2016 Ore. App. LEXIS 545
Jackson Cty. Cir. Ct., O.R.2016Background
- Plaintiff (executive chef) was hired in June 2010 and terminated December 20, 2010; he sued for retaliatory discharge under ORS 659A.030(1)(f), claiming he was fired for assisting a coworker (Valdovinos) with a sexual‑harassment complaint at a related company (Anna Maria).
- Plaintiff alleges he referred Valdovinos to his labor attorney on December 8, 2010; he received a performance “conference report” on December 17 and was fired December 20. Plaintiff contends prior evaluations were positive and that a negative September performance review in his personnel file was fabricated and backdated.
- Defendant moved for summary judgment on causation, producing declarations from the executive director (Roper) and supervisor (Owen) that termination was due to performance problems documented by a December mock survey; defendant denied Horton (shared owner) influenced the decision and emphasized favorable treatment of Valdovinos.
- Plaintiff opposed with deposition testimony, a (struck) landlord affidavit showing prior praise, and an ORCP 47 E attorney declaration stating an unnamed retained expert (computer forensics) was available to testify about document metadata. A discovery dispute over electronic files/metadata of the performance review was pending.
- The trial court struck the landlord affidavit and deemed the ORCP 47 E declaration inadmissible, granted summary judgment for defendant on retaliation, and plaintiff appealed. The court of appeals reversed and remanded on the retaliation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff produced admissible ORCP 47 E evidence to oppose summary judgment | ORCP 47 E declaration suffices because an unnamed retained expert (computer forensics) can show the performance review was falsified/backdated | ORCP 47 E inapplicable because expert testimony isn’t “required” to prove motive and the declaration is improper | Held admissible: given plaintiff’s theory (metadata/computer evidence), ORCP 47 E required the court to credit the attorney’s declaration and treat it as creating an issue of fact |
| Whether timing and other circumstantial evidence create a genuine issue of causation | Close temporal proximity plus alleged fabrication of review and plaintiff’s positive prior evaluations create a jury question whether protected activity was a substantial factor | Temporal proximity alone is insufficient; mock survey and documented performance issues break causal link | Held timing plus alleged falsified review and deposition testimony create sufficient circumstantial evidence to survive summary judgment |
| Whether defendant’s evidence (Roper/Owen declarations, Valdovinos’s favorable treatment) defeats claim as a matter of law | Plaintiff: credibility and motive are jury questions; Roper may have relied on fabricated documents | Defendant: decisionmaker (Roper) acted for legitimate, nonretaliatory reasons; Valdovinos’s favorable treatment contradicts retaliation theory | Held credibility and motive are for the jury; defendant’s evidence does not compel summary judgment |
| Whether striking the landlord affidavit was dispositive | Plaintiff argued the affidavit supported pre‑termination praise and job security, corroborating retaliation inference | Defendant argued the affidavit was hearsay and not ORCP 1 E compliant | Court of appeals did not decide the affidavit ruling; reversal was based on admissibility/effect of ORCP 47 E declaration and other record evidence |
Key Cases Cited
- Ledesma v. Freightliner Corp., 97 Or App 379 (temporal proximity alone insufficient to prove causation)
- Two Two v. Fujitec America, Inc., 355 Or 319 (ORCP 47 E and shielding of expert content pretrial)
- Hinchman v. UC Market, LLC, 270 Or App 561 (clarifying when expert testimony is “required” for ORCP 47 E)
- Hardie v. Legacy Health System, 167 Or App 425 (causation standard: unlawful motive as substantial factor)
- Elk Creek Management Co. v. Gilbert, 353 Or 565 (substantial‑factor test used across retaliation contexts)
- Towe v. Sacagawea, Inc., 357 Or 74 (summary judgment burden framed by moving party)
- Two Two v. Fujitec America, Inc., 355 Or 319 (procedural protections for expert evidence under ORCP 47 E)
- Huber v. Dept. of Education, 235 Or App 230 (close temporal proximity as circumstantial evidence of retaliation)
- Herbert v. Altimeter, Inc., 230 Or App 715 (same)
- Perry v. Rein, 215 Or App 113 (subjective belief of decisionmaker may be challenged by plaintiff’s evidence)
- La Manna v. City of Cornelius, 276 Or App 149 (biased subordinate influence on decision)