Plaintiff appeals a general judgment resolving plaintiffs four claims concerning employment discrimination in favor of defendants, and a supplemental judgment awarding costs to defendants. On appeal, plaintiff contends that the trial court erred in granting defendants’ summary judgment motion concerning (1) his claim pursuant to 42 USC section 1983 for violation of plaintiffs First Amendment rights; (2) his claim for retaliation pursuant to ORS 659A.230 for initiating a civil proceeding; (3) his claim pursuant to ORS 659A.203 for “whistleblowing” — that is, for disclosing information regarding, among other things, violations of state and federal law; and (4) his claim for a common-law wrongful discharge. For reasons that we will explain, the trial court erred in granting defendants summary judgment as to plaintiffs “whistleblowing” claim pursuant to ORS 659A.203 and his common-law wrongful discharge claim. Accordingly, we reverse and remand as to those claims.
We state the facts in the light most favorable to plaintiff, drawing all reasonable inferences in his favor. ORCP 47 C;
Jones v. General Motors Corp.,
Plaintiff was employed as a licensed practical nurse at the Oregon School for the Blind. He was supervised by Helen Ashley, a registered nurse. A number of disputes arose between Ashley and plaintiff. A detailed recounting of all of those disputes would be of no benefit to the bench, bar, or public. 1 Accordingly, we recount the details of only those disputes that are relevant to the issues raised on appeal.
One of plaintiffs duties was to administer medications to students. In September 2003, plaintiff and Ashley had a disagreement concerning medication directions that plaintiff received from Ashley. Plaintiff had been told by a student’s parent that the prescribing doctor for that student
had reduced the dosage of a particular medication and that the instructions on the bottle of the
Plaintiff then contacted a representative of the Oregon State Board of Nursing (OSBN) to discuss the proper response to a situation where a parent informs a nurse that the written instructions on a bottle of medication are not current. An OSBN representative told him that it would be negligent for a nurse to dispense a medication according to the label without confirming the proper dosage from the doctor in such an instance. He noted that advice in the nurses’ communication book, which is used by school staff to communicate about student medical care. A different note in the nurses’ communication book states that the “State [Board] of Nursing phoned with a message for [plaintiff] regarding medication. [Ashley] is correct.”
On September 8, Ashley spoke to plaintiff about his contact with the OSBN. During that conversation, Ashley indicated that she was angry at plaintiff for contacting the OSBN without her permission and told plaintiff that he had questioned her authority. On November 13, plaintiff received a letter of expectation from Ashley that explicitly forbade him from communicating about student medical issues with anyone outside of the school’s student health services without first obtaining written authorization.
After that incident, plaintiff noticed that Ashley began treating him differently; he believed that she was treating him differently in retaliation for reporting their disagreement to the OSBN. He described incidents in which Ashley (1) gave him work assignments that isolated him from the students and other staff; (2) wrote a false note in a student’s chart that made him appear negligent for failing to address a student’s known medical issue; and (3) made false statements to plaintiffs coworkers about his work performance.
Other disputes about medical treatment issues arose between plaintiff and Ashley, which culminated in Ashley giving him a written reprimand for insubordination on January 19, 2004. In addition to other issues, the reprimand noted that plaintiff had received a letter of expectation instructing him to contact only Ashley with any questions about any student’s medical treatment.
Plaintiff requested a human resources investigation of Ashley for harassment and retaliation against him for questioning her orders and contacting the OSBN. On February 18, plaintiff filed a grievance directed at the letter of reprimand, in which plaintiff wrote that the letter of reprimand was “part of a pattern of punitive and retaliatory behavior by [Ashley].” Hunt, the director of employee services for the Oregon Department of Education, investigated the grievance. Hunt’s investigation revealed what he characterized as “questionable” management practices by Ashley.
On March 1, plaintiff informed Mulholland, the Oregon Department of Education’s director of special schools, that he intended to file a complaint with the OSBN relating to the false note that Ashley wrote in a student’s chart that made his treatment of a student appear negligent.
A few days later, plaintiff discovered a clipboard containing students’ names and private medical information hanging in an area of the school to which visitors and other nonmedical personnel had access. He learned that Ashley had ordered that the clipboard be placed in that area. He believed that the placement of the clipboard violated the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA). He filed a complaint with the federal Department of Health & Human Services (DHHS). He also complained about the placement of the clipboard to Ouimet, Ashley’s supervisor.
Plaintiff met with Ouimet on March 15 to discuss the clipboard and student privacy issues. He informed Ouimet about the complaint to the DHHS. Ouimet told plaintiff to
Plaintiff met with Ouimet, Hunt, and Mulholland on March 29 to discuss Ashley’s alleged retaliation against him and his belief that she was engaging in substandard nursing practices. At that meeting, plaintiff was instructed to follow Ashley’s instructions without question and ordered not to contact outside entities without first notifying Ouimet. Plaintiff responded by citing specific Oregon Administrative Rules that govern licensed practical nurses and registered nurses. He told Ouimet, Hunt, and Mulholland that those nursing regulations required that he question any order that he believed to be unsafe or contraindicated for the patient. Hunt told him that those rules did not apply at the school, that employees were expected to follow the orders of their supervisors unless the orders put the employees in danger, and that the appropriate response to a disagreement with Ashley would be to “work now, grieve later.” Plaintiff complained that he was the only nurse being given that restriction and that that restriction could put a student’s health in danger and put him at risk of losing his nursing license. Defendants told plaintiff that his refusal to obey the restriction on contacting outside entities was insubordinate, and he was placed on administrative leave.
In April 2004, plaintiff received a notice of initiation of predismissal procedures. Mulholland and Ouimet recommended that plaintiff be terminated as insubordinate, and Hunt decided to terminate him on that ground. The predismissal notice asserted that plaintiff had stated, during the March 29 meeting, that he would be insubordinate. Plaintiff submitted a written response, in which he denied saying that he would be insubordinate and wrote that his “troubles with [Ashley] began * * * when [he] contacted the State Board of Nursing” about the dispute over prescription dosing instructions. He further explained that he “value[d] [his] nursing license too much to blindly follow poor nursing instruction when [he] knew it can put the student’s health and even their life in jeopardy.”
Ultimately, plaintiff received a dismissal letter indicating that he was being terminated for insubordination. He then resigned in lieu of termination. The letter included- — as one of the “facts supporting this action” — the allegation that he “had stated there are times when [plaintiff] would choose to be insubordinate and not follow [Ashley’s] direction for medical care of students if [he] felt [he] made the right decision by performing other care.” The letter continued by explaining that plaintiffs statement that, “if [he] thought the medical direction [his] supervisor gave [him] was not in agreement with what [he] believed to be correct, [he] would not do as directed[ ]” caused the school to “not be able to trust [that he] will provide the medical care directed by the nurse supervisor.” The letter referred to the prescription-dosing dispute between Ashley and plaintiff and to defendants’ requirement that he obtain permission from Ashley before contacting outside entities with medical treatment issues. It also referred to Ouimet’s instruction that he should attempt to resolve all medical treatment issues internally.
A series of e-mail communications between Ouimet, Hunt, Mulholland, and Ashley- — which occurred shortly after plaintiffs resignation- — -indicate that one of their “concerns” with plaintiff was that he should have been “trying to resolve problems rather than just report them.” That is, defendants were concerned that he had reported what he believed to be a HIPAA violation to the DHHS instead of trying to resolve the issue internally. Hunt wrote that plaintiffs statement that he was not obligated to “try to fix a concern that he had before making his complaint” led “to the action taken.”
Plaintiff subsequently initiated the underlying action, raising the four claims previously described. In general, plaintiff alleges that defendants’ decision to terminate him for filing a complaint with the DHHS concerning
Defendants moved for summary judgment on all of plaintiffs claims. The trial court granted the motion after concluding that plaintiff did not engage in any protected activities and that defendants’ decision to terminate plaintiffs employment was motivated solely by his insubordination. Plaintiff appeals.
On appeal, plaintiff challenges the trial court’s grant of summary judgment on each of his four claims and renews the contentions that he made before the trial court.
In reviewing the trial court’s decision to grant defendants’ motion for summary judgment, we view the record in the light most favorable to plaintiff to determine whether defendants met their burden of demonstrating that no genuine issues of material fact exist and that they were entitled to judgment as a matter of law.
Jones,
Because plaintiffs contentions concerning his section 1983 claim for violation of his First Amendment rights and his retaliation claim under ORS 659A.230 for initiating a civil proceeding require little discussion, we address and dispose of them first. The First Amendment protects a public employee’s free speech rights when the speech is made as a private citizen on a matter of public concern.
Garcetti v. Ceballos,
We reach the same conclusion with respect to plaintiffs claim under ORS 659A.230 for the initiation of a civil proceeding.
2
The critical flaw in plaintiffs position is that his complaint to the DHHS and threat to complain to the OSBN were administrative matters — not criminal or civil actions— and were therefore not protected by ORS 659A.230.
See Mantia v. Hanson,
We next turn to plaintiffs claim pursuant to ORS 659A.203 for “whistleblowing” — that is, for disclosing information concerning, among other things, violations of state and federal law. That statute provides, in part:
“(1) * * * [I]t is an unlawful employment practice for any public employer to:
«* * * * H=
“(b) Prohibit any employee, or take or threaten to take any disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:
“(A) A violation of any federal or state law, rule or regulation by the state, agency or political subdivision^]
* * * *
“(c) Require any employee to give notice prior to making any disclosure or engaging in discussion described in this section * * *.
“(d) Discourage, restrain, dissuade, coerce, prevent or otherwise interfere with disclosure or discussions described in this section.
“(2) No public employer shall invoke or impose any disciplinary action against an employee for employee activity described in subsection (1) of this section * *
Plaintiff contends that he reasonably believed that defendants had violated federal and state law and that his complaint to the DHHS and threat to complain to the OSBN were substantial factors in defendants’ decision to terminate his employment in violation of ORS 659A.203. With respect to plaintiffs complaint to the DHHS, there was evidence from which a jury could find that plaintiff reasonably believed that the information that he disclosed to that agency — that is, that a clipboard listing students’ names and private medical information was placed in a location to which visitors and nonmedical personnel had access — was evidence of a HIPAA violation. 3 Further, with respect to plaintiffs threat to complain to the OSBN, there was evidence from which a jury could find that plaintiff reasonably believed that substandard nursing practices — including Ashley’s role in the prescription dosing dispute — had occurred at the school and that those practices violated OAR 851-045-0010 (Jan 3,1995) and OAR 851-045-0015 (Jan 3, 1995), the regulations in effect at that time that governed the appropriate standard of care for registered nurses and required the reporting of substandard practices.
The fact that plaintiff never actually complained to the OSBN about substandard nursing practices is of no consequence. Under ORS 659A.203, a public employer engages in unlawful employment practices when, in response to an employee’s threat to complain about violations of law, the employer discourages the complaint and requires the employee to give notice before complaining. ORS 659A.203(l)(c), (d). Moreover, the employer engages in an unlawful employment practice under ORS 659A.203(l)(b) if it characterizes the employee’s resistance to the employer’s violations of ORS 659A.203(l)(c) and (d) as “insubordination” and subsequently disciplines the employee for that “insubordination.”
4
Thus, there is evidence from which a jury could find that
As previously indicated, plaintiff also contends that his complaint to the DHHS and threat to complain to the OSBN were substantial factors in defendants’ decision to terminate his employment in violation of ORS 659A.203. Whether an employer who discharged an employee was motivated by an impermissible reason is a question of fact.
Demaray v. Dept. of Environmental Quality,
“[i]t is sufficient in Oregon for the plaintiff to show that unlawful motive was a substantial and impermissible factor in the discharge decision. We have previously noted that a plaintiffs prima facie burden in an employment discrimination case is so minimal that it is virtually impervious to a motion based on evidentiary sufficiency.”
Herbert v. Altimeter, Inc.,
Here, although a jury could reasonably find that defendants’ decision to terminate plaintiff was based on insubordination, it could also reasonably find that plaintiffs complaint to the DHHS and his threat to complain to the OSBN were substantial factors in defendants’ adverse employment decision. The series of e-mail communications between Ouimet, Hunt, Mulholland, and Ashley indicating that plaintiff should have been trying to resolve problems rather than “just reporting] them” and that plaintiffs statement that he was not obligated to try to fix problems before reporting them led to defendants’ decision to dismiss plaintiff supports an inference that plaintiff was terminated because of his complaint to the DHHS and threatened complaint to the OSBN.
The close temporal proximity between defendants’ discovery of the complaint to the DHHS and plaintiffs threat to complain to the OSBN further supports that inference.
Cf. Herbert,
In sum, because there is evidence from which a reasonable jury could find that plaintiff reasonably believed that defendants had violated federal and state law and evidence from which a jury could find that his complaint to the DHHS and threat to complain to the OSBN concerning those violations were substantial factors in defendants’ decision to terminate plaintiffs employment in violation of ORS 659A.203, genuine issues of material fact exist. Accordingly, the trial court erred in granting defendants summary judgment as to plaintiffs retaliation claim pursuant to ORS 659A.203.
Finally, we turn to plaintiffs common-law wrongful discharge claim. The discharge of an employee is actionable where the employee is discharged for fulfilling an “important public duty.”
Babick v. Oregon Arena Corp.,
“This court cannot create a public duty but must find one in constitutional or statutory provisions or case law.”
Eusterman v. Northwest
Permanente,
P.C.,
In the absence of a mandatory reporting requirement, an employee can demonstrate that an important public duty exists by citing statutes or other authority indicating
legislative policies to promote the reporting of violations and prevent employers from retaliating against employees who report such violations.
See McQuary v. Bel Air Convalescent
Home,
Inc.,
At the time that plaintiff threatened to complain to the OSBN, OAR 851-045-0005(3)(b) (Jan 3, 1995) provided that a “licensed practical nurse has the authority and responsibility to question any order which is not clear, perceived as unsafe, contraindicated for the client, or not within the health care professional’s scope of practice[.]” Further, OAR 851-045-0020(3) (Jan 3,1995) provided that
“[a]nyone knowing of a licensed nurse whose behavior or nursing practice fails to meet accepted standards * * * shall report the nurse to the person in the work setting who has authority to institute corrective action. Anyone who has knowledge or concern that the nurse’s behavior or practice presents a potential for, or actual danger to the public health, safety, and welfare, shall report or cause a report to be made to the [OSBN]. Failure of any licensed nurse to comply with this reporting requirement may in itself constitute a violation of nursing standards.”
Those OSBN regulations demonstrate a policy to ensure patient safety by establishing a standard of care that required nurses to question unsafe orders and report concerns about potentially dangerous and substandard nursing practices to the OSBN. That policy is thwarted if an employer punishes a nurse who fulfills his or her duty to report to the
OSBN any nursing practice that he or she believes presents a potential danger to the public health, safety, and welfare. We therefore conclude that the reporting of potentially dangerous substandard nursing practices to the OSBN is an important public duty.
5
Further, there is evidence in the record from which a jury could find that the nursing practices that plaintiff threatened to report were potentially dangerous enough to trigger the requirement that the nurse report the issue directly to the OSBN instead of merely reporting it to a supervisor. Thus, a jury
For those reasons, the trial court erred in concluding that there was no important public duty that required plaintiff to complain to the OSBN about substandard nursing practices. Moreover, there was evidence from which a jury could find that plaintiff engaged in protected activities and that his engagement in those activities was a substantial factor in defendants’ decision to terminate him. Accordingly, the trial court erred in granting summary judgment as to the common-law wrongful discharge claim. Given our disposition regarding plaintiffs threat to complain to the OSBN, we do not need to reach his argument concerning his complaint to the DHHS.
In summary, genuine issues of material fact precluded that trial court’s grant of summary judgment as to plaintiffs “whistleblowing” claim under ORS 659A.203 and as to plaintiffs common-law wrongful discharge claim. Accordingly, we reverse on plaintiffs claims for “whistleblowing” under ORS 659A.203 and for common-law wrongful discharge and remand those claims to the trial court, but affirm the trial court’s grant of summary judgment as to the remaining claims. In light of our disposition, we must also reverse the supplemental judgment for costs. See ORS 20.220(3)(a) (providing that, when this court reverses a judgment to which an award of costs relates, the award of costs “shall be deemed reversed”).
General judgment on claims for retaliation under ORS 659A.203 and for common-law wrongful discharge reversed and remanded, otherwise affirmed; supplemental judgment reversed.
Notes
We reject without discussion plaintiffs assertion that he engaged in protected activities in the course of the other disputes between Ashley and himself.
ORS 659A.230(1) provides:
“It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported criminal activity by any person, has in good faith caused a complainant’s information or complaint to be filed against any person, has in good faith cooperated with any law enforcement agency conducting a criminal investigation, has in good faith brought a civil proceeding against an employer or has testified in good faith at a civil proceeding or criminal trial.”
Apparently, DHHS ultimately determined that the school was not subject to HIPAA; therefore, the placement of the clipboard did not actually violate HIPAA. However, there is evidence that Ashley had told plaintiff that the school was subject to HIPAA. Based on that evidence, a jury could find that defendant reasonably believed that his complaint disclosed a HIPAA violation, even if that belief was ultimately incorrect.
To interpret the statute otherwise would lead to two absurd results. First, an employer could avoid liability by simply terminating an employee before the employee is able to file the complaint. Second, an employer could avoid liability by making an employee rule that forbids any “whistleblowing.” In doing so, the employer could avoid liability under this statute by penalizing an employee who violated that rule not because of the employee’s “whistleblowing,” but because the rule against “whistleblowing” was violated and the employee was insubordinate in not complying with the rule. Bluntly, if the employer creates an employment rule that, in and of itself, constitutes an unlawful employment practice, the employer also commits an unlawful employment practice when it decides to dismiss an employee who fails to comply with the unlawful rule.
Again, defendants decided to terminate plaintiff before be actually followed through with his intent to file a complaint with the OSBN. The fact that he was terminated before filing a complaint does not affect our conclusion. “There is no reason that an employee’s protection should depend on whether the employer acts before or after the employee is able to file a
complaint.”McQuary,