The opinion
GILLETTE, P. J.,
concurring in part; dissenting in part.
I join fully in the court’s disposition of plaintiffs wrongful termination claim. However, I decline to join in the disposition of the outrageous conduct claim, because I do not feel that it is required by Hall v. The May Dept. Stores, 292 Or 131 , 637 P2d 126 (1981), or any other precedent.
There is no satisfactory shorthand method of outlining the tort of “outrageous conduct” or “intentional infliction of mental suffering” — a tort that “is still in the process of developing in this state.” Christofferson v. Church of Scientology, 57 Or App 203, 209 , 644 P2d 577 , rev den 293 Or 456 (1982). Judge Linde explained its origins, development and elements this way in Hall :
“Plaintiffs claim rests on a tort theory which Professor William Prosser synthesized from scattered cases allowing recovery for mental distress in a variety of factual settings. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich L Rev 874 (1939); see White, Tort Law in America 102-106 (1980). In such an effort to describe divergent factual patterns as instances of a single tort, it is not easy to define the elements of the tort so as to fit all cases. As appears from the title given it in Prosser’s article, however, and later embraced in the Restatement of Torts § 46, ‘Conduct Intended to Cause Emotional Distress Only,’ (1948 Supp 612-616), the theory of plaintiffs claim belongs among the intentional torts. Like most torts, it is marked by the elements of a defendant’s state of mind, the character of the defendant’s act that causes the plaintiffs injury, the nature of plaintiffs injury, and under some circumstances the relationship between plaintiff and defendant. See Brewer v. Erwin, 287 Or 435, 454-458 , 600 P2d 398 (1979).
*646 “In the cases, the element of defendant’s ‘intent’ ranges from a calculated purpose to inflict mental or emotional distress because of personal hostility, or for some impersonal purpose like the debt collection methods in Turman v. Central Billing Bureau, Inc., 279 Or 443 , 568 P2d 1382 (1977), through the mindless ‘amusement’ of practical jokes as in the leading case of Wilkinson v. Downton, [1897] 2 Q.B. 57, to encompass also the intent to do the painful act with knowledge that it will cause grave distress, when the defendant’s position in relation to the plaintiff involves some responsibility aside from the tort itself, as this court found in the case of a physician who turned away accident victims seeking his help. Rockhill v. Pollard, 259 Or 54 , 485 P2d 28 (1971). Lack of foresight, indifference to possible distress, even gross negligence is not enough to support this theory of recovery.
“Apart from intent, defendant’s act must in fact cause plaintiff mental or emotional distress of a severe and serious kind; the tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life even when the intentional conduct causing plaintiffs distress otherwise qualifies for liability. Similarly, insults, harsh or intimidating words, or rude behavior ordinarily do not result in liability for damages even when intended to cause distress. Contemporary standards of civility hardly allow turning every case of justified indignation into an action for financial recompense. See Brewer v. Erwin, supra, 287 Or at 457 , 600 P2d 398 (1979), Pakos v. Clark, 253 Or 113, 132 , 453 P2d 682 (1969). The tort requires some extraordinary transgression of the bounds of socially tolerable conduct.
“In attempting to articulate what separates actionable conduct from the ordinary run of crudely aggressive, overbearing, or ill-tempered behavior, Prosser and the Restatement turned to adjectives like ‘outrageous’ and ‘extreme.’ These are not words of art; other words or phrases could serve as well. All are designed only to express the outer end of some gradation or scale of impropriety and social disapproval. No more can be conveyed by defining one epithet by another.” 292 Or at 134 .
After defining the tort, the court in Hall turned to application of the law to the facts before it:
“The crux of plaintiffs claim is that defendant Rummell, as director of security of Meier & Frank Co., accused plaintiff of stealing money and threatened her with prosecution and imprisonment in a manner designed to frighten her and make her an example for other employees, that Rummell made the *647 accusation regardless of his actual belief as to her guilt or innocence and that subsequently she was put under surveillance and was denied the opportunity to sell merchandise successfully so that eventually she had to quit her job.” 292 Or at 139 .
In conducting its analysis, however, the court took great care to distinguish between those matters cognizable as part of the tort and those matters that were not pertinent:
“[Plaintiff had alleged that defendants’ conduct was actionable in part because their accusations against plaintiff were based on certain charts Rummell had prepared to show the frequency with which cash register shortages corresponded with the use of that register by a particular employee.] We focus particularly on whether the jury could find that Rummell attempted to threaten and frighten plaintiff as a deliberate tactic even though he knew that he did not have convincing evidence of misconduct on her part. Two other charges made by plaintiff have no independent force to establish this tort. Asserted weaknesses of the charting system would not be in point divorced from its intentional use as a psychological instrument in confrontations with suspected employees. Also, the decisions concerning plaintiff’s work assignments subsequent to the episode were not the kind of acts encompassed by this tort.” 292 Or at 139 . (Emphasis supplied.)
The court then went on to find that the relevant evidence raised a jury question as to whether defendants had committed the tort. With the court’s methodology in mind, I now turn to the question in this case.
This is a pleading case. The issue is whether the wellpled facts in plaintiffs complaint make out a claim for intentional infliction of emotional distress. Plaintiff alleged, in pertinent part:
“VIII
“On or about October 14, 1981, Defendant McKay instructed Plaintiff that Plaintiff was to discontinue a social relationship with a certain female co-employee of the Clackamas Town Center Penney store; Plaintiff advised Defendant McKay that he did not socialize with this co-employee during business hours, however, Plaintiff asserted his intentions to carry on a social relationship with this co-employee outside of business hours and away from the Penney *648 store; Defendant McKay was made angry and resentful toward Plaintiff by this assertion.”
The majority holds — and I agree — that discharging him because his supervisor did not approve of plaintiffs relationship with a co-employe is not actionable on a theory of wrongful discharge. It would seem self-evident, then, that directing plaintiff to discontinue the relationship (in lieu of permissibly firing him) must not be actionable, either. I conclude that the events recited in paragraph VIII are not actionable.
“X
“Defendant McKay after the communication to Plaintiff alleged in Paragraph VIII hereof, frequently asked Plaintiffs co-employees if Plaintiff was still socializing with this female co-employee and when told that Plaintiff was still socializing with her, Defendant McKay would comment to the effect that if Plaintiff wished to remain employed he would break off the relationship; these inquiries and comments were duly reported to Plaintiff, as was Defendant McKay’s intention.”
What was said about paragraph VIII applies equally here.
“XI
“Plaintiff continued to assert his right to socialize with this co-employee outside the business hours and away from the store, and Defendant McKay thus became increasingly angry and resentful toward Plaintiff.”
One would suppose so. McKay, once embarked on his churlish course, was not likely to desist. Still, those allegations only establish McKay’s state of mind. No impermissible conduct is alleged.
“XII
“At no time during Plaintiffs employment with Defendant Penney was there any written or unwritten policy, rule or regulation proscribing intra-company and intra-store fraternization between employees.
“XIII
“Although Plaintiffs job performance was exceptionally good, Defendant McKay eventually, in the very late part of 1981, warned Plaintiff that Plaintiffs job performance was unsatisfactory and if improvement was not shown, Plaintiff would be terminated.”
*649 The lack of any written policy on intra-company fraternization is not pertinent if plaintiff, as an at will employe, could be fired on any basis at all. To turn this lack of written policy into an allegation supporting an outrageous conduct claim substantially destroys the at will doctrine. Similarly, calling plaintiff a poor worker when he was a good one had better not be actionable in these circumstances. An at will employe may be terminated for any reason, even one that would seem wholly unsupportable to fair minded persons. How can merely threatening to do that which is not actionable if done give rise to a cause of action?
“XIV
“Although Plaintiff requested a transfer to another Penney store, as part of an effort to avoid further confrontation with Defendant McKay and to preserve his employment interest with the Penney Co., this request was wrongfully and maliciously denied by Defendant McKay, and on or about February 1, 1982, Defendant McKay, acting within the scope of his employment dismissed Plaintiff; the basis for this dismissal as given by Defendant McKay was unsatisfactory job performance.”
The employer did not have to retain or transfer this employe.
“XVIII
“At the time of Plaintiffs wrongful discharge from employment with Penney, Plaintiff was supporting a 15-year-old sister, two minor children and a spouse from whom he was separated pending dissolution of the marriage; Defendant McKay was aware of all these circumstances.
“XIX
“Positions of the type for which Plaintiff was qualified and with comparable salaries and benefits were virtually nonexistent in the economy to one who was after twelve years discharged for unsatisfactory job performance, as Defendant McKay knew.”
It may very well be that these allegations, like those in paragraph XI, help to establish the requisite mental state of defendants. They may also help to establish the element of emotional distress. They do not, however, allege any other conduct, i.e., a separate method of infliction of this distress, aside from the aforementioned (and permissible) firing.
*650 “XX
“Plaintiff protested his discharge to District Manager Defendant Chapin, who being fully aware of the circumstances as alleged herein, approved, adopted and authorized Defendant Mckay’s conduct; Defendant Chapin as District Manager had the authority and the discretionary power to reverse Defendant McKay’s dismissal of Plaintiff.
“XXI
“The actions of Defendant Penney’s agents, Defendants McKay and Chapin, were done with malice and in retaliation for Plaintiffs assertion of his valued rights and were intended to inflict upon Plaintiff severe emotional distress.”
Again, these allegations establish intent and effect, not the necessary and impermissible conduct. The only acts alleged by this complaint to constitute outrageous conduct are (1) telling plaintiff to stop seeing his girlfriend or face the consequences and (2) imposing the consequences. If those acts are not actionable as wrongful termination, what is it that turns them into another tort?
The answer cannot be the degree of the discharged employe’s upset — whatever the reasons for that upset may be. Most people who lose their jobs are quite upset. Many face serious consequences from the job loss that worry them, but it has always been the law in this state that, without a violation of some separate public policy not implicated here, the reasons for the discharge of an at will employe are not subject to judicial scrutiny. The majority’s decision today turns that rule on its head. I cannot agree.
In summary, I find McKay’s alleged behavior rude, boorish, tyrannical, churlish and mean — and those are its best points. I do not, however, find it to be outrageous in the extreme, and I do not believe a jury should be permitted to do so.
I respectfully dissent.