415 P.3d 55
Or. Ct. App.2018Background
- Plaintiff, a Nike maintenance electrician, repeatedly complained internally and to Oregon OSHA about unsafe practices in Nike’s electrician apprenticeship program (EAP), including unsupervised apprentices and misreported training hours.
- After continued disputes, plaintiff was accused of using a closed on‑site gym during a holiday PowerDown and was placed on paid suspension while employee relations (Miller) investigated.
- Miller’s investigation relied heavily on input and emails from two supervisors, Delgado and Treppens, whom plaintiff had earlier reported and whom plaintiff alleged were retaliatory.
- The facilities director, St. Jacques, who did not interview plaintiff, made the final decision to terminate, relying in part on Miller’s investigation and information obtained from Treppens.
- Plaintiff sued under ORS 654.062(5) (safety complaint retaliation) and ORS 659A.199 (whistleblower retaliation). He requested a jury instruction implementing the “cat’s paw” (imputation of subordinate bias) doctrine; the court refused and the jury returned for Nike.
- On appeal the court held the trial court erred by refusing the cat’s paw instruction, reversed the statutory retaliation judgments, and remanded for a new trial on those claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff was entitled to a "cat's paw" (imputation of subordinate bias) jury instruction | Cat's paw instruction correctly states law and was supported by evidence showing biased subordinates influenced the decisionmaker | Cat's paw is novel in Oregon and instruction was unwarranted; existing instructions sufficed | Court held plaintiff was entitled to the instruction; cat's paw is consistent with Oregon law as developed in related cases |
| Whether the requested instruction correctly stated the law | The statutes require a causal link ("because/for the reason that") and subordinate bias can be imputed when a biased subordinate influenced the decision | Because Oregon courts had not expressly adopted cat's paw, the instruction was improper | Court concluded instruction was a correct statement of law, relying on statutory text, tort substantial‑factor causation, and recent Oregon decisions adopting subordinate‑bias principles |
| Whether pleadings and evidence supported the instruction | Complaint alleged adverse action "because" of protected complaints; evidence showed Delgado and Treppens had retaliatory motive and influenced the investigation/decision | Pleadings lacked explicit cat's paw allegations and evidence insufficient | Court found pleadings and trial evidence sufficient to support the instruction (biased motive + influence on decision) |
| Whether refusal to give instruction was harmless given other instructions (corporate agency, substantial factor) | Other instructions did not explain imputation; corporate agency instruction could mislead by focusing only on decisionmaker’s motives | Substantial factor and agency instructions covered causation so cat's paw was cumulative | Court held omission likely caused juror misunderstanding that only St. Jacques’s motive mattered, so error was prejudicial and reversible |
Key Cases Cited
- Jett v. Ford Motor Co., 192 Or.App. 113 (procedural standard for reviewing requested jury instructions)
- Hernandez v. Barbo Machinery Co., 327 Or. 99 (party entitled to instructions that correctly state law and are supported by the evidence)
- La Manna v. City of Cornelius, 276 Or.App. 149 (adopted subordinate‑bias/cat's paw reasoning for state claims)
- LaCasse v. Owen, 278 Or.App. 24 (applied La Manna subordinate‑bias principles)
- Poland v. Chertoff, 494 F.3d 1174 (9th Cir.) (subordinate bias imputed where biased subordinate influenced or was involved in decisionmaking)
- Staub v. Proctor Hosp., 562 U.S. 411 (U.S. Supreme Court) (discussion of cat's paw doctrine in federal employment law)
- Employers Ins. of Wausau v. Tektronix, 211 Or.App. 485 (instructional error and first‑impression issues)
- Estes v. Lewis & Clark College, 152 Or.App. 372 (substantial‑factor causation applied to employment retaliation)
- Hardie v. Legacy Health Sys., 167 Or.App. 425 (substantial‑factor standard: wrongful purpose must have ‘made a difference’)