Hernandez v. Catholic Health InitiativesHernandez v. Catholic Health Initiatives
Plaintiff injured her back at work. After she was terminated from her employment, she sued defendants Reed Group Management, LLC and Reed Group, Ltd. for, among other things, aiding and abetting her employer in unlawful employment practices.
Reversed and remanded.
Kathleen E. Johnson, Judge.
Richard B. Myers argued the cause and filed the briefs for appellant.
Sarah N. Turner, Washington, argued the cause for respondents. Also on the brief was Gordon Rees Scully Mansukhani, LLP, Washington.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief amicus curiae for State of
Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.
LAGESEN, P. J.
Reversed and remanded.
LAGESEN, P. J.
This case is before us on plaintiff‘s appeal of a limited judgment of dismissal entered after the trial court granted defendants’ motion to dismiss under ORCP 21 A(8). We review for legal error the trial court‘s grant of an ORCP 21 A(8) motion. Chang v. Chun, 305 Or App 144, 147, 470 P3d 410 (2020). In conducting our review, “we accept as true the allegations in the complaint, and any reasonable inferences that can be drawn from those allegations, viewing them in the light most favorable to the nonmoving party,” in this case, plaintiff. Id. In accordance with that standard, we state the facts about the parties’ underlying dispute as plaintiff alleges them to be.
Plaintiff is a registered nurse. Defendants Catholic Health Initiatives and Mercy Medical Center, Inc., (collectively, Mercy Health) hired her to work at a hospital they operated. Defendants administer Mercy Health‘s employee benefit programs.
While lifting a patient at work, plaintiff injured her back. She sought medical treatment for the injury, and her treating physician filed a workers’ compensation claim on her behalf. Mercy Health‘s workers’ compensation insurer accepted that claim.
In treating the injury, plaintiff‘s physician placed her on work restrictions. Those restrictions did not allow her to perform her regular work duties for several months. Her physician then modified her restrictions. Around the same time, plaintiff became aware of several vacant positions that were consistent with her modified restrictions and requested that Mercy Health employ her in one of those positions. Mercy Health refused. Then, about two months later, Mercy Health notified plaintiff that she would be “administratively separated” from her employment because she had exhausted her medical leave. On the same day, defendants also notified plaintiff that she had exhausted her medical leave under Oregon law.
Plaintiff again requested that Mercy Health reemploy her or otherwise accommodate her injury. As an alternative, she requested additional medical leave. She also contacted defendants to request medical leave but one of defendants’ representatives told her that she was not eligible for medical leave because her employment had been terminated.
This action followed. Plaintiff alleges (among other things) that Mercy Health committed unlawful employment practices by (1) denying reemployment, in violation of
Defendants moved to dismiss the aid-and-abet claim against them. They contended that
On appeal, the parties reiterate the arguments they made to the trial court. In addition, the Oregon Trial Lawyers Association (OTLA) and the Oregon Bureau of Labor and Industries (BOLI) have submitted amicus curiae briefs. OTLA‘s brief supplies a detailed tracing of the history of
The question before us, then, is straightforward: Does
As ever, in ascertaining that answer, our role and our goal is to give effect to the intentions of the legislature that enacted the statute. State v. McQueen, 307 Or App 540, 545, 478 P3d 581 (2020). We do so by examining the statutory “text, in context, and, where appropriate, legislative history and relevant canons of construction.” Chase and Chase, 354 Or 776, 780, 323 P3d 266 (2014). Context includes other provisions of the same statute, other related statutes, other statutes enacted at the same time, and “prior versions of the same statute.” Northwest Natural Gas Co. v. City of Gresham, 359 Or 309, 322, 374 P3d 829 (2016). That examination, as we explain, demonstrates that, in enacting
We start with text.
Although the statutory wording does not communicate the legislature‘s intentions with clarity, statutory context does. The statutory definition of the word “person,” the other statutory provisions identifying unlawful employment practices, and the enactment history of
As for what “person” means for purposes of
“(a) One or more individuals, partnerships, associations, labor organizations, limited liability companies, joint stock companies, corporations, legal representatives, trustees, trustees in bankruptcy or receivers.
“(b) A public body as defined in
ORS 30.260 .”
That broad definition is one we are “obliged to apply,” McLaughlin v. Wilson, 365 Or 535, 540, 449 P3d 492 (2019), and it is one that suggests that the legislature did not intend the prohibition on aiding and abetting by “any person” to be limited to employers and employees. That definition identifies the people and entities encompassed without reference to status in an employment relationship. And some of the identified “person[s]”
The other provisions of
Of course, we still must account for the phrase “whether an employer or an employee.” If “any person” means simply “any person,” what function does that phrase serve? The enactment history tells us: It is a relic of a once clear phrase emphasizing that the legislature meant “any person” to mean anyone at all.
The legislature first enacted what is now
As the parties agree, as originally written with the “or not,” the provision unambiguously prohibited aiding and abetting by anyone, not just employers and employees. The purpose of the phrase “whether an employer or an employe, or not” was, it seems, to emphasize the legislature‘s intention that the prohibition on aiding and abetting apply broadly, without exception. Although no legislative history appears to have been maintained, contemporaneous newspaper articles reported that the provisions of Oregon Laws 1949, chapter 221, were drawn from similar acts in New York and New Jersey. House Votes Senate-Approved Fair Employment Practices Act, Oregon Statesman at 20 (Mar 20, 1949) (reporting that, “When approved by the governor, Orego[n] will become the sixth state to adopt the act. The others are New York, New Jersey, Connecticut, Massachusetts and Washington.“); Ralph Watson, Job Practices Bill Ready for Senate Action, Oregon Statesman at 6 (Feb 6, 1949) (explaining that act was drawn primarily from New York and New Jersey acts). The New York and New Jersey analogs to what is now
“The language of Subdivision 5 is designed to bring within the orbit of the bill all persons, no matter what their status, who aid or abet any of the forbidden practices of discrimination or who attempt to do so; and also to furnish protection to all persons, whether employers, labor organizations or employment agencies, who find themselves subjected from any source to compulsion or coercion to adopt any forbidden employment practices. Thus, other employees who coerce or attempt to coerce an employer into unlawful employment practices are themselves guilty of acts rendered unlawful by this bill.”
Rep of NY St Temp Comm‘n Against Discrimination, 1945 NY Legis Doc No 6 at 31 (1945).
Although Oregon‘s removal of the “or not” has made what was once a clear statute unclear, the enactment history shows that the extraction of the phrase did not signal a change in the legislature‘s intention about the proper scope of aid-or-abet liability. That is because it shows that the statutory revision council, not the legislature itself, removed the “or not” as part of the comprehensive nonsubstantive revision of Oregon laws that resulted in the Oregon Revised Statutes as we know them today. In other words, the removal was not the product of a policy choice by the legislature.
As noted, the provision that is now contained in the Oregon Revised Statutes was enacted by the legislature in 1949. Or Laws 1949, ch 221, § 5(5). Also in 1949, the legislature created the statute revision council to conduct a major cleanup of the Oregon laws. The statute revision council was empowered “to clarify, simplify, classify, arrange, coordinate, codify and revise the laws of this state.” Or Laws 1949, ch 317, § 3. Despite the breadth of its power to revise the laws of the state, the council was not authorized to change the law substantively: “[The council] shall not alter the sense, meaning or effect of any act, but, within such limitations, may correct the grammar, punctuation, spelling and form thereof,” as well as other, nonsubstantive revisions. Id.; State of Oregon v. Holland, 202 Or 656, 659-65, 277 P2d 386 (1954) (explaining the nonsubstantive nature of the 1953 revision and how it represented a continuation of existing law).
The statutory revision counsel completed its work and presented its proposed revision to the legislature in 1953, and the 1953 legislature adopted the revision in full. Oregon Revised Statutes, Preface vi (1953); Charles G. Howard, The Oregon Revised Statutes, 33 Or L Rev 58, 59 (1953) (explaining that the proposed revisions were submitted to the 1953 legislature “in the form of a bill providing for their enactment into law,” and that the bill “was passed without amendment“). As a result of the revision, Or Laws 1949, ch 221, § 5(5), became ORS 659.030(5) (1953),2 with one exception: the phrase “whether an employer or an employe, or not,” became “whether an employer or an employe” minus the “or not.” Although the reviser‘s notes to then-chapter 659 gave no explanation for the ambiguity-creating change, it appears likely that it was to eliminate words viewed by the revision council as unnecessary. See Legislative History, Reviser‘s Notes, and Annotations for Chapters 171 to 783 of the Oregon Revised Statutes, 1382 (1953) (providing no explanation for alteration to Or Laws 1949, ch 221, § 5); see also Howard, 33 Or L Rev at 59 (noting that “[i]t is estimated that over 360,000 words have been eliminated from the statute text,” mostly because the words were unnecessary or duplicated; reiterating that “[t]here has been revision in form, not in substance” (emphases in original)).
The revision was intended to improve the clarity of Oregon law, but the legislature anticipated imperfection. Instructing on how
That directive is dispositive here. When the 1953 revision process has introduced an ambiguity to a statute, we ascertain the legislature‘s intention by looking to “the last version of the language that the legislature itself enacted before codification by the statute revision council.” Shotgun Creek Ranch, LLC v. Crook County, 219 Or App 375, 384, 182 P3d 312, rev den, 345 Or 158 (2008) (internal quotation marks omitted).
This conclusion is consistent with how BOLI has long interpreted and enforced
In sum, aid-or-abet liability under
Reversed and remanded.