IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RONALD MALCOMSON,

Plaintiff,

v.

DAIMLER NORTH AMERICAN

CORPORATION, a Delaware Corporation;

DAIMLER TRUCKS NORTH AMERICA,

LLC, a Delaware Limited Liability Company;

CONCENTRA HEALTH SERVICES, INC., a

Texas Corporation; GABLE HOFMAN, an

individual; KARLA STEFFENSON, an

individual; and JOHN DOES (#1-10),

individuals,

Defendants.

Case No. 3:15-cv-02407-SB

FINDINGS AND

RECOMMENDATION

BECKERMAN, Magistrate Judge.

Ronald Malcomson (“Malcomson”) filed a First Amended Complaint (“FAC”) against

Daimler North American Corporation, Daimler Trucks North America, LLC (collectively “Daimler

NA”), Concentra Health Services, Inc. (“Concentra”), Gable Hofman (“Hofman”), Karla Steffenson

Page 1 - FINDINGS AND RECOMMENDATION
(“Steffenson”), and John Does Nos. 1-10, alleging state statutory and common law claims arising

from Malcomson’s termination following his attempts to report unlawful employment practices.1

Specifically, Malcomson alleges claims against Daimler NA and Concentra for whistleblower

retaliation under Oregon Revised Statutes (“ORS”) ¶ 659A.199 (FAC ¶¶ 20-27), and retaliation for

opposing unlawful employment practices pursuant to ORS § 659A.030 (FAC ¶¶ 28-35.) In addition,

Malcomson alleges claims against all defendants for common law wrongful discharge (FAC ¶¶ 36-

42), aiding and abetting employment discrimination in violation of ORS §659A.030(1)(g) (FAC ¶¶

43-46), and two counts of common law intentional interference with economic relations. (FAC ¶¶

47-60.)

Concentra filed an Answer to Malcomson’s FAC. Daimler NA, Hofman, and Steffenson

(collectively, “Daimler Group”) filed a motion to dismiss Plaintiff’s First Amended Complaint

pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), for failure to state a claim. The

Daimler Group also moved to strike Malcomson’s declaration and the exhibit attached thereto, filed

in response to its Rule 12(b)(6) motion.

On May 16, 2016, this Court heard oral argument on the Daimler Group’s request for

dismissal. For the reasons set forth below, this Court grants the Daimler Group’s motion to strike,

and recommends that the district judge grant in part, and deny in part, the Daimler Group’s Rule

12(b)(6) motion.

///

///

1 The Daimler Group removed this case from Multnomah County Circuit Court pursuant to

28 U.S.C. §§ 1332 and 1441. (ECF No. 1.)

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I. BACKGROUND

Concentra hired Malcomson to provide health care services to Daimler NA employees, under

a contract for medical care between Daimler NA and Concentra. (FAC ¶¶ 9-10.) Malcomson alleges

that Concentra was Daimler NA’s agent, and that Concentra and Daimler NA acted in concert toward

a common enterprise. (FAC ¶¶ 10, 19.) Malcomson’s direct report at Daimler NA was Steffenson.

Malcomson alleges that he “could only provide care and referrals of workplace injuries as directed

by Ms. Steffenson.” (FAC ¶ 12.) Malcomson further alleges that “Daimler [NA]’s workers’ medical

treatment and referrals were being interfered with by agents of Daimler [NA], namely Ms.

Steffenson, in violation of HIPAA and safety regulations and in a discriminatory nature . . . .” (FAC

¶¶ 12-14.) Malcomson alleges that he reported such issues to Daimler NA and Concentra, but he

received no “meaningful action.” (FAC ¶ 15.) Malcomson alleges that Steffenson, acting as an agent

of Daimler NA, engaged in pre-termination adverse employment actions against him. (FAC ¶ 14.) 

On November 14, 2014, Malcomson reported his concerns about Steffenson’s conduct to

Concentra’s ethics hotline. (FAC ¶ 15.) Malcomson was directed by an agent of Concentra to speak

with Hofman, and to request a private area onsite at Daimler NA for a telephone conference. (FAC

¶ 16.) Hofman provided Malcomson an empty office and, on November 18, 2014, Malcomson again

spoke with a Concentra ethics hotline agent about his concern that Steffenson was violating state and

federal laws. (FAC ¶ 16.) On that day, Malcomson reported these same concerns to the Federal

Office of Civil Rights Department of Health. (FAC ¶ 17.)

Malcomson alleges that, on November 21, 2014, either Daimler NA, Steffenson, Hofman,

or a Doe defendant directed Concentra to terminate him, which it did.

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II. DISCUSSION

A. Motion to Strike

In addition to filing a response to the Daimler Group’s Rule 12(b)(6) motion, Malcomson

filed a declaration setting forth facts he did not allege in the FAC. The Daimler Group moves to

strike Malcomson’s declaration, and the attached exhibit. The Daimler Group argues that the

declaration and exhibit are beyond the scope of the limited analysis permitted under Rule 12(b)(6).

Malcomson did not oppose the Daimler Group’s motion to strike. 

1. Legal Standard

There are two exceptions to the general rule that consideration of extrinsic evidence converts

a Rule 12(b)(6) motion to a summary judgment motion. Lee v. City of Los Angeles, 250 F.3d 668,

688 (9th Cir. 2001), overruled in part on other grounds by Galbraith v. Cnty. of Santa Clara, 307

F.3d 1119, 1125-26 (9th Cir. 2002). First, a court may consider material that a plaintiff properly

submitted as part of the complaint or, even if not physically attached to the complaint, material

necessarily relied upon in the complaint if the authenticity of that material is not challenged. Id.; see

also Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (“[A] document is not ‘outside’ the

complaint if the complaint specifically refers to the document and if its authenticity is not

questioned.”), overruled on other grounds by Galbraith, 307 F.3d 1119. Second, under Federal Rule

of Evidence 201, a court may take judicial notice of matters of public record. Lee, 250 F.3d at 689.

2. Malcomson’s Declaration

With regard to the first exception, the declaration includes a more detailed version of the

facts than what Malcomson included in the FAC. As to the second exception, Malcomson did not

ask the Court to take judicial notice of the declaration and exhibit, and those materials are not

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matters of public record. Thus, the Malcomson declaration and exhibit do not meet any exception

that would permit the Court to consider extrinsic evidence. In order for this Court to consider the

extrinsic evidence submitted by Malcomson, it must convert the Rule 12(b)(6) motion to a motion

for summary judgment, and the Court declines to do so. Accordingly, the Court grants the Daimler

Group’s motion to strike.

B. Motion to Dismiss

1. Legal Standard

A well-pleaded complaint requires only “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A federal claimant is not required to

detail all factual allegations; however, the complaint must provide “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right

to relief above a speculative level.” Id. While the court must assume all facts alleged in a complaint

are true and view them in a light most favorable to the nonmoving party, it need not accept as true

any legal conclusion set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In

addition, a plaintiff must set forth a plausible claim for relief, a possible claim for relief will not do.

Id. (“Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops

short of the line between possibility and plausibility of entitlement to relief.” (quotations and citation

omitted)). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual

content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim

entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting

Iqbal, 556 U.S. at 678).

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2. ORS § 659A.199 (Retaliation) and ORS § 659A.030(1)(f)(Racial Discrimination)

Malcomson pleads his First Claim for Relief against Daimler NA and Concentra, for

whistleblower retaliation in violation of ORS § 659A.199. Section 659A.199 provides that an

employer may not “retaliate against an employee . . . for the reason that the employee has in good

faith reported information that the employee believes is evidence of a violation of a state or federal

law, rule or regulation.” Malcomson alleges that Daimler NA and Concentra terminated him for

engaging in the protected activity of reporting “his concerns related to inadequate and improper

reporting, treatment, and general handling of injuries occurring at the Facility.” (FAC ¶ 21.)

Malcomson pleads his Second Claim for Relief against Daimler NA and Concentra,for racial

discrimination in violation of ORS § 659A.030(1)(f).2 Section 659A.030(1)(f) provides that “an

employer may not discharge . . . any other person because that other person has opposed any

unlawful practice.” Malcomson alleges that his reports of unlawful employment practices were

protected activitybecause he was opposing racial discrimination, and that Concentra terminated him,

at the direction of Daimler NA, for engaging in that protected activity. (FAC ¶¶ 29, 30.)

Daimler NA moves to dismiss both of these claims, on the ground that Malcomson “cannot

allege the Daimler [NA] Defendants were his employer.” (Defs.’ Mot. Dismiss 4.) In response,

Malcomson contends that his claims under ORS § 659A.199 and ORS § 659A.030(1)(f) are

sufficient because although ConcentrawasMalcomson’s “technical” employer, Daimler NA is liable

for the acts of Concentra through the theory of respondeat superior. (Pl.’s Resp. 9, 12.)

///

2 Malcomson is directed to amend his Second Claim for Relief to allege clearly which

defendant(s) are named in that claim.

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Malcomson cannot proceed on his direct Chapter 659A claims against Daimler NA on a

theory of respondeat superior, because he may bring those claims only against his “employer.” Duke

v. F.M.K. Const. Servs., Inc., 739 F. Supp. 2d 1296, 1304-05 (D. Or. 2010); see also Reyna v. City

of Portland, No. 02–cv-980-JO, 2005 WL708344, at *7 (D. Or. Mar. 28, 2005) (“[P]laintiff’s claims

under ORS 659A may be brought only against her employer.”). For purposes of Oregon’s

discrimination laws, the term “employer” “means any person who . . . directly or through an agent,

engages or uses the personal service of one or more employees, reserving the right to control the

means by which such service is or will be performed.” ORS § 659A.001(4). Oregon courts analyze

a putative employer’s “right to control” an individual using a four-factor test: (1) direct evidence of

the right to, or the exercise of, control; (2) the method of payment; (3) the furnishing of equipment;

and (4) the right to terminate. See, e.g., Duke, 739 F. Supp. 2d at 1303; Doe v. Holy See, No. 3:02-

cv-430-MO, 2011 WL 1541275, at *4 (D. Or. Apr. 21, 2011).

Daimler argues that Malcomson cannot allege that Daimler NA was his employer, because

he has already alleged that Concentra was his employer. As noted by the Daimler Group, it appears

that some courts in this district have recognized that Oregon courts have not applied the “joint

employer” or “indirect employer” theories of liability in the context of employment discrimination

claims. See Ford-Torres v. Cascade Valley Telecom, Inc., No. 06-cv-914-AA, 2008 WL 551503, at

*5 (D. Or. Feb. 26, 2008) (noting that “the ‘joint employer’ theory is not recognized by Oregon state

law within the context of employment discrimination claims”), aff’d, 374 Fed. Appx. 698 (9th Cir.

2010); Prychyna v. Barrett Bus. Serv., Inc., No. 11-cv-122-HZ, 2011 WL 4498843, at *7 (D. Or.

Sept. 27, 2011) (citing Ford-Torres). On the other hand, other courts in this district have discussed

the “joint employer” theory in connection with Chapter 659A claims, without concluding that

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Oregon courts would not recognize such a theory. See, e.g., McCall v. Oregon, No. 3:12-CV-00465-

PK, 2013 WL 6196966, at *8 (D. Or. Nov. 27, 2013) (discussing plaintiff’s joint employer theory

of liability as applied to both Title VII and Chapter 659A discrimination claims, but ultimately

entering summary judgment on those claims because plaintiff’s joint employer theory was not

supported by the facts); Neighorn v. Quest Health Care, 870 F. Supp. 2d 1069, 1075 n.1 (D. Or.

2012) (denying defendants’ motion for summary judgment on plaintiff’s ORS § 659A.199

whistleblower retaliation claim, in a case where plaintiff alleged that the two corporate defendants

“acted as his joint employers”).

In Ford-Torres, both the district court and the Ninth Circuit recognized that Oregon courts

have not applied joint employer liability to Chapter 659A claims, but neither court cited any Oregon

authority holding that joint employer liability does not apply to Chapter 659A claims.3 Nor has this

Court located any such authority. Cf. Delgado v. Del Monte Fresh Produce, N.A., 260 Or. App. 480,

493-99 (2014) (holding that Del Monte could be liable as an “employer” under penalty wage statute

in light of special jury verdict finding that Del Monte was a “joint employer” under wage and hour

statute, where staffing company was the direct employer and supplied workers to Del Monte).

While Oregon courts have not applied the joint employer doctrine in this context, no court

appears to have analyzed whether an Oregon appellate court would apply the doctrine. This Court

finds that neither the statutory definition of “employer” in ORS § 659A.001, nor the statutory text

of ORS § 659A.199 or ORS § 659A.030, preclude a theory that two entities could have sufficient

3

In the Multnomah CountyCircuit Court opinion cited byDaimler NA, like in Ford-Torres,

the court noted that Oregon courts have only applied the indirect employer theory to Employer

Liability Law claims, and the joint employer theory only to worker compensation claims, but the

court did not analyze whether those theories are also appropriate under Chapter 659A. (Defs.’ Mot.

Dismiss 5.) 

Page 8 - FINDINGS AND RECOMMENDATION
control over an employee to both qualify as “employer.” Indeed, Chapter 659A was modeled after

Title VII,

4

and courts have consistently recognized joint employer liability for Title VII employment

discrimination claims. See, e.g., E.E.O.C. v. Pac. Mar. Ass’n, 351 F.3d 1270, 1275 (9th Cir. 2003)

(“Two or more employers may be considered ‘joint employers’ if both employers control the terms

and conditions of employment ofthe employee.”)(citation omitted); Ford-Torres, 2008 WL551503,

at *5 (discussing joint employer liability under Title VII, as well as other federal employment

statutes); Stewart v. Intem, Inc., No. 00-cv-314-HA, 2000 WL 33201873, at *2 (D. Or. Aug. 31,

2000) (“Joint employment is determined from a totality of the circumstances, while considering

factors such as authority to hire employees, authority to fire employees, authority to set conditions

of employment, day-to-day supervision of employees, and control of employee records such as

payroll, insurance, and taxes.”).

Based on this Court’s reading of the relevant and analogous state and federal case law,

Chapter 659A does not, by its statutory text or context, or its interpretation to date, prohibit a

plaintiff from alleging that two companies have sufficient control over an employee to be held liable

under a “joint employer” theory. Thus, to proceed against both Daimler NA and Concentra on his

Chapter 659A claims, Malcomson must allege that both Daimler NA and Concentra were his

“employer,” and he must allege facts sufficient to satisfy the Duke “right to control” test for both

Daimler NA and Concentra. If Malcomson alleges that Daimler NA employed Malcomson through

its agent, Concentra (see ORS § 659A.001(4)(a) (defining employer’” to include “any person who

4

See Tornabene v. Nw. Permanente, P.C., No. 3:14-cv-01564-SI, 2015 WL9484483, at *10

(D. Or. Dec. 28, 2015) (“The substantive analysis for discrimination under Title VII of the Civil

Rights Act (42 U.S.C. § 2000e–2(a)) and ORS § 659A.030(b) is substantially similar, and courts

often analyze such claims together.”), citing Pullom v. U.S. Bakery, 477 F. Supp. 2d 1093, 1100 (D.

Or. 2007) (“ORS 659A.030 is modeled after Title VII”).

Page 9 - FINDINGS AND RECOMMENDATION
in this state, directly or through an agent, engages or uses the personal service of one or more

employees, reserving the right to control the means by which such service is or will be performed”)

(emphasis added), Malcomson must also plead facts to support an agency relationship between

Daimler NA and Concentra. See Viado v. Domino’s Pizza, LLC, 230 Or. App. 531, 533 (2009)

(holding that to be an agent, “‘(1) the . . . [entity] must be subject to another’s control; and (2) the

. . . [entity] must act on behalf of the other person.’” (quoting Vaughn v. First Transit, Inc., 346 Or.

128, 135-36 (2009)). 

Malcomson requests leave to amend the FAC, should the Court find that he did not plead his

claim sufficiently. (Pl.’s Resp. 19.) To determine whether to grant leave to amend the complaint, the

Court considers whether the amendment would be unduly prejudicial to the opposing party, whether

the request is made in bad faith, or whether the proposed amendment would be futile. Bowles v.

Reade, 198 F.3d 752, 757 (9th Cir. 1999). The Court finds that permitting Malcomson to amend his

complaint will not result in prejudice to defendants, there is no evidence that Malcomson is acting

in bad faith, and amendment does not appear to be futile. 

For the reasons discussed, the district judge should dismiss Malcomson’s claims under ORS

§ 659A.199 and § 659A.030(1)(f), with leave to amend.

3. ORS § 659A.030(1)(g)(Aiding and Abetting anUnlawful Employment Practice)

Malcomson pleads his Fourth Claim for Relief against all defendants for aiding and abetting

an unlawful employment practice in violation of ORS § 659A.030(1)(g). Section 659A.030(1)(g)

provides that “[i]t is an unlawful employment practice for an employer or an employee to aid, abet,

incite, compel, or coerce the doing of any of the acts forbidden under this chapter . . . .” Malcomson

Page 10 - FINDINGS AND RECOMMENDATION
alleges that the Daimler Group enticed, aided, abetted, compelled, or coerced Concentra to terminate

him after he opposed their unlawful practices. (FAC ¶ 44.)

The Daimler Group argues that Malcomson’s aiding and abetting claim fails, because “he

has not pled ultimate facts showing . . . Defendants were his ‘employer.’” (Defs.’ Reply 4.) In

response, Malcomson argues that under the Duke right-to-control test, he has sufficiently alleged a

claim for aiding and abetting under ORS § 659A.030(1)(g). (Pl.’s Resp. 9-10 (citing Duke, 739 F.

Supp. 2d at 1303).) Alternatively, Malcomson seeks leave to amend.

Based upon the clear language of the statute, an “aiding and abetting” claim may be brought

against an individual employee or an employer. Gaither v. John Q. Hammons Hotels Mgmt., LLC,

No. 3:09-CV-629-MO, 2009 WL9520797, at *3 (D. Or. Sept. 3, 2009). Specifically, the “aiding and

abetting” provision of ORS § 659A.030(1)(g) qualifies the “any person” language with the words

“whether an employer or an employee.” Additionally, on three prior occasions, courts in this district

have held that a party who is neither an employer nor an employee cannot be liable for aiding and

abetting under § 659A.030(1)(g). Duke, 739 F. Supp. 2d at 1306; Larmanger v. Kaiser Found.

Health Plan of Northwest, 805 F. Supp. 2d 1050, 1056 (D. Or. 2011); McIntire v. Sage Software,

Inc., 3:15-cv-00769-JE, 2015 WL 9274301, at * 3 (D. Or. Sept. 28, 2015).

In Larmanger, plaintiff alleged an aiding and abetting claim against the attorneys who

represented her health plan employer. The court found that plaintiff’s suggested construction would

require the court to ignore the phrase “whether an employer or an employee” in the statute.

Larmanger, 805 F. Supp. 2d at 1056. The court also considered “the fact that other sections of

Chapter 659A contain different definitions of ‘employee,’ some of which specifically include

independent contractors, reflects the Oregon Legislature has in those instances defined individuals

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and entities against whom a plaintiff may bring a claim under Chapter 659A more broadly than

defined in § 659A.030(1)(g).” Id. Finally, despite its conclusion that “§ 659A.030(1)(g) is clear and

unambiguous on its face,” the court noted that the legislative history “does not support [p]laintiff’s

position.” The court in Larmanger explained:

the aiding-and-abetting provision of Chapter 659 originally applied to “any person,

whether an employer or an employee, or not.” Or. Laws 1949, ch. 221, §

5(5)(emphasis added). In 1953 the Oregon Legislature amended the provision and

removed “or not” leaving the provision in its current form. Former Or. Rev. Stat. §

659.030(5)(1953). The removal of “or not” obviously suggests the Oregon

Legislature intended to narrow the class of individuals and/or entities against whom

an individual could bring a claim for aiding or abetting discrimination to employers

and employees.

Id.

In light of the above, Malcomson has not stated a § 659A.030(1)(g) claim against any

Daimler Group defendant, because it has not alleged that Daimler NA was his employer. The district

judge should dismiss Malcomson’s ORS § 659A.030(1)(g) claim, but with leave to amend to allege

that Daimler NA was his employer, and that Hofman and Steffenson were employees of his

employer.

4. Wrongful Discharge Claim

Malcomson asserts his Third Claim for Relief, common law wrongful discharge, against all

defendants. The elements of a wrongful discharge claim are: a discharge of the employee who was

fulfilling an important public duty, or exercising a job-related right that reflects on an important

public policy. Arnold v. Pfizer, Inc., 970 F. Supp. 2d 1106, 1145 (D. Or. 2013). Malcomson alleges

that he was terminated for engaging in the aid of a public duty and fulfilling a societal obligation,

by reporting defendants’ wrongful conduct, including race discrimination. (FAC ¶¶ 37, 38.)

Malcomson’s wrongful discharge claim arises from the same conduct alleged in his First Claim

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under ORS § 659A.199 (reporting concerns about wrongful conduct), and his Second Claim under

ORS § 659A.030(1)(f) (reporting concerns about racial discrimination), and includes similar

elements of proof.

The Daimler Group argues that Malcomson’s common law wrongful discharge must be

dismissed because Malcomson has an adequate remedy under statutory law. (Defs.’ Mot. Dismiss

6.) Relying on the Oregon Court of Appeals’ decision in Kemp v. Masterbrand Cabinets, Inc., 257

Or. App. 530 (2013), Malcomson responds that the Daimler Group must first establish that an

adequate remedy exists and that the legislature intended the statute to abrogate the common law.

(Pl.’s Resp. 13 (emphasis added).) Alternatively, Malcomson contends that the Daimler Group is

liable for wrongful discharge pursuant to a theory of joint tort liability. (Pl.’s Resp. 14-15.) 

Courts in this district have consistently held that a common law wrongful discharge claim

provides the same remedies as a whistleblower retaliation claim under ORS § 659A.199, and that

the two claims may not be pursued simultaneously. See, e.g., Duran v. Window Prod., Inc., No. 3:10-

cv-00125-ST, 2010 WL 6420572, at *5 (D. Or. Dec. 22, 2010) (“ORS 659A.199 provides an

adequate (if not better) remedy [than a common law wrongful discharge claim].”); see also Battan

v. Allwest Underground, Inc., No. 3:08-cv-00707-BR, 2008 WL 4191467, at *6 (D. Or. Sept. 5,

2008) (“Plaintiff’s wrongful-discharge claim under Oregon common law is not available because

§ 659A.030(1)(f) provides adequate remedies to the extent Plaintiff intended to base his claim on

wrongful discharge in retaliation for pursuing his right to be free from racial discrimination.”).

Nevertheless, Malcomson asserts that a defendant must demonstrate both that the provided

remedy is adequate and that the legislature intended the statute to abrogate preexisting common law

remedies. Kemp, Inc., 257 Or. App. at 537-38 (“[F]or those subsequently enacted statutes to displace

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that preexisting common-law claim, they must not only have provided ‘adequate’ remedies but also

have been intended to displace the claim.”). On the contrary, courts in this district routinely hold that

the applicable test for preclusion of a common law wrongful discharge claim is disjunctive, an

adequate remedy or legislative intent. See, e.g., Wall v. Sentry Ins., 3:14-cv-1887-SI, 2015 WL

350683, at *3 (D. Or. Jan. 26, 2015) (holding that the test for preclusion of a common law wrongful

discharge claim is disjunctive); Neighbor v. Quest Health Care, 870 F. Supp. 2d 1069, 1106 (D. Or.

2012) (holding that common law wrongful discharge claim was precluded by available adequate

statutoryremedy, and that the conjunctive test is “inconsistentwith Oregon Supreme Court precedent

and an unnecessary expansion of the tort of wrongful discharge”); Duran v. Window Prod. Inc.

(Duran II), No. 3:07-cv-125-ST, 2011 WL 1261190, at *2 (D. Or. Mar. 29, 2011) (relying on

analysis in Reid, and declining to adopt the Oregon Court of Appeals’ conjunctive test until the

Oregon Supreme Court has clarified the issue);Reid v. Evergreen Aviation Ground Logistics Enters.,

Inc., No. 3:07-cv-1641-AC, 2009 WL 136019, at *19-20 (D. Or. Jan. 20, 2009) (noting that the

Ninth Circuit is in accord with a disjunctive reading and a finding that the wrongful discharge claim

is preempted by adequate statutory remedies); Hull v. Ivey Imaging LLC, No. 3:08-cv-744-HU, 2008

WL 5071100, at *2-3 (D. Or. Nov. 21, 2008) (holding that the court continues to apply the

disjunctive test pending the Oregon Supreme Court speaking more conclusively on the matter);

Adams v. Home Depot USA, Inc., 3:05-cv-1798-ST, 2007 WL 4565163, at *29 (D. Or. Dec. 19,

2007) (holding that in light of prior analysis and the lack of contrary persuasive reasons, “this court

continues to require either a show of adequate statutory remedies or a specific legislative intent to

abrogate the common law, but not both”) (emphasis in original).

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Like the plaintiff in Lovell v. Sky Chefs Inc., No. 3:15-cv-00327-SI, 2015 WL 4488026, at

*3 (D. Or. July 22, 2015), Malcomson “makes no effort to distinguish this long line of cases” and

instead relies “solely on the Oregon Court of Appeals decision in Kemp . . . (applying the conjunctive

test.)” In accordance with the precedent in this district, including the recent Lovell opinion, this

Court will continue to apply the disjunctive test, if and until the Oregon Supreme Court reaches a

different conclusion. Id. As a result, the Court finds that Malcomson has an adequate statutory

remedy against the Daimler Group under ORS §§ 659A.199 and 659A.030(1)(f).

For these reasons, the district judge should dismiss Malcomson’s wrongful termination claim

against the Daimler Group, with prejudice.

5. Intentional Interference Claims

Malcomson pleads his Fifth Claim for Relief for intentional interference with economic

relations (“IIER”) against all Daimler Group defendants. Specifically, Malcomson alleges that

defendants intentionally interfered with his employment relationship with Concentra, and that

defendants’ intentional interference caused him to lose the opportunity for continued employment

with Concentra, and future employment in the medical field. (FAC ¶¶ 48, 49, 58.)

To prevail on an IIER claim, a plaintiff must prove six elements: (1) the existence of a

professional or business relationship, (2) intentional interference with that relationship, (3) by a third

party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect

between the interference and damage to the economic relationship, and (6) damages. McGanty v.

Staudenraus, 321 Or. 532, 535 (1995). The tort of IIER “serves as a means of protecting contracting

parties against interference in their contracts from outside parties.” Id. at 536 (emphasis in original).

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The Daimler Group challenges Malcomson’s pleading of the “improper means or improper purpose”

element.5

Specifically, the Daimler Group contends that Malcomson’simpropermeans allegations arise

from alleged violations of ORS Chapter 659A, and that Malcomson is unable to assert those

statutory claims because the Daimler Group is neither his employer, nor employees of his employer.

(Defs.’ Mot. Dismiss 7-8; Defs.’ Reply 10-11.) The Daimler Group relies on cases from this district

holding that an IIER claim may not be premised “on a non-viable statutory or common-law claim.”

McIntire, 2015 WL 9274301, at *3; see also Witt Co. v. RISO, Inc., 948 F. Supp. 2d 1227, 1245 (D.

Or. 2013) (dismissing an IIER claim where alleged antitrust violations furnished the improper means

and the antitrust claim had been dismissed); Noel v. Hall, No. 3:99-cv-649-AC, 2012 WL 3241858,

at *14 (D. Or. Apr. 27, 2012) (concluding that improper means necessary for an intentional

interference with contractual relations claim could not be furnished by statutory claims that failed

as a matter of law). 

In response,Malcomson argues that its allegations of improper means or motive are sufficient

at this stage of the proceedings. (Pl.’s Resp. 16-17.) Specifically, Malcomson contends that

retaliation, even absent an employer relationship, can supply the improper means or motive. (Pl.’s

Resp. 17 (citing Duke, 739 F. Supp. 2d at 1306-07).) Alternatively, Malcomson argues that IIER can

arise if an employee acts outside the scope of employment. (Pl.’s Resp. 18-19.)

With regard to the improper means or purpose element, Malcomson alleges that the Daimler

Group instructed Concentra to terminate Malcomson in retaliation for reporting wrongful conduct,

5 The Daimler Group initially also challenged the “third party” element, but have since

acknowledged that Malcomson is permitted to argue alternative theories to support his IIER claim.

Thus, the Daimler Group abandons their third-party argument as moot. (Defs.’ Reply 10.)

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with the purpose of ending his employment relationship.6

(FAC ¶ 51.) This allegation is sufficient

to satisfy the improper purpose prong of an IIER claim under Oregon law. See, e.g., Boers v. Payline

Sys., 141 Or. App. 238, 243-44 (1996) (holding that allegation that corporate agent intentionally

interfered with plaintiff’s employment relationship “for the improper purpose to retaliate against

plaintiff” was sufficient to permit Oregon intentional interference claim to survive a motion to

dismiss); Duke, 739 F. Supp. 2d at 1306-07 (“Here, Duke raises allegations of improper purpose that

an objectively reasonable juror could conclude were wrongful, i.e., retaliation for filing a workers’

compensation claim even though Horizon is not the employer.”). For these reasons, the district judge

should deny the Daimler Group’s motion to dismiss Malcomson’s IIER claims.

IV. CONCLUSION

For the reasons set forth above, the district judge should GRANT, in part, and DENY, in part,

the Daimler Group’s Motion to Dismiss (ECF No. 8). The Court GRANTS the Daimler Group’s

Motion to Strike (ECF No. 19).

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6 Malcomson clarified at oral argument that he would rely on allegations of an improper

purpose or motive, rather than allegations of improper means.

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V. SCHEDULING ORDER

The Findings and Recommendation will be referred to a district judge. Objections, if any, are

due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed,

the Findings and Recommendation will go under advisement on that date. If objections are filed, a

response is due fourteen (14) days after being served with a copy of the objections. When the

response is due or filed, whichever date is earlier, the Findings and Recommendation will go under

advisement.

Dated this 3rd day of August 2016.

 

STACIE F. BECKERMAN

United States Magistrate Judge

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