuals would be unable to conclude that the acts as alleged and as testified to, without challenge at this point in the case, taken in the light most favorable to the plaintiff, do not amount to outrageous conduct in the extreme, do not exceed or are not an extraordinary transgression of the bounds of socially tolerable conduct, that no jury could find that."

A "battery" is a "voluntary act that is intended to cause the resulting harmful or offensive contact." Walthers v. Gossett, 148 Or App 548, 552, 941 P2d 575 (1997). "It is not necessary that the contact do actual physical harm--it is sufficient if the contact is offensive or insulting. Prosser, Law of Torts 36,