Plaintiff appeals, assigning error to the allowance of summary judgment in favor of defendant Polk County Fire District, on plaintiff’s common-law claim for wrongful discharge. Plaintiff contends that she adduced evidence raising a genuine issue of material fact, ORCP 47 C, as to whether defendant terminated her employment because she had fulfilled one or more “important public dut[ies].”
Babick v. Oregon Arena Corp.,
Summary judgment is proper if the “pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ORCP 47 C. “No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.”
Id.
In reviewing the allowance of summary judgment, we draw all reasonable inferences in favor of plaintiff, who was the nonmoving party.
West v. Allied Signal,
Inc.,
We describe the material facts consistently with that standard of review.
2
Defendant is a public entity responsible
for overseeing the activities of a variety of both paid and volunteer fire service personnel. Plaintiff began working as a financial secretary for defendant in November 1996. Plaintiffs duties included providing accounting, financial management, and secretarial services for defendant’s board of directors, as well as data entry of training records. With respect
Mark Prince became chief of the fire district sometime after plaintiffs employment began. Plaintiff disagreed with several aspects of Prince’s leadership within the district. For example, when Prince arrived, an internal policy required fire service personnel to attend at least 75 percent of the training meetings offered by the district. Plaintiff, in performing her data entry responsibilities, noticed that many of the firefighters were not meeting that requirement. Plaintiff believed that the level of training attendance made the fire district less safe. However, by her own admission, plaintiff did not know what the state-mandated training attendance standards were, whether any even existed, or whether, at the current level of attendance, the firefighters were still meeting any applicable standards.
Subsequently, sometime during Prince’s first year as chief, he lowered the training attendance policy to 50 percent. Again, because plaintiff had no knowledge of any state-mandated training attendance standard, she did not know whether that change rendered the district or any individual out of compliance with any such state standard. However, plaintiff believed that lowering the standard to 50 percent was yet another example of Prince’s poor management and that the change adversely affected safety within the district.
Beyond her dissatisfaction with the training attendance policy, plaintiff also believed that the quality of training offered through the district was inadequate to maintain safety. Specifically, she believed that the members of the committee in charge of training the fire service personnel were not qualified for that responsibility.
Plaintiff expressed her concerns to many people within the fire district. She regularly spoke to her coworkers about her concerns, and many of them shared her views. On several occasions, plaintiff expressed generalized concerns about training attendance to Prince and his deputy chief, Patterson. As plaintiff explained:
“I would give [the training] reports to Patterson and Prince and point out that the people were not meeting the current policy.
* * $ *
“I would just give it to them and — and point out to them that, you know, ‘These are the percentages, these are the people not meeting it,’ and I color highlighted it and just — I gave it — to them, but we didn’t sit down and have a big discussion about it.”
Prince confirmed that plaintiff told him of her concerns “that a number of the individuals weren’t making the [75 percent] training requirements.”
Plaintiffs concerns increased in March 2003, when three firefighters from the district were involved in an accident during a training exercise. The details of that accident are not clear from the summary judgment record. However, the record shows that the accident occurred during driver training and that one of the passengers in the vehicle died in the accident.
The fire district conducted an internal investigation of the accident. In addition, NIOSH made arrangements to conduct its own investigation. During that time, plaintiff heard speculation from coworkers that Prince and Patterson were planning to hide information from the NIOSH investigators. Plaintiff, at that time, had not seen any evidencе indicating such a “cover-up,” but she became increasingly concerned that the speculation was true.
As part of the NIOSH investigation, Prince assigned plaintiff to gather training records and other potentially relevant information. Consequently, plaintiff went to the fire marshal, Cane, to collect the district’s standard operating procedures (SOPs). Cane was subordinate to Prince and Patterson, but superior to plaintiff. As fire marshal, Cane’s duties primarily involved fire prevention and inspections. However, his “[peripheral duties include[d] * * * basic management of the District in [the] absence of the Chief or the Deputy Chieff.]” When
Plaintiff immediately confronted Cane about the perceived “backdating.” She was concerned that Cane’s conduct was obstructing the NIOSH investigation, and she expressed that concern to him. In addition to her conversation with Cane, plaintiff discussed her concern with her coworkers. On at least one occasion, plaintiff told a coworker that the district “was going to hide the lack of training [from NIOSH] and pretend that there wasn’t a problem.”
Prince learned of plaintiffs encounter with Cane and of her conversations with her coworkers. He believed that plaintiffs conduct was unprofessional and distracting to the district’s work. On May 31, 2003, the same day the NIOSH investigators were scheduled to arrive, Prince terminated plaintiffs employment with defendant. According to Prince, his decision to discharge plaintiff was based, at least in part, on plaintiffs suggestions to Cane and coworkers that the district was involved in a cover-up in response to the NIOSH investigation:
“[T]here [was] * * * the questioning that she was bringing forth to [Cane] in regards to us trying to cover things up in the NIOSH investigation, that coming from a person that you rely on on a daily basis and you hold in a confidential capacity is not typically what is expected * * * by myself or any other Chief in the business.”
In discharging plaintiff, Prince was also motivated by plaintiffs discussions regarding the perceived training deficiencies.
Plaintiff subsequently filed this action against defendant for common-law wrongful discharge. Specifically, plaintiff alleged that she had been discharged because she had “expressed concerns about whether or not the fire fighters were receiving proper training” and because she had questioned “why [defendant] was creating [SOPs] for driving to present to NIOSH for their investigation when they did not exist at the time of the [March 2003] accident.” Plaintiff further alleged:
“Questioning the adequacy of safety and whether it meets minimal requirements fulfills аn important social policy. Questioning why Defendant was creating SOP’s [sic] for driving to present to NIOSH that did not exist at the time of the accident fulfills an important social policy. It protects both the public as a whole and fire fighters in particular. The discharge of Plaintiff thwarts these social policies and is a violation of the social policies.”
“ [T]rue whistleblowing — the exposure of evidence of illegal or wrongful activities by one’s employer or fellow employees * * * may indeed implicate [a wrongful discharge claim], but that is not what occurred in this case. * * * [P]laintiff had no evidence of any wrongdoing by Prince, Patterson or anyone else in the Fire District. * * * [P]laintiffs own concerns about training requirements and inadequacies were not founded on actual knowledge of what the training requirements, either the department’s, the State’s or the industry’s, were. Plaintiff was simрly personally dissatisfied with the requirements, and discussed that dissatisfaction with fellow workers, even though she had no eviden-tiary ground for her dissatisfaction.”
(Emphasis in original.) In response, plaintiff contended that, regardless of the substantive merits of her concerns — that is, regardless of whether she was correct in her assessment of training deficiencies or an alleged cover-up during the NIOSH investigations — her complaints were made in good faith based on the information that she had. Further, according to plaintiff, making her concerns known fulfilled a “public duty,” and, thus, defendant could not terminate her for expressing those concerns. After plaintiff responded to defendant’s motion for summary judgment, defendant moved to strike portions of plaintiffs supporting affidavits as inadmissible hearsay.
The trial court, although denying defendant’s motion to strike, granted summary judgment, explaining:
“[Plaintiff] does not claim that in 2003 she was aware of any state or industry training standards that were being violatеd by [defendant]. Even now, two years later, she does not direct the court to any statutory or regulatory violation inherent in [defendant’s] * * * practices. It was her opinion that the training was inadequate. That opinion was bolstered and corroborated by [her coworkers] who held similar views, but at its core the dispute did not involve a question of lawful vs. unlawful conduct. It was a question of differing philosophies about how a fire department should be run.
«Hi * * * *
“This would be a different case if [plaintiff! had gone to NIOSH, OSHA, the District Attorney, the Medical Examiner or some other person or entity with investigatory responsibility in the matter. * * * But the most that plaintiff can claim from this record is that she was fired for complaining to other staff members about Prince’s and Patterson’s management decisions.”
Plaintiff appeals, reiterating her arguments to the trial court. For the reasons that follow, we conclude that, although plaintiff failed to adduce evidence raising genuine issues of material fact as to many of her “important public duty” allegations, there are triable issues of material fact pertaining to, at least, her NIOSH “cover-up”-related allegations. If plaintiffs evidence pertaining to that matter is credited, she made a legally sufficient showing that discharging her based, in part, on her expression of concerns about a cover-up in response to the NIOSH investigations was wrongful under the “important public duty” principle. Accordingly, we reverse and remand.
In Babich, the Supreme Court summarized the applicable general principles:
“Although this court repeatedly has affirmed the general validity of the at-will employment rule, it has acknowledged that a discharge of an at-will employee nonetheless may be deemed ‘wrongful’ (and, therefore, actionable) under certain circumstances. Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines,284 Or 597 ,588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l,297 Or 10 ,681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks,272 Or 210 ,536 P2d 512 (1975) (employee discharged for serving on jury).” 5
Here, plaintiffs wrongful discharge claim is premised on the second, “important public duty” exception.* ***
6
In determining whether plaintiffs employment was terminated for fulfilling an “important public duty,” “[t]his court cannot create a public duty but must find one in constitutional or statutory provisions or case law.”
Eusterman v. Northwest Permanente, P.C.,
Before addressing the particulars of the parties’ dispute, we must explore two subsidiary matters pertaining to the scope and proper application of the “important public duty” exception. First, what are the standards for identifying such a “duty” — that is, when is an employee’s conduct of such a quality as to warrant protection in tort law? Second, how does the “important public duty” exception apply in “whistle-blower” situations? 7
Anderson v. Evergreen International Airlines, Inc.,
In contrast, in
Banaitis,
a bank employee refused to divulge clients’ financial information to another bank. He refused to do so, despite the requests of his superiors, because he believed it would be “against bank policy, against the law and unethical.”
“[I]t is not necessary that a statute specifically regulate the conduct that precipitated the discharge. We review statutes and other authorities for evidence of a substantial public policy that would * * * be ‘thwarted’ if an employer were allowed to discharge its employee without liability.”
Id.
at 380 (citing Wees,
The Supreme Court’s decision in
Babick
further defined the sources and contours of the “important public duty” exception. There, the defendant hired the plaintiffs, private security guards, to provide security at a concert.
In asserting that their conduct fulfilled an “important public duty,” the plaintiffs in
Babick
relied on a variety of statutes, including provisions of the Oregon Criminal Code and statutes allowing forceful citizen arrests, which, according to the plaintiffs, demonstrate the high social value of “a safe and orderly community[.]”
The Supreme Court declined to repudiate Banaitis’s “formulation” in favor of the defendants’ “antagonistic” and “far narrower” construct.
“the statutes on which [the] plaintiffs rely do not establish any public duty that is relevant in this case.
“* * * [The plaintiffs argue that the cited criminal statutes] reflect a public policy against crime, and in favor of community safety and order. However, such expressions of a public desire for law and order are far too general to support [the] plaintiffs’ ‘public duty’ theory. We are concerned here with a duty to perform a specific act (the arrest of lawbreakers by private citizens or private security personnel), and the statutes cited have nothing to say about that kind of act.”
“[W]hether the allusion to common ‘concern’ [regarding law enforcement] is accurate, [the] statutes, on their face, are neutral on the essential issue, which is whether the law encourages law enforcement action by private individuals or security personnel or otherwise demonstrates that such acts enjoy high social value.”
Id.
In combination,
Anderson, Banaitis,
and
Babick
establish that a public duty may be
In Babick''s wake, we must conclude that, for purposes of wrongful discharge, the class of conduct that is deemed to “enjoy high social value” is very narrowly circumscribed. Nevertheless, that class consists at least of (1) conduсt that, by statute or rule, is explicitly described as being of high social value; and (2) conduct that is similar to that giving rise to legally compelled obligations to act in other, analogous contexts. However, it is also apparent from Babick that general public concern over a particular social problem (e.g., the use of controlled substances in Babick) does not necessarily give rise to a protected “important public duty’ to act, regardless of how ostensibly laudable the actor’s efforts may be. 9
The second subsidiary issue pertains to the application of the “important public duty’ doctrine in “whistle-blower” situations. In
Dalby v. Sisters of Providence,
Those cases are significant to this dispute because they recognize the existence of an important public duty to “blow the whistle” on certain behavior even in the absence of a specific statutory obligation to do so. That is, exposing certain statutory or regulatory violations, including health and safety violations, is sufficiently “important” that, under certain conditions, an employee who does so is protected from being discharged for that conduct.
The parties have vigorously disputed one of those conditions, viz., whethеr the “whistleblowing” employee need act only with subjective “good faith” that the employer has violated the law, or whether, regardless of the employee’s good faith belief, he or she must also have an objectively reasonable basis for that belief. Plaintiff espouses the former belief; defendant, the latter.
McQuary v. Bel Air Convalescent Home, Inc.,
In
McQuary,
the plaintiff, a training director at a licensed nursing home, was told by a patient that she had been abused by the facility’s administrator.
Id.
at 109-10. The plaintiff confronted the administrator,
We began by discussing whether the plaintiff had a “potential wrongful discharge claim.” Id. at 111. That is, as a preliminary matter, we decided whether, in the abstract, reporting patient abuse is an “important public duty.” We concluded that, because of the social interest in having health and safety violations exposed, the plaintiff had such a potential claim:
“The legislature’s desire to protect patients * * * shows that that protection is an important public policy analogous to the performance of jury duty or the avoidance of defamation, policies which the Supreme Court has found to justify wrongful discharge claims. * * * A discharge for reporting a violation of that policy to the proper authority would thus be a discharge for fulfilling a societal obligation and would be actionable.”
Id. at 110 (citatiоns omitted). Further, the discharge was actionable even though the plaintiff had only “threatened” to report the administrator’s conduct. That was so because “[t]here is no reason that an employe’s protection should depend on whether the employer acts before or after the employe is able to file a complaint.” Id. at 111 n 5.
We turned, then, to the jury instruction and the “good faith” issue. We began by observing:
“We are required to choose between competing social values: Either [the] plaintiff must act at her peril in making a complaint, risking her job if the complaint later turns out to be unfounded, or the employer must act at its peril in firing her, risking damages if she turns out to have acted in good faith.” 11
Id. at 111.
In making that policy-predicated choice, we referred to several statutory provisions. Specifically, we cited a variety of “[statutes which protect employes against retaliation [but] do not require that the alleged violation which the employe claims be ultimately proved.”
Id.; see, e.g.,
ORS 652.355 (protecting employees who consult an attorney or agency about a wage claim); ORS 654.062(5) (protecting any employee who makes a complaint under the Oregon Safe Employment Act).
12
Further — and of particular relevance to
this case — in concluding that “considerations of public policy” supported extending
Here, plaintiff, invoking McQuary, argues that her evidentiary submissions show that she acted in “good faith.” That is, that notwithstanding her lack of knowledge of applicable safety standards — indeed, her inability to identify even a single standard — proof of her subjective good faith belief was sufficient to defeat summary judgment. Conversely, defendant contends that McQuary should not be understood, or applied, so broadly in this context. Rather, defendant contends, the proper inquiry is whether, at the time plaintiff expressed her “whistleblowing” complaints, she had an objectively reasonable basis for those complaints. Specifically, did plaintiff have an objectively reasonable belief that defendant had engaged in conduct, which, if proved, violated statutory or regulatory requirements? On this threshold question, we agree with defendant.
We do so because plaintiffs “whistleblowing”-based wrongful discharge allegations in this case arise in a materially, legally different context than the plaintiffs claims in
McQuary.
In
McQuary,
as noted, our assessment of “policy choices” was substantially informed by analogous referеnce
to the legislative determination in
former
ORS 659.035 to afford statutory protection to “good faith” whistleblowing reports of patient abuse by nursing home personnel.
We note, particularly, that plaintiff was a public employee — and, if she had alleged a statutory claim, it would have been governed by ORS 659A.203(1). That statute makes it an unlawful employment practice for a public employer to
“(b) Prohibit any employee from disclosing, or take or threaten to take 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; [or]
“(B) Mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision [.]
«íH ^ ^
“(d) Discourage, restrain, dissuade, coerce, prevent or otherwise interfere with disclosure or discussions described in this section.”
(Emphasis added.) To be sure, plaintiffs claim is a common-law claim. Nevertheless, as in McQuary, the legislative choice with respect to the analogous statutory claim is instructive with respect to the conditions under which the exercise of the purported public duty should be afforded protection.
That legislative choice is instructive, not preclusive: In this common-law context, the definition of the cause of action is a judicial function. Nevertheless, the “important public dutjf’ doctrine is innately intertwined with the legislative expression of policy choices in statutes. Here, the legislature has recognized the importance of “whistleblowing” by public employees — but only to a qualified extent. Confronted with competing considerations of (1) promoting freer and fuller disclosure by public emрloyees and (2) avoiding the institutional and political consequences for public employers of good faith, but objectively baseless and irresponsible, “extramural” complaints by employees, the legislature has opted to extend statutory protection only to objectively reasonable complaints. Phrased somewhat differently: There is a protected “important public duty” for public employees to engage in objectively reasonable “whistleblowing.” Plaintiffs common-law claim is properly subject to the same limitation.
We proceed to the application of those principles to this case. The gravamen of plaintiffs claim, as we understand it, is that she was discharged for expressing complaints about one or more of the following concerns: (1) the fire district’s safety personnel failure to meet the 75 percent training attendance standard; (2) the overall deficient quality of fire safety training; and (3) hеr belief that Prince and Patterson were perpetrating a “cover-up,” including fabricating and backdating crucial documentation, in response to the NIOSH investigation. 14 Plaintiff does not identify any case, statute, rule, or constitutional provision that compelled any of her conduct. Rather, she asserts that, as in other “whistleblower” cases, by complaining about, and potentially exposing, her public employer’s deficient, and even allegedly unlawful conduct, she was performing an “important public duty.”
Plaintiffs allegations pertaining to the 75 percent training attendance dispute were properly subject to summary judgment because she failed to adduce any evidence showing that her complaints in that regard were objectively reasonable.
15
In particular, plaintiff failed to proffer evidence showing that, even assuming that the circumstances were as plaintiff believed them to be (viz., that district рersonnel were not attending at least 75 percent of training sessions), those circumstances would constitute a violation of some applicable statute or rule. Rather, plaintiff admitted that she was completely unfamiliar with what, if any, training standards were in place on the state, federal, or industry level.
16
Further, plaintiff did not
Plaintiffs second generic class of complaints — viz., that the training quality within the fire district was generally substandard — is similarly deficient. Again, in opposing summary judgment, plaintiff was unable to identify any statute or rule that would have been violated if defendant’s training practices were, in fact, as she believed them to be. Without some grounding in аn applicable statute or rule, plaintiffs complaints based on “holistic” safety concerns were not objectively reasonable and cannot be deemed to have furthered some important public duty.
Finally, we address plaintiffs complaints that her superiors were perpetrating a “cover-up” obstructing the NIOSH investigation. For the reasons that follow, we conclude that the trial court erred in allowing summary judgment with regard to those allegations. 17
We begin by observing that the public interest advanced by “whistleblowing” regarding a calculated obstruction of a NIOSH investigation is at least as substantial as that in other cases sustaining “whistleblowing”-based wrongful discharge claims. NIOSH is part of the Department of Health, Education, and Welfare. 29 USC § 671. In creating NIOSH, Congress declared that the purpose of NIOSH and other investigatory institutes was to reduce the “substantial burden” caused by workplace injury. 29 USC § 651(a). NIOSH has broad investigatory powers, whiсh include the authority to “to review, abstract, and duplicate such personnel records as are pertinent to mortality, morbidity, injury, safety, and other similar studies; and to question and interview privately any employer, owner, operator, agency, or employee from the place of employment.” 42 CFR Part 85a.5(d)(l).
Here, NIOSH was performing its essential statutory function, investigating the circumstances of a fatal workplace accident. The alleged backdating and “cover-up,” if true, obstructed and subverted NIOSH’s performance of that core public safety-related function. Consequently, the public interest implicated here is at least as “important” as that in Dalby (reporting pharmacy record-keeping inaccuracies), Hirsovescu (reporting nursing home patient abuse), and McQuary (same).
Thus, the NIOSH “cover-up”-related allegations were not susceptible to summary judgment if plaintiff adduced evidence showing that (1) her belief that defendant was engaging in such a “cover-up” was objectively reasonable and (2) her discharge was causally related to her complaints about the “cover-up” to Cane and others. Plaintiff presented evidence sufficient to satisfy her prima facie burden as to each of those matters.
Viewed in the light most favorable to plaintiff, the summary judgment record discloses that plaintiff initially had vague and unsubstantiated concerns that Prince and Patterson might conceal information regarding defendant’s training practices from NIOSH investigators; that, in fulfilling her work responsibility and attempting to obtain training-related information for the NIOSH investigation, plaintiff spoke with the fire marshal, Cane, who told her that he was “creating [standard operating procedures] after the fact” to be submitted to NIOSH; that she understood Cane to mean that he was “backdating” those documents; and that she expressed those concerns to Cane. Although Cane’s remarks, as recounted by plaintiff, were reasonably susceptible to different constructions, a reasonable person could understand those remarks as an admission
With respect to causation, Prince admitted in his deposition that plaintiffs discharge was motivated, at least in part, by plaintiffs “questioning that she was bringing forth * * * in regards to us trying to cover things up in the NIOSH investigation.” That statement, coupled with the fact that plaintiff was put on administrative leave the same day that
the NIOSH investigators were to arrive, supports a reasonable inference that plaintiffs discharge was prompted by defendant’s fear that she would voice her concerns to the investigators. In that regard, we appreciate that plaintiff never expressed her “backdating” concerns to NIOSH investigators or anyone else outside of defendant before her discharge. However, in
McQuary,
we recognized that threatening to report abuse was sufficient to support a wrongful discharge claim even though such a report was never actually made.
See
In sum, there are genuine issues of material fact as to plaintiffs allegations that she was discharged for threatened “whistleblowing” about defendant’s alleged conduct in response to the NIOSH investigation. Consеquently, the trial court erred in allowing summary judgment against plaintiffs common-law claim for wrongful discharge.
Reversed and remanded.
Notes
NIOSH is a federal institute with authority to investigate and research workplace safety. See 29 USC § 671; 42 CFR Part 85a.
To the extent that our description pertains to material that is the subject of defendant’s cross-assignment of error, we address the proper relationship between
the cross-assignment and our analysis and ultimate disposition below.
See
Defendant argues, relying on the rule announced
in Henderson-Rubio v. May Dept. Stores,
Defendant’s invocation of
Henderson-Rubio
is unavailing because that principle applies only to statements in affidavits that are “clearly inconsistent” with prior deposition testimony.
Id.
at 585 n 6. In fact,
Henderson-Rubio
is limited to “contradictions of the ‘x’ versus ‘not x’ sort.”
Knepper v. Brown,
There is a significant dispute over the accuracy of plaintiffs account. Cane denied having made such a statement. Instead, according to Cane, he explained to plaintiff that
“the district has had a safety book given to the district by our insurance carrier that explains issues regarding driver safety and that the district has always had access to this information. However, I was taking this information and formally putting the information into a [SOP] format and that I would be passing this information onto [sic] NIOSH.”
It is a “well-settled principle that wrongful termination serves as ‘an interstitial tort, designed to fill a remedial gap where a discharge in violation of public
policy would be left unvindicated.’ ”
Olsen v. Deschutes County,
On appeal, plaintiff, for the first time, asserts that she also satisfies the first, “job-related right,” species of wrongful discharge. Plaintiffs argument in that regard was not preserved and differs qualitatively from her position before the trial court. Accordingly, we will not address it.
See State ex rel Juv. Dept. v. Pfaff,
ORS 659A.203 provides a statutory cause of action for public employee whistleblowers who suffer from retaliation. However, that statute is not the ground for plaintiffs claim in this case, nor was it, or any of its private employment analogs, the basis for any of the claims in the cases described below.
In. concluding that the plaintiffs’ conduct implicated the requisite duty, we observed:
“Oregonians value an orderly and safe community. The importance of maintaining that condition is reflected in laws criminalizing disruptive behavior and in laws giving private citizens the power to arrest. That public concern is heightened in large public gatherings, where the potential for social disorder is increased and where police officers might not necessarily be present. In those circumstances, Oregonians have shown a common concern for reliable protection by citizen officers and value the order that derives from such law enforcement functions. Thus, we hold that, because plaintiffs were discharged for taking steps to maintain order at a large, public event, plaintiffs’ discharge thwarted the important public policy of preserving order at such an event, where social disorder might oсcur and where police officers might not he present or not be present in sufficient numbers to ensure public order on their own.”
We need not determine here what other conduct, following Babick, has sufficient “high social value.” Query, however: Would an employee who is fired for tardiness caused by her efforts to save a drowning child have a cause of action for wrongful discharge? Would the same be true if one of the security officers in.Ba.bick had prevented a murder or sexual assault?
The requested jury instruction required the plaintiff to prove that “patient abuse” had actually occurred. We noted that the term “patient abuse” was being used in a “broad[ ], nonstatutory sense.”
McQuary,
With distant hindsight, and benefit of the present parties’ arguments, the “choice” we posited in McQuary appears to have been incomplete. In McQuary, we framed the “choice” as a dichotomy: Either (1) the plaintiffs good faith was dispositive, regardless of whether the alleged conduct occasioning the “whistleblowing” had actually occurred or (2) the nonoccurrence of the alleged conduct was dispositive, regardless of the plaintiffs good faith. However, there is, at least, a third option — the one that defendant raises here: Regardless of the plaintiffs subjective good faith, and regardless of whether the alleged conduct in fact occurred, the dis-positive consideration is whether there was an objectively reasonable basis for the plaintiffs belief that his or her employer had engaged in conduct that, if proved, violated applicable law.
Those statutes could have been only analogously helpful to McQuary’s analysis of whether the plaintiffs conduct fulfilled an “important public duty,” because they pertain to protections against retaliation for “exercising a job-related
right that reflects an important public policy,”
Babick,
Under former ORS 659.035, it was an unlawful employment practice for an employer to “discharge, demote, suspend or in any manner discriminate or retaliate against an employe” in the terms and conditions of the employee’s employment “for the reason that the employe has in good faith reported possible violations of ORS chapter 441 * * ORS 441.605(7) declares that residents of long term care facilities have the right to be free from “mental and physical abuse.”
ORS 659.035(1) was enacted in 1981, Or Laws 1981, ch 470, § 5, after the plaintiffs discharge in
McQuary
and before we issued our opinion. In referring to that statute, we observed, “[t]he legislature has decided the precise issue in this case for future terminations.”
The summary judgment record and the parties’ briefs indicate that plaintiff may have had other concerns as well, and that she may have made her concerns
known to various people inside and out of the fire district. However, the record does not contain evidence from which a reasonable factfinder could conclude that Prince or anyone else responsible for plaintiff's discharge was aware of those specific concerns or of plaintiffs complaints to others regarding them. As such, those complaints could not have formed the causal basis of plaintiffs discharge.
See Estes v. Lewis and Clark College,
Certain portions of defendant’s cross-assignment of error pertain to evidence potentially relevant to the first two classes of plaintiffs complaints. We do not resolve those portions of the cross-assignment of error beсause we conclude that, even if we were to affirm the trial court’s denial of defendant’s motion to strike, plaintiffs claim regarding those complaints cannot survive summary judgment.
The record on summary judgment shows that the 75 percent attendance was an internal policy, set by defendant itself, and not mandated by statute or rule.
Again, certain portions of defendant’s cross-assignment of error pertain to evidence potentially relevant to whether plaintiffs belief regarding the alleged “cover-up” was objectively reasonable. We do not resolve those portions of the cross-assignment of error because we conclude that, even if we were to reverse the trial court’s denial of defendant’s motion to strike, plaintiffs remaining submissions in the summary judgment record establish an issue of material fact. Specifically, we rely on plaintiffs affidavit recounting her conversation with Cane. That evidence is not addressed by defendant’s cross-assignment of error.