423 P.3d 133
Or. Ct. App.2018Background
- Plaintiff was a medical assistant at Hope Orthopedics and alleged sexual and religious harassment by defendant, an orthopedic surgeon who effectively supervised her.
- Plaintiff complained to her employer; Hope investigated; plaintiff resigned to attend graduate school; defendant then resigned.
- After resigning, defendant visited the plaintiff's graduate school and made disparaging statements implying she made false allegations for settlements, causing reputational and emotional harm.
- Plaintiff sued defendant for defamation, intentional infliction of emotional distress, intentional interference with business relationships, and unlawful employment retaliation under ORS 659A.030(1)(f).
- The trial court dismissed the retaliation claim under ORCP 21 A(8), concluding the statute did not cover defendant's conduct; jury later found for plaintiff on defamation and for defendant on emotional distress.
- On appeal, the court reviewed statutory text, context, and legislative history and reversed the dismissal of the retaliation claim, holding ORS 659A.030(1)(f) can reach an individual like defendant under the facts alleged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 659A.030(1)(f) covers retaliation by an individual non‑employer | ORS 659A.030(1)(f) uses the broad term "any person," so it covers individuals like defendant | The statute originally targeted employers, labor orgs, and agencies; "person" was not intended to expand liability to non‑employer individuals | Reversed: "any person" includes individuals; trial court erred to dismiss on that basis |
| Whether defendant's post‑employment disparagement is "discriminate" under paragraph (f) | Plaintiff: retaliatory acts outside the workplace that deter use of statutory remedies fall within paragraph (f) | Defendant: "discharge, expel, or otherwise discriminate" should be limited to harms affecting terms/conditions of employment | Held that "otherwise discriminate" is broad; post‑employment, offsite retaliation akin to negative references can be covered under paragraph (f) in these facts |
| Whether legislative history of HB 2352 shows the 2001 change was nonsubstantive | Plaintiff: plain text controls; context and case law support broader reading | Defendant: legislative history shows HB 2352 was housekeeping and did not intend substantive change | Court: legislative history is unhelpful to override plain language; cannot substitute legislative intent where text is clear |
| Whether the case law supports expanding scope to former employees/individuals | Plaintiff: federal and Oregon precedents interpret anti‑retaliation provisions broadly to protect access to remedial mechanisms | Defendant: imposing liability on co‑workers/former employees would unduly expand statute | Court: followed Robinson and Burlington reasoning and Oregon precedent (PSU) to permit liability here given close temporal and employment connection |
Key Cases Cited
- Robinson v. Shell Oil Co., 519 U.S. 337 (anti‑retaliation provision reaches post‑employment retaliation to protect access to remedies)
- Burlington N. & S. F. R. Co. v. White, 548 U.S. 53 (anti‑retaliation provision covers off‑workplace and non‑employment‑related harms that deter protected activity)
- PSU Ass'n of Univ. Professors v. PSU, 352 Or. 697 (ORS 659A.030(1)(f) construed broadly to prohibit retaliatory actions that would deter pursuit of statutory rights)
- State v. Gaines, 346 Or. 160 (statutory construction principles: text and context first)
- Caba v. Barker, 341 Or. 534 (standard on an ORCP 21 A(8) dismissal)