concurring in part; dissenting in part.
I agree with the lead opinion that the court did not err in dismissing plaintiffs claim for wrongful discharge. The facts pleaded do not make out a claim.
The claims for wrongful discharge and intentional infliction of emotional distress were pleaded in the “Amended Complaint” and both were stricken under ORCP 2lA(8).1 Both of these claims are premised on the theory that plaintiff s employment was generally terminable at will. They are also based on a single incident that plaintiff claimed occurred at work. He alleged that he was employed as a salesperson, and that
“defendants instructed plaintiff to pull down his pants, and expose * * * [himself] to Defendant Dan David, [his supervisor] and others. At the time * * * plaintiff was on duty, at work, and was standing in a public place which was in the open view of members of the public, including fellow employees, children, women and customers.”
He alleged that he refused to do as instructed and was instructed two more times to pull down his pants. He again refused, and “[a]s a result of failing to do as instructed and ordered * * * defendants terminated plaintiff.”
In the first claim of the amended complaint, plaintiff does not allege that his employment was other than at will. In Sheets v. Knight, 308 Or 220, 779 P2d 1000 (1989), the court summarized the concept of at will employment and the exceptions recognized in Oregon:
“ ‘[Generally an employer may discharge an employee at any time and for any reason, absent a contractual, statutory or constitutional requirement [to the contrary]. Termination of *486employment ordinarily does not create a tortious cause of action.’ ” 308 Or at 230 (quoting Patton v. J. C. Penney, 301 Or 117, 120, 719 P2d 854 (1986)).
The exceptions, other than statutory or constitutional restrictions, are a discharge for exercising a job-related right, see Brown v. Transcon Lines, 284 Or 597, 588 P2d 1087 (1978), or a discharge for complying with a public duty. See Nees v. Hocks, 272 Or 210, 536 P2d 512 (1975). To establish a claim for wrongful discharge when the employment is at will, the plaintiff must plead and prove that the discharge fell within one or both of the exceptions to the general rule of termination.
Plaintiff alleges the facts of the incident with David, that he was discharged and that the discharge was wrongful. As in Sheets v. Knight, supra, “The pleadings contain no allegation that the plaintiff was ‘discharged’ for complying with or fulfilling a public duty or for exercising an employment-related right.” 308 Or at 231. Plaintiff does not plead any theory that would relate the facts he alleges to the elements of the tort of wrongful discharge. Sheets v. Knight, supra.
Plaintiff argues that the court can take judicial notice of a Lane County ordinance and a Eugene Ordinance that prohibit the type of exposure that he allegedly was ordered to do. He contends that, had he complied with David’s order, he would have subjected himself to criminal penalties under the ordinances. A discharge, he contends, for refusing to disobey the law is tortious. Assuming the judicially noticed facts of the ordinances to be true, the deficiency of the complaint is not cured. In Sheets v. Knight, supra, the plaintiff, a county employee, alleged that he was discharged by certain governmental officials because of his knowledge of improper activities on their part and because of “personal and political” considerations. The court held that, even assuming that the plaintiffs knowledge of improper activities related to a public duty or was job-related, the complaint was not sufficient to make out a claim for wrongful discharge. The court refused to speculate as to what facts could be proven that would make the plaintiffs discharge wrongful.
The complaint here is equally deficient, even if we assume that plaintiff was asked to do an act that would have *487violated a city or county ordinance. The court did not err in dismissing the claim for wrongful discharge.
I disagree with the lead opinion that plaintiff has pleaded a claim for intentional infliction of emotional distress.
“To state a claim for intentional infliction of severe emotional distress, a plaintiff must plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant’s acts were the cause of the plaintiffs severe emotional distress, and (3) the defendant’s acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.” Sheets v. Knight, supra, 308 Or at 236.
In his claim, plaintiff realleges all the facts supporting the claim for wrongful discharge and then alleges:
“Such conduct by defendants was outrageous, shocking to the conscience and beyond the bounds of tolerable behavior, and was intended to cause and did cause plaintiff severe emotional distress.”
The act that plaintiff alleges is tortious is the discharge. He does not claim damages just because his supervisor “instructed [him] to pull down his pants and expose [himself].” Consequently, the issue is whether the act of discharging plaintiff, even for the reasons that plaintiff claims, is “extraordinary conduct which a reasonable jury could find beyond the farthest reaches of socially tolerable behavior.” Hall v. The May Dept. Stores, 292 Or 131, 137, 637 P2d 126 (1984); see also Lewis v. Oregon Beauty Supply Co., 302 Or 616, 733 P2d 430 (1987). There is nothing in plaintiffs complaint, other than the conclusory allegations that the discharge was “outrageous, shocking to the conscience and beyond the bounds of tolerable behavior’’ and was intended to cause him emotional distress, that would make the act of firing outrageous in the extreme.
In Patton v. J. C. Penney Co., 301 Or 117, 719 P2d 854 (1986), the plaintiff was discharged when he refused to accede to a supervisor’s demand to discontinue a social relationship with another employee. He sought damages for wrongful discharge and intentional infliction of emotional distress. The court said that the focus of the intentional infliction tort is not on the result — the emotional distress — but on the purpose of the tortfeasor and the means used to accomplish that purpose. In response to the facts in Patton, the court said:
*488“In the case at bar, the alleged manner in which plaintiff was discharged does not reach the level of intolerable conduct.” 301 Or at 124.
The court then described the plaintiffs supervisor’s conduct as “rude, boorish, tyrannical, churlish and mean” but said that it was not “outrageous in the extreme.” 301 Or at 124. In the light of the Supreme Court’s description of the tort, plaintiffs allegations here fall far short of stating a claim. The trial court did not err in dismissing the claim under ORCP 21A(8). See also Lewis v. Oregon Beauty Supply Co., supra.
In addition to the arguments that dismissal of the claim was proper, defendants contend alternatively that, assuming that the claim was pleaded, any error in dismissing it was harmless, because the evidence presented demonstrates that plaintiff cannot prove the claim. In deciding if a claim is properly alleged under ORCP 21, we must assume the truth of well pleaded facts. However, in deciding if the error requires reversal, we may look at the evidence actually presented during trial on the other claim. In Pio v. Kelly, 275 Or 585, 552 P2d 1301 (1976), the court held that, even though the trial court had erred in sustaining the plaintiffs demurrer to the defendant’s defenses, there was no prejudice requiring reversal because, from the facts presented at trial on the remaining issues, it was clear that the defendant could not have prevailed on the defenses.
In this case, although the tort claims were dismissed, plaintiff fully presented his evidence in the trial of the contract claim on the incident that was the sole basis of both of the dismissed claims. He was, at the time of the incident, a salesman in the truck division of employer and was in the sales area with David, his supervisor, and another salesman, Jensen. On direct examination, he testified:
“I was in [David’s] office with Mr. Jensen and we were standing there, we always joke around and say things and stuff, but that day was different because Gene McDougald [another salesman] was sitting there in the show room, was walking by the truck building and there is windows all of the way around and Dan asked me and Rich Jensen — let’s B.A. him and I didn’t do anything and Rich, Rich asked me then and I said no. Then Dan asked both of us again and Rich pulled his pants and knocked at the window and [Gene] saw that. Then they walked outside and Gene said that was dirty *489and he walked away. But Dan asked me twice and I said, ‘I am sorry Dan, I have never done that before and I will not do it’ and he said okay.”
On cross-examination, he agreed that the incident was another prank of the sort that the sales force often engaged in, but he did not want to participate at that time.
Plaintiffs own description of the critical incident is not sufficient to support a jury determination in his favor on the tort claim for intentional infliction of emotional distress. If the lead opinion is correct that the claim was sufficiently pleaded and should proceed to trial, the facts presented would not be sufficient to survive a motion for directed verdict. There is no reason to expect that plaintiffs description of the incident would be any different on retrial. Remanding for a trial on this claim is a futility, a waste of court resources, and the error, if such it be, is harmless.
I concur in the lead opinion’s holding that the trial court erred in allowing defendants’ motion for directed verdict on the breach of contract claim.
The contract claim was pleaded for the first time in the second amended complaint as the only claim against both defendants. The case proceeded to trial on the third amended complaint, which alleged only the contract claim and that only against Kendall Ford.