concurring in part; dissenting in part.
I agree with the majority’s disposition of the claim for intentional infliction of severe emotional distress. However, I disagree with its discussion of the tort of wrongful discharge and, as to that claim, dissent.
Even assuming that the majority correctly concludes that the statutory remedy for retaliation is not exclusive, plaintiff fails to state a claim. Although her complaint is not clear, it appears that she failed even to plead that she was discharged, actually or constructively by a forced resignation. That element is so basic to a claim of wrongful discharge that it is inappropriate to permit repleading. Plaintiff admitted by her pleading that she simply quit on July 14, 1986, allegedly because she disapproved of her employer’s practices. Later, she alleges, the employer told her, in effect, “You can’t quit; you were fired.”
In addition, and more fundamentally, I disagree with the majority’s analysis of statutory exclusivity. Although it sometimes seems that the exceptions have swallowed the rule, an employer in Oregon may dismiss an employe “at will” in the absence of a contractual, statutory, or constitutional prohibition. Patton v. J. C. Penney Co., 301 Or 117, 120-22, 719 P2d 854 (1986); Simpson v. Western Graphics, 293 Or 96, 99, 643 P2d 1276 (1982). Nees v. Hocks, 272 Or 210, 536 P2d 512 (1975), the case that first recognized the tort of “wrongful discharge” in Oregon, “rejected the concept that every intentional infliction of harm is prima facie a tort unless justified.” Top Service Body Shop v. Allstate Ins. Co., 283 Or 201, 209, 582 P2d 1365 (1978); see also Swanson v. Van Duyn Choc. Shops, 282 Or 491, 579 P2d 239 (1978).
The Supreme Court has approved the wrongful discharge theory in only two kinds of situations. First, a claim can be stated when an employer has discharged an employe for *543fulfilling a societal obligation. Nees v. Hocks, supra; Delaney v. Taco Time Int’l., 297 Or 10, 16, 681 P2d 114 (1984). Second, a wrongful discharge claim may exist when an employe “is discharged while pursuing a [private] right related to his or her role as an employe and the right is one of important public interest indicated by constitutional and statutory provisions and caselaw.” Holien v. Sears, Roebuck and Co., 298 Or 76, 90, 689 P2d 1292 (1984). The majority places the present claim in the first category.
Wrongful discharge is an interstitial tort, however. If other adequate remedies exist, a wrongful discharge claim will not lie. Walsh v. Consolidated Freightways, 278 Or 347, 563 P2d 1205 (1977), held that an employe could not state a tort claim when he was fired for reporting a safety violation. The court reasoned that there was an adequate remedy under existing statutes. The Supreme Court has taken pains to preserve that limitation and continues to cite Walsh with approval. Patton v. J. C. Penney, supra, 301 Or at 121; Holien v. Sears, Roebuck and Co., supra, 298 Or at 83-84, 101.
For that reason, the common law cause of action for wrongful discharge based on an allegation of termination in retaliation for the employe’s having reported abuse of patients at a convalescent care center, recognized in McQuary v. Bel Air Convalescent Homes, Inc., 69 Or App 107, 684 P2d 21, rev den 298 Or 37 (1984), did not survive the 1981 adoption of ORS 659.035(1). That statute makes it an unlawful employment practice for an employer to fire an employe for reporting patient abuse in good faith, and it permits that employe to file a civil action. ORS 659.121(1). McQuary had been terminated in 1980, when she had no access to court to complain of her discharge.
The majority fails to explain why we should depart from the usual assumption that the legislature was aware of the pertinent cases, including Walsh v. Consolidated Freightways, supra, when it enacted ORS 650.035(1). In Holien v. Sears, Roebuck and Co., supra, the court noted that the statutory remedy in that case was a response to “the inadequacies of the administrative complaint process.” 301 Or at 96. The court wrote:
“It seems elementary that before a legislative body can intend to eliminate certain forms of remedy it must be aware *544that such remedies exist.7 The legislature, in 1977, had no idea that remedies other than those provided through the administrative complaint process were available to employes.
What may have been true in 1977 was not true in 1981. By then, the Supreme Court had recognized the tort of wrongful discharge in Nees and had decided both Walsh and Brown. The legislative history of ORS 659.035 shows that the legislators who considered Senate Bill 450 were aware of the problem of retaliation against employes who complained about patient care and specifically intended to remedy that problem.
Moreover, ORS 659.035(2) provides:
“Complaints may be filed by employes, and this section shall be enforced by the Commissioner of the Bureau of Labor and Industries in the same manner as provided in ORS 659.040 to 659.110 and 659.121 for the enforcement of an unlawful employment practice. Violation of subsection (1) of this section subjects the violator to the same civil and criminal remedies and penalties as provided in ORS 659.010 to 659.110 and 659.121.”
Absent in Holien v. Sears, Roebuck and Co., supra, was any similar limiting expression of the ways in which a violation would be remedied.1
The majority does not adequately explain why the statutory remedy is inadequate or nonexclusive with respect to the retaliation claim (as distinct from the claim of intentional *545infliction of severe emotional distress). As I read the confusing amended complaint in this case, plaintiff s prayer for general and punitive damages relates to her extraneous allegations of defamation. She alleges that, in the course of firing her, defendants told others that she was “dishonest, untrustworthy, a thief, and incompetent.” Plaintiff cannot make an otherwise adequate remedy, for a wrongfully motivated firing, inadequate by grafting onto it a wholly separate tort or merely evidentiary allegations.
Holien v. Sears, Roebuck and Co., supra, does not obliterate the distinction between statutory discrimination, which is not separately actionable as a tort, and a tortious discharge for conduct that is outside the scope of the statutory prohibitions and remedies. The logic of Walsh, v. Consolidated Freightways, supra, which is still good law, suggests that plaintiffs claim of retaliation cannot support an action for wrongful discharge.2 I would hold that she has failed to state a claim for wrongful discharge, and I dissent from the majority’s contrary holding.
Judges Buttler and Edmonds join in this dissent.
“7 We are aware of the dicta in Brown v. Transcon Lines, 284 Or 597, 611, 588 P2d 1087 (1978), asserting that a legislative intent to abrogate or supersede any previously existing common law remedy may be implied ‘even though the legislature might not have been aware of such a remedy.’ We reject such a contention in this case.”
Compare Brown v. Transcon Lines, supra, 284 Or at 611-13. There, the court held that remedies under the 1973 workers’ compensation discrimination statute were inadequate, and therefore nonexclusive, because the Commissioner of Labor and Industries was not required to investigate or take action on complaints and because the statute did not provide for a civil action. The court noted that 1977 legislative changes made agency investigation and enforcement mandatory and allowed aggrieved employes the option to sue employers directly. The court suggested, but did not need to decide, that the result might be different under the 1977 law. ORS 659.035(2) contains the same remedies as that 1977 law.
As I read the Supreme Court’s opinions in the wrongful discharge cases, they establish that all of these elements are necessary to state a claim:
1. The plaintiff was employed by the defendant and was dismissed involuntarily.
2. The plaintiff pursued either
(a) a public, societal obligation recognized in the clear mandate of existing law (statute, regulation, constitutional provision, case) or
(b) a private legal right that is
(i) related directly to the plaintiffs role as an employe and
(ii) “of important public interest indicated by constitutional and statutory provisions and caselaw.”
3. The defendant discharged the plaintiff because of the exercise of such a right.
4. The same right is not adequately protected by other existing remedies.
5. The defendant’s act caused the plaintiff damage.