Burley v. Clackamas Cnty.
446 P.3d 564
Or. Ct. App.2019Background
- Plaintiff was a Clackamas County human services manager who sued the county for whistleblower retaliation under ORS 659A.199 and ORS 659A.203 after reporting alleged improper use of federal grant funds.
- Plaintiff also asserted a national-origin hostile work environment claim under ORS 659A.030; the jury found for the county on that claim.
- At the close of plaintiff's case, the county moved for a directed verdict contending ORS 659A.199 applies only to private employers; the trial court denied the motion.
- The jury found the county violated ORS 659A.199 and ORS 659A.203 and awarded $386,916 in damages to plaintiff.
- On appeal the county challenged (1) the submission of ORS 659A.199 to the jury, (2) jury instructions on ORS 659A.203, and (3) the trial court’s refusal to strike the jury panel after a remark about summary judgment.
- The court of appeals affirmed: it rejected the jury-strike claim, held ORS 659A.199 includes public employers, and found no reversible error in the remaining contentions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "employer" in ORS 659A.199 includes public employers | ORS chapter 659A defines "employer" to include public bodies; thus ORS 659A.199 applies to public employers | ORS 659A.199 was intended to cover only private employers; public employers already had protection under ORS 659A.203 | "Employer" as used in ORS 659A.199 includes public bodies per ORS 659A.001 definitions; statute applies to public employers |
| Whether the trial court abused discretion by not striking the jury panel after a summary-judgment remark | Plaintiff: court remarks did not create bias and were within discretion | County: remark suggested plaintiff’s claims had merit and tainted the panel | No abuse of discretion; contextual review showed no likelihood of prejudice |
| Whether any errors in instructing on ORS 659A.203 require reversal | Plaintiff: at least one theory (ORS 659A.199) was properly submitted, so any ORS 659A.203 errors are harmless | County: instructional errors required reversal of verdict | Because ORS 659A.199 was properly submitted and is an independent viable theory, any claimed ORS 659A.203 errors are harmless; affirm |
Key Cases Cited
- Miller v. Columbia County, 282 Or. App. 348 (review of directed verdict denial)
- State v. Hunt, 270 Or. App. 206 (statutory construction is a question of law)
- State v. Couch, 341 Or. 610 (statutory definition supplied by legislature controls interpretation)
- State v. Gaines, 346 Or. 160 (legislative history cannot override unambiguous statutory text)
- Brunozzi v. Cable Communications, Inc., 851 F.3d 990 (federal courts must follow state rules of statutory interpretation when predicting state-law decisions)