Filed: August 6, 1998

ARMETTA STUPEK,

Petitioner on Review,

v.

WYLE LABORATORIES CORPORATION, dba
WYLE LABORATORIES, a California
corporation,

Respondent on Review.

On review from the Court of Appeals.*

Argued and submitted April 30, 1997.

Terrance J. Slominski, Lake Oswego, argued the cause and filed the petition on behalf of petitioner on review.

Charles F. Adams, of Stoel Rives LLP, Portland, argued the cause and filed briefs on behalf of respondent on review. With him on the brief on the merits was Therasa A. Healy.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, and Kulongoski, Justices.**

KULONGOSKI, J.

The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.

* Appeal from Multnomah County Circuit Court,

Eric Neiman, Judge Pro Tempore.

144 Or App 622, 928 P2d 365 (1996).

** Fadeley, J., retired January 31, 1998, and did not participate in this decision; Graber, J., resigned March 31, 1998, and did not participate in this decision.

KULONGOSKI, J.

Plaintiff appeals from a summary judgment in defendant's favor on her claims for wrongful discharge, intentional infliction of emotional distress, and statutory sex discrimination. At issue is whether plaintiff timely filed her common-law claims by filing her complaint on the Monday following the weekend during which the statute of limitations ran and whether she submitted adequate facts to support her claim to the tolling of the limitation period for her statutory claim. We hold that plaintiff timely filed her common-law wrongful-discharge claim and otherwise affirm the summary judgment in defendant's favor on plaintiff's remaining claims.

On review of a summary judgment, we view the facts and all reasonable inferences that may be drawn from the facts in the light most favorable to the nonmoving party (in this case, plaintiff). Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997). We review the record to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Oregon Rules of Civil Procedure (ORCP) 47 C; Jones, 325 Or at 413-14.

Plaintiff worked as a salesperson for defendant from July 1982 until October 1992. She alleged that she was subjected to various hostile and sexually explicit remarks by male co-workers during working hours and that, despite her complaints, defendant failed to take any measures to correct the situation. In September 1992, plaintiff's supervisor suggested that she terminate her employment because the work environment was not likely to change. Thereafter, plaintiff submitted notice to defendant that she would resign. On October 20, 1992, plaintiff signed a "Personnel/Payroll Action Notice," which stated that plaintiff's "termination effective date" was October 30, 1992.

On Monday, October 31, 1994, plaintiff, acting pro se, filed a complaint alleging claims of common-law wrongful discharge and intentional infliction of emotional distress, both of which have a two-year statute of limitations. ORS 12.110(1).(1) She later retained counsel, who amended the complaint by adding a statutory sex-discrimination claim, which has a one-year statute of limitations. ORS 659.030, ORS 659.121(3).(2)

Defendant moved for summary judgment on the grounds that: (1) the two-year statute of limitations barred the common-law claims, because the two-year period ran during the weekend before the Monday on which plaintiff filed her complaint; (2) the claim of intentional infliction of emotional distress lacked sufficient evidence to support plaintiff's allegations; and (3) the statutory sex-discrimination claim was barred by the one-year statute of limitations. Plaintiff countered in part that her common-law claims were filed timely, because the limitation period extended until the Monday on which she filed those claims, and that the statute of limitations on her statutory claim was tolled by reason of her insanity. Former ORS 12.160 (1993).(3)

The trial court granted defendant's motions for summary judgment on all grounds. Plaintiff appealed, and the Court of Appeals affirmed without opinion. Stupek v. Wyle Laboratories Corporation, 144 Or App 623, 928 P2d 365 (1996). We allowed review to consider the questions whether plaintiff's complaint was timely filed, which requires us to determine when her wrongful-discharge claim accrued, and whether plaintiff established that there is a genuine issue of material fact about whether her insanity operated to toll the limitations period for her statutory claim.

Plaintiff's petition for review asserts that both of her common-law claims were timely filed. However, before this court, plaintiff does not challenge the trial court's alternative basis for granting summary judgment on the claim of intentional infliction of emotional distress -- insufficient evidence to support the allegations. Although, under ORAP 9.20(2), this court may review an issue that properly was raised on appeal and preserved, but not presented on review, we ordinarily will not do so unless the issue requires resolution. State v. Castrejon, 317 Or 202, 211-12, 856 P2d 616 (1993). The Court of Appeals' decision affirmed the trial court's conclusion that there is insufficient evidence to support the claim for intentional infliction of emotional distress. Because plaintiff did not ask this court to review the Court of Appeals' decision in that regard, and because there is no need for further resolution of the issue, we do not address it.

ACCRUAL OF WRONGFUL-DISCHARGE CLAIM

In deciding whether plaintiff's common-law wrongful-discharge claim was timely filed, we first must determine when that claim accrued. If the claim accrued when plaintiff learned of her discharge on October 20, 1994 (i.e., when she signed the Personnel Action Notice), as defendant claims, then plaintiff's claim is barred by the statute of limitations, regardless of how the limitation period is calculated. If plaintiff's claim accrued when her termination became effective, October 30, 1992, or on the last day she worked, then we must address the statute of limitations issue.

Plaintiff brought her wrongful-discharge claim under ORS 12.110(1), which provides that "[a]n action * * * for any injury to the person * * * shall be commenced within two years." ORS 12.010 provides that actions subject to limitation periods in ORS chapter 12 "shall only be commenced * * * after the cause of action shall have accrued." (Emphasis added.) Those statutes obligated plaintiff to commence her claim for wrongful discharge within two years of the date on which that claim accrued.(4)

In U.S. Nat'l Bank v. Davies, 274 Or 663, 666-67, 548 P2d 966 (1976), quoting Michael Franks, Limitation of Actions 11 (1959), this court, using the term "cause of action," explained when a cause of action accrues:

"In the best-known definition [a cause of action] consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. When these facts have occurred and provided that there are in existence a competent plaintiff and a competent defendant, a cause of action is said to accrue to the plaintiff because he can then prosecute an action effectively."

See also Duyck v. Tualatin Valley Irrigation District, 304 Or 151, 161, 742 P2d 1176 (1987) ("[a] cause of action accrues when the party owning it has a right to sue on it").

The facts necessary to establish a claim are those events listed as the elements of a claim. A wrongful-discharge claim has two elements: "[T]here must be a discharge, and that discharge must be 'wrongful.'" Moustachetti v. State of Oregon, 319 Or 319, 325, 877 P2d 66 (1994), citing Nees v. Hocks, 272 Or 210, 218, 536 P2d 512 (1975). The legal injury in a wrongful-discharge claim is the discharge. Moustachetti, 319 Or at 325. Thus, there is no claim until the discharge occurs.

This case differs from Moustachetti in that, here, defendant did not actually discharge plaintiff. Rather, plaintiff alleges that her working conditions were such that she was "forced" to resign; that is, she claims a "constructive" wrongful discharge. A forced resignation may support a claim for wrongful discharge. Sheets v. Knight, 308 Or 220, 227-28, 779 P2d 1000 (1989). In Sheets, the employers informed the plaintiff that, unless he resigned, they would terminate his employment. The plaintiff resigned and filed an action for constructive wrongful discharge. The court observed that, in certain circumstances, a resignation could be considered a "discharge":

"Where the employee unconditionally has been told 'resign today or be fired,' the employer has decided that the employment relationship is at an end and that the employee shall leave. The employee merely selects the manner in which the employer's will is accomplished. Under such circumstances a fact finder may find that a 'resignation' was a discharge." Id. at 227 (citation omitted).

Sheets tells us that the discharge element in an action for constructive wrongful discharge is the resignation, but it does not tell us when the discharge occurs. That question is partially answered in McGanty v. Staudenraus, 321 Or 532, 901 P2d 841 (1995). There, the court stated that, to establish a constructive wrongful discharge, a plaintiff must allege and prove:

"(1) the employer intentionally created or intentionally maintained specified working condition(s); (2) those working conditions were so intolerable that a reasonable person in the employee's position would have resigned because of them; (3) the employer desired to cause the employee to leave employment as a result of those working conditions or knew that the employee was certain, or substantially certain, to leave employment as a result of those working conditions; and (4) the employee did leave the employment as a result of those working conditions." Id. at 557 (footnotes omitted; emphasis in original).

Under the McGanty formulation, the discharge does not occur until the employee "leave[s] the employment as a result of [the wrongful] working conditions." In other words, the discharge occurs when the employment relationship between the employee and the employer ends. Before leaving the employment, the employee is unable to establish the element of discharge. That the discharge occurs at the end of the employment relationship follows as well from Sheets, because only at that point does the employer's intent to terminate an employee cause a tortious harm.

Here, plaintiff's employment relationship conclusively ended when her termination became effective on October 30, 1992. It was not until that date that all the facts necessary for plaintiff to prove her wrongful-discharge claim had occurred. We therefore hold that plaintiff's claim for constructive wrongful discharge did not accrue until the end of the employment relationship, that is, October 30, 1992. In so holding, we are mindful of the split in state and federal law on this issue, but note that our conclusion is in accord with other states that have similar claim-accrual standards.(5)

STATUTE OF LIMITATIONS